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Helen Rhoades 2008 Cairns paper 1 nov 11th

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Helen Rhoades 2008 Cairns paper 1 nov 11th Powered By Docstoc
					   Presentation to the Family Relationships Services Australia National Conference,
                     ‘Collective Wisdom: Together We Are Better’,
                              Cairns, 4-7 November 2008.


   VISION AND ACTIONS STEPS FOR ACHIEVING A PARADIGM SHIFT IN
     THE RESPONSE TO FAMILY SEPARATION INVOLVING CONFLICT


                              Associate Professor Helen Rhoades
                                   Melbourne Law School
                                  University of Melbourne
                                 h.rhoades@unimelb.edu.au




The brief for this session was to offer a vision and ‘action steps’ for a paradigm shift
in the way the family law system approaches post-separation disputes. As an
academic who specialises in socio-legal research, my thoughts on this topic are
informed by the data collected for two recent empirical studies I have been involved
in. However, before I commence I must stress that the insights I offer here reflect my
own views, and no responsibility for them should be accorded to my co-researchers or
to the Attorney General's Department which funded one of the studies.

The original aims and design of the Australian family law system

The first project I want to mention is one I am currently conducting with Shurlee
Swain, a Professor of History from Australian Catholic University, which is exploring
the early history of the Family Court.1 The family law system as we know it dates
from the commencement of the Family Law Act and the Family Court of Australia on
the 5th of January 1976. Interestingly, the key aims of these innovations were not
dissimilar to those that underpinned the dispute resolution component of the Shared
Parental Responsibility Act reforms in 2006. The social and political backgrounds to
the two sets of reforms were quite different: prior to 1976, divorce involved
petitioning the Supreme Court and proving some kind of ‘matrimonial fault’ (such as
adultery or cruelty) on the part of the respondent,2 it was largely a legal event, it was
costly, and the process of attributing blame almost inevitably engendered hostility.3
But much like the 2006 changes, the policymakers of the 1970s were concerned to
reduce the conflict associated with divorce and separation, and they placed a similar
emphasis on alternative dispute resolution processes to achieve this end.

Marketed as a ‘helping court’, the Family Court of Australia was designed to reduce
the acrimony and costs of fault-based adversarial processes and assist divorcing



1 The research project is funded by an Australian Research Council Discovery Projects grant.
2 Matrimonial Causes Act 1959 (Cth) s.28.
3 See Jenny Hocking, 'Lionel Murphy: A Political Biography' (1997) 157–8.



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couples to separate amicably.4 Unlike traditional courts, it was conceived as a ‘one
stop shop’ for couples facing relationship breakdown, with an emphasis on
conciliation rather than litigation.5 Its innovations included an in-house counselling
service, less adversarial trial processes with relaxed rules of evidence and specialist
judges selected for their suitability to deal with family issues, as well as a multi-
disciplinary approach to ‘custody and access’ decision-making, which placed expert
social science opinion about the welfare of the child above parental rights.6 In the
words of the then Prime Minister, Gough Whitlam, when introducing the reforms:

    ‘The essence of the Family Courts is that they will be helping courts. … Here will
    be a court, the expressly stated purpose of which is to provide help,
    encouragement and counselling to parties with marital problems, and to have
    regard to their human problems, not just their legal rights.’7

As part of our history project, we have been conducting interviews with the first court
counsellors, judges and registrars who were appointed to the Court, and family
lawyers who practised in the jurisdiction when the Court commenced operation. We
have also been gathering archival material from the time. It is clear from these sources
that the early operation of the new family law system was far from problem free. The
sacking of the Whitlam government two months before the Family Court was due to
open its doors meant that it commenced operation somewhat less than fully resourced
for its task, and as one participant in our study described it, the Court was a bit of ‘an
unwanted child’ for the Coalition government that inherited it.

But despite these problems, a strong theme running through many of the interviews is
a sense of optimism and shared purpose across the different professional groups in
wanting to make a difference to the lives of families affected by divorce. Counsellors,
judges, and lawyers have each spoken about their mutual commitment to making the
new family law system work, about the scope for innovation and for learning together
and from one another, and the capacity for combining their different backgrounds and
practice experiences to forge new ways of working with families. Permeating the
interviews are descriptions of high collegiality, of camaraderie, an easy informal
dialogue between the legal and counselling professions, and a feeling that everyone
was in this bold new social experiment together. As one participant said:

         “It was an experiment, everybody was trying to help, everybody was green,
         everybody was happy to try and make it work.”

