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  • Community based counselling and mediation in Family Court cases
  • By Presenter: Susanna Lobez
  • The Law Report - ABC TV
    Page 1
  • 25/11/1997 Make a Comment
  • Contributed by: admin ( 14 articles in 2001 )
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A Radio National Transcript of the program The Law Report on Tuesday 25 November 1997.


Susanna Lobez: Hello and welcome to The Law Report, with me, Susanna Lobez.

Australia has the fourth highest divorce rate in the world. Last year, 72,000 new cases began in the Family Court of Australia.

Peter: There were issues about the children, about the property, finance, and what happened was that by putting things on the white board and then discussing these issues, then we found solutions.

Alistair Nicholson: There are more relationship breakdowns I think happening now and there seems to be a fairly steady curve upwards over the years.

Voula: That's what it wasn't about who's going to win, it was a matter of being fair and equitable considering there were children involved.

Susanna Lobez: Separating couples fighting over property or children can usually resolve disputes by negotiation or with the help of counselling and mediation. In fact only about 5% of cases get so far down the track that a Family Court judge gives a decision. And this can take a couple of years.

Recently, the Commonwealth Attorney-General's office and the Australian Law Reform Commission invited debate on trimming back the jurisdiction of the Family Court to the roles of review, enforcement and appeal. On the agenda is the alternative of community-based counsellors and mediators.

This reportedly 'sparked fears of a lesser role for lawyers and judges in family law'. So are there moves afoot to shift counselling and mediation out of the Family Court into community (lawyer-free) organisations? Which better serves the family law consumer?

Barbara Le Rossignol is a family lawyer turned mediator at the community-based Family Mediation Centre.

Barbara Le Rossignol: The emphasis seems to be to try and move more of this work into community-based organisations. I think the idea is that it is more accessible and less formal and therefore perhaps a little less intimidating to people, which can take away from the feeling of being caught up in an adversarial process which being in the court can do.

So the Attorney-General I think, is trying to encourage the development and the access to community-based organisations like ours. Being in suburban offices, we often tend to see people who, even before they've begun separation, as they're thinking about it and trying to think about what their options are. I think the Family Court Mediation Service and Counselling Services really work with people who are a bit further down the process, and they often need the more formal and structured organisation around them.

I guess the suburban offices are a little less formal and perhaps a little more accessible to some people, who would be intimidated by the court lawyers so that they can feel sure that the agreements that they're working

Susanna Lobez: So are there any services that your groups offer that the Family Court doesn't, or any that the Family Court offers that you don't? Anything that would dictate which people go where? Barbara Le Rossignol: Not really. Counselling and mediation are much the same in both organisations, and it's really for people to find the place that offers the particular field of service that they feel best with.

Susanna Lobez: I presume the idea is to solve problems before they reach court and to save money and heartache and people getting stuck in adversarial, armed to the teeth and mutually hostile positions, and also presumably to keep some work away from lawyers.

Barbara Le Rossignol: They still we feel, need legal advice. We can talk with them and perhaps help them clarify the questions that they need to ask their lawyer, so that by the time they're talking with their lawyer, they've begun to get some of the emotional matters dealt with, which we can assist them with, and they can be clear about the questions that they need advice from their lawyer on. But we do think they still need to talk with their to negotiate on are reasonable agreements, and that they can feel confident that the agreements they reach are fair for them.

What mediation does is enable them to do the negotiation for themselves, and to reach agreements that fit for them. And it also helps them to keep the communication working between them, and find a way to continue that, which is very important if they've got children involved because they'll need to go on working as parents together.

Susanna Lobez: Now the funding to the Family Court, including its counselling and mediation has been reduced somewhat by the present Government, and I can only presume that Relationships Australia and Family Mediation Centre has in fact got more funding from the Attorney General. Does that mean there's a drift of resources away from the court towards your kind of counselling out in the community?

Barbara Le Rossignol: We wouldn't like to see that happen, because whilst we're certainly glad to be funded and think that our work is important, it's also important to us that the Family Court continue with its counselling and mediation services. As I said, they mediate within a different context, and I think it's important that their service be available for people as well as our service. I think it has the facility to work with people who are more entrenched in their conflict, certainly in terms of client safety, they're better able to deal with that where that's an issue. They're also necessary for providing the reports to the court, and I think again that the more structured and formal atmosphere is sometimes appropriate for some people, if they're further down the litigation pathway, it can be that working with mediators and counsellors in the court atmosphere is more appropriate for them. So there are times when that seems to be an atmosphere where it works better for some people.

