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Mediation after the 2006 family law reforms
Data from the first five years Lawrie Moloney and Lixia Qu
Australian Institute of Family Studies
Views expressed in this presentation are those of
the author and may not reflect the views of
the Australian Institute of Family Studies or
the Australian Government.
Main data source
Longitudinal Study of Separated Families
LSSF Wave 1:
10002 parents who had separated after the 2006 reforms –
interviewed 12 -15 months after separation
LSSF Wave 2:
7031 of Wave 1 parents retained in sample (71% retention rate) –
interviewed 25-28 months after separation
LSSF Wave 3
9,028* parents interviewed late 2013 - average of five years after
separation.
*5,755 members of the original sample and a “top-up” sample of 3,273 parents.
Structure of presentation
• Overview of relationship dynamics
• Parents’ use of/ response to services
• Sorting put parenting arrangements
• Pathways for parenting arrangements
• Views about processes
• Mediation and beyond
• Concluding thoughts
• Discussion
Perceived quality of inter-parental relationship
reported by wave and gender (all participants)
35.7 34.2 31.1 28.5 29.1 28.2
27.8 27.5 29.1
28.4 30.8
28.2
19.2 18.8 24.4
24.1 26.5
27.0
14.0 13.1
12.2 13.1
10.7 11.3
3.4 6.5 3.3 5.8 3.0 5.3
0
20
40
60
80
100
Fathers Mothers Fathers Mothers Fathers Mothers
Wave 1 Wave 2 Wave 3
Fearful
Lots of conflict
Distant
Cooperative
Friendly
Use of/response to services
Use of post separation services immediately
after the 2006 reforms Number and percentage change in total clients, by FRSP service type, 2006-07 to 2008-09
Source: FRSP Online Reporting Portal, 4 December 2009
% change from
2006-07 to 2008-09
FRC: 336%
FDR: 57.0%
CCS: 112%
POP: 163%
Applications for final orders in children’s
matters – pre and post reform Number of applications for final orders (children, children+property),
by court, 2004-5 to 2008-09
Source: FCoA, FMC and FCoWA administrative data 2004-09
Use of services for parenting arrangements or additional issues relating
to child’s other parent – previous two years, by gender, Wave 3 (Multiple responses allowed)
Types of services for parenting arrangements or additional issues
relating to child’s other parent, by gender , Wave 3 Multiple responses allowed
Type of (only most recent) services used: parents who used
services in the previous two years, by gender, Wave 3
Issues to be resolved through service use, parents who used
services in previous two years, by gender, Wave 3 Multiple responses allowed
Issues to be resolved through service use by type of service used,
parents who used services in previous two years, Wave 3 Multiple responses allowed
Views on helpfulness of services received, parents who used
services in previous two years, by gender, Wave 3. Excludes 2% “don’t know” or declined to answer
Sorting out parenting arrangements
Whether parenting arrangements had been sorted out,
by gender and wave ** p <.01; ***p < .001
Status of parenting arrangements in Wave 3 by status in
Wave 1, continuing sample Excludes 1% of parents “don’t know” or declined to answer
Status of parenting arrangements across three waves, by gender,
continuing sample Excludes “don’t know” and declined to answer in at least one wave (<1% for each wave)
Pathways for development of parenting
arrangements
Main pathway used for arriving at parenting arrangements
Parents who had sorted out or in the process of sorting out,
by wave
Main pathways used for parenting arrangements
By status of sorting out
Wave 3.
Main pathways used, by wave in which parenting
arrangements first reported as sorted out, continuing sample
Views about processes
Proportion of fathers who agreed,/strongly agreed with
statements about the process of reaching agreement, fathers
who had sorted out agreements by wave.
Proportion of mothers who agreed/strongly agreed with statements
about the process of reaching parenting agreements:
Mothers who had sorted out agreements, by wave
Proportion of fathers and mothers who agreed, strongly agreed with
statements about the process of reaching parenting agreements,
parents in the process of sorting out agreements, by wave
Family dispute resolution
Use of FDR, by gender and wave
Where did parents report attempting FDR
By gender and wave
Outcomes for parents who attempted FDR,
by gender and wave
Short to medium term parenting
arrangements following FDR State of parenting arrangements following FDR, at time of interview*
Source: LSSF W1 2008 * Average 12-15 months after separation
State of parenting arrangements, family violence/abuse,
and safety concerns for all waves,
by Wave 1 FDR outcomes, continuing sample
State of parenting arrangements, family violence/abuse,
and safety concerns for all waves,
by Wave 1 FDR outcomes, continuing sample
State of parenting arrangements, family violence/abuse,
and safety concerns for all waves,
by Wave 1 FDR outcomes, continuing sample
State of parenting arrangements, family violence/abuse,
and safety concerns for all waves,
by Wave 1 FDR outcomes, continuing sample
Where to next?
