Submission to the ALRC Enquiry into the Family Law System

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AUSTRALIAN ASSOCIATION OF COLLABORATIVE

PROFESSIONALS

Submission to the ALRC Enquiry

into the Family Law System

Submitted By:

Australian Association of Collaborative Professionals (AACP)

www.collaborativeaustralia.com.au

info@collaborativeaustralia.com.au

P.O Box 3301

East Perth WA 6892

Phone 08 92280811 (Secretary)

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Table of Contents

Introduction and Collaborative Overview……………………………………………

Basis of Submission ....................................................................................................... 3

What is Collaborative Practice ....................................................................................... 6

AACP ................................................................................................................................ 8

AACP Board ..................................................................................................................... 9

A Brief History of Collaborative Practice ....................................................................... 9

Collaborative Practice in Australia ............................................................................... 10

Research Papers, Surveys and Australian Family Law Council Report to the

Attorney General ........................................................................................................... 15

Family Law Council Report to the Attorney General of Australia on Collaborative

Practice – December 2006 ............................................................................................ 16

Literary review ............................................................................................................... 17

ALRC SUBMISSIONS PAPER - QUESTIONS ............................................................18

Objectives and principles ..........................................................................................18

The role and objectives of the modern family law system ......................................... 18

Principles guiding redevelopment of the family law system ...................................... 18

Access and engagement ...........................................................................................19

Improving access to information about family law and family law related services 19

Improving access to the family law system for rural, regional and remote individuals

........................................................................................................................................ 19

Changes to the family law system to reduce client costs in resolving family dispute

........................................................................................................................................ 20

Resolution and adjudication processes ...................................................................21

Changes to court processes to facilitate timely and cost-effective dispute resolution

........................................................................................................................................ 21

Diverting litigation to other dispute resolution processes or services ..................... 21

Modifying current dispute resolution processes to provide low-cost options for

resolving small property matters ................................................................................. 22

Improved court support for parties experiencing family violence or abuse ............. 22

Legally-assisted family dispute resolution in family violence or abuse matters ...... 23

Misuse of process as a form of abuse in the family law system ................................ 23

Development or expansion of non-adjudicative dispute resolution processes to

resolve disputes in a timely and cost-effective way ................................................... 24

Annexure A .................................................................................................................... 28

Bibliography Extracted from 2007 Family Law Council Report to the Attorney

General ........................................................................................................................... 29

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INTRODUCTION & COLLABORATIVE OVERVIEW

Basis of Submission

This submission addresses the areas of enquiry of the Commission only insofar as

Interdisciplinary Collaborative Practice might provide information or solutions to the areas of

enquiry.

It is submitted that the breakdown of marriage and de facto relationships and the

arrangements for children, which are currently covered by our Family Law system, are

relationships and issues that have legal, social and financial obligations and consequences.

In few other areas of the legal system is this the case.

The Family Court system has recognised this diversity of relationships and consequences

over the years since its creation in 1975.

The Court, for example, provides for social science expertise to be provided to the judge as

decision maker in the form of Family Reports. It would be unusual in present-day practice for

a case involving arrangements for the children not to have commissioned a report from a

psychologist or social worker contributing to the judge their specific areas of expertise

relevant to the decisions to be made in relation to a child.

Similarly, but not extensively, the input of, generally neutral, financial specialists is either

ordered by the Judge or voluntarily obtained by the parties to provide that assistance and

expertise to the Judge in their decision-making power.

The same cannot be said, in most circumstances, for the current dispute resolution range of

options available to the public.

Family Dispute Resolution, that process which parties are required to undertake prior to

commencing proceedings in relation to children's issues, is undertaken by those accredited

as Family Dispute Resolution Practitioners.

The qualifications to obtain standing as a Family Dispute Resolution Practitioner, however

requires no professional prequalification. Any member of the public can undertake a Family

Dispute Resolution Practitioner course, generally 8 days in length.

In most of the government-based Family Dispute Resolution services, such as those

delivered by the Family Dispute Resolution Centres, by Relationships Australia, by

CentreCare and similar organisations, legal representation at the Family Dispute Resolution

mediation sessions is not encouraged. In some cases it is prohibited.

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This leaves parties attending mediation without the opportunity to obtain legal advice

throughout the negotiation process to inform the options they generate and decisions they

make. In addition, it is not necessary for FDRC practitioners to have obtained formal

accreditation as mediators.

This practice ignores the fact that parties to a dispute about the children have legal rights

and obligations and their decisions have legal, as well as social, consequences.

In relation to Financial disputes, mediation, or some form of it, is a requirement as parties

travel through Family Court system, if they have not already attended mediation prior to

instituting proceedings.

Almost universally, mediation is attended as a half day, or one day event and takes place

after each side has collated their own information, exchanged disclosure documents through

a formal and adversarial process and obtained valuations, usually by a neutral joint expert

and delivered in the form of a written report with limited opportunity for clarification to be

obtained in a meaningful, expeditious or joint way.

