Dobinson, Sarah --- "Relational Autonomy and Family Dispute Resolution: How a Feminist Approach Can Improve Service Delivery in the Context of Family Violence" [2016] UNSWLawJlStuS 4; (2016) UNSWLJ Student Series No 16-04

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RELATIONAL AUTONOMY AND FAMILY DISPUTE RESOLUTION: HOW A FEMINIST APPROACH CAN IMPROVE SERVICE DELIVERY IN THE CONTEXT OF FAMILY VIOLENCE

SARAH DOBINSON

INTRODUCTION

In 2006 reforms to the Family Law Act 1975 (Cth) (‘the Act’) introduced family dispute resolution (FDR) as a compulsory first step in post-separation parenting disputes.^[1] For all matters falling under Part VII of the Act—most commonly applications for parenting orders—parties must now attempt mediation before they are able to seek a resolution in the courts.^[2] The legislation does provide exemptions in some cases, including for those in which family violence is an issue.^[3] In recognition of the impact of violence on people’s ability to negotiate safely and effectively, these parents are able to seek an exemption through the courts, or may be screened out at the discretion of their family dispute resolution practitioner (FDRP) if he or she believes FDR would not be appropriate.^[4]

Yet research shows that cases involving family violence frequently undergo FDR. ^[5] This can be due to a failure by practitioners to correctly identify or assess the seriousness of family violence.^[6] Further, victims may not disclose their experiences of family violence for a variety of complex reasons, which can include a desire to attempt FDR despite available exemptions.^[7] When such cases are handled inappropriately this exposes victims and their children to serious safety risks, both during mediation and in the post-mediation context.^[8]

However, research also indicates that FDR can be a rewarding and empowering experience for victims of family violence when handled appropriately.^[9] When these potential benefits are considered alongside recognition of the fact that not all cases involving family violence will be immediately or correctly identified, and that some victims want to attempt mediation, it becomes clear that we must not abandon the use of FDR in these cases. Rather, we must continue efforts to develop and make available specialised models of service delivery to better meet their needs and ensure the safety of parents and their children.

It is with this goal in mind that I will critique the use of FDR in the context of family violence using a feminist theory of relational autonomy. Feminist critiques of mediation began in the mid-1980s, and have been central to the development of mediation theory and practice in the decades since, particularly in the context of family violence.^[10] Ongoing feminist critique remains crucial to the development of best practice in FDR—a process greatly affected by power dynamics, particularly those that exist within the gendered confines of heteronormative relationships.^[11] Further, feminist theories of relational autonomy—which understand selfhood and autonomy as being formed through relationships and social settings—offer a useful tool for analysing a process dependent on one’s ability to advocate for one’s own interests in relation to those of an ex-partner.

I will begin by briefly outlining existing feminist theories of relational autonomy in comparison to the traditional understanding that informs much of our legal theory and practice in Western societies like Australia. This will be followed by a consideration of the extent to which FDR represents a ‘relational approach’ to post-separation parenting disputes. Importantly, the ability of such an approach to meet the needs of parents in cases involving family violence will be considered.

Finally, I will use a feminist theory of relational autonomy to consider two of the main issues impeding the safe and effective use of FDR in the context of family violence: conflicting understandings of family violence, and the failure of current screening practice to respond to victim non-disclosure. Such analysis will assist both theorists and practitioners to better respond to the needs of separating parents affected by family violence and will contribute to the development of responsive and uniform service delivery.

A FEMINIST THEORY OF RELATIONAL AUTONOMY

It is important to acknowledge that, like many areas of feminist thought, there is no single version of feminist relational autonomy. Rather, the work of feminist theorists in critiquing traditional, individualist understandings of autonomy has resulted in a collective body of feminist work offering alternatives to understanding autonomy, with a relational approach as their unifying characteristic.^[12]

A Traditional Concepts of Autonomy: The Dominance of the ‘Autonomous Man’

The traditional concept of autonomy, which lies at the core of much Western legal and political thought,^[13] is individualist. Viewing people as independent from each other it is synonymous with free will, rationality, self-sufficiency and self-determination.^[14] Its origins lie in the Kantian notion of the autonomous agent—exercising free will through rational thought and making self-serving ‘moral’ decisions outside of the constraints of interpersonal attachments.^[15]

Lorraine Code explains the ‘autonomy obsession’ of Western thought, with the ‘autonomous man’ at its core. She writes:

Autonomous man is—and should be—self-sufficient, independent, and self-reliant, a self-realizing individual who directs his efforts towards maximizing his personal gains. His independence is under constant threat from other (equally self-serving) individuals: hence he devises rules to protect himself from intrusion. Talk of rights, rational self-interest, expedience, and efficiency permeates his moral, social, and political discourse. In short, there has been a gradual alignment of autonomy with individualism.^[16]

As Code explains, this view portrays us as atomistic bearers of rights and views values and social practices based on interdependence—such as trust and care—as a threat, or at least a compromise, to ideal autonomy.^[17] Relationships are presented as a barrier to our achievement of independent self-sufficiency.^[18]

B Feminist Critiques of the Traditional Concept of Autonomy: A Relational Approach

Such an approach to autonomy has been criticised since the later stages of the second wave, with feminists arguing that it is ‘inherently masculinist’ and unrepresentative of how many people, especially women, live their lives.^[19] Indeed, those characteristics associated with the autonomous individual are also, in our gendered societies, affiliated with men and masculinity.^[20] Further, they have been presented in opposition to ways of being that have, throughout history, been central to women’s lives and symbolically associated with femininity.^[21] These include loyalty, dependency, trust, care, friendship and love. In presenting the characteristics of the autonomous man as the ideal, and drawing from them an understanding of how a person should live and make choices, the ‘feminine’ alternative has been devalued, both in law and in society more broadly.

