21. Family Dispute Resolution - ALRC · PDF file21. Family Dispute Resolution 985 this Report, much work has been done in recent years to develop ADR processes that have the flexibility

21. Family Dispute Resolution

Contents Introduction 983 Family Dispute Resolution 985

Development of family dispute resolution 986 FDR in family law legislation 987

FDR and parenting orders 987 FDR and financial disputes 988 FDR and the Family Law Act generally 988 Definition of family violence 989

FDR in cases involving family violence 990 Screening and risk assessment practices 998

FDR practitioners and screening 998 Screening frameworks 999 Lawyers as effective referral agents 1003

FDR practitioners and lawyers 1008 Culturally responsive FDR 1013

Introduction 21.1 Disputes of all types are increasingly dealt with by methods of dispute resolution that do not involve a decision by a court or tribunal and instead involve different ‘alternative dispute resolution’ (ADR) models. Part F of this Report examines the use of ADR processes1 in disputes involving family violence—processes that operate within or alongside family law, child protection law and family violence law, and which affect the operation of the legal frameworks that are the subject of this Inquiry.

21.2 ADR and restorative justice share common origins and philosophies as part of a move away from traditional legal processes and towards new forms of conflict resolution. However, ADR and restorative justice have developed as distinct areas of practice. ADR focuses on managing disputes in a collaborative way, whereas restorative justice is concerned with reparation and dialogue between offenders and victims.2

1 The term ADR is used here to include family dispute resolution (FDR)—the ADR model used to resolve

disputes under the Family Law Act 1975 (Cth)—as well as ADR models used to resolve child protection matters and matters arising under family violence legislation.

2 See L McCrimmon and M Lewis, ‘The Role of ADR Processes in the Criminal Justice System: A View’ (Paper presented at Association of Law Reform Agencies for Eastern and Southern Africa, Entebbe,

984 Family Violence — A National Legal Response

21.3 The use of ADR and restorative justice is controversial in disputes involving violence and abuse.3 With respect to ADR, a major concern is that processes for dispute resolution are based on negotiations between parties and consensual agreements. In the context of family violence, the power relationships between the parties may make this dangerous or produce unfair or unsafe agreements.

21.4 As discussed in Chapter 23, the Commissions consider that negotiation or mediation about violence itself is never appropriate. Having considered research findings and stakeholder comments throughout this Inquiry, the Commissions have concluded that, where there is family violence, ADR to resolve issues other than violence may be appropriate, depending on effective and reliable family violence screening, risk assessment and risk management. In Part F of this Report, the Commissions consider the need for reforms in legislation, policy and practice to provide for the safety of parties during ADR, and to facilitate safe and effective outcomes through ADR in disputes involving family violence.

21.5 In this chapter, the Commissions consider the use of family dispute resolution (FDR)4 to resolve parenting disputes involving family violence. The Commissions examine the family law framework for FDR, with particular consideration of screening and risk assessment practices, cooperation and collaboration between FDR practitioners and lawyers, and the development of culturally responsive FDR.

21.6 In Chapter 22, the Commissions consider the disclosure of information and admissibility of evidence arising from FDR and family counselling communications. This involves balancing different considerations: agencies’ and courts’ need for information and evidence to protect victims or those at risk of family violence, and the need to maintain the integrity and ability of FDR and family counselling processes to secure safe outcomes for victims and those at risk in the context of family law disputes.

21.7 In Chapter 23, the Commissions consider the use of ADR processes in family violence, family law and child protection matters, and the inconsistencies in practice and outcomes arising from the gaps between these jurisdictions. In doing so, the Commissions note that legislative, policy and operational distinctions between family violence, family law and child protection issues do not always reflect the actual experience of families affected by family violence, for whom these issues often intersect. This leads the Commissions to consider the potential for ADR to overcome jurisdictional divides to offer seamless and effective resolution of intersecting issues in disputes involving family violence.

21.8 Australian governments and others have expressed strong support for greater use of ADR to resolve family law and child protection disputes.5 As discussed in Part F of

Uganda, 6 September 2005). See also Law Reform Committee—Parliament of Victoria, Inquiry into Alternative Dispute Resolution and Restorative Justice (2009), 9–10.

3 Restorative justice in relation to family violence and sexual assault is considered briefly in Ch 23. 4 The term ‘family dispute resolution’—or FDR—refers to ADR as it is used to resolve disputes in

accordance with the Family Law Act 1975 (Cth). See the definition of family dispute resolution in s 10F of the Act.

5 See for example, R McClelland (Attorney-General), ‘Improving Access to Justice’ (Press Release, 17 May 2010); Australian Government Attorney-General’s Department Access to Justice Taskforce, A Strategic Framework for Access to Justice in the Federal Civil Justice System (2009); J Wood, Report of

21. Family Dispute Resolution 985

this Report, much work has been done in recent years to develop ADR processes that have the flexibility to accommodate the personal and cultural needs, concerns, values and interests of particular children and their families, as well as providing appropriate safeguards to protect victims of family violence and those at risk of family violence. In this regard, the Commissions note the funding, development, implementation and other support of important strategies and initiatives by government, dispute resolution service providers, lawyers and other professionals in the fields of family law, child protection and family violence. As Part F of this Report indicates however, there is still important work to do to improve law and practice relating to the use of ADR in cases involving family violence.

Family Dispute Resolution 21.9 This chapter considers the role of FDR in resolving family law disputes—in particular parenting disputes—and the interaction between FDR processes under the Family Law Act 1975 (Cth) and family violence.

21.10 The use of FDR in the context of family violence presents complex challenges. In addition to significant concern about the safety of participants engaging in FDR where family violence is present, there is concern that imbalances in power relationships between the parties may compromise the fairness of the negotiating process and result in unfair and unsafe agreements.

21.11 However, the capacity of FDR to provide flexible and accessible resolution processes to accommodate the particular needs, interests and concerns of diverse parties—especially where parties are victims or are at risk of family violence—contributes significantly to the possibility of achieving sustainable and effective outcomes.

21.12 As the Australian Institute of Family Studies (AIFS) found in its Evaluation of the 2006 Family Law Reforms, there is evidence that some families with family violence issues are ‘on the roundabout’ between services which provide ADR in the family law system, lawyers, courts and state-based child protection and family violence systems.6 AIFS has also noted in relation to parenting arrangements, that the

evidence of poorer well-being for children whose mothers have safety concerns ... highlights the importance of identifying families where safety concerns are pertinent and assisting them to make arrangements that promote the well-being of their children’.7

21.13 The Commissions consider that the potential for FDR to expeditiously and effectively resolve parenting disputes in cases involving family violence—through practical and sustainable agreements, and with appropriate screening, risk assessment

the Special Commission of Inquiry into Child Protection Services in NSW (2008);J Hatzistergos (New South Wales Attorney General), ‘Nowra Elders to Help Aboriginal Children at Risk’ (Press Release, 22 September 2010); J Hatzistergos (New South Wales Attorney General), ‘Keynote Address’ (Paper presented at ADR Workshop of New South Wales Bar Association, Sydney, 28 August 2010).

6 Australian Institute of Family Studies, Evaluation of the 2006 Family Law Reforms (2009), E2. 7 Ibid, E4–E5.


and risk management—may help to circumvent the development or escalation of related child protection and family violence concerns.

21.14 In this chapter, the Commissions examine the way in which the legislative, policy and operational framework for FDR addresses family violence concerns. In particular, the Commissions consider screening and risk assessment practices, referral practices, cooperation and collaboration between FDR practitioners and lawyers, and the development of culturally responsive FDR, and make recommendations to improve FDR processes, standards and practice. Such improvements in processes, standards and practice will enhance FDR’s capacity to deliver sustainable and effective outcomes—and, in so doing, may assist in circumventing repeated engagement by family violence victims and those at risk with the legal system.

Development of family dispute resolution 21.15 FDR is defined broadly in the Family Law Act as any non-judicial process where an independent FDR practitioner helps people affected, or likely to be affected, by separation or divorce, to resolve some or all of their disputes with each other.8 Dispute resolution processes include mediation, conciliation and arbitration. In mediation, an impartial third party assists parties to negotiate an agreement. Conciliation is similar to mediation, except the conciliator may provide expert advice on possible legal outcomes and have an advisory role. In arbitration, an independent third party assesses the facts and determines the dispute according to law.9 In practice, mediation is the key process used for Australian family disputes.10 However, FDR services and agencies vary in their approaches and underlying philosophies.11 In addition to family dispute resolution, many agencies also provide counselling, parenting support and other services.

21.16 When the Family Court of Australia was established in 1976, it used counselling and conciliation. Since that time, FDR has expanded and developed extensively. FDR services are now provided by courts, legal aid commissions,12 community agencies and private providers. Most recently, the federal government has established a network of Family Relationships Centres (FRCs) throughout Australia that provide referral and FDR services.13 Practitioners have developed increasingly sophisticated approaches

8 Family Law Act 1975 (Cth) s 10F. 9 Family Law Council and Law Council of Australia—Family Law Section, Best Practice Guidelines for

Lawyers Doing Family Law Work (2004). 10 D Cooper and R Field, ‘Family Dispute Resolution of Parenting Matters in Australia: An Analysis of the

Notion of an Independent Practitioner’ (2008) 8 Queensland University of Technology Law and Justice Journal 158, 159.

11 Ibid, 164–165, discusses different models of mediation. 12 Legal Aid Commissions are required to consider whether a matter can be dealt with by dispute resolution

before a grant of legal aid for family law matters can be made. If a matter is considered appropriate for dispute resolution, a grant of assistance will be made for a conference where the lawyer will represent the assisted party. The conferences are chaired by trained and qualified FDR practitioners. See KPMG, Family Dispute Resolution Services in Legal Aid Commissions: Evaluation Report (2008), prepared for the Australian Government Attorney-General’s Department, 11–12.

13 P Parkinson, ‘Keeping Contact: The Role of Family Relationship Centres in Australia’ (2006) 18 Child and Family Law Quarterly 157.


and strategies for assessing the appropriateness of FDR in differing situations, addressing power imbalances, and including children in their practices.14

21.17 FDR is presently governed by a detailed legislative framework under the Family Law Act and associated regulations, discussed in more detail below. Broadly speaking, the current legislative framework encourages or requires the use of FDR before court action and supports referral to FDR after an application to the court has been made. Exceptions are provided in cases of family violence and child abuse, reflecting concerns, discussed below, about the use of FDR in such contexts. Communications during the FDR process are, in general, confidential and inadmissible in subsequent court proceedings, although there are exceptions relevant to child abuse and family violence.15

FDR in family law legislation 21.18 This section sets out the legislative provisions regulating the use of FDR in the Family Law Act. Different regimes apply to FDR in relation to parenting orders and financial disputes. There are also some general provisions in the Family Law Act that govern FDR.

FDR and parenting orders 21.19 The 2006 reforms to the Family Law Act extended the use of FDR. With some exceptions, parties with a dispute about children must go to FDR before they can go to court,16 and must make a genuine effort to resolve their dispute through FDR.17 The exceptions to this requirement include where the parties agree and are applying to court only for a consent order.18 Importantly, they also include cases where violence is an issue, such as where the court is satisfied that there has been, or there is a risk of, child abuse or family violence,19 or where there are circumstances of urgency.20

21.20 If the parties do not reach agreement through FDR and do not satisfy one of the exceptions, the federal family courts can only hear parenting cases if the FDR practitioner provides a certificate relating to the parties’ attendance and effort in the FDR process.21 FDR practitioners may give several different types of certificates under s 60I of the Family Law Act, including a certificate to the effect that the person did not

14 Australian Institute of Family Studies, Evaluation of the 2006 Family Law Reforms: Summary Report

(2009), 94–95. 15 See further below. The confidentiality and inadmissibility of FDR communications are discussed in

Ch 22. 16 Family Law Act 1975 (Cth) s 60I. 17 Ibid s 60I(1). For a discussion of ‘genuine effort’ in s 60I, its meaning and the implications of the

provision in cases of violence, see H Astor, ‘Making a “Genuine Effort” in Family Mediation: What Does It Mean?’ (2008) 22 Australian Journal of Family Law 102.

