Alternative dispute resolution is a means by which parties to a family law dispute can seek to resolve their dispute without proceeding to costly and timely litigation. Alternative dispute resolution can include processes such as family dispute resolution, mediation, arbitration and conciliation.
The Family Court Rules 2004 stipulate that '[b]efore starting a case, each prospective party to the case must comply with the pre-action procedures'. For financial cases, pre-action procedures can be conducted through dispute resolution, such as negotiation, conciliation, arbitration and counselling. For parenting cases, pre-action procedures are governed by section 60I of the Family Law Act 1975 (Family Law Act).
Mr Andrew Davies of the Australian Institute of Family Law Arbitrators and Mediators (AIFLAM) explained why pre-action procedures, such as mediation, are important:
That … has the real opportunity of trying to focus the mind, because, even if they don't settle all of the issues with the mediation, they generally will narrow the scope of the issues in dispute so that, instead of going to have a dispute about five matters, it might be only one. So we see it as being really important that the courts and the profession continue to proactively work at requiring parties to attend mediation wherever possible.
While the committee heard that for many parties, alternative dispute resolution is used as a way in which to control and harm the other party, evidence presented to the committee generally highlighted the success of these services. Indeed, the Attorney-General's Department (AGD) noted in its evidence that:
… measures that will take people away from the conflict and help them focus on the best interests of children, where children are involved, and on harm minimisation will help people get to a better position more quickly.
Most submitters and witnesses who discussed alternative dispute resolution processes with the committee did so in the context of the family dispute resolution (FDR) process. However, the committee also heard evidence about other forms of alternative dispute resolution.
This chapter examines the forms of alternative dispute resolution most commonly raised in evidence to the committee. First, this chapter will discuss FDR, including the FDR framework and suggested shortcomings of and improvements to FDR. This chapter will then move to a discussion of three other forms of alternative dispute resolution, namely: mediation, arbitration and conciliation. The chapter will conclude by briefly discussing some suggestions put to the committee about proposed forms of alternative dispute resolution that could be applied to the family law context.
Family dispute resolution
This section examines what is perhaps the most commonly utilised form of alternative dispute resolution in the family law context, FDR. The section begins by setting out the FDR framework, and will then move to a discussion of various shortcomings of and improvements to FDR raised with the committee over the course of the inquiry.
The family dispute resolution framework
The AGD provided background to the FDR process, the legal framework for which was introduced into the Family Law Act in 2006. Section 60I of the Family Law Act requires:
… that all persons who have a dispute about matters that may be dealt with by [a Part VII order] make a genuine effort to resolve that dispute by family dispute resolution before the Part VII order is applied for.
… covers applications for several different types of orders relating to children. The most common are applications for parenting orders; that is, an application asking a court to make orders about the parenting arrangements for a child.
The AGD identified the following steps in the FDR process under Part VII of the Family Law Act:
an intake and assessment process
a group session/s for parents to help them to focus on the needs of their children
individual interviews with each parent to help them prepare for the joint session, including to identify issues and options that could be considered in a parenting agreement
a joint session conducted face-to-face (with parents in the room), shuttle (with each parent in a separate room), or using technology such as a telephone, video, and/or online.
The AGD informed the committee that parenting agreements that are reached through FDR:
… may be in the form of a Parenting Plan and may deal with a range of issues, for example, the living arrangements for the child, how and when the child will communicate with family members, the arrangements for the handover of the child, and where the child will attend school.
However, as the Law Council of Australia (Law Council) observed in its submission, 'FDR may result in no agreement, no documentation of agreement reached, a Parenting Plan (as defined in the [Act]) or a Consent Order'.
Although mandated under the Family Law Act with respect to parenting orders, the cost to access FDR is dependent on the provider, 'with private providers setting their own fees'. Although a Family Court of Australia (Family Court) and Federal Circuit Court of Australia (Federal Circuit Court) fact sheet provides that it is possible to receive one hour of free FDR through Family Relationship Centres (FRCs) who will often charge after this free hour subject to a client's financial situation, as outlined in Chapter 11 this funding for FRCs is no longer available. As the Australian Law Reform Commission (ALRC) noted in its report, 'Government funded FRCs and other community organisations are now substantial providers of low cost FDR services for parenting arrangements'.
The ALRC outlined the increasing role of lawyers in FDR:
8.24 Originally, FRC operating frameworks were based on the exclusion of lawyers from the centres. This was relaxed in 2009 when the government funded a program for [Community Legal Centres (CLCs)] and FRCs to partner to offer advice, information, and, to a limited extent, legally assisted FDR.
8.25 Over time, closer relationships have developed between some FRCs, CLCs, and other legal assistance providers. Clients may be encouraged to seek legal advice to support an FDR process …
8.26 As the family law system has evolved, the application of FDR has become increasingly sophisticated, with the development of specialist models in a range of areas, such as the pilots for legally assisted and culturally appropriate dispute resolution in eight FRCs. These pilots are currently being evaluated.
Parties who have engaged in the FDR process under Part VII of the Family Law Act will receive a certificate, which must be provided together with an application to the court for a parenting order.
A certificate will not be required if an individual is seeking any of the following:
interim or procedural orders only (generally these are orders to operate until your case has a final hearing) unless you are applying for these orders at the same time as filing an Initiating Application (Family Law)
Hague Abduction Convention orders
property settlement only, even if you have a child/ren
an amended application (relating to a child that is the subject of the current application).
