Executive summary

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In 2006, the Australian Government introduced a series of changes to the family law system. These included changes to the Family Law Act 1975 (Cth) through the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) (SPR Act 2006) and changes to the family relationship services system. In broad terms, the aim of the reforms was to bring about "generational change in family law" and a "cultural shift" in the management of parental separation, "away from litigation and towards co-operative parenting". The changes were partly shaped by the recognition that the focus must always be on the best interests of the child and that many of the disputes over children following separation are driven primarily by relationship problems rather than legal ones and are often better suited to community-based interventions.

The policy objectives of the 2006 changes to the family system were to:

1. help to build strong healthy relationships and prevent separation;
2. encourage greater involvement by both parents in their children's lives after separation, and also protect children from violence and abuse;
3. help separated parents agree on what is best for their children (rather than litigating), through the provision of useful information and advice, and effective dispute resolution services; and
4. establish a highly visible entry point that operates as a doorway to other services and helps families to access these other services.

The changes to the service delivery system included the establishment of 65 Family Relationship Centres (FRCs) throughout Australia, the Family Relationship Advice Line (FRAL) and Family Relationships Online (FRO), funding for new relationship services, and additional funding for existing relationship services. The legislative changes comprised four main elements that:

• require parents to attend family dispute resolution (FDR) before filing a court application, except in certain circumstances, including where there are concerns about family violence and child abuse;
• place increased emphasis on the need for both parents to be involved in their children's lives after separation through a range of provisions, including the introduction of a presumption in favour of equal shared parental responsibility;
• place greater emphasis on the need to protect children from exposure to family violence and child abuse; and
• introduce legislative support for less adversarial court processes in children's matters.

In 2006, the Australian Institute of Family Studies (AIFS) was commissioned by the Australian Government Attorney-General's Department and Department of Families, Housing, Community Services and Indigenous Affairs to undertake an evaluation of the impact of the 2006 changes. The evaluation has involved the collection of data from some 28,000 people involved or potentially involved in the family law system - including parents, grandparents, family relationship service staff, clients of family relationship services, lawyers, court professionals and judicial officers - and the analysis of administrative data and court files. This evaluation provides a more extensive evidence base about the use and operation of the family law system in Australia (and arguably internationally) than has previously been available.

Findings

Post-separation relationships

• Among parents who separated after the 2006 changes, 62% reported having a friendly and cooperative relationship with the other parent, 19% a distant relationship, 14% a highly conflictual relationship and 5% a fearful relationship (7% of mothers and 3% of fathers).
• Around two-thirds of these separated mothers and around half of the fathers reported that their child's other parent had emotionally abused them prior to or during separation. One in four mothers and around one in six fathers reported that the other parent had hurt them physically prior to separation. Around one in five parents reported safety concerns associated with ongoing contact with the child's other parent. Safety concerns were strongly associated with a history of physical hurt or emotional abuse.
• Around half of mothers and around one-third of fathers indicated that mental health problems, the misuse of alcohol or drugs, or gambling or other addictions were apparent before the separation.

Use and effectiveness of new and expanded services

• Overall, pre- and post-separation service use since the 2006 changes increased significantly.
• About half of the parents in non-separated families who had serious relationship problems used services to assist in resolving these problems. There was less use of services to support relationships by couples who had not faced serious problems (about 10%).
• About two-thirds of parents who separated after the 2006 changes had contacted or used family relationship services during or after separation.
• Separated parents who used services were more likely than separated parents who had not used services to have issues that impacted negatively on their relationships - especially family violence, mental health problems or drug and alcohol misuse issues.
• Family dispute resolution services frequently deal with high-conflict complex cases.
• Overall, relationship services clients provided favourable assessments of the services they attended. Pre-separation services were regarded very highly by clients. At the post-separation level, over 70% of FRC and FDR clients said that the service treated everyone fairly (i.e., practitioners did not take sides) and over half said that the services provided them with the help they needed. This can be considered to be a quite high level of satisfaction, given that these cases often involve strong emotions and high levels of conflict, and usually lack easy solutions.
• The considerable increase in the use of relationship-oriented services, both pre- and post-separation, suggests a cultural shift in the way in which problems that affect family relationships are being dealt with.

Coordination of the family law system and family law pathways

• Progress has been made in moving towards a more coordinated series of services across the family relationship and legal sectors, and FRCs have generally become highly visible gateways to the family law system. Nevertheless, pathways through the system need to be more clearly defined and widely understood. In particular, there is evidence that some families with family violence and/or child abuse issues are on a roundabout between family relationship services, lawyers, courts and state-based child protection and family violence systems.

Family dispute resolution

• The use of FDR post-reform is broadly meeting the objectives of requiring parents to attempt to resolve their disputes with the help of non-court dispute resolution processes and services. About two-fifths of parents who used FDR reached agreement and did not proceed to court. Most who did not reach agreement at FDR had sorted out parenting matters a year or so after separation mainly via discussions between themselves.
• There is evidence of fewer post-separation disputes being responded to primarily via the use of legal services and more disputes being responded to primarily via the use of family relationship services. This is further evidence of a cultural shift whereby a greater proportion of post-separation disputes over children are being seen and responded to primarily in relationship terms.
• There is also evidence that encouraging the use of non-legal solutions, and particularly the expectation that most parents will attempt FDR, has meant that FDR is occurring in some cases where there are significant concerns about violence and safety. This suggests the need for continued careful monitoring of screening and intake processes. These cases require sophisticated triage. Recourse to a court-based pathway is not necessarily the option that such families decide to take, for a range of reasons. Decisions about how disputes are resolved in such cases are complex; it cannot be automatically assumed that FDR is inappropriate.
• Protocols between lawyers and FDR practitioners that encourage cooperation are likely to increase the chances of making the best judgments about proceeding or not proceeding with FDR.

Shared parental responsibility and shared care time

• The philosophy of shared parental responsibility was overwhelmingly supported by parents, legal system professionals and family relationship service professionals. However, many parents did not understand the distinction between shared parental responsibility and shared care time.
• A common misunderstanding is that equal shared parental responsibility allows for "equal" shared care time, and that if there is shared parental responsibility then a court will order shared care time. This misunderstanding is due, at least in part, to the way in which the link between equal shared parental responsibility and time is expressed in the legislation.
• This confusion has resulted in disillusionment among some fathers who find that the law does not provide for 50-50 "custody". This sometimes can make it challenging to achieve child-focused arrangements in cases in which an equal or shared care-time arrangement is not practical or not appropriate. Lawyers were more concerned about this issue than family relationship service professionals.
• More positively, the changes have also encouraged more creativity in making arrangements that involve fathers in children's everyday routines, as well as special activities in arrangements made either by negotiation or litigation.
• Although only a minority of children had shared care time, the proportion of children with these arrangements has increased. This is part of a longer term trend in Australia and internationally.
• The majority of parents with shared care-time arrangements thought that the arrangements were working well both for parents and the child. While, on average, parents with shared care time had better quality inter-parental relationships, violence and safety concerns were present for some.
• Generally, shared care time did not appear to have a negative impact on the wellbeing of children except where mothers had safety concerns. Irrespective of care-time arrangements, safety concerns had a negative impact on children's wellbeing. However, the negative impact of mothers' safety concerns on children's wellbeing was exacerbated where they experienced shared care-time arrangements.

Family violence, child abuse, mental health issues and substance misuse

• For a substantial proportion of separated parents, issues relating to violence, safety concerns, mental health, and alcohol and drugs are relevant.
• The evaluation provides evidence that the family law system has some way to go in being able to respond effectively to these issues. However, there is also evidence that the 2006 changes have improved the way in which the system is identifying and responding to families where there are concerns about family violence, child abuse and dysfunctional behaviours. In particular, systematic attempts to screen such families in the family relationship services sector and in some parts of the legal sector appear to have improved identification of such issues.
• The link between mothers' safety concerns and poorer child wellbeing outcomes, especially where there was a shared care-time arrangement, underlines the need for these sectors to have a more explicit focus on identifying the minority of highly vulnerable cases in which concerns about child or parental safety must take priority in decisions about care-time arrangements.

The court system and the SPR Act 2006

• Total court filings in children's matters have declined, and a pre-reform trend for an increasing proportion of filings being made in the Federal Magistrates Court (FMC) and a corresponding decrease in filings in the Family Court of Australia (FCoA) has continued since the 2006 changes.
• Legal system professionals had concerns arising from the parallel operation of the FMC and FCoA, including the application of inconsistent legal and procedural approaches and concerns about whether cases are being heard in the most appropriate forum.
• The FCoA, the FMC and the Family Court of Western Australia (FCoWA) have each adopted a different approach to the implementation of Division 12A of Part VII of the Family Law Act 1975. The FMC processes have changed little (although this court is perceived to have an active case management approach, pre-dating the reforms) and the FCoA and FCoWA have implemented models with some similarities, including limits on the filing of affidavits and roles for family consultants that are based on pre-trial family assessments and involvement throughout the proceedings where necessary.
• While family consultants and most judges believed that the FCoA's model is an improvement, particularly in the area of child focus, lawyers' views were divided, with many expressing hesitancy in endorsing the changes. Concerns include a lack of resources in the FCoA, leading to delays, more protracted and drawn-out processes, and inconsistencies in judicial approaches to case management.
• The new substantive parenting provisions introduced into Division 12A of Part VII by the SPR Act 2006 were seen by lawyers and judicial officers to be complex and cumbersome to apply in advice-giving and decision-making practice. Because of the complexity of key provisions, and the number of provisions that have to be considered or explained, judgment-writing and advice-giving have become more difficult and protracted. There was concern that legislation that should be comprehensible to its users - parents - has become more difficult to understand, even for professionals. There was also concern that the complexity of the new provisions, together with the presumption of equal shared parental responsibility, have to some extent diverted attention from the primacy of the best interests of the child, particularly in negotiations over parenting arrangements.

Conclusion

The evaluation evidence is that the 2006 reforms to the family law system have had a positive impact in some areas and have had a less positive impact in others. Overall, there is more use of relationship services, a decline in filings in the courts in children's cases, and some evidence of a shift away from an automatic recourse to legal solutions in response to post-separation relationship difficulties.

Many separated families are affected by family violence, safety concerns, mental health problems and issues linked to the misuse of addictive substances. These families are the predominant users of post-separation services and the legal sector. Resolution of post-separation issues for such families presents a challenge for the family law system. A key challenge faced by the system is determining for which vulnerable families FDR may be helpful and for which it is not appropriate.

Effective responses to families where complex issues exist entail ensuring they have access to appropriate services to not only resolve their parenting issues but also to deal with the wider issues that affect them. Such responses involve identifying the relevant issues and assisting family members to use the services, advice, and dispute resolution and decision-making processes that best fit their circumstances.

Effective responses should ensure that the parenting arrangements that are developed in families with complex issues are appropriate to children's needs and do not put their short- or long-term wellbeing at risk. The evidence of poorer wellbeing for children where mothers have safety concerns - across the range of parenting arrangements, but particularly acutely in shared care-time arrangements - highlights the importance of identifying families where safety concerns are pertinent and assisting them to make arrangements that promote the wellbeing of their children.

This evaluation has highlighted the complex and varied issues faced by separating parents and their children and the importance of having a range of services that can effectively respond. This requires a family law system that operates in a coordinated, timely and child-focused manner. Ultimately, while there are many perspectives within the family law system and, many conflicting needs, it is important to maintain the primacy of focusing on the best interests of children and protecting all family members from harm.

1. Introduction, background and methodology

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In 2006, the Australian Government introduced a series of changes to the family law system. These included the implementation of changes to the Family Law Act 1975 (Cth) (FLA 1975) through the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) (SPR Act 2006)¹ and increased funding for new and expanded family relationships services, including the establishment of 65 Family Relationship Centres (FRCs) and a national advice line. The reforms aimed to "represent generational change in family law" and to bring about "a cultural shift" in the management of parental separation, "away from litigation and towards co-operative parenting".²

The policy objectives of the 2006 reforms were to:

1. help to build strong healthy relationships and prevent separation;
2. encourage greater involvement by both parents in their children's lives after separation, and also protect children from violence and abuse;
3. help separated parents agree on what is best for their children (rather than litigating), through the provision by governments and other organisations of useful information and advice, and effective dispute resolution services; and
4. establish a highly visible entry point that operates as a doorway to other services and helps families to access these other services.³

In 2006, the Attorney-General's Department (AGD) and the Department of Families, Housing, Community Services and Indigenous Affairs (FaHCSIA)⁴ commissioned the Australian Institute of Family Studies (AIFS) to evaluate the impact of the changes. The purpose of the evaluation was to assess the extent to which, by 2009, the reform package has been effective in achieving its policy objectives, where evidence was available to do this. The information collected in the course of the evaluation and associated research will also provide a baseline against which further changes can be compared.

This report presents the findings of the Institute's evaluation of the impact of these changes some two to three years after the commencement of the "roll-out" of the reforms.

This chapter provides a brief overview of the family law system in Australia and the development of the 2006 family law reforms, a detailed description of the reforms and a discussion of the evaluation methodology adopted.

1.1 Background to the 2006 family law reforms

1.1.1 The Every Picture Tells a Story report

The impetus for the 2006 reforms came from the recommendations of an inquiry by the House of Representatives Standing Committee on Family and Community Affairs (2003; the Every Picture Tells a Story report).

An earlier report by the Family Law Pathways Advisory Group (2001; Out of the Maze) made a number of recommendations for changes to the way in which relationship breakdown was dealt with in Australia. The Australian Government's response (Family Law Pathways Taskforce, 2003) led to the then Attorney-General and the then Minister for Children and Youth Affairs to make a reference in June 2003 to the Standing Committee on Family and Community Affairs, requiring it to consider three questions in relation to family law matters (House of Representatives Standing Committee on Family and Community Affairs, 2003). These were:

(a) given that the best interests of the child are the paramount consideration:

(i) what other factors should be taken into account in deciding the respective time each parent should spend with their children post separation, in particular whether there should be a presumption that children will spend equal time with each parent and, if so, in what circumstances such a presumption could be rebutted; 
(ii) in what circumstances a court should order that children of separated parents have contact with other persons, including their grandparents; and

(b) whether the existing child support formula works fairly for both parents in relation to their care of, and contact with, their children. (p. xvii)

The Standing Committee (2003) undertook a range of public hearings and received 1,716 submissions. In Every Picture Tells a Story, it made 29 recommendations. These included recommendations for legislative reforms, systemic change, a re-evaluation of the child support system and the implementation of measures to improve public understanding of the system and provide support for positive parenting and family relationships. The most relevant aspects of the recommendations for this report are summarised in the following sections, together with an explanation of whether or not they were implemented.

Recommendations for legislative change

The committee did not recommend in favour of a rebuttable presumption of equal time with each parent. Rather, it suggested a range of changes to Part VII of the FLA 1975, central among them being the introduction of two presumptions. The first was a presumption in favour of equal shared parental responsibility (Rec. 1). The second was a presumption against shared parental responsibility in circumstances where there was entrenched conflict, family violence, substance misuse or established child abuse, including sexual abuse (Rec. 2). These recommendations reflected the committee's finding that "violence and abuse issues are of serious concern" (¶ 2.22).

As described in Section 1.2.5, the committee's recommendation in relation to the equal shared parental responsibility presumption was implemented (SPR Act 2006 s61DA), with the issues of family violence and child abuse being dealt with by the creation of provisions outlining circumstances in which the presumption may be not applied (s61DA(2)) or rebutted (s61DA(4)), together with other provisions in relation to family violence and child abuse.⁵

Further changes reflecting the recommendations of the committee include the recognition in an Objects⁶ clause of the need to ensure that parents are given an opportunity for "meaningful involvement in their children's lives" (SPR Act 2006 s60B(1)(a)), the inclusion of an explicit obligation to consult on major long-term issues where there is an order for shared parental responsibility (Rec. 3, SPR Act 2006 s65DAC), and changes to the language of "contact" and "residence" (Rec. 4). While the committee favoured the adoption of terminology such as "parenting time", the terminology implemented is based on the "person with whom a child is to live" (SPR Act 2006 s64B(2)(a)) and "the time a child is to spend with another person" (e.g., SPR Act 2006 s64B(2)(b)).

Recommendations for systemic change

The committee's recommendations in relation to systemic change reflected a number of concerns. Key among them were the need for a system with clearer entry points and pathways so that separated families could more easily access services appropriate for their needs (e.g., Recs 10, 11) and the need for a mechanism whereby allegations of family violence and child abuse could be investigated in a timely manner by suitably qualified professionals (Rec. 16).

A central plank in its vision for a reformulated family law system was the creation of a Families Tribunal (Rec. 12). The role for this non-adversarial, multidisciplinary body was envisaged to be twofold. First, it would have a role in determining parenting disputes (Rec. 12), with only those involving entrenched conflict, family violence, child abuse and substance misuse to be decided by the courts. Second, it would have an investigatory role for allegations of family violence and child abuse (Rec. 16). Under the committee's proposal, participation of legal advocates and experts in decision-making proceedings in this tribunal would be at the sole discretion of the tribunal (Rec. 12), and its decisions would be reviewable by courts only on the grounds of natural justice or ultra vires (beyond power) (Rec. 17).

The Families Tribunal proposal was not implemented. Beyond the already existing services and protocols, the 2006 reform package made no provisions for the investigation of allegations of family violence and child abuse in the federal family law context. Nor did the reform package change the jurisdiction of the courts beyond establishing the legal framework for family dispute resolution (FDR) with exceptions.⁷ According to the Australian Government's (2005) response to the Every Picture Tells a Story report, the Families Tribunal recommendation was not implemented because "it consider[ed] the committee's objectives [could] be better met through the new network of Family Relationship Services and through changes to court processes" (p. 12).

The reform package did, however, establish and provide additional or ongoing support for a number of family relationship and dispute resolution services, described in more detail in Section 1.2. These included the establishment of the FRCs and a national advice line.

In addition, the report recommended a simplification of the structure of courts exercising FLA jurisdiction to create one "federal court with family law jurisdiction with an internal structure of magistrates and judges" (Rec. 18). This was not implemented.⁸

Recommendations concerning child support

In relation to child support, the committee recommended that a re-evaluation of the Child Support Scheme be undertaken by a ministerial taskforce. Largely on the basis of the resulting Ministerial Taskforce on Child Support (2005) report, In the Best Interests of Children: Reforming the Child Support Scheme, the Australian Government introduced a new Child Support Scheme, which entailed a new formula for the assessment of child support payments.

The changes to the Child Support Scheme aim to better balance the interests of both parents and be more focused on the needs and costs of children. Compared with the formula used in the initial scheme, the new formula takes greater account of the costs of children, each parent's income and the time they spend caring for children. The recommendations of the taskforce were implemented in three stages, with the final changes coming into full effect in July 2008.

1.2 The family law system after 1 July 2006

This section describes the key changes made to the family law system as a result of the 2006 reforms.⁹ From 1 July 2006, the family law system comprised a range of government-funded and private organisations delivering family law services - including relationship assistance and advice, mediation or family dispute resolution (including that offered by legally qualified FDR practitioners), legal advice and court-based services - as well as the courts themselves and the supporting legislation. There was also an education campaign to inform people about the changes and how they might be affected by them.

1.2.1 Legislative and service delivery elements of the reforms

The legislative reforms comprised four main elements that:

• require parents to attend family dispute resolution before filing a court application, except in certain circumstances, including where there are concerns about family violence and child abuse (SPR Act 2006 s60I);
• place increased emphasis on the need for both parents to be involved in their children's lives after separation through a range of provisions, including the introduction of a presumption in favour of equal shared parental responsibility (SPR Act 2006 s61DA, see also s60B(1)(a), s60CC(2)(a));
• place greater emphasis on the need to protect children from exposure to family violence and child abuse (SPR Act 2006 s60B(1)(b), s60CC(2)(b)); and
• introduce legislative support for less adversarial court processes in children's matters (SPR Act 2006 Division 12A of Part VII).

The amendments to the SPR Act 2006 were accompanied by changes to the service delivery system. In addition to the FRCs, new services included Family Relationships Online (FRO) and the Family Relationships Advice Line (FRAL), a national telephone service.

1.2.2 The family relationships sector

The 2006 reforms were partly shaped by the recognition that many of the disputes over children following separation and divorce have their origins in, and are maintained by, family relationship difficulties, especially ongoing relationship issues between former partners. Many of the difficulties were recognised as being essentially relationship problems rather than legal ones. As such, they were seen to be better suited to community-based interventions that address disputes at this level.

The main systemic change implemented as a result of the 2006 reform process was the establishment of 65 FRCs throughout Australia and a national advice line. The first FRCs commenced operation from 1 July 2006 and, with one exception, the full complement was operational by July 2008. These centres aim to provide assistance for families at all relationship stages. They are staffed by independent professionals who, in a welcoming, safe and confidential environment, offer impartial referral, advice and information aimed at strengthening family relationships. They also act as a key service for the provision of FDR. A range of other services have been introduced or expanded as part of the Family Relationship Services Program (FRSP) and the following have been included in the evaluation:

• The Family Relationship Advice Line (FRAL) is a national telephone service established in July 2006 to assist families affected by relationship or separation issues. It provides information on family relationship issues and advice on parenting arrangements after separation. It also comprises a legal advice component and a telephone dispute resolution component.
• The Telephone Dispute Resolution Service (TDRS) was established in July 2007 and is a component of the Family Relationship Advice Line. It offers dispute resolution options to family members for whom face-to-face meetings are not appropriate or possible due to issues such as distance.
• Family Relationships Online (FRO) provides information about family relationships and separation and the range of services that can assist them to manage relationship issues, including services that help parents develop appropriate post-separation arrangements for children.
• The range of family dispute resolution (FDR) and regional family dispute resolution (RFDR) services was increased. These services are staffed by independent practitioners who assist members of families, including separated families, to manage or resolve some or all of their disputes with each other.
• The number of Children's Contact Services (CCS) has nearly doubled across Australia. Children's Contact Services assist children of separated parents to establish and maintain a relationship with their other parent or with family members. The services aim to provide a safe, reliable and neutral place to assist parents with the changeover of children. They also provide supervised visits to assist separated parents to manage contact arrangements, especially where there are concerns about safety.
• The Parenting Orders Program (POP) was expanded and works to assist separating families who are in high conflict over parenting arrangements. It uses a variety of child-focused and child-inclusive interventions, working intensively with all members of the family, where possible, to assist parents or carers to understand the effects of their conflict on the children. Family members, including children, receive a range of services as part of this program, such as counselling, FDR and group education programs.
• Family relationship counselling services have also been bolstered under the reforms. These services provide a broad range of assistance to family members, including helping people with relationship difficulties to better manage the personal or interpersonal issues relating to children and family during marriage, separation and divorce. The family counselling brief includes assistance in managing feelings of hurt, problems between partners or other persons in the family, new living arrangements, issues relating to the care of children and financial adjustments.
• Mensline Australia provides 24-hour counselling, information and referral services for men (and women who are concerned about men they know) with family and relationship concerns. The service is provided over the telephone and through electronic and other media. Under the 2006 changes, Mensline received increased funding to assist men who are contemplating separation or who have separated. Many of these men in turn have concerns about post-separation parenting arrangements.
• Men and Family Relationships Services (MFRS) have been funded to provide a broad range of assistance to men and their families. These services - which aim to help men to develop and maintain strong family relationships, or deal with conflict or separation - include family relationship counselling, relationship education and skills training for men, community development and community education activities, and information and referral. All family members, including partners, ex-partners, children, step-children, brothers, sisters, aunts, uncles, cousins and grandparents can use these services.
• Specialised Family Violence Services (SFVS) were given additional funding to use a whole-of-family approach to support those who have experienced or witnessed family violence, and to help those who use violent behaviour to change. These services consider the individual needs of each family member and provide assistance by referring clients to complementary services such as counselling, behaviour change groups and information sources.
• Family Relationship Education and Skills Training (EDST) has been designed to assist couples and families, including those with children, to develop skills to foster positive, stable relationships with their partner or family. Service providers run groups or courses for a broad audience or tailor programs for certain individuals, such as retirees or step-families. These services have an additional emphasis on access to home education resources, such as the Keys to Living Together series, as well as assisting couples to address relationship issues before serious problems develop.

1.2.3 The Child Support Agency

The Child Support Agency (CSA) is part of the Australian Government Department of Human Services and its role is to register child support cases, assess the level of child support payable based on the child support formula and collect child support payments. The CSA and FaHCSIA have been responsible for implementing the changes to the Child Support Scheme.

In June 2008, the CSA had almost 1.5 million customers (i.e., paying and receiving parents) and was transferring child support payments for over 1.1 million children. Separated parents can have one of three different types of support arrangements. The first is termed "self-administration", which involves a "private arrangement" between parents that covers both the amount of child support payment and its transfer. "Private collect" involves cases that are both registered with and assessed by the CSA; however, parents' payment transfers are made without the involvement of the CSA. "CSA collect" involves the CSA both assessing liability and collecting and transferring child support payments (CSA, 2009, pp. 1, 12).

1.2.4 The legal sector

Court structure

There are three main courts exercising FLA jurisdiction: the Family Court of Australia (FCoA), the Federal Magistrates Court (FMC) and the Family Court of Western Australia (FCoWA).¹⁰

The FCoA was established in 1976 as a specialist family law court. It hears financial and parenting disputes at first instance, as well as determining appeals from its own first-instance decisions, those of the FMC and those of the FCoWA.¹¹

The FMC began operation in 2000. Although the bulk of its work involves family law matters (Des Semple & Associates & AGD, 2008, ¶ 17), it also has jurisdiction in a range of federal law areas, including bankruptcy, migration and industrial relations. While it was originally intended that the FMC should hear less complex family law matters than the FCoA, some of the key formal distinctions between the jurisdictions of the two courts were altered over time so that by 2006 there was close to concurrent family law jurisdiction (Des Semple & Associates & AGD, 2008, ¶ 19-20). According to the Semple report, about 79% of family law applications are lodged in the FMC (¶ 18), apart from divorces and consent orders. The FMC handles most divorces,¹² while the FCoA deals with most applications that are initiated as consent orders, with these matters being dealt with by registrars.¹³

Western Australia has its own Family Court, which is invested with federal family law jurisdiction under s41 of the FLA. Accordingly, family law jurisdiction in WA is exercised mainly by the FCoWA, which has magistrates and judges hearing matters. The content of the substantive law that is applied in Western Australia to post-separation parenting arrangements - the FLA in relation to the children of married and formerly married couples and the Family Court Act 1997 (WA) in relation to ex-nuptial children¹⁴ - is no different to that which applies in the rest of Australia.¹⁵

Legal services

The provision of legal services in the family law area is undertaken by a wide range of legal practitioners in private and publicly funded practice. Family lawyers in private practice operate either as solicitors (who provide advice and may engage in negotiation and litigation on behalf of the client) and barristers (who also provide advice and negotiation support, but specialise in court-based advocacy services).¹⁶

Other important sources of family law services are those provided by publicly funded legal aid commissions and community legal centres (CLCs). They receive state and federal funding to provide services in a range of areas, including family law. The programs operated by these commissions vary, but they typically encompass free advice-giving services over the telephone or face-to-face clinics, duty lawyer services based in courts, legally assisted mediation services and casework services where a matter is deemed suitable under legal aid guidelines. Assessment of suitability takes into account both the financial circumstances of the applicant and the nature of the matter for which legal assistance is sought. In some instances, casework services are provided by in-house legal aid commission lawyers and in other instances legal aid funds private practitioners to do the work.

In most cases (apart from situations in which parents are ordered to meet the costs by the court), legal aid funds the services of independent children's lawyers (ICLs), who have specialist accreditation auspiced by legal aid.¹⁷ Some ICL practitioners are in-house, while others have ICL accreditation but are based in private practice.

Community legal centres receive government funding to provide a range of free legal services. These centres are located in each state and territory and are based in capital cities and regional areas. Some operate specialist services - for example in the area of tenancy law - while others operate on a more general basis. Specialist CLCs that provide advice exclusively to women operate in all states. These are funded in part to provide a service to women who may be eligible to receive advice and other services from legal aid commissions but are precluded from doing so. This occurs in instances where an ex-partner has obtained legal aid assistance (even if just obtaining telephone advice); ethical rules prevent legal services from being involved with both parties in a dispute (i.e., when they have a conflict of interest), which means the other party may not use the service, although both parties may still apply for a grant of legal aid.

CLC services may also provide free telephone advice, free legal advice in face-to-face clinics, duty lawyer services in courts, and casework services where clients meet criteria under the financial guidelines and those applied by the centre.

1.2.5 The legislative framework

In broad terms, the SPR Act 2006 made changes in three key areas. First, it laid the legislative foundation for FDR with exceptions (SPR Act 2006 s60I). Second, it changed the substantive framework governing parenting arrangements in Part VII of the FLA. Third, it introduced in Division 12A of Part VII a series of principles, together with duties and powers for judicial officers, for conducting child-related proceedings. The following sections provide an overview of the key elements of the changes in each of these areas.

Family dispute resolution with exceptions

The SPR Act 2006 enshrined in statute the requirement for most separated parents in dispute over parenting arrangements to attend FDR. Previously, requirements for parties to attempt to resolve most disputes outside of court were imposed by the Family Court Rules.¹⁸ Under s60I of the SPR Act 2006, parties are required to attend FDR to resolve disagreements over parenting arrangements prior to lodging an application with a court. Exceptions to this requirement include:

• applications for orders that are to made with the consent of the parties (s60I(9)(a)(i));
• applications for orders in proceedings in which a certificate issued by an FDR practitioner has already been filed (r12CAB of the Family Law Regulations 1984 (Cth)); and
• circumstances in which there are reasonable grounds to believe that:
  • there has been child abuse by one of the parties to the proceedings (s60I(9)(b)(i));
  • there would be a risk of abuse to the child if there was a delay in an application being made to the court (s60I(9)(b)(ii));
  • there has been family violence by one of the parties to the proceedings (s60I(9)(b)(iii));
  • there is a risk of family violence by one of the parties to the proceedings (s60I(9)(b)(iv)); and
  • the application is made in circumstances of urgency (s60I(9)(d)).

