Three unanswered messages. A formal letter ignored. A phone call that went straight to voicemail. If that’s where you are, you’re not in limbo. You’re at a fork in the road, and the path forward exists whether your ex cooperates or not.
Here’s the thing most people don’t realise: mediation in family law is voluntary. Your ex cannot be legally compelled to sit across the table from you and negotiate. But their refusal doesn’t leave you without options, and in some cases it doesn’t even slow you down much.
What people assume is that a stonewalling ex means the whole process grinds to a halt. What actually happens depends on whether your dispute is about your children, your property, or both, and whether there are circumstances that change the rules entirely.
So ask yourself: do you know which of those categories your situation falls into? Because the answer determines almost everything about what you do next.
This article walks you through the real pathway. By the end, you’ll understand how the system handles a refusal, what a section 60I certificate actually does, and what you can do right now while your ex stays silent.
Key Takeaways
- Your ex cannot be forced to mediate, but their refusal does not stop your matter from progressing, particularly in parenting disputes.
- A section 60I certificate can be issued even when the other party refuses to attend or participate, and it can allow you to file a parenting application with the Federal Circuit and Family Court of Australia.
- Parenting and property disputes follow different rules. The section 60I certificate applies to parenting matters. Property settlement has separate pre-action requirements.
- Mediation is not always required. If there is family violence, a risk to a child, or urgency, you may be exempt from attempting family dispute resolution altogether.
- A refusal to mediate may be noted by a court and can be relevant to how costs are considered, though outcomes are always discretionary.
- You can act tonight. Contacting an accredited family dispute resolution practitioner, keeping records, and getting legal advice are all steps you can take before your ex agrees to anything.
What happens if my ex refuses to go to mediation?
Your ex is allowed to say no. Family dispute resolution, which is the formal name for the mediation process used in family law, is voluntary. There is no mechanism that physically drags a reluctant person to the table.
But “allowed to say no” and “free to say no without consequence” are different things.
When you contact an accredited family dispute resolution (FDR) practitioner, they assess whether mediation is suitable and invite the other party. If your ex refuses that invitation, doesn’t respond, or attends but fails to make a genuine effort, the practitioner can issue a section 60I certificate recording what happened. That certificate is what matters next.
Don’t confuse silence with a dead end. The silence itself becomes part of the record.
Key Point: A refusal to engage with the FDR process is not a neutral act. It is documented, and a court can take it into account when making decisions about costs and case management.
Can I still go to court if my ex will not attend mediation?
Yes, in most parenting matters you can. The section 60I certificate is the mechanism that allows you to file an application for parenting orders with the Federal Circuit and Family Court of Australia without having resolved the dispute through mediation.
You don’t need your ex’s agreement to file. You need the certificate.
There are also circumstances where you don’t need a certificate at all. If your situation involves family violence, a risk to the child’s safety, urgency, or a party who is unable to participate due to incapacity, you may be exempt from attempting FDR before going to court. These exemptions are real and they apply regularly to clients we see on the Gold Coast.
If your dispute is about property settlement rather than parenting, the section 60I certificate is generally not the relevant gateway. Property matters have their own pre-action procedure requirements, and you should get specific advice about those.
Expert Tip: If you’re unsure whether you qualify for an exemption, get advice before you wait. Waiting months to satisfy a procedural step that didn’t actually apply to your situation is one of the most avoidable delays in family law.
How does a section 60I certificate issue when the other parent refuses?
You don’t need your ex in the room for a certificate to be issued. Here’s how the process works in practice.
You contact an accredited FDR practitioner, either through a government-funded service or a private provider. They conduct an intake and suitability assessment, which considers whether mediation is appropriate given the nature of the dispute, any safety concerns, and the circumstances of both parties.
The practitioner then contacts your ex and invites them to participate. If your ex:
- fails to respond to the invitation
- attends the intake but refuses to proceed
- attends a session but does not make a genuine effort to resolve the dispute
- withdraws from the process once it has begun. . . the practitioner can issue a section 60I certificate on any of those bases.
The certificate does not say you “won. ” It records what happened. But it’s the document you need to proceed.
Key Point: The certificate comes from the practitioner, not the court. You don’t apply for it through a registry. You earn it by genuinely attempting the process, even if the process goes nowhere.
What does a section 60I certificate say?
The certificate records one of several things, depending on what occurred. It may state that the other party refused to attend, that they attended but did not make a genuine effort, or that the practitioner determined mediation was not appropriate and declined to proceed.
