Anstie, Lara, ‘Cross examination of victims of family and domestic violence by self-represented perpetrators in family law proceedings’ (2016) 43(4) Brief 38.
Australian Law Reform Commission and New South Wales Law Reform Commission, Family Violence: Improving Legal Frameworks (Consultation Paper, 2010).
Australian Law Reform Commission and New South Wales Law Reform Commission, Family Violence – A National Legal Response (ALRC Report 114) 2010.
Australian Law Reform Commission, Family Law for the Future – An Inquiry into the Family Law System, ALRC Report 135, March 2019
Bagshaw, Dale et al, ‘The effect of family violence on post-separation parenting arrangements The experiences and views of children and adults from families who separated post-1995 and post-2006’ [2011] (86) Family Matters 49.
Bailey, Alice, 'Separating safety from situational violence: Response to ‘Allegations of family violence and child abuse in family law children‘s proceedings‘' [2007] (77) Family Matters 26.
Behrens, J. & Bruce Smyth, Australian Family Court Decisions About Relocation: Parents’ Experience and Some Implications for Law and Policy. (2010) 38 Federal Law Review 1-20.
Booth, Tracey, Miranda Kaye, & Jane Wangmann. (2022). Addressing the problem of direct cross-examination in Australian family law proceedings. University of New South Wales Law Journal, 45(4), 1415–1448.
Bozin, Danielle, ‘The Hague Child Abduction Convention's Grave Risk of Harm Exception: Traversing the Tightrope and Maintaining Balance between Comity and the Best Interests of the Child’ (2016) 35(1) University of Tasmania Law Review 24-42, doi: 10.3316/INFORMIT.135379927197544
Bromfield, Leah, et al, ‘Issues for the Safety and Wellbeing of Children in Families with Multiple and Complex Problems: The Co-Occurrence of Domestic Violence, Parental Substance Misuse and Mental Health Problems’ (National Child Protection Clearinghouse Issues Paper No 33, Australian Institute of Family Studies, December 2010).
Bryant, Diana, ‘The Family Courts and Family Violence’ (Paper Presented at the Judicial Conference of Australia Colloquium, 9-11 October 2015).
Carson, R., et al., (2022). Compliance with and enforcement of family law parenting orders: Final Report, ANROWS.
Carson, R., Qu, L., Kaspiew, R., Stevens, E., Sakata, K., Horsfall, B. et al. (2022). Evaluation of the Lawyer-assisted Family Law Property Mediation: Legal Aid Commission Trial: Final Report. Melbourne: Australian Institute of Family Studies.
Carson, Rachel, Edward Dunstan, Jessie Dunstan and Dinika Roopani, Children and young people: Family law system experiences and needs - Final Report 2018 (Research Report – June 2018, Australian Institute of Family Studies).
Caruana, Catherine, ‘Dispute resolution choices: A comparison of family dispute resolution, family law conferencing services and collaborative law’ [2010] (85) Family Matters 80.
Chisholm, R & Fehlberg, B. (2022) The High Court and family law: The Hague child abduction cases. Australian Journal of Family law, 35: 39-67.
Chisholm, Richard, ‘The Sharing of Experts’ Reports Between the Child Protection System and the Family Law System’ (Canberra: Attorney-General’s Department, 2014).
Chisholm, Richard, ‘Information-sharing in Family Law & Child Protection: Enhancing Collaboration’ (Canberra: Attorney-General’s Department, 2013).
Chisholm, Richard, ‘Family Courts Violence Review: A Report’ (Canberra: Attorney-General’s Department, 2009).
Chisholm, Richard, ‘“Less adversarial” proceedings in children’s cases’ [2007] (77) Family Matters 28.
Coy, Maddy et al, Picking up the pieces: domestic violence and child contact (Rights of Women and CWASU, 2012).
Croucher, Rosalind, ‘Family Law: Challenges for Responding to Family Violence in a Federal System’ in Hayes, Alan, and Daryl Higgins (eds), Families, Policies and the Law: Selected Essays on Contemporary Issues for Australia (Australian Institute of Family Studies, 2014).
De Maio, John, et al, ‘Survey of Recently Separated Parents: A study of parents who separated prior to the implementation of the Family Law Amendment (Family Violence and Other Matters) Act 2011’ (Commissioned Report, Australian Institute of Family Studies, 2013).
Dewar, John, et al, ‘Litigants in Person in the Family Court of Australia: A report to the Family Court of Australia’, 2000).
Family Court of Australia, Self-represented Litigants - A Challenge: Project Report (December 2000-December 2002).
Family Court of Australia, Finding a Better Way: A bold departure from the traditional common law approach to the conduct of legal proceedings (April 2007).
