Using family dispute resolution

Using family dispute resolution

Family dispute resolution is a process in which an independent family dispute resolution practitioner helps people affected, or likely to be affected, by separation or divorce to resolve some or all of their disputes with each other.

It helps couples who have separated sort out their disputes about:

Grandparents, aunts, uncles and other important adults in the lives of children can also use family dispute resolution to come to an agreement about these sort of disputes.

Why use family dispute resolution

Some advantages of family dispute resolution are:

  • it is usually quicker, less expensive and less stressful than going to court
  • you make your own decisions, rather than having a judge decide
  • it may help your communication with your former partner and others involved.

When to go to family dispute resolution

You can try family dispute resolution at any stage of your separation, even if you have started court proceedings. The court can also order parties to participate in family dispute resolution at any time throughout the court process.

If you want court orders about children (parenting orders), you usually have to try family dispute resolution first.

If you want court orders about property, the court may get you to try family dispute resolution too.

You can sometimes go directly to court without a certificate stating that you have attempted family dispute resolution if there has been family violence, child abuse or in urgent situations. Get legal advice.

You are not required to go to family dispute resolution if your application is only for divorce or annulment of your marriage.

How family dispute resolution works

Before family dispute resolution takes place, you will be assessed to see if the service is right for your case. Usually each party will be interviewed separately for the assessment.

The process is conducted by an independent family dispute resolution practitioner. They must be accredited and registered on the Attorney General’s Family dispute resolution register. They can:

  • help you to discuss the issues and look at your options
  • help work out how to reach agreement
  • give you a certificate at the end of the process.

Getting a certificate

If you can’t resolve your dispute you may need a certificate to prove to the court that you have tried family dispute resolution or it is not suitable in your situation.

Only family dispute resolution practitioners on the Family dispute resolution register can issue these certificates. They are called section 60I certificates.

The certificate may say you have:

  • been to family dispute resolution with your ex-partner (or other involved person) and you both genuinely tried to sort out an agreement
  • been to family dispute resolution with your ex-partner (or other involved person) and one or both of you did not genuinely try to come to an agreement
  • tried to go to family dispute resolution, but the other person did not turn up or did not want to participate.

The certificate may also say you are not required to go to family dispute resolution because it was assessed as not appropriate.

When family dispute resolution is not appropriate

Family dispute resolution is not right for every situation, particularly if:

  • one person does not agree to attend
  • your safety or the children’s safety is assessed to be at risk
  • a person’s capacity to participate is affected by, for example, a mental illness or a substance abuse problem
  • allegations of child abuse are being investigated
  • there is an intervention order which prevents you from having any contact with the other person and does not have an exception clause allowing for mediation
  • the case is urgent, for example, location (finding) and recovery (returning) of children orders, or where assets may be sold, lost or destroyed.

Family violence

Sometimes it is not appropriate to go ahead with family dispute resolution where there has been family violence. However, often special arrangements can be made to make sure the process can proceed in a safe way. For example, you and the other party can be in separate rooms or participate over the telephone. You might also be able to have a lawyer or support person with you.

You should let your family dispute resolution service know if you are worried about your emotional or physical safety. They will want to make sure you feel safe throughout the process and can negotiate freely.

Confidentiality

Discussions during family dispute resolution generally cannot be used anywhere else unless:

  • you give permission
  • the practitioner believes that this is necessary to follow the rules of any law.

If you are under 18 both parents also need to agree to the information being given out. If they can't agree, the court may make a decision.

It is a serious offence to disclose confidential information and penalties apply.

Family dispute resolution discussions may not be confidential if:

  • the family dispute resolution practitioner reasonably believes that a child or children have been or are at risk of abuse (physical or sexual assault, serious psychological harm or neglect.)
  • there is a risk of harm to any person involved or to their property
  • a crime involving violence or threats of violence may be prevented.

For example, if the information suggests that a child has been abused or is at risk of abuse, the law says that a family dispute resolution practitioner must give that information to a child protection agency. In Victoria that agency is the Department of Human Services.

However, it does not necessarily mean that the information will be ‘admissible’ (allowed to be used) in court. It can only be used in court if:

  • an adult admits that a child has been abused or is at risk of abuse
  • a child says something that shows they have been abused or are at risk of being abused.

Before this information can be used, the court must also make sure they cannot get the same information elsewhere.

Parenting plans

If you reach an agreement on arrangements for your child during family dispute resolution, this can be set out in a parenting plan. A parenting plan must be in writing, dated and signed by both parents. A parenting plan may deal with any of the following:

  • who has parental responsibility for the child
  • who the child will live with
  • when the child will spend time with another person, including their other parent, grandparents and family members
  • communication between the people involved, including the parents, the child and other family members
  • financial support of the child
  • long-term decisions, such as the child's education, medical treatment or religion.

See also If you agree on parenting arrangements.

If family dispute resolution does not work

If family dispute resolution is not successful you can go to court. If you are applying for a parenting order, you must get a certificate from the registered family dispute resolution practitioner and file this with your application as evidence of your attempt at family dispute resolution.

Get help

Find out how you can get help with separation, divorce and marriage annulment.