Responding to family violence

A survey of family law practices and experiences
Evaluation of the 2012 Family Violence Amendments – October 2015

5. Service-use dynamics after the family violence reforms

This chapter examines whether or not the 2012 family violence reforms have had any effects on patterns in service use, on the basis of the experiences and practices of professionals. Unlike the 2006 amendments, which explicitly sought to encourage the use of family dispute resolution services through the establishment of FRCs and the introduction of FLA s 60I (see Boxes 3 and 4), change in service use was not a direct aim of the 2012 family violence reforms. However, shifts in this regard may potentially be a result of the changes, given the amendments were aimed at supporting better identification of family violence and child abuse. The fulfilment (in whole or part) of this aim could potentially change patterns in service use, depending on two main, interrelated issues.

Box 3: Family Law Act 1975 (Cth)

s 60I

(7) Subject to subsection (9), a court exercising jurisdiction under this Act must not hear an application for a Part VII order in relation to a child unless the applicant files in the court a certificate given to the applicant by a family dispute resolution practitioner under subsection (8). The certificate must be filed with the application for the Part VII order.

Certificate by family dispute resolution practitioner

(8) A family dispute resolution practitioner may give one of these kinds of certificates to a person:

  • (a) a certificate to the effect that the person did not attend family dispute resolution with the practitioner and the other party or parties to the proceedings in relation to the issue or issues that the order would deal with, but the person's failure to do so was due to the refusal, or the failure, of the other party or parties to the proceedings to attend;
  • (aa) a certificate to the effect that the person did not attend family dispute resolution with the practitioner and the other party or parties to the proceedings in relation to the issue or issues that the order would deal with, because the practitioner considers, having regard to the matters prescribed by the regulations for the purposes of this paragraph, that it would not be appropriate to conduct the proposed family dispute resolution;
  • (b) a certificate to the effect that the person attended family dispute resolution with the practitioner and the other party or parties to the proceedings in relation to the issue or issues that the order would deal with, and that all attendees made a genuine effort to resolve the issue or issues;
  • (c) a certificate to the effect that the person attended family dispute resolution with the practitioner and the other party or parties to the proceedings in relation to the issue or issues that the order would deal with, but that the person, the other party or another of the parties did not make a genuine effort to resolve the issue or issues;
  • (d) a certificate to the effect that the person began attending family dispute resolution with the practitioner and the other party or parties to the proceedings in relation to the issue or issues that the order would deal with, but that the practitioner considers, having regard to the matters prescribed by the regulations for the purposes of this paragraph, that it would not be appropriate to continue the family dispute resolution.

Note: When an applicant files one of these certificates under subsection (7), the court may take the kind of certificate into account in considering whether to make an order referring to parties to family dispute resolution (see section 13C) and in determining whether to award costs against a party (see section 117).

Exception

(9) Subsection (7) does not apply to an application for a Part VII order in relation to a child if:

  • (a) the applicant is applying for the order:
    • (i) to be made with the consent of all the parties to the proceedings; or
    • (ii) in response to an application that another party to the proceedings has made for a Part VII order; or
  • (b) the court is satisfied that there are reasonable grounds to believe that:
    • (i) there has been abuse of the child by one of the parties to the proceedings; or
    • (ii) there would be a risk of abuse of the child if there were to be a delay in applying for the order; or
    • (iii) there has been family violence by one of the parties to the proceedings; or
    • (iv) there is a risk of family violence by one of the parties to the proceedings; or
  • (c) all the following conditions are satisfied:
    • (i) the application is made in relation to a particular issue;
    • (ii) a Part VII order has been made in relation to that issue within the period of 12 months before the application is made;
    • (iii) the application is made in relation to a contravention of the order by a person;
    • (iv) the court is satisfied that there are reasonable grounds to believe that the person has behaved in a way that shows a serious disregard for his or her obligations under the order; or
  • (d) the application is made in circumstances of urgency; or
  • (e) 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); or
  • (f) other circumstances specified in the regulations are satisfied.

Box 4: Family Law (Family Dispute Resolution Practitioners) Regulations 2008: REG 25

Family dispute resolution practitioners - Assessment of family dispute resolution suitability

(1) Before providing family dispute resolution under the Act, the family dispute resolution practitioner to whom a dispute is referred must be satisfied that:

  • (a) an assessment has been conducted of the parties to the dispute; and
  • (b) family dispute resolution is appropriate.

(2) In determining whether family dispute resolution is appropriate, the family dispute resolution 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:

  • (a) a history of family violence (if any) among the parties;
  • (b) the likely safety of the parties;
  • (c) the equality of bargaining power among the parties;
  • (d) the risk that a child may suffer abuse;
  • (e) the emotional, psychological and physical health of the parties;
  • (f) any other matter that the family dispute resolution practitioner considers relevant to the proposed family dispute resolution.