18 Family Law Act 1975 (Cth) s 60I(9)(a). 19 Ibid s 60I(9)(b). 20 Ibid s 60I(9)(d). Other circumstances include: where orders are applied for in response to other

applications; where there has been serious disregard of previous family law orders; where parties are unable to participate effectively in FDR; and where other circumstances specified in the regulations are satisfied. No other circumstances are presently prescribed by the regulations.

21 Ibid s 60I(7).


attend FDR because, having regard to the Family Law (Family Dispute Resolution Practitioners) Regulations 2008 (the FDR Regulations), the practitioner considers that ‘it would not be appropriate’ to conduct or continue FDR.22

21.21 In determining whether a dispute is appropriate for FDR, the FDR practitioner must take into account whether the ability of any party to negotiate freely is affected by a number of factors, all of which are potentially relevant to cases of violence. These include: any history of family violence among the parties; the likely safety of the parties; the equality of bargaining power among the parties; the risk that a child may suffer abuse; the emotional, psychological and physical health of the parties; or any other relevant matter.23 The FDR Regulations also require that an FDR practitioner must be satisfied of the appropriateness of FDR in each case before providing FDR.24 An FDR practitioner is also obliged to terminate FDR if the practitioner is no longer satisfied it is appropriate, or is requested to do so by a party.25

FDR and financial disputes 21.22 The s 60I framework applies only to parenting orders. In relation to applications for financial disputes, the requirements are set out in the Family Law Rules 2004 (Cth).26 Consistently with s 60I, the Rules include mechanisms for removing obligations to participate in FDR in cases of family violence.

21.23 This is done in two ways. First, the Rules require compliance with pre-action procedures set out in sch 1, but there is an exception for cases of allegations of family violence or the risk of family violence or fraud.27 Secondly, while the procedures in sch 1 generally require the use of FDR, the Rules set out circumstances—including allegations of family violence or cases of urgency—in which the court may accept that it was not possible or appropriate for a party to comply with the pre-action procedures.28

FDR and the Family Law Act generally 21.24 Other provisions of the Family Law Act also deal with FDR, including provisions encouraging its use. Section 13C empowers the court to make orders referring parties to FDR or family counselling at any stage in proceedings, on its own

22 Ibid s 60I(8)(aa),(d). The other grounds upon which certificates may be issued are: a party did not attend

FDR due to the refusal or failure of the other party (or parties) to attend: s 60I(8)(a); the parties attended FDR with the practitioner, and all parties made a genuine effort to resolve the issue or issues: s 60I(8)(b); the party attended FDR with the practitioner, but that party, or another party did not make a genuine effort to resolve the issue or issues: s 60I(8)(c).

23 Family Law (Family Dispute Resolution Practitioners) Regulations 2008 (Cth) reg 25(2). 24 Ibid reg 25(1), (4). 25 Ibid reg 29(c). 26 In May 2010, the Attorney-General of Australia announced an intention to extend the requirement to

attend FDR prior to filing an application in court to property and spousal maintenance matters, as one of a range of measures consistent with the Federal Government’s Strategic Framework for Access to Justice: R McClelland (Attorney-General), ‘Improving Access to Justice’ (Press Release, 17 May 2010).

27 Family Law Rules 2004 (Cth) r 1.05. 28 Ibid sch 1, cl 1(1),(4).


initiative or on application by a party or an independent children’s lawyer.29 If a party does not comply with such an order, the court may make further orders as it considers appropriate following a report from an FDR practitioner or counsellor.30 Section 62B obliges a court to inform parties in a parenting proceeding about FDR and family counselling services. Section 69ZQ requires a court in child-related proceedings to encourage the use of FDR, where it considers it appropriate. A requirement to attend FDR may also be imposed as a condition of a bond where parenting orders are contravened.31

Definition of family violence 21.25 The definition of family violence in s 4 of the Family Law Act, and proposals to amend the definition, are discussed in detail in Chapter 6 of this Report. As discussed there, the definition is more restrictive than that used in some state or territory family violence legislation, and in practice-based material such as the Screening and Risk Assessment Framework,32 and in the Family Court of Australia’s Family Violence Strategy.33 Concern has been expressed that the definitional differences may create problems in practice.34 A KPMG evaluation of FDR practices in the legal aid sector found that screening questions tended to focus on physical forms of abuse,35 and recommended enhanced screening for non-physical forms of violence. 36

21.26 In the Consultation Paper, the Commissions therefore asked whether the variations between the legislative definitions and practice-based definitions in FDR have had any practical impact in FDR practices.37

21.27 The responses to this question focused on the definition of violence in the Family Law Act, identifying its narrowness and the requirement of reasonableness as problematic.38 Very few responses linked the definition with problems in FDR practice.

29 The court is required to consider seeking the advice of a family consultant before making such an order. 30 Family Law Act 1975 (Cth) s 13D. 31 Ibid ss 70NEC, 70NFE. 32 Australian Catholic University and Australian Government Attorney-General’s Department, Framework

for Screening, Assessment and Referrals in Family Relationship Centres and the Family Relationship Advice Line (2008), 52, notes the definition in the Family Law Act and other definitions.

33 Family Court of Australia, Family Violence Strategy (2004–2005), 3. 34 R Kaspiew, ‘Family Violence in Children’s Cases under the Family Law Act 1975 (Cth): Past Practice

and Future Challenges’ (2008) 14 Journal of Family Studies 279, 287. 35 KPMG, Family Dispute Resolution Services in Legal Aid Commissions: Evaluation Report (2008),

prepared for the Australian Government Attorney-General’s Department, 36. 36 Ibid. Measures taken by the Legal Aid Commissions to address this and other concerns raised by KPMG

are discussed below. 37 Australian Law Reform Commission and New South Wales Law Reform Commission, Family Violence:

Improving Legal Frameworks, ALRC Consultation Paper 1, NSWLRC Consultation Paper 9 (2010), Question 11–2, [11.61].

38 Law Society of New South Wales, Submission FV 205, 30 June 2010; National Abuse Free Contact Campaign, Submission FV 196, 26 June 2010; Women’s Legal Service Queensland, Submission FV 185, 25 June 2010; Confidential, Submission FV 184, 25 June 2010; Women’s Legal Services NSW, Submission FV 182, 25 June 2010; Aboriginal Family Violence Prevention and Legal Service Victoria, Submission FV 173, 25 June 2010; Berry Street Inc, Submission FV 163, 25 June 2010; Domestic Violence Victoria, Federation of Community Legal Centres Victoria, Domestic Violence Resource Centre Victoria, Victorian Women with Disabilities Network, Submission FV 146, 24 June 2010; Confidential, Submission FV 105, 6 June 2010.


One submission asserted that the definition in the Family Law Act is narrow and does not include many of the dynamics of power and control. These dynamics may impact on capacity to negotiate, but not constitute violence under the Act, and the capacity of FDR to deal with such problems depends on the skill of the practitioner.39 The Queensland Law Society expressed concerns that FDR practitioners sometimes excluded parties from FDR because of concerns that did not meet the definition in the Act.40

21.28 In Chapter 6, the Commissions express the view that the definition of family violence in the Family Law Act should expressly recognise that certain types of non-physical conduct—including economic abuse and psychological abuse—may fall within the wider definition of family violence. The Commissions recommend that family violence should be given a definition that describes the context in which acts take place, and that it should be defined as violent or threatening behaviour, or any other form of behaviour that coerces or controls a family member or causes that family member to be fearful.41 The Commissions also express the view that the semi-objective test of reasonableness should be removed from the definition of family violence in the Family Law Act on the basis that it is inappropriate to apply a test of reasonableness to the experience of fear in determining whether conduct is violent. The Commissions do not, however, make a separate recommendation about the removal of the reasonableness test from the definition of family violence in the Family Law Act, as the Commissions’ recommended definition does not include the test of reasonableness.

21.29 In the Commissions’ view, this recommended definition will assist in educating those engaged in the family law system about the complexities and nuances of family violence. It will also deal with the concerns about the definition described above and the problems it may create in relation to FDR. Consequently, the Commissions make no further recommendation in this respect

FDR in cases involving family violence 21.30 Both practitioners and scholars have expressed concerns about using facilitative methods of FDR in cases involving family violence. The New South Wales Law Reform Commission (NSWLRC) explored these concerns in its 2005 report, Community Justice Centres,42 where it expressed its concern ‘about mediation taking place where violence is a factor, particularly in situations involving domestic violence’.43

39 Women’s Legal Centre (ACT & Region) Inc, Submission FV 175, 25 June 2010. 40 Queensland Law Society, Submission FV 178, 25 June 2010. 41 Rec 6–4. The Commissions recommend the same core definition of family violence for family violence

legislation and the Family Law Act—see Rec 5–1. 42 New South Wales Law Reform Commission, Community Justice Centres, Report 106 (2005), Ch 4. 43 Ibid, [4.41].


21.31 The reasons why FDR may be inappropriate in the context of family violence include:

• safety concerns—the FDR process may place women and children in danger because the offender may use FDR as an opportunity for violence or intimidation;

• power imbalances—the sometimes extreme imbalance of power in relationships characterised by family violence undermines the fairness of the negotiating process in facilitative methods of FDR;

• mediation requires honesty, desire to settle the dispute and some capacity for compromise—perpetrators of violence are not generally capable of such behaviours in relation to the target of their violence;

• mediation places too great a burden on the woman who has been the victim of violence, and who may, for example, be afraid to be in the same room with the perpetrator; and

• FDR is a private and confidential process, with the effect that violence against women is shielded from the public eye.44

21.32 Other concerns include the difficulty of identifying violence. It has been suggested that it is very difficult for the victims of violence to reveal violence, and that those who commit violence are also unwilling to do so.45 FDR may therefore take place in the absence of crucial information and there may be ongoing impacts on parties and their children.46 Another issue is whether FDR is effective in situations of family violence. Some research indicates that mediation will not produce agreements or, if it does, the agreements will not be successful in many cases.47

21.33 On the other hand, there are potential benefits of using FDR in cases involving family violence. The first is that FDR may be a more accessible method of resolving family disputes, as it is arguably both cheaper and faster than going to court.48 FRCs in Australia provide three hours of mediation without charge and many other services have affordable fee levels.

44 For a review of these issues see: R Field, ‘Using the Feminist Critique of Mediation to Explore “the

Good, the Bad and the Ugly” Implications for Women of the Introduction of Mandatory Family Dispute Resolution in Australia’ (2006) 20 Australian Journal of Family Law 45; H Astor, ‘Violence and Family Mediation: Policy’ (1994) 8 Australian Journal of Family Law 3.

45 H Astor, ‘The Weight of Silence: Talking About Violence in Family Mediation’ in M Thornton (ed) Public and Private: Feminist Debates (1995) 174.

46 D Kirkwood and M McKenzie, ‘Family Dispute Resolution and Family Violence in the Family Law System’ (2009) 14 Current Family Law 149, 150–152; M Kaye, J Stubbs and J Tolmie, ‘Domestic Violence and Child Contact Arrangements’ (2003) 17 Australian Journal of Family Law 93.