Susanna Lobez: Is it that in a way the Family Court's going to get stuck with all the really hard, violent, angry cases, and angry people, whereas Relationships Australia gets to deal with the suburban people, middle-class people who waltz in and say 'We need a bit of help in getting through this separation. What can you do to help us?'

Barbara Le Rossignol: In part it may be that the Family Court will deal with some of the harder cases. I have to say that if there are issues of child abuse, or if there's serious concerns about domestic violence, then mediation isn't appropriate in any event.

Susanna Lobez: And the Family Court says that, too.

Barbara Le Rossignol: That's right, yes, because people need to be able to have some kind of equality of bargaining, and again we can't mediate about child abuse, it's something that's not negotiable. We're in fact mandated to report as an organisation, just as many people are, when there's serious concern about child abuse. And we certainly wouldn't mediate about that, we'd be referring the individuals that we see to appropriate resources for them and if we really were concerned, we'd be reporting it to the Department of Human Services.

Susanna Lobez: Given limited funds, and more straitened times in this area of social change and family law, shouldn't we focus on the Family Court system, and keeping the Family Court system as well-funded as possible, and allow the less troubled people who might be your clients, the ones who don't have issues of child abuse or mental health or violence, to select other options, perhaps already out there in the private sector?

Barbara Le Rossignol: I think that's in fact what community mediation is about, is making it possible for people to select an option that will help them. The less troubled people, as you describe them, will very quickly become very troubled people if they can't get the right kind of assistance to help them resolve their disputes. The experience we have is that people arrive in our office saying, 'I don't know what to do, I don't know where to go. We've tried talking about it and we can't get it settled. What can we do to get this sorted out?' Now they may not need long-term interventions, they may not be suffering from mental illness, they're people going through a difficult change and they need assistance to be able to get through that change in a way which provides them with dignity and some kind of hope for a future.

Everybody involved in family breakdown is dealing with a lot of issues besides simply the financial ones. There's the emotional issues, there's concerns about children, and appropriate supports within the Family Court to help people at any stage in the process of separation, at any stage in the process of litigation, is important.

Susanna Lobez: The very conciliatory lawyer-turned-mediator, Barbara Le Rossignol, who was, incidentally, one of the first Australian women ordained as an Anglican priest.

Equally conciliatory are Chief Justice of the Family Court, Alastair Nicholson and Margaret Harrison, the court's senior legal adviser. They explained that Family Court counselling and mediation attract a different clientele from the community option, so there's a need for both.

Alastair Nicholson: The people who come to us, let's face it, have usually been to outside community organisations, and they come to the court really looking for a litigation solution. And at that point we try and divert them away from litigation into conciliation mediation. So that's why I say there's clearly room for both sorts of operations.

Susanna Lobez: What does the Family Court have to offer in terms of the mediation and counselling services here at the court that a community-based organisation such as Relationships Australia can't offer?

Alastair Nicholson: We can offer security in cases where there are concerns about violence, and there are concerns about violence in about 30% of these cases, or more, and at least we can offer a reasonably secure environment in which conciliation can take place. And we have an overall quality control because we've got 150 counsellors spread around Australia, but all trained on a particular line.

Margaret Harrison: Most of the people who come to us have separated, have an acute crisis, even if they haven't filed any proceedings, and are particularly concerned about how they should arrange the lives of their children. They don't necessarily directly involve the children in the proceedings, in the negotiations, but certainly the child is always there and is the focus. And I think that's one of the specialities that our counsellors have. And as people do, of course some do, go down the litigation track, our counsellors have a particular knowledge of the workings of the court. And that is sometimes very important, particularly as the Chief Justice said, where there's security, or perhaps child abuse issues. We get a lot of abuse cases, in fact we are a very major source of referral in child abuse areas, and I think that's vital. And the community agencies readily acknowledge that they don't see that side of things. We certainly get very difficult clients, and we get a lot of clients of the very low socio-economic level as well. Certainly I don't think the community agencies, many of them at the moment would be happy to take on many of our clients. So if a decision is made to change the balance between community and court, there'd be a lot of training issues involved, and they readily concede that.

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