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Tips and Traps for Family Lawyers
and FDR
Susan Hamilton – Green & Jill Raby
Intr
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Obligations as “advisors” when advising or assisting clients in parenting matters
What are these obligations?
How should we carry them out?
Ob
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Understanding the obligations?
1. What is an "adviser" ? 2. What does the legislation say? 3. How do we implement these in practise?
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Who is an advisor?
"adviser" means a person who is: (a) a legal practitioner; or (b) a family counsellor; or (c) a family dispute resolution practitioner; or (d) a family consultant.
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FAMILY LAW ACT 1975 - SECT 60D Adviser's obligations in relation to best interests of the child
• Advice or assistance about matters concerning a child • Regard the best interests of the child as the paramount
consideration • Encourage outcomes on the basis that this is met by
• The child having a meaningful relationship with both parents
• And more importantly by the child being safe-being protected from abuse,
neglect or family violence
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FAMILY LAW ACT 1975 - SECT 63DA Additional obligations of an advisor
Giving advice about parental responsibility • Could consider entering into a parenting
plan • Inform about how they can enter into a
parenting plan, and the content of a parenting plan
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FAMILY LAW ACT 1975 - SECT 63DA Additional obligations of an advisor
Giving advice about making a Parenting Plan • Could consider Equal time if in best interests and
reasonably practical • If not, then could consider substantial and
significant time if in the child’s best interests and reasonably practical
• Matters that a parenting plan can include • Existing parenting orders will be subject to the parenting plan
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FAMILY LAW ACT 1975 - SECT 63DA Additional obligations of an advisor
Giving advice about making a Parenting Plan Cont’d • The desirability of entering into the Parenting Plan • Communication and dispute resolution • The need to take account of changing needs or
circumstances • The availability of assistance for future difficulties • A court will have regard to the most recent parenting plan
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How are these obligations met in practice? • Are pamphlets sufficient/helpful? • Do you know enough to discuss “best interest of
a child”? Does this involve understanding of developmental stages? Parental capacity? Communication?
• How do you talk about the Court’s approach to the legislative pathway? • What impact do issues of family violence, substance abuse or mental health issues have on your ability to fulfil your obligations?
Ob
ligat
ion
s as
ad
viso
rs?
How are these obligations met in practice? • Are pamphlets sufficient/helpful? • Do you know enough to discuss “best interest of
a child”? Does this involve understanding of developmental stages? Parental capacity? Communication?
• How do you talk about the Court’s approach to the legislative pathway? • What impact do issues of family violence, substance abuse or mental health issues have on your ability to fulfil your obligations?
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Our obligations to facilitate FDR It is now generally accepted that any person seeking a parenting arrangement must attend FDR prior to applying for a parenting order. What are our obligations to facilitate this? How can these obligations be met in practise?
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Legal requirements
Objects of the Act s60I(1) The object of this section is to ensure that all persons who have a dispute about matters that may be dealt with by an order under this Part (a Part VII order ) make a genuine effort to resolve that dispute by family dispute resolution before the Part VII order is applied for.
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Legal requirements
SECT 63DA (1) If an adviser gives advice or assistance to people in relation to parental responsibility for a child following the breakdown of the relationship between those people, the adviser must: (a) inform them that they could consider entering into a parenting plan in relation to the child; and (b) inform them about where they can get further assistance to develop a parenting plan and the content of the plan.
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Best Practice Guidelines for Lawyers Doing Family Law Work –Family Law Council The Benefits of mediation/family dispute resolution 3.7 Lawyers should explain to their clients the potential benefits of mediation/family dispute resolution. These include: • when a family law dispute arises, it is generally better if
the couple can jointly sort out the practical arrangements for the future
• the aim of mediation/family dispute resolution is to help separating couples find a solution that meets the needs of all involved, especially any children, and one that they both feel is fair.
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Best Practice Guidelines for Lawyers Doing Family Law Work –Family Law Council The Benefits of mediation/family dispute resolution
• mediation/family dispute resolution can help to reduce long term tension, hostility and misunderstandings and so improve communication between separating couples. This is especially important if children are involved, as separating couples may need to cooperate over their care and upbringing for some
years to come, and mediation/ family dispute resolution is not only cheaper and quicker than litigation, it may also save on emotional stresses.
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How are these obligations met in practice? 1. How genuine is the attempt?
2. When should this be done? Now or later? 3. Over how long should this be done? Ongoing sessions or not? 4. What capacity does the client have to effectively participate? If lacking how can this be addressed? 5. What supports are necessary: legal, psychological, financial or other? Prior, during or after? 6. Should this be a legally assisted process or not? 7. What type of FDRP? Legal/social science? Male/female? Culturally relevant?
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How are these obligations met in practice?
8. How can or should the child’s voice be heard? 9. What impact do issues of family violence, substance abuse or mental health issues have on your ability to fulfil your obligations? 10. What resource do you have or need to find the right fit?
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Case study You are consulted by Jill, either as a family lawyer in your first
consultation, or as a family dispute resolution practitioner in your intake session. Jill tells you that she met Jack at a nightclub about 2 years ago and the next morning she woke up at his place. Nine months later her daughter Mary was born. They have never lived together, but Jack has spent time with Mary in Jill’s presence for a few hours every week. She has been able to insist on this arrangement as until now she has been breast feeding Mary. Jack is putting a great deal of pressure on her to allow Mary to spend weekends with him. She finds him very difficult to talk to about Mary. He does not seem to under stand how she feels about being away from Mary, and how unsure she is about how Mary will cope with this. She feels that he talks down to her as she has not been able to find a job since she left school, and now she just wants to stay home and look after Mary. She does not know how she can resist his pressure.
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Case study “The paramount consideration is the best interests of the child” How do you explain what this means to Mary? How do you describe what this means in this situation? What would you say to her about the need for Mary to have a meaningful relationship with both herself and jack, but to balance this against the need for Mary to be safe, comfortable and secure? Mary tells you that is does not want to go to court, and that she wants to be able to have an understanding with Jack that would be a good one at her age, and allows for changes as she grows older. What would you say about a Parenting plan, and the sort of arrangements that should be considered? Would you mention equal time, and/or substantial and significant time? What would you say about communication, enforceability and future difficulties?
