Parenting Plans and Child Inclusive Family Dispute Resolution

INTRODUCTION

The Family Law Act saw considerable changes on 1 July 2007, and for the purpose of this paper, notable changes included those related  to the process of family disputes, the accreditation of Family Dispute Resolution Practitioners (FDRP), the regulation of  client intakes, the imposition of legislative obligations on FDRP’s and most importantly, that the process of family dispute resolution became a prerequisite to the commencement of litigation. Since the 2006 amendments, the rate of family disputes in the Family Court has dropped considerably illustrating the amendments were met with purpose.

This article takes an in-depth look on family dispute resolution, specifically from  a child focused and child inclusive perspective and examines the role of FDRPs and what they must do in order to foster a child focused mediation and how they can assist parents to meet the best interests of their children. It also looks into how an FDRP can develop with parents progressively aligned parenting plans. Additionally, the paper considers the current and historical legislative underpinnings and developments of FDR in Australia to date.

CHILD FOCUSED LEGISLATIVE FRAMEWORK

The current Family Law Act 1975 illustrates a shift towards a ‘child focused’ approach of FDR. Whilst this can be interpreted in a number of ways, the hallmarks are that all decisions, determinations and processes are to be made in the best interests of the children. This is the overarching principle in the Family Law Act (‘Act) in which Part VII of the Act specifically deals.

Before considering the current state of law, it is important to understand how the Act came to support a child focused approach through a slew of amendments from 2006 to today.

Inclusion of children’s views was embodied in the United Nations Convention on the Rights of the Child in 1989 where article 12 acknowledges that children should have a voice in matters that affect them. Moving forward to 2009, the United Nations Committee on the Rights of the Child confirmed that participating states must embody legislative provisions effecting rights of children concerning divorce and separation so that they are heard by decisions makers involved in the mediative processes. Whilst involving children in the FDR process is seen by some as counter intuitive, problematic and potentially risky due to involvement of children in their parents dispute, the 2006 and 2012 amendments to the Family Law Act 1975 (Cth) illustrated Australia’s direction for promoting the ‘best interests of the children’ which inter alia included:

• An outline of the considerations that must be considered for determining what is in the best interests of the child;
• The objects of the Family Law Act were amended to acknowledge inter alia, that its key purpose was to ‘give effect to the Convention on the Rights of the Child’;
• Defined participative advisors such as a legal practitioner, family counsellor, a family dispute resolution counsellor or family consultant;
• Outlined obligations of advisors which included an obligation to encourage parents to focus on what is in the best interests of the child;
• The issuance of FDR certificates under s 60I;
• Making FDR compulsory prior to effecting litigation (subject to exemptions);
• Imposing an obligation on parties to make a genuine effort in FDR.

In further support of a child focused approach in the determination of matters, the federal government enacted and opened 65 centres through Australia with low cost and in some cases free family dispute resolution, with the centres maintaining a facilitative child centric approach.

In the event a matter does proceed to court under legislation, the court ‘must regard the best interests of the child as the paramount consideration’ when making a parenting order. The courts approach in line with s 60CC of the Act is outlined in a two limb approach, the first being that of the ‘primary considerations’ and the ‘additional considerations’. The primary consideration is the benefit to the child to have a meaningful relationship with both of the child’s parents and the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. The secondary considerations include the views of the child, nature of the relationship with either parent and other persons, the parents active participation in making decision for the child, fulfilment of parental obligations for child maintenance, the likely effect of changes on the child, practical difficulty and expense of a child spending time and communication with a parent and its effect on the child, the capacity of the child’s parents, the parent and child’s circumstances, the child’s access to culture, the attitude of the parents towards the child, any matters relating to family violence to the child and any other fact or circumstances the courts thinks is relevant.

Whilst the considerable changes to the Family Law Act have been welcomed by advisors and have shown a down turn in family dispute litigation, there are shortcomings which include a framework that whilst child focused in its design, appears to fall short on a child inclusive front of where children’s voices are actively heard. In the meantime, FDRP’s have a role to facilitate child focused dialogue to bring the child’s best interests first and foremost in the dispute between parents.

ROLE OF THE FDRP

Initially the role of the FDRP, is to assess the suitability of a matter for FDR, to assess risk (if any) and plan for the safety of participants by taking into consideration matters related to any history of family violence, the safety of the parties, equality of bargaining power, any risk of abuse to a child, the emotional/psychological/physical health of the parties in addition to any other matter the FDRP considers relevant. The FDRP needs to quickly build rapport with the parties to get beyond the façade, to reduce one’s reluctancy to openly reveal instances of domestic violence and other threatening behaviours. In the event the FDRP is of the opinion the matter is not appropriate for FDR a certificate should be issued, as such and any mandatory reporting responsibilities be adhered to and executed.

Once the FDRP has established that FDR is appropriate the matter may commence to FDR in which case the FDRP must explain their role in the process, discuss the necessary confidentiality provisions, their qualifications, fee schedules, s 60I certificates and complaint mechanisms. The FDRP should also note their obligations to the parties and in the matter itself.