In these circumstances, the parties may lodge an application in court. However, judicial officers also retain the discretion to refer such parties to FDR (s60I(10)). Further, there is an obligation on courts to ensure such parties have obtained information about how they may be assisted by FDR, even where any of the above mentioned issues are relevant (s60J).

If attempts to reach an agreement in FDR are unsuccessful or a matter is judged at the outset not to be suitable for mediation (see s60I(8)), then an FDR practitioner may issue a certificate to their clients that will then enable them to access the court system. There are five grounds for issuing such certificates:

• one party attended FDR but the other party did not (s60I(8)(a));
• a matter was considered inappropriate for FDR by the practitioner (s60I(8)(aa));
• FDR was attended by both parties and a genuine effort was made to resolve the dispute (s60I(8)(b));
• the parties attended FDR but one party or both parties did not make a genuine effort to resolve the dispute (s60I(8)(c)); and
• the parties began FDR but the FDR practitioner became aware it would be inappropriate to continue FDR (s60I(8)(d)). This ground was added in 2009 and was inserted by Item 1 of Schedule 4 to the Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 (Cth).

The requirement to attend FDR was phased in over a two-year period. From 1 July 2007, new applicants into the court system were required to attend FDR unless they satisfied one of the exceptions, including establishment of circumstances of urgency. This requirement applied from 1 July 2008 to all litigants, even if they had previous court orders.

Parenting arrangements

The SPR Act 2006 changed the substantive law applicable to the resolution of parenting disputes. Two aspects of these changes are particularly significant. First, there is strengthened legislative support for shared parenting after separation with the introduction of a presumption in favour of equal shared parental responsibility (s61DAA). Second, greater emphasis was given to the need to protect children from harm from exposure to abuse, family violence and neglect (e.g., s60B(1)(b), s60CC(2)(b)). The provisions reflecting these aspects are described below, after a brief overview of key aspects of the legislative framework that were applicable prior to 1 July 2006.

The Family Law Reform Act 1995 (Cth)

The SPR Act 2006 reflects the second generation of shared parenting reforms enacted by Australian legislature. The first-generation reforms were implemented in 1996, through the Family Law Reform Act 1995 (Cth) (Reform Act 1995). These amendments were aimed at breaking down "ownership notions" and counteracting the popular belief that "the child is a possession of the parent who is granted custody".¹⁹ The 1995 changes had two key aspects.

First, the concept of "parental responsibility" was introduced, which was automatically vested in each parent, regardless of marital status or whether the parent had ever lived with the child (s61C). This referred to "all the duties, powers, responsibilities and authority which by law, parents have in relation to children" (s61B). Under the previous regime, parental responsibility was divided into (a) guardianship (decision-making power in relation to long-term issues), which was unrelated to whom the child lived with; and (b) day-to-day decision-making authority, which accompanied orders about whom the child lived with. Thus, the Reform Act 1995 was designed to break the nexus between living arrangements and parental responsibility and imposed an obligation on parents, regardless of marital or relationship status, to "share duties and responsibilities concerning the care, welfare and development of their children" (s60B(2)(c)).

The second key area of change was in relation to the way arrangements for children to spend time with their parents were described and made under the legislation. In keeping with the goal of breaking down notions of ownership, the Reform Act 1995 changed the terminology from "custody" to "residence" (s64B(3)), and "access" to "contact" (s64B (4)). Further, the child's "right to know and be cared for by both their parents" (s60B(2)(a)) and their "right to contact on a regular basis with both their parents and other people" significant to their care welfare and development (s60B(2)(b)) were inserted through a new Objects provisions in the Act. These changes reflected Australia's obligations as a signatory to the UN Convention on the Rights of Child (Office of the United Nations High Commissioner for Human Rights, 1990).

Notwithstanding the changes to the legal formulation of parental responsibility, residence and contact, the guiding principle under the Reform Act 1995 remained focused on the interests of the child, and the wording of the "paramountcy principle"²⁰ was changed from "welfare" to "best interests" (s65E). The factual issues relevant to determining children's best interests were set out in a statutory list (s68F), which included: the wishes of the child, the nature of the relationships in the family, the likely effects of changes in the child's circumstances, the practical difficulty and expense of a child having contact with a parent, parental capacity and parents' attitudes to the child, and the need to protect the child from harm and family violence.

The Shared Parental Responsibility Act 2006 (Cth)

The 2006 amendments to the FLA also focused on changing the legislative provisions governing parental responsibility and time arrangements, while retaining the child's best interests as the paramount consideration in parenting matters (s60CA). The intention was to "increase the visibility" of this provision (Explanatory Memorandum, ¶ 44). Further changes were introduced to ensure that greater emphasis was placed on protecting children from harm (Explanatory Memorandum, ¶ 35, 36, 48, 49).

The Objects provisions were expanded, with the addition of an Object providing for children to have the "meaningful involvement" of both parents in their lives (s60B(1)(a)) and a provision enunciating children's right to be protected from harm through exposure to abuse, violence or neglect (s60B(1)(b)). These two aims were restated as the two "primary considerations" (s60CC(2)) in the reformulated list of factual matters relevant to best interests determinations, which now has a partially hierarchical structure that includes a series of "additional considerations" (s60CC(3)), expanding what was the s68F welfare checklist in the previous framework.

In terms of parental responsibility, the new framework introduced a presumption in favour of "equal shared parental responsibility" (s61DA), with a nexus between the application of the presumption and considerations in relation to time arrangements (s65DAA). The presumption may be rebutted by evidence satisfying a court that it would not be in a child's best interests for both parents to have equal shared parental responsibility (s61DA(4)), and it is not applicable where there are reasonable grounds to believe a child's parent, or another person in the parent's household, has engaged in child abuse or family violence (s61DA(2)). Where the presumption is applied and orders for shared parental responsibility are made, the courts are obliged to consider making orders for children to spend equal or substantial and significant time with each parent (s65DAA). They are required to consider whether such arrangements are "reasonably practicable" (s65DAA(1)(b)) and in the child's best interests (s65DAA(1)(a)). The insertion of these provisions reflected the Government's intention to emphasise the importance of a child having a meaningful relationship with both parents and having both parents exercising decision-making responsibility for children (Explanatory Memorandum, ¶ 120).

Also pertinent to the strengthened emphasis on shared parenting in the post-1 July 2006 Part VII of the FLA are:

• a shift away from the notion of a "right to contact" (Reform Act 1995 s60B(2)(b)) to the concept of "meaningful involvement" (SPR Act 2006 s60B(1)(a));
• a child "spending time" (SPR Act 2006, e.g., s60B(2)(b)) with each parent rather than one parent being a "residence" parent (Reform Act 1995 s64B(3)) and the other having "contact" (Reform Act 1995 s64B(4)); and
• the explicitly stated obligation for parents to make decisions jointly (SPR Act 2006 s65DAC(2)) and to consult on major long-term issues in relation to a child (SPR Act 2006 s65DAC(3)) where a court order provides for two or more persons to share parental responsibility.

Protecting children from family violence and child abuse

As noted earlier, the need to protect children from family violence and child abuse was given increased emphasis in the new scheme through recognition in the Objects (s60B(1)(b)) and in the primary considerations of the SPR Act 2006 (s60CC(2)). Importantly, matters in which there are reasonable grounds to believe that there has been family violence and child abuse are exceptions to two key aspects of the legislation: the requirement to attend FDR prior to filing a court application (s60I(9)(b)) and the application of the equal shared parental responsibility presumption (s61DA(2)) (as noted above). However, courts still retain discretion to refer parties in such circumstances to FDR (s60I(10)) and may make orders for shared parental responsibility where the presumption is not applied or rebutted (Goode and Goode (2006) FamCA 1346).

Provisions further underpinning the increased emphasis on protection from exposure to family violence and child abuse include:

• an obligation on the court to take prompt action where documents are filed alleging child abuse or family violence in connection with an application under Part VII of the SPR Act 2006 (s60K); and
• a power for the court to make orders for state and territory agencies (i.e., child protection agencies) to provide information about notifications, assessments and reports relevant to child abuse or exposure to family violence in relation to a child to whom FLA proceedings relate (s69ZW).

Other new provisions relevant to the issue of family violence and child abuse include s117AB, which obligates a court to make a costs order where a party is found to have "knowingly made false allegations or statements" in proceedings under the FLA. While this provision does not specifically refer to family violence and abuse, its enactment was intended to address concerns that allegations of family violence may be "easily made" in family law proceedings (Explanatory Memorandums ¶ 215).

Conducting child-related proceedings

Another significant aspect of the 2006 legislative reforms was the implementation of a series of provisions designed to ensure that child-related court proceedings are conducted in a more child-focused and less adversarial way (Explanatory Memorandum, ¶ 327). These changes were based on the FCoA's Children's Cases Program, which piloted a set of case management practices designed to reduce adversarialism and increase child focus in court proceedings involving children (Harrison, 2007).

Division 12A of Part VII of the SPR Act 2006 articulates in legislation the duties and powers of the court - and the principles that guide the application of these duties and powers - to manage proceedings relating to parenting orders. Key principles include:

• the court must consider the needs of the child and the impact of proceedings upon them in determining the conduct of the proceedings (s69ZN(3));
• the court is to actively direct, control and manage the proceedings (s69ZN(4));
• the proceedings should be conducted in a way that safeguards the child against family violence, child abuse and neglect, and the parties to the proceedings against family violence (s69ZN(5));
• the proceedings are to be conducted in a way that promotes cooperative and child-focused parenting by the parties (s69ZN(6)); and
• proceedings are to be conducted without undue delay and with as little formality and legal technicality as possible (s69ZN(7)).

The duties articulated in Division 12A include:

• deciding which issues may be disposed of summarily and which require full investigation (s69ZQ(1)(a));
• deciding the order in which issues should be decided (s69ZQ(1)(b)); and
• giving directions and making orders regarding procedural steps (s69ZQ(1)(c)), subject to deciding whether a step is justified on the basis of likely benefits considered against the cost of taking it (s69ZQ(1)(d)).
• Powers set out in Division 12A include the ability, at any stage after a matter has commenced and prior to final determination, to:
• make a finding of fact (s69ZR(1)(a));
• determine a matter arising from the proceedings (s69ZR(1)(b)); and
• make an order in relation to an issue arising out of the proceedings (s69ZR(1)(c)).

1.2.6 The influence of law on negotiated and litigated outcomes

The impact of the changes to the family law system needs to be understood in the context of broader social trends. Since the establishment of the FLA in 1975, there have been significant social changes that have interacted with the family law system. As outlined in Appendix A, key changes include:

• an increased level of paid employment of women, although the employment rate of mothers remains much lower than that of fathers, and mothers are much more likely than fathers to be employed part-time;
• some decrease in the rate of paid employment of men;
• in recent decades, an increase in the amount of time that fathers spend with their children, although fathers continue to spend much less time with children than do mothers;
• an increase in the proportion of children growing up in single-parent families;
• increasing awareness of issues of violence, child abuse and other dysfunctional²¹ behaviours in families generally, and the impact these have on family law processes;
• an increased emphasis on child development and the impact that poorly handled separation processes can have on this aspect of childhood; and
• increasing awareness of the importance of fathers in their children's lives.

The discussion in Appendix A, on family law and social change, and the preceding discussion of the 2006 amendments to the FLA, raise the issue of how legislation influences outcomes reached by negotiation and litigation. The relationship between these two issues in any area of law is neither simple nor uni-directional. This is especially so in an area such as family law in the contemporary Australian environment, for several reasons. First, only a very small minority of matters ever proceed to judicial determination. Most are settled either without any engagement with legal or relationship services, or after legal advice has been obtained and perhaps legal assistance with negotiation has occurred, or after legal action has been initiated but settlement negotiations have taken place (see Chapter 4). Second, in the current system there are numerous sources of legal and non-legal advice and assistance, with FRCs being a new initiative in the family law landscape. These services and the professionals who work in them have an important role to play in forming parents' understanding of their options. Third, the norms established by the legal framework (i.e., the "best interests" criteria in relation to children) are open-ended and the application of legal principles to the facts of any particular case are influenced by the way in which judicial discretion is exercised in the small minority of cases that are decided by judges.²²

In such cases, the legislative framework and the principles established in case law have a direct influence on judicially determined outcomes, although the interpretation of the law can vary between decision-makers and courts (see Dewar & Parker, 1999; Parkinson, 2007). More complex is the question of what influence the legislative framework has on outcomes that are not litigated but are arrived at in private negotiations. The SPR Act 2006 imposes a range of obligations on judges, legal practitioners and FDR practitioners to act in ways consistent with the aims of the Act. For example, courts have an obligation to consider ordering parents to attend FDR, even when one of the exceptions applies to their situation (s60I(10)). Advisers - defined as legal practitioners, family counsellors, FDR practitioners or family consultants (s63DA(5)) - have an obligation to inform people they could consider entering into a parenting plan and making arrangements for children to spend equal or substantial and significant time with each parent (s63DA). Moreover, legal practitioners have a very clear obligation to explain to their clients the nature of the law and its applicability to their particular situation. However, practitioners' understandings of the law vary and the extent to which such advice or other principles in legislation and case law influence non-litigated parenting agreements is uncertain.

There is a body of research and theory that has engaged with this question in the past several decades, with a range of studies and articles having been published in Australia and internationally (e.g., (Batagol & Brown, in press; Byas, 2004; Dewar & Parker, 1999; Ingleby, 1992; Mnookin, 1979; Sarat & Felstiner, 1995; Trinder, 2003). These sources suggest that, apart from the law, a wide range of factors influence arrangements made by negotiation, including the nature and quality of legal advice and negotiating assistance, a desire to avoid the transaction costs - financial and emotional - that accompany litigation, and the social, cultural and economic backgrounds of the parties involved in the negotiations. A further important influence is posited to be the endowment of power, from various sources, including law, that each party brings to negotiations (Mnookin, 1979). Other studies suggest that for some parents, legal principles are irrelevant (e.g., Byas, 2004; Trinder, 2003).

An influential theory in the area of family law, emanating from the work of Mnookin and Kornhauser (1979), has posited that individuals bargain "in the shadow of the law" - that is, that the legal rules applicable to a particular dispute influence outcomes in private negotiations, along with other factors, including individuals' values. This theory suggests that in privately resolved disputes litigated outcomes establish benchmarks that inform those involved in negotiations about the reasonable parameters for settlement.

Empirical research has demonstrated that links between the law and the outcomes negotiated in its shadow are complex and less than clear. In the specific context of Australian family law and the predecessor of the SPR Act 2006 (the Reform Act 1995), Dewar and Parker (1999) suggested the aptness of the shadow metaphor was complicated by the fact that different understandings of "what the law says" were being applied in different practice contexts. On the basis of research examining the impact of the Reform Act 1995, Dewar and Parker found that "understandings and interpretations of the new provisions were fragmented between and even within the different professional interpretive communities [e.g., court counsellors, lawyers, judges, registrars]" (p. 113). Moreover, they argued that even if such a shadow existed, it was mediated by too many other factors (such as legal aid policies, court processes or personal professional styles) to have a decisive effect.

In summary, this discussion indicates that the link between legislation and human behaviour is complex, with a range of factors potentially influencing whether parties reach arrangements through discussion, negotiation or litigation. The large-scale quantitative data collections and smaller scale qualitative data collections on which this present evaluation is based provide a broader and more detailed picture of the parenting arrangements that have been made - with and without legal assistance, and in and outside of courts - than has ever been available previously.

1.3 Evaluation methodology

As outlined earlier, the purpose of this evaluation is to examine the extent to which the legislative and service sector changes brought about by the 2006 family law reforms were fulfilling the four core policy objectives of the reform package. This section provides an overview of the approach adopted. More detailed descriptions of the methodology employed for each component of the evaluation, including questionnaires and data collection instruments, are provided in Appendix C.

1.3.1 Key questions guiding the evaluation

The four policy objectives of the reforms (see page 1) encompassed a range of more specific goals, so a series of questions were developed against which the success or otherwise of the reforms might be evaluated.²³ The questions that were used to guide the evaluation are:

1. To what extent are the new and expanded relationship services meeting the needs of families?
   1. What help-seeking patterns are apparent among families seeking relationship support?
   2. How effective are the services in meeting the needs of their clients, from the perspective of staff and clients?
2. To what extent does FDR assist parents to manage disputes over parenting arrangements?
3. How are parents exercising parental responsibility, including complying with obligations of financial support?
4. What arrangements are being made for children in separated families to spend time with each parent? Is there any evidence of change in this regard?
5. What arrangements are being made for children in separated families to spend time with grandparents? Is there any evidence of change in this regard?
6. To what extent are issues relating to family violence and child abuse taken into account in making arrangements regarding parenting responsibility and care time?
7. To what extent are children's needs and interests being taken into account when these parenting arrangements are being made?
8. How are the reforms introduced by the SPR Act 2006 working in practice?
9. Have the reforms had any unintended consequences - positive or negative?

1.3.2 The evaluation design and data sources

In recognition of the wide-ranging nature of the objectives, and in order to achieve a rigorous evaluation design, the evaluation methodology entailed a multidisciplinary approach utilising a broad range of data sources generated through a variety of collection methods. Information was collected from a wide range of people and services involved in the family law system. The evaluation design was based on three main projects, each focusing on a particular aspect of the reforms. The three projects were:

• the Legislation and Courts Project (LCP), which examined the implementation of the legislative reforms;
• the Service Provision Project (SPP), which examined changes to the service delivery system; and
• the Families Project, which examined, in the main, experiences of separated families.

Through the studies in these projects, the impact of the reforms was examined from a number of angles. The evaluation was designed so that, as far as possible, there were multiple sources of information on key evaluation questions. This form of "triangulation" allows conclusions to be drawn with more confidence because, wherever possible, no single source of evidence is relied upon exclusively. Some of the studies also provide scope for pre- and post-reform comparison.

Each of the three projects was based on a variety of data sources, including a large-scale longitudinal study of 10,000 separated parents, two quantitative studies based on general samples of parents, analysis of data from pre- and post-reform court files, surveys with staff and clients of services funded under the FRSP and several qualitative studies looking at the experiences of grandparents and legal system and service sector professionals (see Figure 1.1). In addition, administrative data from family relationship services and the courts were used in the evaluation. Specifically, information was obtained from:

• parents who had separated prior to the 2006 reforms (baseline or pre-reform data) - 2,005 parents;
• parents who separated after the 2006 reforms - 10,002 parents;
• nationally representative surveys (pre-reform and post-reform) of all parents (including separated parents) - 5,000 parents in each survey;
• grandparents who had an adult child who had separated - 562 grandparents;
• clients of services funded as part of the family law system - 3,251 clients;
• relationship service providers, including managers and staff employed in different types of relationship services - 1,668 service providers;
• surveys of family lawyers (pre- and post-reform) - 367 lawyers pre-reform and 319 lawyers post-reform;
• surveys of judicial officers, registrars, lawyers and family consultants - 184 legal professionals;
• administrative program data related to government-funded family relationship services;
• administrative data from the FCoA, the FMC and the FCoWA;
• published judgments; and
• court files from the FCoA, the FMC and the FCoWA (pre- and post reform) - 739 pre-reform and 985 post-reform, a total of 1,724 court files.

Input about the impact of the reforms on parents and children was also sought from a range of groups representing parents in the family law system.²⁴ The information provided by these groups provided an important way of checking whether there were issues that were identified by the representative groups that needed to be explicitly considered in the evaluation using the survey and administrative data.

Figure 1.1 Data collected in the course of the evaluation

1.3.3 Evaluation challenges and issues

Many challenges present themselves in any evaluation of the impact of a policy initiative. Determining causality and the associated issue of identifying competing explanations for any changes are critical issues. For instance, social forces other than those set in motion by a single policy initiative may help explain outcomes. The evolving social forces relevant to the present evaluation include trends in relationships and in the responsibilities assumed by fathers and mothers, along with increasing social awareness of and concern about family violence (see Appendix A).

Furthermore, the evaluation focuses on the first three years of the operation of the reforms, a period in which some key aspects of the changes were still being implemented. Some changes are likely to evolve gradually and the pace of some may increase or decrease in response to changing social attitudes. Further, some social changes may be "generational".

This evaluation provides a comprehensive means of assessing the extent to which change is occurring in a range of important areas, including: the advice that legal practitioners give to parents; the way in which relationship service practitioners go about their role; the extent to which clients believe that services have provided appropriate assistance; the pathways that parents use in arriving at their parenting arrangements; the nature, workability, stability and safety of different parenting arrangements; the quality of the relationship between separated parents; and, most importantly, the wellbeing of children whose parents separate.

As indicated above, the evaluation itself was being conducted in an evolving operational and social context. Operational changes include the staged implementation of the following key aspects of the reforms:

• FDR with exceptions (s60I) became fully applicable to all applications relating to family law children's matters on 1 July 2008.
• Court processes were in a state of flux at 1 July 2006, with a backlog of pre-reform matters being cleared from court lists immediately prior to the periods in which some data collection (interviews and focus groups with family law system professionals) was taking place. Further, the docket system (whereby each judge is responsible for the case management of their own cases) was being implemented in the FCoA as the LCP data collection was proceeding.
• The service delivery roll-out was completed in 2008, meaning that the full complement of FRCs only became operative on 1 July 2008.²⁵

The evaluation has attempted to take account of these factors. Indeed, the two qualitative studies of managers and staff in relationship services have capitalised on this timing issue by examining the adjustments that were being implemented across the roll-out period.

The next sections provide a brief outline of each of the three evaluation projects and their respective components. Detailed information about each project and the methodologies used are available in Appendix B.

1.3.4 The Legislation and Courts Project

The LCP was designed to gather data on the impact that the legislative changes have had on: (a) advice-giving practices; (b) negotiation and bargaining among those who sought the advice and assistance of lawyers; (c) how the main new legislative provisions were applied in court decisions; and (d) how court filings were affected by the reforms. A further priority was to examine what, if any, unintended consequences may have arisen as a result of the changes. The LCP encompassed five components:

• the Qualitative Study of Legal System Professionals (QSLSP) 2008;
• the Family Lawyers Survey (FLS) 2006 and 2008;
• analysis of FCoA, FMC and FCoWA judgments, 2006-09;
• analysis of FCoA, FMC and FCoWA court files, pre- and post-1 July 2006; and
• analysis of FCoA, FMC and FCoWA administrative data, 2004-05 to 2007-08.

Qualitative Study of Legal System Professionals

The QSLSP 2008 conducted interviews and focus groups with family law system professionals in order to gather data on their experience of the reforms. A total of 184 professionals participated in interviews and/or focus groups between April and October 2008. In order to gain insights from as many angles on the legal system and court process as possible, participants were drawn from the following professional groupings: FCoA judges; federal magistrates; FCoWA judges and magistrates; FCoA registrars; family consultants operating in the FMC, FCoA and FCoWA; barristers; and solicitors from private practice, legal aid and community legal centres.²⁶ The discussions focused primarily on the impact of the changes made to Part VII of the FLA by the SPR Act 2006. The data obtained in this study provide valuable insights into how the law is being applied in advice-giving practices and litigation and what impact it has had on the bargaining dynamics in family law more generally.

The Family Lawyers Surveys

The purpose of the FLS 2006²⁷ was to provide baseline (pre-reform data) about lawyer practices and attitudes at the time of the implementation of the reforms. The FLS 2008 substantially repeated and extended the FLS 2006, thereby allowing pre- and post-reform shifts to be gauged. The FLS 2008 allowed important insights from the QSLSP 2008 to be tested in a quantitative format.

Together, the two surveys examined such issues as:

• the level of support among family lawyers for the underlying philosophical concepts in the legislation;
• systemic matters, including referral patterns and views of some aspects of the service delivery system (including FRCs and FDR);
• the operation of key aspects of the substantive provisions governing parenting arrangements in the SPR Act, including the impact of the changes on advice-giving practices;
• the level of understanding parents and system professionals have of the application of the presumption of shared parental responsibility and the operation of the exceptions;
• the adequacy with which the system handles family violence and child abuse; and
• the extent to which the child support reforms have affected negotiations over parenting arrangements.

The two surveys were conducted online, with the first taking place in mid-2006 and the second from mid-November 2008 to early February 2009. Both samples were recruited with the assistance of the Family Law Section of the Law Council of Australia. The first comprised 367 participants. The second comprised 319 participants.

FCoA, FMC and FCoWA judgments

The aim of this component was to examine how key aspects of the SPR Act 2006 were interpreted in judgments. A primary focus was tracking and analysing key full bench appeal judgments, as these represent binding interpretations of the law. The development of appellate jurisprudence is contingent on a number of practical eventualities. Primarily, individual litigants must be prepared to mount and fund an appeal. Such decisions may be influenced by a range of factors, including whether resources - both financial and personal - are available to the individual litigant, and the advice given by their legal advisers as to what their chances of success may be. Further, the way an appeal is framed and argued influences, to a significant extent, the way in which an appeal bench frames its decision. In the area of family law, first-instance judgments are heavily dependent on the way in which a court exercises its discretion in making orders reflective of factual findings and the way in which orders may be framed to meet the best-interests criteria. The grounds for interfering with a first-instance judgment on an appellate basis are comparatively narrow. For these reasons, the development of appellate jurisprudence occurs on an ad hoc basis and this is reflected in the comparatively small number of full bench judgments on significant points of law relevant to this evaluation that are reported here.

Apart from full bench appeal judgments, there were two other categories of judgments relevant to this component. First, appeals from the FMC heard by a single judge of the FCoA appeal bench were analysed to shed further light on how key aspects of the legislation are being interpreted. Second, a range of first-instance judgments from the FCoA, the FMC and the FCoWA were analysed to assess how the legislation was being applied in judicial decision-making and to illustrate the way in which key legislative provisions are being applied in practice.

FCoA, FMC and FCoWA court files

The aim of this component was to gather systematic quantitative data from court files (FCoA, FMC and FCoWA). Part 1 involved the collection of data from matters initiated and finalised after the reforms (total of 985 files), including matters finalised by consent (752 files) and judicial determination (233 files) in the FCoWA and the Melbourne, Sydney and Brisbane registries of the FMC and the FCoA. Part 2 involved the collection of data from matters initiated and finalised prior to the reforms (739 files: 188 judicial determination files and 551 consent files) in the FCoWA and the Melbourne Registry of the FCoA and the FMC.

Information collected in both Part 1 and Part 2 data collections included:

• orders that were made concerning parental responsibility and the allocation of the child's time between parents; and
• basic demographic information about the applicants, respondents and children: age, gender, occupation, region and country of birth.
• The data collection for Part 1 was more extensive in order to gain detailed insight into how the legislative framework was being applied. The additional information included:
• the nature of the orders sought by the applicant/respondent for time arrangements and parental responsibility;
• the extent to which each party's application was reflected in the orders made;
• the nature of any factual issues, including those concerning family violence and child abuse, that were raised in proceedings and the evidence that was used to support them;
• similarities and differences in the outcomes and procedural profiles of the matters handled in the three courts;
• the application of the courts' costs jurisdiction;
• whether an ICL was appointed; and
• whether a family report was done.

FCoA, FMC and FCoWA administrative data

The purpose of this component was to obtain and analyse administrative data held by courts to inform the evaluation's analysis of broader trends in the use of court services in the context of the 2006 reforms. The FCoA, the FMC and the FCoWA supplied a range of reports extracted from their CaseTrack database covering each financial year from 2004-05 to 2007-08. These reports included pre- and post-reform data concerning the following issues:

• applications for final orders (categorised by children only, property and children, and property only cases);
• application for consent orders (categorised by children only, property and children, and property only cases - data available for FCoA only);
• orders for ICLs;
• matters involving self-represented litigants (data available for FCoA and FMC only);
• applications for enforcement orders;
• lodged Notices of Child Abuse and Family Violence (Form 4); and
• number of Magellan Cases started (financial year 2007-08).²⁸

1.3.5 The Service Provision Project

This part of the evaluation provides information on the operation and effectiveness of the delivery of family relationship services, including FRAL, FRCs, and early intervention and post-separation services that were funded as part of the reform package. Information on services was obtained from service providers and clients.

The services included in the evaluation can be categorised as early intervention services (EIS) or post-separation services (PSS). The early intervention services are: Specialised Family Violence Services, Men and Family Relationships Services, family relationship counselling, Mensline and Family Relationship Education and Skills Training. The post-separation services are: FRCs, FDR, Children's Contact Services, the Parenting Orders Program, FRAL, and the Telephone Dispute Resolution Service (a component of FRAL).

The components of the Service Provision Project are: the Qualitative Study of FRSP Staff; the Online Survey of FRSP Staff; the Survey of FRSP Clients; and analyses of administrative program data (FRSP Online, FRAL, TDRS and Mensline).

Qualitative Study of FRSP Staff

This component of the SPP collected information via in-depth interviews with managers and staff of family relationship services funded under the new and expanded service delivery system. The purpose of this aspect of the evaluation was to evaluate the roll-out of the new and expanded services. It also helped to identify any other issues that needed to be explored by other components of the evaluation.

Two data collections were undertaken. The first was undertaken between August 2007 and April 2008 and the second took place from February to November 2009. These studies provide information about the extent to which changes have occurred in the operation and performance of the service sector during the roll-out period.

The Qualitative Study of FRSP Staff 2007-08 involved interviews with organisational CEOs, managers and staff (137 participants in 57 interviews) from the first 15 FRCs, 8 early intervention services, 8 post-separation services, Mensline and FRAL. The 2009 study involved interviews with managers and staff²⁹ from all of these services, with the addition of staff from a further 10 FRCs, a further 10 post-separation services and the Telephone Dispute Resolution Service.

