Transcript Women’s Legal Service

Family Dispute Resolution and
Victims of Violence:
Preparing Clients to Participate
Effectively
Angela Lynch
CLE Worker, WLS Brisbane
[email protected]
and
Rachael Field
Faculty of Law QUT
[email protected]
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Agenda
How well have the 2006 amendments
take into account domestic violence in practice?–
a WLS perspective. (Angela)
Mediation and DV – preparing women
to mediate effectively, a feminist
perspective. (Rachael)
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Family Law Amendment (Shared Parental
Responsibility) Act 2006
• Major Changes to Family Law Act introduced on
1st July 2006.
• Start of compulsory mediation on 1st July 2007.
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New Objects Clause
• Section 60 (B)
• (a) ensuring children have a meaningful relationship with
both parents to the extent possible, consistent with BIC;
• (b) protecting children from physical/ psychological harm,
abuse, neglect or family violence;
• (c) ensuring children have adequate and proper
parenting
• (d) ensuring parents fulfill their duties/ responsibilities
towards children.
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Principles underlying the objects
• (a) children have the right to know and be cared
for by both parents;
• (b) children have a right to spend time on a
regular basis with both parents and other
significant people;
• (c) parents jointly share duties and
responsibilities towards children;
• (d) parents should agree about future parenting;
• (e) children have a right to enjoy their culture.
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2 mutually exclusive aims
• Section 60 CC – Best interest of the child
• Primary Considerations – (a) the benefit to the
child of having a meaningful relationship with
both parents;
• (b) the need to protect the child from
psychological harm, abuse, neglect or family
violence.
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Where did these changes come from and how
well did they take into account domestic
violence?
• WLS would argue although an attempt was
made to create a legislative pathway for
domestic violence through the Family Law Act this has failed so far and not worked in practice.
• The shared parenting provisions of the Act have
gained precedence in the community and at all
decision-making levels over provisions dealing
with protection of children. (courts, bureaucracy,
legal culture, mediation services).
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Safety loses out
• The precedence of these provisions in decisionmaking turns people’s focus away from domestic
violence and abuse.
• This threatens women and children’s safety.
Especially at the critical separation stage.
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What was the domestic violence Pathway
envisaged?
• This information has been taken from the government’s own
information sheets on the operation of the new Act
• 1. No mediation and ability to take the matter straight to court –
either by issuing of exemption certificate from a mediation
service and/or apply straight to court for an exemption without
a certificate;
• 2. Section 60 K – court to take prompt action in relation to
allegations of child abuse/ violence;
• 3. That the presumption of shared parenting responsibility
(Section 61DA)would not operate because violence is an
exemption to the presumption operating and therefore the court
would not consider equal time or substantial and significant
time in these circumstances.
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How has such an important issue such as
violence/abuse been lost in practice, once
again?
• To do this we must look to the history of the
recent legislative reform.
• The origin of legislative reform affects outcomes.
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Origins of 2006 Reforms
• Documented long history of father’s rights groups in
Australia arguing for joint custody and the greater use of
mediation after separation. 1986 is the 1st documented
that groups made their presence felt at ALRC inquiry into
the law of contempt asking for “joint custody”, although
outside of terms of reference. 46 of 71 oral submissions
were from father’s rights groups. (Rathus Z (2003)
quoting Graycar “The child Custody Debate in
Australia”.)
• Long history of relentless lobbying of parliamentary
backbenchers about an alleged bias in the family law
system against men.
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Origins continued
• 2002 men’s rights groups incorporated under in one association
called the Shared Parenting Council of Australia (SPCA) – had a
specific father’s rights agenda.
• SPCA federal director (Geoffrey Greene) had strong links with
Liberal party.
• He assisted in the establishment of a backbench committee set up
to influence the PM on family law issues.
• His political links gained the SPCA access to the party room and
Cabinet. Their affiliation with Christian groups allowed access to
parliamentary prayer meetings attended by PM, Deputy PM,
Treasurer and Senators.
• (Information sourced from MC Dunn presentation to the National
Abuse Free Contact Campaign 2004.)
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Cont
• 10th February 2003 – National Strategic Conference on
Fatherhood held at Parliament house. A strong theme
being the ‘crisis of fatherlessness’ and the linking of this
to the call for family law reform and joint custody. Well
attended by politicians, staffers and media ( MC Dunn
2004)
• 4 mths later – PM sets up an inquiry into family law and
child support making a referral to a backbench cttee on
24th June 2003.
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Cont
• PM in making referral talks about the
“importance of children to the greatest extent
possible having the benefit of regular and
meaningful contact with both parents”.
