The Australian Government funds a range of Family Law Services to assist separated and separating families with their parenting, property and related matters. These services provide information and advice, family dispute resolution (including legally-assisted dispute resolution), supervised contact and changeovers for children, simple legal advice (through the Family Relationship Advice Line), counselling, parenting education programs, and support programs for children.
5.1
This chapter addresses the evidence and discussion of support services and alternative dispute resolution that appeared in Chapters 11 and 12 of the committee’s first interim report, with a particular focus on:
support services for men;
the Family Advocacy and Support Service;
legally assisted family dispute resolution; and
family dispute resolution and property matters.
Support services
5.2
Chapter 11 of the committee’s first interim report discussed the support services available for men, women and children interacting with the family law system, and specific services for Aboriginal and Torres Strait Islander (ATSI) peoples, people from Culturally and Linguistically Diverse (CALD) backgrounds, people living with a disability, people from regional, rural and remote areas; and support for people identifying as LGBTIQ.
5.3
This discussion focused on the services funded by the Australian Government (Government), such as:
Family Relationship Centres (FRCs);
Family Dispute Resolution (FDR) Services and Regional FDR Services;
Children’s Contact Services (CCS);
Parenting Orders/ Post Separation Cooperative Parenting Program; and
the Supporting Children after Separation Program.
5.4
A central tenet of this evidence was that support services needed to be more accessible and effective for all people who engage with the family law system, and better targeted to meet the needs of specific groups. The most common reason given for the lack of access to services was inadequate funding and resourcing.
5.5
While there are a range of services specialising in the provision of support to women, the committee was advised of a perceived lack of support services available to women affected by family violence participating in the family law system.
5.6
The committee also heard that there are a limited range of support services available to men, especially men who are victims of family violence. When male victims do approach support services, the committee was informed that they can be treated as perpetrators of family violence rather than victims.
5.7
As set out in the first interim report, there were also calls for specialised support services to assist children throughout family law proceedings, as well as more appropriate and accessible services for ATSI peoples, people from CALD backgrounds, people living with a disability, people from regional, rural and remote areas; and support for people identifying as LGBTIQ.
5.8
The first interim report also examined the effectiveness of the Family Advocacy and Support Service (FASS), which 'combines free legal advice and support at court for people affected by domestic and family violence'. The FASS has also been discussed in Chapter 3 of this report.
Lack of support for men
5.9
As discussed in the first interim report, the committee was informed by a number of organisations that there are a lack of services dedicated to supporting men as compared to women, in particular, male victims of family violence:
… we actually need to set up the supports that already exist for women for men as well—for example, when men have to go forward with these issues, they have a counsellor assisting them, and they may have access to a men's legal service, as there is for women to a woman's legal service. There needs to be a men's legal service with these sorts of allegations so that, when a man does gets to the stage of needing an AVO or going to the Family Court, he is being supported, in the same way that many women can access these supports.
5.10
The committee was advised that there is a limited awareness that males can be victims of family violence and that male victims and their children feel they have no appropriate services available to them, such as a men’s shelter, when they seek to leave a violent situation. The One in Three Campaign explained some of the barriers that exist to men disclosing abuse included:
… not knowing where to seek help, not knowing how to seek help, feeling there is nowhere to escape to, feeling they won’t be believed or understood, feeling that their experiences would be minimised or they would be blamed for the violence and/or abuse, feeling that services would be unable to offer them appropriate help, fear that they would be falsely arrested because of their gender (and their children left unprotected from the perpetrator).
5.11
The Department of Social Services (DSS) advised that it funds the following programs and services which can be accessed by male victims of family domestic or sexual violence:
MensLine Australia, a national telephone and online support, information and referral service for men with family and relationship concerns, including men experiencing domestic violence.
1800RESPECT, the national sexual assault, domestic and family violence counselling service, which is available for all people affected by domestic and family violence and sexual assault.
Family and Relationship Services (FARS), which provide primarily early intervention and prevention services to support families when going through change, such as when they form, extend, or separate.
Specialised Family Violence Services, which includes family capacity building, family support, information and wrap-around support, and counselling and behaviour change programs for people who use violence.
