By Dr Andrew Bickerdike MAPS, Manager Client Services, Research and Training, Relationships Australia (Victoria)
While it is true that the Australian family law system has been in a state of continuous reform over the last three decades, the last few years have seen a level of reform that is unprecedented in pace, scope and content. Perhaps only the 1970’s introduction of no-fault divorce is comparable, but arguably the present changes are far more comprehensive and wide sweeping. Certainly the Government is heralding the reforms as significant, as expressed in a media release by the then Attorney-General, The Hon Philip Ruddock (Australian Government, 2005a):
The Government wants to bring about a cultural change in the way family breakdowns are handled. This $397.2 million package will give separating parents the support they need to sit down across the table and agree what is best for their children, rather than fighting in the courtroom.
If we define culture as the attitudes, beliefs, customs, practices and social behaviour of a particular group (Encarta, 2007), we can begin to grasp the scale of these reforms to the family law system. This is a bold attempt to change how people behave and manage themselves when travelling through one of the most difficult and distressing experiences of their lives. Of course, as psychologists we are positive and optimistic about efforts to change behaviour. We are also aware of the challenges inherent in effecting significant and enduring attitude and behaviour change in individuals, let alone in communities. The architects of this change have clearly seen the challenge and responded with a systemic and multifactorial approach.
The Family Law Act has been reformed (details are discussed in another article in this issue), court processes are being changed to make them less adversarial and more child-focused, and the child support system is being significantly changed. The practice of family dispute resolution (FDR) (formerly known as family mediation) is being massively enhanced – extending existing services and introducing new FDR services within an entirely new service system know as Family Relationship Centres (FRCs). At the same time, the method of training and accrediting FDR practitioners is being completely overhauled (discussed in the Executive Director’s Report in this issue). Substantial resources have also been provided to new affiliated services that will support the new FDR services. These include additional Children’s Contact Services (where parents in conflict can have a safe space to spend time with, and exchange children), counselling services, specialist family violence services, family relationship education services (including pre-marriage and family skills programs), parenting orders programs (to assist high conflict separating families), and specialist men’s services. In total, the funding for these initiatives amounts to 400 million dollars over three years. Most of the new services, including the new FRCs, will be provided by existing community-based non-government organisations that already have a long history of providing similar types of services within the community.
Before analysing how these reforms will seek to bring about the desired cultural change, it will help to first understand where they originated. In late 2003 the Australian Government House of Representatives Standing Committee on Family and Community Affairs released a report Every picture tells a story: Report on the Inquiry into Child Custody Arrangements in the Event of Family Separation. The report arose from an inquiry into child ‘custody’ arrangements in the event of family separation. This well-publicised inquiry attracted much public comment and drew submissions from 1700 individuals, groups and organisations with an interest in some aspect of the Committee’s terms of reference. The Committee made 29 recommendations for reform to the family law system. The Government’s response A New Family Law System: Government Response to Every Picture Tells a Story (2005b) was largely supportive of the report, concluding:
The Australian Government recognises the impact of family breakdown on Australian families, as well as the wider community. There is too much long term conflict and too many children growing up without the involvement of both their parents in their lives…. The government agrees a new approach to the family law system is needed – one that …helps parents agree on what is best for their children rather than fighting in the courtroom. (page 4)
This statement neatly captures many of the important motivations underpinning the reform process, and the elements of the then existing system that were judged to be dysfunctional. Three themes in particular are worth highlighting. Firstly, there was thought to be too much post-separation conflict occurring between estranged parents, conflict that was harmful to the parties involved, their children and the wider community. Secondly, it was thought that too many children of separated parents were growing up without the involvement of both parents in their lives, most often without fathers. Finally, and perhaps most controversially, much of the blame for the above was placed on the existing family law system itself. That is, the high level of post-separation conflict was thought to be in part caused or at least exacerbated by the existing legal processes designed to resolve the disputes. There was also the strong implication that the existing legal processes contributed to the absence of fathers in post-separation parenting by failing to promote shared parenting and exacerbating conflict, which in turn mitigated against cooperative post-separation parenting.
Although tempting, it is beyond the scope of this article to explore the veracity of these claimed causal links. There is no doubt that post-separation parental conflict is harmful to children (McIntosh, 2003). The research base is unequivocal in this regard. Protracted intense parental conflict, particularly when the conflict revolves around the children, has been linked to a wide variety of poor intrapsychic, educational, developmental and social outcomes (Kelly, 2003). There is also evidence that many children do not have regular contact with their fathers after separation. An Australian Institute of Family Studies survey of separated families found that 26 per cent of children saw their fathers less than once a year (Smyth, 2005). Many arguments were made to the House of Representatives Standing Committee that the legal system contributed to these outcomes and somehow condoned an 80/20 ‘Standard Orders’ for most cases. This means that in most cases, outcomes in and out of court reflected an approximate 80 per cent of ‘custody’ to the mother and 20 per cent of contact to the father (representing the common every second weekend and half the school holidays regime). Despite the absence of good empirical evidence to support these claims, the Committee recommended that action needed to be taken to break this perceived pattern.