Family Court of Australia, ‘Implications of the Australian Institute of Family Studies "Allegations of Family Violence and Child Abuse in Family law Children's Proceedings" report: Response from the Family Court of Australia’ [2007] (77) Family Matters 16.
Family Law Council, ‘Litigants in Person: A Report to the Attorney-General’ (August 2000).
Family Law Council, ‘In Response to the first two terms of reference on Families with Complex Needs and the Intersection of the Family Law and Child Protection Systems’ (Interim Report to the Attorney-General, June 2015).
Faulks, John, ‘Justice and the protection of children’ in Hayes, Alan, and Daryl Higgins (eds), Families, Policies and the Law: Selected Essays on Contemporary Issues for Australia (Australian Institute of Family Studies, 2014).
Fehlberg, Belinda and Christine Millward, ‘Family violence and financial outcomes after parental separation’ in Hayes, Alan, and Daryl Higgins (eds), Families, Policies and the Law: Selected Essays on Contemporary Issues for Australia (Australian Institute of Family Studies, 2014).
Fogarty, John, ‘Family Court of Australia: into a brave new world’ (2009) 20(3) Australian Family Lawyer 2-24.
Freeman, Marilyn and Nicola Taylor, ‘Domestic violence and child participation: contemporary challenges for the 1980 Hague Child Abduction Convention’ (2020) 42(2) Journal of Social Welfare and Family Law 154, (UK) doi: 10.1080/09649069.2020.1751938
Rob George & April Gallwe, ‘How do parents experience relocation disputes in the family courts?’ (2016) 38(4) Journal of Social Welfare and Family Law 394.
Harrison, Margaret, Finding a Better Way: A bold departure from the traditional common law approach to the conduct of legal proceedings (April 2007).
Higgins, Daryl and Rae Kaspiew, ‘Child protection and family law… Joining the dots’ (NCPC Issues No. 34, Australian Institute of Family Studies, 2011).
Horsfall, Briony and Rae Kaspiew, ‘Relocation in separated and non-separated families: Equivocal evidence from the social science literature’ (2010) 24 AJFL 34.
Humphreys, Cathy and Monica Campo, Fathers who use violence: Options for safe practice where there is ongoing contact with children (CFCA Paper No. 43 – June 2017, Australian Institute of Family Studies).
Humphreys, Cathy and Meredith Kiraly, ‘Developmentally sensitive parental contact for infants when families are separated’ [2010] (85) Family Matters 49.
Jaffe, Peter G., Janet R. Johnston, Claire V. Crooks, Nicholas Bala, ‘Custody disputes involving allegations of Domestic violence: toward a differentiated approach to parenting plans’ (2008) 46(3) Family Court Review 500.
James, Kerrie, ‘Domestic Violence Within Refugee Families: Intersecting Patriarchal Culture and the Refugee Experience’ (2010) 31 The Australian and New Zealand Journal of Family Therapy 275.
James-Hanman, D & Holt, S. Post-Separation Contact and Domestic Violence: our 7-Point Plan for Safe[r] Contact for Children (2021) 36 Journal of Family violence 991-1001 doi: 10.1007/s10896-021-00256-7
Johnston, JR and Sullivan, MJ, ‘Parental alienation: in search of common ground for a more differentiated theory’ (2020) 58(2) Family Court Review 270-292.
Joint Select Committee, Second interim report: Improvements in family law proceedings, (2021: Commonwealth of Australia).
Kaspiew, Rae, et al, Compliance with and enforcement of family law parenting orders: Views of professionals and judicial officers (ANROWS, 2022).
Kaspiew, R., Carson, R., Rhoades, H., Qu, L., De Maio, J., Horsfall, B., & Stevens, E. (2022). Compliance with and enforcement of family law parenting orders: Views of professionals and judicial officers (Research report, 01/2022). ANROWS.
Kaspiew, R., Horsfall, B., Qu, L., Nicholson, J. M., Humphreys, C., Diemer, K., … Dunstan, J. Domestic and family violence and parenting: Mixed method insights into impact and support needs(ANROWS, 2017).
Kaspiew R. et al, Domestic and family violence and parenting: Mixed method insights into impact and support needs: Key findings and future directions Compass: Research to Policy and Practice, Issue 4 (June 2017).
Kaspiew, Ray, et al, ‘Evaluation of the 2012 Family Violence Amendments’ (Synthesis Report, Australian Institute of Family Studies, 2015).
Kaspiew, Rae, et al, ‘Evaluation of the 2012 Family Violence Amendments’ (Synthesis Report, Australian Institute of Family Studies, 2015).
