2014 Lawrie Moloney

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

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


Summary of findings (cont)

Partnerships that failed to thrive showed

Mutual mistrust

Lack of mutual respect

Unwillingness to engage with the other

partner



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



Benefits

Better inter-professional understanding

Move toward more integrated responses

Better outcomes for clients Legally informed decision making

Less adversarial dispute resolution


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.


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%).


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

2014 Lawrie Moloney

Presentations & Public Speaking

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