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University of New South Wales Law Journal Student Series |
NAVIGATING A ‘SEA OF EMOTION’: SOURCES AND EFFECTS OF PERCEIVED BIAS IN FAMILY LAW MEDIATION[1]
CHEE LUI LAUREN CATANCHIN*
I INTRODUCTION
Human interaction, particularly conflict, is too complex for a dualistic model of ‘right’ and ‘wrong’.[2] Rather than a universal truth, there are multiple ‘truths’.[3] While we accept that our view is merely one of many, we are susceptible to the belief that our perceptions accurately represent reality.[4] As we take in vast amounts of stimuli, mental processes ‘filter’ this information to make sense of what we perceive.[5] These filters are calibrated according to the culture in which we are steeped. They perform mental shortcuts, or heuristics, and help us give meaning to our experiences, but they can also give rise to bias.[6] Bias – in the form of generalization, distortion or deletion of information – allows us to rapidly come to a conclusion in what seems to be a rational process;[7] however, the intuitive operation of these processes means that we are often not conscious of our reasoning.[8] This is more apparent in situations of emotional complexity where the slower, more deliberative processing centres in our brains are overwhelmed, and the ‘fast, intuitive and emotional’ limbic system dominates decision-making.[9]
Family law disputes are deeply emotional, particularly when they involve children. Statistics suggest around 16% of separating parents seek legal help or dispute resolution services.[10] Families whose disputes are resolved by courts are in the vast minority – around 3% – and tend to be affected by complex issues.[11] As a result, family law disputes are often characterized by high levels of conflict. Under the current legislative scheme, in most circumstances, disputants are required to attend family dispute resolution (‘FDR’), usually mediation, before their matter can proceed in court.[12] FDR can bring to light systemic and cognitive biases which affect the decision-making processes of all participants. Parents in high-conflict situations carry significant bias against their former partner[13] and are hypervigilant to bias against themselves. This bias is perceived as arising from multiple sources: from other participants – including the mediator, lawyers, and the judges who may eventually adjudicate their dispute – and from the family law system or dispute resolution process itself.
This essay will investigate the sources and effects of some of the perceived biases active in FDR. Part II will outline the role of social science research in family law and its use by judges and advocates. Part III will consider core aspects of, and major amendments to, the Family Law Act 1975 (Cth) (‘the Act’), and how the Act has been shaped by advocacy and political ideology. Part IV discusses the effect of the ‘shadow of the law’ in FDR,[14] and Part V explores how the mediation process is overshadowed by its own questions around legitimacy and neutrality. Part IV contains suggestions to improve FDR for participants whose experience is affected by perceived bias. In the family law arena, individual parties, as well as the interest groups who advocate for them, share the common experience of perceiving that the family law system is biased against them, and FDR – caught between operating in the ‘shadow of the law’ and maintaining its focus on neutrality – is unable in its current form to effectively address these perceptions. By broadening the role of FDR practitioners and implementing practices which attempt to bring biases to consciousness, it may be possible to assist participants to engage effectively in their dispute, with positive outcomes for families who are sailing on the rough seas of separation.
II MAPPING THE TERRITORY: SOCIAL SCIENCE AND THE LAW
Use of social science data has become ‘ubiquitous’ in family law.[15] This is problematic due to disparate methods of defining and establishing ‘truth’ in the two disciplines.[16] ‘Truth’ in the sciences is based on research which produces reproducible data.[17] In an adversarial legal system, truth is sought through advocacy from opposing sides.[18] When the legal approach to fact-finding is applied to social science material, the result can be ‘one-sided presentations of data and polarization of controversial positions’.[19] The human brain is wired to prefer emotionally charged arguments over rational explanations, making a scientist likely to be ‘less rhetorically convincing’ than a practiced advocate.[20] Further, because social science information has been fundamental to the development of family law, lawyers and judges may feel that it forms ‘part of their tool set’ rather than recognising it as the product of a separate discipline.[21]
The use of social science material in the family courtroom risks applying ‘population-based, empirically derived norms’ onto a ‘very non-normative subgroup’.[22] An example is the use of attachment theory, which posits that the ideal situation for child development is ‘attachment’ to a primary carer from infancy, with the child progressing to spending extended time away from that carer at three or four years of age.[23] In the context of separation, this would require a positive relationship between the parents, and acceptance by the ‘non-custodial parent’ that ‘time and quality are to a degree independent’.[24] Attempted application of this theory in family law therefore ‘ignores the frank reality’ for many children.[25] Judges are required to determine pragmatic living arrangements for children – a decision which tends to centre around divisions of time and may involve little or no ongoing support. ‘Objective’ assistance to the court in the form of expert evidence may not be provided, especially at an interim stage, and judges have in the past turned to social science literature for guidance.
It can be problematic when judges inform their decisions by using literature which has not been tendered in evidence. Since 2012, when McGregor & McGregor confirmed the inappropriateness of this practice,[26] there has been a reduction in social science citations in judgments.[27] Chisholm argues that where social science findings are relevant, failing to take them into account is against the legislative requirement to consider the best interests of the child.[28] Yet where there are ‘differing credible expert opinions’, the doctrine of judicial notice – which holds that evidence is not required for knowledge that is ‘not reasonably open to question’ – cannot apply, and judges are limited to making a decision based on the evidence before the court.[29] This begs the question whether family law judges, who, no doubt, read widely, are subconsciously applying extrinsic material as ‘social fact’, without citation.[30] Without an accepted framework for bringing such material into judicial consideration while ensuring procedural fairness to the parties, social science concepts are likely to influence judicial decision-making in the absence of an opportunity for parties to address the material.[31] Judges imbue social science research findings with legal authority, potentially causing ‘disquiet’ to the litigant as to how the material might have ‘influenced the judicial mind’.[32]
III TIME AND TIDE: ORIGINS OF, AND AMENDMENTS TO, THE FAMILY LAW ACT
When the Family Law Act 1975 (‘the Act’) created the Family Court, its purpose was to ‘provide help, encouragement and counselling’ for ‘human problems, not just...legal rights’.[33] The Act has undergone major amendments which reflect ‘deep and varied social changes’ to the needs of Australian families.[34] Changing gender roles, acknowledgement of the issue of family violence, and the emergence of men’s rights groups have situated family law as an ‘emotional and ideological cauldron’ where private conflicts clash with political struggles.[35] Parties enter the system not only as litigants in their individual proceeding, but as recent recruits in an ongoing gendered struggle.
A The ‘Mother Factor’ Cast Adrift
The ‘maternal preference’, a gendered presumption applied by judges at the time the Act came into force, was expressed thus in 1976: ‘young children are best off with both parents, but if the parents have separated, they are better off with their mother’.[36] This began to be challenged in social science literature, and the Full Court of the Family Court stated emphatically later in 1976 that ‘the suggested “preferred” role of the mother is not a principle, a presumption, a preference, or even a norm. It is a factor to be taken into consideration where relevant’.[37] In Gronow & Gronow,[38] the High Court confirmed that the supposed principle ‘is not, and never has been, a rule of law’, but was ‘founded on human experience’.[39] Stephen J acknowledged that gendered economic roles and social conditioning were behind the ‘preference’, and that in a time of ‘rapid social change’, the presumption was inadequate for assessing individual cases.[40]
Any apparent preference was attributed by courts to the substantive role each parent had played in the child’s life. However, dissatisfaction with the family law system grew, particularly among fathers.[41] Given the gender roles of the time, custody outcomes were skewed in favour of mothers,[42] although the text of the law was not. It is easy to see how men’s perceptions of bias could arise, and it is also conceivable that judges continued to apply the ‘maternal preference’.[43] On the other hand, considering the maternal preference as a deeply-held social principle, failure to apply it may have been perceived as bias against women in the service of formal equality.[44] In the early years of the Act’s operation, traditional norms and principles – which may have favoured the mother as carer, but also considered the father as a beneficiary of parenting rights which were formally equal – collided with social progression, which increasingly accepted fathers as carers while looking to achieve substantive equality.
