The Family Law Co. team attended part 2 of a 6-part family violence training series put on by Smokeball – Legal Software, FamilyProperty & Fiona Kirkman, about Family Dispute Resolution in Family Violence cases. As practitioners it can be easy to fall into the trap of thinking that, as a general rule, family violence precludes participation in Family Dispute Resolution. However, this is not always the case. Below are my 5 key takeaways from this seminar:
1. The Family Law Act provides an exemption to the requirement to participate in FDR prior to commencing proceedings if there has been family violence. Despite this, as lawyers, we are still bound by the objects of the FLA including that we inform clients about ways of resolving disputes other than by applying to the Court for Orders. This includes consideration of whether FDR can be tailored to ensure the victim of DV is not disempowered.
2. As an FDRP, or lawyer acting for the perpetrator, it is important to be able to identify FV and not allow the FDR process to be used to continue the coercive control / domestic violence. By way of example, a perpetrator negotiating family law proceedings on the basis that charges for domestic violence offences in state courts are withdrawn.
3. Pursuant to s67ZA(2) FLA, FDRPs (as well as Family Counsellors, Family Consultants, and ICLs) must notify child welfare authorities if they suspect that a child has been abused or is at risk of being abused. Pursuant to s67ZA(3) Family Law Act, the FDRP / Family Counsellor / ICL may notify a child welfare authority if they suspect that a child has been ill-treated or is at risk of being ill-treated or has been exposed to behavior which psychologically harms the child (or is at risk being exposed to such behavior). A good tool when considering whether to make a mandatory report is the Child Story Mandatory Reporter Guide.
4. Pursuant to s10H FLA, an FDRP must not disclose a communication made to the FDRP whilst conducting FDR, but may disclose a communication in certain situations, for example if the FDRP believes it necessary for the purpose of protecting a child from risk of harm, preventing a serious or imminent threat to life or the health of a person, or reporting the commission or likely commission of an offence involving violence or a threat of violence.
5. Pursuant to s10J FLA, anything said or admission made to an FDRP during Family Dispute Resolution is not admissible unless it is an admission that indicates a child has been abused or is at risk of being abused, or a disclosure by a child that indicated that the child has been abused or is at risk of abuse. However, this does not extend to intake sessions conducted by the FDRP to assess suitability for FDR.
To speak to one of our Family Law Solicitors to find out if Mediation or Collaborative Practice is right for you and your situation, contact the team here.
