Law Times

Law Times • November 4, 2013 Page 11 FOCUS Australia provides evidence on how proposed Canadian reforms might work BY JUDY VAN RHIJN For Law Times M any of the proposals currently under consideration in Canada have already been in place in the Australian family law system for more than seven years. As a result, lawyers, family law service providers, and judges have been able to test reforms such as mandatory mediation, presumption of equal shared parenting, separate entry points for the system, and a raft of pre-action procedures in order to create a more effective approach. Family law in Australia underwent major reforms in 2006 that included changes to both the legislation and the family relationship services system. The most notable changes were the introduction of mandatory family dispute resolution before filing a court application and a presumption in favour of equal shared parental responsibility. Sixty-five family relationship centres provide a gateway to the system along with a range of other services such as a family relationship advice line and a telephone dispute resolution service, a web portal, a parenting program, and specialized counselling and education. Nick Collins, family dispute resolution manager at the Geelong Family Relationship Centre, explains those with children must at least attend mediation. "People are encouraged to communicate with goodwill rather than being put into an adversarial role. Many couples might not even get to an agreement. They're just happy because communication improves and they can work it out themselves." If mediation fails, the family dispute resolution practitioner will complete a certificate that enables the parties to proceed to court. "A 60I certificate is like a ticket to go to court," says Collins. Jon Graham, a family dispute resolution practitioner, has observed a real uptake of non-court-based processes since the reforms, although he feels some education is still necessary. "Generally, the principle that, if you can avoid going to court you do, has been welcomed across all family law sections. A lot of clients come with the sole intention of getting a s. 60I certificate to gain access to the court system. It's the job of [family dispute resolution] to try to engage them instead of pushing on." Lawyers report anecdotally that the courts have become more available as a result. "Absolutely, there are still a lot of delays, but it's better than before," says Claire Newton, a family law practitioner based in Ballina, New South Wales. An evaluation by the Australian Institute of Family Studies in 2009 supports that observation. "Overall, there is more use of relationship services, a decline in filings in the courts in children's cases, and some evidence of a shift away from an automatic recourse to legal solutions in response to post-separation relationship difficulties," the report stated. In fact, there has been widespread acceptance of the family relationship service centres as an entry point that operates as a doorway to other services. They provide early intervention designed to prevent separation as well as post-separation services. They also offer impartial referrals, advice, and information as well as family dispute resolution to assist with the development of parenting arrangements. Collins sees the establishment of the centres as a good measure. "It provides triaging to identify the discrepancies that need to be addressed and leads to a moderation of expectations." Newton finds that although the process takes a while, the feedback is that it's very useful. "The intake process is followed by a mandatory three-hour seminar [called] building connections. It emphasizes that you are parents, not partners. Post-separation, it's not about you anymore." This program attempts to remedy what many lawyers see as a legislative error in the reforms. The Shared Parental Responsibility Act provides that the starting point for considering post-separation parenting arrangements is the presumption of equal shared parental responsibility. When they make orders, the courts must consider having the kids spend equal or substantial and significant time with each parent where such an arrangement is in a child's best interests and reasonably practicable. The intention was to re-engage fathers in children's lives in a meaningful way, but many people have interpreted shared responsibility as equal time. "The media chose 50-50 parenting as a simple way of describing this," says Graham. "Most of us spend most of our time re-educating the public. If you speak to any average family lawyer, they will say that they need to re-educate parents that it's still based on the child's best interests." Graham believes there should only have been a reference to significant and substantial time. "That wouldn't create a sense for separating parents that if they are not getting equal time, they are missing out." Newton notes that in the wake of the presumption's introduction, the traditional arrangement of every second weekend and half the school holidays went out the window. "It made a real difference and was used a lot in court. The paramount consideration of the best interest of the children was subsumed into the new reforms. It moved the focus to what's best for the parents." But the initial upheaval has since calmed down. "All academic research says that it is necessary for a child to have a primary carer and a primary residence. Shared time does not work for young children, especially in high-conflict families. It remains the case that the courts have a much more generous approach to parenting time, but it's not nearly as gung-ho as it was." In 2009, the institute found that the proportion of children who experienced shared care arrangements increased after the July 2006 changes, especially in disputes resolved by judicial determination. Even so, only 16 per cent of children whose parents separated between 2006 and 2009 had a shared care arrangement. It also noted that the perceived entitlement to 50-50 shared care led to greater disillusionment with the system among fathers and increased difficulty in working with parents to achieve child-focused arrangements. There was also criticism over the way the 2006 amendments dealt with family violence. Further reforms in 2011 addressed these issues. "A great concern about the 2006 changes was the minimizing of the importance of domestic violence in family law proceedings," says Graham. "Up to 2011, two things had equal importance: meaningful relationship and safety. The 2011 changes mean that if there are any concerns about safety, they are predominant." LT TRUST you're putting your reputation on the line. It's all about trust well placed. New editioN CoNsolidated oNtario Family law statutes aNd regulatioNs 2013-2014 COnSuLtInG EDItOR: BRAhm D. SIEGEL Access the most up-to-date information on the latest developments in family law. New iN this editioN • Full text of the Spousal Support Advisory Guidelines • Full text of the Pension Benefits Division Act, S.C. 1992, c. 46, Sch. II • Full text of the Pension Benefits Division Regulations, SOR /94-612 • Amendments made to the Ontario Family Law Rules, O. Reg. 114/99 • Amendments to the Pension Benefits Act, R.S.O. 1990, c. P.8 order # 985269-65203 $99 Softcover approx. 1850 pages August 2013 Annual volumes supplied on standing order subscription 978-0-7798-5269-7 Shipping and handling are extra. 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