B Route to the Family Law Reform Act 1995
In tandem with the social and political progressiveness of the 1970s, and particularly as a reaction to some of the achievements of the feminist movement,[45] father’s groups formed and consolidated during the 1980s and early 1990s.[46] They utilised a language of ‘equality and rights’ which in the family law context evolved into demands for a legal presumption of ‘joint custody’ upon separation.[47] The Family Court consistently highlighted that there was no parental ‘right to “access”’,[48] and that it was a matter of what would best support the child’s welfare. Despite this, advisory body to the Attorney General, the Family Law Council, was tasked to consider joint custody, stating in 1987 that the idea had ‘considerable merit’, before finding less conclusively by 1992 that joint custody was ‘not a panacea’.[49] A Joint Select Committee Report in 1992 considered many submissions, ‘almost all of them from men’, pressing for a presumption of joint custody,[50] but ultimately found that ‘the Family Court’s reluctance to order joint custody in contested cases is fitting and appropriate’.[51] The Committee was ‘disturbed’ by the number of submissions it received on violence against women: legal recognition of family violence within family law had become a pivotal issue.[52]
The language of the Family Law Reform Act 1995 moved away from parental ‘rights’ and towards positioning children as subjects.[53] The concept of ‘parental responsibility’ was introduced; ‘custody’ and ‘access’ became ‘residence’ and ‘contact’. The reforms also provided that, except when contrary to their best interests, children have the ‘right to know and be cared for’ by both parents, and a ‘right of contact, on a regular basis’ with both parents.[54] The reforms addressed domestic violence for the first time, mandating consideration of family violence in determining a child’s best interest.[55] One wonders whether the omission in 1975 of family violence language made its inclusion two decades later more stark, and whether this was experienced by fathers as an additional barrier in seeking custody of their children. The removal of implied parental ‘rights’ may have been experienced as a double blow alongside the failure of men’s rights advocacy to achieve a joint custody presumption. The 1995 reforms highlighted the nascent political conflict between men’s contact with children, and women’s and children’s safety.
C Winds of Change: The 2006 Reform
Successive terms of conservative government under Prime Minister John Howard followed the 1995 reforms. Finding themselves in a ‘sympathetic environment’,[56] father’s rights groups continued to campaign for a presumption of joint custody.[57] The style of advocacy used by these groups, such as appeals to formal equality and the moral defense of the family as an institution, suited the Howard Government’s conservative neoliberal rhetoric.[58]
In Every Picture Tells A Story, the House of Representatives Standing Committee on Family and Community Affairs made a measured recommendation of a clear presumption of shared parental responsibility, but a clear presumption against shared parental responsibility where there is entrenched conflict, violence, substance abuse or child abuse.[59] The Committee recommended a compulsory FDR scheme with exceptions where there were issues of entrenched conflict, substance abuse, or family violence. The Federal Government responded in a 2005 report[60] that, while falling short of the presumption of equal parenting time, upcoming amendments would focus on the importance of both parents having a ‘meaningful involvement’ in children’s lives.[61] New provisions would require courts to consider ‘substantial sharing of parenting time in appropriate cases’.[62] The government declined to introduce a presumption against shared parental responsibility in cases involving violence and abuse, preferring the wording that ‘courts will not be required to apply the presumption...where there is evidence of violence or child abuse’.[63] The government accepted the compulsory FDR recommendation but narrowed the exceptions.[64] It also heralded the introduction of Family Relationship Centres – which, as well as offering dispute resolution services, would aim to ‘prevent separation’ – and a program to ‘help high conflict families restore contact’.[65] In light of these announcements, the report stated somewhat oddly that the Government had ‘heard...community concerns’ about the potential for the reforms to increase the risk of family violence.[66]
The Family Law Amendment (Shared Parental Responsibility) Act 2006 enshrined the presumption of equal shared parental responsibility in law[67] and introduced the requirement for parties to make a ‘genuine effort’ to resolve parenting matters by FDR before filing in court.[68] Section 60CC of the Act, which guides the Court in determining a child’s best interest, was amended to consist of ‘primary considerations’ and ‘additional considerations’. The two primary considerations are, first, ‘the benefit to the child of having a meaningful relationship with both parents’ and, secondly, ‘the need to protect the child from physical or psychological harm’ from being subjected to or exposed to family violence.[69] The provision had the effect of placing the respective central concerns of men’s rights groups and domestic violence advocates in uncomfortable juxtaposition.
Critics of the 2006 reforms accused the government of ‘privileging parental contact over safety’.[70] A little-mentioned aspect of the 2006 legislation was the insertion of a definition of ‘family violence’ which required a victim ‘reasonably to fear for, or reasonably to be apprehensive about, his or her personal wellbeing or safety’.[71] This objective standard, and the lack of insight it demonstrates, is perhaps illuminative of whose concerns the government ‘heard’ most clearly when receiving submissions from the community about family violence. The linked issues of men’s contact with children on one hand, and women’s and children’s safety on the other, had become firmly positioned as mutually exclusive tenets held by two rival groups of advocates. Subsequent research indicated that a ‘pro-contact’ culture did in fact develop at interim hearings following the reforms; however, as orders are subject to the paramount consideration of best interests of the child,[72] the new provisions did not eventuate in substantial changes in the ultimate living arrangements of children.[73] The ‘culture of fatherhood... changed much faster than conduct’,[74] and women continued to do most of the caring work.[75] The enduring trope of the loving but alienated father illustrates how an emotive story has more power than endless statistics about the prevalence of violence against women, and more appeal than the unglamourous reality of the many fathers who co-parent without high conflict after separation. It is clear how women experiencing the operation of these laws could feel that the system was biased against them: those who made the laws appeared to have responded to the moral panic of an alleged epidemic of fatherlessness and muted the safety concerns of mothers. At the same time, with neither the formal equality of a joint custody presumption, nor the necessary social change in divisions of labour which would mean that fathers coming before the court were already primary carers, men continued to feel that their relationships with their children were vulnerable to false allegations of domestic violence and an unspoken maternal preference.