(3) If, after considering the matters set out in subregulation (2), the family dispute resolution practitioner is satisfied that family dispute resolution is appropriate then, subject to regulations 28 and 30, the family dispute resolution practitioner may provide family dispute resolution.

(4) If, after considering the matters set out in subregulation (2), the family dispute resolution practitioner is not satisfied that family dispute resolution is appropriate, the family dispute resolution practitioner must not provide family dispute resolution.

The first issue is the extent to which better identification and screening leads to changes in the advice being given to parents about their service use options, and the decisions made consequently (see Chapter 7). The second issue is the effects of the new definitions of family violence and child abuse and the prioritisation of the protection-from-harm principle in advice-giving practice and court decision making. Each of these factors has the potential to change the dynamics of service use, depending on the advice received by each party in a matter and the decisions they make as a result of receiving this advice. Other relevant factors that may influence such decisions - including the availability of resources to pursue a particular outcome or oppose the other party's desired outcome - may be influenced by a range of factors outside the scope of this research, including the availability of funds to obtain legal advice and pursue court action.

An important aspect of the practice environment considered in this chapter is the extent to which matters involving family violence and child safety concerns are dealt with in FDR, even though such matters may be exempted from this requirement under the legislation (FLA s 60I). The findings of the Longitudinal Study of Separated Families (LSSF; Qu et al., 2014) and Survey of Recently Separated Parents (SRSP) 2012 (De Maio et al., 2013) have established that FDR is not uncommonly applied in these circumstances. In the SRSP, for example, FDR was reported as the main pathway used for parenting arrangements by 15% of parents who reported physical hurt and 10% who reported experiencing other family violence (De Maio et al., 2013, section 4.2.3). Notwithstanding the exceptions set out in s 60I, these findings establish that there are a proportion of such matters in which parents agree to undertake FDR and professionals determine that it is appropriate to provide it.

The discussions in Chapter 2 of this report indicate that the nature of the advice professionals provide to parents has shifted, with a greater emphasis on protecting children from harm than before the 2012 family violence reforms. As Chapter 4 also indicates, there is increased emphasis on screening and assessment, though concerns about the efficacy of these processes are held by substantial proportions of professionals.

This chapter sets out the extent to which the evidence from the Survey of Practices suggests that changes in service use patterns have been a by-product of the 2012 family violence reforms. The first section discusses professionals' perceptions of the proportion of cases in their caseloads involving complex issues such as family violence, child abuse and mental health or substance abuse problems. The second section examines the advice that is given by professionals about using FDR. Data that shed light on practices concerning the identification of matters that are not suitable for FDR are discussed in the third section. The fourth section considers the extent to which professionals report providing FDR in matters involving family violence and child abuse. The fifth section examines professionals' accounts of their practice in referring clients to other services. Finally, the last section presents the views of professionals on the issues that motivate parents to seek changes in parenting arrangements, including the extent to which the 2012 family violence reforms are associated with a desire to revise existing arrangements on the basis of concerns about family violence and safety concerns.

The findings in this chapter confirm that matters involving complex issues, including family violence and child abuse, continue to make up a substantial proportion of the caseload of lawyers and non-legal professionals and are regularly dealt with in FDR, though this is more common in family violence than child abuse matters. Certificates are issued for a not insubstantial number of clients who are assessed for FDR, but some matters of this kind are still resolved in FDR. Professional practices in making referrals have shifted in a direction consistent with encouraging parents to use both legal and non-legal mechanisms for addressing parenting disputes and the issues that occur along with them.

5.1 Cases involving complex issues

This section discusses the nature of client circumstances as reported by non-legal professionals. The analysis first focuses on estimates of the proportion of clients characterised by high levels of conflict and complex needs, comparing these with data from the Survey of FRS Staff (FRSP Services) 2009 available in each area. The findings suggest that in each time frame, substantial proportions of the service caseloads were made up of these clients. The discussion then presents 2014 findings on estimates of the proportion of clients who have concerns about family violence and child abuse and neglect.

Figure 5.1 presents non-legal professionals' responses regarding the proportion of separating or separated parents who come to the service experiencing high levels of conflict, comparing 2009 and 2014 findings. The distribution of responses across the options is largely similar overall, apart from the proportions indicating "about a half" of their clients experienced high levels of conflict. This option was nominated by 26% of participants in 2009 compared with 18% participants in 2014. Slightly more participants indicated in 2014 that about three-quarters or more of their clients were characterised by high conflict compared to 2009 (56% cf. 52% respectively), and the proportion of participants choosing the "all" option was three percentage points higher in 2014 than 2009 (9% cf. 6%, data not shown in Figure 5.1). These response patterns suggest similar views between the time frames, with a slightly higher tendency to nominate larger proportions of clients as being in high conflict in 2014, though the differences in sample size and composition between the two datasets may also account for some of these effects.

