Introduction

23.1 This chapter examines the use of alternative dispute resolution (ADR) processes in family violence, family law and child protection matters, and the potential for inconsistencies in practices and outcomes as well as the potential for seamless and effective resolution of issues that intersect across jurisdictions.

23.2 In Chapter 21, the Commissions consider potential benefits and concerns relating to the use of (family dispute resolution) FDR^[1] in cases involving family violence. One of the difficulties associated with the use of FDR in this context is that of ensuring that victims are not attempting or participating in FDR inappropriately. In this chapter, the Commissions consider the role of family violence protection orders in assisting FDR practitioners to identify family violence, and to manage family violence risks appropriately and effectively as they undertake FDR processes. The Commissions also consider possible inconsistencies between family violence protection order conditions and the arrangements made for, or the requirements under, the Family Law Act 1975 (Cth)to attend, FDR.

23.3 The use of ADR in relation to protection order applications generally raises concerns about the exposure of victims to danger, and the potential for unfair or unsafe agreements to be made. The dynamics that typically characterise family violence raise particular concerns about the safety of victims participating in ADR processes with those who have committed family violence, and the appropriateness and efficacy of ADR processes in this context. In Chapter 21, the Commissions discuss the legislative and policy framework regulating the use of FDR in cases involving family violence. In this chapter, the Commissions consider the need for consistency between approaches to the use of ADR in matters arising under family violence legislation and to the use of FDR in family law matters involving family violence.

23.4 The use of ADR in child protection matters involving family violence also raises a number of concerns similar to those relating to the use of FDR in family law cases involving family violence. The risk of compromising the safety of children, as well as parents who are victims of family violence where risks of family violence are unidentified, inadequately assessed or inappropriately managed, are significant concerns. Nevertheless, the potential benefits of using ADR in child protection matters involving family violence are also significant. For example, ADR processes may be faster and more cost-effective than court processes. In addition, the potential of ADR to offer more flexible and culturally responsive procedures means that outcomes may be more effective and sustainable.

23.5 In this chapter, the Commissions consider whether there is a need for legislative or other reforms to ensure that ADR mechanisms in child protection matters address family violence appropriately. The Commissions also consider the disconnection between the family law and the child protection systems and the need for consistency in practices and outcomes across jurisdictions to ensure the protection of women and children. The potential for collaboration between professionals across socio-legal service systems and for resolution of complex and intersecting family law and child protection issues within the same, integrated, ADR process is significant, and may lead to important benefits for children and their families in cases involving family violence. The Commissions consider that there would be value in exploring ADR models that can overcome jurisdictional divides to offer seamless and effective responses to family violence.

23.6 Finally, this chapter briefly considers the application of restorative justice practices in the context of family violence and in relation to sexual assault offences.