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  • Community based counselling and mediation in Family Court cases (cont)
  • By Presenter: Susanna Lobez
  • The Law Report - ABC TV
    Page 2
  • 25/11/1997 Make a Comment
  • Contributed by: admin ( 14 articles in 2001 )
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Susanna Lobez: Chief Justice, do you have a problem with the Family Court being reserved for the people to whom security is really important, and where the acrimony has got to such a stage where they themselves may be in danger, or the court offices may be in danger.

Alastair Nicholson: I would have a problem with that because it seems to me that although that's a very important part of the court's services, there are people who actually find coming to the court a more neutral place to come to resolve these disputes than going to agencies out in the community. For example, if you take a country area, they're often quite reluctant to go to a local agencies where they may know the people or the people know others in their circle of friends and acquaintances, whereas the Family Court counsellors who come in as they do frequently on circuit visits, are much more anonymous, people can go and see them and know that they're someone that's not going to be down the street in the community talking about them the next day, and so on.

Susanna Lobez: What about specific counselling that is ordered by the court, or that is reportable to the court? That's something that would be difficult to be done by a community mediational counselling service, surely?

Margaret Harrison: Well that's particularly where the court counsellor's expertise and understanding of the system becomes imperative. I think that they can respond very quickly, they understand the legal system sufficiently to know what's required, they can prepare reports that the judges find useful in their own determination, they're on a similar wavelength. You don't have files going out to the community, you don't have somebody external supervising your report. It has that particular characteristic of being within the system.

Susanna Lobez: What kind of a case would involve court-ordered counselling or reportable counselling where you might immediately need to have a counsellor brought into court while the judge stands the matter down for a few minutes, for example?

Margaret Harrison: There are some particular issues where say contact is in dispute and there are allegations of abuse. Quite often it's much more important to resolve these things quickly rather to adjourn a matter and to try and resolve it later. Sometimes where a child's wishes need to be elicited in a very subtle way, you're obviously not going to bring the child into court, a judge is not going to interview the child, this is not appropriate. So basically where you want to elicit without the child having to face hostile parents, or feeling disloyal, that there may be some very subtle way that a counsellor can do that without putting the pressure on a child.

Susanna Lobez: Do you think that's the strongest argument for keeping a comprehensive counselling service under the roof of the Family Court?

Margaret Harrison: Well I think it's one of the platforms. I think that whole integration - as the Chief Justice says, we divert people out of the litigation stream. But you can't always, and sometimes you actually require a judge to make an order. In those cases you've got to have the whole panoply there working in the child's interests.

Susanna Lobez: It seems that some of the commentary and proposals for reform is directed towards keeping people away from lawyers, because that's where a lot of the expense and the hostility is suspected to be generated. Can you go through from an early counselling stage right to a finalised divorce in the Family Court, without a lawyer?

Alastair Nicholson: You can, but you're very foolish if you do, when you're talking about, for example, property issues, it's very desirable to get some external legal advice as to what's a fair thing, rather than simply relying upon a mediation or counselling session. I think there's really a myth that's been created about lawyers creating the problem. The fact is that for example about 40% of our counselling clients are referred by lawyers. Now they're hardly obviously promoting disharmony by doing that, and in fact good family lawyers I find are very conscious of the need to try and resolve matters outside the court, and they do it a lot better. The real problems we have are people who are unrepresented, don't understand the system, can't look at their problems objectively, and therefore they're more likely to go on and get themselves involved in difficult litigation, than they are if they're properly advised and represented. I think the lawyers do a really terrific job in that sense, and there's only a very few that would fall into the stereotype category that seems to be in the public mind. I think also people forget that there is a levelling aspect about legal representation. Quite often you've got quite a significant power imbalance in relation to couples in a relationship, and the power imbalance may be a financial one, or it may be a personal one, and I think the lawyers have the very useful effect of smoothing out that imbalance. I think probably women suffer more being on the wrong end of a power imbalance than do men. So I think that once you take lawyers out of the system, you're probably creating significant gender problems in relation to family law.

Susanna Lobez: Can judges actually order people to go to counselling and mediation, order adults?

Alastair Nicholson: Indeed. In fact we don't order people to go to mediation in this court, but we do order them to go to counselling, so that everyone who commences proceedings in relation to children will be required to attend counselling as part of the process. Not only that, they're also required to attend information sessions at which counsels will explain different problems in relation to children, and the progress of the matter through the court. So that it's a very integrated system that we operate, and indeed it would be a disaster if we couldn't do that. I mean there are so many cases that come into court where you direct the parties into counselling and they'll be back probably two hours, three hours later, quite often with a concluded agreement. Now we can't achieve that from the Bench, and it's just vital that we are able to offer those sort of services.

Susanna Lobez: You wouldn't be comfortable not having the option of sending them here, within the court, for counselling or mediation, having to say, 'Well look, please make an appointment with this particular community mediation or counselling group and come back to us in six months time.'

Alastair Nicholson: Yes well humans don't work that way. If you can say, 'Look, I want you to go upstairs and see someone now, or make an appointment now and we'll arrange it for you' they will comply. But if you tell them to go down the street and make an appointment with someone else, the odds are that they won't.

Susanna Lobez: What about the cost? Does it actually cost people to go to counselling sessions or mediation sessions here at the Family Court?

Alastair Nicholson: The Government recently introduced fees in relation to counselling and mediation, but those fees only apply if the people haven't commenced litigation. If they commence litigation they have to pay a fee as well, but after that they get their counselling free.

Susanna Lobez: Amazing, a discount for commencing litigation.

On that note, Chief Justice Alistair Nicholson and senior legal adviser Margaret Harrison, thanks indeed for talking to me here at the Family Court.


Peter and Voula are a separated couple who chose to work through their differences with community based counselling. They explained to Damien Carrick why they felt this was their best option.

Voula: We'd actually decided to separate, and for us it was a matter of having an objective outsider listen to what we thought and give us some guidance.

Damien Carrick: And did you have to compromise on any particular issues? I guess you were at mediation because there were still some points of difference.

Peter: Yes, there were issues about the children, about the property, finance, and what happened was that by putting things on the whiteboard and then discussing these issues, then we found solutions. And those solutions we compromised upon and then finally it became part of the agreement.

Damien Carrick: And so at the end of the day you sort of had this set of agreed terms to the breaking up.

Peter: So far we've stuck with the agreed terms, and it's been all right.

Voula: Yes, I think what the whole point was that the solutions that we arrived at were our solutions; and that's the whole point I think of mediation, that they're our decisions, no-one gets coerced into anything and that's a given. If you've made a decision, it makes a lot easier to stick to it, rather than being dictated to perhaps which could happen if you went through the legal process.

Damien Carrick: Do you have any friends who have chosen to go through the Family Court system?

Voula: Yes, and they've paid thousands and thousands of dollars, in my view unnecessarily, and it's more of an ego trip than anything. With us it wasn't about who's going to win, it was a matter of being fair and equitable, considering there were children involved.

Damien Carrick: And what were some of the experiences of your friends who went through the Family Court system?

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