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Why some women walk away from the family court

On the surface, their two-decade marriage might have looked a success: a large home, prestigious cars in the driveway and a gaggle of children growing fast.

But when Sarah’s* husband returned home each day from his high-paid job in Melbourne’s business district, she bore the brunt of his frustration and violence.

He urinated on her, cut her hair, assaulted her and forced her to sleep on couch cushions on the floor rather have her “dumb, dirty, stupid” presence in their bed.

When Sarah eventually fled – not a dollar to her name – and took out a restraining order, her wealthy husband warned she was “never going to get a cent”.

It is at this stage that Sarah could have considered Mediation as a mechanism to bring her husband to the negotiating table, mediation today can be conducted in a safe-space, where the parties can be in separate rooms in case of fear of violence and intimidation.  There are also online facilities available where it can be conducted from the safety of your own home.

Many disadvantaged women simply walk away from their entitlement to a fair division of property when relationships end because of a lack of quick, affordable ways to resolve family law disputes, according to new research from the Women’s Legal Service Victoria, launched on the eve of International Women’s Day.

A quick affordable method to resolve this could have been Mediation, had Sarah known of the options available to her, even if the matter had already gone to compulsory family mediation and a 60i certificate had been issued, there was nothing preventing Sarah from taking control of her life and invoking private mediation, this time with a qualified Mediator of her choice, the mediation would still be unbiased and facilitated in a neutral capacity but at least Sarah could feel comfortable with the person doing the mediation.

Dividing assets, like superannuation for example, through the family law system is far too complex for someone with no legal training, the service’s lawyers say.

Researchers interviewed about 50 clients who had small amounts of property to divide up after separation, with the average size of settlements about $71,000.

But these relatively modest sums could make a crucial difference to the lives of these women, who were often battling financial hardship.

They told heartbreaking stories of being admitted to hospital from court-related stress, or spending a year in a court battle, having to interpret legal documents with a dictionary in one hand.

Even before matters reached court, two-thirds of women had their claims delayed because their ex-partners were unwilling to make a full and frank disclosures of their financial position.

This meant they had to begin onerous court proceedings, rather than settle matters through negotiation,  however once more, appropriate dispute resolution through Mediation may have helped achieve a faster result.  Even if there had been a failed attempt at mediation in the early stages of the break up when things were highly emotionally charged,  as time passes, the opportunity to revisit mediation for resolution should not be overlooked.

The relevant laws are incredibly complicated and hard to interpret, and accessing any rightful ownership is a many-step process, said Helen Matthews, the director of policy at the legal service.

“At the moment it’s one-size-fits-all approach, no cheap or efficient way of dealing with smaller matters in the current system,” Ms Matthews saaid.

The majority of women interviewed – almost 90 per cent – had experienced family violence, including economic abuse, and all said the delays they experienced in resolving disputes only exacerbated their financial difficulties.

Once more, had Sarah been informed of the low cost solutions available with Mediation and the speed at which it could resolve things so she could get on with her life, things may have been very different.

Sarah’s only option when she left her husband was to sleep in a donated tent at the local showgrounds. Their children remained in the family home – he had never been violent towards them and Sarah felt they would be safe.

For three months she lived on cornflakes and canned food until she was placed in community housing.

Through her eight-year family court matter, Sarah had to constantly subpoena her partner – at more than $100 a pop – who did not want to disclose his financial situation. She was eventually awarded a $100,000 settlement.

Sarah continues to be terrified of her ex-husband, and said when she saw him at the court hearing she almost wet herself with fear. Negotiation through a third party would reduce this trauma for women in her position, she says.   The best qualified third party in such a situation is an appropriately qualified Mediator who has been accredited through the National Mediation Accreditation System and is registered with the Mediator Standards Board of Australia.

Family violence is only rarely taken into account in determining property settlements, researchers found, despite the fact that economic abuse often leaves women with limited resources.

Mediation however can also help manage high conflict cases such as Sarah’s through use of Restorative Justice and Shuttle Mediation processes along with online services that are available now where you can participate in the mediation from the safety of your own home.

There should be a streamlined system for small property matters, and strengthened obligations for financial disclosure, researchers say.

Sarah, who found the Victorian Women’s Legal Service by searching the terms “women and help” on a computer in the local library, says the free legal advice and support saved her life.

“I was suicidal and could see no future for myself. I’m so appreciative of them.”

*Names have been changed for safety reasons, article original source from the Age.

For further information on if Mediation can help you, please complete the contact form below for a free initial consultation.

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Restorative Justice & Family Mediation

For many people experiencing a family breakup as a result of domestic violence,  they look to the Family Law Courts for justice, perhaps not realizing this is not the venue where they will get justice.

The perpetrator of domestic violence often goes unpunished and for the victim going to Court there is some expectation that the Family Court system will finally give them that closure.    Unfortunately it is an unlikely outcome as the Family Court system is there to resolve disputes between the parties when it comes to property and parenting matters.

