Dispute resolution in child protection—law and practice

23.66 In most Australian states and territories, child protection legislation includes provisions designed to facilitate negotiated solutions. In addition, some government and community agencies use ADR procedures for child protection cases and have developed policy and practice in relation to ADR. There is a great deal of variation in the processes and terminology used to describe them.

23.67 Two frequently used processes are family group conferencing and mediation. Other examples of ADR in this area are conferences prior to a court hearing; the role of family consultants in the Family Court;[81] and ADR processes developed for Indigenous families, such as Care Circles.

23.68 The use of ADR in child protection matters appears to be developing, and has received strong support from some quarters.[82] There are, however, a number of concerns about the use of ADR in child protection cases, similar to those about the use of FDR in cases of family violence.

23.69 The potential for ADR processes to compromise the safety of children is a key concern.[83] Further, there are significant imbalances in power between: the child and parents; between parents (especially in cases of violence); and between families and government departments and other experts.[84] In their examination of family group conferencing and pre-hearing conferences in Seen and Heard: Priority for Children in the Legal Process (ALRC Report 84),[85] the ALRC and the (then) Human Rights and Equal Opportunity Commission (HREOC)[86] noted that ‘the vulnerability of some family members within violent and abusive families may mean that dynamics in conferences could hamper appropriate resolutions’.[87]

23.70 There is also the challenge of representing the interests of children who sometimes (appropriately) may not be part of the ADR process but are directly affected by it.[88] Additionally, the complexity of the cases means that most ADR involves multi-party processes requiring skilled management by well trained, experienced and possibly multiple conveners.

23.71 Nevertheless, as stated in ALRC Report 84, the use of ADR in child protection cases ‘hold[s] a good deal of promise for the resolution of disputes about the care and protection of children’. The potential benefits of using ADR in child protection matters include processes which are often faster and more cost-effective[89] and the potential to repair important relationships and open channels of communication.[90] ADR processes may also offer flexibility to tailor procedures and outcomes to the needs and interests of children, families and their cultures.[91] The pilot of Care Circles in the Children’s Court in Nowra NSW, which involves Indigenous elders as participants in a process to formulate care plans for Indigenous children, is one example of the flexibility of ADR to provide culturally responsive procedures and outcomes.[92] High levels of violence in some Indigenous communities, extensive involvement of child protection authorities with Indigenous children, and significant levels of distrust of child protection authorities by Indigenous peoples[93] are some of the factors which indicate a real need for culturally responsive ADR in child protection.

23.72 The family law and associated socio-legal service systems have been referred to as a maze.[94] It is possible that forms of ADR could assist in creating pathways of communication and decision making for the individuals who may find the ‘maze’ difficult to traverse. Many of the models of ADR in child protection involve group processes in which anyone who is relevant to the child’s life, care and safety can be present. All of the agencies involved with the child and family can come together, talk directly with each other and hear and understand the perspectives of all involved. Facilitating collaboration between professionals from the family law and family violence fields, as well as the child protection system, may be particularly beneficial for children and their families. Such collaboration across different systems may offer the possibility of using the same ADR process to resolve child protection issues together with intersecting parenting issues relating to the same family, and so provide more effective and consistent outcomes to protect children.

23.73 In the Consultation Paper, the Commissions asked how the potential of ADR mechanisms to improve collaboration in the child protection system could best be realised.[95] The Commissions also asked whether there is a need for legislative or other reforms to ensure that ADR mechanisms in child protection address family violence appropriately.[96]

Submissions and consultations

23.74 Themes which emerged in submissions from stakeholders generally related to the need for reform in law, policy and practice in child protection ADR. Stakeholders commented on power differentials in child protection interventions and the role of lawyers; the importance of early non-adversarial intervention mechanisms; the need for legislative provisions and other guidelines to address family violence concerns; the need for culturally-appropriate ADR; and the importance of facilitating the participation of children in ADR processes. Stakeholders also told the Commissions about the development of important initiatives in child protection ADR practice through government-funded and community-supported pilots.

