Family dispute resolution and domestic violence

The latest material added to the Australian Institute of Family Studies library database is displayed, up to a maximum of 30 items. Where available online, a link to the document is provided. Many items can be borrowed from the Institute's library via the Interlibrary loan system.

See more resources on Family dispute resolution and domestic violence in the AIFS library catalogue

Annual review 2020

Western Australia. Family Court
Perth, WA : Family Court of Western Australia, 2021.
This annual report provides information on the activities and workload of the Family Court of Western Australia for the 2020 calendar year. It discusses: judiciary and staffing, divorce applications, parenting and financial orders, self-representation, clearance rate and finalisation time, appeals, the Family Court Counselling and Consultancy Service (FCCCS), and a mediation pilot program. A particular issue in 2020 was the COVID-19 pandemic, which had necessitated various strategies to mitigate risk and continue operations. Excepting for a dip at the start of the pandemic, trends were largely similar to previous years, with decreases in final order and contravention applications and appeals and increases in divorce and consent order applications. The report also briefly discusses the increasing complexity of parenting cases over the last 10 years. Though final order applications have only increased marginally over the last decade, the number involving only financial issues has decreased while those involving only parenting issues increased. These parenting cases are also increasingly more likely to involve child abuse, family violence, substance abuse, or mental health concerns, or an Independent Children's Lawyer, which is also a marker of risk. Participation in family dispute resolution (FDR) prior continues to be low, and a significant proportion of litigants continue to be self-represented.

Government response to ALRC Report 135 'Family law for the future - an inquiry into the family law system'

Australia, Australian Law Reform Commission
Canberra, A.C.T. : Australian Government, 2021.
This is the Australian Government's response to an inquiry by the Australian Law Reform Commission. In 2017, the Attorney-General asked the Commission to conduct what was the first comprehensive review into the family law system since the commencement of the Family Law Act in 1976. This response details the government's position on each of the Commission's 60 recommendations for reform, and also highlights reforms and initiatives undertaken since the inquiry report was submitted in 2019. The Government finds the inquiry made many practical and well-considered recommendations, but calls for further consultation with stakeholders on many of the issues.

Improvements in family law proceedings: second interim report

Australia. Parliament. Joint Select Committee on Australia's Family Law System
Canberra : Parliament House, 2021.
A Parliamentary Joint Select Committee was established in 2019 to investigate a range of issues associated with the appropriateness, effectiveness and impacts of the family law system. This report presents their second interim findings and recommendations, with the final report expected on 30 June 2021. The second interim report focused on issues relating to delays, costs, family violence, parenting and property matters, and support services and alternative dispute resolution mechanisms. The interim report makes 29 recommendations, including: a single point of entry into the family law system, to facilitate effective triage and case management; new research to be conducted into how to make the courts less adversarial and involve the voice of children; and regular training for all family law professionals into issues including family violence, child abuse, trauma informed practice, and unconscious bias.

A critical analysis of practitioners issuing 'not appropriate for family dispute resolution' certificates under the 'Family Law Act 1975' (CTH).

Taylor J
Adelaide Law Review v. 41 no. 1 2020: 149-178
In Australia, before parties can take a parenting matter to court, they must either attempt family dispute resolution (FDR) or apply for an exemption from FDR. Certificates of exemption can be issued for several reasons, one of which is that the family dispute resolution practitioner believed it was inappropriate in that particular case. This enables cases to be screened out where the parties cannot negotiate freely or FDR would be unsafe, such as for family violence, but it is vitally important that this exemption is consistently applied. This article looks into concerns that practitioners are often confused about how the FDR regulations should be interpreted in practice. It reviews the FDR legislative framework, discusses what research is available on how it is applied, and considers different theoretical approaches to interpretation. The article argues that the regulations need to be interpreted narrowly, and sets out the factors that practitioners can (and cannot) consider when making assessments.