5.12
Ms Alex Mathews, Assistant Secretary, AGD also advised that:
In relation to our department's family violence services, they are open to both men and women, with the exception of the domestic violence units, which are for women only. The rest of the policies and programs that we administer and fund recognise that both men and women can be victims of family violence. In addition to that, we fund specialist services just for men. In relation to family advocacy and support services, the government provided funding of $7.84 million over three years in last year's budget for dedicated men's support workers who are placed in all FASS locations, and that is for male victims of violence and also for perpetrators.
5.13
There are also a number of community organisations that provide support services to men, such as Australian Brotherhood of Fathers; Lone Fathers Association of Australia; Men's Resources Tasmania; Men's Rights Agency;
No to Violence; and the One in Three Campaign. Some services such as the Court Network service provide non-legal support to both men and women.
5.14
As discussed in Chapter 3, in 2019 the Government provided an additional $7.84 million over three years to the FASS to engage dedicated support workers for men experiencing family violence. This support is available to both men who are victims of family violence as well as those who perpetrate family violence and who have a family law matter.
Committee view
5.15
The committee is cognisant that all support services have expressed the need for greater funding and resources to meet the demands of their client base. During the course of this inquiry, the calls for additional and specific services for men were particularly common, especially from individual witnesses who had traversed the family law system.
5.16
The committee has heard that the majority of government-funded services for people experiencing family law issues are available to all parties, irrespective of gender, and that specific support services for men have been incorporated into the FASS since 2019. However, it does not appear from the evidence before the committee that many men are aware of this fact. Also, as discussed in Chapter 2, there is a perception that many of these services are biased in favour of women. As Better Place Australia suggested, this perception may arise due to the predominantly female composition of the FDR workforce.
5.17
In response to the issue of bias, the committee has suggested:
additional training of family law professionals on issues such as unconscious bias, family systems, family violence and trauma informed practice will help to address some of the underlying reasons for any bias that may exist;
ensuring that there are appropriate professional obligations, accountability and complaints mechanisms in place for family law professionals to provide parties with avenues to address issues of perceived bias or incompetency; and
that state, territory and Australian governments should develop workforce planning initiatives which will encourage a more gender-balanced workforce in professions that service family violence and family law systems.
5.18
The committee is satisfied that these suggestions will also assist in ensuring that the current services are better placed to support men experiencing family violence and family law issues.
5.19
It is clear to the committee that training of family law professionals should include information on male victims of family violence and that when considering workforce planning initiatives, the state, territory and Australian governments should also review the services available for male victims and their children to identify any gaps that should be addressed. A review of the information publicly available about all government family violence and family law services should also be undertaken to ensure that it clearly highlights the services that are accessible by men.
5.20
The committee recommends that the Australian Government through the Council of Australian Governments lead a review of family violence and family law services to ensure that there are adequate support services available for all victims of family violence—male and female—and that existing services review their public information platforms to ensure that it clearly highlights that the service is available to support men and their children.
5.21
The committee recognises the need for continued funding for non-legal support services for men and women in the family law system and recommends that the Australian Government continues to fund these services in registries where there is demonstrated need.
5.22
The committee also recommends that the Australian Government work closely with state and territory governments to develop workforce planning initiatives which will encourage a more gender-balanced workforce in professions that service family violence and family law systems.
Family Advocacy and Support Service (FASS)
5.23
The FASS is funded by the Government and delivered by the eight state and territory legal aid commissions (LACs). The FASS operates 'at some registries of the family law courts' to assist 'alleged/victims and alleged/perpetrators' who attend court and was developed in order to:
… provide free holistic legal and social support to families experiencing family violence, and to help them navigate court processes, including between the Commonwealth, and state and territory child protection and family violence systems … The LACs contract with other providers to address issues of legal professional conflict as appropriate.
