Meeting the complexity of needs requires significant funding: Is the Family Court out of its depth?

The proposed network of family relationship centres, and the renewed focus on a child-centred approach to dispute resolution, provides an opportunity for the Family Court to support those that the justice system continually fails.

Women separating due to abuse, families under Protective Services, families from different cultures and other minority groups, need much more support through Family Court processes than is currently being provided. But more support will require significant funding and better links with existing social welfare infrastructure if it is to succeed.

Access to justice is linked to access to economic resources. Legal Aid does not provide adequate resources for appropriate case development or provide quality legal support to those most in need. So for those without economic resources, justice is effectively denied. The concept of a resource centre supporting families through divorce and custody, especially poorer ones is a good one.

However, if the Federal government’s proposal is merely driven by cost savings it will not be effective because quality mediation of complex issues requires solid, long-term, financial and administrative investment. If this new system is short-changed, it will be ineffective and just a tedious administrative gateway into the Family Court.

Institutions over-estimate their ability to mediate well. Mediation and dispute resolution is very difficult. Even for the majority, who suffer very little disadvantage, the process of dividing wealth and negotiating shared time with children fuels anxiety, increases anger and leaves those involved shattered. Any process aimed at supporting people through to a complete solution will be difficult to manage.

Legislatively orientated lawyers often languish in the intimacy of family mediation settings, more comfortable focusing on outcome, rather than process. In contrast, social workers and trained mediators often allow too much discussion, or too many players, so that those involved are overwhelmed and come away with little resolution. Most mediation is driven by results. Especially in a legal setting, the aim is to reach a conclusion - and this is frequently done far too quickly. I had personal experience of this during my sister-in-law’s recent Family Court mediations. Even though her former partner had been violent to her she was challenged by legal representatives who were keen to impress upon her that her ex-partner, “wasn’t that bad”. They spent more time convincing her to acknowledge his feelings, rather than validating her own. Emotions were not shared. They were squashed. She needed all her own strength and resilience to cope.

True mediation needs to be about sharing the emotion that is caught up in the process - because it is the emotion that drives it. Only when that is shared can people begin to perhaps talk about making concessions, because it is only then they can understand the emotional impact those concessions will make. Mediation also takes time. A lifetime of family issues cannot be resolved in a couple of sessions. It requires a range of counselling and mediation techniques over months to arrive at a suitable conclusion. Otherwise the final outcomes will not hold and families will end up repeating the process.

An example of this can be seen in the Victorian Child Protection system. Institutionalised practice leads to many repeat notifications. The Department of Human Services developed a series of “Innovation Projects” in areas with high incidences of re-notification. These projects pilot new approaches and focus on supporting families over the long term to keep them from returning to the system: A benefit to families and a cost saving to government. The key is a “long term” approach.

Consider these hypothetical examples based on cases I have seen during my work in social services.

• A couple with no shared assets disputing custody of a single child. There is a history of abuse against the mother while she was pregnant. The mother has two older children through a previous relationship and is currently involved in court proceedings over her 9 year-old daughter who was sexually assaulted by an adolescent male.
• A couple that separated due to claims of incest involving the paternal grandfather and their nephew.
• An Islamic couple separating because of an extra-marital affair by the mother where the father’s side of the family are denying her access to her children.
• A couple where the father had a nervous breakdown immediately after separation and the children are demonstrating extreme signs of stress and anxiety.

The people in these examples would find Family Court proceedings excruciating. A well-resourced family relationship centre with counsellors, legal advice, mediators and links to other social welfare services, like those for domestic violence and sexual assault, would provide a truly innovative approach to resolving separation, divorce and family disputes. It is a sensible approach that would assist in addressing the root causes of the problems that may have brought these families into the legal system to begin with.

Does the Family Court want to move away from dispassionate legal proceedings, where emotions are laid bare in an unsupportive environment, to a system that works through the complex issues, supporting families to focus on children and their needs rather than the division of wealth?

I don’t know. This new process is a significant departure from the traditional role of the courts to judge and apportion between two individuals, to one of providing understanding and support to both parties. One challenge is that the courts are being asked to cede some power. While this is a threat, it is also an opportunity. The development of this model will rely on input from a wide range of people. By working with these people the court may be able to create a new system, which is superior to what we have now. I hope those responsible for implementing this policy give it a good go.