D Amendments of 2011 and Beyond
In 2010, announcements of reform by the new Labor Government seemed to indicate that legislators were recognising the imperative of addressing violence in family law. In 2011, the ‘objective’ definition of family violence was repealed.[76] The new definition included any behaviour which subjectively ‘causes [a family member] to be fearful’.[77] A direction was added so that in applying the two ‘primary considerations’ that go to a child’s best interests, the need to protect the child from harm was to be given greater weight.[78] In 2018, further amendments tabled under the Turnbull Liberal Government limited the ability of self-represented litigants to cross-examine their former partners in court where there had been family violence.[79] Briefly, it appeared that there may be bipartisan support for increased family violence protections. In its March 2019 report into the family law system, the Australian Law Reform Commission (‘ALRC’) recommended repeal of the ‘meaningful involvement’ provisions and removal of the requirement for a court to consider ‘substantial and significant time’.[80] It pressed for a condensed list of six ‘best interest’ considerations,[81] with the safety of the child and their carers to be listed first, to highlight its significance and to prevent suggestion that any other factor had greater priority.[82] This seemed to trigger a flurry of government inquiry. By September 2019, the Joint Select Committee on Australia’s Family Law System was established, with Senator Pauline Hanson as chair. Its terms of reference included ensuring parties in family law proceedings ‘provide truthful and complete evidence’.[83] In October 2020, Senator Hanson opined that the Committee’s first Interim Report neglected issues such as ‘unsubstantiated allegations of domestic violence [used as] grounds to stop access to children’.[84] The second Interim Report in March 2021 recommended review into discouraging ‘improper’ applications for Domestic Violence Orders[85] and prosecution of those who ‘willfully mislead’ the Court.[86] The government’s response to the ALRC Report, also in March 2021, ‘agreed in part’ to the simplification of the ‘best interests’ provision, but considered a ‘meaningful relationship with both parents’ a key factor which required express consideration.[87] The recommendation to remove the obligation on courts to consider ‘substantial significant time’ was not agreed, with the government countering that it remained committed to this ‘key element’ of the 2006 reforms.[88]
Major amendments to the Act, and the direction and focus of inquiry into family law, have reflected the prevailing political ideology and the consequent ability of interest groups to gain political clout. The family law system has become a target for men who feel displaced by social changes wrought in part by feminism, adopting an identity of ‘injury’ which is supported by conservative sectors of politics:[89] encouraging men to identify as victims of feminism has allowed conservatives to harness the political capital inherent in ‘empower[ing]... the already-empowered’.[90] Pauline Hanson exemplifies this tactic, declaring the white Anglo-Saxon male ‘the most downtrodden person in this country’.[91] In the wake of the Joint Select Committee Reports, Hanson’s claims that family violence is gender-equal and that women lie about domestic violence to gain advantage in family law proceedings have received fresh airtime.[92] The power and pervasiveness of this message is apparent when even extreme and highly public instances of family violence, such as the 2020 murder of Hannah Clarke and her children, attract comment that perhaps the perpetrator was ‘driven too far’.[93] Repeated research findings are testament to the relative infrequency of false allegations of family violence and sexual abuse in the family law context.[94] While some quantitative studies which focus on physically violent acts support claims that family violence is gender-neutral, qualitative approaches show ‘clear asymmetries’ between men’s and women’s use of domestic abuse.[95] Research data can be isolated to support a particular position, and statistical fact can be appropriated by the emotive rhetoric of political advocacy. Data alone cannot compete with the perceived injury of a privileged sector of society whose members experience increased protections for marginalised groups as a loss of status or entitlement.
In considering men’s expressed fears – loss of contact or damage to relationships with their children – and those expressed by women about the physical safety of themselves and their children,[96] a quote attributed to Margaret Attwood comes to mind: ‘Men are afraid women will laugh at them. Women are afraid men will kill them.’[97] In this context, the quip starkly illustrates the respective, and different, vulnerabilities of each group. At risk of generalising, during separation and the subsequent negotiation of parenting arrangements – perhaps especially for the troubled fraction who come to courts – men experience deep emotional and relational vulnerability, and women hold grave fears for their physical safety and the wellbeing of their children. Both sets of concerns must be addressed, and family law clearly struggles with accommodating this tension. Rather than ‘favouring’ mothers or fathers, it may be that family law represents an attempt to respond to legitimate and painfully felt, yet competing, social necessities. Advocacy by interest groups, while leading in some cases to important reform, has fueled an adversarial and gender-based politicisation of family law. Individual disputants enter the system and approach FDR feeling defensive, preconditioned to perceive the gendered biases which generate strong currents in the sea on which parents find themselves adrift.
IV SAILING IN THE ‘SHADOW OF THE LAW’
The substantive law provides an ‘implicit backdrop and framework’ for FDR negotiations,[98] and this has led to a description of FDR as ‘bargaining in the shadow of the law’.[99] While FDR can occur separately to family law proceedings, it is often treated as a precursor, and the FDR process under the Act is further influenced by requirements for any agreement to reflect certain legislative principles if parties seek for their agreement to be made into a binding court order.[100] Parties tend to articulate their positions using a vocabulary of parental ‘rights’ and ‘custody battles’. The inconsistency of this language with that of the legislative framework led researchers to further investigate the influence of law on FDR.[101] It was found that FDR is affected by a combination of formal and informal sources of information, with varying degrees of reliability, aptly described as the ‘shadow of the folk law’.[102] Family, friends and social media feature as influential sources of ‘folk law’, with formal legal advice viewed as merely one avenue used by separated parents to inform themselves of their rights, responsibilities and the likely outcomes of a dispute.[103] This is perhaps unsurprising if one considers the limited time that legal practitioners can devote to a matter,[104] and the fact that practitioners’ interpretations of ‘what the law says’ are far from uniform.[105] In addition, our brains are quicker to accept emotionally charged arguments[106] – such as anecdotes from personal acquaintances and views gleaned from political discourse – over a ‘rational’, unemotive evaluation of a matter which may be presented by a lawyer. These ‘folk law’ sources of information, and therefore bias, form an influential backdrop against which participants come into FDR.
The substantive law also has a central role in creating this backdrop, particularly as mediators are required to ‘reality-test’ parties,[107] which often includes casting a glance towards the legislative framework, and consider whether parents have made a ‘genuine effort’ to come to a resolution.[108] FDR participants likewise turn their gaze towards the courtroom, and ‘folk law’ beliefs about the nature and role of court action are also influential. On the one hand, potential litigants may be attracted to courts by a perceived opportunity for voice, advocacy, and the social and moral sanction of judicial approval. On the other hand, the cost, stress and delay associated with court action is untenable for many parents, who may feel increased pressure to reach agreement in FDR. The multifaceted shadow of the ‘folk law’ ensures that family law mediation processes are substantially influenced by the family law – whether by its text, or by social perceptions of its content.
V EVEN KEEL ON A STORMY SEA? THE MEDIATION PROCESS
The role of a mediator is defined by the National Mediator Accreditation System (‘NMAS’) as using knowledge, skills and ethical principles to ‘assist participants to make their own decisions’.[109] Mediators are charged with conducting the process in a ‘fair, equitable and impartial way, without favouritism or bias’,[110] and the NMAS Practice Standards state that ‘a mediator does not evaluate or advise on the merits of, or determine the outcome of, disputes’.[111] Given the matrix of social, political, legal and personal circumstances which surround participants and their dispute as they enter FDR, it is questionable whether impartiality is possible for mediators, or desirable for participants.
A Is Neutrality Possible?