Kaspiew, Rae, et al, ‘Experiences of Separated Parents Study’ (Evaluation of 2012 Family Violence Amendments)’ (Report, Australian Institute of Family Studies, 2015).
Kaspiew, Rae, et al, ‘Responding to Family Violence: A Survey of Family Law Practices and Experiences’ (Report, Australian Institute of Family Studies, October 2015).
Kaspiew, Rae, et al, ‘Court Outcomes Project’ (Report, Australian Institute of Family Studies, October 2015).
Kaspiew, Rae, et al, ‘Independent Children’s Lawyers Study’ (Final Report (2nd Edition), Australian Institute of Family Studies, June 2014).
Kaspiew, Rae, et al, ‘Post-separation parenting arrangements involving minimal time with one parent’ in Hayes, Alan, and Daryl Higgins (eds), Families, Policies and the Law: Selected Essays on Contemporary Issues for Australia (Australian Institute of Family Studies, 2014).
Kaspiew, Rae, et al, ‘Evaluation of a pilot of legally assisted and supported family dispute resolution in family violence cases’ (Commissioned Report, Australian Institute of Family Studies, 2012).
Kaspiew, Rae, Juliet Behrens and Bruce Smyth, ‘Relocation disputes in separated families prior to the 2006 reforms: An empirical study’ [2011] (86) Family Matters 72.
Kaspiew, Rae et al, ‘Evaluation of the 2006 Family Law Reforms’ (Australian Institute of Family Studies, 2009).
Kelly, Joan B & Johnson, Michael P, ‘Differentiation Among Types of Intimate Partner Violence: Research Update and Implications for Interventions’ (2008) 46 Family Court Review 476.
Kruk, E, ‘Parental alienation as a form of emotional child abuse: current state of knowledge and future directions for research’ (2018) 22(4) Family Science Review, 141-164.
Laing, Lesley, No Way to Live: Women’s Experiences of Negotiating the Family Law System in the Context of Domestic Violence (Faculty of Education and Social Work, University of Sydney, 2010).
Lee‐Maturana et al, Characteristics and experiences of targeted parents of parental alienation from their own perspective: A systematic literature review (2019) 71 Australian Journal of Psychology 83-91.
Maloney, et al, ‘Allegations of family violence and child abuse in family law children’s proceedings: A pre-reform exploratory study’ (Research Report No. 15, Australian Institute of Family Studies, 2007).
McDonald, Myfanwy and Kate Rosier, ‘Interagency Collaboration: Part A. What is it, what does it look like, when is it needed and what supports it?’ (AFRC Briefing No. 21, Australian Institute of Family Studies, 2011).
McIntosh, Jennifer et al, ‘Post-Separation Parenting Arrangements and Development Outcomes for Infants and Children’ [2011] (86) Family Matters 41.
Meier, J, Dickson, S., O’Sullivan, C., & Rosen, L. (2022) The Trouble with Harman and Lorandos’ Parental Alienation Allegations in Family Court Study (2020)Journal of family, trauma, child custody & child development, 19(3-4): 295-317, doi:10.1080/26904586.2022.2036286.
Mercer, J and Drew, M, ‘Introduction to parental alienation concepts and practices’ In Mercer J and Drew, M. eds. Challenging Parental Alienation: New Directions for Professionals and Parents, (2021) Routledge.
Mercer, Jean and Drew, Margaret (eds) Challenging Parental Alienation: New Directions for Professionals and Parents, 2021, Routledge.
Moloney, et al, ‘Understanding parenting disputes after separation’ (Research Report No. 36, Australian Institute of Family Studies, 2016).
Moloney, Lawrie, Bruce Smyth, Ruth Weston, Nicholas Richardson, Lixia Qu and Matthew Gray, ‘Allegations of family violence and child abuse in family law children’s proceedings: A pre-reform exploratory study Research Report No. 15 — May 2007’ (Australian Institute of family Studies, 2007).
National Scientific Council on the Developing Child, ‘Excessive Stress Disrupts the Architecture of the Developing Brain’ Working Paper No 3 (2005).
Neilson, Linda C, ‘Parental Alienation Empirical Analysis: Child Best Interests or Parental Rights?’ (Muriel McQueen Fergusson Centre for Family Violence Research and The FREDA Centre for Research on Violence Against Women, 2018).
Parkinson, Patrick, ‘The ties that bind: Separation, divorce and the indissolubility of parenthood’ in Hayes, Alan, and Daryl Higgins (eds), Families, Policies and the Law: Selected Essays on Contemporary Issues for Australia (Australian Institute of Family Studies, 2014).
Parkinson, Patrick, ‘Violence, abuse and the limits of shared parental responsibility’ [2013] (92) Family Matters 7.