While the conclusion that the legal system is contributing to the amount of post-separation conflict has some intuitive appeal, the evidence of this link is also scant. This paucity of causal evidence may well be due to a failure to test the hypothesis, on the premise that the link is self evident. Simplistically the argument goes something like this. In the adversarial family law system a dispute between two parties is resolved by each party going before a judge to argue why they and not their ‘opponent’ is right and should have a particular judgement made in their favour. In a sense they compete with each other, often with the assistance of a lawyer with expertise in the law and the strategies necessary to ‘win’ a case. Separating couples enter into this arena already harbouring anger and resentment as a consequence of their separation. These feelings are exacerbated by this need to compete with each other, to make accusations and representations against the other in order to fight for the outcome they want. Even those who do not end up in court are thought to come under the influence of this adversarial shadow. Simply seeking legal advice and perhaps initiating an exchange of legal letters risks escalating the conflict in a ‘tinder dry’ emotional climate.
This rather jaundiced view of the functioning of the legal system in family law is unfair on a number of fronts. Firstly, there are many couples whose conflict is so high and their circumstances so challenging that they need a highly interventionist legal solution. That is, they need a process whereby a team of experts can scrutinise their situation and make timely and enforceable decisions that take into account what is best for the children involved. Cases involving family violence and child abuse are a good example.
It also needs to be recognised that many lawyers act in a way to buffer their clients against the inflammatory nature of the adversarial system. Many family lawyers would argue that critics confuse ‘advocacy’ with ‘adversarialism’. They have a responsibility to advocate for their clients’ rights. The fact that this can on occasions inflame the other party and the conflict itself is a consequence of a system they are required to administer. Of course, as in any profession, there will be those who act inappropriately or unethically. The inappropriate lawyers may privilege their advocacy function above all else, at the expense of the wider family system (i.e. welfare of the children). They may not be aware how certain actions can inflame a fragile parental relationship and perhaps choose their tactics unwisely (not realising some cases require a total fire ban approach). These practitioners might be called the careless fire starters. In contrast the (thankfully rare) unethical lawyers act like arsonists, deliberately inflaming the conflict to serve their own goals. Unfortunately, both the careless and the complicit can have devastating effects upon cooperative post-separation parenting.
Regardless of whether the cause of ongoing conflict and absence of father involvement was due to the actions of lawyers or the courts or the entire legal system, it is clear that the main thrust of the family law reforms is to encourage parents in conflict to resolve their disputes with minimal involvement of the legal system, and certainly where possible, without involvement of the court system. This encouragement is to be provided primarily by requiring most separating parents to attempt FDR before they can attend court.¹
Community organisations have been providing FDR as an ‘alternative’ dispute resolution process for separating couples since the mid-1980s. FDR is a process where a highly skilled neutral or independent third party facilitates conflict resolution between separating parents. The practice of FDR has been extensively evaluated in Australia and overseas, and has proven itself to be an effective intervention able to provide parents with a safe process to derive their own outcomes that are workable and durable and take into account the unique needs of their family and children. In recent times Australian FDR practice has led the world in developing a number of innovative FDR models and practices to assist this client group. This includes developing and evaluating child inclusive practices (Moloney & McIntosh, 2004) and developing practices for working with some family violence-affected clients (Bickerdike & Bailey, 2005).
Separating parents will be able to access free FDR services at a new service nearby – their local Family Relationship Centre (FRC). The FRCs are arguably the centrepiece of the entire family law reform package. Sixty-five of these new Centres are to be established throughout the country over three years. The first 15 opened in July 2006, a further 25 opened in July 2007 and the final 25 are scheduled to open in July 2008. As well as consuming a major proportion of the new funding ($188.5 million), they are the primary active ingredient of the proposed cultural change. They are charged with the task of being the new gateway into the family law system – providing “information, advice, and dispute resolution services to families to help them reach agreement on parenting arrangements without the need to go to court. The centres will also be a doorway to other services families need and will assist families to access those services” (Australian Government, 2005b, p. 4). It is envisioned that parents
contemplating separation will choose to seek the assistance of their local FRC as the first step, rather than perhaps approaching a lawyer. In this way it is hoped that the inflammatory nature of the adversarial family law system will be tempered by initial contact with the FRC.
