Australian Government: Attorney-General's Department
Australian Government: Attorney-General's DepartmentAchieving a Just and Secure Society

The delivery of primary dispute resolution services in family law - August 1997

Submissions closed on 28 November 1997.

EXECUTIVE SUMMARY

Why consider reform?

The Government is seeking to improve access to primary dispute resolution (PDR) services for families. The present delivery of federally-funded PDR services through the dual streams of the community sector and the Family Court may not be the best way to ensure that the most appropriate services are being offered. To examine how greater choice and improved access for people in crisis may be achieved, structural change needs to be considered.

The Paper examines the background to the debate about where federally-funded PDR services should be located and the best way to deliver these to the community. Firstly, there have been important reforms to family law in the past two years arising from the Family Law Reform Act 1995. These reforms have encouraged more families to use PDR services, where appropriate, to assist them to resolve their family law disputes in a way that avoids the trauma of litigation.

A recent parliamentary committee (the Joint Select Committee (JSC) on the Funding and Administration of the Family Court) has also recommended that federally-funded PDR be available to a greater extent in a community setting - so as to increase access and choice to the services outside a litigious environment. Recent general reforms to the way in which many traditional public services are provided are also important.

Objectives for improving the structures?

The principal objectives for any reformed structure are identified in the paper as follows:

Possible model for reform?

A new administrative structure is suggested as one possible option. At present, the Court is the provider of its own in-house services. Many community-sector PDR services are also funded by the Commonwealth through the Family Services Branch of the Attorney-General's Department. A structure along the lines discussed in the Paper would involve combining the current administrative responsibilities and budgets of the Family Court and the Family Services Branch.

If such a structure was established, the one central body could become responsible for the overall planning, policy and funding for all non-judicial family relationship services (including those currently provided by the community and the Family Court). A central body, which would be part of the Commonwealth, could manage the purchasing of services but would not be a service provider itself. One likely consequence of any such new arrangement would be that counselling and mediation services are provided to a greater extent in a community setting, rather than on court premises.

Issues and Questions?

The Government recognises that many issues would arise from any change to the way in which PDR services are delivered. The Discussion Paper highlights the major questions upon which the Government is seeking input from all interested parties. These include:

MAKING A SUBMISSION

Should you or your organisation wish to make a submission in relation to any of the issues or specific questions that are raised in this Paper, please send them to:

The Assistant Secretary
Courts, Tribunals and Administrative Law Branch
Attorney-General's Department
Robert Garran Offices
National Circuit
Barton ACT 2600

Submissions closed on 28 November 1997.

OVERVIEW

This Discussion Paper is divided into four sections. There are also two Appendices describing current services and the general context for reforms to the way in which federally-funded public services are delivered to the community. The third Appendix contains a list of questions.

  1. The first section outlines the Government's reasons for considering a greater community sector focus in the provision of federally-funded primary dispute resolution services ("PDR"). The underlying social policy basis of any reform is to provide better access to better solutions for disputes relating to family breakdown. This section acknowledges the growing importance of PDR in family law and the need to rethink the structures through which it is provided to the community.
  2. The particular objectives of the Government in developing a reformed structure are discussed in the second section. These objectives are to improve access for clients, to improve accountability in government spending, to introduce greater efficiency through contestability and to divert more people away from a court environment during their family disputes.
  3. A possible new model of service delivery is put forward for consideration in Part 3. This model would establish a single Commonwealth purchaser of PDR services, with provision by non Government providers.
  4. Part 4 addresses the specific issues that might arise if PDR services were not provided by the Family Court or available on court premises. A number of questions are asked, on which specific comment is sought. These include the role of a single administrative body; the impact of family violence; expertise of the Court's employees in court procedures; financial and professional accountability; quality assurance; unique client needs; contractual flexibility; access to services; diversion from litigation; authority of the Court; and case management.

1. BETTER ACCESS TO BETTER SOLUTIONS

How can the needs of families for primary dispute resolution ("PDR") services be identified and met in the most appropriate ways?

Which services are best provided through a court-based system, and which are best provided away from the Court in a community setting?

What distinguishes these two forms of service delivery, and how can clients find and choose the most appropriate service?

This paper seeks to address these questions for a number of important reasons.

The trauma of family breakdown has far-reaching social and economic effects for families and children. The Government is committed to helping families work their way through such difficulties with as much dignity and fairness as possible. Where necessary, the courts must provide the means for resolving disputes. However, a growing number of people are aware that solutions suited to their individual family circumstances and dynamics may be better achieved through alternative methods. In the family law context, these alternatives include counselling, mediation and arbitration.

These methods are now known as primary dispute resolution (PDR). Recent changes to the Family Law Act emphasise the importance of encouraging greater use of these methods of resolving disputes prior to seeking a court-imposed decision. The term "primary" in the Act is used, rather than "alternative", to convey clearly the message that these methods are to be the primary dispute resolution methods for family law matters.

Of course, PDR may not be an appropriate dispute resolution mechanism in all cases, such as those involving violence or abuse, where there are significant power imbalances between the parties. However, with the overall emphasis on seeking non-judicial solutions for families where appropriate, it is important to consider how families can best access and benefit from these kinds of services.

Since its inception, the Family Court has been a major provider of post-family breakdown primary (non-judicial) as well as secondary (judicial) dispute resolution services. Thousands of family breakdowns have been managed better because of its services. A range of PDR services is also provided by community-based organisations and these are also funded by the Government through the Family Services Branch of the Attorney-General's Department.

These community organisations have a long history in relationship support counselling, and a steadily increasing involvement in family breakdown counselling and mediation. A description of the services that are now available is at Appendix A.

The PDR services provided by the Court and by community-based agencies have largely developed separately, without an overall plan or significant liaison. There are also a number of other types of federal support services for families to which access could be improved via improved liaison with PDR service-providers.

As PDR becomes more accepted by the community as a means for achieving lasting and fair solutions, the Government wants to ensure the best access to these services and the best results that are possible. It is now timely to look beyond the two streams of services and specifically consider the most effective way to deliver the services to clients.

The Joint Select Committee (JSC) on the Funding and Administration of the Family Court made a number of recommendations designed to improve the services offered to the public in family law. The Attorney-General, the Hon Daryl Williams, in his speech to the National Press Club in October 1996, took up the challenge set by the JSC Report and stated that non-judicial/PDR services should:

This Paper expands on those objectives in the context of current, whole-of-government trends. Background to these trends is also outlined in Appendix B.