Power differentials in child protection interventions and the role of lawyers in ADR

23.75 AFVPLS Victoria noted the ‘serious human rights implications and significant power differentials present in child protection interventions’, highlighting the need to enhance judicial oversight. AFVPLS Victoria expressed concern about the upholding of natural justice, procedural fairness and legal rights in out-of-court meetings and conferences where parties are not legally represented. In its view, ADR processes must be conducted within a robust legal framework, and legal rights and systemic oversight of Indigenous children and families within the system must be enhanced.[97]

23.76 AFVPLS Victoria commented that ADR is not appropriate in many situations where family violence is involved, but where ADR does proceed, there must be an option for legal representation. Concern was expressed about the view, particularly within the Victorian Department of Human Services, that lawyers should be excluded from ADR processes.[98] AFVPLS Victoria considered it critical that Indigenous people, particularly those who were victims of family violence and sexual assault, have the option to choose to be legally represented in all out-of-court dispute resolution processes and that they be advised of their right to make that choice. AFVPLS Victoria also advocated for culturally-appropriate legal advice and representation for Indigenous children and families to ensure that cultural issues are at the core of legal advocacy and increase the accountability of the child protection system. AFVPLS Victoria commented that provisions for Indigenous children in the Children, Youth and Families Act 2005 (Vic) are not being adequately implemented.

23.77 Referring to an external court-referred mediation pilot (where cases are referred from Bidura Children’s Court), Legal Aid NSW commented that legal representatives are required to identify the issues in dispute and the factors potentially affecting a party’s ability to participate in ADR.[99]

23.78 The Law Society of New South Wales suggested that the potential for ADR mechanisms to improve communication and collaboration in the child protection system could best be realised by adopting an ADR mechanism similar to the legal aid commission FDR in which an independent children’s lawyer is a participant.[100]

23.79 The Legal Aid Commission of Tasmania was of the view that parents need to have legal assistance in child protection ADR because ‘victims of family violence have often been threatened with what will happen at court, and are untrusting of systems’.[101] The Women’s Legal Centre (ACT and Region) also commented on the need for parents to have legal assistance and representation for ADR to work well. The Centre noted that in the ACT conference processes are run by a Registrar at particular stages in child protection matters and that both the child and the ACT child protection agency[102] are legally represented. In the Centre’s view, this creates an imbalance of power between parents and the agency, which needs to be carefully managed in any ADR process.

23.80 The Women’s Legal Centre (ACT and Region) also commented on the ACT child protection authority’s lack of support for women trying to escape family violence, and the threat that women’s children will be removed if they do not remove themselves from the situation of family violence.[103] Commenting on the lack of understanding of power differentials between victims and abusers, other stakeholders also reported that state child protection authorities hold women responsible for protecting their children from an abusive partner, rather than holding the abuser responsible. According to these stakeholders, if a woman is unable to protect her children from an abusive partner, or from exposure to family violence, she is punished.[104] One stakeholder commented that ADR in child protection matters should focus on removing the risk factors from the child’s current environment, rather than removing the child from his or her environment.[105]

23.81 Stakeholders commented that the attitude and practice of child protection authorities, described above, is counterproductive for female victims of family violence in any dispute resolution process within the child protection system.[106] In the view of the Women’s Legal Centre (ACT and Region), it would be more useful if the mandate of the child protection authority encompassed providing support for the parent escaping family violence. The Legal Aid Commission of Tasmania suggested that Departmental workers and mediators should undertake education and training about family violence issues, including the impact of family violence on victims and children.[107]

ADR processes as early non-adversarial intervention mechanisms

23.82 There was some support in submissions for the use of ADR processes as early non-adversarial intervention mechanisms in child protection cases.

23.83 The Victorian Aboriginal Legal Service (VALS) commented that the dispute resolution procedure in the Family Division of the Victorian Children’s Court is overly legalistic and adversarial and that changing the focus of ADR on matters as disputes was a necessary starting point for improvement. According to VALS, ‘[c]ollaboration is diminished through the inherent pressure of the situation’; the parties and legal representatives are aware a contest in court is the only alternative if a dispute resolution conference fails to achieve outcomes. Noting the current limited use of conferencing mechanisms for child protection matters in Victoria, VALS expressed the view that conferencing mechanisms should be used as a preferred dispute resolution method at an early intervention stage. In particular, VALS referred to the Aboriginal and Torres Strait Islander Family Decision Making Program (ADFM) as the best model for early intervention alternative dispute resolution and referred to indications that, despite support for the use and expansion of ADFM, in practice it is not being utilised for child protection matters in Victoria. In VALS’ view, ‘all parents, children, families and communities coming into contact with Victoria’s child protection system’ could benefit from elements of the ADFM approach.[108]