Feminist theorists argue that the traditional understanding of autonomy fails to recognise the myriad ways we are both constructed and constrained by our relationships and social contexts. Rather than presenting humans as atomistic, self-serving beings, they contend that we are socially embedded beings, whose identities are formed within a complex web of social relationships and shaped by intersecting social determinants, such as race, class and gender.^[22] They argue against the view of relationships as threats or barriers, and the subsequent devaluation of ways of living that are influenced by interdependence, trust, loyalty, friendship, love and care.^[23]

In so doing, feminist theorists do not advocate for an abandonment of concepts of autonomy or choice. Rather, they call for a reconceptualisation of autonomy, based on an understanding of people as ‘second persons’—constituted by and through our relationships.^[24] This relational understanding of autonomy is sensitive to the fact that our ability to make choices is greatly influenced by our relationships^[25] and by relational elements, such as social expectations and economic dependency.^[26] This approach also places value on interdependent ways of being.^[27]

Importantly, feminist theories of relational autonomy do not unquestioningly value all relationships. Rather, it is recognised that there are both healthy, interdependent relationships that support and enhance autonomy, as well as unhealthy, oppressive relationships, which limit one’s ability to exercise autonomy.^[28] As Jennifer Nedelsky writes, ‘...my conception of human selfhood as constituted by relationships has nothing warm, mushy, or romantic about it. Feminists above all know that the web of relationships in which we exist is not necessarily benign.’^[29] Relational feminists approach oppressive relationships by recognising their effect on a victim’s sense of self and agency, and highlight the importance of supporting victims in gaining autonomy from them.^[30] Feminist theories of relational autonomy are thus extremely useful in devising approaches to understanding and addressing family violence.

FAMILY DISPUTE RESOLUTION AND FAMILY VIOLENCE IN THE AUSTRALIAN FAMILY LAW SYSTEM: A RELATIONAL APPROACH TO POST-SEPARATION PARENTING DISPUTES

It has been close to a decade since the introduction of compulsory FDR in Australia. This requirement is not unique to Australia, but is part of a larger movement towards the use of mediation in post-separation family law that began in the United States in the 1980s, and has since gained traction in multiple jurisdictions.^[31] As a non-judicial process facilitated by a neutral third party, mediation offers a cheaper, faster and more flexible alternative to traditional court processes.^[32]

A Family Dispute Resolution as a ‘Relational Approach’ to Post Separation Parenting Disputes

In Australia, compulsory FDR was introduced with the aim of reducing the adversarial nature of post-separation parenting disputes by encouraging parents to cooperate in reaching their own parenting agreements.^[33] This was done in recognition of the damaging effect that adversarial court processes often have on relationships. It was hoped that by encouraging parents to negotiate in a more therapeutic setting, their post-separation relationships would be improved, ultimately serving the best interests of the child.^[34] By encouraging private and independent dispute resolution, FDR relies on the principles of autonomy, self-determination and party empowerment.^[35] It also moves parenting disputes from the public to the private realm.^[36]

In many ways, such an approach fits neatly within a feminist theory of relational autonomy, and feminist legal scholars have commended FDR for having aspects that stand up to feminist analysis.^[37] The departure from the adversarial approach represents a separation from a legal system that expects people to act as independent, rational individuals in advocating for their personal interests objectively, and allows for ‘feminine’ values and emotions to be taken into account. Further, there is recognition of the importance of healthy relationships, and of the way that children develop through their relationships with caregivers. This recognition extends not only to the effect on a child of their relationship with each parent, but also to the effect on a child of an antagonistic relationship between their separated parents.

This approach mirrors recognition in feminist theories of relational autonomy of the importance of the parent-child and parent-parent relationship in forming a child’s sense of self and autonomy.^[38] Susan Boyd writes, ‘a relational approach [to post-separation parenting disputes] would require attention to the potential for healthy, cooperative relationships between the adults themselves, and the adults and the children.’^[39] FDR appears to offer such an approach.

In fact, as available ‘mediation styles’—such as transformative and settlement-focused^[40]—have expanded, a recent development has seen the introduction of ‘Relational Family Dispute Resolution’.^[41] This new model incorporates therapeutic elements directed at resolving parents’ issues with each other, with the aim of transforming how they relate and negotiate.^[42] It is hoped that this will result in healthy parent-parent and parent-child relationships within the separated family unit.^[43] The relational model clearly recognises the family, even post-separation, as an interdependent group of individuals who will be shaped by and through their relationships and thus seeks to foster healthy relationships between them.

Further, while FDR places great focus on the principles of self-determination and autonomy, these principles are not understood in the traditional sense, but rather take on a relational meaning.^[44] Emphasis is placed on the autonomy of the family collectively as separate from the courts, rather than on the autonomy of each individual pitted against each other. The separating parent’s relationship is not seen as a barrier that each must overcome in advocating for their own interests, but rather the needs and views of both are valued equally.^[45] The goal is to empower them to cooperate in reaching a solution that meets both of their needs, and those of their children, with the mediator facilitating that cooperation rather than imposing a decision upon them.^[46]

In addition to ensuring that both parents are heard, recent developments in FDR have seen a move towards child-inclusive practice, which also gives children a voice in determining how they will be raised. ^[47] By handing the power of self-determination to the members of the family collectively, FDR moves the resolution of these disputes into the private realm. Given that those matters left in the public realm of the courts typically have the autonomous, rational man as their subject, and are determined through a focus on individualism, competition and self-interest,^[48] FDR reflects a more relational understanding of decision-making.

In moving the decision-making process for parenting agreements to the private realm FDR is also able to take into account factors that are not recognised in traditional court processes. Most notably, the emotions of all parties are acknowledged, valued and used to inform the mediation process.^[49] FDR acknowledges those values—such as love, care and trust—which traditional understandings of autonomy, and the legal systems built upon them, do not. The opportunity this creates for victims of violence to tell their stories and have their feelings heard and taken into account is identified as a key benefit of FDR when viewed through a feminist lens.^[50]

While it is important to be aware that the retelling of experiences of domestic violence can be traumatising or embarrassing in some cases,^[51] it is also recognised that this storytelling can be extremely therapeutic when done in an appropriate context and met with appropriate responses.^[52] It is here that the value and time given to emotions in FDR becomes important as, when conducted correctly by a trained FDRP, mediation offers a ‘space for nurturing and empathy to be integrated with the expression of women’s voices.’^[53] This ensures that victims are met with acknowledgment and support when they tell their stories, accommodating a feminist ‘ethic of care’^[54] and integrating ‘a concern for rights with a concern for needs and interrelationships.’^[55] FDR thus has the ability to empower women by ensuring that decisions about their families are made using language and value systems that allow their experiences and concerns to be heard.

B The Appropriateness of FDR as a ‘Relational Approach’ to Post-Separating Parenting Disputes in the Context of Family Violence

While FDR does offer a more relational approach to post-separation parenting disputes and a feminist alternative to court processes, it is by no means a perfect system. Where a power imbalance is involved, as is often the case in post-separation disputes between men and women,^[56] FDR can effectively silence women.^[57] This danger is increased when family violence is involved, as the power imbalance is likely to be significant. With research indicating that the number of parties in Australia who have undergone FDR in the context of family violence is as high as 85 per cent,^[58] it is clear that such risks require serious consideration.

