Family law, child protection and family violence intersections in ADR

23.113 As discussed in Chapter 3, families experiencing breakdown and family violence may have multiple and simultaneous engagements with different legal systems. For example, a child protection agency may commence care proceedings in the children’s court, while a parent may commence proceedings in a family court for parenting orders governing children’s living arrangements. Similarly, parties may engage in child protection ADR as well as FDR to resolve their parenting dispute. Additionally, while a dispute is pursued through non-judicial dispute resolution in one jurisdiction, a dispute involving the same family may be pursued through court proceedings in the other jurisdiction. Greater use of alternative processes as a primary form of resolving disputes increases the likelihood of dual non-judicial dispute resolution processes, or concurrent court proceedings and non-judicial dispute resolution across jurisdictions.

23.114 Where family law, child protection and family violence issues intersect, minimising duplication of processes in different jurisdictions will ensure more efficient and effective use of resources. Achieving consistency in practices and in the outcomes reached in the different jurisdictions is also important to ensure the effective protection of victims and potential victims of family violence.

23.115 Reliable and timely access by courts and non-judicial dispute resolution practitioners to information about relevant agreements made in other jurisdictions is important for consistency of outcomes across jurisdictions. As discussed in Chapter 30, there are some significant limitations on courts’ powers to obtain relevant information from other jurisdictions. This is even more pronounced for non-judicial dispute resolution practitioners who have no powers to require the production of relevant information and must rely on the voluntary provision of information by the parties.

23.116 The Commissions consider, below, the gaps between the family law, child protection and family violence systems and the intersection between parenting, child protection and family violence issues in the context of ADR. In particular, the Commissions consider the importance of reliable and timely inter-jurisdictional access to relevant FDR and ADR agreements, and how this may be best facilitated. The Commissions also consider how some ADR processes to resolve concurrent child protection and parenting disputes are operating in practice.

Submissions and consultations

23.117 A number of stakeholders commented on the gaps between the family law, child protection, and family violence systems and identified ways of overcoming these.

23.118 The OCSC commented on the gaps between child protection service systems and family violence service systems, and argued that reforms to ensure that ADR mechanisms in child protection incorporate considerations of family violence were needed to address the gaps between these two systems. Referring particularly to the need for integration of child protection and family violence protection orders,[137] the OCSC suggested that courts’ awareness of relevant orders, including orders relating to family members, could be ensured through a shared database.[138]

23.119 In its submission, FRSA expressed concern about the gap between the federal family law system and the state-based child protection system. In particular, it was concerned about children’s matters proceeding through family law courts when child protection agencies should be involved. FRSA argued that stronger connections between the child protection and family law systems could include, among other things, improved information sharing across the two systems and increased resources for risk assessment.[139]

23.120 Stakeholders commented on the resolution of matters through dual ADR processes in the family law and child protection systems. As noted previously, parties to family law parenting disputes are subject to requirements for participation in FDR under the Family Law Act. The Australian Government Attorney-General’s Department noted that families in the child protection system may also be required to participate in non-judicial dispute resolution processes, and raised the issue of dual ADR processes in the family law and child protection systems operating in practice.[140]

23.121 The national peak body for FDR and other family relationship services, FRSA, stated that, in addition to providing FDR for family law parenting disputes, some FDR service providers are providing dispute resolution as part of child protection processes.[141] Legal Aid NSW also noted that its FDR service provides dispute resolution in child protection cases.[142]

23.122 FRSA stated that it was not aware of problems arising in FDR cases as a result of dual family law and child protection ADR processes,[143] and made the following comment with respect to consideration by FDR practitioners of relevant information from the other jurisdiction in cases where families may be involved in both family law and child protection matters:

in cases where FDR is for the resolution of disputes over parenting arrangements, risks concerned with violence, child welfare and safety are explored in initial and ongoing assessment, typically one or both parents will identify any child protection involvement or concerns, domestic violence orders or other socio-legal processes that impact on the care provision. Similarly, if providing FDR as part of a child protection intervention or to address a dispute over care arrangements involving others (eg grandparent care) the assessment will include past or current parenting plans, family court orders and other socio-legal processes of relevance.[144]

23.123 FRSA also commented that when parties are asked, they usually disclose such information.[145] In the context of commenting about the role of lawyers in child protection ADR, AFVPLS Victoria pointed to the difficulties experienced by victims in disclosing family violence, and commented that the best interests of children would not be served if agreements are made on inadequate information about family violence or safety issues.[146] However, FRSA stressed the importance of thorough assessments by appropriately skilled practitioners to fully identify risks (including violence, abuse, neglect, drug and alcohol misuse, and mental health issues) and the interactivity between risks. FRSA explained that assessments are undertaken by FDR practitioners who are qualified social scientists with experience and qualifications in the areas of child protection and family violence.[147]

23.124 According to FRSA, there is growing interest in applying FDR to child protection matters across Australian jurisdictions,[148] and FDR is increasingly being identified as an alternative to potentially complex and resource-intensive court processes in child protection matters.[149] FDR can be used to resolve a dispute or to assist decision making involving multiple stakeholders,[150] including parents, grandparents, child protection agencies, and children (through child-inclusive practice).[151] FRSA also acknowledged, however, that the model of FDR used in child protection matters would have to be adapted to the power imbalance between the parents and child protection authorities. FRSA noted that further work may be warranted on practice models and implications for practitioner training and accreditation to support the application of FDR in child protection matters.[152]

23.125 FRSA also made a number of comments with respect to how intersecting family law parenting issues and child protection issues relating to one family may be addressed together through the same FDR processes.