5.24
Ms Kylie Beckhouse of National Legal Aid (NLA), informed the committee how this service operated in practice in New South Wales, and how this service addressed the particular needs of ATSI and CALD communities:
… from a New South Wales perspective … we operate the Family Advocacy and Support Service in the family law courts in New South Wales, in four of the registries. We partner with the Women's Domestic Violence Court Advocacy Service to provide that. They tender for community organisations to provide the services, and we really do favour those agencies that are able to obtain and engage sessional workers from CALD backgrounds or First Nation backgrounds depending on the need of that particular registry. So we are very supportive of that sort of model and approach.
5.25
Victoria Legal Aid explained that in that state, 'FASS is only funded to be present in the permanent registries of the family law courts at Melbourne and Dandenong', as such the:
… FASS does not provide its services to the court sitting on circuit in regional areas, which it does regularly at Ballarat, Bendigo, Geelong, Morwell, Mildura, Shepparton and Warrnambool as well as at Albury servicing Wodonga and surrounds.
5.26
The FASS is funded to run to 30 June 2022, and on top of the $41.1 million allocated to this program at its commencement in early 2017, the Government has provided an additional $7.84 million to engage support workers for men.
5.27
In its submission to the inquiry, NLA referred to the 2018 'independent evaluation of the FASS … by Inside Policy Pty Ltd', noting that the result of the evaluation 'was positive'. Inside Policy stated that its evaluation findings suggested:
The FASS should continue and retain core elements of the model.
Key service enhancements would increase the effectiveness of the FASS.
Systemic changes would improve outcomes for vulnerable families.
5.28
Inside Policy made a number of findings, including with respect to the impact of the FASS on self-represented parties and the court:
… [p]roviding support to self-represented parties was felt to positively impact on preparedness and completeness of evidence and contribute to a significant reduction of court time spent on self-represented matters.
5.29
In its submission, the NLA discussed the positive impact of the FASS, informing the committee that the 2018 independent evaluation found that:
… the FASS was often the first point where family violence was identified and … that information sharing and management of clients across jurisdictions regularly occurred through the FASS with client consent. The key jurisdictions in which FASS clients commonly had matters were the family law courts, children’s courts and state and territory courts exercising jurisdiction over family violence matters.
5.30
Mr Anderson from AGD also noted the positive impact of the FASS:
The Family Advocacy Support Service, which was introduced a few years ago now by the government, is also a measure that is assisting parties to resolve matters in up to half as many court events by providing a more therapeutic focus, by providing wraparound services, and we think that that holistic, therapeutic approach has a lot to recommend it—that it will help parties. It has been demonstrated to help parties to move to resolution of family law matters more quickly.
5.31
The NLA expressed its support for 'expansion of the FASS subject to appropriate funding'. Indeed, one of its recommendations was that '[f]unding be provided to enable LACs to engage more social support workers in family law matters', specifically to enable LACs to:
Expand FASS services to ensure free holistic legal and social support to families beyond family violence to include drug and alcohol abuse, mental health issues and child abuse recognising that family violence rarely occurs in isolation from these other issues. This would assist them to navigate court processes, including between the family law, child protection and family violence and to be referred for ongoing assistance in relation to their legal and non-legal needs.
5.32
As outlined in the first interim report, a number of other submitters supported an expansion of the FASS across family law courts in all states and territories, including in rural and regional locations, and also supported more funding for this service.
5.33
The FASS program is currently not designed for continuity of service, and it was recommended to the committee that case management should be introduced into this service. The Council of Single Mothers and their Children recommended this approach 'wherever it will benefit the parties and particularly where services such as Aboriginal and Torres Strait Islander legal and social work services are involved'.
5.34
Indeed, it was one of the recommendations of the Australian Law Reform Commission (ALRC) in its 2019 report, Family Law for the Future — An Inquiry into the Family Law System, that '[t]he Family Advocacy and Support Service’s social support services should be expanded to provide case management to clients who are engaged with the family law system'.
5.35
The ALRC stated that the provision of case management would 'ensure that clients with complex needs who enter the family law system through the courts are connected with appropriate services and do not "fall through the gaps"'. The ALRC explained:
This expansion would allow support workers to check in with a client after they have left court and throughout their engagement with the family law system. Case managers could provide warm referrals and advocacy to ensure clients identify and remain connected with appropriate services, and share information with those services with client consent, ensuring relevant information is not lost and to reduce the burden on clients to retell their stories. Support workers could also provide ongoing risk assessment and safety planning as required, and support clients to attend appointments with police, relevant services, or at local court events.
