2.1 Justice in relation to process: from adversarialism to non-adversarialism

Family disputes have various aspects to them, including interaction between parties, property, financial and so on (Fehlberg et al., Reference Fehlberg2014). The how of management and/or resolution of these disputes matters, and this relates to process. Processes of FDR must enable just resolution of disputes.

Justice in relation to process (procedural justice) has various conceptualisations, including utilitarian, outcome-based and dignitarian (Meyerson and Mackenzie, Reference Meyerson and Mackenzie2018, p. 2; Miller, Reference Miller1999, p. 21). Utilitarian and outcome-based theories are instrumental, while dignitarian and/or relational justice are non-instrumental (Meyerson and Mackenzie, Reference Meyerson and Mackenzie2018; Blader and Tyler, Reference Blader and Tyler2015; Akin Ojelabi, Reference Akin2019). There are doubts as to whether utilitarianism concerns fair processes because of the focus on the social cost of designing them. To the utilitarian, there is a need to balance the cost of providing fair processes against the benefits (Meyerson and Mackenzie, Reference Meyerson and Mackenzie2018, pp. 3–4). Outcome-based theories consider processes instrumental in achieving a just outcome. A just outcome may be reached if a fair process is used (Rawls, Reference Rawls1999; Akin Ojelabi, Reference Akin2012; Meyerson and Mackenzie, Reference Meyerson and Mackenzie2018, pp. 5–6). The dignitarian conception of procedural justice is non-instrumental and considers fair processes valuable in a decision-making process to the extent that the parties have opportunity to air their grievances, feel they have been heard and have been treated fairly in the process. These relational aspects of procedural justice lead to the perception of fairness by a disputing party even if the outcome is unfavourable (Blader and Tyler, Reference Blader and Tyler2015).

Procedural justice has been referred to as ‘principles developed to ensure that fair decision-making procedure is followed and to enhance the substantive quality of decision-making’ (Katzen and Douglas, Reference Katzen and Douglas1999, p. 171, emphasis in original; Rawls, Reference Rawls1999, pp. 85–87). Procedural justice factors include equal participation, the opportunity to provide relevant information and to be heard, and equal treatment (which includes the absence of bias on the part of the third party, impartiality and disclosure of any potential conflicts of interest). In Australia, these are outlined in ADR practitioner codes of conduct, including the National Mediator Accreditation Standards (NMAS) Practice Standards (Mediator Standards Board, 2015). The Practice Standards provide that mediation must be conducted in a procedurally fair manner, ensuring lack of bias and disclosure of conflicts of interest.Footnote ² Similar principles apply in litigation, where procedural fairness consists of two broad principles: the hearing rule and the no-bias rule. The hearing rule is about giving the ‘opportunity to be heard to a person whose interests will be adversely affected by the decision’ (Katzen and Douglas, Reference Katzen and Douglas1999, p. 196). The rule against bias ‘requires a decision-maker to be neutral and unbiased’ (Katzen and Douglas, Reference Katzen and Douglas1999, p. 204). The actual content of these rules is determined by the nature of the proceedings (i.e. whether they are adversarial or inquisitorial). However, these principles safeguard decision-making processes from unfairness and injustice. This section explores family-law legislation since the 1975 changes to the FLA to uncover the extent to which procedural justice concerns raised by the public have been addressed through legislation. It argues that more efficient and less adversarial processes are required for family-law disputes.

