ADR in family violence legislation

23.7 In most Australian jurisdictions, there is no specific provision in family violence legislation empowering courts to refer parties to mediation, although there may be power to refer matters to mediation under other legislation.[2]

23.8 In the ACT, the Magistrates Court does have express power under the Domestic Violence and Protection Orders Act 2008 (ACT) to recommend that the respondent or an aggrieved person take part in (amongst other things) mediation.[3] The Domestic Violence and Protection Orders Act also specifically mandates referral of matters to mediation in protection order proceedings involving family violence in certain circumstances.[4] Section 25 of the Act provides that if, during a preliminary conference for an application for a protection order,[5] the registrar is satisfied that the application is likely to be more effectively resolved by mediation than by a hearing, the registrar must:

  • recommend mediation to the parties;

  • give the parties information about mediation; and

  • adjourn the preliminary conference to enable mediation.

23.9 The Act was amended to include this requirement in 2005. The Explanatory Statement for the relevant bill explains that the obligation ‘highlights the importance of alternative dispute mechanisms in preventing further violence by facilitating discussions between the parties to an order’.[6]

23.10 In NSW, there is legislative power to refer matters to mediation in relation to Apprehended Personal Violence Orders (APVOs),[7] but not in relation to Apprehended Domestic Violence Orders (ADVOs), which apply to domestic relationships, broadly defined.[8] This reflects the recommendations of the New South Wales Law Reform Commission (NSWLRC) in its 2003 report, Apprehended Violence Orders.[9] In that report, while the NSWLRC recommended an express legislative basis for referral to mediation in the context of APVOs,[10] it expressed the following view:

It should be emphasised that this section deals exclusively with mediation of APVO disputes. The Commission is of the view that mediation should not be encouraged in relation to ADVOs. The Commission concurs with the arguments put in submissions that the fear and imbalance of power typically characterising domestic violence makes mediation in ADVO matters unsuitable, unproductive and unsafe.[11]

23.11 Consistently with this view, the NSWLRC also considered that there should not be a power of referral in the case of APVOs where there was a history, or allegations, of personal violence, or conduct amounting to serious harassment.[12] This view is reflected in the legislation.[13]

23.12 The NSWLRC considered the issue again in its 2005 review of Community Justice Centres, which provide mediation services in NSW.[14] It noted that negotiations concerning a return to a violent relationship or the level, frequency and the intensity of violence ‘will always be inappropriate’, a view which was reflected in the policy of the Community Justice Centres.[15]

23.13 Similarly to the NSW legislation, the Intervention Order (Prevention of Abuse) Act 2009 (SA) distinguishes between protection orders in relation to family violence and other cases. Section 21(4) of that Act provides that a court must consider, in determining whether to dismiss an application, ‘whether it might be appropriate and practicable for the parties to attempt to resolve the matter through mediation or by some other means’. However, this only applies where the application alleges ‘non-domestic abuse’.[16]

23.14 In the Consultation Paper, the Commissions asked whether, in practice, ADR mechanisms are used in relation to protection order proceedings under family violence legislation and, if so, whether reforms are necessary to ensure these mechanisms are used only in appropriate circumstances.[17]

Submissions and consultations

23.15 A number of stakeholders reported that ADR is either not used, or is used in very limited cases in some jurisdictions. In NSW, ADR is not used in family violence protection order proceedings because, as observed by Women’s Legal Services NSW, the prevailing view of the government, courts and legal aid is that mediation in these matters is inappropriate.[18] Similarly, the North Australian Aboriginal Justice Agency advised that mediation never takes place for family violence matters in the Northern Territory,[19] and Family Relationship Services Australia commented that FDR services do not report receiving referrals from local courts for ADR in protection order proceedings.[20]

23.16 According to the Magistrates’ Court and the Children’s Court of Victoria and the Aboriginal Family Violence Prevention and Legal Service Victoria (AFVPLS Victoria), ADR is used extremely rarely, if ever, in cases involving intimate partner relationships in Victoria.[21] However, ADR may be used for disputes involving other family members, such as disputes involving low level violence between a parent and child or between siblings.[22] The AFVPLS Victoria also noted that exceptions to conditions in protection orders are usually put in place to allow potential family law FDR to proceed.[23]