The Qualitative Study of FRSP Staff 2007-08 collected data relating to the following issues:

• the purpose of the service, target population and the type of environment in which it operates;
• the extent to which the service has been implemented as planned and reasons for any deviation from plans;
• the extent to which the service is being used by various sub-groups in the target population;
• the extent to which cooperative links have been made with other service providers and/or programs; and
• service providers' views of the aims of the service, its operation and its overall effectiveness.

The Qualitative Study of FRSP Staff 2007-08 focused, to a considerable extent, on experiences connected with the initial roll-out of services. The Qualitative Study of FRSP Staff 2009 was more focused on assessing ongoing issues that emerged from the 2007-08 interviews. These issues included:

• family violence and child protection/child abuse and neglect;
• responses to the introduction of "shared parental responsibility";
• responses to the requirement to attend dispute resolution unless certain exceptions apply;
• appropriateness of referrals into the services;
• relationships with legal services and courts; and
• community networking.

Online Survey of FRSP Staff

The principal aim of the Online Survey of FRSP Staff was to provide information on: (a) the effectiveness and appropriateness of the new and expanded services established as part of the family law reforms; and (b) the perceptions of staff across the FRSP concerning the impact that the reforms are having on their day-to-day work with families.

The surveys were delivered predominantly online, with hard copies of the survey being made available for those for whom Internet access was problematic.

The first Online Survey of FRSP Staff focused on staff working in services that had commenced operation on 1 July 2006, or that had been in operation prior to this date. Data collection for the Online Survey of FRSP Staff 2008 took place between January and April 2008, with 532 completed questionnaires received from respondents employed in a range of service types and roles. The number of individuals invited to participate in this wave, as reported by participating organisations, was estimated to be 1,873. Based on this figure, the response rate is estimated to have been 28%.

The second Online Survey of FRSP Staff took place between April and June 2009. All staff employed in the types of FRSP services funded under the reforms were invited to take part. A total of 854 responses were received from an estimated population of 2,447.³⁰ Based on this figure, the response rate is estimated to have been 35%.

The main areas covered in both surveys were:

• background information about the service;
• professional background information about the respondent, including the job they performed;
• respondents' perceptions about the efficacy of the service, including:
  • efficacy of the assessment of client/caller needs;
  • networks/working relationships with the community;
  • networks/working relationships (including referrals) with other services, including the legal profession and the courts;
  • the ability of the service to respond to client/caller needs; and
  • how well the service screened for and responded to family violence and child abuse;
• respondents' perceptions of the impact of the family law reforms on service delivery to families, including any unintended consequences; and
• respondents' perceptions about the impacts of the reforms on the clients/callers, including children and cases involving family violence.

The survey collected a mixture of qualitative and quantitative data. A number of questions were modified between the first and second waves to reflect key developments regarding the reforms that had occurred between the waves, as well as to provide data that can be compared, whether directly or thematically, across the waves and also between the family relationships and legal sectors.

Survey of FRSP Clients

The Survey of FRSP Clients 2009 was undertaken during September and October 2009. Clients who had attended services between January 2008 and April 2009 and had agreed to be contacted by the service provider for research purposes were invited to complete the survey online or via a telephone interview.³¹

The survey sought to explore the extent to which the new and expanded services have contributed to the core policy objectives of the reforms and explored the following broad research questions:

1. Has attending the service helped clients to build strong, healthy relationships?
2. For those parents who have separated, has attending the service helped to encourage greater involvement by both parents in their children's lives?
3. Has attending the service helped separating parents agree on parenting arrangements for their children?
4. How easy or difficult was it to access the service (including referral pathways)?

Analyses of administrative program data

In addition to the perceptions of service delivery and the reforms collected from service staff and clients, program data were also collected and analysed from FRSP Online (which collects data about service delivery from all services funded under the Family Relationship Services Program), FRAL (including the TDRS) and Mensline.³² These data provide the context to the information collected from service providers and clients, allowing for the numbers of clients seeking assistance and their presenting needs to be mapped during the course of the evaluation period.³³

1.3.6 The Families Project

The Families Project comprised a number of studies of families (both cross-sectional and longitudinal):

• the General Population of Parents Survey (GPPS) 2006 and 2009;
• Family Pathways: The Longitudinal Study of Separated Families Wave 1 (LSSF W1) 2008 and Wave 2 (LSSF W2) 2009;
• Family Pathways: Looking Back Survey (LBS) 2009; and
• Family Pathways: The Grandparents in Separated Families Study (GSFS) 2009.

This series of individual studies included surveys of parents in general and of parents who have experienced separation. Other components focused on grandparents with a grandchild living in a separated family. Together, this suite of studies sought to understand how changes to the family law system and changes to the Child Support Scheme affected the lives of families, particularly separated parents and their children.

The General Population of Parents Surveys

Two nationally representative telephone surveys were undertaken, each of 5,000 randomly selected participants from the general population of parents with at least one child under the age of 18 years. The first GPPS was conducted in mid-2006 and was designed to provide baseline data against which post-reform data can be compared. A second GPPS was conducted in early 2009 using a new sample of participants. Among other issues, the surveys examined parents' views about the quality of their relationships with their partners and their children, help-seeking behaviour and grandparents' involvement with their children.

Family Pathways: The Longitudinal Study of Separated Families

The Longitudinal Study of Separated Families is a national study of some 10,000 parents (with at least one child under 18 years old) who separated after the introduction of the reforms in July 2006. The study involves the collection of data from the same group of parents over time. These parents had (a) separated from the child's other parent between July 2006 and September 2008;³⁴ (b) registered with the Child Support Agency in 2007;³⁵ and (c) were still separated from this parent at the time of the first survey. Where the separated couple had more than one child together who was under 18 years at the time of the survey, most of the child-related questions that were asked focused on only one of these children (here called the "focus child").³⁶

The LSSF W1 2008 took place between August and October 2008, up to 26 months after the time of parental separation.³⁷ The final overall response rate for LSSF W1 2008 was 60.2%.³⁸ An equal gender split was achieved. The majority of participants were aged between 25 and 44 years (74%) and were born in Australia (83%).

A second wave of interviews for the LSSF was conducted between September and November 2009. In addition, adolescent children of parents participating in the LSSF were also surveyed following Wave 2. This adolescent survey obtained information about their experiences and opinions relating to parental separation. The second wave of data from the LSSF and the adolescent survey data will be used in a subsequent report to be undertaken in 2010.

Information collected as part of this study will contribute to understanding the long-term effects of family law policy and will provide a picture of what life is like over time for separated parents across a broad range of family arrangements, from shared care through to less frequent contact.

Family Pathways: Looking Back Survey

The LBS 2009 is a national study of some 2,000 parents with at least one child under 18 years old who separated between January 2004 and June 2005, prior to the introduction of the reforms. The study involved a one-off interview with parents who were registered with the CSA in 2007.

Parents were interviewed for this study between March and May 2009, some 3.7 to 5.2 years after separation. The final overall response rate was 69% and an almost equal gender split was achieved. The majority of participants were aged between 25 and 44 years (72%) and were born in Australia (83%).

The cross-sectional study design provided a snapshot of the reflections of separated parents about what life was like for them during and after separating in the pre-reform period and about the pathways they followed.

Family Pathways: The Grandparents in Separated Families Study

The GSFS 2009 focused on grandparents with at least one grandchild aged 2-10 years old whose parents had separated between January 2004 and December 2008. The key purpose of this study was to examine grandparents' perceptions of the family law reforms and the impact of parental separation on the relationship between grandparents and their grandchildren.

The study involved three components: an initial Victorian-based survey that collected data from as many grandparents in Victoria as possible; focus group interviews with 50 grandparents who had completed the initial survey; and a national online survey. Following recruitment advertisements placed in Victorian-based newspapers, grandparents completed a brief survey (online, by telephone or through a mail-out). A selection of eligible grandparents were then invited to take part in a focus group study. The focus groups were designed to explore - in greater depth than was possible with the survey - grandparents' experiences before and after the separation of their children and their views about the impacts of the family law reforms. Following completion of the initial Victorian-based survey, further recruitment advertisements were placed in national publications inviting grandparents Australia-wide to complete a slightly modified version of the online survey.

1.4 Structure of this report

Chapter 2 provides an overview of families using the family law system, including socio-economic and demographic characteristics and the extent to which these families reported experiencing a range of family dysfunctions, including violence, substance misuse and mental health issues. Chapter 3 focuses on the use and effectiveness of family relationship services and how the patterns of service use have changed since the 2006 changes to the family law system. Chapter 4 examines the pathways used by separated parents to sort out their parenting arrangements and how these have change following the 2006 changes. Chapter 5 considers the operation of FDR, including the appropriateness of referrals into FDR services and how the exceptions to attempting FDR are working.

Chapter 6 examines community opinions about different care-time arrangements (including shared care time) and describes the prevalence of different arrangements and the extent to which shared care time has changed since the 2006 changes to the family law system. Chapter 7 describes how the characteristics of families, the quality of inter-parental relationships, and the presence of family violence vary according to care-time arrangements. Parents' views about the flexibility and workability of different care-time arrangements are also examined in this chapter. Chapter 8 examines the question of parental responsibility and the extent to which parents share such responsibility. The chapter focuses on decision-making about issues affecting the child and financial support and also the nature of parental responsibility orders made by courts.

Chapter 9 considers how the legislative provisions about parental responsibility and care time operate, from the perspective of family lawyers and other service providers. In Chapter 10, the focus is on how the family law system deals with families where there are concerns about family violence or child safety and in Chapter 11 the links between reports of family violence, child safety concerns and child wellbeing are examined. The focus of Chapter 12 is grandparenting and the 2006 changes to the family law system.

Chapters 13, 14 and 15 focus on the legal and court systems. Chapter 13 examines the impact the 2006 changes have had on the FCoA, the FMC and the FCoWA. Issues examined are how the case management system in each court operates, changes in filing patterns and the implications of having the FCoA and the FMC operating in parallel. Chapter 14 examines how Division 12A of Part VII, "Principles for conducting child-related proceedings", has been implemented by the courts. Chapter 15 discusses the application of the 2006 changes to the legislation.

Finally, Chapter 16 summarises the key evaluation findings and conclusions based on these.

2. Characteristics of separated parents: Challenges and issues for family relationships and wellbeing

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This chapter provides an overview of the families that are actual or potential users of the family law system. It begins with an outline of the socio-economic and demographic characteristics of parents who separated post-1 July 2006, using data from the Longitudinal Study of Separated Families Wave 1 (LSSF W1) 2008. It then examines the extent to which parents in these families reported experiences of family violence, concerns about child safety, mental health problems problems, and issues with alcohol and other drugs or other addictions.

The issues of family violence and child safety are discussed throughout this report, but the primary purpose of the discussion in this chapter is to examine what the evaluation data (primarily from the LSSF W1 2008) reveal about:

• the characteristics and needs of the families who use or may use family law system services;
• the reported prevalence of family violence safety concerns (including child safety) among separated families;
• links between reports of family violence and safety concerns and the quality of the parents' relationship after separation;
• the reported "incidence" of alcohol and drug misuse prior to separation; and
• the reported "incidence" of mental health problems prior to separation.¹

The data presented in this chapter establish that family violence affects a substantial proportion of separated parents. Such families are the predominant users of both the family relationship services system and the legal and court systems. For this reason, the data in relation to these matters will inform discussion in a number of areas related to the family law reforms, and are presented here as a precursor to subsequent analyses in the remainder of this evaluation report.

When examining family violence, some complex definitional² and methodological issues arise. The term "family violence" is used in this evaluation report because it is the term also used in the main legislative (Family Law Act 1975 (Cth) s4)³ and practice instruments (see Winkworth & McArthur (2008) that inform legal and professional approaches in this area. Where legal and service system professionals are asked for their views about family violence, these are the instruments that are likely to influence their responses and understandings.

In gathering data from parents, the interview instruments included questions on the socio-economic and demographic characteristics of parents, and their experiences of physical harm prior to separation and of a variety of behaviours amounting to emotional abuse before and during separation. Where parents reported experiencing physical harm, they were asked whether the children had witnessed any abuse or violence. All parents were asked whether they had current concerns for the safety of their child when in the care of the other parent.

It should be noted that data on family violence collected according to the method applied in this study, in common with other large-scale quantitative studies, provide insight into the number of parents who report experiencing particular behaviours covered in the survey instruments. However, such reports do not provide a means of distinguishing between, for example, aggressive and defensive acts, nor do they provide insight into the subjective experience of the violence from the perspective of either the alleged target or the alleged perpetrator.⁴ Nevertheless, the implications of the presence of a history of family violence and current safety concerns for child wellbeing are addressed in Chapter 11.

2.1 Socio-economic and demographic characteristics of separated parents

This section provides an overview of the socio-economic and demographic characteristics of mothers and fathers who separated post-1 July 2006, using data from the LSSF W1 2008. The characteristics examined were: parents' ages, age of youngest child with the other parent, educational attainment, labour force status, being of Aboriginal or Torres Strait Islander descent, being born outside of Australia, relationship status at time of separation and whether currently living with a partner. These characteristics were measured at the time of the interview (after separation), with the exception of relationship status at separation. Some of the characteristics do not change over time (being born outside of Australia and being Aboriginal or Torres Strait Islander, while others change only slowly (educational attainment) and will therefore be the same, or very similar, to what they were at the time of separation. Labour force status, on the other hand, often changes following separation.

The average age of separated mothers was 33 years and separated fathers 35 years (Table 2.1). The most common age ranges for these separated parents were 25-34 years (38% of fathers and 39% of mothers) and 35-44 years (37% of fathers and 34% of mothers).

Notes: Data have been weighted. a Mainly those who had not lived with the other parent since the birth of the child. Most of these parents (80% of fathers, 77% of mothers) had never lived together.

Source: LSSF W1 2008

About half of the parents had a child (with the other parent) aged less than three years (47% of fathers and 50% of mothers). Relatively few had a youngest child (with the other parent) aged 12 years or older (7% of fathers and 7% of mothers).

About one-third of separated mothers and fathers had a highest level of educational attainment of Year 11 or less (32% of fathers and 33% of mothers). For the other levels of education, 13% of fathers and 14% of mothers had a degree or higher level qualification, 40% of fathers and 33% of mothers had a non-degree post-school qualification, and 16% of fathers and 20% of mothers had a highest level of educational attainment of Year 12. The education levels were lower than those found among parents who were together (see Tables 3.13 and 3.14 in Chapter 3).

Turning to labour force status, 84% of separated fathers and 52% of separated mothers were in paid employment. These employment rates are lower than those found among parents who have not separated. Around 4% each of mothers and fathers in the LSSF W1 2008 were of Aboriginal or Torres Strait Islander descent. The proportion of separated fathers born outside of Australia was 19% and the proportion of mothers was 15%. A substantial minority of parents reported that they had not been living together at the time that the relationship ended (12% of fathers and 15% of mothers). Of this group who were not living together when the relationship ended, only 20% of the fathers and 23% of the mothers reported that they had ever lived together. More fathers (14%) than mothers (6%) had re-partnered in the first year or two following separation.

2.2 Separated parents' reports of experiencing family violence

The following sections examine the incidence of family violence (including in the presence of children) before and during separation, and how many parents reported the presence of concerns about personal or child safety relating to ongoing contact with the other parent. The source of these data is LSSF W1 2008, supplemented by data from the Survey of Family Relationship Services Program (FRSP) Clients 2009.

2.2.1 Family violence before or during separation

Parents who were involved in LSSF W1 2008 were asked about whether they had experienced family violence.⁵

Table 2.2 shows the proportion of fathers and mothers who reported having experienced family violence. Family violence is categorised as physical hurt or emotional abuse. The physical hurt measure includes those who experienced both physical hurt and emotional abuse, because the majority of parents who reported having experienced physical hurt also reported having experienced emotional abuse.

Nearly two-thirds of the mothers and just over half the fathers indicated that their partner had either emotionally abused them or physically hurt them, with emotional abuse alone being considerably more commonly reported.⁶ Similar proportions of fathers and mothers said that they had experienced emotional abuse alone, although this was slightly more common among mothers than fathers. Table 2.2 shows that mothers were considerably more likely than fathers to indicate that their child's other parent had physically hurt them. In addition, given that virtually all respondents who had been physically hurt by their child's other parent also reported that this parent had engaged in one or more emotionally abusive behaviours, it is important to appreciate that emotional abuse was more widespread than suggested by the figures for experiencing emotional abuse alone.

Notes: a Physical hurt includes those who experienced both physical hurt and emotional abuse, given that the majority of parents who experienced physical violence also experienced emotional abuse. Percentages may not total 100.0% due to rounding.

Source: LSSF W1 2008

A relatively high proportion of parents (72% of mothers and 63% of fathers) who reported having experienced physical hurt before separation by the other parent also reported that their children had witnessed violence or abuse (not shown in table).

Information about the experience of different types of emotional abuse is provided in Figure 2.1. Just over half the fathers (52%) and nearly two-thirds of mothers (64%) indicated that they had been recipients of emotional abuse either before or during the separation, with most of the forms of abuse mentioned being experienced by a substantially higher proportion of mothers than fathers. Insults that were designed to shame, belittle or humiliate these parents represented the form of emotional abuse most commonly experienced.⁷ In addition, 75% of fathers and 84% of mothers who indicated that they had experienced such insults also said that they had been recipients of at least one other form of emotional abuse.

Source: LSSF W1 2008

Figure 2.1 Experience of different forms of emotional abuse before or during separation, fathers and mothers, 2008

After insults, mothers most commonly reported fathers threatening to damage or destroy property, and threatening to harm them or to self-harm. Somewhat less common were mothers' reports of fathers' attempts to prevent knowledge of or access to money, followed by preventing contact with family or friends, or use of the telephone or car. The least commonly mentioned experiences reported by mothers were fathers' threats to harm the children, pets or family or friends. Fathers also reported these issues, but in most cases were considerably less likely to do so. Mothers were more likely to report having experienced multiple types of emotional abuse than were fathers.

One in four mothers and around one in six fathers said that the other parent had hurt them physically, and among those who reported such experiences, the majority indicated that their children had seen or heard some of the abuse or violence.

The Survey of FRSP Clients 2009 also revealed high rates of family violence in separated families. Table 2.3 shows that 33% of clients reported being physically hurt by the person about whom they attended the service and 77% reported being seriously put down or insulted. The participating client reported the other party making threats to harm them, themselves (i.e., the other party) or others (including pets) in 43% of cases. Controlling behaviour on the part of the other party had been experienced by 50% of clients participating in the survey.

Notes: Responses are reported only for clients who indicated that they attended the service to sort out issues about their children after a relationship break-up or separation. Response categories for each item were "yes", "no" and "prefer not to say". Responses of "prefer not to say" represented only a small number of responses (< 4%). They are included in totals for calculating the proportion of "yes" responses above.

Source: Survey of FRSP Clients 2009

2.2.2 Current safety concerns

Parents who participated in the LSSF W1 2008 were asked to indicate whether they currently held safety concerns for themselves and/or their focus child as a result of ongoing contact with the child's other parent.⁸

Around one in five parents (17% of fathers and 21% of mothers) reported safety concerns associated with ongoing contact with their child's other parent (Table 2.4). In total, 15% of fathers and 18% of mothers expressed concerns about the safety of their child - either alone or in addition to concerns about personal safety - and 4% of fathers and 12% of mothers were concerned about their personal safety (combining concern for child and concern for self).

Source: LSSF W1 2008

The concerns of most of these respondents, especially mothers, related to the other parent; fathers were more likely than mothers to refer to concerns about the other parent's new partner and/or another adult. For 92% of mothers who expressed concerns, the other parent was the source of the concern, compared with 68% of fathers. Only 6% of fathers and 3% of mothers had a concern that another child may pose a threat to the safety of their child.

Fathers' and mothers' actions in relation to contact arrangements that were linked with safety concerns also differed: 50% of mothers and only 24% of fathers who held safety concerns indicated that they had attempted (or managed) to limit contact for safety reasons. Among fathers and mothers who cared for their child for 66-100% of nights and who held safety concerns about ongoing contact with the child's other parent, 17% of fathers and 56% of mothers indicated that they had attempted to limit contact with the other parent (not shown in Table 2.4).

2.3 Experience of mental health problems, alcohol/drug misuse, or other addictions before separation

In order to gain insight into other issues that might affect separating families, parents involved in LSSF W1 2008 were asked whether three sorts of issues were relevant to their relationship prior to separation. These were mental health problems, issues with alcohol or other drug use or another addiction.⁹

Given that respondents may well be reluctant to acknowledge that they themselves were prone to such problems, they were not asked about which family member(s) exhibited such problems. The question was thus designed to maximise the chance that any such issues prevailing in the family would be acknowledged.

Half the mothers and around one-third of the fathers indicated that at least one of these issues (mental health, use of alcohol or drugs, gambling or other addictions)¹⁰ was apparent before separation (Table 2.5). The two matters specified in the question - issues with mental health problems and use of alcohol or other drugs - were the most prevalent, with mothers being more likely than fathers to indicate the presence of each of these issues. This gender difference was more marked in relation to concerns about the use of alcohol or other drugs than for mental health problems. Few mothers and fathers identified gambling or addictions other than alcohol or other drugs. There was a significant overlap between reports of mental health issues and addiction (e.g., alcohol and drug use) issues, for both fathers and mothers (not shown in the table).

Note: Multiple types of issues could be reported, so column percentages sum to more than 100.0%.

Source: LSSF W1 2008

2.4 Co-occurrence of family violence, mental health problems and addiction issues

Table 2.6 shows the extent to which parents who reported that mental health problems or addiction issues existed prior to separation also indicated that they had experienced family violence. Parents who said that both mental health and addiction issues had existed were the most likely to report that the other parent had physically hurt them (43% of fathers and 50% of mothers), followed by parents who reported either mental health problems alone or addiction issues alone (26% of fathers in each case, and 29% and 34% of mothers respectively). Only 9% of fathers and 13% of mothers who said that there had been no mental health or addiction problems indicated that the other parent had physically hurt them.

Parents who reported that neither mental health nor addiction issues had existed prior to separation were also less likely than the other parents to say that they had experienced emotional abuse alone. Overall, experiences of family violence were reported by 85% of fathers and 92% of mothers who said that both mental health and addiction issues had been present before separation, compared with 41% of fathers and 46% of mothers who said that neither of these problems had been present. In other words, family violence seemed to be pervasive among families in which both mental health and addiction issues were thought to be present.

Note: Percentages may not total 100.0% due to rounding.

Source: LSSF W1 2008

At the same time, it is important to point out that, among those who did not report family violence of either sort, around one in five (18-22%) said that mental health problems or addiction issues were apparent prior to separation (Figure 2.2).

Source: LSSF W1 2008

Figure 2.2 Having mental health and addiction issues before separation, fathers' and mothers' reports, by experience of family violence, 2008

Parents who experienced family violence prior to separation were particularly likely to indicate that there had been issues in the pre-separation relationship involving mental health problems or use of alcohol or other drugs (or other addictions). In fact, most respondents who said that they had been physically hurt also indicated that issues pertaining to mental health problems or addictions were apparent prior to separation, with mothers being more likely to report this than fathers (reported by 75% of mothers who had been physically hurt, and by 64% of relevant fathers). In addition, most mothers (58%) who reported emotional abuse alone and 44% of their male counterparts said that such other dysfunctional issues were apparent in the pre-separation relationship.

2.5 Quality of relationships between parents after separation

In order to gain insight into the quality of post-separation relationships and to assess the extent to which a reported experience of family violence may affect this, parents involved in the LSSF W1 2008 were asked to indicate the quality of their current relationship with their child's other parent. These data develop further understanding of the issues relevant to families who use the family law system.

Table 2.7 shows the proportions of fathers and mothers who described their current relationship in these different ways. A solid majority of separated mothers and fathers indicated that they had a friendly or cooperative relationship with the other parent, while almost a fifth rated their relationship as distant and a little under a fifth rated it as either very conflicted or fearful, although almost twice as many mothers than fathers considered the relationship to be fearful.

Note: Percentages do not total 100.0% due to rounding.

Source: LSSF W1 2008

2.5.1 Post-separation relationships and pre-separation family violence

Where no family violence was reported, post-separation relationships were particularly likely to be friendly or cooperative (reported by 84-85% of fathers and mothers). The data indicate that experience of emotional abuse did not preclude post-separation friendly and cooperative relationships for half the fathers and more than half the mothers in the sample (Table 2.8).

Even physical violence was not incompatible with these sorts of relationships for significant minorities of fathers and mothers. However, roughly a quarter of both mothers and fathers who had reported physical violence or emotional abuse had developed a distant relationship with their former partners. Two-fifths of mothers and fathers who reported physical violence were either in highly conflicted or fearful relationships at the time of the survey, as were one-fifth who had reported emotional abuse alone. The fact that fear characterised roughly a tenth of the fathers and roughly a fifth of the mothers who had reported physical violence suggests that post-separation parenting arrangements would need to be assessed and handled with special care. On the other hand, the fact that high conflict was reported by only a very small percentage of parents who had not experienced violence or abuse in their relationships points strongly to the fact that the experience of a past or present abusive dynamic is very likely to characterise high-conflict family law clients.

Note: Percentages may not total 100.0% due to rounding.

Source: LSSF W1 2008

2.5.2 Post-separation relationships and current safety concerns

While it has already been shown that pre-separation family violence has repercussions for inter-parental relationship dynamics after separation (which in some cases would be marked by continuing threatened or actual violence), current safety concerns are particularly pertinent, as they may well compromise the wellbeing of the parent and child. Table 2.9 shows the proportions of respondents with and without current safety concerns for themselves or their focus child who said that they had been victims of family violence or that there had been issues relating to mental health problems or alcohol or other drug use prior to separation.

Note: Percentages may not total 100.0% due to rounding.

Source: LSSF W1 2008

The majority of parents who had safety concerns reported that they had been either physically hurt or emotionally abused by their child's other parent (90% of fathers and 95% of mothers). The proportion of parents with safety concerns who reported having experienced family violence is much higher than the proportion of parents without safety concerns who reported having experienced family violence. For example, among fathers with safety concerns, 44% reported having been physically hurt, compared to 11% of fathers without safety concerns. Among mothers with safety concerns, 42% reported having been physically hurt, compared to 19% of those without safety concerns.

Regardless of whether they held safety concerns, the proportion of parents who indicated that prior to separation there had been mental health problems or addiction was quite high. However, these problems were more commonly reported by parents who held safety concerns than by other parents (fathers: 62% with safety concerns compared to 30% without; mothers: 77% with safety concerns compared to 43% without).

Around half the fathers and just over half the mothers (49% and 54% respectively) with concerns about their own or their child's safety indicated that their current inter-parental relationship was marked by either conflict or fear, with mothers who held safety concerns being more likely than fathers with such concerns to report that their relationship was a fearful one (reported by 24% of mothers and 14% of fathers) (Figure 2.3). Highly conflicted or fearful relationships were reported by only 11% of fathers and mothers who did not hold safety concerns.

Note: Percentages may not total exactly 100% due to rounding.

Source: LSSF W1 2008

Figure 2.3 Quality of inter-parental relationship, by whether parent had safety concerns, fathers and mothers, 2008

2.6 Summary

While the family law system deals with families from all sectors of society, separated parents have, on average, a lower level of education and lower income and are more likely to have a preschool-aged child when they separate than parents who stay together.

In relation to family violence, the following patterns are relevant among families in the LSSF W1 2008. Around two in three mothers and just over half the fathers indicated that their child's other parent had emotionally abused them through at least one of the means examined in this study, including the use of humiliating/belittling insults, property damage, threats to harm respondents or others, and other forms of controlling behaviours. One in four mothers and around one in six fathers said that the other parent had hurt them physically and, among those who reported such experiences, most indicated that their children had seen or heard some of the abuse or violence. It must be noted here that these data do not distinguish between, for example, aggressive and defensive acts, nor indicate the severity of the violence. Nor do they provide insight into the subjective experience of the violence from the perspective of either the alleged target or the alleged perpetrator.

Half the mothers and around one-third of the fathers indicated that mental health problems, the use of alcohol or other drugs, gambling or other addictions were apparent before separation. The gender difference was more marked in relation to concerns about the misuse of alcohol or other drugs than for mental health problems, with nearly twice as many mothers as fathers reporting problems with alcohol and drug use before separation. Gambling or other addictions were mentioned by fewer than 5% of parents.

Around one in five parents reported safety concerns associated with ongoing contact with their child's other parent. In total, 15% of fathers and 18% of mothers expressed concerns about the safety of their child - either alone or in addition to concerns about personal safety - and 4% of fathers and 12% of mothers were concerned about their personal safety, regardless of their views about their child's safety.

Where no family violence had been reported, post-separation relationships were particularly likely to be friendly or cooperative (reported by 84% of fathers and 85% of mothers). Roughly a quarter of both mothers and fathers who had reported physical or emotional violence had developed a distant relationship with their former partners. In addition, two-fifths of mothers and fathers who reported having experienced physical violence were in highly conflicted or fearful relationships at the time of the survey, as were one-fifth who had reported emotional abuse alone. High conflict was reported by a very small percentage of parents who had not experienced violence or abuse in their relationships. This suggests that the experience of a past or present abusive dynamic is a very common characteristic of high-conflict family law clients.

A solid majority of separated mothers and fathers (62% and 64% respectively) were nonetheless at the time of the survey in friendly or cooperative relationships with each other, whereas almost a fifth rated their relationship as distant and a little under a fifth rated it as either very conflicted or fearful. Almost twice as many mothers (7%) than fathers described the relationship as fearful. Reports of fathers and mothers with respect to dimensions other than fearful were quite similar.

Most respondents who said that they had been physically hurt also indicated that issues pertaining to mental health problems or addiction were apparent prior to separation, with mothers being more likely to assert this than fathers (reported by 75% of mothers and 64% of fathers who had been physically hurt). In addition, most mothers (58%) who reported emotional abuse alone and 44% of their male counterparts said that these issues were apparent in the pre-separation relationship.