Adversarial proceedings present specific challenges to lay and disadvantaged litigants regardless of procedural fairness rules that apply (Young et al., Reference Young2016, p. 51). Arguably, those challenges including time (delay) and associated costs relate to the excesses of legal practitioners who present their clients’ cases. In those proceedings, the right to be heard is usually exercised by legal practitioners on behalf of their clients. The lawyers present their clients’ cases in an adversarial manner, utilising all the skills of oral presentation and argumentation learnt at law school and on the job. For these lawyers, adversarial lawyering can depict ‘a competitive battle between foes or contestants … often associated in popular culture with partisan and unfair litigation tactics’ (Australian Law Reform Commission, 2000, p. 90; 2019, pp 33, 47, 50; King et al., Reference King2014, pp. 3, Chapter 8). These negative attitudes and behaviours have dire consequences when adopted in the resolution of family disputes and were the point of severe criticism of the family justice system pre and post the 1975 reforms (see e.g. Senate Standing Committee on Constitutional and Legal Affairs, 1974). The approach also has consequences for procedural justice, particularly: where one party is unrepresented; where one party is better resourced and can seek the services of a more experienced lawyer (Hunter, Reference Hunter2003); or when one has access to more information or support (Giddings and Robertson, Reference Giddings and Robertson2001). These criticisms prompted changes to Australia's family-law legislation.

The vision of a shift from adversarial processes to non-adversarial dispute-resolution processes in the family-law system was evident in the FLA 1975, which repealed the Matrimonial Causes Act 1959 (Cth) (MCA). The MCA introduced a uniform Australia-wide legislative regime governing divorce and was perceived as innovative and in line with social change (because of its recognition that divorce was a socially justified status (Commonwealth, 1959, pp. 2706–2707). The legislation's justice perspective encompassed spousal maintenance, the welfare of Australian families and children, and marriage counselling in the interests of reconciliation.Footnote ³ However, justice, adversarialism and vengeance were intertwined. A legal outcome for divorce involved judicial determination and the associated competitive, zero-sum game.

The narrative of justice in the family arena involved naming, claiming and blaming (Swain, Reference Swain2012; Felstiner et al., Reference Felstiner, Abel and Sarat1980–1981). Justice in relation to divorce proceedings was to be accessed only if a party was able to prove ‘fault’ on the part of the other. The MCA provided fifteen grounds for divorce (MCA, s. 28), including adultery, desertion, cruelty and habitual drunkenness. The ‘fault-finding mission’ undertaken when seeking divorce resulted in notoriously adversarial approaches that characterised the family justice system at the time. As noted by Moloney, ‘a great deal of the bitterness associated with separation and divorce was caused by the fault-focused nature of most applications for dissolution’ (Moloney, Reference Moloney, Hayes and Higgins2014, p. 246, emphasis in original; Harrison, Reference Harrison2007, p. 2; Swain, Reference Swain2012). Couples would use various undignified and very costly processes to obtain relevant evidence in support of fault (Senate Standing Committee on Constitutional and Legal Affairs, 1974, p. 24).Footnote ⁴

A shift from adversarial to non-adversarial family-law processes and the introduction of no-fault divorce (King et al., Reference King2014, p. 136) were aimed at more collaborative resolution of family disputes. King et al. allege non-adversarialism was fostered by two ideological imperatives: adversarialism not being a suitable approach to resolving family disputes and the expenses of legal proceedings being exorbitant. In addition, they suggested that complaints about the family-law system (formality, delay and administrative burden) had increased and men's groups increasingly echoed their dissatisfaction, with claims about adversarialism, bias against fathers and the influence of feminist practices (King et al., Reference King2014, pp. 136–137; Dewar and Parker, Reference Dewar and Parker1999).

Whilst not making provision for full-blown ADR processes, the Family Law Bill 1974 proposed changes that were aimed at removing the ‘oppressive costs, delays, indignities and other injustices’ (Commonwealth, 1973, p. 2827) to ensure ‘maximum fairness and … minimum bitterness, distress and humiliation’ (Commonwealth, 1973, p. 2828) in divorce proceedings. Part of the changes required focused on settlement, reconciliation and counselling (based on an understanding of family problems) (Astor and Chinkin, Reference Astor and Chinkin2002, p. 17). The new FLA established the Family Court of Australia. The court, according to Astor and Chinkin, was to be ‘a new type of court that would act with the minimum formality, coordinating the work of ancillary specialists, encouraging conciliation and only applying the judicial power of the court as a last resort’ (Astor and Chinkin, Reference Astor and Chinkin2002, p. 17).