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Complaints by Men’s Groups
• The parliamentary inquiry itself in its report “Every
Picture Tells a Story” explains the reason for its
establishment was “residence and contact issues are
brought to the daily attention of mps by their
constituents.” (These are mainly men).
• The report said “the ‘right to contact’ rhetoric of the pre
2006 Act was not put into practice”. (No reference to any
research to back up this statement. Again it is a claim
made by men’s rights groups).
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Pro-Contact Culture entrenched by 1995
reforms
• In fact the research by Rhoades, Graycar and Harrison (University
of Sydney and Family Court 2000 and 2002) and Dewar and Parker
(Griffith University (1999) said the opposite. The Contact principles
of 1995 reforms had a significant impact on entrenching a “procontact principle” in legal culture and practice and overriding the
violence aims introduced by the 1995 amendments.
• Rhoades et al. research found that the court was more likely than
before the amendments when there was violence to make interim
order for unsupervised contact, use handover arrangements rather
than suspending contact, and make orders for joint residence when
there was high conflict.
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2003 was about giving men more contact
• The Inquiry was not about protecting children/
providing safe outcomes for children or
recognizing the increasing role of the FCT (and
surrounding system) as a child protection court.
• Is it little wonder that these issues are not given
priority in current family law practice.
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Flawed consultation process
• Not enough time for proper consultation - 6 months from
referral to publication of report.
• 1716 submission received. One of the highest number
ever received by a parliamentary inquiry. A lot from
individual men.
• No formal literature review.
• The public hearings were intimidatory – how do issues of
abuse/violence get a proper airing in such an
environment?
• Open hostility to lawyers – they are important players in
the system but views seemed to be openly discounted.
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No appreciation of the extent of
violence/abuse in the family law system
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What do we know about the extent of dv?
1996 Women’s safety survey (ABS) found 23%of women who have been
married or in a defacto rel. had experienced physical violence at some time.
Also, 61% of women who had experienced violence had children in their
care for some time during the rel. and 38% said their children had witnessed
the violence.
(AIC) research into the lethality of dv found that dv involved in 40%
homicides across Australia, 60% of those occur between intimate partners
and ¾ of those involve men killing their female partner.
Separation is a highly dangerous time for women and children escaping dv
(Wallace).
(AIFS 2000) found that 66% of separating couples point to violence as a
cause of marital breakdown, with 1/3 describing the violence as serious.
This figure is confirmed by a limited study by Family Court that found
violence was a factor in 68 of 91 judicially determined cases.
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cont
•
Withdrawal of state child protection agencies when there is a protective
parent– these cases are channelled into the family law system. (Brown
1998, Rendell 1999);
•
A study by Professor Thea Brown from Monash University (1998) concluded
the following-:
That the core business of family court is child abuse cases they use up
most resources and stay in system the longest;
Families involved in family law litigation were not families known to child
protection agencies;
Despite this, the cases involved serious and multiple forms of abuse,
particularly physical and sexual abuse together.
Found that the rate of false allegations of child abuse allegations was about
9%. Marie Hume study (1997) found that the rate of false allegations in
family court was comparable to the rate outside the context of separation.
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Overall conclusion from statistics
• It would seem dv is a significant issue affecting the general
community.
• When there has been a separation – there is an increasing
proportional likelihood of dv being an issue in this group of people.
• When separating couples cannot agree and seek out formal
processes for assistance we would argue there is going to be an
increasing proportional likelihood that the rate of dv will increase in
this population.
• As this group moves through the family law system and continues to
not be able to agree, then the proportional rate of dv will continue to
increase in this population of people.
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Dv will be in a high proportion of FRC’s
client base
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Because of these statistics;
Compulsory;
Promoted by government and wider family law system;
Attractive to both victims and perpetrators;
Victims – because it is free, less scary than court, he/she
may want it, a way to get some help, no other option.
• Perpetrators – remember mediation is promoted by
men’s rights agencies, (why??? As compared to court
processes) no evidence, no accountability, no
investigation of allegations, an issue to be resolved
between the parties, a belief in their ability to control and
manipulate the process, future focussed, private.
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FRC’s don’t have to exclude dv
• Their guidelines require the mediators to take dv
into account to determine whether a person can
negotiate freely in a dispute.
• Our client experience is that FRC’s are regularly
mediating dv.
• Concern about giving the exclusion certificate
(lasts for 2 years) and limiting options of the
client.