Figure 5.1: Reasons for family law clients' use of support services in children's matters, as reported by non-legal professionals, 2009 and 2014

Figure 5.1: Reasons for family law clients' use of support services in children's matters, as reported by non-legal professionals, 2009 and 2014. Described in accompanying text.

Notes: Non-legal professionals were asked in 2009 and 2014: "In your view, what is the proportion of separating or separated parents who came to this/your service in relation to children's matters [for each of the following reasons]: who are experiencing high levels of conflict (estimate only); who have complex needs (estimate only); for whom family dispute resolution is inappropriate due to child abuse or neglect (estimate only); for whom family dispute resolution is inappropriate due to family violence (estimate only)". 2009: n = 851-855; 2014: n = 233-235. Percentages may not total 100.0% due to rounding.
Sources: Survey of FRS Staff (FRSP Services) 2009; Survey of Practices 2014

Consistent with the responses in relation to high conflict, the responses regarding clients with complex needs were largely similar between the two time periods (Figure 5.1). About half of the non-legal professionals reported that three-quarters or more of their clients had complex needs in both 2009 and 2014 (50% and 49% respectively). Again, the differences noted between the two time frames are minor and may be partly attributable to the different sample sizes.

Figure 5.1 also shows the estimates of the proportion of cases that are unsuitable for family dispute resolution due to the presence of concerns about family violence and child abuse and neglect. The findings indicate that these issues are relevant in a substantial proportion of cases, though family violence is more frequently identified than child abuse. In relation to each issue, the highest proportion of professionals nominated response options of up to about a quarter, though this was substantially higher for child abuse and neglect (70% in both 2009 and 2014) than for family violence (65% in 2009 and 59% in 2014). Similar patterns are evident in relation to the distributions of the other higher proportion estimates. In 2014, 18% of non-legal professionals identified family violence and 13% identified child abuse or neglect as issues present in about three-quarters or more of their cases, both substantially higher than in 2009 (8% and 4% respectively). One in five non-legal professionals reported that child abuse or neglect was an issue in half or more of their cases in 2014, compared to 9% in 2009, and almost one-third (32%) reported that family violence was an issue in 2014, compared to 19% in 2009. A corresponding decrease in the number of "cannot say" responses in relation to these two issues was also observed in 2014 compared to 2009 (from 21% and 17% respectively in 2009 to 10% for both issues in 2014). Taken as a whole, these data suggest an increasing professional awareness between 2009 and 2014 of the presence of family violence and child abuse or neglect in children's cases.

5.2 Advice from legal and non-legal professionals on using FDR

Two questions examined changes in advice-giving practice about dispute resolution among lawyers and non-legal professionals. The first was general in nature and sought agreement or disagreement with the proposition that: "Because of the family violence reforms, I have changed the advice I give to clients about using FDR services". The second was more specific and concerned how often in the past 18 months the participant had explained to clients involved in parenting disputes that "mediation and similar forms of family dispute resolution should generally be considered only when levels of conflict are relatively low".

Table 5.1 shows that in relation to the more general proposition, both lawyers and non-legal professionals were a little more likely to provide negative than positive responses, with 54% of lawyers and 48% of non-legal professionals saying they had not changed their advice to clients. Similar proportions in each professional group said they had changed their advice: 39% of lawyers and 36% of non-legal professionals. Small proportions in each group made "cannot say" responses and one in ten non-legal professionals indicated the question was not applicable, suggesting they were in a role where providing such advice was not part of their responsibility.

Table 5.1: Whether advice given to clients about using FDR services changed due to the family violence reforms, as reported by lawyers and non-legal professionals, 2014
  Lawyers Non-legal Aggregated
No. % No. % No. %
Notes: Lawyers and non-legal professionals were asked: "Because of the family violence reforms, I have changed the advice I give to clients about: Using FDR services". Percentages may not total 100.0% due to rounding.
Source: Survey of Practices 2014
Yes 100 38.6 83 35.6 183.0 37.2
No 141 54.4 111 47.6 252.0 51.2
Not applicable - - 24 10.3 24.0 4.9
Cannot say 18 7.0 15 6.4 33.0 6.7
Total 259 100.0 233 100.0 492.0 100.0

These findings raise two issues. First, they indicate variations in practice within each of the professional groups, with substantial minorities in each group indicating they had changed their advice. Second, the overall similarity between lawyer and non-legal response patterns suggest that change or lack of change in their practice in this context is not influenced strongly by disciplinary orientation. Rather, as with other areas of practice examined in this report, the responses are likely to be indicative to some extent of practitioner orientation prior to the 2012 family violence reforms.