Further, even though parties are legally obligated to provide a Section 60I Certificate with an application to the court for a parenting order, a certificate will not be required if a party is granted an exemption for the following reasons:
if the Court is satisfied that there are reasonable grounds to believe that:
there has been child abuse and/or family violence by a party
there is a risk of family violence by a party, and/or
there is a risk of child abuse if there were to be a delay in applying to the Court
where a party is unable to participate effectively in family dispute resolution (for example, due to an incapacity to do so or physical remoteness from a family dispute resolution provider)
if [the] application relates to an alleged contravention of an existing order that was made within the last 12 months, and there are reasonable grounds to believe that the person who has allegedly contravened the order has behaved in a way that shows a serious disregard for his or her obligations under that order.
FDR is conducted by an accredited FDR Practitioner (FDRP), who is subject to a competency based accreditation scheme under the Family Law (Family Dispute Resolution Practitioners) Regulations 2008. The AGD provided the following background to this scheme:
The aim of the scheme is to ensure nationally consistent standards for FDR practitioners, including competency in screening and assessing families for family violence and child abuse. Under the scheme, FDR practitioners are required to meet certain obligations including maintaining a suitable complaints mechanism and undertaking ongoing professional development in areas relevant to FDR. If FDR practitioners breach the required obligations under the Regulations, their accreditation may be suspended or cancelled or a condition may be imposed on their accreditation.
By applying national standards to FDR practitioners, the accreditation system supports the requirement, under section 60I the Act for parties to attempt FDR with an accredited FDR practitioner before filing an application for an order in relation to a child under Part VII of the Act.
There was little evidence provided to the committee that examined this accreditation scheme in great detail—instead, evidence largely focussed on the FDR framework and FDRPs. However, in its submission, National Legal Aid (NLA)—the peak body for Legal Aid Commissions (LACs)—did note that the ALRC 'made six recommendations which could be expected to improve the performance and monitoring of professionals involved in family law proceedings', including in those professionals practicing FDR, and expressed support of these recommendations. The NLA also stated that 'any accreditation must address adequate screening for, and understanding about, the dynamics of family violence which also apply frequently in property law matters'.
The following section will look at some suggested improvements to the FDR framework that were consistently highlighted in evidence to the committee.
Improving the family dispute resolution framework
Submitters recognised the success of FDR as a means to resolve family disputes in a non-adversarial, timely and cost-effective manner.
The Australian Institute of Family Studies (AIFS), which has conducted research on the effectiveness of FDR, noted in its submission that 'FDR is the most commonly used formal mechanism for resolution of parenting arrangements' and stated that its research shows that:
… since the 2006 reforms, FDR has become an increasingly effective mechanism for resolving parenting arrangements. Of the three formal pathways – FDR, lawyers and courts – FDR elicits the most positive evaluations from parents. Between the three formal pathways, the system should, where safe and appropriate to do so, continue to facilitate families to access FDR and mediation options where support is required to resolve their post-separation arrangements.
AIFS further informed the committee that:
… research suggests the need for a system that is trauma-informed, child inclusive and holistic, and that facilitates access to support services and dispute resolution options that secure the safety and best interests of children as well as the safety of their parents.
Although the committee was presented with evidence that acknowledged the success of FDR since its introduction in 2006, the committee also heard that the FDR framework could be improved.
Extending mandatory dispute resolution to property matters
For example, there was broad support for extending the application of FDR to property disputes. Centacare Family & Relationship Services (Centacare) suggested to the committee that '[t]he introduction of compulsory FDR in property matters is a necessary first step to divert the majority of property matters from litigation'.
Relationships Australia expressed its support for 'further development and funding of FDR as a proven means of diverting people from court' by introducing mandatory pre-filing mediation for property matters. Relationships Australia noted that it 'regularly sees successful parenting plan undermined by a later, combatively conducted, property dispute'.
The Association of Family and Conciliation Courts, Australian Chapter (AFCC) advocated for an expansion of FDR on the basis that 'the best way to reduce the legal fees associated with litigation is to assist parties to reach early resolution to their matters'. The AFCC noted that:
… amendments to the Family Law Act that mandate parties to comply with the requirements of section 60I of the Family Law Act (or similar) prior to filing applications for a division of property and/or spousal maintenance would greatly assist in early resolution of matters and, in turn, reduce the financial cost to parties.
It also advocated for the introduction of a triage system:
… designed to quickly identify the needs of clients and thereafter to have the ability to streamline matters into specialised lists and programs suited to their needs, including to highly specialised dispute resolution services designed to support families where family violence is a feature.
The AFCC further suggested that:
Legal Aid commissions, might, with further funding, establish panels of private practitioners who are able to offer 'un-bundled' legal services to parties involved in small property matters, both in a representative capacity and in the capacity as a family dispute resolution facilitator.
However, in contrast, the Law Council did not support this view:
… the Law Council suggests that making FDR compulsory in all financial disputes is likely to have unintended consequences which are contrary to any overarching goal of reducing costs and minimising conflict. It notes the comparison made between the use of mediation in parenting and financial cases ... The Law Council suggests that such comparisons are misleading and do not take account of the significant differences in the nature of dispute resolution for parenting versus financial disputes.