Parkinson, Patrick and Judith Cashmore, ‘When Mothers Stay: Adjusting to Loss After Relocation Disputes’ (2013) 47 (1) Family Law Quarterly 65.
Parkinson, Patrick, ‘The realities of relocation: Messages from judicial decisions’ (2008) 22 Australian Journal of Family Law 35.
Peel, Sara and Rosalind Croucher, ‘Mind(ing) the gap: Law reform recommendations responding to child protection in a federal system’ [2011] (89) Family Matters 21.
Perry, Bruce D, ‘Applying Principles of Neurodevelopment to Clinical Work with Maltreated and Traumatized Children’, in Working with Traumatized Youth in Child Welfare, ed by Nancy Boyd Webb, Guilford Press NY (2006).
Qu, Lixia et al, ‘Post-separation parenting, property and relationship dynamics after five years’ (Commissioned report, Australian Institute of Family Studies, December 2014).
Qu, Lixia and Ruth Weston, ‘Parenting dynamics after separation: A follow-up study of parents who separated after the 2006 family law reforms’ (Commissioned Report, Australian Institute of Family Studies, 2010).
Qu, Lixia, Family dispute resolution: Use, timing, and outcomes (2019) Australian and New Zealand Journal of Family Therapy 24-42.
Qu, Lixia, et al, ‘Post-separation parenting, property and relationship dynamics after five years’ (Australian Institute of Family Studies, 2014).
Queensland, Special Taskforce on Domestic and Family Violence in Queensland, Not Now, Not Ever: Putting an End to Domestic and Family Violence in Queensland (2015).
Rathus, Z. A history of the use of the concept of parental alienation in the Australian family law system: contradictions, collisions and their consequences. (2020) 42 (1) Journal of Social Welfare and Family Law 5-17.
Rhoades, H, ‘Book Review: Challenging Parental Alienation: New Directions for Professionals and Parents, Jean Mercer and Margaret Drew (eds)’ (2022) 35 Australian Journal of Family Law 290-294.
Smallwood, Emma, Stepping Stones: Legal Barriers to Economic Equality After Family Violence (Women’s Legal Service Victoria, 2015).
Strickland, Justice Steven, ‘Attachment Theory and Family Violence: a judicial perspective’ (Paper delivered at AFCC 49th Annual Conference, Chicago, 6-9 June 2012).
Sturge, Claire and Danya Glaser, ‘Contact and Domestic Violence – The Experts’ Court Report’ (2000) 30 Family Law, 615-629.
Tomison, Adam M, ‘Exploring Family Violence: Links Between Child Maltreatment and Domestic Violence’ (National Child Protection Clearinghouse Issues Paper No 13, Australian Institute of Family Studies, June 2000).
Trane, Sarah T., Champion, Kelly M., and Hupp, Steven D. A. Comparison of Parental Alienation Treatments and Evidence-Based Treatments for Children. In Mercer J and Drew, M. eds. Challenging Parental Alienation: New Directions for Professionals and Parents, (2021) Routledge.
Trimmings, Katarina, Onyója Momoh, ‘Intersection between Domestic Violence and International Parental Child Abduction: Protection of Abducting Mothers in Return Proceedings’ (2021) 35(1) International Journal of Law, Policy and the Family 1-19 (UK).
UN General Assembly, Custody, violence against women and violence against children Report of the Special Rapporteur on violence against women and girls, its causes and consequences (Report of the Special Rapporteur on violence against women and girls, its causes and consequences, Reem Alsalem) (2023).
UN OHCHR, Special Rapporteur on violence against women and girls, its causes and consequences (SR), https://www.ohchr.org/en/calls-for-input/2022/call-inputs-custody-cases-violence-against-women-and-violence-against-children (2022).
Vesneski, William M. et al, ‘U.S. Judicial Implementation of the Hague Convention in Cases Alleging Domestic Violence’ (2011) 62(2) Juvenile Family Court Journal 1-20, doi: 10.1111/j.1755-6988.2011.01058.x
Walsh K. The Failure to Recognize Continuing Harm: Post-Separation Domestic Abuse in Child Contact Cases. Violence Against Women. 2024:10778012241243049. PMID: 38557267.
Wangmann, J., Booth, T., & Kaye, M. (2020). “No straight lines”: Self-represented litigants in family law proceedings involving allegations about family violence (Research report, 24/2020). Sydney: ANROWS.
Warrier, Sujata ‘It’s in Their Culture: Fairness and Cultural Considerations in Domestic Violence’ (2008) 46 Family Court Review 537.
Weston, Ruth et al, ‘Care-time arrangements after the 2006 reforms’ [2011] (86) Family Matters 19.
