Separation and divorce seriously impact parents, children, the court system and the larger community. For example, children raised in single-parent families on average have lower well-being than children raised in two-parent families on aggregate measures of emotional health, behavioral adjustment, economic well-being, and educational achievement. Furthermore children who have been subjected to a contentious separation or divorce or whose parents struggle for years with emotional and financial issues related thereto may have difficulties into adulthood that range from feelings of sadness and vulnerability, to problems with relationships with other adults, to more serious mental health issues. As stated in a recent article in The New York Times: “[A] large body of research shows that [children of single parents] are more likely than similar children with married parents to experience childhood poverty, act out in class, become teenage parents and drop out of school.”1

Divorce and marital strife can negatively impact workplace productivity, either by increased absences or decreased output while the employee is at work. An employee in the throes of a domestic relations matter is distracted, angry, and depressed, has more absences from work, and while at work, is less productive. When the legal process drags on—too often for years—the employee is drained financially and emotionally. The result is a less productive employee.2

Our family courts have, in effect, become an emergency room for the problems of separating and divorcing parents as they often have nowhere else to turn. Nationwide conclusions are not available for separation and divorce-related filings, in part because different states keep data so differently. However, in 2009 the National Center for State Courts examined and compared the domestic relations caseloads of 36 jurisdictions, finding that 25 of these 36 jurisdictions had clearance rates of less than 100 percent.3 This means that more cases are entering the system each year than are being disposed of in a year time frame. These findings show that domestic relations cases are staying on the court’s dockets longer and are increasing the burdens on the courts. Furthermore, increasing numbers of the litigants in these cases are self- represented. Somewhere between 60 percent and 80 percent of cases arising from separation and divorce nationwide are estimated to proceed with at least one party, and frequently both parties, representing themselves.4

Australian Innovation

The reorganization of family life is complicated, and no one measure can address the problems that the transitions of separation and divorce create for children, courts and communities. The purpose of this column, however, is to introduce readers to a recent Australian innovation—Family Resource Centres (FRCs). FRCs are nationwide, government-funded, community-based education and mediation programs aimed at facilitating the reorganization of family life required by separation and divorce created on a national scale. They are a national early intervention program for families in transition. The FRCs reframe parental conflicts arising from divorce and separation from a legal problem with relationship conflicts to a community public health problem with legal elements. They address the problems for children of separation and divorce by providing families with access to services that ease their transitions and encourage them to plan for their future without judicial intervention.5

How Do FRCs Differ From Court Services? The FRCs were created to change the Australian national culture of separation and divorce by creating a social norm that parents and children should plan their own futures rather than going to court to resolve their disputes. They are designed to replace the court system or a lawyer’s office as the first port of call for divorcing and separating families in Australia. They serve as a coordinating mechanism for referrals to services for separating and divorcing families.

The FRCs sound like programs of court services for divorcing and separating parents that more or less exist in many states. Indeed, there is significant evidence that court-affiliated parent education and mediation services in the United States have proved successful in reducing conflict between parents and facilitating planning for the future of children.

Nonetheless, court-based education and mediation programs for divorcing and separating parents face three major challenges in an era of fiscal austerity and skepticism about the role of government:

(1) Court services are perceived as adjuncts to the court system. Judges and court administrators and mediators themselves often perceive the role of court services as helping to “settle cases” and “clearing the docket,” not necessarily to address the relationship issues that underlie controversies between parents.

(2) The public does not generally know of the availability of court-affiliated education and mediation services. Furthermore, the public only has access to these services after filing a case in court. This is often too late, as positions have hardened and emotional harm inflicted long before a court filing occurs. Many families, furthermore, need help but never find their way into the court system because they simply do not have the resources to access court-based services.

(3) Nationally, funding for court-affiliated education and mediation programs is inadequate compared to the need for the programs. The programs, furthermore, are often the first to face the ax when budgets must be tightened.

The FRCs address these problems by locating responsibility for the design and implementation of mediation and education services for divorcing and separating families in an adequately funded national community-based system of service providers rather than the court system. While the FRCs work with the courts, they are not part of the court system but a separate national system of service delivery. Separating and divorcing families, with all of their impacts on mental health of both parent and child, the workplace, the court system and the future of society are the communities’ responsibility, not the legal system’s alone.

Development and Operation

The FRCs were created by a conservative government as part of a family law reform program during a time of ferment about the role of law, courts and lawyers in disputes arising from divorce and separation that American readers will find familiar. Fathers’ groups in particular put great pressure on the Australian national government to redress what they perceived as gender bias in parenting determinations by enacting a presumption of joint parenting.

Empirical documentation that children of separating and divorcing parents were significantly more at risk for emotional, educational and economic difficulties due to their parents’ conflict became more and more compelling. Several Australian commissions and studies raised questions about whether courts were too adversarial a forum to resolve post separation and divorce parenting issues. (Indeed, other reforms enacted at approximately the same time included the development of a less formal trial method for parents, and a mandatory education program for intensely litigious parents.)

The FRCs’ mission was not, however, limited to parents in the middle of separation or divorce or with a case in court. They can play a valuable role for parents facing serious family difficulties and thinking about separation but who are not yet committed to this course. These parents may be unaware of services that can assist the family to address their issues. There is evidence that some non-separated families are using FRCs. Some FRCs have embraced services to all families as part of their core mission, even if most of the services are in fact delivered to separated families, while other FRCs have largely ignored non-separated families, citing the demands of the post-separation end.

The Australian government made an extensive commitment to the FRCs by requiring planning for service delivery system design, funding and evaluation. Australia established 65 FRCs all over the country in a very short three-year period of time. Each FRC services about 300,000 people.

