Professional Responsibilities

Study 2 confirmed that both family lawyers and family dispute resolution practitioners see the two professions as having different sets of professional responsibilities. The fact that the two professions have different hierarchies of professional responsibilities was recognised by most practitioners (83.6%). As in Study 1, the majority of family dispute resolution practitioners in Study 2 (84.2%) identified a duty to the child as their highest professional responsibility, although, as noted in section 2.3.2.4, a number of the family dispute resolution practitioners in Study 1 contextualised this duty within a broader responsibility to the family as a whole. The identification of the child as their primary responsibility was also reflected strongly in the open-ended responses to the questionnaire. Most commonly, addressing the child’s needs was described as the underlying rationale of family dispute resolution, with family dispute

138

Beta=.24, p=.006 and Beta=-.24, p<.001, respectively. 139

resolution practitioners explaining that the overarching aim of the work they engaged in, and the purpose behind the organisations they were employed by, was to address the needs of children whose separating parents were in dispute. This perspective appeared to be reasonably well understood by family lawyers, close to half of whom (49.8%) identified the child as family dispute resolution practitioners’ chief responsibility. Family lawyers’ open-ended responses also showed that many regarded family dispute resolution practitioners’ ability to prioritise the needs of the child in extremely positive terms.

In contrast to this level of understanding, the Study 2 findings suggest that family lawyers’ professional responsibilities are not as well understood by family dispute resolution practitioners. Whereas the majority of family lawyers (72.3%) identified their duty to the court as their paramount professional responsibility, reflecting their position as officers of the court,140 family dispute resolution practitioners’ responses suggest that almost half (48.6%) believe family lawyers are required to put the interests of their clients first, with some suggesting that lawyers are obliged to follow the client’s instructions because the client is paying for their services. Also related to the perception that lawyers owe their primary duty to their client were family dispute resolution practitioners’ perceptions of family lawyers as adversarial in their approach,141 and a perception that client advocacy and adversarialism are inevitably connected: ‘Lawyers work in an adversarial system to represent their individual client /parent to gain the best possible outcome for them within the law. This generates the fight to win/lose situation often resulting in conflict’.

The qualitative data collected during Study 2 also confirm the picture of family lawyers’ professional duties found in Study 1, revealing a complex mix of responsibilities to the court, client, and child, including a commitment to child focused practice, rather than a clear hierarchy of obligations. As in Study 1, family lawyers who made open-ended responses tended to comment that their professional obligation as officers of the court had necessarily determined the way in which they ranked their duties in the closed-question part of the questionnaire, but that the practical reality of their responsibilities was far more complex than this. The questionnaire data indicate that family lawyers’ practice experience of ‘juggling’ these multiple responsibilities was not well understood by many family dispute resolution practitioners.

Responses to the open-ended questions also suggested that many family dispute resolution practitioners regarded the family lawyer’s duty to their client as an unambiguous priority. This contrasts with those family dispute resolution practitioners in Study 1 with well-developed positive inter-professional relationships with family lawyers, whose interviews revealed an awareness of family lawyers’ multiple responsibilities and the need to balance these in practice. This understanding was also evident in a number of the open-ended responses of family dispute resolution practitioners who described experiences of working with family lawyers rather than

140 _{See Section 1.3.} 141

Almost half (48.6%) of family dispute resolution practitioners felt that lawyers took a non- adversarial approach to post-separation conflicts never or only occasionally. However, it should be noted that the term ‘adversarial’ was not defined in the questionnaire, and it appears from the open- ended responses that family dispute resolution practitioners use this term to convey a variety of different meanings.

perceptions of family lawyers’ practices: ‘In my experience the majority of family

lawyers focus the client’s attention on the best interests of the children…the most effective family lawyer will balance all three responsibilities whilst advising clients’. 3.4.5.2 Approaches to Children's Best Interests

Participants in Study 1 were asked to describe their approach to ensuring the child’s interests are considered by parents. Study 2 followed this up by asking respondents to rate the relative importance they placed, and the importance they believed the other profession placed, on a number of different factors when assessing children’s ‘best interests’ in parenting matters. Reflecting their different practice requirements,142 the questionnaire data indicate that the most significant difference between the two professions when assessing children’s best interests lies in their relative reliance on research evidence versus law, with family dispute resolution practitioners reporting that they place greater importance on the former criterion than do family lawyers.143 However, it is important to note that the questionnaire data show that in assessing children’s interests, family lawyers place most reliance on (Family or Expert) reports on children, which are prepared by social science professionals, with 96% placing moderate to great importance on these.144

As well as differences between the professions in their approach to assessing children’s best interests, the analyses reveal that practitioners held some inaccurate perceptions about how the other profession approaches children’s best interests. Specifically, family dispute resolution practitioners rated family lawyers as placing more importance on parents’ views than family lawyers themselves indicated they did.145 This may be related to the perception expressed by many family dispute resolution practitioners that family lawyers have a straightforward obligation to their client (that is, one of the parents). Family dispute resolution practitioners also rated family lawyers as placing less importance on research evidence than lawyers rated themselves as placing on this criterion.146 The perception that lawyers place little emphasis on research evidence was also evident in the open-ended responses and was a source of some frustration for many family dispute resolution practitioners.

142 _{Family lawyers are required to base their advice to clients about the ‘best interests’ of the child on} the relevant legislative considerations governing this issue. See for a discussion of this obligation, P. Parkinson, ‘The values of parliament and the best interests of children’ (2007) 21 Australian Journal of

Family Law 213. Whilst practising lawyers are required to undertake a number of hours of compulsory

professional development each year, and this may include, for family lawyers, units in child

development (e.g., see Continuing Profession Development Rules 2007 (Vic), s. 3.2.9(3)), they are not required to have training in child development, unless they act as an Independent Children's Lawyer. By contrast, family dispute resolution practitioners’ advice to parents will typically draw on the relevant social science evidence regarding child development and children’s post-separation needs, rather than the law. This issue is discussed in more detail in Chapter 4.

143

In this and the following analyses, family lawyers and family dispute resolution practitioners were compared using multivariate analyses of variance with between group comparisons on the relevant variables. M=4.3, SD=1.1 and M=3.7, SD=1; F(1, 422)=29, p<.001. As noted previously, responses to the variables included in the following analyses were coded on a 5-point scale.

144

Family Reports are prepared by a psychologist or social worker who interviews the child and observes the child with each parent and provides information to the court and the parents’ legal advisers about the child’s wishes and needs: Family Law Act 1975 (Cth) s.62G.

145

M=4.5, SD=.8 and M=3.9, SD=.9; F(1, 425)=27.5, p<.001. 146

In contrast, family lawyers rated family dispute resolution practitioners as placing less importance on parents’ views than family dispute resolution practitioners themselves indicated.147 Family lawyers also rated family dispute resolution practitioners as placing more importance on personal experience than family dispute resolution practitioners indicated.148 These findings reinforce the conclusion that the two professions often have inaccurate perceptions of each other’s practices.