Alternative dispute resolution

Introduction

16.17 In any proceedings involving children under the Family Law Act, a party or a child's representative can apply for court counselling assistance. The court can also order the parties to attend counselling with a family and child counsellor or welfare officer. In either case, the parties (with or without the child) are then interviewed by a family and child counsellor or welfare officer to discuss the welfare of the child and to try to resolve any differences.[39] As well as providing counselling services, the Family Court can divert parties from litigation by referring them to conciliation,[40] mediation[41] or arbitration.[42] Close to 75% of cases filed in the Family Court are at least partly resolved during the voluntary counselling stage of the proceedings.[43] Statistics are not kept on the numbers of children participating in these alternative dispute resolution processes.[44]

Children's participation in alternative dispute resolution

16.18 The little research available suggests that children may benefit from involvement in Family Court mediation, conciliation and counselling processes.[45] In a Scottish study of 28 children who had been involved in conciliation, 24 children indicated that they had benefitted from their attendance. Most of those children mentioned an improvement in communication and some also said that conciliation had allowed them to express their feelings to someone who knew how they felt.[46] The federal Attorney-General's Department considered that children's needs

...can be considered more effectively in the mediation or counselling process and they will receive a positive image of their parents communicating, negotiating and reaching agreements. This involvement will also enhance the prospects of the agreement surviving in the future.[47]

16.19 Some submissions to the Inquiry suggested that all children should be involved in these alternative dispute resolution programs following the separation of their parents.[48] On the other hand, the federal Attorney-General's Department submitted

[f]or some there is a reluctance to involve children directly because of a desire to protect them from the dispute as much as possible and in mediation, not to put responsibility for adult decision making on children.[49]

The submission from Brenda House noted that some children

...have said that they do not want to make any decisions, that they want their parents to decide on what arrangements should exist...For some children the emotional burden of trying to 'balance' their parents is enormous.[50]

The Australian Association of Social Workers told the Inquiry

[t]he outcome of counselling for many children is often for them to express a wish for the parents to leave them out of the dispute. The message may be salutary for the parents.[51]

These points are well made. Children should not be required to become involved in alternative dispute resolution processes. Rather, the degree of children's involvement should be determined in each case on the basis of the wishes and needs of the child involved. Ensuring that in each case the child's participation in these processes is appropriate may be difficult but the challenge should not be avoided. Relationships Australia strongly endorsed

...the rights of children to be kept fully informed on what decisions are being made which affect them and who is making these decisions, at all stages of any proceedings, through mediation, child and family counselling, court counselling and litigation. Children need to know what is going on, what their rights are. They need to have the opportunity to be heard and supported in this by people with expertise in working with children, and if possible, not to be put in a decision making role which draws them into the cross fire of their parents' conflicts.[52]

16.20 DRP 3 proposed research to gather statistics to allow an assessment of the various alternative dispute resolution processes.[53] We suggested that research should assess the use made of counselling for, and conciliation and mediation involving, children and the origin of the applications for children to become involved. The research could also consider the results of those processes involving children compared to those where children were not involved.

16.21 Since the draft recommendation was made, the Attorney-General's Department has funded research, to be completed by March 1998, to recommend '...best practice approaches for counselling and mediation services to ensure that the needs of children are more effectively addressed'.[54] In particular, the research is to report on the most effective interventions to assist parents and children to deal with children's experience of separation, to explore the experiences and perspectives of children and parents in the process and to recommend appropriate strategies to ensure a focus is maintained on the needs and perspectives of children.[55] As a result of this continuing research, the Attorney-General's Department 'takes a cautious approach' to the draft recommendation.[56] The Inquiry commends this research and we have, as a result, amended our recommendation. After the completion of this research, however, statistics should continue to be collected and published by the Family Court.

16.22 Relationships Australia has suggested that these statistics should also be collected from those services funded under the Attorney-General's Family Services Program but provided outside the Family Court.[57] We agree. These statistics should also be collected and provided to the Family Court where these services have been used after the filing of a court application.

Recommendation 137 The Family Court should collect statistics on children's participation in counselling, mediation and conciliation processes, including the origin of applications in which children's involvement is requested, the number of matters in which children are involved and the results, including long-term outcomes, of those matters in which children participate in counselling or mediation compared with those where they do not. These statistics should be collected for all post-filing primary dispute resolution processes, including those funded under the Family Services Program.

Implementation. The Family Court should collect these statistics and publish them in its Annual Report.

The provision of alternative dispute resolution services

16.23 The Attorney-General is currently considering the most appropriate arrangements for the provision of alternative dispute resolution services in family disputes.[58] A Discussion Paper, Delivery of Primary Dispute Resolution Services in Family Law, was released in August 1997 to evaluate the structure of the current service delivery in this area.[59] The Attorney-General's Department has foreshadowed that '...a significant proportion of the counselling and mediation services now provided by the Family Court may be moved to the community sector'.[60]

16.24 Whatever structure is introduced for the provision of alternative dispute resolution processes, minimum criteria should apply for all service providers.[61] Present recruitment criteria for Family Court counsellors includes the following.

    • A recognised degree or diploma in Psychology, Social Work or related discipline is essential. Eligibility for membership of the APS or AASW would be an advantage.

    • At least 5 years relevant post-graduate experience, including at least 2 years working with family relationships is essential.

    • At least 2 years experience working with children, including the assessment of children and family relationships is essential.[62]

These same criteria should apply to all service providers.