It also records that you attended and, where applicable, that you made a genuine effort.
What it does not say is who is right, what the arrangements should be, or what a court should decide. It is a procedural document, not a judgment.
Expert Tip: Keep a copy of your certificate in a safe place. Courts file these with parenting applications. If the certificate contains an error, contact the practitioner promptly to have it corrected before you file.
What can a section 60I certificate be used for?
Its primary use is to satisfy the requirement under the Family Law Act 1975 that parties attempt family dispute resolution before filing certain parenting applications.
Without a certificate (or an applicable exemption), the Federal Circuit and Family Court of Australia will generally not accept an application for parenting orders.
The certificate is not a guarantee of a particular outcome. It does not mean the court will automatically make the orders you’re seeking. It is the key that opens the door to the court process, and what happens inside that process depends on the merits of the matter and, most importantly, what is in the best interests of the children.
Key Point: Think of the section 60I certificate as a starting point, not a result. It gives you access to the court. It does not give you the orders.
Does my ex have to agree to mediation for mediation to proceed?
No. And this is an important distinction.
Your ex has to be willing to participate for a mediation session to actually take place. But the process of attempting mediation, which is what generates the certificate, can proceed with or without them.
You make the contact. You attend the intake. The practitioner invites your ex. If your ex doesn’t show, that is recorded. The process has been attempted. The certificate can follow.
There’s also a middle ground worth understanding. Your ex might say they’ll only mediate with a different provider, or by video, or in separate rooms. That’s not automatically a refusal. If those requests are reasonable, accommodating them may actually get the matter resolved. More on that below.
Expert Tip: Don’t treat every condition your ex names as a stalling tactic. Some conditions are worth accommodating if they get you to the table. Ask your practitioner whether the requested format is workable before deciding it’s a dead end.
Can the court penalise my ex for refusing mediation?
The short answer is: possibly, but don’t build your strategy around it.
A court has discretion to make costs orders, and a party’s unreasonable refusal to attempt family dispute resolution can be a factor in that assessment. If your ex refused to engage with no good reason, and you incurred legal costs you wouldn’t otherwise have faced, that conduct may be relevant to what the court does about costs at the end of the matter.
But a costs order is not automatic, and family courts do not hand them out routinely. The court’s primary focus in parenting matters is the best interests of the child, not punishing a parent’s procedural behaviour.
Raising a refusal to mediate as a reason the other party should be punished is unlikely to land well. Courts see it for what it often is: frustration dressed up as a legal argument.
Key Point: A refusal to mediate can matter to a court, but it won’t decide who gets what or what the parenting arrangements look like. Keep your focus on the substance of your case.
What if mediation is unsafe because of family violence or coercive control?
If there has been family violence, threats, coercive control, or a serious power imbalance, mediation may not be appropriate at all. The law recognises this.
You do not have to attempt family dispute resolution, and you do not need a section 60I certificate, if:
- there has been family violence or a risk of family violence
- the matter is urgent
- there is abuse or a risk of abuse of a child involved in the dispute
- a party is unable to participate effectively due to incapacity or other circumstances
These are genuine exceptions and they apply in practice, not just in textbooks.
If you are experiencing coercive control or fear for your or your children’s safety, please tell your lawyer before any mediation is arranged. A well-intentioned invitation to mediate can place a victim in a position of vulnerability if the circumstances haven’t been carefully assessed first.
Shuttle mediation and video formats can sometimes make participation safer, but they are not the right answer in every situation. That decision should be made with proper advice, not assumed.
If you are in immediate danger, contact emergency services on 000. For support, the national domestic violence line, 1800RESPECT (1800 737 732), operates 24 hours a day.
Key Point: The law does not require you to sit in a room with someone who has hurt you in order to tick a procedural box. The exemptions exist precisely for your situation.
What happens to the children while my ex refuses mediation?
This is one of the most urgent practical questions, and it’s one that gets lost in the procedural discussion.
While your matter is unresolved, arrangements for the children continue informally. If there are no current court orders, neither parent has a legally enforceable right to override the other on most day-to-day decisions. That can be uncomfortable, but it is the reality.
What you can do in the meantime:
- Keep a written record of what arrangements are actually happening, including pickup times, school communications, and significant decisions.
- Communicate with your ex in writing where possible, so there is a record.
- Continue making decisions that support the children’s routine, schooling, and medical care.
- Get legal advice if your ex is preventing you from seeing the children or is making decisions you believe are harmful.