In its submission, Better Place Australia advised that the parties who have used FDR to agree to a property settlement will often go to lawyers to have the agreement drawn up and that the agreed settlement will fall apart 'for a variety of reasons'. They therefore supported a recommendation that property plans be drawn up by FDRPs, noting that 'this would address a major concern of staff that settlements are not legally binding in financial FDR'. It would also reduce the risk of settlements falling apart and:
… would be ideally suited for low value cases without significant legal complexity. The property plan would be prepared by the FDRP and signed by the two parties to document the agreed settlement. It should cover both property and spousal maintenance issues. The [ALRC] proposed Family Law Commission could be engaged to draft some simple pro forma property plans recommended for use by FDRPs.
Mallee Family Care similarly expressed its support for consideration to be given to:
… strengthening the outcomes of FDR by allowing for agreements reached during that process to be binding, thus reducing the need for court attendance and prolong resolution of circumstances where parties must wait for a Circuit Court Date which in reality is often many months away.
In its report, the ALRC made a number of recommendations that went to expanding the application of FDR, including in respect to property disputes. The ALRC recommended amending the Family Law Act to:
require that parties take genuine steps to attempt to resolve their property and financial matters prior to filing an application for court orders; and
specify that a court must not hear an application unless the parties have lodged a genuine steps statement.
Cost implications for failure to make a genuine effort to resolve a matter
The ALRC also recommended that '[a] failure to make a genuine effort to resolve a matter should have costs consequences'.
The Law Council informed the committee that it agreed with this ALRC recommendation, subject to the following:
… that 'genuine steps' be clearly defined in the [Act] and make express reference to processes other than FDR/mediation which will address the proposed (although unclear) costs consequences ... Amendments to the terms of section 60I Certificates will also be required (and consideration of where those requirements will be addressed given the current Part VII context of section 60I).
It is suggested that the [Act] clarify whether a 'genuine steps document' is able to be lodged by one party without the consent or involvement of the other so as to address residual concerns that vulnerable parties will be at risk of exploitation and increased costs ...
The NLA also supported the ALRC's Recommendation 21, but expressed concern that the genuine steps requirement 'will add an extra layer in proceedings without necessarily having achieved its stated intent' and queried how it could be 'evidenced'.
Legally-assisted dispute resolution
In its submission, Engender Equity called for more FDR Conferences (FDRC) that are offered through LACs to be funded, explaining that '[i]nvolving solicitors can be productive when there is a power imbalance, particularly in matters where there is family violence'. Engender Equity submitted that additional funding would make FDRCs available 'to parties who are not legally aided to assist in matters avoiding Court'.
The NLA outlined why legally assisted family dispute resolution is important:
Legally assisted FDR represents a legally informed, supported, timely and cost-effective alternative for many matters currently being dealt with in the court system, potentially reducing delays for parties and at the courts. For LAC legally assisted FDR to be available, one party is generally required to qualify for legal aid. All LACs have screening, intake, and referral processes to ensure triaging of matters to appropriate FDR and other services.
The NLA suggested that '[o]ptions to reduce financial impacts are founded in timely appropriate resolution and final settlement', stating that such options could include:
Funding to relax LAC means tests so as to increase legal assistance: this would support the expansion of Legally Assisted Family Dispute Resolution (LAFDR) and reduce self-representation and increase early resolution rates.
The NLA also recommended that family dispute resolution be conducted by lawyers with family law property experience.
Many submitters supported the expansion of LAFDR. For example, Better Place Australia similarly recommended a 'greater investment' in LAFDRs, which it described as 'an effective alternative for complex disputes and provides legal advice to each party'.
One of NLA's constituent bodies, Victoria Legal Aid, also expressed its support for 'expanding access to legally assisted FDR for families' including in respect of 'culturally-safe and specific services for Aboriginal and Torres Strait Islander families'.
The Victoria Legal Aid made a number of recommendations in respect of FDR, including advocating for using legally assisted FDR at all stages of disputes, noting that although most FDR may be effective and appropriate without the use of lawyers, a legally-assisted model which is 'supported by case management for clients and mediation by experienced chairpersons' could lead to the resolution of more disputes outside of court. This would apply to parties who are screened out of non-legally assisted FDR, including 'parents who have been victims of family violence or where other risk factors have been identified but cannot be mitigated by a non-legally assisted FDR service provider'.
The Victoria Legal Aid further recommended 'ongoing and sustainable funding for the Family Advocacy and Support Services' at the family courts and in regional circuit locations, and increasing children's participation in FDR through children meeting with a child consultant where appropriate, so that they can express their views, wishes and concerns.
The use of family dispute resolution in cases of domestic violence
A common theme in the evidence to the committee was concern about the use of FDR where there had been domestic or family violence. For example, Centacare informed the committee that:
In many cases, when there is family violence and abuse the standard FDR process is not safe or appropriate. Instead, the introduction of FDR processes that are better suited to the needs of families who have experienced and/or are continuing to experience family violence are required. For example, when there is a current Protection Order, families should be able to bypass standard FDR processes and divert to specialist FDR services.
