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Blakley, Ryan --- "Can Dispute Resolution Mechanisms Protect Families Caught Up In The Child Protection And Out-Of-Homecare System? Exploring The Promise Of Non-Adversarial Pathways Outside Of The Court" [2022] UNSWLawJlStuS 27; (2022) UNSWLJ Student Series No 22-27




To address the complex and sensitive nature of child protection disputes, dispute resolution mechanisms need to move towards more collaborative and participatory models and processes. Leaving vulnerable families to navigate the court system compounds the inherent power imbalance that exists between them and their well-resourced government adversaries, denying parents the possibility of achieving self-determination in decisions that concern the health and welfare of their children.

In response, this essay argues that formal Alternative Dispute Resolution (ADR) mechanisms empower families to be principal decision-makers and are thus emerging as suitable alternatives for the handling of child protection disputes. To strengthen this position, the ensuing analysis focusses on the promise of bespoke innovations designed specifically for a child protection context. The Family Group Conference (FGC) is first championed as a leading example of this fit-for-purpose innovation, followed by the Aboriginal Care Circle, a similar model but adapted to empowering Aboriginal families and communities in the predominantly western dispute resolution paradigm.

While the bulk of this essay presents power imbalance as a key justification for the use of ADR over court processes in child protection disputes, it is also acknowledged that power imbalances within the ADR process itself present a significant challenge. This dynamic is especially pronounced when the dispute concerns allegations of domestic and family violence.

However, rather than conclude that ADR is inappropriate in a domestic and family violence context as a whole, the final section of this essay assumes a more considered analysis, arguing that ADR is necessary to provide parents, mostly women, with the opportunity to engage in a dispute resolution process that will be more affordable, flexible and empowering than the courtroom.


Family separation is one of the most distressing experiences for families and children involved. This problem is acutely compounded when the child has been forcibly removed by a seemingly apathetic government department and placed in out-of-homecare (OOHC), often against the will of the parents.

Unfortunately, this is the nature and reality of our child protection system in Australia. There are around 46,000 children in OOHC across Australia and regrettably, two-thirds of this cohort have been continuously in OOHC for two years or longer.[1] Each interaction with the care and protection system for a family unit entrenches trauma and loss, socio-economic disadvantage, substance abuse and possibly domestic and family violence.[2]

Therefore, despite its ostensible ‘protective’ nature, the care and protection system can inflict significant and ongoing harm on the most vulnerable groups of society. For Aboriginal communities, this impact has been acutely compounded with children being separated from their families and placed in OOHC at a rate that is at risk of replicating the colonial dynamics of the Stolen Generations.[3]

However, before proceeding any further, it is acknowledged that effectively responding to child protection is a sensitive and complex issue for governments all around the world, even at the best of times. There is no band aid solution for resolving child protection disputes and if a holy grail exists, legal and non-legal advocates are yet to uncover it.

Despite these challenging circumstances, this essay aims to provide an optimistic perspective, as well as modest insight, on how ADR mechanisms might be better suited to resolving care and protection issues than traditional court processes.


The dynamics of child protection disputes are difficult to unpack. In Australia, child protection officers have at their discretion, the power to remove a child from their family where the officer considers that child to be in immediate danger.[4] If this occurs, the child is held under the guise of ‘protective custody’ by the child protection authorities.[5]

In the context of contemporary child removal practices, serious concerns have been raised by Aboriginal communities that non-Aboriginal child protection officers often mistake poverty for neglect.[6] This approach can be traced back to the court’s interpretation of 20th century child welfare legislation, which often assumed a non-Indigenous model of child rearing.[7]

However, the disproportionate rate at which Aboriginal children are being placed in OOHC suggests that the current system has not adequately embedded diverse non-western child rearing philosophies into practice.[8] This leaves Aboriginal children particularly vulnerable to child protection authorities as they may be living in poverty and subsequently removed from the home, despite having very strong bonds with their parents and broader family network.[9]