In Australia, feminist legal scholars such as Hilary Astor and, most prominently, Rachael Field, have long raised concerns around the use of mediation in cases involving family violence.^[59] As Field writes, in such cases ‘the positive characteristics of mediation...relating to self-determination, party empowerment and party control...are all significantly undermined.’^[60] This is because the power imbalance inherent in these relationships makes it extremely difficult for victims to confidently advocate for themselves and allows perpetrators to continue to exert coercive control.^[61]

In considering mediation through a relational lens, Semple highlights how important the relationship between parties is to the success of FDR, stating: ‘within mediation and negotiation studies, power is said to be relational and contextual—it describes an interaction between people and depends on the circumstances in which that interaction takes place.’^[62] When the relational and contextual setting involves violence, the implications of that power imbalance on parties’ ability to negotiate can be severe. This exposes victims to risk both throughout the mediation process and post-mediation, as they are often pressured into accepting unsafe agreements.^[63]

In this context, the focus on improving and preserving the post-separation parental relationship is not appropriate. Practically, this appears to have been recognised by advocates of the relational FDR model discussed above—who state that this style of mediation is unsuitable where family violence is involved.^[64] This view is supported by feminist theories of relational autonomy, which recognise the difference between healthy and unhealthy relationships, and the differing approaches that must be taken towards them. While Boyd advocates for a relational approach to post-separation parenting disputes that focuses on the potential for healthy and cooperative parental relationships, she also recognises that the system must support women who are trying to maintain autonomy from unhealthy relationships.^[65] As Herring writes, if law or policy seeks to promote relationships, it must first ensure that those relationships are safe.^[66]

Equally, where a family has been affected by family violence it is not appropriate to direct parents to act cooperatively, as balanced and safe cooperation between them will not likely be possible. While feminist relational theorists have advocated for family law and policy to be based on an understanding of the family as ‘an organic legal entity’ as opposed to ‘a collection of separate individuals’,^[67] this does not amount to an expectation that victims of violence be bound to perpetrators in the decision making process or its outcomes.

It is here that the ability of feminist understandings of autonomy to acknowledge that meaningful autonomy must be sensitive to the coercive effects of oppressive relationships^[68] is so important. This engenders a call for legal responses to the family that recognise people both as persons in interdependent relationships and, simultaneously, as distinct individuals.^[69] When a relationship is characterised by violence, it is understood that cooperative problem solving is not possible or appropriate as ‘[i]t is an oxymoron to suggest that a perpetrator of violence could engage in cooperative bargaining with his victim.’^[70] Efforts must instead go to supporting victims as individuals working to exercise their autonomy in the shadow of a violent relationship. As advocated for by Field, the allocation of lawyers to victims in FDR can be used to address this issue,^[71] but this does not occur in all cases involving family violence, nor is it a complete solution.

Further, the move to the private realm raises some concerns. Feminists have long fought to have issues of the family, especially family violence, moved from the private to the public realm to ensure that they are taken seriously and handled appropriately.^[72] By moving the resolution of parenting disputes back into the private realm, Boyd argues that they are removed ‘from the influence and interference of legal scrutiny’ and enter a space where men’s resource advantages can be used to their full effect.^[73] Such advantage is particularly pronounced where violence is involved. The private nature of FDR means that perpetrators are less likely to be held to account or to face legal sanctions, with no legal safeguards or standards in place^[74] and no public record or opportunity for appeal.^[75] In this sense, neither the public courtroom nor private mediation offer an ideal solution, which is not surprising as, in Australia, ‘our society continues to be patriarchally structured and dominated in both public and private spheres.’^[76]

While specialised models of FDR do require perpetrators to acknowledge their violence before they can participate,^[77] not all cases are handled in this specialised manner. In cases where violence is not identified or responded to appropriately, perpetrators enjoy relative impunity.^[78] When little attention is given to the impact of violence on a victim and their agency, this effectively silences them, and they are unlikely to feel able to tell stories of abuse suffered or to raise concerns about the future for themselves and their children.^[79] Here, the potential of FDR to include feminist relational values and incorporate emotions is of little use, as victims will not feel empowered enough to access them.^[80]

Fortunately, the concerns of feminist theorists regarding the risks of FDR in the context of family violence have entered mainstream mediation theory in the Australian family law system,^[81] leading to both government funded research^[82] and important changes to service delivery. As a result, there is a growing body of relevant literature, which allows for identification of those issues which continue to impede the safe and effective use of FDR in these cases. While full discussion of these is beyond the scope of this paper, I will now consider two of the main issues and how they may be addressed through use of a feminist theory of relational autonomy.

HOW A FEMINIST RELATIONAL APPROACH CAN IMPROVE THE PROVISION OF FAMILY DISPUTE RESOLUTION IN THE CONTEXT OF FAMILY VIOLENCE

A review of the literature that has been produced on the use of FDR in the context of family violence reveals both areas of consensus regarding best practice, as well as barriers preventing such practice from being delivered in all cases.^[83] These barriers include: a failure by government to fund specialised models of FDR;^[84] the ‘culture clash’ between different professional backgrounds;^[85] disagreements over how to define ‘family violence’;^[86] and screening practices which are inconsistent and ineffective.^[87] I will now discuss two of these issues, and consider how a feminist theory of relational autonomy could be used to address them.

A Understanding Family Violence

Many of the issues faced in the delivery of FDR can be traced back to the debate around how best to understand ‘family violence’. At present, there are significant differences in the definitions and philosophical approaches favoured by professionals engaged in the provision of FDR.^[88] This is problematic, as our understanding of family violence informs the development of responsive service delivery and the way that professionals respond to the needs and safety concerns of their clients.^[89] If that understanding is incorrect or inconsistent, this translates directly into unsafe, unsuitable and inconsistent practice—creating serious risks for victims and their children.