Women’s Safety and Justice Taskforce, Hear her voice: Report one, Volume 2 ‘The Mountains we must climb’ (2021)
Zashin, Andrew A, Domestic violence by proxy: a framework for considering a child’s return under the 1980 Hague Convention on the Civil Aspects of Child Abduction’s Article 13(b) Grave risk of harm cases post Monasky, (2021) 33 Journal of the American Academy of Matrimonial Lawyers 571-592.
Among the objectives of the 2006 amendments to the Family Law Act 1975 (Cth) (FLA) and the Family Court Act 1997 (WA) (FCA) were the discouragement of adversarial approaches to family dispute resolution (FDR) and the introduction of a national network of family relationship centres resourced with accredited FDR practitioners. Section 60I FLA and Section 66H FCA aim to ensure that all parties who have a dispute about Part VII FLA or Part 5 FCA (children) matters make a genuine effort to resolve the dispute by FDR before applying for an order under the Part. FDR can be provided through the 65 Family Relationship Centres, other government funded organisations, Legal Aid Commissions and private services.
A court must not hear an application under Part VII FLA or Part 5 FCA unless the applicant has either filed and served a certificate by an FDR practitioner (certifying that the parties have attended or attempted to attend FDR (s.60I(7) FLA; s.66H(7) FCA) and the FCFCA Fact Sheet) or have attended upon a Registrar and obtained an exemption from attending FDR (s.60I(9) FLA; s.66H(9) FCA) on the basis that there are reasonable grounds to believe that there has been or that there is a risk of family violence or child abuse by one of the parties to the proceedings; or the application relates to the contravention of an order made under this part in the previous 12 months; or there are circumstances of urgency or impracticality. The Family Violence Best Practice Principles make it clear that it is not compulsory for parties to participate in FDR in these circumstances.
Where family violence issues are not identified in the FDR intake process, but become apparent in the course of the negotiations, a certificate may be issued by an FDR practitioner under Section 60I FLA or Section 66H FCA certifying that it would be inappropriate to continue. It is important to note that the assessment of the suitability of parties to attend dispute resolution at any stage, has not changed as a result of the merger of the Courts and the implementation of Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (FCFCOA Rules) (Sch 1 Part 1 cl 1(8) and Sch 2 Part 1 cl 1(8)) and the Central Practice Direction Family Law - Case Management 2021 (Central Practice Direction). However, it appears from the pre-action procedures that in the event FDR is not appropriate, for whatever reason, a written notice of an intention to start a proceeding must be given to the other party prior to the filing of an application to the Court (FCFCOA Rules Sch 1 Part 1 cl 3(4) and Sch 1 Part 2 cl 3(4)).
Where a FDR practitioner assesses it safe to do so, a matter involving family violence may proceed to FDR. The specific model of FDR utilised (for example, telephone, skype, online, shuttle, legally-assisted) will be dependent on the circumstances, complexities and needs of individual families.
Any communications made to an FDR practitioner during FDR are confidential unless disclosure is required or authorised by law (Section 10H FLA or Section 53 FCA). Such communications made in FDR are also not admissible in any court or proceedings in any jurisdiction (Section 10J FLA or Section 54 FCA). Additionally, a communication made when a professional consultation is being carried out, on referral from an FDR practitioner, is inadmissible in any court or proceedings in any jurisdiction. However, an admission or disclosure that indicates that a child under 18 has been abused, or is at risk of abuse, may be admitted as evidence unless there is sufficient evidence of the admission or disclosure available to the court from other sources.
Under Section 13C FLA or Section 65K FCA, a judge may also refer parties back to FDR, family counselling, a course, program or service at any stage of the family law proceedings but before doing so must consider seeking the advice of a family consultant about the services appropriate to the parties’ needs (Section 11E FLA or Section 64 FCA).
With the introduction of the FCFCA Rules and the Central Practice Direction,there has been an increased focus on the importance of and reliance on dispute resolution and Family Dispute Resolution (FDR). "Dispute Resolution" is defined in the FCFCOA Rules to include a mediation and conference (r. 105). One of 10 the core principles underpinning the family law jurisdiction and designed to facilitate the resolution of family law matters is the importance of dispute resolution. In the Central Practice Direction this is described as follows:
1.
The Court encourages the use of dispute resolution procedures;
2.
Before commencing actions, parties are expected to make a genuine attempt to resolve the dispute including by complying with requirements and obligations of Section 60I of the FLA and the preaction procedures set out in the FCFCOA Rules;
3.
After commencement of an action, parties are expected to:
(a)
Be proactive and identify the appropriate time and appropriate way in which they can participate in dispute resolution; and
(b)
Be prepared to make and consider reasonable offers of settlement at any stage. Failure to do so may have a cost consequence.