The Australian Brotherhood of Fathers (ABF) suggested in its submission that the legal industry had acknowledged the use of the exclusion of parties subject to domestic violence from FDR as a way to 'exploit' the Family Law Act, such that 'the Family Dispute Resolution/Mediation process is completely bypassed due to Domestic Violence allegations'. The ABF further explained:
The s.60I (9)(b) Family Law Act exception is to broadly expressed and all to readily activated in no-one's interest other than the legal practitioners. We feel that except where the impact of violence is severe, FDR is not only preferred by the parties, but it is in the best interests of all, including the children. s 60I certificates should be issued only if it is clear that mediation options have been exhausted or if both sides agree to continue to negotiate via a collaborative process.
We believe that Family Dispute resolution Practitioners too readily facilitate the exception to FDR. When Family Dispute Resolution Practitioners issue a Section 60I Certificate, they need to feel safe enough to be honest with regard to whether a client has indeed made a genuine effort or not. It is well acknowledged that Family Dispute Resolution Practitioners avoid using the 'party or parties did not make a genuine effort' Section 60I Certificate, due to the harassment that can ensue from either the client, or the client's Family Legal practitioners in the aftermath.
The Benevolent Society was one of the organisations that did consider that FDR was an 'inappropriate' means by which to resolve disputes 'where domestic and family violence is present', owing to the fact that 'it can further increase risk of violence to victim survivors and their children'. However, it did express support for 'a national legally assisted family dispute resolution program' which is 'appropriate for domestic and family violence cases (property and parenting)' and 'is supported by specialist domestic and family violence and trauma informed lawyers and family dispute resolution practitioners'. It also expressed its support for the following:
a mediation model with specialist domestic and family violence and trauma informed lawyers and social workers based on the 2012 Co‑ordinated Family Dispute Resolution pilot program; and
culturally tailored models of family dispute resolution which are co designed and led by Aboriginal and Torres Strait Islander communities and organisations and migrant and refugee communities and organisations.
Australia's National Research Organisation for Women's Safety (ANROWS) suggested that there is a question over whether 'FDR can and should be provided in the context of family violence and other challenging situations', further stating that:
Without clear legislative guidance, FDRPs are forced to make those decisions for complex needs clients who lack the financial means to pursue a court-based outcome, on a case-by-case or service-by-service basis.
In its submission, ANROWS recommended reforming the FDR framework such that:
… there is a clear pathway for complex needs s60I certificate holders who lack the financial means to pursue a court-based outcome, ensuring appropriate guidance for FDRPs working with these clients toward the resolution of their disputes.
Relationships Australia submitted that families who experience family violence should not be excluded from 'the simplified pathway', explaining that:
Exclusion would be problematic because a streamlined pathway could benefit those suffering from family violence by minimising their exposure to protracted and harmful conventional court processes.
The net result of this kind of reform should not be that vulnerable people of limited means are excluded from less expensive, faster and simpler mechanisms.
Indeed, Women's Legal Service Victoria recommended expanding the existing models of LAFDR in family violence matters, observing that, 'with the support of trauma-informed mediators and lawyers, potential power imbalances between parties can be addressed', and noting that '[f]amily violence cases can be safely and effectively … supported in the mediation process'.
Women's Legal Service Victoria specifically recommended:
The Australian Government should expand existing models of [LAFDR] in family violence matters.
The Australian Government resource [LACs] to broaden LAFDR availability for priority clients. This would enable [access to] existing models of LAFDR, with better outcomes for the most vulnerable.
A nationally consistent risk assessment framework should apply to all LAFDR models to ensure that safety risks are effectively identified and managed throughout the process.
Many other organisations working in the social and legal support sectors also advocated for the availability of LAFDR for victims of family, domestic and sexual violence. For example, Peninsula Community Legal Centre submitted that 'trauma informed legally assisted mediation/conciliation services … can be enormously beneficial for those clients experiencing family violence or abuse' for a variety of reasons, including:
Safety of victims, and hence their ability to participate in mediation is improved;
Victims can participate to the extent they feel comfortable, with the lawyer's role varying to accommodate the client's capacities during the FDR session;
The presence of legally trained personnel formalises proceedings and tends to limit power imbalances and entrenched methods of intimidation;
Unrealistic expectations can be moderated with immediately available legal advice and hence legally represented FDR 'educates' participants;
Agreed parenting arrangements are more likely to approximate the form and content of a judge made order, and are therefore more likely to be enforceable if reduced to consent orders.
CASA Forum – Victorian Centres Against Sexual Assault noted that '[w]here victim-survivors of family violence and sexual assault wish to engage in alternative dispute resolution processes, they need to be supported to access this with affordable legal assistance', and recommended 'the development of effective practice guidelines for providers of FDR services':
In particular we submit that these guidelines should include advice about the need for highly skilled professionals who understand the social context and dynamics of family violence and intra-familial sexual assault; barriers to safety; perpetrator tactics of coercion and control; patterns of grooming of children and young people; and high-level skills in identifying risk and safety concerns.
Ms Zoe Rathus AM, Dr Helena Menih, Dr Samantha Jeffries and Professor Rachael Field similarly recommended training of FDRPs, as well as family report writers, judges, lawyers and other professionals in the family law system on the issue of 'domestic and family violence that encompasses complex issues such as the clash of societal and legal expectations for victim mothers'.