Absent the public and authoritative framework of law, neutrality is the concept which gives mediation legitimacy.[112] The very act of claiming impartiality is a ‘claim to power and authority’.[113] Parties expect mediators to be neutral in two senses: they will be ‘impartial’ and not influence the content or outcome of the mediation; and they will be ‘even-handed’ and treat both parties equally.[114] Put simply, a participant’s expectation is that a mediator will act without bias. However, the ability of mediators to do so is highly contested.[115] Academic studies and practice reflections have found that mediators themselves acknowledge that neutrality is ‘absent in practice’.[116] Mediators are trained to identify power imbalances and, as part of their commitment to party self-determination,[117] are obligated to ‘deal with power’ to ensure that each party can negotiate effectively.[118] A failure to address power imbalances in mediation will compromise party self-determination and risk reproducing imbalances in any consequent agreement.[119] It has been claimed that mediators are able to be neutral as to the content or outcome while having some influence over the process,[120] but it is unrealistic to assume that a mediator’s influence on the process – in attempting to correct power imbalances, or assisting parties to generate solutions – will not have repercussions for outcomes. Indeed, the point of intervention is to attempt to create or enforce a fairness of outcome where this would otherwise not occur. Parties, particularly those who would otherwise have the benefit of a power differential, may experience mediator input as a loss of formal equality and therefore as bias against them. On the other hand, a lack of intervention would compromise not only the fairness of the outcome for the ‘weaker’ party, but also that party’s experience of the process. Each party’s perception of how a mediator should maintain fairness and neutrality will be specific to the circumstances of that person.
Neutrality itself is grounded in a particular cultural context.[121] Mediation occurs in a social (and legal) context which values a modernist concept of ‘rationality’ over the recognition of how intersectionalities of power and identity influence an individual’s attitudes and behaviour.[122] Rationality is seen as the basis of human cognition and sometimes even as definitive of our species itself.[123] Mediation is predicated on the dominant social paradigm that actors will make decisions based on ‘rational self-interest’, using processes associated with logic, deduction, and linear thinking.[124] However, research has shown that in emotionally complex situations which are difficult for the slow and methodical ‘rational brain’ to manage, the ‘fast’ and ‘emotional’ part of our brain tends to dominate decision-making.[125] Further, if the ‘rational’ neo-cortex is severed from the ‘emotional’ limbic brain, it is impossible to make decisions at all, suggesting that emotion is in fact intrinsic to human decision-making.[126] Even in FDR, where the emotions of the parties are expected to be high, it is arguably impossible for a mediator to escape the social value placed on an appearance of rationality. A rational, articulate, open approach to conflict is coded as ‘healthy’, and this approach tends to be promoted in mediation.[127] Parents who are unable to conform to a mediator’s expectations of rational, child-centred behaviour may experience a ‘credibility discount’, a penalty for failing to accord with the mediator’s view of how the world should be.[128]
B Is Neutrality Enough?
The focus on neutrality in mediation can result in a failure to engage effectively with the emotive background of family disputes, which tends to be a key concern of the disputants. When considering compulsory FDR in 1992, the Joint Select Committee found that major limitations on the effectiveness of FDR were that the parties had to be ‘willing to attend and participate constructively’, and that the ‘freshness of the emotional hurt’ made it difficult to reach agreement.[129] These concerns remain valid. Legal practitioners or mediators often seek to narrow the focus of discussions to what is legally relevant. These attempts at reframing can appear to minimise the emotional struggles of participants, and may be experienced as a failure to advocate for or understand them. Parties tend to be convinced of the legal relevance of their lived emotional experience. For some disputants, ‘the struggle is more important than the resolution’, and mediation processes and outcomes are not congruent with a party’s needs for voice, validation, impact and recognition.[130] A mediator’s eagerness for ‘resolution’ can feel shallow to a party for whom the conflict resonates deep into their past and future. Unmet emotional needs can lead to feelings of dissatisfaction with the FDR process, which can in turn drive parties to seek a more formal and adversarial expression of their dispute in court, where many believe that the adjudicative process will announce a ‘winner’, vindicating one parent and condemning the other. Diverting parties away from the court process is one of the objects of the FDR scheme, and as such it is advisable to consider ways of increasing parties’ satisfaction with the mediation process by addressing the counterproductive effects of bias on effective party engagement.
V REFINING THE FDR MODEL
While FDR may achieve a ‘resolution’ in the form of an agreement on paper, it is undesirable for disputants to experience mediation as superficial, coercive, or biased. Likewise, it is contrary to the objects of the FDR scheme for parents to participate in a token mediation only to seek vindictive relief in court. Mediation will remain inappropriate in some cases, and intake processes and mediator training in that space should continue to be separately refined. Where mediation is suitable, opportunities exist to enhance FDR by implementing processes which address emotion, reframe expectations, and provide education around identifying bias and the operation of the law. It is argued that addressing these interconnected aspects of family disputes will increase the ‘effective engagement’ of parties in their conflict,[131] with positive outcomes for parties and their children, even if ‘resolution’ is not reached.
A Addressing Emotions – The Core Concern of Family Law Disputes
The child-centred language of family law is entirely appropriate, and while a child-focused approach should similarly be applied in family mediation, the depth of parents’ emotions with respect to each other has a profound impact on their capacity to engage in a child-focused process. Reaching a settlement in the best interests of a child requires parties to ‘be the parent and not the gratified one’,[132] but when negotiating with a former partner in a post-relationship landscape that has been characterised by conflict, it can be intensely difficult for parties entering FDR not to conflate their child’s interests with their own. Addressing this disconnect will require open recognition, by parties and practitioners, of needs which are often not met by mediation. Mayer identifies six such needs: voice, vindication, validation, procedural justice, impact and safety.[133] He argues that failure to meet these needs will see dispute resolution ‘marginalized in impact and limited in scope’, [134] and notes that current dispute resolution practices tend to not only ignore but negate some of these needs.[135] Recognising these personal needs helps disputants to understand the wider context of their conflict, and requires a partial reframing of the role of the mediator to one of facilitating effective conflict engagement, as opposed to one narrowly focused on resolution.[136] Investigating emotions, and those of the other party, may allow parties and practitioners to use these findings constructively, first as a ‘lens’ to understand the context of the dispute, and then as a ‘lever’, to ‘enlist emotions that foster cooperation’ in coming to a resolution.[137] Articulating these concerns and having them acknowledged, even if not accepted, by the other party, will go to the parties’ needs for voice and validation – which are often muted by the confidential nature of FDR.
Addressing emotion in a constructive way could be assisted by including in the FDR intake process an exercise such as the preparation guide which accompanies Fisher and Shapiro’s Beyond Reason.[138] The worksheet requires parties to consider deeply the ‘five core concerns’: appreciation, affiliation, autonomy, status, and role.[139] This could be done as a therapeutic process, with the assistance of non-legal practitioners, and later shared, with consent, to legal and FDR practitioners. The author suggests that this exercise should be framed as predominantly occurring outside the legal arena, to emphasise a necessary division between parents’ emotional reactions with respect to each other, and children’s interests, which are and should remain the focus of the legal framework. This work could however be acknowledged as important and relevant to the legal process by recognizing completion of the process as part of the ‘genuine steps’ required before seeking to file in court.
