Family dispute resolution and family violence

Family dispute resolution (FDR) is defined broadly in s 10F of the Family Law Act 1975 (Cth) as any non-judicial process where an independent FDR practitioner helps people affected, or likely to be affected, by separation or divorce, to resolve some or all of their disputes with each other.

Broadly speaking, the current legislative framework encourages or requires the use of FDR before court action and supports referral to FDR after an application to the court has been made, while providing exceptions in cases of family violence and child abuse. Information gained during the FDR process is in general confidential and inadmissible in subsequent court proceedings, although there are exceptions relevant to child abuse and family violence.

Appropriateness of FDR in cases of family violence

While there are a range of views on the appropriateness of FDR in family violence contexts, there appears to be a degree of consensus on certain matters. First, using FDR in cases involving family violence carries particular risks. Secondly, if family violence is to be dealt with in FDR processes, it must be handled by skilled and knowledgeable FDR practitioners using appropriate safeguards. Thirdly, in practice, some cases involving family violence do—and will continue to—proceed to mediation.

With some exceptions, s 60I of the Family Law Act requires that parties with a dispute about children must go to family dispute resolution before they can go to court, and must make a genuine effort to resolve their dispute through FDR. The exceptions to the requirement to attend FDR include where the parties agree and are applying to court only for a consent order. Importantly, they also include cases where violence is an issue, such as where the court is satisfied that there has been, or there is a risk of, child abuse or family violence, or where there are circumstances of urgency.

If the parties do not reach agreement through FDR and do not satisfy one of the exceptions, the federal family courts can only hear parenting cases if the FDR practitioner provides a certificate relating to the parties’ attendance and effort in the FDR process. FDR practitioners may give several different types of certificates under s 60I of the Family Law Act, including a certificate to the effect that the person did not attend FDR because, having regard to the Family Law (Family Dispute Resolution Practitioners) Regulations 2008 (the FDR Regulations), the practitioner considers that ‘it would not be appropriate’ to conduct or continue FDR.

In determining whether a dispute is appropriate for FDR, the FDR practitioner must take into account whether the ability of any party to negotiate freely is affected by a number of factors, all of which are potentially relevant to cases of violence. These include: any history of family violence among the parties; the likely safety of the parties; the equality of bargaining power among the parties; the risk that a child may suffer abuse; the emotional, psychological and physical health of the parties; or any other relevant matter. The FDR Regulations also require that an FDR practitioner must be satisfied of the appropriateness of FDR in each case before providing FDR. An FDR practitioner is also obliged to terminate FDR if the practitioner is no longer satisfied it is appropriate, or is requested to do so by a party.

The framework in s 60I applies only to parenting orders. In relation to applications for financial disputes, the requirements are set out in the Family Law Rules 2004 (Cth). Consistently with s 60I, the Rules include mechanisms for removing obligations to participate in FDR in cases of family violence.

A key element of FDR in practice is the process of screening and risk assessment which is designed to ensure that victims of family violence are not using FDR in inappropriate circumstances, or to identify and mitigate any risk factors where FDR may be appropriate despite such risks. Screening and risk assessment are important for any agency handling family disputes, but it appears that FDR agencies may be taking on this role for many professionals in the family law system, and may be acting as gatekeepers in the family law system.

Family dispute resolution practitioners have also become the gatekeepers to the family courts in children’s cases because of the requirements of s 60I, discussed above. The evaluation of the 2006 reforms of the family system conducted by AIFS showed that 50% of parents, post-2006, reported they had contacted or used a counselling, mediation or dispute resolution service.

Importantly for this Inquiry, the AIFS evaluation indicated that the legislative scheme may not be working well for victims of family violence. One of the problems relates to the way FDR practitioners are being used to issue s 60I certificates. Some lawyers appear to be sending victims of family violence to FDR services as a method of getting a s 60I certificate. While Family Relationship Centres (FRCs) did not provide certificates ‘as a matter of course’, some clients or legal advisers nonetheless saw providing certificates as the primary function of FRCs or believed a certificate should be issued as a default option.

Importantly, the AIFS survey also revealed that clients who clearly fall within the exception to FDR in the family law legislation ‘are not infrequently referred to the FRCs by lawyers (and to a lesser extent by courts)’. AIFS concluded it was likely that the rate of issuing of certificates had increased, and this was ‘in part connected with an absence of triage by lawyers and other professionals’. AIFS noted that this may be linked to the ‘anxiety on the part of lawyers about clients making or being seen to be making deliberately false allegations’.