If the situation becomes urgent, interim parenting orders can be sought through the Federal Circuit and Family Court of Australia without waiting for a full hearing. Courts can act quickly when children’s safety or wellbeing is genuinely at risk.
Expert Tip: Don’t allow the stalemate to drift. Parenting patterns that become entrenched during the separation period can be harder to change later. If the current arrangements aren’t working, document it and take advice sooner rather than later.
What if we disagree about the children but the dispute is urgent?
If there is an immediate risk to your children, you can apply to the court for urgent interim orders without going through the FDR process first. You do not need a section 60I certificate in urgent circumstances.
Courts have the capacity to list urgent matters quickly, and they take seriously concerns about a child’s safety, welfare, or a risk of relocation without consent.
Be measured about what “urgent” means in a legal context. A disagreement about a school holiday schedule is not usually urgent. A situation where a child is at risk of harm, or where a parent is threatening to leave the country with the children, almost certainly is.
If you are unsure whether your situation qualifies as urgent, get legal advice today.
Key Point: Urgency is a genuine legal category, not a description of how anxious you feel. If there is a real risk, don’t wait for the mediation process to run its course.
What if my dispute is about property rather than property settlement?
The section 60I certificate and the FDR process for parenting matters do not automatically apply to property settlement disputes.
Property settlement has its own pre-action procedure under the rules of the Federal Circuit and Family Court of Australia. Before filing, parties are generally required to make a genuine attempt to resolve the dispute, exchange relevant financial disclosure, and comply with pre-action procedures. A failure to follow those steps can affect the court’s approach to costs.
But the section 60I certificate is not the mechanism for this. If your ex is refusing to engage on property matters, the relevant steps include:
- instructing a solicitor to make a formal approach to your ex or their solicitor
- exchanging financial disclosure of assets, liabilities, income and superannuation
- participating in lawyer-assisted negotiation or mediation with financial disclosure on the table
- in appropriate cases, considering arbitration as an alternative to court
There is also a time limit that matters here. In most cases, parties have 12 months from the date of a divorce order, or two years from the end of a de facto relationship, to commence property settlement proceedings. Don’t let a stalling tactic push you past a limitation period.
Expert Tip: If your ex is refusing to engage on property and the clock is running, protect your position. Limitation periods in property settlement are real and largely unforgiving.
How can I encourage my ex to participate in mediation?
Some refusals aren’t really refusals. They’re fear, inertia, or a response to feeling attacked. That doesn’t make the delay acceptable, but it does mean the approach matters.
A few things that sometimes work:
Keep the invitation focused on the children and the practicalities, not on your ex’s behaviour. “I think it would help both of us and the kids if we could try to sort this out without going to court” lands better than “you need to respond to me or I’ll have no choice. “
Acknowledge that mediation is a conversation, not a decision. Your ex has nothing to sign until they’re ready to sign it.
Mention the cost. Court is expensive for both parties. A mediator’s fee, shared between two people, is a fraction of what contested litigation costs.
Offer a format that suits your ex. If they’re uncomfortable about seeing you face to face, shuttle mediation or video conferencing may remove that barrier.
Let a practitioner make the invitation on your behalf. A formal contact from a professional often lands differently than a message from an ex-partner.
What doesn’t work: repeated messages, implied threats, raising it in front of the children, or using the children to deliver the message.
Expert Tip: The goal of an invitation to mediation is to get the other person to the table, not to make a point. The more neutral and practical your message, the better the chance it works.
What should I include in an invitation to mediation?
Keep it short and factual. Here’s a template:
“I’d like to try to resolve the current arrangements for [the children / our finances] through mediation, rather than going to court. I’ve spoken to a family dispute resolution practitioner who can facilitate a session. The process is confidential and neither of us is committed to any outcome until we both agree in writing. Would you be willing to participate? I’m happy to discuss the timing and format. “
That message does not accuse, threaten, or argue. It describes the process and asks a question. Keep a copy of it.
Key Point: Invitations sent by text or email create a record. If your ex later claims they were never invited to mediate, you’ll have something to show the court or the practitioner.
Can mediation happen by video, telephone or in separate rooms?
Yes. Family dispute resolution is not limited to a face-to-face meeting in the same room.
Shuttle mediation allows both parties to attend the same session, at the same location or remotely, without ever being in the same room. The practitioner moves between the two parties, carrying proposals and responses.