5.36
The FASS cannot be discussed without reference to Family Relationship Centres (FRCs)—a government-funded service offered prior to litigation—65 of which operate across Australia to provide disputing families with ‘information about family relationships at all stages – forming new relationships, overcoming relationship difficulties or dealing with separation’.
5.37
FRCs provide ‘information, referral and individual sessions free of charge’, as well as ‘up to one hour of joint Family Dispute Resolution sessions free of charge’. However, as with the FASS, there is no continuity of assistance for people engaging with FRCs in the form of case management. Indeed, the committee received evidence that FRCs are in high demand and are under‑resourced.
5.38
In its report, the ALRC also recommended the expansion of FRCs ‘to provide case management to clients with complex needs who are engaged with the family law system’.
Committee view
5.39
The committee acknowledges the overwhelming evidence, including the independent evaluation by Inside Policy, that the FASS is working as intended to assist alleged victims and alleged perpetrators of family violence who attend the family court. This, in turn, has worked to reduce the resource strain on the courts.
5.40
The committee notes that this service is not available at every family court registry or circuit location. The committee is concerned that parties to family law proceedings may be prevented from accessing this useful service simply because of where they live. The committee therefore considers that the success of the FASS warrants its ongoing funding and its extension to all registry and circuit locations, and that the service should be adequately resourced in all locations.
5.41
The committee acknowledges the evidence that this service is sensitive to the particular needs of ATSI and CALD communities, and suggest that the Government continue to ensure that, when engaging with the family law system, these communities are supported by this and other services.
5.42
Finally, the committee is persuaded by evidence that there is a need for a case management service for clients with complex needs within the family law system. The ALRC has identified both the FASS and FRCs as appropriate bodies that could provide case management. It is unclear to the committee whether both bodies should do this or whether it would be more efficient for one body to take the lead on case management but with specific ties being established between the two entities so clients are easily and quickly referred. The committee agrees with the ALRC that those FASS clients who have complex needs should be connected with appropriate services to ensure that they do not ‘fall through the gaps’. The committee believes that, irrespective, it could be useful to build closer associations between FASS and FRCs.
5.43
The committee recommends that the Australian Government expand the Family Advocacy and Support Service (FASS) program to all Family Court and Federal Circuit Court registry and circuit locations with:
ongoing funding to be provided for all FASS locations; and
appropriate resourcing in rural and regional areas.
5.44
The committee also recommends the Australian Government implement case management services within either the FASS or Family Relationship Centres (FRCs), with a view to also building closer associations between the FASS and FRCs so that case management is available to clients of both services.
Alternative Dispute Resolution
5.45
The committee’s first interim report discussed the importance of Alternative Dispute Resolution (ADR) as a means by which to resolve family law disputes and avoid costly and time consuming litigation.
5.46
There are a number of ADR pilots that are currently underway, the purpose of which is to ‘improve the family law system and the legal assistance sector’.
5.47
For example, as set out in the first interim report, AGD is currently conducting a Legally Assisted Family Dispute Resolution (LAFDR) pilot for ATSI and CALD families who have experienced family violence:
$8.675 million was provided over four years to fund and evaluate pilots of legally-assisted and culturally-appropriate family dispute resolution services for Indigenous and Culturally and Linguistically Diverse families who have experienced family violence. These pilots run from 1 June 2017 to 30 June 2020 across eight locations.
5.48
Another new dispute resolution program discussed in the first interim report was the ‘amica’ system, a government-funded online platform which:
… uses artificial intelligence to make suggestions about dividing [disputing parties’] money and property based on the information that [parties] enter. The artificial intelligence considers legal principles and applies them to [individual] circumstances.
5.49
As the system was only launched in June 2020, a qualitative assessment of the success of amica in resolving disputes and avoiding litigation has not been completed.