Jane Wangmann outlines the debate that currently exists between ‘family violence’ theorists and feminist theorists,^[90] and filters through the family law system. On the one hand, family violence theorists view violence in a relationship as an issue of ‘interpersonal conflict’ and assess each case by identifying and counting individual acts of violence, with a focus on physical violence as more serious, and on the time proximity of each act to the date of separation.^[91]

On the other hand, feminist theorists understand family violence as a tactic of coercion and control. They argue that a focus on physical violence is dangerous as it fails to recognise the severity of other forms of family violence.^[92] This is an important point, given that many victims describe emotional and psychological abuse as more damaging and it is victims, as opposed to researchers or practitioners, who are best placed to understand the seriousness and meaning of acts of violence—physical or other—within the context of their relationship.^[93]

Feminist theorists also argue against a focus on single acts of abuse and their time proximity to separation. They contend that family violence is only understood by looking at the range of behaviours in a relationship over time that make-up the ‘constellation of abuse’.^[94] For example, the seriousness of a recent verbal threat may not be recognised when considered in isolation, while a contextual approach allows the threat to be understood in relation to all acts of violence throughout the relationship, and recognises the impact of previous acts and their ability to maintain coercive control through a victim’s memory, which is triggered by seemingly ‘less-serious’ acts of violence.^[95]

In the Australian family law system, significant progress has been made with regards to resolving debates around how best to understand family violence. A contextual understanding of family violence as a behavioural pattern designed to coerce and control is now favoured by theorists and policy-makers and is included in the updated legislative definition.^[96] However, divergence still exists in practitioner understandings of family violence, which can seriously impact upon the service they provide to affected parties. There remain, for example, FDRPs who, in taking a future-focussed approach to mediation, see violence only as a single page or event in a couples’ history, and encourage them to leave it in the past, thus silencing the victim and affording the perpetrator total impunity.^[97]

1 Understanding Family Violence Through Feminist Theories of Relational Autonomy

It is here that a feminist theory of relational autonomy can be extremely useful. A relational approach to understanding family violence would aim to distinguish between healthy, interdependent relationships and unhealthy, oppressive relationships—with family violence existing in the latter. Clearly, the nature of a relationship cannot be garnered by focusing on a single act of violence suspended in time. Rather it requires looking at the relationship as a whole and considering the levels of trust, care and mutual responsibility that exist within it. This approach plainly favours the feminist, contextual approach to understanding family violence by recognising that an act of violence between interrelated persons can only be understood by placing it in its broader, relational context.^[98]

In understanding our autonomy as formed, to a large extent, through our relationships, a feminist relational understanding would also put an end to understandings of family violence as a discreet set of events that can be amputated from the parties’ attempts to mediate. As Mackenzie and Stoljar explain, the impact of oppressive relationships on our autonomy occurs on three levels.^[99] On the first, a victim’s ‘desires, beliefs, and emotional attitudes, including beliefs and attitudes about herself’ are affected.^[100] On the next, ‘the competencies and capacities necessary for autonomy, including capacities for self-reflection, self-direction, and self-knowledge’ are affected.^[101] Finally, the violence affects her ‘ability to act on autonomous desires or to make autonomous decisions.’^[102]

An understanding of family violence that is informed by feminist relational autonomy would thus be sensitive to the fact that past violence may continue to affect a victim long after separation^[103] and that her ability to express her views may be diminished^[104]—particularly when she is required to do so in the presence of her abuser and especially when doing so has been a trigger of violence in the past.^[105] This makes clear that mediation cannot operate safely or effectively without that violence and its impacts being acknowledged and appropriately managed throughout FDR.

If this feminist relational approach to understanding family violence was used to inform the development of policy and practice the above dispute could be resolved and service delivery would arguably be improved. This would go a long way to limiting the ‘culture clash’ that occurs when FDRPs, for example, do not have the same understanding of family violence as support workers or lawyers, and would greatly improve the ability of FDR to safely and effectively respond to the needs of victims and their children.

B Screening for Family Violence and Victim Non-Disclosure

The safe and effective use of FDR in the context of family violence is also impeded by the fact that the screening practice currently used to identify that violence is inconsistent, and, at times, ineffective. Universal screening is not a requirement, meaning that not all parents are asked about their experiences of violence, with some organisations preferring to rely on the ability of FDRPs to identify risk using their professional judgement.^[106] Further, there are multiple screening tools in use with little data available to indicate their safety and effectiveness,^[107] and the regulations that inform the FDRP’s discretionary decision making regarding when to screen out offer limited guidance,^[108] resulting in inconsistencies in case management. This means that family violence is not always identified, and when it is, it is not always handled appropriately.^[109] While there are several factors that make identification difficult, including the fact that not all practitioners are adequately trained and the propensity of perpetrators to downplay their violence,^[110] one significant factor that must be discussed is that of victim non-disclosure.

In a recent national survey 40 per cent of respondents who reported experiencing physical or emotional violence in their relationship did not disclose that violence in FDR, yet many felt it should have been detected.^[111] This indicates a failure in current screening practice to respond adequately to the issue of victim non-disclosure. There are many reasons why a person may not feel comfortable disclosing their experiences of violence, including shame associated with the violence and its ongoing impact, fear of retaliation by the perpetrator, fear of not being believed, or fear of being viewed as uncooperative.^[112] Additionally, some victims are not yet ready or able to identify their history of family violence at the beginning of FDR.^[113]

Further, some victims make an active decision not to disclose because they want to undergo FDR in preference to court and fear being screened out.^[114] Some view FDR as less daunting than court,^[115] while others cannot afford the high costs of litigation,^[116] or are drawn to the increased flexibility of FDR.^[117] They may also be drawn to the possibility of having their stories heard and validated in a setting that values their emotions.^[118] Importantly, many victims put the needs of their children above their own, and so pursue FDR as they believe it will be the fastest route to reaching agreement and offering their child certainty.^[119]

A brief outline of just some of the reasons why victims may not readily disclose their experiences of violence makes clear that screening tools and practice must be responsive to non-disclosure, giving multiple opportunities to disclose and ensuring that victims understand they will not be automatically screened out when they do so. This shows how concerning the failure to conduct effective screening in all cases can be. It also shows that the belief held by some practitioners that victims will readily disclose without being directly questioned^[120] is incorrect and presents a serious danger to the safe and effective identification and management of family violence.

1 Improving Screening Practice Using Feminist Theories of Relational Autonomy

While a feminist theory of relational autonomy cannot solve all of these issues, it can contribute significantly to the improvement of both the screening tools themselves, and the ability of the practitioners administering them to be responsive to non-disclosure. To begin with, a feminist relational understanding of family violence, as discussed above, should be used to inform the development of screening tools, and to train those administering them. Screening would then be more sensitive to the fears of victims that influence their non-disclosure.

In understanding that the victim’s sense of self has been formed throughout her oppressive relationship—which often leads to reduced self-worth^[121]—service delivery could pre-empt the likelihood that she will feel ashamed, or may feel unworthy of telling her story. Further, in acknowledging that her autonomy has been influenced both by her relationship with the perpetrator, and by societal elements around her—including societal denial of that violence^[122] and messages that she will not be believed, or is somehow responsible for the violence^[123]—screening practice could become sensitive to her fear of being viewed as uncooperative or untruthful.

