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A Review of Best Practice for Families Affected by Violence in Post-Separation FDR

Sarah Dobinson & Rebecca GrayNovember 2015

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• Aims and method of review• Risks • Benefits• Non-disclosure• Consensus• Barriers• Conclusions

Overview

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• Conducted a systematic review of the literature• Collated information on “best practice”• Aim: to identify existing best practice and shed

light on areas of confusion to improve service delivery now and over the next ten years

• We focused on legal and social sciences databases

• We focused on Australia since 2006• We noted seminal writers (Field, Bagshaw,

Moloney etc)• Checked their reference lists

Aims and Method

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There is a lack of community / practice based

research

Support organisations to publish or disseminate

their work

Key finding One

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• FDRs aim of facilitating negotiation between equal parties undermined by power imbalance

• Victims may be silenced, intimidated and exposed to further violence

• Victims may be pressured into agreements• Victims, and their children, are exposed to further

risk post-mediation • Some victims prefer FDR to court, and describe

benefits

Bagshaw et al., 2011; Kaspiew et al., 2010; Field, 2010; Sifris & Parker, 2014; ALRC, 2010; Kirkwood, 2007; Wheeler, Gray & Hewlett, 2015

Risks

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These risks are most prevalent where family violence is

not identified, or not handled appropriately

Key finding two

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• Reduced cost• Increased flexibility• Faster resolution• A less-adversarial process• Empowerment through:

o Increased self-determination;o FDR can accommodate and recognise emotion;

ando The potentially therapeutic effect of having

stories of past violence heard and acknowledged

ALRC, 2010; Field & Lynch, 2014; Kirkwood, 2007; Wheeler, Gray & Hewlett, 2015

Benefits

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The professionals need adequate training in family

violence

FDR model needs to be responsive to family

violence

Key finding Three

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• The reality: cases involving family violence will continue to undergo FDR (ALRC, 2010)

• 85% who attempted FDR had experienced emotional or physical violence in their relationship (Moloney et al., 2010)

• 40% who reported experiencing emotional or physical violence did not disclose in FDR (Bagshaw et al., 2010)

Non-disclosure

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Reasons include:• Shame• Fear of retaliation • Fear that they will not be believed • Fear of being perceived as uncooperative• Not ready or able to identify their history of family

violence at the beginning of FDR

Bagshaw et al., 2010; Kaspiew et al., 2010

Non-disclosure

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May want to undergo FDR in preference to court:• Perceived as less daunting• Particularly for those who have to self-represent

against the perpetrator• Victims perceive FDR as a faster route • Put the needs of their children above their own

ALRC, 2010; Field, 2010; Kirkwood & McKenzie 2008

Non-disclosure

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People who use violence may choose not to disclose:• Due to shame• Lack of insight• Fear of repercussions • Unwillingness to make admissions or take

responsibility

ALRC, 2010; Kaspiew, De Maio et al. 2014

Non-disclosure

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Given the prevalence of domestic and family

violence in FDR, we need to develop

a family violence framework

as standard.

Key finding Four

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Safety measures• Gender-balanced professional team; • Availability of telephone or shuttle mediation; • Staggered arrivals and separate waiting areas; • Risk assessment on separate days; • Support persons waiting for them; • Vulnerable party to speak first in mediation; • Breaks to privately “check in” with the victim.Field & Lynch, 2014; Kirkwood & McKenzie, 2008; Rice, Washington, Signal & Taylor, 2012; Sifris & Parker, 2014; Beck, Walsh, Mechanic & Taylor, 2010; Henry & Hamilton, 2012a; Kirkwood, 2007; Semple, 2012

Best Practice: Areas of Consensus

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Safety measures• Safety plan must be developed for every case as soon as risk is identified

o Revisit in response to dynamic nature of family violence• Prepare the parties before FDR commences • FDRP to abandon classically ‘neutral’ position in favour of ensuring equality between parties• Perpetrator accountability• Post-mediation follow-upKirkwood & McKenzie, 2008; Field, 2010; Field & Lynch, 2014Bickerdike, 2007; Douglas & Field, 2006; Kirkwood, 2007; Semple, 2012

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Screening• Screening identifies the presence of family

violence• Must be sophisticated to determine which cases

proceed

Risk assessment • Determines the nature, frequency and severity of

violence to determine the current level of the risk • Conducted by highly trained and skilled

professional• Must be ongoing, periodic and undertaken amidst

trustJaffe, Johnston, Crooks & Bala, 2008; Rathus, 2013; Sifris & Parker, 2014; Wangmann, 2008