Of those who held current safety concerns for themselves or their focus child, 90% of fathers and 95% of mothers reported that they had been either physically hurt or emotionally abused by their child's other parent. Nevertheless, around one in five mothers and just over one in ten fathers who did not hold safety concerns also indicated that they had been physically hurt prior to separation. For some of these parents, separation may have relieved them of such concerns.

Regardless of whether they held safety concerns, the proportion of parents who indicated that, prior to separation, there were mental health problems or issues related to alcohol or other drugs was quite high. However, these problems were more commonly reported by parents who held safety concerns than by other parents.

3. Use and effectiveness of new and expanded family relationship services

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The changes to the family law system involved changes to the family relationship services delivery system and included the establishment of 65 Family Relationship Centres (FRCs) throughout Australia, the Family Relationship Advice Line (FRAL) and Family Relationships Online (FRO), and funding for new services and additional funding for existing services. The changes were designed to create a more coordinated and more effective family law system (see Chapter 1). Families were to be encouraged to make appropriate use of both early intervention and post-separation services.¹

This chapter is relevant to all four policy objectives of the 2007 Evaluation Framework (see Appendix B) and addresses three key evaluation questions:

What are the patterns of use of services?

Have the patterns of service use changed since the 2006 changes to the family law system?

How effective have the new and expanded services been?

Data collected from separated and non-separated parents, and Family Relationship Services Program (FRSP) clients and staff are used to provide a comprehensive picture of the use and effectiveness of these services by parents and other adults.²

While the evaluation considers the new types of services (the FRCs and FRAL), it does not specifically compare and contrast the impacts of additional funding to existing services and the impact of funding for additional outlets of these services. The focus is on the use and effectiveness of the family relationship services system as a whole.

This chapter uses data from the:

• General Population of Parents Survey (GPPS) 2009;
• Longitudinal Study of Separated Families Wave 1 (LSSF W1) 2008;
• Looking Back Survey (LBS) 2009;
• Survey of Family Relationship Services Program (FRSP) Clients 2009;
• Online Survey of FRSP Staff 2008 and 2009;
• Qualitative Study of FRSP Staff 2007-08 and 2009; and
• FRSP Online database 2006-09.

The chapter includes an overview of FRSP services and the demographic characteristics of clients using them. It then examines data on service use by parents who have not separated but are seeking relationship support, as well as exploring the use of services both during and after separation. Service professionals' views on operational aspects of their services are also examined, as are issues arising from working with Indigenous clients. Finally, we consider the effectiveness of family relationship services in meeting clients' needs before presenting a series of concluding comments.

3.1 Clients using FRSP services

The FRSP's data collection system provides information on the number of clients using services, basic demographic characteristics and reasons for using the service.In the analysis of these data, individuals are represented only once within service types, to the extent that it is possible.³ A client who attends multiple types of services appears separately in the data for each type of service they attend. Thus, the numbers relate to the number of clients using each service type, but the total number of clients summed across all service types will be greater than the total number of individuals using FRSP services.

The FRSP services noted below are categorised as early intervention services (EIS) and post-separation services (PSS).

The early intervention services included are:⁴

• Specialised Family Violence Services (SFVS);
• Men and Family Relationships Services (MFRS);
• counseling;⁵ and
• Education and Skills Training (EDST).

The post-separation services included are:

• Family Relationship Centres (FRCs);
• Family Dispute Resolution (FDR) (including Regional Family Dispute Resolution (RFDR);
• Children's Contact Services (CCS); and
• Parenting Orders Program (POP).

3.1.1 Socio-economic and demographic characteristics of FRSP clients

Table 3.1 shows that, on average, clients in all early intervention and post-separation services types were in their 30s, with the average age ranging from 34 years (for EDST clients) to 39 years (for FDR and counselling clients).

Notes: FDR includes RFDR clients. Registered clients without complete data (due to database mismatches) are excluded from this table. Clients with missing/not stated marital status are excluded from the distribution of that item. Age and marital status are as at the client's first session at the type of service during the reference year. Table is restricted to registered clients aged 15 years and over. Percentages may not total exactly 100.0% due to rounding.

Source: FRSP Online data extract, October 2009

A much higher proportion of Aboriginal and Torres Strait Islander clients made use of SFVS and MFRS (8% for both services) than other services. Rates of usage of other services by Indigenous clients ranged from 2% for FDR and POP services to 4% for CCS. Between 14% and 19% of clients of each service were born outside of Australia.

Marital status varied in understandable ways: those who used post-separation services were most commonly classified as divorced or separated, and those who used three of the four intervention service types (SFVS, MFRS and counselling) were most commonly recorded as partnered. The EDST clients (many of whom would be attending pre-marriage education programs), on the other hand, were most commonly classified as never married and not de facto.

For all of the post-separation services, about half the clients were male and half female. In terms of the early intervention services about half the clients of the SFVS were male and about 40% of the counselling service and EDST clients were male, while the majority (81%) of the MFRS clients were male.

Table 3.2 summarises education and employment data for services covered by the FRSP data collection system. The table suggests that parents with a higher level of educational attainment and employed parents were more likely to use EDST and counselling services and were less likely to use SFVS, MFRS or CCS. Those who used SFVS and CCS were the least likely to be employed, while EDST and FDR clients were the most likely to be employed.

Notes: FDR includes RFDR clients. Registered clients without complete data (due to database mismatches) are excluded from this table. Clients with missing/not stated education or employment status are excluded from the respective distributions. Highest level of education and employment status are as at the client's first session at the type of service during the reference year. Percentages may not total exactly 100.0% due to rounding.

Source: FRSP Online data extract, October 2009

3.1.2 Number of clients using FRSP services

Table 3.3 provides information on the number of clients using each of the FRSP services in 2006-07, 2007-08 and 2008-09. In 2008-09, the services with the largest number of clients were counselling services (101,214 clients), FRCs (60,199 clients) and EDST (49,593 clients). The services with the smallest number of clients were POPs (8,194 clients) and SFVS (6,906 clients).

There was an increase in the number of clients for all FRSP services types over the period 2006-07 to 2008-09. In percentage terms, the increase was greatest for FRCs (336% increase). The growth in the number of clients accessing services was expected given that the number of services increased over the three years (including the FRCs).

Notes: FDR includes RFDR. If a client used both FDR and RFDR then they were counted twice in the FDR figures. The number of such clients are very small. Table includes clients of all ages, including those aged under 15 years of age.

Source: FRSP Online Reporting Portal, 4 December 2009.

In contrast to the increased use of FRCs and FDR services, the number of calls handled by FRAL fell from 99,086 in 2006-07 to 81,878 in 2008-09, a decrease of 17% (Table 3.4). Nevertheless, the number of callers remains substantial. The decreases in the number of calls to FRAL is likely to be explained by several factors, including the fact that parents' understanding of the changes to the family law system has improved (which may reduce the need for initial information), and the fact that as services such as FRCs have become more established and better known, referral networks may have become more localised, resulting in fewer parents needing to call a national information and advice line.

Source: FaHCSIA, September 2009

The number of calls to Mensline was relatively stable over the period 2006-07 to 2008-09, at just under 40,000 calls per year (Table 3.5). Outbound calls are made to clients who have joined the Call Back Service (CBS) provided by Mensline. Under this service, callers can receive up to six telephone counselling sessions over a six-week period. The service is free and is suitable for people who have issues/concerns that are more long-term and require more than one telephone call to assist. Over the period investigated, the number of calls that Mensline staff made to clients increased by 45% (from 2,249 in 2006-07 to 3,262 in 2008-09).

Source: Mensline Australia summary statistics

There was a large increase in the number of active referrals (warm transfers) from FRAL parenting advisors and FRCs to the TDRS.⁶ The number of warm transfers from a FRAL parenting advisor to TDRS increased by around 300% (from 809 in 2007-08 to 3,263 in 2008-09). Over this period, the number of warm transfers from FRC to TDRS increased by 132%, from 537 to 1,245.

In 2008-09, there were 13,441 calls made to TDRS that were answered. About a quarter of these calls resulted in the caller undergoing an intake session, and just over one in twenty commenced FDR.

The Family Relationships Online website⁷ provides information about family relationship issues, including how to access a range of services that can assist in managing relationship issues, such as agreeing on appropriate arrangements for children after parents separate. FRO also provides downloadable resources about a range of issues related to family relationships and family law.

In June 2009, there were 21,233 visits to the FRO, from 11,378 individual IP addresses. This suggests that many FRO users access the site more than once. In June 2009, the average time spent on the site was just under four minutes.⁸

In June 2009, the three most commonly downloaded resources were:

• An Introduction to Parenting Plans (FRO Factsheet) - 536 visits;
• Help for Parents After Separation: A Program to Make Parenting Orders Work (AGD brochure) - 211 visits; and
• Questions and Answers About Separation for Children (AGD booklet) - 197 visits.

3.1.3 Reasons for attending the service

The Survey of FRSP Clients conducted in late 2009 provides information on the main reason why clients attended a service.⁹

Table 3.6 shows that for the early intervention services, there is some variation in the main reason given for attending a service. Two-thirds of respondents who used counselling services and over half of those who had attended SFVS or MFRS (54-58%) indicated that their main reason for using these services was to sort out general family issues, while nearly one-fifth of these three groups (18-19%) went to the service mainly to deal with personal problems. In addition, one-fifth of MFRS clients, 14% of SFVS clients and only 9% of the clients of counselling services said that they mainly went to the service to sort out issues about their children after a relationship break-up or separation. Just over a quarter of the clients of EDST services indicated that the main reason for attending the service was to sort out general family relationship issues, but the majority (61%) went for reasons other than those listed in the table.¹⁰

Note: Percentages may not total exactly 100.0% due to rounding.

Source: Survey of FRSP Clients 2009

Between 72% and 85% of respondents who used a post-separation service said that the main reason for attending the service was to sort out issues about their children after a relationship break-up or separation (Table 3.7). Clients who attended an FDR service were more likely than those who used other post-separation services to say that their main reason for attending the service was to sort out a general family relationship issue (26% of FDR respondents compared to 11-15%).

Note: a Excludes TDRS clients.

Source: Survey of FRSP Clients 2009

Table 3.8 shows the main relationship focused upon by callers to Mensline during the three periods investigated. During each of these periods, information on this issue was not available for 33-39% of calls. Most of the calls made each year appeared to concern a previous relationship or current partner. Of all calls (including those for which no information about the issues discussed was available), approximately one-quarter concerned a previous relationship and just over one-fifth concerned a current partner. Of the calls for which information about the issue discussed was available, close to 40% concerned a previous partner and around 35% concerned a current partner (data not shown in Table 3.8). That is, around three-quarters of all calls with known information about the issue discussed concerned either a current or previous partner.

Notes: Percentages may not total exactly 100.0% due to rounding. Information about relationships discussed may not have been collected where calls reflected a crisis situation.

Source: Mensline Australia summary statistics

Table 3.9 reveals that interpersonal issues were by far the most common issues recorded for each period (representing close to 40% of all calls, including calls for which the main issue discussed was not recorded). In total, 63-68% of all calls for which the main issue was recorded concerned interpersonal matters (data not shown in Table 3.9). The other main issues that were recorded covered legal/material/financial matters, physical/mental health matters, safety matters, issues relating to sex, and work issues.

Notes: Percentages may not total exactly 100.0% due to rounding. Information about relationships discussed may not have been collected where calls reflected a crisis situation.

Source: Mensline Australian summary statistics

Consistent with the trends in the nature of calls to Mensline, Table 3.10 indicates that easily the most prominent presenting needs from callers to FRAL were issues concerned with separation and relationships. Many of the other needs listed in the table - court/legal, violence/abuse, finances, miscellaneous abuse, mental health, emergency/crisis, child abduction, dispute resolution and accommodation - are likely to be subcategories of this dominant one. The percentage of these needs remained relatively stable over time, with a modest increase in needs about separation between 2006-07 and 2007-08 and a small reduction in the need for assistance in the court/legal area.

Note: Percentages may total to more than 100.0% as more than one presenting need could be recorded.

Source: FRAL call management system data

The FRSP Online database provides information on clients' number of presenting needs.¹¹ As Table 3.11 indicates, the majority of clients across all service types had either one or two presenting needs. Among early intervention services, in 2008-09, 61% of SFVS clients, 56% of MFRS clients, 70% of counselling clients and 92% of EDST clients had either one or two presenting needs. Clients of SFVS and MFRS were the most likely to have multiple presenting needs (23% in both services had five or more presenting needs respectively) in 2008-09, while EDST clients were the least likely to have multiple presenting needs (6% had 5 or more). For post-separation services, in 2008-09, 57% of FRC clients, 74% of FDR clients, 68% of CCS and 76% of POPs had either one or two presenting needs. Only a minority of clients had five or more presenting needs, varying from 24% for FRCs, 12% for FDR, 14% for CCS to 11% for POPs. While it is unclear exactly why the number of presenting needs is lower for the service types that are typically attended later in family law pathways, it is possible that the greater specialisation of services such as FDR, CCS and POP mean that a narrower set of needs is focused on and hence recorded.

There was an increase in the proportion of clients with five or more presenting needs for all early intervention and post-separation service types over the period 2006-07 to 2008-09. The increase was particularly pronounced for counselling (increase from 11% to 20%), FRCs (13% to 24%), FDR (7% to 12%) and CCS (6% to 14%). The increase in the number of presenting needs that clients had may reflect an increase in the "complexity" of the issues facing families attending services, better assessment and screening practices by services, better recording of this presenting needs data by services, and/or an increase in the number of categories for recording client needs in FRSP Online.

Notes: FRSP Online records presenting needs as an attribute of a client's role in a particular client activity. For a given client and type of service, a presenting need is included in the count of needs if the need was recorded for the client in relation to any activity that included a session at that type of service during the reference year. Totals include a very small number of clients (fewer than 0.05%) with no recorded presenting needs. FDR includes RFDR clients. Registered clients without complete data (due to database mismatches) are excluded from this table. Percentages may not total exactly 100.0% due to rounding.

Source: FRSP Online data extract, October 2009

3.2 Service use by parents who are not separated

3.2.1 Use of services and types of services used

This section provides information on the use of services by parents with a partner for "relationship support" or because they thought that their relationship might be "in real trouble". The types of services used are described and the characteristics distinguishing between parents who use and do not use services are examined.

The data in this section are from the General Population of Parents Survey (GPPS) 2009.¹² The information collected from parents in this survey was about the use of services since their current relationship started and therefore includes information on service use prior to the 2006 changes to the family law system.

Parents participating in the GPPS 2009 who had a partner were asked whether they had thought at any stage that their current relationship might be "in real trouble". The answer to this question determined the nature of the question about service use. A series of prompts was provided if respondents did not mention use of certain services.¹³

Overall, 27% of parents living with a partner said that they thought at some stage that their relationship might be in real trouble (including that it was currently in real trouble) and 73% said that they had never thought that their relationship might be in real trouble.

The parents who said that their relationship had never been in real trouble were asked if they had nonetheless used any services to support their relationship. About 13% of mothers and fathers who said that their relationship had never been in real trouble had used services to "support their relationship" (Table 3.12). Just under half (45%) of fathers and just over half of mothers (55%) whose relationship had been in real trouble at some stage had used relationship services.

Notes: Respondents could report having used more than one type of service and therefore column percentages may sum to more than 100.0%. 
^a Respondents were prompted about use of these services if they did not initially mention using them. Includes pre- and post-reform respondents.

Source: GPPS 2009

The services used most frequently by parents who had used services to support their relationship were marriage and relationship counsellors (43%), general practitioners (GPs) or other health professionals (31%), religious leaders/elders (28%) and FRCs (13%). The proportion of parents using other services to support their relationship was much smaller. It should be remembered, however, that the respondents were specifically asked about whether they had used each of the services listed in Table 3.12, with the exception of a welfare agency/community support service, telephone service, or Internet, media or self-help book.

Overall, there was a similar pattern in the types of services used by parents to assist in resolving relationship problems (i.e., who thought their relationship might be in trouble), with 63% of those who had used services having used marriage and relationship counsellors, 38% a GP or other health professional, 21% an FRC, and 14% a religious leader/elder. Parents who had used services to help deal with a relationship problem were more likely to have used two or more services than those who had used services to support a relationship (42% and 22% respectively).

3.2.2 Characteristics associated with the use of services

The extent to which parents who used services differed from those who did not use services was examined in relation to: their age, educational attainment level and current marital status, and two aspects of their residential location - remoteness from service centres, and level of socio-economic advantage or disadvantage. The results of this analysis are set out in Table 3.13 (for service use to support the relationship) and Table 3.14 (for service use to resolve difficulties in the relationship).

In general, use of services was more likely for: older parents compared with younger parents (a difference that was most marked among mothers who had experienced relationship difficulties); those with higher rather than lower levels of education; fathers who were married, compared with fathers who were cohabiting; parents who lived in a more geographically accessible area (especially among mothers who experienced relationship difficulties); and those who lived in a more socio-economically advantaged area (especially among parents who experienced relationship difficulties).¹⁴

Notes: SEIFA = Socio-Economic Indexes for Areas. Other post-secondary qualifications include trades, certificates and diplomas. Includes pre- and post-reform respondents. Differences between the used and not-used groups for fathers and mothers were separately tested using the chi-squared test for categorical variables and t-test for continuous variables. * p < .05, ** p < .01, *** p < .001.

Source: GPPS 2009

Notes: SEIFA = Socio-Economic Indexes for Areas. Includes pre- and post-reform respondents. Differences between the used and not-used groups for fathers and mothers were separately tested using the chi-squared test for categorical variables and t-test for continuous variables. * p < .05, ** p < .01, *** p < .001.

Source: GPPS 2009

3.3 Service use by parents who separate

The first set of analyses in this section focus on use of services prior to separation, as reported by parents in the GPPS 2009. The second set of analyses focus on contact with or use of services after separation among parents who separated after the July 2006 reforms were introduced. Attention is then directed to changes in contact with or use of services

3.3.1 Service use by parents in the GPPS 2009 prior to separation

Respondents in the GPPS 2009 who had separated from the other parent of at least one of their children were asked the same question regarding service use that was asked of those who said they had experienced "real trouble" in their relationship but had not separated.¹⁵

3.3.2 Characteristics of parents in the GPPS 2009 who used services prior to separation

Among separated parents in the GPPS 2009, the socio-economic and demographic characteristics associated with a higher likelihood of having used a relationship service prior to separation were: being slightly older; having a higher level of educational attainment (especially among mothers); and being married rather than cohabiting (especially among mothers) (Table 3.15).

Notes: Includes pre- and post-reform respondents. Differences between the used and not-used groups for fathers and mothers were separately tested using the chi-squared test for categorical variables and t-test for continuous variables. * p < .05, ** p < .01, *** p < .001.

Source: GPPS 2009

3.3.3 Contact with or use of services during and after separation: The post-reform sample

Parents in the LSSF W1 2008, all of whom had separated post-reform, were asked three questions that identified whether they had contacted or used services during or after the separation.¹⁶

These post-reform separated parents either contacted or made use of one or more services before or after the separation (Table 3.16), that is about one-third made no use of services. Forty-four per cent of parents had used one or two services and a just under a quarter of parents had used three or more services. Mothers were a little more likely than fathers to have used three or more services (28% and 21% respectively).

Note: Percentages may not total exactly 100.0% due to rounding.

Source: LSSF W1 2008

3.3.4 Characteristics of post-reform separated parents who contacted or used services

Table 3.17, which is based on the post-reform sample from the LSSF W1 2008, outlines the characteristics of those separated parents who did and did not contact or use services. Compared with the post-reform separated mothers and fathers who did not contact services, those who did so were somewhat older and significantly more likely to be married rather than cohabiting, and better educated. They also had a higher personal annual income than those who did not contact or use services. They were considerably less likely to have very young children (0-2 years) and were more likely to have children in the middle years (5-11 years).

Parents who contacted services were also much more likely to have reported the experience of some form of family violence, mental health problems or alcohol and drug issues or other addictions before the separation, as well as distant, highly conflicted and even fearful relationships. In addition, they were much less likely to report their post-separation relationship as being friendly. In other words, although the previously married parents and the better educated parents were more likely than others to have contacted services, those who had contacted services were more likely than other parents to have experienced significant problems and needs.

Notes: Fewer than 10% of fathers and mothers did not report their personal income. Parents were classified as having used any services if any of the following applied: (a) they confirmed that they had contacted any services other than family members or friends during or after separation; (b) they indicated that "counselling, family dispute resolution", "a lawyer" or "the courts" was the best way to describe how arrangements for the focus child were reached; or (c) they had attempted FDR or mediation themselves or with the other parent. Data have been weighted. Differences between the used and not-used groups for fathers and mothers were separately tested using the chi-squared test for categorical variables and t-test for continuous variables. * p < .05, ** p < .01, *** p < .001

Source: LSSF W1 2008

3.3.5 Changes in types of services contacted or used since the 2006 reforms

This section examines whether the pattern of service use changed following the 2006 reforms to the family law system. Two sources of data were used:

the LSSF W1 2008, which provides data on parents separating after 1 July 2006; and

the Looking Back Survey (LBS) 2009, which provides data on parents separating before 1 July 2006.

Data from the LBS 2009 and the LSSF W1 2008 were used to examine the extent to which there were changes in the types of services contacted or used by parents who separated in 2004 or 2005 (pre-reform) and those who separated after 1 July 2006 (post-reform).17 As Table 3.18 indicates, gender differences were notable for both pre- and post-reform groups with respect to domestic violence services contacted or used, but post-reform separated parents were also somewhat more likely to make contact with or use domestic violence services, possibly reflecting a greater awareness of these services and/or their greater availability. Differences between men and women were also prominent with respect to the use of legal services in the pre-reform sample, with over half the mothers nominating this service compared to a little under two-fifths of the fathers. But gender differences with respect to contact with or use of legal services evened out considerably in the post-reform sample.

Notes: ^a Includes parents in the "other" category who said they went to a counsellor, psychologist or mental health professional (less than 2%). Multiple responses were allowed and therefore percentages sum to more than 100%.

Source: LSSF W1 2008 and LBS 2009

Post-reform separated parents who contacted or used services were somewhat more likely to nominate counselling, mediation and dispute resolution and somewhat less likely to mention lawyers than their pre-reform counterparts. While substantial proportions in both groups contacted or used courts and legal services, pre-reform separated parents were considerably more likely to do so than their post-reform counterparts.

These data point in the direction of addressing policy objective 3 (2007 Evaluation Framework, Appendix B). Some caution needs to be exercised in making such a claim, however, as the differential service use might to some extent reflect the differing amounts of time that had passed. It might be, for example, that as time passes, the more difficult and entrenched cases increasingly "drift" towards legal services and courts.

3.3.6 Parental expectations concerning use of lawyers regarding separation

Figure 3.1 shows that there was an increase between 2006 and 2009 in the proportion of parents (separated and not separated) agreeing that it was important to consult a lawyer if thinking of separating. However, separated parents in each survey were less likely than non-separated parents to endorse the statement.¹⁸

Source: GPPS 2006 and 2009

Figure 3.1 Agreement with the statement: "If you are thinking of separating, it is important to consult a lawyer", by separation status, fathers and mothers, 2006 and 2009.

The increase in the proportion of parents saying that it was important to consult a lawyer is not consistent with the decrease in the proportion of separating parents who actually used lawyers (based on analysis of data from the LSSF W1 2008 and the LSB 2009 (Table 3.18)). When attempting to reconcile these apparently conflicting findings, it is important to keep in mind that the question in the GPPS surveys was about what the respondent thought they would do and the responses are therefore hypothetical. In addition, uncertainties surrounding the precise nature of the changes in legislation that were encouraging parents to make use of non-legal services, may have led many of those who were asked the question to suggest that they would probably need to seek legal advice in order to be clear about these changes. Media attention around issues such as the "shared parenting presumption" (as it was frequently portrayed) may have further added to the uncertainty. Furthermore, as noted above, the lower apparent use of lawyers among the post-reform sample compared with the pre-reform sample may have resulted from their shorter interval between separation and interview.

3.4 Staff assessments of their service's operation

This section provides information on the assessment by FRSP staff of a range of aspects of the service in which they work. This information was collected as part of the Online Survey of FRSP Staff 2009.

More particularly, some of the issues considered are the service professionals' views about:

• the accessibility of their service; and
• the operational aspects of their service, including whether:
  • their service helps clients in conflict to reduce or overcome their problems;
  • the service successfully engages men;
  • the intake process is effective in identifying the needs of clients;
  • staff have the skills required to meet clients' needs;
  • limited resources restrict their service's capacity to meet the needs of clients; and
  • the waiting list is too long.

3.4.1 Accessibility of FRSP services

Table 3.19 summarises data on service professionals' views about various dimensions of the accessibility of their services. A requirement of FRCs is that they be accessible by public transport. A large majority of relevant service professionals - especially those in FRCs - agreed or strongly agreed that their services were accessible by public transport. A substantial majority of staff thought that opening times were adequate, and even larger majorities (ranging from 88% for EIS to 98% for FRCs) rated the fee structures as being appropriate. The high level of agreement by FRC staff with the statement that the fee structure for the service makes it affordable for most clients is almost certainly a reflection of the fact that FRCs offer three free hours of dispute resolution and other services for clients. Fewer respondents (though still a substantial majority) were prepared to give a good rating to parking facilities for FRCs and EIS.

Notes: The response categories were: "strongly agree", "agree", "disagree", "strongly disagree", "can't say/don't know" and "not applicable". "Strongly agree" and "agree" categories are reported together. The sample size differs between items because of exclusion of cases with "not applicable" responses and missing information for individual items. Percentages exclude "not applicable" responses and missing data. 
^a FRAL respondents were not asked to respond to this statement.

Source: Online Survey of FRSP Staff 2009

Relatively high numbers of FRC staff agreed or strongly agreed that outreach was being provided to the target groups. Smaller majorities in other services may reflect differing priorities and different service models with regard to this aspect of service delivery.

Language and cultural barriers were seen to be a problem by large minorities or small majorities of staff. This is likely to reflect the reality that many services are simply unable to cover the range of languages in their area except through interpreter services, which is inevitably a compromise.

3.4.2 Operational aspects of FRSP service delivery

Table 3.20 reports on service professionals' assessments of a range of operational aspects of service delivery: helping clients in conflict to significantly reduce or overcome their problems, engaging men, having an effective intake, and having an appropriate skill base.

A high proportion of service professionals provided a positive rating of the operational aspects of the service delivery in the service for which they work. Waiting lists and limited resources were a particular concern for staff in some FRCs and PSS. Generally, staff pointed out that the effectiveness of the service they offered could be significantly blunted if clients had to wait weeks and sometimes months before they were able to access help. Limited resources were also of concern to a large minority of EIS.

Notes: The response categories were: "strongly agree", "agree", "disagree", "strongly disagree", "can't say/don't know" and "not applicable". "Strongly agree" and "agree" categories are reported together. Percentages exclude "not applicable" responses and missing data. The sample size differs between items because of exclusion of cases with "not applicable" responses and missing information for individual items. With the exception of the items detailed below (a and b), the exclusion for most items is less than 3%. 
^a The highest proportion of missing cases occurred from FRAL respondents (8.6%) about their ability to help clients reduce or overcome their problems. 
^b FRAL respondents were not asked this statement.

Source: Online Survey of FRSP Staff 2009

3.4.3 Effectiveness of FRSP service delivery

Table 3.21 considers service professionals' views on how their service meets key aspects of service delivery referred to in the policy objectives. Generally speaking, positive responses were made by a large majority of staff with respect to almost all aspects of service delivery. The highest percentage of positive responses came from the early intervention services, the main focus of which is on the prevention of relationship breakdown. FRAL's relatively low rate of "favourable" responses for some issues and possible concerns with respect to strategies to increase father engagement may simply reflect the fact that the brief of the majority of FRAL workers, other than those providing TDRS, is essentially one of information provision and referral. The qualitative data derived from the Qualitative Study of FRSP Staff 2007-08 and 2009, suggest that FRAL workers felt comfortable with respect to their interpersonal engagement with men.

Notes: The response categories were: "strongly agree", "agree", "disagree", "strongly disagree", "can't say/don't know" and "not applicable". "Strongly agree" and "agree" categories are combined in this table. Percentages exclude "not applicable" responses and missing data. The highest proportion of missing cases was for All PSS respondents (25%) for cases where clients were seeking a reconciliation after separation.

Source: Online Survey of FRSP Staff 2009

A majority of staff members in all services except the early intervention services felt that clients had unrealistic expectations about the help their service could provide. The fact that the main work of these services covers post-separation issues may account for this observation. Yet despite this perception, there was strong endorsement among EIS respondents for the services' capacity to assist in issues that have an impact on separation - relationships with former partners, parenting skills and remaining child-focused.

Table 3.22 provides information on the views of FRSP staff about their service's capacity to work effectively with differing types of clients. The table shows the proportion of staff members who assessed their service's capacity in this area as "excellent" or "good". The families with whom respondents were least likely to feel confident in engaging were those from culturally and linguistically diverse (CALD) and Indigenous backgrounds, and for FRAL in particular, people with a disability. In addition, a relatively low proportion of respondents expressed confidence about working with clients from rural or remote areas and those with mental health issues. Relatively high percentages felt they had the capacity to work well with a range of family types and situations that might have traditionally been thought of as potentially challenging (such as same-sex couples and families who reported violence or child abuse). For almost every family type, FRAL staff members were less likely to rate their skill levels as highly as those in the other services.

Notes: The response categories were: "excellent", "good", "average", "poor", "very poor", "can't say/don't know" and "not applicable". "Good" and "excellent" categories are reported together. Percentages exclude "not applicable" responses and missing data.