More coordinated interventions as a partial answer
FLS
2006 %
FLS
2008%
All EIS
%
FRC
%
FDR
%
FRAL
%
POP &
CCS %
Strongly
agree 1.4 1.3 6.3 20.9 3.6 2.5 8.7
Mostly
agree 27.4 30.7 44.5 63.1 50.0 59.3 53.4
Mostly
disagree 26.0 34.2 16.1 9.0 15.5 8.6 11.7
Strongly
disagree 9.3 20.4 5.4 1.2 8.3 0.0 4.9
Can’t
say/don’t
know
35.9 13.5 27.8 5.7 22.6 29.6 21.4
Totals 100 100 100 100 100 100 100
No of
obser-
vations
366 319 317 244 84 81 103
Agreement that FRCs have been able to work well in an integrated
way, family lawyers and service professionals, pre and post reform. Source Family Lawyers Survey 2006, 2008. Online survey FRSP staff 2009.
Kaspiew et. al., (2009) Table 4.25
Legally trained
mediators
Community based
mediators
Community/ other
relationship serv. FRCs
Pre reform (2006)
Post reform (2008) % % % %
None 28
20.2
34.4
51.1
8.5
7.7
*
10.7
< quarter 40.2
36.8
30.9
25.6
32.3
37.3
*
26.1
About a quarter 15.9
16.6
13.4
11.7
26.4
25.4
*
23.6
About half 7.5
11.4
12.5
6.5
17.0
15.4
*
18.7
About three quarters 2.9
5.2
4.7
1.9
6.5
6.8
*
8.4
> three quarters 5.5
9.8
4.1
3.2
9.4
7.4
*
12.6
Proportion of clients referred to services by family lawyers, by type
of service 2006 & 2008.
Source Family Lawyers Survey 2006 & 2008. Excludes “can’t say” 2.5% to 4.2%. Kaspiew et . al., (2009) Table 4.26
Summary of findings from AIFS evaluation of 2006
reforms: Lawyer/ relationship practitioner perceptions
Scepticism among family lawyers about whether Family
Relationship Centres (FRC) could work in an integrated
way with the rest of the family law system
Lawyers reported referring less than a quarter of clients to
other services (legally trained mediators, community based
mediators, relationship services, FRCs)
Reciprocal lack of certainty among lawyers and FRC staff
about the other’s capacity to screen for and deal with family
violence
Kaspiew, R.. Et al (2009) Evaluation of the 2006 family law reforms. Melbourne: AIFS
Kaspiew et al 2009
Steps beyond the divide
Lawrie Moloney, Rae Kaspiew, John de
Maio, Julie Deblaquiere, Kelly Hand and
Briony Horsfall (2011)
Evaluation of the Family Relationship Centre
legal assistance partnerships program: Final
Report. Melbourne: Australian Institute of
Family Studies
Background
65 Family Relationships Centres (FRCs)
established as central plank in 2006 family
law reforms
Purpose: to provide advice, referrals, and
services including counselling and family
dispute resolution
Original operating framework for FRCs
precluded lawyers from operating onsite and
setting up practices close to FRCs
FRC/Legal Assistance Partnerships
Program
Community Legal Centres (CLC) and legal
aid commissions (LAC) funded to partner
with FRCs to provide legal advice to
separated couples accessing FRC services
Reflected shift in policy from exclusion of
lawyers
Commenced operation December 2009
Program objectives
Improve focus on children’s best interests
Improve ability to address power imbalances
between parents in negotiation and
mediation
Maintain and strengthen focus on less-
adversarial dispute resolution
Themes and challenges
The program attempts to:
Improve system co-ordination: more efficient
progression through the system for clients
Improve integration
Build collaboration between lawyers and
family relationship practitioners
The partnerships
Four broad models:
1. Legal advice and assistance with legal
drafting support
2. Legal advice with group information
sessions
3. Legal advice with professional development
of FRC staff
4. Legal advice with lawyers assisted FDR
Source: Moloney et al 2011
Staff: In your view, to what extent do you agree or disagree that the
legal services provided to clients as part of the Legal Partnerships
Project is important in determining outcome of their case/dispute
Moloney et al (2011) Table 2.7
Staff response: The FRC Legal Assistance Partnerships
Program will improve my capacity to work with legal
practitioners or FRC practitioners Moloney et. al., (2011) Table 5.1
Summary of findings
All but one FRC participated
Overall the program was viewed very
positively by most professionals involved
Only two partnerships showed evidence of
“failing to thrive”
Importantly, client experiences were also
mostly positive
Source: Moloney et al 2011
Summary of findings (cont)
Partnerships that failed to thrive showed
Mutual mistrust
Lack of mutual respect
Unwillingness to engage with the other
partner
Source: Moloney et al 2011
Summary of findings (cont)
Ongoing challenges included:
