[8] Secondly, the FDR practitioner in question must be registered with the. Commonwealth Attorney General's Department to be in a position to issue certificates.
This is the author’s version of a work that was submitted/accepted for publication in the following source: Cooper, Donna Maree & Brandon, Mieke (2008) Non-adversarial advocates and gatekeepers : lawyers, FDR practitioners and co-operative postseparation parenting. Australasian Dispute Resolution Journal, 19, pp. 104-113. This file was downloaded from: http://eprints.qut.edu.au/26967/
c Thomson Reuters
Notice: Changes introduced as a result of publishing processes such as copy-editing and formatting may not be reflected in this document. For a definitive version of this work, please refer to the published source:
Non-adversarial advocates and gatekeepers : Lawyers, FDR practitioners and co-operative post-separation parenting Donna Cooper Mieke Brandon
Abstract The compulsory dispute resolution requirements in family law parenting cases create new roles and obligations for both lawyers and family dispute resolution (FDR) practitioners. This article will discuss how the legislative provisions impact on both sets of professionals in practice. It will also highlight the increased non-adversarial role of lawyers and a new role for FDR practitioners as "gatekeepers" to family courts in cases requiring FDR certificates.
Introduction Legislative amendments made in 2006 introduced the requirement for separating parents to attend family dispute resolution (FDR) prior to filing parenting applications in courts.1 [1] Such attendance is evidenced by certificates issued by FDR practitioners that report whether parties made a "genuine effort" to resolve their disputes.2 [2] The legislative changes were aimed at encouraging parties at an early stage in their separation to agree on parenting arrangements without the need to consult lawyers and courts.3 [3] Many parents, however, will continue to seek legal advice and this article will highlight how lawyers and FDR practitioners can assist parties to work towards co-operative parenting arrangements that will be developmentally appropriate for their children.4 [4] It will also illustrate how the legislation impacts upon both sets of professionals in practice. What is "family dispute resolution"? To obtain a certificate, generally one or both parties must participate in FDR.5 [5] This term is defined as a process outside of court, in which a practitioner, independent of the parties, assists them to resolve some or all of their disputed issues.6 [6] The definition does not prescribe the dispute resolution process to be used, the forum it should be conducted in or whether lawyers should be in attendance. Clients are therefore free to choose the process that they participate in, subject to some limitations.7 [7] First, the fact that it must be facilitated by an independent third party means that mediation is the key process available to clients, arbitration not being considered appropriate in parenting disputes.8 [8] Secondly, the FDR practitioner in question must be registered with the Commonwealth Attorney General's Department to be in a position to issue certificates.9 [9] All mediators in Family Relationship Centres (FRCs) are registered providers, although if considering using other types of community or private mediators, it is prudent to check their registration status.10 [10] Types of FDR certificates FDR practitioners can issue certificates in a variety of circumstances, ranging from where mediation successfully resolved all issues in dispute to where it was considered inappropriate after completing a preliminary intake assessment with the parties. The types of certificates which can be issued are limited by the legislation to the following: 1.
both parents attended mediation and the FDR practitioner considered that they both made a "genuine effort" to resolve the issues in dispute;11 [11] 2. both parents attended mediation and the FDR practitioner considers that one or both did not make a "genuine effort" in the negotiations;12 [12] 3. one parent attempted, through the FDR practitioner, to participate in mediation but the other parent either refused to participate or failed to attend;13 [13] or 4. one or both parents were referred to mediation, although after conducting an intake assessment, the FDR practitioner considered that it was an inappropriate process in the circumstances.14 [14] Although the focus on pre-filing mediation ensures that many separating couples will be able to reach an early resolution, some parties still require the assistance of courts, and it is therefore helpful to discuss the filing requirements in relation to FDR certificates. Court requirements for FDR certificates There are now three possible scenarios when seeking to file an application seeking parenting orders in the Family Court: either a FDR certificate will be filed, it will not be considered necessary or an exemption from filing will be sought. In some circumstances a FDR certificate is simply not required.15 [15] Such instances include where: •
• •
parenting orders were applied for prior to 1 July 2007 and either party is making a new application to varying, discharge or suspend existing orders (regardless of how old the existing orders are); the party filing documents is the respondent; and the parties have reached agreement and are seeking to have a consent order approved.