This vision of the Family Court was thus a court that would improve procedural justice in family-law proceedings. The Family Court was to adopt a problem-solving rather than an adversarial approach to the resolution of family-law disputes. The court was to be a ‘helping court’ that would provide ‘counselling not merely to assist reconciliation, but also to provide for the reduction of bitterness and distress and in alleviating on-going post-divorce problems’ (Senate Standing Committee on Constitutional and Legal Affairs, 1974, p. 17, para. 34).

A multidisciplinary approach was envisaged – an approach that would bring together lawyers, psychologists, social workers and other relevant professions to work together to meet the needs of parties – rather than one that would simply apply legal principles and rely on adversarial lawyering to persuade the court to form a positive view on the strength of the case (Senate Standing Committee on Constitutional and Legal Affairs, 1974, pp. 18–21). The court was not to be the sole domain of lawyers, but open to various professions to contribute their knowledge and skills to the protection of the institution of marriage. It was also canvassed by the Senate Committee that, while ‘the legal profession will continue to represent parties, … training in behavioural sciences will obviously become more important for those specialising’ in family-law dispute resolution (Senate Standing Committee on Constitutional and Legal Affairs, 1974, p. 20, para. 40). The multidisciplinary approach, it was hoped, would reduce litigation and arguably result in an attitudinal change on the part of lawyers. Furthermore, it would provide ample opportunities for parties to be heard and for their actual needs to be met, thereby improving procedural justice – particularly in relation to the perception of parties about the treatment received during proceedings, the length of time taken to resolve disputes and general process fairness.

However, the adversarial elements of lawyering were left intact. Lawyers were still required to ‘inform the parties as to their legal rights’ and judges were to ‘control the proceedings, advance optional solutions and create the “climate” for settlement. But if there was no settlement, the necessary decrees must be judicial and must be seen to be judicial’ (Senate Standing Committee on Constitutional and Legal Affairs, 1974, p. 20, para. 39). The court still had to rely on lawyers presenting their client's case in an adversarial manner.

The initial changes were arguably ‘baby steps’ towards non-adversarial dispute resolution: an approach considered to be more advantageous for parties (King et al., Reference King2014, Chapter 9). They did not result in a culture change towards non-adversarial processes for the resolution of family disputes. It has been suggested that, while the 1975 changes successfully removed ‘no-fault’ divorce and created ‘a single ground for the dissolution of marriage’, its ‘limitations … as a tool to reduce post-separation conflict soon became apparent’ and ‘adversarially driven litigation and negotiations were … increasingly … seen as processes that inflamed rather than reduced conflict’ (Moloney, Reference Moloney, Hayes and Higgins2014, p. 246; King et al., Reference King2014, p. 139). In other words, the problem was with the procedure and the behaviour of lawyers in the process, rather than the substance of the law. Removal of fault as the basis of divorce was insufficient to curb the adversarial excesses of legal proceedings and lawyers.

To further collaboration and restore peace in families, the 1975 changes focused on the use of counselling services and welfare officers to promote reconciliation and address custodial issues (Joint Select Committee on Certain Aspects of the Operation and Interpretation of the Family Law Act, 1992, p. 79). A 1992 inquiry into the operations of the Family Court Counselling Service, however, revealed that the programme was not adequately funded and, as such, could not fulfil its objectives. Additional needs for reform were identified, leading to further reform to the FLA: ‘The Committee believes that there is a need to expand the role of approved marriage counselling and mediation agencies to make their services more accessible’ (Joint Select Committee on Certain Aspects of the Operation and Interpretation of the Family Law Act, 1992, p. 79).

