Author Archives: jessmant

(Mis)Understanding the role and potential of mediation in resolving medical negligence disputes in Ireland

Posted on by
Reply

Presented by Dr Mary Tumelty, visiting scholar to the Australian Centre for Justice Innovation, Monash Law
with guest commentator, Mr Nick Mann, Polaris Lawyers

Date: Monday, 31 March 2025
Time: 12:00pm – 1:30pm
Lunch provided with seminar commencing at 12:30pm
Venue: Monash Law Staff Library Clayton Campus, or Zoom (link to be provided on the day)   Please register via this Google form.

Dr Mary Tumelty is a Senior Lecturer at the School of Law, University College Cork. Mary’s research interests include Medical Law, Patient Safety, Torts, Law and Emotion and ADR and she is experienced in empirical legal research.  Her work has been funded by the Royal Irish Academy, the Irish Research Council, and the National Forum for the Enhancement of Teaching and Learning in Higher Education. She has also collaborated on projects funded by the Economic and Social Research Council, and COST (European Cooperation in Science and Technology). In 2019, Dr Tumelty was appointed to the Health and Social Care Professionals Council (CORU) (Ireland’s multi-profession health regulator) by the Minister for Health. She is also a member of the Health Research Consent Declaration Committee (HRCDC) (appointed by the Minister for Health in January 2021). Dr Tumelty’s research focus is interdisciplinary, examining the interaction of law with the practice of medicine.

The Problem with ‘Genuine Effort Certificates’ in Family Law and Options for Law Reform

Posted on by
1

Emma Mills
Monash University

In Australia, most parents who are trying to resolve a parenting dispute must first attempt family dispute resolution (‘FDR’), usually in the form of mediation. This must be done before commencing family law court proceedings. If FDR is unsuccessful, a family dispute resolution practitioner (‘FDRP’) will issue parties with a certificate to take to the court, which outlines why parties were unable to resolve their dispute during FDR. These are known as ‘genuine effort certificates’. However, genuine effort certificates given by FDRPs pose many issues, such as the lack of clarity about what a genuine effort looks like, lack of consistency and negatively impacting vulnerable parties. Due to these issues, I argue that changes should be made to the Family Law Act (‘FLA’). Specifically, I propose two separate solutions that could be considered. First, I propose that genuine effort should be a term that is defined in the FLA and second, that genuine effort certificates should be abolished and replaced with attendance certificates.

What is the genuine effort certificate and FDR?

In 2006, the Australian Government introduced changes to improve the Australian family law system. The main reason behind the sweeping reforms was to find ways for parents to come to a parenting agreement collaboratively, rather than commencing legal proceedings. Due to these reforms, attendance at FDR is effectively a pre-requisite for family law matters involving children. FDR is where a FDRP, who is independent to the parties, acts as a mediator to facilitate parties coming to a solution between themselves, so that they can seek to resolve their dispute outside of court. A court is unable to hear an application regarding a parenting dispute, unless a genuine effort certificate is issued by a FDRP or an exception applies. The certificates are based on whether parties have made a ‘genuine effort’ to participate in FDR. For example, a parent could be issued with a certificate that says that they ‘did not make a genuine effort to resolve the issue’ (‘non-genuine effort certificate’). The type of certificate issued can determine whether the court decides to send parties back to FDR and can be a consideration when determining to award costs against a party.

As a result of the genuine effort certificate scheme, FDRPs have been referred to as being ‘gatekeepers to family courts’. There are some advantages to this. For instance, the genuine effort requirement places an obligation on parties to take responsibility to resolve the dispute before going to court. Following the introduction of the FDR requirement, there was a 25% reduction in court filings and parties reported high levels of satisfaction with the process. However, genuine effort is not defined in the FLA. The FLA does not provide any guidance as to what circumstances, conduct or factors constitute a ‘genuine’ or a ‘non-genuine’ effort. This means that the implementation of this requirement is problematic in practice.

What are the negative impacts of the genuine effort certificates?

Undermining the Impartiality of a Mediator

The main role of a FDRP in mediation is to be ‘independent’ from parties. The neutrality of the FDRP is a fundamental component of the practice of mediation. Neutrality is described as going ‘to the heart’ of mediation theory and means ‘freedom from bias’. Field and Crowe talk about the ‘folklore of neutrality’, which suggests that true neutrality can be difficult to achieve. This concept is especially true in the context of the genuine effort certificates.