In other cases, the particular facts may justify the court granting an exemption.16 [16] Such circumstances can include where: • •
•
•
there are issues of urgency; the court has "reasonable grounds to believe that": o there has been family violence or there is a risk of family violence by one of the parties; o there has been abuse of a child by one of the parties or there would be a risk of abuse "if there were to be a delay in applying for the order";17 [17] it can be argued that either party is unable to effectively participate in mediation due to safety concerns, issues of inequality of bargaining power or the emotional, psychological or physical health of the parties;18 [18] or the case concerns contravention of an order made less than 12 months ago and the court has "reasonable grounds to believe that the person has behaved in a way that shows a serious disregard for his or her obligations under the order".19 [19]
If seeking an exemption from filing the FDR certificate, the request will be assessed by a Family Court Registrar at the time of filing. A covering letter seeking the exemption should be included to highlight that the request is being made. The grounds upon which the exemption is being sought should be detailed in an affidavit. A pro forma Affidavit – Non-
Filing of Family Dispute Resolution Certificate 20 [20] has been designed by the Family Court for this purpose.21 [21] There are further requirements if the client is seeking an exemption on the grounds of family violence or child abuse. Generally, a written statement is required setting out that information has been obtained as to the dispute resolution options available, including alternatives to court proceedings, in such circumstances.22 [22] Although such a statement is not required if the court can be persuaded that there would be a risk of family violence by one of the parties or a risk of abuse to a child if there was a delay in seeking a court order.23 [23] It is clear that a FDR certificate can be issued and court proceedings commenced even where one party refused to attend mediation or participated, and failed to make a "genuine effort" to negotiate. However, such behaviour can result in delay of the court proceedings or in a costs order. For example, if one party failed to attend mediation, the judicial officer hearing the case may decide to adjourn it and order both parties to attend family dispute resolution prior to the next court date.24 [24] For FDR practitioners it is important to appreciate that the certificates are required at the time of filing parenting applications. This means that, in cases where a court decision is required, the earlier the certificate can be issued the sooner the client can file an application. This is significant for all clients to ensure that their court matter can be heard within an appropriate time frame. Referral to a family relationship centre Determining suitability for mediation After being referred to a FRC, the FDR practitioner is initially required to conduct a thorough intake assessment to determine whether the parties should participate in mediation.25 [25] Intake is generally carried out by interviewing each parent separately26 [26] and also aims to provide them with information about the mediation process and how to adjust to co-parenting after separation.27 [27] One of the key determining factors regarding suitability is whether the parties will be able to "negotiate freely" during the mediation process.28 [28] Inhibiting factors include: past, current or the future likelihood of violence, possible risks of child abuse or abduction and the physical and emotional safety of both parents and children. Other relevant issues can include: the parties' emotional stability, stress levels, support networks and financial resources. The FDR practitioner also takes into account any unmanaged mental illness, concerns about substance abuse or self-harming, any physical disabilities or cultural or language issues. The needs of the parents, children and, where appropriate, grandparents, will be ascertained and their capacity to participate in joint or separate sessions will be assessed. If a lawyer is aware of any such issues pertaining to a client, it would be helpful to convey these to the FDR practitioner prior to intake. During intake, the practitioner will ask the parties numerous questions to assist in understanding the family dynamics and causes of underlying conflict. Useful questions include: who initiated the separation, when did it occur and how has it impacted on each parent and the children? Also helpful is discussing with parties how they have previously made decisions about their children and resolved conflict and whether they have successfully implemented any previous parenting agreements. During the course of the intake interviews the FDR practitioner will be able to gauge each party's level of commitment to the mediation process. At the conclusion of the intake process, if the practitioner considers that mediation is inappropriate, the parties will be advised and the relevant certificate issued.29 [29] If mediation remains an option, but there are some outstanding concerns, structuring the process in a suitable way may address them.30 [30] For example, where there has been past family
violence a client may voice a preference for mediation over court proceedings, due to issues of privacy and cost.31 [31] The practitioner can discuss with the client whether mediation conducted by way of a shuttle process, with the parties in separate rooms, or via a telephone link-up would be suitable.32 [32] If the parties are represented, the FDR practitioner could elect to contact the parties' lawyers to discuss these issues. The mediation process Once the case has been assessed as suitable, the parties are provided with more comprehensive information about the mediation process and how to prepare for it. Mediators in FCRs are registered FDR practitioners and meet the required competency standards.33 [33] FDR practitioners convene what is termed a "facilitative" model of mediation. While some facilitative mediation approaches encompass therapeutic, transformative or narrative elements in practice, this article will concentrate on discussing the basics of the facilitative model.34 [34] Facilitative mediation is based on the philosophy of party self-determination. Practitioners at FRCs encourage the parties to participate in "interest-based negotiations", focusing on their underlying concerns and interests.35 [35] When discussing possible arrangements that will promote the best interests of their children, parents are encouraged to explore a range of