23.84 The Office of the Child Safety Commissioner (Victoria) (OCSC) was of the view that ADR needs to be conducted as early as possible in the child protection process to avoid attempts to impose collaboration on parties after oppositional positions have become entrenched. In the OCSC’s view, ADR mechanisms need to be ‘embedded as part of a standard routine practice that replaces an adversarial approach, rather than being an adjunct to it’. Elevating the status of ADR by requiring outcomes to be implemented, unless they are impractical or inconsistent with the legislation, would ensure that all parties are motivated to communicate and collaborate to develop a workable agreement.[109]

23.85 AFVPLS Victoria, however, was concerned that ADR is being positioned as a mandatory process in child protection cases before the Victorian Children’s Court. AFVPLS Victoria commented that similar risks exist in Children’s Court ADR as in FDR in the family law jurisdiction, and noted that the ADFM process is not appropriate for all situations, particularly where there is entrenched family conflict that may involve violence.[110]

23.86 The Magistrates’ Court and the Children’s Court of Victoria emphasised the importance of providing a range of appropriate ways to resolve child protection matters before a court. Like AFVPLS Victoria, however, the Courts expressed concern about the use of ADR where family violence is an issue.[111]

Legislative provisions and other guidelines to address family violence concerns

23.87 The Deputy Chief Magistrate of South Australia commented that if conferencing is conducted with appropriate protective protocols and victim support and by qualified individuals who are aware of family violence dynamics, it has the potential to provide the only safe venue for a family violence victim to confront the offender.[112] A number of other stakeholders considered that legislative or other reforms were required to ensure that ADR mechanisms in child protection address family violence risks appropriately.[113]

23.88 The Magistrates’ Court and the Children’s Court of Victoria considered that legislation setting out broad principles in relation to family violence, and more specific guidelines, protocols or practice directions to support ADR processes were likely to be required. The Courts pointed out that any dispute resolution measures should observe the premise that family violence cannot be ‘negotiated’. The Courts noted that in many cases ADR may not be appropriate, and where ADR is appropriate, significant safeguards may be required.[114]

23.89 AFVPLS Victoria argued that family violence exemptions, like those applying to FDR in the Family Law Act, should apply to ADR in the child protection jurisdiction. Legislative provisions should ensure safety as the priority, and safeguards such as appropriate screening for ‘family violence, safety and duress’ must be ensured.[115] Another stakeholder commented that the high likelihood that child protection cases also involve other forms of family violence must be recognised, and that very clear minimum standards and safeguards are needed, combined with monitoring and evaluation.[116]

23.90 The Department of Human Services (NSW) submitted that ‘the presence of family violence should not automatically exclude the use of ADR’. It suggested that measures, such as providing support persons or advocates for family violence victims or arranging for perpetrators to participate by letter, conference call or spokesperson, could allow families experiencing family violence to gain some of the benefits of ADR, such as personal empowerment and mobilisation of a range of supports. The Department also supported the implementation of comprehensive family violence screening mechanisms and proposed that the following screening criteria be incorporated in either legislation or guidelines:

  • ADR should not be used where it would compromise the safety, welfare and well-being of the child or any other person [who] is a party to ADR (for example the child’s primary carer);

  • In the event that there are allegations of violence between participants, participants will not be required to attend an ADR process. Where an ADR process is attended, those allegations must be addressed to the satisfaction of the participants, the agency conducting the mediation and the mediator;

  • Parties have legal capacity and competency to participate; and

  • Carers and designated agencies with case management should be able to participate (regardless of whether or not they were parties to the original care proceedings).[117]

Culturally-appropriate ADR

23.91 Ensuring that ADR is culturally appropriate was emphasised by a number of stakeholders. VALS advocated for more holistic, community-based and culturally-appropriate dispute resolution for Indigenous children. It noted the value of involving respected local people of authority or elders in resolving disputes. Flexibility was also considered important, to deal with a range of issues, to accommodate family structures and groups of people who wish to be involved in the problem solving process, and so that the dispute resolution process can adapt when unanticipated cultural issues arise.

