22.91 As discussed in Chapter 21, s 60I of the Family Law Act requires that, before applying for an order under pt VII of the Act (child-related proceedings), a person must first make a genuine effort to resolve the dispute by FDR. Subject to certain exceptions—including where the court is satisfied that there are reasonable grounds to believe that there has been, or there is a risk of, family violence by one of the parties to the proceedings—a court must not hear an application for such an order unless the applicant has filed a certificate from an FDR practitioner (a s 60I certificate).
22.92 A s 60I certificate may be issued on a number of grounds, including on the basis of an assessment by an FDR practitioner that ‘it would not be appropriate’ to conduct or continue FDR. Such an assessment requires the FDR practitioner to consider whether the ability of a party to negotiate freely is affected by one or more of a number of factors, all of which are potentially relevant to violence. The required form for s 60I certificates, however, allows the FDR practitioner to do no more than nominate the ground upon which the certificate is issued. Where a s 60I certificate indicates that ‘it would not be appropriate’ to conduct or continue FDR, for example, it will not state why FDR was considered inappropriate.
22.93 In a submission to the 2009 Family Courts Violence Review undertaken by Professor Richard Chisholm (the Chisholm Review), Family Relationships Service Australia submitted that:
Currently Family Dispute Resolution practitioners have limited options for passing on information about risks identified to the Family Court where this would be appropriate. The Certificates prescribed in Section 60I of the Family Law Act allow for limited identification of reasons why Family Dispute Resolution is either inappropriate or unsuccessful.
22.94 The Chisholm Review suggested that ‘it may prove useful’ to reconsider the drafting of s 60I of the Family Law Act.
22.95 The Family Law Council considered the issue in more detail its 2009 report. In its view
the function of the Certificate as simply the vehicle which authorises parties to move to litigation does not reflect the financial investment by Government in creating family relationship centres, or the skill of the family dispute resolution practitioner in working with the family to provide guidance to the Court as to the program or services best suited to the needs of the participants. In discussions with Family Relationship Centres, legal aid and others, the Council was not able to ascertain a consensus across all of the relevant agencies as to whether Family Relationship Centres could have some responsibility for communicating relevant information to the court without it compromising the inadmissibility of the intervention, or the anonymity of a violence allegation thereby placing a victim at risk.
22.96 The Council noted that ‘many unintended consequences’ would flow from changing the role of the FDR practitioner in this way, including: the need for increased funding for the additional report writing skills and tasks required; the probability that FDR practitioners would have to testify about their methods and conclusions; and the disincentive for those committing violence to participate in, and for victims to disclose violence in, FDR processes. The Council’s recommendation was that an options paper be written, outlining the advantages and disadvantages of reforms in this area, for comment by stakeholders.
22.97 In the Consultation Paper, the Commissions proposed that s 60I certificates should include information about why FDR was inappropriate or unsuccessful—for example, because there has been, or would be a future risk of family violence by one of the parties to the proceedings.
Submissions and consultations
22.98 Some of the submissions received by the Commissions indicated unequivocal support for the inclusion of additional information relating to family violence concerns in s 60I certificates. Chief Justice Bryant of the Family Court of Australia and Chief Federal Magistrate Pascoe noted in their submission that there is merit in at least limited information being included in s 60I certificates to the effect that FDR was inappropriate or ineffective because of family violence. Legal Aid NSW argued that some indication of risk of harm should be included in s 60I certificates because at the early or interim stage of a matter, a s 60I certificate may be one of the only sources of independent information available to a judicial officer who, otherwise, has to rely on the untested evidence of parties and the quality of their representation. The Women’s Legal Service Queensland commented that, given that family violence is often very hard to prove, the inclusion of such additional information on s 60I certificates may provide some limited corroboration.
22.99 In contrast, the Law Council of Australia and the Peninsula Community Legal Centre, although supporting the inclusion of such additional information, commented that the information should only be used for screening and risk assessment purposes and not as evidence of a disputed allegation. A number of submissions opposing the proposed inclusion of additional information relating to family violence raised significant objections. These objections are discussed below.
Undermining the nature of FDR
22.100 Submissions opposing the proposed inclusion of additional information pointed to the benefits of FDR in encouraging and allowing parties to raise matters on a confidential basis and to discuss options for settlement without prejudice and outside court processes. It was argued that the culture of alternative dispute resolution is open and co-operative, not adversarial. There was concern that publication of the factors that made FDR inappropriate would undermine the fundamental nature and benefits of a private, confidential out-of-court dispute resolution process. It was argued that undermining the confidentiality of the FDR process makes FDR less effective and less attractive, and that lack of confidentiality may discourage disclosure and honesty in communications. Concern was also expressed about the undermining of FDR practitioner neutrality and impartiality.