Indigenous and culturally and linguistically diverse clients
The committee also heard that FDR could be better suited to the needs of culturally and linguistically diverse communities. For example, Relationships Australia Northern Territory (RANT), recognised the challenge in 'finding a way to engage with people in more remote regions to provide family law services, particularly Indigenous people who tend to rely on outreach services'. RANT outlined the difficulties faced by indigenous clients in remote communities of the Northern Territory (NT):
Likely barriers to using services is that indigenous clients live in isolated areas with financial and transport constraints that prevent them using mediation services based in larger centres. They may lack literacy and find it difficult dealing with bureaucratic systems and have a natural reticence and distrust dealing with government agencies, particularly given historic and current experiences of children being removed from indigenous families. It is important to note the unique needs in remote areas of the NT where RANT has found the most effective way to connect with indigenous people in communities is to involve its [Aboriginal and Islander Cultural Advisors (AICAs)].
The RANT's submission focused on how AICAs interact with the FDR framework in a way which assists indigenous clients who have family law disputes:
AICAs do the groundwork in connecting clients with Legally and Culturally Assisted mediation and can assist indigenous clients at every step of the process. They deliver Straight Talk developed at RANT which focuses on intergenerational and complex trauma and how it affects behavior and has caused communities to normalise violence. Straight Talk works in with Aboriginal Building Connections which is a program that further highlights the detrimental effects of children living with parental conflict and prepares the way for family dispute resolution services. All the AICA programs involve a respectful process about capacity building and reconnecting indigenous people with their cultural knowledge and skills.
In its submission, AGD acknowledged the ALRC suggestion that it 'support the further development of FDR and [Legally Assisted Dispute Resolution (LADR)]' by working with 'relevant stakeholders' such as 'FDR/LADR providers and user groups (including Aboriginal Controlled Community Organisations, [culturally and linguistically diverse (CALD)] and [LGBTIQ] groups)'. AGD informed the committee that it 'is conducting a pilot of LADR for CALD families and Aboriginal and Torres Strait Islander families experiencing family violence which is currently being evaluated'.
The remainder of this chapter examines other forms of alternative dispute resolution that may be more appropriate than FDR for resolving disputes. For example, the Australian Dispute Resolution Advisory Council (ADRAC) suggested that '[s]mall property matters are often suitable for the close attention of small claims arbitration, mediation or conciliation'.
This section examines the use of mediation in the resolution of family law disputes. As with FDR, the committee heard that mediation was another way in which to resolve disputes quickly, at a low cost and without proceeding to litigation. Mediation can be conducted by a private organisation, or by the courts and can cover both parenting and property matters.
In its submission, AIFLAM stated that its members:
… suggest that the various forms of family dispute resolution options are effective in resolving matters or at least reducing issues and so reducing the costs and delays associated with going to Court.
While FDR was only introduced in the Family Law Act in 2006, mediation has long been employed by parties to family law disputes. For example, Relationships Australia informed the committee that it has offered mediation services since 1984 and described how the 2006 changes to the Family Law Act changed the nature of its work:
With the 2006 reforms, the focus shifted to parenting matters and funding constraints have limited the offerings in property and finance mediation. These reforms precluded [Family Relationship Centres (FRCs)] from offering property mediation in isolation from a parenting dispute. Accordingly, FRCs operated by Relationships Australia do not offer property mediation at all. Elsewhere, property mediations are offered by Relationships Australia as a fee-paying service under separate FDR funding. Clients pay a sliding hourly rate based on income and are advised to seek legal advice.
Relationships Australia further noted that:
International literature suggests that financial outcomes and property settlements are not significantly different when reached through mediation as opposed to litigation, but that mediation enhances the perceived fairness and satisfaction of the parties, increasing compliance with settlements and decreasing the likelihood of further litigation. Such findings seem to relate to degree of perceived control over outcomes.
The committee also heard about the success of various mediation pilot programs. For example, the Family Court of Western Australia (FCWA) discussed a mediation pilot it is currently trialling 'as a measure to assist parties to reach a final resolution of their family law proceedings without the need to proceed to a defended trial'. The mediation pilot is available 'to parties involved in parenting and/or financial proceedings, and particularly for cases involving one or more self-represented litigants'. One of the reasons that this pilot program was introduced was that, '[d]ue to resourcing constraints, for many years the FCWA has been unable to offer many, if any, internal mediation services in parenting cases'.
The one-day, confidential mediation is conducted by a registrar at the FWCA and its success to date has been notable:
Aside from the benefits to those parties in the pilot who reached a partial or total resolution of their family law matter, the pilot has also benefitted the FCWA greatly in terms of savings in judicial time. The total estimated hearing time for trial for the 120 cases in the pilot, before mediation took place, was 275 days. As a result of the mediation process, the estimated hearing time was reduced to 128 days. This amounted to a saving of 147 days of judicial time to hear the trials that otherwise would have proceeded (not including preparation time and judgment writing time).
The AIFLAM discussed this pilot in its submission, informing the committee that the last five years has seen a significant take‑up of mediation as a principal means of assisting Western Australian parties in family law disputes reach resolutions quickly both on parenting and property. The AIFLAM further noted that:
The Court strongly supports the referral of matters to mediation at an early stage of any court proceedings and the family lawyer culture has now developed to the point that mediation is part of the pre-action procedures. Whilst no statistics are readily available, anecdotally settlements of matters through mediation are high.
The AIFLAM suggested that there had also been a move by judges of the Federal Circuit Court and the Family Court in other states to refer property matters out for private mediation:
In the last few years the South Australian Federal Circuit Court Judges and Family Court Judges have developed a policy of referring out all property matters to private mediation where the pool exceeds around $300,000.