options. While FDR practitioners undertake an educative role about the developmental needs of children post-separation, they do not give legal advice or offer views about how courts may deal with cases if they proceeded to hearing. The focus of discussions between FDR practitioners and parents is on the well-being of their children. An emphasis is placed on parents working together to arrive at durable parenting arrangements that are developmentally appropriate and in their children's best interests.36 [36] Practitioners encourage parties to engage in constructive communication and promote cooperative parenting arrangements. For parents enmeshed in their dispute and experiencing difficulties communicating cooperatively, practitioners can assist parties to define the boundaries for their discussions, both during the mediation and in the future.37 [37] FDR practitioners will also explain to parties the procedural requirements that they need to fulfil to participate in mediation. They will be required to sign an agreement to mediate which contains an indemnity clause to cover practitioners and FRCs against any claims. Parties are also informed of their duties to provide full disclosure and to bring along all relevant information and documents to the mediation. The limits of confidentiality and admissibility38 [38] and the types of instances in which mediations may have to be terminated are highlighted. Issues of time-frame and any fees are also discussed. If support persons are to be involved, their roles are clarified. FDR practitioners canvass with parents the options they have in writing up final agreements, including the option of entering into parenting plans.39 [39] In addition, legal information about the impact of parenting plans is provided.40 [40] (2008) 19 ADRJ 104 at 109 At the conclusion of the mediation, FDR practitioners now have the additional responsibility of issuing a FDR certificate which sets out whether the parties made a "genuine effort" to negotiate.41 [41] In effect, practitioners are now required to make a "finding" as to whether parents genuinely tried to reach agreement. Some practitioners argue that this requirement creates a conflict of interest. Prior to the legislative amendments, they enjoyed an independent role as facilitators with their primary goals being to assist parents work towards arrangements in their children's best interests and to provide a voice for children in their parents' discussions. As such, practitioners considered that they were information givers, educators, rapport builders, facilitators, observers, communicators, interveners, reality testers and referrers. Subsequent to the amendments, practitioners now find themselves with an additional determinative role of being "assessors". Some would argue that this role
compromises their independence. Others would contend that reminding parents of the requirement to make a "genuine effort" will only assist them to take the process seriously and work towards resolution.42 [42] The role of family lawyers: Prior to referring clients to family relationship centres As FDR practitioners provide parties with comprehensive information about mediation, lawyers need only explain the process to their clients at a basic level. However, as clients will be expected to take an active role in the mediation, it will greatly assist if they arrive at FRCs fully informed. Lawyers can focus on providing legal and procedural advice and on preparing clients to actively participate in the negotiations.43 [43] To ensure that a client is prepared and can make a "genuine effort" to negotiate at the mediation, the key aspect of a lawyer's role is in providing: 1. legal advice as to the law governing parenting disputes, the extent of judicial discretion available and the potential range of outcomes if the case proceeds to court; 2. procedural information about the pre-filing dispute resolution requirements, the steps involved in taking the case to court, including information about time-frame and the level of commitment required to prepare court documents and provide evidence for a hearing; 3. a discussion with the client about the information to include in an opening statement, the duty of disclosure and guidance as to the information and documents that the client should organise and take to the mediation; 4. a discussion of concerns and interests and the various parenting options available to prepare the client to participate in interest-based negotiations, including options that will be developmentally appropriate for the children;44 [44] 5. reality-testing of the client's preferred legal position; 6. advice about the legal implications of the choice between working towards a consent order or a parenting plan; 7. information about any legal costs to date, the costs involved in the mediation (if any) and the further costs which would be incurred if the client decides to take the dispute to court; and 8. any relevant information to the FDR practitioner which may assist in the intake and mediation process. Lawyers can prepare their clients to participate in interest-based negotiations by discussing their legal positions and encouraging them to think beyond these to a consideration of their concerns and "interests".45 [45] They can also highlight the relevant social science research to assist clients to work towards child-focused parenting arrangements. For example, if a father's legal position is that he is seeking a half-time arrangement with his children, the indicators of successful shared care arrangements should be discussed in addition to whether he can make appropriate work and supervisory arrangements to manage half-time care.46 [46] The father's lawyer can also provide him with information about developmentally appropriate parenting arrangements, taking into account the children's ages, levels of maturity and