Moreover, once the child has been separated from the family, the authorities will use a child protection order obtained from the court to place and keep the child in OOHC.[10] This will often require a case plan to be developed and implemented by the authorities to coordinate the OOHC arrangements, including the possibility that the child will be later reunified with his or her parents.[11]

Each stakeholder will inevitably hold a different perspective on the child protection process, and this makes the negotiation of a satisfactory care plan a heavily disputed, prolonged, and emotionally charged process. For example, a child protection worker and the authorities may consider the government intervention to be necessary to secure the child’s ongoing health and welfare.[12] However, a lawyer or an advocate representing the mother may view it as the state overreaching into private family life.[13]

Most parents would be extremely distressed at the prospect of losing their children and from their perspective, dealing with the authorities becomes framed in terms of ‘winning and losing’ the right to raise their own.[14] Even if the parents have agreed to OOHC arrangements in the first instance, they will likely have strong, perhaps even competing, preferences about who should look after their children and for how long.[15]

On the other hand, child protection authorities are under intense and growing public scrutiny to guarantee the absolute safety of children who they choose to bring into their circle of responsibility.[16] This public accountability has understandably contributed to what Walsh and Douglas describe as a ‘culture of hyper-vigilance and over-cautiousness’.[17]

What is often lost is the fact that child protection intervention has a permanent and irreversible impact on the child regardless of its original justification.[18] Since the child may not be old enough to voice his or her own independent view, what is actually in their best interests will often be open to interpretation and vigorously contested by the parties.[19]

Therefore, the gravity of care and protection decisions cannot be underestimated, with serious long-term consequences for the families and children involved. However, child protection matters are often disputes between a well-resourced government department ‘with a vested interest in having its decisions vindicated’ and an extremely vulnerable and disadvantaged family.[20]

The question then becomes what dispute resolution and decision-making forum can achieve the best outcomes for children, families, and the authorities. Given the public nature of the shortcomings in our current child protection system, the broader community also has an interest in the least harm being caused from this process.


Despite the courtroom being the historical forum of choice for parties to resolve child protection disputes, the court process compounds a problematic dynamic between the parties and sets them up for failure.[21] In child protection matters before a court, the critical issue becomes whether one party can successfully prove or disprove that the child is in need of protection.[22]

Therefore, the court model is adversarial and conflict-driven in nature.[23] The child’s welfare essentially becomes the object of the proceedings.[24] Unfortunately, this dynamic seriously undermines the prospect of family members forming any positive working relationships with the child protection authorities over time.[25] This is despite both sides having a shared interest in protecting the child and working together in permanency planning to prevent an extended OOHC placement, or even keeping the child with his or her family for the long-run.

The limited ability of the court to satisfactorily deal with child protection disputes also becomes apparent when viewed from a ‘transformation’ perspective.[26] The transformation perspective treats disputes as social constructs, and looks more broadly at how disputes can evolve from grievances into resolution over time.[27] By treating dispute resolution as a dynamic social process, and not just limited to the use of litigation, it becomes a useful platform to view not only the shortcomings of the curial process in advancing child protection, but also the potential utility of ADR mechanisms in its stead.

The courtroom ordinarily treats disputes as discrete events that have happened in the past.[28] Therefore, it narrows any given dispute into a manageable narrative of events that can be supposedly remedied in the present by a court order in favour of one side.[29] While this approach might be appropriate for responding to certain kinds of legal claims, such as compensation for a workplace accident, it is grossly inappropriate in a child protection context.

A conventional courtroom analysis of a child protection dispute would assume that it is simply underpinned by a ‘claim’ and a ‘rejection’.[30] In these circumstances, the assertion of the child protection authorities that the child is in need of protection forms the ‘claim’. The family’s resistance to the child’s removal forms the ‘rejection’. The court process would inevitably vindicate one of these opposing views through its adjudicative function.

Even if the court decision ultimately favoured the parents by preventing the child’s further removal from the home, having the outcome of the child handled by the court is insensitive to the social forces that underpin and shape the emergence of child protection disputes in the first place. It narrows the scope of the dispute to the decision of the authorities to remove the child from the family home. In doing so, it does not completely embrace the family circumstances that might have initially put the child at risk.