Section 60I certificates as signals of family violence concerns
22.101 In the Consultation Paper, the Commissions noted that federal magistrates have pointed to the benefit of s 60I certificates signalling that a proceeding under pt VII of the Family Law Act involves family violence concerns. However, as acknowledged by the FRSA, and noted by Chief Justice Bryant and Chief Federal Magistrate Pascoe, the limited amount of information currently included in s 60I certificates constrains their potential for passing on information about family violence concerns.
22.102 On this point, it was argued that a s 60I certificate indicating simply that a matter was not appropriate for FDR should be sufficient to trigger an investigation by the court, and that in such cases parties should be referred to the court’s family consultants for a report. Submissions also indicated that the provision of more detailed information on s 60I certificates based on FDR practitioners’ assessments would not remove the need for such further screening and assessment.
22.103 In its submission, the Australian Institute of Family Studies (AIFS) cautioned against expansion of the role of s 60I certificates to include more specific information about allegations and admissions. In the view of AIFS the existing option for indicating on s 60I certificates that a matter is inappropriate for FDR does provide a mechanism to send a clear signal to a court (or to an advocate) that there are indications that something is ‘seriously wrong’. AIFS also commented, however, that while such a signal would be expected to trigger a response from lawyers or courts, the data from AIFS’ evaluation of the 2006 family law reforms suggest that this rarely happens. This observation was supported in the submission by the FRSA.
The role of FDR practitioners is not forensic
22.104 Submissions expressed concern about the possibility that information about family violence on s 60I certificates would be regarded as evidence.
22.105 The FRSA commented that it is not the role of the FDR practitioner to form a judgment about allegations of violence that have been contested or denied and expressed concern about the potential for the s 60I certificate to become part of the dispute and another point of contest. Dr Rundle noted the negative implications of FDR practitioners being subjected to cross-examination about their methods and conclusions.
22.106 AIFS commented that treating information about family violence on s 60I certificates as evidence would be ‘problematic’. FDR practitioners do not perform a forensic function and must accept communications from the parties at face value. National Legal Aid commented that untested screening and risk assessments by FDR practitioners and counsellors cannot replace screening and assessment in the court context where evidence can be tested and reviewed.
Other unintended consequences of including additional information about family violence on s 60I certificates
22.107 Submissions also pointed to the possibility that publication of allegations of violence on s 60I certificates, which are provided to both parties, may place victims—and FDR practitioners—at risk of retaliation by alleged perpetrators, particularly where a victim has raised concerns with an FDR practitioner without the knowledge of the perpetrator. While the National Council of Single Mothers agreed that s 60I certificates could include additional information about family violence, this stakeholder commented that a more effective method should be developed for passing on information to avoid putting victims who raise family violence concerns at risk. Another stakeholder, a legal service provider, indicated general reservations about any amendments ‘which compromise mediation processes as a safe and confidential space where everything can be frankly discussed and all relevant information put on the table without fear of repercussions’.
22.108 The Aboriginal Family Violence Prevention and Legal Service Victoria (AFVPLS Victoria) commented that, for various reasons, including reluctance of Indigenous women to disclose, there are problems with Family Relationship Centres identifying family violence experienced by Indigenous people. AFVPLS Victoria noted that if a certificate fails to mention family violence, it may become problematic for the victim to raise family violence in later proceedings. Women’s Legal Services NSW also expressed concern that failure to indicate family violence could lead to an incorrect assumption that there is no family violence.
Alternatives to including additional information on s 60I certificates
22.109 The FRSA supported greater information sharing by FDR practitioners with the courts about risks identified during the provision of family and relationship services. The FRSA noted, however, that s 60I certificates ‘are not the best or only mechanism for achieving this’. Rather than making the s 60I certificate an information sharing mechanism, the FRSA favoured retaining the current purpose of s 60I certificates—that is, as verification that a party has fulfilled the obligation to attempt FDR before going to court.
22.110 As an alternative, the FRSA supported the recommendation of the Chisholm Review for the development of a mechanism to improve information sharing as part of a broader approach to risk assessment. In particular, the FRSA indicated support for common risk assessment to incorporate mechanisms that would allow FDR practitioners and family counsellors to make case management recommendations to the court for management of the early stages of the case. In the FRSA’s view, this could obviate the need for s 60I certificates to contain additional information.
22.111 The National Council of Single Mothers and their Children suggested that screening and assessment through an integrated response framework, with information sharing across services and a standardised risk assessment and risk management framework, might be one way of dealing with concerns about the safety of women who raise concerns about violence during the mediation process.