Whilst there is no formal Practice Direction, the Judges of the Federal Circuit Court sitting at Melbourne take the view that all matters with a combined property and superannuation pool over $500,000 must go to private mediation.
The Aboriginal Legal Service of Western Australia Limited (ALSWA) discussed an earlier successful pilot program in its submission to the committee. The Coordinated Family Dispute Resolution (CFDR) pilot was conducted in 2012–13 at five sites including Perth, and was described by ALSWA as 'an example of a sophisticated mediation model'. ALSWA suggested that this pilot could be rolled out across Australia, and described how it worked in Western Australia (WA):
The model applied to parenting cases involving family violence and involved extensive screening by Legal Aid WA's mediation unit, with each party being allocated a clinical case worker. If both parties were then willing to negotiate, each would work independently with their clinical case worker to positively resolve the violence issues, and then work towards attending multiple conferences (with additional clinical support) to try to finally resolve past issues around family violence and reach agreements about their children.
The AGD outlined two mediation reform measures that the Australian Government is currently funding:
Increased property mediation
$13 million of new on-going funding provided from 1 July 2019 for Family Relationship Centres to undertake family law property mediation.
These mediation services will support families to reach agreement on their property disputes through mediation, helping them recover financially more quickly after separation.
Legally-assisted property mediation pilot
$10.3 million provided over three years for [LACs] in each state and territory to conduct a two year trial of lawyer-assisted property mediation for matters with a property pool of up to $500,000, excluding debt. The pilot will run from January 2020 – December 2021.
This trial will support separating families who require legal advice to mediate and reach agreement on a property settlement without going to court.
Earlier in the report, the committee discussed the Government's funding support for a two year trial of lawyer-assisted mediation in family law small property disputes and for a one year small property claims court pilot.
However, the committee heard that there should be more mediation for funding of different models of mediation that 'prioritise safety, that can provide higher levels of support for some families so that you can divert those away from the court'.
Training for mediators
Another issue raised with the committee, as with FDR, was the lack of training mediators had on the diverse backgrounds and needs of clients who use their services. For example, Rainbow Families Victoria referred to the experience of a number of LGBTIQ, gender diverse and non-binary clients who felt that mediators did not have the requisite legal knowledge to work with them, and recommended:
… the development of pre-service education and training for anyone considering a role in counselling, mediation, dispute resolution, family therapy, child psychology and undertaking any course leading to legal role pertaining to family law, to be required to take compulsory subjects or modules on rainbow families and the LGBTIQ, gender diverse and non‑binary parenting communities in Australia.
Notably, the Mediator Standards Board (MSB) also recommended increased training for mediators pursuant to the National Mediator Accreditation System (NMAS):
… the training and assessment process required under Part 2, Sections 2.3 and 2.4 of the NMAS should be the basis for any specialised family dispute resolution practice and processes. NMAS Accreditation ensures that practitioners have the process, skills and attitude required for effective dispute resolution. Maintaining NMAS accreditation requires that practitioners remain committed to continued and current education and experience. The unique complexities of mediating in the family law context require further specialist training and ongoing professional development. However, the MSB would argue that NMAS training is the essential foundation training and that NMAS accreditation should underpin the additional specialist FDR training that will be required.
On the other hand, the committee also received evidence from Professor Patrick Parkinson AM that training for mediators was adequate:
… mediation training is quite thorough and organisations engage in ongoing professional development, so I would expect the needs of specific groups in the community for whom accessibility is a problem to be addressed in that training. Beyond this, one of the principles in establishing the FRCs was to 'let a thousand flowers bloom'. That is, the FRCs were given specific guidelines and performance indicators, but within this framework they were encouraged to adapt the model to the specific needs of the communities they serve.
The AGD discussed how arbitration is used by parties to family law disputes:
Arbitration can allow a matter to be resolved by an impartial adjudicator (usually a family lawyer), and the resulting arbitral award can be registered as if it were an order of the court on the consent of both parties. Currently, arbitration is only used in the family law system to resolve property matters and can be undertaken through private agreement between the parties or by referral from a court. While arbitration is usually cheaper than going to court, the cost of private arbitration can be prohibitive for some parties.
In its report, the ALRC considered that arbitration was 'an underutilised process in family law' and made a number of recommendations that applied to arbitration. It provided background on how arbitration came to be used in the family law context:
When arbitration was introduced into the Family Law Act in 1991, the court was given power to order parties to participate in arbitration irrespective of their consent. However, these provisions were never used because the requisite regulations and rules were not introduced. In 2000, legislative amendments removed the power to order non-consensual arbitration in part due to concerns about the constitutional validity of such a power in light of a decision of the High Court of Australia.
One of the ALRC's recommendations was that:
The Family Law Act 1975 (Cth) and the Child Support (Assessment) Act 1989 (Cth) should be amended to increase the scope of matters which may be arbitrated, whether or not upon referral from a court. Those matters should include all financial issues, including child maintenance and child support, subject to limitations. Appropriate occasions for arbitration would not include disputes:
under ss 79A [setting aside of orders altering property interests] or 90SN [varying and setting aside orders altering property interests] of the Family Law Act 1975 (Cth) (subject to limitations); and
in which a litigation guardian has been appointed.