23.126 FRSA explained that the majority of families access FDR as ‘family law system clients’ to resolve a dispute over parenting arrangements. However, in some of these cases, family violence, mental health issues, or drug and alcohol misuse by parents may mean that children are at risk. Statutory child protection authorities may already be involved, or may become involved following notification by the FDR service. Grandparents or other family members may also become involved. FRSA noted that ‘at some point the issues being dealt with in FDR may become more concerned with addressing family violence and securing the safety of the child through the best placement option, rather than being limited to the dispute between the parents’.[153] Strict distinctions between child protection and family law parenting issues may not work ‘on the ground’, and in some cases it may not be clear whether the primary issue is a parenting one or a child protection one:[154]

While distinctions between ‘family law’, ‘family violence’ and ‘child protection’ may be meaningful to legislators, policy analysts and program administrators, such distinctions do not reflect the lived experience of families affected by violence where relationship breakdown, violence and child abuse/neglect are often connected and not discrete or isolated problems.[155]

23.127 In FRSA’s view, there is ‘no apparent conflict between the Family Law Act and the child protection legislation that underpins the work of the child protection authority’. With respect to how family law and child protection legislative and policy frameworks might apply to dispute resolution processes dealing with intersecting parenting and child protection issues, however, FRSA acknowledged that ‘there is the potential for issues to arise in relation to confidentiality, admissibility, risk assessment etc., particularly if the dispute is not resolved and/or the matter proceeds to court in either the family court or children’s court’.[156]

23.128 FRSA noted that there is a lack of research or documented case examples exploring the family law, family violence and child protection legislation intersections at the direct service delivery level. In FRSA’s view, further research in this area, as well as consideration of case examples to demonstrate the actual and potential use of FDR in child protection, would be useful.

Commissions’ views

23.129 The Commissions’ view is that some of the concerns discussed throughout this Report in relation to court proceedings, which arise out of fragmentation of jurisdictions, may also apply to non-judicial dispute resolution processes. In particular, the Commissions consider that the need for information sharing across systems to ensure that risk assessment is reliable and that outcomes are consistent, arises in the context of both court proceedings and non-judicial dispute resolution processes. The Commissions agree, therefore, with the OCSC that reforms to ensure the incorporation of family violence considerations into ADR mechanisms in child protection need to be implemented as part of a wider reform addressing the gaps between the child protection systems and family violence systems. The Commissions also agree with FRSA that greater connection between the family law and child protection systems is needed to improve information sharing and to increase resources for effective risk assessment.

23.130 The Commissions note FRSA’s comment about the importance of thorough assessments undertaken by qualified practitioners who have experience and qualifications in the area of child protection and family violence, as well as social science, and are able to identify risks and the interaction between risks. The Commissions also note FRSA’s comments that, as part of risk assessment procedures for dispute resolution in child protection or in family law matters proceeding through FDR in federally-funded family and relationship services, parties are asked about court orders, ‘socio-legal processes’ and agreements relating to the other jurisdiction.

23.131 The Commissions consider that dispute resolution practitioners’ reliable and timely access to information about relevant court orders and other non-judicial dispute resolution agreements is necessary to assist in such risk assessment, as well as to ensure that women and children are effectively protected against family violence by consistent outcomes across jurisdictions.

23.132 The Commissions discuss, above, the relevance of information about protection orders in assisting FDR practitioners to identify family violence and to manage the risks associated with it.[157] Information about relevant orders or agreements and relevant legal proceedings or dispute resolution processes in the family law and family violence jurisdictions is also important to facilitate informed and appropriate responses to family violence by child protection dispute resolution practitioners, and to ensure that ADR in child protection disputes achieves safe outcomes for children. The Commissions are of the view that ADR service providers undertaking intake procedures for ADR in child protection should, therefore, ensure that parties are asked specifically about relevant orders and applications under state and territory family violence legislation, and relevant orders, injunctions and applications under the Family Law Act.[158] Similarly, intake procedures for child protection ADR should ask parties about relevant FDR agreements and FDR processes in the family law jurisdiction.[159]

23.133 Clearly, courts considering matters involving family violence may also be assisted by access to information about relevant agreements reached in child protection ADR or in FDR. One way of facilitating access by courts to relevant agreements would be to register such agreements as consent orders in the relevant court and subsequently include them on a national register which can be accessed by family courts and state and territory courts that hear family violence protection applications and child protection matters.[160] Registering agreements as consent orders may, however, be considered undesirable for a number of reasons, including the costs involved to the parties. It may also reduce the flexibility of agreements, and the discretion of child protection agencies in implementing agreements.[161]

23.134 In the Commissions’ view, some of the arguments in favour of improving courts’ access to relevant orders from other jurisdictions through a national register might also be made in favour of extending access to relevant orders to ADR and FDR practitioners. The Commissions note, however, that FDR and ADR may be undertaken by individuals and organisations in the private sector. As the Commissions do not have sufficient information regarding the concerns and implications that may arise out of an extension of access to private sector organisations and individuals, the Commissions make no specific recommendation on this point.

