Using family dispute resolution

Note that the law is changing on 6 May 2024. We will update this content closer to 6 May 2024.

If you are concerned about your own situation and whether these changes might affect you, please contact us.

Why use family dispute resolution

It can be good to use family dispute resolution because:

• it is usually quicker, less expensive and less stressful than going to court
• you can make your own decisions, rather than having a judge decide
• it may help your communication with your former partner and anyone else involved
• you can also return to family dispute resolution if agreements break down at different stages, and as situations change.

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 people to go to family dispute resolution at any time throughout the court process.

If you want court orders about children (parenting orders), you must try family dispute resolution first, except in some situations. For example, where there is family violence or child abuse, or it is urgent. Get legal advice.

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

You don't need to go to family dispute resolution if your application is for divorce or annulment of your marriage only.

How family dispute resolution works

At the start, you will be assessed to see if family dispute resolution is right for your case. Each party will be interviewed separately. If it is appropriate, a mediation session will be booked in.

Family dispute resolution 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 need to go to court, you may need a certificate to prove 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 give you these certificates. They are called section 60I certificates.

The certificate may say that:

• family dispute resolution is not suitable for your case
• you and the other person attended family dispute resolution and made a genuine effort to sort things out
• you and the other person attended family dispute resolution but someone made no genuine effort
• you tried family dispute resolution, but the other person did not turn up or did not want to participate.

The court may look at the type of a certificate you get to better understand your circumstances, and consider this in deciding whether you or the other person should pay any of the costs of going to court. If you are already in court and have been referred to family dispute resolution, the court will also ask you to obtain a separate Certificate of Dispute Resolution from the service you attend.

When family dispute resolution is not appropriate

Family dispute resolution may not be appropriate where:

• your safety or the children’s safety is at risk
• your ability or the other person’s ability to make decisions is affected by something, like 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 (things you own) may be sold, lost or destroyed.

Family violence

Sometimes it is not appropriate to do family dispute resolution if there has been family violence. However, often things can be done to make sure it can proceed in a safe way. For example, you and the other person can be in separate rooms or participate over the phone or by video conference. You can have a support person with you, and in some services, you can also have a lawyer to do legally assisted family dispute resolution. Read more information about our legally assisted Family Dispute Resolution Service.

Let your family dispute resolution service know if you are worried about your emotional or physical safety. They must make sure you are safe, and that you are feeling confident enough to negotiate.

Confidentiality

The information shared during family dispute resolution is confidential, with some exceptions. It also cannot be used in court. The family dispute resolution practitioner may be required to share information by law. This includes where there is a risk of harm to someone (including a child). If a child is at risk, the practitioner must tell the relevant child welfare agency. In Victoria, this is the Department of Family, Fairness and Housing.

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:

• 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.

If you and the other person file the parenting plan with the court, it can be made into consent orders.

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.

Other support

Find out how you can get other support for separation, divorce and marriage annulment.