In considering the responses of lawyers, in particular, it is likely that a number of factors may influence advice-giving practice, in addition to the consequences of better screening and identification of matters involving family violence. Other elements of legislation may also be relevant, including the expanded definition of family violence leading to an increase in the number of matters that can confidently be assessed as coming within the exceptions to FLA s 60I. Conversely, however, even in these circumstances, some lawyers may consider a referral to FDR a viable option for some clients because of the greater specificity in s 60CC about the weight to be accorded protection from harm and the obligations on FDR practitioners to prioritise protection from harm in their discussions with clients. This issue may also, however, be influential in lawyers not discouraging the use of a court pathway for clients affected by family violence.

Comparisons of lawyer responses in 2008 to a similar question about whether lawyers had changed the advice they gave to clients regarding "using FDR services" indicate that the 2006 changes had a much greater influence in this regard than the 2012 family violence reforms. In 2008, 85% of lawyers said they had changed their advice, compared with 39% in 2014, as reported above (data not shown). This difference is to be expected, in light of the focus in the 2006 reforms on encouraging the use of family dispute resolution, including through the introduction of s 60I.

Further insight into the nuances of advice-giving practice in relation to the use of FDR is provided by lawyers and non-legal professionals indicating how often in the past 18 months they had explained to clients that mediation should be "considered only when levels of conflict are relatively low" (Table 5.2). There are marked disciplinary differences in the response patterns to this question. Non-legal professionals were much more likely than lawyers to indicate that they did not give such advice: 32% giving this advice rarely or never, compared with 16% of lawyers. Consistent with this, lawyers were much more likely than non-legal professionals to indicate giving such advice almost always or often.

Table 5.2: Frequency of lawyers and non-legal professionals explaining to clients that FDR should only be considered when conflict levels are low, 2008 and 2014
  Lawyers Non-legal
Survey of Practices 2014 FLS 2008 Survey of Practices 2014
No. % No. % No. %
Notes: Lawyers and non-legal professionals were asked in 2014: "Over the past 18 months, how often (if at all) have you explained to clients involved in parenting disputes that: Mediation and similar forms of family dispute resolution should generally be considered only when levels of conflict are relatively low". Lawyers were asked in 2008: "Over the past 12 months, how often (if at all) have you explained to clients involved in parenting disputes that: Mediation and similar forms of family dispute resolution should generally be considered only when levels of conflict are relatively low". Percentages may not total 100.0% due to rounding.
Sources: Survey of Practices 2014; Family Lawyers Survey 2008
Almost always 85 32.8 45 14.1 48 20.4
Often 74 28.6 79 24.8 37 15.7
Sometimes 53 20.5 94 29.5 56 23.8
Rarely/never 41 15.8 92 28.8 76 32.3
Not applicable - - - - 12 5.1
Cannot say 6 2.3 9 2.8 6 2.6
Total 259 100.0 319 100.0 235 100.0

Table 5.2 also compares lawyers' responses in 2008 and 2014. The reference time frames in the questions were slightly different in each survey. The 2008 survey referred to the preceding 12 months and the 2014 survey referred to the preceding 18 months, as that was the time frame since the 2012 family violence reforms had become operative. The response patterns in the two surveys suggest an increased tendency to provide advice along these lines in the more recent time frame. More than two times as many 2014 legal participants indicated giving this advice almost always, compared with 2008 (33% cf. 14%). A similar trend was evident in relation to the "rarely or never" response, with half as many 2014 participants nominating this compared with 2008.

5.3 Identification of matters not suitable for FDR

This section focuses on the operation of FDR. It begins by setting out findings on particular professionals' views on the extent to which the exceptions to the requirement to use FDR are understood in various parts of the system, including by clients. The analysis then shifts to a consideration of practice concerning the issuing of certificates under s 60I of the FLA.

5.3.1 Understanding of the exceptions to FLA s 60I

The level of understanding that various stakeholders bring to bear on the question of when matters may be exempt from FDR is an important element in understanding the underlying dynamics when FDR is applied in circumstances where concerns about family violence and child safety are relevant. The 2014 survey sought the views of lawyers and non-legal professionals about the extent to which the following groups understood the exceptions to s 60I: parents (before they see a lawyer), FDR practitioners, lawyers, registrars and judicial officers (lawyers only) and other family relationship service practitioners (non-legal professionals only). The aggregate findings indicate that most lawyers and non-legal professionals perceived a poor understanding of this question among parents and a sound understanding of this question among professional groups. On an aggregate basis, 76% of lawyers and non-legal professionals disagreed that parents understood the exceptions to s 60I before they saw a lawyer (data not shown). In contrast, in relation to each professional group mentioned, majorities indicated understanding of the s 60I exceptions. Although there were some variations in the extent to which the different professional groups perceived the extent of understanding among other professional groups, response patterns did not vary greatly in this regard. These data (together with the aggregate data) are presented in Appendix B.