47 Australian Institute of Family Studies, Evaluation of the 2006 Family Law Reforms (2009), 102; A Bailey and A Bickerdike, ‘Family Violence and Family Mediation’ (2005) Autumn Domestic Violence and Incest Resource Centre Newsletter 13, 13.

48 Domestic Violence and Incest Resource Centre, Behind Closed Doors: Family Dispute Resolution and Family Violence, Discussion Paper No 6 (2007), 22.


21.34 Secondly, if FDR is conducted by an experienced practitioner with appropriate safeguards, it may have positive outcomes for people who have experienced family violence.49 Some studies of FDR have identified high rates of participant satisfaction where there are well–trained, problem–solving FDR service providers with effective intake processes.50 FDR may offer the parties more involvement in resolving their dispute, and may give victims more opportunity to speak about matters which are important to them.51

21.35 Governments and service providers have devoted resources to training and development of FDR practitioners in the area of family violence. FDR practitioners must be accredited and the relevant Vocational Graduate Diploma of Family Dispute Resolution includes compulsory units dealing with violence and providing for the safety of vulnerable parties.52 There has also been investment in research and policy development on FDR and violence.53 As discussed below, a screening and risk assessment framework for cases involving violence and abuse has been developed.54

Models of FDR are being developed that include lawyers in the process, with particular relevance to disputes involving violence.55

21.36 The risks associated with family violence in FDR processes may be managed in a number of ways. Some examples include:

• ensuring that victims are prepared for the process;56

• taking practical measures to ensure safety, such as obtaining a silent phone number;57

• taking care with client contact, for example by making written material only available at the centre and not leaving phone messages;58

49 Ibid, 23. 50 Ibid. 51 Ibid. 52 Family Law (Family Dispute Resolution Practitioners) Regulations 2008 (Cth) reg 5. In addition, the

Australian Government Attorney-General’s Department noted the availability of alternative pathways to accreditation, that do not involve the vocational graduate diploma: Australian Government Attorney-General’s Department, Submission FV 166, 25 June 2010. As reflected in Rec 21–2, the Commissions consider that high quality family violence screening and risk assessment tools should be included in all training and accreditation for family dispute resolution practitioners.

53 Keys Young, Research/Evaluation of Family Mediation Practice and the Issue of Violence: Final Report (1996), prepared for the Australian Government Attorney-General’s Department; H Astor, Position Paper on Mediation [prepared for the] National Committee on Violence Against Women (1991), Office of the Status of Women.

54 Australian Catholic University and Australian Government Attorney-General’s Department, Framework for Screening, Assessment and Referrals in Family Relationship Centres and the Family Relationship Advice Line (2008).

55 R Field, ‘A Feminist Model of Mediation That Centralises the Role of Lawyers as Advocates for Participants who are Victims of Domestic Violence’ (2004) 20 Australian Feminist Law Journal 65.

56 Domestic Violence and Incest Resource Centre, Behind Closed Doors: Family Dispute Resolution and Family Violence, Discussion Paper No 6 (2007), 47.

57 Ibid, 42. 58 Keys Young, Research/Evaluation of Family Mediation Practice and the Issue of Violence: Final Report

(1996), prepared for the Australian Government Attorney-General’s Department, 39.


• minimising contact between clients on the day, by using separate waiting rooms and exits for clients, and staggered arrival and departure times;59

• allowing the presence of support persons;60

• continuously assessing clients’ comfort levels and emotional state;61

• using ‘shuttle’ mediation, where parties sit in different rooms and the mediator ‘shuttles’ between them;

• co-mediation with a male and a female mediator;62

• using multiple short mediation sessions to reduce stress and the impact of contact with the perpetrator;63 and

• private follow-ups with each party between sessions.64

Some of these measures may be included in a safety plan designed for the needs of an individual client.

21.37 While there is a range of views on the appropriateness of FDR in family violence contexts, a degree of consensus exists on certain matters. First, using FDR in cases involving family violence carries particular risks. Secondly, if family violence is to be dealt with in FDR processes, it must be handled by skilled and knowledgeable FDR practitioners using appropriate safeguards. Thirdly, in practice, some cases involving family violence do—and will continue to—proceed to mediation.65

21.38 The AIFS Evaluation shows that FDR is attempted more frequently in cases involving violence than in those not involving violence.66 It also appears that, for some clients, the risk posed by family violence is not identified and managed effectively. The AIFS evaluation cited the following response as an example:

For me, there were not enough sessions in the process. I was so scared and intimidated by my ex-husband that I had trouble thinking clearly. As a consequence of this, I felt bulldozed into making an agreement. … I also had to sit through a face-to-face session with my ex-husband before they’d believe that I was worried about him … I felt that my concerns were swept aside and the focus was on my ex-husband’s needs/wants.67

59 Ibid. 60 Ibid. 61 Domestic Violence and Incest Resource Centre, Behind Closed Doors: Family Dispute Resolution and

Family Violence, Discussion Paper No 6 (2007), 44. 62 KPMG, Family Dispute Resolution Services in Legal Aid Commissions: Evaluation Report (2008),

prepared for the Australian Government Attorney-General’s Department, 46; Domestic Violence and Incest Resource Centre, Behind Closed Doors: Family Dispute Resolution and Family Violence, Discussion Paper No 6 (2007), 56–57.

63 Family Relationship Services Australia, Submission FV 231, 15 July 2010. 64 Domestic Violence and Incest Resource Centre, Behind Closed Doors: Family Dispute Resolution and

Family Violence, Discussion Paper No 6 (2007), 56–57. 65 H Astor, ‘Violence and Family Mediation: Policy’ (1994) 8 Australian Journal of Family Law 3, 12–13. 66 Australian Institute of Family Studies, Evaluation of the 2006 Family Law Reforms (2009), 100. 67 Cited in Ibid, 102.


21.39 In the Consultation Paper, the Commissions asked whether the provisions of the Family Law Act relating to FDR needed amendment to ensure that the victims of family violence are not inappropriately attempting or participating in family dispute resolution, and whether any other reforms may be necessary to ensure that the legislation operates effectively. In particular the Commissions asked if s 60I was operating appropriately.68

Submissions and consultations 21.40 Several submissions responding to this question expressed concerns that violence was not always properly identified and/or dealt with appropriately. This included failure to identify non–physical forms of abuse, and failure to advise clients about exemptions from mandatory FDR for cases involving violence.69 For example, the Aboriginal Family Violence Prevention and Legal Service Victoria (AFVPLS Victoria) provided two case histories of matters where AFVPLS Victoria had concerns that violence was not properly identified or the response was not appropriate. In one of these cases there was family violence of sufficient severity for a child protection agency to have been involved. Nevertheless, prior to the intervention of AFVPLS Victoria, FDR had been deemed appropriate and the client reported that the FDR practitioner had indicated that shared parenting was appropriate. In another case of violence where there was a no-contact order in force, the FDR agency proposed child-inclusive FDR. The client was told they must proceed to FDR but not about the exemptions for cases involving violence. The AFVPLS Victoria put the FDR practitioner in touch with the child psychologist involved with the child and FDR was subsequently cancelled.70

21.41 The Magistrates’ Court and the Children’s Court of Victoria reported concerns expressed by some magistrates that they often see victims of violence who have agreed in mediation to contact arrangements that are not safe.71 The Women’s Legal Service, Queensland also expressed concern that victims of violence are not being excluded from FDR:

• many FDR practitioners lack the knowledge and skills to appropriately identify domestic violence and therefore appropriate exclude it;

• some FDR practitioners believe they can ‘even out’ power imbalances;

68 Consultation Paper, Question 11–1. The operation of s 60I of the Family Law Act 1975 (Cth) is

considered in Ch 22. 69 National Legal Aid, Submission FV 232, 15 July 2010; Magistrates’ Court and the Children’s Court of

Victoria, Submission FV 220, 1 July 2010; National Abuse Free Contact Campaign, Submission FV 196, 26 June 2010; Women’s Legal Service Queensland, Submission FV 185, 25 June 2010; Law Council of Australia, Submission FV 180, 25 June 2010; Aboriginal Family Violence Prevention and Legal Service Victoria, Submission FV 173, 25 June 2010; Confidential, Submission FV 164, 25 June 2010; Berry Street Inc, Submission FV 163, 25 June 2010; Justice for Children, Submission FV 148, 24 June 2010; N Ross, Submission FV 129, 21 June 2010; Confidential, Submission FV 109, 8 June 2010; C Humphreys, Submission FV 04, 23 August 2009. See also Department of Premier and Cabinet (Tas), Submission FV 236, 20 July 2010, which commented that the accountability of practitioners in obtaining disclosure of family violence should also be considered.

70 Aboriginal Family Violence Prevention and Legal Service Victoria, Submission FV 173, 25 June 2010. 71 Magistrates’ Court and the Children’s Court of Victoria, Submission FV 220, 1 July 2010.


• some FDR practitioners believe that attempting FDR may be of benefit and cannot be harmful;

• some FDR practitioners ‘know that the court will send the matter back for FDR’ even if a certificate is issued under s 60I that FDR is inappropriate;

• some victims of violence want to use FDR;

• some victims have no choice but to use FDR because they are ineligible for legal aid and do not want to represent themselves in court.72

These factors indicate the complexity of the assessments that must be made in these cases and also indicate that FDR practitioners may be under pressure from courts and clients to use FDR in cases of violence.

21.42 Another pressure referred to was the limited availability of free mediation—one stakeholder noted that the three hours of free mediation provided by Family Relationship Centres is not a realistic allocation for complex cases involving family violence.73

21.43 Notwithstanding these concerns, several submissions expressed positive views of the abilities of FDR practitioners in relation to violence. Dr Olivia Rundle, of the University of Tasmania, pointed to the difficulties faced by the victims of violence when using other methods of resolving disputes and compared them with the advantages of FDR:

FDR [practitioners] are trained specifically in working with people who have experienced family violence. They have an extensive tool–box for assessing the appropriateness of FDR in such cases and adapting their service to protect and support clients. Many service providers are government funded and subject to stringent requirements around effective risk management and audits by government departments. It is submitted that the existing structures are adequate to protect against FDR being conducted inappropriately, to the extent that is possible.74

21.44 Similarly, the submission of the Family Relationship Services Association (FRSA), the peak body for FDR and other family relationship services, detailed the extensive expertise, policies and practices developed by the FDR sector to deal with cases involving violence.75 These include training, supervision of practitioners, accreditation involving knowledge of family violence, establishment of complaints processes, and development of specialist practitioners in family violence.76 A submission from a ‘consumer’ provided evidence of some of these measures in practice:

It was good that I could insist on not having to be in the same room with him and that care was taken to have me come and go from the meetings while the perpetrator was supervised in another room. It was still terrifying. I was so keen to negotiate that I was

72 Women’s Legal Service Queensland, Submission FV 185, 25 June 2010. 73 Confidential, Submission FV 164, 25 June 2010. 74 O Rundle, Submission FV 50, 27 May 2010. 75 Family Relationship Services Australia, Submission FV 231, 15 July 2010. 76 Ibid.


willing to risk a lot to do it. Now I know that he never, ever intended to negotiate and I went through hell trying to meet him half way.77

21.45 The Family Issues Committee of the NSW Law Society submitted that ‘in many respects the work done in FDR is very fine, appropriate, and producing excellent outcomes’, while also noting that there are risks and some problems remaining in this sector.78

21.46 The FRSA noted that there is considerable pressure on FDR practitioners dealing with violence, due to the rapid expansion of the network of 65 Family Relationship Centres, and the substantially expanded family and relationship services network.79 The FRSA submitted that the sector is committed to improving standards through training (including a Graduate Diploma in FDR), supervision, increasing competency requirements concerning violence, and the development of expert practitioners in advisory and supervisory roles.80

21.47 With respect to the question of what legislative amendments are necessary to ensure that victims of violence are not inappropriately attempting or participating in family dispute resolution,81 a small number of submissions suggested legal solutions.82

21.48 The changes suggested in submissions were overwhelmingly extra-legal.83 The need for referrals to legal advice84 and to specialist services for Indigenous clients in cases of family violence was raised.85 Further training for FDR practitioners, and training for ongoing accreditation for all relevant professionals in the family law system was recommended in some submissions, including training about family violence dynamics and indicators, and family violence policy.86 Training in how to conduct reliable and safe screening and risk assessment was also raised (screening and risk assessment is dealt with further below).87 The need for collaboration between FDR

77 Confidential, Submission FV 105, 6 June 2010. 78 Law Society of New South Wales, Submission FV 205, 30 June 2010. 79 Family Relationship Services Australia, Submission FV 231, 15 July 2010. 80 Ibid. 81 Consultation Paper, Question 11–1. 82 There was support for reform of the ‘friendly parent’ provisions of the Family Law Act: Women’s Legal

Services Australia, Submission FV 225, 6 July 2010; Women’s Legal Services NSW, Submission FV 182, 25 June 2010. In addition, Women’s Legal Services, NSW supported reform of the ‘false allegations’ provisions.