B Reframing Party and Practitioner Expectations of Mediator Neutrality
Mediation arguably requires a legitimising concept which defines the nature and extent of a mediator’s input,[140] as it occurs outside the authoritative normative framework of law, and is private, confidential, and non-precedent-setting.[141] Accepting that ‘neutrality’ is problematic, mediation practitioners require a framework which allows them to escape the need for absolute neutrality while retaining a basis for validity. The intention of the neutrality concept – to assure parties of equal treatment and a lack of bias – can be preserved, as can the importance of party self-determination, by reconstructing the meaning of neutrality from an absolute value to a meaning which recognizes the mediator’s role as necessarily impacted by dynamics which exist between all participants. Beginning the intake process with an investigation into parties’ needs and expectations, as above, will enable discussion around centres of power and how these may have shifted during the relationship and after separation. It can be made explicit that in the course of a mediation, power, which is neither absolute nor ‘inherently coercive’, may likewise flow between the parties as well as being shared by the mediator.[142] Neutrality can then be understood as a concept which limits, rather than entirely excludes, a mediator’s exercise of power.[143] Party self-determination can similarly be understood as the ‘optimal exercise’ of the parties’ power, ‘individually and collectively’.[144] Under this model, mediators could ‘abandon neutrality jargon’ and consciously acknowledge the reality of their subjective position.[145] In practice, this could be assisted by development of a ‘bench book’ style resource for FDR practitioners, with suggested ‘directions’ to put to participants – while allowing flexibility for a mediator’s individual style – to confront and explain the practitioner’s perceptions of intersecting power differentials during the mediation. No doubt such guides are already in use, but development of a resource which specifically addresses family law mediation would assist with consistency of approach. Mediators should be encouraged to describe to parties the content of, and limits to, their approach to addressing perceived power imbalances. Though this approach may itself raise questions of bias, it is essential for mediators to openly acknowledge their input and thereby seek to ‘ethically minimise’ it’,[146] which in turn requires attending to their obligation to maximise party self-determination by dealing with the distribution of power.
C Providing Education and Awareness
Bias can be managed by empowering people to understand what their biases are and how they impact their decision-making.[147] Implicit biases can even be changed by application of ‘intention, attention, and effort’.[148] Only by bringing biases to conscious attention can we allow our rational, deliberative mind to work on them.[149] Mediation often occurs as a brief intake process, usually the filling of a form, followed by a four-hour, one-off conference. During this brief interaction, it would be unrealistic to expect entrenched conflict dynamics to shift, much less socio-politically constructed norms. However, a truncated process can be applied. An expanded intake process which includes consideration of the parties’ ‘core concerns’, discussed above, will ideally assist parties to articulate their emotions, and create space for an intention to acknowledge and accept the emotions of the other party. Explicit discussion by the mediator of potential sources of bias during the mediation process will help keep potential biases in conscious attention. Contextual information, such as informing the parties of the potential benefits to achieving a mutually satisfactory mediated agreement, will be important for motivating effort to achieve a sustainable outcome. A component of this would be ensuring that parties have realistic views about the court process, and what they are likely to experience if they engage with legal proceedings, while acknowledging that in some circumstances court is the only appropriate option. For politically engaged or open participants, historical and sociopolitical material around the construction of gendered norms could help to explain a mediator’s approach to identifying power imbalances.
Fact sheets which are brief, up-to-date, accessible, culturally appropriate, and readily available online, would assist parties to understand the matrix of factors which contribute to perceived bias in FDR. Information about the operation of the family law, the issues it attempts to address, and even its origins, may assist parties to check their own assumptions about what may influence the outcome of mediation or court and why, as well as understand the child-centred legislative framework. Case studies which illustrate integrative solutions or different portrayals of meaningful relationships between parent and child, including (or perhaps especially) from a child’s perspective, could effectively harness the known persuasive power of story.
IV CONCLUSION: TOWARDS THE HORIZON
Family law mediation is inherently emotive. It involves the determination of rights and responsibilities which are central to a party’s identity and way of life, in an atmosphere of threatened legal action and against a distant backdrop of divisive political struggle. Perceptions of bias on the part of men and women are arguably legitimately based in aspects of family law which reflect the adoption of select social science theories into the legal canon and advocacy from particular social groups during corresponding political eras. This has resulted in a system subject to ongoing reform and extensive political review which struggles with a tension between preserving a formal appearance of ‘fairness’ and prioritising the safety of women and children. The back-and-forth political process has enhanced rather than assuaged each group’s perception of bias, and this has a noticeable impact on the effectiveness of FDR.
This essay has argued for the importance of identifying and articulating the bases for perceived gendered bias in family law mediation. Where safe and appropriate, assisting parties through a process which articulates and validates their emotions and encourages them to consider the experiences of their former partner can foster mutual respect while acknowledging a diversity of viewpoints. Wider acknowledgment of the divisive origins of some of our laws and policies may help to break the ideological deadlocks which have cast the respective needs and vulnerabilities of mothers and fathers as being intractably conflicted. Moving forward productively will require examination of inequitable social norms which greatly affect the lives of both men and women and remain relatively unchallenged in modern Australian society: adherence to patriarchal tenets as to gender roles in our society has had implications for the prevalence of violence against women[150] and has in effect contributed to the preservation of the ‘maternal preference’ in family law parenting disputes. When men’s rights groups are advocating for equal parenting prior to separation, we may be in sight of land as we sail the tumultuous sea of family conflict.