Improvements in family law proceedings: interim report

Australia. Parliament. Joint Select Committee on Australia's Family Law System
Canberra : Parliament House, 2020.
A Parliamentary Joint Select Committee was established in 2019 to investigate a range of issues associated with the appropriateness, effectiveness and impacts of the family law system. As the inquiry has been granted an extension, this interim report has been prepared to summarise the wide range of views and issues raised during public consultations so far. No recommendations are presented at this stage. The report provides a brief overview of the family law system and the courts, summarises the reforms to the Family Law Act since its introduction, then provides a snapshot of the issues raised in the many individual submissions in the inquiry. These include perceptions of bias, the role of family consultants and expert witnesses, whether the adversarial nature of the family law courts could be improved, misuse of systems and processes, professional misconduct, legal fees and costs, delays in the court system, family violence and parental alienation, custody and enforcement, parenting matters, the division of property, child support and its interaction with the family law system, support services within the family law system, and alternative dispute resolution.

Submission to the Joint Select Committee on Australia's Family Law System

Australian Institute of Family Studies, Australia. Parliament. Joint Select Committee on Australia's Family Law System
Melbourne, Vic. : Australian Institute of Family Studies, January 2020.
This is the submission from the Australian Institute of Family Studies to the Joint Select Committee on Australia's Family Law System. The Committee was established in 2019 to investigate a range of issues associated with the appropriateness, effectiveness and impacts of the family law system, following on from the 2018 review. This submission highlights findings from the Institute's work that relate to the Committee's terms of reference, including: interaction and information-sharing between systems and jurisdictions, court powers in relation to the provision of evidence, court reform: capacity to deal with complex issues, legal costs in property matters, family law support services and family dispute resolution (FDR), family law impacts on children and families, grandparent carers, improving performance of family law system professionals, family law and child support systems: interactions, and pre-nuptial agreements. Together, the work of the Institute demonstrates the need for a system that: is trauma-informed and child-inclusive, provides effective client support and dispute resolution services, and is delivered by family law professionals with the skills to secure the safety and best interests of children and their families.

Universal risk screening in relationships counselling to enhance client engagement and promote safety and wellbeing.

Lee J and McIntosh J
Peer-reviewed papers from the FRSA 2019 National Conference : new horizons - building the future, paving the way. Fyshwick, ACT : Family & Relationship Services Australia, 2019: 52-59
This paper describes a new tool used to screen clients in relationship counselling or Family Dispute Resolution services, to help identify risk of harm. Relationships Australia (South Australia) is using Family DOORS, adapted from the Family Law DOORS framework developed for legal practitioners. The paper highlights the importance of universal risk screening in post-separation settings and describes how the tool works in practice, then discusses findings from the first 675 clients screened using Family DOORS. The assessment identified high levels of past abuse and current risks of violence, as well as other concerns such as risky alcohol or drug use, parenting stress, child protection notifications about their children, and current suicidal thoughts. The findings highlight that universal screening should be seen as essential in counselling services just as it is in post-separation FDR services.

The intersection of family violence and family dispute resolution : implications for evidence gathering and mediation confidentiality.

Harman J
Australian Journal of Family Law v. 33 no. 1 Jun 2019: 1-28
This article investigates whether parents in parenting cases involving family violence are attending family dispute resolution services, providing insights into the sources from which family violence evidence can be gathered and whether concerns over confidentiality are warranted. It analyses 414 cases heard before a Federal Circuit Court judge in New South Wales over 3 months, comparing whether the parties had attended family dispute resolution or obtained an exception, whether a notice of risk regarding an allegation of family violence had been filed, and whether a family violence order had been made. The article discusses attendance rates, candour in disclosure, engagement with other service, such as the police, health services or counselling, and confidentiality. The data indicate that parties with family violence allegations rarely attend family dispute resolution, and that most of those who do have already disclosed the allegations to another service.

Te korowai ture a-whanau: the final report of the independent panel examining the 2014 family justice reforms.

