Operation of the Family Courts - Justice Committee Contents

Examination of Witness (Question Numbers 350-373)

Dr Rae Kaspiew

10 May 2011

Chair: Dr Kaspiew, we very warmly welcome you and we are very glad that you have given some time to help us. We are very interested in the Australian experience. You are Senior Research Fellow in the Australian Institute of Family Studies. My colleagues and I would like to ask you about what has been done in Australia and what your experience of it has been because it is closely relevant to issues that we are considering here. I am going to ask Elizabeth Truss to begin the questioning.

Q350 Elizabeth Truss: Thank you. Dr Kaspiew, overall, how successful do you think the reforms in Australia have been, in particular against the objectives? I was also interested to read in the report about the impact they have had on the settlements for parents—between mothers and fathers—and also the power balance between children and parents. Could you tell us a bit more about that?

Dr Kaspiew: The reforms in Australia were very extensive in 2006. There were a number of aspects and objectives involved in the reforms. There were changes to the service system and to the legislation. Our findings are that the impact of the reforms was mixed. There were some aspects of the reforms that were successful and some areas that were more problematic.

  In terms of successes, I would have to say that our findings show that parents are using relationship support services more and there is evidence to suggest that that is contributing to an empowerment to resolve disputes themselves without recourse to courts. However, that is something that needs to be monitored on a longer term basis as these things can take time to unfold.

  In terms of difficulties, the area of difficulty that was highlighted most clearly in our evaluation findings was in relation to family violence. We had a study of 10,000 separated parents. About one fifth of those—21% of mothers and 16% of fathers—said that they had concerns for their safety or the safety of their child as a result of ongoing contact with the other parent. One of the findings that really highlights the issues to do with family violence was that, despite the presence of safety concerns, that group of parents was no less likely, and possibly more likely, to have shared care arrangements than parents without safety concerns. This is in a context where 16% of families have shared care arrangements. I should say that "shared care" is a broad definition of 35% to 65% of nights spread between each parent; so it is a very generous definition. What that statistic tells us is that the system has had difficulty in distinguishing families for whom shared care is appropriate and healthy for their children and families for whom it is not. There is a range of reasons behind that.

Q351 Elizabeth Truss: Has there been any impact on child safety as a result of that? Have there been more problematic cases as a result of that?

Dr Kaspiew: We did analysis of the wellbeing of children who belonged to our 10,000 separated families. We analysed data collected on the wellbeing of the children in those families—the one focus child in the family. It is quite clear that, where there has been a history of family violence or there are ongoing safety concerns, the wellbeing of children is lesser. On the basis of mothers' reports of child wellbeing, where there are shared care arrangements in the presence of safety concerns those children are doing less well than other children not in shared care arrangements. Those are data based on very large-scale samples and clearly that indicates that there are issues.

Q352 Elizabeth Truss: We could summarise that this may work better for less vulnerable families, but for those most vulnerable families, where there are problems with substance abuse, etcetera, then this arrangement has not worked so well. Can I ask about the financial impact on it? One of the things I was reading is that the balance between mother and father has changed. Do you have any specific data on the percentage change in settlement, for example?

Dr Kaspiew: Yes, we do have data on it—quantitative data based on lawyers' views, with some support from other types of professionals. Basically, a majority of lawyers believe that the balance shifted in favour of fathers over mothers and that this had some impact on property settlements. I have to say, though, that those are tentative findings. Our research and other research points to a picture where there are different groups within the community. The majority are able to co-operate post-separation and a bargaining dynamic is perhaps not so relevant to them. There are other groups who are more problematic and whose relationships are more conflictual post-separation, where there is perhaps ongoing difficulty and even very difficult and fearful relationships. For those families it appears that the legislative changes impacted upon the capacity of, perhaps, mothers in particular to advocate against shared care arrangements. There is some suggestion that in some instances some fathers may be motivated to pursue shared care to reduce child support.

Chair: We have rather jumped to the shared parenting question. Mr Llwyd might want to come in at this point.

Q353 Mr Llwyd: I will try and sweep up a bit. I was concerned about the voice of the child coming through in all of this. How is the child being heard?

Dr Kaspiew: There are a number of aspects I will need to refer to in my answer. First of all, it is important to note that most parents resolve their issues through discussions and do not use formal services. As to how the child's voice is heard in that context, there are not a lot of publicly available data on that at the moment.