Figures 5.2 and 5.3 show the responses of lawyers on these understandings of the exceptions to s 60I in 2014 and 2008. Overall, the levels of agreement and disagreement between the two time frames in relation to each of the relevant stakeholders are largely consistent. The area where greatest change is evident is the strength of agreement in relation to parents, with substantially fewer lawyers strongly disagreeing (48% in 2008 cf. 34% in 2014) and more disagreeing (37% in 2008 cf. 48% in 2014) that the exceptions to s 60I were well understood by parents. Interestingly, slightly larger proportions of lawyers disagreed that each of the other professional groups understood the exceptions well in 2014 compared with 2008. This appears to reflect both a slight diminution in the "cannot say" responses and a reduction in either of the two agreement responses. These shifts are, however, very small.

Figure 5.2: Agreement by lawyers that parents and family law professionals understand the exceptions to the requirement to attend family dispute resolution, 2014

Figure 5.2: Agreement by lawyers that parents and family law professionals understand the exceptions to the requirement to attend family dispute resolution, 2014. Described in accompanying text.

Notes: Lawyers were asked: "Please indicate your level of agreement with this statement in relation to the groups named in the table: The exceptions to the requirement to attend family dispute resolution are well-understood by [each group listed]: Parents (before they see a lawyer); family dispute resolution practitioners; lawyers; registrars; judicial officers". Lawyers: n = 270-278.
Source: Survey of Practices 2014

Figure 5.3: Agreement by lawyers that parents and family law professionals understand the exceptions to the requirement to attend family dispute resolution, 2008

Figure 5.3: Agreement by lawyers that parents and family law professionals understand the exceptions to the requirement to attend family dispute resolution, 2008. Described in accompanying text.

Notes: Lawyers were asked: "Please indicate your level of agreement with this statement in relation to the groups named in the table: The exceptions to the requirement to attend family dispute resolution are well-understood by [each group listed]: Parents (before they see a lawyer); family dispute resolution practitioners; lawyers; registrars; judicial officers ". Lawyers: n = 319.
Source: Family Lawyers Survey 2008

Table 5.3 sets out non-legal professionals' estimates of the proportion of parents attending their service about children's matters who misunderstand when they are required to attend family dispute resolution. Consistent with the discussion above, the findings demonstrate that this is not an uncommon occurrence, with only 5% of the sample saying that none of their clients misunderstood the requirement and 12% choosing the response "more than three-quarters" of their clients did not understand. The most common response chosen was "less than a quarter" (27%), followed by "about a half" (19%).

Table 5.3: Non-legal professionals' assessment of frequency of parents' misunderstanding when they are required to attend FDR, 2014
Parents' misunderstanding No. %
Notes: Non-legal professionals were asked: "What is the proportion of separating or separated parents who came to your service in relation to children's matters: Who have some misunderstanding about when they are required to attend family dispute resolution?"
Source: Survey of Practices 2014
None 12 5.1
Less than a quarter 64 27.4
About a quarter 29 12.4
About a half 45 19.2
About three-quarters 21 9.0
More than three-quarters 27 11.5
All 7 3.0
Not applicable 12 5.1
Cannot say 17 7.3
Total 234 100.0

5.3.2 Practice in issuing certificates

This section reports on practices in issuing certificates under FLA s 60I(8) on the basis that the matter is unsuitable for FDR because of concerns about family violence and child abuse. Figure 5.4 sets out findings on the extent to which certificates are issued in general, and in two particular circumstances: when FDR does not commence because of family violence or child abuse, and when it is discontinued because of these issues. The responses to the general question (left-hand column) indicate that issuing a certificate is not uncommon, with two-thirds of the sample estimating they issued certificates in up to about a quarter of cases. Just over a quarter (29%) of the sample indicated that they issued certificates in less than a quarter of their cases (data not shown), and 16% said they did so in about half their cases.

Figure 5.4: Non-legal professionals' assessment of frequency of issuing s 60I certificates, in general and before or after FDR commences, 2014

Figure 5.4: Non-legal professionals' assessment of frequency of issuing s 60I certificates, in general and before or after FDR commences, 2014. Described in accompanying text.

Notes: Non-legal professionals were asked the following questions: "Please estimate the proportion of families in your caseload over the past 18 months where you have issued a s 60I certificate". They were then asked: "Please estimate the proportion of these cases where the s 60I certificate was issued because: (a) a party did not attend FDR because I did not consider it would be appropriate to conduct FDR because of family violence and/or child abuse, or (b) the parties began FDR but part way through I decided it was not appropriate to continue because of family violence and/or child abuse". Percentages may not total 100.0% due to rounding. Non-legal professionals: n = 87-94.
Source: Survey of Practices 2014

Responses to the more specific question of whether certificates had been issued before FDR commenced are depicted in the middle column of Figure 5.4. The question specifically linked this question to the preceding general one, asking FDR practitioners to nominate "the proportion of these cases where the s 60I certificate was issued … because I did not consider it would be appropriate to conduct FDR because of family violence and/or child abuse". Again, this is not an uncommon reason for certificates to be issued, with 58% of practitioners indicating this was relevant in up to about a quarter of cases, and 18% indicating this for half their cases. A substantial minority (31%) indicated this was the case for less than a quarter of the matters in which certificates were issued (data not shown).