Three concerns arise from the AIFS study. First, there is evidence that some victims of family violence are being encouraged to participate in FDR processes or obtain s 60I certificates, despite the exceptions for family violence in the Family Law Act. Secondly, there is evidence that FDR practitioners are becoming an entry point for ‘effective triage’ or an insurance policy for victims of family violence. Thirdly, at least some victims of family violence feel that FDR processes fail to identify and manage the risk of family violence effectively.

The first and second issues raise the question of whether reforms are needed to the complex legislative scheme governing FDR in the Family Law Act—in particular, to s 60I—to ensure the appropriate handling of disputes involving violence.

The Commissions are interested in hearing from stakeholders how these provisions could be improved. For example, as the AIFS evaluation suggests, it may be that the exceptions in s 60I for cases of family violence are under-used because it is simpler for lawyers to ‘tick a box’ by submitting a s 60I certificate, rather than performing the more difficult task of screening and evaluating whether the risk of family violence will satisfy the court that the exception can be invoked. In that case, the legislation could be reformed (for example) to make it easier for a lawyer to know when a client can be exempted from the requirement to undergo FDR—for example, the legislation could specify that the exception applies if there is a protection order in place.

It may also be the case that non-legislative reforms are necessary to ensure the legislative scheme operates appropriately. Ideally, all personnel in the family law system should be capable of identifying violence and dealing with it appropriately. The extent of violence in the separating and divorcing population is such that violence is likely to be core business for most professionals in the family law system. Further, any agency or professional could be the first port of call for a party who has been the target of violence, and that agency or professional needs to be able to identify, manage or refer cases appropriately.

In order to achieve this, family lawyers need training on how to identify and manage family violence. Preferably, this training should be conducted in conjunction with FDR practitioners, in order to improve interdisciplinary collaboration. Family lawyers also need adequate support for this role. Family lawyers need clear pathways for referring clients to other services, and a support network for dealing with issues of family violence. Family lawyers also need clear guidance as to when it is appropriate to refer a matter to an FDR practitioner. This could be provided, for example, in the best practice principles for family lawyers developed by the Family Law Council.

The third issue, the inadequacy of at least some FDR processes to manage the risk of family violence, highlights the need to ensure best practice in screening and risk assessment. Much valuable work has already been done in this field, including the development of the Screening and Risk Assessment Framework by the Australian Government Attorney-General’s Department, and the publication by the Victorian Government of a comprehensive screening and risk assessment framework. In the Commissions’ view, these frameworks are valuable resources that should be promoted widely.

The Family Law Council recommended in its 2009 report that screening and risk assessment frameworks, tools and materials be endorsed by an expert panel and reference group. The adoption of these frameworks and tools should be encouraged through appropriate training, inclusion in accreditation processes, and through audits and evaluation.

FDR practitioners and lawyers

The level of cooperation and collaboration between FDR practitioners and lawyers was raised as an issue by both the AIFS evaluation and the 2009 report of the Family Law Council. Research by Professor Helen Rhoades and others in 2008 on inter-professional relationships between FDR practitioners and lawyers demonstrated that, although some practitioners enjoy positive professional contact, many have little collaborative contact with the other profession and there are some significant misunderstandings and tensions between the two groups.^[1]

In its 2009 report, the Family Law Council suggested a number of strategies ‘to develop and enrich inter-disciplinary cooperation and collaboration, particularly between family dispute resolution practitioners and family lawyers’. These recommendations were based on the work conducted by Rhoades and others, and included:

• building opportunities for positive personal contact;

• building understanding of roles and responsibilities;

• providing lawyers and judicial officers with information about funded community based programs;

• considering ways to improve communication and feedback about clients; and

• family violence training for both professions.

The Family Law Council recommended the expansion of Australia-wide family pathways networks to support cooperation and referrals across the family relationship and family law system.

FDR practitioners and lawyers are likely to be required to work together more extensively as FDR develops. Although some lawyers and FDR practitioners have good relationships, there is room to improve relationships between the two sectors. The Commissions support the recommendations of the Family Law Council in this respect. However, the Commissions are interested in hearing if any further strategies are desirable to improve relationships between the sectors.

Interactions between FDR and protection orders

Definition of family violence

The definition of family violence in s 4 of the Family Law Act, and proposals to amend the definition, are discussed in detail in Chapter 4 of the Consultation Paper. The definition is more restrictive than that used in some state or territory family violence legislation, and in practice-based material such as the Screening and Risk Assessment Framework and in the Family Court of Australia’s Family Violence Strategy.