  In relation to other contexts, the family dispute resolution context—which is what we call "mediation"—is a service that around 8% of parents nominate as their main pathway to resolving parenting disputes. Around 30% say that they have been to counselling but they do not necessarily see it as the way they settle their matter. In that context there are two processes that are applied, depending on the situation and the practice of the family dispute resolution practitioner. One of them is the child-focused process, where the child is symbolically present through a photo and the parents are encouraged to focus on their child in that way. The other is the child-inclusive process, where the child is interviewed by a family consultant, a psychologist. That is a professional who is well trained to deal with children in these instances and the children's views and feelings are fed back to the parents in a context where the professional has judged that it is appropriate and safe to do that.

  In relation to court matters—and I should say that court matters were nominated by about 3% of parents as their main pathway—we have two mechanisms for hearing the voices of children. One is the appointment of an Independent Children's Lawyer. Those lawyers are appointed in the most difficult cases. We found in our research that they were appointed in about one fifth of matters prior to the reforms and the proportion rose to one third of matters after the reforms, bearing in mind the context where court filings had dropped. The proportion increased but the total number did not necessarily. That is the best interests representation model. The Independent Children's Lawyer essentially gathers evidence and forms a view on the basis of talking to the children, although practices vary from lawyer to lawyer about this. They will form a view on the basis of the evidence and they will say to the court, "In my view, on the basis of the evidence, this is what the child's best interests require." They are obligated to put the children's views before the court, but there is little empirical evidence about how that practice works. In my view, it is an area that requires further scrutiny.

  In parallel to the potential for an Independent Children's Lawyer to be appointed, we have three courts that exercise jurisdiction in family law in Australia. There are two that operate almost concurrent jurisdictions—the Federal Magistrates Court and the Family Court of Australia—and then the Family Court of Western Australia has its own court. The Federal Magistrates Court and the Family Court of Australia do not operate in Western Australia as family court registries.

  Those courts have different processes. After the reforms, the Family Court of Australia and the Family Court of Western Australia introduced a process whereby there was a family consultant, so social science professional involvement, in every case from the outset of the case. In the Family Court of Australia, that meant that the views of the children were also obtained through that professional, but in the Federal Magistrates Court, which operates in a more traditional, adversarial kind of way, there is no automatic family consultant involvement. A family report may be obtained. They are not obtained in all matters. They are obtained in less than half of matters. The family consultant may or may not speak to the children, according to their practice and the view they take of the matter.

  Certainly there have been steps in the right direction in terms of more social science involvement in some courts and the application of the child-inclusive process in the family dispute resolution context, but it is an area that requires more thorough empirical examination based on direct research with children and the professionals that examine their interests.

Q354 Mr Llwyd: Prior to introducing the statutory presumption in favour of shared parenting, had the practice developed over the years in courts to really think that this very often was consistent with the best interests of the child?

Dr Kaspiew: In my answer I will have to distinguish between parental responsibility and shared time. That is the distinction that is present in the existing legislation and it was also the distinction that was present in previous legislation. In Australia, under the previous regime and under this regime, there is a very strong philosophy in favour of shared parental responsibility. It is very unusual for a court to remove responsibility from a parent either in whole or part. It is only in very extreme cases where that happens.

  Prior to the reforms there were many fewer orders made for shared parenting, applying that 35% to 65% ratio definition. In matters that were judicially determined, we found that orders for shared time increased from 4% prior to the reforms to 34% after the reforms. In consent matters, around 17% of orders allowed for shared time, applying that generous definition, compared with 22% after the reforms.

Q355 Mr Llwyd: Just two very brief points, if I may. First, do you have the paramountcy principle—the interests of the child being above everything else? Is that still unaffected?

Dr Kaspiew: We certainly do.

Q356 Mr Llwyd: Finally, do you approve of the equal shared parenting measures brought in in Australia? Are you altogether happy with the way they are working?

Dr Kaspiew: Speaking from the evaluation findings, the issue of family violence that I have already adverted to is a difficult one. There has also been a lot of confusion and misunderstanding about the presumption in favour of equal shared parental responsibility. While it is a highly qualified presumption, in that it is not applicable where there are reasonable grounds to believe there is family violence or child abuse concerns and it is rebuttable on the basis of evidence that would convince a court that it is not in the best interests of a child, it has been widely understood as somehow mandating or entitling parents to shared care. This is one of the features of the environment that has contributed to concern about children's interests not being considered to the extent that they should be because the framing of the legislation is viewed to encourage a focus on parents' interests and rights, although the legislation doesn't refer to any such right.