2. OBJECTIVES FOR AN IMPROVED STRUCTURE

The principal objectives for any reformed structure for the delivery of services to people dealing with relationship breakdown are essentially fourfold:

2.1 Diversion from litigation

In recent years, successive governments have sought to find better ways than the traditional, adversarial-based court system for the resolution of disputes. Nowhere is this more pressing than in the family law area where families do not have the personal resources, both financial and emotional, to cope well with the rigours of the adversarial system.

The outcomes for clients from PDR should be better than those from litigation because, in most cases, resolution will have been achieved with greater ownership and control for them. In most cases, it will also be cheaper and it will be quicker. Experience has shown that non-litigated resolutions, like mediation, more effectively meet the particular needs of the parties, producing high satisfaction and settlement rates, and are durable.1

A realistic goal is to ensure that those people who turn to the adversarial system only do so after trying every other means of resolution. This would not be appropriate in some cases where there is a history of family violence. However, it is only in cases where PDR has been unsuccessful or is not appropriate, such as in some family violence situations, that there should be a need for judicial determination.

2.2 Client Focus

Choice

Clients of relationship support and PDR services have diverse and changing needs. High on the agenda of the Government in addressing those needs is creating an environment in which there is a range of services that are readily accessible and that enable clients to choose the service that best meets their individual need. This can be addressed through adequate and appropriate location and mix of services.

Quality of service delivery

In managing the provision of any services to the community, particularly in a national context, consistency and a high level of quality is important and often difficult to achieve. Clear and publicly accountable methods for quality assurance are essential. When a client chooses a service provider, ideally the quality will be of a high standard no matter which service they choose.

Planning

Services provided should be based on what clients need and want. In planning and providing services nationally, the aim should be to avoid wasteful duplication as well as gaps. The available choice and accessibility should be the same across the nation.

Decisions about allocation of government funds should be based on a planning process that is capable of addressing all the consumer issues. Planning should be based on a national and thorough assessment of need.

2.3 Contestability

All levels of government are opening up the provision of services to competition amongst the full range of potential providers, including government, community sector and private sector. This is known as "contestability" and is designed to produce a clear separation between the government as purchaser and the provider of the service.

Separation of the role of purchaser from provider can improve the ability of government to evaluate the merits of particular services and government programs. This approach has been recommended by the National Commission of Audit in its June 1996 Report.

2.4 Accountability

Another recommendation of the National Commission of Audit was that outcomes should be clearly defined and efforts made to measure the quantity and quality of outcomes for clients. A rigorous accountability and performance monitoring framework is required to ensure that government is operating effectively, efficiently and transparently.2

Government programs should be delivered efficiently to ensure that revenue raised from taxpayers is not wasted. They should compare favourably with best practice standards of performance. Opening government service delivery programs to competition from external operators can act as a powerful spur to efficiency.3

Every organisation that receives public funds for particular purposes should be openly accountable for how those funds are expended and how they are meeting the particular purposes for which they were allocated.

3. OPTIONS FOR CHANGE

Since the Attorney-General first announced his proposal to look at directions for reform, there has been speculation about a number of aspects, including whether the Attorney-General's Department would suddenly assume the role of a counselling service. That is not an option under consideration.

This Discussion Paper and consultation process is designed to consider whether there is a better way to meet the needs of people trying to resolve family disputes without recourse to litigation. A key question is whether the current PDR services of the Court are best provided in a court environment, or whether families would be better-off with more community-based services. In the area of family PDR services, any reformed structure would not lessen the Government's responsibility for ensuring that proper services are available and accountable.

3.1 A single Commonwealth purchaser

Any model for restructured delivery of family law PDR services should be one that meets all of the objectives identified earlier in this discussion and permits greater interaction between all federally-funded services.

One possibility is that all Government funds currently spent on both court-based and community-based services be administered through a central point in the Commonwealth with the overall responsibility for delivery of all family law non-judicial services to the community. One approach would be to locate such an office within the Attorney-General's Department, combining the relevant administrative functions from the Family Court and the Family Services Branch of the Attorney-General's Department, and using a proportion of the budget from each of these two sources. For the purposes of this Paper this is referred to as the Office of Family Relationship Services. A brief outline of how it could work in practice is provided below so that the issues may be publicly debated.

An Office of Family Relationship Services could become responsible for the overall planning, policy and funding for all non-judicial family relationship services (including those currently provided by the community and the Family Court). The Office would not be a service provider itself and would be part of the Commonwealth. Funding allocations for PDR would continue to be determined and reassessed by the Government, but no change in the total budget for the combined functions is envisaged due to changed administrative arrangements.

An initial priority of such an Office could be to conduct a comprehensive analysis of need for family law services. One of the difficulties in the current system is that there is little comparable data available across all the services. This process could bring together data about supply and demand for family law services, and could include a thorough examination of the way in which family law services are currently being delivered by the Court-annexed services, by community-based services and by the private professions. It could also incorporate an examination of the links that exist or should exist with other Commonwealth, State and other family services and how to improve and develop liaison between all services. A study of appropriate models of service delivery would also be necessary.

The overall aim would be to develop an approach that:

(i) effectively promoted PDR processes over litigation processes in appropriate circumstances;

(ii) integrated preventative family services, such as marriage and relationship education, early intervention counselling and therapy, and ongoing support, more effectively with PDR; and

(iii) incorporated the Government's priorities for structural reform through greater contestability of service delivery.

The Office could consider whether PDR's current relationship with the adversarial system impacts on how effectively clients are diverted away from litigation. A key question would be whether families in crisis would be less likely to become embroiled in legal proceedings if the first services used were not within a court environment. If there were ample and accessible services available across the community, operating completely separately from the Court, which can meet clients' need for assistance in resolving their disputes, would fewer people turn to litigation?

Possible outcomes of such an analysis could include, for example:

On the basis of the findings from this examination of needs and available services, the Office could be responsible for strategically managing a shift in the desirable balance between Court-annexed services, community-based and private sector services over time.

3.2 Planning

An Office could develop comprehensive plans, taking into account identified needs and costs, on which to base funding decisions. If established, it would be well placed to take account of the need to provide services across the entire Australian community, including metropolitan, regional, rural and remote. It could examine ways to ensure services are available to the economically disadvantaged and those with a diversity of cultural and linguistic backgrounds.

All decisions relating to the delivery of the whole of PDR and relationship support services would consequently be made within one budget. The Office could incorporate into the overall strategy those preventative services which are now largely offered by community-based organisations.

3.3 Quality assurance

The Office could undertake the task of monitoring the quality of services, whether funded by the Commonwealth or not. Those who sought to be recognised as part of the family law system (by means of approval as family and child counselling organisations, family and child mediation organisations or as individual family and child counsellors or mediators in private practice) could be accredited through the Office.