23.17 In other jurisdictions, stakeholders reported that ADR processes are used in protection order proceedings. The Women’s Legal Centre (ACT & Region) reported that a conferencing process—although not called ADR—is used for protection order applications in ACT courts. This process is conducted by a Registrar in a shuttle model, often with unrepresented parties.[24] National Legal Aid advised that Tasmanian courts hearing protection order proceedings may, and do, refer matters to mediation with the court’s dispute resolution service. However, National Legal Aid remarked that the level of expertise among court-provided mediators varies significantly as does judicial officers’ recognition of issues relating to power imbalances and their sensitivity to the appropriateness or otherwise of mediation.[25]

23.18 The Queensland Government reported that Queensland courts may refer parties to ADR when making a domestic violence protection order, or parties may make their own application for ADR. Under s 25(2) of the Domestic and Family Violence Prevention Act 1989 (Qld), a court may also require a respondent to attend ADR as a condition of a family violence protection order.[26] The Queensland Government advised that the use of mediation processes in situations involving family violence is subject to guidelines and practices to ensure the safety of the parties and the appropriateness of ADR. The guidelines provide, for example, that before approving a mediation process, the mediator must take into account any existing domestic violence protection order, whether any such order prohibits contact between the parties, and if there are any exceptions to contact for the purposes of mediation. The mediator must also consider whether the allegations of domestic violence are so serious as to put a party at risk of danger or power imbalance in the mediation. The Queensland Government stated that participation in ADR is voluntary, safeguards are put in place to address safety concerns and parties are free to end the mediation at any point.[27]

23.19 A number of stakeholders expressed support for the use of ADR in protection order proceedings. The Family Reform Association NSW advocated for ADR to be used as the preferred option for resolving protection order applications prior to hearing.[28] The Commissioner for Children (Tas) also supported the use of ADR to resolve protection order applications. The Commissioner considered that ‘an agreement crafted by the parties themselves is far more likely to be sustained than one imposed on them unwillingly by a disinterested Court’. The Commissioner was also of the view that final protection orders should not be made until the parties had attended accredited mediation, the Family Relationship Centre or an accredited FDR Practitioner.[29]

23.20 Other stakeholders, however, raised concerns about the use of ADR mechanisms in relation to protection order proceedings. Women’s Legal Services NSW, for example, commented that living free from violence is an absolute right and should not be subject to mediation. Women’s Legal Services NSW also commented that ADR processes should never be used with respect to a protection order itself, however mediation about other issues where there is violence or a protection order in place may be appropriate, depending on the circumstances, risk assessment and a safety plan.[30] Other stakeholders expressed the view that ADR is not appropriate to resolve protection order applications.[31]

23.21 National Legal Aid recommended that caution be exercised in the use of ADR in protection order proceedings. In its view, it was essential that appropriate screening and assessment processes be established to determine the appropriateness of matters for ADR, and that training be provided to mediators on the nature and dynamics of family violence and on methods to manage mediation in the context of family violence.[32] The Women’s Legal Centre (ACT & Region)—commenting with respect to ACT conferencing processes where parties are often unrepresented—referred to the importance of the parties being well-informed about the process, and having the opportunity to seek legal advice about their situation.[33]

23.22 In its submission, the Queensland Government commented that, due to safety concerns for the victim, ADR is not appropriate where there are pending criminal proceedings in relation to domestic violence. The Queensland Government also commented that, while it is generally accepted that ADR is not appropriate for the majority of cases involving domestic and family violence, consultations for the Queensland Government’s review of the Domestic and Family Violence Protection Act have indicated support for making ADR processes available for Indigenous communities[34] and young people.[35]

23.23 The Department of Premier and Cabinet (Tas) indicated that reforms are necessary to ensure ADR mechanisms are used only in appropriate circumstances because ‘at the moment there does not seem to be consistency in the application of this or an in depth knowledge of family violence dynamics’.[36]

Commissions’ views

23.24 The Commissions note inconsistencies across Australia in the approach taken to the use of ADR in protection order proceedings. In NSW and South Australia, for example, legislative provisions allow referral of protection order proceedings to ADR, but specifically exclude protection order proceedings that involve family violence. Elsewhere in Australia, legislative provisions and policy guidelines allow for referral of protection order applications involving family violence to ADR in some circumstances, either on a party’s application, or with the parties’ consent.[37] Family violence legislation in some jurisdictions allows courts to order matters to ADR, and to require parties to attend or participate in ADR. Submissions to this Inquiry also reported that in some protection order matters relating to family violence, courts are ordering mediation.