5.50
Furthermore, funding has also been provided to FRCs to undertake property mediation, and to LACs for a legally-assisted property mediation pilot for matters with a property pool of up to $500 000. The Federal Circuit Court of Australia (Federal Circuit Court) has also been funded to pilot a simplified way of resolving property disputes with an asset pool of under $500 000 (the PPP500 pilot). Further information about this pilot was provided in the
2019–20 annual report:
The aim is to resolve these cases in a timely and efficient manner, whilst achieving a just outcome at a cost to the parties that is reasonable and proportionate to the assets available in the proceedings. Parties are able to commence proceedings in a simplified manner in an attempt to reduce cost and delay. The PPP500 Pilot involves an intensive registrar led resolution phase, followed by a simplified judicial determination phase if necessary.
5.51
The Federal Circuit Court has also introduced a Discrete Property List where registrars case manage property only applications, which ‘has been an outstanding success, assisting a large proportion of property cases to resolve without judicial intervention’. Furthermore:
Following on from a successful pilot in the Newcastle registry, the Discrete Property List was rolled out to the Brisbane, Sydney, Parramatta, Melbourne and Adelaide registries in 2019–20. The List involves registrars closely case managing all property only applications filed in the Court, including monitoring compliance with disclosure obligations and valuations, and referring the parties to ADR.
5.52
Additionally, in April 2020, the Family Court of Australia (Family Court) and the Federal Circuit Court, introduced:
… a specialist National Arbitration List … to support the development and promotion of arbitration for property matters in family law, furthering the Courts’ emphasis on the importance of ADR. The List operates electronically on a national basis, with a dedicated judge assigned to the List in each Court to ensure that matters sent to arbitration are closely managed, and any applications arising out of an arbitration can be determined promptly.
5.53
The most commonly utilised form of ADR is family dispute resolution (FDR), the introduction of and practice of which was discussed extensively in the first interim report. The remainder of this section will examine potential improvements in the delivery of FDR.
Legally-Assisted Family Dispute Resolution
5.54
One of the most important issues for submitters and witnesses in their discussion of FDR was the expansion of LAFDR. LAFDR is currently offered through LACs and to be eligible, ‘one party is generally required to qualify for legal aid’.
5.55
The NLA explained that ‘LAC LAFDR programs achieve a national settlement rate in the order of 75–80% annually’, with approximately 8000 conferences held each year. NLA further explained that some matters may not be appropriate for LAFDR:
Matters not appropriate for LAC LAFDR, or which were not capable of settlement at LAC LAFDR, usually then move through family law court processes, although further LAC LAFDR will be held for parties on a litigation pathway if it appears that settlement might be a possibility, and it would be otherwise appropriate to hold a conference.
5.56
The committee heard from a wide range of submitters who supported the expansion of LAFDR, including to parties who are not receiving legal aid, and for ‘culturally-safe and specific’ LAFDR to be made available to ATSI families.
5.57
There was also significant support for the extension of LAFDR to victims of family, domestic and sexual violence.
The existence of family violence allegations or family violence orders (whilst a serious issue) should not be seen or presumed to be an automatic impediment to ADR as an appropriately skilled FDRP (mediator) commonly will arrange for FDR/ADR in a manner, keeping the parties separate and which avoids exposing a party to family violence or otherwise accommodates a vulnerable party by creating a level playing field for negotiations.
5.58
Specific to LAFDR, Women’s Legal Service Victoria observed that 'with the support of trauma-informed mediators and lawyers, potential power imbalances between parties can be addressed', and noted that '[f]amily violence cases can be safely and effectively … supported in the mediation process'. The first interim report also lists a number of benefits of LAFDR provided by the Peninsular Community Legal Centre for clients experiencing family violence or abuse.
5.59
However, Australia’s National Research Organisation for Women’s Safety suggested that LAFDR should only be utilised in the context of family and domestic violence where there is clear legislative guidance for practitioners about how to make decisions regarding clients with complex needs and 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.
5.60
A common suggestion, together with the expansion of LAFDR, was that those lawyers and FDR practitioners (FDRPs) carrying out LAFDR (and FDR more generally) should be appropriately trained, particularly in relation to domestic and family violence.
