Transforming the family law system: determination or self-determination?

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The Senate Legal and Constitutional Affairs Legislation Committee is currently inquiring into the Bill that proposes to introduce a Parent Management System, ‘an innovative forum for resolving simpler family law disputes between self-represented litigants’. The Committee is due to report on 23 March 2018.

The Law Council of Australia opposes the introduction of a new layer of complexity into an already complex system. It argues that decisions about children should be made by judicial officers, and that the funds allocated to the proposal would be better used to strengthen existing court services including counselling and contact centres.

The proposed Parent Management System is one of a number of budget initiatives injecting much needed resources into the family law system. This included funds for additional domestic violence units, additional family consultants and to support community legal centres and ATSI legal services in their important work.

A bill was also introduced in December 2017 to extend the jurisdiction of state and territory magistrate’s courts to determine more disputes about property, largely as a result of recommendations made by the Family Law Council report on families with complex needs and the Victorian Royal Commission into family violence.

Parent Management System

How the proposed Parent Management System will work is not yet clearly articulated. Such a model was proposed by a family law reform paper and described a ‘multi-disciplinary and inquisitorial tribunal freed from the constraints of the adversarial system’, intended to be informal, cost effective, simple and user-friendly.

It was suggested that such a tribunal could be modelled on the Oregon Informal Domestic Relations Trial. This is a simplified trial process suspending the rules of evidence and allowing parties to speak directly to the judge.  It was specifically intended to give self-represented litigants a voice in the proceedings, and considered suitable for cases involving domestic violence. Unfortunately the evaluation of the process was not able to recruit sufficient self-represented litigants to determine what they felt about the trial, but lawyers thought their clients found it fairer and more timely.

Determination or self-determination?

Both trials and tribunals are determinative processes – experts consider or gather evidence and impose a decision on the parties.  This may be appropriate in many instances, especially where one or both parent’s capacity to reach their own decisions is compromised by complex histories of serious family violence, mental ill-health, addictions and socio-economic disadvantage. The research makes it clear that vulnerable parties with complex histories dominate family courts and other family law services.

Being heard

The research base informing the Oregon model indicated that self-represented litigants wanted a greater voice in and more control over post separation processes. Research in Canada also supports the view that being heard is an important motivating factor for many self-represented litigants.

Mediation can provide the opportunity for parties to speak, be heard, to work collaboratively and cooperatively to decide their own outcomes. Mediation is not always suitable for parties with histories of violence however, as it can be difficult for the mediator to manage power differentials to ensure parties can participate safely and fully.

A safe, child-sensitive and legally-assisted mediation model

A safe, child-sensitive and legally-assisted model of family mediation has been developed in Australia. It is designed to support parties who have experienced and perpetrated family violence to understand the process, learn how to communicate and negotiate safely, take responsibility for their violent behaviour and work out outcomes that are best and safe for their children with the support of a multidisciplinary team professionals.

Professional collaboration

Its multi-agency, multi-professional case-management approach models the kind of respectful and co-operative professional collaborations we should be encouraging in the family law system. It offers an example of effective service integration within the family law system.

Coordinated family dispute resolution

Coordinated family dispute resolution has been piloted, evaluated and demonstrated in many instances to safely ‘empower parents to make appropriate arrangements for their children’, and its broader roll-out has been recommended.  It also achieves the objectives of the Parent Management System –  informality, cost effectiveness, simplicity and user-friendliness.

Inquiries have recommended implementation of CFDR and this kind of case-managed integrated service for complex matters in the family relationships sector. The adoption of CFDR has been recommended by family law community agencies and the model is being adapted by some services to better support vulnerable separating clients.

There is no easy solution to resolve family law disputes, especially where the matters are complex and parties unrepresented.  We are unlikely to transform it, but we can improve it.

Surely a safe, proven, collaborative, integrated, cost-effective and self-determining process is preferable for many parents and children, the family law system and the broader community, to a determinative process that is unknown and untested?

This post has also been published on my website and on Linked In.

This entry was posted in Dispute resolution by Sue Armstrong PhD. Bookmark the permalink.

About Sue Armstrong PhD

Sue Armstrong is an Adjunct Professor in the School of Law, Western Sydney University, Australia. She is an accredited Family Dispute Resolution Practitioner, mediator, conflict coach and a collaborative practice coach. She has published, researched and taught about family dispute resolution. She also supports people to separate compassionately in her family mediation practice Armstrong Mediation.

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