The right-hand column indicates that discontinuing FDR and issuing a certificate due to the emergence of concerns about family violence and child safety once the process has started is less common than issuing a certificate at the outset. Substantially more professionals had not discontinued FDR after it commenced (29% cf. 8% before FDR commenced), and fewer chose the options indicating greater frequency (e.g., 2% cf. 9% said "about three-quarters or more"). However, a majority (56%) of participants estimated this occurred in up to about a quarter of cases, indicating that is not a rare occurrence.

5.4 Providing FDR in complex cases

This section considers the extent to which professionals report that their services provide FDR in cases involving allegations of family violence and of child abuse and neglect (considered separately), and the extent to which any shifts in this regard are evident between 2009 and 2014. Table 5.4 demonstrates that FDR is much more likely to be provided in cases involving allegations of family violence than child abuse, but that a majority of professionals nonetheless report that FDR is provided in the latter circumstance. In relation to family violence, 83% of participants in 2014 indicated that their service provided FDR where these allegations were raised, compared with 55% in relation to allegations of child abuse and neglect. Responses in 2009 were largely consistent with those in 2014, with small increases in the proportions of professionals who indicated that their services provided FDR in both situations in 2014 compared with 2009.

Table 5.4: Provision of FDR services where family violence or child abuse and neglect allegations have been raised, non-legal professionals, 2009 and 2014
Provision of FDR services when: Survey of FRS Staff 2009 Survey of Practices 2014
No. % No. %
Notes: Non-legal professionals were asked in 2009 and 2014: "Does your service provide family dispute resolution services where: [family violence allegations have been raised/child abuse and neglect allegations] have been raised?". Percentages do not sum to 100% as not all response categories are presented and multiple responses could be chosen. a This item was answered by 93 respondents. Cannot say and not answered/illegible responses were: 0-12.9%.
Sources: Survey of FRS Staff (FRSP Services) 2009; Survey of Practices 2014.
Family violence allegations raised 279 81.3 78 83.0
Child abuse and neglect allegations raised 169 49.3 51 a 54.8
Total number of respondents 343   94  

5.5 Referrals to other services

This section discusses findings on the question of referrals. It examines the extent to which lawyers and non-legal professionals refer clients to other services, namely FRCs, legal services, family violence support services and "other services such as counselling, anger management or parent education". The first part of the discussion focuses on lawyers' and non-legal professionals' responses in 2014. The second part compares lawyer responses in 2008 and 2014.

In broad terms, the extent to which lawyers and non-legal professionals reported referring clients to other services shows subtle variations in patterns between the two groups when surveyed in 2014. The greatest area of divergence is in the extent to which lawyers reported referring clients to FRCs and non-legal professionals reported referring clients to lawyers. Non-legal professionals reported making referrals to lawyers to a considerably greater extent than lawyers reported making referrals to FRCs (Figure 5.5). The majority of non-legal professionals chose the higher frequency options (about three-quarters or more: 47%; about a half: 18%) when asked to indicate how often they referred clients to lawyers. In contrast, the most common response option for lawyers in relation to making referrals to FRCs was "up to about a quarter" (44%), though a substantial minority (30%) reported that they referred about three-quarters or more of their clients, indicating such referrals are nonetheless common. These response patterns may reflect a mutual influence in practice since, to some extent, lawyers' clients may already also be clients of FRCs, making a referral in this direction redundant.

Figure 5.5: Frequency of professionals referring family law clients to support services, lawyers and non-legal professionals, 2014

Figure 5.5: Frequency of professionals referring family law clients to support services, lawyers and non-legal professionals, 2014. Described in accompanying text.

Notes: Lawyers were asked: "Approximately what proportion of your family law clients do you refer to [each of the following services]: FRCs; family violence support services; community based or other relationship services - such as counselling, anger management or parent education". Non-legal professionals were asked: "Approximately what proportion of the families that you advise or assist do you refer to [each of the following services]: FRCs; legal services; family violence support services; community based or other relationship services - such as counselling, anger management or parent education". Lawyers were not asked if they referred their family law clients to other legal services. Percentages may not total 100.0% due to rounding. Lawyers: n = 251-254; Non-legal professionals: n = 221-230.
Source: Survey of Practices 2014

In relation to making referrals to family violence support services, the data indicate that such referrals are commonly made by both lawyers and non-legal professionals, with 58% of each group indicating this occurred for up to about a quarter of clients. Lawyers' responses suggest a slightly greater tendency to make these referrals, with a greater proportion (16%) nominating the highest percentile (about three-quarters or more), compared with 12% of non-legal professionals.