Adopting a transformation lens, a child protection dispute does not commence with the decision of the authorities to remove the child and take him or her into their custody. It starts with their initial grievance about how the child is being treated at home by the parents or the family circumstances more broadly.[31] Subsequently, the goals of the authorities are not as clear cut.[32]

While the authorities might be concerned with justifying their intervention when it comes to confronting the parents in court, their grievance was initially set in motion by a desire to change the behaviour of the parents for the ultimate benefit of the child. Unfortunately, as it has been argued above, the adversarial nature of the court destroys any possibility of the parties being able to work together to improve child welfare over time.

Given the testing nature of most matters, child protection disputes understandably create an imperative to utilise the law as a potentially therapeutic agent in the healing of families disrupted by state intervention.[33] To achieve this therapeutic outcome, dispute resolution should inevitably emphasise positive human functioning, relationships, and wellbeing over combative litigation.[34]

This conundrum raises the question of whether more conciliatory and collaborative mechanisms might be more appropriate in the care and protection system.


ADR, as an holistic dispute resolution mechanism, can be better described in terms of what it hopes to achieve for parties, than by discrete reference to the varying models and processes that are captured by the umbrella term. As the name would suggest, ADR could be framed as any dispute resolution and decision-making mechanism that would be an alternative option to the use of litigation.

However, at least in the context of the care and protection system, this does not provide any satisfactory answer to what defines or constitutes ADR. It should be acknowledged that the use of ADR is not new to child protection matters and it has gradually become more popular over the last decade in Australia for a variety of inter-related purposes.[35] These have included negotiating placement plans more broadly, terminating the OOHC arrangement and returning the child to his or her family home, determining the degree of parental involvement in OOHC and even resolving conflicts that might arise between families, agencies and foster carers during a placement.[36]

Unsurprisingly, a variety of ADR models and processes have also accompanied this growth. These have included the use of common techniques such as mediation and conciliation.[37] Mediation and conciliation are both characterised by the use of an independent facilitator, who guides and assists the parties to reach a mutual agreement.[38]

Unlike a judge, this third-party cannot ordinarily impose a decision on the parties in mediation and conciliation.[39] However, the extent to which the independent facilitator can, or should, intervene will often vary in practice. This is particularly the case in conciliation, where the third-party can take on more of an advisory role to support the dispute resolution process between the parties.[40]

Furthermore, in recent years, a number of unique models and processes have also been developed as a tailored response to child protection matters. These have included the FGC and the Aboriginal Care Circle innovations.[41]

Although ADR has taken on a variety of forms in the care and protection system over the years, these models are united in what they hope to achieve for the parties involved. ADR facilitates dialogue between family members involved in family breakdown and this communication allows them to reach an informed decision about the care and protection concerns surrounding their children.[42]

Broadly speaking, this could also be conceived as empowering families to reach an agreement with the authorities about the future welfare of their child. The promise of both the FGC and the Aboriginal Care Circle innovations in enabling familial empowerment is explored below.

A Achieving familial self-determination through the FGC

One of the most problematic challenges of leaving vulnerable and disadvantaged families to navigate the court system is the power imbalance that exists between them and their government adversaries. Courts have often been criticised for ‘rubber stamping’ the authorities’ applications for care orders, which seriously undermines the ability of families to effectively participate in the decision-making process concerning their child.[43]

Similar to the culture of risk-aversion already attributed to the authorities, it is somewhat understandable for judges to also remain on the side of caution. Given the gravity of the decision before them, no judge wants to be responsible for exposing a vulnerable child to undue risk.[44]

However, while the court routinely denies parents the possibility of achieving self-determination in child protection matters, ADR can empower families to achieve it.[45] Self-determination casts families as principal decision-makers, and able to control the final decision regarding their child.[46] The key assumption underneath this principle is that parental involvement is essential for dispute resolution that best protects and provides permanence for children,[47] a position which this essay strongly agrees with.