83 Law Society of New South Wales, Submission FV 205, 30 June 2010; National Abuse Free Contact Campaign, Submission FV 196, 26 June 2010; Women’s Legal Services NSW, Submission FV 182, 25 June 2010; Queensland Law Society, Submission FV 178, 25 June 2010; Aboriginal Family Violence Prevention and Legal Service Victoria, Submission FV 173, 25 June 2010; Berry Street Inc, Submission FV 163, 25 June 2010; O Rundle, Submission FV 50 27 May 2010.

84 National Legal Aid, Submission FV 232, 15 July 2010. 85 Aboriginal Family Violence Prevention and Legal Service Victoria, Submission FV 173, 25 June 2010. 86 National Legal Aid, Submission FV 232, 15 July 2010; Law Society of New South Wales, Submission

FV 205, 30 June 2010; National Abuse Free Contact Campaign, Submission FV 196, 26 June 2010; Queensland Law Society, Submission FV 178, 25 June 2010; Berry Street Inc, Submission FV 163, 25 June 2010.

87 Law Society of New South Wales, Submission FV 205, 30 June 2010; National Abuse Free Contact Campaign, Submission FV 196, 26 June 2010; Women’s Legal Service Queensland, Submission FV 185, 25 June 2010; Queensland Law Society, Submission FV 178, 25 June 2010; Berry Street Inc, Submission FV 163, 25 June 2010.


practitioners and specialised domestic violence services in developing training and improved practice standards was also supported. The National Abuse Free Contact Campaign argued:

There is a place for the Domestic Violence sector to be actively engaged in shared skills based on fifty years of feminist theory and practice, contributing to the development of tools for an appropriate and sensitive assessment. The training of family law professionals in screening and assessment tools should ideally be from those who are drawing on years of practice in identifying the more mundane and easier to miss forms of intimidation and manipulation.88

Commissions’ views 21.49 The Commissions note that there appears to be some inconsistency in standards in the FDR sector with respect to identifying family violence, assessing suitability for FDR and other aspects of screening and referral and FDR practice. While consultations and submissions detailed many experiences of good practice and supported the value of FDR, the persistence of problems in some parts of the sector was also revealed. Clearly some services and practitioners have high standards of practice in relation to family violence, but there also appears to be room for improvement in the sector. One factor that has contributed to the variability in standards is likely to be the recent rapid development of the FDR sector. The solutions to these problems appear to lie in extra-legal measures such as improved training and accreditation, and improved screening and assessment frameworks. These issues are considered in more detail below.

21.50 Collaboration between FDR practitioners and those in the family violence sector may also pay dividends. The Commissions note that collaboration is already taking place in some FDR services. In addition, as noted elsewhere in Chapter 21, the Australian Government Attorney-General’s Department has worked to support the improvement of standards in FDR practice by encouraging the collaboration of professionals in the sector. This work confronts the challenges that come when organisations work together from different perspectives on violence.89 However, the Commissions also note that this Inquiry has demonstrated the many ways in which, despite the challenges, collaboration across different ‘cultures’ and approaches to violence is crucial to resolving many of the problems of family violence.

Recommendation 21–1 The Australian Government Attorney-General’s Department should continue to collaborate with the family dispute resolution sector to improve standards in identification and appropriate management of family violence by family dispute resolution practitioners.

88 National Abuse Free Contact Campaign, Submission FV 196, 26 June 2010. 89 W Ibbs and M Rogers, ‘Fasten Your Seat Belts: We’re in for a Bumpy Night: The Story of Collaboration

between FDR and Family Violence Organisations’ (Paper presented at Family Relationship Services Association Conference Sydney, 24-26 November 2009).


Screening and risk assessment practices 21.51 A key element of FDR in practice is the process of screening and risk assessment, which is designed to ensure that victims of family violence are not using FDR in inappropriate circumstances, or to identify and mitigate any risk factors where FDR may be appropriate despite family violence or other risks.90 Two issues arise in relation to screening and risk assessment. The first is whether FDR practitioners are reliably and appropriately screening and assessing risks of family violence in practice. The second is whether FDR practitioners have taken on the role of ‘gatekeepers’ in the system and are performing a more general screening role in the family law system, especially by providing screening for family lawyers where litigation is contemplated. The first issue is dealt with in this section; the second is dealt with in the following section.

FDR practitioners and screening 21.52 Screening and risk assessment varies across different FDR agencies. For example, the 2008 KPMG report found that a wide variety of FDR practices were evident within the legal aid sector.91 The report noted that most screening questions focused on the physical aspects of family violence,92 and recommended enhanced screening for non-physical forms of violence. It noted observations of FDR practitioners that screening did not always reveal violence and abuse, and that this could derail the conferencing process.93 The report also identified differences in how the various legal aid commissions approached issues of family violence. Nonetheless, the report found that the vast majority of legal aid clients surveyed felt safe or very safe both during and after the conference,94 and the majority of FDR practitioners agreed that there were appropriate protocols in place for family violence.95

21.53 The KPMG report made a number of recommendations to strengthen screening and intake processes, including: increasing the experience and knowledge of intake officers, lawyers, and FDR practitioners on particular matters;96 using or modifying particular practices, such as interviews and screening questions;97 and ensuring better preparation for the FDR process.98 The report also recommended establishing protocols for delivering services to marginalised groups;99 providing detailed practice guidance on the best interests of the child principle;100 examining strategies for providing referral

90 Australian Catholic University and Australian Government Attorney-General’s Department, Framework

for Screening, Assessment and Referrals in Family Relationship Centres and the Family Relationship Advice Line (2008), 13.

91 KPMG, Family Dispute Resolution Services in Legal Aid Commissions: Evaluation Report (2008), prepared for the Australian Government Attorney-General’s Department.

92 Ibid, 36. 93 Ibid, 32. 94 Ibid, 46. 95 Ibid, 47. 96 Ibid, 36, 41. 97 Ibid, 36. 98 Ibid, 36, 41. 99 Ibid, 54. 100 Ibid, 41.


pathways to other support services;101 and developing nationally consistent strategies for appropriately managing these issues.102

21.54 Since the KPMG report was published, legal aid commissions have revised their practice standards and risk assessment and screening tools to ensure the safety of participants in FDR. In consultations, National Legal Aid advised the Commissions that there has been extensive sharing of screening tools and risk assessment protocols and best practice methodologies between the various legal aid commissions—largely through the National Legal Aid Dispute Resolution Working Group—to facilitate the ongoing development of a nationally consistent best practice approach. National Legal Aid also noted legal aid commissions’ engagement in ongoing interdisciplinary exchange of information and best practice in the handling of family violence across the wider family pathways network.103

21.55 With respect to screening for FDR, National Legal Aid advised that the dynamics of family violence, as defined broadly, are taken into account. Screening includes questions that focus on emotional or psychological abuse, intimidation, coercion and financial control. National Legal Aid noted that the legal aid sector aims to ensure that clients are able to participate in FDR safely and without disadvantage. To achieve this, legal aid commissions encourage parties to be legally represented at conferences as this assists the FDR practitioner manage the conference to protect vulnerable and disadvantaged parties.104

21.56 Further initiatives by the legal aid sector to deal with referral pathways and the development of protocols for delivery of services to CALD and Indigenous people are discussed below.105

Screening frameworks 21.57 The Australian Government Attorney-General’s Department has published a Framework for Screening, Assessment and Referrals in Family Relationship Centres and the Family Relationship Advice Line (Screening and Assessment Framework),106

which addresses many of the issues raised in the KPMG evaluation of FDR in the legal aid sector in detail. The framework is an extensive resource available on the departmental website for FDR practitioners. It includes a screening and assessment framework, referral guidelines, and indicators of family violence, child abuse and

101 Ibid, 49. 102 Ibid. 103 National Legal Aid, Correspondence, 20 September 2010. Legal Aid WA has been chosen as the lead

agency for the Coordinated Family Dispute Resolution Pilot in Perth (one of five pilots sites around Australia). The focus of the pilot is to enhance interdisciplinary clinical and legal support to both victims and perpetrators of family violence in appropriate matters through a coordinated FDR process.

104 Ibid. 105 Legal Aid NSW told the Commissions that, following the release of the KPMG report, it established a

Best Interest Child Committee to explore issues relating to information access, services and support. In addition Legal Aid NSW is funding the training of staff to develop a more child inclusive model of FDR.

106 Australian Catholic University and Australian Government Attorney-General’s Department, Framework for Screening, Assessment and Referrals in Family Relationship Centres and the Family Relationship Advice Line (2008).


abduction, and risk of self-harm. It discusses issues of supervision and practice support, and provides a range of resources for practitioners, including sample questions relevant to identification of violence.

21.58 The Victorian Government has similarly produced a comprehensive screening and risk assessment framework for all service providers in family violence.107 This sets out a common framework, including six components: a shared understanding of risk and family violence; standardised risk assessment; referral pathways and information sharing; risk management strategies; data collection and analysis; and quality assurance. It also includes three practice guides directed towards different levels of risk assessment processes for different categories of service providers. A common framework has advantages in terms of inter-agency trust and cooperation. The Commissions note that the Australian Government Attorney-General’s Department is currently developing a national framework to support screening and assessment for family violence across the federal family law system.