Again, patterns in relation to referrals to "other services such as counselling, anger management or parent education" are broadly similar between lawyers and non-legal professionals, although non-legal professionals reported making these referrals more often. They were less likely to nominate the lower frequency response (up to about a quarter: 36% non-legal professionals cf. 44% lawyers) and more likely to nominate the higher frequency responses.

A comparison of lawyers' referral practices in 2008 and 2014 is set out in Figure 5.6. It demonstrates that lawyers indicated an increased tendency to refer clients to FRCs and other services between 2008 and 2014. In 2014, for example, 30% of the sample indicated referring about three-quarters or more of their clients to FRCs, compared with 20% in 2008. The increase in the proportion nominating this answer in 2014 has correspondingly led to fewer responses in the lower frequency answers. For example, 13% of the sample nominated "about a half" in 2014, compared with 18% in 2008.

Figure 5.6: Frequency of lawyers referring family law clients to support services, 2008 and 2014

Figure 5.6: Frequency of lawyers referring family law clients to support services, 2008 and 2014. Described in accompanying text.

Notes: Lawyers were asked in 2008 and 2014: "Approximately what proportion of your family law clients do you refer to [each of the following services]: FRCs; community based or other relationship services - such as counselling, anger management or parent education". Percentages may not total 100.0% due to rounding. 2008: n = 319; 2014: n = 251-253.
Sources: Survey of Practices 2014; Family Lawyers Survey 2008

In relation to referrals to other services, the data suggest a marginally greater increase in this area compared with referrals to other services by lawyers. The proportion of lawyers nominating "up to about a quarter" dropped from 61% in 2008 to 44% in 2014, with corresponding increases in the proportions nominating the higher frequencies. In 2014, 27% of lawyers reported making referrals to family violence services for about three-quarters or more of their clients compared with 14% in 2008. "About a half" was nominated by 15% of the 2008 sample, compared with 19% of the 2014 sample.

5.6 Professionals' views on parents' motivations for changing parenting arrangements

The findings of the Longitudinal Study of Separated Families Wave 3 demonstrated that parenting arrangements are dynamic, with only 40% of those surveyed in Wave 3 indicating that the arrangements had stayed the same as they were in Wave 1 (Qu et al., 2014, Table 5.8). A range of factors may be linked with changes in arrangements, including issues arising from children's needs as they develop, and from changes in parental circumstances, including employment and re-partnering. Qu et al. (2014) highlighted the extent to which parents affected by two or more indicators of complexity (interparental relationships that are full of conflict or fearful, a history of family violence, safety concerns arising from ongoing contact with the other parent) are associated with recurrent use of FDR (p. 62).

This section discusses the perspectives of non-legal professionals on the reasons why parents may seek to renegotiate parenting arrangements, including the extent to which such actions may be linked to concerns about family violence and child abuse in the post-2012 family violence reform environment. The responses of non-legal professionals (Figure 5.7) suggest that these concerns are not an uncommon reason for seeking to renegotiate arrangements. This is not necessarily a by-product of the reforms, as LSSF Wave 3 findings indicate that these issues were associated with significant levels of change and renegotiation (Qu et al., 2014).17 Almost one in five non-legal professionals indicated that this motivation was relevant for about a quarter of their clients and 25% indicated it was relevant for about half or more of their clients.

Figure 5.7: Frequency reported by non-legal professionals of clients seeking to renegotiate parenting arrangements, by reason for change, 2009 and 2014

Figure 5.7: Frequency reported by non-legal professionals of clients seeking to renegotiate parenting arrangements, by reason for change, 2009 and 2014. Described in accompanying text.

Notes: Non-legal professionals were asked in 2009 and 2014: "Of the clients who seek to renegotiate parenting arrangements, what proportion of parents want to renegotiate parenting arrangements: [for each of the following reasons]: because of concerns about family violence and abuse since the family violence amendments - estimate only; because their children's needs have changed - estimate only; because of changes in parental circumstances - estimate only; for other reasons". Percentages may not total 100.0% due to rounding. 2009: n = 854, except "for other reasons": n = 603; 2014: n = 253, 254, 255 and 191 respectively.
Sources: Survey of FRS Staff (FRSP Services) 2009; Survey of Practices 2014

In relation to concerns about family violence and abuse, no pre-reform data were available. However, in relation to other renegotiation motivations (changed needs of children and changed parental circumstances), data from surveys conducted with non-legal professionals in 2009 provide insight into the extent to which professional experience in these areas is consistent over time. Taking into account the smaller number of professionals involved in the 2014 survey (perhaps leading to more fluctuation in responses), data from the two time frames in both areas suggest relatively consistent patterns. In relation to children's needs as a motivating factor in renegotiations (Figure 5.7), the most common response (27% in 2009 and 28% in 2014) estimated this was a factor for about a quarter of the parents. More professionals in 2014 provided higher estimates (e.g., half their clients: 26% in 2014; 18% in 2009).