  Having said that about the drafting and understanding of the legislation, it is also important to recognise the widely accepted concept in Australia of both parents maintaining strong relationships with their children after separation. Our evaluation findings show that.

Q357 Elizabeth Truss: I am interested to understand. What we have been talking about is the impact of the justice legislation on the system. What about the other agencies involved in families protecting children? What has their role been and do you suffer from the same issues that we suffer from here of having quite a silo mentality between different agencies? What I am concerned about in this issue, where there are vulnerable families and there are issues of violence, is whether there are other agencies looking out for the children and how that interfaces with the changes in the judicial system.

Dr Kaspiew: I can say with some conviction that we do suffer from the same silo mentalities that occur here, but perhaps for different reasons. We have a system where, under our Constitution, the Federal Government is competent to legislate for family law—that is relationship breakdown law—whereas family violence and child protection are the preserve of the States and Territories. There has been quite a lot of policy work done recently that identifies the silos and difficulties, and attempts to make suggestions about how to overcome them.

  In terms of our findings, we found that families where there was family violence and child abuse were taking much longer to resolve their matters. They were using more services to resolve their matters and there was a sense that some families were bounced around the system between services. They were not finding an easy resolution, which is very concerning given some of the serious issues that pertain to those families.

Chair: I think we need to move on. I am going to ask Helen Grant.

Q358 Mrs Grant: Good morning. I would like to ask you some questions about mediation. Do you think the compulsory mediation that you have in Australia—this FDR process—has been the most significant factor in ultimately reducing the applications to the court, or do you think there are other aspects of the reforms that you brought in—because I know they were very far-reaching—that have equally been part of this success? I read somewhere that there has been a reduction of about 18% or 19% in court applications, which of course is impressive and one that we may wish to emulate here if we could. How have you done it? Has it been that compulsory aspect of the FDR process?

Dr Kaspiew: There are a couple of points that I need to make in response to that question. First of all, our findings show a 22% drop in court filings over that period. That is probably largely attributable to the advent of family dispute resolution, with exceptions. It will be important to monitor that over the longer term. Those data were based on the years immediately after the introduction of the reforms. Informal discussions that I have had with the courts indicate that filings might be starting to creep up. There was an immediate effect after the reforms that perhaps is not going to be sustained to the same extent.

Q359 Mrs Grant: Why is that creep coming in, would you say?

Dr Kaspiew: It takes time for people to discover that they are not agreeing and that they need to go to court. A period of 18 months to two years after the reforms doesn't allow things to unfold in families in the way that one might expect. There have been some issues with family dispute resolution. While it has probably been very useful and successful for some families, there is also evidence that it has been applied inappropriately in some families where there are concerns around family violence and child abuse. While there are screening and intake processes that are applied, those are not always faultless. There is some evidence that probably around 10% of matters where there are concerns about family violence or child abuse have slipped through the net. You need to understand the qualifications around family dispute resolution as a mechanism for resolving disputes. Bear in mind the fact that many of the families who do actually need the assistance of services have complex problems. That is what our findings have uncovered.

Q360 Mrs Grant: I had the great pleasure and privilege of visiting Australia about four years ago. I went to see three or four FCRs around the Sydney area. I attended the Family Relationship Conference up in Cairns. I also had the opportunity to sit in on a family dispute resolution session. What I noticed was the very high quality of the mediator. It was quite exceptional. Do you have difficulties in relation to supply and demand and finding, recruiting and retaining this quality and standard of person?

Dr Kaspiew: Certainly in the initial period after the reforms when the 65 family relationship centres were rolled out over a two-year period, workforce issues were an issue in terms of obtaining the quality of practitioner. My understanding from discussions with people in the sector is that that remains a problem. It is very demanding work because those families do often have very significant problems.

  If I can just advert to one development in Australia that is quite recent, the Government have funded a pilot programme that is being applied where there has been family violence. It is called co-ordinated family dispute resolution. That is quite a novel pilot that the Institute is involved in evaluating. The pilot is only just starting, but that initiative is evidence of the fact that our policy makers are in search of different models for different types of families that will meet their needs in different circumstances.

Q361 Mrs Grant: Does that pilot have the support of your women's sector: the equivalent of Women's Aid and Refuge? Are they completely behind it?

Dr Kaspiew: Yes. The model for the pilot was developed by Brisbane Women's Legal Service.