21.59 In relation to the issue of screening and risk assessment, the Family Law Council considered that:

appropriate training in screening for family violence issues is essential for family dispute resolution practitioners, and those who refer matters to them. It is essential that practitioners have appropriate responses and options to offer once family violence is identified.108

21.60 The Council recommended that a consistent framework for screening and risk assessment be developed in accordance with principles adopted in the common knowledge base proposed by the Council,109 and that frameworks, tools and materials be endorsed by the expert panel and reference group.110

21.61 In the Consultation Paper, the Commissions proposed that the Australian Government should promote the use of screening and risk assessment frameworks and tools for family dispute resolution practitioners through, for example, training, accreditation processes and audit and evaluations.111

Submissions and consultations 21.62 There was significant support in submissions for this proposal.112 Domestic Violence Victoria, in a joint submission with other stakeholders, emphasised the

107 Government of Victoria, Family Violence Risk Assessment and Risk Management: Supporting an

Integrated Family Violence Service System (undated). 108 Family Law Council, Improving Responses to Family Violence in the Family Law System: An Advice on

the Intersection of Family Violence and Family Law Issues (2009), 43. 109 Ibid. 110 Ibid, 43. 111 Consultation Paper, Proposal 11–2. 112 Department of Premier and Cabinet (Tas), Submission FV 236, 20 July 2010; National Legal Aid,

Submission FV 232, 15 July 2010; Women’s Legal Services Australia, Submission FV 225, 6 July 2010; Magistrates’ Court and the Children’s Court of Victoria, Submission FV 220, 1 July 2010; Law Society of New South Wales, Submission FV 205, 30 June 2010; J Stubbs, Submission FV 186, 25 June 2010; Women’s Legal Service Queensland, Submission FV 185, 25 June 2010; Confidential, Submission FV 184, 25 June 2010; Confidential, Submission FV 183, 25 June 2010; Law Council of Australia,


importance of screening and assessment going beyond physical violence to explore the range of other behaviours that have the impact of intimidating, controlling and humiliating the victims of violence.113 The involvement of the family violence sector in the further development of screening and assessment processes was supported and acknowledged by some submissions.114 The screening and assessment tool employed by Victoria Legal Aid’s Round Table Dispute Management program received particular acknowledgement as an effective tool developed in collaboration with the domestic violence sector.115 The cross-sectoral collaboration between the Domestic Violence Resource Centre and Relationships Australia Victoria was also mentioned.116

21.63 Training in the use of screening and assessment tools was described in submissions as very important, as was the understanding that screening is a process rather than an event—initial screening should not provide the only point of disclosure.117 The many disincentives to disclosing violence may mean that violence is only revealed, for example, after repeated inquiries or after trust in the service provider has been developed.

21.64 The development of screening and assessment tools was also described as not ‘a one-off event’: their continued refinement to reflect best practice is important.118 One submission specifically endorsed the recommendation of the Family Law Council (referred to above) that screening and risk assessment frameworks, tools and materials

Submission FV 180, 25 June 2010; Queensland Law Society, Submission FV 178, 25 June 2010; Aboriginal Family Violence Prevention and Legal Service Victoria, Submission FV 173, 25 June 2010; Confidential, Submission FV 171, 25 June 2010; Confidential, Submission FV 164, 25 June 2010; Berry Street Inc, Submission FV 163, 25 June 2010; Confidential, Submission FV 162, 25 June 2010; Confidential, Submission FV 160, 24 June 2010;UnitingCare Children Young People and Families, Submission FV 151, 24 June 2010; Justice for Children, Submission FV 148, 24 June 2010; Domestic Violence Victoria, Federation of Community Legal Centres Victoria, Domestic Violence Resource Centre Victoria, Victorian Women with Disabilities Network, Submission FV 146, 24 June 2010; National Council of Single Mothers and their Children Inc, Submission FV 144, 24 June 2010; Confidential, Submission FV 130, 21 June 2010; N Ross, Submission FV 129, 21 June 2010; Confidential, Submission FV 105, 6 June 2010; Confidential, Submission FV 96, 2 June 2010; Confidential, Submission FV 82, 2 June 2010; Confidential, Submission FV 81, 2 June 2010; Confidential, Submission FV 71, 1 June 2010; Confidential, Submission FV 69, 2 June 2010; M Condon, Submission FV 45, 18 May 2010; P Easteal, Submission FV 40, 14 May 2010; C Humphreys, Submission FV 04, 23 August 2009.

113 Domestic Violence Victoria, Federation of Community Legal Centres Victoria, Domestic Violence Resource Centre Victoria, Victorian Women with Disabilities Network, Submission FV 146, 24 June 2010.

114 Women’s Legal Service Queensland, Submission FV 185, 25 June 2010; Domestic Violence Victoria, Federation of Community Legal Centres Victoria, Domestic Violence Resource Centre Victoria, Victorian Women with Disabilities Network, Submission FV 146, 24 June 2010; National Council of Single Mothers and their Children Inc, Submission FV 144, 24 June 2010.

115 Domestic Violence Victoria, Federation of Community Legal Centres Victoria, Domestic Violence Resource Centre Victoria, Victorian Women with Disabilities Network, Submission FV 146, 24 June 2010. The Victoria Legal Aid’s Round Table Dispute Management program is discussed further, below, in the context of culturally responsive FDR. For a discussion of this collaboration and its challenges see W Ibbs and M Rogers, ‘Fasten Your Seat Belts: We’re in for a Bumpy Night: The Story of Collaboration between FDR and Family Violence Organisations’ (Paper presented at Family Relationship Services Association Conference Sydney, 24-26 November 2009).

116 Family Relationship Services Australia, Submission FV 231, 15 July 2010. 117 C Humphreys, Submission FV 04, 23 August 2009. 118 Women’s Legal Services Australia, Submission FV 225, 6 July 2010; C Humphreys, Submission FV 04,

23 August 2009.


should be endorsed by an expert panel and reference group.119 Professor Julie Stubbs submitted that the tools used should be empirically tested and established for use in the Australian context.120 AIFS discussed the need for a reliable and validated tool to assist in the making of clinical judgments, and referred to work currently being done in Australia to produce more valid and reliable screening and risk assessment instruments for the family relationship sector. AIFS commented that commitment was required to coordinate these efforts so that a final product could be produced that would be user friendly and achieve a high level of confidence from lawyers and decision makers.121

21.65 The issue of the cultural appropriateness of screening and assessment tools and training in their use was also mentioned in submissions.122 The particular barriers to disclosure of family violence for Indigenous women and women who have particular needs because of language, ethnicity, immigration status, disability are also important.123

Commissions’ views 21.66 In view of the strong support for this proposal and the content of the submissions, the Commissions recommend that the Australian Government continue to support and promote: high quality screening and risk assessment frameworks and tools for family dispute resolution practitioners; the inclusion of these tools and frameworks in training and accreditation of FDR practitioners; and their inclusion in the assessment and evaluation of FDR services and practitioners. In this regard, the Commissions note the need, as suggested by AIFS, for coordination of efforts to develop valid and reliable screening and risk assessment instruments.

21.67 The Commissions also commend the work of FDR services in collaborating with the family violence sector to develop screening and assessment frameworks and other tools to improve practice. In the course of this Inquiry, which is focused on the intersections of the complex systems handling family violence, the importance of, and the challenges inherent in, communication and collaboration across divergent perspectives on violence have become very clear. Collaborative practice, integrated services and the closure of the gaps in the system are predicated on this type of work,124 and reflect the principles for reform identified in this Inquiry.125

119 Women’s Legal Services NSW, Submission FV 182, 25 June 2010. 120 J Stubbs, Submission FV 186, 25 June 2010. 121 Australian Institute of Family Studies, Submission FV 222, 2 July 2010. 122 Aboriginal Family Violence Prevention and Legal Service Victoria, Submission FV 173, 25 June 2010;

C Humphreys, Submission FV 04, 23 August 2009. 123 Aboriginal Family Violence Prevention and Legal Service Victoria, Submission FV 173, 25 June 2010;

C Humphreys, Submission FV 04, 23 August 2009. 124 See further Chs 29, 30. 125 See Ch 3.


Recommendation 21–2 The Australian Government Attorney-General’s Department should:

(a) promote and support high quality screening and risk assessment frameworks and tools for family dispute resolution practitioners;

(b) include these tools and frameworks in training and accreditation of family dispute resolution practitioners;

(c) include these tools and frameworks in the assessment and evaluation of family dispute resolution services and practitioners; and

(d) promote and support collaborative work across sectors to improve standards in the screening and assessment of family violence in family dispute resolution.

Lawyers as effective referral agents 21.68 Deciding on the appropriate path for clients in cases involving family violence can be a complex task. Section 60I of the Family Law Act, discussed above, requires that parties in dispute must attempt FDR before they can litigate about a parenting issue in a family court. FDR practitioners must provide a certificate under s 60I(8) that the parties did, or did not, attend FDR and made a genuine effort to resolve their parenting dispute. There are exceptions in s 60I(8) for cases that are not appropriate for FDR—these exceptions include cases involving violence. Where there is violence, or a risk of violence, the parties do not need to go to FDR but may go directly to court. A certificate under s 60I(8) is not required in certain circumstances. The circumstances are set out in s 60I(9). They include an exemption where the court is satisfied that there are reasonable grounds to believe that there has been, or there is a risk of, child abuse or family violence.

21.69 The AIFS Evaluation indicated that this legislative scheme may not be working well. One of the identified problems was the way FDR practitioners are being used to issue s 60I certificates. The evaluation conducted by AIFS showed that parents who reported experiencing physical or emotional violence, were ‘much more likely to have attempted FDR’ than parents who did not report experiencing violence.126 Of particular relevance is the finding that lawyers appeared to be sending victims of family violence to FDR services as a method of getting a s 60I certificate in order to allow them to proceed to the court. While FRCs did not provide certificates ‘as a matter of course’, some clients or legal advisers nonetheless saw providing certificates as the primary function of FRCs or believed a certificate should be issued as a default option.127 Importantly, the AIFS survey also revealed that clients, who clearly fell within the

126 Australian Institute of Family Studies, Evaluation of the 2006 Family Law Reforms (2009), 100. This was

a finding based on a longitudinal survey of parents. 127 Ibid, 5–16.


exception to FDR in the legislation were ‘not infrequently referred to the FRCs by lawyers (and to a lesser extent by courts)’.128

21.70 The AIFS evaluation concluded that the rate of issuing of certificates had likely increased, and this was ‘in part connected with an absence of triage by lawyers and other professionals’.129 There is a problem if clients who are clearly exempt from FDR are, nevertheless, being referred to FDR in order to get a s 60I certificate. In the Consultation Paper the Commissions expressed the view that FDR services should not be the triage point for family violence and that all personnel in the family law system should be capable of identifying violence and dealing with it appropriately. The extent of violence in the separating and divorcing population is such that violence is likely to be core business for most professionals in the family law system. Further, any agency or professional could be the first port of call for a party who has been the target of violence, and that agency or professional needs to be able to identify, manage or refer cases appropriately.

21.71 In order to be effective practitioners, family lawyers need training on how to identify and make appropriate referrals in cases of family violence. They need to be able to identify when FDR is clearly not appropriate and an application under s 60I(9) is required. All FDR agencies are not the same, and understanding the range of available services may assist in selecting the best match for the client.130 There may be cases where a lawyer is not sure whether FDR is appropriate or not, in which case referral may be the best decision so that an FDR practitioner can make a decision in the light of their knowledge of the capacity of FDR and of that service to handle cases involving violence. Appropriate screening and referral for lawyers therefore involves an understanding of family violence and also an understanding of the nature of FDR services and their practices in cases of family violence. The required knowledge and understanding is complex and is almost certainly best acquired through training and education.

21.72 The need for training of lawyers about family violence raises the question of how such training should be provided. Tertiary institutions address family violence issues in courses such as criminal law and especially in family law. However, coverage of family violence may not be sufficiently extensive or specialised to prepare lawyers for effective screening and referral in practice. Students who study family law as part of a law degree may not later practice in that area; lawyers who do practice family law may not have studied it at university.131 Professional bodies also provide education in family law and family violence. Some lawyers who practice in this area are specialists and have specialist accreditation, but many do not. Family lawyers may be required to

128 Ibid. 129 Ibid, 5–17. The evaluation noted that this may be linked to the ‘anxiety on the part of lawyers about

clients making or being seen to be making deliberately false allegations’. The deterrent effect of the provisions in s 117AB, which provide for costs sanctions in cases where deliberately false allegations are made, is discussed in Ch 18.

130 H Rhoades, H Astor, A Sanson and M O’Connor, Enhancing Inter-Professional Relationships in a Changing Family Law System: Final Report (2008).

