Family Relationships Quarterly No. 16

AFRC Newsletter No. 16 – June 2010

Genuine effort in family dispute resolution

by Hilary Astor

In this opinion piece, Hilary Astor, Professor of Dispute Resolution in the Faculty of Law at Sydney University, provides a commentary on issues associated with the "genuine effort" provisions of the Family Law Amendment (Shared Parental Responsibility) Act 2006. We also asked service providers to give a practitioner perspective on the complexity surrounding genuine effort in practice by responding to the issues raised in Professor Astor's article, and a summary of their responses follows the main article. This article and its conclusions should be considered in conjunction with requirements under the Family Law Act 1975 and regulations as well as guidelines provided by the Attorney-General's Department in implementing the reforms.

The legislative context

Section 60I of the Family Law Act 1975 (the Act) as amended by the Family Law Amendment (Shared Parental Responsibility) Act 2006 provides that all persons who have a dispute about children (under Part VII of the Act) must make a genuine effort to resolve that dispute by family dispute resolution before they can litigate.1 Family dispute resolution practitioners are responsible for certifying whether or not the parties have made a genuine effort and therefore have a new role involving evaluating the performance of their clients in family dispute resolution (s60I(8)).

The court may take into account the kind of certificate granted in considering whether or not to make an order referring the case to family dispute resolution (s13C) and in determining whether to award costs against a party (s117). Consequently, if one party is assessed as not making a genuine effort, they may become liable to pay all or part of the costs of subsequent legal proceedings. Anecdotally, but unsurprisingly, this latter provision has made parties and their lawyers particularly anxious to avoid being given a certificate certifying that they have not made a genuine effort.

Defining genuine effort

Despite the various exceptions, it is intended that most people who have a dispute concerning their children and who cannot resolve it without help will attend family dispute resolution and therefore make a genuine effort to resolve their dispute without litigating. Making a genuine effort is a gateway through which parents must pass before they can access a court (Kaspiew, 2008). However, what constitutes genuine effort is not defined in the Family Law Act.

Cases decided since these amendments came into force have also not provided any assistance. Cases dealing with the provisions of s60I mainly concern the exceptions to the requirement (in subsection 9) that the parties must obtain a certificate. In particular, there have been a number of cases where it was argued that the urgency of the application justified the absence of a certificate. No case has so far contributed to a definition of genuine effort.

Clarity about the meaning of genuine effort is important to ensure fair and consistent decision-making and to prevent "forum shopping" between different dispute resolution services (Astor, 2008; Altobelli, 2006). Further, parents and their legal representatives need to know what is expected of them, so that they can prepare for and behave appropriately in family dispute resolution. Some family dispute resolution practitioners report that where they have issued a certificate that a genuine effort was not made, it is frequently challenged by that party's lawyer. Practitioners dealing with these challenges need to provide clear information for the parties and lawyers about what behaviour is required for genuine effort and how their client has fallen short of the standard.

The Attorney-General's Department provides some guidance by suggesting that genuine effort involves a real, honest exertion or attempt, realistically directed at resolving the issues (Attorney-General's Department, n.d.). The difficulty with this is that assessing what is real or honest or realistic is just as subjective as judging what is genuine. The professional judgements of family dispute resolution practitioners may be informed and reliable, but it is hard to defend such judgements against a client or lawyer arguing their counter opinion. Consequently, elsewhere I have suggested that a definition of genuine effort should be based not on such subjective criteria, but on the behaviour of the parties. It should require that participants in family dispute resolution demonstrate willingness to do three things that are at the core of the essential negotiating behaviours required to resolve disputes involving children under the Act. They should: first, consider options put forward by the other party; second, consider putting forward their own options; third, focus on the interests and needs of the children (Astor, 2008). These three elements of genuine effort still require professional judgements from family dispute resolution practitioners and do not dispose of all the dilemmas that practitioners face in assessing genuine effort. However, they require a focus on the parties' behaviour rather than what the practitioner thinks was the parties' state of mind. They should assist the practitioner to give the parties concrete advice about what is expected of them in family dispute resolution.

