Lawyers and family dispute resolution practitioners: Achieving the child-focused ideal in practice

Dr Cate Banks

Introduction

The family law reforms introduced in the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) were designed "to change the culture of family breakdown from litigation to co-operation" (Ruddock, 2005, p. 110) and to bring a greater child-focus system-wide in the settlement of disputes over children.

Adopting a child-focused approach for Family Dispute Resolution practitioners (FDR practitioners) may not mean a significant difference in the way they interact with clients but it challenges the orthodoxy of legal practice where a lawyer acts for a parent (or other party to the proceedings not including the child) and owes a duty to that client and to the court. Consistent with previous research (Banks & Hook, 2005), most family lawyers interviewed in this study see themselves as child-focused and believe they have a role in improving the quality of post-separation relationships between parents by attenuating conflict, developing workable arrangements and, where necessary, by referring clients to other family law professionals, such as counsellors, psychologists and mediators. However two kinds of problems emerge. First, just as there is a range of different stakeholders in the family law system, there are also different "visions" of what it means to be child-focused. In addition there are clear constraints on achieving a universal ideal of child-focused practice because of the different roles, perspectives and expectations of those stakeholders. This article provides a snapshot of how the different meanings of the child-focused ideal applied by FDR practitioners and lawyers play out in practice and provides a glimpse of what appear to be the most dominant constraints in achieving their visions.

The research

Between November 2006 and March 2007,2 117 family law stakeholders in Queensland were interviewed - including lawyers,3 FDR practitioners (mediators and counsellors),4 judicial officers5 and self-represented litigants.6 The interviews were semi-structured, were conducted face-to-face or via phone and took between 1-2 hours. The interviews were conducted when the reforms were relatively new and investigated a range of experiences of the new child-focused policy changes of these stakeholders. This article reports on the interviews with lawyers and FDR practitioners.

Thematic analyses of the interviews revealed that both lawyers and FDR practitioners shared a commitment to being child-focused. However there was no clear shared understanding of the term between the disciplines (law and social sciences) and within groups there was a nuanced understanding of what it means to be child-focused. In addition, all of the professionals identified factors they believed constrained them from being child-focused. The most dominant constraint for lawyers was their ethical duties to the client and the court. Two dominant constraints were shared by both groups:

§  the legislative presumption of shared parenting and the related legal obligations imposed on particular family law professionals;7 and

§  the capacity or attitude of the parents.

Defining the child-focused ideal

How practitioners go about defining the child-focused ideal will inevitably impact upon how they apply it in practice, and in turn how it is perceived by other stakeholders in the family law system.

Lawyers

Most lawyers for parties8 framed their understanding of being child-focused in terms of the best interest of the child. Consistent with the findings of Rhoades, Sanson, Astor, and Kaspiew (2006) lawyers see being child-focused as a process to achieve the best interests of children as an outcome. For most lawyers a child-focused process and the best interest outcome were synergistic.

Some lawyers simply used the term child-focused as the process of checking off the factors found in s60CC in the Family Law Act 1975 (Cth).9 Other lawyers seemed to use their legal understanding of a child's best interest to guide their management of a case more holistically. Those lawyers, who explicitly focused their attention on how the factors in the Act could be applied to their client's case, found defining their child-focused approach relatively simple.

There were a small number of lawyers who were entirely focused on the child, even when they represented a parent. But most lawyers used the framework of the legislation to structure their child-focused approach in the context of workable family arrangements. While their approach was less legalistic and more holistic, ultimately their end goal, the best interest of the child, still had a legal meaning. This is a different understanding of the best interest of the child than was used by FDR practitioners.

FDR practitioners

Just as most lawyers saw being child-focused as a process of achieving the best interest principle, so did many of the FDR practitioners. But just as the term best interests has a very different meaning from that used by lawyers, so too does the process of being child-focused.

Most FDR practitioners said that being child-focused meant directing parental attention to the child as part of a family system, and as such the process of establishing the best interest of the child is organic. For them, the process is holistic and therapeutic, not legalistic. Some of those practitioners were concerned that the legal meaning of best interest had more weight than the therapeutic definition and may trump the latter when tested in court. Some practitioners expressed resentment that the term had been colonised by the legal framework and that the legal use of the terminology diminished its value.

Constraints

Many of the professionals across both disciplines felt constrained in some way from being child-focused. Lawyers felt most constrained by their ethical duties, their duty to the court and their duty to the client. As I have found in a previous study,10 family lawyers believe they are often conducting a fine balancing act between their ethical duties in order to be child-focused (Banks, 2007). But two other dominant constraints emerged from this data across the two groups of professionals. Those constraints are the shared parenting/protection dichotomy in the legislation, and the attitude of a client or parent.11 These will be discussed in turn.

Ethical duties - lawyers

All of the lawyers said they faced some constraint on being child-focused by their ethical duties. As stated previously, there were a significant number of lawyers who considered they had a triple duty - duty to the court, their client and the child - even when they were not acting as an independent child lawyer (Banks, 2007). Almost all of the lawyers seemed concerned about how to balance their desire to be child-focused with their ethical duties. This difficulty was amplified when there were also allegations of family violence or abuse.