5.61
As discussed in the first interim report, FDR is conducted by an accredited FDRP who is subject to a competency-based accreditation scheme under the Family Law (Family Dispute Resolution Practitioners) Regulations 2008. Pursuant to the Family Law (Family Dispute Resolution Practitioners) Regulations 2008, FDRPs:
… must undertake at least 24 hours education, training or professional development in family dispute resolution in each 24 month period starting on the day of the person’s accreditation as a [FDRP].
5.62
There is no legislative or regulatory requirement for FDRPs to undertake education, training or professional development on particular subject matters such as domestic and family violence.
5.63
In addition to the calls for expanded training from a number of submitters, the CASA Forum—Victorian Centres Against Sexual Assault 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.
5.64
Legal professionals are also required to undertake a certain amount of professional development to maintain their practicing certificates, the hours and core subjects of which vary across jurisdictions.
5.65
With respect to training, the committee received evidence that:
To become an FDR practitioner applicants must, at a minimum, gain competency in the six core units of the Graduate Diploma of Family Dispute Resolution or its equivalent. The units are:
Manage responses to domestic and family violence in family work
Facilitate dispute resolution in the family law context
Adhere to ethical standards in family dispute resolution
Support the safety of vulnerable parties in dispute resolution
Operate in a family law environment
Work with a child-focus approach
… Once accredited, FDR practitioners are required to undertake ongoing professional development in order to maintain their accreditation.
Committee view
5.66
The committee is encouraged by the introduction of various ADR pilots and initiatives by both the Government and the family courts, some of which have already demonstrated that further investments in ADR can divert disputing parties from costly and protracted litigation. The committee supports the continuation of these measures, and should evaluations prove their effectiveness, their permanent integration into the family law system (see Recommendation 1).
5.67
The committee also commends the development of amica and, although it is too early to measure its success, suggests that the Government could look at other ways to utilise technology more effectively, both for the swift resolution of matters and reducing the costs imposed on parties to family law proceedings.
5.68
In respect of LAFDR, the committee accepts the arguments in favour of expanding this service. It considers that LAFDR is a less adversarial and therefore less traumatising way in which to resolve family law disputes. The committee noted that legally-assisted property mediation has been funded in LACs and welcomes this development, but considers that such services and LAFDR should be expanded regardless of whether one party is receiving legal aid.
5.69
The expansion of LAFDR may not be appropriate in all disputes, for example it may not be safe in certain disputes where there is a history of domestic or family violence. However, the committee is persuaded by arguments which suggested that where there are appropriate safeguards, LAFDR can be successfully undertaken by such parties.
5.70
In expanding LAFDR to family and domestic violence cases, one important safeguard to protect disputing parties would be the introduction of a requirement that any practitioners engaging with victims of domestic and family violence and their perpetrators are adequately trained in the dynamics of family violence, conducting risk assessments and safety planning.
5.71
The committee recommends the Australian Government expand Legally Assisted Family Dispute Resolution to:
family and domestic violence cases, to be carried out by specialist family and domestic violence and trauma informed practitioners; and
parties who do not qualify for legal aid.
Family Dispute Resolution and binding property agreements
5.72
As outlined above, there are a number of property-related pilots that the Government has introduced in an effort to resolve family law disputes before the matter reaches a judge. However, the committee heard evidence that ADR could be further utilised to resolve property disputes quickly and outside of court.
5.73
One of the ways in which ADR could be further utilised, and which was discussed in the first interim report, was the extension of compulsory FDR to property matters. As noted in the first interim report, section 60I of the Family Law Act 1975 (Family Law Act) requires parties to a parenting dispute to ‘make a genuine effort to resolve that dispute’ through FDR. The same requirement does not apply to property matters.
