Queensland University of Technology CRICOS No. 00213J Post separation arrangements for families affected by domestic and family violence: The wisdom of

Queensland University of Technology

CRICOS No. 00213J

Post separation arrangements for families affected by domestic and

family violence: The wisdom of Winnie the Pooh

Jon Graham

Mediation Guru and All Round Nice Guy

Dr Rachael Field

Associate Professor

QUT Law School

CRICOS No. 00213Ja university for the worldrealR

Winnie and Woozles… In presenting today we wanted argue the importance of the work of Jenn McIntosh and others.• It is right to elevate the needs of children above the needs of parents.• It is right to ask our Family Law system to avoid a one size fits all approach

to post separation parenting; • All parenting decisions need to be based on the needs of the individual

child, the broader family context, the context of child development and solid child development theory.

• We also agree that in order for children to thrive, parents, children and all family members need to be safe.

Our theme today is a call to re-emphasise the importance of these basic principles in all of our work. It is our observation that in the work that the Court and Non Court based Family Law sector undertake the most important principle is Family Safety.


Grid of Factors

• The child’s safety with each parent and the parents safety with each other.

• The child’s trust and security with each parent.• Parent mental health.• The young child’s health and development.• The young child’s behavioural adjustment.• Qualities of the co-parental relationship.• Pragmatic resources.• Family factors; extended and cultural. (McIntosh, Pruett and Kelly

2014)

[Questions not answers]


Application of the Grid to Safety Trust and Security

Safety, Trust and security.– Children are not safe; trust and security are lost when they grow up in a house

where Domestic Violence is present.– Child safety, trust and security is compromised when high parental conflict is

present.– Domestic Violence and High Conflict are not the same.

Section 60I cannot be the end of our work.– In intervention/model based approaches to our work, we can easily see the

family as fitting or not fitting into the particular paradigm in which we work. – An example of that is the Assessment of Suitability in FDR and Family

Counselling. – Issuing a Section 60I Certificate does not make a case safer – The Duty of Care elements of the Professional are larger than suitability.– We must ensure that Clients/Families are as much as possible safer as a result

of our time with them. That is our duty of care.


The ethical duty for safety

• Heart of the professional identity• Leaving the case safer than when you found it• Can mean that we continue to work with cases that we might other

wise close.• Consider how we might adjust models to accommodate this.


Key family violence amendments to the Family Law Act 1975 (Cth)

• Greater weight to protection of children from harm when determining what is in a child’s best interests.

• A broader definition of ‘family violence’ and ‘abuse’.

• Removal of the ‘friendly parent’ provision.• A focus on protection in advising requirements.• Removal of mandatory costs orders.


Greater weight to protection from harm when determining what is in a child’s best interests

60B Objects of Part and principles underlying it

(1) The objects of this Part are to ensure that the best interests of children are met by:(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and


60CC How a court determines what is in a child’s best interests

Primary considerations

(2) The primary considerations are:

(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and

(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.


Greater weight to protection from harm

• s.60CC(2A) requires that the court give greater weight to the ‘need to protect the child from physical or psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence’ over the benefit of the child having a meaningful relationship with both parents.


New definition of family violence

• 4AB Definition of family violence• (1) For the purposes of this Act, family

violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful.


Responses to amendments

• WLSA feedback is that the amendments have increased safety for victims of violence and children.

• There are still significant issues in terms of shared parenting in family violence contexts.

• Lawyers are able to more confidently argue protective issues.

• A significant full court case is pending that addresses acting protectively as a parent.


Impact of the Amendments: FDR Practice

• Greater focus on protecting children from harm than the right to a relationship with each parent.

• Engagement with a broader definition of family violence.

• Endorsement of the ethics of elevating safety when seeking to promote the best interests of children.

• Abolition of the ‘unfriendly parent’ notion.• As an advisor, need to focus on protection of

children from harm.


The Coordinated FDR Model

• Developed to provide a safe practice approach to family mediation in matters where there is past or current family violence.

• Women’s Legal Service (WLS) Brisbane was commissioned by the Australian Attorney-General’s Department in 2009 to develop the model.

• Piloted in 5 locations around Australia.• Evaluated favourably by AIFS.

AGREEMENTS

NEGOTIATION

EXPLANATION

CLARIFICATION

Phase 4: Post CFDR Follow Up• At 1-3 months AND• At 9-10 monthsConcludes unless parties are re referred back into CFDR

Phase 1: Intake Process 1• CFDR Coordinator Assessment• Specialist Risk Assessment• Case Management Decision

Phase 2: Preparation for FDR & Intake Process2• 2 Legal Advice Sessions• 3 Communication Sessions• Preparation Workshop• 2nd Intake Assessment

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Phase 3: CFDR Mediation

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CFDR has not been funded for a roll-out

• The AIFS evaluation of the pilot of CFDR acknowledged that it was cutting edge practice, and challenging in the collaborative professional relationships it required.

• AGD has not continued to fund it due to resource issues.

• This raises the question: if there isn’t a model like CFDR available – how can FDRP practice ethically and with a focus on elevating safety?


Strategies learned from the CFDR model

• Risk assessment – specialist expert advice.• Preparation – counselling and coaching.• Legally assisted approaches.• Interdisciplinary collaboration – professional

conversations.• Case management.• Private sessions.• More time and resource intensive.


Post CFDR We Need

• Specialised Risk Assessment and Safety Planning

• Conditional Mediation– Using the mediation as an opportunity to build safety

before negotiation of parenting arrangements– Increased use of private sessions– Locked down mediation model, settlement focused

(not using therapeutic models).


Useful resources

• Australian and New South Wales Law Reform Commissions (ANSWLRC) (2010) Family Violence — A National Legal Response (ALRC Report 114) <http://www.alrc.gov.au/publications/family-violence-national-legal-response-alrc-report-114>


Useful resources

• Commonwealth of Australia (2009) The National Plan to Reduce Violence Against Women: Immediate Government Actions — April 2009, Department of Social Services, 2009 <http://www.dss.gov.au/sites/default/files/documents/05_2012/facs_37004_violence_against_women.pdf>


Useful resources

• Evaluation of the 2006 family law reforms - the Australian Institute of Family Studies (AIFS)

• Family Courts Violence Review - the Honourable Professor Richard Chisholm AM

• Improving responses to family violence in the family law system: An advice on the intersection of family violence and family law issues - the Family Law Council.


From Winnie with love…

Documents

Queensland University of Technology CRICOS No. 00213J Post separation arrangements for families affected by domestic and family violence: The wisdom of