Before you can commence proceedings in the Federal Circuit and Family Court of Australia in relation to a family law matter, each party must comply with the pre-action procedures.
In parenting matters, one of those pre-action procedures is to attend family dispute resolution, which is a type of mediation conducted by a family dispute resolution practitioner. When you attempt family dispute resolution you are issued with what is known as a section 60I certificate on conclusion of the mediation, whether agreement is reached or not. This certificate is required to be filed with your Initiating Application when commencing parenting proceedings.
There are some occasions when family dispute resolution is initiated and the other party refuses to attend. In this scenario, the family dispute resolution practitioner will issue the party attempting family dispute resolution with a s60I certificate, noting that the other party refused to attend.
There are some circumstances where a party can be exempt from attending dispute resolution, such as where there is family violence, urgency or in certain applications where an order was made within the 12 months prior to the filing of the application.
If you are legally represented, the invitation to attend dispute resolution might be initiated in correspondence by your solicitor, rather than a mediator. If the other party refuses to attend, you might consider this satisfies the requirements to commence proceedings. A recent review decision of the Court, Mayfield & Mayfield [2025] FedCFamC2F 1227 has provided some commentary and guidance on this issue.
In the matter, the solicitors acting for the applicant filed an Initiating Application in circumstances where they did not have a s60I certificate, and no grounds for an exemption applied. The applicant argued that the certificate was not necessary because the solicitor acting for the applicant had invited the respondent to attend family dispute resolution on two separate occasions. On both of those occasions a response was received to the effect that the respondent refused to attend the family dispute resolution.
The applicant filed an Affidavit of Non-Filing of Family Law Dispute Resolution Certificate, stating that one of the parties is unable to participate effectively in family dispute resolution, by reason of the refusal to attend.
As the certificate was not filed, a Registrar was required to consider the Affidavit of Non-Filing of Family Law Dispute Resolution Certificate before the documents were accepted for filing. When this was done, the Initiating Application was rejected.
As the decision was made by a Registrar under delegated powers of the Court, their decisions can be reviewed by filing an Application for Review within 21 days of the decision being made. On review, the application is then considered by a Judge.
The Judge then considered the requirements of section 60I of the Family Law Act and determined that the applicant did not prove that the parties “were unable to participate effectively in family dispute resolution because of ‘incapacity, physical remoteness or some other related reason’”. The “other related reason” to which the applicant relied upon being that the other party was not prepared to attend.
The Judge considered that the applicant should have initiated family dispute resolution with a family dispute resolution practitioner, who would have then invited the respondent. If the respondent continued to refuse to attend, the certificate could then be issued, meeting the requirements of the Act and the Initiating Application would then have been accepted.
The application for review was dismissed and the Initiating Application was rejected for filing.
This case highlights the importance of attempting family dispute resolution prior to commencing proceedings, although it is important that you always seek advice from a family law solicitor as to your particular circumstances.
Written by
Ashlea Taylor
Family Law Solicitor
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