Mediation and Family Dispute Resolution: Key Case Learnings
We have compiled this summary of recent family law decisions to highlight key learnings for mediators and FDR practitioners. These cases cover important issues, including procedural requirements, the scope of judicial directions, and the intersection of mediation and FDR with other legal proceedings.
The cases that come before the Courts often provide valuable guidance on what works, what doesn't, and what practitioners need to consider when conducting mediation and FDR.
We hope these summaries provide practical insights to support your work.
Communicate with Both Parties before Issuing a Certificate
Final parenting orders were made by consent in August 2023. A fresh Initiating Application was filed in December 2023. The parties did not attend a family dispute resolution prior to the filing of the new Initiating Application which was required pursuant to the August 2023 orders.
A Section 60I certificate was issued however the FDR practitioner did not speak to the mother before determining the suitability for dispute resolution.
The Court concluded there was no genuine effort made to resolve the matter through FDR.
The Court said, in part,:
“It is difficult to see how a family dispute resolution practitioner can consider that it would not be appropriate to conduct the proposed family dispute resolution without at least hearing from the other party. To do otherwise might well be said to be, or be akin to, a breach the audi alteram partem (meaning "let the other side be heard as well." ) rule and to be a denial of natural justice, forcing the other party into litigation, and the emotional and financial costs thereof, with an opportunity for family dispute resolution, as contemplated, and prima facie required, by the Act. There is no requirement that the parties be brought together physically, or even electronically, face-to-face for this purpose”
Arturo & Indiana [2024] FedCFamC1F 105
Judicial Registrar’s Decision to Vacate Court Date and Direct FDR
The father issued an application (without filing a Section 60 I Certificate) to prevent the mother relocating. The Deputy Registrar moved the first return date to a later date to enable FDR to take place. The question was whether that decision was reviewable on appeal
The Judge found that the Deputy Registrar’s decision to vacate the return date and direct FDR was not reviewable. The father filed the application without a section 60I Certificate and could show no urgency.
Hess & Forsyth [2024] FedCFamC2F 251
Carefully Drafted Order for FDR
This case affirmed that final orders will only be revisited if there is a significant change – this reflects previous case law which is now codified in the Family Law Act. The judgement set out the order with respect to FDR which shows a level of detail which is important for it to be effective.
Family Dispute Resolution
1. That in the event the parties are unable to resolve a significant dispute regarding parenting matters the following is to apply unless otherwise agreed in writing between the parties:-
(a) The parties are to engage in family dispute resolution with a family dispute resolution practitioner to assist with resolving the parenting dispute;
(b) The parties are to jointly agree on who the family dispute resolution practitioner will be;
(c) If the parties cannot jointly agree on who the family dispute resolution practitioner will be:-
(i) the party seeking the dispute resolution shall propose to the other in writing a list of 3 family dispute resolution practitioners with details of their fees, experience and availability;
(ii) the other party is to select a family dispute resolution practitioner from the list within 7 days of being presented with the list;
(iii) if the other party fails to select a family dispute resolution practitioner within 7 days of being presented with the list, the proposing party shall select a family dispute resolution practitioner from the list presented to the other party;
(iv) the cost of the family dispute resolution practitioner shall be met equally by the parties.
Katar & Sevan [2024] FedCFamC1A 49
Criminal Proceedings
A parenting trial was vacated due to one of the parties having outstanding criminal proceedings. Due to the delay of the Court proceedings the Judge ordered FDR once the Family Report had been released. Even where there may be serious charges the court may
still require parties to undertake FDR. In this context therefore there needs to be an awareness of the timeframes within which the FDR needs to be conducted. For example, in this case there would need to have been an understanding of both the timeframe for the FCFCOA and criminal proceedings
Marino & Marino (No 2) [2025] FedCFamC1F 419
Unsubstantiated Claims About Attending FDR
The husband alleged that the wife refused to take part in FDR.
The Court, in part, held:-
The husband’s allegation of the wife’s refusal to participate in family dispute resolution was deemed by the primary judge to be the husband’s attempt to intimidate the wife, given her willingness to participate in a conciliation conference conducted by a registrar of the Court.
Keep in mind this could have implications if there were Intervention Orders in place. It is important to ensure parties understand that their involvement in FDR needs to be “… a genuine effort to resolve issues”.
Neibert & Featherstone [2025] FedCFamC1A 45
FDR Where The Courts Jurisdiction Has Not Been Resolved
De facto financial proceedings had been commenced in the Court but an issue about whether the Court had jurisdiction (was able to deal with the matter) had not been determined. FDR was still ordered and could proceed even when jurisdictional questions remain.
The Court, in part, said
“The conduct of such a conference does not of itself amount to or require a finding that the Court does in fact have jurisdiction to make orders for property settlement.”
Duggan & Sanchez [2024] FedCFamC2F 213
Section 60I Certificate used in other Jurisdictions
A decision in the Administrative Appeals Tribunal which, in assessing an application before it, noted the evidence included a Certificate issued by an FDR practitioner under Section 60I. In reaching its decision the AAT found that after considering all the evidence including the Section 60I Certificate the party had taken reasonable steps to try and resolve matters.
LCDP & Child Support Registrar (Child support second review) [2025] ARTA 383
If you would like to discuss any aspect of these cases or would like us to forward you the full judgments, please feel free to contact our team.
Author: David Edney Director, Accredited Specialist in Family Law