10.11.2010
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]
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.
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]
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]
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;
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 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 advice[84] 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 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.
[42] New South Wales Law Reform Commission, Community Justice Centres, Report 106 (2005), Ch 4.
[43] Ibid, [4.41].
[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.
[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.
[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.
[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.
[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.
[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.
[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).