Section 60I certificates for family dispute resolution

If a party indicates either verbally or in writing that they refuse to participate in any part of the FDR process, then the practitioner may issue a ‘failure to attend’ certificate.

It may also be appropriate to issue a ‘failure to attend’ certificate if FDR has begun, but one of the parties has consistently refused to attend a scheduled FDR session. 

Practitioners should indicate on the certificate which party (or parties) did not attend because the other party refused or failed to attend.

Practitioners should explain this type of certificate to the party or parties so that they understand that the certificate says that the other party refused or failed to attend and therefore they were unable to attend FDR. 
When a practitioner invites a party to FDR, they must advise them that if they do not attend, a court may take this into account when:

• ordering the parties to attend further FDR under section 13C of the Family Law Act
• awarding costs against a party under section 117 of the Family Law Act.

If the parties have been willing to engage in FDR but one or both parties seem reluctant to continue, the FDR practitioner should consider whether another session can be arranged in a reasonable time before issuing a certificate.

Multiple certificates can be issued for one dispute. For example, one party may be issued a certificate because the other party has refused to attend FDR. The other party might then initiate FDR through a different FDR practitioner, and the first party may refuse to attend that process. If this happens, a second ‘failure to attend’ certificate can be issued.

Practitioners should consider why a party has refused to attend FDR. It could be due to financial circumstances rather than a lack of genuine interest in attending. If so, it may be more appropriate to refer them to a service funded by the government. The practitioner will need to rely on their professional judgement as to whether a ‘failure to attend’ certificate should be issued.

If an FDR practitioner does not believe it is appropriate to conduct FDR, they should issue a ‘not appropriate’ certificate if they are asked for a certificate. It does not matter whether they believe that FDR may become appropriate in the future.

It may not be appropriate to conduct FDR if either party is not able to negotiate freely. For example, someone may not be able to negotiate freely where there is a history of family violence or if they feel unsafe.

The practitioner should speak with all people involved with the FDR before using their professional judgement and deciding whether it is appropriate to conduct FDR.

‘Genuine effort’ should be given its ordinary meaning in the context of Part VII of the Family Law Act (which deals with children).

A genuine effort involves a real, honest exertion or attempt realistically directed at resolving the issues in dispute. It must be more than a superficial or token effort. If either party has not made a genuine effort, it may be appropriate to provide a ‘non-genuine effort’ certificate.

Whether a genuine effort has been made to resolve issues will depend on the circumstances of the case. An FDR practitioner needs to decide this based on their professional judgement.

If the parties in dispute have resolved all their matters and do not need the court’s help, there is no need to issue a ‘genuine effort’ section 60I certificate. The only purpose of these certificates is to allow people to file an application in court. 

If an issue is still in dispute, it does not necessarily mean that one or more people did not make a genuine effort. There may be valid reasons why people have differing views on an issue.

If an agreement has broken down after mediation, an FDR practitioner should encourage parties to try mediation again. 

A practitioner should only issue a ‘genuine effort’ section 60I certificate if they genuinely believe the clients have made their best attempt to mediate and make their agreement work.

The last FDR session that the parties attended or attempted to attend about the issue(s) to be covered by a court application must be within the last 12 months. If it was more than 12 months ago, no certificate can be issued.

If people involved with the dispute attend FDR but refuse to change their views on the matters in dispute, the FDR practitioner needs to use their professional judgement to decide whether a ‘non-genuine’ certificate should be issued. Both people may have valid personal reasons why they have refused to change their views. The failure to resolve a dispute does not necessarily mean they have not made a genuine effort.

If a certificate is issued, including a ‘non-genuine effort’ certificate, the court may order people to attend FDR before hearing the application.

The court may also take into account that a ‘non-genuine effort’ certificate has been issued when deciding if a costs order should be made against a person.

An FDR practitioner can issue a section 60I certificate if it becomes apparent during FDR that it would be inappropriate to continue. For example, a practitioner may identify during an FDR session that there is a history of family violence that was not detected during the earlier suitability assessment. If the FDR practitioner believes that this impacts a person's ability to negotiate freely, they may decide to stop the process and issue a certificate.

The FDR practitioner is only required to indicate on the certificate that FDR is inappropriate. Practitioners are not required to provide any reason why it is inappropriate.

A section 60I certificate can only be issued to one person. If only one person asks for a section 60I certificate, the FDR practitioner does not need to issue a certificate to the other party or parties unless they consider it appropriate to do so. If it is appropriate to issue each party a certificate, the practitioner will need to issue separate certificates to each party. 

Generally, a court cannot hear an application for a parenting order unless the person applying to the court files a certificate from an accredited FDR practitioner. Exceptions to this include cases involving family violence, child abuse or urgency. It is important that practitioners issue the appropriate certificate after attempting FDR.

It is up to the FDR practitioner to decide whether to provide an original or photocopied section 60I or 66H certificate. Practitioners can choose to give everyone involved original certificates. They can also choose whether to keep an original certificate or a photocopy in their own file.

There may be circumstances where both people involved in a dispute obtain refusal or failure to attend section 60I or 66H certificates against each other from different FDR practitioners.

In this situation, the court will need to consider the individual circumstances and may decide to order the people involved to attend FDR before the application is heard. The court could also decide to hear the matter without people attending FDR.

If there are no contact details for a person and the others involved in the dispute have no idea how to find them, they can file an application to the court relying on the exception that one or more of the people to the proceeding is unable to participate effectively.

It is a matter for the professional judgement of an FDR practitioner whether it would be more appropriate, based on the individual circumstances of the case, to issue a ‘not appropriate to conduct FDR’ certificate.

For example, the practitioner may consider it inappropriate to proceed to FDR because a full screening and assessment has not been done with the other party or parties since they haven’t been able to contact them. Because there is lack of suitable information to determine whether it would be appropriate to proceed to FDR, a ‘not appropriate to conduct FDR’ certificate may be suitable for this situation.

When to issue a section 60I certificate saying that a person failed or refused to attend (including non-responses) is a matter for the professional judgement of an FDR practitioner. However, if a practitioner has reason to believe that a person is using delaying tactics, they are able to issue a certificate so long as the practitioner has complied with the requirements of the FDR Regulations. 

An FDR practitioner must attempt to contact the party who has failed to attend at least twice, with at least one contact in writing. FDR practitioners are also required to offer a reasonable choice of days and times for attendance at FDR and advise of the consequence for not attending (i.e. a section 60I certificate may be issued). It is up to each accredited FDR practitioner to determine the reasonable length of time in which to comply with this requirement.