The Age (Melbourne)
25 February 2010

Fears over risk disclosure
By Carol Nader

First, they come in one by one. The couple has decided the relationship is over. The mediator interviews them separately to gauge whether they will be able to talk to each other, or whether they should go straight to court.

It is that early in the piece, says Anthony Grimes, a mediator of 10 years, that the risk assessment begins.

If they pass that test, they can move on to an attempt at joint mediation. Where will the children live? Who gets the house? How will they manage school, childcare, medical problems? How far apart will they live from each other? Can they come to some kind of compromise?

They workshop these issues with the help of the mediator. It is often here that the threat of family violence or other problems emerge.

That is what worries Mr Grimes the most about the proposal to share information about risk with family law courts - and the position in which it places the mediator.

"Not only does it cause them to have to breach the confidentiality, but it also causes them to no longer be neutral," says Mr Grimes, the manager of the Chadstone Family Relationship Centre.

If parents are warned that information they provide could be given to court, he says, there is a risk they will shut down.

"I can understand the difficulty judges have in those early stages, because they're not informed of that other than what clients put in front of them. My concern is the whole underpinnings of the mediation process would be at risk."

The other danger, he believes, is that mediators who pass on concerns to the court might be called in to give evidence in court, especially if information has to be given to the court in writing. That could stretch the resources of centres.

Mr Grimes says a good way to pick up issues is by interviewing children separately to their parents.

"Sometimes you'll pick up more through the child's discussion of how the whole separation has impacted them than simply the parents' version," he says. "If parents realise there's further disclosure [to the court] around risk, they're not even going to agree to have their kids interviewed."

The Age (Melbourne)
25 February 2010

Judge seeks revamp of family law1
By Carol Nader

The Chief Justice of the Family Court has called for a radical change to the law to provide more protection to family members at risk of violence.

In what could be a contentious proposal, Chief Justice Diana Bryant wants information from confidential mediation sessions between separating couples to be given to family law courts if there is believed to be a risk to a child or a parent's safety.

The types of information provided would include evidence of violence or mental health and drug and alcohol issues. Judges would use the information to help with decisions about parental access and where children live.

Under existing law, any information that emerges in a mediation session is confidential. But mediators can make reports, usually verbal, to child protection authorities and police.

In an interview with The Age, Justice Bryant said she had recently raised her concerns with the federal Attorney-General's Department.

She said there might be cases where risk factors could be missed if full information was not given to the court in the early stages of a case. "You might have a mediator  who has formed a view that mental health issues are a serious problem. They can't provide that information," she said.

"All of the information that is conveyed to mediators in family relationship centres is privileged. They might have quite a lot of information about family violence from their screening tool which can't be shared with courts. So when people come to court they just start off fresh with an application.

"I do think we ought to look at whether we can get something more from those organisations  something more that informs the courts when an application is filed to alert them to issues that need to be dealt with as a matter of urgency."

The government is exploring the issue. Attorney-General Robert McClelland last year asked the National Alternative Dispute Resolution Advisory Council for advice on changes required to protect the integrity of the mediation process, including confidentiality. It will report later this year.

A spokesman for Mr McClelland said it was important to balance the need for courts to have access to the best evidence they can obtain to deal effectively with serious matters such as family violence, and the need to protect family dispute resolution and ensure it is a place where parents can speak frankly to reach agreement.

Under existing law, separating couples who want to settle disputes in the Family Court or Federal Magistrates Court must first go to a family relationship centre or other mediation service, except in cases of violence. If that session breaks down, they can then go to court.

Justice Bryant said most of the information would still remain confidential; only information concerning risks to children and parents would be given to the court. Parents would be warned that information they provided regarding risk could be given to the court.

"It's really in the early stages when you don't have a lot of evidence that it's important for these issues to be raised," she said. "Every decision that is ever made by a judge is only as good as the information and the evidence you can make it on.

The idea has been backed by the Law Institute of Victoria. President-elect Caroline Counsel said courts should not be "blind-sided" by insufficient information.

"It is ultimately charged with the duty of making orders in the best interests of children. If there is information that is made available to them that is pertinent to those issues, surely a better decision can be made if the court is apprised," she said.

But Samantha Page, executive director of Family Relationship Services Australia, said mediators should be able to alert courts to families at risk without divulging confidential information.

"We would be concerned that removing those confidentiality provisions would discourage people from being open and honest about things that have happened in the past, things they're worried about, if they knew that was no longer confidential," she said.