It could be responsible for developing standards for the range of services it covered, with appropriate consultation. In the case of contracted services, it could also be expected that high quality standards would be assured largely by the contractual funding arrangements between the Government and the provider of the services ("the purchaser/provider relationship"). However, the Office could advise on the need for any additional Regulations, especially relevant to non-contracted services, and provide the means for enforcing compliance.

With sufficient resources, it could also develop a complaints mechanism for aggrieved consumers who had been affected by a service provider's failure to meet the appropriate quality standards.

3.4 Development of community awareness

An Office of Family Relationship Services could be responsible for campaigns and other mechanisms for informing the community about all the options available through the full range of accredited services, possibly including research into how people make choices. It could develop a marketing strategy which would effectively identify to the community, including the legal profession, that these services are official accredited services and part of the family law system. The community should be able to recognise easily a service that has been accredited by the Commonwealth and be sufficiently informed about the range of available services in order to identify and choose the one that is accessible to them and will meet their specific need.

This strategy would highlight the importance and benefits of all kinds of services in the whole family law system to counter any perception that non-Court services offer second class justice.

The Office could undertake responsibility for educating the legal profession about any new structure for family law service delivery, how their clients can access services and where they fit into the legal and court processes with which they are familiar.

3.5 Referral

The Office could develop referral mechanisms to operate effectively across all family law-type services, as well as liaison procedures with the providers of other types of family services. These would ensure there was adequate assessment of the needs of clients who approach a service for assistance so they could be referred, if necessary, to a different accredited service that would better meet those needs. The primary objective of this function would be to ensure that clients in effect could access a 'front door', representing all accredited services, through which they will be able to access the service they need quickly and conveniently.

Potential applicants to the Family Court could be directed to approach a Commonwealth-accredited service first for assessment and referral. However, for those cases that are unsuitable for PDR, it would be essential to ensure that clear access to the Court is maintained.

3.6 Support for the Court's Judicial Function

There is potential for the judicial functions of the Court to be more efficiently serviced with access to a wider range of services than it currently offers itself. The Office could also identify and accredit all potential providers able to deliver the specialist services the Court requires. In considering the best approach to this aspect of family service provision, extensive consultation would take place with the Court to ensure that the changes did not render its core judicial functions a disservice by causing delays, adding to costs or leading to unsatisfactory results for clients.

3.7 Transition

Any proposed changes would need to be developed in clear, managed stages over a number of years, with close attention to the need to consult thoroughly with all the affected parties. It would take time to address any structural or industrial issues that may arise, to develop the ability of other agencies to take on any new services, to assess the likely impacts upon consumers and to ensure that all the potential consequences have been considered so that the end result of better service to the community is achieved responsibly and within existing budgets.

Q1. Do you have any views on the role and responsibilities of an Office of Family Relationship Services?

Q2. Would better planning for management of standards and targeting of funds available for PDR services be achieved by a new structure?

Q3. How would the capacity of the Government to ensure high standards of primary dispute resolution be affected if the Family Court's non-judicial services were provided through contracts in the form of service agreements?

4. ISSUES FOR CONSIDERATION

There are a number of important issues that require further discussion, which have been outlined below. Many of these have been raised by interested organisations and agencies consulted in the preparation of this document.

4.1 Expertise of the Court

The Court has been a provider of primary dispute resolution services in family law since 1976. Its services have been fine-tuned over the years and the court staff have vast experience in the needs of actual or potential Family Court litigants. It would be critical that this expertise not be lost in any transition to a community-based model.

The counselling services that are provided in the Court are well regarded by the legal profession.4 One challenge would be to develop a similar level of acceptance and trust amongst lawyers of any providers outside the court system.

Many community-based services have provided couple counselling since the 1960s and mediation since the late 1980s and are also held in high regard by referrers (such as the legal profession) and have established excellent reputations in the work they do in counselling, therapy and mediation.

Q.4 Is the regard in which the Court's services are held sufficient reason not to make any changes?

Q.5 Could the expertise now located in the Family Court's counselling and mediation services be transferred and/or developed by any other service provider? If so, what sort of training would be required?

Q.6 Could any other service provider achieve the same acceptance by the legal community as the Court?

4.2 Family Violence

There are two issues related to family violence and PDR services. The first concerns the expertise of the Court in helping clients who are dealing with family violence issues and interaction with those State and Territory agencies involved in violence issues. This expertise also exists in community sector organisations although their experience at this stage may not be as extensive. The Court, like the community sector, has developed measures for dealing with families in which violence is an issue in both counselling and mediation. Its counsellors and mediators possess expertise in the identification of violence issues and an awareness of the capacity of the parties to negotiate (freely) where there has been a history of violence.

In more recent times, community-based services are being faced with this issue to a greater extent. Considerable expertise is being built up amongst them and special models of service delivery are being developed.

The second issue involves the extent to which the clients and staff of PDR services require the protection of security services currently available in the Court, but to a significantly lesser degree in community-based services. Both clients and staff of services may feel (and be) more protected in an environment that has relatively easy access to security and police such as the Court.

Q.7 Does the fact that the Family Court already has in place significant security measures to respond to a violent incident require the current model to be retained?

Q.8 Would community organisations be able to address security concerns if they were to provide services that the Court currently provides?

4.3 Authority of the Court

The authority of the Court has been cited as an incentive to the resolution of disputes by PDR methods. The basis for this assertion is that some clients may be unwilling to attend an apparently less 'official' form of counselling or mediation within the community. By resolving a dispute within the Court environment, or bargaining in the shadow of the law, it is possible that the air of compulsion that surrounds (even voluntary) court-annexed counselling and mediation is of assistance in bringing people to the 'negotiating table'. To a certain extent, this might be addressed by legislation but there is also an issue of perception. It is also suggested that, for some clients, this 'authority' preserves their own dignity. That is, they participate because 'the Court' requires them to do so - not their ex-partner.

Although the authority of the Court may assist in bringing people to the service, this same authority may prove detrimental to the final resolution of disputes by PDR. The ability of the parties to participate effectively in a session of counselling or mediation is not necessarily assisted by an element of compulsion. Clients may have less commitment to agreements reached partly under compulsion. The Court's own 1994 "Evaluation of the Family Court Mediation Service" noted that mediated disputes where a court application had already been filed were less likely to be successful. It noted further that "...the overlapping of the legal and mediation processes could interfere with the couple's capacity to be reasonable and conciliatory on the issues being contested. The fact that the great majority of cases with current applications still managed to reach a full or partial agreement via mediation is to be applauded, but for many of them the presence of a 'litigation shadow' was not conducive to a positive outcome."5

Similarly, the atmosphere of some Court Registries, with very evident security measures, may inhibit or intimidate people who would otherwise be willing to engage in primary dispute resolution.