16.25 Family Court counsellors, mediators, court report writers and private practitioners providing family and child counselling or other alternative dispute resolution services also require continuing training to ensure that their knowledge and skills are up-to-date.[63] Training should focus on legal issues for children in family law, child development and communication with children. It should provide up-to-date information on issues surrounding disclosure of child abuse, family dynamics concerning abuse and best practice for dealing with such allegations.[64] Training is also important for all other staff dealing with family law matters who are likely to have contact with children.[65]

16.26 DRP 3 proposed that counselling and mediation services should be available to all courts, including State and Territory magistrates' courts, exercising federal family law jurisdiction.[66] It suggested that these services could be supplied in part by extending telephone counselling services and counselling circuits and making use of video links and other new technologies in appropriate cases. Whatever the outcome of the Attorney-General's review of alternative dispute resolution services in family law,[67] the recommendation that services be available to all litigants involved in family disputes remains relevant.[68]

Recommendation 138 All providers of primary dispute resolution services associated with family disputes, whether employed within or outside the Family Court, should have

  • a recognised degree or diploma in psychology, social work or related discipline

  • at least 5 years' relevant post-graduate experience, including at least 2 years' working with family relationships

  • at least 2 years' experience working with children, including the assessment of children and family relationships.

Implementation. The Attorney-General should specify that these standards are the minimum training and experience requirements for external providers of primary dispute resolution services associated with family disputes.

Recommendation 139 All providers of primary dispute resolution services associated with family disputes should receive continuing training in children's matters. Training should include material on legal issues for children in the family law system, child development and communication and, particularly, issues surrounding the disclosure of, family dynamics concerning and best practice for dealing with allegations of child abuse.

Implementation. The Family Court should develop appropriate continuing training programs to ensure the currency of the skills of its counselling and mediation staff. The Attorney-General should specify that all external providers of primary dispute resolution services should receive similar training.

Recommendation 140 Counselling and mediation services should be available to all litigants involved in family disputes regardless of the court they are before. These services could be supplied in part by extend-ing telephone counselling services or counselling circuits and by making use of video links and other new technologies in appropriate cases.

Implementation. Depending on the results of the Attorney-General's review of alternative dispute resolution services in family law, the Family Court should consider appropriate mechanisms to ensure the provision of these services and should be resourced adequately to put these mechanisms in place.

[39] Family Law Act ss 62C, 62F.

[40] Family Law Act Pt III Div 4.

[41] Family Law Act Pt III Div 4 Subdiv A.

[42] Family Law Act Pt III Div 5 Subdiv B. Arbitration is rarely used in the Family Court at present.

[43] At least one substantive issue is settled during the voluntary stage of counselling in close to 75% of cases: Office of the Chief Executive, Family Court of Australia Submission to the Joint Standing Committee on Certain Aspects of the Operation and Interpretation of the Family Law Act, Term of Reference (a) Family Court of Australia Sydney 1992. See also D Smith TR Submission 46. However, this is not to suggest that these processes are responsible for an amicable settlement of an entire dispute: Society for the Best Interests of the Child DRP Submission 34.

[44] In relation to mediation, the position seems little different from that in NZ where it has been noted that '[a]lthough most family mediators do not seek directly the views of children in the mediation process, some have advocated the limited involvement of children in mediation to ascertain their wishes and to provide a check that parents' arrangements are in accord with the children's wishes': J Pryor & F Seymour 'Making decisions about children after parental separation' (1996) 8 Child and Family Law Quarterly 240.

[45] ibid. See also D Bagshaw 'Children of divorce in Britain and the United States: Current issues in relation to child custody and access' (1992) 6 Australian Journal of Family Law 32.

[46] F Garwood Children in Conciliation: A Study of the Involvement of Children of the Lothian Family Conciliation Service Scottish Association of Family Conciliation Services Edinburgh 1989. See also D Bagshaw 'Children of divorce in Britain and the United States: Current issues in relation to child custody and access' (1992) 6 Australian Journal of Family Law 32; Working Party Report Giving Children a Voice in Mediation National Family Mediation Council 1995.

[47] IP Submission 178.

[48] eg Disability Services Office SA IP Submission 205; Law Society of NSW IP Submission 209.

[49] IP Submission 178.

[50] DRP Submission 65.

[51] IP Submission 207.

[52] Relationships Australia DRP Submission 70.

[53] Draft rec 8.3.

[54] Attorney-General's Dept DRP Submission 52.

[55] See Legal Aid & Family Services, Attorney-General's Dept Research Consultancy in Family and Child Counselling and Family and Child Mediation Terms of Reference unpublished 1997.

[56] Attorney-General's Dept DRP Submission 52.

[57] DRP Submission 70.

[58] See D Williams 'Family Law — Future directions' Speech National Press Club Canberra 15 October 1996, 20ff.

[59] Attorney-General's Dept Delivery of Primary Dispute Resolution Services in Family Law Attorney-General's Dept Canberra 1997.

[60] Attorney-General's Dept DRP Submission 52.

[61] Chief Justice's Chambers Family Court of Australia DRP Submission 64.

[62] Chief Justice's Chambers Family Court of Australia DRP Submission 64. APS is the Australian Psychologists' Society. AASW is the Australian Association of Social Workers.

[63] See Attorney-General's Dept IP Submission 178.

[64] See ch 15 for a discussion of the Family Court's involvement in dealing with allegations of child abuse.

[65] Training for legal representatives and judicial officers in family law are addressed at recs 84-86, 134.

[66] Draft rec 8.4.

[67] See para 16.23.

[68] The Family Court supported the recommendation in principle subject to the outcome of the Attorney-General's review: Chief Justice's Chambers Family Court of Australia DRP Submission 64.