FDR Exemptions: When You Can Skip Mediation

Understanding the FDR requirement

Before filing most parenting applications in the Federal Circuit and Family Court of Australia, you must first attempt Family Dispute Resolution (FDR). This requirement is set out in Section 60I of the Family Law Act 1975 and is designed to encourage parents to resolve disputes outside court where possible.

FDR is a structured mediation process conducted by a registered Family Dispute Resolution Practitioner (FDRP) — an accredited professional registered under the Family Law (Family Dispute Resolution Practitioners) Regulations 2008. Only FDR conducted by a registered FDRP satisfies the Section 60I requirement and results in a valid Section 60I certificate. General mediation or counselling does not.

The Section 60I certificate

After FDR, the practitioner issues a Section 60I certificate indicating the outcome:

• 60I(8)(a) — both parties attended and made a genuine effort to resolve the dispute.
• 60I(8)(aa) — both parties attended but one did not make a genuine effort.
• 60I(8)(b) — one party did not attend due to refusal or failure to respond.
• 60I(8)(c) — the practitioner determined FDR was inappropriate (exemption).

Exemption 1: Family violence

This is the most commonly claimed exemption. It recognises that requiring a victim of family violence to sit across from their abuser in mediation can be unsafe, traumatic, and unlikely to produce a fair outcome due to the power imbalance.

Section 60I(9)(b): "…there are reasonable grounds to believe that there has been, or there is a risk of, family violence by one of the parties to the proceedings…"

What constitutes family violence?

Under Section 4AB of the Family Law Act, family violence includes any behaviour that causes a family member to fear for their safety or wellbeing. It includes physical assault, threats to harm you, children, other family members, or pets, coercive control (a pattern of behaviour that controls or dominates), psychological abuse (intimidation, harassment, humiliation), stalking, and economic abuse (controlling finances, preventing work, withholding money).

The exemption applies where there is a risk of family violence — not just where violence has already occurred. If you have genuine reasons to fear that attending FDR would put you at risk, this can support an exemption even without documented incidents involving you directly.

Evidence for the family violence exemption

• Intervention orders (AVOs, DVOs) — current or historical family violence orders, including interim orders. Even one intervention order is typically sufficient to establish the exemption.
• Police records — police reports, event numbers, LEAP records documenting incidents.
• Medical records — hospital records, GP notes documenting injuries or psychological impact.
• Witness statements — affidavits from people who witnessed violence or its effects.
• Communications — text messages, emails, voicemails showing threats or admissions.
• Support service records — records from refuges, family violence services, or counsellors.

Exemption 2: Child abuse

Where there are allegations or concerns about child abuse by the other parent, FDR is not appropriate. Child safety concerns must be assessed by the court with proper evidence and often with the involvement of child protection authorities or an Independent Children's Lawyer.

Section 60I(9)(b): "…there are reasonable grounds to believe that… a child of either of the parties to the proceedings has been, or is at risk of being, abused…"

Forms of child abuse

Under the Family Law Act, "abuse" in relation to a child includes physical abuse (assault, hitting, shaking, burning, or other physical harm), psychological abuse (emotional abuse, terrorising, constant criticism, rejection), sexual abuse (sexual assault, exposure to sexual content, inappropriate touching), neglect (failure to provide food, shelter, supervision, or medical care), and exposure to family violence (seeing, hearing, or experiencing its effects).

Evidence for the child abuse exemption

• Child protection notifications — reports to DOCS/DCFS and any substantiated findings.
• Medical evidence — records documenting injuries, disclosures to doctors, forensic examinations.
• School or childcare reports — observations of injuries, behavioural changes, or disclosures by the child.
• Psychologist reports — assessments documenting trauma, behavioural indicators, or child disclosures.
• Police records — investigation records, charges laid, or crime reports involving the child.
• Child's disclosures — documented statements from the child (ideally to professionals).

Exemption 3: Urgency

Some situations require immediate court intervention, and waiting for FDR would cause unacceptable delay that could result in harm to a child or irreversible changes to the status quo.

Section 60I(9)(d): "…the application is made in circumstances of urgency…"

Circumstances that may constitute urgency

• Risk of child removal from Australia — the other parent has booked flights, surrendered a lease, or made plans to relocate overseas with the child without consent. Urgent airport watch orders or passport surrender orders may be needed.
• Imminent interstate relocation — the other parent plans to relocate interstate with the child imminently, which would fundamentally alter the child's circumstances.
• Immediate safety concerns — a child is in immediate danger due to the other parent's conduct, substance abuse, mental health crisis, or exposure to dangerous individuals.
• Wrongful retention of child — the other parent has taken the child and refuses to return them, or has breached existing arrangements and is withholding the child.
• Medical emergency decisions — urgent medical treatment is required for the child and parents disagree, or one parent refuses to consent to necessary treatment.

Evidence for the urgency exemption

• Flight bookings or travel itineraries — evidence of booked flights, especially one-way tickets.
• Lease terminations or property sales — evidence the other parent is ending their lease or selling their home.
• School withdrawal notices — evidence children have been or are being withdrawn from school.
• Communications stating intent — text messages, emails, or voicemails where the other parent states their intentions.
• Passport location evidence — evidence that children's passports are missing or with the other parent.
• Timeline evidence — evidence showing the imminent nature of the concern (dates, deadlines).

