What is a s60i certificate?
A s60i certificate is a certificate provided by a Family Dispute Resolution Practitioner to confirm that the parties attended Family Dispute Resolution or that they did not attend for a specific reason.
The s60i certificate is required to file an application in the Family Court for matters relating to children (sometimes colloquially referred to as custody cases). The Family Court has made this a requirement to encourage parents to try to resolve their disputes before going to Court. Hopefully, through Family Dispute Resolution, they can come to an agreement and avoid the need to go to Court at all.
There are some exceptions to the requirement for a s60i certificate. You can find more information about those from the Family Court of Western Australia here.
When can a s60i certificate be issued?
The s60i certificate is issued in 4 different situations:
A. The parties did not attend Family Dispute Resolution due to the refusal or failure to attend by one party.
This certificate is issued when one party requests Family Dispute Resolution, but the other party chooses not to attend. This refusal can be for a number of reasons, including a preference for a different mediation service, unwillingness or inability to pay the fees, or simply not wanting to mediate.
This certificate is only issued to the party who requested Family Dispute Resolution, not the party who refused to attend.
Importantly, the certificate is not a reflection of the refusing party's desire to mediate generally, only a refusal of that particular proposed mediation with that particular mediation service. It also does not preclude the parties from attending mediation at any time.
B. The parties did not attend Family Dispute Resolution because the Family Dispute Resolution Practitioner considered the matter not appropriate for mediation.
As the title suggests, this certificate is issued when the Family Dispute Resolution Practitioner has assessed the matter and deemed that the case is not appropriate for mediation.
Family Dispute Resolution Practitioners are guided by matters set out in the Regulations (Reg 10 of the Family Court Regulations 1998 in Western Australia or subregulation 62 (2) of the Family Law Regulations 1984 in the rest of Australia). These matters include a history of family violence, the safety of the parties, the physical or mental health of the parties or any other matters that the practitioner considers relevant.
The Family Dsipute Resolution Practitioner has a discretion about their assessment of a matter. Not all matters that have, for example, a history of family violence would be considered not appropriate. It depends on many circumstances.
Importantly, the Family Dispute Resolution Practitioner does not need to explain their reasons for finding a matter not appropriate for mediation and no reason is noted on the certificate.
C. The parties attended Family Dispute Resolution and made a genuine effort to resolve their dispute.
This s60i certificate is provided to parties after they attend a mediation session and the Family Dispute Resolution Pracitioners considers that the parties all made a genuine effort to resolve the dispute.
This certificate is silent about whether or not there is an agreement and some Practitioners will not provide it where the parties reached an agreement on the basis that it should not be needed, and if the agreement falls over, the parties should return to Family Dispute Resolution.
I regularly issue this certificate in matters where the parties have seemingly reached an agreement in session. I do this for a number of reasons:
Unfortunately, some parties do not follow an agreement that was reached in mediation. Issuing the certificates immediately following the mediation provides an understanding that if either party does not wish to follow what has been agreed, the other party can file an application with the Family Court immediately.
The agreement reached in mediation is still informal. Some parties disagree about formalisng the agreement by way of Court Orders. The certificate allows either party to file an application seeking that orders be made.
From a practical perspective, it allows me to finalise a matter and saves the parties needing to try to contact me at a later date (perhaps at a time when I may be away or unavailable for some reason) if they do need a s60i certificate to be issued.
For this reason, I provide a s60i certificate as a matter of course after each mediation session (including subsequent follow up sessions).
D. The parties attended Family Dispute Resolution but one or both of the parties did not make a genuine effort to resolve their dispute.
This s60i certificate is issued in circumstances where the parties attended the mediation session but the Family Dispute Resolution Practitioner considered that one or all of the parties did not make a genuine attempt to resolve their dispute.
There are no guiding principles about what would be considered not making a genuine effort. However, some examples of behaviour which may be considered as not making a genuine attempt at resolving the dispute would include:
walking out or ending the session because the other party does not agree to all of your terms;
being disrespectful to the other party or the Family Dispute Resolution Pracitioner;
constantly interrupting and not allow the other party to speak;
refusing to follow the ground rules or the reasonable directions of the Family Dispute Resolution Practitioner.
Not making a genuine effort to resolve the dispute is not the same as not coming to an agreement. Parties are never forced to agree to anything in mediation and refusing to agree to something is not considered the same thing as failing to make a genuine effort to resolve the dispute.
For how long is a s60i certificate valid?
A s60i certificate is valid for 12 months from the date of the last attendance at mediation. This date is often different from the date the certificate is issued and should not be confused.
Once it has been more than 12 months from the last attempt at mediation, the parties are generally expected to attend Family Dispute Resolution again before proceeding to the Family Court.
If you have any other questions about Family Dispute Resolution or s60i certificates, please feel free to contact me.