23. Intersections and Inconsistencies

Recommendation 23–1 Where state and territory family violence legislation permits the use of alternative dispute resolution in family violence protection order proceedings, such legislation should provide that violence cannot be negotiated or mediated.

Recommendation 23–2 State and territory legislation and policies for alternative dispute resolution in family violence protection order proceedings should provide for comprehensive screening and risk assessment mechanisms.

Recommendation 23–3 State and territory governments, courts, and alternative dispute resolution service providers should ensure that, where alternative dispute resolution is permitted in relation to family violence protection order proceedings, education and training is provided to judicial and court officers and alternative dispute resolution practitioners on:

(a) the nature and dynamics of family violence; and

(b) the conduct of alternative dispute resolution processes in the context of family violence.

Recommendation 23–4 State and territory courts should ensure that the terms of a family violence protection order indicate that participation in family dispute resolution, as ordered or directed by a family court, or provided under the Family Law Act 1975 (Cth), is not precluded by a family violence protection order.

Recommendation 23–5 State and territory courts should ensure that parties to family violence protection order proceedings are informed that, if involved in proceedings or family dispute resolution under the Family Law Act 1975 (Cth):

(a) they may be exempt from requirements to participate in family dispute resolution under the Family Law Act 1975 (Cth);

(b) they should inform a family dispute resolution practitioner about any family violence protection orders or proceedings; and

(c) they should inform family courts about any family violence protection orders or proceedings, where family court proceedings are initiated.

Recommendation 23–6 The Australian Government Attorney–General’s Department and state and territory governments should ensure that family violence screening and risk assessment frameworks indicate the importance of including questions in screening and risk assessment tools about:

(a) past or current applications for protection orders;

(b) past or current protection orders; and

(c) any breaches of protection orders.

Recommendation 23–7 Family dispute resolution service providers should ensure that:

(a) tools used for family violence screening and risk assessment include questions about past and current protection orders and applications, and any breaches of protection orders; and

(b) parties are asked for copies of protection orders.

Recommendation 23–8 State and territory legislation and policies for alternative dispute resolution in child protection matters should provide that violence cannot be negotiated or mediated within alternative dispute resolution processes.

Recommendation 23–9 State and territory legislation and policies for alternative dispute resolution in child protection matters should provide for comprehensive screening and risk assessment mechanisms.

Recommendation 23–10 State and territory child protection agencies and alternative dispute resolution service providers should ensure that child protection staff and alternative dispute resolution practitioners undertake training on:

(a) the nature and dynamics of family violence; and

(b) the need for parents, as well as children, who are victims of family violence to have access to appropriate support.

Recommendation 23–11 State and territory governments should take a comprehensive and strategic approach to support culturally responsive alternative dispute resolution—including screening and risk assessment processes—in child protection matters.

Recommendation 23–12 Alternative dispute resolution service providers should ensure that, in intake procedures for child protection matters, parties are asked about relevant:

(a) orders, injunctions and applications under state and territory family violence legislation and the Family Law Act 1975 (Cth);

(b) family dispute resolution agreements and processes; and

(c) alternative dispute resolution agreements and processes in family violence matters.

Recommendation 23–13 The Australian Government Attorney-General’s Department and state and territory governments should collaborate with Family Relationship Services Australia, legal aid commissions and other alternative dispute resolution service providers, to explore the potential of resolving family law parenting and child protection issues relating to the same family in one integrated process.