A feminist relational approach would also assist greatly in understanding and responding to the complexity of the decision a mother faces when choosing to disclose violence in a process that encourages her to put the needs of her children first. As Boyd explains:

Given the still powerful societal expectations that mothers will provide primary care for children, and the strong sense of responsibility that many or most mothers feel towards the well-being of their children, the constraints that parenting imposes on female autonomy remain more significant than on male autonomy.^[124]

Boyd points out that, beyond the biological and physical restraints, the ideological constraints of motherhood are extremely powerful. She quotes O’Donovan and Marshall, who write that motherhood ‘has an effect on women’s autonomy, so that we are often not viewed as persons in our own right, with choices to make about ways of being and living.’^[125]. Or as Diana Meyers writes, ‘mothers are culturally represented as self-sacrificial, unconditionally loving, and totally identified with their children—the prototype of a gladly nonautonomous being.’^[126] In the context of post-separation negotiations occurring in the Australian legal system, research has shown that the autonomy of women who have experienced domestic violence is greatly affected by their status as mothers and their relationships with their children.^[127]

Boyd thus argues that we must recognise that a mother’s ability to make autonomous decisions exists only within the context of her relationships, especially with her children, and that these relationships frequently restrict her decision-making ability, particularly within a society and legal structure that leaves parenting to the private realm and fails to support women’s reproductive labour.^[128] Further, she acknowledges that where a mother-caregiver does not have supportive relationships with her partner or family, her choices are restricted even further.^[129] Here we begin to understand the difficult position of a mother whose autonomy has been limited by the effects of an oppressive relationship, and is further constrained by her relationship with her child, and further still by social expectations and determinants such as gender and class.

If service delivery was developed in response to this understanding, then questions or approaches could be used in screening to make women feel better able to share their experiences. This should include efforts to assist victims in regaining their sense of autonomy by including them in the process of deciding whether their case is suitable for FDR. While a qualified practitioner must ultimately make the decision as to whether a case involving family violence can be safely managed, it is also recognised that a client’s wishes and assessment of risk should be taken into account.^[130] Of course, where the violence is extreme or the power imbalance cannot be managed safely by the practitioner, FDR should not be used, regardless of a victim’s wishes.^[131] Overall, the process could be made more inclusive and less intimidating if informed by a feminist understanding of relational autonomy that is both responsive to the complex factors behind non-disclosure, and recognises the importance of supporting victims in exercising their autonomy in disclosure and decision-making.

CONCLUSION

As we approach the ten-year mark since FDR was made a compulsory first-step in post-separation parenting disputes, it is evident that we have come along way. The work of feminist theorists has done much to improve the responsiveness of service delivery to the issues faced by women in negotiating the care of their children with their ex-partners, particularly when the relationship has been characterised by family violence. Yet we still have a long way to go, and the work of feminists in this field remains crucial to ensuring the safety of victims and their children.

Using a feminist theory of relational autonomy to critique the use of FDR in Australia, I have highlighted both the strengths and weaknesses of current service delivery in ensuring that the process is both just and safe for both parties. It has been shown that, when conducted in the context of family violence, current practice sometimes falls short, resulting in the exposure of victims and children to further abuse, both during and post-mediation.

Building on the existing body of knowledge on FDR in the context of family violence, I have identified ways in which current issues might be addressed through use of a feminist relational understanding of autonomy. In applying this approach to understanding the nature of both the family unit and of the individual family member, as well as the different forms and effects of healthy and oppressive relationships, it has been shown that FDR can be improved to better respond to the unique needs of victims and to increase the safety of both mediation itself, and of the parenting agreements it produces. It is my hope that such analysis will, like the work of feminists in the last decade, contribute to the improvement of the use of FDR in the context of family violence in the future.

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^[1] Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth).

^[2] Family Law Act 1975 (Cth) s 60I.

^[3] Ibid s 60I(8), (9).

^[4] Family Law (Family Dispute Resolution Practitioners) Regulations 2008 (Cth) reg 25; Rachael Field, ‘FDR and Victims of Family Violence’ (2010) 21 Australasian Dispute Resolution Journal 185.

^[5] See, eg, Dale Bagshaw et al, ‘The Effect of Family Violence on Post-Separation Parenting Arrangements: The Experiences and Views of Children and Adults from Families who Separated Post-1995 and Post-2006’ (2011) 86 Family Matters 49; Helen Cleak, Margot Schofield and Andrew Bickerdike, ‘Efficacy of Family Mediation and the Role of Family Violence: Study Protocol’ (2014) 14 BMC Public Health 57; Rae Kaspiew et al, ‘Family Violence: Key Findings from the Evaluation of the 2006 Family Law Reforms’ (2010) 85 Family Matters 38.

^[6] See, eg, Adiva Sifris and Anna Parker, ‘Family Violence and Family Law: Where to Now?’ (2014) 4 Family Law Review 3; Pamela Henry and Karine Hamilton, ‘FDR Practitioners Working in the FRC System: Issues and Challenges’ (2012) 22(2) Australasian Dispute Resolution Journal 103; S Rice et al, ‘An Analysis of Domestic Violence Presenting to FRCs at Intake and Assessment’ (2012) 23 Australasian Dispute Resolution Journal 89.

^[7] Field, ‘FDR and Victims of Family Violence’, above n 4; Rachael Field and Mieke Brandon, ‘A Conversation About the Introduction of Compulsory Family Dispute Resolution in Australia: Some Positive and Negative Issues for Women’ (2007) 18 Australasian Dispute Resolution Journal 27.

^[8] Australian Law Reform Commission, Family Violence: A National Legal Response, Report No 114 (2010); Cleak, Schofield and Bickerdike, above n 5; Field, ‘FDR and Victims of Family Violence’, above n 4; Sifris and Parker, above n 6.

^[9] See, eg, Field, ‘FDR and Victims of Family Violence’, above n 4.

^[10] Noel Semple, ‘Mandatory Family Mediation and the Settlement Mission: A Feminist Critique’ (2012) 24 Canadian Journal of Women and the Law 207, 208.

^[11] Rachael Field, ‘Family Law Mediation: Process Imbalances Women Should Be Aware of Before They Take Part’ [1998] QUTLawJl 3; (1998) 14 Queensland University of Technology Law Journal 23; Semple, above n 10, 12. Note: It should be acknowledged that FDR also occurs in the context of post-separation parenting disputes between same-sex couples, and between diverse members of the family, such as grandparents. However, consideration of these cases is beyond the scope of this paper.