It is also important to note that another of the 10 core principles is assessment of risk. This includes the prioritisation of the safety of children, vulnerable parties and litigants as well as the identification and appropriate handling of issues of risk including alleged family violence. As a result, participation in family dispute resolution and dispute resolution more broadly needs to be considered in this context.
The Central Practice Direction also includes consideration after any interim hearings, as to whether dispute resolution is appropriate and whether measures can be implemented to ensure safety in matters involving family violence and safety concerns. This includes parties being referred off to private mediation, private or community based Family Dispute Resolution, and/or arbitration with the consent of the parties. If the Court is satisfied that it is appropriate for the parties to participate in dispute resolution, the matter will be listed for a date within 6 months of filing for a Conciliation Conference, a Judicial Settlement Conference or a Family Dispute Conference. The Central Practice Directions also note that a second or subsequent dispute resolution may be listed at any time if it appears to the Court that it is reasonably likely this will assist with the resolution or narrowing of the dispute.
There are additional requirements included in the FCFCOA Rules and the Central Practice Direction that parties provide a detailed list of documents to the Mediator or FDR Practitioner and to the other party involved not less than 7 days before the mediation/FDR. These include the following:
1.
All relevant Applications, Responses, Affidavits and Financial Statements filed in the proceedings;
2.
Any relevant expert reports;
3.
A Balance Sheet setting out agreed and disputed assets and liabilities;
4.
Any documents exchanged between the parties which is directly relevant to an issue remaining in dispute (with relevant passages highlighted);
5.
A Minute setting out the precise terms of orders required to give effect to the settlement proposal;
6.
A confidential case outline document in the approved form;
7.
Particulars of any financial resource and a valuation of any asset the value of which is in dispute;
8.
Valuations or market appraisals for any parcel of real estate in which any party has an interest, or any motor vehicle in which the value is not agreed;
9.
Valuation of any superannuation interests and written confirmation that the superannuation trustee of any fund that may be subject to a splitting order has been afforded procedural fairness;
10.
Any family violence orders currently in place; and
11.
Any other documents reasonably requested by the mediator/FDRP.
Research by the Australian Institute of Family Studies (AIFS) in 2015 suggests that parties, and perhaps other professionals involved in the FDR process, may not have a thorough understanding of the 60I/66H exemption. This research shows that some parents who experience family violence continue to present for FDR services, although many who experience family violence proceed directly to the Court without attending or attempting to attend FDR. This research found there was a significant reluctance by parties to disclose family violence issues in the FDR process, and a low 60I/66H exemption rate where family violence issues are disclosed. A separate AIFS study shows that among those parents who used FDR services as a means of resolving parenting issues, substantial proportions of parents reported having experienced physical violence or emotional abuse.
Another Australian study reported that women were more likely than men not to disclose family violence and twice as likely as men to report that FDR proceeded notwithstanding a disclosure of family violence. Central to disclosure is what Chisholm has called the victim’s dilemma: a victim’s choice of balancing the risk to the child of not taking protective action to prevent further family violence, against the risk to the child of doing so unsuccessfully due to, for example, insufficient evidence, with the possible result that the child spends more time with the perpetrator.
The critical question remains in each case, however, as to whether FDR or other mediated or facilitated negotiation processes are appropriate or effective where there is a history of family violence between parties attempting to reach agreement as to parenting arrangements. AIFS has observed in its research that in some circumstances, the process may be empowering for the victim; in other circumstances, the process may cause the victim further fear and trauma, making the victim more vulnerable to the impacts of ongoing power imbalances with the perpetrator, and may produce coerced outcomes that may not be in the best interests of the child. Overall, fewer parents reach agreement using FDR processes where family violence issues exist, and many are unable to reach agreement. For those who do reach agreement, there is evidence that the consequent parenting arrangements may be unstable due to unresolved and ongoing family violence issues and safety concerns, and as a result, these families are likely to need additional support. There is an acknowledged need for constant vigilance by FDR practitioners in recognising and assessing a party’s fear and safety concerns prior to the commencement and throughout the course of the FDR process and, where necessary, issuing a 60I/66H certificate.
If parties reach agreement through FDR they may wish to apply to the Court for consent orders. Where an application is made to the FCFCA for a parenting order by consent (whether or not resulting from an outcome mediated through FDR), the parties must formally advise the Court whether any allegations of family violence or child abuse or neglect (or risk thereof), or of mental ill-health, drug or alcohol misuse, serious parental incapacity or any other allegation involving a risk to the child concerned have been made AND whether a party considers that the child concerned has been or is at risk of abuse, neglect or family violence, and whether a party considers that he or she or another party to the proceedings has been or is at risk of family violence. Should any of these circumstances be advised, the parties must explain to the Court how the parenting order attempts to deal with the allegations (see Rule 10.05 of FCFCA Rules).
