Recent Australian cases mentioning family dispute resolution and their significance for mediators (January 2024 – November 2025)
This summary identifies recent Australian cases in which family dispute resolution (FDR) or mediation was discussed and explains their implications for practitioners. It also draws out key themes relevant to mediators and counsellors. The cases are all sourced from www.jade.io
Cases focusing on mandatory FDR before starting proceedings
Arturo & Indiana [2024] FedCFamC1F 105
Arturo & Indiana [2024] FedCFamC1F 105
- Facts – Parents had final parenting orders by consent in August 2023. In December 2023 the father filed an Initiating Application seeking new orders without attending FDR, although the previous orders required the parties to attend mediation before further litigation. A practitioner issued a s 60I(9) certificate stating that the matter was not appropriate for FDR without contacting the mother. Arturo & Indiana [2024] FedCFamC1F 105 – BarNet Jade
- Decision – The court in Melbourne in Feb 2025 summarily dismissed the father’s application. It held that there was no significant change of circumstances justifying reopening the orders; the father had not made a genuine effort to resolve the dispute through FDR; and the FDR practitioner should not have issued a certificate without assessing suitability and contacting both parties.
- Point 16 of the ruling. “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 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.”
- Implications for FDR practitioners – Practitioners must carefully assess whether a matter is suitable for FDR before issuing a certificate and should liaise with both parties. Certificates cannot be used to circumvent the requirement to attempt genuine FDR. Mediators should document their efforts and ensure that parties understand FDR prerequisites before filing.
Hess & Forsyth [2024] FedCFamC2F 251
FCFCoA – 16 Apr 2024
- Facts – The father applied to prevent the mother relocating with the child. A deputy registrar postponed the hearing to May 2024 and directed the parties to attend FDR; the father sought review of that decision and argued he did not need a s 60I certificate.
- Decision – The judge held that the registrar’s decision to vacate the return date and direct FDR was not reviewable; the father filed the application without a certificate and could not show urgency. Sections 60I(7) and (9) require a certificate before the court can hear a Part VII parenting application unless there is abuse, family violence or urgency. The registrar’s notation explained that a certificate must be filed before the chambers hearing and set out the procedure if the certificate is later obtained. The judge noted that the parties were bound by earlier orders requiring them to attend alternative dispute resolution before litigation and granted leave for the father to apply again if the mother refused mediation. Hess & Forsyth [2024] FedCFamC2F 251 – BarNet Jade – BarNet Jade
- Implications – Mediators and lawyers should ensure parties obtain s 60I certificates before filing parenting applications, unless a specific exemption applies. Practitioners should advise parties to adhere to previous orders about mediation. Registrars can direct parties to FDR and will only grant exemptions when evidence of urgency or risk is compelling.
Katar & Sevan [2024] FedCFamC1A 49
Full Court of the FCFCoA – 11 Apr 2024
- Facts – A father appealed final parenting orders (including relocation) reached by consent. He argued that there was a significant change in circumstances and procedural unfairness.
- Decision – The appeal was dismissed. The Full Court affirmed that under the Rice and Asplund test, final orders will only be revisited if there is a significant change. In the orders, the trial judge mandated that the parties attend FDR if future disputes arose: they must jointly agree on an FDR practitioner; if they cannot, one proposes three practitioners with details of fees and availability and the other selects one; if no response, the proposing party choose. Costs of FDR are shared equally.
Katar & Sevan [2024] FedCFamC1A 49 – BarNet Jade - Implications – The case underscores the importance of clearly drafting mediation clauses and selection processes in consent orders. FDR practitioners may be appointed via a list agreed between the parties. Mediators should ensure parties understand their obligations to resolve future disputes through FDR before resorting to court.
Marino & Marino (No 2) [2025] FedCFamC1F 419
FCFCoA – 20 Jun 2025
- Facts – A parenting trial was vacated due to concurrent criminal proceedings. The court considered how to progress the matter without prejudicing either proceeding.
- Orders – Justice Gill ordered the parties to engage in a Family Dispute Resolution Conference once the family report was released and to take all necessary steps to ensure the conference occurred. Marino & Marino (No 2) [2025] FedCFamC1F 419 – BarNet Jade
- Implications – Even when litigation is delayed due to criminal proceedings, in this case a serious charge against the mother, the court may direct parties to participate in FDR. Mediators may be involved in complex cases where allegations of abuse or crime exist; they should be prepared to coordinate with legal and court timetables.
Cases dealing with confidentiality and admissibility of FDR communications
Toscani & Silva [2024] FedCFamC2F 1657
FCFCoA – 11 Sep 2024
- Facts – During a parenting trial, one party sought to rely on a therapist’s report. The opposing party argued the report was confidential and inadmissible.
- Decision – The judge considered Division 3 of Part II of the Family Law Act. Section 10F defines family dispute resolution as a process where an independent practitioner helps separated people resolve disputes about children. Section 10H provides that communications made in FDR are confidential unless disclosure is authorised. However, the judge noted that these provisions apply only to FDR processes under Division 3; court-ordered therapy in this case was not FDR, so the therapist’s report was admissible. Toscani & Silva [2024] FedCFamC2F 1657 – BarNet Jade
- Implications – If the therapy had been the result of a referral from a Family Dispute Resolution Practitioner then inadmissibility provisions would have applied. It is important that FDRP’s document referrals that seek to rely on Section 10J must clarify whether a process is family dispute resolution under the Family Law Act. Confidentiality and inadmissibility protections apply only when a registered FDR practitioner is facilitating. Therapists or counsellors engaged outside FDR may have their communications disclosed in court.
Neibert & Featherstone [2025] FedCFamC1A 45
Full Court of the FCFCoA – 29 Apr 2025
- Facts – The husband appealed a modest costs order and alleged that the wife refused to participate in FDR. The primary judge rejected this claim.