When issuing a genuine effort certificate, FDRPs must make a subjective judgement about whether each party has genuinely attempted FDR. The FDRP may have to make a judgement about whether the party has acted reasonably. This can occur in situations where a party refuses to move from their initial position, which could be perceived as the party being unrealistic and unreasonable by the FDRP. Also, whilst FDRPs are trained to be as objective as possible, decisions about whether parties have been genuine in their effort may be unavoidably influenced by their own personal values, experiences and subconscious biases, particularly in the context of family and separation. This can mean that FDRPs may potentially act in a biased way when deciding on the type of certificate to issue.

The genuine effort requirement, therefore, places immense pressure on FDRPs to make a judgement about how they perceive each party to be genuinely participating in the process. This function is arguably well beyond a FDRP’s scope as mediators, when they take on a role of being an ‘assessor’. The requirement for a FDRP to issue a genuine effort certificate is a legislative obligation that overrides the fundamental obligation of FDRPs to treat parties impartially, which is central to mediation.

Lack of Clarity and Consistency

As discussed earlier, the FLA does not define genuine effort. Therefore, whether a party has genuinely participated in FDR is a highly subjective analysis which must be undertaken by FDRPs in the absence of guidance on how a genuine effort is to be determined. Due to the lack of clarity, pressure is placed on parties to appear reasonable and cooperative, so that they can satisfy the individual FDRPs perception of genuine effort. This strain may impact parties to the extent that they do not feel like they can participate in the process in a full and frank manner, or negotiate effectively. For example, parties may change their behaviour, possibly to their detriment, if they know that the FDRP will be making a judgement about their behaviour. This strain placed upon parties, lawyers and FRDPs is a result of the genuine effort requirements being unclear and undefined.

Since there is no definition of genuine effort, it is extremely difficult to promote consistency in the issuing of genuine effort certificates. FDRPs are often influenced by a range of factors, including their prior professional experiences and their personal views. This can mean that there is a lack of consistency for parties, which can create apprehension about what certificate they may be issued. Therefore, due to the lack of clarity about what is a genuine effort, it creates an area of law that is inconsistent and unreliable.

Gendered Implications

For parties to appear as though they are genuinely participating in the process, it is likely that the party must present as rational, reasonable and cooperative. This poses a risk for parties who may appear difficult, angry or unreasonable, to be seen as not genuinely participating.  This expectation can create problems, especially for vulnerable individuals, who might not fully understand what is expected of them.

Viewing this through a gendered lens, Rachael Field argues that women are more likely to face unfair judgements and to be labelled as being ‘unreasonable’ after separation. This can make it harder for women to show FDRPs that they are genuinely trying to participate in the process. After separation, women are often already enduring gendered disadvantage, such as distress, poverty or repercussions of family violence, which can affect both how they behave and how their behaviour is perceived during FDRP. Also, when FDRPs evaluate how genuine parties are, they may be influenced by their societal views and values of women, including what they consider to be stereotypically feminine behaviour. This raises the possibility that if a woman behaves in a way that falls outside of gendered norms, she may then be issued with a non-genuine effort certificate. This can worsen the post separation vulnerability that women experience, especially if they then run the risk of receiving a cost order against them once the case progresses to court.

What are the solutions?

As discussed, the way that genuine effort certificates are operationalised in practice may undermine the overall aim of increased participation in FDR for parenting disputes. There are two separate potential avenues for reform that I will now consider, which could assist in working towards addressing these problems.

  • Defining Genuine Effort

As mentioned earlier, the lack of clarity around what counts as a genuine effort in FDR creates significant problems, especially for vulnerable parties and women post separation. Without a clear definition of genuine effort in the FLA, it reduces consistency for parties. Therefore, one solution is that the FLA should be amended to include a definition of genuine effort. This definition would provide a guideline for FDRPs, lawyers and parties. For example, the Migration Act 1958 (Cth) includes a provision where the holder of a certain visa has made a ‘genuine effort’ to commence employment or engage in business. A list of factors is included to help with the assessment of what is considered genuine effort in the circumstances. Whilst the factors included in the Migration Act are not helpful in assessing genuine effort in FDR, this provides an example of how the FLA can include such guidelines to assist in the interpretation of genuine effort.

The possibility of using a list of factors has already been considered by leading family law scholars. For instance, Hilary Astor suggests that a definition of genuine effort should include factors such as the ‘willingness to consider options put forward by the other party’, ‘willingness to consider putting forward options’ and ‘willingness to focus on the needs and interests of the children’. These factors would help to give parties a guide on how they should act in FDR. These factors align with broader comments made by Einstein J in Aiton Australia Pty Ltd v Transfield Pty Ltd (1999) 153 FLR 236 [at 156], where he says that parties should be open minded and receptive in mediation and be willing to put forward options for a resolution.