^[12] Catriona Mackenzie and Natalie Stoljar, ‘Introduction: Autonomy Refigured’ in Catriona Mackenzie and Natalie Stoljar (eds), Relational Autonomy: Feminist Perspectives on Autonomy, Agency, and the Social Self (Oxford University Press, 2000).

^[13] Jennifer Nedelsky, Law’s Relations: A Relational Theory of Self, Autonomy, and Law (Oxford University Press, 2011); Susan L Brooks and Ya’ire Ronen, ‘The Notion of Interdependence and Its Implications for Child and Family Policy’ (2005) 17 Journal of Feminist Family Therapy 23, 26.

^[14] Lauren Freeman, ‘Reconsidering Relational Autonomy: A Feminist Approach to Selfhood and the Other in the Thinking of Martin Heidegger’ (2011) 54 Inquiry: An Interdisciplinary Journal of Philosophy 361, 364.

^[15] Ibid; Mackenzie and Stoljar, above n 12, 10; Ngaire Naffine, ‘Sexing the Subject (of Law)’ in Margaret Thornton (ed), Public and Private: Feminist Legal Debates (Oxford University Press, 1995) 18.

^[16] Lorraine Code, What Can She Know? Feminist Theory and the Construction of Knowledge (Cornell University Press, 1991) 78.

^[17] Mackenzie and Stoljar, above n 12, 6.

^[18] Freeman, above n 14, 365.

^[19] Mackenzie and Stoljar, above n 12, 3.

^[20] Naffine, above n 15.

^[21] Mackenzie and Stoljar, above n 12, 8–9.

^[22] Mackenzie and Stoljar, above n 12; Susan B Boyd, ‘Autonomy for Mothers? Relational Theory and Parenting Apart’ (2010) 18 Feminist Legal Studies 137.

^[23] Freeman, above n 14, 365.

^[24] See, eg, Annette Baier, Postures of the Mind: Essays on Mind and Morals (University of Minnesota Press, 1985); Code, above n 16.

^[25] Freeman, above n 14, 363.

^[26] Boyd, ‘Autonomy for Mothers?’, above n 22, 139.

^[27] Mackenzie and Stoljar, above n 12, 8–9.

^[28] Boyd, ‘Autonomy for Mothers?’, above n 22, 149; Mackenzie and Stoljar, above n 12.

^[29] Nedelsky, Law’s Relations, above n 13, 201.

^[30] Freeman, above n 14, 365; Mackenzie and Stoljar, above n 12.

^[31] Semple, above n 10, 207–8.

^[32] Australian Law Reform Commission, above n 8; Debbie Kirkwood, ‘Behind Closed Doors: Family Dispute Resolution and Family Violence’ (Discussion Paper No 6, Domestic Violence and Incest Resource Centre, 2007).

^[33] Kirkwood, above n 32; Rachael Field, ‘Using the Feminist Critique of Mediation to Explore “The Good, The Bad and The Ugly” Implications for Women of the Introduction of Mandatory Family Dispute Resolution in Australia’ (2006) 20 Australian Journal of Family Law 45, 47–8.

^[34] Field, ‘Using the Feminist Critique of Mediation’, above n 33, 47–8.

^[35] Field, ‘Using the Feminist Critique of Mediation’, above n 33; Jonathan Herring, Relational Autonomy and Family Law (Springer, 2014) 6–7; Semple, above n 10.

^[36] Herring, above n 35, 6–7.

^[37] See, eg, Rachael Field, ‘A Feminist Model of Mediation that Centralises the Role of Lawyers as Advocates for Participants Who Are Victims of Domestic Violence’ (2004) 20 The Australian Feminist Law Journal 65.

^[38] See, eg, Boyd, ‘Autonomy for Mothers?’, above n 22; Brooks and Ronen, above n 13; Nedelsky, Law’s Relations, above n 13.

^[39] Boyd, ‘Autonomy for Mothers?’, above n 22, 155.

^[40] See, eg, Bruce M Smyth and Lawrie Moloney, ‘Therapeutic Divorce Mediation: Strengths, Limitations, and Future Directions’ (2003) 9(2) Journal of Family Studies 161; Daniel B Pickar and Jeffrey J Kahn, ‘Settlement-Focussed Parenting Plan Consultations: An Evaluative Mediation Alternative to Child Custody Evaluations’ (2011) 49(1) Family Court Review 59.

^[41] Amelia Wheeler, Rebecca Gray and Bill Hewlett, ‘Integrating a Relational Approach in Post-Separation Family Dispute Resolution’ (2015) 9(1) Communities, Children and Families Australia 49.

^[42] Ibid.

^[43] Ibid.

^[44] Self-determination is heralded as a defining element of FDR. See, eg, Field, ‘Using the Feminist Critique of Mediation’, above n 33; Field, ‘FDR and Victims of Family Violence’, above n 4, 187–8.

^[45] Field, ‘FDR and Victims of Family Violence’, above n 4, 187–8.

^[46] Ibid 187.

^[47] See, eg, Amanda Shea Hart, ‘Child-Inclusive Mediation in Cases of Domestic Violence in Australia’ (2009) 27 Conflict Resolution Quarterly 3; Amanda Shea Hart, ‘Centralising Children’s Needs in Dispute Resolution in Family Violence Cases’ (2013) 38(4) Children Australia 178; Pamela Henry and Karine Hamilton, ‘The Inclusion of Children in Family Dispute Resolution in Australia: Balancing Welfare Versus Rights Principles’ (2012) 20 The International Journal of Children’s Rights 584.

^[48] Naffine, above n 15.

^[49] Field, ‘Using the Feminist Critique of Mediation’, above n 33, 51.

^[50] Field, ‘Using the Feminist Critique of Mediation’, above n 33.

^[51] Bree Cook, Fiona David and Anna Grant, ‘Victims’ Needs, Victims’ Rights: Policies and Programs for Victims of Crime in Australia’ (Research and Public Policy Series No 19, Australian Institute of Criminology, 2009); Miranda Kaye, Julie Stubbs and Julia Tolmie, ‘Domestic Violence, Separation and Parenting: Negotiating Safety Using Legal Processes’ (2003) 15(2) Current Issues in Criminal Justice 73.

