Raising the standard - A quality framework for primary dispute resolution under the Family Law Act 1975 - consultation paper - October 2001
Executive summary
The proposal in this paper represents one part of the Government's commitment to enhancing the use of primary dispute resolution (PDR) in family law. Since coming to office in 1996, the Government's reform agenda for family law has been to shift the focus from litigation as the first choice for the resolution of family law disputes. The Government's aim is to make the entire family law system more responsive to families in need, by making it simpler to negotiate appropriate outcomes.
Resolving disputes through litigation in the courts fosters adversarial behaviour between parties. In family law matters, such behaviour may make it difficult for the child to maintain an ongoing relationship with both parents and for parents to maintain their ongoing responsibilities. In appropriate cases, PDR provides an alternative to this adversarial approach, and assists parties to negotiate their own outcomes. Whilst the Government's commitment is to enhance the use of PDR, it requires that safeguards are in place for consumers and practitioners. This is because at the time of separation and divorce, many people are faced with having to make difficult decisions about parenting and financial matters and often feel that they don't know where to go or what to do (Donovan 2000, slide 12). There are particular matters in family law which must also be considered, such as ensuring that the best interests of the child are met, and that the safety of all parties is not jeopardized. To this end, the Government is seeking to adopt a light regulatory hand with regard to the delivery of PDR services in family law.
As part of the ongoing reforms to make PDR in family law both high quality and accessible, this paper proposes that a Quality Framework be developed. The Quality Framework will bring consistency to the treatment of family and child counsellors (counsellors) and family and child mediators (mediators) under the Family Law Act 1975 (the Act) and will provide a transparent mechanism, applicable to all counsellors and mediators interested in obtaining authorisation under the Act. Such a change is necessary to ensure the quality of all PDR services under the Act, whether funded by Government or not. The Family Law Regulations 1984 (the Regulations) will need to be amended to make reference to the proposed Quality Framework.
To summarise the overall approach it is proposed that:
- the Act and Regulations (amended as necessary) would define the legal relationships, rights, responsibilities and obligations of those entering into PDR processes, and include issues relating to admissibility of evidence, rights and responsibilities to decline or terminate processes, and powers to recognise and approve organisations and individuals; and
- the Quality Framework would provide a transparent and reliable means for improving practices and recognising and approving a wide range of organisations and, through them, individual practitioners. The Quality Framework would comprise the standards of practice and service delivery for minimum (core) requirements and processes for continuous improvement (aspirational). The Quality Framework would cover practice standards, qualifications, training, supervision, and other standards of practice and service delivery. The Framework would be standardised, but would be constantly reviewed, developed and improved by key stakeholders, including client groups, the industry/profession and government organisations, to reflect emerging ideas on good practice in PDR.
The consultation paper seeks feedback on the proposal to help develop its final structure and also inform development of the legislation to implement it. Questions to guide readers are posed throughout the paper. Comments and reactions are sought, either based on those questions or in any other format.