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Shared Parenting and domestic violence
Previous research showed it worked in families with the following
characteristics-:
• Ease of communication and cooperation between parents;
• Mutual positive regard for each other;
• Similar attitudes and values;
• High level of communication skills and ability to implement complex
arrangements;
• Flexibility;
• Close geographical proximity;
• No history of litigation;
• Genuine child-focused approach.
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Recent and rapid shift from this way of
thinking
• Okay for children to have week about arrangements –
even when families don’t have these previous
characteristics.
• Okay for very young children to be away from their
principal care-giver for longer periods, dealing with
constant changeovers/ change environments.
• Okay for shared parenting to be put into place when
there has been domestic violence – (maybe) as long as
the changeovers take place at school/ daycare.
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Shared Parenting where there is dv is
dangerous
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Increasing the risk/ opportunity for physical, psychological/ emotional abuse
of women and children;
Will it increase the amount of time children spend with an erratic, aggressive
or moody parent?
No appropriate recognition of the role of the primary care-giver and
importance of issues of attachment, bonding and stability;
Anxiety/ effect/ ability to cope for children traversing different physical but
also emotional spaces;
Are the differences between the home environments so great and the
constant change make it difficult for children to cope?. For example, big
differences in discipline, religion, schooling, homework, friends, lifestyle
approaches?
Complexity of arrangement – increased pressure and anxiety on children?
Children coerced implicitly or explicitly to accept or take on responsibility of
adopting arrangement because it is “fair” to the parents.
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BIC are still paramount consideration
• The need to protect the child from physical or
psychological harm or being exposed to abuse,
neglect or violence is a primary consideration in
working out BIC.
• The tools exist within the FLA to give priority to
women and children’s safety in FRC’s policies –
this would be consistent with the Act.
• Important for CLC’s to get involved in local
reference groups for FRC’s.
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Family Dispute Resolution
• “a process (other than a judicial process):
• (a) in which a family dispute resolution
practitioner helps people affected, or likely to be
affected, by separation or divorce to resolve
some or all of their disputes with each other; and
• (b) in which the practitioner is independent of all
the parties involved in the process.” (FLA s.10F)
• To be required pre-filing. (s.60I)
• Helping and non-adjudicative.
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Mediation on children’s issues
• Family Dispute Resolution and
Victims of Violence:
• Preparing Clients to Participate
Effectively
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Who is a family dispute resolution
practitioner?
• Registered practitioners.
• Who are covered by the Family Law Act and
regulations in terms of their role, obligations and
responsibilities.
• They can issue the attendance and participation
certificate.
• It’s important that clients know to ensure that the
practitioner is an “frdp”.
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Mediation as the key FDR Process
• Mediation is one form of family dispute
resolution.
• Many different models.
• Can be described as
– “intervention into a dispute or negotiation by an acceptable,
impartial and neutral third-party who has no authoritative
decision-making power to assist disputing parties in voluntarily
reaching their own mutually acceptable settlement of issues in
dispute.” (Moore)
• Consensus bargaining.
• Party control.
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Is Participation in Mediation Mandatory?
• Mediation is mandatory in family law matters involving
children from July this year.
• Without the certificate of attendance and “genuine effort”
a party will not be able to start court proceedings.
• Mediation is not necessary if a client can establish an
exemption – these are based on abuse or risk of abuse;
dv or risk of dv; if the matter is urgent; if it is a breach
matter; or if a person is unable to participate effectively.
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Participation can be required even with
an exemption
• An exemption doesn’t automatically apply –
clients will need to make an application to the
court.
• When considering an exemption application the
court still has to think about whether its
appropriate to make an order to require parties
to go to mediation.
• The court has the power to send parties back to
mediation.
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Applications for Exemption
• Parties applying for exemption have to establish
to the court in writing that they received
information about their options – particularly
options about alternatives to court - from a family
counsellor or fdrp.
• Therefore many clients may have to have
contact with an frdp in order to get this
information – to be able to apply for an
exemption.
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DV and Mediation
Screening
• Intake is an important step in the mediation
process.
• At intake clients have an opportunity to raise a
history of violence in the relationship.
• FDR providers will screen at intake by asking
questions of the two parties.
• It’s important for clients to raise a history of DV
at this stage if they are able.
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Violence and Mediation
• Domestic and family violence are about power, control,
domination, and fear.
• They are gendered forms of violence.
• Victims of domestic violence can face significant practical
and process disadvantages as participants in family
mediation.
• As a result, in the past, mediation was generally rejected
as inappropriate for disputes where domestic violence
had been perpetrated in the relationship.