Q362 Mrs Grant: My last question, very quickly, is whether you think the process of FDR is ultimately causing significant delay, or do you think it is a negative possibly worth having, bearing in mind that many of these cases ultimately are not getting to court?

Dr Kaspiew: For some families I think it is causing delay. One of our findings was that there needed to be more effective screening and assessment processes as well as processes for social science professionals and lawyers to talk to each other to come to some kind of common understanding about what kinds of cases are amenable to resolution through FDR and what kinds of cases aren't. Again, we have had a programme where community legal centres have been funded to provide legal advice in family relationship centres. That is a programme aimed at building that collaboration and common understanding in the sector, basically identifying which cases should go on a bit of a faster track to court and which cases might be amenable to settlement.

Q363 Ben Gummer: Dr Kaspiew, just carrying on with the point about case management and the effects of the reforms on case management, there seems to be a difference of opinion among some lawyers about the effect of the changes on case management. What is your opinion about the efficiency of the courts after the reforms?

Dr Kaspiew: I just want to explain the context in which our data collection about that issue took place. In 2007, there was a review of the structure of the family courts of the Federal Magistrates Court and the Family Court of Australia. Basically, there was a lot of uncertainty as to the future of the court structure. I should say that that uncertainty still pertains. There was a situation where judicial resources weren't being replaced. Judges were retiring from the Family Court of Australia and there was a lag in making reappointments.

  There was an evolving structural and practice context in the way the data were collected. Having said that, in the Family Court of Australia there is a Magellan case management process which is applied in very serious cases of alleged sexual abuse or physical abuse. That is applied in about 2% of cases and involves agreement with child protection authorities to provide a report. There is an Independent Children's Lawyer and a family consultant appointed. It is very active case management.

  The other aspect of the reforms was Division 12A of Part VII of the Family Law Act, which provided judges with a range of powers and duties in terms of case management. It basically requires judges to take quite an active role in managing a matter and resolving it. The introduction of that Division was accompanied by changing case management practice in the Family Court of Australia, which I have already explained. Also in the Family Court of Western Australia, which was similar to the Family Court of Australia, they have actually rolled back some of their approach now because of the resourcing implications. The Federal Magistrates Court remained largely unchanged, although there is a perception that that court has always had very active case management by its judges. All three courts operate on the basis of a docket system, where each matter is in the docket of an individual judge.

  Having said that, in terms of the application of Division 12A and the Family Court of Australia's case management system, views about the effectiveness of that were very divided. The family consultants and the judges thought it was a positive step forward. It was not particularly popular among family lawyers. While most family lawyers agree with the concepts behind it in terms of flexibility and child focus, there was also a perception that there were inconsistent judicial approaches and the judges themselves acknowledged that each judge approaches things differently.

  There are concerns among lawyers about the process whereby clients speak directly to the judge. Part of the Family Court of Australia's less adversarial trials process involves a situation on the first day of a trial where the parties have the opportunity to personally explain their position to the judge. Lawyers are very concerned about this because they feel that their clients give too much away or shoot themselves in the foot, whereas judges really like that approach because they feel they get to hear what is going on.

Chair: You do surprise me.

Dr Kaspiew: There is also concern around the position of people who have perhaps experienced family violence, have linguistic difficulties or cultural difficulties and the fact that they may be at a disadvantage in speaking directly to the judge. It is seen to be quite difficult for a family violence victim to be standing in the same courtroom as a perpetrator explaining what is going on. Again the views on that are mixed, I have to say.

Q364 Ben Gummer: Stripping out the noise from the general reorganisation of courts is the first part of the question. The second part is that you raise the interesting issue of people with language or cultural differences. Did you find any qualitative evidence that those fears held up?

Dr Kaspiew: Our analysis of court files didn't go into that aspect of things. I have to say that at this point the evidence is based on views and that is it. You would need a different methodology to scrutinise that.

Q365 Ben Gummer: On the first part of the question, did you find, once you tried to strip out the general reorganisation of courts, that there had been an effect on case management?

Dr Kaspiew: There has definitely been an effect on case management.

Ben Gummer: In terms of efficiency.

Dr Kaspiew: I can't answer that question in those terms.

Q366 Ben Gummer: You talk about the judiciary liking the new system. Have you found any change in the way that the judiciary is approaching case management and the cases themselves as a result of the changes? Has it had a behavioural effect? Perhaps that is a neater way of putting it.