Exemption 4: Incapacity

FDR requires both parties to participate meaningfully in negotiations. Where a party cannot effectively participate — due to mental illness, intellectual disability, serious physical illness, overseas location, incarceration, or other incapacity — an exemption may apply.

Section 60I(9)(c): "…a party to the proceedings is unable to participate effectively in family dispute resolution (whether because of incapacity of that party, or for some other reason)…"

Grounds for the incapacity exemption

• Mental illness — a party has a mental illness that prevents them from participating rationally in negotiations, for example acute psychosis or severe untreated depression affecting judgment and communication.
• Intellectual disability — a party has an intellectual disability that prevents them from understanding the process, the issues, or the implications of any agreement reached.
• Overseas location — a party is located overseas and cannot practically participate in FDR, particularly if they are in a country without suitable FDR services or cannot return to Australia.
• Incarceration — a party is incarcerated and cannot access FDR services, or the prison does not facilitate FDR participation.
• Serious physical illness — a party has a serious illness or medical condition that prevents them from attending and participating in mediation sessions.

Evidence for the incapacity exemption

• Medical or psychiatric reports — diagnosis, prognosis, and opinion on capacity to participate in FDR.
• Treating doctor's letter — confirming the condition and its impact on FDR participation.
• Evidence of location — passport records, visa documents, or evidence showing overseas residence.
• Prison records — evidence of incarceration and lack of FDR access within the facility.
• FDRP assessment — the practitioner's own assessment that the party cannot participate effectively.

Exemption 5: Contravention applications

When existing parenting orders have been breached, you can file a contravention application without first attending FDR. Orders exist because the parties could not agree; a breach should be addressed by the court, not through further negotiation.

Section 60I(9)(a): "…the application is made… in relation to a contravention of an order made under this Part…"

What constitutes a contravention?

A contravention occurs when a party breaches a parenting order without reasonable excuse. Examples include withholding ordered time, consistently returning the child late, denying ordered telephone or video contact, relocating with the child in breach of a geographical restriction, refusing to hand over the child's passport as ordered, and making prohibited disparaging comments about the other parent to the child.

Evidence for contravention applications

• A copy of the existing orders — the specific orders that have been contravened.
• Evidence of breach — communications showing refusal to comply, or records of missed changeovers.
• Calendar records — documentation of specific dates and times when contraventions occurred.
• Witness statements — statements from people who witnessed the contravention.
• Attempts to resolve — evidence showing you attempted to address the breach before filing.

Evidence and documentation

Properly documenting your exemption claim is essential whether you are obtaining an exemption certificate from an FDRP or claiming an exemption directly to the court.

Obtaining an exemption certificate from an FDRP

1. Contact a registered FDR service (such as Relationships Australia, Family Relationship Centres, or private FDRPs). Explain that you believe an exemption applies and request an assessment.
2. Provide copies of all evidence supporting your exemption claim — intervention orders, police reports, medical records, communications, or other relevant documents.
3. The FDRP will assess whether an exemption applies, potentially via a brief interview or document review. If satisfied, they will issue a Section 60I(8)(c) certificate.
4. Attach the certificate to your court application. The certificate is valid for 12 months from the date of issue.

Claiming exemption directly to court

In urgent situations, you may need to file directly with the court without first obtaining a certificate. To do this: clearly identify which exemption ground(s) apply under Section 60I(9); detail the specific facts in your supporting affidavit; attach all documentary evidence as annexures; explain why a certificate was not obtained first; and be prepared for the court to assess whether the exemption is established at the first hearing.

Common mistakes to avoid

Claiming an exemption incorrectly can result in delays, additional costs, or your application being rejected.

• Claiming urgency without genuine urgency — filing because you are frustrated or want things resolved quickly, rather than because there is an imminent risk or irreversible change. The court may refuse to list the matter urgently, require FDR attendance, or make a costs order against you.
• Failing to provide supporting evidence — claiming an exemption based on bare assertions without documentation. The FDRP may refuse to issue an exemption certificate and the court may reject your claim.
• Using an expired certificate — filing with a Section 60I certificate issued more than 12 months ago. Your application may be rejected by the court registry.
• Conflating conflict with violence — claiming a family violence exemption when the situation involves high conflict or emotional distress, but not actual violence or fear. High conflict may warrant shuttle mediation; it is not the same as family violence, and exaggeration can damage credibility on other issues.
• Not exploring FDR accommodations first — assuming FDR is impossible without considering shuttle mediation, separate waiting rooms, or telephone/video FDR. The court may question why accommodated FDR was not attempted for less severe safety concerns.
• Failing to mention the exemption in court documents — obtaining a certificate but not clearly addressing the exemption and its basis in your initiating application and supporting affidavit. Clearly state in your application that an exemption applies under Section 60I(9), attach the certificate, and explain the basis in your affidavit.

Key legal references

Common questions