^[52] Field, ‘Using the Feminist Critique of Mediation’, above n 33; Timothy Broady et al, ‘“I Miss My Little One A Lot”: How Father Love Motivates Change in Men Who Use Violence’ (2015) Child Abuse Review <http://onlinelibrary.wiley.com/doi/10.1002/car.2381/pdf> .

^[53] Field, ‘Using the Feminist Critique of Mediation’, above n 33, 51. See also Field, ‘A Feminist Model of Mediation that Centralises the Role of Lawyers’, above n 37.

^[54] See Carol Gilligan, In a Different Voice (Harvard University Press, 1982).

^[55] B Herrnstein, ‘Women and Mediation: A Chance to Speak and Be Heard’ (1996) 13(4) Mediation Quarterly 229, 240 in Field, ‘Using the Feminist Critique of Mediation’, above n 33, 51.

^[56] Field, ‘A Feminist Model of Mediation that Centralises the Role of Lawyers’, above n 37; Field, ‘Using the Feminist Critique of Mediation’, above n 33; Field, ‘FDR and Victims of Family Violence’, above n 4; Rachael Field and Angela Lynch, ‘Hearing Parties’ Voices in Coordinated Family Dispute Resolution (CFDR): An Australian Pilot of a Family Mediation Model Designed for Matters Involving a History of Family Violence’ (2014) 36 Journal of Social Welfare and Family Law 392.

^[57] Hilary Astor, ‘The Weight of Silence: Talking About Violence in Family Mediation’ in Public and Private: Feminist Legal Debates (Oxford University Press, 1995); Field, ‘Using the Feminist Critique of Mediation’, above n 33; Field, ‘FDR and Victims of Family Violence’, above n 4; Semple, above n 10.

^[58] Lawrie Moloney et al, ‘Mandatory Dispute Resolution and the 2006 Family Law Reforms: Use, Outcomes, Links to Other Pathways, and the Impact of Family Violence’ (2010) 16 Journal of Family Studies 192, 195.

^[59] See, eg, Astor, above n 57; Field, ‘Family Law Mediation: Process Imbalances’, above n 11; Field, ‘A Feminist Model of Mediation that Centralises the Role of Lawyers’, above n 37; Field, ‘Using the Feminist Critique of Mediation’, above n 33; Rachael Field, ‘A Feminist Model of Mediation: Using Lawyers as Advocates for Participants Who Are Victims of Domestic Violence’ (2005) Autumn Domestic Violence and Incest Resource Centre Newsletter 3.

^[60] Field, ‘FDR and Victims of Family Violence’, above n 4.

^[61] Ibid; Field and Brandon, above n 7; Rachael Field and Jonathan Crowe, ‘The Construction of Rationality in Australian Family Dispute Resolution: A Feminist Analysis’ (2007) 27 The Australian Feminist Law Journal 97.

^[62] Semple, above n 10, 12.

^[63] Amy Holtzworth-Munroe, ‘Controversies in Divorce Mediation and Intimate Partner Violence: A Focus on the Children’ (2011) 16 Aggression and Violent Behaviour 319; Bagshaw et al, ‘The Effect of Family Violence on Post-Separation Parenting Arrangements’, above n 5.

^[64] Wheeler, Gray and Hewlett, above n 41.

^[65] Boyd, ‘Autonomy for Mothers?’, above n 22, 155.

^[66] Herring, above n 35, 50.

^[67] Brooks and Ronen, above n 13, 26.

^[68] Boyd, ‘Autonomy for Mothers?’, above n 22, 153.

^[69] Martha Minow and Mary L Shanley, ‘Relational Rights and Responsibilities: Revisioning the Family in Liberal Political Theory and Law’ (1996) 11 Hypatia 4.

^[70] Field, ‘Using the Feminist Critique of Mediation’, above n 33, 75, citing Barbara Hart, ‘Gentle Jeopardy: The Further Endangerment of Battered Women and Children in Custody Mediation’ (1990) 7 Mediation Quarterly 317.

^[71] Field, ‘A Feminist Model of Mediation that Centralises the Role of Lawyers’, above n 37.

^[72] Hilary Astor and Rosalind Croucher, ‘Fractured Families, Fragmented Responsibilities: Responding to Family Violence in a Federal System’ [2010] UNSWLawJl 37; (2010) 33 UNSW Law Journal 854; Susan B Boyd, ‘Challenging the Public/Private Divide: An Overview’ in Susan B Boyd (ed), Challenging the Public/Private Divide: Feminism, Law, and Public Policy (University of Toronto Press, 1997) 3.

^[73] Susan B Boyd, Child Custody Law, and Women’s Work (Oxford University Press, 2003) 223, quoted in Semple, above n 10, 218.

^[74] Field, ‘Family Law Mediation: Process Imbalances’, above n 11, 27–8; Semple, above n 10, 218–9.

^[75] Field, ‘A Feminist Model of Mediation that Centralises the Role of Lawyers’, above n 37, 76.

^[76] Field, ‘Using the Feminist Critique of Mediation’, above n 33, 55.

^[77] Field and Lynch, above n 56; Rae Kaspiew et al, ‘Evaluation of a Pilot of Legally Assisted and Supported Family Dispute Resolution in Family Violence Cases: Final Report’ (Research Report, Australian Institute of Family Studies, December 2012).

^[78] Semple, above n 10.

^[79] Deborah Kirkwood and Mandy McKenzie, ‘Family Dispute Resolution and Family Violence in the New Family Law System’ (2008) 19 Australasian Dispute Resolution Journal 170; Field, ‘Using the Feminist Critique of Mediation’, above n 33.

^[80] Field, ‘Using the Feminist Critique of Mediation’, above n 33, 75.

^[81] For example, Rachael Field, along with Angela Lynch of Women’s Legal Service QLD, led the design of a specialised model of FDR for parties affected by family violence: Field and Lynch, above n 56.

^[82] See, eg, Australian Law Reform Commission, above n 8; Kaspiew et al, ‘Evaluation of a Pilot’, above n 77; Kirkwood, above n 32.

^[83] See Sarah Dobinson and Rebecca Gray, ‘Family Dispute Resolution and Family Violence: A Review of Practice and Research Objectives for the Next Ten Years’ [2016] (forthcoming) for full discussion.

^[84] Field and Lynch, above n 56.

^[85] See, eg, Kaspiew et al, ‘Evaluation of a Pilot’, above n 77.

