62A Counselling, counsellors reports and mediation in family law COUNSELLING, COUNSELLORS REPORTS AND MEDIATION IN FAMILY LAW... Introduction... Counselling... Counselling: What is it?... Who makes an effective counsellor?... How to find an effective counsellor... Effectiveness: Counselling theory versus counsellor style... How to work with a counsellor... Counsellors responsibility to children... Psychiatry, psychotherapy and counselling different overlapping professions... Forensic counselling reports... Treating counsellors as court witnesses: A conundrum... An assessment report for the court... A final comment... Mediation... Recent developments in family mediation in Australia... Mediation in the current context: What is it?... Referral to mediation: What should a lawyer expect?... Referral to mediation: Preparing the client... Does family mediation work?... Lawyers and counsellors as mediators... The growing place of children in family law... Children and mediation... Family and child mediators as court witnesses... Paragraph [62A.60] [62A.60] [62A.70] [62A.80] [62A.140] [62A.170] [62A.200] [62A.220] [62A.270] [62A.310] [62A.390] [62A.390] [62A.400] [62A.550] [62A.590] [62A.590] [62A.610] [62A.650] [62A.720] [62A.750] [62A.810] [62A.870] [62A.900] [62A.940] [The next text page is 62A-51] 62A-1 Update: 26
Expert Evidence 62A-2 Freckelton and Selby
Abbreviations PACFA Psychotherapy and Counselling Federation of Australia [The next text page is 62A-1051] 62A-51 Update: 26
EXPERT EVIDENCE 62A-52 Freckelton and Selby
62A Counselling, counsellors reports and mediation in family law by Lawrie Moloney MSc, MA 62A - 1051 Update: 26
EXPERT EVIDENCE Author information Lawrie Moloney is a Senior Lecturer in Counselling Psychology at La Trobe University, Melbourne, where he also teaches within the Graduate Diploma of Conflict Resolution and Graduate Diploma of Family Mediation programs. Lawrie holds Masters degrees in Educational Psychology from the University of Edinburgh and in Clinical Psychology from the University of Melbourne. He has worked as a psychologist in Britain and Australia and was a Family Court counsellor and a Director of Family Court Counselling from late 1975 until the end of 1985. Lawrie is about to complete a Doctoral thesis in which he is investigating the construction of gender in Family Court judgments relating to parenting decisions. 62A - 1052 Freckelton and Selby
COUNSELLING, COUNSELLORS REPORTS AND MEDIATION IN FAMILY LAW Introduction [62A.60] It could be said that Australian family law has progressed both because and in spite of an uneasy alliance between experts from different but overlapping professional camps. The main players in these camps are judges and lawyers, whose primary orientation is clearly law and legal process; psychologists and psychiatrists, who are largely concerned with how past and present personal and inter-personal functioning impacts on legal processes and future options around separation and divorce; counsellors and psychotherapists, whose focus is on facilitating constructive personal responses to events and issues related to separation and divorce; social workers, who frequently attend to broader structural issues such as social security, community supports and the provision of adequate child care; and conciliators and mediators, who assist in the management and possible resolution of conflicts associated with separation and divorce. The roles of each professional are unclear at times and cases may stall as a result. At other times, representatives from two or more professional groups transcend seemingly profound differences of world view and combine their resources to achieve good and even excellent outcomes. Counselling [62A.70] Not infrequently, family lawyers find that their clients have been engaged in counselling prior to or following the separation or both. In addition, clients may speak of being or having been in psychotherapy or being or having been in psychological or psychiatric treatment. The various terms are often used loosely, even by professionals themselves, and denote a potentially bewildering array of interventions and practices. COUNSELLING: WHAT IS IT? [62A.80] The definitions cited here have been taken from McLeod (1998). Well informed and clearly written, this is an excellent text on the subject and provides a very accessible resource on counselling for legal practitioners. McLeod (1998, p 3) cites the Code of Ethics and Practice for Counsellors of the British Association for Counselling (BAC (1984)) which defines its work as follows: 62A - 1053 Update: 26
[62A.80] EXPERT EVIDENCE The term counselling includes work with individuals and with relationships which may be developmental, crisis support, psychotherapeutic, guiding or problem solving The task of counselling is to give the client an opportunity to explore, discover and clarify ways of living more satisfyingly and resourcefully. Though there are many more complex and more inclusive definitions of counselling, the above makes mention of most of the key elements. A limitation which might be seen by legal and non-legal practitioners working in the family law area is that the definition places more emphasis on exploration and understanding than on action. Burks and Steffire (1979), for example, include in their definition the notion that counselling assists clients to learn to reach their self-determined goals through resolution of problems of an emotional and interpersonal nature. The other element which many would argue is crucial to a comprehensive definition of counselling is the nature of the relationship between client and counsellor. Feltham and Dryden (1993) definition, for example, includes the phrase, A principled relationship characterised by the application of one or more psychological theories (emphasis added). [62A.90] Surveys by the Australian Institute of Family Studies have shown consistently that a large majority of people of all ages aspire to permanent or long-term intimate relationships. Popular rhetoric to the contrary, most individuals do not separate from their partners lightly. Yet those who work in the broad area of family law will recognise that individuals in the process of separating do not always see, as a priority, the BAC s aim of discovering/clarifying (or even acting upon) ways of living more satisfyingly and resourcefully. Instead, many separating clients are struggling with the early, middle or late stage of a personal and sometimes financial crisis. A crisis is characterised by the recognition that we are in unfamiliar territory, and that the normal range of actions we take to avoid pain or to make things better do not seem to work with any acceptable level of predictability. Crisis, as the Chinese symbol denotes, is a time of dangerous opportunity. Whether we emerge from a crisis as significantly disoriented and weakened or as stronger and clearer about our purpose depends to a considerable extent on how we construct the events in our own mind and how we subsequently respond to that construction. Typically, those who have made the decision to leave (most studies (for example, Gibson (1992)) suggest that in heterosexual relationships, women decide to leave their partners at least twice as often as men), have already gone through a period of self-analysis and anguish. The general exception is the person whose departure is precipitated by a traumatic event such as the discovery of an affair or the discovery of the abuse of children. Partners who have decided to leave may wish to avoid a further focus on relationship and emotional issues, preferring instead to get on with living. Or they may wish to embrace counselling to assist their orientation towards a new future. Their motivation to engage in counselling may also spring from a wish to assist their former partners or even hand them over into the care of another. These clients usually respond well to a referral to a supportive counsellor who will assist them through the transitional period, allow them space to reflect on their new lives and offer challenges, in the context of a good working relationship, if and when appropriate. For the person who has had to leave precipitously or the person who has been left, the situation can appear very different. The departure or news of the partner s departure often comes as a shock. The event can be perceived as shocking, even if, in the latter case, the former partner has sent signals of his or her impending departure in advance. Though at first glance the shock of being rejected after a significant relationship may seem a long way removed from the traumas associated with the experience of war or assault, we have learned from more formal studies of trauma that they do have elements in common. The commonality has to with the loss 62A - 1054 Freckelton and Selby