23.135 As noted above, where families are affected by violence, parenting and child protection issues may overlap. Stakeholders have indicated that, currently, FDR services may be utilised for the resolution of both child protection and parenting disputes. Dispute resolution processes that can address both types of disputes where the same family is involved—and so bridge jurisdictional divides which limit court processes—may have many benefits, particularly in minimising inconsistent outcomes. However, difficulties may also arise where legislative and policy frameworks for child protection dispute resolution may not be entirely consistent with legislative and policy frameworks for family law parenting dispute resolution. For example, provisions setting out requirements, obligations and other matters in relation to dispute resolution under the Family Law Act may be different from provisions relating to dispute resolution under child protection legislation.[162] Where disputes are not clearly characterised as either family law or child protection matters, there may be potential for confusion as to which provisions apply to the dispute resolution process. The need for cross-training and accreditation to enable practitioners to undertake dispute resolution in both family law and child protection disputes is a further consideration.

23.136 The comments made by FRSA suggest that the use of FDR—including child inclusive practice—as a model to resolve child protection issues together with intersecting parenting issues may be an emerging and significant trend. As FRSA has noted, however, evidence about this current and potential use of FDR is limited. The Commissions are unable, therefore, to come to any firm conclusions as to the implications—including the benefits and limitations—of applying FDR as a practice model to resolve child protection issues together with intersecting parenting issues relating to the same family.

23.137 The Commissions are of the view, however, that flexible dispute resolution processes, which can facilitate collaboration across socio-legal service systems and jurisdictional divides, may offer significant potential for seamless and effective resolution of intersecting child protection and parenting issues relating to the same family. This may be particularly valuable in cases involving family violence. In the Commissions’ view, further work to explore the current and potential use of dispute resolution models in this context would be valuable.

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.

[137] The Office of the Child Safety Commissioner noted that because family violence issues are primarily considered in the Victorian Magistrates’ Court system and child protection issues are primarily considered in the Victorian Children’s Court system, family violence protection orders and child protection orders are not necessarily integrated with consideration of all relevant information: Office of the Child Safety Commissioner, Submission FV 215, 30 June 2010.

[138] Ibid.

[139] Family Relationship Services Australia, Submission FV 231, 15 July 2010.

[140] Australian Government Attorney-General’s Department, Submission FV 166, 25 June 2010.

[141] Family Relationship Services Australia, Submission FV 231, 15 July 2010.

[142] Legal Aid New South Wales, Correspondence, 10 September 2010.

[143] Family Relationship Services Australia, Correspondence, 21 September 2010; Family Relationship Australia Services, Correspondence, 20 September 2010. The term FDR in this context refers to a practice model for dispute resolution, rather than simply ADR for family law disputes.

[144] Family Relationship Australia Services, Correspondence, 20 September 2010.

[145] Family Relationship Services Australia, Consultation, By telephone, 15 September 2010; Family Relationship Services Australia, Consultation, By telephone, 30 June 2010

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

[147] Family Relationship Australia Services, Correspondence, 20 September 2010.

[148] Family Relationship Services Australia, Submission FV 231, 15 July 2010.

[149] Family Relationship Services Australia, Correspondence, 21 September 2010.

[150] Family Relationship Services Australia, Submission FV 231, 15 July 2010.

[151] Family Relationship Services Australia, Correspondence, 21 September 2010.

[152] Family Relationship Services Australia, Submission FV 231, 15 July 2010. Other stakeholders’ comments about the significance of power imbalances between parents and child protection authorities in child protection ADR are considered above.

[153] Family Relationship Services Australia, Correspondence, 21 September 2010.

[154] Family Relationship Services Australia, Consultation, By telephone, 15 September 2010.

[155] Family Relationship Services Australia, Correspondence, 21 September 2010.

[156] Ibid.

[157] The Commissions have recommended that this screening and risk assessment frameworks and tools address the need to ask parties in FDR processes about the existence of relevant current protection orders, past protection orders, as well as applications for protection orders—see Recs 23–6 and 23–7.

[158] Relevant applications, orders and injunctions are those relating to the children and their family members.

[159] Relevant FDR agreements and FDR processes are those relating to the children and their family members.

[160] The Commissions recommend that a national register be established to include protection orders under state and territory family violence legislation; child protection orders under state and territory child protection legislation and related orders and injunctions under the Family Law Act 1975 (Cth): see Rec 30–18.

[161] Implementation of family conference outcomes, for example, is generally not mandated in Australia, and the relevant child protection departments retain some discretion: N Harris, Family Group Conferencing in Australia 15 Years On (2008), prepared for the National Child Protection Clearinghouse.

[162] For example, for a discussion of provisions relating to the confidentiality and admissibility of FDR communications under the Family Law Act 1975 (Cth), see Ch 22.