Reforming Law on Violence: Implications for Family Dispute Resolution

1. Reforming Law on Violence: Implications for Family Dispute Resolution Professor Hilary Astor Commissioner, NSW Law Reform Commission

2. Terms of Reference • the interaction in practice of state and territory family and domestic violence and child protection laws with the Family Law Act 1975 (Cth) and relevant Commonwealth, state and territory criminal laws • the impact of inconsistent interpretation or application of laws in cases of sexual assault occurring in a family/domestic violence context, including rules of evidence, on victims of such violence What, if any, improvements could be made to relevant legal frameworks to protect the safety of women and their children?

3. Making a submission • Consultation Paper and Summary released end April • Final Report due to A-G 31 July 2010 • Deadline for submissions is June 4th 2010 • WHERE TO FIND the CP and SUMMARY? www.alrc.gov.au • Most ADR issues are in chapter 10 and 11 • HOW TO MAKE A SUBMISSION • Post, fax or email to the ALRC • Online submissions are encouraged – see http://submissions.alrc.gov.au • blog at http://www.alrc.gov.au/blog/fvi

4. Should info about violence be included in s60I certificates? • Proposal 10 – 7 S60I certificates should include information about why FDR was inappropriate or unsuccessful • Q 10 – 12 If s 60I certificates do include information about violence, how should this information be used by Family Courts • As evidence? • For risk assessment? • For case management? • Are s60I certificates the best way to alert the court to violence? • Form 4? • Common risk assessment? (see Chisholm Report Rec.s 2.3,2.4)

5. If s60I operating effectively? NB because of the reference the focus is on relationships between fdrps, Family Court and lawyers • Are fdrps identifying violence consistently and appropriately? • Are lawyers using s60I certificates appropriately? Or are they sending the client to get a s60I certificate instead of using s60I(9)? • Do lawyers understand family violence sufficiently to act as effective screening agents? • If not what should be done to improve their understanding of violence? • Measures proposed to improve collaboration

6. Confidentiality • Do the confidentiality provisions in ss 10D and 10H FLA inappropriately restrict counsellors and FDRPs from releasing information relating to the risks of family violence to courts (Question 10 – 13.) • NB Chisholm Report recommended that consideration be given to relaxing these provisions • 2 alternatives proposed in CP

7. 2 alternatives proposed in CP • ss 10D and H should permit counsellors and fdrps to disclose communications where they reasonably believe that disclosure is necessary to prevent or lessen a serious threat to a person’s life, health or safety.(Proposal 10 – 8) This would ameliorate the present test, which requires a serious and imminent threat to life or health. Safety is added to ‘life or health.’ • Perhaps more controversially the CP proposes that counsellors and fdrps should be permitted to disclose communications where they reasonably believe that disclosure is necessary to report conduct that they reasonably believe constitutes grounds for a protection order under state and territory family violence legislation. (Proposal 10 – 9) Would you support proposal 1? Proposal 2?

8. Issues re proposal 2 • It requires fdrps to know state protective legislation and whether conduct reported to them constitutes grounds for an order. • There may be some cases where conduct that would not necessarily exclude a person from fdr would be grounds for a protective order, so that a practitioner/service would have a reporting obligation at the same time as working with clients to resolve disputes. • Who would this information be reported to? Police? What might be the consequences if fdr was proceeded with at the same time as a report to police was made? • In what percentage of cases would this test raise an issue of disclosure? If it were a high percentage, what would be the impact on workload of fdrps and counsellors? • What might be the potential impact on clients if revealing violence opened them up to the possibility of reporting that violence by fdrps? May they conceal violence, thus possibly opening up women and children to unsafe arrangements re parenting that did not take into account violence? BUT

9. BUT …. Those who need a protective order and can benefit from fdr should be entitled to both. Could a test of this nature work as part of integrated/collaborative service delivery with e.g. protocols between fdr agencies and police (and perhaps other) agencies? ALSO Any other amendments needed to the confidentiality provisions in FLA? Note NADRAC reference on integrity of ADR processes See www.nadrac.gov.au

10. Admissibility Ss 10 E and J of the FLA contain provisions making things said, or admissions made, in fdr or family counselling inadmissible. There are exceptions re child abuse or risk of child abuse. • In the CP the Commissions support the recommendation of the Family Law Council that the exceptions be extended to include a situation where an adult or child discloses that a child has been exposed to family violence (Proposal 10 – 10) • Should the exception be extended further – and if so, how far.

11. Definition of violence The definition of violence in the FLA is much more restrictive than • Definitions in state family violence legislation • Much practice based material e.g. Screening and Risk Assessment Framework of Cth A-G’s Dept. • Family Court’s Family Violence Strategy Have the variations in definitions caused any problems in practice?

12. Protection Orders and FDR Processes • In practice, are protection order proceedings referred to ADR by Local Courts? Are any reforms needed to ensure that ADR is only used in appropriate cases? (Question 11.4) 2. Are exceptions to allow the parties to attend FDR inserted appropriately in protection orders. Obviously FDR should not be thwarted in appropriate cases nor permitted in cases where FDR would endanger the parties. (Proposal 11.4) 3. Are FDR practitioners asking about Protection Orders and obtaining copies of them at intake? Are they using this information appropriately in risk assessment. (Question 11 – 3)

13. ADR and child protection • Q 11 – 5 How can the potential of ADR mechanisms to improve communication and collaboration in the child protection system best be realised? • Q11 – 6 Is there a need for legislative and other reforms to ensure that ADR in child protection cases is used appropriately?

14. Culturally responsive family dispute resolution • limited data available on the engagement of culturally diverse families with the family law system BUT • What data there is suggests CALD families are proportionally over-represented in litigated disputes concerning children, but under-represented as clients of family mediation. • Are you aware of disproportionate trends in the engagement of culturally diverse families in FDR? • Can you suggest reasons for this? • Might some of these women and children be dealing with a further ‘gap’ in the system between their culture and that of the Australian legal systems and courts?