negotiating under the shadow of domestic violence - rachel field
TRANSCRIPT
Negotiation under the shadow of domestic violence
Professor Rachael FieldBond Law School
Introduction
• There are many challenges when negotiating in contexts of domestic violence.
• Fortunately, there is now a greater awareness of the prevalence of family violence in family law matters generally and in FDR processes specifically.
• The dynamics resulting from a history of family violence can severely compromise the safety and efficacy of outcomes reached through FDR.
• In 2010 a model of family mediation (CFDR) was piloted by the Federal Attorney-General's Department. It was designed specifically to support the achievement of safe outcomes in matters with a history of family violence.
• This presentation discusses learnings from that pilot and from the AIFS evaluation of the pilot, and some of the tips and tricks that can be applied to practice outside the context of the CFDR model.
Family violence
• Coercive control.• Power and control tactics.• Selective, uninvited, repetitive oppression of one person by
another person.• It can be one incident when that incident is used in an
ongoing way to threaten, coerce and control the other person.• It is instrumental - where a person coerces and controls to
gain benefits and resources within a relationship. (Johnson 2006; Kimmel 2002; Stark 2010).
• More than high conflict and bad/inappropriate behaviour.• Gendered.
Family violence in FDR contexts
• The 2012 AIFS Survey of Recently Separated Parents found that a majority of the parents surveyed reported “either physical hurt or emotional abuse both before/during and since separation” (p 42).
• A majority of those parents reported that their child “had witnessed physical violence or emotional abuse”, with a little under one-half reporting children witnessing family violence since post-separation (p 43).
• http://www.ag.gov.au/Publications/Documents/SurveyOfRecentlySeparatedParents2012/SRSP_Report.pdf
A Wish List
A wish list for working with efficacy in DR contexts where there is a history of DV :
1. A focus on safety – safe process, safe outcomes (particularly for children).
2. A deeper understanding of family and domestic violence across the DR and legal professions.
3. Adequate resources.
Safety first: Family Law Act 1975 (Cth)
• Legally - greater weight should be given to protection of children from harm when determining what is in a child’s best interests.
• 60B Objects of Part VII and principles underlying it.
• 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.
Safety first: Family Law Act 1975 (Cth)
• 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.
A deep understanding of family and domestic violence across the sector.
• The Batterer as Parent Addressing the Impact of Domestic Violence on Family Dynamics Lundy Bancroft, Jay G Silverman and Daniel Ritchie (2nd ed 2011).
• Focuses on the emotional and developmental risks to children who witness family violence.
• there is a “coherent and consistent profile of attitudes and behaviours” that are regularly apparent in perpetrators of violence: They
• Are controlling• Have a strong sense of entitlement• Are selfish and self-centred• Have a strong sense of superiority• Are possessive• Confuse love and abuse• Are manipulative• Externalize responsibility• Deny and minimize their violence
A deeper understanding of family and domestic violence across the sector.
Greater awareness and acknowledgement of:• Domestic and family violence are gendered
forms of violence.• The typologies cannot be relied upon alone
to guide understandings of ‘types’ of family violence.
• Domestic violence and men’s workers have professional expertise that needs to be accessed and harnessed.
Adequate resources
• Family violence currently costs the Australian economy more than $10 billion a year.
• By 2021 it is estimated to cost more than $15 billion a year.
• Much of the real human cost of harm from family violence is unquantifiable.
• FDR should be adequately resourced to support safe outcomes for families.
• Bring back CFDR(-plus)!
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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EXPLORATION CA
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Phase 3: CFDR Mediation
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AIFS Evaluation• Evaluation findings affirmed the efficacy of the design elements of
CFDR:• Adequate risk assessment for the parties’ safety and well-being
is critical in family violence contexts: parties whose capacity to engage in the process is diminished to the point that inappropriate and unsafe outcomes may result, do not belong in family mediation.
• Preparation and support for the parties’ participation in FDR is key: parties should receive legal advice and counselling, be coached in how the mediation process works and what their role is in it, and they should receive instruction on how to negotiate effectively in mediation (for example, communication strategies, how to identify their key needs and interests and how to prioritise them, option generation and how to identify their bottom line).
• Vulnerable parties have more chance of making their voice heard in mediation in the context of lawyer-assisted models, as long as those lawyers are trained in dispute resolution and the dynamics of family violence.
Additional elements of effective practice
• Interdisciplinary collaboration – professional conversations.
• Case management.• Ethics: Claiming the right to elevate safety and
party self-determination.• Use of narratives to retain engagement.• Use of problem solving models for process and role
clarity.• Focus on short term arrangements to demonstrate
the possibility of successful arrangements.• More time and resource intensive: strategic use of
legal and therapeutic support, more private sessions.
Third action plan to reduce family violence • ‘Improving access to legally-assisted family dispute
resolution is also critically important, as it allows those experiencing family violence to resolve disputes outside the family law courts and provides a safe and empowering early intervention. This measure will direct additional funding to Family Relationship Centres to deliver legally-assisted and culturally appropriate family dispute resolution to vulnerable families, particularly Indigenous and culturally and linguistically diverse families.’
• Productivity Commission• Victorian Royal Commission into Family Violence • FRSA
