There is a tendency for those dispute resolution professionals who work outside the family law field to think that family violence does not affect their work. However the recently released report of the Victorian Royal Commission into Family Violence, which was jurisdictionally unable to examine family mediation, shows that an understanding of the nature of family violence and an ability to identify and respond to cases of family violence is central to the work of dispute resolution practitioners in a number of diverse fields. We focus here on the recommendations which will affect the way in which a range of dispute resolution professionals will have an ongoing role in dealing with the consequences of family violence in our society.
Many of the recommendations and much of the report will be of interest to those in the broader Australian dispute resolution community.
The Royal Commission’s Report
On 30 March 2016 the Victorian Parliament tabled the report of the Royal Commission into Family Violence. The report represents the culmination of 13 months of work by Australia’s first ever Royal Commission into family violence. The Victorian government set up the Royal Commission to examine and evaluate strategies, frameworks, policies, programs and services and establish best practice for four areas – the prevention of family violence; early intervention; support for victims of family violence, particularly for women and children; and accountability for perpetrators of family violence. The Royal Commission was also asked to investigate means of ensuring systemic responses to family violence, investigate how government agencies and community organisations can better integrate and coordinate their efforts, and make recommendations on how best to evaluate and measure the success of strategies and programs put in place to stop family violence.
Although the report and recommendations are framed to apply to the state of Victoria, the findings are highly relevant to every State and Territory, which all face the difficult task of dealing with increasing reports of family violence. Many of the recommendations ask the Victorian government to liaise with the Commonwealth government and COAG (the Council of Australian Governments) to reform aspects of law and policy in other States and Territories and nationally to better protect the victims of family violence and ensure perpetrator accountability. COAG has also just released a report advising it on a national approach to reducing violence against women and their children.
The Royal Commission’s report contains 227 recommendations. The Victorian government has committed to implementing all recommendations in the report, regardless of the cost. The Commission stated that its ‘recommendations are directed at improving the foundations of the current system, seizing opportunities to transform the way that we respond to family violence, and building the structures that will guide and oversee a long-term reform program that deals with all aspects of family violence’ ( p.14 Summary and Recommendations).
Key recommendations include:
- the establishment of local support and safety hubs to make it easier for victims to find help and gain access to a greater range of services
- new laws to ensure that privacy considerations do not trump victims’ safety—with a Central Information Point to funnel information about perpetrators to the Hubs
- an immediate funding boost to services that support victims and families, additional resources for Aboriginal community initiatives and a dedicated funding stream for preventing family violence
- a ‘blitz’ to rehouse women and children forced to leave their homes, supported by expanded individual funding packages
- an expanded investigative capacity for police and mobile technology for front-line police, including a trial of body-worn cameras
- more specialist family violence courts that can deal with criminal, civil and family law matters at the same time
- stronger perpetrator programs and increased monitoring and oversight by agencies
- family violence training for all key workforces—including in hospitals and schools
- investment in future generations through expanded respectful relationships education in schools and
- an independent Family Violence Agency to hold government to account.
Dispute Resolution and Family Violence
There are a number of ways that dispute resolution plays a role in our response to family violence: through provision of family dispute resolution in the federal family law system, through child protection conciliation conferences in the state Children’s Courts, through the negotiation process that takes place in finalising the conditions of family violence orders in state magistrates’ courts, and in resolving disputes with providers of essential services, such as electricity, water, banking and telecommunications, as a result of economic abuse. Although not strictly a civil dispute resolution process, there are also possibilities for the use of restorative justice processes as an adjunct to the criminal and family violence system.
Elsewhere on this blog I have described my own journey as a feminist from polemical critic to designer of a safe(r) mediation processes for women who have experienced family violence. As I have written previously, there is a legitimate concern about the use of informal dispute resolution processes in cases of family violence because of deep power imbalances between perpetrators and victims. It is now more widely accepted, however, that with appropriate support and careful attention not to minimise the violence, family law disputes which involve family violence can be mediated. Outside the family mediation context, the same debate about the use of private ordering in cases of family violence could be had in relation to family violence intervention orders or child protection matters.
The Royal Commission’s family violence report canvasses several of these arguments plus more in a range of areas of policy, law and practice relating to family violence. The Royal Commission, being a Victorian institution, was not able to examine family dispute resolution directly (which is a federal process).
The central issues raised by the Royal Commission which relate to dispute resolution are summarised briefly here.
Dispute Resolution and Family Violence-Related Debts
Recommendation 110 of the Royal Commission’s report reads as follows:
The Victorian Government encourage the Victorian Energy and Water Ombudsman and the Commonwealth Financial Services Ombudsman and Telecommunications Ombudsman to publicise the availability of their dispute-resolution processes to help victims of family violence resolve disputes with service providers in relation to debts and liabilities incurred in the context of family violence [within 12 months].
This recommendation concerns family violence-related debt. The Commission heard that most women who seek assistance for family violence issues leave their relationship with debt. Through the use of deception or coercion, perpetrators may avoid responsibility for a range of debts and leave their former partners with substantial liabilities (RCFV Report, Volume IV, chapter 21 p.102). This is a form of economic abuse, which is increasingly recognised as a form of family violence across the Australian jurisdictions.