23.92 VALS referred to the ADFM program at Rumbalara Aboriginal Co-operative as an example of a decision-making forum for child protection that resolves issues from a whole-of-community perspective, in the spirit of self-determination and with collaboration as a key factor. This program involves Indigenous families and elders, community-based health and welfare organisations, the Victorian Department of Human Services, and generalist and specialist support services as participants in the resolution of child protection matters.[118]

23.93 AFVPLS Victoria also commented on the need for culturally-appropriate processes to ensure better outcomes. AFVPLS Victoria noted that ‘experiences of racism, discrimination and oppression within and by the legal system have resulted in ongoing access barriers and mistrust by [Aboriginal and Torres Strait Islander] people’, hence, legislation should ensure all ADR with respect to Indigenous children is culturally appropriate.[119]

23.94 Legal Aid NSW advised that it has been funded to trial a mediation pilot, with matters referred from Bidura Children’s Court. Taking into account the demographic of children and families appearing before the Bidura Children’s Court, ADR practitioners selected to take part in the trial include practitioners who identify as Indigenous, as well as those from an Asian background. The parties will be legally represented; legal representatives will identify the issues in dispute and the factors potentially affecting a party’s ability to participate.[120]

23.95 Legal Aid NSW also advised the Commissions that the Care Circle Pilot, operating at the Nowra Children’s Court since 2009, features ‘care circle’ panels with members who are recognised within their community and are able to provide community and cultural knowledge. It is their role to ensure that there is a strong focus on the child’s needs—including the need to be linked to their family, community and culture. They provide information on extended family and kinship networks, advice about support services, where the child should live and contact between the child and their family.[121]

Participation of children in ADR processes

23.96 A number of submissions commented on the importance of facilitating consultation with, or participation of, children in ADR processes. For example, VALS expressed concern about the marginalisation and de-legitimisation of children’s voices in ADR processes based on an arbitrary age.[122]

23.97 Family Relationship Services Australia (FRSA) noted that experts in the child protection field have called for increased consultation with children and young people when decisions are being made that affect them. FRSA commented that:

Children and young people are well placed to inform decision-makers about the likely impact of different alternatives on their safety and wellbeing as well as to participate in the identification of arrangements that allow them to maintain meaningful relationships with parents even when they are in out-of-home or kinship care.[123]

23.98 Some FRSA member organisations already provide FDR for some child protection authorities, and there is growing interest in applying FDR to child protection matters across Australian jurisdictions. In FRSA’s view, there is potential to develop a more substantial role for FDR in child protection matters. FDR can be used to resolve a dispute or to assist decision making involving a number of participants. In particular, FRSA referred to the use of child inclusive practice in FDR to facilitate supportive and developmentally appropriate consultation with children while avoiding or removing the burden of decision making from children.[124]

23.99 Legal Aid NSW told the Commissions that in the Nowra Care Circle Pilot, children have their own legal representative in all matters; children can participate ‘if they are old enough to understand or want to participate and the magistrate approves this’.[125]

23.100 As noted above, the Department of Human Services (NSW) advocated that legislation or guidelines should provide for the participation of parties on the basis that they have ‘legal capacity and competency to participate’.

Properly funded and developed pilots

23.101 Stakeholders supported government-funded pilots to develop ADR mechanisms in order to improve communication and collaboration in the child protection system.[126]

23.102 National Legal Aid suggested that Commonwealth, state and territory funding is required for the trial and evaluation of appropriate pilot programs. As an example, National Legal Aid referred to improvement in communication and collaboration between key stakeholders since the commencement of a state-funded Legal Aid (WA) pilot child dispute resolution program involving lawyer-assisted meetings for pregnant women in the care of the West Australian Department of Child Protection or who already have a child or children in the care of the Department.[127]

23.103 Another stakeholder pointed to the importance of properly funded and developed pilots in the NSW Children’s Courts as a good way to begin increasing inter-professional collaboration between lawyers and those trained in social sciences and ensuring that specific mechanisms are put in place for children and parents to be heard in ADR processes.[128]

Commissions’ views

23.104 The Commissions’ view is that ADR in child protection may offer important benefits for children and their families. The Commissions also note, however, that, as with FDR in family law matters, ADR in child protection matters involves a number of challenges in the context of family violence. These include: dealing with relationships of power; protection from violence, abuse and intimidation; and ensuring that all voices are heard, including those of children. Some concerns may be addressed through training of ADR practitioners and ensuring best practice in ways similar to those discussed in Chapter 21 in the context of FDR. Others need additional measures, supported by legislation and policy.