The Law Council expressed its support for this recommendation as it relates to 'child support matters', such as 'all financial issues, including child maintenance and child support, subject to limitations', noting that:
Parties to child support agreements may be in disagreement about the interpretation and effect of a child support agreement or whether it is indeed binding. In those situations, rather than issuing proceedings in the [Federal Circuit Court], they could avail themselves of the advantages of arbitration.
The NLA agreed with the ALRC's view that arbitration would be inappropriate in children's matters, and further stated that it is 'generally not supportive of arbitration for children's matters, but is supportive of arbitration being available in property division matters'.
While ADRAC did not refer to the use of arbitration in children's matters, it did note that this form of dispute resolution 'has real prospects in the family field' and identified the following reasons:
It empowers those families who are unable to reach an amicable decision, and provides flexibility for them to decide who, how and when they will have a decision imposed upon them;
It gives scope to those persons who would prefer an outcome decided by a trustworthy third party;
It gives scope to those persons who wish to tell their story, hear a former partner tell their story or, in general terms, have a hearing with or without the costs of affidavit preparation;
The cost comparisons between an essentially oral short version of hearing and a full blown, adversarial document and affidavit-based contest if presented to the parties, is likely to be persuasive;
It preserves privacy in ways that are not available in court hearings; and
It retains the flexibility to choose whether or not participants require the services of an advocate in this process.
The Family Law Reform Coalition recommended that arbitration should be used far more broadly than it is currently used, including with respect to childcare arrangements:
If childcare arrangements cannot be resolved within a health-focused environment (including such initiatives as Medicare-supported counselling/coaching & family care), families should be referred to an enhanced conciliation system and, only where necessary, progress into a new, mandatory arbitration process. These systems should not be considered 'alternatives' to the family law system but, rather, the primary mechanisms or interventions for resolving family separations with family courts truly a last resort.
For families unable to reach a mutual agreement, arbitration should create, and be responsible for implementing, binding orders that ensure children maintain and develop positive relationships with both of their parents, and all who care for them, until the arbitration process is complete or until/unless one or both parents is proven unfit. Arbitration decisions should be binding, and this relatively swift, cost-effective process should be publicly funded. Decisions made during arbitration should be appealable to a federal court (i.e. the Family Court of Australia) at which point litigants should generally be required to fund their litigation.
For Kids Sake also recommended introducing 'a new system of arbitration for both children's and financial matters'.
However, AGD noted that 'there are a range of sensitivities in relation to arbitration of children's matters that require further consideration', such as:
… obligations under the United Nations Convention on the Rights of the Child for the state to remain involved in decisions concerning children; constitutional considerations when conferring functions on a non-judicial body; limitations on what a parent (rather than a court) can authorise to be arbitrated; how family reports and other professional services would be ordered and considered in an arbitral model; and the competencies and accountabilities of arbitrators.
ADRAC identified conciliation as an underutilised process 'that is likely to be of benefit in the family field'. ADRAC describes conciliation as:
… a dispute resolution process conducted in the shadow of a determinative process and in accordance with particular considerations that bind the parties and the conciliator through applicable legislation. Conciliators working under this legislation are required to encourage parties to resolve a dispute within the confines of the policy of the legislation they are employed to propound.
Caxton Legal Centre stated that sometimes, conciliation is more affordable than mediation:
From our experience, clients seeking assistance with their property settlement negotiations at our family law duty lawyer service or at our day time and evening family law advice sessions, want someone to tell them what is a fair settlement. These clients do not have sufficient resources to pay for private mediation which does not necessarily result in an outcome. Conciliation conferences are an effective means by which property settlements are resolved when those who are experienced at conducting the conferences offer an opinion about the likely outcome.
At present, Registrars and Deputy Registrars in the Family Court conciliate property disputes with what the Law Council describes as a 'high' success rate. The Law Council explained how this works in practice in the Family Court:
… a Registrar's Conciliation Conference is usually the first court event after a property proceeding being filed with the Court. This is an efficient way to identify issues in dispute and, in many cases, resolve the dispute.
The Law Council informed the committee that this same process is not followed in the Federal Circuit Court:
When an Application is filed in the [Federal Circuit Court], the matter is (normally) listed before a judicial officer (although the [Federal Circuit Court] is now trialling greater use of Registrars on first return dates) before being allocated a conference (and a conciliation conference at the court will often only be allocated if the property pool is less than $500,000; for those with a property pool in excess of $500,000, a private mediation is usually 'required' to be arranged).
However, the Law Council observed that '[t]here are not enough Registrars to assist with the procedural management of cases or to conduct court events, such as Conciliation Conferences which assist parties to resolve their cases'.
Further, the Law Council noted that Registrars are no longer able to hold conferences in children's matters due to resourcing constraints. Rather, the Family Court and Federal Circuit Court offer in-house counselling to parties involved in parenting matters which is conducted by family consultants. It was the Law Council's submission that '[t]he Courts must have a properly funded Family Court Counselling Service', noting that:
If a greater number of properly qualified family consultants are employed, more families may access the service, leading to a greater number of settlements and a reduction in court lists, costs and delays.
The FCWA discussed how conciliation is used in WA. The FWCA stated that '[f]inancial cases are offered a conciliation conference by the FCWA if the parties cannot attend private and external mediation-style conferencing', but did note that 'the efficacy of conciliation conferences has been limited by the amount of time the registrars can devote to each conference'.