These factors, therefore, could be legislated in the FLA. This would provide much needed clarity about what genuine effort means, which would in turn help to create consistency and provide parties with a clearer understanding about what is required of them during FDR.

  • Abolishing the Genuine Effort Certificate

There are significant issues with issuing genuine effort certificates, which defining genuine effort in the FLA cannot alleviate alone. Therefore, an alternative solution that has been suggested is to abolish the types of genuine effort certificates issued altogether. Whilst defining genuine effort in the FLA may be of some assistance, determining whether parties are giving a genuine effort in FDR is still highly contextual in nature and would still require the FRDP to make a discretionary judgement. Simply providing FDRPs with a set of factors to be considered may not resolve the issue of FDRPs making a subjective decision about the type of certificate to issue or clarify FDRPs’ role within mediation.

Instead, through abolishing the types of genuine effort certificates issued, the FDRP would instead issue an attendance certificate. This would simplify the process and would just require the FDRP to note whether participants did or did not attend FDR. An attendance certificate would help FDRPs to maintain their position of independence and neutrality within mediation, and would eliminate the issues around the lack of clarity and consistency. It would also help to alleviate the potential repercussions for parties who are issued with a non-genuine effort certificate, especially for women post separation. In addition, without having to assess parties’ behaviour, it would enable FDRPs to focus on their main goal: to assist parties to find a workable arrangement between themselves.

Next Steps

Whilst the genuine effort requirement has been an important factor in encouraging parties to try and resolve their parenting disputes through FDR, its implementation poses issues for parties, lawyers and FDRPs. In this post, I have proposed two separate pathways that could be followed to begin to address these problems. Introducing a factor-based definition of genuine effort into the FLA provides a small, short-term adjustment that can assist in clarifying the standard of genuine effort for parties. On the other hand, a more radical, longer-term solution is to abolish the genuine effort certificates altogether and replace them with mere attendance certificates. Attendance certificates would remove the evaluative function of FDRPs altogether, whilst still mandating engagement with FDR.

Author Biography

Emma Mills is a Law and Criminology student in the Faculty of Law at Monash University. Emma has a particular interest in social justice and volunteers with the Epilepsy Foundation in her spare time. After graduation, Emma wants to pursue a career in family law and to dedicate herself to creating a fairer legal system.

Integrated Services: A Key Part of the Solution to Coercive Control in Australia

Posted on by
1

Becky Strauss, Monash University

Every four days in Australia, a woman is murdered by a former or current intimate partner. For decades, the “battered woman” stereotype prevented family violence from being recognised beyond physical in nature. However, recently coercive control has been labelled just as damaging as physical violence, being deeply and inherently traumatising by reducing any sense of identity and autonomy of the victim-survivor. In this post, I will explain the socio-political context of family violence in Australia and how this has shaped the nature of coercive control. Then, I will explore how integrated community services are part of the holistic solution required to reduce the effects of coercive control on victim-survivors.

Family Violence in Australia

Family violence includes violence, threats or other behaviour that coerces or controls a member of family. Family violence is multifaceted: it can be perpetrated in many ways, and the effects can be experienced differently by every victim-survivor. Family violence is inherently a gendered issue, affecting predominantly female identifying people. Family violence is the leading contributor to death, obesity and illness for Victorian woman aged 15 to 44. The exploration of why family violence is a gendered issue is complex and requires discussion of socio-political factors including power, gender roles, colonialism and racism. For the purposes of this post, the existence and nature of family violence will be simplified. Australia has a patriarchal foundation, rooted in colonial past centring white, hegemonic masculinity. This has created a climate to harbour inequality and drive violence against women and children.

Critical feminism has brought an important shift of the discourse from violence against women being “behind closed doors” to a political and social responsibility. Nevertheless, Australia continues to foster political and social environments characterised by power imbalances and sexism. A woman being raped by a Member of Parliament makes her a “lying cow” according to her Ministerial employer. Australia’s only female Prime Minister is not immune to the effects of sexism and inequality- Julia Gillard’s outstanding “Not Now, Not Ever” speech has been labelled as a “furious attack” rather than a necessary confrontation of persistent misogyny in Australian Parliament. Women cannot escape inherent sexism, as even in the workplace we are monetarily worth 21.7% less than men. Family violence in Australia is therefore, unmistakably, a gendered issue: 73% of perpetrators of family violence are men, and 71% of victim-survivors are women and the most identifiable risk of factor for becoming a victim-survivor of family violence, according to the Australian Bureau of Statistics, is being ‘female’.