131 The issue of education and training in relation to family violence in tertiary institutions and by professional bodies is considered in Ch 31.


attend professional development seminars, but unless they are Independent Children’s Lawyers, they are not required to have training in child development or family violence in order to practice family law.132 Providing education and training in family violence appears likely to involve collaborative relationships between many organisations.

Submissions and consultations 21.73 In the Consultation Paper, the Commissions proposed that Australian governments, lawyers’ organisations and bodies responsible for legal education should develop ways to ensure that lawyers who practise family law are given adequate training and support in screening and assessing risks in relation to family violence.133

21.74 There was strong support for this proposal in submissions.134 Some submissions were supportive of further training and support for lawyers because of negative experiences where lawyers did not respond appropriately to violence. Examples were given of cases where lawyers handled cases involving violence in ways that did not provide adequate protection for clients, including some cases involving violence of extreme seriousness.135

21.75 Suggestions about the nature of training for lawyers and its significance were also made. One submission pointed to the broader relevance of family violence training beyond family law:

Education about domestic violence needs to be included as a specific unit within the subject of Criminal law and Family Law at all universities. Further, even if a practitioner does not practise in family law, domestic violence still can have a large

132 Ibid, 7. 133 Consultation Paper, Proposal 11–1. 134 Department of Premier and Cabinet (Tas), Submission FV 236, 20 July 2010; National Legal Aid,

Submission FV 232, 15 July 2010; Family Relationship Services Australia, Submission FV 231, 15 July 2010; Women’s Legal Services Australia, Submission FV 225, 6 July 2010; Magistrates’ Court and the Children’s Court of Victoria, Submission FV 220, 1 July 2010; WESNET—The Women’s Services Network, Submission FV 217, 30 June 2010; Law Society of New South Wales, Submission FV 205, 30 June 2010; J Stubbs, Submission FV 186, 25 June 2010; Confidential, Submission FV 184, 25 June 2010; Confidential, Submission FV 183, 25 June 2010; Women’s Legal Services NSW, Submission FV 182, 25 June 2010; Law Council of Australia, Submission FV 180, 25 June 2010; Queensland Law Society, Submission FV 178, 25 June 2010; Aboriginal Family Violence Prevention and Legal Service Victoria, Submission FV 173, 25 June 2010; Confidential, Submission FV 171, 25 June 2010; Confidential, Submission FV 164, 25 June 2010; Berry Street Inc, Submission FV 163, 25 June 2010; Confidential, Submission FV 162, 25 June 2010; Confidential, Submission FV 160, 24 June 2010; UnitingCare Children Young People and Families, Submission FV 151, 24 June 2010; Justice for Children, Submission FV 148, 24 June 2010; Domestic Violence Victoria, Federation of Community Legal Centres Victoria, Domestic Violence Resource Centre Victoria, Victorian Women with Disabilities Network, Submission FV 146, 24 June 2010; National Council of Single Mothers and their Children Inc, Submission FV 144, 24 June 2010; Confidential, Submission FV 130, 21 June 2010; N Ross, Submission FV 129, 21 June 2010; Confidential, Submission FV 109, 8 June 2010; T Searle, Submission FV 108, 2 June 2010; Confidential, Submission FV 105, 6 June 2010; Confidential, Submission FV 96, 2 June 2010; Confidential, Submission FV 81, 2 June 2010; A Harland, Submission FV 80, 2 June 2010; Confidential, Submission FV 71, 1 June 2010; C Pragnell, Submission FV 70, 2 June 2010; Confidential, Submission FV 69, 2 June 2010; O Rundle, Submission FV 50 27 May 2010; M Condon, Submission FV 45, 18 May 2010; P Easteal, Submission FV 40, 14 May 2010.

135 Aboriginal Family Violence Prevention and Legal Service Victoria, Submission FV 173, 25 June 2010; Confidential, Submission FV 164, 25 June 2010.


impact on other areas – such as credit and debt matter, criminal matters, wills and estates.136

21.76 The Law Society of NSW pointed to the benefits of cross-sectoral training, arguing that:

Solicitors have much to learn from the social sciences. Family Counsellors and FDRPs have much to learn about the legal dynamic.137

21.77 National Legal Aid similarly advocated for training and support beyond the legal sector, and referred to the recent tender by the Attorney-General’s Department for the development of a multi-disciplinary training package in relation to family violence.138

21.78 There were divergent views about the present availability of training on screening and risk assessment. The Magistrates’ Court and the Children’s Court of Victoria argued that there is very little education available to the private profession that would assist them to screen for family violence and assess risk.139 However, the Law Society of NSW submitted that ‘a considerable amount of legal education on this topic is currently available.’140 The Family Law Section of the Law Council of Australia pointed to its record in the provision of training, including about family violence, and indicated its willingness to continue working with government and other agencies in this regard. The Council emphasised the importance of training in this area: ‘family law is such a dynamic and constantly changing area of law that continuing professional development is an essential part of family law practice’.141

21.79 Submissions and consultations also provided further information on the dynamics of lawyer referral to FDR in cases involving family violence. Two issues were raised: first, whether lawyers refer cases to FDR in order to pass on the job of screening and assessment to FDR services; and second, whether and why lawyers send cases involving family violence to FDR in order to get a certificate under s 60I(8) rather than making an application for an exemption under s 60I(9).

21.80 In relation to the first issue, consultations provided some confirmation of the findings of the AIFS evaluation. The Commissions were told that there are other barriers to lawyers screening for violence. The first barrier is resources—a client may not have the funds to pay for an application to court for an exemption under s 60I(9), so lawyers reportedly send their clients to FDR in order that the exemption will come under s 60I(8) and be free of cost.142 The second barrier mentioned was knowledge. Lawyers reportedly do not feel competent to decide if a case is exempt under s 60I(9), so they send clients to FDR because of the expertise of FDR practitioners in this area.

136 Confidential, Submission FV 183, 25 June 2010. 137 Law Society of New South Wales, Submission FV 205, 30 June 2010. 138 National Legal Aid, Submission FV 232, 15 July 2010. 139 Magistrates’ Court and the Children’s Court of Victoria, Submission FV 220, 1 July 2010. 140 Law Society of New South Wales, Submission FV 205, 30 June 2010. 141 Law Council of Australia, Submission FV 180, 25 June 2010. 142 Confidential, Consultation, Darwin, 28 May 2010.


Screening for violence was described as too big an onus to place on family lawyers and beyond lawyers’ knowledge base.143

21.81 A further problem identified in consultations arising from the practice of sending cases to FDR for screening and assessment, is the problem of delay. While, in some areas, a rapid response from FDR is possible, in others there is a shortage of services and the resulting delay for clients may be several months. Clients may not realise that there is an option of going straight to court.144

21.82 However, the Women’s Legal Service NSW argued for the desirability of having both options—of exemption from FDR under s 60I(9) and referral to FDR for screening and a certificate under s 60I(8). The Service argued that referring a client to FDR is often a legitimate and cost effective strategy:

Both these processes need to be accessible for clients and, in many cases, seeing a family dispute resolution practitioner for the purposes of obtaining a section 60I certificate is the preferable course: it is usually less expensive; having a certificate rather than not, may have more credence with the court; and the client may have an opportunity to participate in safe family dispute resolution if appropriate to do so.145

21.83 There was also a suggestion in two submissions that the approach of courts to family violence is informing the unwillingness of lawyers to use the exemption provisions in s 60I(9). The Women’s Legal Centre (ACT and Region) submitted:

The attitude of the courts in granting exemptions based upon family violence allegations needs to be clearer for practitioners. We have heard anecdotally of Registries which simply do not allow exemptions and thus lawyers need to send their client to an FDR practitioner to obtain a certificate when it was obvious from initial instructions that FDR was not suitable.146

21.84 The Women’s Legal Service, Queensland asserted that some FDR practitioners accept cases involving violence because they know that the court will send the case back for FDR even if a certificate that the case is not appropriate for FDR is issued.147 Further submissions mentioned the impact of the 2006 amendments to the Family Law Act, in particular the disinclination of lawyers to raise family violence in family courts because of the fear of costs orders or that the client alleging violence will be perceived to be an ‘unfriendly parent.’148 If lawyers are concerned about the response to violence from family courts they may be inclined instead to refer cases to FDR, thus putting inappropriate pressure on that sector.

143 Confidential, Consultation, Canberra, 20 May 2010. 144 Ibid. 145 Women’s Legal Services NSW, Submission FV 182, 25 June 2010. 146 Women’s Legal Centre (ACT & Region) Inc, Submission FV 175, 25 June 2010. 147 Women’s Legal Service Queensland, Submission FV 185, 25 June 2010. 148 Law Society of New South Wales, Submission FV 205, 30 June 2010; National Abuse Free Contact

Campaign, Submission FV 196, 26 June 2010; Women’s Legal Services NSW, Submission FV 182, 25 June 2010; National Council of Single Mothers and their Children Inc, Submission FV 144, 24 June 2010.


21.85 The Commissions note that in commenting on the 2008 KPMG report, and on legal aid commissions’ strategies for referral pathways to other services, National Legal Aid pointed to its development of overarching referral and information sharing protocols. National Legal Aid noted that each Legal Aid Commission has criteria for referrals with their local Family Relationship Centres, including consideration of single referral points.149

Commissions’ views 21.86 The Commissions recognise that family violence is core business for all professionals in the family law system and that all of them should have the knowledge and expertise to identify violence and manage it appropriately. This includes lawyers, who should not assign their role in screening and assessment to FDR practitioners, requiring their clients to tell and re-tell their experiences of violence and possibly involving them in increased costs and delays. Lawyers should have the requisite understanding of the nature and dynamics of family violence and of FDR to act as effective screening and referral agents.

21.87 In the Consultation Paper, the Commissions proposed that Australian governments, lawyers’ organisations and bodies responsible for legal education should develop ways to ensure that lawyers who practice family law are given adequate training and support in screening and assessing risks in relation to family violence.150 In view of the responses of stakeholders in consultations and submissions, discussed above, the Commissions would also include FDR practitioners in this list of organisations, given the provisions of s 60I and the significant intersections in practice of lawyers and FDR practitioners in screening and risk assessment.

21.88 The Commissions note National Legal Aid’s development of referral and information sharing protocols. In the Commissions view, organisational strategies, such as the development of protocols for appropriate referral pathways to other services, may be valuable in complementing and supporting training for lawyers on effective screening and referral.

Recommendation 21–3 The Australian Government Attorney-General’s Department, family dispute resolution service providers, and legal education bodies should ensure that lawyers who practise family law are given training and support in screening and assessing risks in relation to family violence and making appropriate referrals to other services.

FDR practitioners and lawyers 21.89 The level of cooperation and collaboration between FDR practitioners and lawyers was raised as an issue in both the AIFS evaluation and the 2009 report of the

149 National Legal Aid, Correspondence, 20 September 2010. 150 Consultation Paper, Proposal 11–1.


Family Law Council.151 The AIFS evaluation noted the potential for the aims of legal and service professionals to conflict, and supported initiatives to promote ‘responsible FDR’ between lawyers, FDR practitioners and others in the sector.152

21.90 Research by Professor Helen Rhoades and others in 2008, on inter-professional relationships between FDR practitioners and lawyers, demonstrated that although some practitioners enjoy positive professional contact, many have little collaborative contact with the other profession and there are some significant misunderstandings and tensions between the two groups.153 This study found that successful collaborative relationships were marked by a number of features:

• practitioners described their relationship as a complementary services approach in which each group saw themselves and the other profession as contributing different but equally valuable complementary skills and expertise to the dispute resolution process;

• practitioners from both groups understood and respected the nature of each profession’s roles, responsibilities and ways of working with family law clients;

• practitioners had a shared expectation of the dispute resolution process and a shared understanding of the FDR program’s aims and approach to working with family law clients;

• family lawyers engaged in ‘positive’ advocacy practices;

• practitioners trusted the intake screening and referral practices of the other profession in cases involving family violence; and

• practitioners engaged respectfully with members of the other profession and extended professional courtesies, such as the provision of timely feedback about clients.154

21.91 The focus of the first element of this study was on groups with good inter-professional relationships. In these groups practitioners trusted each other to handle violence appropriately in most cases, although some reservations were still expressed by both groups about the identification and handling of violence.155 However, a survey of a larger group of lawyers and FDR practitioners conducted for the same study found that there was much greater distrust of the practices of the other profession in identifying and handling cases involving violence.156

151 Australian Institute of Family Studies, Evaluation of the 2006 Family Law Reforms (2009), ch 5; Family

Law Council, Improving Responses to Family Violence in the Family Law System: An Advice on the Intersection of Family Violence and Family Law Issues (2009), 44.

