Mediation plays a significant role in family law matters in Australia, particularly when parents separate or divorce. One of the most common questions we hear at Hickman Family Lawyers is, “Do you have to go to mediation before family court?”
The short answer is — in many cases, yes.
Mediation is not only encouraged but often legally required before certain matters can proceed to court, especially when children are involved. Understanding these requirements can help you prepare, avoid unnecessary delays, and make informed decisions about how to resolve your family law issues.
Do You Have to Go to Mediation Before Family Court?
In Australia, divorce or family mediation — often referred to as Family Dispute Resolution (FDR) — is designed to help separating couples resolve disputes without the need for court proceedings. It’s a process where a neutral, trained mediator works with both parties to try to reach an agreement on issues such as parenting arrangements, property division, and financial matters.
The Australian family law system strongly encourages mediation because it can be faster, less expensive, and less stressful than litigation. In most parenting matters, attending mediation (or attempting to resolve the dispute through FDR) is a prerequisite before you can file an application with the Family Court.
While there are exceptions (which we’ll explore later), the general expectation is that you should attempt mediation first. If mediation is unsuccessful, the mediator will issue a certificate that allows you to proceed to court. At Hickman Family Lawyers, we help clients navigate both the mediation process and court proceedings when necessary.
Family Mediation vs Family Dispute Resolution – Is there a Difference?
The terms “family mediation” and “family dispute resolution” are often used interchangeably, but in Australian family law, Family Dispute Resolution (FDR) has a specific legal meaning. FDR is a structured process facilitated by an accredited practitioner under the Family Law Act 1975, aimed at resolving disputes relating to children, property, and other family matters.
Family mediation is a broader term that can refer to any facilitated negotiation between separating couples. It may be less formal and might not always involve an accredited FDR practitioner. This distinction matters because only an accredited FDR practitioner can issue a Section 60I Certificate — a document required before most parenting matters can proceed to court.
In practice, many people use the term “mediation” when referring to FDR, and vice versa. However, if your dispute involves parenting arrangements, you’ll likely need to engage in FDR with an accredited practitioner.
At Hickman Family Lawyers, we regularly advise our clients on which type of process is most suitable for their situation. Sometimes, informal mediation is enough to reach a resolution. In other cases — especially where court action may follow — formal FDR is the better option. Understanding this difference ensures you choose the process that meets both your legal obligations and your practical needs.
Do You Have to Go to Mediation Before Family Court?
For most parenting disputes in Australia, the answer is yes — you must attempt mediation before you can apply to the court for orders. This requirement is set out in the Family Law Act and is intended to encourage parents to reach agreements outside of the courtroom.
The rationale is straightforward: mediation is usually faster, less expensive, and less emotionally taxing than litigation. It also gives parents more control over the outcome, as decisions are made by mutual agreement rather than imposed by a judge.
If you attend mediation and an agreement is reached, it can be formalised through a parenting plan or by applying for consent orders. If mediation is unsuccessful, the mediator can issue a Section 60I Certificate, which allows you to file an application in the Family Court or Federal Circuit and Family Court of Australia (FCFCOA).
At Hickman Family Lawyers, we guide clients through the mediation process to maximise their chances of reaching a workable solution. If mediation fails, we can also represent you in court proceedings, ensuring your case is presented clearly and effectively.
When Is Mediation Required in a Divorce?
Mediation is particularly important in cases involving children. If you’re seeking parenting orders from the court — whether about custody, visitation, or decision-making responsibilities — you must usually attempt mediation first. This applies whether you are divorcing or were in a de facto relationship.
Property disputes can also be resolved through mediation, though it is not always mandatory in the same way as for parenting matters. However, courts expect separating couples to make genuine efforts to resolve their differences before turning to litigation.
The mediation requirement applies to both married and de facto couples under Australian family law. The only difference is that if you are applying for a divorce order itself (the legal dissolution of the marriage), mediation is not a prerequisite. But if you are seeking related parenting or property orders, the mediation rules apply.
Our team of family lawyers in Perth can help you determine whether mediation is required in your case and prepare you for the process. In many cases, our involvement in pre-mediation preparation significantly improves the likelihood of a successful outcome.
Are There Any Exceptions?
Yes. There are specific circumstances where you are not required to attend mediation before filing a court application. These include:
- Family violence or abuse – If there is a risk to you or your children’s safety, the court may allow you to bypass mediation.
- Urgency – If the matter is urgent, for example, where a child has been removed without consent or there’s a serious risk of harm.
- Incapacity – If one party is unable to participate effectively due to illness or another incapacity.
- Previous attempts – If you have already attended mediation and it was unsuccessful, you may not need to repeat the process.
To rely on an exception, you will usually need to provide evidence to the court, such as police reports, medical records, or details of prior mediation attempts.
At Hickman Family Lawyers, we assess each client’s situation carefully to determine whether an exception applies. If safety is a concern, we ensure protective measures are in place and guide you through alternative legal options.
What’s A Section 60I Certificate?
A Section 60I Certificate is a formal document issued by an accredited Family Dispute Resolution practitioner. It confirms that mediation has either taken place or that certain circumstances make it unnecessary. You must include this certificate with your court application in most parenting matters.
There are different types of Section 60I Certificates, including:
- Both parties attended and made a genuine effort to resolve the dispute.
- One party refused or failed to attend.
- The practitioner decided the matter was not appropriate for mediation.
- Mediation was attempted but was unsuccessful.
The type of certificate you receive can be relevant in court proceedings, as it may reflect whether both parties acted in good faith.
Should I Consider Mediation Instead of Going to Court?
In most cases, we think so, yes. Mediation can usually offer several advantages over court proceedings. It is typically faster, less expensive, and less adversarial. It also allows both parties to have more control over the final agreement, rather than having a judge decide.
Mediation can also preserve relationships — an important consideration when you will continue to co-parent after separation. By focusing on cooperation rather than conflict, mediation often results in more durable and practical arrangements.
Even if you believe your case will ultimately go to court, attempting mediation can still be beneficial. It may narrow the issues in dispute, making any subsequent court process shorter and more cost-effective.
At Hickman Family Lawyers, we approach mediation strategically, ensuring our clients are fully prepared and supported throughout the process. We believe that exploring mediation first is often the smartest path — but if court becomes necessary, we are ready to advocate strongly for our clients’ interests.
Mediation is a central part of the Australian family law system, and in many cases, it’s a step you must take before heading to court. Even when it’s not mandatory, it can offer significant benefits in terms of cost, time, and emotional wellbeing.
If you need guidance on family law mediation in Perth, Hickman Family Lawyers offers a free 15-minute no obligation information call to help you understand your options and take the next step with confidence.