23.25 The Commissions reiterate the NSWLRC’s view that negotiations concerning a return to a violent relationship, or negotiations concerning the level, frequency and intensity of violence are inappropriate, and that violence should never be mediated. The Commissions consider, therefore, that state and territory legislation and policies for ADR in family violence protection order proceedings should provide that violence cannot be negotiated or mediated within alternative dispute resolution processes.

23.26 The Commissions are mindful, however, of the distinction between the mediation of violence and the mediation of other issues where there is violence in the relationship between the parties.

23.27 As discussed in Chapter 21, FDR may take place in parenting disputes where family violence is a factor. However, while family violence may arise as an issue in FDR, the subject of the dispute resolution in FDR is the parenting dispute, not the family violence. FDR—which seeks to resolve a parenting dispute—is, therefore, to be distinguished from ADR that attempts to mediate or negotiate violence itself. As indicated above, in the Commissions’ view, protection from violence should never be mediated or negotiated in ADR. The Commissions agree with Women’s Legal Services NSW that where there is violence (or a protection order is in place), ADR for issues other than violence may be appropriate, depending on the circumstances. There may be some matters other than violence that are ancillary to a protection order application and that may be resolved through ADR—for example, arrangements for the respondent’s return to the family home to collect belongings, or for telephone contact with the parties’ children.

23.28 In the Commissions’ view, where protection order proceedings are to be referred to ADR for resolution of issues other than violence, screening and risk assessment will be necessary to determine the appropriateness of ADR in the particular circumstances, and to ensure the safety of the parties. The Commissions note, however, that submissions have raised concerns about courts’ understanding of family violence and their assessment of the suitability of matters for ADR. Stakeholders have observed that the expertise of court-provided mediators varies; that judicial officers’ understanding of the nature and dynamics of family violence varies, as does their sensitivity to the appropriateness of mediation; and that court assessment of the suitability of cases involving family violence for ADR is inconsistent.

23.29 The use of FDR in family law disputes is subject to a comprehensive legislative and policy framework for screening and risk assessment. The Family Law (Family Dispute Resolution Practitioners) Regulations 2008 (Cth) prescribe assessment of the suitability of matters for FDR in accordance with a minimum list of considerations relating to family violence, safety of the parties, equality of bargaining power, risk of child abuse, and the emotional, psychological and physical health of the parties, as well as any other matter deemed relevant by the FDR practitioner. Considerable work has been done in the family law jurisdiction to develop screening and assessment tools for use in risk assessment and determining suitability of matters for FDR.[38] The Commissions are concerned that in jurisdictions where protection order proceedings may be referred to ADR, without such screening and risk assessment of matters relating to safety, parties may be referred to ADR by judicial or court officers in inappropriate circumstances and victims, or potential victims of violence, may be placed at risk.

23.30 In the Commissions’ view, the family law FDR framework and state and territory ADR frameworks should operate consistently to protect victims and potential victims from family violence. In jurisdictions where protection order proceedings may be referred to ADR, legislation and policies for ADR in protection order proceedings should provide for comprehensive screening and risk assessment mechanisms to ensure that resolution of issues other than violence may be attempted safely. Further, state and territory governments, courts and ADR service providers should ensure that education and training is provided to judicial and court officers and ADR practitioners on the nature and dynamics of family violence, and the conduct of ADR processes in the context of family violence. The Commissions also agree with the Women’s Legal Centre (ACT & Region) about the need, where parties are unrepresented, for parties to be well-informed about the ADR process, and to have the opportunity to seek legal advice.

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.

[2] For example, see Alternative Dispute Resolution Act 2001 (Tas) s 5(1).

[3]Domestic Violence and Protection Orders Act 2008 (ACT) s 89.

[4] The term ‘protection order’ is generally used throughout this Report to refer to a family violence protection order. See Ch 1 for discussion on definitions and terminology.

[5] This provision does not apply to emergency protection orders.

[6] Explanatory Statement, Domestic Violence and Protection Orders Amendment Bill 2005 (ACT). The present clause is the same as s 18A of the Domestic Violence and Protection Orders Act 2001 (ACT), which was inserted by s 11 of the Domestic Violence and Protection Orders Amendment Act 2005 (ACT). This clause was not discussed in the Legislative Assembly of the ACT during the passage of the latter Act.