BIBLIOGRAPHY
A Articles/Books/Reports
Akin Ojelabi, Lola and Judith Gutman, ‘Family Dispute Resolution and Access to Justice in Australia’ (2020) 16(2) International Journal of Law in Context 197
Astor, Hilary, ‘Mediator Neutrality: Making Sense of Theory and Practice’ (2007) 16(2) Social & Legal Studies 221
Attwood, Margaret, ‘Writing the Male Character’, Second Words: Selected Critical Prose 1960-1982
Australian Law Reform Commission, Family Law for the Future - an Inquiry into the Family Law System: Final Report (2019)
Australian Law Reform Commission, Family Law for the Future - an Inquiry into the Family Law System: Summary Report (2019)
Bagshaw, Dale, ‘Language, Power and Mediation’ (2003) 14 Australian Dispute Resolution Journal 130
Boulle, Laurence, ‘Predictable Irrationality in Mediation: Insights from Behavioural Economics’ (2013) 24 Australian Dispute Resolution Journal 8
Bretherton, Inge, Stephen Seligman, Judith Solomon, Judith Crowell and Jennifer McIntosh, ‘“If I Could Tell the Judge Something About Attachment...” Perspectives on Attachment Theory in the Family Law Courtroom’ (2011) 49(3) Family Court Review 539
Burns, Kylie, ‘Judges, ‘Common Sense’ and Judicial Cognition’ (2016) 25(3) Griffith Law Review 319
Chisholm, Richard, ‘The Meanings of “Meaningful” within the Family Law Act Amendments of 2006: A Legal Perspective’ (2009) 15(1) Journal of Family Studies 60
Commonwealth of Australia, A New Family Law System: Government Response to Every Picture Tells a Story: Response to the Report of the House of Representatives Standing Committee on Family and Community Affairs Inquiry into Child-Custody Arrangements in the Event of Family Separation (2005)
Commonwealth of Australia, Government Response to ALRC Report 135: Family Law for the Future – An Inquiry into the Family Law System (March 2021)
Commonwealth of Australia, Improvements in Family Law Proceedings: Second Report (2021)
Commonwealth, Australian Institute of Family Studies, ‘Parenting Arrangements after Separation’ (October 2019)
Crowe, Jonathan, Rachael Field, Lisa Toohey, Helen Partridge and Lynn McAllister, ‘Bargaining in the Shadow of the Folk Law: Expanding the Concept of the Shadow of the Law in Family Dispute Resolution’ [2018] SydLawRw 12; 40 Sydney Law Review 319
Dewdney, Micheline, ‘Party, Mediator and Lawyer-Driven Problems and Ways of Avoiding Them’ (2006) 17 Australian Dispute Resolution Journal 200
Douglas, Susan, ‘Neutrality in Mediation: A Study of Mediator Perceptions’ (2008) 8(1) Queensland University of Technology Law Review 139
Emery, Robert, Amy Holzworth-Monroe, Janet Johnston, JoAnne Pedro-Carroll, Marsha Kline-Pruett, Michael Saini and Irwin Sandler, ‘“Bending” Evidence for a Cause: Scholar-Advocacy Bias in Family Law’ (2016) 54(2) Family Court Review 134
Field, Rachael, ‘Family Law Mediation: Process Imbalances Women Should Be Aware of Before They Take Part’ (1998) 14 Queensland University of Technology Law Review 23
Field, Rachael and Jonathan Crowe, ‘The Construction of Rationality in Australian Family Dispute Resolution: A Feminist Analysis’ (2007) 27 Australian Feminist Law Journal 97
Fisher, Roger and Daniel Shapiro, Beyond Reason: Using Emotions as You Negotiate (Penguin, 2006)
Flood, Michael, ‘“Fathers’ Rights” and the Defense of Paternal Authority in Australia’ (2010) 16(3) Violence Against Women 328
Garber, Benjamin D, ‘Security by Association? Mapping Attachment Theory onto Family Law Practice’ (2012) 50(3) Family Court Review 467
Gleeson, Kate, ‘A Voice for the Injured: Bettina Arndt and Australian Family Law’ (2013) 28(78) Australian Feminist Studies 375
Izumi, Carol, ‘Implicit Bias and Prejudice in Mediation’ 70 SMU Law Review 14
Joint Select Committee on Australia’s Family Law System, Parliament of Australia, Improvements in Family Law Proceedings (Interim Report, October 2020)
Joint Select Committee on Australia’s Family Law System, Parliament of Australia, Improvements in Family Law Proceedings (Second Interim Report, March 2021)
Joint Select Committee on Certain Aspects of the Operation and Interpretation of the Family Law Act, Parliament of Australia, The Family Law Act 1975: Aspects of its Operation and Interpretation (26 November 1992)
Kahneman, Daniel, Thinking, Fast and Slow (Allen Lane, 2011)
Kaspiew, Rae, Matthew Gray, Ruth Weston, Lawrie Moloney, Kelly Hand and Lixia Qu, Evaluation of the 2006 Family Law Reforms (Australian Institute of Family Studies, 2009)
Lee, Joel, ‘Overcoming Attribution Bias in Mediation: An NLP Perspective’ (2004) 15 Australian Dispute Resolution Journal 48
Martin, Sarah, ‘Pauline Hanson Sparks Fury with Claim Domestic Violence Victims are Lying to Family Court’ Guardian Australia (online, 18 September 2019)
Mayer, Bernard, Beyond Neutrality: Confronting the Crisis in Conflict Resolution (Jossey-Bass, 1st ed, 2004)
McGowan, Michael and Ben Smee, ‘Queensland Police Spark Anger with “Open Mind” Comment on Murder of Hannah Clarke and Her Children’ Guardian Australia (online, 20 February 2020)
McMillan, Kathryn and Nicholas Pokarier, ‘Beyond Common Knowledge: Reviewing the Use of Social Science Evidence in Australian Courts’ (2019) 38(2) University of Queensland Law Journal 390
Mindthoff, Amelia, Deborah Goldfarb and Kelly Alison Behre, ‘How Social Science Can Help Us Understand Why Family Courts May Discount Women’s Testimony in Intimate Partner Violence Cases’ (2019) 53(3) Family Law Quarterly 243
Mnookin, Robert and Lewis Kornhauser, ‘Bargaining in the Shadow of the Law: The Case of Divorce’ (1979) 88(5) Yale Law Journal 950
Parliament of Australia, House of Representatives Standing Committee on Family and Community Affairs, Every Picture Tells a Story: Report on the Inquiry into Child Custody Arrangements in the Event of Family Separation (Final Report, December 2003)
Probyn, Fiona, ‘“That Woman”: Pauline Hanson and Cultural Crisis’ (1999) 14(29) Australian Feminist Studies 161
Rathus, Zoe, ''The Research Says...’: Perceptions on the Use of Social Science Research in the Family Law System’ (2017) 46 Federal Law Review 85
Rathus, Zoe, ‘The Role of Social Science in Australian Family Law: Collaborator, Usurper or Infiltrator?: The Role of Social Science in Australian Family Law’ (2014) 52(1) Family Court Review 69
Sandler, Irwin, Michael Saini, Marsha Kline-Pruett, JoAnne Pedo-Carroll, Janet Johnston, Amy Holzworth-Monroe and Robert Emery, ‘Convenient and Inconvenient Truths in Family Law: Preventing Scholar-Advocacy Bias in the Use of Social Science Research for Public Policy' (2016) 54(2) Family Court Review 150
Smyth, Bruce, ‘A 5-Year Retrospective of Post-Separation Shared Care Research in Australia’ (2009) 15(1) Journal of Family Studies 36
Sodha, Sonia, ‘The Idea That Family Courts are Biased Against Men is a Dangerous Fallacy’ Guardian (online, 20 March 2020)
Wall, Liz, Australian Centre for the Study of Sexual Assault, and Australian Institute of Family Studies, Gender Equality and Violence against Women: What’s the Connection? (2014)
B Cases
Brown v Pederson (1992) FLC 92-271
Epperson v Dampney (1976) FLC 90–061
Gronow & Gronow [1979] HCA 63; (1979) 144 CLR 513
In the marriage of Raby [1976] FamCA 89; (1976) 27 FLR 412
McGregor & McGregor [2012] FamCAFC 69
C Legislation
Family Law Act 1975 (Cth)
Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth)
Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 (Cth)
Family Law Reform Act 1995 (Cth)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021
D Other
Commonwealth of Australia, Parliamentary Debates, House of Representatives, 28 November 1974, 4322
Commonwealth of Australia, Parliamentary Debates, Senate, 10 November 2020, 5823
Mediator Standards Board Australia, National Mediator Accreditation System (1 July 2015)
* The author is an early career solicitor and acknowledges that relationships and families are diverse. Most of the literature reviewed for the purposes of this essay, and most of the authorR[1]s experience, has pertained to heterosexual, cis-male/cis-female relationships within the dominant Anglo-Australian culture. Reference to these relationships is not intended to exclude or speak for diverse families, couples or individuals.