• The new provisions of the FLA mean that victims of
violence will increasingly be participating in mediation.
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Disadvantages for
Victims of Violence in Mediation:
• Self-determination, party empowerment and party control
are all significantly undermined in relation to a victim’s
participation.
• The party-oriented nature of the process provides
perpetrators with an opportunity to continue to exercise
power and control over their victims.
• In wanting to create a level playing field for all parties,
the mediation process can ignore the realities of power
differences between perpetrators and victims of violence.
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Disadvantages for
Victims of Violence in Mediation:
This is because:
• The dynamic of domestic and family violence is such that
perpetrators are not used to cooperating with their
victims.
• Rather, interactions more usually involve an imposition of
their interests on their victim; and, for example, coercive,
intimidating, monitoring, and threatening behaviours.
• Perpetrators commonly devalue their victims and deny
their own violence.
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Disadvantages for
Victims of Violence in Mediation:
This means that:
• Mediation can offer an environment that allows the
dynamics of a violent relationship to be entrenched away
from public scrutiny.
• Mediation can place victims at grave risk of suffering
injustice in terms of the process itself and its outcomes.
• Many victims of violence need access to mediation,
however.
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Mediation: Some additional issues
• The non-binding nature of mediation agreements:
– Mediated agreements are not court orders.
– Mediated agreements cannot be enforced and
proceedings for breach can’t be brought.
– Mediated agreements can only be made legally
enforceable through the court.
– BUT mediated agreements may amount to a
parenting plan – which may be difficult to change
later, and also are able to modify the terms of existing
orders.
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Mediation: Some additional issues
• Confidentiality:
• Mediation is usually promoted as a confidential process
ie things said in mediation can’t be used in court at a
later time.
• FDR processes conducted by frdps will be covered by
the confidentiality provisions in the Family Law Act.
• But there are exceptions – eg in relation to admissions of
abuse.
• Also an frdp may otherwise be required by law to
disclose information from the mediation or may decide to
disclose eg to an independent child lawyer.
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Some Positive Perspectives on Mediation
• It might be the safest alternative – for example,
compared with a non-facilitated environment or
trying to self-represent in court?
• Is an environment that values emotions and
story-telling – can give women a voice, allow
them to feel/be heard.
• Has the potential to overcome patriarchal
constructs of formal legal processes.
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Creating an Equitable Mediation Environment
for Victims of Violence:
• 1. A Specific Model of Mediation for Use in Matters
where a History of DV Exists.
Involves lawyers trained as mediation coaches assisting with:
– Pre-mediation preparation.
– In-mediation support and advocacy.
– Post-mediation finalisation of agreement.
• 2. Assisting women to prepare
Assisting clients who are victims of violence:
- Get legal advice.
– Understand the mediation process.
– Develop negotiation and communication skills.
– Develop strategies to counteract disadvantages.
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Are these Models Realistically Relevant?
• Specific model of mediation involving lawyers?
– Some variations are already in existence, for example, Legal Aid
Commission conferencing, but the model is not immediately
relevant to how the Family Relationship Centres will function.
– A reform option?
– Significant potential.
• Providing Mediation Preparation
– Immediately relevant.
– Important role for dv workers and eg community legal centres.
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Providing Mediation Preparation
Understanding the mediation process.
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Philosophy of the process.
Steps in the process.
Responsibilities of parties in the process.
The role of the mediator in the process.
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Mediation Process
• Intake Process
• In RA FRC in Brisbane intake is conducted by
mediators.
• Screening for DV should occur.
• Issue of equal time shared parenting is raised at
this point.
• Mediation process is explained.
• FRC in Brisbane has introduced a mediation
preparation session also.
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Mediation Process
• 1. Mediator makes an opening statement:
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This is to explain the process and the mediator’s role.
Features of mediation.
Independence of mediator.
Judgment about genuine effort.
Parties in control of dispute and outcome.
Mediator controls process.
Setting ground rules.
Critical for clients to know all this information before coming to
the mediation.
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Mediation Process
• 2. Parties’ Statements
– This is to start the negotiation process.
– Story-telling.
– Each party makes a statement about the issues in
dispute and their perspective.
– Mediator summarises each statement and reads it
back to the parties.
– Very important for clients to have prepared their
statement ahead of time, identified what the key
issues are and some options for agreement.
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Mediation Process
• 3. Identifying issues and setting an agenda
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Creating a ‘road-map’ for discussions.
Agenda aims to keep discussions focussed.
Key issues and discussion points are agreed on.
Mediators try to use neutral language, and avoid blame.