Interdisciplinary Collaborative Practice (ICP) is designed around at least two fundamental

principles-

1. Parties who find themselves in a Family Law dispute are involved in a dispute that

has legal, social and financial implications, obligations and consequences and all

three need to be addressed in generating options for solutions and coming to a

resolution. Parties are best served in the resolution process by having access to

expertise from each of the legal, social and financial professions (as might be

appropriate to their particular matter) in both the information gathering stage and the

resolution phase;

2. The interests, goals and concerns of the parties themselves in the resolution of their

Family Law matter extend beyond the rigid legal framework of the Family Law Act.

Parties therefore benefit from a dispute resolution process that is founded in Interest

Based Negotiation. Such founding in Interest Based Negotiation does not ignore the

parties’ legal rights and obligations but adds to the consideration of those legal rights

and obligations, the social and financial impacts, goals and interests of the parties

attempting to restructure the entirety of their lives following relationship breakdown,

not just the legal aspect of the relationship.

3. In this submission, the term ‘collaborative practice’ refers not just to the principle of

working collaboratively, but specifically to Interdisciplinary Collaborative Practice

(ICP).

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Interdisciplinary Collaborative Practice addresses these fundamentals in its process in the

following way:_

1. Parties are assisted by a team of professionals from each of the legal, social science

and financial disciplines, chosen according to the needs of the parties and the ambit of

their dispute including:-

A lawyer for each party who represents that party and retains their professional

obligation to provide advice for that particular party;

Financial professional/s, who are engaged to assist the parties in the information

gathering process in a neutral way, relieving the lawyers from the task of

gathering financial information which does not truly sit within the lawyers’ skill

set. Such gathering is done by the financial professional in a neutral, non-

adversarial way. Financial Neutrals are then involved in the option generating

and testing phases of the resolution process – giving parties some future

focussed examples of how the options being considered might impact their lives;

the involvement of social scientists (mental health neutrals) in various aspects,

usually involved as the chair of joint meetings and facilitating assistance with

managing the dynamics between the parties, and, as necessary, with the team,

including facilitating the briefing and debriefing of the team.

In addition, other mental health neutrals can act to provide the voice of the

child(ren) to the team (including the parents), or to carry out a role similar to that

of a Family Report Writer in the Court system, or to provide counselling or

parental education to the parties either conjointly or individually,

The role of the mental health neutral in their meeting coordination role, also

called the Communication Coach, is to assist parties to stay future focussed. and

to chair meetings to support the lawyers and other professionals as they

undertake their respective roles during the meeting process.

Because Interdisciplinary Collaborative Process provides the parties with the input of each of

the three professionals throughout the entirety of the matter, including throughout the

information gathering phase, and because much of it is done in a joint and neutral way, once

parties arrive at the option generation and resolution phase of a Collaborative negotiation

they each have a deep understanding of the legal, social and financial issues, obligations,

rights involved and are better able to generate options that meet the goals and interests of

each of them and their family, in each of those areas.

The clients are assisted to genuinely find their own solutions which reflect all three areas

presented in any family law dispute and in owning the solutions have much better prospects

of that solution being a durable one and one not subject to further litigation.

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What is Collaborative Practice

An overview of collaborative practice can most simply be provided by quoting Pauline Tesler

in her seminal text on the subject, "Collaborative Law" (2001 American Bar Association).

"Described simply, the collaborative law process consists of two parties and their

respective lawyers who sign a binding stipulation defining the scope and the sole

purpose of the lawyers representation: to help the parties engage in creative

problem-solving aimed at reaching a negotiated agreement that meets the legitimate

needs of both parties.

In the collaborative law process, the parties agree that no one will threaten or engage

in litigation to coerce compromises. The parties retain a right of access to the courts,

but if either party does resort to the courts for dispute resolution, both lawyers are

automatically disqualified from further representation of either of the parties against

the other. All experts are retained jointly within the collaborative law model and are

similarly disqualified if the process breaks down. During the process, although the

lawyers remain advocates for their respective clients within all bounds of professional

responsibility, they share a formal and binding commitment to keep the process

honest, respectful, and productive on both sides………

……….The hallmarks of the process are:

· Full, voluntary, early discovery disclosures.

· Acceptance by the parties of the highest fiduciary duties toward one another,

whether imposed by state law or not.

· Voluntary acceptance, a priori, of settlement as the goal and respectful, fully

participatory process as the means.

· Transparency of process.

· Joint retention of neutral experts.

· Commitment to meeting the legitimate goals of both parties if at all possible.

· Avoidance of even the threat of litigation.

· Disqualification of all lawyers and experts from participation in any legal

proceedings between the parties outside the collaborative law process.

· Four-way settlement meetings as the principal means by which negotiations and

communications take place.

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More than mediation, collaborative law utilises skilled and trained dispute-resolution

professionals who are committed to helping parties reach personally-tailored

solutions to divorce-related disputes. Like mediation, interdisciplinary collaborative

practice offers:

· more control

· more privacy

· customised results

· the likelihood of greater compliers

· a more civilised process than can be found in the divorce courts.

Unlike mediators, however, collaborative lawyers function as active

legal/psychological/financial advisers and negotiators alongside the clients at the

centre of the dispute-resolution process, rather than on the sidelines, as is generally

the case in family law mediations."