Consensus

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Screening, risk assessment and training are time and resource intensive, but

imperative

Research is needed to overcome barriers

associated with resourcing

Key finding five

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Collaborative practice• Allows varied needs of clients to be met through

holistic response• Allows professionals to share their professional

knowledge and expertise• Inter-professional collaboration increases

accountability

Croucher, 2014; Field & Lynch, 2014; Jaku-Greenfield, 2012; Kaspiew et al., 2014; Moloney, Kaspiew, De Maio, Deblaquiere, 2013a; Moloney, Qu, Weston & Hand, 2013b

Consensus

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Collaborative practice• Lawyers are important in equalising power

imbalance• Can empower victim by:

o Explaining legal rights and responsibilitieso Preparing them for mediationo Assisting them in identifying and advocating

for their interests and those of their childreno Helps make final agreement legally bindingo Facilitate alternatives FDR unsuccessful or

unsuitable

Field & Lynch, 2014; Moloney et al., 2013; Kaspiew et al., 2012; Field, 2004;

Consensus

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Outcomes are improved by good collaboration

We need more published accounts of what works in good collaborative practice

Key finding six

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Issues with Screening and Risk Assessment• No universal screening tool• Practice varies across agencies and between staff• Ensuing debate about tools

– What the tools should look like– Who should administer them

• Universal tools are not culturally or locally appropriate

• Tools do not factor in victim or professional capacities

Henry & Hamilton, 2012; Kirkwood & McKenzie, 2008; Rice et al., 2012; Sifris & Parker, 2014; Pokman, 2014; Kaspiew et al., 2012; McIntosh 2013

Barriers to Best Practice

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Differing Understandings of Family Violence• In 2011 family violence definition introduced to

FLA• BUT differing philosophical approaches remain• Should we use typologies?

o Does this fit with family law definition?o Too great a focus on physical violenceo Too great a focus on single acts of abuse

• If combined with a focus on coercion, control and fear risks placing too great an evidentiary burden on victim

Croucher, 2014; Rathus, 2013; Robinson & Moloney, 2010; Wangmann, 2008; Kelly & Johnson, 2008; Bickerdike, 2007; Beck & Raghaven, 2010

Barriers

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Differing Understandings of Family Violence• Is family violence gendered?• Family violence theorists:

o Define FV as “interpersonal conflict”o Count individual acts of physical or emotional violenceo Severity is derived from physical abuseo Findings suggest FV is gender balanced

• Feminist theorists:– Assess purpose, impact, history and context– Findings indicate women are more likely to experience

FV

Australian Law Reform Commission, 2010; Bagshaw et al., 2010b; Kaspiew et al., 2012; Kirkwood, 2007; Cleak et al., 2014; Wangmann, 2008.

Barriers

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Understanding of FV affects practice• Disagreement diminishes collaborative practice• Affects which cases are identified as involving FV

and assessment of the nature and severity of risk in screening and risk assessment

• Agency and practitioner understandings of FV will influence how these cases are managed

Barriers

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“Culture Clash” between lawyers and FDRPs• Lack of trust• Differing professional values and languages• Differing understandings of family violence• Conflicting views on client needs• Lack of understanding of each other’s roles, goals and objectives

Hollonds, Hayes & Gleeson, 2012; Jaku-Greenfield, 2012; Kaspiew et al., 2009; Moloney et al., 2013

Barriers

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Professionals should be trained and educated on

family violence and on each other’s roles, limitations

and responsibilities

If this is happening, the findings need to be published or shared

Key finding seven

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Confusion about which model of mediation to employ• Disagreement about different FDR models

– Absence of research on the effectiveness of interventions for men who use violence alongside FDR

• Lack of focused research about the efficacy of all models

• Confusion about when to use Child Inclusive Practice

• Safety concerns raised, need for case by case decisions

• Need for further research to resolve debatesField & Lynch, 2014; Goodhardt, Fisher & Moloney, 2005; Smyth & Moloney, 2003; Hamilton & Henry, 2012b; Hart, 2013; Hart, 2009; Kaspiew et al., 2012

Barriers

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Consensus:• Screening• Risk assessment• Interagency collaboration• Balance power between parties• Professional development

Conclusions

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Dissension:• What screening tools? Universal tools?• How should they be used? Who to screen out?• Who should administer these tools?• How to define family violence in this context?• How to improve interagency collaboration?• Which mediation style is most appropriate?

Conclusions

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Dobinson, S. & Gray, R. (2015, November). A Review of Best Practice for Families Affected by Violence in Post-Separation FDR: Objectives for the Next Ten Years. Future of Families: Preparing for Change, FRSA National Conference. Gold Coast, Australia: Brisbane Convention and Exhibition Centre.

Publication under review with the Australian Journal of Family Law

Thanks!

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