Q.9 Is the status of the Court beneficial, detrimental or irrelevant to the process of effective counselling or mediation?

4.4 Beneficial effect on the adjudication process

The Family Court was set up as a 'helping' court. With the expanded emphasis on counselling, and now mediation and arbitration, it is possible that these social science disciplines impact favourably on the approach that the Court is taking to its adjudicative work. The Government would be pleased to hear views on this matter from professionals involved in the delivery of services, both non-legal and legal.

Q.10 Would the approach that the Court or litigants take towards judicial resolution of disputes be adversely affected by any reduction in the presence of PDR specialists within the physical environment of the Court?

4.5 Litigation/crisis link

The high level of conflict among clients of the Court's counselling service has also been suggested as a reason to have as much integration as possible with the other, more conventional dispute resolution streams of the Court. It may be that the 59% of the Court's counselling clients who approach the Court voluntarily do so precisely because they consider litigation to be extremely likely. The expert knowledge about the processes of the Court within the Court's in-house service may then assist people with family disputes at a crisis level to avoid the seemingly inevitable litigation stream.

Q.11 Are clients of the Family Court's primary dispute resolution services so entrenched in litigation-mode that they would or should only use the court-annexed services?

4.6 Diversion from Litigation

If some or all of the court-provided services not integral to the litigation process were provided in a community setting there may be a consequent reduction in the number of people becoming involved in litigation at all. This may occur because clients engaged in PDR away from court premises may be less likely to consider it an adjunct to litigation. From the perspective of the community at large, it may be of no importance by whom the counsellors are employed, merely how good the service is and what message is conveyed by the location of the service.

In support of the effectiveness of the Court's approach, the Court has cited a high level of settlement of proceedings (95%), although it is not clear whether this settlement rate is dependent upon the Court itself providing the primary dispute resolution services within its precincts, or at all. The Court's own research shows that the major reason for clients approaching the counselling and mediation services of the Court was to avoid litigation.

Although the final settlement statistics in the Family Court are good, a restructured system of delivery may further reduce filing rates or limit the issues on which filing occurs, thus reducing costs for the clients who need to use the Court's judicial services and potentially speed up movement through the system.6 This might result in clients accessing services earlier, or accessing services with a different focus, well away from the litigation stream.

If families can be and are encouraged to access these services before considering filing any court proceedings, indeed without having to enter Court buildings at all, they may be more able to resolve their disputes completely outside the litigation process. They may be less inclined to assume that litigation is the ultimate choice for resolving the dispute. They may be more committed to reaching their own resolution if they are outside the court system even though they may still be aware there is a decision-maker ultimately available should they not succeed.

Increased diversion from litigation could therefore be achieved by fostering greater recognition that PDR is not, in most cases, part of the litigation process but intended to be quite separate - a truly alternative means for reaching a solution. The Report "A Review of The Family Court" (New Zealand April 1993), asserts that many clients and lawyers saw counselling as a therapeutic process preliminary to Court proceedings, rather than as a genuine alternative dispute resolution method. That Report recommended that a Family Conciliation Service be established completely outside the Family Court, as a genuine alternative to litigation, however this recommendation has not been implemented.

Q.12 What is the effect of PDR services being provided on Court premises?

Q.13 Would more people be encouraged not to litigate if some or all of the voluntary pre-filing counselling and mediation services now conducted in the Court were based in the community?

4.7 Private sector practitioners

The proposal for restructuring the delivery of the non-judicial services of the Family Court focuses, at this stage, on an increased role for the non-profit community sector currently contracted to provide services through the Attorney-General's Department. This is due to the established relationship between government and the community sector in this area, as well as the quality control mechanisms that are currently being developed. However, in the longer term there would be no impediment to the Office of Family Relationship Services model being expanded to include contracting private agencies who were able to offer the required service. This would need to be underpinned by a publicly recognisable quality system.

Q.14 Are there any unique issues that arise from potential private sector involvement in the delivery of federally-funded services?

4.8 Registrar's Conciliation Conferences

Although primary dispute resolution is generally thought of as counselling, mediation and arbitration, the Registrars of the Court also conduct special conciliation conferences aimed at settling (mostly) property disputes.7 If mediation was used to a greater extent, it may be that the need for such a procedure, separate to pre-hearing conferences, would be reduced.

Q.15 Would the need for a Registrar's conciliation conference be reduced if more mediation options were available?

4.9 Access

The community sector organisations that provide family relationship services are located in city and suburbs. They are also available in many regional and rural areas throughout Australia, including via 008 telephone numbers. They also make available, although not universally at present, a range of times for appointments. This flexibility can suit people who do not work in CBD locations or who cannot attend sessions in normal working hours. By increasing available community services, ease of access could be increased.

A more community-focussed service may also allow for different service providers in different regional centres to be responsible for providing the PDR services now undertaken by the Court. This could allow for better targeting of particular client groups by taking into account regional access difficulties and diversity. The problems associated with waiting for the Court to come through on circuit may be minimised. Such a model could incorporate thorough, national needs-based planning as the basis for allocation of available resources.

Q.16 Could access to services be increased for people who need greater geographic and time flexibility by transferring more service provision to the community sector?

Q.17 Could a regional, as well as a national, approach be built into the provision of services in an open tender process?

Q.18 Would such an approach be beneficial in identifying needs for services?

4.10 Financial administration

Because the Court's funding of its PDR services is not separate from its judicial services, there is no easy means for the Commonwealth to ensure proper financial accountability. By opening up the Family Court's services to contestability and greater accountability this issue could be better addressed.

As discussed, one possible option is to separate clearly the funding and the provision of service to improve accountability for the services being provided. Under such a scheme, the funding that was needed for court-annexed services could be better monitored because it would be clearly distinguishable from the judicial and administrative elements of the Court's budget. Necessary adjustments to levels of funding available could be made on a more informed basis. More contestable processes would identify the most effective providers and enable identification and adoption of best practice standards.

Q.19 Would financial accountability be improved by separating the provision of the primary dispute resolution services from the Family Court?

4.11 Professional Accountability

The notion of accountability in this context encompasses the professional responsibility of mediators and counsellors for the services that they provide. The court-annexed services are now part of the Court hierarchy, but it is arguable that appropriate professional accountability in these disciplines is not ideally provided in a legally-dominated structure - that is, by a structure whose core function is the determination of disputes by judicial processes. Consumer concerns about the services, especially the voluntary ones, may not necessarily be addressed as well as they could be in such an environment. On the other hand, the performance of report writing functions and urgent counselling interventions may necessarily require direct accountability to the Court to ensure quality and appropriateness.