It is common (although not necessarily the case) that mediation protocols, as

practiced, do not involve engaging parties in the same room at the same time, which

limits the capacity of parties to collaborate on the basis of shared interests and

values.

Since Pauline Tesler wrote her seminal text on a Collaborative Law in 2001, the process has

matured and grown into one that incorporates social scientists and financial professionals

into the process described by Ms Tesler above as "Collaborative Law" and has now become

known as "Interdisciplinary Collaborative Practice".

All of Ms Tesler's observations about the nature of the Collaborative Law still apply to the

matured and expanded, Interdisciplinary Collaborative Practice.

The Structure of ICP

Although the methodologies and protocols vary to some degree, the sequence of ICP

activities is as follows:

1. Intake interviews with each of the parties by the mental health neutral, with their client

by their solicitor, and with each by the financial neutral;

2. Team briefing, discussing the issues and dynamics involved in the dispute, and

considering tactics (down to the level of who sits where) of conjoint meetings;

3. The first conjoint meeting both parties with the four professionals) includes the signing

of the Participation Agreement, the establishment of the values and interests of each

of the parties, and beginning discussion of those concerns, leading to homework

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where required (e.g., valuations, discussions with children, documentation);

4. Team debrief;

5. Second and subsequent meetings will typically involve the generation of options, and

consideration of the parties of those options, leading to resolution and future-based

decisions.

AACP

The Australian Association of Collaborative Professionals (AACP) is a not-for-profit public

company limited by guarantee which is registered by as, a charity.

The principal purpose for which the organisation was established in 2015 and then

incorporated and registered as a charity was, and remains, to promote the use and

development of Interdisciplinary Collaborative Practice as an alternative dispute resolution

process to resolve legal disputes respectfully, constructively and without recourse to

litigation by the following:

1. To educate the Australian community, legal, mental health, financial and other

professionals and institutions about the benefit of using Collaborative Practice to

resolve family law, civil and other disputes; and

2. To advocate to Governments (Central and State), Courts and other institutions and

stakeholders for the integration of Interdisciplinary Collaborative Practice into

legislation, noting that this would potentially enable Australia to become the first

country in the world with national ICP legislation

3. To support the development of training, accreditation, and utilisation of the ICP

methodology as mainstream interest-based dispute resolution in order to

substantially reduce the community’s reliance upon litigation

4. To ensure that dispute resolution is respectful of the parties and their values, and to

reduce the likelihood of post-litigation disputes;

5. To substantially consider and prioritise the best interests of the child by respecting

the knowledge, commitment, and experience of parents as those who understand the

needs of their children;

6. To advance the ICP community by supporting a network of training and other

professional activities on a local, national, and international framework;

7. To maintain strong relationships with local practice groups, state organisations, and

international bodies to advance research and development of the ICP methodology;

8. Over time, to progress alliances with educational and other bodies to further progress

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the development of ICP practice and training;

9. To support the interdisciplinary framework by supporting the relationships amongst

the three principal disciplines involved in ICP;

10. To enable communication using digital methods to support a national

communications hub for the professional community.

AACP Board

The Board of AACP is constituted as follows:-

1. Chairperson Dr. David List (Psychologist, Victoria)

2. Vice-Chair Cassandra Pullos, Accredited Specialist Family Law (Lawyer,

Queensland)

3. Treasurer Sue Abrams, Accredited Specialist Family Law (Lawyer, New South

Wales)

4. Secretary Penny Keeley, Accredited Specialist Family Law (Lawyer, Western

Australia)

5. Board Members:-

Freda Wigan, Accredited Specialist Family Law (Lawyer, Queensland)

David Roberts (Psychologist, New South Wales)

Caroline Counsel, Accredited Specialist Family Law (Lawyer, Victoria)

Kay Feeney, Accredited Specialist Family Law (Lawyer, Queensland)

Julie Gray (Financial Planner, Victoria).

6. Patron: The Honourable Diana Bryant AO QC

A Brief History of Collaborative Practice

A history of Collaborative Practice (up to 2007) is canvassed in the 2007 Family Law Council

Report to the Attorney General. It sets out in greater detail the development of Collaborative

practice up to 2007 – we have provided a very brief summary of its development

internationally and in Australia here; whilst shorter on detail it also attempts to bring the

history up to date in 2018.

The dispute resolution process known as "Collaborative Practice” was first developed in the

United States in 1990 by Minneapolis lawyer Stu Webb.

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18 years later, Collaborative Practice is an accepted method of dispute resolution throughout

Canada and North America (with, in the USA alone, 8,000 to 10,000 lawyers having been

trained, along with thousands more family and financial consultants

The IACP, International Academy of Collaborative Professionals, is based in the USA and is

the peak international body for collaborative professionals, lawyers, social scientists and

financial professionals. The IACP has approximately 5,000 members from all states of the

USA and 24 countries. Attached at Annexure “A” is a list of those States.