Noonan R, King L and Dellabarca C
Wellington, N.Z. : Ministry of Justice, 2019.
A suite of reforms was implemented in the family justice in New Zealand in 2014 that aimed to shift the emphasis away from in-court to out-of-court processes. This report presents the findings and recommendations of an independent panel established to evaluate these reforms, focusing in particular on changes to services that help with care of child disputes, including the Family Court, the Family Dispute Resolution service, Parenting Through Separation (PTS) parenting courses and counselling. The panel investigated: the effectiveness of out of court services; the effectiveness of Family Court processes, particularly given the significant increase in the number of urgent/without notice applications; the roles of the professionals, including children's lawyers, family dispute resolution providers and psychologists; and whether the system as a whole is producing outcomes that are upholding the welfare and best interests of children. The panel concludes that elements of the 2014 reforms must be changed to strengthen and integrate the system, and proposes the development of a joined-up family justice service, to be called Te Korowai Ture a-Whanau. Background research, including qualitative interviews with parents and summaries of consultations, have also been published.

The family law system : the data.

Australian Law Reform Commission
Family law for the future - an inquiry into the family law system. Brisbane, Qld. : Australian Law Reform Commission, 2019: 79-110
This chapter presents a statistical overview of the work of the family court system. It collates various data sources on the number and characteristics of families that enter the family law system and how their cases are resolved. Data is provided on: case load, family dispute resolution, matters filed in the courts, matters that resolve at trial, attrition, participants in the family law system, decision makers, provision of legal services, court services, family law support services, Aboriginal and Torres Strait Islander clients, court delay, family violence and abuse, notices of risk, and Magellan matters. Most families that separate resolve their disputes without recourse to the family law system: up to 70% of separating families work out their own parenting arrangements and up to 40% settle the division of their property through discussion. Furthermore, the vast majority of matters that enter the family law system will settle before judgment.

Family law for the future - an inquiry into the family law system: summary report

Australian Law Reform Commission
Brisbane, Qld. : Australian Law Reform Commission, 2019.
This paper summarises the findings and recommendations of the landmark review of the family law system in Australia. The review was commissioned in 2017 by the Attorney-General to ensure that the family law system meets the contemporary needs of families and effectively addresses family violence and child abuse. It discusses the case for reform, terms of reference, and overarching principles and provides an overview of the separate sections of the full report. Proposals include a comprehensive redraft of the Family Law Act, the requirement that parties take genuine steps to attempt to resolve their dispute prior to filing an application, considering Aboriginal and Torres Strait Islander children's connection to culture and country when making decisions, and handing control over the family law system to the states and territories, with the aim of improving the handling of domestic violence and child protection cases.

Family law for the future - an inquiry into the family law system

Australian Law Reform Commission
Brisbane, Qld. : Australian Law Reform Commission, 2019.
In 2017, the Attorney-General asked the Australian Law Reform Commission to conduct the first comprehensive review into the family law system since the commencement of the Family Law Act in 1976, with a view to making necessary reforms to ensure the family law system meets the contemporary needs of families and effectively addresses family violence and child abuse. This report presents the findings and recommendations of this review. The terms of reference asked the review to consider whether, and if so what, reforms to the family law system are necessary or desirable, in particular regarding the protection of vulnerable parties, improving dispute resolution processes, enhancing the integrity of the family law system, and family law services and professionals. The review identified structural and systemic difficulties within the current family law system, in part created by impenetrable legislation, under-resourcing, and the bifurcated legislative regimes that deal with different aspects of matters that impact on families. Rather than presenting a single bold new initiative to address these issues, the review makes 60 recommendations for reform addressing all aspects of the system. Proposals include a comprehensive redraft of the Family Law Act, the requirement that parties take genuine steps to attempt to resolve their dispute prior to filing an application, considering Aboriginal and Torres Strait Islander children's connection to culture and country when making decisions, and handing control over the family law system to the states and territories, with the aim of improving the handling of domestic violence and child protection cases.

Family dispute resolution : use, timing, and outcomes.

Qu L
Australian and New Zealand Journal of Family Therapy v. 40 no. 1 Mar 2019: 24-42
A key initiative of the 2006 Australian family law reforms is that most separating parents who have difficulty resolving disputes about parenting arrangements are now required to undertake Family Dispute Resolution (FDR). Parents who cannot reach an agreement through FDR or who meet certain exceptions may have their dispute handled by a court. This article investigates the use and outcomes of FDR, comparing the characteristics and circumstances of parents who used or who did not use FDR. It also investigates the impact of the timing of when FDR was undertaken after separation. Data is taken from three national studies of separated parents: the Longitudinal Study of Separated Families (LSSF), conducted in late 2008 and two cohorts from the Survey of Recently Separated Parents, conducted in late 2012 and late 2014. The finding indicate an increasing take-up of FDR among separated parents, and more positive outcomes and reaching agreement. However, the findings also show that more disadvantaged people are less likely to make use of FDR.

