FDR practitioners and lawyers

21.89 The level of cooperation and collaboration between FDR practitioners and lawyers was raised as an issue in both the AIFS evaluation and the 2009 report of the Family Law Council.^[151] The AIFS evaluation noted the potential for the aims of legal and service professionals to conflict, and supported initiatives to promote ‘responsible FDR’ between lawyers, FDR practitioners and others in the sector.^[152]

21.90 Research by Professor Helen Rhoades and others in 2008, on inter-professional relationships between FDR practitioners and lawyers, demonstrated that although some practitioners enjoy positive professional contact, many have little collaborative contact with the other profession and there are some significant misunderstandings and tensions between the two groups.^[153] This study found that successful collaborative relationships were marked by a number of features:

• practitioners described their relationship as a complementary services approach in which each group saw themselves and the other profession as contributing different but equally valuable complementary skills and expertise to the dispute resolution process;

• practitioners from both groups understood and respected the nature of each profession’s roles, responsibilities and ways of working with family law clients;

• practitioners had a shared expectation of the dispute resolution process and a shared understanding of the FDR program’s aims and approach to working with family law clients;

• family lawyers engaged in ‘positive’ advocacy practices;

• practitioners trusted the intake screening and referral practices of the other profession in cases involving family violence; and

• practitioners engaged respectfully with members of the other profession and extended professional courtesies, such as the provision of timely feedback about clients.^[154]

21.91 The focus of the first element of this study was on groups with good inter-professional relationships. In these groups practitioners trusted each other to handle violence appropriately in most cases, although some reservations were still expressed by both groups about the identification and handling of violence.^[155] However, a survey of a larger group of lawyers and FDR practitioners conducted for the same study found that there was much greater distrust of the practices of the other profession in identifying and handling cases involving violence.^[156]

21.92 In its 2009 report, the Family Law Council suggested a number of strategies ‘to develop and enrich inter-disciplinary cooperation and collaboration, particularly between FDR practitioners and family lawyers’.^[157] These recommendations were based on the work by Rhoades and others described above, and included:

• building opportunities for positive personal contact;

• building understanding of roles and responsibilities;

• providing lawyers and judicial officers with information about funded community based programs;

• considering ways to improve communication and feedback about clients; and

• family violence training for both professions.^[158]

21.93 Professor Helen Rhoades and her co-researchers suggested that the Australian Government Attorney-General’s Department, family dispute resolution providers, the Family Law Section of the Law Council of Australia, and state family law associations should consider how to facilitate joint meetings of FDR practitioners and family lawyers to share information.^[159]

21.94 The Family Law Council also recommended the expansion of Australia-wide family pathways networks to support cooperation and referrals across the family relationship and family law system.^[160]

21.95 In the Consultation Paper, the Commissions proposed that measures should be taken to improve collaboration and cooperation between family dispute resolution practitioners and lawyers, as recommended by the Family Law Council.^[161]

Submissions and consultations

21.96 A great majority of those that responded to this issue supported the proposal.^[162] In a confidential submission, one legal service provider noted that there is overlap between the two groups—that some FDR practitioners are lawyers and vice versa.^[163] Further, legal aid FDR models, and some others, employ lawyer-mediators. In these models the parties are generally legally represented, which may be especially important for disputes where there is violence.^[164] As noted by the Law Society of NSW:

The Legal Aid Commission of NSW has a very successful and safe model of FDR. Most of the parties attend FDR with a solicitor. The solicitors are alert to any disclosure of risk to the safety of person or property and they advise their clients accordingly. The solicitor acting for the perpetrator is also alerted to the situation and can play a very positive role by advising their client of the consequences of their behaviour. The solicitor being present also allows the FDRP to remain neutral and impartial.^[165]

21.97 Some submissions also supported the involvement of the family violence community in developing collaborative and cooperative practices between lawyers and FDR practitioners, because of the breadth of experience of working with violence in that community.^[166]

21.98 Most submissions, however, simply expressed strong support for the proposal that measures should be taken to improve collaboration and cooperation between FDR practitioners and lawyers, as recommended by the Family Law Council.^[167]

21.99 The Commissions note that in National Legal Aid’s comments on the 2008 KPMG report—and in particular with respect to legal aid commissions’ strategies for referral pathways to other services—National Legal Aid advised that all legal aid commissions are significant partners in developing and implementing referral pathways across the family law system. National Legal Aid commented that recent pilots and programs funded by the Australian Government Attorney-General’s Department for the provision of legal assistance before, during and after FDR within Family Relationship Centres have built on these strong links.^[168]

Commissions’ views

21.100 The Commissions note that there was strong support for the proposal that measures should be taken to improve collaboration and cooperation between FDR practitioners and lawyers, as recommended by the Family Law Council. As indicated above, the Family Law Council envisaged that improvements in cooperation and collaboration might be achieved through the Australian Government Attorney-General’s Department family pathways networks.^[169] The Commissions also note the suggestion by Rhoades and others that the Attorney-General’s Department, family dispute resolution providers, the Family Law Section of the Law Council of Australia, and state family law associations should consider facilitating joint meetings of FDR practitioners and family lawyers to share information.

21.101 The Commissions acknowledge the extensive record of the Australian Government Attorney-General’s Department in funding and supporting the development of standards in FDR, and the work done by the Department in bringing together organisations of lawyers and FDR practitioners to work collaboratively and cooperatively.

21.102 As the Commissions indicated in the Consultation Paper, while it appears that some lawyers and FDR practitioners have good relationships, there also seems to be room to improve relationships between the two sectors. Given that FDR practitioners and lawyers are likely to be required to work together more extensively as FDR develops, the Commissions recommend that the Australian Government Attorney-General’s Department should continue to take leadership in bringing together organisations of lawyers and FDR practitioners to work collaboratively and cooperatively. In the Commissions’ view, such cooperation and collaboration will contribute to further improvements in FDR practice and standards.