Source: Online Survey of FRSP Staff 2009

3.5 Family relationship services and Indigenous clients

Providing appropriate services to Indigenous people has been identified as one of the priorities for the FRSP (FaCSIA, 2006).Various strategies have been used to promote the use of family relationship services by Indigenous families. These include outreach programs in remote areas, the employment of Indigenous advisors and practitioners within services and the development of programs within services that are specifically framed around the needs of local Indigenous communities (Armstrong, 2009, FaCSIA, 2007). Similar strategies have been employed in the courts around Indigenous engagement (Akee, 2006; Family Court of Australia & Federal Magistrates Court, n.d.; Ralph, 2006).

This section considers the progress that has been made during the course of the evaluation of family relationship service delivery for Indigenous clients, using data from the:

• FRSP Online database 2006-09;
• Online Survey of FRSP Staff 2009; and
• Qualitative Study of FRSP Staff 2007-08 and 2009.

The section begins with an overview of the extent to which Indigenous people have made use of FRSP services and then focuses on service professionals' views about the factors that affect Indigenous clients' use of their services.

While the data presented in this section provide some information on the use of the family law system by Indigenous Australians, it is important to recognise that the numbers of Indigenous respondents in the surveys is often too small to allow detailed analyses of Indigenous people's experiences of the family law system.

3.5.1 Change in use of FRSP services by Indigenous clients

Section 3.1.1 outlined the proportion of all clients in each of the EIS and PSS types who were Indigenous. The present section, on the other hand, provides information on the extent to which the proportion of FRSP clients who were Indigenous changed over the period 2006-07 to 2008-09.¹⁹ Table 3.23 shows that the proportion of registered FRSP Online clients aged 15 years or over who identified as being of Indigenous origin increased slightly for all service types between 2006-07 and 2008-09, with the exception of FRCs, where the proportion of clients who were Indigenous remained relatively constant across the three years. Over the period investigated, the number of Indigenous people using FRSP services increased by 3,047, from 2,259 in 2006-07 to 5,306 in 2008-09.

As discussed in Section 3.1.1, larger proportions of Indigenous clients were recorded as making use of MFRS and SFVS (8% for both in 2008-09) than other service types. This trend was consistent across the three years of the evaluation. These services also experienced a much greater increase in use by Indigenous clients compared to other services.

Notes: FDR includes RFDR clients. Registered clients without complete data (due to database mismatches) are excluded from this table.

Source: FRSP Online database

3.5.2 FRSP professionals' capacity to work with Indigenous families

As discussed in Section 3.4.3, service professionals who participated in the Online Survey of FRSP Staff 2009 were asked to assess their service's ability to work with Indigenous families. While close to half or more assessed their service's capacity to work with Indigenous clients as good or excellent, respondents were more inclined to provide favourable assessments regarding other groups (Table 3.22). Fifty-six per cent of EIS professionals 63% of PSS professionals and believed they had good or excellent capacity to work with Indigenous families. This view was expressed by 59% of FRC professionals and 47% of FRAL professionals.

3.5.3 FRSP professionals' engagement of Indigenous clients

Data from the Qualitative Study of FRSP Staff 2007-08 and 2009 suggest that many services have been actively working to engage Indigenous clients with their services since the reforms. This was particularly the case for FRCs and other new services. Service professionals interviewed for these qualitative studies described a variety of approaches to engaging Indigenous clients, from inviting Indigenous community leaders to be part of their reference groups and hiring Indigenous advisors and practitioners, to visiting remote Indigenous communities in order to provide outreach services. Active engagement of Indigenous clients was most frequently described by those in services that had received funding for Indigenous outreach and workers.

Perhaps reflecting the relatively small increase in the proportions of clients attending FSRP services, most service professionals spoke of the engagement of Indigenous clients as being a slow process that could not be hurried along or forced. While many of the 2009 interviewees felt that progress had been made in engaging Aboriginal or Torres Strait Islander clients with their service, they believed that there was still much work to be done and that time was needed for trust to develop.

In order to promote the use of their services among Indigenous communities, service professionals consistently spoke of the importance of spending time finding out what support their local Indigenous community may need rather than imposing their own ideas. This approach was not just based on a sense of what is "right", but was also strongly seen as the only approach that works:

We're finding that at the moment for us, we're working on disseminating information, rather than … well, getting our name out there rather than pushing the service as such, so that our community is starting to know more about us and starting to be more comfortable about what we do. (FRC manager, 2009)

It's all around relationship stuff, but I guess what's happened in the past, and what's going to have to happen in the future is just building up that rapport with those communities, and putting it back on them to let them tell us how they'd like us to work. (FRC Indigenous advisor, 2007)

According to several participants in the qualitative studies, a significant barrier to Indigenous clients' involvement, particularly in post-separation services, is the perceived lack of relevance of the family law system by much of the Indigenous community:

I mean, I think it's great to try and keep the dispute out of court, but I think it's largely irrelevant for Aboriginal people, particularly in some communities where surviving life itself is a priority. (FRC manager, 2009)

Conventional approaches to FDR were not seen as being particularly relevant to some Indigenous people, where ideas about family and the responsibility for the care of children are quite different from those assumed within conventional FDR processes:

Aboriginal people's uptake of FDR services is generally less than non-Indigenous people. I always say this quote: "An FDR practitioner was talking to an older Aboriginal man in [a remote area], and the man said to him, 'I didn't get married in a whitefella way, why would I get divorced in a whitefella way?'" I think that sums up lots of Aboriginal people who live in remote areas involvement with the program - that it's not seen as particularly relevant, the FDR service. Again, the conventional family dispute resolution service. (FRC manager, 2009)

Service professionals also reported that family breakdown and family relationships were also seen to be private matters by many members of their local Indigenous communities:

[The perspective of many Indigenous clients is:] "It's family business and we keep it internally and we deal with it ourselves, we don't actually go to other people to ask for help". (FRC manager, 2009)

While employing Indigenous workers was seen as a positive strategy in terms of engaging and working with Indigenous clients, it was also noted by some services that not all Indigenous clients wished to work with an Indigenous worker, particularly in small communities where they may be related:

Some people, even if they don't know [the Indigenous workers], they worry that their business becomes everybody's business … And to be fair, I mean we get that from other clients as well, you know: small town, worried about who will say what. I mean you've got to de-sensitise people to that … But yeah, it is interesting because the kind of thing that we're putting Indigenous advisors in place to provide a culturally appropriate service to Indigenous people, and yet Indigenous people choose not to. (FRC senior practitioner, 2009)

The [Indigenous] worker does some work in the counselling program just with everyday clients, whoever walks through the door, and some of our other counsellors and staff also work with Aboriginal clients. We don't just say, "Righteo, Aboriginal client, go stand over there with the Aboriginal worker", but we make them aware that we have that option. Some people select that because we have it. Some people deliberately don't select it … Some people who see themselves as Aboriginal don't want to access the Aboriginal worker. But then there's a lot of cultural factors in those communities where, you know, just as there are different subgroups, different services are seen to be aligned with different subgroups. (Counselling manager, 2009)

Service professionals also noted that it was important to make sure their practice was appropriate to the needs and sensitivities of Indigenous clients:

We always screen for violence. But the thing is, initially we used the forms that were developed by [name of FRC]. But there was a lot of feedback from Aboriginal clients that they were really inappropriate, that the phrasing was inappropriate, and that they felt it was intrusive and they just invoked a sense of shame; you know, like, "Is there domestic violence?" So what we do here is, we'll say, "Are there any concerns for your safety? Are there any concerns for your children's safety?" So just that reframing stuff … "Was there ever a time when you felt unsafe?" And again, just the basic [Violence Restraining Order] questions, I mean they're quite straightforward. (FRC manager, 2009)

In summary, many service professionals reported actively working to engage Indigenous clients with their services. However, they acknowledged that there are potential barriers. There was a strong sense of optimism that, with appropriate strategies such as having culturally appropriate service models and practitioners in place to support the involvement of Indigenous clients in their services, in time these barriers could be overcome. However, a powerful theme from these interviews is that this process cannot be rushed, as attempting to push their way into communities without building trust is likely to result in a loss of engagement in the longer term.

3.6 Client satisfaction

This section explores the effectiveness of family relationship services in meeting the needs of families, based on the views of service users, using data from the GPPS 2009. Parents participating in the GPPS 2009 who had used services were asked whether they would recommend the service to others in similar circumstances. The question involved a simple "yes" or "no" response.

3.6.1 Recommending services to others

Over 80% of parents whose relationship had never been in trouble and who had used services to support their relationship said that they would recommend the service to others in similar circumstances (Table 3.24).

Notes: There were too few respondents in the survey who attended a FRC to allow statistically reliable estimates to be produced for fathers and mothers separately.

Source: GPPS 2009

In addition, over 70% of non-separated parents who had used services to help resolve relationship problems said that they would recommend the service to others (Table 3.25). The parents who were most inclined to say that they would recommend the service they used to others were those who had attended marriage guidance or had consulted religious leaders/elders (84%). Those who used an FRC were least likely to indicate that they would recommend this service to others (73%).

While 64-72% of all separated parents who had used services to attempt to resolve relationship problems prior to separation said that they would recommend the service to others (Table 3.26), these proportions were lower than those for parents who used services and remained together (73-89%) (Tables 3.24 and 3.25).

Table 3.27 considers the extent to which separated parents would recommend this same range of services to assist in negotiations after they had separated. FRCs and counsellors were recommended most often, but lawyers and GPs were also frequently recommended.

Notes: There were too few respondents in the survey who attended a FRC to allow statistically reliable estimates to be produced for fathers and mothers separately.

Source: GPPS 2009

Notes: There were too few fathers in the survey who used a lawyer or religious leader/elder to allow statistically reliable estimates to be produced for fathers.

Source: GPPS 2009

Notes: There were too few fathers in the survey who used these services (apart from lawyers) to allow statistically reliable estimates to be produced for fathers.

Source: GPPS 2009

3.6.2 Effectiveness of service delivery

The Survey of FRSP Clients 2009 asked respondents to rate a range of aspects of their experience with the service they attended. Ratings from which the respondent could choose were: "excellent", "very good", "good", "fair" or "poor". Respondents could also say that the particular aspect of the service was not applicable to them. Ratings of "excellent", "very good", "good" are hence classified as "favourable" ratings. The aspects of the services asked about were the:

• waiting time to get an appointment at the service;
• affordability of the service;
• extent to which everyone was treated fairly (no one took sides);
• ability of the service to provide clients with the help they needed; and
• overall quality of the service.

Table 3.28 indicates that each issue (taken separately) was rated favourably by most respondents across all service types. The proportion of clients rating waiting times favourably was lowest for POPs (62%), FDR services (65%) and FRCs (66%). For other types of services, waiting times were rated favourably by around three-quarters or more of parents, with a highest level of satisfaction being for EDST (89%), SFVS (86%) and MFRS (85%).The waiting times were rated more favourably for the early intervention services than for the post-separation services (with the exception of CCS).

Notes: "Not applicable" responses were excluded in calculating the percentages reported. 
^a Number of respondents for each aspect of the service varies depending on percentage of "not applicable" responses. The number of respondents reported here is for the first item above (satisfaction with waiting time).

Source: Survey of FRSP Clients 2009

The service type for which the lowest proportion of clients provided favourable ratings of affordability was FDR (67%), followed by counselling (76%). This probably reflects the fact that FDR and counselling routinely charge for the services provided. Some FRC services are free, including the first 3 hours of FDR, information referral and preparation for FDR.

Perhaps not surprisingly, a very high proportion of clients of the early intervention services considered that these services had treated everyone fairly. The lowest level of agreement that everyone was treated fairly was provided by clients of FDR services and FRCs (73% for each service).

The area in which clients were least satisfied was in the ability of the service to provide them with the help they needed, particularly for post-separation services and particularly for FRCs and FDR services (56% and 54% respectively providing favourable ratings).

While the majority of clients rated the overall quality of the services favourably, FRC and FDR clients were the least satisfied with the overall quality of the service they had attended (70% of FRC clients and 68% of FDR clients provided favourable ratings, compared with 82-94% of clients of other services).

Taken as a whole, these client satisfaction ratings are quite positive, particularly when it is considered that a substantial proportion of clients have mental health issues, substance misuse issues, and/or a highly conflictual relationship with the other parent, or there are violence issues or safety concerns (see Chapter 2), all of which tend to make it more challenging for services to meet the needs of a client.

Table 3.29 summarises clients' ratings of the aspects of their experience with early intervention services for the following groups: (a) mothers with resident children, (b) fathers with resident children, (c) fathers with non-resident children, (d) other women, and (e) other men. Across all the groups, clients rated all aspects of the service delivery favourably. Except in relation to affordability, fathers with non-resident children were a little less inclined to provide favourable ratings, although the majority viewed these issues favourably. The "other men" and "other women" were the most inclined of the five groups to view the service they had used in a favourable light.

Source: Survey of FRSP Clients 2009

Table 3.30 provides information on clients' ratings of the aspects of their experience with post-separation service for the following groups: (a) mothers with resident children, (b) fathers with resident children, and (c) fathers with non-resident children.²⁰ Fathers with resident children who used post-separation services were a little less likely to rate each of the aspects of the service delivery favourably than mothers with resident children. Fathers with non-resident children were the least likely to rate the ability of services to meet their needs favourably and to rate waiting time and the overall quality of the service favourably. Nonetheless, two-thirds of these fathers provided a favourable rating of the overall quality of the service. It is clear from this table that waiting time is an issue for a significant minority of clients. It is also clear that, while the overall quality of the service was rated positively by between two-thirds and almost three-quarters of these parents, and fairness was rated positively by an even greater proportion, considerably fewer (between 51% and 60%) felt that the service was able to provide them with the help they needed. This again reflects the complexity and often extended nature of issues faced by many separating families.

Source: Survey of FRSP Clients 2009

3.7 Summary

This chapter has addressed the patterns of use and effectiveness of the new and expanded family relationship services, as well as the extent to which service use has altered since the 2006 changes to the family law system. In addition, the chapter also examines what, if any, changes were apparent with respect to separated parents' expectations of consulting a lawyer and the use of family relationship services by Indigenous clients.

The average age of clients using the early intervention services was similar to the average age of those using post-separation services. The main differences in age were that clients at EDST services were somewhat younger and those using counselling services were somewhat older.

For early intervention services, about half the clients for the SFVS were male, about two-fifths of the clients for counselling and EDST services were male and the majority of the MFRS clients were male (81%). For all of the post-separation services, about half the clients were male and half female. There was little difference in the proportion of clients who were born outside of Australia across service types.

The services with the largest number of clients were counselling services (101,214 clients), FRCs (60,199 clients) and EDST (49,593 clients). The services with the smallest number of clients were POPs (8,194 clients) and SFVS (6,906 clients). There was an increase in the number of clients for all FRSP services types over the period 2006-07 to 2008-09. In percentage terms, the increase was greatest for FRCs (336% increase). The growth in the number of clients accessing services was expected given that the number of services increased over the three years (including the FRCs).

Over the same period, the total number of FRAL calls dropped by 17%, although between 2007-08 and 2008-09, the number of TDRS incoming calls rose by 307%. The number of FDR cases handled over this period also increased almost fivefold, although only off a fairly low base of 112 cases in the first year.

The number of inbound calls to Mensline dropped by 20% and the number of answered calls dropped by 5%. On the other hand, the number of outbound calls, including Call Back Service calls, increased by 45%, suggesting a change in the way in which Mensline provides its service.

Clients who attended early intervention services did so for a range of reasons. The majority of clients who attended counselling services did so to sort out relationship problems, but about 18% did so to address personal problems, while 9% used these services to sort out issues around their children post-separation. Most clients attending post-separation services did so mainly to sort out issues about their children after a relationship break-up or separation.

There is significant use of services (a little over 50%) by parents in non-separated families to assist them in resolving problems, but there is less use of services (13%) for the more preventative purpose of supporting relationships in which there had not been problems. Relationship counsellors, and GPs/health professionals feature prominently as service providers for parents in non-separated families. FRCs are also used, as are religious leaders/elders, especially for supporting relationships.

There was also extensive contact with or use of services by parents who separate. Prior to the reforms, the most commonly contacted separation-related services in order of frequency were lawyers, followed by counselling and dispute resolution support, legal services and then the courts. After the 2006 reforms, the most commonly contacted services in order of frequency were counselling and dispute resolution support, followed by lawyers, the courts and then legal services. Contact with courts dropped from 40% pre-reform to 29% post-reform. Following the 2006 changes, however, a greater proportion of parents thought it was important to consult a lawyer if they were thinking of separating. This may reflect the fact that the reforms themselves were new and may also have generated a greater level of legal uncertainty.

These data could be explained by the fact that, as time passes (the pre-reform parents had been separated for considerably longer), the more difficult and entrenched cases increasingly "drift" towards legal services and courts. On the other hand, there is some evidence that fewer post-separation disputes are being seen primarily as legal problems requiring legal interventions, while a greater proportion of disputes are being primarily associated with the resolution of difficulties in managing post-separation relationships.

Though the data cannot be seen as being conclusive at this point, there is a suggestion nonetheless of a modest culture shift with respect to use of services and the courts. This observation is further reinforced by evidence suggesting quite significant increases in the use of FRSP services between 2006 and 2009. The extent to which this represents a true culture shift away from dependence on legal processes will become clearer when the data from Wave 2 of the LSSF are examined.

It is clear that those using family relationship services were much more likely than those not using services to have reported the experience of some form of family violence, mental health problems or drug and alcohol issues, as well as distant, conflicted and even fearful relationships. In addition, service users who had separated were much less likely to report their current inter-parental relationship as being cooperative. In other words, post-separation services appear to be attracting family members who have significant relationship difficulties.

The majority of clients across all services had either one or two presenting needs. The proportion with five or more presenting needs varied from 24% at FRCs to 6% at EDST, reinforcing data reported in Chapter 5 and elsewhere that FRCs seem to be dealing with a proportion of highly complex situations.

Service professionals were generally confident about their capacity to work with different family types. However, language and cultural barriers were seen to be a problem by a considerable number of staff. This is likely to reflect the reality that many services are simply unable to cover the range of languages in their area except through interpreter services. Family relationship service professionals expressed a commitment to working sensitively and effectively with Indigenous clients. Many also emphasised the fact that it necessarily takes time and repeated contacts to earn the trust and confidence of Indigenous clients.

Service professionals rated the capacity of their organisations to deliver relevant services as being generally high, though at the same time, a majority of post-separation professionals felt that clients have unrealistic expectations about how the service can help them.

Satisfaction rates with early intervention services were high on all measures, with large majorities of clients being willing to recommend them to others. Post-separation services were less favourably rated on a number of dimensions, but FRCs and FDR services still attracted overall favourable ratings by a majority of clients.

Most clients who used services to support relationships or resolve the relationship problems would recommend the service to others. The fact that FRCs and GPs/health professionals were endorsed a little less often as services to resolve relationship problems suggests that this is not seen as the main function of these services. FRCs were endorsed most often with respect to assisting in negotiating with the other parent over post-separation children's matters. On the other hand, the ability of FRCs and FDR services to provide clients with the help they needed was rated lower than other face-to-face FRSP services. This seemingly contradictory finding perhaps reflects the inherent difficulty of the main work being done by these services. In many cases, the problems presented by separated parents in dispute over their children are manifold. And in many cases, the issues confronting these family members and their practitioners do not suggest immediate or simple solutions.

4. Pathways towards parenting arrangements

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This chapter examines the pathways used by separated parents, both pre- and post-reform, to access both early intervention and post-separation services to sort out their parenting arrangements. It is relevant to policy objective 4 of the 2007 Evaluation Framework (Appendix B) concerning the availability of a highly visible entry point that operates as a doorway to other services. Data for the analyses were collected from the Longitudinal Study of Separated Families Wave 1 2008 (LSSF W1 2008) and the Looking Back Survey (LBS) 2009.

The evaluation looks at separated parents who had either already sorted out their parenting arrangements or were in the process of doing so, and which services clients had used to: a) sort out parenting arrangements, b) resolve relationship issues, c) address personal issues, and d) resolve grandparenting issues.

It also examines the referral pathways and processes used where there were reports of family violence, as well as separated parents' satisfaction with the process of reaching agreement about parenting, both pre- and post-reform. Finally, pathway coordination and referrals by service providers and legal system professionals are considered.

4.1 Negotiating and deciding parenting arrangements after separation

4.1.1 Main pathways used to sort out parenting arrangements

Information on the main pathways used by those who had sorted out their parenting arrangements pre-reform comes from the LBS 2009. Information on the main pathways used by those who had sorted out their parenting arrangements post-reform comes from the LSSF W1 2008 sample. The pre-reform information was collected between 4 and 5 years after separation, whereas the post-reform information was collected, on average, 15 months after separation. The former may be subject to a greater level of recall error.

• Among parents who separated after 1 July 2006:¹
• most parents (71% of fathers and 73% of mothers) reported that they had sorted out their parenting arrangements for the focus child;
• 19% of fathers and 16% of mothers indicated that they were in the process of doing so; and
• 10% of fathers and mothers reported that nothing had been sorted out.²

Both pre- and post-reform, the majority of respondents saw "discussions between themselves" as the key driver of post-separation parenting decisions (Table 4.1). A substantial minority of parents said that their parenting arrangements "just happened". The proportion of parents who said that the arrangements were mainly arrived at through discussions or they "just happened" increased from 71% pre-reform to 81% post-reform. There was a corresponding decrease in the proportion of parents who said that lawyers or courts were the main family law pathway employed to sort out parenting arrangements, from 18% pre-reform to 9% post-reform. There was little change in the proportion of parents saying that using counselling, mediation or family dispute resolution (FDR) were the main ways in which they sorted out their parenting arrangements.

Notes: a Pre-reform information relates to parenting arrangements sorted out in the year of the separation. Data have been weighted. Percentages may not total 100.0% due to rounding.

Source: LSSF W1 2008 and LBS 2009

Table 4.2 provides information on the main pathways being used by parents who separated post-1 July 2006 but who were still in the process of sorting out parenting arrangements at the time of the survey. There is evidence of a higher rate of use of services by these parents as their main dispute resolution or decision-making pathway when compared with parents who separated post-1 July 2006 who had already sorted out parenting arrangements. There was less use of informal discussion/processes (although this remained easily the largest main pathway), more use of counselling/mediation, and more use of lawyers and the courts as the main pathway towards sorting out arrangements.

Notes: Percentages may not total exactly 100.0% due to rounding. Data have been weighted.

Source: LSSF W1 2008

4.1.2 Types of services used to sort out parenting arrangements

Table 4.3 provides information on the extent to which separated parents who had sorted out their parenting arrangements used multiple service types. The table also provides information on the extent to which those whose main pathway towards resolving parenting arrangements was discussion with the other parent or for whom it just happened also made use of these services.

A significant minority of post-reform parents who settled matters mainly through discussions or for whom it just happened (44% and 48% respectively) did not use relationship services, lawyers or the courts (Table 4.3). This represents 37% of the total number of separated parents for whom matters were resolved. The remainder of both the discussions and just happened groups each made use of an average of 1.8 service types (11% making use of three or more services). The service types most frequently used by both these groups were counselling, mediation or FDR, followed by lawyers.

Source: LSSF W1 2008

Two-thirds (67%) of those who nominated lawyers as their main pathway to resolving matters also used counselling or other relationship support services, and a little over half also used the courts. About three-quarters of those who nominated counselling, mediation or FDR as their main pathway to resolution also made use of lawyers, while about a third also made use of the courts. Those who nominated the courts as their main pathway towards resolution also made considerably more use of other services than any other group. These parents were likely to have been experiencing a higher degree of complexity with respect to their families or their disputes.

The key finding from this table is that by far the largest group of post-reform separated parents who had resolved matters did so mainly through discussions with each other. But almost 38% of this group also reported using counselling, mediation or FDR, while just over 31% reported using a lawyer. Similarly, 30% of those for whom the resolution just happened had also made use of counselling, mediation or FDR, while 28% had also used a lawyer.

Table 4.4 provides a similar analysis with respect to those post-reform parents who at the time of the survey were still in the process of sorting out parenting arrangements. For those parents who were still in the process of settling parenting matters mainly through discussions or for whom things mainly just happened, roughly a quarter (26% and 22% respectively) had made no use of the services listed or the courts. The remainder of the discussions group made use of an average of 2.1 service types (23% used three or more service types), while the remainder of the just happened group made use of an average of 2.3 service types (29% used three or more service types). Compared with those parents who had sorted out their parenting arrangements, parents who were still in the process of sorting out arrangements made greater use of almost all services and the courts.

Source: LSSF W1 2008

Of parents who were in the process of sorting out parenting arrangements and who nominated lawyers as their main pathway to resolving matters, 85% also used counselling or other relationship support services, compared to 67% for parents who had sorted out parenting arrangements. In addition, a little under half of those who had used a lawyer said they were using the courts (47%), slightly fewer than was the case in the group who had sorted out their arrangements. Just under three-quarters (73%) of the group who were still sorting out arrangements who nominated counselling, mediation or FDR as their main pathway also made use of lawyers, while 28% made use of the courts (similar to the pattern reported by parents who had sorted out arrangements). In addition, those who nominated the courts as their main pathway towards resolution also made considerable use of other services (an average of 3.7 services), as was the case with the parents who had sorted out parenting arrangements (3.5 services).

Considered together, Tables 4.3 and 4.4 reveal a pattern of quite extensive service use by a majority of those parents who had sorted out parenting arrangements, even among those who reported their main pathway towards resolution as being discussions between themselves or for whom it just happened. For those who were still sorting things out, roughly three-quarters of those whose main pathway was discussions or for whom it just happened made some use of services. In addition, the percentage of significant service use (three or more service types) by this group was more than double that of parents who had already sorted out their parenting arrangements.

Community-based services and lawyers were important for a significant minority of parents who had sorted out arrangements, and for more than half of those who were still sorting matters out. For both groups, there was considerable overlap in the use of community-based services and lawyers.

Although a little over half the total sample of post-reform parents had made some use of counselling or dispute resolution services, a much smaller percentage - especially among those who had sorted out parenting arrangements - reported these processes as being their main pathway towards resolution or decision-making. This possibly suggests that while some parents regard dispute resolution and related services as playing an important role in the management of issues that are not sorted out reasonably quickly, the majority see these services as adjunct to their resolution or dispute management process.

It is possible that most parents, including those who use FDR and similar services, believe that the "work" of sorting out parenting arrangements mainly requires the efforts they make themselves. If this were the case, such a perception would be consistent with placing the primary service delivery emphasis on client self-determination, a philosophy that underpins community-based counselling and community-based mediation theory and practice. Such an interpretation, if correct, does not diminish the importance that FDR may play in the overall management of the dispute. We revisit this issue in Chapter 5, which focuses more specifically on FDR.

Finally, this section provides information on the predictions of the 10% of post-reform parents who reported at the time of the survey that nothing had been sorted out. Table 4.5 reveals that up to 28% of fathers and up to 22% of mothers were unable to make a prediction about how matters would be resolved. Roughly equal percentages of the other fathers in this group believed that arrangements were likely or not likely be sorted out, with no particular pathway being seen as significantly more or less helpful in this regard. Mothers who made a prediction were considerably more pessimistic, with more than half believing that sorting things out was unlikely or very unlikely via all pathways except discussions. Although no pathway towards settlement clearly stood as the preferred one, having discussions was the method most favoured by both mothers and fathers.

Source: LSSF W1 2008

4.2 Referral pathways

4.2.1 Referral pathways to Family Relationship Services Program services

Referral pathways provide insight into the extent to which the family law system is operating in a coordinated way. This section provides information on the referral pathways operating within the family law system after the 2006 reforms and the changes to the service sector.

Table 4.6 provides information from the Survey of Family Relationship Services Program (FRSP) Clients 2009 on their reported referral pathways to early intervention and post-separation services.³ Early intervention services (EIS) include Specialised Family Violence Service (SFVS), Men and Family Relationships Service (MFRS) and Education and Skills Training Services (EDST). Post-separation services (PSS) include FRCs, FDR services, Children's Contact Services (CCS) and the Parenting Orders Program (POP).

Doctors (general practitioners [GPs])/health professionals were the most frequent referral gateway into early intervention services, generally followed by mediator/counsellors, telephone help lines (such as Parentline or Lifeline), FRCs and lawyers.

Doctors/health professionals, mediator/counsellors, and lawyers/legal aid were major referrers into FRCs and FDR services. For CCS and the POP, telephone services, other FRCs and domestic violence services were also major referrers. Not surprisingly perhaps, domestic violence services and courts also referred relatively often to Children's Contact Centres and the Parenting Orders Program.⁴ Courts (such as the Family Court of Australia [FCoA]) were also among a "second tier" of referrers to FRCs and FDR, as were telephone help lines and other FRCs. Family Relationships Online (FRO) had the lowest referral rates for all services.

Note: Clients could report being referred by multiple services and therefore column percentages sum to more than 100%

Source: Survey of FRSP Clients 2009

Table 4.7 provides information on the extent to which clients of FRSP early intervention services (SFVS, MFRS, counselling, and EDTS) had attended a range of other services prior to attending the early intervention service. Information is also provided on the extent to which early intervention service clients who had attended other services were referred to that early intervention service by those other services.

Source: Survey of FRSP Clients 2009

A little under half (44%) of the SFVS clients who responded to the survey had also visited doctors or health professionals for the issue they brought to the SFVS. The same proportion had used mediators/counsellors. Telephone help lines had been used by 44% (FRAL and other telephone services), domestic violence services by 21% and an FRC by 19%. Lawyers and courts had been used by 18% and 16% of the respondents respectively.

Somewhat lower percentages but similar patterns of previous service use (with the exception of domestic violence service) were observed among the MFRS clients who responded to the survey. In this case, 42% had visited a doctor/health professional, while 31% had made use of a mediator/counsellor. Telephone help lines other than FRAL were again the next most common service to be used (26%). An FRC was used by 19% of these respondents, while lawyers and courts were used by 18% and 11% respectively. MFRS clients were also the most likely group to make use of a religious leader/elder (15%).