FDRP SKILLS AND THE CHILD APPROACH

For effective mediation an FDRP must have mediatory skills and choose an appropriate method (child focused or child inclusive) based on the circumstances of the parties and make use of certain skillsets linked to their approach to ensure that the dispute is dealt with the child’s best interests being front and foremost.

CHILD FOCUSED APPROACH

Child-focused FDR occurs when the FDRP is able to effectively foster an environment where disputing parents are able to consider the best interests of the child front and foremost when coming to agreements for ongoing parenting. This is enabled through the metaphorical hearing of the child’s voice, bought about when the FDRP asks child-centric questions of the parents. McIntosh writes, that child focused FDR is ‘finding the child’s voice in the absence of the child’. Fisher et al write, that in child focused FDR ‘the child’s voice is heard through the parents providing information on their children in the mediation’. Such approach being, as McIntosh et al write ‘is the minimum standard of good practice in working with separated parents.’

The skills and strategies that an FDRP employ in a child-focused approach have been discussed at large throughout the mediatory space over the course of the last twenty years in Australia and the general consensus is that an informative and dialogistic child-centric approach ensures that an FDRP’s can promote the parents focusing on the child’s best interests in the mediation process, thus having the collateral effect of softening the high conflict barriers to communication and ultimately the resolution of disputes.

Under the regulations, FDRP’s must educate parents about the FDR process and prepare them to participate effectively whilst undertaking the intake. A professional FDRP inline with their obligations, should supply parents with pre-mediation information, enabling parents to be well-equipped with information relating to the developmental needs of the child, the impacts of separation for children and significant others and the impacts of high conflict and care post separation in addition to providing generalist information on the FDR process as a whole. Through the use of such information to the parent, an FDRP has an effective in-road to make or suggest referrals to suitability qualified professionals that are likely to assist in the FDR process and thereafter. Those relevant could include mental health practitioners, counsellors (child, family and grief) and consultants. Such referrals are beneficial to educate parents in the FDR process and to assist them in gaining a better understanding of what their child’s best interests are based on advice from suitability qualified professionals. For parents with particularly young children (<2) this may be assist the parents in understanding the somewhat complex area of attachment theory and allow them to make arrangements for their child’s best interests based on professional advice.

Setting common goals between parents has been identified as a mechanism for parents to join in a cooperative tone, through the use of child-centric wording and the use of a visual aids such as a whiteboard. A visual aid can assist parents in order to visualise a child’s schedule over the course of a week, fortnight or month. McIntosh et al have also suggested the use of flip charts can assist FDRP’s in conversations with parents and are helpful in visualising child-focused concepts such as co-parenting and ensuring that any arrangement made are stable and secure for the children. Additionally, mapping the family structure to identify significant others that may have a role in the children’s lives assists in developing the child focused approach, which can be undertaken by visual representation through a genogram.

Inclusiveness of children, be it metaphorically has also been heralded as a beneficial mechanism by Brandon and Fisher. An FDRP can bring the child into discussions symbolically by way of each parent bringing in a photograph of the child with each parent being asked to describe the children and what they are like which enables parents to focus on the strengths of the child which embodiments mutual and positive dialogue.

The FDRP could make use of developing a Parenting Plans with the parents that is constructed through the voice of the child, making use of child focused wording which refers to members of the family unit by name rather than by association or role (mother, father and child). Cooper writes, that value is added for the child’s best interests through the addition of a values statement that outlines previously agreed long term care goals of the child.

CHILD INCLUSIVE APPROACH

As noted above, child focused FDR agreements are met on the basis of what the parents believe is in the best interests of their children, however as the child is metaphorically inclusive, there is a plausible risk that incorrect assumptions have been made and subsequently the child’s needs are not in fact met.

Child inclusive FDR reduces such risk by actively involving children in the FDR process, so parents can develop a better understanding as to what the child’s needs are. This eliminates assumptions by parents in the process as the child’s voice is generally directed by a third party, of whom can be a child consultant of whom has specialist training and experience which can include psychologists, social workers and/or counsellors. McIntosh defines the process as where ‘parents are assisted to understand how they are both struggling to focus clearly [on their children’s needs] amidst the emotional debris of the ongoing disputes’ and has defined the primary aim of this approach to ‘assist the parents to re-establish or consolidate a secure emotional base for their children after separation’. Kochanski et al writes that this approach may be unsuitable given children’s ability due to their age, the parents emotional state or being to being too emotional disengaged to process their children’s feedback in a safe and effective way which would ensue a child focused approach being more suitable and effective, bringing the child’s voice into the room.

The skills that an FDRP will apply for a ‘inclusive’ approach are initially screening for whether an inclusive approach is appropriate by way of the screening of the family situation and assessing the age of the children; conducting a joint session with the parents (mediator led) and undertaking an assessment by a child consultant.

WHICH APPROACH SUITS?

Whether child-focused or child-inclusive there is no one size fit all approach, and each has its strengths and weaknesses.

