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 processes[1] 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]

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 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.

[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, 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 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).