Q.20 Could better professional responsibility and accountability be ensured in most cases by a process outside a court structure?

Q.21 How would accountability to the Court in specific cases be addressed?

4.12 Flexibility of contract arrangements to meet client needs

Under a more contestable model, the assumption that clients necessarily receive the best or most appropriate services when these are provided by the Court or employees of a government entity would be challenged. If the possible model outlined earlier was adopted, the Office of Family Relationship Services could develop contracting and funding arrangements that were more adaptable to changing client needs and based on more rigorous performance data.

Q.22 Would an open tender process, by testing the merits of competing proposals, permit more effective identification of the best ways to fulfil the needs of clients for primary dispute resolution services?

4.13 Case management issues

Difficulties may arise for the Court in making an adjustment to working with services that are not part of its own administrative structure. These difficulties may include dual complaint structures, divergent professional expectations of the service and case management complexities.

There may be some criticism that disassociating PDR services such as counselling and mediation from the Court may lead people to see these as optional extras rather than as central to the family law process. If such changes were made, legislative provisions that encourage or require people to attend PDR services could be strengthened to assist in overcoming this problem. Assessment processes would need to allow cases that were unsuitable for PDR to be streamed directly into the Court system.

If a particular counselling service or a family report writing service is a necessary adjunct to litigation, there may be arguments for keeping the control of such services with the Court itself. Only the Court may be in a position to know what level of service is required in, for example, the family report writing field. Similar arguments may be made about needs for urgent counselling. However, for both situations, it is arguable that service needs should be determined in a wider policy context. Indeed, report writing is the only part of the Court's counselling work now contracted out, although only in a minority of cases.

There is also little doubt that there are benefits in the proximity that counsellors have to the court rooms in cases where there are urgent orders for counselling made in a hearing or where counsellors are required to give evidence in relation to a family report.8 Easy access to the Court files may also be a reason for retaining an integrated service at least in relation to cases in the litigation process.

Q.23 Would the management of the Court's litigation processes be adversely affected if the primary dispute resolution services were being managed by a government department?

4.14 How much counselling?

At present, the Court generally provides only an average of 1.8 sessions of voluntary counselling per client. However, due to different client groups and service types, community sector organisations have historically provided longer-term therapeutic services. If the community or private sectors were to assume greater responsibility for post-breakdown dispute resolution services it may be necessary to define the amount of counselling that is available.

By restricting the levels of service in such a manner, it may be suggested that there would be insufficient flexibility to meet client needs. Any such move would therefore require careful identification, in the legislation, of the purposes of this kind of post-breakdown service. It would also be necessary to negotiate with the Court about the level of service required to meet the needs of its clients within the litigation process, if this type of couns elling were to be provided outside the Court's own administration. This would be a matter of assessing the need and providing the appropriate level of service, based on current experience and practices.

If this was not done, there would be a chance that the removal of direct funding control from the Court may result in orders for counselling that could not be met by available resources.

Q.24 Would transfer of services to an external service provider create a need to control in some way the amount of court-ordered counselling?

Q.25 How could this be done without affecting the ability to meet client need?

4.15 A Mix of Models

There may be advantages to clients and the Government in separating the types of services that are now provided by the Court into those that are an intrinsic part of any litigation process and those that are genuine alternatives to that process. As suggested above, it may be appropriate to place in the first category the writing of family reports and the provision of counselling on an urgent basis during a hearing. In the second category, one could place mediation, interim court-ordered counselling and voluntary counselling.

Under a mix of models, those services intrinsic to litigation could remain either administratively provided by the Court or purchased by the Court on a contractual or case by case basis. Those which are not intrinsic to that process could be provided outside the Court under contract to the Commonwealth or Court.

Q.26 Are there any non-judicial services that the Court provides that are so intrinsic to the litigation process that they should always be managed by the Court itself?

Q.27 Do you think that for any such "intrinsic" services the Court should remain the provider?

Q.28 Could they be provided on the premises but purchased by the Court under contract or by the Commonwealth for the Court?

APPENDIX A. FAMILY LAW SERVICES NOW AVAILABLE

Overview

The Family Court's non-judicial services are funded by the Commonwealth directly through its funding to the Court, along with its judicial services. The range of services offered includes family and child counselling, both voluntary and court-ordered, family reports, telephone counselling, registrars' conciliation conferences and, in some registries, family and child mediation. Most of these services are provided by in-house employed counsellors or registrars.

The Commonwealth also funds community organisations to provide many of the same or related non-judicial family services to the community. To date, these two streams of services have largely developed and operated independently of each other, despite the overlaps in service delivery.

Types of services in the community and private sectors

The Commonwealth currently contracts the services of 83, mainly community-based, organisations in every State and Territory, which provide services at 380 venues (as at the end of April 1997). These organisations assist the community with marriage and relationship education, family and child counselling, adolescent mediation and family therapy, family skills training, family mediation and child contact services.

These organisations comprise a mix of small, single service venues through to larger organisations offering a whole range of services. This means that very few organisations are alike.

Non-profit community-based organisations providing these services are autonomous bodies usually directed by boards of management with community representation. The organisations raise supplementary funds by various means including voluntary fund-raising activities, church subsidies and fees for service, so the percentage of funding from government varies from one organisation to another. The organisations that provide family and child counselling, marriage and relationship education and family and child mediation request a fee for service and endeavour to supplement government funding by at least 25%. Organisations that provide adolescent mediation and family therapy, family skills training and child contact services are fully funded for those services. Commonwealth guidelines stipulate that any fees charged should reflect the ability of the client to pay and should not be a barrier to using the service.

When new funds have become available within the Family Services Program (administered by the Attorney-General's Department), needs-based planning is applied to identify areas of need and community-based organisations have then been invited by public advertisement to tender in competition for the provision of such new services. Both new and existing services enter contracts in the form of service agreements which identify the obligations of service providers in relation to the funding allocated.

Community-based Counselling

Family and child counselling under the Family Law Act is made available by the Government through community-based voluntary organisations contracted to provide these services. There are also a number of community organisations that purport to provide these services without funding from the Commonwealth. However, at this point such organisations are not approved under the legislation.

Forty one (41) organisations currently receive funding to provide family and child counselling to support families to resolve their relationship problems in the most appropriate and helpful ways and to learn communication and conflict resolution skills. Services are available to people during the periods of pre-marriage, marriage, separation, divorce and re-marriage.