In broad terms, response patterns in relation to changes in parental circumstances as a motivation for changes in parenting arrangements are broadly consistent between the two time frames, taking into account fluctuations that may be influenced by different sample sizes. This was a motivation estimated to be relevant for about half the client base by 27% of non-legal professionals in 2009 and 31% in 2014. The next most common proportion nominated was about a quarter, with 19% nominating this response in 2009 and 25% in 2014.

5.7 Summary

This chapter has examined some of the dynamics relevant to service use in the post-2012 family violence reform environment to address the issue of whether shifts in service use are a by-product of the reforms. Several features of the 2012 family violence reforms could potentially be associated with shifts in service use, including the new definitions of family violence and child abuse, and the clarification of the priority to be accorded to protection from harm. The evidence considered in this chapter also sheds light on the continuing evolution of some aspects of the 2006 changes to the family law system, including the extent to which understanding of some important issues, such as the exceptions to the requirement to attempt FDR prior to lodging a court application, has strengthened. This discussion is based on professionals' perspectives, and a number of the themes explored here will be further examined on the basis of the findings from the Surveys of Recently Separated Parents 2012 and 2014.

Overall, the findings presented in this chapter suggest that in terms of service use, the effects of the family violence reforms have been subtle rather than dramatic. In some areas, they suggest a consolidation of some of the directions of the 2006 family law reforms, including encouragement of the use of family support services in addition to legal services. They also confirm that clients with complex needs, including those arising from family violence and child abuse, commonly present to legal and relationship support services, including those that provide FDR. Service provision and clinical decision making in relation to such clients continue to be a challenging area of practice.

In relation to providing advice on the use of FDR, similar proportions of lawyers and non-legal professionals indicated changing their practice in this area, although changing was less common than not changing. Substantial minorities of both lawyers (39%) and non-legal professionals (36%) indicated in 2014 that they had changed the advice they gave clients on FDR. More dramatic changes had been evident among lawyers in 2008, reflecting the effects of the s 60I amendments to the FLA in 2006. Interestingly, the area where most change had occurred in the advice-giving practice of lawyers was in relation to the question of whether FDR should only be considered when levels of conflict are relatively low. The number of lawyers indicating that they provided this advice increased substantially between 2008 (14% choosing "almost always") and 2014 ("33% choosing "almost always"), and lawyers were substantially more likely to provide this advice in 2014 compared with non-legal professionals. These findings suggest practice experience in the wake of the 2006 reforms may have made lawyers more cautious in this regard, but non-legal professionals may have greater confidence in their own ability to manage conflict.

The evidence from this study on the question of the understanding among different stakeholder groups of the exceptions to s 60I indicates that most professionals believe other professionals understand these exceptions quite well. This finding has strengthened only marginally over time. In relation to parents, most professionals believe the s 60I exceptions are not well understood by most family law system clients, though there is a subtle indication that a limited amount of improvement may have occurred over time.

Regardless of levels of understanding of the exceptions of to s 60I, particularly those in relation to family violence and child abuse, it is clear that parents affected by these issues continue to present for FDR services and that FDR services are provided when these issues are present, though to a lesser extent in relation to child abuse compared to family violence. The presence of these issues does not automatically lead to the issue of a certificate, and the proportion of professionals indicating that FDR is provided in such circumstances has remained relatively stable over time. The implications of this finding from a systemic and individual perspective warrant further examination, and the findings of the SRSP 2012 and 2014 will be an important source of insight into the ramifications for families, augmenting the evidence already available from LSSF W3 (Qu et al., 2014).

Findings on referrals establish that both lawyers and non-legal professionals refer their clients to family violence support services on a regular basis and that practices in this regard are relatively consistent between the two groups, though lawyers were slightly more likely to indicate making such referrals in a higher number of cases (16% nominated "three-quarters or more" compared to 12% of non-legal professionals). Non-legal professionals also reported referring clients to lawyers to a substantial degree (47% nominating "about three-quarters or more"). Referrals by lawyers to FRCs and relationship support services have also increased.

There is some indication that the 2012 family violence reforms have given some parents affected by family violence and safety concerns increased scope to seek advice from non-legal professionals on changing parenting arrangements, but this motivation is perceived as being less common than seeking change for reasons related to children's needs and parents' circumstances.

17 LSSF is based on a sample of parents who separated in 2008. Data collection for the third wave took place in September and November 2012.