Non-profit organizations experienced in counseling and mediation compete to operate the FRCs through a rigorous, renewable application process based on criteria established by the government. The criteria for the FRCs provide significant operational flexibility. Some FRCs focus on educational programs more than mediation, and others reverse these priorities. Nonetheless, while operations differ from community to community, the FRCs are marketed to a national audience with a common logo and identity.

The FRCs provide mediation and education services to separating and divorcing families at little or no cost. Families do not have to have a case in court to access FRC services; interested people can simply walk in the door. Mediation is, however, a general legal requirement in Australia for a parent who wishes to pursue a parenting dispute in court; while parents have an option to pursue the required mediation privately, the FRCs provide the great bulk of necessary services.

The FRCs are not located in courthouses or locked away in out-of-the-way low-rent locations. Rather, in many communities they are located in high visibility shopping centers and malls.

Evaluation of the FRCs

Ultimately, the success of the FRCs will be measured over a long period of time by whether or not they bring about the fundamental cultural change from court to community centre in the institutions that divorcing and separating families in Australia rely on to facilitate their futures. They will also have to be evaluated long term based on improved quality of parental relationships with children and reduced levels of conflict in families.

Nonetheless, early evaluations are encouraging. During the first five years since the FRC legislation, overall petitions for relief to the courts in parenting cases dropped dramatically (approximately 32 percent). Simultaneously, public use of mediation and counselling services increased.

The FRCs also seem to be a good investment of comparatively limited public funds. Settlement of parental disputes through their processes costs significantly less than settlement through processes involving more professionals or through the family courts.

Most importantly, perhaps, many divorcing and separating parents who otherwise would not have had access to the legal system or education and mediation services receive them from the FRCs. The FRCs provide significant help to a large number of people who do not qualify for legal aid and would not go to court, but still need help navigating the difficult transitions of separation and divorce for them and their children.

Other Benefits

The FRCs help Australian society address the tension between parental self-determination and family violence. As a community-based rather than a court-based service, FRC personnel can work with families where violence is present free from the pressures of “settling cases.” Australian law allows parents to bypass the mediation requirement on the basis of family violence; many go to the FRCs even still, but assessment for suitability for mediation remains mandatory. FRC personnel conduct the suitability screening and have the discretion to declare a family unsuitable for mediation. The FRCs have developed a screening protocol for these purposes and have conducted extensive training for its staff on the subject.

Despite their origins in a climate of ferment about the role of lawyers and courts in resolving parenting disputes, FRCs are not “anti-lawyer.” Rather, they encourage lawyers to work with separating and divorcing families as part of a holistic interdisciplinary team that addresses a family’s overall needs, not just legal issues. Recently, for example, an innovative partnership between the FRCs and legal services providers has developed that recognizes the difficulties of interdisciplinary teamwork because of different professional perspectives on issues like conflicts of interest and confidentiality but shows that with dedication and effort, collaborative representation of clients among lawyers and other disciplines can be achieved.

Conclusion

The FRCs are thus a major government investment in family life, and, particular, in reducing conflict between parents over parenting arrangements after separation and divorce. They cannot, however, be magically transposed to the United States or any other jurisdiction. There may be limits to transferring the concept of the FRCs to the United States, for example, because, unlike Australia, states, not the federal government, generally have the responsibility for providing courts and services for divorcing and separating families. Furthermore, the implementation of the FRCs has encountered administrative issues of implementation likely to occur in creating a service program on such a national scale in a short period of time.

Nonetheless, the Australian FRCs provide food for substantial thought as an innovative contribution from Down Under to informed discussion of how services should be delivered to divorcing and separating families. They place responsibility for service delivery on the community, rather than the court and thus recognize the stake we all have in effectively facilitating predictable family transitions. Perhaps one state or one community or university could, implement an FRC in its area that could serve as a beacon for all. Perhaps one governor or one legislator could ask herself whether an FRC-like institution could aid the parents and children of her state to better adjust to the transitions required by divorce and separation. We can always plan, dream and hope.

Andrew Schepard is a professor at Maurice A. Deane School of Law at Hofstra University and director of the Center for Children, Families and the Law. He is editor of ‘Family Court Review,’ a journal published under the auspices of the Association of Family and Conciliation Courts; the journal’s editorial staff is based at the law school.

Endnotes:

1. Jason DeParle, “Two Classes Divided by ‘I Do’,” N.Y. TIMES, July 14, 2012, available at http://www.nytimes.com/2012/07/15/us/two-classes-in-america-divided-by-i-do.html?pagewanted=all.

2. Rebecca Love Kourlis, “It’s Just Good Business: The Case for Supporting Reform in Divorce Court,” 50 FAM. CT. REV. 548 (October 2012).

3. NATIONAL CENTER FOR STATE COURTS, COURT STATISTICS PROJECT; DOMESTIC RELATIONS CASELOADS PROVE DIFFICULT TO DISPOSE (2012) available at http://www.courtstatistics.org/.

4. Carolyn D. Schwarz, Note, “Pro Se Divorce Litigants Frustrating the Traditional Role of the Trial Court Judge and Court Personnel,” 42 FAM. CT. REV. 655, 657 (2004) (citing Amanda Ripley, Who Needs Lawyers?, TIME, June 12, 2000, at 62).

5. This column can only provide the briefest of introductions to the history and development of the Australian FRCs. The forthcoming April 2013 special issue of Family Court Review is the first comprehensive set of articles on the FRCs. That issue is guest edited by Professor Patrick Parkinson of the University of Sydney School of Law, a major figure in creating and implementing the FRCs.