1 Inge Bretherton et al, ‘“If I Could Tell the Judge Something About Attachment...” Perspectives on Attachment Theory in the Family Law Courtroom’ (2011) 49(3) Family Court Review 539, 546.
[2] Dale Bagshaw, ‘Language, Power and Mediation’ (2003) 14 Australian Dispute Resolution Journal 130, 130–1.
[3] Ibid 131.
[4] Joel Lee, ‘Overcoming Attribution Bias in Mediation: An NLP Perspective’ (2004) 15 Australian Dispute Resolution Journal 48, 49.
[5] Ibid.
[6] Ibid.
[7] Ibid 49–51.
[8] Bretherton et al (n 1) 545.
[9] Laurence Boulle, ‘Predictable Irrationality in Mediation: Insights from Behavioural Economics’ (2013) 24 Australian Dispute Resolution Journal 8, 10, citing Daniel Kahneman, Thinking, Fast and Slow (Allen Lane, 2011).
[10] Commonwealth, Australian Institute of Family Studies, ‘Parenting Arrangements after Separation’ (October 2019) 9, 1.
[11] Ibid.
[12] Family Law Act 1975 (Cth) s 60I(7) (‘Family Law Act’); Federal Circuit and Family Court of Australia (Family Law) Rules 2021 r 4.02(1).
[13] Bretherton et al (n 1) 545.
[14] Robert H Mnookin and Lewis Kornhauser, ‘Bargaining in the Shadow of the Law: The Case of Divorce’ (1979) 88(5) Yale Law Journal 950, cited in Jonathan Crowe et al, ‘Bargaining in the Shadow of the Folk Law: Expanding the Concept of the Shadow of the Law in Family Dispute Resolution’ [2018] SydLawRw 12; 40 Sydney Law Review 319, 320-1.
[15] Zoe Rathus, ‘’The Research Says...’: Perceptions on the Use of Social Science Research in the Family Law System’ (2017) 46 Federal Law Review 85, 94.
[16] Robert Emery et al, ‘“Bending” Evidence for a Cause: Scholar-Advocacy Bias in Family Law’ (2016) 54(2) Family Court Review 134, 134-5 (‘Scholar-Advocacy Bias’).
[17] Ibid.
[18] Ibid 135.
[19] Ibid.
[20] Ibid, citing Daniel Kahneman, Thinking, Fast and Slow (Allen Lane, 2011).
[21] Rathus (n 15) 111.
[22] Benjamin D Garber, ‘Security by Association? Mapping Attachment Theory onto Family Law Practice’ (2012) 50(3) Family Court Review 467, 469 (‘Security by Association?’).
[23] See, eg, ibid 468.
[24] Bretherton et al (n 1) 541.
[25] Garber (n 22) 467, 469.
[26] [2012] FamCAFC 69 [118]-[125] (‘McGregor’).
[27] Zoe Rathus, ‘The Role of Social Science in Australian Family Law: Collaborator, Usurper or Infiltrator?’ (2014) 52(1) Family Court Review 69, 69 (‘The Role of Social Science in Australian Family Law’).
[28] Richard Chisholm, ‘The Meanings of “Meaningful” within the Family Law Act Amendments of 2006: A Legal Perspective’ (2009) 15(1) Journal of Family Studies 60, 64.
[29] Kathryn McMillan and Nicholas Pokarier, ‘Beyond Common Knowledge: Reviewing the Use of Social Science Evidence in Australian Courts’ (2019) 38(2) University of Queensland Law Journal 390, 391-2.
[30] Rathus (n 15) 111. See also Rathus, 'The Role of Social Science in Australian Family Law' (n27) 76, where Rathus speaks of the ‘imperceptible way that law absorbs social science without acknowledgment’.
[31] McMillan and Pokarier (n 29) 403-5.
[32] McGregor (n 26) [124], quoting SCVG & KLD [2011] FamCAFC 100 [56].
[33] Commonwealth, Parliamentary Debates, House of Representatives, 28 November 1974, 4322 (Gough Whitlam).
[34] Lola Akin Ojelabi and Judith Gutman, ‘Family Dispute Resolution and Access to Justice in Australia’ (2020) 16(2) International Journal of Law in Context 197, 211.
[35] Irwin Sandler et al, ‘Convenient and Inconvenient Truths in Family Law: Preventing Scholar-Advocacy Bias in the Use of Social Science Research for Public Policy' (2016) 54(2) Family Court Review 150, 150.
[36] Epperson v Dampney (1976) FLC 90–061, quoted in Rathus, 'The Role of Social Science in Australian Family Law' (n 27) 72.
[37] In the marriage of Raby [1976] FamCA 89; (1976) 27 FLR 412, 427, quoted in Rathus, ‘The Role of Social Science in Australian Family Law’ (n 27) 73.
[38] [1979] HCA 63; (1979) 144 CLR 513 (‘Gronow’).
[39] Ibid 526 (Mason and Wilson JJ, Aikin J agreeing).
[40] Ibid 522 (Stephen J).
[41] Rathus, 'The Role of Social Science in Australian Family Law' (n 27) 73.
[42] Michael Flood, ‘“Fathers’ Rights” and the Defense of Paternal Authority in Australia’ (2010) 16(3) Violence Against Women 328, 329-31.
[43] See, eg, Gronow (n 38) 520 (Stephen J).
[44] As in Gronow itself, where the mother argued that the primary judge had failed to give sufficient weight to the ‘mother factor’.
[45] Flood (n 42) 331.
[46] Rathus, 'The Role of Social Science in Australian Family Law' (n 27) 73.
[47] Ibid.
[48] Brown v Pederson (1992) FLC 92-271.
[49] Rathus (n 27) 73.
[50] Joint Select Committee on Certain Aspects of the Operation and Interpretation of the Family Law Act, Parliament of Australia, The Family Law Act 1975: Aspects of its Operation and Interpretation (26 November 1992) 105 [5.29]-[5.30] ('Joint Select Committee into Family Law 1992').
[51] Ibid 106 [5.34].
[52] Ibid 146 [6.45].
[53] Kate Gleeson, ‘A Voice for the Injured: Bettina Arndt and Australian Family Law’ (2013) 28(78) Australian Feminist Studies 375, 386 (‘A Voice for the Injured’).
[54] Family Law Reform Act 1995 (Cth) s 31 (‘Family Law Reform Act’), inserting Family Law Act s 60B.
[55] Family Law Reform Act s 31 inserting what is now Family Law Act s60CC; Family Law Reform Act s 68K, inserting Family Law Act s43(1)(ca).
[56] Gleeson (n 53) 388.
[57] Flood (n 42) 333–5.
[58] Ibid 329, 342.
[59] House of Representatives Standing Committee on Family and Community Affairs, Every Picture Tells a Story: Report on the Inquiry into Child Custody Arrangements in the Event of Family Separation (Final Report, December 2003) xxi ('Every Picture Tells a Story').
[60] Commonwealth, 'A New Family Law System: Government Response to Every Picture Tells a Story: Response to the Report of the House of Representatives Standing Committee on Family and Community Affairs Inquiry into Child-Custody Arrangements in the Event of Family Separation' (June 2005) ('A New Family Law System').
[61] Ibid 2.
[62] Ibid.
[63] Ibid 5.
[64] Ibid 9.
[65] Ibid 1. Reference to the Contact Orders Program.