23.105 As noted above, the Commissions support the view—expressed in the NSWLRC report on Community Justice Centres—that ADR negotiations concerning violence will always be inappropriate.[129] The Commissions are also of the view that, where family violence is a factor, ADR for issues other than violence may be appropriate, depending on the circumstances, and appropriate risk assessment and risk management. ADR may have significant benefits for children in cases involving family violence, if it is conducted by an experienced practitioner with appropriate safeguards. As the Commissions have previously discussed, ADR may offer opportunities for children and their families to repair important relationships and open channels of communication. ADR also provides a forum for communication and collaboration between various agencies and individuals involved in making decisions in child protection matters. This can facilitate more effective support for children, as well as members of their families, who have experienced family violence. The Commissions consider, however, that state and territory legislation and policies for ADR in child protection matters should make clear that violence cannot be negotiated or mediated.

23.106 Family violence concerns can arise in child protection ADR, as in FDR in the family law jurisdiction. The Commissions are of the view that, if family violence concerns render FDR inappropriate for particular parties, it is likely that ADR in any child protection proceedings involving the same parties will also be inappropriate. The Commissions agree with stakeholders that legislative provisions, guidelines and policies, should ensure that ADR mechanisms in child protection address family violence risks appropriately. In the Commissions’ view, the FDR legislative and policy framework for family law matters and state and territory ADR legislative and policy frameworks for child protection matters should operate consistently to screen and assess risks relating to family violence.

23.107 As noted above and discussed in Chapter 21, the use of FDR in family law disputes is subject to a comprehensive legislative and policy framework requiring family violence screening and risk assessment,[130] supporting tools used by FDR practitioners to screen, assess risk and determine suitability of matters for FDR.[131] In order to promote consistency in understanding, identifying and responding to family violence in dispute resolution processes across the family law and child protection systems, the Commissions consider that it would be desirable if state and territory governments considered FDR screening and risk assessment frameworks and tools in any future development of family violence screening and risk assessment frameworks for ADR in the child protection sector. As noted in Chapter 18, stakeholders have indicated their view that the Victorian framework for common risk assessment is a good model. The Commissions suggest, in Chapter 18, that other state and territory governments consider the development of frameworks similar to Victoria to assess and manage the risk of family violence in their jurisdictions. The Commissions note that state and territory governments should also consider the application of a common risk assessment framework to ADR in child protection matters.

23.108 The participation of children in ADR processes was referred to by a number of stakeholders. As noted above, concern was expressed about the marginalisation of children in ADR processes on the basis of an arbitrary age. On this issue, the Commissions note that the Convention on the Rights of the Child states that children have a right to express their views and to have those views given due weight in accordance with their age and maturity—in relation to issues concerning them.[132] In the Commissions’ view, practice models such as child inclusive practice in FDR and other initiatives in ADR, such as the Nowra Care Circle Pilot may provide useful models for determining the appropriate level of a child’s direct involvement in ADR processes, depending on the child’s understanding, ability and desire to participate.

23.109 The Commissions also note stakeholder concerns about the participation of unrepresented parents in child protection ADR, and about the lack of support by child protection staff for victim parents, and the impact this may have on ADR outcomes. In Chapter 5, the Commissions refer to stakeholder concerns about practices on the part of child protection agencies which may take a punitive rather than supportive approach to parents who are also victims of family violence. The Commissions agree with stakeholders that legal advisers, in addition to other support persons, can help to address power imbalances between parents and child protection authorities in ADR. This is particularly important where parents are victims of family violence. Lawyers advising parents in child protection ADR can work collaboratively with children’s legal representatives and other professionals in the child protection system to help achieve the best outcomes for children and their families. Lawyers can also play a valuable role in helping families understand and navigate their way through the multiple legal systems and ADR processes in cases involving intersecting child protection, parenting and family violence issues.

23.110 In this Report, the Commissions recommend that Australian, state and territory governments prioritise the provision of, and access to, legal services and culturally-appropriate victim support services for victims of family violence.[133] These recommendations include enhanced support for victims in high risk and vulnerable groups. The Commissions reiterate the view expressed in Chapter 5 that practical measures are required to bring about cultural change in the way child protection workers deal with family violence—including family violence training and changes in policies, practices and procedures. Policies and guidelines should make clear that parents are entitled to seek legal advice and other support in relation to their participation in ADR, particularly where family violence is involved. Family violence training for staff participating in ADR on behalf of child protection authorities and for ADR practitioners should highlight the need for parents, as well as children, who are victims of family violence to have access to appropriate support and assistance. Such an approach has particular significance for Indigenous people because of the high levels of involvement of child protection agencies with Indigenous children, the high levels of violence in some Indigenous communities, and the significant levels of distrust of child protection agencies by Indigenous people.[134]