Coercive Control in Australia

Coercive control involves intimidation and coercion to control a victim-survivor, create fear and diminish any sense of autonomy. The reality for a victim-survivor experiencing coercive control includes a life moulded by terror, isolation and disempowerment through “brainwashing” and “complete control and degradation” that is “tantamount to torture”. Coercive control has profound, long-lasting effects on victim-survivors with extensive impacts beyond the legal realm and into economic, social and psychological health. Coercive control can be characterised by patterns of non-physical abuse entrapping victims through economic, social and psychological abusive strategies. While this post discusses the generalised effects of coercive control, it is important to note that the experiences and effects of coercive control will be different amongst people living with disabilities, LQBTQIA+ communities, culturally linguistic and diverse (CALD) people, Aboriginal and Torres Strait Islander people and people living in rural and remote communities.

  • Economic Abuse

Economic abuse is a form of coercive control involving behaviours that control a woman’s ability to acquire, use and maintain economic resources, threatening economic security and self-sufficiency. Coercively controlling economic abuse encompasses control of economic resources like use of a car, preventing a victim-survivor from engaging in paid work, restricting access to obtaining tertiary qualifications, and even denying a victim-survivor necessities like food and clothing. Economic abuse causes victim-survivor to be economically dependent on the abuser, as the abuser can control her ability to become self-sufficient. The most significant effect of economic abuse- and the reason why men use it- is that prevents a woman from leaving a coercively controlling relationship. Many victim-survivors cite that the main reason they could not leave their abuser was due to how economically unstable they would be if they were to leave. For the first 6 years following divorce, women often struggle economically compared to men, highlighting how the effects of economic control during a relationship by an abuser continue to affect women years later.

  • Social Abuse

Social abuse in relation to coercive control includes an abuser isolating a victim-survivor through control of social activity, deprivation of liberty or the creation of unreasonable dependence. Social abuse encompasses the abuser limiting access to family and friends, and even constantly monitoring the victim-survivor, as well as more “subtle” measures such as by hiding car or house keys. A significant element of coercively controlling social abuse is restriction of a victim-survivors access to social support, leading to their isolation. Isolation is a particularly dangerous effect of social abuse is how it diminishes the capacity of the victim-survivor to confide in friends and family and seek help. Victim-survivors of social abuse often report a feeling of entrapment as they are prevented from keeping themselves and their children safe and leading an autonomous life, inhibiting the ability to escape their abuser.

  • Psychological Abuse

Psychological abuse as a form of coercive control involves intimidation, shaming, verbal abuse, manipulation and micro-management of the victim-survivor. Perpetrators maintain control through threats of violence or death to induce a state of constant terror. Psychological abuse is a social determinant of mental illness in Australia, and internationally. Constant criticism from the abuser can lead to low self-esteem in victim-survivors, as they are mentally manipulated into believing the perpetrator through the power imbalance created. Even after direct abuse had ended, victim-survivors continue to experience effects- emotional maladjustment and character disorders can develop, and in some cases, victim-survivors disassociate and construct a new personality, leading to a later diagnosis of a multiple personality disorder. Psychological abuse has been reported to lead to chronic social isolation, depression and stress, accompanied by a feeling that victim-survivors will not be believed, or that they cannot be helped. Importantly, a paradoxical attachment can develop between a victim-survivor and coercively controlling abuser, known as “trauma bonding”. This denotes the difficulty of psychologically detaching from the relationship. Coercive controlling psychological abuse leads to fear for safety, causing women to leave the family home. This is a leading cause of homelessness for women and children.

Integrated Community Services: A Potential Solution?

Although the legal system is one of the tools needed to address coercive control, it is by no means capable of addressing the totality of intersectional issues that can arise. Victim-survivors often experience intersectionality and have diverse needs requiring multiple interventions by different services. Many have to navigate their own pathway to accessing the support they need to address the effects of coercive control. Integrated family violence services are a coordinated approach bringing together disciplines to provide effective and collaborative support to victim-survivors experiencing the effects of family violence.

This post focusses specifically on how an integrated service with social workers and lawyers can help address the effects of coercive control on victim-survivors. The term “social workers” is an umbrella term describing professionals that can provide a wide range of support to address social, emotional, financial, physical, mental and economic needs. In this post, I argue that bringing social workers and lawyers together in integrated services has four key benefits.

