In light of this, Smokeball and FamilyProperty are running a six-part webinar series on exploring best practice in family violence and the state of affairs in family law, as well as donating to family violence charities and encouraging those in the legal profession to do the same.

Following this news, and in the lead-up to the webinar, Fiona Kirkman, co-founder of FamilyProperty, spoke to Lawyers Weekly about the critical issues in the family law space right now and what will constitute best practice moving forward.

“One of the most critical issues currently facing family law is the pervasive problem of family violence. In recent years, there has been a disturbing increase in incidents of family violence, especially during the pandemic. This alarming trend is exacerbated by the current economic climate, which intensifies underlying tensions and often forces families to endure living arrangements that require them to coexist in the same household while being separated,” she explained.

“As a result, the risk of conflicts and instances of family violence escalates significantly, placing individuals in the difficult position of navigating the separation process and the family law system while still residing together. Exposure to conflict and family violence can have devastating and long-lasting effects on children, including emotional and psychological issues, behavioural problems and strained child-parent relationships.”

With family violence on the rise in Australia, mediation is becoming all the more important in order to combat victims’ fear in family law and divorce proceedings, which Ms Kirkman emphasised the importance of understanding.

“To reach mediation without exacerbating victims’ fear, lawyers and mediators must prioritise the safety and wellbeing of victims and should have ongoing education around family violence. Lawyers and mediators must possess a deep understanding of the dynamics and patterns of coercive control that characterise such situations and the harm that is caused by these behaviours. This understanding enables them to approach mediation with understanding, sensitivity and a trauma-informed lens,” she explained.

“In the past, family dispute resolution exemptions were commonly sought in cases of family violence. However, through improved mediator training and the shared experiences of victim-survivors in both mediation and litigation processes, it is evident that a tailored mediation process can empower victim-survivors by providing them with a greater sense of control, empowerment, and the opportunity to have a voice in the process.

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“This is in contrast to the litigation process that can exacerbate victims’ fears due to its adversarial nature, the cross-examination procedures and the potential to re-traumatise victims.”

To achieve this, lawyers and mediators alike need to be implementing various “protective measures and safety planning” before engaging in mediation to begin with, including “risk screening and participation in a pre-mediation intake to better understand the dynamics of the family”, according to Ms Kirkman.

“Empowering victims through informed decision-making and providing clear information about their options is essential. Collaborating with domestic violence services and support networks is highly recommended, as is maintaining cultural sensitivity throughout the mediation process,” she said.

“Ongoing support and follow-up are necessary to address the long-term effects of family violence on the family unit. By continuously educating themselves and working alongside other trauma-informed professionals in the field, lawyers can effectively navigate family violence cases while prioritising the wellbeing and safety of the victims involved.”

With this in mind, family lawyers can best serve their clients by prioritising education and safety moving forward, as well as actively engaging in ongoing education regarding the most effective strategies for handling family violence cases.

“This continuous learning ensures that lawyers stay updated on the best practices for managing family violence cases. It is crucial for lawyers to develop a deep understanding of the dynamics and patterns of coercive control and the detrimental effects of such behaviours on the victims, children, and the overall functioning of the family. Lawyers can provide optimal support to victim-survivor clients by approaching their cases with sensitivity, empathy, and a holistic perspective, while also incorporating trauma-informed practices.

“By adopting this approach, lawyers can create a safe and understanding environment for their clients, promoting their wellbeing throughout the legal process. Lawyers should appropriately challenge perpetrators and refrain from engaging in behaviours that may enable their harmful actions to cause further harm to victims and children. Collaboration with other professionals and making referrals to therapists, behavioural change programs, and other support services can offer comprehensive assistance and facilitate the rehabilitation of the family unit,” Ms Kirkman added.

“By expanding their network and involving other trauma-informed experts, lawyers can ensure that their clients receive the necessary support beyond the legal realm. Prioritising the safety of the client, the lawyer, and the family remains paramount. Nuanced problems require nuanced solutions, and lawyers can effectively serve their clients by integrating their education about family violence into their practice.”