22.112 According to AIFS it could be argued that, for the sake of any children involved, all cases deemed inappropriate for FDR deserve a rapid and informed response if parties subsequently pursue legal avenues to resolve their dispute. As noted above, AIFS has suggested that the s 60I certificate signal, which is currently rarely acted upon, could be amplified if the s 60I certificate categories were simplified from the existing five to three categories, one of which could indicate that the matter was not suitable for FDR. This suggestion involves removing the s 60I certificate categories relating to whether or not the parties have made a ‘genuine effort’ to resolve their dispute through FDR. AIFS notes that interviews with dispute resolution practitioners undertaken for the AIFS evaluation indicated that most FDR practitioners regard the ‘genuine effort’ categories as problematic—‘mainly because they introduce a level of judgment about client motivation that is seen as largely incompatible with the role of an FDR [practitioners]’.
22.113 In its submission, National Legal Aid argued that, rather than diluting the current confidentiality of the FDR process, adequate resources need to be provided to the family law courts for screening and assessment and for timely and appropriate determination of these matters. National Legal Aid has also suggested appropriate education for registry staff, family consultants, and judicial officers on the need for screening and risk assessment where a certificate that a matter was inappropriate for FDR is issued. A further suggestion is that an amendment to the s 60I certificate could be made to include an optional alternative clause in the certificate allowing the FDR practitioner to recommend that the court conduct screening and risk assessment in the matter. This would draw the court’s attention to the existence of issues such as family violence as a factor for consideration in their case management process.
22.114 The Commissions accept that requiring FDR practitioners to perform a forensic role for the purpose of including additional information, as proposed, will change the role of FDR practitioners, and that this is undesirable.
22.115 The Commissions note concerns about reluctance of some Indigenous women to disclose family violence. Considerations relating to factors inhibiting disclosure are also relevant in relation to CALD women. The various factors which affect the identification of family violence experienced by Indigenous and CALD women, including reluctance to disclose, may be better addressed through culturally sensitive screening and risk assessment at appropriate times through the course of proceedings. The Commissions do not consider that an option to provide more detailed information on s 60I certificates will adequately address these concerns or remove the need for ongoing screeningthrough subsequent legal proceedings.
22.116 The Commissions accept that the recording of information about family violence on a s 60I certificate may be an incentive for perpetrators to conceal family violence in FDR; it may also discourage victims from disclosing violence. The Commissions are concerned, therefore, that compromising confidentiality of FDR communications by allowing additional information about family violence to be included on s 60I certificates, as proposed, may result in unsafe arrangements and agreements being made, and so place victims and potential victims of family violence at risk.
22.117 The Commissions accept that while the information currently included on s 60I certificates limit their potential for passing on information about family violence risks to family courts, the existing option to nominate that FDR is inappropriate does allow a s 60I certificate to function as a signal that family violence may be an issue. The Commissions agree that concerns about the failure of family courts and advocates to respond appropriately to s 60I certificates as a signal could be addressed by ensuring appropriate education of advocates, registry staff, family consultants, and judicial officers about the need for screening and risk assessment where such certificates have been issued.
22.118 Accordingly, the Commissions are of the view that s 60I certificates should not include information about why FDR was inappropriate or unsuccessful—for example, because there has been or is a future risk of family violence by one of the parties.
22.119 The Commissions note advice from the Australian Government Attorney-General’s Department that the Department is developing a common risk assessment framework to support screening and risk assessment across the family law system. While the Commissions understand that this is a framework rather than a tool, the Commissions believe this will create an opportunity for considering alternative mechanisms for identifying family violence as a concern.
Recommendation 22–5 The Australian Government Attorney-General’s Department should coordinate the collaborative development of education and training—including cross-disciplinary training—for family courts’ registry staff, family consultants, judicial officers and lawyers who practise family law, about the need for screening and risk assessment where a certificate has been issued under s 60I of the Family Law Act 1975 (Cth) indicating a matter is inappropriate for family dispute resolution.
 Sections 60I(8)(aa) and (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)).
 See Family Law (Family Dispute Resolution Practitioners) Regulations 2008 (Cth) reg 25(2).
 See Ibid reg 27(1), sch 1, which includes the Certificate by Family Dispute Resolution Practitioner form.
 R Chisholm, Family Courts Violence Review (2009), 77.
 Family Law Council, Improving Responses to Family Violence in the Family Law System: An Advice on the Intersection of Family Violence and Family Law Issues (2009), [10.7.1].
 Ibid, Rec 8.1.
Consultation Paper, Proposal 10–7.
