FDR in family law legislation

21.18 This section sets out the legislative provisions regulating the use of FDR in the Family Law Act. Different regimes apply to FDR in relation to parenting orders and financial disputes. There are also some general provisions in the Family Law Act that govern FDR.

FDR and parenting orders

21.19 The 2006 reforms to the Family Law Act extended the use of FDR. With some exceptions, parties with a dispute about children must go to FDR before they can go to court,[16] and must make a genuine effort to resolve their dispute through FDR.[17] The exceptions to this requirement include where the parties agree and are applying to court only for a consent order.[18] Importantly, they also include cases where violence is an issue, such as where the court is satisfied that there has been, or there is a risk of, child abuse or family violence,[19] or where there are circumstances of urgency.[20]

21.20 If the parties do not reach agreement through FDR and do not satisfy one of the exceptions, the federal family courts can only hear parenting cases if the FDR practitioner provides a certificate relating to the parties’ attendance and effort in the FDR process.[21] FDR practitioners may give several different types of certificates under s 60I of the Family Law Act, including a certificate to the effect that the person did not attend FDR because, having regard to the Family Law (Family Dispute Resolution Practitioners) Regulations 2008 (the FDR Regulations), the practitioner considers that ‘it would not be appropriate’ to conduct or continue FDR.[22]

21.21 In determining whether a dispute is appropriate for FDR, the FDR practitioner must take into account whether the ability of any party to negotiate freely is affected by a number of factors, all of which are potentially relevant to cases of violence. These include: any history of family violence among the parties; the likely safety of the parties; the equality of bargaining power among the parties; the risk that a child may suffer abuse; the emotional, psychological and physical health of the parties; or any other relevant matter.[23] The FDR Regulations also require that an FDR practitioner must be satisfied of the appropriateness of FDR in each case before providing FDR.[24] An FDR practitioner is also obliged to terminate FDR if the practitioner is no longer satisfied it is appropriate, or is requested to do so by a party.[25]

FDR and financial disputes

21.22 The s 60I framework applies only to parenting orders. In relation to applications for financial disputes, the requirements are set out in the Family Law Rules 2004 (Cth).[26] Consistently with s 60I, the Rules include mechanisms for removing obligations to participate in FDR in cases of family violence.

21.23 This is done in two ways. First, the Rules require compliance with pre-action procedures set out in sch 1, but there is an exception for cases of allegations of family violence or the risk of family violence or fraud.[27] Secondly, while the procedures in sch 1 generally require the use of FDR, the Rules set out circumstances—including allegations of family violence or cases of urgency—in which the court may accept that it was not possible or appropriate for a party to comply with the pre-action procedures.[28]

FDR and the Family Law Act generally

21.24 Other provisions of the Family Law Act also deal with FDR, including provisions encouraging its use. Section 13C empowers the court to make orders referring parties to FDR or family counselling at any stage in proceedings, on its own initiative or on application by a party or an independent children’s lawyer.[29] If a party does not comply with such an order, the court may make further orders as it considers appropriate following a report from an FDR practitioner or counsellor.[30] Section 62B obliges a court to inform parties in a parenting proceeding about FDR and family counselling services. Section 69ZQ requires a court in child-related proceedings to encourage the use of FDR, where it considers it appropriate. A requirement to attend FDR may also be imposed as a condition of a bond where parenting orders are contravened.[31]

Definition of family violence

21.25 The definition of family violence in s 4 of the Family Law Act, and proposals to amend the definition, are discussed in detail in Chapter 6 of this Report. As discussed there, the definition is more restrictive than that used in some state or territory family violence legislation, and in practice-based material such as the Screening and Risk Assessment Framework,[32] and in the Family Court of Australia’s Family Violence Strategy.[33] Concern has been expressed that the definitional differences may create problems in practice.[34] A KPMG evaluation of FDR practices in the legal aid sector found that screening questions tended to focus on physical forms of abuse,[35] and recommended enhanced screening for non-physical forms of violence.[36]

21.26 In the Consultation Paper, the Commissions therefore asked whether the variations between the legislative definitions and practice-based definitions in FDR have had any practical impact in FDR practices.[37]

21.27 The responses to this question focused on the definition of violence in the Family Law Act, identifying its narrowness and the requirement of reasonableness as problematic.[38] Very few responses linked the definition with problems in FDR practice. One submission asserted that the definition in the Family Law Act is narrow and does not include many of the dynamics of power and control. These dynamics may impact on capacity to negotiate, but not constitute violence under the Act, and the capacity of FDR to deal with such problems depends on the skill of the practitioner.[39] The Queensland Law Society expressed concerns that FDR practitioners sometimes excluded parties from FDR because of concerns that did not meet the definition in the Act.[40]

21.28 In Chapter 6, the Commissions express the view that the definition of family violence in the Family Law Act should expressly recognise that certain types of non-physical conduct—including economic abuse and psychological abuse—may fall within the wider definition of family violence. The Commissions recommend that family violence should be given a definition that describes the context in which acts take place, and that it should be defined as violent or threatening behaviour, or any other form of behaviour that coerces or controls a family member or causes that family member to be fearful.[41] The Commissions also express the view that the semi-objective test of reasonableness should be removed from the definition of family violence in the Family Law Act on the basis that it is inappropriate to apply a test of reasonableness to the experience of fear in determining whether conduct is violent. The Commissions do not, however, make a separate recommendation about the removal of the reasonableness test from the definition of family violence in the Family Law Act, as the Commissions’ recommended definition does not include the test of reasonableness.