Video mediation has become widely available and is accessible to people on the Gold Coast who may not want to travel or who find face-to-face contact difficult or unsafe.
These formats do not change the legal status of the process or the certificate. They are practical accommodations that can make participation possible for people who might otherwise refuse.
If your ex says they won’t sit in a room with you, that is not necessarily the end of mediation. Offer an alternative.
Expert Tip: Shuttle mediation is often underused. If a traditional joint session isn’t possible, ask the practitioner whether a shuttle format is suitable before accepting that mediation can’t proceed.
How long does it take to get a section 60I certificate?
Assuming your ex refuses from the outset, the timeframe is usually short. Once you contact an FDR practitioner and complete your intake, the practitioner typically attempts to contact the other party and allows a reasonable time for a response, often two to four weeks, before issuing a certificate recording the refusal.
If your ex attends but fails to engage genuinely, the certificate can be issued after that session.
If mediation proceeds and you reach agreement, no certificate is usually required, because the matter has resolved.
In practice, from first contact with a practitioner to certificate, an uncontested refusal can be documented within three to six weeks. Private providers can often move faster than government-funded services, which may have longer wait times.
Key Point: The FDR process itself is not usually the slowest part. Court proceedings, once you have your certificate, can take considerably longer depending on the nature of your dispute and the court’s list.
How much does mediation cost if my ex does not attend?
If your ex doesn’t attend, you may incur costs only for your own intake assessment and the practitioner’s time in attempting to contact the other party.
Private FDR practitioners charge varying rates. The cost of a single session or assessment, where the other party fails to engage, is generally lower than the cost of a full mediation session. For specific figures, speak with the practitioner when you make initial contact. [INSERT confirmed cost range from the firm or a recommended provider.]
Legal Aid and Relationships Australia offer government-funded FDR services to eligible parties, which can reduce or eliminate cost. Eligibility depends on income and circumstances.
What is certain is this: the cost of a failed or refused mediation is a fraction of the cost of contested court proceedings.
Expert Tip: Ask the FDR practitioner upfront what you will be charged if the other party does not attend. That figure is usually much lower than people expect, and it’s money well spent to obtain the certificate.
What evidence should I keep when my ex refuses mediation?
Document everything. This is not about building a case against your ex. It’s about having an accurate record if it’s ever needed.
Keep copies of:
- every invitation you sent to your ex, whether by text, email, or letter
- any response you received, including silence (date your messages)
- your intake and assessment with the FDR practitioner
- the section 60I certificate when it is issued
- any parenting arrangements that are currently in place, written up in your own records
- any concerning incidents involving the children, with dates and details
- communications from your ex about the dispute, the children, or property matters
Keep these records somewhere safe and separate from your phone, given phones can be lost, damaged or accessed by the other party.
Key Point: A written record doesn’t have to be formal to be useful. A note made the same day as an incident, saved somewhere secure, can carry real weight if matters proceed to court.
What are my options after the certificate is issued?
Receiving the certificate opens the door to several pathways, and you don’t have to walk straight into a courtroom.
Your options include:
- continuing to attempt direct negotiation, with legal support
- engaging in lawyer-assisted mediation or round-table negotiation with both solicitors present
- filing an application for parenting orders with the Federal Circuit and Family Court of Australia
- in property matters, proceeding with formal disclosure and negotiation before deciding whether to file
- in suitable cases, considering arbitration as an alternative to court for financial disputes
The certificate does not expire after a fixed period, but circumstances change, and a certificate that was issued when your children were young may not reflect where the dispute stands a year later.
Getting legal advice about which pathway suits your situation before you file is the most important step. Filing a court application is not always the fastest or cheapest route to a resolution.
Expert Tip: Some matters that seem headed for court settle quickly once both parties have solicitors and the process becomes real. Receiving a certificate and instructing a lawyer to write to your ex’s solicitor sometimes achieves more than filing ever would have.
Will going to court make the dispute take longer and cost more?
Almost certainly longer. Possibly significantly more expensive, depending on whether the matter is resolved early or proceeds to a final hearing.
The Federal Circuit and Family Court of Australia is a busy jurisdiction. Interim hearings, procedural steps, disclosure requirements, and the time to a final hearing can stretch across many months, sometimes longer. That is not a reason to avoid court when court is needed. It is a reason not to use it when it isn’t.
The parties’ legal costs in contested proceedings can grow quickly. That money comes from the same pool of assets you’re trying to divide, or from income that could be supporting your children. It’s worth being clear-eyed about that before filing.