Department of Premier and Cabinet (Tas), Submission FV 236, 20 July 2010; Magistrates’ Court and the Children’s Court of Victoria, Submission FV 220, 1 July 2010; Confidential, Submission FV 184, 25 June 2010; Confidential, Submission FV 183, 25 June 2010; Confidential, Submission FV 171, 25 June 2010; Berry Street Inc, Submission FV 163, 25 June 2010; Confidential, Submission FV 162, 25 June 2010; Confidential, Submission FV 160, 24 June 2010; UnitingCare Children Young People and Families, Submission FV 151, 24 June 2010; The Central Australian Aboriginal Family Legal Unit Aboriginal Corporation, Submission FV 149, 25 June 2010 (as long as the information is restricted to family violence, child abuse or personal safety risks); The Central Australian Aboriginal Family Legal Unit Aboriginal Corporation, Submission FV 149, 25 June 2010; Justice for Children, Submission FV 148, 24 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 130, 21 June 2010; N Ross, Submission FV 129, 21 June 2010; Confidential, Submission FV 105, 6 June 2010; Confidential, Submission FV 96, 2 June 2010; Confidential, Submission FV 82, 2 June 2010; Confidential, Submission FV 71, 1 June 2010; C Pragnell, Submission FV 70, 2 June 2010; National Peak Body for Safety and Protection of Parents and Children, Submission FV 47, 24 May 2010; M Condon, Submission FV 45, 18 May 2010.
D Bryant, Chief Justice of the Family Court of Australia and J Pascoe, Chief Federal Magistrate of the Federal Magistrates Court of Australia, Submission FV 168, 25 June 2010.
Legal Aid NSW, Submission FV 219, 1 July 2010.
Women’s Legal Service Queensland, Submission FV 185, 25 June 2010.
Law Council of Australia, Submission FV 180, 25 June 2010; Peninsula Community Legal Centre, Submission FV 174, 25 June 2010.
G Charlton, Submission FV 240, 9 August 2010.
 National Legal Aid, Submission FV 232, 15 July 2010; O Rundle, Submission FV 50 27 May 2010. In general comments relating to the Consultation Paper’s Proposals 10–7 to 10–15 and Questions 10–12 to 10–20, the Women’s Legal Services NSW also expressed concern about the effect of increased disclosure and information sharing on integrity of FDR processes: Women’s Legal Services NSW, Submission FV 182, 25 June 2010.
 National Legal Aid, Submission FV 232, 15 July 2010.
 For example, G Charlton, Submission FV 240, 9 August 2010; O Rundle, Submission FV 50 27 May 2010.
 G Charlton, Submission FV 240, 9 August 2010; Law Society of New South Wales, Submission FV 205, 30 June 2010, referring to the views of the Dispute Resolution Committee. The Dispute Resolution Committee noted that parties for whom FDR is not appropriate should be referred to family consultants.
 Federal Magistrates Court, Consultation, Sydney, 3 February 2010.
 D Bryant, Chief Justice of the Family Court of Australia and J Pascoe, Chief Federal Magistrate of the Federal Magistrates Court of Australia, Submission FV 168, 25 June 2010.
 Dispute Resolution Committee, Law Society of New South Wales, Submission FV 205, 30 June 2010. Family consultants are psychologists and/or social workers who specialise in child and family issues after separation and divorce: Family Court of Australia and Federal Magistrates Court of Australia, Fact Sheet—Family Consultants.They are employed by the family law courts to assist and advise parties and courts in family law proceedings. Amongst other things, they may provide reports to the court and give evidence on matters relevant to the care, welfare and development of children. Communications with a family consultant are not confidential and are admissible as evidence. A court must consider seeking the advice of a family consultant before exercising certain powers, including the power to order that a person attend FDR: Family Law Act 1975 (Cth) ss 11A, 11B, 11C, 11E, 55A, 62.
 National Legal Aid, Submission FV 232, 15 July 2010; Family Relationship Services Australia, Submission FV 231, 15 July 2010.
 This view is based on qualitative data from the Australian Institute of Family Studies, Evaluation of the 2006 Family Law Reforms (2009). See Australian Institute of Family Studies, Submission FV 222, 2 July 2010.
 Australian Institute of Family Studies, Submission FV 222, 2 July 2010.
 The FRSA makes the observation that ‘the Family Courts rarely rely on the type of Certificate issued for any purpose and the Certificate goes on file but rarely comes before the judicial officer’: Family Relationship Services Australia, Submission FV 231, 15 July 2010.
 As noted above, some support for the inclusion of such information on s 60I certificates was given on the basis that the information only be used for screening and risk assessment purposes and not as evidence of a disputed allegation.