Shared parenting - lawyers

Many of the participants I spoke to feel that their goal for a child-focused approach is seriously compromised by the shared parenting provisions under the new legislation, particularly when violence and abuse may be alleged but not yet substantiated.

According to the lawyers, there is a danger that the legislative imperative for shared parenting has become a competing consideration to the best interest of the child when making decisions about the children. While the theoretical question of dealing with child abuse and family violence may have been addressed in the legislation,12 lawyers said there are practical difficulties to balancing the dichotomy of time and safety. Many lawyers indicated that children are being sent into unsafe environments in order to satisfy the presumption of shared parenting. They also raised the concern that the "friendly parent" provision or "the willingness and ability of each of the children's parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent" exacerbates this difficulty.13 This is concerning, given that past research raised concerns that facilitating ongoing contact is often prioritised over threat of abuse and danger (Kaspiew, 2005).

Shared parenting - FDR practitioners

Rather than expressing a constraint, the FDR practitioners felt pressured by their new legal obligations to advise parents about the presumption of equal shared parenting.14 They felt they do not have an adequate legal knowledge base to do so and most felt compromised professionally.

FDR practitioners also raised concerns about how family violence was being dealt with since the new reforms, and questioned whether the new reforms may exacerbate the danger to some victims of abuse and violence. Some practitioners also raised concerns about whether safeguards identifying violence were adequate in some of the new Family Relationship Centres.

Client attitudes

The other dominant theme for both professional groups was the parents' attitudes or capacity to be child-focused. Interestingly, the traits of such parents identified by both professional groups were consistent with my discussions with, and observations of, self-represented litigants, particularly those parents who conflate their child's interest with their own.

Lawyers

Many lawyers said that a client's attitudes or capacity to be child-focused was a major obstacle in their own quest for child-focused practice. Many lawyers believe they spend most of their time trying to refocus their clients on the children particularly in oral discussions with the clients and some reinforced this in written correspondence with clients. "Reality testing" is a term used by many lawyers to talk their clients through their demands or requests. A lot of lawyers recognised that clients are often fuelled by emotional responses such as anger and disappointment. As a consequence, many of them utilised counselling and therapeutic measures as an important part of their child-focused legal practice.

Many lawyers also said that being child-focused was as much about changing their own behaviour, such as approaching issues less adversarially or less formally where possible.

FDR practitioners

FDR practitioners also found that clients' attitudes and capacity to be child-focused created difficulties for them at times, and as a result they also adopted strategies to accommodate this. Overall, FDR practitioners felt more at ease at educating and being frank about arrangements based on their professional knowledge of child development and family dynamics. Almost all of the counsellors spoke about building relationships of trust with the parents and children. Mediators, on the other hand, do not build relationships with clients because of their professional neutrality but did express optimism about their ability to maintain a child focus because of their professional knowledge base.

Concluding remarks

This paper briefly discusses how the new child-focused policy and legislative reforms are shaping the practices of lawyers and FDR practitioners. Both groups believe being child-focused is a process to follow in order to achieve the best interest of the child. But that definition of "best interest" also has a different currency in the different disciplines and is also presenting some challenges, as the professions are required to work towards child-focused outcomes. While some of the practitioners have undertaken professional development in order to increase their knowledge base in other disciplines, many have not. Further research into the respective needs of the different professional groups in terms of professional development may assist in identifying strategies needed to navigate their way through these challenges. For instance, lawyers may benefit from having some more information about child development and family dynamics, while FDR practitioners may benefit from a better understanding of the legal proceedings.15 Supported professional development would be of great benefit for the individual professional groups and their clients.

References

Banks, C., & Hook, B. (2005). A question of priorities: How family lawyers address the best interest of the child report. Brisbane: Griffith University, Socio-Legal Research Centre.

Banks, C. (2007). Being a family lawyer and being child focused - A question of priorities? Australian Journal of Family Law, 21(1), 37.

Kaspiew, R. (2005). Violence in contested children's cases: An empirical exploration. Australian Journal of Family Law, 19(2), 112.

Ruddock, P. (2005). Family Law Amendment (Shared Parenting Responsibility) Bill 2005, Second Reading Speec,. House of Representatives., Official Hansard, 21, 8 December 2005.

Rhoades, H., Sanson, A., Astor, H., & Kaspiew, R. (2006). Working on their relationships: Inter-professional practices in a changing family law system (Research Report 1). Melbourne: University of Melbourne.

Resources

Rhodes, H., Astor, H., Sanson, A., & O'Connor, H. (2008). Enhancing inter-professional relationships in a achanging family law system. Final report, May 2008. Melbourne: University of Melbourne. Retrieved 15 April 2008, from <www.law.unimelb.edu.au/files/inter-professionalrelationshipsstudyfinalreport.pdf (PDF 987 KB)>

Dr Cate Banks is a research consultant from Brisbane. She was previously a Post Doctoral Research Fellow from Griffith University. Cate would like to thank Kirstin Winnel who assisted with the original research.