152 Australian Institute of Family Studies, Evaluation of the 2006 Family Law Reforms (2009), 110. 153 H Rhoades, H Astor, A Sanson and M O’Connor, Enhancing Inter-Professional Relationships in a

Changing Family Law System: Final Report (2008), iv. 154 Ibid. 155 Ibid, 25–26. 156 Ibid, 44–46.


21.92 In its 2009 report, the Family Law Council suggested a number of strategies ‘to develop and enrich inter-disciplinary cooperation and collaboration, particularly between FDR practitioners and family lawyers’.157 These recommendations were based on the work by Rhoades and others described above, and included:

• building opportunities for positive personal contact;

• building understanding of roles and responsibilities;

• providing lawyers and judicial officers with information about funded community based programs;

• considering ways to improve communication and feedback about clients; and

• family violence training for both professions.158

21.93 Professor Helen Rhoades and her co-researchers suggested that the Australian Government Attorney-General’s Department, family dispute resolution providers, the Family Law Section of the Law Council of Australia, and state family law associations should consider how to facilitate joint meetings of FDR practitioners and family lawyers to share information.159

21.94 The Family Law Council also recommended the expansion of Australia-wide family pathways networks to support cooperation and referrals across the family relationship and family law system.160

21.95 In the Consultation Paper, the Commissions proposed that measures should be taken to improve collaboration and cooperation between family dispute resolution practitioners and lawyers, as recommended by the Family Law Council.161

Submissions and consultations 21.96 A great majority of those that responded to this issue supported the proposal.162 In a confidential submission, one legal service provider noted that there is overlap

157 Family Law Council, Improving Responses to Family Violence in the Family Law System: An Advice on

the Intersection of Family Violence and Family Law Issues (2009), 44–45. 158 Ibid, 45. 159 H Rhoades, H Astor, A Sanson and M O’Connor, Enhancing Inter-Professional Relationships in a

Changing Family Law System: Final Report (2008), vii. 160 Family Law Council, Improving Responses to Family Violence in the Family Law System: An Advice on

the Intersection of Family Violence and Family Law Issues (2009), Rec 4. 161 Consultation Paper, Proposal 11–3. 162 Department of Premier and Cabinet (Tas), Submission FV 236, 20 July 2010; Women’s Legal Services

Australia, Submission FV 225, 6 July 2010; Magistrates’ Court and the Children’s Court of Victoria, Submission FV 220, 1 July 2010; Law Society of New South Wales, Submission FV 205, 30 June 2010; National Abuse Free Contact Campaign, Submission FV 196, 26 June 2010; J Stubbs, Submission FV 186, 25 June 2010; Women’s Legal Service Queensland, Submission FV 185, 25 June 2010; Confidential, Submission FV 184, 25 June 2010; Confidential, Submission FV 183, 25 June 2010; Women’s Legal Services NSW, Submission FV 182, 25 June 2010; Law Council of Australia, Submission FV 180, 25 June 2010; Queensland Law Society, Submission FV 178, 25 June 2010; Aboriginal Family Violence Prevention and Legal Service Victoria, Submission FV 173, 25 June 2010; Confidential, Submission FV 171, 25 June 2010; Confidential, Submission FV 164, 25 June 2010; Berry Street Inc, Submission FV 163, 25 June 2010; Confidential, Submission FV 160, 24 June 2010; UnitingCare Children


between the two groups—that some FDR practitioners are lawyers and vice versa.163 Further, legal aid FDR models, and some others, employ lawyer-mediators. In these models the parties are generally legally represented, which may be especially important for disputes where there is violence.164 As noted by the Law Society of NSW:

The Legal Aid Commission of NSW has a very successful and safe model of FDR. Most of the parties attend FDR with a solicitor. The solicitors are alert to any disclosure of risk to the safety of person or property and they advise their clients accordingly. The solicitor acting for the perpetrator is also alerted to the situation and can play a very positive role by advising their client of the consequences of their behaviour. The solicitor being present also allows the FDRP to remain neutral and impartial.165

21.97 Some submissions also supported the involvement of the family violence community in developing collaborative and cooperative practices between lawyers and FDR practitioners, because of the breadth of experience of working with violence in that community.166

21.98 Most submissions, however, simply expressed strong support for the proposal that measures should be taken to improve collaboration and cooperation between FDR practitioners and lawyers, as recommended by the Family Law Council.167

Young People and Families, Submission FV 151, 24 June 2010; Justice for Children, Submission FV 148, 24 June 2010; Domestic Violence Victoria, Federation of Community Legal Centres Victoria, Domestic Violence Resource Centre Victoria, Victorian Women with Disabilities Network, Submission FV 146, 24 June 2010; Confidential, Submission FV 130, 21 June 2010; N Ross, Submission FV 129, 21 June 2010; Confidential, Submission FV 105, 6 June 2010; Confidential, Submission FV 96, 2 June 2010; Confidential, Submission FV 81, 2 June 2010; Confidential, Submission FV 71, 1 June 2010; Confidential, Submission FV 69, 2 June 2010; M Condon, Submission FV 45, 18 May 2010; National Legal Aid, Submission FV 232, 15 July 2010. See also O Rundle, Submission FV 50, 27 May 2010, who supported joint training opportunities to facilitate improved collaboration, cooperation and understanding between FDR practitioners and lawyers.

163 Confidential, Submission FV 164, 25 June 2010. 164 Law Society of New South Wales, Submission FV 205, 30 June 2010; Confidential, Submission FV 183,

25 June 2010. 165 Law Society of New South Wales, Submission FV 205, 30 June 2010. For a discussion of the role of

lawyers in disputes in FDR involving violence see R Field, ‘FDR and Victims of Family Violence: Ensuring a Safe Process and Outcomes’ (2010) 21 Australasian Dispute Resolution Journal 185.

166 National Abuse Free Contact Campaign, Submission FV 196, 26 June 2010; Women’s Legal Service Queensland, Submission FV 185, 25 June 2010; Confidential, Submission FV 184, 25 June 2010; Domestic Violence Victoria, Federation of Community Legal Centres Victoria, Domestic Violence Resource Centre Victoria, Victorian Women with Disabilities Network, Submission FV 146, 24 June 2010.

167 Women’s Legal Services Australia, Submission FV 225, 6 July 2010; Magistrates’ Court and the Children’s Court of Victoria, Submission FV 220, 1 July 2010; J Stubbs, Submission FV 186, 25 June 2010; Confidential, Submission FV 183, 25 June 2010; Women’s Legal Services NSW, Submission FV 182, 25 June 2010; Law Council of Australia, Submission FV 180, 25 June 2010; Queensland Law Society, Submission FV 178, 25 June 2010; Confidential, Submission FV 171, 25 June 2010; Berry Street Inc, Submission FV 163, 25 June 2010; Confidential, Submission FV 162, 25 June 2010; Confidential, Submission FV 160, 24 June 2010; UnitingCare Children Young People and Families, Submission FV 151, 24 June 2010; Justice for Children, Submission FV 148, 24 June 2010; Confidential, Submission FV 130, 21 June 2010; N Ross, Submission FV 129, 21 June 2010; Confidential, Submission FV 105, 6 June 2010; Confidential, Submission FV 96, 2 June 2010; Confidential, Submission FV 81, 2 June 2010; Confidential, Submission FV 71, 1 June 2010; Confidential, Submission FV 69, 2 June 2010; M Condon, Submission FV 45, 18 May 2010.


21.99 The Commissions note that in National Legal Aid’s comments on the 2008 KPMG report—and in particular with respect to legal aid commissions’ strategies for referral pathways to other services—National Legal Aid advised that all legal aid commissions are significant partners in developing and implementing referral pathways across the family law system. National Legal Aid commented that recent pilots and programs funded by the Australian Government Attorney-General’s Department for the provision of legal assistance before, during and after FDR within Family Relationship Centres have built on these strong links.168

Commissions’ views 21.100 The Commissions note that there was strong support for the proposal that measures should be taken to improve collaboration and cooperation between FDR practitioners and lawyers, as recommended by the Family Law Council. As indicated above, the Family Law Council envisaged that improvements in cooperation and collaboration might be achieved through the Australian Government Attorney-General’s Department family pathways networks.169 The Commissions also note the suggestion by Rhoades and others that the Attorney-General’s Department, family dispute resolution providers, the Family Law Section of the Law Council of Australia, and state family law associations should consider facilitating joint meetings of FDR practitioners and family lawyers to share information.

21.101 The Commissions acknowledge the extensive record of the Australian Government Attorney-General’s Department in funding and supporting the development of standards in FDR, and the work done by the Department in bringing together organisations of lawyers and FDR practitioners to work collaboratively and cooperatively.

21.102 As the Commissions indicated in the Consultation Paper, while it appears that some lawyers and FDR practitioners have good relationships, there also seems to be room to improve relationships between the two sectors. Given that FDR practitioners and lawyers are likely to be required to work together more extensively as FDR develops, the Commissions recommend that the Australian Government Attorney-General’s Department should continue to take leadership in bringing together organisations of lawyers and FDR practitioners to work collaboratively and cooperatively. In the Commissions’ view, such cooperation and collaboration will contribute to further improvements in FDR practice and standards.

Recommendation 21–4 The Australian Government Attorney-General’s Department should continue to provide leadership, support and coordination to improve collaboration and cooperation between family dispute resolution practitioners and lawyers.

168 National Legal Aid, Correspondence, 20 September 2010. 169 See above, and Family Law Council, Improving Responses to Family Violence in the Family Law System:

An Advice on the Intersection of Family Violence and Family Law Issues (2009), 47.


Culturally responsive FDR 21.103 In the course of this Inquiry, stakeholders have commented on the particular needs and concerns of Indigenous and CALD children and families in the resolution of family law and child protection disputes involving family violence. As the Commissions discuss further in Chapter 23, non–judicial dispute resolution processes offer significant flexibility to tailor procedures and outcomes to the needs and interests of children, families and their cultures.170 Consequently, agreements may be more effective and sustainable.

21.104 In some respects, however, concerns about using non–judicial dispute resolution processes in cases involving family violence may be amplified in the context of Indigenous and CALD families because of the particular difficulties relating to identifying family violence in these cases.171 Researchers have highlighted some of the difficulties experienced and the reluctance felt by Indigenous and CALD women in disclosing their concerns about family violence and the safety of their children.172 Significantly, the AIFS evaluation of the 2006 family law reforms indicated that professionals in the family relationship sector lacked confidence in engaging with CALD and Indigenous families.173 Such a lack of confidence on the part of practitioners may also contribute to the complexity of identifying and assessing violence in Indigenous and CALD families for the purposes of FDR.