Interdisciplinary Collaborative Practice is now practised in Europe in England, Wales,

Northern Ireland, Scotland, Eire, Netherlands, Germany, France, Austria, Czech

Republic and Switzerland. It practised otherwise in Israel, Kenya and Uganda. In

Scotland the peak body is Consensus and in England the peak body is Resolution. It is

reported that 1,250 UK family lawyers have trained in ICP since 2003.

In the South East Asian area, Interdisciplinary Collaborative Practice is practised in Hong

Kong, Singapore, New Zealand and Australia.

In the USA the practice of Interdisciplinary Collaborative Practice has received legislative

recognition in the form of the Uniform Collaborative Law Act which has been adopted in

at least 16 states of the USA.

It has also received judicial support from the UK in the form of agreements reached through

collaborative practice being “fast tracked” for acceptance by the Courts leading to Orders

being made more quickly.

Collaborative Practice in Australia

Collaborative Practice was introduced to Australia in 2003 when His Honour Justice Robert

Benjamin, the then President of the Law Society of New South Wales, returned to Australia

from attending the ABA conference, keen to introduce the legal profession to Collaborative

Practice.

In 2005, Stu Webb, the founder of Collaborative Practice, conducted a collaborative training

in Canberra and in New South Wales at UTS.

In 2006, three Queensland lawyers travelled to Seattle, Washington to train with co-founder

of IACP, Pauline Tesler and then founded what was then called Queensland Collaborative

Law (now QACP, Queensland Association of Collaborative Practitioners).

International trainers, including IACP’s co-founder Pauline Tesler, were first brought to

Australia in 2007 to provide training to a core group of lawyers, social scientists and financial

professionals.

http://www.bnplaw.com.au/pdf/Collaborative-CLE-Paper-07-03-12.pdf

www.lopichlawyers.com.au

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Australian professionals then formed training and practice groups. There are now at least 5

groups of trainers around the country, including one full interdisciplinary training team based

in QLD, providing training to lawyers, social scientists and financial professionals. One of

those trainers, Dr Anne Purcell, has been selected to sit on the IACP Training faculty and a

number of the Australian trainers, including Dr Purcell have delivered training internationally.

State based organisations and practice groups grew throughout Australia with now between

approximately 500 and 600 lawyers, social scientists and financial professionals having been

trained in Collaborative Practice and being members of either or both State based

organisations and practice groups.

A summary of those organisations and practice groups, providing either numbers taken from

the websites of the organisations or from data collected directly, is set out in the table below:

Name of body Structure Website

Number of

members

Trainers

ACT

Collaborative Practice

Canberra

Practice group

32 members

New South Wales

Collaborative

Professionals NSW

Inc

NSW State

Body

Incorporated

association

www.collabor

ativeprofessi

onals.nsw.or

g.au

108 members

87 lawyers

13 social

scientists

8 financial

advisors

Training team:

Jackie Jones

(lawyer)

Nigel Nichols

(lawyer)

David Roberts

(Practice Leader at

relationships

Australia)

interdisciplinary-

collaborative-

practice-course-

and-masterclass

30.6.18 and

11.8.18

ICP Practice Group Practice Group

David

Roberts

david@rans

w.org.au

23 members

Researcher (1);

Project Officer

(1);

Clinical

Supervisor (1);

Lawyers (9)

Financial

Specialists (3)

Social Scientists

(8)

Greater Sydney

Collaborative Family

Practice group

www.divorce

withoutcourts

27 members

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Name of body Structure Website

Number of

members

Trainers

Lawyers .com.au 9 lawyers

8 mental health

professionals

10 financial

professionals

Central Sydney

Collaborative Forum

Practice group

www.sydney

collablaw.co

m.au

46 members

35 lawyers

6 financial

professionals

5 mental health

professionals

Northern Sydney

Collaborative Family

Lawyers

Practice group

www.nsydcol

lab.com

11 members

6 lawyers;

3 social

scientists

2 financial

professionals

Southern Highlands

Collaborative Lawyers

Practice group

8 members

7 lawyers

1 psychologist

Collaborative Family

Lawyers Illawarra

Shoalhaven

Practice group

16 members

(lawyers)

Note whilst

mention is made

of other

specialist

advisors – no

individual

professionals

are listed on the

website.

Macarthur

Collaborative Law

Group

Practice group

4 members

(lawyers)

Bathurst Collaborative

Family Lawyers

Practice group

2 members

(lawyers)

Sydney Collaborative

Lawyers

Practice group

1 member

(lawyer)

Central North Shore

Collaborative Practice

Group

Practice group

3 members

(lawyers)

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Name of body Structure Website

Number of

members

Trainers

Queensland

Association of

Collaborative Practice

(QACP)

QLD State

Body

Incorporated

association

www.qacp.or

g.au

110 members

80 lawyers;

8 social

scientists

23 financial

professionals)

QACP current and

past events and

training

2 training teams:

1. Anne Purcell

(social scientist)

John Thynne

(financial

professional)

Cassandra Pullos

(lawyer);

2. Clarissa

Rayward

(lawyer)

Anne Marie Rice

(lawyer)

intro & advanced-

collaborative

training 2018

Brisbane Practice

Group (including North

Brisbane)

Practice group

20 members

15 lawyers;