Family and child counselling is also available to de facto couples even though, except in relation to children, they are not covered by the Family Law Act 1975.

Historically, the community-based services have focused on preventative relationship counselling. However, many have recently broadened their services to meet client demand for dispute resolution. Clients are presenting to these services at a more advanced stage of relationship breakdown and higher level of conflict. Particularly since the passage of the Family Law Reform Act 1995, many have also expanded their services to include child counselling and assisting separating parents to develop parenting plans. These shifts are leading to a greater overlap with the services offered by the Family Court.

An evaluation of contracted, community-based family and child counselling services was completed in September 1996. The evaluation considered the effectiveness and efficiency of the current arrangements, the cost of providing counselling services, models of service delivery, and issues that need to be considered in the development of future directions such as implications of changes to the Family Law Act and the level and extent of violence in relationships, as indicated during counselling.

Major findings from the evaluation included:

The evaluation also highlighted the need for the development of a quality strategy for these services, including a national system of data management to promote data collection and usage, self-assessment and service improvement. This is now being undertaken by the Attorney-General's Department in relation to all of the contracted services.

Private Sector Counselling

There is little detailed information on the availability of family and child counselling from the private sector. Clearly, private counsellors play a role in service delivery in the Family Court through their involvement in reports to the Court on child matters and as expert witnesses in that area. Since the passage of the Family Law Reform Act 1995, there has been an upsurge in interest in the private counselling profession in becoming authorised under Regulation 57 as a family and child counsellor. None has yet been authorised but the Department is developing appropriate guidelines.

Community-based Mediation

Seventeen (17) community organisations are approved by the Attorney-General to provide family and child mediation.

The 1996 reforms to the Family Law Act emphasise family and child mediation as a method of primary dispute resolution in family law disputes (along with counselling and arbitration). Family and child mediation is a voluntary process that enables parties to reach agreements about property, finances and ongoing care of children with the help of an impartial third person. It provides the opportunity for more dignified and respectful resolution of disputes associated with marriage and relationship breakdown than generally occurs in a highly adversarial litigation process. This is particularly important where there are children and the parents must continue to have contact and make arrangements about the children, which is best done without ongoing conflict.

In 1995, an evaluation services was undertaken in Melbourne of two federally-funded community-based services, together with a comparison to an earlier evaluation of the Family Court's mediation service. This evaluation found that:

During 1995 and 1996, an evaluation of federally-funded family mediation services was conducted in Sydney, covering the Family Court mediation service and three community based-services, which built on the findings of the earlier Melbourne evaluation. The Sydney study found that parenting issues were universally higher in the community mediation services than in the Family Court service. Fifty-five (55) % of closed disputes related to both children and property, 39% related to property only. Sixty-five (65)% settled fully.

The evaluation found that:

Marriage and Relationship Education

In 1995-96, thirty nine (39) organisations were receiving funding to provide preventative marriage and relationship education and enrichment services to meet the needs of couples both before marriage and at important stages in the life of their relationships. This includes significant points in the relationship life cycle and crisis points that can have a serious impact on the health and stability of a relationship. These services were expanded in the current financial year through an allocation of additional funding over the next three years.

Adolescent Mediation and Family Therapy

The federally-funded adolescent mediation and family therapy services were set up in 1990 in response to the report of the National Inquiry into Homeless Children by the Human Rights and Equal Opportunity Commission (1989). The report identified a paucity of early intervention services for parents and adolescents, which might prevent youth leaving home. The objective of the services is to reduce the level of conflict between adolescents and their parents, which can lead to the breakdown of relationships and youth homelessness.

The House of Representatives Standing Committee on Community Affairs Report on Aspects of Youth Homelessness (The Morris Report, 1995) recommended that, because of the effectiveness of the adolescent mediation and family therapy services, as indicated in an Australian Institute of Family Studies evaluation undertaken for the Attorney-General's Department in 1991, additional resources should be provided to relevant community agencies with expertise in adolescent mediation and family therapy (that is, the existing network of Attorney-General's-funded services). Three new services were funded in the 1995-96 Budget.

Child Contact Services

Children's contact services were established under the Family Services Program in the 1995-96 Budget. There are 10 services across the country.

The purpose of these services is to promote the safe and appropriate transfer of children between separated parents, and safe and appropriate interaction between the visiting person and the child during supervised visits. They provide a setting in which a child can maintain, or re-establish, a relationship with a non-residential parent when that relationship has been affected by conflict or violence in the family. These services aim to help people to reach the stage where they can independently manage their own changeover and visiting - ultimately aiming to reduce their reliance on the court system to resolve conflict or disagreements about contact with children.

Family Skills Training

Family skills training was first funded by the Commonwealth on a pilot basis from 1991 as part of the Government response to the National Committee on Violence Report. This training aims to promote positive parenting and non-violent problem-solving by providing families with parenting and family functioning skills.

Twenty (20) organisations are currently funded to provide this service. It is a preventative service aimed to meet the needs of vulnerable and disadvantaged people. An internal evaluation of the pilot projects, undertaken in 1992, found that the training was successful in meeting its objectives of assisting parenting skills and family functioning and that it was accessible to, and relevant for, vulnerable parents.

Family Violence and the Community Sector

Community-based organisations have recognised a shift in the clientele who are seeking their assistance over recent years and particularly with the passage of the Family Law Reform Act 1995. A significant percentage of clients assisted by organisations funded by the Commonwealth report family violence as a major issue in their relationship.

A number of projects have been undertaken to address this and to increase the skills and awareness of contracted organisations with regard to family violence as well as effective and coordinated approaches to dealing with family violence.

The findings from the projects will progressively inform the basis for administering all aspects of Commonwealth involvement in family services and form the basis for training for service providers in how to best meet the needs of families.

Family mediation and violence

An evaluation of family mediation and violence was conducted in community-based family mediation agencies to identify the extent to which violence was an issue in the population presenting for mediation, the agencies' responses, and client outcomes, and to make proposals for staff education and training. The study was conducted from August 1995 to June 1996.

Overall, the research found that the incidence of physical violence or other forms of abuse was high in relationships presenting to federally-funded mediation services. The research found that most services had established policies and procedures for dealing with family violence, including standardised screening formats and routine specific questions about violence. The research highlighted that mediators need to be very aware of the direct impact a history of violence may have on a person's ability to mediate.

Based on the evaluation report, training is now being provided to staff in funded mediation organisations across Australia to assist them to identify and respond appropriately to the complexity of violence issues presenting to mediation. The training addresses violence issues in mediation, including cross-cultural issues that cross over with violence, children as witnesses or victims of violence, and adolescents as victims, witnesses or perpetrators of violence.