A reform of the FLA was legislated by the Family Law Reform Act 1995 (Cth) (‘Family Law Reform Act’). This legislation expanded the use of ADR in the resolution of family disputes in Australia (Part III – Primary Dispute Resolution, Family Law Reform Act 1995 (Cth); Alexander, Reference Alexander1997). The Explanatory Memorandum to the Family Law Reform Bill 1994 outlined the reforms in relation to dispute resolution as follows:

• ‘• facilitate the greater use of mediation, counselling and arbitration, in the resolution of family law disputes, both within the court and in approved organisations in the community;

• • provide for an approval mechanism for community based counselling and mediation organisations to become approved mediation and/or counselling organisations under the Family Law Act;

• • to expand the opportunity of approved organisations to undertake mediation and counselling that arises under the Family Law Act;

• • extend the immunity provisions that presently exist for court based personnel to approved mediators;

• • extend the secrecy and admission provisions that presently exist for court based personnel to approved community mediators and counsellors.’ (Commonwealth, 1994, p. 1, para. 2)

Under the new legislation, mediation, arbitration and counselling were recognised as the ‘primary dispute-resolution’ (PDR) processes for family-law disputes, as opposed to adjudication (Young et al., Reference Young2016, p. 52).Footnote ⁵ The provisions and accompanying rules and regulations were referred to, at the time, as ‘one of the most comprehensive legislated ADR schemes in the world’ (Rhoades et al., Reference Rhoades, Graycar and Harrison2000; Altobelli, Reference Altobelli2001, p. 391). The provisions placed control of decision-making processes with parties. The processes aimed at resulting in agreements that parties had worked together to achieve and were more likely to comply with as a result. The court could register parenting plans that were the outcomes of PDR processes.

Much of the criticism around the 1995 reforms concerned participation, which is an essential element of procedural justice. The provisions were said to be confusing as to whether PDR was compulsory or voluntary. In addition, there were provisions in relation to suitability or appropriateness of mediation that did not apply to conciliation or counselling (Altobelli, Reference Altobelli2001, p. 394). There were also concerns about the use of PDR by unrepresented litigants who would not have the assistance of a lawyer to help them engage effectively with the process (Rhoades et al., Reference Rhoades, Graycar and Harrison1999; Altobelli, Reference Altobelli2001, p. 398). The provisions related to assessments of parties’ abilities to participate freely following a history of family violence, concerns about safety, unequal bargaining power, health issues and children suffering abuse (Altobelli, Reference Altobelli2001, p. 394). These provisions were to ensure procedural justice, to the effect that a party had the opportunity, in an enabling environment, to articulate their needs, interests and concerns without fear.

However, an empirical evaluation of the 1995 reforms reports that the ‘confusion and dissatisfaction amongst parents and legal practitioners about the interpretation and effects of the legislative changes … appears to be encouraging rather than discouraging [litigation]’ (Rhoades et al., Reference Rhoades, Graycar and Harrison2000, p. 93). Evaluation also revealed that there was reluctance on the part of lawyers to use PDR processes and the ‘confusion and dissatisfaction’ with the reform created greater opportunities to litigate (something the lawyers were ‘delighted’ about) (Rhoades et al., Reference Rhoades, Graycar and Harrison2000, p. 98). Lawyers still had the capacity to engage in zealous adversarial advocacy practices within the PDR environment. The attempt, then, to change from an adversarial process of dispute resolution to a non-adversarial process was not overly successful in the 1995 reforms (Rhoades et al., Reference Rhoades, Graycar and Harrison2000, p. 93).

There were many reasons for the slow uptake of PDR: lack of enthusiasm on the part of lawyers, a preference for litigation by some parties (as reported by lawyers) and the unsuitability of mediation or conciliation for women experiencing family violence (Rhoades et al., Reference Rhoades, Graycar and Harrison2000, p. 98). In relation to family violence, the failure of the system to pay attention to family-violence issues and the lack of resources to address family violence when provisions were designed to increase awareness of violence have been raised as issues. The law as reformed did not adequately protect women's interests (Dewar and Parker, Reference Dewar and Parker1999; Armstrong, Reference Armstrong2001, pp. 10–12). It has also been noted that the law as reformed appealed to various occupational or professional groups differently and that made a difference in the approaches taken to support or advocate for parties and expectations created (Dewar, Reference Dewar2010, p. 143).