The pattern of previous service use is similar for counselling service clients, but again at lower average rates. Doctors/health professionals were used by 34%, mediators/counsellors by 23%, telephone help lines by 13%, lawyers by 10% and an FRC by 9%.

As EDST services are primarily aimed at prevention, it is perhaps not surprising that the 599 clients who had used EDST had not attended other services frequently for the issue(s) they were dealing with, though they used the largest range of services (average of 18). Mediators/counsellors (13%), religious leaders/elders (13%) and doctors/health professionals (12%) were the most common services attended by these respondents.

Table 4.8 provides information on the extent to which clients of FRSP post-separation services (FRC, FDR, CCS and POP) had attended a range of other services prior to attending the post-separation service. Information is also provided on the extent to which post-separation service clients who had attended other services were referred to the FRSP post-separation service by the other services attended.

Among FRC or FDR clients who responded to the survey, around half had also seen a lawyer/legal aid, about a third had also used a counsellor/mediator, and about a quarter had visited a doctor/health professional. Roughly a sixth had used the courts, an FRC, a telephone help line or FRAL.

Courts and lawyers/legal aid feature very prominently as services used by those who attended CCS and the POP, as do mediators/counsellors and FRCs. Doctors/health professionals, domestic violence services and telephone help lines were also accessed by roughly a quarter of those using CCS and POP.

Source: Survey of FRSP Clients 2009

4.2.2 Referrals from the Family Relationships Advice Line

This section focuses on FRAL, which was designed as a key early gateway for information and advice about and referrals into the family law system. Information on how referrals led to FRAL and where callers to FRAL were referred for 2006-07, 2007-08 and 2008-09 is provided in Table 4.9.⁵

Note: Percentages are greater than 100.0% as more than one referral was made in some cases.

Source: FRAL Call Management System Data 2006-09

The largest category of referrals to FRAL recorded across the three years (a little over a fifth) came via people becoming aware of FRAL through the media, suggesting that the service has been well publicised. The Child Support Agency (CSA) was the second most commonly reported referral source, constituting roughly 10% of those referred each year. After CSA, courts and tribunals were the next most frequent source of referral (between 6% and 7%), followed by family and friends (between 5% and 7%).

The relatively high rates of referral to FRAL provided by the CSA reflect arrangements between FRAL and CSA for the CSA to transfer to FRAL those callers who indicate they have some issues regarding post-separation parenting.⁶

In terms of referrals outwards, for the first year of its operation, FRAL referred most often to legal services/practitioners (17%), then to FRCs (10%), dispute resolution services (11%), counselling (6%) and courts or tribunals (5%). But unlike referrals to FRAL, referrals from FRAL changed over time to reflect a greater emphasis on community-based services, especially FRCs (from 11% in 2006-07 to 26% in 2008-09), and a somewhat lower rate of referrals to lawyers (down from 17% to 13%) and courts (from 5% to 3%).

The increase in referrals to FRCs was probably a result of FRCs becoming more available during this period (from 15 in 2006-07 to 40 in 2007-08 and 65 in 2008-09).⁷ It may also be linked to the fact that after July 2007, FDR parents were required to attend FDR before filing a court application, except in certain circumstances, such as cases in which there were concerns about violence.

It is clear that FRAL is an important gateway into the family law system. Direct observations of the work of information officers by the evaluation team also suggest that calls are handled competently and with sensitivity. The large number of callers to FRAL, especially in its first year of operation, means that even small percentages of referrals to and from FRAL translate into substantial numbers of clients. The decreasing (though still substantial) numbers of callers over the three-year period may indicate that FRAL was an especially important gateway in the early days of the changes to the family law system. It is possible that since then information about the reforms has been more widely distributed.⁸ In addition, as services such as FRCs have become more established and better known, and as family pathway networks have become better established, some referral protocols may have become more localised.

In addition, despite the fall in absolute numbers of callers over the three years, the data show an increased proportion of outward referrals being directed to FRCs. Although this trend is consistent with the aims of the reforms, caution must be exercised with respect to any conclusions reached, due to the significant number of callers for whom the referral pathway is unknown.

4.2.3 Referrals and reasons for attending a service

This section examines whether the types of services attended by clients prior to attending an FRSP service differ according to the reason for attending the service. The reasons for attending that are considered in this evaluation are: sorting out parenting arrangements, resolving relationship issues, and personal/other reasons. Just over half (55%) of the clients who had used an FRSP service to sort out parenting arrangements had also consulted a lawyer/legal aid service, while over a third (36%) had used a mediator/counsellor, a little over a quarter (27%) had made use of a court, and the same proportion had visited a doctor/health professional (Table 4.10). FRCs (20%), telephone help lines (19%) and FRAL (16%) had also been reasonably frequently used by these clients.

Notes: ^a Respondents were asked to indicate what best described the main reason for attending the service. The reasons listed were: sort out issues about your children after a relationship break-up or separation, sort out issues about seeing your grandchildren, sort out general family relationship issues (with your spouse, former spouse, children or other family members), deal with personal problems, and other: specify. 
^b Respondents who indicated they had been to another service/other services prior to attending the service the survey was primarily asking about were asked: "Did the [service client attended before the survey service] refer you to or suggest you go to this [service]?" Only those respondents who indicated that they had previously gone to another service were asked about each of these other services.

Source: Survey of FRSP Clients 2009

The pattern of prior service use for clients who were aiming to resolve relationship issues or address personal/other issues was somewhat different. Those whose purpose was to resolve relationship issues were most likely to have consulted a doctor/health professional (29%) or a mediator/counsellor (28%). However, 17% had also consulted a lawyer/legal aid, while 15% had used a telephone help line and 12% had been to an FRC. Those who had accessed services for personal/other reasons were also most likely to have had prior contact over the issue with a doctor/health professional (20%), a mediator/counsellor (13%), or a religious leader/elder (11%).

There frequently appeared to be a link between having used a service and having been referred by that service. For example, doctors/health professionals consistently referred clients to other services at least half and up to three-quarters as often as they themselves were accessed. Referral implies that another service may have something to add to the service already being provided. In cases in which clients were sorting out parenting arrangements, a relatively small proportion of lawyers referred them to other services, and when the issue was a personal/other reason, a relatively small proportion of religious leaders/elders made referrals. This probably reflects the fact that referrals are less likely when the professionals see the issue as being within their own area of expertise.

4.2.4 Location of mediation or FDR pre- and post-reform

Information was collected as part of the LBS 2009 on where mediation or FDR took place for parents who separated before the 2006 changes to the family law system. The locations are categorised as mediation services, through a lawyer, court or other location. The LSSF W1 2008 provided information on the location of FDR for parents who separated after the 2006 changes. The main locations are categorised as: FRCs, legal aid, lawyer, court, or private counsellor/counselling service. A range of other locations that were less often reported were also coded. Table 4.11 provides detailed information on the locations coded in the data.

Notes: ^a Parents who had attempted FDR or mediation and reported that parenting arrangements for the focus child were mainly through a counselling, mediation or dispute resolution service were asked: "Where did this mediation or dispute resolution take place? At a lawyer, court or mediation services?" Parents could provide multiple responses. Thus, the sum of percentages may exceed 100%. 
^b Parents who said that they and the other parent attempted FDR or mediation were asked: "Was this at a Family Relationship Centre or somewhere else?" The results presented include recoding of the verbatim responses. Data have been weighted.

Sources: LBS 2009 and LSSF W1 2008

The pre-reform data on the location of mediation or FDR are from parents who said that parenting arrangements were mainly sorted out through counselling, mediation or dispute resolution. The post-reform data refer to the location at which FDR or mediation took place whether or not the parenting arrangements had been sorted out.

Prior to the 2006 changes to the family law system, the most common location at which FDR or mediation took place was in community-based mediation services (63%), followed by significantly smaller proportions in the court (21%) or with a lawyer (13%).

Among parents who separated after the 2006 reforms and who attempted mediation or FDR, 63% said that it took place at FRCs. This is very similar to the proportion of parents saying that mediation took place within a mediation service prior to the 2006 changes. Post-reform, parents reported that mediation took place through lawyers or legal aid 8% of the time (compared with 13% in the pre-reform sample) and through the court 3% of the time (compared with 21% in the pre-reform sample).⁹

Most of the other responses that could be coded fell into the categories of counselling/psychology or other health and welfare-based services. Two categories (over the phone and private mediation) were more ambiguous with respect to the nature of the service being provided. These services could have been provided by a lawyer or by a relationship or health professional. It is important to note that these questions were asked slightly differently across the two studies; therefore caution must be exercised in attributing any differences between them to the pre-reform and post-reform legislative environment.¹⁰

In summary, for those who reported the resolution of post-separation disputes over children, the data do suggest a significant shift away from court-based mediation/FDR services and towards community-based mediation/FDR and related services following the reforms. Such an interpretation would be consistent with the onward referral data from FRAL presented in Section 4.2.2.

4.3 Pathways and family violence

This section examines the relationship between the main pathway used to sort out or attempt to sort out parenting arrangements, and the reporting of physical hurt or emotional abuse.

Of the post-reform separated parents who had sorted out their parenting arrangements, a total of 17% reported physical hurt prior to or during separation and 35% reported emotional abuse alone. Table 4.12 shows that, compared with parents who used discussions to sort out their parenting arrangements or for whom it just happened, those who sought assistance from courts, lawyers or counselling/mediation/FDR were much more likely to have reported some form of physical hurt or emotional abuse.

Notes: ^a Includes parents who reported other pathways. Percentages may not total exactly 100.0% due to rounding.

Source: LSSF W1 2008

For those who nominated the courts as their main pathway, the percentages reporting physical hurt and emotional abuse were high (48% and 43% respectively). Among those who used lawyers and counselling/mediation/FDR as their main pathway, a lower percentage reported physical hurt and emotional abuse. While the rates of family violence were highest for parents whose main family law pathway was a formal one, a large majority of parents used informal pathways ("discussions between themselves" or "nothing specific, it just happened"). Parents using these informal pathways as their main dispute resolution route had lower rates of family violence.

Table 4.13 shows a similar pattern for those still in the process of sorting out parenting, with those mainly using courts, lawyers and counselling/mediation/FDR, in that order, being more likely to report physical or emotional abuse. At the same time, compared with the group who had sorted out arrangements, these parents reported elevated levels of physical hurt for all pathways (especially for those who had discussions or for whom it just happened). And except for those who used mainly lawyers, these parents also reported elevated levels of emotional abuse.

Note: Percentages may not total exactly 100.0% due to rounding.

Source: LSSF W1 2008

Table 4.14 summarises the data regarding the extent of family violence experienced by parents at various stages of sorting out parenting arrangements. It is clear that mothers generally reported violence, especially physical violence, more often than fathers. It is also clear that matters were much more likely to be sorted out when there had been no family violence reported.

A history of physical or emotional violence is not necessarily a barrier to sorting things out, but respondents who reported that they were still in the process or that nothing was sorted out were twice as likely to also report physical violence.

Source: LSSF W1 2008

The Survey of FRSP Clients 2009 asked respondents whether they had experienced family violence.¹¹

Across all post-separation services, the majority of clients reported having experienced family violence (physical violence or emotional abuse), with only a minority of clients not reporting having experienced some form of family violence (Table 4.15). This is true for both female and male clients, although female clients were more likely to report having experienced family violence than male clients. Female clients were more likely to report having experienced physical violence, particularly those using the CCS and POP services.

Female CCS clients were the most likely to report having experienced physical violence (64%), followed by female POP clients (54%). A smaller proportion of female FRC and FDR clients (30% and 27% respectively) reported having experienced physical violence.

While many female and male early intervention services clients reported having experienced family violence, the proportion reporting family violence was much lower than that of post-separation services clients.

Notes: The sample size for SFVS was too small to allow statistically reliable estimates when the data is split by gender, so SFVS respondents were excluded from the table. Percentages may not total exactly 100.0% due to rounding.

Source: Survey of FRSP Clients 2009

Table 4.16 provides information on the relationship between referral pathways and reports of having experienced family violence for post-separation services clients. The main points to be taken from this table are that:

• clients referred by courts were the most likely to report having experienced physical violence; and
• there is relatively little difference in the extent to which clients report having experienced physical violence for the other referral pathways.

Notes: Table excludes clients who used services for personal or other reasons (they were not asked about experience of abuse). Percentages may not total exactly 100.0% due to rounding. 
^a Referral pathways include: "other telephone service", "domestic violence service", "other mediator/counsellor (or similar)". 
^b Referral pathways include: "FRO", "religious leader/elder" and "other service".

Source: Survey of FRSP Clients 2009

Table 4.17 provides information on the relationship between referral pathway and reports of having experienced family violence for clients of early intervention services. Referrals included between 22% and 33% of clients who had reported physical violence. Similarly, all referrals included between 36% and 49% of clients who had experienced emotional abuse without physical violence. Courts were considerably more likely to refer cases with a form of reported violence than any other referral category.

While the overall rates of family violence reported by early intervention services clients were lower than those reported by post-separation services clients, this appears to have been largely driven by the much lower rate of family violence reported by clients who did not indicate a referral pathway (i.e., were self-referred). The rates of family violence reported by clients who were referred to early intervention services were not dissimilar to those reported by post-separation services clients.

Notes: Table excludes clients who used services for personal or other reasons (they were not asked about experience of abuse). Percentages may not total exactly 100.0% due to rounding. 
^a Referral pathways include: "other telephone service", "domestic violence service", "other mediator/counsellor (or similar)". 
^b Referral pathways include: "FRO", "religious leader/elder" and "other service".

Source: Survey of FRSP Clients 2009

4.4 Satisfaction with pathways

This section addresses questions of client satisfaction with the varying dispute resolution and decision-making pathways. Respondents to the LSSF W1 2008 were asked how various aspects of the process used to sort out their parenting arrangements worked. Parents were asked to indicate their views about the following statements:

• The process worked/is working for you.
• The process worked/is working for the other parent.
• The process worked/is working for the child.
• The result was what I expected.
• I had an adequate opportunity to put my side forward.
• The other parent had an adequate opportunity to put her/his side forward.
• The child's needs were adequately considered.

Table 4.18 describes the extent to which post-reform separated parents agreed or strongly agreed with a range of statements about the process of reaching a parenting agreement, according to whether they had sorted out the parenting arrangements or not. A large majority of post-reform parents who had sorted things out felt that the process they had used had been satisfactory with respect to key areas such as how it worked for them, for their former partner and for their child(ren). There was a much less positive response from those who were still working things out. Assessments of these dimensions did not vary greatly by gender, although fathers were more likely than mothers to see the process as working for the other parent - especially in the group still working things out.

Notes: Parents who volunteered "don't know" were treated the same here as those who responded "disagree", "strongly disagree" or "neither agree or disagree". Data have been weighted.

Source: LSSF W1 2008

Table 4.19 reports on similar data from the pre-reform sample of parents. The information relates to the process used to sort out parenting arrangements in the year they separated. Parents were asked for their views on a smaller number of aspects of the process:

• The process worked for you.
• The process worked for the other parent.
• The child's needs were adequately addressed.

Compared with the post-reform respondents, a smaller percentage of pre-reform parents (72%) felt that the main processes they used worked for them or that the child's needs were adequately addressed (77%). At the same time, pre-reform respondents reported as often as their post-reform counterparts that the process worked for their former partner (78%).

Notes: Parents who volunteered "don't know" were treated the same here as those who responded "disagree", "strongly disagree" or "neither agree or disagree". Data have been weighted.

Source: LBS 2009

Table 4.20 provides information on parents' views about the process of reaching parenting agreements, by main family pathway. The table indicates that mothers and fathers who had sorted out their parenting arrangements via discussions were both very likely to report that arrangements worked for them (90% and 86% respectively) and worked for their children (92% and 85% respectively). This group was also most likely to report that the result was what they expected. These are encouraging figures, suggesting an absence of coercion for most of those who sort matters out via discussions. Counselling/mediation/FDR was endorsed next most often with respect to these dimensions. Lawyers were rated considerably lower on most dimensions, especially by fathers.¹² The courts were least often seen as meeting the needs of parents and their children and also to result in an outcome that differed from what the parent expected. Of course, the nature of the cases that end up in court are likely to be the most complicated and the most contested, and therefore the outcome could be expected to be less easy to anticipate.

Notes: Parents who volunteered "don't know" were treated the same here as those who responded "disagree", "strongly disagree" or "neither agree or disagree". Data have been weighted.

Source: LSSF W1 2008

When similar questions were asked of the pre-reform parents overall, a smaller proportion provided a favourable response to how well the family pathways had worked than did post-reform parents (Table 4.21). Pre-reform fathers followed the same pattern of responses to pathways as the post-reform parents. That is, discussions were endorsed most often, followed by FDR, then lawyers and then the courts. With respect to pre-reform mothers, however, a slightly higher percentage felt that engagement with lawyers worked for them compared to the proportion who engaged with FDR. On the other hand, when compared with using lawyers, a slightly higher percentage of mothers felt that their children's needs were addressed through FDR. Indeed, more mothers than fathers felt that their children's needs had been addressed across all pathways.

Notes: Parents who volunteered "don't know" were treated the same here as those who responded "disagree", "strongly disagree" or "neither agree or disagree". Data have been weighted.

Source: LBS 2009

4.5 Pathway coordination

4.5.1 Service providers' and family lawyers' assessments

One of the core concerns expressed in the Out of the Maze report (Family Law Pathways Advisory Group, 2001) was that family law has not been conceived of as a system. This eventually led, as described previously, to government support for a range of new and expanded community-based services, with an emphasis on the development of referral protocols both between the services and between the services and the legal sector. The issue of how FRCs and  fit with the rest of the system bears particularly upon the fulfilment of the original reform objective of achieving a family law system with a "highly visible entry point which operates as a doorway to other services" (2007 Evaluation Framework, policy objective 4).

This section begins by examining assessments by service professionals as to whether or not they have adequate information about the family law reforms to assist clients and whether the services have the capacity to refer clients to and work constructively with other agencies.

Very few FRC and FDR service professionals or workers from FRAL or POP felt that they did not have adequate information about the family law reforms to assist clients (Figure 4.1). Even though a substantial majority of staff from other services strongly or mostly agreed that they had adequate information, significant minorities disagreed. It may be that those services that see themselves as being furthest away from the day-to-day operations of family law are a little less confident about the level of information they have at their disposal with which to assist clients to understand the reforms, although this would not be expected to apply to Children's Contact Services. Differences between some of these services need to be treated with caution, however, due to the relatively modest numbers involved. For example, the percentage of CCS staff who disagree with the statement at some level translates to 15 of the 66 staff surveyed.

Figure 4.1: Service providers' views on whether they have adequate information about the family law reforms to assist clients, 2009

Notes: Responses from SFVS respondents are not reported due to small numbers (n = 16). A small number of "can't say/don't know" responses were reported for this item and are excluded from these analyses. Percentages may not total exactly 100% due to rounding.

Source: Online Survey of FRSP Staff 2009

Figure 4.2 summarises service providers' assessments of clients' understanding of their requirement to attend FDR. While there is a great deal of variation in staffs' assessments of the proportion of their clients who have some misunderstanding about when they are required to attend FDR, the most common view was that a substantial proportion of clients have at least some misunderstanding.

Figure 4.2: Service providers' views on proportion of clients who have some misunderstanding about when they are required to attend FDR, 2008

Note: Percentages may not total exactly 100% due to rounding.

Source: Online Survey of FRSP Staff 2008

For example, among staff in FRCs, 27% thought that less than a quarter of clients misunderstood the requirements to attend FDR, 30% thought this applied to about a quarter of clients, 21% to about a half of clients and 16% to three-quarters or more of clients.

Table 4.22 provides information on service providers' assessments of their service's referral processes and ability to work with other agencies. Service professionals are generally confident about their own service's referral processes and protocols and about their ability to work with other organisations and agencies. FRC service professionals reported the highest level of agreement to these two statements (98% and 96% respectively), reflecting perhaps the emphasis on both these aspects of service delivery in their operational framework. FRAL respondents were least likely to indicate that FRAL worked well with other agencies and organisations. This resonates with findings from the Qualitative Study of FRSP Staff, in which FRAL information officers in particular expressed a wish to have a more in-depth understanding of what many of the services to which they referred clients actually did. This knowledge is likely to develop further over time, although it is the nature of this aspect of the service that it will frequently be somewhat removed from day-to-day knowledge of the organisations to which it is making referrals.

Notes: "Strongly disagree", "disagree" and "can't say/don't know" categories are included in the total number of observations. Respondents who provided a response of "not applicable" are excluded. A small number of missing cases were reported and are therefore excluded from analysis. 
^a POP and CCS. 
^b A higher proportion of "can't say/don't know" responses (over 12.3%) were reported for this item for FRAL.

Source: Online Survey of FRSP Staff 2009

Table 4.23 provides information on service providers' assessment of their capacity to work with a wide range of relevant services. Although patterns of responses varied across the service types, most, though not all, respondents rated their own service's ability to work with the others services as "good" or "excellent". The other response options were "average", "poor", "very poor", "can't say/don't know" or "not applicable".

Notes: Respondents who provided a response of "not applicable" were excluded from the analyses. 
^a POP and CCS.

Source: Online Survey of FRSP Staff 2009

Respondents generally reported that their service's ability to work with other FRSP-funded services and general services was "good" or "excellent". These patterns were not observed, however, in responses about legal services. Compared to FRC, EIS and PSS respondents, FRAL respondents were significantly more likely to report their ability to work with legal services as "poor" or "very poor". PSS respondents were the most likely of the four service types to rate their ability to work with the different legal services as "excellent", and the least likely to report a rating of "very poor" or "poor".

Variation between service types was also found for children's services (which includes the Child Support Agency, state and territory government child protection agencies and schools), with FRAL participants being less likely to provide a response of "excellent" compared to FRC, EIS and PSS respondents. However, few respondents across the four service types reported their service's ability to work with the children's services as being "very poor" or "poor".

For tailored services - which include Indigenous-specific services, local community groups, disability services, migrant or ethnic services, mental health services, and drug or alcohol services - the most frequently occurring responses were "average" or "good". Responses varied somewhat according to the four service types for tailored services, with FRAL respondents being less likely to report their ability to work with these services as being "excellent", compared to EIS, PSS and FRC respondents.

For each of the services listed, a large proportion of respondents did not provide a rating for their service's ability to work with the listed services. Instead, they provided a response of "can't say/don't know" or "not applicable". This possibly suggests an absence of a cross-service relationship in these cases, which may in turn reflect the focus of the service or an absence of the service in that area.

Table 4.24 reveals that most respondents indicated some level of agreement with statements aimed at tapping how well the FRCs and FRAL were functioning. However, more than half of EIS respondents gave a response of "can't say/don't know" to the statements about FRAL, perhaps suggesting that they had limited knowledge of these services. Not surprisingly, FRCs and FRAL respondents were each most likely to indicate agreement to the statements about their own service type.

Notes: "Strongly disagree", "disagree" and "can't say/don't know" categories are included in the total number of observations. Respondents who provided a response of "not applicable" are excluded. A small number of missing cases were reported and are therefore excluded from analysis. "Can't say/don't know" responses ranged from 9.1% to 16.5% across all services for items about FRCs. FRAL, FRC and PSS service professionals responded "can't say/don't know" from 11.1% to 37% of the time for items about FRAL. More than half of EIS respondents reported "can't say/don't know" in response to all items about FRAL. 
^a POP and CCS.

Source: Online Survey of FRSP Staff 2009

In terms of the capacity of FRCs to provide a gateway to other services and to appropriately refer families, EIS and PSS service professionals were less likely than FRC and FRAL respondents to indicate agreement (but for both, a large majority did agree). EIS respondents were also less likely to agree that FRAL appropriately refers families, but again, the majority in all but PSS agreed.

Table 4.25 summarises responses from a range of service types regarding the extent to which FRCs are perceived to be working in an integrated manner with the remainder of the family law system.

Notes: "Not applicable" responses are excluded and represent less than 3.5% of the total number of observations across all services. Percentages may not total exactly 100.0% due to rounding. a POP and CCS.

Source: FLS 2006 and 2008; Online Survey of FRSP Staff 2009

It is encouraging, but perhaps not surprising, that FRC service professionals were significantly more likely to indicate agreement with the statement that "The Family Relationship Centres have been able to work well in an integrated way" (84%). This is in contrast to responses from service professionals from FDR services and other service professionals, who were quite likely to indicate uncertainty with a response of "can't say/don't know" response.

The table also shows responses from the Family Lawyers Survey (FLS) 2006 and 2008 to a question concerning the FRCs' integration with the rest of the system. In 2006, the pattern of responses indicated a significant level of concern about the integration of FRCs, with 35% of respondents either strongly or mostly disagreeing with the proposition that the FRCs would be able to work in an integrated way with the rest of system.

This perception increased in the 2008 survey, with 55% of respondents strongly or mostly disagreeing with the proposition that the FRCs had been able to work in an integrated way with the rest of the family law system. In 2006, 36% of respondents declined to make a prediction, instead choosing the "can't say or refused to say" option, while in 2008, only 14% indicated they could not say. The response pattern does indicate, however, that a minority of family lawyers both predicted integration would occur (28% in 2006) and said it had occurred (32% in 2008).

4.5.2 Family lawyers' referral patterns

Table 4.26 provides information on the proportion of family lawyers who refer to differing services. Information is provided from the pre-reform (2006) and post-reform (2008) survey.

Notes: ^a Community-based mediators may or may not be legally trained. 
^b Includes services such as counselling, anger management and parent education. Analysis excludes "can't say" responses. Proportion of respondents who answered "can't say" ranged from 2.5% for referrals to community-based or other relationship services in 2008 to 4.2% for legally trained mediators in 2006. Percentages may not total 100.0% due to rounding.

Source: FLS 2006 and 2008

Between 2006 and 2008, there was a modest fall in the proportion of lawyers who reported that they never referred clients to legally trained mediators (28% to 20%) and a noticeable increase in the proportion of family lawyers who never sent clients to community-based mediators (34% to 51%).

Data from both the 2006 and 2008 surveys suggest that most lawyers refer only a quarter or fewer of their clients to any service. Table 4.26 shows that 26% of lawyers surveyed post-reform referred half or more of their clients to legally trained mediators, while only 12% referred half or more to community-based mediators. However, 30% of post-reform lawyers referred half or more clients to community-based relationship services, compared to 40% to FRCs.

It is difficult to interpret the meaning of these patterns with confidence, as they do not tell us about the nature of the referrals. There could be several reasons for referrals to FRCs, for example, although it would not be unreasonable to assume that many of these would be for FDR or at least for assessment for FDR. More will be said of this in Chapter 5. Referral to FRCs for FDR could well account for the higher proportion of post-reform lawyers who referred no clients to community-based mediators. Certainly it is clear that FRCs have had an impact on lawyers, with only 11% reporting that they did not refer any clients to this service.

4.5.3 Perceptions of legal system professionals and family relationship practitioners

Perceptions about pathways were gathered from legal system professionals via interviews conducted during the Qualitative Study of Legal System Professionals (QSLSP) between early April and late October 2008. They represent insights gained a little over half-way through the evaluation period and are considered somewhat exploratory and tentative in nature. Relevant perceptions from the community-based family relationships sector, sought in the Qualitative Study of FRSP Staff 2009, are also included in this section.

Most legal system professionals agreed in principle with key pathways objectives of the reforms, notably: to create new services to support non-court based resolution of parenting disputes and, in the context of protecting children from harm from exposure to family violence and child abuse, to promote child-focused dispute resolution. Participants regularly (but not uniformly) suggested that, outside of the court and legal system (and to some extent within it), the legislation may be having a positive impact on children in separated families.

Many legal sector professionals endorsed the concept of FRCs, seeing them as another avenue of support and information for separated parents. The initiative of raising the profile of FDR by the expansion of services and the creation of a nationally badged network of FRCs, with greater opportunity for consistency in service provision, was seen as a positive development. Several participants saw that compulsory FDR gave separating parents the right message about the importance of agreeing about arrangements for their children, and that FDR service providers played an important role in educating clients about changes to the law and the effects of conflict on children.

The perception of many legal system professionals, nonetheless, was that there were significant difficulties with respect to the interface between the community-based sector (with the main emphasis being on FDR) and providers of legal services. One respondent went so far as to suggest being "shut out" from FRCs. Data from FRC staff suggest that relationships with lawyers and courts varied from highly cooperative, especially where active family law pathways groups were operating, to non-existent or, occasionally, hostile.

There is some evidence, however, of changes taking place that parallel more recent thinking around the sort of relationships that should exist between services such as FRCs and lawyers.

As one FRC manager put it:

I guess as time has travelled on, when the FRCs were developed, my understanding was keep the solicitors away and the two shall never cross paths. As time has gone - and I guess it's my approach to working too - I can see more connections occurring between the private solicitor sector, community legal centre sector, and the FRC. I think there's more collaboration to the client outcome. But there's also still some resistance with people within those areas. You know, my belief is that we should have more of an integrated service delivery model. I think that would work better for the client.

Concerns were expressed by legal system professionals about delays in some FRCs and related services and about the quality and durability of some of the agreements being reached.¹³ Some of the difficulties in maintaining FRC services have reflected difficulties in the recruiting or retaining of staff.¹⁴ On the question of delays, many dispute resolution practitioners and service managers also pointed out that, frequently, a "rush to mediate" is not in the interests of a longer-term or durable solution. As one FRC staff member put it:

Well I just want to clarify, we hear a lot of talk about waiting lists. I'd prefer to use the term "waiting time" ... So if you want to come in for your initial meeting, we call it an "intake" - it's three days, it's quick.

An FDR practitioner put it this way:

Sometimes, if we can, we resolve the urgent financial and urgent contact issues, but some people need a bit of time to deal with their emotional journey, so we just go at the pace that works for people. It'll be like: "Try this and let's make our appointment in a month or six weeks". And we always check in every session: "How is parenting going, are there any urgent matters", all that sort of thing.

