Family Dispute Resolution and Mediation

11 November 2025 in Family and Divorce Law | 7 min read | skip to FAQs

This article explains the role that Family Dispute Resolution (FDR) and mediation play in family disputes under Australian family law, with a focus on parenting issues. We examine the legislative framework, which is part IIIA of the Family Law Act 1975 (Cth) and the Family Law (Family Dispute Resolution Practitioners) Regulations 2025.

The Underlying Principle in Family Law

Australian family law process is structured to encourage parents to resolve parenting disputes through open discussions and negotiations, rather than resorting immediately to having disagreements decided in court. This underlying principle is summarised in Part IIIA of the Family Law Act 1975 (Cth), which seeks to encourage cooperation and preserve parenting relationships during parenting disputes.

The Role of Mediation and FDR

Mediation in family law, refers broadly to a structured setting for separating parents or partners to discuss issues with the assistance of an impartial facilitator. Its primary use is to encourage problem solving and reduce the emotional and financial burden of extended litigation. Mediation can take place privately through a mediator or counsellor, through community based relationship services or within the court system.

Family Dispute Resolution is a specific statutory form of mediation for family law disputes. It can only be conducted by an accredited Family Dispute Resolution Practitioner (FDRP) who is registered with the Commonwealth Attorney-General’s Department. All FDR is classified as mediation, not all mediation qualifies as FDR. A FDRP is independent of the parties and helps people resolve family disputes associated with separation or divorce. FDRPs can’t give legal advice or impose a decision. FDRPs can be private, offered through government funded Family Relationship Centres or government subsidised community based services. They can also be provided by the court via a court appointed judicial registrar. FDR agreements conducted outside the court are not automatically binding whilst agreements reached within a court based FDR can create binding court orders.

Importantly, it is a condition that parties involved in parenting disputes must attend FDR before lodging an application to commence proceedings in the Federal Circuit and Family Court of Australia (FCFCOA).

Legal Framework and the Obligation to Attempt FDR

Under section 60I(1) of the Family Law Act 1975, any party seeking parenting orders under Part VII must first obtain a section 60I certificate from an accredited FDRP. The Federal Circuit Court and Family Court of Australia (FCFCOA), formally known as the Family Court, will not accept an initiating application unless it  is accompanied by either a valid certificate under section 60I or an affidavit which sets out the grounds for exemption under section 60I(9).

This obligation is imposed on parties to ensure that parents make a genuine effort to resolve disputes before commencing proceedings in the court. As stated in section 60I(7), a genuine effort requires meaningful participation rather than simply attending.

Who is Exempt From Family Dispute Resolution?

FDR is not mandatory in every circumstance. Sections 60I(9) and (9B) outline the primary exemptions, which include:

1. Reasonable grounds to believe there has been, or there is a risk of, family violence or child abuse;
2. Urgency, such as recovery or risk of harm applications;
3. An inability of a party to participate effectively in FDR due to incapacity, literacy or geographical remoteness;
4. A serious contravention of a parenting order within the previous 12 months; or
5. Where the application is a response to an existing application.

If an exemption is being relied upon when filing an initiating application, it must be supported by an affidavit that explains the circumstances in detail. This affidavit is called a non-filing of family dispute resolution certificate. The court retains the discretion to adjourn the matter and direct that the parties attend FDR if it considers it safe and appropriate.

Section 60I Certificates

A section 60I certificate is issued under section 60I(8) and once obtained, is proof that FDR has been undertaken or properly assessed as unsuitable for the parties. Only an accredited FDRP may issue the certificate, and it will state one of five outcomes:

1. The other party refused or failed to attend;
2. Both parties attended and made a genuine effort;
3. Both parties attended but one or both did not make a genuine effort;
4. The practitioner considered the matter inappropriate for FDR; or
5. The practitioner considered it inappropriate to continue part way through.