Substantial changes were made to the FLA in 2006. The changes brought FDR processes to the fore in the resolution of family-law disputes, particularly in relation to parties seeking parenting orders (Young et al., Reference Young2016, p. 52). The changes required parties seeking parenting orders from a court to, in the first instance, have attempted to resolve the matter through FDR (FLA, s. 60I). In summary, the changes were said to ‘represent a generational change in family law and aim to bring about a cultural shift in how family separation is managed: away from litigation and towards cooperative parenting’ (Commonwealth, 2005, p. 1).

Underlying values of the amendments included the recognition that children need to have meaningful relationships with both parents; the need for parents to have shared responsibility for children after separation; enhancing the culture of resolving disputes personally and in a non-adversarial manner; and the need for children to live in a safe environment free from violence and abuse (Commonwealth, 2005, pp. 1–3; AIFS, 2009, E1). The policy objectives of the amendments were stated as follows:

1. ‘1. help to build strong healthy relationships and prevent separations;

2. 2. encourage greater involvement by both parents in their children's lives after separation, and protect children from violence and abuse;

3. 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. 4. establish a highly visible entry point that operates as a doorway to other services, and helps families access such other services.’ (AIFS, 2009, E1; Commonwealth Senate, 2006, p. 20, paras 85–86)

To accomplish the objectives, sixty-five Family Relationship Centres were established to provide multiple family services and be the main provider of FDR. In addition, a Family Relationship Advice Line was created to assist families with relationship and separation issues.Footnote ⁶ The FLA encourages people ‘to use dispute resolution mechanisms (other than judicial ones) to resolve matters in which a court order might otherwise be made’, including arbitration (FLA, s. 13A(b)(c)). The 2006 reforms offered greater use of FDR: parents were required to ‘attend family dispute resolution before filing a court application, except in certain circumstances’ and ‘legislative support for less adversarial court processes in children's matters’ were introduced (FLA, s. 60I). FDR was defined under the Act as

The FDR process sits within the category of processes referred to as facilitative dispute-resolution processes; it is the same as mediation, although, in Australia, different regulatory processes apply. While it could be said that FDR is a facilitative dispute-resolution process, it is not the same as facilitative mediation under the NMAS. The NMAS requires absolute party self-determination with the mediator having no input into the content of the agreement. Under the FLA, mediators must ensure parenting agreements reflect certain principles, such as the best interests of the child (FLA, s. 60B). This has implications for the justice focus of the FDR process – it is not merely a process that values procedural justice; it is also concerned with substantive outcomes of the dispute process.

The extent to which outcomes of FDR processes and other private orderings, however, reflect the ideal, as laid down by the law, is contested. As noted in the report on evaluations of the 2006 changes, ‘practitioners’ understandings of the law vary and the extent to which such advice or other principles in legislation and case law influence non-litigated agreements is uncertain’ (AIFS, 2009, p. 12). While this has implications for substantive justice, the extent to which different dispute-resolution processes allow the validation or promotion of acceptable societal norms has been a constant issue in ADR. As noted above, FDR is notionally a facilitative dispute-resolution process. The role of the FDRP is to support parties to reach an agreement that is in the best interests of the child and as noted in the AIFS 2009 evaluation report:

These concerns could have significant impacts on the quality of procedural justice in FDR. They affect the parties’ capacities to participate effectively in a self-determinative process, particularly where the relationship is characterised by power asymmetry and violence (Chisholm, Reference Chisholm2009, pp. 163–167) – or where the fundamental values of the process are culturally inappropriate (Family Law Council, 2012). The first significant issue relates to the suitability of the processes in cases where family violence is an issue. Feminist legal scholars have consistently raised concerns about a self-determinative process in cases of family violence (see e.g. Alexander, Reference Alexander1997; Reference Alexander1999; Bagshaw et al., Reference Bagshaw2010). The FLA provides exceptions in such cases, but it has been found in relation to the 2006 reforms that ‘parents who reported experiencing violence (physical or emotional) [are] much more likely to have attempted FDR’ and ‘[f]eeling afraid of the other partner in the session negatively affects the mother's capacity to reach agreement’ (AIFS, 2009, pp. 100–101). As one user reported in the post-2006 evaluation report:

There were also comments about bias in favour of women: ‘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’ (AIFS, 2009, p. 102).

