Primary Dispute Resolution Services in Australia - Part 1

Joint meeting between the Family Services Council and the Family Law Council

May 14th 1998

Canberra

To View Part 2 of Letter: Part 2

To View Part 3 of Letter: Part 3

Background

The Family Law Reform Act 1995 provided as one of its objects encouragement of people to use primary dispute resolution (PDR) mechanisms (such as counselling, mediation, arbitration or other means of conciliation or reconciliation), rather than litigation to deal with issues arising on the breakdown of marriage.

In 1995 the Joint Select Committee in its report Funding and Administration of the Family Court of Australia recommended that federally-funded PDR services be available to a greater extent in a community setting to increase access and choice to the services outside a litigation environment.

The PDR services provided by the Court and community based agencies have largely developed separately, without an overall plan or significant liaison. The Government wants to ensure the best access to these services and the best results possible for users of PDR services.

In keeping with the recommendations of the Joint Select Committee to increase access to community based PDR services, and recognising that many issues would arise from any change to the existing way those services are delivered, the Attorney-General's Department released a discussion paper titled "Delivery of Primary Dispute Resolution Services in Family Law" in August 1997.

Submissions were received from a range of stakeholders including the Family Services Council (FSC), the Family Law Council (FLC), the Family Court of Australia, the legal profession, community organisations, community legal centres, legal aid providers, community and court based counsellors, professional bodies and individuals.

On 20 March 1998 the Attorney-General, the Honourable Daryl Williams AM, QC, MP asked the FSC and the FLC to meet and discuss four specific issues relating to PDR services. The Attorney conveyed his views to provide a context for the meeting which included:

Significant changes are needed to the way PDR services are delivered if we are to divert greater numbers of people from any involvement in adversarial processes in family law matters;
Exploration of the full potential of the existing system is an essential first step in achieving that important objective. It is clear that there is a great deal of work to be done in promoting primary dispute resolution methods in family law not only within the community generally but also among family law practitioners;
Within the existing structure of service, it seems likely that improved outcomes for clients could be achieved if the current roles of and relationships between all family law service providers were clarified;
That there is a great deal of confusion around the terminology, definitions and purpose of the range of services offered by the court and the community and how these affect clients and the choices they make.

The Attorney-General asked the FSC and the FLC to consider:
The current roles and relationships between all family law service providers including community based services, family law practitioners and the Family Court;
How a more effective partnership between these providers could be achieved to reduce the numbers of people commencing proceedings in the Family Court;
Any structural or practice changes that could be made relatively quickly and easily to support a stronger partnership approach that focuses on the client; and
Any structural or practice changes that would be necessary in the longer term for the community based services to take on a greater share of family dispute resolution services.

Meeting overview

The joint meeting has identified areas where there is agreement about the current system which could lead to improvements regardless of what decisions are made in the future. There was general agreement that the Attorney-General's direction to Councils to hold a joint meeting has stimulated a process of discussion and changes of attitudes.

Whatever decision is made about the delivery of PDR services many participants felt that specific funding would be needed to support and build a strategic alliance between stakeholders. There is a need for planning and policy integration and an examination of how links might be formed with relevant State/Territory agencies and bodies.

It was proposed by some that an office responsible for research and policy development could have a coordinating role which would fill a gap in the present structure. This body could be administered by a national task force extending beyond the court and community service providers to representatives from other community organisations, the legal profession and the public.

Some members felt that it might be beneficial for further joint meetings to take place or for combined working groups to be established once particular issues are identified from decisions made about the delivery of services. Any such activity would need to be endorsed by the Attorney-General and Councils understand that their role is to provide advice rather than to implement Government policy.

It should be noted that some members report a difficulty in giving advice when they are not clear about what decisions will be made by Government. However, they felt they could give more specific advice once decisions are known. There was a general feeling that while this report does not contain specific information upon which decisions can be made, it has presented some strategies and options for thought.

A number of participants wished to discuss issues other than the questions posed by the Attorney-General and in particular that any change from the status quo was appropriate.

The facilitator proposed that given this report lists a number of options and strategies Councils could meet again if the Attorney-General decided they should make recommendations for the delivery of PDR services.

meeting approach

A preliminary meeting was held to discuss procedure with the objective of ensuring that the one day joint meeting was productive. Attendees included;

Judith Roberts, Chairman of the FSC;
Jennifer Boland, Chairperson of the FLC;
Professor John Wade, facilitator for the joint meeting;
Helen Hambling, Assistant Secretary, Legal Aid and Family Services, Attorney-General's Department;
Richard Morgan, Senior Government Counsel, Civil Law Division, Attorney-General's Department;
Debra Wheare, Secretariat FSC; and
Jenny Degeling, Secretariat FLC.

It was decided that given the limited timeframe for Councils to consider the complex issues around the delivery of PDR services, the meeting would not focus on questions addressed in submissions to the Department's discussion paper as they were already under consideration by the Attorney-General.

Attendees considered the range of issues raised in the Attorney-General's letter and adopted the facilitator's suggestion that these could be separated into two groups of nine questions. The first group of questions constituted broad research questions which could not be adequately addressed in the joint meeting but would require specific attention on a relatively large scale. For example, to address a question about the current dispute resolution system would require further study, including a theoretical and diagrammatical map and although this would be important for future policy development it could not be adequately addressed at the joint meeting.

The questions which would not be considered at the joint meeting included:

How could further "investigative" work be undertaken in the area of dispute resolution?
(How) could different dispute resolution services be distinguished? (In concept and understanding)
How does the current system of dispute resolution actually work? (Too many myths and competing views on this (no shared understanding)
What relationships currently exist between different dispute resolution service providers?

The facilitator pointed out that international research has identified questions for the next decade of research into the delivery of dispute resolution services. These questions are listed at Attachment A and it is interesting to note that they are almost identical to the research questions proposed in the Attorney-General's letter of 20 March 1998.

Regarding research some attendees suggested we could look at the successes and failures in other jurisdictions, such as the United Kingdom and New Zealand, keeping in mind that this will not help determine all aspects of change in the Australian environment. It was also suggested that there might be a need to compare the area of PDR services with changes made to the social services in the Department of Social Security, the logic being that it is necessary to manage the system as well as possible whatever system is imposed and to learn from how others have managed change.

Participants to the Joint Meeting were provided with the FSC's, FLC's and Family Court of Australia's responses to the Discussion Paper prior to the meeting.

Participants

Facilitator: Professor John Wade

Family Services Council Family Law Council

Mrs Judith Roberts Chairman Mrs Jennifer Boland Chairperson

Dame Margaret Guilfoyle Ms Elaine Atkinson

Ms Susan Gribben Ms Dale Bagshaw

Ms Dale Bagshaw Ms Susan Blashki

Ms Dianne Gibson Professor Eleanor Bourke

Ms Helen Disney Mr Stephen Bourke

Ms Helen Hambling The Hon Justice Rod Burr

Ms Debra Wheare Secretariat Professor John Dewar

The Hon Justice Michael Hannon

Ms Annemaree Lanteri

Mr Richard Morgan

Mr Des Semple

Ms Jennifer Degeling Secretariat

Family Services Council Apologies Family Law Council Apologies

Mr Paul Tyrrell The Hon Justice Carolyn Martin

Professor Margaret Alston Family Court of WA

Mr Daniel Ford Dr Kate Funder

AIFS

Family Law Council Observers

Dr Carole Brown

Family Court of Australia

Ms Margaret Harrison Family Court of Australia

Attorney-General's Department Observers

Ms Renee Leon Civil Justice Branch

Ms Sue Pidgeon Civil Justice Branch