Dr Kaspiew: Yes; certainly the judges say that there has been behavioural change in the way that they approach things and that they are much more proactive in terms of active case management, defining issues, calling for certain pieces of evidence and that kind of thing. As far as judges are concerned, they perceive that they have changed their behaviour.

Q367 Ben Gummer: Finally, the system was piloted beforehand.

Dr Kaspiew: Yes.

Q368 Ben Gummer: Did the pilot inform the eventual reform and to what extent? The last part of the question is, given the fact that we are about to go through a similar process now, how would you recommend a pilot be set up in this instance from the experience that you have had?

Dr Kaspiew: The pilot in the Family Court of Australia was called the Children's Cases Pilot. It was set up on the basis of a particular Practice Direction that was issued. That laid out the requirements for the pilot in terms of no affidavits to be filed before day one—the things that were required to support that approach. The legislative provisions that were enacted in Division 12A of Part VII do largely reflect the issues that were outlined in the Practice Direction.

Q369 Ben Gummer: I am not asking you to describe exactly how you would do it, but if you were to repeat the process again how would you set up a pilot in England and Wales?

Dr Kaspiew: I have a basic knowledge of your court system. The Family Court of Australia selected a couple of registries for piloting the programme. The Practice Direction was issued, the process was set up and evaluation was conducted. I would imagine that is an appropriate way to proceed. Certainly, if it is concentrated in one registry, you then have the possibility of drawing data from other registries for the sake of comparison, which is how the evaluation of the pilot proceeded, so that you can track things such as time from filing to resolution, outcomes, evidence profiles and so forth.

Q370 Chair: Just one final point. Australia seems to have become quite comfortable with a system in which family courts are open to the public and the media, with strict restriction on the ability of the media to report anything which would identify the parties to the case. In the UK this remains very controversial. It is thought by some that there are considerable dangers in having a system even with those restrictions. Is this level of access to family courts much questioned in Australia?

Dr Kaspiew: No, it is not much questioned. It is very much a part of our culture. In fact, over the years the trend has been towards more openness. In fact almost all judgments are now de-identified and put up on the AustLII website. I understand you have a similar legal information website in the UK. Almost all judgments are de-identified and placed on that website. The courts are open.

  It seemed to reduce the possibility that mischievous claims can be made about what goes on in family courts. It seemed to contribute to a greater understanding among the general public of what happens in family courts, how matters are dealt with and the types of outcomes that occur. Where reporting does occur, it is generally focused on cases that are unusual or at the outer limits that deal with unusual fact situations or unusual points of law.

  For example, after the reforms, there was some interest in relocation and some particular relocation matters were reported in a non de-identifying way. There have been some cases involving parents with religious beliefs that are not mainstream. Some of those outcomes are reported because they are the kinds of things in which the media feels that the public would be interested.

Q371 Chair: Do you get reporting of cases which have a celebrity element to them but without reference, of course, directly to who the celebrity is?

Dr Kaspiew: I have never seen that. I am not saying it hasn't happened, but I do monitor these things because of my area of work and I am certainly not aware of that ever having happened. Our legislation is very detailed about the kinds of things that you can't report. You couldn't report anything that would indicate that someone in a case is a celebrity, let alone report anything that would indicate what the particular identity of the particular celebrity might be.

Q372 Chair: Will Twitter drive a coach and horses through that?

Dr Kaspiew: We haven't had that issue as yet.

Q373 Mr Llwyd: Following on from Sir Alan's points, I have two very brief points. Despite the reports being anonymised, which is absolutely right of course, matters of law need researching. Doesn't it inhibit vulnerable witnesses from actually giving evidence as fully as they should? In other words, you have a relatively young child who might be in court and might be represented or otherwise. That child will be giving evidence in a public arena knowing full well that the outcome may be anonymised, but still there is pressure on that young person, isn't there?

Dr Kaspiew: In the family law context, children are rarely ever required to give evidence in open court. It may have happened on occasion with older children, but I am not aware of any instances. What will generally happen is that the evidence about their situation is brought to the court by the family consultant or the Independent Children's Lawyer, or judges will occasionally speak to a child in chambers, usually with another professional present. That is not a live issue in our context.

Chair: Thank you very much indeed, Dr Kaspiew. We have pressed you for a lot of information on a topic on which you have spent a lot of time and we are very grateful for all the help you have given us.

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Prepared 14 July 2011