A significant issue in relation to FDR and family violence is that, although services may develop processes for screening, to identify cases involving family violence, research shows that a significant number of women do not report violence – and, in some cases, coercive control and emotional violence may be more difficult to identify when it is not directly disclosed (Bagshaw et al., Reference Bagshaw2010). In some cases where violence had been disclosed, service providers have proceeded with FDR regardless of that disclosure. In these cases, victims must endure sitting in the same room, face-to-face with perpetrators; these are displays of poor-quality procedural justice that lead to unfair outcomes. Bagshaw et al. reported in 2010 that:

However, the research also found that, in some instances, women made conscious decisions not to disclose violence and some who disclosed violence were prepared to proceed with FDR. This last set of women felt disempowered by the grants of exceptions and issuances of certificates (Bagshaw et al., Reference Bagshaw2010, p. 140). In addition, the research found that FDR participants sometimes felt pressured into reaching agreements – even when they were not ready. These factors compromise the self-determinative value of FDR. As noted by Bagshaw et al., it ‘suggests that the desired change for a positive shift “to a culture of agreement making” is having a number of adverse and potentially discriminatory effects for both women and men’ (Bagshaw et al., Reference Bagshaw2010, p. 141, emphasis in original). In a process in which parties are required to be the ultimate decision-makers, achieving ‘mutual and sustainable outcomes’ may be challenging (Field and Crowe, Reference Field and Crowe2017, p. 85). These challenges are not well catered for in FDR: ‘Mediation theory has often glossed over these challenges, positing that the process itself effectively addresses or counteracts them’ (Field and Crowe, Reference Field and Crowe2017, p. 85).

Field and Crowe argue that, most of the time, participants of a mediation process enter the process with limited understanding of the ‘process and surrounding framework’ and the process is ‘structured by underlying expectations and aspirations that may be opaque to the parties’, even though the process may be imbued with ‘many built-in support elements’ (2017, p. 86). Some of the features of mediation that they argue participants may be unaware of include the informality of mediation and the ‘interaction between mediation and the more formal principles and procedures of family law’ (Field and Crowe, Reference Field and Crowe2017, pp. 86–87). The procedural informality, they further argue, may lead to non-identification of injustice because ‘family mediation is not an environment where it can be assumed that everyone is following the same conventions, or that the process evens or levels the negotiation field’ (Field and Crowe, Reference Field and Crowe2017, p. 91). This arguably is due to not only a lack of understanding of the ‘language game’, but also constraints in the process, particularly as it relates to the role of the practitioner in supporting parties to engage in an effective and productive way with the process to achieve just outcomes.

2.2 Justice in relation to efficiency: cost savings and case management

Efficiency is one criterion for access to justice, according to the Federal Attorney General's Department. It is defined as the ‘deliver[y] of outcomes in the most efficient way possible’ and involves ‘early assistance and support to prevent disputes from escalating’, as well as proportionality of the cost of dispute resolution to the issues in dispute (Access to Justice Taskforce, 2009, p. 63). As noted by the Access to Justice Taskforce:

Cost was one of the concerns that led to the introduction of the FLA. The Senate Standing Committee noted:

The Senate Committee canvassed the exorbitant costs of litigation and possibility of reducing costs through simplification of law – thus making the law and its institutions more accessible. However, as noted above, the initial reforms to the FLA did not achieve the simplification hoped for.

The growth and institutionalisation of ADR is due to, among other things, the belief that it is a less costly option for the resolution of disputes (Astor and Chinkin, Reference Astor and Chinkin2002, p. 53). The discourse on costs is, however, more complex. Whilst cost savings, to both government and parties, is one of the advantages of ADR, in some cases a resolution by adjudication via a tribunal might be less costly than attempting ADR (Astor and Chinkin, Reference Astor and Chinkin2002, p. 53; King et al., Reference King2014, pp. 98–99). Here, expenses might contribute to an ADR participant agreeing to an unfavourable outcome (Bagshaw et al., Reference Bagshaw2010, p. 98). These issues have been identified in major research evaluating the family justice system and how the system addresses family violence. The 2010 research by Bagshaw et al. noted a correlation between the costs of commencing legal proceedings and women not reporting family violence:

They also found that the cost of legal proceedings was being used by practitioners to pressure parties to settle out of court: ‘Those respondents felt a powerful pressure to settle their cases on terms which they did not want. The cost of court proceedings was the strongest source of the need to consent to unfavourable arrangements, hence engendering feelings of powerlessness’ (Bagshaw et al., Reference Bagshaw2010, p. 132).