It is not a place where the victim can expect that the perpetrator will be finally brought to answer for the harm they have done, with cases involving Domestic Violence the offender more often than not does not get punished, an AVO is in place to hopefully prevent further violence but often there is no justice for the victim.

Would Restorative Justice help?
Restorative justice is a system of criminal justice which focuses on the rehabilitation of offenders through reconciliation with victims, it is an approach to justice that personalizes the crime by having the victims and the offenders mediate a restitution agreement.

For some perspective courtesy of Mediate BC Blog restorative justice can assist not only in Domestic Violence cases but also with cases of breach of trust and fidelity.  The author says… I have yet to mediate a family dispute that did not involve some kind of harm in addition to the very real and challenging problems confronting the participants. I suspect that this is true for you as well. About 15 years ago I was introduced to the idea that solving harm and solving conflict are two different things entirely.

The Justice Problem

How can we resolve the harm that occurred through accountability, amends and support? Here the person causing harm has moral obligation. 

The Conflict Problem

How can we negotiate a mutual solution to the mutually agreed problem? Here there is moral neutrality.

I believe it is this difference in the moral status of the participants that creates the need for different and distinct processes.

In my experience, and according to the material I have read, any Justice Problem is going to make solving the Conflict Problem more difficult. The truth of this was painfully apparent when I was working with one couple.

I was helping this couple with a parenting and financial agreement. They had been separated for 1 year and were primarily communicating through their 9-year-old son. Their separation occurred after an extremely harmful verbal attack. The wife had committed adultery years earlier and they had managed to remain together despite not dealing with some of the key factors leading up to and resulting from the infidelity. She was beginning to show some of the same behaviours that had occurred last time and the husband freaked out. Both acknowledged that this was a terrible outburst and was unacceptable.

Due to his shame and guilt and justified anger at her newest betrayal of their marriage, and her fear and shame at his reaction and how she had triggered it, they had stopped talking to each other. As co-parents they did have many conflict problems they needed to solve, so some communication was required. Thus the inappropriate use of their son as a go between.

I was aware of this trigger event when we started dealing with the co-parenting agreement, but they initially told me they wanted a conflict-focused process geared towards getting the co-parenting agreement done. It quickly became apparent that the trigger event was looming large and it was a huge problem barring our way forward.

I tested to see if a restorative process would be possible to resolve enough of the Justice Problem (his outburst) to proceed with the co-parenting agreement. Was he willing to take responsibility for his actions and communicate this with her? Yes he was. He was horrified at what he had done and deeply needed to express this. Was she open to communication with him about this and to hear his apology?  Yes she was, though for safety reasons she wanted it to be in written form and she wanted to be able to respond in writing. He was open to this process.

So I coached him on how to write a helpful apology letter and we worked through three drafts together. I delivered the final draft to her and sat with her while she read it. We talked some things through and then she went home to write her response. She shared a draft with me which was excellent and I passed that on to him and helped him process it. Both reported a significant sense of relief and resolution and an increased openness to communicate directly with each other.

We were then able to move towards completing the co-parenting and financial agreements.

This integration of a restorative process (dealing with the harm) with a conflict resolution process was able to get the participants unstuck and moving towards a better future as co-parents. There are many other methods and tools that restorative justice brings to Justice Problems that can help transform an intractable problem into a manageable one.

I often describe to my clients that they have a choice of what they want to deal with in a mediation with me.  We can deal with the justice issues and then deal with the conflict issues, or we can just deal with one or the other.

Given that many family problems are tied into abuse or unhealthy family dynamics it is a regular occurrence that I will need to remind clients of that choice:

Are we seeking justice or are we problem solving?

Sometimes we shift between the two dynamically.

If given permission, I will always deal with the justice issues first. Often I don’t get permission to work with the justice problem, so other supports are required for the person who caused the harm and the person who experienced it (sometimes these roles are shared by all). This is why I like to have a team of legal, health and financial professionals to equip my clients to cope with the often complex and high value problems they bring to me.

How have you thought about the moral status of your clients and the role of harm in solving Conflict Problems?

How do you work to overcome the barriers that Justice Problems bring to solving family disputes?

Contact us with the form below for a free initial consultation to see if Restorative Justice Mediation is an option for you.

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Shuttle mediation for family violence cases

When there are allegations of family violence, all couples must attempt mediation before a court will grant a permanent family violence order.

The ACT Magistrates Court says that 95 per cent of family violence matters in the ACT are settled and only five per cent go before a magistrate for hearing.

So how does this system work and why is it so successful?

Click Here to listen to the ABC Radio National Program on Shuttle Mediation.

If you would like more information on how ADROnline can assist not only with Shuttle style mediation, but having it done online from the comfort and safety of your own home, fill in this form and we will contact you for a free consultation.