individual personalities.47 [47] In addition, when examining whether a shared care arrangement is suitable for the family, is a consideration of the current level of conflict between the parents.48 [48] Family lawyers can also help their clients to prepare negotiation plans. It can assist to think about what the potential best and worst possible outcomes of mediation could be and accordingly, what the client's negotiating bottom line should be.49 [49] For example, the best case scenario for the father mentioned above may be that the mother agrees to a shared care arrangement at mediation. The worst outcome may be that no agreement is reached and the father has to take the case to court. His bottom line will be a parenting arrangement that he can live with, taking into account a range of factors, including the potential legal and emotional costs, the time frame and the potential escalation of family conflict involved in taking the dispute to court. The father's initial position can be reality tested, for example, is shared care in the children's best interests and is it reasonably practical?50 [50] If there are any doubts or concerns, are there other arrangements that could address the father's underlying interests to maintain his parental role that could be discussed at mediation? Considering a range of possible options and outcomes prior to mediation can assist in ensuring that the client makes a "genuine effort" to negotiate. In our view, one example of where a client could possibly be assessed as not having made a "genuine effort" is where he or she enters mediation and then flatly refuses to budge from an initial and unrealistic position. Obviously this would also involve an assessment of the reasonableness of such a course of action in the circumstances but a FDR certificate stating that a "genuine effort" was not made may leave the client open to further delays or a costs order.51 [51] Lawyers have an obligation to explain this "genuine effort" concept, the range of possible FDR certificates and the potential implications of such certificates. Such a discussion can include information about the negative consequences of conflict on separating families and the benefits to children when parents can arrive at their own parenting agreements.52 [52] Information that clients can prepare for mediation In preparation for negotiations, the following list contains some information that a client may have to gather and take into the mediation, depending on the individual situation: • • • •
• • • • • •
information about and copies of any existing court orders or parenting plans; details of children's enrolment in educational institutions, fees, curriculum etc; dates of public and school holidays (including pupil free days) for the particular schools involved and special days, such as birthdays etc; proposed supervisory arrangements: for example, daycare centres and/or after school care: details of current fees and whether there are places available to meet the client's needs under proposals to be made at mediation; public transport timetables; issues of intra, inter, or overseas travel, passports, details of any concerns that children will not be returned; details of the cost of bus/train/air travel and, where relevant, the airline rules about children traveling alone when parents live in different cities, States or countries; information about hand-over procedures, possible appropriate contact supervisors, contact centres: locations, availability and costs; the roles of significant others, such as new partners, grandparents, step-siblings or step-parents; parental communication channels and time frame for changes to agreed plans, levels of flexibility between parents;
• •
•
• •
extra curricular activities attended by children or that they are wanting to attend in the near future; information about and copies of any relevant documents, if there any concerns about the physical or psychological health of the children or any special needs, such as learning difficulties; information about the parents' current and future working hours (for example, will the current employer agree to the client working the number of hours and with the flexibility required to carry out the client's proposed parenting arrangement?); information about holiday leave that the client can take from work; and where there are substance abuse or addiction issues: information about proposed drug testing, arrangements, regularly and costs.
Child inclusive mediation practice FRCs generally offer clients the option of a "child inclusive practice" model of mediation.53 [53] This allows children to be indirectly involved in the process: they are interviewed separately by a highly trained child consultant who then attends the parental mediation to provide the children's perspectives of the separation and proposed parenting arrangements. In practice, careful screening of the family initially occurs to ascertain whether this model will be appropriate. Parents attend both separate and joint sessions with the FDR practitioner who explains the child inclusive mediation model and provides them with resources setting out the benefits of the model.54 [54] A developmental history of the children is taken and the possible extent of their feedback discussed, together with strategies as to how the parents can effectively deal with the process so that there will be no negative consequences for their children. If child inclusive practice is considered safe and appropriate for the family in question, the children are then interviewed by the child consultant. Children may be seen either with siblings or alone, depending on their ages and developmental stages. The child consultant discusses with them what information from their sessions will be appropriate to provide back to their parents. The consultant will then attend the next mediation session with the FDR practitioner and parents to discuss this feedback. There can be follow-up sessions for both parents and children, where appropriate.55 [55] An initial evaluation of this mediation model, based on pilot programs, has been positive and indicates that child-inclusive practice can help to reduce animosity and improve the levels of co-operation between parents. It can also result in more developmentally appropriate parenting arrangements which are workable and durable. In practice, one of the implications of the model can be that parents will enter into parenting arrangements where they will both be more available to their children. Such a model can also lead to arrangements where fathers take on an increased level of involvement.56 [56] Despite the potential benefits, some FDR practitioners have expressed reservations about this mediation model. Although interviews with children are conducted by trained child consultants and are carefully paced so that any signs of trauma can be monitored, some practitioners are concerned that it places children in the middle of parental disputes. While FDR practitioners generally acknowledge the importance of their role as mediators in promoting the interests of children, some are fearful about the implications for children of expressing their feelings about current living arrangements and hopes for the future to their parents. Some practitioners fear that this may leave children open and vulnerable to parental criticism, which in turn may subject them to increased family conflict and further emotional stress.
