Women’s Legal Service Inc © 2007 Family Dispute Resolution and Victims of Violence: Preparing Clients to Participate Effectively Angela Lynch CLE Worker, WLS Brisbane and Rachael Field Faculty of Law QUT

Women’s Legal Service Inc © 2007 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)

Women’s Legal Service Inc © 2007 Family Law Amendment (Shared Parental Responsibility) Act 2006 Major Changes to Family Law Act introduced on 1 st July Start of compulsory mediation on 1 st July 2007.

Women’s Legal Service Inc © 2007 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.

Women’s Legal Service Inc © 2007 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.

Women’s Legal Service Inc © 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.

Women’s Legal Service Inc © 2007 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).

Women’s Legal Service Inc © 2007 Safety loses out The precedence of these provisions in decision- making turns people’s focus away from domestic violence and abuse. This threatens women and children’s safety. Especially at the critical separation stage.

Women’s Legal Service Inc © 2007 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.

Women’s Legal Service Inc © 2007 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.

Women’s Legal Service Inc © 2007 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 is the 1 st 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.

Women’s Legal Service Inc © 2007 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.)

Women’s Legal Service Inc © 2007 Cont 10 th 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 24 th June 2003.

Women’s Legal Service Inc © 2007 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”.

Women’s Legal Service Inc © 2007 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).

Women’s Legal Service Inc © 2007 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 “pro- contact 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.

Women’s Legal Service Inc © 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.

Women’s Legal Service Inc © 2007 Flawed consultation process Not enough time for proper consultation - 6 months from referral to publication of report 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.

Women’s Legal Service Inc © 2007 No appreciation of the extent of violence/abuse in the family law system 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.

Women’s Legal Service Inc © 2007 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.

Women’s Legal Service Inc © 2007 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.

Women’s Legal Service Inc © 2007 Dv will be in a high proportion of FRC’s client base 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.

Women’s Legal Service Inc © 2007 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.

Women’s Legal Service Inc © 2007 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.

Women’s Legal Service Inc © 2007 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.

Women’s Legal Service Inc © 2007 Shared Parenting where there is dv is dangerous 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.

Women’s Legal Service Inc © 2007 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.

Women’s Legal Service Inc © 2007 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.

Women’s Legal Service Inc © 2007 Mediation on children’s issues Family Dispute Resolution and Victims of Violence: Preparing Clients to Participate Effectively

Women’s Legal Service Inc © 2007 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”.

Women’s Legal Service Inc © 2007 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.

Women’s Legal Service Inc © 2007 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.

Women’s Legal Service Inc © 2007 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.

Women’s Legal Service Inc © 2007 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.

Women’s Legal Service Inc © 2007 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.

Women’s Legal Service Inc © 2007 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.

Women’s Legal Service Inc © 2007 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.

Women’s Legal Service Inc © 2007 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.

Women’s Legal Service Inc © 2007 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.

Women’s Legal Service Inc © 2007 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.

Women’s Legal Service Inc © 2007 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.

Women’s Legal Service Inc © 2007 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.

Women’s Legal Service Inc © 2007 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.

Women’s Legal Service Inc © 2007 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.

Women’s Legal Service Inc © 2007 Providing Mediation Preparation Understanding the mediation process. Philosophy of the process. Steps in the process. Responsibilities of parties in the process. The role of the mediator in the process.

Women’s Legal Service Inc © 2007 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.

Women’s Legal Service Inc © 2007 Mediation Process 1. Mediator makes an opening statement: –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.

Women’s Legal Service Inc © 2007 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.

Women’s Legal Service Inc © 2007 Mediation Process 3. Identifying issues and setting an agenda –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.

Women’s Legal Service Inc © 2007 Mediation Process 4. 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.

Women’s Legal Service Inc © 2007 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.

Women’s Legal Service Inc © 2007 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.

Women’s Legal Service Inc © 2007 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.

Women’s Legal Service Inc © 2007 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.

Women’s Legal Service Inc © 2007 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.

Women’s Legal Service Inc © 2007 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?”

Women’s Legal Service Inc © 2007 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 …”

Women’s Legal Service Inc © 2007 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 …

Women’s Legal Service Inc © 2007 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.

Women’s Legal Service Inc © 2007 Important to Preparing Clients for Effective Participation Training in knowledge re mediation and dispute resolution skills. Working against gender-neutral or perpetrator- focussed perspectives on domestic/family violence and mediation.

Women’s Legal Service Inc © 2007 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.