Family dispute resolution and section 60I certificates

Reforms in 2006 to the Family Law Act 1975 (Cth) introduced a system of dispute resolution that aimed to help separating and separated parents resolve disputes relating to arrangements for their children, in an attempt to divert them from the court system. Before parties can apply to the court for a hearing, they are required to undertake family dispute resolution (FDR), or mediation, where they are encouraged to focus on the aims of reducing their children’s exposure to parental conflict and negotiating a workable parenting agreement. Parties who cannot reach agreement through mediation may apply for a judicial ruling but require a FDR practitioner to issue a certificate.¹

The certificate indicates their attendance/non-attendance, that mediation was either attempted by one or both parties, and they were either not successful in reaching an agreement or it was considered inappropriate for that case. In accordance with section 60I of the Family Law Act 1975 (Cth), FDR practitioners may issue one of five different types of certificate:²

1. refusal or failure to attend FDR;
2. did not attend FDR because it was considered inappropriate;
3. genuine efforts made by everyone to resolve issue/s in FDR;
4. genuine efforts were not made by everyone to resolve issue/s in FDR; and
5. began FDR but then deemed inappropriate to continue.

See the Attorney-General’s Department website for more information about FDR and section 60I certificates.

Researching the FDR process

In the absence of any research into actions taken by parties after receiving a certificate, Interrelate³ initiated a research project in 2016 to explore what happens to clients when they exit the FDR process. Co-funded by the Attorney-General’s Department and conducted by research teams from the Australian National University and Canberra University, the project involved phone interviews with 777 former clients who had been issued a certificate between 2011 and 2015. It also included a literature review, analysis of Interrelate administrative data and interviews with 27 Interrelate FDR practitioners (not reported here) about their experiences. The research aimed to inform the future development of services and processes that support families through the various post-FDR pathways.

Research findings⁴

From 2011 to 2015 Interrelate worked with 10,848 FDR cases. During this period, there was a slight increase year-on-year in the number of certificates issued, but with fewer ‘genuine effort’ and more ‘inappropriate for FDR' certificates issued than previous years. This trend reflects the practitioners’ experience of increased complexity of FDR cases, specifically with regards to the prevalence of domestic and family violence. In such relationships, dispute resolution may not be appropriate due to the imbalance of power and control, and the potential for the process to perpetuate this.

Key findings from client interviews

Preferred course of action

Among former clients who received a certificate:

• 46% would have preferred to continue with FDR in order to reach an agreement;
• 25% believed the issues were unresolvable;
• 19% would have preferred to proceed to court;
• 7% would have preferred other unspecified options; and
• 3% were unable to offer alternative actions.

Actual course of action

Almost half (49%) of former clients lodged an application for parenting orders after receiving a certificate. The rate of parenting order applications varied by type of certificate:

• 55% of those issued with an ‘inappropriate for FDR’ certificate;
• 47% of those issued with a ‘genuine effort’ certificate; and
• 43% of those issued with a ‘refusal or failure to attend’ certificate.

Beyond this, 16% of clients reported that they “worked the issues out themselves” and 23% reported that they had not done anything post-certificate issuance. A further 12% used a variety of other strategies.

Use of professional services

There was widespread use of professional services following FDR, which varied slightly by certificate type:

• 63% of those issued with an ‘inappropriate for FDR’ certificate; and
• 61% of those issued with a ‘genuine effort’ certificate.

For those who accessed professional services, 83% used private legal practitioners.

Health and wellbeing

Most parents believed their children were doing reasonably well:

• 72% believed their children were getting along with others;
• 65% believed their children were doing well at school or child care; and
• 70% believed their children were doing well overall.

Most parents (71%) were largely satisfied with their life, while 82% rated their overall health as good, very good or excellent.

Conclusion

These findings provide an insight into how s60I certificates are understood and applied by FDR clients. Following attempted FDR, around half of the clients make applications to the court with a high level of access to further professional—usually legal—services. Some clients come to their own parenting agreements post-FDR through their own efforts, perhaps assisted by what they have learned during the FDR process. Whatever the pathway former clients have taken, they report that they and their children are doing reasonably well.

These findings suggest that service providers can identify and better understand their clients’ needs earlier. This would help provide timely assistance to those likely to eventually work out their arrangements themselves and those for whom resolution is unlikely either by mediation or through the court.

Read the full report available on the Australian National University website: Certifying mediation: A study of section 601 certificates

Reference

Smyth, B., Bonython, W., Rodgers, B., Keogh, E., Chisholm, R., Butler, R., Parker, R., Stubbs, M., Temple, J., & Vnuk, M. (2017). Certifying mediation: A study of section 601 certificates. Canberra: ANU Centre for Social Research and Methods. Retrieved from: http://csrm.cass.anu.edu.au/sites/default/files/docs/CSRM_60ICERT.pdf

Further reading

• Smyth, B., Bonython, W., Rodgers, B., Keogh, E., Chisholm, R., Butler, R., Parker, R., Stubbs, M., Temple, J., & Vnuk, M. (2017). Certifying mediation: A study of section 601 certificates. Retrieved from: <www.interrelate.org.au/getmedia/13fc3047-d24c-418f-951d-3d7dde18ae62/Certifying-Mediation-A-Study-of-Section-60i-Certificates-Summary>
• Evaluation of the 2006 family law reforms
  This AIFS research report presents findings of an evaluation of the 2006 reforms to the Family Law Act 1975 (Cth) that were intended to improve co-operative parenting arrangements.

• Evaluation of the 2012 family violence amendments
  This AIFS research report presents findings of an evaluation of the 2012 family violence amendments to the Family Law Act 1975 (Cth) that were intended to improve the family law system’s responses to matters involving family violence and safety concerns.

Acknowledgements

Interrelate would like to acknowledge the work of the academic research teams at the ANU and Canberra University in undertaking this research. At ANU: Associate Professor Bruce Smyth, Professor Brian Rodgers, Elizabeth Keogh, Professor Richard Chisholm, Jeromey Temple, Shelby Higgs Howarth and Maria Vnuk; and at Canberra University: Assistant Professor Wendy Bonython. Telephone interviewing was undertaken by Wallis Group: <www.wallisgroup.com.au/>. We thank them all for their commitment to the project.