The certificate is a procedural document only. It does not disclose any information of what occurred during the mediation or comment on the parties conduct beyond the limited categories outlined above.

What Happens in FDR in Court?

When one party engages an FDRP to resolve a family dispute, the practitioner invites the other party involved to a session. During the initial assessment, the FDRP decides whether FDR is suitable for this particular family dispute. Considerations include:

1. Family Violence and Safety
2. Equality of Bargaining Power
3. Risks to any Children involved
4. Participant’s emotional and psychological health

From there, the FDRP will explain their role in the process to help both parties clearly understand their expectations and potential outcomes available to them. The FDRP will also help to identify issues that need resolution and will encourage both parties to listen to the other’s position. Occasionally, it’s unsuitable to have both parties participating in the mediation to be in the same room. In that case, the FDRP will conduct a ‘shuffle mediation’ by going back and forth between different rooms to facilitate a successful mediation. Both parties get assistance in developing a parenting plain with clear, agreed upon arrangements for the children.

The FDRP is a third party, impartial party who can keep each participant on tracking provide workable solutions that are in the best interest of the children involved. Your family lawyers can be present during FDR and represent and advocate for you.

When an FDR agreement is reached, the FDRP conducting the conference will make interim or final orders that reflect the agreement. These orders will take effect immediately.

Unsuccessful Family Dispute Resolution

If mediation or FDR fails to reach a resolution between the parties, the section 60I certificate allows for a party to commence court proceedings. At the first return date, the court will review the certificate and may refer the matter back to FDR if further negotiations seem possible.

Another important factor is that under section 117(2A), the court can consider a party’s refusal to attend or failure to make a genuine effort when determining costs. A parent who is found to have unreasonably declined to participate in FDR can face an adverse costs order.

Successful Family Dispute Resolution or Mediation

When FDR or mediation is successful, the agreement that is reached by the parties can be documented in one of two of the following ways:

1. Parenting plan (section 63C): A parenting plan is a written, dated and signed document which sets out the agreed arrangements for the children, such as time with each parent, living arrangements, communication (type and frequency), schooling and holidays. Parenting plans are the more flexible option as they can be varied, however, they are not legally enforceable. While not legally enforceable, parenting plans can be used later during court proceedings as evidence of what was agreed if disputes arise. Parenting plans are useful where parents still maintain cooperative communication and wish to avoid the hassle associated with court orders.
2. Consent orders (section 63B): Consent orders are the alternative, and are formal orders of the FCFCOA made with the parties consent which formalise an agreement reached between the parties. Once sealed by the court, they have the same legal effect as any other parenting order. Therefore, any breach of a consent order can result in enforcement proceedings. When consent orders are filed, the court does not review the issues in dispute, instead they review the proposed terms to ensure they serve the best interest of the children as required under section 60CA of the Family Law Act 1975.

In some cases, parties will first record their arrangement in a parenting plan to test if the plan is stable and appropriate for the children. The arrangement is then often formalised into consent orders to ensure it becomes enforceable by the court.

Parties who have successful outcomes at mediation or FDR typically experience less ongoing conflict, lower legal costs and greater ongoing compliance with the arrangements. This also extends to the children of the parties as it increases stability for them, reduces exposure to potential hostility from the parents and sets a clear structure about their living and care arrangements.

How can BSM Sydney Lawyers assist you?

Our expert family lawyers have experience with family dispute resolution and mediation. We take pride in the fact that over 95% of our divorces are settled out of court, saving you legal expenses, time and further stress. The family lawyers at Brander Smith McKnight Sydney Lawyers will be with you during FDR and represent and advocate for you. We recognise that this can be a very difficult time for you and we will be with you every step of the way. The senior family lawyers at BSM Sydney Lawyers offer a free 20-minute, no obligation consultation to discuss your matter and formulate a plan.

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BSM Lawyer Sydney have offices conveniently located in Sydney CBD, Sutherland, Parramatta, Shellharbour and Wollongong.