Family law professionals also suggested that the complexity of the legislation, combined with the complexity of the system delivering family law services (particularly the existence of two courts, the Family Court of Australia and the Federal Magistrates Court), were contributing to the prevalence of a range of inconsistent interpretations and practices in the application of the legislation. Inconsistent practices and approaches within and between the courts, together with resourcing and operational constraints, particularly in the Family Magistrates Court, were in turn seen to impair the ability of the system to provide clear pathways capable of delivering appropriate and child-focused outcomes.

Finally, there was a perception that inconsistent practices within and between courts themselves were contributing to significant uncertainty about the requirements of s60I (FDR with exceptions). The key pathways issues of capacity to mediate and the reasons for referral to an FRC are discussed further in Chapter 5. But as one FDR practitioner put it:

Even when a legal practitioner has referred someone to the Family Relationship Centre and they assume that they're just coming through to get their stamp and move forward ... Most of the time they come in and make a pretty big effort to get it resolved because they see the benefit ... If I can get it sorted out here, then it saves myself a lot of time, a lot of money and a lot of headaches.

4.6 Summary

4.6.1 Pathways and satisfactions

The pre- and post-reform data on separated parents indicate that the main pathway for resolving parenting issues was discussions between parents or, less often, a sense that it "just happened". Most parents who had reached agreements or were in the process of reaching agreements via discussions between themselves, felt the process worked for them, for their former partners and for their children. Pre-reform parents reported using lawyers and courts to resolve matters or make decisions considerably more often than did post-reform parents. This may reflect a change in service use. It could also possibly reflect the fact that these parents had been separated for longer. It may be that during one of the additional transition points during this period, courts or lawyers were used to assist with the resolution of disputes.

A little under three-quarters of the post-reform parents had sorted parenting matters out within a year or so of separation. A substantial minority appeared to have made little or no use of key services such as counselling, FDR, lawyers or courts. The remainder used, on average, 1.8 service types, with 11% using three service types or more.

Less than a fifth of post-reform parents were still sorting things out a year or so after separation, while for 10% "nothing was sorted out" at that time. Although post-reform parents who were still sorting things out made greater use of FDR, lawyers and courts than those who had resolved parenting issues, they still saw themselves as relying mainly on discussions or on things just happening.

It appears that many separated parents did not contest parenting arrangements to any significant extent. Despite commonly held understandings of separation as being a stressful life event, most parents were finding mainly informal ways of negotiating arrangements for their children and were generally satisfied with the negotiation processes.

About half the post-reform parents who had sorted out parenting arrangements in the first year or so made some use of counselling or FDR services. About three-quarters of the parents who were still sorting parenting matters out also made use of these services.

It is important to recognise, however, that while for a relatively small percentage of parents who sorted things out, dispute resolution services played the main role in the resolution or management of their parenting issues, the majority seemed to see these services as mainly supporting their own efforts. Such a perception would be consistent with placing the primary emphasis on client self-determination, a philosophy that underpins community-based counselling and community-based mediation theory and practice.

About half of the post-reform parents who had sorted things out also reported violence. Of this group, twice as many parents reported emotional abuse rather than physical violence. About three-quarters of those parents still sorting things out, or for whom nothing had been sorted out, reported violence. A third of these parents reported physical violence and a little over two-fifths reported emotional abuse with no physical violence. Clearly violence generally, and physical violence especially, inhibited the resolution of parenting matters. On the other hand, despite a history of some sort of violence or abuse, many parents managed to resolve matters, mainly through discussions with their former partners, and not infrequently supported by services. Furthermore, a large proportion of these parents reported that the process had worked for them and for their children.

Broadly speaking, the data suggest that mediation/FDR, lawyers and courts were mainly working better, if not at least as well, for both parents and children in the post reform environment than in the pre-reform environment.

Both pre-reform and post-reform mothers and fathers who sought assistance were most often satisfied with FDR processes and least often satisfied with the courts. With one exception,¹⁵ lawyers were rated in between, although they were generally closer to the courts in the level of satisfaction they provided.

4.6.2 Service coordination

Family relationship service providers generally felt they had enough information about the family law reforms, although professionals in the early intervention services were the least confident in this regard. These same service providers all believed that a considerable number of their clients were unclear about the requirements to attend FDR. They also felt generally confident, however, about their referral processes and protocols, and frequently, though by no means universally, rated positively their capacity to work with other FRSP-funded services and a wide range of other services.

FRAL staff rated its capacities in these areas least positively. This rating contrasts with the enthusiasm for the work that was noted in the qualitative data, as well as the competence that was observed in staff handling of incoming calls. It may be that the relative isolation of a telephone service and the relatively brief nature of many of the calls generate a range of uncertainties about the nature of services external to FRAL. It may also be that FRAL workers refer a considerable number of clients within its own organisation, which includes Centrelink.

FRC staff consistently showed enthusiasm and awareness of the key issues, and FRCs appear to have achieved the goal of becoming highly visible gateways. Only about half of the other service providers and only about a third of practising lawyers saw the FRCs as an integral part the family law system, though this was not, of course, a key objective of the reforms. Many family lawyers expressed a reluctance to refer clients to services generally. When they did refer, however, lawyers were most inclined to refer to FRCs.

5. Family dispute resolution

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As outlined in Chapter 1, a key aspect of the 2006 changes to the family law system was to require parties who could not otherwise agree on post-separation parenting arrangements to attend family dispute resolution (FDR) to attempt to resolve disagreements over parenting arrangements prior to lodging an application with a court. Chapter 4 provided an overview of pathways to FDR and other services. This chapter examines operational aspects of FDR and relates to policy objectives 2 and 3 of the 2007 Evaluation Framework (Appendix B) concerning encouraging greater involvement by both parents in children's lives after separation, and also protecting children from violence and abuse; and helping separated parents agree on what is best for their children.

After briefly summarising circumstances that prompt exceptions and the issue of certificates, and key factors that inform contemporary practice, this chapter documents agreement rates, the content of agreements, and rates of satisfaction with the FDR process. It was found that most respondents from a large representative survey of parents who had used FDR (the Longitudinal Study of Separated Families Wave 1 [LSSF W1] 2008) had sorted out disputes by the time of the survey - an average of one year after separation. The data also show how agreement rates, satisfaction with and the viability of FDR are strongly linked to how practitioners manage and are perceived to manage questions of violence and family dysfunction.

In addition, the chapter provides an evaluation of the appropriateness of referrals into FDR services and the ongoing judgments that must be made by FDR practitioners in balancing the safety of parents and children with effective child-focused processes. The circumstances in which certificates are issued are also examined.

Information on FDR was obtained from the following sources:

• Family Pathways: The Longitudinal Study of Separated Families Wave 1 2008 (LSSF W1 2008);
• Family Pathways: Looking Back Survey (LBS);
• Family Lawyers Survey (FLS) 2006 and 2008;
• Qualitative Study of Family Relationship Service Program (FRSP) Staff;
• Online Survey of FRSP Staff 2009;
• Survey of FRSP Clients 2009; and
• FRSP Online Database 2006-09.

5.1 A note on FDR with exceptions and certificates

For parents in dispute over their children following separation, exceptions to the requirement to participate in FDR include:

• applications for orders that are made with the consent of the parties (s60I(9)(a)(i));
• circumstances in which there are reasonable grounds to believe that:
  • there has been child abuse by one of the parties to the proceedings (s60I(9)(b)(i));
  • there would be a risk of abuse to the child if there was a delay in an application being made to court (s60I(9)(b)(ii));
  • there has been family violence by one of the parties to the proceedings (s60I(9)(b)(iii));
  • there is a risk of family violence by one of the parties to the proceedings (s60I(9)(b)(iv)); and
  • the application is made in circumstances of urgency (s60I(9)(d)); and
• applications for orders in proceedings in which a certificate issued by an FDR practitioner has already been filed (r.12CAB of the Family Law Regulations 1984).

In circumstances where these exceptions apply, the parties may lodge an application in court without attempting FDR, although judicial officers also retain the discretion to refer the parties back to FDR.

If attempts to reach an agreement in FDR are unsuccessful or a matter is judged at the outset not to be suitable for this form of intervention, then an accredited FDR practitioner may issue a certificate to their clients that will then enable them to access the court system.¹ There are five grounds for issuing such certificates:

• a party attended FDR but the other party refused or failed to attend;
• a matter was considered inappropriate for FDR by the practitioner;
• FDR was attended by both parties and a genuine effort was made to resolve the dispute;
• the parties attended FDR but a party or parties did not make a genuine effort to resolve the dispute; and
• the parties began FDR, but it was considered by the practitioner that it would not be appropriate to continue FDR.

5.2 A note on terminology and changing practice

Section 10F of the SPR Act 2006 defines family dispute resolution as a "process (other than a judicial process) (a) in which a family dispute resolution practitioner helps people affected by separation and divorce to resolve some or all of their disputes with each other; and (b) in which the practitioner is independent of all the parties involved in the process.

In analysing the data that follow, it should be borne in mind that parents may not distinguish between FDR delivered by accredited FDR practitioners and a range of other "family mediation" services, or even between FDR and more directed negotiations between lawyers. Indeed, some parents are more likely to recall who provided the service and with what result than what the service was called or via which organisation or profession it was delivered. It is also important to note that although the principles and accreditation arrangements informing FDR have become increasingly standardised (see footnote 1), procedures continue to vary according to the nature of the dispute and the philosophy that guides the practitioner and their organisation.

Historically, "divorce mediation" began as a process predominantly facilitated by a mediator who implicitly or explicitly assumed from the outset that parents were capable of representing their children and capable of representing themselves (e.g., Haynes, 1981). But the data on levels of violence, safety concerns and other dysfunctional behaviours identified in this chapter and Chapter 10 strongly suggest that many parents currently participating in FDR would not have been suitable candidates for these earlier mediation models. Since the mid- to late 1990s therefore, mediators in family disputes over children (more recently called FDR practitioners) have continued to develop approaches and strategies aimed at safely widening the scope of the work and permitting a larger percentage of separating and separated families to make use of these processes. Increasingly sophisticated intake procedures have been developed that are aimed at determining readiness and capacity to mediate.² Methods of formally addressing power imbalances during the process itself have also been developed, including imbalances that arise out of certain categories of past or present violence (Cleake, Bickerdike & Moloney, 2006; Kelly, 2007).

Early forms of divorce mediation were also characterised by an emphasis on mediator control of the process and a corresponding "neutrality" or low level of investment in the specifics of the dispute.³ Mediator responsibility for the process remains a characteristic of most mediation models. But under the family law reforms, FDR practitioners are not neutral with regard to outcomes for children. Rather, they are required to actively support the best interests of the child. They typically do this by providing information before and during the process about the intentions of the legislation, about the disadvantages (in most cases) of litigation, and especially about the seriously negative consequences for children of entrenched and high parental conflict, violence or other seriously dysfunctional behaviours.

In addition, while attempting to maximise the autonomy of parents - arguably a key aim of all mediation models - contemporary FDR practitioners also attempt to actively represent children, either directly by working with child consultants (child-inclusive practice) or indirectly through child-focused practice.⁴ At the same time, it is suggested by a number of researchers (e.g., McIntosh & Moloney, 2006; Parkinson & Cashmore, 2008) that in high-conflict disputes, the successful representation of children's needs also requires an appreciation of and willingness to engage with the less functional aspects of the parental relationship .This is because the generally emotionally laden narratives by which former couples justify or oppose the separation or the consequences of the separation, often distract them from focusing on their children's needs.

FDR practitioners position themselves somewhat differently regarding the emphasis they place on acknowledging these narratives and acknowledging the accompanying emotions. Some practitioners believe that when these things are present, they must at least be acknowledged before progress can be made with respect to the parenting dispute. Some practitioners go further and may offer a form of "therapeutic mediation".⁵ Others see themselves as being more "practically" focused, believing that working with such "underlying" issues is not part of their brief and that if such interventions are required, the work lies in the domain of professionals other than FDR practitioners.⁶

Finally, it is also important to appreciate that for some separating or separated families, dispute resolution can be the by-product rather than the primary purpose of the help that was originally sought (Lidchi, 2003). Thus, while parents may have originally sought services such as relationship counselling or family therapy, these interventions may nonetheless result in the setting up of formal or informal agreements about future parenting.

It should be kept in mind therefore, that although the focus of the evaluation is on services supported by the Family Relationship Services Programs, parents' responses are likely to reflect a variety of dispute resolution experiences. In addition, while many of the LSSF W1 2008 respondents were likely to have experienced FDR within FRSPs, for some, FDR (or what they deem as FDR) will have occurred elsewhere.

5.3 Operation and outcomes of FDR

5.3.1 Agreement rates, nature of agreements and satisfaction

According to data from the LSSF W1 2008, among parents who separated post-1 July 2006, 31% of fathers and 26% of mothers reported that they and the other parent had "attempted family dispute resolution or mediation". The actual question was: "Can I just check, have you and [focus parent] attempted family dispute resolution or mediation?" We refer to this as the "narrow" definition of FDR. By this we mean that these parents reported that they "attempted" FDR or mediation. Those who answered "yes" to the question of whether at any time they had contacted or used a counselling, mediation or dispute resolutions service were deemed to have engaged in dispute resolution in its more broadly defined sense. When respondents were asked this broader question, 50% answered in the affirmative.

According to data from the LBS, among parents who separated prior to July 2006, 28% of fathers and 24% of mothers reported that they and the other parent attempted "some form of mediation or dispute resolution" when they "were deciding the parenting arrangements for [focus child]". The actual question was: "Just to check, when you were deciding the parenting arrangements for [focus child], did you and [focus parent] attempt some form of mediation or dispute resolution?"

The LSSF W1 2008 provides information on the extent to which agreement was reached when FDR was attempted and, if no agreement was reached, whether a certificate was issued that allowed the parties to proceed to a relevant court should they have wished to do so.

Table 5.1 shows that, among parents from the LSSF W1 2008 study who reported that they had completed FDR, just under two-fifths reported reaching an agreement. The actual question to those who "had attempted family dispute resolution or mediation" and for whom FDR or mediation was not ongoing was: "What was the outcome?" The core options were "an agreement was reached" or "no agreement".

Just over a fifth did not reach agreement but were issued with a certificate that would have enabled them to proceed to court had they wished to do so. Almost one-third reported not reaching agreement and not being issued with a certificate. These are the first estimates on this issue gathered from a large representative survey.

Note: Excludes those who reported "Don't know" or did not answer the question (less than 2%), and those who were still in the process of coming to an agreement (10%).

Source: LSSF W1 2008

Table 5.2 uses data from the Survey of FRSP Clients, which was conducted in 2009 to analyse the outcomes from FDR for clients who tried to develop parenting arrangements. The information is presented for mothers and fathers separately and for mother and fathers combined, and according to whether the FDR took place in an FRC or FDR service. Over half the clients (57%) reported that they reached full or partial agreement about their focus child as a result of FDR that took place in either FRCs or FDR services during 2008 or 2009. Certificates were issued in 19 % of these cases. A total of 35% of the parents⁷ in the survey who made use of FDR reported that no agreement had been reached. Overall, agreement and non-agreement rates did not vary appreciably by type of service (FRCs or FDR services).

The estimates of the rates of agreement resulting from FDR are lower in the LSSF W1 2008 than in the Survey of FRSP Clients 2009. However, differences in data collection methodologies and questions between the surveys mean that the results of the two surveys are not directly comparable.⁸

Whether or not FDR results in "agreement" is an important outcome of FDR, but it is also important to examine the longer term "dispute management trajectory". The LSSF W1 2008 provides data on whether, at the time of the survey, the dispute had been sorted out, was in the process of being sorted out, or was not sorted out. The durability of agreements and the extent to which the dispute management trajectories differ between those who receive and do not receive certificates is examined in Section 5.3.3

Notes: Excludes grandparents. Parenting Orders Program (POP) clients included in the total but not presented separately as the number of respondents in this category was too small to allow statistically reliable estimates to be presented (N = 34). The measure of parenthood is based on reported number of children, and on reported number of resident children at the time of first attending the service. Those who have one child or more, but none living with them, are defined as non-resident mothers or fathers. Children includes step- or other children. Responses of non-resident mothers (N = 14) are not reported because the sample was too small to allow statistically reliable estimates to be presented. Percentages may not total exactly 100.0% due to rounding.

Source: Survey of FRSP Clients 2009

The Survey of FRSP Clients provides information on the living arrangements agreed to, the extent to which these arrangements represented a change from the pre-FDR situation, and satisfaction rates with respect to the agreements made. Table 5.3 examines the living arrangements that were agreed to during FDR, how this varied between mothers' and fathers' reports, and whether FDR took place in an FDR service or FRC. Fathers were considerably more likely than mothers to report that the agreement specified that the focus child was living about the same time with each parent (33% compared to 18% respectively). Both fathers and mothers who went to FDR services were more likely to report this arrangement (39% and 25% respectively) compared to those who went to FRCs (32% and 14% respectively). However, these differences were minimal for fathers.

Only 8% of fathers compared to 73% of mothers reported that the agreement was for the focus child to live mostly with them. In this case, the gender pattern was similar for FRCs and FDR services. The lower percentages reported by both mothers and fathers who attended FDR services can be accounted for by the higher rates of reported sharing of the parenting.

Notes: Only includes respondents who specified that they had reached agreement on either "all" or "some aspects" of a parenting plan. POP clients are included in the combined service calculations, but are not presented separately as the number of cases where agreements were made was too small (N = 17). Percentages may not total exactly 100.0% due to rounding.

Source: Survey of FRSP Clients 2009

An important question with respect to a key aim of the reforms is the extent to which these reported arrangements represented a change in the arrangements that existed before FDR took place. Table 5.4 reveals that for mothers who reached an arrangement at FDR, 11% reported that the focus child spent increased time with them, 43% reported the child spent increased time with the child's father, and 47% reported that the outcome was the same as before FDR commenced. Fathers' reports were fairly consistent with this, with 44% reporting the child spent more time with them, 16% reporting the child spent more time with the mother, and 41% reporting no change. Compared with FRC fathers, FDR fathers were somewhat more likely to report no change and/or the child spending more time with the mother, and less likely to report the child having increased time with the father.

Notes: Includes only respondents who specified that they had reached agreement on either "all" or "some aspects" of a parenting plan. POP clients are included in the combined service calculations, but are not presented separately as the number of cases was too small (N = 17). Percentages may not total exactly 100.0% due to rounding.

Source: Survey of FRSP Clients 2009

Table 5.5 summarises data on three key aspects of the FDR process experienced by FRSP clients: (a) whether the arrangement worked for the parent; (b) whether each parent thought it worked for the child; and (c) whether the FDR process was likely to help in making future decisions about the children. Over half (57%) of parents thought the agreement worked for them. Fathers were a little more positive than mothers (61% compared to 54%), although this was entirely accounted for by differential reports in the FRC sample.

Notes: Includes only respondents who specified that they had reached agreement on either "all" or "some aspects" of a parenting plan. "Not applicable" responses are excluded from calculations (less than 3% of respondents). POP clients are included in the combined service calculations, but are not presented separately as the number of cases was too small (N = 17). Number of respondents differ slightly between the items as a result of "Not applicable" responses. Percentages may not total exactly 100.0% due to rounding. a Refers to the final aspect of the parenting agreement/process shown in the table.

Source: Survey of FRSP Clients 2009

Interestingly, compared with the question of whether or not it worked for them, more parents (61%) thought that the parenting agreement worked for their child, with the increase in endorsement coming largely from mothers (58-63%), while fathers' support stayed about the same (around 62%). There was no significant difference between FRCs and FDR services on this dimension.

Parents were most likely to agree (strongly or otherwise) with the statement that the children's needs were taken into account. Fathers who attended FRCs or FDR services and mothers who attended FDR services were slightly more likely than mothers who attended FRCs to agree or strongly agree with this statement (73% and 73% compared to 68%). The proposition that the agreement would help in future negotiations over the child was endorsed by 44% of parents, with fathers being somewhat more positive in this regard than mothers.

5.3.2 Family dysfunction, dispute resolution and certificates

Figure 5.1 shows how the level of use of counselling, FDR or mediation during or after separation varied according to whether the parent said that they: experienced physical violence pre-separation, experienced emotional abuse but not physical violence pre-separation, or reported no violence.

Figure 5.1: Fathers and mothers who contacted or used counselling, FDR or mediation, by experience of family violence, 2008 Service providers' views on whether they have adequate information about the family law reforms to assist clients, 2009

Notes: "Broad definition" includes those who went to a counsellor, psychologists or mental health professional. "Narrow definition" refers to parents who attempted FDR.

Source: LSSF W1 2008

Parents who reported that they had experienced physical violence from their partner were a little more likely (65%) to have either "contacted or used counselling, mediation or FDR" (the broader definition of FDR referred to in Section 5.3.1) than those who reported having experienced emotional abuse alone (60%) and those who did not report experiencing violence (33%). While, as discussed in Chapter 2, fathers were less likely than mothers to report experiences of family violence, those fathers who said they had experienced family violence were as likely if not more likely than mothers who had experienced violence to have contacted or used counselling, FDR or mediation.

Focusing on the narrow definition of FDR (i.e., FDR or mediation was clearly reported as having been attempted), the overall pattern is similar. Parents who reported experiencing violence (physical or emotional) were much more likely to have attempted FDR (41% of those who experienced physical violence and 35% of those who had experienced emotional abuse only) than those who did not report experiencing violence (15%).

Table 5.6 provides information on the outcomes of FDR according to whether family violence had been experienced. The highest rate of agreement was reached in cases in which there had been no reports of violence (48%), and the lowest rate of agreement was reached in cases in which there had been physical abuse (36%). Similarly, the highest proportion of certificates issued with no agreement were in cases in which physical abuse had been reported (26%), and the lowest proportion was when there were no reports of physical violence or emotional abuse (10%).

Notes: Excludes parents who responded "don't know" or didn't answer the question (less than 2%) and those who had not completed FDR (10%). Percentages may not total exactly 100.0% due to rounding. a Total includes a small number of parents who did not respond to the questions on family violence.

Source: LSSF W1 2008

Table 5.7, derived from Survey of FRSP Clients data, explores selected dysfunctional dynamics in FDR - the impact of reported fear and threats and the capacity to negotiate - and the extent to which they inhibit the process of reaching agreement. The table suggests that behaviours of a former partner that generated fear had a significant negative impact on agreement rates for both women and men. On the other hand, client assessments of whether or not these issues were addressed at FDR appear to have had little effect on agreement rates. Feeling afraid of the other partner in the session negatively affects the mothers' capacity to reach agreement (the data for fathers on this variable were too small to allow for a test of significance), while abuse or threats outside the session were closely linked with the fathers' capacity to reach agreement.⁹

Note: Percentages may not total exactly 100.0% due to rounding.

Source: Survey of FRSP Clients 2009

Table 5.8 examines the same dimensions as above with respect to their association with the issuing of certificates. This table suggests a strong correlation between mothers' reporting of fear, both generally and inside the sessions, and the issuing of a certificate. There is a weaker though still statistically significant correlation between fathers' reporting of abuse or threats outside the sessions and the issuing of a certificate¹⁰.

Note: Percentages may not total exactly 100.0% due to rounding.

Source: Survey of FRSP Clients 2009

While the data above suggest that FDR practitioners are responsive to such dysfunctional behaviours (in the sense that they issue relatively more certificates and oversee relatively fewer agreements), they raise a number questions about the numbers of parents who "attempt FDR" rather than taking a litigation or legally negotiated pathway despite being in circumstances of threats, fear or abuse. Clearly there are cases in which no certificates are issued or in which agreements are made despite the reporting of fear, abuse and threats. Some of these may represent the "least worst" alternative for those mothers or fathers and their children. However, qualitative feedback from the Survey of FRSP Clients suggests that this is not always the case:

Although we worked out a parenting plan, I felt pushed into decisions I was uncomfortable with due to time and the mediators just wanting a quick result. I also had issues regarding violence to me by my ex-partner while we were still together, but they were disregarded because they were in "the past" and they said they didn't want to take sides, even though it happened in front of our children and we were in mediation about the children. This was distressing for me, but I felt like it didn't matter to anyone else. (FRC client survey respondent, female)

For me, there were not enough sessions in the process. I was so scared and intimidated by my ex-husband that I had trouble thinking clearly. As a consequence of this, I felt bulldozed into making an agreement. I needed to be able to go away again and have some time to think each step over clearly; this was not allowed. I also had to sit through a face-to-face session with my ex-husband before they'd believe that I was worried about him and then allow us to be separated on the second session. I felt that my concerns were swept aside and the focus was on my ex-husband's needs/wants. This may have been due to time constraints, but my concerns were not followed through on. (FRC client survey respondent, female)

I found the counsellor very biased towards the female ex-partner. After attending several sessions, I was made to feel as though I was the problem and I left feeling disheartened and disappointed at being let down by the system. With my self-esteem battered, I felt unable to pursue the matter through the courts as I now believe that the system is biased towards the female, so it would not be worth the expense of fighting a court battle (that I cannot afford as I am paying child support because she won't allow my child to stay overnight for more than once per week!) I want shared care; she doesn't; and I get no say in it. (FDR client survey respondent, male)

5.3.3 Post-FDR trajectories

In assessing outcomes, there is a temptation to focus somewhat simplistically on binary variables such as: Is this case appropriate for FDR or not? or Was agreement reached or not? From the perspective of the practitioner, however, successful FDR involves positive responses to a sometimes complex range of questions. For example, at the level of inward referral, there is the question of whether FDR is the best pathway for this situation at this time. Other triage questions revolve around the best sequencing of FDR; for example, how much time should be devoted to the assessment phase, to an educational component, to single vs joint sessions, to the amount of time between sessions, to whether or not a child consultant should be involved, and so on.

Returning to the LSSF W1 2008 outcome data presented in Table 5.1, the complexity of the process becomes clearer when we examine further the three categories of agreement, non-agreement with a certificate, and non-agreement without a certificate, against the parents' reports of whether or not parenting arrangements had been sorted out at the time the survey was conducted, and what pathways were mainly relied upon.

Table 5.9 shows that of those who reported reaching agreement in FDR, almost three-quarters reported that parenting arrangements had been sorted out by the time of the survey. Only 6% reported that nothing had been sorted out yet, while 19% reported that they were "in the process" of sorting things out. In other words, for 6% of those who reached agreement in FDR, none of the matters agreed to appear to have "stuck", while for 19%, it appears that FDR did not cover all of the issues at the time, or some issues were being re-negotiated, or new issues had emerged.

Note: Percentages may not total exactly 100.0% due to rounding.

Source: LSSF W1 2008

Of the group who reported not reaching agreement at FDR but who did not receive a certificate, a considerable majority (65%) had nonetheless sorted things out at the time of the survey, while 23% were still sorting things out. For 12% nothing had been sorted out. The "sorted out" profile of this group with no agreement and no certificate is considerably closer to that of the "agreement" group than to that of the group with no agreement but with a certificate.

Finally, although 36% of the parents in the "certificate" group went on to report that things had been sorted out at the time the survey was conducted, 47% reported that things were still being sorted out and 17% that nothing had been sorted out.

The next two tables shed further light on these parents' post-FDR trajectory by examining the main reported pathways for sorting things out among the three agreement groups.

Table 5.10 shows that, of the 74% of parents who had reported reaching agreement at FDR and said at the time of the survey that the parenting arrangements had been sorted out, only 7% used lawyers and only 3% used the courts as their main pathway towards resolution. Most of the remainder attributed the sorting out mainly to what might generically be called facilitative practices, that is, counselling/mediation/FDR or discussions between themselves.

Note: Percentages may not total exactly 100.0% due to rounding.

Source: LSSF W1 2008

Of the 65% who did not reach agreement and did not receive a certificate, the majority (61%) attributed the sorting out of matters to discussions between themselves. Lawyers were seen as the main pathway for only 13% and courts for 7% of this group.

These reports again contrast strongly with responses from those reached no agreement and who received a certificate. Of the 36% of this group who had sorted things out, a majority (55%) did so via courts or lawyers as their main pathway. They were far less likely than the other groups to have sorted things out mainly via discussions or via some form of facilitated process.

Table 5.11 suggests that a similar pattern emerges for those parents who were still in the process of sorting things out, with courts and lawyers again being nominated most frequently as their main resolution pathway by the no agreement/certificate group (67%), while the equivalent responses for the agreement and the no agreement/no certificate groups were 30% and 33% respectively.

Note: Percentages may not total exactly 100.0% due to rounding.

Source: LSSF W1 2008

In summary, most parents who reach agreement at FDR/mediation report that lawyers or courts do not play a key role after the agreement had been reached. The data also suggest that although a little over half the separated parents who report that they "attempted FDR or mediation" did not develop a formal agreement as a direct result of this process, most nonetheless went on to reach agreement and most did so via discussions between themselves as the main pathway. This lends support to the idea that FDR processes can be an important step in a complex set of other formally facilitated as well as non- facilitated negotiations and can help to sow the seeds for future reconciliation of differences. Examples of this from the client feedback part of the Survey of FRSP Clients include the following:

A great deal of our success was the flexibility of the FRC to accommodate our situation. We did not neatly fit the criteria or processes normally adopted and the workers were great at meeting our needs, which in the end resulted in a positive and sustainable agreement regarding our child. (FRC client survey respondent, female)

All I can say is the services the FRC offers is very good and I feel like the experience with attending the FRC has made a huge difference in my life and my child's life. It has made me aware of the things that I didn't know before. (FRC client survey respondent, male)

After the initial contact at the centre, most of our mediation was done via phone hook-up. This worked well for me with young children at home. Although my ex-husband didn't take any part after the first contact, I continued for a few more sessions and found the advice very helpful. Thank you. (FRC client survey respondent, female)

Both the mediators who were present at every session had a very mature, professional and succinct understanding of what each of our individual issues were. Having a male and female mediator gave us a chance to see things from both perspectives (husband and wife). I am glad I went to mediation, and even though we decided to separate under the same roof, our children are happy and we now have a clear perspective of what each of our expectations are in the relationship. (FDR client survey respondent, female)

It would appear that the key predictor with respect to whether things were likely to be sorted out at the time the LSSF W1 2008 parents were surveyed was not agreement or non-agreement at FDR, but whether or not a certificate had been issued. Before further considering the role that certificates may be playing in the FDR process, we turn to the analysis of outcomes reported by parents in the Survey of FRSP Clients who attempted to develop parenting arrangements using FDR.