The legislative framework: Overview of provisions

Family dispute resolution practitioners can grant one of five different types of certificate for the following:2

  • non-attendance at family dispute resolution because the other party refused or failed to attend;3
  • non-attendance because the family dispute resolution practitioner considers that family dispute resolution would not be appropriate having regard to matters such as violence, the safety of the parties, inequalities of bargaining power, the risk of child abuse and the parties' health;4
  • that a person attended family dispute resolution and that all parties made a genuine effort to resolve the issue(s);
  • that a person attended family dispute resolution but that person, or another party did not make a genuine effort to resolve the issue(s); and
  • that a person began attending family dispute resolution but the practitioner considered that it was inappropriate to continue due to the risk factors outlined above.

There is no need to issue a certificate at the end of family dispute resolution unless a client requests one. Certificates can be issued up to 12 months after the family dispute resolution process has concluded. If a "non-genuine effort" certificate is issued, the court may order the parties to attend family dispute resolution before hearing an application.

There are exceptions to the requirement to have a certificate before commencing Part VII proceedings. These are set out in s60I(9) and include: where the application is for a consent order; where it involves child abuse or family violence; in certain situations involving contravention of a recent order under Part VII; where one or more of the parties to the proceedings is unable to participate effectively in family dispute resolution (whether because of an incapacity of some kind, physical remoteness from dispute resolution services or for some other reason); and, in cases of urgency or where the circumstances specified in the regulations are satisfied.

Regulation 25 of the Family Law (Family Dispute Resolution Practitioners) Regulations requires that before providing family dispute resolution, the practitioner must be satisfied that an assessment of the parties to the dispute has been carried out and that it is appropriate to provide that service to the parties. In determining whether family dispute resolution is appropriate in any given case, the practitioner "must be satisfied that consideration has been given to whether the ability of any party to negotiate freely in the dispute is affected by any of the following matters:

  1. a history of family violence (if any) among the parties;
  2. the likely safety of the parties;
  3. the equality of bargaining power among the parties;
  4. the risk that a child may suffer abuse;
  5. the emotional, psychological and physical health of the parties;
  6. any other matter that the family dispute resolution practitioner considers relevant to the proposed family dispute resolution.

Commentary on genuine effort

Since the genuine effort provisions came into operation, there has been some concern that the requirement to certify whether a genuine effort has or has not been made alters the role of family dispute resolution practitioners. The traditional role of practitioners was described by Cooper and Brandon (2008) as being "an independent role as facilitators with their primary goals being to assist parents to work towards arrangements in their children's best interests and to provide a voice for children in their parents' discussions" (p. 109). Now, however, practitioners have a role as "assessors" in deciding whether the parties have made a genuine effort, and as "gatekeepers" between the parties and the court (Cooper & Brandon, 2008; see also Polak, 2009). Some family dispute resolution practitioners are content with this new role, and are sanguine that they can use the genuine effort requirements to remind parents of their obligations to take family dispute resolution seriously. However, others are uncomfortable with their changed role and argue that it compromises their independence and can change their relationship to the parties (Cooper & Brandon, 2008; Fisher & Brandon, 2009). The issue of how genuine effort certificates are handled is therefore situated within an emerging discussion of the changing role of family dispute resolution practitioners (e.g., see Bickerdike, 2007).

The private, unregulated and subjective nature of judgements about genuine effort make family dispute resolution practitioners vulnerable to criticisms that their judgements may be biased. Critiques have already been made concerning the possible bias of practitioners. Field (2006) has argued that women may be disadvantaged in family dispute resolution, for instance, where post-separation stress and trauma make it difficult for a woman to appear to be reasonable, consensus-orientated and cooperative; therefore they may fail to satisfy the practitioner that they are making a genuine effort. She has argued that gendered assumptions about appropriate behaviour may also affect judgements about genuine effort; for example, there may be a tendency to judge strong, assertive or angry behaviour by women more harshly than the same behaviour by men (Field, 2006). When family dispute resolution practitioners make judgements about genuine effort that are affected by their values or opinions, they do so in a private, confidential environment. This makes it harder for parents to challenge those judgements and for family dispute resolution practitioners to defend them and thereby fortifies the arguments for a clearer definition of genuine effort.