2 social

scientists

3 financial

professionals

Cairns Practice Group Practice group

20 members

Gold Coast Practice

Group

Practice group

32 members

19 lawyers;

6 financials,

6 social

scientists

1 law student)

Townsville Practice

Group

Practice group

15 members

10 lawyers;

4 social

scientists

1 valuer

Toowoomba Practice

Group

Practice group

20 members

(10 lawyers

2 financial

professionals

8 social

scientists)

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South Australia

Resolution SA

Practice group

6 members

5 lawyers

1 financial

professional

Trainers:

Adelaide

Collaborative

Centre comprising

of:

1. Bev Clarke

(lawyer)

2. Garth Craig

(financial

advisor)

3. Rachel Jolly

(family

relationships

consultant)

4. Christopher

Swan

(lawyer)

Collaborative

training SA -

introductory

Adelaide Collaborative

Practice Group

Practice group

10 members

8 lawyers;

2 social

scientists

Relationships Australia

South Australia

Practice Group

The website

rasa.org.au

lists

members

who form

part of their

practice

group.

24 members

20 lawyers

4 financial

neutrals

Tasmania

Collaborative Alliance

Tasmania (CAT)

Practice group

www.collabor

ativealliancet

as.com

5 members

3 lawyers

1 social scientist

1 financial

professional

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Victoria

Victorian Association

of Collaborative

Professionals (VACP)

VIC State

Organisation

Incorporated

association

www.viccolla

b.com.au

Mailing list

comprises of

100 subscribers

Monash University

MELCA

Western Australia

Collaborative

Professionals WA

(incorporated)

Peak body &

Practice group

www.collabor

ativeprofessi

onalswa.com

.au

30 members

19 lawyers;

6 financial

professionals

5 social

scientists

N/A

Research Papers, Surveys and Australian Family Law Council Report to the

Attorney General

In 2009 IACP undertook a major research paper into Collaborative Practice generally, issues

of cost, most common reason for termination of the process, client experience and other

issues (see IACP Research 2009 Forum Article that was presented at the 2009 IACP

Forum).

In 2010 IACP released a client experience survey IACP Client Experience Survey and

Professional and Practice survey IACP Professional Practice Survey

In 2010 IACP also released its major practice survey of Collaborative Practice undertaken

with the assistance of Crescent Inc IACP Practice Survey - Crescent Inc.

In the 2010 study 933 cases were studied over 4 years and statistics gathered to review the

collaborative experience both for practitioners and parties. Some findings included:

a) 86% of the cases settled, although a high percentage were rated by the practitioners

as difficult or very difficult cases; and

b) 93% of the cases were completed in 18 months and most were finished within 9

months.

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Family Law Council Report to the Attorney General of Australia on

Collaborative Practice – December 2006

In December 2006 the Family Law Council released a report to the Attorney General in

relation to Collaborative Practice in Family Law, a report of consisting of some 104 pages

under the following headings:-

1. Introduction

2. What is collaborative law?

3. Growth of Collaborative Practice

4. Collaborative law in Australia

5. Collaborative Practice and the new family law system

6. Collaborative law and legislative change

7. Collaborative law and court processes

8. Collaborative law and the legal aid system

9. Limitations of Collaborative Practice

AACP commends to this Commission of Enquiry that 2007 report of the Family Law Council

to the Attorney General.

The report can be found at 2007 Family Law Council Report to the Attorney General.

The report made 8 recommendations, the first two of which have been completed and the

remaining 6 remain to be done.

It is the respectful submission of AACP that these remaining 6 recommendations should be

adopted by this Commission of Enquiry.

The recommendations are contained in the executive summary commencing at page 4 of

the report.

The recommendations still outstanding to be actioned can be summarised as follows:-

Recommendation 3

The regulations referred to in section 60I(8)(aa) of the Family Law Act 1975 should

include a provision that when deciding whether to grant a certificate for the purposes

of this section a family dispute resolution practitioner may have regard to a person's

participation in a collaborative process.

Recommendation 4

The Law Council of Australia should consider developing and disseminating

information about Collaborative Practice and lists of collaborative practitioners to

Family Relationship Centres and community based service providers of family

dispute resolution.

Recommendation 5

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The Family Law Act 1975 should be amended to provide confidentiality of

communications in the collaborative process similar to the protection is provided to

communications made in family dispute resolution by sections 10H and 10J of the

Act

Recommendation 6

The Family Law Act 1975 should be amended to provide for courts exercising family

law jurisdiction to have jurisdiction in relation to enforcement of collaborative

contracts concerning family law disputes.

Recommendation 7

Courts exercising jurisdiction under the Family Law Act 1975 should match those

cases where proceedings have been commenced and the parties wish to undertake

a collaborative process, so that priority in the allocation of a hearing date is not lost if

a complete resolution of the dispute is not achieved.

Recommendation 8

National Legal Aid should monitor developments in Collaborative Practice.

Literary review

A Literary Review has not been separately undertaken for the purposes of this submission.