In the absence of a child focused approach, children are left without a voice in the process can be made to feel powerless and as noted above, a child focused approach may risk the parents making incorrect assumptions about the child’s best interests as there was no opportunity to hear their child’s views. As noted above, McIntosh et al suggest that a child-focused approach by FDRP’s ‘is the minimum standard of good practice in working with separated parents.’

In contrast, an active inclusion of the child’s voice reduces the likelihood of parent induced assumptions and ultimately has a strategic target of actually hearing the child’s needs. However, given that child inclusive FDR will generally only commence with the consent of the parents, the child’s right to have a say in the process is thus determined by their parents and in many circumstances, consent may be withheld, impending on the right of the child. Brown et al suggest, withheld consent can be strategically offset by FDRP’s by building an expectation with parents, that child inclusive FDR is the norm method that is being increasingly taken up in cases where there are concerns as to a child’s safety. McIntosh et al suggest that by maintaining a sharp focus on the children’s emotions and stage specific needs in child inclusive FDR, agreements made by parents favoured improved attachment relationships and stability of residence[xl] providing a firmer base for the up-bringing of a child in a co-parenting arrangement.

As noted above, no one size fits all approach currently exists, however the overarching principle is that FDRPs need to promote and maintain at the very minimum, a child-focused approach to reduce communicative and other high conflict barriers to family disputes in order for parents to realise and acknowledge the best interests of the child. With the use of the tools of the FDR trade, effective engagement of the child through inclusion may be the by product from effective intakes and initial mediation, so FDRPs need be cognisant of the resultant outcomes from a well-balanced initial child focused approach.

PARENTING PLANS: CHILD FOCUSED

As part of a child focused approach an FDRP needs to take appropriate steps in the FDR process to work and guide parents in developing parenting plans that are child-focused, specifically based on the child’s needs. Parenting plans are used in Australia, to set out the intentions of separating or divorcing parents in respect of how the care of the children should be undertaken.

First and foremost an FDRP should make the parties aware of their obligations under the provisions of the Family Law Act. The Act states that parents are encouraged use develop parenting plans rather than entering court processes. Moreover, the Act specifically encourages parents to:

• come to an agreement about matters concerning the child;
• take responsibility for parenting arrangements for resolving parental conflict;
• use the legal system as a last resort; and
• minimise the possibility of present and future conflict by using or reaching an agreement.

The FDRP after considering the legislative provisions should take to ensure that a parenting plan is child focused in its approach and delivery. Some methods an FDRP could facilitate substantive elements of this approach could include:

1. outline in what way will the children have a say or be consulted in the process;
2. make consideration as to the structure of the agreement in terms of meeting the substantive, emotional, relational, psychological and procedural needs of the children and parents collectively;
3. address the living arrangements of Where will the children live;
4. outline with whom will the child spend their time;
5. address the level of financial support the children will need;
6. pre-empt and detail the communication between the parents;
7. outline a basis for how the parents make decisions for the child’s care, welfare and development
8. address the different needs between the different children in the relationship; and
9. address best practice for the introduction of new partners to the child.

Additionally, it is in the opinion of the author, that an FDRP should also take into consideration those primary and secondary factors that the court will have regard to when making a parental order.[1] These factors develop the necessary platform for a parenting plan, in addition to prospective planning for the parents and for the courts consideration should FDR not be inappropriate and the matter proceeds to court. In such circumstances, the court will consider any parenting plans previously made and will examine non-compliance by either parent as to the obligations to the children made under the plan. This would assist the parties in a considered and prompt address by the court and makes the parties clearly aware of their obligations.

In any event, parenting plans made (subject to s 63DB plans) can be varied or revoked by further written agreement should the circumstances of the parities change[2] allowing flexibility where necessary.

FORWARD THINKING

As this paper has demonstrated, child-focused dispute resolution is the minimum standard to keep children at the forefront of discussions. However, it is not the gold standard nor is the child inclusive approach. As noted above, consent can effectively be withheld by parents ultimately eradicating any form of voice from the child. That being said, from a historical perspective, the family dispute resolution space has developed considerably since the 2006 amendments to the Family Law Act and FDRP’s are now being guided under what the author believes is the starting point towards a child-focused legislative framework, that whilst in part is in an improvement, still has considerable scope for improvement through industry roundtables and consultation to ensure that children are able to have and able to maintain a voice through the process of separation and divorce.

Note: The above is not legal advice.

Additional

See Family Law Act 1975 (Cth) s 60CC(2)-(3). The court must have regard to the benefit to the child to have a meaningful relationship with both of the child’s parents and the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. The ancillary considerations include the views of the child, nature of the relationship with either parent and other persons, the parents active participation in making decision for the child, fulfilment of parental obligations for child maintenance, the likely effect of changes on the child, practical difficulty and expense of a child spending time and communication with a parent and its effect on the child, the capacity of the child’s parents, the parent and child’s circumstances, the child’s access to culture, the attitude of the parents towards the child, any matters relating to family violence to the child and any other fact or circumstances the courts thinks is relevant.