The above data suggest that FDR is capable of directly or indirectly assisting a majority of separating parents who use the service to reach agreements. A majority of those who reach agreements believe that the agreements "work for them" and somewhat higher proportion report that the agreement works for their children. At the same time, although the majority report favourably on the experience, a good deal of FDR takes place in conditions in which there is fear and abuse both inside and outside the sessions; and significant minorities of clients express concerns about the process. The issuing of certificates is also not infrequently associated with such behaviours.

The following figures summarise the views of FRC staff and FDR practitioners regarding the appropriateness of referrals into the FDR process. Figure 5.2 shows that 78% of FRC staff surveyed thought that FDR was inappropriate because of family violence for up to a quarter of parents who came to their services in relation to children's matters. In the case of FDR services, the equivalent figure rose to 86%. This issue is examined in more detail in Chapter 10, which focuses more fully on family violence.

Figure 5.3 shows that a considerable majority of FRC and FDR staff (64% and 73%) thought that FDR was inappropriate for less than a quarter of separated families with whom they engaged because of child abuse or neglect issues. A further fifth (23% and 20%) thought this figure was about a quarter, although very few thought it was higher.

Figure 5.2 Service providers' views about the proportion of clients for whom FDR was inappropriate due to family violence, 2009

Note: Percentages may not total exactly 100% due to rounding.

Source:   Survey of FRSP Staff 2009

Figure 5.3 Service providers' views about the proportion of clients for whom FDR was inappropriate due to child abuse or neglect, 2009

Source:   Survey of FRSP Staff 2009

In the view of these service providers, FDR was not appropriate for a significant proportion of families coming to their service in relation to children's matters, because of family violence or issues of child abuse and neglect. At the same time, this proportion was substantially lower than the proportion of parents using FDR who reported violence as an issue. Practitioners appear to be discriminating here between a history of violence or child abuse that, while never acceptable, does not preclude the possibility of FDR, and forms of violence and child abuse that should not, at least at that point in time, proceed to FDR.

It is important to recognise that the data presented earlier, which link certificates to the trajectory of a case, do not, of course, suggest a causal connection between the issue of a certificate and the final outcome. Indeed, the data demonstrate that a considerable number of certificates are issued precisely because one or more family members present with highly dysfunctional behaviours.

Thus, a key issue that arises in separation-related disputes over children is at what point and by whom should seriously dysfunctional behaviours and dysfunctional dynamics be assessed and acted upon? The intention of the legislation is that they should be subjected to speedy assessment and speedy decisions within the court system. This pathway is constrained by the issue of the availability of resources - especially independent assessment resources - within the courts themselves, and by the (probably related) decision-making difficulties within the courts, previously discussed by Moloney et al. (2007).

The question of how and when appropriate triage should take place received considerable attention from professionals in FRCs and FDR services during interviews conducted in 2009. On numerous occasions, FDR practitioners spoke on the one hand of the advantages of FDR as broadly conceived (such as helping to change attitudes and connecting family members with other appropriate services), and on the other hand of the amount of time involved in the consideration of certificates in cases in which FDR would be inappropriate, if not dangerous, or in which clients presented with an agenda that clearly precluded constructive engagement around their parenting responsibilities.

Their observations could be summarised as follows:

• FRCs do not provide certificates "as a matter of course":

We make it quite plain to clients and we make it quite plain to lawyers that our role is not to write out certificates. (FRC manager, 2009)

• Some clients and/or their legal advisors nonetheless see the primary function of FRCs and/or FDR practitioners to be that of issuing certificates. Among other things, this attitude predisposes clients who present with this attitude towards not engaging in the range of services and referral options that an FRC can provide:

Some clients are told by their lawyers to "go down to the FRC and get your bus pass stamped" (FDR practitioner, 2009)

• Some clients and/or their legal advisors also believe a certificate should be issued as a default option, even if FDR has been engaged in and agreement has been reached:

There are still clients who will insist on receiving a genuine effort certificate, for example. [Interviewer: Even if they've actually got an agreement?] Yes, indeed. In fact, we'd love to produce another certificate. Certificate G is our proposal - "G for good" - so that for people who really want a certificate and we give them a good certificate for having attempted mediation and having focused in on their children's needs, etc. We've actually drafted one, but half in jest, which we'd love to be able to send out to our clients who really want a certificate but have actually reached agreement, but for some reason they feel that the need is to have that certificate. We coach them away from it, of course. (FDR practitioner, 2009)

• Clients who are clearly in the "exceptions to FDR" category are not infrequently referred to the FRCs by lawyers (and to a lesser extent by courts):

The difficulty with exemption is that solicitors will send them to us because it's easier for them to get a not-appropriate certificate from us than it is for a solicitor to go and do a whole lot of paperwork to put that to the court. (FRC manager, 2009) 

Look, it depends on the legal practitioner, but the majority of practitioners would say, "Go and get a certificate", because from their perspective it's more proof. Even though the client is then having to retell their story. I get the feeling - this is what I hear anecdotally - that solicitors were looking at the exemptions ... they are putting stuff through. But I hear anecdotally things are actually getting ... the magistrate was saying, "Well why wasn't there mediation? Why didn't you go to Family Relationship Centre?" So there are mixed messages there for solicitors. (FDR practitioner, 2009) 

It's about solicitors, like that's [assessing family violence] not their realm of expertise. I think that's quite good because we are lucky that we don't have waiting lists, but I know some of the other FRCs do. So that's a real problem. If you've got an FRC with a wait list of three months for a first appointment and as a solicitor you've got a client who you could put an exemption through, and there are safety issues, you'd want to do that wouldn't you? (FRC manager, 2009)

We also considered the empirical evidence for the assertion from practitioners in FRCs and FDR services that referrals of seriously dysfunctional clients may be leading to an increase in the number of certificates that needed to be issued. It was noted in Table 5.2 that certificates were issued in 41% of the cases in the Survey of FRSP Clients, almost twice the frequency of those reported in the LSSF W1 2008 (21%; Table 5.1). Our initial thought was that as more than half the parents in the LSSF W1 2008 sample had separated before July 2007, the date after which certificates were required if court action was to be taken, many of these respondents who wished to proceed to court would not require a certificate. However, although we do not know how many are in this category (because the data do not contain information on precise dates of service delivery), we have reason to believe that the number of parents making use of FDR before July 2007 was relatively small. This is because when the data in Table 5.1 was subdivided into four categories of parents - those who separated in 2006, in the first half of 2007, the second half of 2007, and in 2008 - it was found that all groups had roughly equal percentages who reported receiving a certificate. Clearly, receiving a certificate meant the service was delivered after July 2007.

It was also found that less than 9% of the sample had separated in 2006. In addition, although roughly half of the parents reported on in Table 5.1 separated in the first half of 2007, statistically speaking we would not have expected many of them to have commenced and completed FDR before the middle of the year. Thus, the absence of a need for a certificate due to FDR taking place before July 2007 is not likely to account for many of the parents reporting that they did not reach agreement and did not receive a certificate.

Another possible explanation for what seemed to be a relatively high percentage of parents from the Survey of FRSP Clients being in the "certificate" category is that even though Table 5.1 speaks to what has been described as the narrow definition of FDR, as noted in Section 5.2, we cannot be certain about how many LSSF W1 2008 respondents were referring specifically to FDR services provided by registered FDR practitioners. Experiencing "FDR" or mediation from a person or service not authorised to issue certificates might account for some of the "no agreement/no certificate" parents, but we have no way of telling how many might be in that category.

On balance, however, we believe that perceptions from FRCs that the rate of issuing of certificates has increased, and that this is in part connected with an absence of triage by lawyers and other professionals prior to referral for FDR, is likely to be correct.

It has become clearer that the implementation of "FDR with exceptions" is a complex process. Implementing the exceptions provision assumes that the person consulted by the client has the skills to make a reasonable judgment about eligibility (and perhaps just as importantly, has the time to carefully "hear" the client's story). The more conservative approach frequently seems to be to let an FRC or an FDR practitioner make such a judgment and use the certificate system as a substitute for an claiming an exception. This represents a post-reform change that clearly places a greater set of responsibilities and resource demands on practitioners in the family relationships sector. It is a process that must also at times be confusing for clients.

In the words of one FRC manager:

Prior to reforms, traditional mediation clients were far more likely to have a good understanding of what mediation is and to know that this is a very good outcome if I can get it here rather than go through courts.

A practitioner echoed this observation by noting one of the post-reform conundrums:

Now, of course, we've got people thinking that they have to do it [FDR] and we've got all those people that would not be really understanding of the process. However, having said that, I have a very strong belief that we're also about information-giving and referral-making and role-modelling good communication and good conflict resolution for the client.

Another practitioner also spoke of the broader aims of FDR:

So even if they don't come to an agreement, I believe it's been a successful mediation if they can have a dialogue and they can turn around some of their methods of bad communication. I think that's definitely an up side for some of these clients who are not likely to come to agreements, but they can still gain something from going to mediation.

It is probably a truism to observe that FDR is more likely to succeed when all professionals involved in the case, including those who have an advocacy role for a particular parent, are committed to the process of reaching a solution that is in the best interests of the child.

For FRCs that had been in operation for a longer period of time, many interviewees noted what they saw as a greater understanding and acceptance of their role among lawyers. Practitioners also noted that misunderstandings about the role of the FRC among lawyers were more likely to occur when the lawyer did not specialise in family law.

They used to send people along just to get your certificates. Now they are really in the picture of what we do, so they go: "Look go to the Family Relationship Centre. You have got so many issues, and they are not all legal issues, so you need to go around there and they will sort you out". (FRC manager)

I think it's actually improving because I think solicitors now are beginning to understand possibly to some extent what our service is. First, there was rivalry because there was competition stuff. I think that once they realise that we're not here to take work off them, then a lot of them have gotten better. A lot of them actually use our service because they see the advantages of it. So they'll send their clients here. (FRC manager)

Table 5.12 provides information on the extent to which those contacting or using counselling, FDR or mediation during or after separation (the broad and narrow definitions of FDR) also had contact with a lawyer.

Source: LSSF W1 2008

The table shows that of parents who contacted or used counselling, FDR or mediation during or after separation, 65% also contacted or used a lawyer and 35% had not contacted or used a lawyer. Focusing on the narrow definition of FDR, 74% of those who had attempted FDR also had contact with or had used a lawyer.

Conversely, the majority of parents who had not used counselling, FDR or mediation services had also not contacted a lawyer (74%). There is a similar pattern when the narrow definition of attempting FDR is used, with 66% of those who did not attempt FDR also not using a lawyer.

These figures suggest that in many cases, there is potential for constructive interaction between family lawyers and FDR practitioners, especially in circumstances in which difficult allegations have been raised. On the other hand, data from the 2006 and 2008 Family Lawyers Surveys, considered in more detail in Chapter 9, suggest that, although there are signs of an increase in lawyers' confidence in FRCs, this confidence comes off a low initial base. In addition, and perhaps more telling, is the increase between 2006 and 2008 in the number of lawyers who had insufficient knowledge of FRCs to offer an opinion on their operations.

5.4 Summary

FDR appears to work well for many parents and their children. Among parents who had separated after the reforms, 31% of fathers and 26% of mothers reported that they had "attempted family dispute resolution or mediation". About two-fifths of this group reached an agreement and most of these agreements were still in place at the time the LSSF W1 2008 was conducted (about a year after separation). Most parents who had not reached agreement at FDR had sorted out their dispute at the time the survey was conducted. Whether or not FDR resulted directly in an agreement, the majority of parents who had attended FDR and who had sorted out their disputes felt that they had done so mainly through discussions between themselves. This is consistent with a key aim of FDR, which is to empower disputants to take charge of their dispute. Parents who had not reach agreement at the time of FDR and who were issued with a certificate were the least likely to have sorted matters out or to have had a decision made about their dispute.

Most disputes referred to FDR and FRCs appear to be complex. Indeed, FRCs have become an early point of entry for a significant number of parents whose capacity to mediate is compromised to a greater or lesser extent by their past or present experience of violence, and/or other dysfunctional behaviours. FRCs are regarded by a proportion of lawyers as the most logical entry point for effective triage and effective referral of complex cases. There is also evidence that referral of difficult cases, either to FRCs or to an FDR service, is sometimes regarded as a type of insurance policy. Thus, although some of the cases clearly meet the criteria for an exception under s60I(9), lawyers are not always confident that courts will see the situation this way. Such cases are frequently issued with certificates by FDR practitioners, affording them "entry" into the court system. At the same time, some parents who would probably meet the exception criteria commence and/or complete FDR.

There are no easily predictable "best" pathways for this problematic end of the dispute spectrum. Some clients reported that they felt pressured into FDR or into reaching an agreement. Others with seemingly similar complex family dynamics did not provide this feedback. The new skills-based training for accrediting FDR practitioners is designed to increase capabilities in this area. Effective screening is an essential aspect of this training but effective screening does not always provide an answer to the critical question of "what next"?

The data indicate considerable overlap between client use of lawyers and client use of FDR. The data also suggest continuing concerns by lawyers about FDR and the service sector in general. Clearly, the advocacy role that lawyers must play on behalf of their clients is at times in tension with the aims of FDR. Put simply, the aims of both legal and service professionals are capable of complementing or colliding with each other

Active engagement between FDR practitioners, family lawyers and other family law professionals is likely to lessen the risk of re-creating between the professionals themselves many of their own clients' experiences of high conflict and low trust. More broadly, any initiatives designed to promote a shared commitment to responsible FDR between lawyers and FDR professionals, and between lawyers and other service sector professionals, are likely to improve the efficacy of services generally, FDR in particular, and the family law system in general.

It should be noted in this regard that the evaluation provides good examples, most especially from regional centres, of lawyers, FDR professionals and other service professionals working cooperatively towards achieving post-separation arrangements between ex-partners that were likely to promote healthy and developmentally appropriate outcomes for children.

6. Care-time arrangements: Community opinions, prevalence and durability of different arrangements, and trends across the years

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As outlined in Chapter 1, a key objective of the 2006 family law reforms was to encourage greater involvement of both parents in children's lives following separation, provided that the children are protected from family violence or child abuse (see policy objective 2, 2007 Evaluation Framework, Appendix B). "Involvement" entails such matters as: (a) taking primary or immediate care of the children for significant periods of time (care time), including overnight where possible;¹ (b) making a significant contribution to decisions affecting children's general lifestyle and welfare; and (c) providing financial support for the children. The concept of "parental involvement" thus overlaps with the exercise of "parental responsibility", although involvement may be understood as "what happens", whereas "responsibility" conveys notions of accountability or obligation. This chapter focuses on care-time arrangements.

After separation, most children live with their mother, although the proportion of older children who live with their father is higher than that of younger children who live with their father. There is some evidence that a more equal apportionment of care time between parents has increased (Australian Bureau of Statistics [ABS], 2008).

The concept of "shared care time" (which is to be distinguished from other aspects of shared parental care) typically refers to circumstances in which children spend a similar number of nights with each parent. Prior to the introduction of the new Child Support Scheme, this was usually taken to represent at least 30% of nights with each parent, but the Child Support Agency (CSA) now classifies 35-65% of nights with each parent as reflecting shared care time.

It appears that the sharing of care time has been less prevalent in Australia than in the United Kingdom or the United States (see Smyth, 2009),²and is less durable than arrangements in which children live mostly or entirely with their mother (Smyth, Weston, Moloney, Richardson, & Temple, 2008). While some concern has been expressed about the appropriateness of very young children spending much the same time with each parent (e.g., McIntosh & Chisholm, 2008), little is known about the views of parents in general concerning this issue.

Key evaluation questions examined in this chapter are:

• What are the opinions of parents in the general population regarding whether children of separated parents generally "do best" when both parents remain involved in the children's lives and the appropriateness of shared care-time arrangements for children of different ages?
• What is the prevalence of different care-time arrangements in families that experienced parental separation after the 2006 changes to the family law system were introduced?
• How much confidence can we place in these findings about the prevalence of care-time arrangements?
• Are some patterns of care-time arrangements more durable than others?
• What are the patterns of care-time arrangements apparent in the samples of court files?
• To what extent does the post-reform picture of care-time arrangements, as indicated in court files and surveys of separated parents, differ from arrangements that were apparent before the reforms were introduced?

This chapter provides information on the opinions of parents in general about the importance of separated parents both being involved in their children's lives. It also provides information on parents' views about the appropriateness for children of different ages spending about the same amount of time with each parent after separation. Attention is then directed to what happens in practice for families that experienced parental separation after the reforms were introduced (after 1 July 2006). The prevalence of different patterns of care-time arrangements for children in these families is examined, along with the meaning of daytime-only care - that is, how frequently parents whose time with the child is restricted to the daytime see their child. This is followed by an analysis of the post-reform care-time arrangements that have resulted from children's proceedings filed in the courts.³Next, the durability of the different care-time arrangements is assessed. The extent to which there have been changes over the years in patterns of care time is then examined, using surveys of parents and court data.

The analyses in this chapter are based on the following data:

• the General Population of Parents Surveys (GPPS), conducted in 2006 and 2009;
• Wave 1 of the Longitudinal Study of Separated Families (LSSF W1), conducted in 2008;
• the Looking Back Survey (LBS), conducted in 2009;
• samples of pre- and post-reform court files relating to children's proceedings filed in the Family Court of Australia (FCoA), the Federal Magistrates Court (FMC) and the Family Court of Western Australia (FCoWA);
• the CSA administrative dataset;
• the ABS Family Characteristics Surveys (FCS), conducted in 1997 and 2003; and
• the ABS Family Characteristics and Transitions Survey (FCTS), conducted in 2006-07.⁴

6.1 Opinions of parents about post-separation parental involvement and equal care time for children

The first issue examined in this chapter concerns the extent to which the opinions of parents in general are consistent with the objective of the reform concerning encouragement of greater involvement by both parents in children's lives after separation, where children are protected from family violence and abuse.

The reforms have sparked considerable debate about the appropriate amount of time that young children should spend with each parent. For instance, drawing on attachment theory and research, McIntosh and Chisholm (2008) emphasised that a very young child's development of a secure attachment to one parent (or caregiver) is vital to their emotional health in the longer term. Secondly, they argued that the creation of secure attachment itself requires that the infant experience reliable care with one parent/caregiver on a continuous basis and that shared care-time arrangements involving the infant moving from one parent to the other on a frequent basis can disrupt their development of attachment, especially where parents have an acrimonious relationship.⁵ In contrast, Burrett and Green (2008), in a review of the literature, concluded that there is no evidence that overnight time between fathers and young children is harmful to the infant-mother attachment. The impact of care time on children's wellbeing is the focus of Chapter 11.

What are the opinions of the general population of Australian parents regarding such matters? Data from the GPPS 2006 and GPPS 2009 are used to gauge parents' opinions about whether children "do best" after parental separation when both parents stay involved in their lives, and data from the GPPS 2009 are used to gauge their views about the appropriateness of children of different ages (or developmental stages) spending much the same time with each parent (here called "equal care time").⁶

6.1.1 Views about the benefits for children of continuing parental involvement

Participants in the GPPS 2006 and GPPS 2009 were asked to indicate their level of agreement or disagreement with the statement that "Children generally do best after separation when both parents stay involved in their lives". Response options were: "strongly agree", "agree", "mixed feelings", "disagree" and "strongly disagree". In addition, 5% of the participants volunteered that they were uncertain about this matter and these answers were combined with "mixed feelings" as they appeared to overlap with a middle-of-the-road stance.

Two sets of analysis are presented. The first set summarises the patterns of answers provided by fathers and mothers in the two surveys, while the second shows the extent to which such answers vary according to whether or not the respondents themselves have separated from the other parent of at least one of their children.

Views of fathers and mothers in general

Figure 6.1 shows the patterns of answers provided by fathers and mothers who participated in the GPPS 2006 and those who participated in the GPPS 2009.

Consistent with the intent of the family law reforms, most fathers and mothers agreed or strongly agreed that the continuing involvement of both parents is beneficial for children (75% and 79% respectively in 2006, and 79% and 83% respectively in 2009).

A slightly higher proportion of mothers than fathers indicated that they strongly agreed with the statement (GPPS 2006: 36% compared to 31%; GPPS 2009: 47% compared to 40%).

Furthermore, the proportion of fathers and mothers who strongly agreed with this statement was higher in the 2009 survey than in the 2006 survey. Specifically, strong agreement was expressed by 31% of fathers in the GPPS 2006 and 40% of fathers in 2009, and by 36% of mothers in the GPPS 2006 and 47% in 2009.

While the latter trend suggests that fathers' and mothers' agreement with the notion that the continuing involvement of each parent is generally beneficial for children has become more clear-cut, future surveys are needed to show whether the differences in patterns of answers across time reflect continuing, stable or fluctuating trends.

Views of separated and non-separated fathers and mothers

Given that most parents agreed with the statement about the benefits of continuing parental involvement for children, Figure 6.2 focuses on the proportions of parents who agreed or strongly agreed with the statement. Here, attention is directed to the views of separated and non-separated fathers and mothers in the two surveys. These data are relevant to the evaluation because they provide information on community attitudes.

Figure 6.1 Parents' views about whether children do best when both parents stay involved in their lives after separation, fathers and mothers, 2006 and 2009

Note: Percentages may not total exactly 100% due to rounding.

Sources:   GPPS 2006 and 2009

Figure 6.2 Parents' views about whether children do best when both parents stay involved in their lives after separation, non-separated and separated fathers and mothers, 2006 and 2009

Source:   GPPS 2006 and GPPS 2009

While most parents supported the idea that the continuing involvement of both parents in their children's lives is beneficial for the children, the proportion of parents who agreed or strongly agreed with the statement varied according to their gender and whether they had separated or not:

• Separated fathers were more likely than non-separated fathers to believe that the continuing involvement of both parents was beneficial for children (2006: 84% compared to 72%; 2009: 86% compared to 77%).
• Such a belief was expressed by a lower proportion of separated than non-separated mothers, especially in the 2009 survey (2006: 76% compared to 80%; 2009: 77% compared to 86%).
• Therefore, agreement with the statement was more commonly expressed by non-separated mothers than non-separated fathers (2009: 86% compared to 77%), and less commonly expressed by separated mothers than separated fathers (2009: 77% compared to 86%).

Strong agreement with the statement was more apparent in the 2009 survey than in the 2006 survey for all groups. Specifically, the following proportions of parents expressed strong agreement in the GPPS 2006 and GPPS 2009 respectively:

• non-separated fathers: 28% and 38%;
• non-separated mothers: 35% and 48%;
• separated fathers: 42% and 50%; and
• separated mothers: 37% and 45%.

Such trends may reflect a small cultural shift in views towards an increased conviction that continuing involvement of both parents is beneficial for children after parental separation. It will be important to check whether support for the idea that the continuing involvement of both parents is beneficial for children after separation is sustained over time or whether it continues to increase.

In the meantime, it is important to note that a substantial proportion of separated and non-separated parents (38-50%) indicated strong endorsement of this view in 2009.

6.1.2 Views about the appropriateness of equal care time for children of different ages

Participants in the GPPS 2009 were asked to indicate whether they considered that equal care time for children of different ages (or developmental stages) was "totally appropriate", "sometimes appropriate", "sometimes inappropriate", or "totally inappropriate", where there were no safety issues.⁷ The ages (or stages) covered children under 3 years old, 3-4 years old, children in primary school, and those in secondary school.⁸

Views of fathers and mothers in general

Figure 6.3 shows the patterns of answers provided by all fathers and mothers (regardless of whether they had or had not experienced separation).

Figure 6.3 Parents' views about the appropriateness of equal care time for children, by different age groups, fathers and mothers, 2009

Note: Percentages may not total exactly 100% due to rounding.

Source: GPPS 2009

The proportion of fathers and mothers who believed that equal care time was "totally appropriate" for children increased according to the children's age (fathers: from 32% to 57%; mothers: from 23% to 45%). Only 2-7% of fathers and 4-11% of mothers believed that equal care time was totally inappropriate for children across different age groups, with the proportions stating this decreasing very marginally with children's increasing age.

For children under 3 years old and 3-4 years old, both fathers and mothers most commonly believed that the appropriateness of equal care time depended on other factors. That is, such an arrangement was seen as sometimes appropriate or inappropriate. Mothers also most commonly held this view for children in primary school, and for children in secondary school were equally divided between seeing it as "totally appropriate" or as depending on other factors. Fathers most commonly believed that equal care time was totally appropriate for children in primary and secondary school.

For each age group, fathers were more likely than mothers to believe that equal care-time arrangements were "totally appropriate" (e.g., for children under 3 years: 32% compared to 23%; for children aged 3-4 years: 38% compared to 27%). Only 3-4% of parents volunteered that they were too uncertain to provide answers to these questions.

A key message suggested by these results is that, even for children under 3 years old, the vast majority of mothers and fathers believed that equal care time was at least sometimes (if not totally) appropriate for children.

Views of separated and non-separated fathers and mothers

In addition to opinions about care-time arrangements varying according to whether or not parents had separated, they also varied among separated parents according to the different care-time arrangements they had for their focus child. Figure 6.4 captures the views of non-separated fathers and mothers ; fathers who indicated that their child mostly lived with their mother; mothers who indicated that this child mostly lived with them; and fathers who reported that the child spent much the same time with each parent.⁹

Figure 6.4 Parents who thought that equal care time was totally appropriate for children, by different age groups, non-separated and separated fathers and mothers, 2009

Source: GPPS 2009

For all five groups of parents, the proportion who said that equal time is totally appropriate increased with the age of the child. Across the four age groups, fathers were more inclined than mothers to consider such arrangements to be totally appropriate. Also across the four age groups, separated fathers who had equal care time with their child were clearly the most likely of all groups to believe that such arrangements were totally appropriate, followed by separated fathers whose child lived mostly with their mother. Separated mothers whose child lived mostly with them were the least likely to consider that equal care time for children in each age group was totally appropriate.

For children under 3 years old, only a minority of parents (other than fathers with equal care time) accepted that equal care-time arrangements were totally appropriate and the separated and non-separated groups of mothers were less likely to accept this idea than were the various groups of fathers. The parents least likely to consider such arrangements to be totally appropriate for children under 3 were separated mothers whose child lived with them most of the time (14%), followed by non-separated mothers (25%), then non-separated fathers (32%) and separated fathers whose child mostly lived with their mother (36%). By contrast, around half of the separated fathers with equal care time considered such arrangements for children under 3 years old to be totally appropriate.

6.2 Prevalence of different care-time arrangements: Reports of parents who separated post-reform

This section focuses on the care-time arrangements reported by parents who participated in LSSF W1 2008.¹⁰ Four issues are examined: (a) the prevalence of various care-time arrangements experienced by children of different ages; (b) similarities and differences in the trends suggested by the reports of fathers and mothers; and (c) the meaning of daytime only care.

Care-time arrangements can be extremely complex and the categories adopted, which are set out below, are based on the overall proportion of nights per year that the focus child spent with each parent, as reported by the parents. These categories are consistent with those used in the child support formulae:¹¹

• 100% of nights with mother - the father may or may not have daytime contact with the child;
• 1-13% of nights with the father and 87-99% of nights with the mother;
• 14-34% of nights with the father and 66-86% of nights with the mother;
• 35-47% of nights with the father and 53-65% of nights with the mother;
• 48-52% of nights with each parent;
• 35-47% of nights with the mother and 53-65% of nights with the father;
• 14-34% of nights with the mother and 66-86% of nights with the father;
• 1-13% of nights with the mother and 87-99% of nights with the father; and
• 100% of nights with father - the mother may or may not have daytime contact with the child.

In addition, two variants of the first and last categories (involving 100% of nights with one parent) were examined: where the child never saw the other parent, and where the child saw this parent during the daytime only.

The gender of the parent who had the majority or minority of care nights, "no care time" or "daytime-only care" is also taken into account, because the circumstances linked with a mother having minority or no care time may differ from those in which the father has minority or no care time.

For succinctness, children who spend 66-99% of nights with one parent are described as spending "most nights" with this parent and only "a minority of nights" with the other parent.

Consistent with the CSA child support liability cut-offs, children with 35-65% of nights in the care of each parent are considered to have "shared care-time arrangements".¹² This set of arrangements is also subdivided as follows: (a) 53-65% of nights per year with their mother and 35-47% of nights with their father; (b) 48-52% of nights per year with each parent; and (c) 35-47% of nights with their mother and 53-65% of nights with their father. In the present report, these three variants of shared care time are respectively referred to as "shared care time involving more nights with the mother", "equal care time" and "shared care time involving more nights with the father".

In practice, the scheduling of time with each parent is commonly linked with the significance of specific days or periods (weekdays, weekends, school holidays and festive days such as Christmas Day, Fathers or Mothers Day and birthdays). For example, a child who stays overnight with one parent every Friday and Saturday of the year, along with every Sunday for half the weeks in a year would be classified as having a shared care-time arrangement (i.e., they spent, on average, 2.5 nights every week per year, or 35% of nights per year, with this parent).

Prior to the implementation of the new child support formula, children were typically considered to have shared care-time arrangements when they stayed overnight with each parent for 30-70% nights per year. Despite the broad range of time encompassed by that definition, the 30-70% cut-off has been termed "equal-time parenting", "shared-time parenting", "50/50 shared care" and "near-equal shared care" (Smyth, 2009). These terms are not generally used in care-time arrangements for children of different ages

Table 6.1 shows the prevalence of different care-time arrangements experienced by children of different ages.¹³