Conversations with family dispute resolution practitioners

There is presently no research or other data about how the genuine effort provisions are working. What follows is anecdotal and arises from discussions with practitioners, including their responses to conference presentations about genuine effort. Practitioners are conscious of the difficulty of making assessments about genuine effort. Many report that they have never given a certificate of "no genuine effort". Reasons include that some clients are struggling with very complex and difficult situations in their lives and have general problems of capacity, so that any attempt, even simply to attend family dispute resolution, constitutes a genuine effort. Others point out that evaluating genuine effort involves assessing the intra-psychic processes of individuals, and that this is an impossible task: a parent may appear to be making little effort, but it can be very hard to judge if they could do more or if they are genuinely doing all that they can in the circumstances. Family dispute resolution is no longer solely a forum for those who value consensual decision-making and have chosen to be there, but a gateway through which all who wish to go to court must pass. Parents may therefore be struggling with grief, anger, depression, mental illness, addictions or other factors. A certificate that family dispute resolution is not appropriate may not be called for, but it may become apparent in a session that the parties do not have much to give to the process. The argument that the genuine effort provisions of the Act are unworkable and should be removed has been put to the author by a number of practitioners.

Nevertheless, other practitioners (impressionistically a minority) report that they have assessed some people as not making a genuine effort and that such an assessment is appropriate in some cases. However, some also report that a "no genuine effort" certificate frequently results in strong protests from that party or their lawyer, coupled with demands that the manager of the service reconsider the certificate. Also reported is pressure from some clients to certify that their ex-partner has not made a genuine effort, where that conflicts with the practitioner's assessment that a genuine effort was made.

Conclusion

While it is early to make any firm judgement, the indications are that the genuine effort provisions of the Act are posing some difficulties in practice, that they may not yet be working effectively, and that some further attention to the meaning of genuine effort is called for.

References

  • Altobelli, T. (2006). A generational change in family dispute resolution. Australasian Dispute Resolution Journal, 17, 140-156.
  • Astor, H. (2008). Making a genuine effort in family dispute resolution: What does it mean? Australian Journal of Family Law, 22, 102-121.
  • Attorney-General's Department. (n. d.). Frequently asked questions: Family dispute resolution certificates. Canberra: AGD. Retrieved from <www.tinyurl.com/ya6znxn>.
  • Bickerdike, A. (2007). Implications for family dispute resolution practice: Response from Relationships Australia (Victoria) to the Allegations of Family Violence and Child Abuse in Family Law Children's Proceedings report. Family Matters, 77, 20-25.
  • Cooper, D., & Brandon, M. (2008). Non-adversarial advocates and gatekeepers: Lawyers, FDR practitioners and co-operative post-separation parenting. Australasian Dispute Resolution Journal, 19, 104-113.
  • Field, R. (2006). Using the feminist critique of mediation to explore "the good, the bad and the ugly": Implications for women of the introduction of mandatory family dispute resolution in Australia. Australian Journal of Family Law, 20(1), 45-78.
  • Fisher, L., & Brandon, M. (2009). Mediating with families (2nd Ed). Sydney: Lawbook Co.
  • Kaspiew, R. (2008). Advent of compulsory family dispute resolution: Implications for practitioners. Family Relationships Quarterly, 6, 6-8.
  • Polak, N. (2009). No longer neutral: Practitioner power in compulsory (family) dispute resolution. Australasian Dispute Resolution Journal, 20, 88-95.

Hilary Astor is Professor of Dispute Resolution in the Faculty of Law at Sydney University. This is an abridged version of an article first published inFamily Matters No. 84, released in May 2010.

Endnotes

1. Section 60I(1) states that: "The object of this section is to ensure that all persons who have a dispute about matters that may be dealt with by an order under this Part (a Part VII order) make a genuine effort to resolve that dispute by family dispute resolution before the Part VII order is applied for."

2. Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 (Cth), added paragraph (d) to 60I(8).

3. The Family Law (Family Dispute Resolution Practitioners) Regulations 2008, Reg 26(4) provides that the party or their lawyer must be contacted at least twice, including in writing, giving a reasonable choice of days and times to attend family dispute resolution and warning of the possible consequences of failure to attend.

4. Family Law (Family Dispute Resolution Practitioners) Regulations 2008, at Reg 25