23.111 The Commissions note stakeholder comments about the need for culturally-appropriate dispute resolution for Indigenous children. Some of the ADR programs and initiatives referred to by stakeholders demonstrate the potential for ADR procedures and outcomes to reflect the needs and interests of particular children, their families and their cultures. In Chapter 21, the Commissions discuss the value of culturally responsive dispute resolution processes which have the flexibility to accommodate—in so far as is appropriate, practicable and within the limits of the law—the cultural, religious and social values and practices of Indigenous and CALD communities.[135] The Commissions are of the view that, in child protection matters, agreements made in culturally responsive dispute resolution may be particularly beneficial for Indigenous and CALD children because they may be more sustainable and, therefore, more effective. Culturally responsive ADR is also valuable because it facilitates children’s rights, as set out in the Convention on the Rights of the Child and child protection legislation, to enjoy their culture.[136]

23.112 As discussed in Chapter 21 in relation to culturally responsive FDR, however, the complexity of identifying and assessing family violence in Indigenous and CALD communities requires careful consideration in developing effective screening and assessment tools and appropriate referral protocols. The Commissions consider, therefore, that state and territory governments should take a comprehensive and strategic approach to support culturally responsive alternative dispute resolution processes—including screening and risk assessment processes—in child protection matters.

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.

[81] The Magellan project is considered below and in Ch 19.

[82] In NSW the Wood Inquiry was ‘of the strong view that ADR should be used before and during care proceedings’: J Wood, Report of the Special Commission of Inquiry into Child Protection Services in NSW (2008), 489.

[83] Ibid, 489.

[84] R Sheehan, ‘Alternative Dispute Resolution in Child Protection Matters: The Victorian Experience’ (2006) 59 Australian Social Work 157, 169.

[85] Australian Law Reform Commission and Human Rights and Equal Opportunity Commission, Seen and Heard: Priority for Children in the Legal Process, Report 84 (1997).

[86] Now the Australian Human Rights Commission.

[87] The report recommended further research into effective conferencing practices, and the setting down of procedures in child protection legislation based on this research. These recommendations have not yet been implemented.

[88] R Sheehan, ‘Alternative Dispute Resolution in Child Protection Matters: The Victorian Experience’ (2006) 59 Australian Social Work 157; Strategic Partners, Family Services Branch Child Inclusive Practice in Family and Child Counselling and Family and Child Mediation (1998), prepared for the Department of Family and Community Services.

[89] N Thoennes, ‘What We Know: Findings from Dependency Mediation’ (2009) 47 Family Court Review 1, 31–32.

[90] Ibid, 32–33; R Sheehan, ‘Alternative Dispute Resolution in Child Protection Matters: The Victorian Experience’ (2006) 59 Australian Social Work 157.

[91] N Thoennes, ‘What We Know: Findings from Dependency Mediation’ (2009) 47 Family Court Review 1; Australian Law Reform Commission and Human Rights and Equal Opportunity Commission, Seen and Heard: Priority for Children in the Legal Process, Report 84 (1997), [17.48].

[92]. J Hatzistergos (New South Wales Attorney General), ‘Nowra Elders to Help Aboriginal Children at Risk’ (Press Release, 22 September 2010). Such Care Circles can be convened by consent where the Children’s Court has already determined a child or young person to be in need of care and protection: J Wood, Report of the Special Commission of Inquiry into Child Protection Services in NSW (2008), 479–80.

[93] Aboriginal Child Sexual Assault Taskforce (NSW), Breaking the Silence: Creating the Future. Addressing Child Sexual Assault in Aboriginal communities in NSW (2006).

[94] T Brown and R Alexander, Child Abuse and Family Law: Understanding the Issues Facing Human Service and Legal Professionals (2007), 128.

[95] Consultation Paper, Question 11–5.

[96] Consultation Paper, Question 11–6.

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

[98] In their submission, the AFVPLS Victoria cited an example where an Aboriginal lawyer was excluded from the ADFM process: Ibid.

[99] Legal Aid NSW advised the Commissions that the parties in the Bidura Children’s Court pilot will be legally represented: Legal Aid New South Wales, Correspondence, 10 September 2010. See further discussion about the Bidura Children’s Court pilot below.

[100] Law Society of New South Wales, Submission FV 205, 30 June 2010.

[101] National Legal Aid, Submission FV 232, 15 July 2010, referring to the views of Legal Aid Commission of Tasmania.