These issues affect the quality of justice generally and they also affect outcome justice. While access to justice in relation to efficiency, cost reduction and case management may have improved, participants’ experiences and outcomes are compromised. In addition, having to use FDR may increase costs for parties, whose matters do not settle and who then need to go to a different forum. Clearly, more research needs to be done in this area; King et al. noted: ‘comparisons between the costs of ADR and litigation see settlement as a goal in itself, and do not assess the quality of outcomes achieved through ADR and adjudication’ (2014, p. 99).

Research conducted across legal-aid commissions in 2008 showed cost savings resulting from use of FDR by government (Attorney-General's Department, 2008, pp. 76–84). The cost savings arose from the court hours saved as a result of using FDR – particularly when the dispute is settled. The report concluded that ‘[a]ll fully resolved matters are expected to avoid litigation costs and therefore represent a benefit to the Australian Government’ (Attorney-General's Department, 2008, p. 84). Thus, the government's cost savings may be a reason for greater support for FDR. No doubt, FDR is also beneficial to participants, although research into the whether the pressure to settle might be jeopardising the quality of justice of FDR outcomes is needed.

2.3 Justice in relation to substance: FDR, best interests of the child and addressing family violence

An important consideration in any discussion about justice involves an examination of substantive outcomes. In family matters, achieving a substantive outcome that adequately protects children from family violence and advances their best interests in all matters is a core concern (Royal Commission into Family Violence, Report, 2016, Vol. 1).

The FLA, as introduced in 1975, was an innovative piece of legislation that provided Australians with a uniform set of provisions governing the suite of issues confronting families following the breakdown of a marriage. Yet, despite its pioneering perspective, or maybe because of it, family law represents one of the most amended areas of law in Australia (Boulle and Field, Reference Boulle and Field2017, p. 103). Section 60CA sets out the guiding principle for judicial decisions in parenting cases: ‘In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration’.

Family violence was not initially listed as a consideration for courts to consider when determining the best interests of the child (Alexander, Reference Alexander2010, p. 913). The omission not only compromised the overarching premise of the Act; it also detracted from the ability to provide just outcomes in parenting cases. This is because risks associated with family violence may be overlooked or not given appropriate weight. As Alexander points out, family violence was perceived as ‘marital misconduct … devoid of any gender considerations and removed from consideration of the welfare or best interests of children’ (2010, p. 914).

A litany of criticism led to significant modifications being made to the Act in 1995 (Rhoades et al., Reference Rhoades, Graycar and Harrison1999). Importantly, the 1995 reforms fostered a shift in emphasis from parental rights to children's rights (Neilsen, Reference Neilsen2010–2011). For the first time, family violence became a significant factor in deciding contact arrangements between parent and child (then, FLA, s. 68F). The next reforms resulted in the enactment of Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) (‘2006 Family Law Amendment’). Neilsen details the changes to the Act (contained in sections 60–65) that promote parents having equal post-separation time with their children as follows:

• ‘• A presumption of equal shared responsibility, inapplicable in cases of family violence or child abuse and rebuttable if not in the child's best interests.

• • If an order for equal shared parental responsibilities cannot be made because it is not in the best interest of the child or not reasonably practicable, a court must consider making an order that grants substantial and significant time with each parent.

• • The primary considerations for determining the best interest of the child are benefits to the child associated with having a meaningful relationship with both parents and the need to protect the child from abuse, neglect or violence. These considerations are known as the ‘twin pillars’.