The Commission is referred to the extensive Bibliography that appears at pages 61 – 66 of

the 2007 Family Law Council Report to the Attorney General extracted and attached to this

submission, which provides a comprehensive review of the literature available in relation to

Collaborative Practice up to the date of the release of the report in December 2006.

If required AACP can undertake a full Literary Review from 2007 to the current date.

The Commission is referred to the studies referenced above.

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ALRC SUBMISSIONS PAPER - QUESTIONS

Submissions made by AACP to the Questions put by the Commission as relevant to

Interdisciplinary Collaborative Practice.

Objectives and principles

The role and objectives of the modern family law system

Question 1 What should be the role and objectives of the modern family law

system?

The modern family law system needs to recognise, and incorporate into its role and

objectives, the goals and interests of its end users, the clients, including, not only the

resolution of their legal dispute and consideration of their legal rights and obligations,

but also the restructuring of their family and personal lives which carries with it social

and financial rights, obligations and consequences that also require consideration and

resolution if durable outcomes are to be provided to clients navigating the modern

family law system.

Principles guiding redevelopment of the family law system

Question 2 What principles should guide any redevelopment of the family

law system?

· That the primary role of the Family Court is to provide judicial officers to make

decisions for those litigants who cannot reach resolution themselves and to make

those decisions in a timely manner after having had the opportunity to give full and

proper consideration to all of the evidence - whether that determination is made on

an interim or a final basis.

· That dispute resolution services, other than litigation, should be delivered separately

to the court system and not by judicial officers referring parties, who have come to

court for a decision to resolve the conflict, out of the courtroom for further

negotiations when that negotiation has not, to the point of hearing, resulted in a

resolution. If parties are at Court they need to be given a hearing.

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· That parties’ disputes are complex in their nature arising primarily out of the

relationship that has broken down being one that consists of legal, social and

financial rights, obligations, responsibilities and consequences and that deep,

durable resolution needs to involve a consideration of all of those areas of clients’

lives.

· That if the widest suite of dispute resolution processes are available to clients outside

the court system, and have the support and understanding of judicial offices, that

dispute resolution process should take place prior to parties approaching the court for

judicial decision-making.

Access and engagement

Improving access to information about family law and family law related

services

Question 3 In what ways could access to information about family law and

family law related services, including family violence services, be

improved?

· The Family Court websites could provide a list of dispute resolution

processes, including Interdisciplinary Collaborative Practice, together with

links to the various organisations offering those services;

· Judicial officers could be educated in the various forms of alternate dispute

resolution processes available to parties, enabling them to identify, when

parties appear before them, which process might be appropriate to those

parties. Such referrals should be made only as an adjunct to a judicial

decision, not in place of one.

· Brochures and other resources and materials should be available at each

client point of contact with the Family Court, not only advising clients of

dispute resolution processes, but also providing them with links to the

resources available to deliver those processes to the clients.

Improving access to the family law system for rural, regional and remote

individuals

Question 9 How can the accessibility of the family law system be improved

for people living in rural, regional and remote areas of Australia?

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Interdisciplinary Collaborative Practice can be delivered via Skype and other

conferencing facilities enable that process to be delivered into rural, regional and

remote areas of Australia.

Collaborative practitioners throughout Australia have already delivered Interdisciplinary

Collaborative Practice services to clients both in the rural and regional areas of

Australia and internationally, some in cases where the professionals and the clients

will never meet in person.

The anecdotal evidence from those having undertaken those cases is a good level of

resolution and high satisfaction rate amongst the clients who have taken advantage of

that service.

Changes to the family law system to reduce client costs in resolving family

dispute

Question 10 What changes could be made to the family law system, including

to the provision of legal services and private reports, to reduce

the cost to clients of resolving family disputes?

· Interdisciplinary Collaborative Practice includes the engagement of private

reports, both financial and child related, undertaken by professionals engaged

on a neutral basis. Whilst the cost to clients of those reports in terms of the

dollar cost payable for the preparation of those reports does not differ from

those reports obtained within the Court system, the value of those reports to

the clients is greatly enhanced through the Interdisciplinary Collaborative

Process.

· Through the Interdisciplinary Collaborative Process, the authors of reports

attend a joint meeting of the clients, their lawyers and any other relevant

professionals, to deliver the report in person, as well as in writing. The author

of the report is available, in person, to explain the concepts, assumptions,

factual backgrounds and conclusions and to take and answer questions from

both clients and professionals alike in a joint setting enabling all parties and

their advisors to truly gain a deeper understanding of the report and its

recommendations.

The report then delivers both an educative and an evidentiary and conclusion

based purpose.

The deep mistrust of reports delivered in the adversarial system can be

addressed, minimised and, in most cases, removed altogether, to be replaced

with deep understanding and acceptance of the conclusions.

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· The requirement of the Collaborative contract excluding experts from giving

evidence in later litigation can be waived with the consent of the parties. Whilst

full agreement might not always be able to be reached through the

Collaborative process, agreement on the valuations or recommendations

contained in reports commissioned during the process may well be agreed

upon and in those circumstances be available in any subsequent litigation

undertaken to have the narrowed issues determined.

