Canberra’s domestic violence ‘mediation’ in spotlight, as alleged offenders get a say in rules

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Updated

December 02, 2018 11:39:48

A fresh approach to domestic violence that lets some alleged offenders have a say in the restrictions made against them has put Canberra’s courts in the spotlight.

Key points:

  • Last year a mediation program was made compulsory for every family violence protection application in the ACT
  • A mediator discusses terms of agreement with couples in separate rooms
  • It has had a 95 per cent success rate since starting

There had been national — and some international — interest in the program, which had so far boasted a 95 per cent success rate.

In the ACT, mediation between couples was now compulsory for every family violence protection application.

Deputy Registrar Philippa Spence, who runs the program, said couples were kept apart in different rooms, with a mediator shuttling between, discussing terms of an agreement.

“For example, it can determine what contact the respondent has with the applicant or what contact the respondent has with any children to the order,” she said.

“So it really allows them to determine what they feel comfortable with.”

The program started 15 years ago, and the ACT is the only state or territory that had moved to make it mandatory, which it did in 2017.

It had since been regarded as nation-leading, with Ms Spence having had talks with other jurisdictions — and inquiries from as far away as Singapore.

‘A lot of emotions and frustrations get raised’

It runs on a no-admissions basis, meaning agreements are reached by consent rather than imposed by a magistrate.

Since it began, only 5 per cent of cases had proceeded to a formal final hearing.

“I’d say the benefits of conferencing is that it provides ownership to the parties themselves to determine what outcome they get from the order or from the application,” Ms Spence said.

But she admitted some people do get angry.

“It’s a process in which a lot of emotions do get raised and a lot of frustrations are raised as well,” she said.

“Sometimes, if emotions are escalating, the best thing to do is just to remove yourself from the situation and walk out and let them calm down. Other times you might need to get them a glass of water, let them have a think about it.”

Ms Spence said safety measures were in place, although there had never been a serious issue.

“The conferencing rooms have two exits — there’s a duress button in the rooms,” she said.

Mediators handle 15 times more cases than magistrates

This year more than a thousand applications were made to the court, and mediators handle about 15 conferences a day.

In comparison, magistrates hear about one formal domestic violence case a day.

Chief Magistrate Lorraine Walker said the court keeps option open, even if the conferencing at first fails.

“Even when the matter goes before a magistrate, parties may be asked, ‘is there any scope for resolution?’ and the idea is to keep to a minimum the conflict in the court environment,” she said.

Ms Walker said consequences of court proceedings could be deadly, as proved in the Tara Costigan case.

In a case that shook the nation, 28-year-old Tara Costigan was murdered by her ex-partner with an axe, while she was nursing their newborn.

Less than a day earlier, she had filed for a domestic violence order against her killer, Marcus Rappel.

The 2015 death sparked a string of changes in the ACT’s domestic violence sector.

Ms Walker said court processes were the most dangerous time for many victims who successfully obtained an order.

“And I certainly, subsequent to Ms Costigan’s death, would say to people ‘are you sure this is the right way to approach this matter, have you got safety plans in place?'” she said

Claudia Maclean from Canberra’s Women’s Legal Centre said that was a critical issue for her clients, and one that is addressed by the court’s alternative service.

“I would say safety planning is incredibly important firstly for the practicality of the situation, but I think more importantly also it gives a sense of control so it is women who are controlling their own safety,” she said.

Some cases ‘require a tougher approach’

Related Story:
The dangerous year of family violence that Canberra won’t soon forget

But there are some cautions about the program, which is endorsed by the legal services whose clients use it.

Ms Maclean said the no-admissions basis could potentially affect other proceedings, particularly when there is no record of allegations of domestic violence.

“That can pose some difficulties in family law matters where that information is not available for those proceedings,” Ms Maclean said.

Margie Rowe from the ACT Legal Aid Office said the system worked extremely well, but there was always a risk an agreement would not fix the problems.

“There’s the risk, I think, on both sides, that they settle and agree to either no order or an order that doesn’t have sufficient terms to promote safety,” she said.

Family and domestic violence support services:

Ms Spence said the orders made were legally binding, although some people do breach their promises.

“Some people do but I think because both parties have ownership over what the final agreement is, the breach rates are lower than other jurisdictions,” she said.

She said some cases require a tougher approach.

“If there is an associated criminal charge then the applicant or the alleged victim will have a special interim order and that’s automatically made,” she said.

Topics:

community-and-society,

domestic-violence,

law-crime-and-justice,

courts-and-trials,

australia,

act,

canberra-2600

First posted

December 02, 2018 09:20:12



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