Among the objectives of the 2006 amendments to the Family Law Act 1975 (Cth) (FLA) and the Family Court Act 1997 (WA) (FCA) were the discouragement of adversarial approaches to family dispute resolution (FDR) and the introduction of a national network of family relationship centres resourced with accredited FDR practitioners. Section 60I FLA and Section 66H FCA aim to ensure that all parties who have a dispute about Part VII FLA or Part 5 FCA (children) matters make a genuine effort to resolve the dispute by FDR before applying for an order under the Part. FDR can be provided through the 65 Family Relationship Centres, other government funded organisations, Legal Aid Commissions and private services.
A court must not hear an application under Part VII FLA or Part 5 FCA unless the applicant has either filed and served a certificate by an FDR practitioner (certifying that the parties have attended or attempted to attend FDR (s.60I(7) FLA; s.66H(7) FCA) and the FCFCA Fact Sheet) or have attended upon a Registrar and obtained an exemption from attending FDR (s.60I(9) FLA; s.66H(9) FCA) on the basis that there are reasonable grounds to believe that there has been or that there is a risk of family violence or child abuse by one of the parties to the proceedings; or the application relates to the contravention of an order made under this part in the previous 12 months; or there are circumstances of urgency or impracticality. The Family Violence Best Practice Principles make it clear that it is not compulsory for parties to participate in FDR in these circumstances.
Where family violence issues are not identified in the FDR intake process, but become apparent in the course of the negotiations, a certificate may be issued by an FDR practitioner under Section 60I FLA or Section 66H FCA certifying that it would be inappropriate to continue. It is important to note that the assessment of the suitability of parties to attend dispute resolution at any stage, has not changed as a result of the merger of the Courts and the implementation of Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (FCFCOA Rules) (Sch 1 Part 1 cl 1(8) and Sch 2 Part 1 cl 1(8)) and the Central Practice Direction Family Law - Case Management 2021 (Central Practice Direction). However, it appears from the pre-action procedures that in the event FDR is not appropriate, for whatever reason, a written notice of an intention to start a proceeding must be given to the other party prior to the filing of an application to the Court (FCFCOA Rules Sch 1 Part 1 cl 3(4) and Sch 1 Part 2 cl 3(4)).
Where a FDR practitioner assesses it safe to do so, a matter involving family violence may proceed to FDR. The specific model of FDR utilised (for example, telephone, skype, online, shuttle, legally-assisted) will be dependent on the circumstances, complexities and needs of individual families.
Any communications made to an FDR practitioner during FDR are confidential unless disclosure is required or authorised by law (Section 10H FLA or Section 53 FCA). Such communications made in FDR are also not admissible in any court or proceedings in any jurisdiction (Section 10J FLA or Section 54 FCA). Additionally, a communication made when a professional consultation is being carried out, on referral from an FDR practitioner, is inadmissible in any court or proceedings in any jurisdiction. However, an admission or disclosure that indicates that a child under 18 has been abused, or is at risk of abuse, may be admitted as evidence unless there is sufficient evidence of the admission or disclosure available to the court from other sources.
Under Section 13C FLA or Section 65K FCA, a judge may also refer parties back to FDR, family counselling, a course, program or service at any stage of the family law proceedings but before doing so must consider seeking the advice of a family consultant about the services appropriate to the parties’ needs (Section 11E FLA or Section 64 FCA).
With the introduction of the FCFCA Rules and the Central Practice Direction,there has been an increased focus on the importance of and reliance on dispute resolution and Family Dispute Resolution (FDR). "Dispute Resolution" is defined in the FCFCOA Rules to include a mediation and conference (r. 105). One of 10 the core principles underpinning the family law jurisdiction and designed to facilitate the resolution of family law matters is the importance of dispute resolution. In the Central Practice Direction this is described as follows:
1.
The Court encourages the use of dispute resolution procedures;
2.
Before commencing actions, parties are expected to make a genuine attempt to resolve the dispute including by complying with requirements and obligations of Section 60I of the FLA and the preaction procedures set out in the FCFCOA Rules;
3.
After commencement of an action, parties are expected to:
(a)
Be proactive and identify the appropriate time and appropriate way in which they can participate in dispute resolution; and
(b)
Be prepared to make and consider reasonable offers of settlement at any stage. Failure to do so may have a cost consequence.
It is also important to note that another of the 10 core principles is assessment of risk. This includes the prioritisation of the safety of children, vulnerable parties and litigants as well as the identification and appropriate handling of issues of risk including alleged family violence. As a result, participation in family dispute resolution and dispute resolution more broadly needs to be considered in this context.