But then a terrible thing happened, and everything changed. The Court and its
personnel became the targets of a wave of threats and attacks. This included stalking
and death threats against counsellors and judges, bombing and arson attacks on the
homes of lawyers and judges, and the murders of Justice Opas, who was shot at his
front door, and Pearl Watson, the wife of a second Family Court judge, who was
killed by a letter bomb when she collected the mail. But instead of an outpouring of

4 Leonie Star, Counsel of Perfection: The Family Court of Australia (1996), at 83; The Hon. John Fogarty,
‘Thirty Years of Change’ (2006) 18 Australian Family Lawyer 4.
5 The Hon. Alastair Nicholson and Margaret Harrison, ‘Family Law and the Family Court of Australia:
   Experiences of the First 25 Years’ (2000) 24 Melbourne University Law Review 756.
6 Kep Enderby, ‘The Family Law Act: Background to the Legislation’ (1975-76) 1 UNSWLJ 10;
7 Family Law Bill 1974, Second Reading Speech, House of Representatives, 28 November 1974 (Mr
   Whitlam).


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public sympathy, the victims of these attacks – the judges and counsellors of the
Family Court – were blamed for bringing it on themselves. The press of the day
linked the attacks to dissatisfied clients in child custody cases, suggesting that judges
and counsellors were biased against fathers,8 while other commentators and
organisations, such as the Divorce Law Reform Association, depicted the violence as
an understandable backlash against the Court’s interference in the family. Even other
courts offered little sympathy,9 suggesting the Family Court was at fault for being too
informal, and that it needed to enhance its authority and look and act more like a
‘proper court’.
Together, these events – the threats of violence, the blame, and the lack of support –
had an indelible effect on the fledgling family law system. The Court itself was
remodelled, and the relationships between those who worked in the system changed
along with it. Security became a feature of daily life, the informality and easy
communication were replaced by formal rules, judges were raised above the other
actors in the court room (both physically and symbolically), and a landscape of
separate spheres evolved.

Inter-professional relationships in the modern family law system

The other study that is relevant to this topic is one I recently conducted with Professor
Hilary Astor from the Sydney Law School and Professor Ann Sanson from the
Paediatrics Department at Melbourne University, which looked at the ways in which
family lawyers and family dispute resolution practitioners working in the system
today regard and manage their inter-professional relationships.10 This research
involved interviews11 and a questionnaire survey12 of the two professions which took
place in 2006 and 2007.13 One thing that is clear from the data collected for that study
is that the notion of separate spheres continues to characterise parts of the family law
system. In fact we found many practitioners have little or no collaborative contact
with the other profession. And in the absence of contact, we found there was often
little accurate knowledge of the other profession’s roles and responsibilities. As one
family dispute resolution practitioner in questionnaire survey noted:
8 See for example, ‘Media under fire on Family Court coverage’, Sydney Morning Herald, 6 September
     1984.
9 See ‘The legal silence is deafening’, Sydney Morning Herald, 16 July 1984.
10 The research project was jointly funded by an Australian Research Council Linkage Projects grant
  and the Australian Government Attorney-General’s Department. See H. Rhoades, H. Astor, A.
  Sanson, and M. O’Connor, Enhancing Inter-Professional Relationships in a Changing Family Law System:
  Final Report (The University of Melbourne, May 2008), http://www.law.unimelb.edu.au/files/Inter-
  ProfessionalRelationshipsStudyFinalReport.pdf
11 The sample of interview participants comprised 59 practitioners: 30 family law solicitors and 29
  dispute resolution practitioners. Each of the dispute resolution practitioners was employed by or
  worked as a consultant to one of four dispute resolution services chosen for this study: UnitingCare
  Unifam’s ‘Keeping Contact’ Program; Relationships Australia’s Family Mediation Service in Victoria;
  Victoria Legal Aid’s Roundtable Dispute Management Program; and the Family Court of Australia’s
  Mediation Section (as it was then known), operating in the Melbourne registry. The sample of family
  lawyers included solicitors who regularly referred clients to or worked with one (or more) of these
  programs.
12 A total of 456 practitioners completed the questionnaire, including 134 family dispute resolution
  practitioners and 322 family lawyers. The sample included family dispute resolution practitioners
  working in community-based and Legal Aid Commission family dispute resolution services and
  Family Relationship Centres. The family lawyers who completed the questionnaire comprised
  solicitors in private practice, including sole practitioners and solicitors working in both small and
  large law firms, and Legal Aid and community-based family lawyers. Practitioners were drawn from
  a diverse range of locations, including capital cities and regional and rural areas.
13 See for a detailed description of the sample and recruitment process, Rhoades, Astor, Sanson, and
  O’Connor, above n 10.


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        ‘A lot of my ideas about lawyers come from information that clients give me
        about what their lawyers have said, and I have no way of knowing how much
        of that is accurate’.