 Family Relationship Services Australia, Submission FV 231, 15 July 2010.
 Rundle referred to the financial burden on service providers, FDR practitioners being taken away from direct service activity and the possible financial cost for self-employed FDR practitioners: O Rundle, Submission FV 50 27 May 2010.
 Australian Institute of Family Studies, Submission FV 222, 2 July 2010. AIFS commented that while acceptance of these communications will affect how or whether FDR continues, it is not the FDR practitioner’s role to make judgments about substantive issues. Geoff Charlton, an FDR practitioner, also commented that FDR is not an investigatory process and is not concerned with evidentiary proof: G Charlton, Submission FV 240, 9 August 2010.
 National Legal Aid, Submission FV 232, 15 July 2010. The One in Three Campaign also expressed concern about untested allegations being placed before the court: One in Three Campaign, Submission FV 35, 12 May 2010.
Australian Institute of Family Studies, Submission FV 222, 2 July 2010; O Rundle, Submission FV 50 27 May 2010. National Legal Aid was also concerned that the provision of more detailed information on s 60I certificates may place victims of family violence at risk: National Legal Aid, Submission FV 232, 15 July 2010.
 National Abuse Free Contact Campaign, Submission FV 196, 26 June 2010. In general comments relating to the Consultation Paper’s Proposals 10–7 to 10–15 and Questions 10–12 to 10–20, the Women’s Legal Services NSW also expressed concern about the potential risk of harm to the person disclosing violence: Women’s Legal Services NSW, Submission FV 182, 25 June 2010.
 National Council of Single Mothers and their Children Inc, Submission FV 144, 24 June 2010.
 Confidential, Submission FV 164, 25 June 2010.
 Aboriginal Family Violence Prevention and Legal Service Victoria, Submission FV 173, 25 June 2010.
 Women’s Legal Services NSW, Submission FV 182, 25 June 2010. Alexandra Harland also queried what inference would be drawn if a party alleged violence in court proceedings, but the FDR practitioner had decided not to refer to violence on the s 60I certificate: A Harland, Submission FV 80, 2 June 2010.
 Family Relationship Services Australia, Submission FV 231, 15 July 2010. The FRSA indicated that case management recommendations could operate similarly to a referral from a General Practitioner to a specialist or a diagnostic service, including suggestions on how the case might be managed and what further assessment might be warranted. As an example, The FRSA have suggested that an FDR practitioner could alert the Family Court Registrar to a concern about a parent’s behaviour, and recommend that the case be ‘fast tracked’ or make suggestions such as the use of a children’s contact or family violence program. The FRSA have suggested that case management advice might include the practitioner’s assessment of urgency, safety concerns (in very general terms, for example recommending the appointment of an independent children’s lawyer, and giving a rating from a scale to indicate the existence of any safety issues and whether these are significant), and procedural fairness issues (case management recommendations to the Court that an interpreter, advocate or liaison worker be involved to assist the process).
 National Council of Single Mothers and their Children Inc, Submission FV 144, 24 June 2010.
 For a description of the existing five categories, see above.
 Australian Institute of Family Studies, Submission FV 222, 2 July 2010. On this point, Dr Rundle similarly argued that the requirement to make judgments about ‘genuine effort’ undermines the perception of practitioner impartiality: O Rundle, Submission FV 50 27 May 2010. In its submission, AIFS also discussed the possibility of passing information from the family relationship sector to the court through a validated screening and assessment self-reporting tool; the self-reported information generated would belong to the client, who could decide later to tender it as evidence in court.
 National Legal Aid, Submission FV 232, 15 July 2010. National Legal Aid also suggested that such education may be appropriate where a s 60I certificate indicating that one of the parties failed or refused to attend FDR is issued. National Legal Aid argued that in some cases a party may not attend FDR because of a history of family violence, and may or may not have disclosed this to the FDR organisation.
 See, eg, Australian Human Rights Commission, In Our Own Words: African Australians, a Review of Human Rights and Social Inclusion Issues (2010); L Bartels, Emerging Issues in Domestic/Family Violence Research (April 2010), prepared for the Australian Institute of Criminology; S Armstrong, ‘Culturally Responsive Family Dispute Resolution in Family Relationship Cenres’ (2009) 13 Family Relationships Quarterly 3; Women’s Legal Services New South Wales, Long Way to Equal: An Update of ‘Quarter Way to Equal: a Report on Barriers to Access to Legal Services for Migrant Women’ (2007); Department for Victorian Communities, CALD Women’s Project: Final Report, December 2005.
 Australian Government Attorney-General’s Department, Submission FV 166, 25 June 2010.