The Central Practice Direction also includes consideration after any interim hearings, as to whether dispute resolution is appropriate and whether measures can be implemented to ensure safety in matters involving family violence and safety concerns. This includes parties being referred off to private mediation, private or community based Family Dispute Resolution, and/or arbitration with the consent of the parties. If the Court is satisfied that it is appropriate for the parties to participate in dispute resolution, the matter will be listed for a date within 6 months of filing for a Conciliation Conference, a Judicial Settlement Conference or a Family Dispute Conference. The Central Practice Directions also note that a second or subsequent dispute resolution may be listed at any time if it appears to the Court that it is reasonably likely this will assist with the resolution or narrowing of the dispute.
There are additional requirements included in the FCFCOA Rules and the Central Practice Direction that parties provide a detailed list of documents to the Mediator or FDR Practitioner and to the other party involved not less than 7 days before the mediation/FDR. These include the following:
1.
All relevant Applications, Responses, Affidavits and Financial Statements filed in the proceedings;
2.
Any relevant expert reports;
3.
A Balance Sheet setting out agreed and disputed assets and liabilities;
4.
Any documents exchanged between the parties which is directly relevant to an issue remaining in dispute (with relevant passages highlighted);
5.
A Minute setting out the precise terms of orders required to give effect to the settlement proposal;
6.
A confidential case outline document in the approved form;
7.
Particulars of any financial resource and a valuation of any asset the value of which is in dispute;
8.
Valuations or market appraisals for any parcel of real estate in which any party has an interest, or any motor vehicle in which the value is not agreed;
9.
Valuation of any superannuation interests and written confirmation that the superannuation trustee of any fund that may be subject to a splitting order has been afforded procedural fairness;
10.
Any family violence orders currently in place; and
11.
Any other documents reasonably requested by the mediator/FDRP.
Research by the Australian Institute of Family Studies (AIFS) in 2015 suggests that parties, and perhaps other professionals involved in the FDR process, may not have a thorough understanding of the 60I/66H exemption. This research shows that some parents who experience family violence continue to present for FDR services, although many who experience family violence proceed directly to the Court without attending or attempting to attend FDR. This research found there was a significant reluctance by parties to disclose family violence issues in the FDR process, and a low 60I/66H exemption rate where family violence issues are disclosed. A separate AIFS study shows that among those parents who used FDR services as a means of resolving parenting issues, substantial proportions of parents reported having experienced physical violence or emotional abuse.
Another Australian study reported that women were more likely than men not to disclose family violence and twice as likely as men to report that FDR proceeded notwithstanding a disclosure of family violence. Central to disclosure is what Chisholm has called the victim’s dilemma: a victim’s choice of balancing the risk to the child of not taking protective action to prevent further family violence, against the risk to the child of doing so unsuccessfully due to, for example, insufficient evidence, with the possible result that the child spends more time with the perpetrator.
The critical question remains in each case, however, as to whether FDR or other mediated or facilitated negotiation processes are appropriate or effective where there is a history of family violence between parties attempting to reach agreement as to parenting arrangements. AIFS has observed in its research that in some circumstances, the process may be empowering for the victim; in other circumstances, the process may cause the victim further fear and trauma, making the victim more vulnerable to the impacts of ongoing power imbalances with the perpetrator, and may produce coerced outcomes that may not be in the best interests of the child. Overall, fewer parents reach agreement using FDR processes where family violence issues exist, and many are unable to reach agreement. For those who do reach agreement, there is evidence that the consequent parenting arrangements may be unstable due to unresolved and ongoing family violence issues and safety concerns, and as a result, these families are likely to need additional support. There is an acknowledged need for constant vigilance by FDR practitioners in recognising and assessing a party’s fear and safety concerns prior to the commencement and throughout the course of the FDR process and, where necessary, issuing a 60I/66H certificate.
If parties reach agreement through FDR they may wish to apply to the Court for consent orders. Where an application is made to the FCFCA for a parenting order by consent (whether or not resulting from an outcome mediated through FDR), the parties must formally advise the Court whether any allegations of family violence or child abuse or neglect (or risk thereof), or of mental ill-health, drug or alcohol misuse, serious parental incapacity or any other allegation involving a risk to the child concerned have been made AND whether a party considers that the child concerned has been or is at risk of abuse, neglect or family violence, and whether a party considers that he or she or another party to the proceedings has been or is at risk of family violence. Should any of these circumstances be advised, the parties must explain to the Court how the parenting order attempts to deal with the allegations (see Rule 10.05 of FCFCA Rules).