5.74
Those in favour of mandatory pre-filing FDR for property matters suggested that this reform would reduce the legal fees associated with litigation, and alleviate pressure on court resources. On the other hand, the committee heard from the Law Council of Australia (Law Council) that mandatory pre-filing for property matters could have unintended consequences, as there are ‘significant differences’ between parenting and financial disputes, such as:
in most parenting disputes, both parents have relatively good knowledge of the facts relevant to the dispute—they both know their children’s day to day needs and arrangements;
in most financial disputes, one party, and sometimes both, does not have good knowledge of the other party’s or their joint financial circumstances;
in most parenting disputes, the legal complexities relate solely to the application of the principles in the [Family Law Act];
in many financial disputes, the legal complexities can include the application of the principles in the [Family Law Act], but also matters such as valuation methodologies, taxation laws, interpretation of financial statements and trust deeds, tracing of funds, and stamp duty laws …
5.75
The ALRC considered these arguments in its report, and nevertheless recommended the amendment of the Family Law Act to extend mandatory FDR to property disputes prior to filing an application for court orders.
5.76
The committee also received evidence in support of greater powers to be given to FDRPs to draw up legally binding property agreements, so as to avoid the risk of these agreements collapsing before being formalised in court. Partnerships Victoria proposed that FDRPs should ‘have the option of drawing up a “property plan”’, operating in a similar way to which a parenting plan operates in the Family Law Act. Partnerships Victoria made this proposal in its submission on the basis of the ‘major concern’ of their members—namely, ‘that settlements are not legally binding in financial FDR’:
Parties often go to lawyers after FDR and the settlement ‘falls apart’ for a variety of reasons, en route to it supposedly getting documented and made legally binding. This proposal would reduce the risk of this occurring and would be ideally suited for low value cases without significant legal complexity.
5.77
Partnerships Victoria suggested how this could work in practice:
The property plan would be prepared by the FDR Practitioner and signed by the two parties to document the agreed settlement. It should cover both property and spousal maintenance issues. The proposed Family Law Commission could be engaged to draft some simple pro forma property plans recommended for use by FDR Practitioners.
Committee view
5.78
The committee acknowledges the arguments in favour of extending mandatory pre-filing FDR to property matters, and also the ALRC’s recommendations in respect of this matter. The committee believes that this is one way in which parties could be diverted from costly and time consuming family court proceedings, which in turn would ease the burden on the courts.
5.79
However, the committee is persuaded by the arguments of the Law Council, which illustrate that there are indeed significant differences between parenting and property disputes, and that the introduction of mandatory pre-filing FDR for property disputes could have unintended negative consequences for disputing parties. The committee therefore considers that, at this point in time, it is more practical to set aside such changes to the Family Law Act, and, as stated above, should evaluations of the current property pilots prove effective, these should be permanently integrated into the family law system. In time, it may be appropriate for the Government to reconsider extending pre-filing FDR to property matters.
5.80
One difficulty that has been brought to the committee’s attention is the number of disputing parties proceeding to litigation despite having reached an agreement at Family Dispute Resolution. The committee is cognisant of the strict requirements for drawing up binding financial agreements and the delays experienced to have a consent order made by the court. The committee is of the view that further expert consideration of an efficient model to document agreements after Family Dispute Resolution is warranted.
5.81
The committee also notes the applicability of Recommendation 1 in Chapter 2 to this discussion of ADR, that is, the expansion of pilots and existing programs, such as the Legal Aid Commissions lawyer-assisted property mediation.
5.82
The committee recommends that the Family Law Council be tasked with considering how to best document agreements made with respect to property arrangements following Family Dispute Resolution in order to reduce litigation while still protecting the rights of the parties.
The cost of family breakdown and the role of prevention
5.83
Although this inquiry has concentrated on the operation of the family law system and adopted recommendations to address various issues raised in the submissions, there are other concerns that the committee has not been able to fully address. These include the adversarial nature of family law in Australia (see Recommendation 10) and the paucity of funding for prevention. These issues have been raised in previous Parliamentary reports into marriage and family in Australia.
5.84
The committee believes that insufficient attention has been given to the role of prevention and proposes that further examination should be given to the issue.
5.85
The committee recommends that the Australian Government request the Productivity Commission to investigate the direct and indirect costs to individuals and Australia of family dysfunction, and marriage and relationship breakdown and the adequacy of preventive measures, including measures to prevent family violence.