Another contention is that, after children have been consulted, if their parents cannot reach agreement and the dispute proceeds to court, there is no firm rule that family courts have to follow the children's views.57 [57] When children's views are presented, judicial officers must consider them seriously, taking into account their ages and levels of maturity, although they have the discretion to depart from them, if to do so would be in the children's best interests.58 [58] Due to the rules of evidence and court procedure, there are also limited means by which children's views can currently be placed before family courts. One way is by the preparation of a family report where a social scientist interviews the children and parents.59 [59] This raises another dilemma with the use of child-inclusive practice: if children are interviewed for mediation at a FRC and then later for a family report, they have then been subjected to a series of interviews by different professionals.60 [60] It is clear, however, that the child-inclusive practice model can be highly beneficial when it assists parents to focus on their children's needs and perspectives.61 [61] For some parents, having an independent third person report to them the concerns and interests of their children can provide them with the motivation to change existing negative behaviours. For example, most children will report that they want the arguments and fighting between their parents to cease.62 [62] Feedback from children can also assist parents to fine tune existing parenting agreements or to make arrangements that will be more age appropriate, as well as individually and developmentally appropriate, for their children. Conclusion In some respects, the requirements for clients to obtain FDR certificates in parenting cases makes family law and dispute resolution practice far more complex. It obviously creates new roles and obligations for both sets of professionals when working with their clients. For lawyers, there are further steps to guide clients through, in assessing whether they should participate in mediation, making referrals to FRCs and in ensuring that FDR certificates are obtained and filed, when required. There are also further procedural steps involved when making court applications in assuring judicial officers that the requisite dispute resolution steps have been complied with or in convincing them to grant FDR certificate exemptions. For FDR practitioners, the additional requirement to issue certificates and act as assessors making determinations as to whether parties have made a "genuine effort" in negotiations creates a more onerous set of legislative obligations. It will be interesting to hear from practitioners as to how they perceive these new requirements to impact on their independence and ability to focus parents on co-operative communication and child-focused parenting arrangements. On a positive note, the requirements create further opportunities for both sets of professionals. For lawyers, an expanding area of practice is now non-adversarial practice, particularly in advising clients about dispute resolution processes and preparing them for mediation. For FDR practitioners, the amendments have significantly increased the importance of their role in the family law system. With the necessity to issue FDR certificates, dispute resolution practitioners now, in a sense, act as "gatekeepers" to family courts in parenting disputes.63 [63] It will take several years to assess the true impact of these legislative changes on family law and mediation practice and whether they have the desired positive effect on separating parties' levels of parental collaboration and their children's well-being into young adulthood. In the meantime, there is a greater opportunity for family lawyers and FDR practitioners to collaborate and encourage separating parents to focus on co-operative, post-separation parenting in the best interests of their children.