[102] This is the ACT Department of Disability, Housing and Community Services.

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

[104] National Abuse Free Contact Campaign, Submission FV 196, 26 June 2010; Confidential, Submission FV 184, 25 June 2010; National Council of Single Mothers and their Children Inc, Submission FV 144, 24 June 2010. Professor Julie Stubbs made a similar comment in response to Proposal 10–10 in the Consultation Paper: J Stubbs, Submission FV 186, 25 June 2010.

[105] Berry Street Inc, Submission FV 163, 25 June 2010.

[106] National Abuse Free Contact Campaign, Submission FV 196, 26 June 2010; Confidential, Submission FV 184, 25 June 2010; National Council of Single Mothers and their Children Inc, Submission FV 144, 24 June 2010.

[107] National Legal Aid, Submission FV 232, 15 July 2010, referring to the views of Legal Aid Commission of Tasmania.

[108] Victorian Aboriginal Legal Service Co-operative Ltd, Submission FV 179, 25 June 2010.

[109] Office of the Child Safety Commissioner, Submission FV 215, 30 June 2010.

[110] This last point was conveyed to AFVPLS Victoria by that organisations’ Aboriginal child protection lawyer: Aboriginal Family Violence Prevention and Legal Service Victoria, Submission FV 173, 25 June 2010.

[111] Magistrates’ Court and the Children’s Court of Victoria, Submission FV 220, 1 July 2010.

[112] A Cannon, Submission FV 137, 23 June 2010.

[113] National Legal Aid, Submission FV 232, 15 July 2010; Department of Human Services (NSW), Submission FV 181, 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. The Queensland Law Society however, expressing support for the continued use of ADR processes by the Queensland Department of Communities (Child Safety Services) and in Children’s Court matters prior to hearing, was of the view that these processes adequately addressed family violence issues related to child protection concerns: Queensland Law Society, Submission FV 178, 25 June 2010; Justice for Children, Submission FV 177, 25 June 2010; N Ross, Submission FV 129, 21 June 2010.

[114] Magistrates’ Court and the Children’s Court of Victoria, Submission FV 220, 1 July 2010.

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

[116] J Stubbs, Submission FV 186, 25 June 2010.

[117] Department of Human Services (NSW), Submission FV 181, 25 June 2010.

[118] Victorian Aboriginal Legal Service Co-operative Ltd, Submission FV 179, 25 June 2010.

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

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

[121] Ibid.

[122] Victorian Aboriginal Legal Service Co-operative Ltd, Submission FV 179, 25 June 2010.

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

[124] Ibid.

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

[126] Legal Aid New South Wales told the Commissions about pilots in culturally responsive ADR—the Nowra Care Circle pilot and the Bidura Children’s Court external court-referred mediation pilot are discussed above.

[127] National Legal Aid, Submission FV 232, 15 July 2010. The program referred to is the Signs of Safety child dispute resolution program, commenced in late 2009, in conjunction with the Perth’s Children’s Court, the West Australian Department for Child Protection, and the King Edward Memorial Hospital for Women. The program covers a combination of pre-court application meetings and matters referred to post-court application pre-hearing conferences. National Legal Aid also referred to a similar program underway in Victoria in which the Victoria Legal Aid Commission is collaborating with the Victorian Department of Human Services and Department of Justice and the Victorian Children’s Court.

[128] N Ross, Submission FV 129, 21 June 2010.

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

[130] For further discussion on this, see Ch 21.

[131] As noted above, the Australian Government has published the Framework for Screening, Assessment and Referrals in Family Relationship Centres and the Family Relationship Advice Line; the Victorian Government has also developed a comprehensive screening and risk assessment framework. The Australian Government Attorney-General’s Department is also currently developing a national framework to support screening and assessment for family violence across the federal family law system.

[132]Convention on the Rights of the Child, 20 November 1989, [1991] ATS 4, (entered into force generally on 2 September 1990), art 12(1). See Ch 2.

[133] See Ch 29, Recs 29–3 and 29–4.

[134] See Chs 19 and 20.

[135] See Ch 21 for further discussion of culturally responsive dispute resolution processes.

[136]Convention on the Rights of the Child, 20 November 1989, [1991] ATS 4, (entered into force generally on 2 September 1990) art 30. See also, for example, Children and Young Persons (Care and Protection) Act 1998 (NSW) s 9; Children, Youth and Families Act 2005 (Vic) s 10.