Women who have family violence-debt often have trouble negotiating the consequences of that debt with service providers. In their report Stepping Stones: Legal Barriers to Economic Equality After Family Violence, Women’s Legal Service Victoria noted that ‘service providers such as energy retailers, telecommunication services and banks have low awareness of the difficulties faced by women experiencing family violence and are unhelpful when interacting with these customers.’ Professor Roslyn Russell has recently shown how staff in bank branches and call centres, report dealing with customers who are experiencing, trying to leave, or have left abusive relationships, yet there is limited training for banking staff on family violence.
A major proportion of Australia’s dispute resolution services are offered through industry ombudsman and complaint handling services such as the Victorian Energy and Water Ombudsman and the Commonwealth Financial Services Ombudsman and Telecommunications Industry Ombudsman. These services often use a combination of mediation, negotiation and conciliation to resolve disputes. It is clear these services are dealing with many disputes that arise with service providers as a result of family violence. Because such services are not part of the family violence system they may not have policies or training in place to identify or adequately address financial abuse and family violence. The Royal Commission’s recommendation is designed to develop employees’ capacity to understand, identify and respond to family violence within industry dispute resolution schemes so that victims of family violence can continue to access essential services such as household energy, water, telecommunications and financial services.
Negotiating Consent Orders in Family Violence Intervention Order Processes
Family Violence Intervention Orders (FVIOs) (also known as protection orders and apprehended violence orders in other jurisdictions), are orders made by the courts to protect a person from another family member who is perpetrating family violence. There are often conditions attached to FVIOs which set out exactly what the perpetrator must do or not do in order to stop committing, and to prevent the future commission of, family violence. In Australia, FVIOs are made by state Magistrates’ courts. The Royal Commission noted that ‘a high proportion’ of FVIOs are made by consent which means that the parties to the intervention order agree themselves to the FVIO and the conditions attached to the order which the Magistrate merely formalises (RCFV Report, Volume III, Chapter 16, p.134). There is an incentive for perpetrators to settle orders by consent in the Victorian system because they can be made without the perpetrator admitting to any or all of the family violence allegations set out in the FVIO application. However for victims, there is a clear danger inherent in the negotiation process for consent orders, as described by the Commission:
‘the negotiation process involved in arriving at an order by consent may be opaque and variable depending on the situation, the parties and the presence of legal representatives. If there is a history of family violence between the parties, with everything that can entail – including an imbalance of power, fear, vulnerability, and the possibility of manipulation and coercion – it is extremely important that the negotiation process is properly managed. If the parties are not (or not adequately) legally represented, there is no guarantee that this will occur, and the result can be incomplete or inappropriate orders, whether on a primary application, a variation, extension or withdrawal, or a cross-application’ (RCFV Report, Volume III, Chapter 16, p.178).
Mediation is not formally part of the process for negotiating FVIOs in Victoria, although it is in the ACT. The danger of any negotiation process used to determine the terms of FVIOs is that it is the very acts of family violence that are being discussed and negotiated, and that a poor process may result in a poor order with conditions that fail to protect the victim and her children. Because so little is known about the process for negotiating consent orders for FVIOs in Victoria, the Royal Commission adopted a cautious approach and recommended that a committee be established within the next three years to investigate how consent-based family violence intervention orders are currently negotiated and to develop a safe, supported negotiation process for victims (recommendation 77). On this issue, the parallels to family dispute resolution are clear. Of note is the safe and supported negotiation process developed by Women’s Legal Service in Queensland called Coordinated Family Dispute Resolution (CFDR). I co-designed that model of family dispute resolution and co-authored an article about CFDR.
Restorative Justice and Family Violence
Restorative justice is a process which was developed from the criminal justice system which enables all parties who have a stake in an offence to come together to discuss the aftermath of the offence and implications for the future. While restorative processes have a criminal provenance, which makes them distinct from ADR processes such as mediation and conciliation, the processes share in common a commitment to party empowerment and a sense that creative solutions can be found through ‘talking it out’ which would not be possible in the formal legal system.
The Royal Commission noted that while the justice system plays a fundamental role in protecting victims’ safety and promoting perpetrator accountability, that many women find the reality of the court process to be deeply dissatisfying and even re-traumatising: ‘A strong theme that emerged from consultations held by the Commission was the need for victims to understand the options available to them, and the process involved, and to be empowered to make their own decisions about what steps and outcomes are appropriate’ (RCFV Report, Volume IV, Chapter 22 p.136).
Restorative justice programs have the potential to provide family violence victims with the chance to be heard, to explain to the perpetrator what the impact of the violence has been and to be empowered to discuss future needs, including any reparations. Such a process potentially places great power in the hands of the family violence victim.
However the same concerns can be raised about the use of restorative justice in family violence cases as there are about the use of family mediation in cases of family violence. The concerns about use of restorative justice in this context include unequal power relationships between victims and perpetrators, concerns about safety, and concerns about the appeal to apology and forgiveness which are part of the cycle of abuse in family violence.
The Commission concluded that restorative justice processes have the potential to assist victims of family violence to recover from the impact of the abuse and to mitigate the limitations of the justice system (RCFV Report, Volume IV, Chapter 22 p.143). The Commission recommended that within two years a pilot program be developed for the delivery of restorative justice options for victims of family violence which would have victims at its centre, incorporate strong safeguards, be based on international best practice, and be delivered by appropriately skilled and qualified facilitators (recommendation 122).