  • Integrated services provide holistic, victim-survivor centred approaches

By working within an integrated practice, social workers and lawyers provide greater support to victim-survivors than they could alone. This allows for more coordinated responses to address the effects of coercive control and the intersecting needs of victim-survivors. Social workers can identify effects of coercive control beyond the legal realm which lawyers may not always be able to do, centring the victim-survivor. Social workers bring skills in crisis intervention, assessment of needs and support to address the economic, social and psychological effects of coercive control. For example, a lawyer may focus on a victim-survivors immediate need, perhaps being to obtain a family violence intervention-order. Meanwhile, a social worker would consider the bigger picture and identify community services the victim-survivor may benefit from to help address the effects of coercive control. They may connect the victim-survivor with services to help them gain employment and free childcare services, or a psychologist to address and work through the trauma they have experienced. This provides a holistic approach, connecting victim-survivors with avenues of support to address multi-faceted effects of coercive control.

  • Integrated services can provide improved legal and social outcomes for victim-survivors

Engaging with lawyers and the legal system is often stressful, and there is a general mistrust towards lawyers by the Australian community. Victim-survivors may require extra support to engage with legal services. An integrated service with social workers who have strong interpersonal and communication skills can assist lawyers to build rapport and trust with victim-survivors. Social workers can also facilitate communication when discussing legal issues through their ability to recognise when a victim-survivor might not understand legal jargon, providing greater support for the victim-survivor when engaging in legal processes.  Victim-survivors also have better social outcomes with integrated services: social workers can conduct in-depth assessments of victim-survivors, thus once the “legal work” is completed, they can address the intersecting effects arising from coercive control, including homelessness, mental health and substance abuse. Addressing legal and social needs has the effect of reducing stigma a victim-survivor may feel, as well as increasing wellbeing and social participation.

  • Integrated services can help to prevent re-traumatisation

Victim-survivors can experience disempowerment when engaging with a system requiring them to constantly reiterate their traumatic experiences. Victim-survivors have various entry points into the family violence service system, including community legal services, as well as healthcare, social and family services. This can create an artificial division between the overlapping services providing support for victim-survivors, which can lead to re-traumatisation as the victim-survivor is forced constantly re-tell their story. Re-traumatisation can be avoided through integrated services sharing information as a trauma-informed approach. For example, a social worker and a lawyer may attend interviews with a victim-survivor, which can allow the social worker to make various referrals to other community services using the information the victim-survivor supplied (with consent) so that she does not have to repeat her trauma. This can reduce the stress and mental impact the victim-survivor would have experienced if she had to tell her story to different professionals- a social worker may make referrals to services to help the victim-survivor build her resume, obtain employment, connect with other victim-survivors, provide free childcare, financial counselling, psychology services or social housing services.

  • Integrated services can facilitate autonomy and empowerment of victim-survivors

Integrated services enhance feelings of safety for victim-survivors, contributing to their determination and strength to persist with justice system processes to hold perpetrators of coercive control accountable.  This underpins the recognition that they are not to blame for the abuse. Clients of integrated services also express their desire to empower others as wanting to “give back” and “make a difference” to other women as “survivors, not victims”. Clients of integrated services report significant positive reduction of the effects of coercive control from having engaged with integrated services, including an ability to access further education, psychological and emotional improvement, increased self-confidence and general happiness.

Next Steps

Coercive control is a form of family violence involving intimidation and coercion to control a victim-survivor or cause them to be fearful while diminishing any sense of autonomy. It can encompass many forms, including economic, social and psychological abuse. Due to deeply rooted notions of power asymmetries that are reinforced by gender stereotypes there is no easy solution to family violence itself. However, integrated services with lawyers and social workers offer part of the solution when responding to the effects of coercive control. While Australian policy recognises the importance of integrated family violence services, there is consistently a lack of funding by the government to implement strong, integrated services. Current funding for the establishment of integrated services does not match the community need, which inhibits the reach of integrated practice for victim-survivors of coercive control.  Long-term and increased funding is urgently required to address the effects of coercive control on victim-survivors through the develop and maintenance of integrated practice for the improvement of family violence services.

Author Biography

Becky Strauss is an undergraduate law student at Monash University with a particular interest in the social and legal implications of family violence. During her degree, she has completed a range of clinical placements in which she has provided support and advice to family law clients dealing with the consequences of family violence and interrelated legal problems.
Contact Becky via LinkedIn.