Resolution and adjudication processes

Changes to court processes to facilitate timely and cost-effective dispute

resolution

Question 20 What changes to court processes could be made to facilitate the

timely and cost-effective resolution of family law disputes?

In the context of integrating collaborative practice into the Family Law System, in

order to facilitate timely and cost-effective resolution of family law disputes that have

gone through the collaborative process but not settled to the extent that they still

require judicial determination, either in whole or in part, it is proposed:-

1 Parties who have completed a collaborative process be given priority in the allocation

of trial dates;

2 Interdisciplinary Collaborative Practice to be incorporated into Family Law legislation

as an equivalent method of FDR

3 Parties who have undertaken a collaborative process be excused from undertaking

any further alternative dispute resolution prior to being allocated trial dates.

4 Parties who come to the court seeking urgent listing dates, either on an interim or

final basis, after involvement in a collaborative practice negotiation, be allocated

those urgent dates as a matter of priority.

Diverting litigation to other dispute resolution processes or services

Question 21 Should courts provide greater opportunities for parties involved

in litigation to be diverted to other dispute resolution processes

or services to facilitate earlier resolution of disputes?

· It is submitted that the court, and court officers, should have sufficient

knowledge of ICP process to recommend that process to couples as

appropriate, including both children’s and property disputes.

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· It is not recommended that parties be ordered to participate in ICP, which

should always be a process entered into voluntarily.

· By providing the incentives proposed in the answer to question 20 to parties

who have undergone a collaborative negotiation process, it is anticipated that

parties will then choose to be diverted into that process to facilitate early

resolution of their dispute.

Modifying current dispute resolution processes to provide low-cost options for

resolving small property matters

Question 22 How can current dispute resolution processes be modified to

provide effective low-cost options for resolving small property

matters?

· The ICP process can be modified to suit each individual client's requirements,

including to enable it to provide effective low-cost options for resolving property

matters.

· Small pool property matters will probably, for example, be operated with the

minimum number of professionals involved for the minimum amount of time.

· IACP has undertaken studies which can be obtained and provided to the

commission if required, into specific low-cost models.

· The design of low-cost collaborative models for resolving small property

matters is an issue that can be addressed further by AACP in its role as the

national peak body for collaborative practice.

· Options developed in the past include a very limited number of meetings, of

limited duration, with information gathering outsourced.

Improved court support for parties experiencing family violence or abuse

Question 23 How can parties who have experienced family violence or abuse

be better supported at court?

· This question is specifically directed at better support for parties at court where

those parties have experienced family violence or abuse. It is a recognised by

the collaborative community that the question of whether the collaborative

process is suitable where there have been allegations or occasions of family

violence or abuse, is one that is often asked and needs answering.

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· Whilst the existence of family violence creates a layer of complexity in a

collaborative case, it creates that layer of complexity in whatever dispute

resolution process (including adjudication) is undertaken in those

circumstances.

· The collaborative process is uniquely placed to provide appropriate

professional support to victims and perpetrators and children of family violence

or abuse through the services of the mental health professionals in the

collaborative team.

· All members of a collaborative team are trained to identify issues of family

violence or abuse and the related issues of power imbalance. Once those

issues are identified, it is the role of the team to consider the appropriate

professional intervention required to enable the collaborative negotiation to

continue in a safe manner. The collaborative process is uniquely designed for

each client's individual needs in general performance, and in those

circumstances.

Legally-assisted family dispute resolution in family violence or abuse matters

Question 24 Should legally-assisted family dispute resolution processes play

a greater role in the resolution of disputes involving family

violence or abuse?

· With the changes submitted in these submissions to allow practitioners

involved in a collaborative matter to issue a section 60I certificate, ICP can

provide legally-assisted family dispute resolution in disputes involving family

violence or abuse.

· The unique advantages of the collaborative process being used in such

circumstances have been outlined in our response to question 23 above.

Primarily, that advantage is that parties have the availability of support, not only

from legal advisers but from appropriately qualified social scientists all the way

through the collaborative negotiation, and not limited to only the one or two

sessions of family dispute resolution mediation offered in the usual model of

FDR.

Misuse of process as a form of abuse in the family law system

Question 25 How should the family law system address misuse of process as

a form of abuse in family law matters?

· The issue of misuse of process in the collaborative context is often raised,

particularly in the context of one party entering into the collaborative process in

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bad faith for the purposes, perhaps, of either maintaining engagement with the

other spouse with no real intent to reach agreement or to "run the other spouse

out of money", a strategy often adopted in the adversarial process.

· The collaborative process offers the opportunity to screen out clients with those

misuse of process intentions in the initial interview and selection process.

· Once in the collaborative process, collaborative professionals have the

opportunity to work with the spouse likely use the process as a form of abuse

by way of the skills of the team, including both the lawyers and social scientists.

Many, but certainly not all, attempts at misuse of process can be diverted,

using the skills of the collaborative practitioners, in taking both parties back to

their interests and refocusing them on future-focused problem-solving and

reality testing of outcomes.

Development or expansion of non-adjudicative dispute resolution processes to

resolve disputes in a timely and cost-effective way

Question 26 In what ways could non-adjudicative dispute resolution

processes, such as family dispute resolution and conciliation, be

developed or expanded to better support families to resolve

disputes in a timely and cost-effective way?