Violence should be non-negotiable.
Issues are sometimes prioritised, first item for discussion is
agreed.
– Very important for clients to have identified key issues prior to
the mediation.
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Mediation Process
• 4.
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Clarifying and exploring issues.
Parties discuss the issues on the agenda.
Feelings and perspectives are exchanged.
“Rachael, tell Matthew how it makes you feel when …”
– Options are generated.
– “Matthew, what do you think you could do differently to …”
– Mediators summarise, reframe, repeat, ask questions, ask the
parties to talk directly to each other.
– Important for clients to know what to expect in this stage.
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Key preparation tool for exploration
• To help clients be informed by the ‘shadow of
the law’:
• That is:
– The principles of Part VI.
– The best interests of the child factors.
– The considerations regarding reasonable.
practicability for equal time shared parenting.
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Mediation Process
• 5. Private sessions
– Each party meets privately with the mediator.
– Aim is for the mediator to understand how each party
is feeling about the process and the negotiations.
– Opportunity to develop some options, and reality
check ideas.
– Mediator will challenge entrenched positions and try
to encourage compromise.
– Mediator helps parties to rehearse negotiations.
– Important for clients to be ready to use this stage.
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Mediation Process
• 6. Facilitating negotiations.
– Options for agreement are developed.
– Option for equal time shared parenting will be raised
(again?).
– Options are evaluated, explored and discussed.
– Mediator wants to help achieve a mutually
satisfactory agreement, or maybe just any agreement.
– Again important for clients to be able to base viability
of options on some of the legal principles.
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Mediation Process
• 7. Making an agreement.
– Mediator will write up agreement.
– Sometimes not everything is in the agreement –
partial agreement.
– Parties are congratulated!
– Important for clients to have thought through whether
they want to have a signed agreement or whether
they want to take the draft agreement for further legal
advice.
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Tips for negotiating and communicating in
mediation.
• Clients should identify the violence to the mediator at intake if they
can, or before the mediation, or in the mediation in a private session.
• Suggest to client to raise possibility of a shuttle mediation if you think
that might help.
• Check with the Family Relationships Centre about waiting rooms and
assist client with a safety plan for before and after the mediation.
• Suggest client visits the Centre to know what the mediation rooms
look like.
• Advise client to ensure plenty of time to get there on the day – to have
as many things organised and ordered so they can focus on the
negotiations.
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Tips for negotiating and communicating in
mediation.
• Advise client to take notes on legal advice with her to mediation.
• Assist client in preparing her opening statement ahead of time. Assist
with writing it down. Maybe encourage her to practise reading it.
• Encourage client to think about what the other party will be saying
and wanting.
• Help client to identify what she wants out of the mediation before she
goes in – develop a range of options.
• Help client identify what she is prepared to compromise on.
• Ask client “What you will do if mediation fails. What alternatives do
you have?”
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Tips for negotiating and communicating in
mediation.
• Speak to client re active listening.
• A – attentive body language: leaning forward, eye contact
• C – clarifying questions: “Could you explain that again?” “What
you’re saying is …”
• T – time out: can indicate appreciation of importance, silence is a form
of communication.
• I – inquiries (open-ended): to encourage other party to speak –
“Why do you say that?” “What led you to think that?”
• V – verbal following skills: eg, mmmmmh, really?, I see, aha
• E - empathetic questions: eg “I can understand you feel that way
•
because …”
S – summarising: eg “So your perspective is …”
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Tips for negotiating and communicating
in mediation.
Encourage client to demonstrate active listening:
• Ask for time out, a private session, or for a break when she needs it.
• Use eye contact – particularly with the mediator.
• Speak slowly, firmly and clearly.
• Breathe slowly and deeply.
• Try not to interrupt other in the process, avoid rolling your eyes,
sighing, banging the table, pointing …
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Tips for negotiating and communicating in
mediation.
Also encourage client to:
• Let the mediator know if she is having trouble.
• Reality check what the other party says they want – “But how are you
going to manage to pick up the children at that time?”
• Use language of the best interests of the children.
• If client does not see equal time as practicable - use language re
provisions relating to equal time to make a case against it.
• Expect him to try to upset her and control the process.
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Important to Preparing Clients for
Effective Participation
• Training in knowledge re mediation and dispute
resolution skills.
• Working against gender-neutral or perpetratorfocussed perspectives on domestic/family
violence and mediation.
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Conclusion
• Significant potential exists to help ensure a more
equitable mediation environment for victims of
domestic and family violence through preparing
clients to participate effectively.
• Questions and discussion.
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