Review of the family law system

Australian Law Reform Commission
Sydney, NSW : Australian Law Reform Commission, 2018.
In August 2017, the Attorney-General asked the Australian Law Reform Commission to review the family law system. Following on from an issues paper, this discussion paper invites public submissions regarding 33 questions for consideration and 124 proposals for reform. Topics include: improving public understanding of the family law system, simplifying family law legislation, addressing service fragmentation, Families Hubs, expansion of the Family Advocacy and Support Service, expanding the availability of family dispute resolution, triage and risk assessment, co-location of courts, addressing concerns about adversarial processes, court safety and accessibility, integrated support services for children, supporting children's participation and right to be heard, misuse of systems and processes as family violence, management of unmeritorious proceedings, workforce capability plan, FDR practitioners and property matters, family violence training, Children's Contact Services, judicial appointments, reports in children's matters, professional wellbeing, iInformation sharing across systems, a new oversight body, privacy provisions, and definitions of family members.

If you want a picture of the future, imagine mandated pre-action procedures, registrar case management and information sharing.

Harman J
Family Law Review v. 7 no. 3 2018: 179-195
There are significant delays and a fast increasing workload in the family law system in Australia, prompting much media comment and a newly appointed review. This article considers what immediately available and practical solutions could be introduced into the Federal Circuit Court to address some of the underlying difficulties, to see a dramatic impact with only with only minimal resourcing or legislative change. It looks at pre-action and pre-filing procedures, the role of registrars in case management, the use of privately funded dispute resolution, and information sharing and co-location of services in cases involving family violence.

Screening for partner violence among family mediation clients : differentiating types of abuse.

Cleak H, Schofield M, Axelsen L and Bickerdike A
Journal of Interpersonal Violence v. 33 no. 7 Apr 2018: 1118-1146
Though mediation for couples in dispute over separation and parenting is not mandatory in cases of family violence, screening instruments are still at an early phase of development. This article examines the reliability and validity of some new and established scales for measuring intimate partner violence, as part of a larger study of clients attending family mediation centres in Victoria. The associations between types of abuse and other relationship indicators such as acrimony and parenting alliance are also examined, as well as the prevalence of different types of abuse among the client group. Most clients disclosed a history of at least one type of violence by their partner: 95% reported psychological aggression, 72% controlling and jealous behaviour, 50% financial control, and 35% physical assault. The implications for practice and research are also discussed.

An imperfect protection : attitudes of family dispute resolution practitioners to confidentiality.

Harman J
Bond Law Review v. 29 no. 1 2017: Article 4
The utility of confidentiality and inadmissibility of that communicated orally or in writing during Family Dispute Resolution (?FDR?) has recently been questioned. A tension exists between the confidentiality of dispute resolution processes and the desire of Courts, especially with increasing focus upon addressing abuse and family violence, to have all available evidence accessible. This article introduces and analyses data obtained from an extensive 2014/15 survey of practicing Family Dispute Resolution Practitioners (FDRPs) from private, government and community based practice regarding their attitudes to confidentiality and its importance in Family Dispute Resolution. Discourse regarding the utility of confidentiality has pointed to the asserted absence of empirical research into the attitudes of FDRPs regarding the importance of confidentiality. This survey was undertaken to contribute to the discourse regarding confidentiality in FDR and so as to ensure that the views of FDRPs were ascertained and heard in such discourses. Ultimately, the attitudes expressed by FDRPs reflect the importance of confidentiality to the process of FDR and lend significant support to a continuation of the 'imperfect protections' offered by the present Family Law Act 1975 (Cth) provisions regarding confidentiality and inadmissibility.