Footnotes * Donna Cooper (LLB, LLM) Lecturer, Faculty of Law, Queensland University of Technology; registered FDR practitioner. Mieke Brandon (BA, M Sc) registered FDR and national accredited practitioner. The authors would like to thank Federal Magistrate Jarrett, TracyLynne Geysen and Margaret Voight for their comments in relation to previous drafts of the article. 1 The amendments were to the Family Law Act 1975 (Cth) and were contained in the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) . There are some exceptions to this requirement, contained in Family Law Act 1975 (Cth), s 60I(5) and (9) that will be discussed in detail in this article. 2 Family Law Act 1975 (Cth), s 60I(1) and (8) . For a discussion of dispute resolution in family law subsequent to the amendments see Cooper D , "The Family Law Dispute Resolution Spectrum" (2007) 18 ADRJ 234 . 3 The federal government at the time stated that the amendments to the Family Law Act 1975 (Cth) "aim to bring about a cultural shift in how family separation is managed: away from litigation and towards cooperative parenting": Family Law Amendment (Shared Parental Responsibility) Bill 2006 (Cth) , Explanatory Memoranda. Previously under the Family Law Rules 2004 (Cth) parties were required to participate in dispute resolution; however, the requirements were not as onerous and negotiation via lawyers could satisfy the requirements. 4 This article highlights some concepts further explored in Cooper D and Brandon M , "How Can Family Lawyers Effectively Represent their Clients in Mediation and Conciliation Processes?" (2007) 21(3) Australian Journal of Family Law 288. 5 Family Law Act 1975 (Cth), s 60I(6)-(8) . 6 Family Law Act 1975 (Cth), s 10F . 7 This has been referred to as a "statutory deregulation of the market". See Altobelli T , "A Generational Change in Family Dispute Resolution in Australia" (2006) 17 ADRJ 140 at 144. 8 Family Law Act 1975 (Cth), s 10L(2)(b) confines arbitration to cases involving financial issues. 9 Family Law Act 1975 (Cth), s 10G sets out the definition of "family dispute resolution practitioner" (FDR practitioner). The FDR practitioner must be on the Dispute Resolution Register of the Commonwealth Attorney-General's Department. The requirements for a person to qualify for registration are set out in Family Law Regulations 1984 (Cth), reg 58 . 10 Registration status can be checked at the Family Dispute Resolution Register, Family Law Online, http://fdrregister.familyrelationships.gov.au/Search.aspx viewed 23 March 2008. 11 Family Law Act 1975 (Cth), s 60I(8)(b) . 12 Family Law Act 1975 (Cth), s 60I(8)(c) .
Family Law Act 1975 (Cth), s 60I(8)(a) . The steps that the mediator is required to complete to attempt to organise a session before a certificate can be issued are set out in Family Law Regulations 1984 (Cth), reg 62A(4) . 14 Family Law Act 1975 (Cth), s 60I(8)(aa) ; Family Law Regulations 1984 (Cth), reg 62 . 15 See Family Law Act 1975 (Cth), s 60I(5) and (9) . 16 See Family Law Act 1975 (Cth), s 60((9) . 17 Family Law Act 1975 (Cth), s 60I(9)(b) . 18 Family Law Act 1975 (Cth), s 60I(9)(e) ; Family Law Regulations 1984 (Cth), reg 62 . 19 Family Law Act 1975 (Cth), s 60I(9)(c) . 20 Available on the Family Court of Australia website, http://www.familycourt.gov.au/presence/connect/www/home/forms_fees/forms/alphabetic_fo rms/fcoa_form_affidavit_nonfiling_family_dispute_resolution_certificate viewed 23 March 2008. 21 The pro forma affidavit is strictly only required to be filed in applications seeking final orders. When seeking interim orders, a lawyer can choose to include the relevant information in the client's supporting affidavit; however, the pro forma affidavit sets out the necessary information clearly. 22 This information needs to be obtained from a counsellor or FDR practitioner and is then is set out on the form Acknowledgement – Information from a Family Counsellor or Family Dispute Resolution Practitioner, http://www.familycourt.gov.au/presence/connect/www/home/forms_fees/forms/alphabetic_fo rms/fcoa_form_acknowledgment_information viewed 23 March 2008. This form is not filed but provided to the judicial officer hearing the case. 23 Family Law Act 1975 (Cth), s 60J(2) . For a discussion of the advantages and disadvantages of the amendments for women, particularly those who have been victims of violence, see Field R and Brandon M , "A Conversation about the Introduction of Compulsory Family Dispute Resolution in Australia: Some Positive and Negative Issues for Women" (2007) 18 ADRJ 27 . 24 Family Law Act 1975 (Cth), s 60I(8) . See the note at the bottom of that section which sets out that the court can also consider making a costs order against the defaulting party. 25 Family Law Regulations 1984 (Cth), regs 62-63 . 26 In some instances interviews can be conducted with the parties together, eg when they are contemplating participating in child inclusive mediation. For information about the intake process see the Australian Government, Attorney-General's Department, Information for Family Dispute Resolution Providers, Screening and Assessment Framework (2006), http://www.ag.gov.au/fdrproviders viewed 23 March 2008.