None of this means you should accept an unfair arrangement to avoid court. It means the decision to file should be an informed one, not a reflexive response to frustration.
Key Point: Court is a tool, not a punishment. Use it when you need it. But go in knowing what it costs in time, money and emotional energy, so you are making a real choice.
What should I do tonight if my ex has stopped responding?
A few practical steps you can take right now, without needing your ex’s cooperation.
First, write down everything you know about the current situation: the children’s current living arrangements, any agreements you’ve had in the past, any incidents that concern you, and the dates of any invitations to mediate you’ve already sent. Save that document somewhere secure.
Second, if there is any safety concern, contact 1800RESPECT on 1800 737 732 or your local police.
Third, if the situation is urgent because of the children’s safety or a significant financial risk, contact a family lawyer as soon as possible. Don’t wait for business hours if the situation is genuinely urgent.
Fourth, if the situation is serious but not immediately urgent, book a consultation with a family lawyer for tomorrow morning. One conversation with an experienced practitioner can clarify your options, your timeframes, and what you should do next.
You don’t have to resolve this tonight. But you can take a step tonight that makes tomorrow clearer.
If you’re on the Gold Coast and want a confidential, no-obligation conversation about your situation, the team at C + K Family Lawyers is here to help. You can reach us through our website to book a time.
Expert Tip: The most common thing we hear from clients is “I wish I’d called sooner. ” Uncertainty is not the same as having no options. Getting advice early usually makes the process shorter and cheaper, not longer and more expensive.
How C + K Family Lawyers can help when mediation is refused
When your ex goes silent or refuses to engage, it can feel like everything depends on their cooperation. It doesn’t.
At C + K Family Lawyers, we work with clients on the Gold Coast who are at exactly this point: the other side isn’t playing ball, and they need to know what to do next. We can help you:
- understand whether you need a section 60I certificate or whether an exemption applies to your situation
- contact an accredited FDR practitioner and prepare for the process
- draft a neutral, legally sound invitation to mediation
- document what has happened so far in a way that is useful if the matter proceeds
- assess whether your situation is urgent and, if so, advise on interim orders
- advise on property settlement steps if the dispute is financial as well as parenting-related
- represent you in negotiations, mediation or court proceedings if that’s where things go
We’re a specialist family law firm. This is all we do. And our focus is on giving you a clear picture of where you stand and what happens next.
Book a confidential, no-obligation chat with our team to talk through your circumstances.
Frequently asked questions
My ex says they’ll mediate but only if I agree to their terms first. Is that a real refusal?
Yes, it is. Genuine mediation is a negotiation, not a pre-agreed outcome. A condition that you accept terms before the process begins is not an invitation to mediate. It is a refusal dressed differently. A practitioner assessing the process would likely record it as a failure to participate in good faith.
What if my ex agrees to mediate and then simply doesn’t show up on the day?
The practitioner records the non-attendance. Depending on the circumstances, this can be the basis for a certificate noting that the other party failed to attend. You should still complete your intake and attend any session that is scheduled, so the record reflects your genuine effort.
Can my ex claim they were never told about mediation?
That’s why keeping records of your invitation matters. An email, a text, or a letter from the FDR practitioner creates a record of contact. If your ex later claims they had no notice, the practitioner’s records and your own can address that.
If mediation fails or my ex refuses, does that mean we’ll definitely end up in court?
No. Receiving a section 60I certificate gives you the option to file. Many matters settle through lawyer-to-lawyer negotiation, round-table discussions, or further attempts at mediation after some time has passed. Court is one option, not the only one.
My ex says mediation is a waste of time because a judge will give them what they want anyway. What do I do with that?
You can’t control what your ex believes. What you can control is following the correct process. If they refuse, you obtain your certificate and take the next step. If their prediction about court is wrong, that becomes clear over time. Courts are not predictable, and no party should assume they know the outcome in advance.
This article is general information only and is not legal advice. Family law outcomes depend on your individual circumstances. For advice about your situation, speak with a qualified family lawyer.
About the Author
Christopher (Chris) Jones is the Principal Lawyer and co-founder of CK Family Lawyers, a Queensland family law firm. Chris advises on divorce, property settlement, parenting arrangements, binding financial agreements, mediation and domestic violence matters. After working in legal environments where clients felt depersonalised and lost in jargon, he co-founded the firm with Krystina Jones on the belief that people deserve family lawyers who genuinely care, and he works directly with his clients throughout their matters.