• • Attendance at FDR is mandatory for parents before they can seek a court order for parenting, with some exceptions, including where family violence exists.’ (Reference Sourdin2010–2011, pp. 5–6)

The requirements for parties to participate in FDR and make genuine efforts to settle their disputes sit within a legislative framework that may have conflicting justice agendas (Sourdin, Reference Sourdin2012). On the one hand, the 2006 reforms engage with the justice discourse that recognises parents’ needs and rights in respect of having a meaningful relationship with their children. On the other hand, a question arises as to how such recognition results in substantive justice for women and children, given there is a raft of evidence supporting the contention that family violence is a gendered crime (Field, Reference Field2016, p. 85). The majority of perpetrators are male. The majority of victims are women (Field, Reference Field2016, p. 85).

If FDR does not satisfactorily address family-violence issues between parties, achieving substantive justice outcomes may be problematic (ALRC Report, 2010, pp. 985–987). The inherent contradiction embedded in the ‘twin pillars’ may compromise substantive justice. Furthermore, if the notion of ‘genuine effort’ is assessed subjectively by the mediator in the private mediation environment, which is not open to scrutiny, how can justice be guaranteed (Astor, Reference Astor2010)? Additionally, there is a paucity of case-law that considers the meaning of ‘genuine effort’. Subsequently, there is little in the way of objective guidelines upon which substantive justice outcomes can rely or be measured.

Interestingly, as noted by Field, literature evaluating the 2006 reforms (particularly the mandating of FDR) points to positive appraisals of legislative changes (Field, Reference Field2016, p. 84). The bases of affirmation include:

• • FDR working well for parents and children;

• • FDR enabling women's voices to heard, and their opinions expressed; and

• • FDR allowing women to participate equally and independently in negotiating agreements.

Notwithstanding this, Alexander asserts that the 2006 reforms, as a package, discourage family-violence disclosure (Reference Alexander2010, p. 928). Field posits that the purist model of mediation cannot produce just outcomes when family violence is present (Reference Field2016, p. 85). She advances the following reasons, which address the hallmarks of the facilitative model, and all of which negatively affect substantive justice outcomes:

• • Fairness is compromised because there is party inequality, reduced self-determination and lack of empowerment.

• • Coercion characterises family violence, resulting in the perpetrators’ inability to satisfactorily engage in the problem-solving, option-creating and co-operative environment upon which the FDR process relies.

Moreover, screening for family violence in FDR processes often fails to identify victims and perpetrators (ALRC Report, 2010). If screening for family violence is inadequate, the result may be that FDR does not deliver adequate substantive justice outcomes. This is particularly so when family violence is not discernible.

In an effort to enmesh the benefits of alternative FDR with a safe process in situations of family violence, the Co-ordinated Family Dispute Resolution (CFDR) was designed to replace FDR following the Family Law Amendment (Family Violence and Other Matters) Act 2011 (Cth). The CFDR model draws on a multidisciplinary, holistic team approach to collaborative problem-solving (Field and Lynch, Reference Field and Lynch2014). Key components of the programme include:

• ‘• rigorous screening for past or present family violence;

• • intake safety plans;

• • client preparation and legal advocacy; and

• • addressing power imbalances.’ (Field and Lynch, Reference Field and Lynch2014, p. 396)

The process was piloted from 2010 to 2012 in five Australian locations (Field, Reference Field2016, p. 86). The paradigm was positively evaluated and described as being at the ‘cutting edge’ of best practice (Kaspiew et al., Reference Kaspiew2012, p. ix). Despite this, CFDR has not been adopted as a model of post-separation mediation, even when there has been a history of family violence. Various other FDR services design processes that enable mediation of family disputes in which violence has been reported (Balvin et al., Reference Balvin2010).Footnote ⁷

King et al. identify several matters to consider in situations of family violence. These include: identification of the violence, victim safety, appreciation of the consequences of the violence, evaluating the accusations of violence and determining how to treat the issues in dispute by taking the violence into account (King et al., Reference King2014, p. 142). It is argued here that substantive justice may not be satisfactorily achieved unless the items on King et al.'s list can be ticked off.