27 Parents are provided with relevant resources, including information produced by the Child Support Agency and Relationships Australia. For example, the Australian Government, Child Support Agency booklet Getting Started or Dealing with Separation CD and relevant booklets: see http://www.csa.gov.au/repartner/down.htm viewed 23 March 2008. Relationships Australia also has a range of free booklets available: Women and Separation, Men and Separation, Share the Care and many other pamphlets and information sheets – see Relationships Australia, http://www.relationships.com.au/resources/publications viewed 23 March 2008. Clients are also provided with the phone number of the Family Relationships Online, Family Relationships Advice Line: see Family Relationships Online, http://www.familyrelationships.gov.au viewed 23 March 2008. 28 Family Law Regulations 1984 (Cth), reg 62(2) . 29 Family Law Act 1975 (Cth), s 60I(8)(aa) . 30 For a discussion of concerns for women with the compulsory dispute resolution requirements see Field R , "Using the Feminist Critique Of Mediation to Explore "the Good, the Bad and the Ugly" Implications for Women of the Introduction of Mandatory Family Dispute Resolution in Australia" (2006) 20 Australian Journal of Family Law 45. 31 There are many forms of family violence and it is expected that FDR practitioners have a thorough understanding of when mediation is and is not appropriate. For a discussion of family violence, the role of the mediator in assessing family violence and sample intake questions, see Fisher L and Brandon M , Mediating with Families: Making the Difference (Pearson Education, 2002) pp 226-234. 32 Such options can include other forms of technology where the parties do not meet face to face but the mediator must assess whether a process structured in such a way will be suitable as the fact that the parties will not be in the same room may not necessarily overcome any existing power imbalances. 33 Australian National Mediator Standards, Final Approval Standards and Final Practice Standards (2007), LEADR website, http://www.leadr.com.au viewed 23 March 2008. 34 Fisher and Brandon, n 31, pp 18-23 for a discussion of range of mediation approaches in family mediation. 35 A facilitative mediation process may often include some elements of adversarial and distributive negotiations, but the process is primarily based on interest-based negotiations. See Boulle L , Mediation: Principles, Process and Practice (LexisNexis Butterworths, 2005) pp 43-47 for a description of facilitative mediation. For a discussion of "interest-based negotiations", see Fisher R and Ury W , Getting to Yes: Negotiating an Agreement Without Giving In (Random House, London, 1999). 36 Kelly J , "Parents with Enduring Child Disputes" (2003) 9(1) Journal of Family Studies 51. 37 Emery R , Child Custody Alternatives Schedules (Children of All Ages) – by Parents' Divorce Style at Divorce Resolutions, Colorado Center for Divorce Mediation, http://www.coloradodivorcemediation.com/family/schedules.asp viewed 23 March 2008.
38 Family Law Act 1975 (Cth), ss 10H – 10J . The information that the FDR practitioner must provide to clients is set out in Family Law Regulations 1984 (Cth), reg 63 . 39 A legislative requirement pursuant to Family Law Act 1975 (Cth), s 63DA . 40 When making parenting orders, the court will have regard to the most recent parenting plan, provided that it is in the best interests of the child: Family Law Act 1975 (Cth), s 65DAB . 41 Family Law Act 1975 (Cth), s 60I(8) . 42 For a discussion of how "genuine effort" may be interpreted by the courts see Altobelli, n 7 at 148-149. See also Cooper and Brandon, n 4 at 298. 43 For a more detailed account of the lawyer's role, see Cooper and Brandon, n 4 at 295-302. 44 For information on developmentally appropriate parenting arrangements see, eg: Kelly J , "Developing Beneficial Parenting Plan Models for Children Following Separation and Divorce" (2005) 19(2) Journal of the American Academy of Matrimonial Lawyers, http://www.aaml.org/files/public/Kelly__Beneficial_Parenting_Plan_Models_for_Children.htm viewed 23 March 2008; Kelly J , "Child Custody Parenting Plan Options (for Children of School Age)" Divorce Resolutions: Colorado Center for Divorce Mediation, http://www.coloradodivorcemediation.com/family/parent_plans.asp viewed 23 March 2008; Emery, n 37; Sanders JD , "Age Appropriate Parenting Plans: Using Child Developmental Information" (2007) 21(3) American Journal of Family Law 67; Britton D , Developmental Needs of Children and Contact Regimes, Paper presented at Queensland Family Law Practitioners' Association Conference (2005). 45 Interests underlie parties' positions and stem from human needs, often based on values and beliefs. The parties' interests can consist of their hopes, fears, desires and aspirations being the issues that really matter and are most important for them to achieve in their mediation: Lewicki RJ , Barry B and Saunders DM , Essentials of Negotiation (4th ed, McGraw Hill/Irwin, 2007) pp 64-65. See also Spegel N , Rogers B and Buckley R , Negotiation: Theory and Techniques (Butterworths, 1998) pp 22-30. 