This post is written by Mark Dickinson, PhD candidate at the University of Tasmania, and is based upon the paper that he presented at the ADRRN Roundtable in December 2019.
This research project explores the assessment of suitability for Family Dispute Resolution (FDR) – a decision making process which is a primary responsibility of a Family Dispute Resolution Practitioner (FDRP) (See generally Family Law Act 1975 (Cth) and Family Law (Family Dispute Resolution Practitioners) Regulations 2008 (Cth)). Before a joint FDR (mediation) session can be offered an assessment as to its suitability for the parties must first be conducted (Reg 25(1)). This discretionary assessment of suitability for FDR relies on the professional judgment of the individual FDRP. Using a mixed methods approach this research examines this assessment of suitability as undertaken by FDRPs working in a community-based, not for profit organisation in Tasmania.
From July 2007 the Family Law Act 1975 (Cth) has required separated parents and others to make a genuine effort to resolve their parenting dispute at FDR prior to filing in the family courts (s60I – note exceptions apply). FDR is a non-adversarial, alternative dispute resolution process akin to facilitative mediation. Coinciding with this mandating of FDR, 65 community-based, government funded, Family Relationship Centres (FRCs) were established around the country to provide free or nominal cost FDR services. The majority of FDR takes place in FRCs (see Moloney et al, p238).
It has been observed that clients engaging at FRCs are increasingly presenting with complex needs (see also Smyth et al, 10-11). The mandating of FDR and the establishment of FRCs has led FDRPs to be considered “gatekeepers” to the family court system. As a result, the nature and complexity of cases dealt with in an FRC can vary considerably.
The test to be applied in assessing suitability for FDR involves a consideration of the “capacity of each party to negotiation freely” having regard to a range of factors including: any history of family violence; the safety of the parties; equality of bargaining power; risk of child abuse; and the emotional, psychological and physical health of the parties (reg 25(2)). Communications made to an FDRP during FDR are generally confidential (s 10H); and subject to a specific court order, practitioners are not required to provide reasons for the determination of suitability for FDR. This research aims to shed light on this important decision of the FDRP.
One aspect of an FDRP’s competence in practice is the ability to effectively mediate a range of parenting disputes with varying complexity. It is argued that the greater the FDRP’s ability to effectively mediate complex (as well as less complex) matters, the higher will be the percentage of their caseload that they will assess as suitable for FDR and will proceed to a joint mediation session. FRC clients that are assessed as unsuitable for FDR are provided with a “section 60I certificate” to that effect and need to consider other options to resolve their dispute. Receipt of a s 60I certificate enables a party to file a parenting application in the family courts, though the cost of engaging a private legal practitioner in such proceedings is not a viable option for many. Research commissioned by Interrelate found that 41% of its surveyed FRC clients who received a not suitable certificate would have preferred to continue with FDR to resolve their dispute.
From a governmental perspective FDR is a cost-effective method of resolving family law disputes. An analysis by the Australian Government found that FDR conducted through FRCs and Legal Aid Commissions had a net cost per service of less than one fifth of the cost of matters finalised in the Family Court of Australia. Recent budgetary cuts to Legal Aid Commissions and Community Legal Centres are likely to reduce the number of clients having access to free or subsidised family law legal services. The recently published Australian Law Reform Commission Inquiry into the Family Law System supports the continued use of FDR. Within this context the Australian Government has shown an ongoing interest in exploring alternative outcome measures and funding models for FRCs.
A deeper understanding of the assessment of suitability for FDR using both quantitative and qualitative methods may support the adoption of the frequency of assessments of suitability for FDR as a further metric for measuring FDRP effectiveness in practice. Further research (beyond the scope of this project) may use the findings of this research to develop models for practice aimed at increasing the frequency FDR is assessed as suitable, and therefore of clients being offered a joint FDR (mediation) service.
Relationships Australia Tasmania
Relationships Australia Tasmania (RA Tas) operates all FRCs established in Tasmania, with centres in Hobart, Launceston and Devonport. RA Tas has provided in principle agreement to provide data for this research project. I was formerly employed by Relationships Australia Tasmania (“RA Tas”) as an FDRP and senior practitioner in FDR. In 2014 I conducted a pilot study at the Launceston FRC quantifying the number of section 60I certificates issued by its FDRPs. The pilot study suggested a significant variation between FDRPs of the frequency in which they assessed cases as unsuitable.
Having regard to the scope of the data sought, this research aims to answer the following research questions:
- Is there a significant variation between FDRPs of the frequency in which cases are assessed as unsuitable?
- What do FDRPs report they consider when assessing suitability for FDR?
- Assuming a significant variation is found to the first question, what factors reported by FDRPs appear most relevant in explaining that variation?
The proposed research involves at least two phases. The first phase of this research will cover a five year period and quantify: all certificate types issued by RA Tas FDRPs; the number of cases allocated to each FDRP; and the number of cases that proceeded to a joint FDR session. This data should show what variation exists between FDRPs of the frequency in which they assess cases as unsuitable (and suitable) – expressed as a percentage of total cases.
The second phase of the research will involve in depth interviews with RA Tas FDRPs, supervisors and managers to explore the decision making process of assessing suitability for FDR and endeavour to explain the anticipated variation in the frequency of cases assessed as unsuitable by those FDRPs.
It is hypothesized that the assessment of suitability may be as much an assessment for the FDRP as it is of the clients. This assumes an FDRP conducts the assessment and that FDRP will conduct the FDR session if the case is assessed as suitable for FDR.