A better family law system to support and protect those affected by family violence: recommendations for an accessible, equitable and responsive family law system which better prioritises safety of those affected by family violence

Henderson S
Canberra : Parliament of the Commonwealth of Australia, 2017.
In March 2017, the Attorney-General commissioned an inquiry into how Australia's federal family law system can better support and protect people affected by family violence. This report presents the findings and recommendations of the inquiry, and advocates for an accessible, equitable, and responsive family law system which better prioritises the safety of families. Chapters include: Overview of the family law system; Challenges of current system; A new family law system; Property division and financial recovery; Matters involving children; Families with additional needs; Strengthening the capacity of family law professionals; and Ongoing support services.

A review of the literature on family dispute resolution and family violence : identifying best practice and research objectives for the next 10 years.

Dobinson S and Gray R
Australian Journal of Family Law v. 30 no. 3 May 2017: 180-204
Since 2006, parties to post-separation parenting disputes have been required to attempt family dispute resolution (FDR) before proceeding to court. While exemptions are available for cases involving family violence, research indicates that many parties to FDR have experienced violence in their relationships. Considerable effort has gone into developing best practice for these cases, yet difficulties in service delivery remain. As a leading service provider, Relationships Australia NSW undertook a comprehensive review of available literature with the aim of contributing to the development of best practice across the sector. Findings indicate that while there is consensus on several aspects of best practice, there remain numerous barriers. In this article, we discuss the effect of these barriers on best practice and highlight areas for further research. In doing so, we take stock of developments since 2006 and propose objectives for the next 10 years.

A call for a safe model of family mediation.

Field R
Bond Law Review v. 28 no. 1 2016: Article 4
The Australian family law system has struggled for many years to provide processes and procedures that are less adversarial, and which ensure access to justice and fair outcomes for those needing to negotiate arrangements for their post-separation family lives. These challenges are exacerbated, and dealt with least well, in contexts where there is a history of domestic violence. Since 2011 and the launch of the Family Violence Bill by the then Attorney-General the Hon Robert McClelland, the Federal Government has often expressed its commitment to addressing family violence and ensuring post separation agreements are safe. However, a key and proven initiative, the Coordinated Family Dispute Resolution model - a model that has the potential to offer a safe(r) family mediation environment in DV contexts - has not been made accessible to the Australian public. This comment argues that the Australian government has a social and ethical responsibility to introduce this model to the family law system.

Family law in Australia.

Young L, Sifris A, Carroll R and Monahan G
Chatswood, N.S.W. : LexisNexis Butterworths, 2016.
This book examines the social, historical, and legal context of the family law system in Australia and discusses recent changes. Chapters are: Law, society and the family; Dispute resolution in family law; Violence and abuse; Constitutional powers and the family courts; Marriage and de facto relationships; Nullity, divorce and termination of de facto relationships; Parentage; Child related disputes: the legislative framework; Children and parents: the exercise of discretion in reallocating parental responsibility; Financial support of married and de facto partners; Financial support of children; and 4 chapters on property proceedings: preliminary issues, the legislative framework, the exercise of the discretion, and specific issues.

One way or many ways : screening for family violence in family mediation.

Cleak H and Bickerdike A
Family Matters no. 98 2016: 16-25
Research suggests that screening for family violence among mediation clients has not been very effective, and there is also significant disagreement as to what constitutes best practice for screening in this context. This article discusses the research on these issues, including family law reforms to address family violence, the prevalence of allegations of family violence among separating families, opportunities for and facilitating disclosure, barriers to disclosure, approaches to screening in mediation, Australian and international screening tools, prevalence and severity of partner violence among clients, and needed screening and risk assessment processes.

Are we actually doing more for families affected by family and domestic violence?

Lee J
CFCA short article - Practitioner's Corner series 2 Mar 2016
A recent study by the Australian Institute of Family Studies revealed that families affected by abuse were much more likely to approach services such as counselling and mediation. But what happens after these families approach these services? Does the presence of family and domestic violence make a difference to service response? Do providers actually do more for these families? This article briefly describes research from Relationships Australia South Australia on whether their universal screening procedures detect at-risk families, whether such families were referred to additional support services, and whether these families actually access these additional services.