Handling conflicts of interest, especially in areas
with limited legal services
Mixed experiences with group information sessions
Hesitancy in some partnerships about legally
assisted FDR
Source: Moloney et al 2011
Summary of findings (cont)
Benefits
Better inter-professional understanding
Move toward more integrated responses
Better outcomes for clients Legally informed decision making
Less adversarial dispute resolution
Source: Moloney et al 2011
A next step
Coordinated Family Dispute Resolution (CFDR)
Pilot Project
Kaspiew et. al., (2012) Evaluation of a pilot of
legally assisted and supported family dispute
resolution in family violence cases
CFDR is a process involving:
•a case manager/FDRP
•a specialist family violence professional (for the
person assessed to be the “predominant victim”)
• a men’s support professional (for the person
assessed to be the “predominant aggressor” - if
male)
•a legal advisor for each party and a second FDRP
• child consultant as required.
CFDR – a four-phase
case-managed process
• intake and specialist risk
assessment
• preparation for mediation
• CFDR mediation
• follow-up
Piloted in 5 locations across Australia
Why CFDR?
AIFS evaluations (and other studies) confirm history of
violence and other dysfuntional behaviours amongst
many separating families. These families
are the main users of FDR, lawyers and courts
have complex dynamics
attract (and often need) multiple professional inputs
are likely to achieve better outcomes when those
professional inputs are coordinated.
Selected observations/ conclusions
from the AIFS evaluation
Challenges in establishing and maintaining
collaborative relationships between each of the
partners in the five locations were often significant.
In each location, tensions of varying kinds arose to
varying extents. In most cases they were resolved and
did not impair the functioning of the CFDR process.
Tensions in the partnership in one location affected the
quality of the service provided to clients.
Selected observations/ conclusions
from the AIFS evaluation In another location, differing views on the application of
child-inclusive practice led to protracted discussions
and negotiations between the two organisations. These
appeared to be bearing fruit only as the evaluation was
coming to end.
Over about 20 months, the five pilot sites completed
126 cases: 27 reached mediation. Of these, mediation
resulted in a partial agreement in 13 cases (48%) and
full resolution in 10 cases (37%).
Selected observations/ conclusions
from the AIFS evaluation Practice in CFDR is very complex. Risk management
is an active and time-consuming process. Risks
escalate and abate as clients move through the
process.
Professionals in CFDR played an active part in guiding
clients through the process; collaborative practice was
critical to the efficacy with which they did this.
Most of the professionals involved in the evaluation
were very enthusiastic about the need for a CFDR-type
intervention.
Some clients for whom CFDR is not
appropriate
• high levels of violence
• parents with acute and ongoing mental
health and/or drug and alcohol
problems
• child abuse involving child protection
services
Concluding thoughts
The Evaluation of the 2006 family law
reforms highlighted a need for better
collaboration and integration, including
avenues for communication between
different parts of the system (see for
example Kaspiew et al p 110)
Concluding thoughts
The data presented show evidence over time of
•Less skepticism and increased levels of respect
between lawyers and family relationship
practitioners
•Increased willingness by both professions to
engage with each other in the service of their
clients
•Increased willingness to work cooperatively with
“challenging cases”
Concluding thoughts
The FRC-CLC Legal Partnerships program
reflected a serious attempt to create a more
‘joined-up’ system
In many ways, the Coordinated FDR pilot built
on the goodwill and positive results evident in
the FRC legal assistance program
The CFDR program was not continued but…
.
Final Reflection
Mandatory mediation (FDR) associated with a 25%
reduction in litigation over children.
Relatively small % (but large absolute number) of
seriously dysfunctional cases remaining in the
system require greater attention to coordinated
responses
Evidence that the spirit is willing, that inter-
professional progress has been considerable - but
that many challenges remain
Discussion