The FRC will be equipped to provide families with a variety of services and options. If they need FDR the FRC will be able to provide three hours of joint dispute resolution free of charge. In addition to assisting separating families the FRCs are required to
provide support to intact families by assisting couples experiencing relationship difficulties to access reconciliation counselling services, although the FRCs do not themselves provide counselling services. If they need other services such as pre-marriage education, financial counselling, housing assistance and family violence programs the FRC will assist them to access those services.
The strategy can be seen to have two pathways – a compulsory pathway and an invitational pathway. It is hoped that some of those in considerable conflict and on the way to court will be diverted from their adversarial course as a consequence of their compulsory attendance at FDR. When they attend FDR, their practitioner will assess their appropriateness for FDR and, if considered inappropriate (e.g. due to family violence), they will be allowed to proceed directly to court. If assessed as appropriate they will need to make a ‘genuine effort’ to participate in FDR before they can then proceed to court. The second pathway is more aligned to the cultural shift agenda. It is hoped that separating parents will make a deliberate choice to attend FDR, perhaps encouraged by the considerable marketing surrounding the FRC services, perhaps because they were referred to the FRC by other local services (GPs and psychologists) and possibly because they were attracted by the free FDR services on offer. As the new service system becomes more entrenched in the local community, it is hoped that the invitational route will become more dominant as families in conflict automatically turn to their local FRC for assistance.
There are a number of challenges facing this reform agenda. On a practical level, FDR practices will need to adapt from a predominantly voluntary to a largely mandated clientele, at least in the first few years while awaiting the cultural shift. This client group will have higher conflict, be less motivated and at times be recalcitrant. Early indications are that the FRCs are finding themselves the target of the anger and outrage of some of these clients – feelings that were formerly directed exclusively at the court. It will be interesting to see whether FDR can deliver its promise and divert a reasonable percentage of these cases away from court processes.
A related challenge will be maintaining the quality of FDR services. The sector is expanding at a very rapid rate and experienced practitioners will become a scarce resource. At the same time the work is becoming more difficult and the clients more challenging of the FDR process. The success of the reforms may well hinge on the ability to rapidly train up a skilled workforce to cope with the quantity and complexity of the work. A further challenge will be to ensure that family violence-affected clients are provided with safe, timely and effective services. At times this will mean that clients presenting for FDR will need to be assessed by a practitioner skilled in family violence and referred to other more appropriate services and processes. On other occasions it may be possible to proceed with a specialist form of FDR. Either way, the presentation of family violenceaffected cases will need to be properly and expertly dealt with within the system. While FRCs and other community FDR services are subject to rigorous performance frameworks to ensure quality standards of practice, it is not clear how private FDR practitioners will be held accountable for the quality of their work, particularly as it relates to family violence assessment.
Another challenge will be to manage the expectations. This is one of the most difficult arenas of human conflict and it will never be mastered. There will always be injustice, pain and suffering and sometimes to minimise the pain and suffering of children, injustice and distress will be felt by a parent. Not all children will be able to enjoy parents who share the responsibility of parenting and many parents will continue to be in conflict.
The final challenge to the new system will be whether the community and policy makers have sufficient patience. Cultural shifts of this scale take time. The adversarial approach is entrenched in our collective psyche. It is in our media, our stories and our myths. Unfortunately we usually view these stories with a voyeuristic curiosity and rarely do we see the pain and suffering of children brought on by the bitter conflict between their parents. What we had wasn’t working for them. If we give this time, perhaps making adjustment along the way if things need adapting, we just might create something better.
Australian Government (2003). Every Picture Tells a Story: Report on the Inquiry Into Child Custody Arrangements in the Event of Family Separation. Canberra: Commonwealth of Australia.
Australian Government (2005a). Attorney-General, The Hon Philip Ruddock, Media Release, 10th May 2005.
Australian Government (2005b). A new family law system: Government Response to ‘Every picture tells a story’. Canberra: Commonwealth of Australia.
Bickerdike, A., & Bailey, A. (2005). Family Violence and Family Mediation. DVIRC Quarterly, 1, 10-14.
Encarta (2007). http://encarta.msn.com/dictionary
Moloney L., & McIntosh, J. (2004). Child-Responsive Practices in Australian Family Law: Past Problems and Future Directions. Journal of Family Studies, 10, 71-77.
McIntosh, J. (2003). Enduring Conflict in Parental Separation: Pathways of Impact on Child Development. Journal of Family Studies, 9, 63-71.
Kelly. J. (2003). Changing Perspectives on Children’s Adjustment Following Divorce. Childhood, 10, 237-242.
Smyth, B. (2005). Time to rethink time? Family Matters, 71, 2-6.