FGC is an example of familial self-determination in its purest form. Originally introduced in New Zealand to overhaul their OOHC system, particularly in respect of the state’s response to Māori families and children, FGC is a largely family-led ADR process.[48]

As a forum, FGC brings together the parents, extended family members, support services, the authorities and sometimes the child to discuss and develop strategies to protect the child.[49] In this respect, it ‘widens the circle’ for who can participate, allowing the relatively free exchange of information between individuals who might have a relationship with the child.[50] Therefore, FGC, like many other ADR mechanisms, is a collaborative and inclusive decision-making process.[51]

Unlike the court process described above, FGC does not direct attention to who was right or wrong in the given circumstances. This approach is overwhelmingly consistent with the intended role of the child protection authorities in the system.[52] It is also aligned with the concept of ‘therapeutic jurisprudence’, crucially shifting the dispute resolution framework from an approach that inevitably undermines relationships to one that prioritises the re-building of them.[53]

The authorities should not work against the families in order to create protective and helpful outcomes for children.[54] Rather, they should work with them and support them to keep the children in the family home.[55] If the child does need to be placed in OOHC, the authorities should connect the family to support services so that reunification is a realisable possibility.[56] Therefore, FGC, in its collaborative and inclusive approach, is more likely to improve the necessary relationships to rebuild a situation where the child can safely remain in the home.

In the context of developing and implementing a care plan, FGC is generally characterised by a three-step process of preparation, conferencing, and a follow-up.[57] The conference itself can also be broken down into several phases, and this is where procedural innovations have been developed to differentiate FGC from more conventional ADR mechanisms.[58]

The sessions are still overseen by a neutral third-party, who will bring together key stakeholders into a decision-making forum. Once the independent facilitator has convened the conference, the child protection authorities will often start by informing the broader family network of the circumstances, the options, and the support services available.[59]

During this process, the role of the authorities and other experts present is fundamentally different from what might happen, or would be expected to happen, in court. They neither advocate for, nor impose on the family, a pre-determined care plan.[60]

Their function is to simply enhance the families’ sense of collective agency by making their expertise and knowledge available to key stakeholders, not instruct the family on ‘how’ they should look after the child.[61] Reflecting on his experiences of facilitating FGC in Canada, Daniel Bogue observed that this approach significantly changed the power dynamic in child protection dispute resolution for the better, enabling the family to feel that they were the ‘author’ of the child’s care plan and eventual outcome.[62]

After this initial consultation, the FGC process allows families to talk in private before concluding on an agreement with the authorities.[63] During this period, all other parties withdraw from the meeting and allow the family to privately make decisions and plans on what should happen next.[64]

In essence, FGC draws upon the collective strength of the family network to restore fractured relationships and protect the interests of the child.[65] This is even more important in the Northern Territory for example, where the lack of institutionalised FGC mechanisms has given rise to the use of ‘family way placements’, a form of brokerage between the Department of Children and Families and a family that places the child with another family member as a substitute for obtaining a protection order.[66]

While the ‘family way placement’ might keep the child within the family network as a blanket rule compromise, it denies families the opportunity to develop their own solution. As an alternative, FGC allows ADR to empower the voices of those most affected by a decision to place a child in OOHC, ultimately enabling the immediate and extended family to take responsibility for the care of the child.[67]

Moreover, the role of the FGC as a platform for self-determination is even more important when considered from a transformation perspective. It has been argued above that a child protection dispute actually begins with the authorities initial grievance about the parents and family circumstances at home. Therefore, the grievance is transformed into a dispute once the authorities have intervened to remove the child, a decision that will be fiercely resisted by the family in court.

The implicit assumption underneath this stage of the child protection process is that the child needs ‘protection’ from the family.[68] This is very difficult to reconcile with any realistic possibility that the parents and authorities might work together to improve the circumstances at home, as well as excludes the potential strengths that including the broader family and community might have to offer.

The likelihood of the parties pursuing this destructive path would be seriously reduced if families were given a constructive forum to do what they do best: come together and make a decision about the child.[69] This might even take the form of re-connecting the parents to parts of the family who they had previously become isolated from, re-surrounding the parents and child with a natural community of support.[70]

While the FGC provides the necessary space for this to occur, it finds its origin in a western dispute resolution system, which is unlikely to be culturally appropriate for Aboriginal families and communities. Therefore, an intercultural ADR model, such as the Aboriginal Care Circle, also needs to be considered.

