When parents separate or families go through conflict, many legal steps need to be completed. One common question about this process is whether mediation is compulsory in family law.
In short, yes. Mediation in Australian family law rules often requires couples or families to try mediation or some form of Family Dispute Resolution (FDR) before filing most applications with the court. This is because courts want families to try resolving things together, before asking a judge to make a decision.
Mediation or other forms of FDR gives both sides a chance to speak openly, focus on what is best for the children, and to avoid long and costly court battles.
Is Mediation Compulsory Under Family Law in Australia?
Under Australian family law rules, mediation is usually a required step before you can apply to the family court. This applies to many parenting and family matters.
Before lodging an application for parenting orders, most people must attend Family Dispute Resolution (FDR). This type of mediation is run by trained professionals who help separated parents talk through issues like schooling, living arrangements, and contact time.
However, there are some exceptions to this requirement. For example, you might not have to go through mediation if there is a risk of family violence, child abuse, or if the matter is especially urgent. Even in such cases, you may need to explain to the court why mediation was not suitable for your matter.
The aim of compulsory mediation is to help parents work things out respectfully and with less stress, especially for the children. It gives families a chance to create their own solutions instead of having one made for them in court.
What Are the Rules for Mediation in Family Law Australia?
The Family Law Act sets out the rules for how mediation works. These rules help make sure the process is fair, safe, and helpful for both sides. Under mediation family law Australia legislation, people must try mediation in most parenting cases unless they qualify for an exemption.
The mediation process must be run by an accredited Family Dispute Resolution Practitioner (FDRP). These professionals are trained to keep discussions respectful, private, and focused on what is best for the children. Anything said during mediation is usually confidential, and it can’t be used in court unless certain exceptions apply.
At the end of the session, the mediator can issue a section 60I certificate. Even if no agreement is reached, this certificate is still required before you can apply to the court for parenting orders.
If both parties agree during mediation, they can draft a parenting plan or move forward to formalise their agreement through consent orders.
Read Also: Mediation Before Court in Australia: What You Need to Know
Who Decides If You Must Attend Mediation in Family Law Australia?
The requirement to attend mediation is built into Australian family law processes. Usually, a Family Dispute Resolution Practitioner will look at your situation to see if mediation is appropriate.
If safety concerns are raised, the mediator may determine that mediation is unsuitable and not necessary.
A lawyer may also guide you on whether mediation is required based on your situation. And if the case does reach the court, a judge might order the parties to return to mediation before proceeding with a full hearing. The court usually prefers that families attempt to resolve matters themselves before it steps in.
This is especially true when it comes to decisions involving children. Judges believe parents are in the best position to decide what works for their child, and mediation can help families stay in control of the outcomes.
Can You Refuse to Go to Mediation in Family Law Australia?
Under Australian family law, you can refuse to go to mediation, but only in certain situations. For example, if there is family violence, child abuse, or one party cannot take part because of health issues or distance, you might not have to attend.
In such cases, you may be granted an exemption from the requirement.
To be excused, you will likely need to explain your reasons and possibly provide evidence. If the court accepts your reason, you may be allowed to proceed without mediation.
However, if you simply refuse to attend without a valid reason, it can affect your case. The court may delay your matter or even order you to pay the other side’s legal costs. Courts take the FDR requirement seriously, because they want families to attempt solving disputes out of court, before paying high court fees and costs.
Thus, whilst refusal of mediation is possible, it must be for good reason. Most peopel are encouraged to attend mediation and make an honest effort to reach an amicable solution.
Read Also: Advantages and Disadvantages of Mediation in Family Law Matters
What Happens If Mediation Fails or One Party Doesn’t Participate?
Sometimes, mediation doesn’t lead to an agreement, and that is okay. If you attend and don’t reach a solution, you will be given a section 60I certificate. This proves you tried mediation, and it allows you to apply to the family court. What is most important is that you prove that you have genuinely and honestly attempted mediation.
If the other party refuses to come or leaves early, you can still get the certificate, which confirms that the other side did not participate. This lets you move forward with your application.
Even when mediation fails, the court can still see that you made an effort to cooperate. This often reflects well on your conduct. The court will then make decisions based on the evidence presented, especially when it involves the best interests of the child.
Need Help With Mediation or Parenting Disputes?
Unsure if you need to attend mediation or whether an exemption applies? Justice Family Lawyers can help you understand where you stand. Our experienced team works with families every day to assess options, prepare for mediation, and explain your next legal steps with clarity.
Why wait to feel more confident about your situation? Contact us now and get professional support tailored to your family law matter.
Principal of Justice Family Lawyers, Hayder specialises in complex parenting and property family law matters. He is based in Sydney and holds a Bachelor of Law and Bachelor of Communications from UTS.