A KPMG evaluation of FDR practices in the legal aid sector found that screening questions tended to focus on physical forms of abuse, and recommended enhanced screening for non-physical forms of violence.^[2]

The Commissions are interested in hearing from stakeholders whether the variations between the legislative definitions and practice-based definitions in FDR have had any practical impact in FDR practices.

Protection orders in FDR processes

Another potential issue is the use of protection orders in FDR processes. The evaluation of FDR practices in the legal aid sector noted that FDR practitioners across all jurisdictions commented that failures to ask about and obtain copies of protection orders could ‘derail the conferencing process’.^[3]

The existence of a protection order indicates that there are likely to be issues of safety involved that need to be addressed, and the conditions of a protection order may provide useful information about the nature of the risks involved. Further, it may be necessary to obtain a copy of a protection order to ensure that FDR practitioners are not making arrangements for FDR that require parties to breach the order. For these reasons the Commissions’ consider that it is necessary to include questions about the existence of protection orders, and to ask for copies of protection orders, as part of the process of identification and risk assessment in family dispute resolution.

The Commissions are interested to hear from stakeholders whether, in practice, protection orders are identified and used in risk assessment and management in family dispute resolution processes and whether any reforms are necessary to improve such identification and use.

Breaches of protection orders by FDR

Another issue that may arise is that the conditions of a protection order may be inconsistent with arrangements made for, or the requirement in s 60I of the Family Law Act to attend, family dispute resolution. A protection order often will prohibit a person from directly or indirectly contacting or approaching another person. FDR processes conducted in the presence of both parties could, therefore, breach a protection order. Most commonly, this issue is dealt with in the application forms for protection orders, which include an exception to prohibitions on contacting the protected person for the purposes of FDR processes.

The Commissions’ preliminary view is that protection order application forms should include the option of an exception allowing contact in the case of FDR processes. There is merit in making this a separate option that can be selected by the applicant, as is done in the ACT, rather than automatically including it within the general prohibition on contact. This gives the applicants (and the court) the opportunity to consider the desirability of contact for the purposes of FDR processes. However, there may be practical advantages in an automatic exception, because family law proceedings may not be contemplated at the time a protection order is obtained. The Commissions are interested in hearing stakeholder views on this issue.

This exception should apply to participation in FDR processes as ordered or directed by the Family Court, or provided under the Family Law Act. This would cover the use of FDR to comply with s 60I of the Family Law Act. The exception should not apply to informal attempts to mediate by family or community members, as these do not necessarily include appropriate safeguards for addressing family violence, and may leave victims vulnerable to pressures to mediate.

ADR in family violence legislation

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. The key exception is in the ACT, where a registrar may refer a protection order proceeding to mediation.^[4] The Explanatory Statement for the relevant bill explains ‘the importance of alternative dispute mechanisms in preventing further violence by facilitating discussions between the parties to an order’.^[5] The ACT Magistrates Court also has express power under s 89 of the Domestic Violence and Protection Orders Act 2008 (ACT) to order the respondent or an aggrieved person to take part in (among other things) mediation.

In NSW, there is legislative power to refer matters to mediation only in relation to Apprehended Personal Violence Orders (APVOs),^[6] but not in relation to Apprehended Domestic Violence Orders (ADVOs). This reflects the recommendations of the NSWLRC in its 2003 report on Apprehended Violence Orders, in which it expressed the view that ‘the fear and imbalance of power typically characterising domestic violence makes mediation in ADVO matters unsuitable, unproductive and unsafe’.^[7]

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 of, or allegations of, personal violence, or conduct amounting to serious harassment,^[8] and this view is reflected in the legislation.^[9]

The Commissions endorse the concerns expressed by the NSWLRC about the use of alternative dispute resolution where family violence is a factor. Only the ACT specifically mandates referral of matters to mediation in protection order proceedings involving family violence. However, the Commissions are not aware of how frequently this provision is used or whether in other jurisdictions ADR mechanisms are used in relation to similar proceedings. The Commissions are also not aware whether the policies of ADR practitioners prevent the use of ADR in protection order proceedings involving family violence.

The Commissions are, therefore, interested in hearing from stakeholders whether alternative dispute resolution mechanisms are used in relation to protection order proceedings under family violence legislation and, if so, whether reforms are necessary to ensure that they are used only in appropriate circumstances.