The AFCC suggested that conciliation could be used in disputes where parties are screened out of FDR due to a history of family violence:
For those matters where family violence is a feature and as such, identified as not being appropriate for FDR in accordance with the exceptions set out in sections 60I(9)(b)(i)-(iv) of the Family Law Act, it is submitted that with the assistance of a triage system, such matters might be diverted to a specialised conciliation conference lead jointly by a Registrar and a Family Consultant within the court structure.
However, the AFCC did observe that such processes require further funding:
This was a process that the Family Court of Australia introduced, but it was unable to be maintained because of the lack of funding. It is accepted that this would require an increase in the resources available to the courts to be reintroduced.
The AFCC also submitted that when family violence results in a dispute not being appropriate for FDR, 'such matters might be diverted to a specialised conciliation conference lead jointly by a Registrar and a Family Consultant within the court structure'.
Indeed, it was the NSW Bar Association's submission that '[w]hen properly resourced, the Family Court has excelled at the provision and application of specialist conciliation and assessment services', further stating that:
Registrars and family consultants, when properly resourced and deployed, are an integral part of case management. They provide an invaluable service in the early identification, narrowing and resolution of issues.
Other forms of dispute resolution
The committee also heard about a number of other forms of dispute resolution that are utilised by parties to solve their family law disputes, as well as proposals for new types of dispute resolution.
For example, the committee heard about 'collaborative practice' from Collaborative Professionals (NSW) Inc.:
Collaborative practice has clients agreeing not to go to court at the start of the process. They have to sign a contract and so do their lawyers not to go to court. The whole process occurs in a series of face to face meetings with the clients and lawyers and any other experts who may be needed.
The method is like mediation, but with a team of experts - including lawyers, social workers, counsellors specialising in children, financial planners and accountants. The experts have to be specially trained – this is vital to the success of the method.
The clients are the deciders, not a mediator. This adds to their sense of control and satisfaction with the process. They tailor the outcome to their family's own needs. If they don't reach an agreement, then they can go to court, but only then.
This organisation recommended collaborative practice be considered a form of dispute resolution for the purposes of section 60I of the Family Law Act, such that collaborative practice practitioners can sign a section 60I certificate that can be lodged with the court.
Divorce Partners Pty Ltd (Divorce Partners)—'a mediation business that specialises in solving financial disputes for separating couples who cannot afford lawyers'—discussed their proposal for an online service to resolve financial disputes 'for couples with less than $2 million of net wealth', which would operate as follows:
A separating person can commence the process by opening a case on an electronic portal. They disclose their view of the couple's financial position and the system issues a notice to the other spouse requiring they also engage with the system. Disclosure and valuation obligations are imposed on both parties.
Each spouse is immediately allocated 35% of their joint wealth. This shrinks the sums in potential dispute to no more than 30% in the first instance. In our experience, this reduces the tension between the couple.
The less financially advantaged partner is then allocated at least half of the remaining 30% i.e. 15%, thereby reducing the amount rationally in dispute. By constraining ambit claims and creating normalised parameters for wealth distribution early in the process, we have been able to shrink over 90% of disputes to a smaller gap of around 5 % of the wealth pool.
There is then a mandatory requirement to mediate or otherwise negotiate the remaining gap within a prescribed timeframe.
If the matter is not resolved, then the remaining disputed portion of wealth is to be placed in a joint bank account, stymying the economic incentives of delay.
Participants do not lose their right to commence court action against each other, but in practice few will.
In its evidence to the committee, Divorce Partners noted that this proposed portal is yet to be built.
Professor Parkinson discussed a pilot program that he worked on together with Mr Brian Knox SC—the enabling bill for which did not pass the Parliament—which Professor Parkinson described as 'a perfect model for self‑represented litigants':
One of the most recent of these reforms, for which I was responsible together with Brian Knox, a senior counsel in Sydney, was the idea of piloting an inquisitorial tribunal to decide many children's cases, intended for litigants who cannot afford legal representation. This was a big and bold new idea. The idea was the tribunal would use questionnaires rather than affidavits to get quickly to the issue. The tribunal would ask the questions that they needed to know. A lawyer chairperson would triage the case in the early stages—somebody with decades of experience in family law. If the case couldn't be resolved, an independent children's lawyer would be appointed and the case would be heard by a three-member panel in a hearing scheduled for no more than two hours. The panel would consist of the lawyer and two other people with expertise in family issues, perhaps a child psychologist or psychiatrist or an expert on drug and alcohol issues—whatever was appropriate to the matter. The idea was that an expert panel would be able to make sensible decisions about a lot of cases in a couple of hours of hearing, rather than two to three days as happens in the courts.
In its submission, ADRAC suggested more than just the expansion of the current FDR framework that many submitters and witnesses advocated for—it recommended a three-tiered non-judicial approach to resolving family law disputes:
The first stage would involve access to an information, triage and [dispute resolution] services, including FDR, as a first stage. The second stage would involve a non-adversarial, administrative decision-making process supported by conciliation, and arbitration. Only in the third stage would there be a court where litigation and the adversarial processes would be available in a limited type of matter or as a last resort. The fact that the matter has moved on to litigation should not preclude a judge from referring parties to [dispute resolution] if considered appropriate.
Hon Kevin Andrews MP