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information - new child dispute processes in the family court
New approach to child dispute services in the Family Court of Australia
Dianne Gibson, Director, Child Dispute Services, Family Court of
Australia.
A newly developed model for working with families when there are disputes
over arrangements for children following family separation is intended to
reshape services currently provided by the Family Court's child dispute
service. The model is called the Child Responsive Model.
The Australian Government has announced its intention to reshape the
Australian family law system by providing additional funding for community
support services for separating families. Family Relationship Centres are
being established across Australia and (from 1 July 2007) families will be
obliged to attempt to resolve disputes in the community prior to filing an
application in the courts.
It is expected that the nature of disputes likely to be determined by
family courts will become more complex with the filtering effect of the
Family Relationship Centres, additional funding for existing family
relationships services in the community, and the requirement to attempt to
resolve disputes prior to filing an application in the Family Law
Registry.
In response to this, family courts will need to refocus child dispute
services in order to be more responsive to the complex needs of families
requiring a determination of their disputes.
To this end, a new approach to child disputes will need to be implemented
to avoid the duplication of services available in the community and to
better assist families and courts determining complex matters.
Prior to the legislative changes that came into effect on 1 July 2006, the
Family Court of Australia s child dispute services fell into two
categories: the resolution phase, where privileged mediation (Anything said in privileged mediation is not generally given as evidence in court) was provided
to assist parents reach their own agreements regarding arrangements for
children; and the determination phase, where non-privileged family
assessments were conducted and a Family Report was provided to the
Court. Different mediators were required to work with the family in these
two different phases.
To ensure a logical progression of services for families from the
community sector to family courts, the new child responsive model is non-privileged
to avoid duplication of privileged services available in the community.
The model includes expert assessment and opinion provided to families, legal
practitioners and the Courts in a way that is not available in community
models.
In the new approach, one family consultant will be allocated to each case
and will work with the family until the matter is settled or adjudicated.
This will provide the family with continuity and consistency of approach
and will provide the family consultant with an opportunity to develop a
professional relationship with the family. This new approach also aims to
provide a more holistic and thorough assessment of the family over time
when a Family Report is required for trial.
Children will have greater involvement in the new approach. Where
appropriate, children will be interviewed early in the process, prior to
the trial. The current court processes only involve children late in
proceedings when a Family Report is being prepared. The new process aims
to ensure that parents become aware of the impact of their conflict on their
children as soon as possible in the proceedings. This approach will
provide support for children and an opportunity for them to talk about their
experience and put forward their views, while assisting parents to refocus
on the needs of their children. This early intervention with children will
integrate effectively with the less adversarial trial approach being
implemented in the Family Court of Australia.
Screening, assessment, inclusion of children s views, expert opinion, and
a Preliminary Report will be features of different stages of the child
responsive model and will provide the family with various opportunities
for settlement in response to these different interventions. There will be
more feedback loops to the family, their legal representatives and the child s
independent lawyer, thereby maximising opportunities to reality test the
positions taken in the dispute.
In an integrated approach to dispute resolution, families would be
referred to community services when alternative dispute resolution opportunities
are identified or where parallel support services can assist the family.
It is anticipated that the Preliminary Report that will be provided at the
time of the feedback meeting with the family and legal representatives
will be useful for negotiating settlements. It is well known that Family
Reports provided prior to trial often promote settlements and a Preliminary Report
earlier in the proceedings could provide similar settlement opportunities.
The Preliminary Report could assist family courts to determine matters
that do not require the more costly and time consuming preparation of a full
Family Report. When cases proceed to trial and a full Family Report is
required, the family consultant who has worked with the family will
prepare the Family Report. This is expected to enhance the family s confidence
that the family consultant has had adequate opportunity to assess the family
dynamics, issues and the best interests of the child over time.
The new model has a post-determination stage which is intended to assist
families and children to understand and implement orders following a
determination. At this time, appropriate referrals could also be made to
community services. The new model is proposed as a more intensive and
responsive approach to disputes involving children and will target the
more difficult and complex cases that will flow from the community sector. It
is intended to maximise opportunities for assessment and settlement without
duplicating privileged services available in the community.
The challenge for the new approach will be to synthesise dispute
resolution with assessment in a clear and transparent model that provides feedback to
parents and their legal representatives prior to trial, and provides the
same preliminary expert views to the judge on the first day of the less
adversarial trial program when no agreement can be reached prior to trial.
The new model also aims to provide opportunities for families to be
referred back to community services after an application has been filed.
These referrals may be for further privileged dispute resolution, for
education and group programs, or for individual support or other
counselling. Where families are accessing both court services and
community services, procedures will need to be developed to ensure that referrals
are facilitated in an easy way for the family and that some communication is
possible between all service providers to support case management and
ensure that referrals are appropriate.
The new child responsive model includes the following key features:
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services will be integrated with the core business of the Court
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all interventions will be non-privileged
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children will be included early in the process
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one family consultant will work with the family until the case is
resolved or determined
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feedback loops to parents, significant others and legal representatives
will provide settlement opportunities
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prior to trial a Preliminary Report will be provided as part of the
feedback process to families and legal representatives
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the Preliminary Report will be available to the judge on the first day of
the less adversarial trial program
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the family consultant will provide expert advice from a social science
perspective to the Court on day one of the trial
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the family consultant will assist the Court to identify relevant issues
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the same family consultant will provide a further Family Report if
required
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a post-determination interview will assist the family to implement the
orders and arrange appropriate referrals to community services
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all stages of the model will be integrated with community services
The Child Responsive Model is currently being evaluated and we look
forward to the findings of the evaluation later in the year.
Further information about the Child Responsive Model is available from:
Pam Hemphill
Policy and Practice Advisor to the Director Child Dispute Services
Family Court of Australia
Phone: 08 8219 1667
Email:
pam.hemphill@familycourt.gov.au
Source:
www.aifs.gov.au/afrc/pubs/newsletter/newsletter1.html
http://www.aifs.gov.au/afrc/pubs/newsletter/n1pdf/n1.pdf
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