Indeed, at times the lack of contact was associated with distinct misconceptions about
the ‘other’ profession’s work practices, and not infrequently we found negative
stereotypes. At the extremes, there were perceptions of lawyers as ‘hired guns’ with a
vested interest in escalating parents’ conflict, and of dispute resolution practitioners as
hopelessly ‘warm and fuzzy’.

In her latest book, Personal Life, Carol Smart urges researchers and policymakers to
be careful not to erase the complex dimensions of individuals’ ‘real lives’, and warns
against the potential for people’s experiences to be ‘reduced to ciphers for a culturally
and historically specific knowledge-building industry’.14 Smart and others have used
this idea to talk about the construction of mothers and fathers in family law policy-
making.15 But the same risk applies when talking about the practices of lawyers and
mediators. However, if we move beyond these stereotypes and look at the ‘real
people’ working in the sector, we will find some ‘good’ and ‘bad’ lawyering and
some ‘good’ and ‘bad’ mediation practice and a majority of practitioners who believe
in, and are dedicated to, their work - and my hunch is that we would find many more
good practitioners than bad.

Indeed, the data collected for the inter-professional relationships study revealed that a
number of agencies and practitioners in the sector enjoy highly successful and close
working relationships with one another. We found these relationships were
characterised by a complementary services approach, in which practitioners viewed
each profession as contributing different but equally valuable skills and expertise to
the resolution of disputes, and there where was mutual understanding of - and respect
for - each profession’s roles. Some of these relationships involved a direct teamwork
approach, such as the Legal Aid model where lawyers and mediators work together
with clients, and others involved a more traditional mutual referral model, where
lawyers refer clients to dispute resolution services to help them manage their conflict
and improve communication, and dispute resolution practitioners encourage clients to
seek legal advice about their options and entitlements before finalising agreements.
In both models, the positive relationships we found exhibited a high level of inter-
professional trust, a sound appreciation of the responsibilities and constraints faced by
the other profession, and a commitment to collaboration.

Vision and action steps for advancing the family law system

Which brings me to my ‘vision’ for the family law system. In the end, my vision is
less a paradigm shift than a re-imagining of the collaborative multi-disciplinary
project that commenced in 1976, and a desire for the re-invigoration of the optimism,
and sense of adventure and fearlessness and shared purpose of those who worked in
the system in its formative years, before the violence worked its effect. That is, my

14 Carol Smart, Personal Life (Polity, 2007), at 190.
15 See for example, Richard Collier, ‘Rethinking Fathers’ Rights: Policy, Practice and the New
    Responsibility’ in J. Wallbank, S. Choudhry and J. Herring (eds), Rights, Gender and Family Law
    (forthcoming 2009).


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suggestion is really a call to revisit the original intention of the family law system but
with the greater breadth of knowledge and experience we have now - including our
greater understanding of violence - and to re-grow a culture of inter-professional
collaboration in which the multiple diverse needs of children, women and men are
provided for, including their legal needs, their need to grieve, their need for help to
manage conflict, for parenting skills, for counselling and therapeutic support, for
financial advice, and for safety, and in which the different expertise of the various
professional advisers in the system is used to support and complement one another to
ensure a holistic response to families affected by separation.

My two action steps for achieving this fearless collaboration also come from the
research data, and they give effect to the suggestions of practitioners who participated
in the recent inter-professional relationships study.

1. Dialogue and learning together

The first step involves creating greater opportunities for cross-professional
development and information sharing between the various professional communities.
This development was suggested by a large number of participants, of which the
following is an example:

       ‘I think some forums where we talk about our ideas and we talk about how we
       approach the sort of work would be useful, so some joint forums and some
       facilitated forums where we share our expertise ...’

Our inter-professional relationships research revealed a number of well developed and
highly successful models of this kind of inter-professional dialogue taking place in the
sector. One way forward would be to learn from these and consider how to replicate
them more widely in the sector.

2. New ‘one stop shops’

The second ‘action step’ looks back to the original intent of the family law system and
the idea of providing families with a ‘one stop shop’ where they can access the
various different services they need. Again, this idea was suggested by a number of
participants in our inter-professional relationships study.

       ‘That’s what I think would work, that we do work under one umbrella. That
       we don’t work against each other, we work together.’

One possibility for achieving this in the current system might be to broaden the range
of services currently provided by Family Relationship Centres, to include such things
as financial counselling and legal advice and family violence services, thereby
bringing together the broader range of expertise available in the system today and
allowing practitioners to provide complementary services and to learn from one
another.

My hope would be that through these kinds of initiatives, inter-professional
relationships of respect and trust might be generated, with benefits for both service
providers and families.


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