[66] Ibid 3.
[68] Ibid s 60I(1), inserted by Family Law Amendment (Shared Parental Responsibility) Act 2006 Sch 1.
[69] Family Law Act 60CC(2)(a), (b).
[70] Flood (n 42) 328.
[71] Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) Sch 1, inserting definition of ‘family violence’ into s4(1) of the Family Law Act (emphasis added).
[73] Gleeson (n 53) 387.
[74] Flood (n 42) 330.
[75] Gleeson (n 53) 387.
[76] Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 sch 1, inserting Family Law Act s4AB(1).
[77] Ibid inserting Family Law Act section 4AB(1).
[78] Ibid inserting Family Law Act s 60CC(2A).
[80] Australian Law Reform Commission, Family Law for the Future - an Inquiry into the Family Law System (Report No 135, April 2019) 160, 162, 165 (‘ALRC Report 135’).
[81] Ibid 167 [5.51].
[82] Ibid 168 [5.54]-[5.55].
[83] Joint Select Committee on Australia’s Family Law System, Parliament of Australia, Improvements in Family Law Proceedings (Interim Report, October 2020) xv.
[84] Commonwealth, Parliamentary Debates, Senate, 10 November 2020, 5823 (Pauline Hanson).
[85] Joint Select Committee on Australia’s Family Law System, Parliament of Australia, Improvements in Family Law Proceedings (Second Interim Report, March 2021) xv.
[86] Ibid ix.
[87] Commonwealth, ‘Government Response to ALRC Report 135: Family Law for the Future – An Inquiry into the Family Law System’ (March 2021) 45, 11.
[88] Ibid 15.
[89] Gleeson (n 53) 379, 388.
[90] Ibid 391.
[91] Fiona Probyn, ‘“That Woman”: Pauline Hanson and Cultural Crisis’ (1999) 14(29) Australian Feminist Studies 161, 161, citing undated speech by Pauline Hanson.
[92] Sarah Martin, ‘Pauline Hanson Sparks Fury with Claim Domestic Violence Victims are Lying to Family Court’ Guardian Australia (online, 18 September 2019) <https://www.theguardian.com/australia-news/2019/sep/18/pauline-hanson-sparks-fury-with-claims-domestic-violence-victims-are-lying-to-family-court>.
[93] See, eg, Michael McGowan and Ben Smee, ‘Queensland Police Spark Anger with “Open Mind” Comment on Murder of Hannah Clarke and Her Children’ Guardian Australia (online, 20 February 2020) <https://www.theguardian.com/australia-news/2020/feb/20/queensland-police-spark-anger-with-open-mind-comment-on-of-hannah-clarke-and-children>.
[94] Flood (n 42) 336.
[95] Ibid 340–1.
[96] ALRC Report 135 (n 80) 29. These twin general concerns were highlighted in submissions to the ALRC.
[97] Adapted from Margaret Attwood, ‘Writing the Male Character’, Second Words: Selected Critical Prose 1960-1982.
[98] Crowe et al (n 14) 320-1.
[99] Ibid, citing Robert H Mnookin and Lewis Kornhauser, ‘Bargaining in the Shadow of the Law: The Case of Divorce’ (1979) 88(5) Yale Law Journal 950.
[100] Akin Ojelabi and Gutman (n 34) 204.
[101] Crowe et al (n 14) 336.
[102] Ibid 322 (emphasis added).
[103] Ibid 330.
[104] Ibid 333.
[105] Rae Kaspiew et al, Australian Institute of Family Studies, Evaluation of the 2006 Family Law Reforms (December 2009) 12.
[106] Boulle (n 9) 10.
[107] Mediator Standards Board Australia, National Mediator Accreditation System (1 July 2015) 13 [10.1(b)(viii)] ('NMAS').
[108] Family Law Act ss 60I(1), (8)(b)(c).
[109] NMAS (n 107) 2, 9 [2.1].
[110] Ibid 11 [7.1].
[111] Ibid 9 [2.2].
[112] Hilary Astor, ‘Mediator Neutrality: Making Sense of Theory and Practice’ (2007) 16(2) Social & Legal Studies 221, 222 (‘Mediator Neutrality’); Rachael Field, ‘Family Law Mediation: Process Imbalances Women Should Be Aware of Before They Take Part’ (1998) 14 Queensland University of Technology Law Review 23, 30 (‘Family Law Mediation’).
[113] Astor (n 112) 225.
[114] Ibid 223; Susan Douglas, ‘Neutrality in Mediation: A Study of Mediator Perceptions’ (2008) 8(1) Queensland University of Technology Law Review 139, 143 (‘Neutrality in Mediation’).
[115] Astor (n 112) 225.
[116] Douglas (n 114) 139.
[117] NMAS (n 107) 13–4 [10.1(a)(v), (b)(vi), (c)(iii).
[118] Astor (n 112) 236.
[119] Ibid 226.
[120] Douglas (n 114) 143.
[121] Bernard Mayer, Beyond Neutrality: Confronting the Crisis in Conflict Resolution (Jossey-Bass, 1st ed, 2004) 6.
[122] Bagshaw (n 2) 130.
[123] Boulle (n 9) 10.
[124] Ibid 9-10.
[125] Ibid 10, citing Daniel Kahneman, Thinking, Fast and Slow (Allen Lane, 2011).
[126] Ibid 16.
[127] Bagshaw (n 2) 132.
[128] Amelia Mindthoff, Deborah Goldfarb and Kelly Alison Behre, ‘How Social Science Can Help Us Understand Why Family Courts May Discount Women’s Testimony in Intimate Partner Violence Cases’ (2019) 53(3) Family Law Quarterly 243, 243.
[129] Joint Select Committee into Family Law 1992 (n 50) 74 [4.31]-[4.32].
[130] Mayer (n 121) 15–16.
[131] Ibid 39.
[132] Bretherton et al (n 1) 543.
[133] Mayer (n 121) 23-8.
[134] Ibid 28-9.
[135] Ibid 26-7.
[136] Ibid 39.
[137] Roger Fisher, Daniel Shapiro and Zoe Segal-Reichlin, ‘The “Beyond Reason” Preparation Guide’ (online) 1, 4 <https://inp.harvard.edu/files/internationalnegotiation/files/eps.pdf> ('Beyond Reason Preparation Guide').
[138] Roger Fisher and Daniel Shapiro, Beyond Reason: Using Emotions as You Negotiate (Penguin, 2006) and associated worksheet, Roger Fisher, Daniel Shapiro and Zoe Segal-Reichlin (n 137).
[139] Beyond Reason Preparation Guide (n137) 2.
[140] Astor (n 112) 221, 229.
[141] Mayer (n 121) 28.
[142] Douglas (n 114) 154–5.
[143] Ibid.
[144] Ibid.
[145] Field (n 112) 31.
[146] Astor (n 112) 235.
[147] Boulle (n 9) 17.
[148] Carol Izumi, ‘Implicit Bias and Prejudice in Mediation’ 70 SMU Law Review 14, 690.
[149] Boulle (n 9) 17.
[150] Liz Wall, Australian Institute of Family Studies, Australian Centre for the Study of Sexual Assault, Gender Equality and Violence against Women: What’s the Connection? (June 2014) 12.
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