Words in bold are explained in ‘What do these words mean?’ at the front of this booklet.
Family dispute resolution
In most cases where your dispute is about your children, you will need to do family dispute resolution before going to court. You can also do this anytime after you have started your court case.
Family dispute resolution includes counselling, mediation, arbitration and other types of conciliation.
In family dispute resolution, an independent, trained dispute resolution practitioner can help you sort out your dispute in a safe environment. Family dispute resolution is more likely to lead to an outcome that suits you both and it is cheaper than going to court.
Anything said to a family dispute resolution practitioner during a session is confidential and cannot be used in court. There are some exceptions to this. Ask the family dispute resolution practitioner to explain confidentiality to you.
Victoria Legal Aid has a family dispute resolution service called Roundtable Dispute Management (RDM). If you are eligible for a grant of legal assistance from us, you can have a lawyer represent you throughout the process. You do not have to be in the same room as the other party during the session (called a ‘conference’). If you are not eligible, you can still use the RDM service without a lawyer, or you can pay for a private lawyer. If the other party starts the process, you may be invited to be in a conference at the RDM service. When this happens, you will both have a conference manager to help prepare and support you. If you choose not to have a lawyer, you can arrange to have a support person there, for example a friend or grandparent.
All agreements made through the Roundtable Dispute Management service are written down, usually as consent orders or parenting plans.
See ‘Consent orders’ and ‘Parenting plans’ on page 7.
You can call 9269 0120 or 1800 677 402 for more information about the Roundtable Dispute Management service and your eligibility. You can also call the Family Relationships Advice line on 1800 050 321 or visit www.familyrelationships.gov.au for information on family dispute resolution practitioners in your area. They can also give you details of other services that can help your relationship with your ex-partner. A fee may be charged.
See ‘Where to get help’ on page 59.
Family dispute resolution may not be right for every situation, for example, in some situations where there is family violence or child abuse or a risk these will happen. Family dispute resolution may not happen if you cannot make decisions equally because you feel scared or unsafe.
If you have experienced family violence or are worried about your safety, tell the family dispute resolution service immediately.
See ‘Where there is family violence or child abuse’ for more information.
See ‘Where to get help’ for a list of services.
Other situations where family dispute resolution may not be right include:
where your children have not been returned from visiting your ex-partner
if property may be sold, lost or disposed by your ex-partner.
These situations need urgent legal assistance.
Family dispute resolution may also not be right if:
one person refuses to do it, or
a person has trouble doing it because of a mental illness or a drug or alcohol abuse problem.
If you are applying for a parenting order, you will need to attach a certificate from a family resolution dispute practitioner to your application. Section 60I of the Act sets out the rules for this. You also need to do this if you are applying to change an existing order.
The certificate will say that:
you have done family dispute resolution and you both made a genuine attempt to sort out an agreement
you have done family dispute resolution and one or both of you did not make a genuine attempt to come to an agreement
you tried to do it (and the other person did not turn up or refused to go), or
in the opinion of the family dispute resolution practitioner, you do not need to do it.
You do not have to do family dispute resolution if:
you are applying for interim (short term) orders or consent orders (where you both agree)
the matter is urgent
you or the other person cannot do it because of where you live or if you are physically or mentally unable (for example, because of a disability)
there is family violence or child abuse or there is the risk of these happening
you or the other person have contravened (broken the rules) and seriously disregarded a parenting order made during the last 12 months.
See Sections 60I(5) and (9)(a) to (f) and 60J of the Act.
If you do not wish to do family dispute resolution because of these reasons, you need to ask for this in your application for a parenting order. You need to attach an affidavit saying which subsection your reason is under and why you cannot do it. Check with the court about the affidavit form you need to use for this kind of application. Include any evidence you have. If necessary, use attachments.
See ‘Structure of an affidavit’ in ‘Chapter seven – Affidavits’.
If you do not wish to do family dispute resolution because of child abuse, family violence or the risk of these, you also need to include other information in your affidavit. You need to state that you have gotten information from a family counsellor or family dispute resolution practitioner about services and options available to you.
The court will look at your reasons and the evidence and decide if you do not need to go to family dispute resolution. Get legal advice.