- Decision – The Full Court dismissed the appeal. It noted that the husband’s allegation of the wife refusing FDR was an attempt to intimidate her; she had, in fact, consented to a conciliation conference. The court considered the parties’ conduct when exercising its discretion under s 117(2A) of the Family Law Act and found the costs order appropriate. Neibert & Featherstone [2025] FedCFamC1A 45 – BarNet Jade
- Implications – Making false claims about a party’s failure to attend FDR can be viewed as intimidation and may impact cost awards. Mediators should ensure parties understand that participation in FDR should be genuine and that the court takes a dim view of misrepresentations about FDR engagement.
Mathieson v State Coroner of Western Australia [2025] WASC 303
Supreme Court of Western Australia – 18 Sep 2025
- Facts – A mother sought a certificate enabling her to attend her deceased son’s funeral and alleged she had been excluded by the father. She produced evidence of attempts at FDR to demonstrate her genuine efforts to maintain contact with the child.
- Evidence – Her affidavit stated that she had scheduled an FDR session on 16 March 2022 to resolve custody issues but the father did not attend; she attached documentation of these attempts. Mathieson v State Coroner of Western Australia [2025] WASC 393 – BarNet Jade – BarNet Jade
- Implications – Although the case involved coronial proceedings rather than family court, it illustrates how records of FDR attempts may be considered by other courts as evidence of a party’s willingness to resolve disputes. Practitioners should encourage parties to retain certificates and correspondence as proof of their efforts.
Cases dealing with FDR in property or financial disputes
Duggan & Sanchez [2024] FedCFamC2F 213
FCFCoA – 25 Feb 2024
- Facts – De facto financial proceedings were commenced but the court had yet to determine whether it had jurisdiction. The question arose whether to order a financial conciliation conference and external FDR while jurisdiction was uncertain.
- Decision – The court noted that under the FCFCoA Rules, dispute resolution includes mediation and conferences. It is usual practice for parties to undertake dispute resolution within five months of proceedings commencing. The judge observed that ordering an early financial conciliation conference would be effective to resolve issues and directed the parties to attend private mediation or other dispute resolution pursuant to rule 4.05. Duggan & Sanchez [2024] FedCFamC2F 213 – BarNet Jade
- Implications – FDR practitioners may be engaged in property/financial matters even when jurisdictional questions remain. Early dispute resolution can save costs and focus issues. Practitioners should be prepared to assist parties in exploring settlement options while court jurisdiction is resolved.
Cases illustrating the role of FDR certificates in child support and administrative reviews
LCDP & Child Support Registrar (Child support second review) [2025] ARTA 383
Administrative Appeals Tribunal of Australia (AATA) – 16 Apr 2025
- Facts – The applicant challenged a child support decision and claimed the other parent filed a contravention application without taking reasonable steps, including seeking legal advice or attending FDR.
- Evidence – In her submission she quoted the Family Court website: parties who believe another parent has contravened a parenting order should seek legal advice, attend FDR counselling and/or apply to the Court. The evidence before the tribunal included a certificate issued by an FDR practitioner under s 60I.
- Decision – The AAT affirmed the original decision, finding that the other party had taken reasonable steps. Nonetheless, the case shows that FDR certificates and evidence of attempts at FDR are relevant in child support and administrative reviews. LCDP and Child Support Registrar (Child support second review) [2025] ARTA 383 – BarNet Jade
- Implications – Practitioners should remind parties seeking to enforce parenting orders that attending FDR or obtaining a certificate is considered a reasonable step and may be scrutinised in later reviews.
Additional cases and mentions
- Addicks & Addicks [2025] FedCFamC1A 112 (26 Jun 2025): snippets suggest the court may have required parties to undertake FDR before returning to court. Without full reasons available, the case emphasises the ongoing expectation that parties attempt mediation prior to further litigation. Addicks & Addicks [2025] FedCFamC1A 112 – BarNet Jade
Themes emerging from recent cases
- Mandatory FDR and s 60I certificates – Courts consistently require parties to attend FDR and obtain a s 60I certificate before filing parenting applications. Exemptions (abuse, family violence, urgency) are narrowly construed. Practitioners must ensure certificates are issued only after assessing suitability and genuine attempts.
- Structured selection of mediators – Consent orders often include detailed procedures for selecting FDR practitioners (e.g., providing lists of three options). Mediators should be aware of such clauses and be prepared to respond promptly to party inquiries.
- Good faith participation – Allegations of refusal to attend FDR can influence costs or outcome; courts penalise parties who falsely claim non‑participation or use FDR allegations as intimidation.
- Confidentiality boundaries – Communications during FDR with a registered FDR practitioner are confidential under s 10H, but therapy or counselling outside FDR is not protected. Practitioners should clarify their role and advise participants accordingly.
- FDR across contexts – FDR requirements extend beyond parenting disputes to property matters, child support reviews and even inform other proceedings such as coronial inquests. Maintaining records of FDR efforts can assist in demonstrating a party’s reasonableness in various tribunals.
Significance for mediators and FDR practitioners
These decisions emphasise that mediators play a crucial role in the family law system. Practitioners should:
- Adhere to legislative standards by ensuring suitability assessments, contacting all parties and issuing certificates only when justified.
- Document processes and communications to demonstrate that FDR was offered, conducted or declined.
- Clarify confidentiality with parties and understand when FDR protections apply.
- Coordinate with court orders and timetables; mediators may be appointed quickly when a dispute arises or may have to wait for reports or other procedures.
- Facilitate good‑faith engagement and discourage parties from using allegations about FDR participation as a strategic tool.
By observing these practices, mediators contribute to the effective resolution of family disputes and uphold the integrity of the FDR framework.