21.105 The significance of timely and reliable identification and assessment of family violence concerns is discussed above, and in Chapters 22 and 23.174

21.106 It has been suggested that FDR practitioners’ awareness of not just the personal, but cultural, religious, language and structural factors that may affect the disclosure of violence, and their ability to adapt screening tools and questioning in accordingly are critical.175 It has also been suggested that, in addition to reviewing screening and assessment processes, review of referral practices to ensure that these

170 N Thoennes, ‘What We Know: Findings from Dependency Mediation’ (2009) 47 Family Court Review 1;

Australian Law Reform Commission and Human Rights and Equal Opportunity Commission, Seen and Heard: Priority for Children in the Legal Process, Report 84 (1997), [17.48].

171 General concerns about using non–judicial dispute resolution processes in cases involving family violence are discussed in this chapter, above, and in Ch 22 and Ch 23.

172 L Bartels, Emerging Issues in Domestic/Family Violence Research, Research Practice No 10 (2010), prepared for the Australian Institute of Criminology; Australian Human Rights Commission, In Our Own Words: African Australians, a Review of Human Rights and Social Inclusion Issues (2010); Successworks, CALD Women’s Project: Final Report (2005) prepared for the Victorian Government Department for Victorian Communities; S Armstrong, Culturally Responsive Family Dispute Resolution in Family Relationship Centres: Access and Practice (2010) Prepared for Family Relationship Centres at Bankstown managed by CatholicCare and Parramatta managed by Anglicare. Submissions and consultations highlighting this issue include: Victorian Aboriginal Legal Service Co-operative Ltd, Submission FV 179, 25 June 2010; Aboriginal Family Violence Prevention and Legal Service Victoria, Submission FV 173, 25 June 2010; G Krayem, Consultation, Sydney, 22 June 2010.

173 Australian Institute of Family Studies, Evaluation of the 2006 Family Law Reforms (2009), 54. 174 See also Ch 18. 175 S Armstrong, ‘Culturally Responsive Family Dispute Resolution in Family Relationship Centres’ (2009)

13 Family Relationships Quarterly 3, 5.


effectively identify and assess cultural contexts, preferences and needs is particularly important where violence may be present.176

21.107 More culturally responsive models of non–judicial dispute resolution are being developed to accommodate the cultural contexts, values and needs of parties involved in or affected by disputes.177 As these models develop, consideration will need to be given to how the accommodation of culture is balanced with the requirements of the law, particularly in cases involving family violence:

The challenge for culturally responsive practitioners is to effectively explore with clients whether and how elements of an individual’s culture may be accommodated in the FDR process. They avoid the traps of cultural relativism by being clear about the legal limits of accommodating culture, particularly where violence is present, but also understand that this assessment is a complex one. They will know when law, and procedural justice, trump culture and have the capacity to make this clear to the parties. Culturally responsive FDR [practitioners] respond effectively to the cultural dynamics of violence and of gender.178

21.108 While accommodating culture in cases involving family violence presents particular challenges, the potential for culturally responsive FDR to secure sustainable and effective outcomes in this context may also be significant. Further, culturally responsive FDR can assist FDR service providers to meet their important obligation to facilitate outcomes which observe children’s right to enjoy their culture.179

21.109 In consultations following the release of the Consultation Paper, the Commissions sought comments from stakeholders about the capacity of FDR to offer processes and lead to outcomes that accommodate the needs of Indigenous and CALD families.

Submissions and consultations 21.110 Stakeholders commented on the interaction of family violence and culture, the factors affecting disclosure of family violence and the need for culturally responsive solutions. Stakeholders also reported on initiatives to provide culturally appropriate dispute resolution processes and outcomes for Indigenous and CALD children and families.

176 S Armstrong, Culturally Responsive Family Dispute Resolution in Family Relationship Centres: Access

and Practice (2010) Prepared for Family Relationship Centres at Bankstown managed by CatholicCare and Parramatta managed by Anglicare, 16.

177 As described by Dr Susan Armstrong, ‘“[c]ultural responsiveness” in the context of service provision is the active process of seeking to accommodate the service to the client’s cultural context, values and needs’: S Armstrong, ‘Culturally Responsive Family Dispute Resolution in Family Relationship Centres’ (2009) 13 Family Relationships Quarterly 3. The development of culturally responsive models of non–judicial dispute resolution is described by stakeholders below, and in Chapter 23.

178 S Armstrong, Culturally Responsive Family Dispute Resolution in Family Relationship Centres: Access and Practice (2010) Prepared for Family Relationship Centres at Bankstown managed by CatholicCare and Parramatta managed by Anglicare,15.

179 Convention on the Rights of the Child, 20 November 1989, [1991] ATS 4, (entered into force generally on 2 September 1990) art 30; Family Law Act 1975 (Cth) ss 60B(2)(e), (3). On facilitating children’s right to enjoy their culture, see also S Armstrong, ‘Culturally Responsive Family Dispute Resolution in Family Relationship Centres’ (2009) 13 Family Relationships Quarterly 3, 6.


21.111 As noted in Chapter 22, the Aboriginal Family Violence Prevention and Legal Service Victoria (AFVPLS) commented that, for various reasons, including reluctance of Indigenous women to disclose violence, there are problems with Family Relationship Centres identifying family violence experienced by Indigenous people.180 The particular need for holistic, community–based and culturally appropriate dispute resolution for Indigenous children was raised by another stakeholder. 181

21.112 Legal academic and researcher, Ghena Krayem, commented on the reluctance of muslim women to disclose family violence because they feel they will be blamed for their situation and fear that if they go to the police, the response will be ‘it’s typical of your community’. In her opinion, ascribing violence to culture was overly simplistic. She related the causes of violence not to culture or religion, but to other factors that transcend culture or religion—such as isolation, dislocation, disempowerment, and alcohol abuse. Ms Krayem commented that the causes of violence might be the same, but the responses may have to be different and that holistic solutions are needed. She noted the importance of engaging communities in developing solutions, rather than simply responding on a case by case basis.182

21.113 Legal Aid NSW noted that the KPMG report identified that legal aid commissions’ responses to people from diverse backgrounds were largely ad hoc, and that there was a need for formal protocols for delivering culturally and religiously appropriate FDR services. In response, Legal Aid NSW noted that it has developed more culturally appropriate dispute resolution processes for Indigenous clients, offering cadetships to Indigenous people to be trained as FDR practitioners, and offering all Indigenous clients an Indigenous FDR practitioner. FDR traineeships have also been offered to suitably qualified candidates from diverse cultural backgrounds with extensive understanding of the cultural practices, beliefs and experiences of their community. Legal Aid NSW told the Commissions about initiatives to develop a training and professional development framework for FDR practitioners, conference organisors and family lawyers, and other measures to ensure that FDR processes are culturally appropriate. Legal Aid NSW also told the Commissions about pilots in culturally responsive ADR in child protection.183

21.114 Commenting on the work of legal aid commissions to engage CALD communities in the improvement of dispute resolution practice, National Legal Aid noted that all legal aid commissions maintain productive working relationships with CALD representative community based organisations to inform ongoing development of culturally appropriate policies and procedures. National Legal Aid described particular initiatives in this area, including the Victoria Legal Aid Roundtable Dispute

180 Aboriginal Family Violence Prevention and Legal Service Victoria, Submission FV 173, 25 June 2010.

This comment was made in relation to the value of including information about family violence on s 60I certificates: see Ch 22.

181 Victorian Aboriginal Legal Service Co-operative Ltd, Submission FV 179, 25 June 2010. The comments of this stakeholder are discussed in Chapter 23 in relation to ADR in child protection matters.

182 G Krayem, Consultation, Sydney, 22 June 2010. 183 The Nowra Care Circle pilot and the Bidura Children’s Court external court–referred mediation pilot are

discussed in Ch 23. Legal Aid New South Wales, Correspondence, 14 July 2010; Legal Aid New South Wales, Correspondence, 14 July 2010.


Management program, which has included extensive consultations with CALD (particularly Arabic and African) communities in Melbourne and professional development for case managers in relation to working with interpreters and other issues relevant to these communities. National Legal Aid also referred to Legal Aid Queensland’s Indigenous mediation model, which was established in partnership with the Yarrabah community, and utilises Indigenous mediators from that community. National Legal Aid also told the Commissions about the participation of Legal Aid Western Australia’s Clinical Services Coordinator in a training program involving cross cultural leadership, peacemaking and mediation in the context of Indigenous culture.184

21.115 The FRSA referred to barriers to access to FDR services for CALD families, such as low awareness of services, practical difficulties with the use of interpreters and the additional resources needed to respond appropriately to the needs of families with complex needs. According to the FRSA, services working with Indigenous communities reported that such work ‘requires quite a different approach to service delivery than used for mainstream client groups’. The FRSA also noted that while the Secretariat of National Aboriginal and Islander Child Care had recently received government funding to develop a comprehensive resource manual to support services to improve their cultural responsiveness to Indigenous families, funding was not provided for associated training and dissemination. The FRSA also referred to a model of dispute resolution for Indigenous families, developed by the Alice Springs Family Relationship Centre, which it believes warrants further dissemination and support. In FRSA’s view, ‘improving practice in this area requires more than ad hoc activities driven by highly motivated individuals’. In the FRSA’s view, a more comprehensive and strategic approach to enhance culturally responsive practice in FDR and other family support programs is needed.185

21.116 The various factors which affect the identification of family violence experienced by Aboriginal and Torres Strait Islander and CALD women, including reluctance to disclose, are addressed through culturally sensitive family violence screening and risk assessment.

Commissions’ views 21.117 In the Commissions’ view, FDR offers significant promise for processes that can accommodate —in so far as is appropriate, practicable and within the limits of the law—the cultural, religious and social values and practices of CALD and Indigenous communities. The Commissions note the particular value of culturally responsive FDR in promoting outcomes that observe children’s right to enjoy their culture. The Commissions commend stakeholders and the Australian Government Attorney–General’s Department for the work they have already done to develop culturally responsive FDR practice and service delivery for Indigenous and CALD communities.

184 National Legal Aid, Correspondence, 20 September 2010. 185 Family Relationship Services Australia, Submission FV 231, 15 July 2010.


21.118 The Commissions appreciate that the development of culturally responsive FDR practice requires considerable planning and resources, particularly for its application in cases involving family violence. In this regard, the Commissions note stakeholder concerns that culturally responsive approaches should be developed and implemented in a comprehensive, strategic and holistic way, rather than on an ad hoc basis.

21.119 The Commissions also acknowledge the complexity of identifying and assessing family violence in different cultural contexts. Existing and future initiatives to improve FDR practice and service delivery for Indigenous and CALD communities require comprehensive and strategic support to ensure that screening and risk assessment processes can reliably identify and assess family violence in different cultural contexts; to develop protocols for referrals to culturally appropriate support services;186 to engage Indigenous and CALD communities in developing holistic, effective and appropriate processes and outcomes in cases involving family violence; and to build FDR practitioners’ skills and confidence in working in this area. The Commissions consider, therefore, that the Australian Government should take a comprehensive and strategic approach to support culturally responsive family dispute resolution. The Commissions consider that the development of culturally responsive FDR screening and risk assessment processes is particularly important to ensure that family violence concerns are appropriately and effectively identified, assessed and managed.

Recommendation 21–5 The Australian Government Attorney-General’s Department should take a comprehensive and strategic approach to support culturally responsive family dispute resolution, including screening and risk assessment processes.

186 In this Report, the Commissions have recommended that Australian, state and territory governments

prioritise the provision of, and access to culturally appropriate victim support services for victims of family violence, including enhanced support for victims in high risk and vulnerable groups: Rec 29–3.

Documents

21. Family Dispute Resolution - ALRC · PDF file21. Family Dispute Resolution 985 this Report, much work has been done in recent years to develop ADR processes that have the flexibility