Family Dispute Resolution

21.9 This chapter considers the role of FDR in resolving family law disputes—in particular parenting disputes—and the interaction between FDR processes under the Family Law Act 1975 (Cth) and family violence.

21.10 The use of FDR in the context of family violence presents complex challenges. In addition to significant concern about the safety of participants engaging in FDR where family violence is present, there is concern that imbalances in power relationships between the parties may compromise the fairness of the negotiating process and result in unfair and unsafe agreements.

21.11 However, the capacity of FDR to provide flexible and accessible resolution processes to accommodate the particular needs, interests and concerns of diverse parties—especially where parties are victims or are at risk of family violence—contributes significantly to the possibility of achieving sustainable and effective outcomes.

21.12 As the Australian Institute of Family Studies (AIFS) found in its Evaluation of the 2006 Family Law Reforms, there is evidence that some families with family violence issues are ‘on the roundabout’ between services which provide ADR in the family law system, lawyers, courts and state-based child protection and family violence systems.[6] AIFS has also noted in relation to parenting arrangements, that the

evidence of poorer well-being for children whose mothers have safety concerns ... highlights the importance of identifying families where safety concerns are pertinent and assisting them to make arrangements that promote the well-being of their children’.[7]

21.13 The Commissions consider that the potential for FDR to expeditiously and effectively resolve parenting disputes in cases involving family violence—through practical and sustainable agreements, and with appropriate screening, risk assessment and risk management—may help to circumvent the development or escalation of related child protection and family violence concerns.

21.14 In this chapter, the Commissions examine the way in which the legislative, policy and operational framework for FDR addresses family violence concerns. In particular, the Commissions consider screening and risk assessment practices, referral practices, cooperation and collaboration between FDR practitioners and lawyers, and the development of culturally responsive FDR, and make recommendations to improve FDR processes, standards and practice. Such improvements in processes, standards and practice will enhance FDR’s capacity to deliver sustainable and effective outcomes—and, in so doing, may assist in circumventing repeated engagement by family violence victims and those at risk with the legal system.

Development of family dispute resolution

21.15 FDR is defined broadly in the Family Law Act as any non-judicial process where an independent FDR practitioner helps people affected, or likely to be affected, by separation or divorce, to resolve some or all of their disputes with each other.[8] Dispute resolution processes include mediation, conciliation and arbitration. In mediation, an impartial third party assists parties to negotiate an agreement. Conciliation is similar to mediation, except the conciliator may provide expert advice on possible legal outcomes and have an advisory role. In arbitration, an independent third party assesses the facts and determines the dispute according to law.[9] In practice, mediation is the key process used for Australian family disputes.[10] However, FDR services and agencies vary in their approaches and underlying philosophies.[11] In addition to family dispute resolution, many agencies also provide counselling, parenting support and other services.

21.16 When the Family Court of Australia was established in 1976, it used counselling and conciliation. Since that time, FDR has expanded and developed extensively. FDR services are now provided by courts, legal aid commissions,[12] community agencies and private providers. Most recently, the federal government has established a network of Family Relationships Centres (FRCs) throughout Australia that provide referral and FDR services.[13] Practitioners have developed increasingly sophisticated approaches and strategies for assessing the appropriateness of FDR in differing situations, addressing power imbalances, and including children in their practices.[14]

21.17 FDR is presently governed by a detailed legislative framework under the Family Law Act and associated regulations, discussed in more detail below. Broadly speaking, the current legislative framework encourages or requires the use of FDR before court action and supports referral to FDR after an application to the court has been made. Exceptions are provided in cases of family violence and child abuse, reflecting concerns, discussed below, about the use of FDR in such contexts. Communications during the FDR process are, in general, confidential and inadmissible in subsequent court proceedings, although there are exceptions relevant to child abuse and family violence.[15]

[6] Australian Institute of Family Studies, Evaluation of the 2006 Family Law Reforms (2009), E2.

[7] Ibid, E4–E5.

[8]Family Law Act 1975 (Cth) s 10F.

[9] Family Law Council and Law Council of Australia—Family Law Section, Best Practice Guidelines for Lawyers Doing Family Law Work (2004).

[10] D Cooper and R Field, ‘Family Dispute Resolution of Parenting Matters in Australia: An Analysis of the Notion of an Independent Practitioner’ (2008) 8 Queensland University of Technology Law and Justice Journal 158, 159.

[11] Ibid, 164–165, discusses different models of mediation.

[12] Legal Aid Commissions are required to consider whether a matter can be dealt with by dispute resolution before a grant of legal aid for family law matters can be made. If a matter is considered appropriate for dispute resolution, a grant of assistance will be made for a conference where the lawyer will represent the assisted party. The conferences are chaired by trained and qualified FDR practitioners. See KPMG, Family Dispute Resolution Services in Legal Aid Commissions: Evaluation Report (2008), prepared for the Australian Government Attorney-General’s Department, 11–12.

[13] P Parkinson, ‘Keeping Contact: The Role of Family Relationship Centres in Australia’ (2006) 18 Child and Family Law Quarterly 157.

[14] Australian Institute of Family Studies, Evaluation of the 2006 Family Law Reforms: Summary Report (2009), 94–95.

[15] See further below. The confidentiality and inadmissibility of FDR communications are discussed in Ch 22.