Private Sector Mediation

The Family Law Reform Act 1995 introduced the definition of "family and child mediator". The definition includes a private sector mediator as well as an officer of the Court or an employee of an approved community mediation organisation. Regulation 60 of the Family Law Regulations sets out the qualifications that a private and a community mediator must hold. These include an appropriate tertiary qualification, specific mediation training and a period of supervised mediation.

All mediators' tertiary qualifications must be in law, social science or alternative dispute resolution. They must undertake further training in family and child mediation of twelve hours duration each year. The Regulations set out the factors that mediators must take into account before proceeding with the mediation. They also set out the kind of information that must be provided to a mediation client prior to mediation.

The National Alternative Dispute Resolution Advisory Council (NADRAC) has considered the requirements under the Regulations and has provided a report to the Attorney-General recommending some changes.

Types of Services in the Family Court

Conciliation Conferences

Under Order 24 of the Family Law Rules, the Court may direct litigants to attend a conciliation conference with a Deputy Registrar. The aim of these conferences is to attempt settlement of property disputes. However, an Order 24 conference may be held jointly with a counsellor if property and children's matters are inter-related. An Order 24 conference takes place after the first directions hearing and before the final hearing. The parties' legal representatives attend the Order 24 conference.

Court Counselling

The Family Law Act 1975 requires the Court to offer and promote counselling services. The range of services includes voluntary pre-filing counselling, voluntary post-filing counselling, court-ordered counselling, joint conferencing (Order 24) and specialised family report writing services.

Voluntary counselling prior to filing proceedings is offered by the Court (in accordance with Part 3 Division 4 of the Family Law Act). The Family Court advises that, on average, a client receives 1.8 sessions of counselling. It is understood that most clients receive one session, although a small proportion do receive more. The counselling available to voluntary clients is restricted to disputes involving children. The major source of referral to the counselling service for voluntary sessions is the legal profession. Sixty (60)% of voluntary clients have been referred to the Court by their solicitors.

The profile of voluntary clients of the Court's service, based on the information available from the Court, would appear to be people with high levels of conflict. Voluntary counselling is therefore characterised by the Court as crisis intervention, consisting of only one or two sessions on average. The Court's service may be distinguished from the kind of longer-term therapeutic services now being provided in the community sector by its immediate, dispute focus. However, fifty-nine per cent (59%) of the cases that come to the Court's counselling service are voluntary, pre-filing cases.

Court-ordered counselling occurs if a dispute proceeds to litigation. Fourteen per cent (14%) of the counselling service's caseload is pre-directions hearing work, and twenty-three per cent (23%) is post-directions hearing. Orders for counselling may also be made on an urgent basis during the later stages of the litigation. Such orders are made so that the parties may discuss the care, welfare and development of the child where the Court considers that there are differences between the parties in relation to these matters that may be resolved by counselling. The order to attend counselling may be made of a Court's own motion or on the application of a party or a child's representative.

As mentioned above, an order for counselling may often be made during a hearing with the intention that such counselling be received during a short adjournment of proceedings. The Court's counselling service therefore has counsellors on-call to deal with such urgent referrals.

Family Reports by Family and Child Counsellors and Welfare Officers

In proceedings relating to children under the age of eighteen, the Court may direct that the counselling service provide a Report on such matters relevant to the proceedings as the Court thinks desirable. Such orders are made under sections 62G and 55A of the Family Law Act and are often referred to as "reportable counselling" although no counselling in fact occurs in the preparation of a Report. These Reports may be written by officers of the Court counselling service or, under Regulation 8 of the Family Law Regulations, by contracted welfare officers.

The Report becomes part of the evidence in the proceedings. The counsellor or welfare officer who prepared the Report may therefore be cross-examined about the statements contained in the Report. These Reports may be distinguished from the appointment by the Court of experts pursuant to Order 30A of the Family Law Rules. The latter appointments are agreed between the parties, who share the costs of the expert. Such an expert would generally be appointed in very difficult children's matters, such as one in which allegations of sexual abuse have been made.

Structure of the Court Counselling Services

Counsellors in the Family Court of Australia are appointed as officers of the Court under Section 38N of the Family Law Act.9 The Court appoints counsellors with experience in family and child therapy and family relationship counselling.

The counselling service of the Family Court of Australia, as with other non-judicial services within the Court, is funded out of the general funding that the Court receives. There are no quarantined funds for the service and no accounting separate from the other services of the Court.

The Family Court of Australia counsellors are accountable to the Principal Director of Court Counselling, the Chief Executive Officer and subsequently to the Chief Justice of the Family Court. Any complaints against these court counsellors are dealt with internally. In Western Australia, ordinary disciplinary matters would generally be taken through the human resources processes of the WA Department of Family and Children's Services.

Mediation in the Court

Mediation is available in the Melbourne, Sydney, Brisbane and Parramatta Registries of the Court. A pilot program was also run in 1996 by the Family Court of Western Australia. The Family Court states, in its Annual Report for 1995-96, that the integration of the mediation service with its existing conciliation and counselling services is continuing. Integrated Client Services is a program that the Court is now piloting in order to better identify the type of dispute resolution procedure that clients of the Court require. Through a special pilot intake procedure, the Court is identifying which form of dispute resolution would suit parties to proceedings in the Court - rather than immediately referring everybody to counselling. In this way, the Court is trialing whether more appropriate and effective referrals can be achieved.

Mediation is available to both litigants and to people who are yet to file proceedings with the Court. In fact, 83% of mediation clients approach the Court's service prior to filing any application.10 On average, a mediation takes 2.4 sessions of approximately two hours each. The mediations may relate to both children and property issues, but only 6% of mediations dealt with children's issues alone. The Court advises that 65% of all mediated disputes were fully settled and that an additional 14% settled at least one substantial issue.11

Mediators are either Registrars or Court Counsellors. Mediations are generally conducted by co-mediators, one from the legal stream and one from the counselling stream. There is always one male and one female mediator. An intake session occurs prior to any mediation. Amongst other things, this serves to satisfy the mediators that the particular clients are suitable candidates for mediation.

The Court received additional funding for mediation, through the Justice Statement of the previous Government, in May 1995. However, funding was not quarantined for mediation within the Court and it is understood that not all such funds went to mediation.12

As mediators are officers of the Court, they are accountable to the Directors of Court Counselling and Mediation, the Registrar and subsequently to the Chief Justice of the Court.