· It is submitted by AACP that the primary way in which non-adjudicative dispute

resolution processes can be developed or expanded to better support families

to resolve disputes in a timely and cost-effective way, is by the adoption of

Interdisciplinary Collaborative Practice as a primary source of family dispute

resolution.

· We refer the Commission to the research papers, surveys and Australian

Family Law Council Report to the Attorney General, summarised at page 14

and following of this paper, in relation to the illustrated advantages of

Interdisciplinary Collaborative Practice as a primary method of family dispute

resolution. In that regard, we quote again below the summary of the 2010 study

of 933 cases undertaken by the IACP over a four-year period, those findings

included:

1.1 86% of the cases settled, although a high percentage were rated by

practitioners as difficult or very difficult cases; and

1.2 93% of the cases were completed in 18 months and most were

finished within 9 months;

1.3 AACP also respectfully recommends to the Commission the

conclusions of the Family Law Council's recommendations to the

Attorney General in 2007, at page 59 of that report, summarised below

as follows:-

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10.1… Council believes collaborative practice to be a valuable addition

to the range of dispute resolution options available, particularly

in relation to property matters.

10.2 Collaborative practitioners have been practising in the United

States and Canada for at least 15 years, and there seems to be

an acceptance of the practice in the judiciaries of those

countries. In Australia, there is a growing body of enthusiastic

practitioners, together with anecdotal reports of high client

satisfaction. More research should be done to evaluate

collaborative law as a dispute resolution option. [The

Commission is referred to the 2010 IACP report referenced

earlier herein in relation to that further research which has now

been undertaken].

10.3 In the legal aid context, aspects of the collaborative model are

already in place in the Legal Aid conferencing program,

although this program has been developed independently of

collaborative law. At present, it does not appear to Council that

a fully articulated collaborative model can be applied in the

Australian Legal Aid context. …… Council has recommended

that National Legal Aid monitor developments in collaborative

practice.

10.4 The collaborative practice model can be adapted to the

individual requirements of parties in dispute. Independent

experts including financial, relationship and child experts can

be brought into the process in accordance with parties’

requirements and means. This aspect of collaborative practice

will make it an attractive option in many cases where parties

have the means to engage such experts. Where parties have

been able to access such services, it is appropriate in Council's

view that this be taken into consideration in the event that

collaboration fails and parties wish to commence litigation.……

10.5 In cases where the collaborative process works well, it provides

significant advantages to litigation. In common with other

dispute resolution models such as mediation, it offers parties

the opportunity to manage both the process and outcome of

dispute resolution. It also offers parties the support of traditional

legal advocacy, with the difference that legal advisers focus

exclusively on a negotiated outcome.

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10.6 Finally, Interdisciplinary Collaborative Practice fits well with the

new direction in family law marked by the 2006 Family Law

Reforms. In common with those reforms, it focuses on parties

reaching their own solutions in an atmosphere which avoids the

negative consequences of the adversarial court system.

……The legislative changes proposed in recommendations 3,

5, 6 and 7 are aimed at placing collaborative practice on an

equal footing with other non-litigious dispute resolution

processes.

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Annexure A

Collaborative Statutes/Rules - Citations by Jurisdiction (as of January 1, 2018)

Alabama: limited to family and probate

Ala. Code 1975 §§ 6-6-26.1 to 6-6-26.21 (2014)

Arizona. limited to family

17B A.R.S. Rules Fam. Law Proc., Rule 67.1 (eff. 2016)

District of Columbia: limited to family law

D.C. Code §§ 16-4001 to -4022 (2011).

Florida. limited to family

Florida Statutes, SS 61.55-61.58 (2016)

Hawaii: no limit as to scope

Haw. Rev. Stat. §§ 658G-1 to 658G-22 (2012).

Illinois: limited to family law

Illinois Civil Statutes 750 ILCS 90/1 to 750 ILCS 90/70. (eff. 2018)

Maryland: no limit as to scope

Md. Code, Com. Law ·§ 3-2001–3-2015 (2014). .

Michigan: limited to family law

Mich. Comp. Laws § 691.1331-691.1354 (eff. 2014)

Montana: no limit as to scope

MT SB 272 (2015)

Nevada: limited to family law

Nev. Rev. Stat. §§ 38.400-38.575 (2013).

New Jersey: limited to family law

N. J. Rev. Stat. § 2A:23D-1-23D-18 (eff. 2014)

New Mexico: limited to family law

NMRA 1-128 - 128.13 (eff. 2016)

North Dakota. no limit as to scope

N.D.R.Ct. 8.10 (2016)

Ohio: limited to family law

Ohio Rev. Code Ann. §§ 3105.41-3105.54 (2013).

Texas: limited to family law

Tex. Fam. Code Ann. §§ 15.001-15.116 (2011).

Utah: no limit as to scope

Utah Code Ann. §§ 78b-19-101 to -116 (2010)

Washington: no limit as to scope

Wash. Rev. Code §§ 7.77.010-7.77.902 (2013).

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