21.29 In the Commissions’ view, this recommended definition will assist in educating those engaged in the family law system about the complexities and nuances of family violence. It will also deal with the concerns about the definition described above and the problems it may create in relation to FDR. Consequently, the Commissions make no further recommendation in this respect

[16]Family Law Act 1975 (Cth) s 60I.

[17]Ibid s 60I(1). For a discussion of ‘genuine effort’ in s 60I, its meaning and the implications of the provision in cases of violence, see H Astor, ‘Making a “Genuine Effort” in Family Mediation: What Does It Mean?’ (2008) 22 Australian Journal of Family Law 102.

[18]Family Law Act 1975 (Cth) s 60I(9)(a).

[19] Ibid s 60I(9)(b).

[20] Ibid s 60I(9)(d). Other circumstances include: where orders are applied for in response to other applications; where there has been serious disregard of previous family law orders; where parties are unable to participate effectively in FDR; and where other circumstances specified in the regulations are satisfied. No other circumstances are presently prescribed by the regulations.

[21] Ibid s 60I(7).

[22] Ibid s 60I(8)(aa),(d). The other grounds upon which certificates may be issued are: a party did not attend FDR due to the refusal or failure of the other party (or parties) to attend: s 60I(8)(a); the parties attended FDR with the practitioner, and all parties made a genuine effort to resolve the issue or issues: s 60I(8)(b); the party attended FDR with the practitioner, but that party, or another party did not make a genuine effort to resolve the issue or issues: s 60I(8)(c).

[23]Family Law (Family Dispute Resolution Practitioners) Regulations 2008 (Cth) reg 25(2).

[24] Ibid reg 25(1), (4).

[25] Ibid reg 29(c).

[26] In May 2010, the Attorney-General of Australia announced an intention to extend the requirement to attend FDR prior to filing an application in court to property and spousal maintenance matters, as one of a range of measures consistent with the Federal Government’s Strategic Framework for Access to Justice:R McClelland (Attorney-General), ‘Improving Access to Justice’ (Press Release, 17 May 2010).

[27]Family Law Rules 2004 (Cth) r 1.05.

[28] Ibid sch 1, cl 1(1),(4).

[29] The court is required to consider seeking the advice of a family consultant before making such an order.

[30]Family Law Act 1975 (Cth) s 13D.

[31] Ibid ss 70NEC, 70NFE.

[32] Australian Catholic University and Australian Government Attorney-General’s Department, Framework for Screening, Assessment and Referrals in Family Relationship Centres and the Family Relationship Advice Line (2008), 52, notes the definition in the Family Law Act and other definitions.

[33] Family Court of Australia, Family Violence Strategy (2004–2005), 3.

[34] R Kaspiew, ‘Family Violence in Children’s Cases under the Family Law Act 1975 (Cth): Past Practice and Future Challenges’ (2008) 14 Journal of Family Studies 279, 287.

[35] KPMG, Family Dispute Resolution Services in Legal Aid Commissions: Evaluation Report (2008), prepared for the Australian Government Attorney-General’s Department, 36.

[36] Ibid. Measures taken by the Legal Aid Commissions to address this and other concerns raised by KPMG are discussed below.

[37] Australian Law Reform Commission and New South Wales Law Reform Commission, Family Violence: Improving Legal Frameworks, ALRC Consultation Paper 1, NSWLRC Consultation Paper 9 (2010), Question 11–2, [11.61].

[38] Law Society of New South Wales, Submission FV 205, 30 June 2010; National Abuse Free Contact Campaign, Submission FV 196, 26 June 2010; Women’s Legal Service Queensland, Submission FV 185, 25 June 2010; Confidential, Submission FV 184, 25 June 2010; Women’s Legal Services NSW, Submission FV 182, 25 June 2010; Aboriginal Family Violence Prevention and Legal Service Victoria, Submission FV 173, 25 June 2010; Berry Street Inc, Submission FV 163, 25 June 2010; Domestic Violence Victoria, Federation of Community Legal Centres Victoria, Domestic Violence Resource Centre Victoria, Victorian Women with Disabilities Network, Submission FV 146, 24 June 2010; Confidential, Submission FV 105, 6 June 2010.

[39] Women’s Legal Centre (ACT & Region) Inc, Submission FV 175, 25 June 2010.

[40] Queensland Law Society, Submission FV 178, 25 June 2010.

[41] Rec 6–4. The Commissions recommend the same core definition of family violence for family violence legislation and the Family Law Act—see Rec 5–1.