Information Sessions

Information sessions about the Court's primary dispute resolution services, and the litigation process generally, are regularly offered by the Court to the general public. The purpose of these sessions is to provide advice about the Court's services to people who are in dispute. If a person has filed proceedings with the Court and has not attended such a session, generally he or she will be directed to attend one at the first return date. The information sessions also provide an overview of the litigation process and how the Court's primary dispute resolution services fit into that process. A separate mediation information session is also available.

Other programs

The Court also offers some group sessions aimed at dealing with the effects of family break-up and the litigation process. There are separate programs for children and parents.

APPENDIX B. THE PUBLIC SECTOR ENVIRONMENT FOR REFORM

In common with all service industries, public services are now subject to pressure to redesign activities to deliver better results. There have been some significant recent developments that have a direct impact on the Government's approach in this area.

These include:

The Government wishes to improve efficiency and increase choice and responsiveness to peoples' needs in all areas of government service provision. In some areas, this involves questioning the role of government agencies as service providers. In the area of family dispute resolution, where there is a range of providers including Court-based, community-based and private practitioners, a key issue is how well this arrangement meets the needs of families.

The public sector has been traditionally defined by Government ownership. This model is now under challenge because experience in recent times has identified its limitations. Governments are increasingly choosing to apply available resources in more flexible ways, sometimes through their own services and sometimes through outside organisations.

This has been recommended by the National Commission of Audit in its June 1996 Report:-

"Governments as far as possible should operate as funders of programs, with funding separate from the actual delivery of services involved. Service delivery should be as competitive as possible. Service suppliers, whether public or private, should be required to tender or otherwise compete for the right to deliver government services. Subject to safeguards to protect service quality, this helps ensure service efficiency."13

This process has been described as making the provision of public services "contestable".

The Commission said government should try to separate its role of (i) forming policies and funding a set of outcomes for its citizens from (ii) the role of delivering the outcomes to its citizens. While government must act as an agent for the consumers of public services, the political system does not require government necessarily to act as the producer of these services.14

Other advantages of contestability are:

Clear accountability is an important outcome of separation between purchaser and provider. It gives the purchaser control of the accountability framework - without this, the temptation for the in-house government provider is to report only the positives and gloss over or ignore the negatives.

Separation also allows the manager of the relevant services to be fully accountable for ensuring efficiency and effectiveness.

This Paper is premised on the continuing need for family dispute resolution services. The alternative models under consideration are related to whether the needs of clients could be better served by a different combination of service providers.

APPENDIX C. SUMMARY LIST OF QUESTIONS

Q1. Do you have any views on the role and responsibilities of an Office of Family Relationship Services?

Q2. Would better planning for management of standards and targeting of funds available for PDR services be achieved by a new structure?

Q3. How would the capacity of the Government to ensure high standards of primary dispute resolution be affected if the Family Court's non-judicial services were provided through contracts in the form of service agreements?

Q.4. Is the regard in which the Court's services are held sufficient reason not to make any changes?

Q.5. Could the expertise now located in the Family Court's counselling and mediation services be transferred and/or developed by any other service provider? If so, what sort of training would be required?

Q.6. Could any other service provider achieve the same acceptance by the legal community as the Court?

Q.7. Does the fact that the Family Court already has in place significant security measures to respond to a violent incident require the current model to be retained?

Q.8. Would community organisations be able to address security concerns if they were to provide services that the Court currently provides?

Q.9. Is the status of the Court beneficial, detrimental or irrelevant to the process of effective counselling or mediation?

Q.10. Would the approach that the Court or litigants take towards judicial resolution of disputes be adversely affected by any reduction in the presence of PDR specialists within the physical environment of the Court?

Q.11. Are clients of the Family Court's primary dispute resolution services so entrenched in litigation-mode that they would or should only use the court-annexed services?

Q.12. What is the effect of PDR services being provided on Court premises?

Q.13. Would more people be encouraged not to litigate if some or all of the voluntary pre-filing counselling and mediation services now conducted in the Court were based in the community?

Q.14. Are there any unique issues that arise from potential private sector involvement in the delivery of federally-funded services?

Q.15. Would the need for a Registrar's conciliation conference be reduced if more mediation options were available?

Q.16. Could access to services be increased for people who need greater geographic and time flexibility by transferring more service provision to the community sector?

Q.17. Could a regional, as well as a national, approach be built into the provision of services in an open tender process?

Q.18. Would such an approach be beneficial in identifying needs for services?

Q.19. Would financial accountability be improved by separating the provision of the primary dispute resolution services from the Family Court?

Q.20. Could better professional responsibility and accountability be ensured in most cases by a process outside a court structure?

Q.21. How would accountability to the Court in specific cases be addressed?

Q.22. Would an open tender process, by testing the merits of competing proposals, permit more effective identification of the best ways to fulfil the needs of clients for primary dispute resolution services?

Q.23. Would the management of the Court's litigation processes be adversely affected if the primary dispute resolution services were being managed by a government department?

Q.24. Would transfer of services to an external service provider create a need to control in some way the amount of court-ordered counselling?

Q.25. How could this be done without affecting the ability to meet client need?

Q.26. Are there any non-judicial services that the Court provides that are so intrinsic to the litigation process that they should be always be managed by the Court itself?

Q.27. Do you think that for any such "intrinsic" services the Court should remain the provider?

Q.28. Could they be provided on the premises but purchased by the Court under contract or by the Commonwealth for the Court?

Endnotes

1 Evaluation of Federally Funded Family Mediation in Melbourne and Sydney, 1995 and 1996

2 National Commission of Audit Report 1996, p. 7

3 National Commission of Audit Report 1996, p. 8

4 Lawyers refer nearly two-thirds of the Court's voluntary counselling clients

5 Bordow, S. and Gibson, J., "Evaluation of the Family Court Mediation Service" 1994 Research Report No 12. Family Court of Australia Research and Evaluation Unit, p.84

6 The Court advises that 74% of Counselling Service clients will settle at least one issue prior to filing. Overall, 95-96% of applications filed are settled without proceeding to judgment. Family Court of Australia, Submission to the Joint Select Committee on Certain Aspects of the Operation and Interpretation of the Family Law Act, 1992, Term of Reference (a).

7 Order 24, Family Law Rules

8 In WA, half of all conciliation conferences involving the counselling service are done on the same day as the hearing.

9 Counsellors in the Family Court of Western Australia, other than the Director of Counselling, are employed as officers of the WA Department of Family and Children's Services.

10 Family Court Annual Report 1995-96, p.48

11 ibid

12 Use of Justice Statement Funds and Financial Position - Family Court of Australia, Report of the Auditor-General, 1996

13 National Commission of Audit Report 1996, p. viii

14 National Commission of Audit Report 1996, p. 9