^[86] See, eg, Andrew Bickerdike, ‘Implications for Family Dispute Resolution Practice: Responses from Relationships Australia (Victoria) to the Allegations of Family Violence and Child Abuse in Family Law Children’s Proceedings Report’ (2007) 77 Family Matters 20; Jane Wangmann, ‘Different Types of Intimate Partner Violence? A Comment on the Australian Institute of Family Studies Report Examining Allegations of Family Violence in Child Proceedings Under the Family Law Act’ (2008) 22 Australian Journal of Family Law 123; Zoe Rathus, ‘Shifting Language and Meanings Between Social Science and the Law: Defining Family Violence’ [2013] UNSWLawJl 15; (2013) 36 UNSW Law Journal 359.

^[87] See, eg, Henry and Hamilton, ‘FDR Practitioners’, above n 6; Kirkwood and McKenzie, above n 79; Rice et al, above n 6; Sifris and Parker, above n 6.

^[88] Cleak, Schofield and Bickerdike, above n 5; Rathus, above n 86; Elly Robinson and Lawrie Moloney, ‘Family Violence: Towards a Holistic Approach to Screening and Risk Assessment in Family Support Services’ (2010) 17 Australian Family Relationships Clearinghouse Brief 1.

^[89] Rathus, above n 86; Robinson and Moloney, above n 88; Wangmann, above n 86.

^[90] Wangmann, above n 86, 125.

^[91] Ibid.

^[92] Moloney et al, ‘Evaluating the Work of Australia’s Family Relationship Centres: Evidence from the First 5 Years’ (2013) 51(2) Family Court Review 234; Wangmann, above n 86.

^[93] Connie JA Beck and Chitra Raghaven, ‘Intimate Partner Abuse Screening in Custody Mediation: The Importance of Assessing Coercive Control’ (2010) 48(3) Family Court Review 555, 556; Kaye, Stubbs and Tolmie, ‘Domestic Violence, Separation and Parenting’, above n 51; Miranda Kaye, Julie Stubbs and Julia Tolmie, ‘Negotiating Child Residence and Contact Arrangements Against a Background of Domestic Violence’ (Research Report 1, Families, Law and Social Policy Research Unit, Socio-Legal Research Centre, School of Law, Griffith University, 2003) 14; Wangmann, above n 86, 135–6.

^[94] Russell P Dobash and R Emerson Dobash, ‘Women’s Violence to Men in Intimate Relationships: Working on a Puzzle’ (2004) 44 British Journal of Criminology 324, 328 in Wangmann, above n 86, 133.

^[95] Beck and Raghaven, above n 93; Wangmann, above n 86, 136.

^[96] Family Law Act 1975 (Cth) s 4AB.

^[97] Henry and Hamilton, ‘FDR Practitioners’, above n 6; Semple, above n 10, 217.

^[98] Herring, above n 35, 50.

^[99] Mackenzie and Stoljar, above n 12, 21–2.

^[100] Ibid 22.

^[101] Ibid.

^[102] Ibid.

^[103] Semple, above n 10, 217.

^[104] Field and Lynch, above n 56, 394.

^[105] Semple, above n 10, 217.

^[106] Amy Holtzworth-Munroe et al, ‘The Mediator’s Assessment of Safety Issues and Concerns (MASIC): A Screening Interview for Intimate Partner Violence and Abuse Available in the Public Doman’ (2010) 48(4) Family Court Review 646; Henry and Hamilton, ‘FDR Practitioners’, above n 6; Kirkwood and McKenzie, above n 79; Rice et al, above n 6; Robinson and Moloney, above n 88; Sifris and Parker, above n 6.

^[107] Kirkwood, above n 32; Robinson and Moloney, above n 88.

^[108] The Family Law (Family Dispute Resolution Practitioners) Regulations 2008 (Cth) simply state that the FDRP must determine whether FDR ‘is appropriate’ by giving consideration to ‘whether the ability of any party to negotiate freely’ is affected by family violence: reg 25.

^[109] Kirkwood and McKenzie, above n 79; Rice et al, above n 6; Robinson and Moloney, above n 88; Sifris and Parker, above n 6.

^[110] Bickerdike, above n 86; Rice et al, above n 6; Sifris and Parker, above n 6.

^[111] Bagshaw et al, ‘The Effect of Family Violence on Post-Separation Parenting Arrangements’, above n 5, 54.

^[112] Dale Bagshaw et al, ‘Family Violence: Parents’ and Children’s Experiences Before and After the 2006 Reforms’ (2010) 21(2) Australian Family Lawyer 11; Kaspiew et al, ‘Family Violence: Key Findings’, above n 5; Field, ‘FDR and Victims of Family Violence’, above n 4.

^[113] Field, ‘FDR and Victims of Family Violence’, above n 4.

^[114] Ibid.

^[115] Ibid; Australian Law Reform Commission, above n 8; Kirkwood and McKenzie, above n 79.

^[116] Field, ‘Family Law Mediation: Process Imbalances’, above n 11.

^[117] Field, ‘FDR and Victims of Family Violence’, above n 4.

^[118] Ibid.

^[119] Henry and Hamilton, ‘FDR Practitioners’, above n 6.

^[120] See, eg, Kaye, Stubbs and Tolmie, ‘Domestic Violence, Separation and Parenting’, above n 51.

^[121] Jennifer Nedelsky, ‘Violence Against Women: Challenges to the Liberal State and Relational Feminism’ in Law’s Relations: A Relational Theory of Self, Autonomy, and Law (Oxford University Press, 2011).

^[122] ‘Women deny violence because they live in a society that denies that it happens’: Astor, above n 57.

^[123] Kirkwood, above n 32; Kirkwood and McKenzie, above n 79; Rathus, above n 86; Semple, above n 10; Sifris and Parker, above n 6.

^[124] Boyd, ‘Autonomy for Mothers?’, above n 22, 140.

^[125] Ibid.

^[126] Diana Meyers, ‘Gendered Work and Individual Autonomy’ in Diana Meyers (ed), Being Yourself: Essays on Identity, Action, and Social Life (Lanham, MD, Rowman Littlefield Publishers, 2004) 257 in Ibid 142.

^[127] Kaye, Stubbs and Tolmie, ‘Domestic Violence, Separation and Parenting’, above n 51.

^[128] Boyd, ‘Autonomy for Mothers?’, above n 22, 141.

^[129] Ibid.

^[130] Lene Madsen, ‘A Fine Balance: Domestic Violence, Screening, and Family Mediation’ (2012) 30 Canadian Family Law Quarterly 343.

^[131] Ibid; Kaspiew et al, ‘Evaluation of a Pilot’, above n 7.