[7]Crimes (Domestic and Personal Violence) Act 2007 (NSW) s 21.

[8] Ibid s 15.

[9] New South Wales Law Reform Commission, Apprehended Violence Orders, Report 103 (2003), Ch 5.

[10] Ibid, Rec 17.

[11] Ibid, [5.50].

[12] Ibid, [5.51].

[13]Crimes (Domestic and Personal Violence) Act 2007 (NSW) s 21(2) provides that a matter is not to be referred to mediation if the court is of the opinion that there has been a history of physical violence to the protected person by the defendant; the protected person has been subjected to conduct by the defendant amounting to a personal violence offence or stalking or intimidation under s 13 of that Act; the defendant has engaged in conduct amounting to harassment relating to the protected person’s race, religion, homosexuality, transgender status, HIV/AIDS infection or disability; or there has been a previous attempt at mediation in relation to the same matter and the attempt was not successful. Further, the Community Justice Centres Act 1983 (NSW) provides the Director with a discretion to decline any dispute: ss 20(3), 22, 24.

[14] New South Wales Law Reform Commission, Community Justice Centres, Report 106 (2005), [4.31]–[4.41].

[15] Ibid, [4.31]–[4.34]. The NSWLRC recommended that a list of factors indicating when mediation might be inappropriate be included in the Community Justice Centres Act 1983 (NSW). This recommendation was not implemented in the subsequent Community Justice Centres Amendment Act 2007 (NSW).

[16] This provision is not discussed in the Second Reading Speech or canvassed in M Pyke, South Australian Domestic Violence Laws: Discussion and Options for Reform (2007).

[17] 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 11-4.

[18] Women’s Legal Services NSW, Submission FV 182, 25 June 2010.

[19] North Australian Aboriginal Justice Agency, Consultation, Darwin, 26 May 2010.

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

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

[22] Magistrates’ Court and the Children’s Court of Victoria, Submission FV 220, 1 July 2010. In Victoria, the Family Violence Protection Act 2008 (Vic) provides for protections orders in family violence cases.

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

[24] Women’s Legal Centre (ACT & Region) Inc, Submission FV 175, 25 June 2010.

[25] National Legal Aid, Submission FV 232, 15 July 2010.

[26] Section 25(2) of the Domestic and Family Violence Protection Act 1989 (Qld) provides ‘When a court makes or varies a domestic violence order, it may also impose conditions on the respondent that the court considers—(a) necessary in the circumstances; and (b) desirable in the interests of the aggrieved, any named person and the respondent.

[27] Examples of such safeguards were staggering start and finish times for mediation sessions and providing a chaperone to a party’s vehicle after mediation sessions.

[28] Family Law Reform Association NSW Inc, Submission FV 142, 24 June 2010.

[29] Commissioner for Children (Tas), Submission FV 62, 1 June 2010.

[30] Women’s Legal Services NSW, Submission FV 182, 25 June 2010.

[31] Aboriginal Family Violence Prevention and Legal Service Victoria, Submission FV 173, 25 June 2010. National Abuse Free Contact Campaign, Submission FV 196, 26 June 2010; Queensland Law Society, Submission FV 178, 25 June 2010; Family Relationship Services Australia, Submission FV 231, 15 July 2010.

[32] National Legal Aid, Submission FV 232, 15 July 2010.

[33] Women’s Legal Centre (ACT & Region) Inc, Submission FV 175, 25 June 2010.

[34] The Queensland Government referred to the Community Justice Group Program, which aims to reduce Aboriginal and Torres Strait Islander peoples’ contact with the court system. Community justice groups decide, on the basis of local and familial knowledge, whether the use of an ADR or restorative justice process is appropriate in a particular situation: Queensland Government, Submission FV 229, 14 July 2010.

[35] Ibid.

[36] Department of Premier and Cabinet (Tas), Submission FV 236, 20 July 2010.

[37] In Western Australia, the Restraining Orders Act 1997 (WA) makes no provision for mediation.

[38] As noted above, this includes the development of the Framework for Screening, Assessment and Referrals in Family Relationship Centres and the Family Relationship Advice Line by the Australian Government Attorney-General’s Department and the Australian Catholic University, and the publication by the Victorian Government of a comprehensive screening and risk assessment framework. A national common risk assessment framework to support screening and assessment for family violence across the federal family law system is also currently being developed by the Australian Government Attorney-General’s Department.