46 For information about the indicators of successful shared care arrangements see, eg Neale B , Flowerdew J and Smart C , "Drifting Towards Shared Residence?" (2004) 17(2) Australian Family Lawyer 12; Smyth B (ed), Australian Institute of Family Studies, Parent-Child Contact and Post-Separation Parenting Arrangements, Report No 9 (2004), Ch 3, "Fifty-fifty care", http://www.aifs.gov.au/institute/pubs/resreport9/main.pdf viewed 23 March 2008. 47 Emery, n 37. Further helpful materials include the Child Support Agency publication Australian Government, Child Support Agency, Back on Track: Finding a way through separation and re-partnering, http://www.csa.gov.au/repartner/down.htm viewed 23 March 2008. 48 See, eg McIntosh J and Chisholm R , "Shared Care and Children's Best Interests in Conflicted Separation: A Cautionary Tale from Current Research" (2008) 20(1) Australian Family Lawyer 3. Papaleo V , Shared Parenting and the Developmental Needs of Children –
the Social Science Perspective, Paper presented at the Queensland Law Society, Symposium, Family Law Stream (2 March 2007). 49 This derives from the negotiation strategy set out in Fisher and Ury, n 35. Parties assess their BATNA (best alternative to a negotiated agreement) and their WATNA (worst alternative to a negotiated agreement) and other possible outcomes. Also discussed in Fisher and Brandon, n 31, pp 186, 196. 50 The indicators of "reasonable practicablity" are set out in Family Law Act 1975, s 65DAA(5) and include: the parents' geographic proximity, their capacity to communicate, the possible impact of such an arrangement on the children and whether it will be in their best interests to participate in an equal-time arrangement. 51 Family Law Act 1975 (Cth), s 60I(8) . 52 Papaleo, n 48; Smyth, n 46. 53 McIntosh J , Child Inclusion as a Principle and as Evidence-based Practice: Applications to Family Law Services and Related Sectors, Australian Family Relationships Clearinghouse, Resource Sheet No 1 of (2007), http://www.aifs.gov.au/afrc/pubs/resource/resource1/resource1.pdf viewed 23 March 2008. 54 McIntosh, n 53, p 6. 55 McIntosh, n 53, p 8. A wider application of the model is discussed in the article as it may also be useful in marital and pre-separation counselling, disability and adult mental health services, and foster/out-of-home care. 56 Australian Government, Attorney-General's Department, McIntosh JE and Long CM , Children beyond dispute – A prospective study of outcomes from child focused and child inclusive post-separation family dispute resolution, Final Report (2006), http://www.ag.gov.au/www/agd/agd.nsf/Page/Publications_ChildrenBeyondDisputeOctober2006 viewed 23 March 2008. See also McIntosh J , "Enduring Conflict in Parental Separation: Pathways of Impact on Child Development" (2003) 9(1) Journal of Family Studies 63. 57 Courts are required to make parenting decisions based on what would be in the children's best interests. Children's views are but one in a list of factors that the court must take into account when ascertaining best interests: Family Law Act 1975 (Cth), s 60CC(3)(a) . 58 H v W (1995) 126 FLR 159; [1995] FLC 92-598 . 59 A family report must be ordered by the court pursuant to s 62G of the Family Law Act 1975 (Cth) . Although judicial officers have a wide discretion as to when they can order reports, one can only be ordered where there are particular issues that can be clarified by a report. 60 Further concerns have been expressed that this model limits the issues considered relevant and consequently the time for parents to relate details of past behaviour, which can negatively impact on women who have been victims of violence. See Fehlberg B and Behrens J (with Kaspiew R), Australian Family Law (Oxford University Press, 2008) p 359.
61 There are resources available to assist practitioners engage in child-inclusive practice with parents, eg McIntosh J and Moloney L are the co-authors of a multimedia package consisting of a DVD, Dialogues with separated parents: Child focused dispute resolution and companion handbook, Creating child focused dialogues with separated parents : Australian Government Attorney-General's Department, Children in Focus (2006), http://www.childreninfocus.org/resources.html viewed 23 March 2008. 62 Entrenched conflict can result in parental alienation, where a child is being torn apart between allegedly "good" and "bad" parents and may end up estranged from one parent. For a discussion of Parental Alienation Syndrome (PAS), see Kelly J and Johnston J , "The Alienated Child: A Reformulation of Parental Alienation Syndrome" (2001) 39 Family Court Review 249 at 249-266. 63 The term "gatekeepers" derives from Commonwealth of Australia, Family Law Pathways Advisory Group, Out of the Maze: Pathways to the Future for Families Experiencing Separation: Report of the Family Law Pathways Advisory Group (2001) p 22.