Sense and sensitivity: family law, family violence, and confidentiality

Jones C
Lidcombe, NSW : Women's Legal Service NSW, 2016.
The majority of the work of the Women's Legal Service NSW community legal centre involves complex family law issues, with an intersection of family law, child protection, criminal law, and victims support jurisdictions in New South Wales. Drawing on their experiences, this paper examines the treatment of sensitive records and confidentiality in family law matters involving family dispute resolution and litigation and the victims of family violence. The paper examines the practices and consequences of information sharing, the unintended consequences of disclosing sensitive material, and the difficulties that arise from a lack of consensus about which potential evidentiary material is confidential and inadmissible. Whilst it is important to have the benefit of all relevant material to assist in making decisions in the best interests of the child, the potential consequences of breaching the confidentiality of therapeutic relationships must also be considered. The paper concludes with proposals for information sharing and subpoenas that aim to promote safety and the balancing of competing priorities when considering access to sensitive records.

Family law principles.

Harland A, Cooper D, Rathus Z and Alexander R
Pyrmont, N.S.W. : Thomson Reuters (Professional) Australia, 2015.
This text book on family law focuses on issues of practice. Chapters include: the many meanings of family and family law; family court and jurisdictions; marriage, nullity and divorce; the family law dispute resolution system; legislative obligations in family dispute resolution; violence in the family; parenthood, parentage an parental responsibility; children and the family law act; relocation of children; family violence and child abuse in parenting cases; expert evidence and the role of social science in family law; alteration of property interests; advanced property topics; financial aspects of de facto and other formalised relationships; maintenance; financial support for children: child maintenance and child support; family lawyers: ethics and values; international family law issues; Hague Convention on Civil Aspects of International Child Abduction.

Australian family law in context : commentary and materials.

Parkinson P
Pyrmont, N.S.W. : Thomson Reuters (Professional) Australia, 2015.
This text book for law students examines the operation of family law in Australia. Featuring notes and questions for discussion, it examines the context of families and family law, the resolution of family disputes, the formation and dissolution of marriage, economic aspects of relationship breakdown, and children in family law.

Collaborative practice in family law matters with coercive control-type family violence : preliminary thoughts from the practitioner coalface.

Easteal P, Herbert J and Kennedy J
Family Law Review v. 5 no. 1 Apr 2015: 13-33
This article investigates whether collaborative practice - the new dispute resolution approach in family law - is also appropriate in matters involving coercive control by partners. It reviews the Australian and overseas literature and interviews a small sample of lawyers about their experiences using collaborative practice, including issues in screening, power imbalances, and potential benefits and risks.

Appropriate dispute resolution in cases of family violence and the collaborative practice model.

Markwick K
Family Law Review v. 5 no. 1 Apr 2015: 4-12
This article argues that a collaborative practice model approach can improve responses to cases involving family violence. It discusses the features of this model as applied to family law disputes, the inadequacies of the current litigation approach, the limitations of mediation, and how a collaborative practice model can address these issues.

Australian family law : the contemporary context

Fehlberg B, Kaspiew R, Millbank J, Behrens J and Kelly F
South Melbourne, Vic. : Oxford University Press, 2015.
This text book aims to encourage critical thinking and a wide understanding of family law in Australia today. Chapters include: structural fragmentation: the constitutional framework; mechanics of fragmentation: the jurisdictional framework; the legal recognition of family relationships; family violence; introduction to parenting disputes; processes for resolving parenting disputes; legal framework for resolving parenting disputes; specific issues in parenting disputes; introduction to financial disputes; child support; processes for resolving property disputes; legal framework for resolving property disputes; specific issues in property disputes; and maintenance for spouses and de facto partners.

Inconsistencies in and the inadequacies of the family counselling and FDR confidentiality and admissibility provisions : the need for reform.

Cooper D
Family Law Review v. 4 no. 4 Dec 2014: 213-226
This article examines issues of admissibility and confidentiality in family dispute resolution (FDR) cases. Issues include whether admissions of child abuse or threats of violence can be used in court proceedings under the Family Law Act, and balancing professional integrity with the safety of family members.
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