B Culturally responsive ADR through the Aboriginal Care Circle

Aboriginal families and communities have been the most disproportionately and adversely impacted by the Australian care and protection system, a disadvantage that has found its historical roots in prejudicial child removal laws and policies.[71] While the use of ADR mechanisms have emerged as promising alternatives to court proceedings in care and protection disputes, it is recognised that innovations like the FGC have been inspired by, and developed within, a western legal system.[72]

Therefore, imposing largely western-based ADR mechanisms like the FGC on Aboriginal families dismisses their autonomy and treats them as an assimilated section of society.[73] This suggests that western ADR mechanisms can be significantly alienating for Indigenous parties and given the significant injustices that the current legal system has inflicted upon the Aboriginal community, this is more than understandable.[74]

In this context, the question then becomes whether there might be a more culturally appropriate ADR mechanism for resolving Aboriginal child protection disputes. The Aboriginal Care Circle, first piloted in New South Wales in 2008, has emerged as a promising ADR model that empowers Aboriginal families to participate in child protection decision-making.[75]

An Aboriginal Care Circle is a court-referred process and begins on the footing that a care plan needs to be prepared for an Aboriginal child.[76] The authorities are still involved in this process however, the care plan is developed in consultation with local Aboriginal Elders, thereby framing the decision-making process in terms of what can be done by the local Aboriginal community to support the child and his or her parents.[77]

Therefore, as an alternative to having the matter solely decided by a court, the Aboriginal Care Circle draws upon the strengths of the wider community to identify what decisions need to be taken to best promote the health and safety of Aboriginal children.[78] It allows the dispute resolution process to be controlled by Aboriginal peoples, offsetting the influence of power and privilege issues that may have arisen through the use of mediation and conciliation.[79]

In terms of innovations that improve long-term outcomes for Aboriginal children in OOHC, Aboriginal-led programme models have been identified as the most effective, being able to leverage local cultural norms and practices to imbue a sense of community ownership over the process.[80] While the evidence base for the Aboriginal Care Circle model is only emerging, it is hoped that in the near future, Australia begins to move in the direction of more culturally responsive dispute resolution mechanisms to reduce, and prevent further, the over-representation of Aboriginal children in the OOHC system.

Ultimately, the rationale for leveraging ADR in child protection disputes appears to be more defensible than the current over emphasis on the court. But despite its promise, there are challenges to adopting ADR in this sensitive context. This is particularly the case with allegations of domestic and family violence, a challenge that is explored below.


Power imbalance has been identified and articulated as one of the dominant challenges in the care and protection system. In this essay, the inherent power imbalance that exists between families and the authorities in child protection disputes has been presented as a key justification for the use of ADR as an alternative mechanism to more adversarial court processes.

Innovations such as the FGC and the Aboriginal Care Circle have provided a more participatory platform for families and communities to express themselves in the decision-making process and make a meaningful contribution in determining the outcome for the child. However, power imbalances can also exist within the ADR process as well, especially where domestic and family violence is related to the child protection dispute.

Much of this essay has deliberately cast the family unit as a unanimous front to explore the emerging opportunities of using ADR more holistically, in contrast to resorting to the court. However, given the seriousness and sensitive nature of child protection disputes, it is not uncommon for domestic and family violence issues to be related to the decision to remove the child from the home.[81]

This creates a difficult tension between the more participatory nature of ADR mechanisms and the desire to ensure that all parties have their views heard throughout the process. The underlying ideology of ADR is ultimately consensus, which may be taken advantage of by one party to continue their abusive pattern of control.[82]

For example, it may be unsafe for one parent to participate and exercise self-determination when they are required to engage with the perpetrator in the same room, who may intimidate the survivor into an agreement that they are not comfortable with.[83] In these circumstances, it may also be left to the third-party facilitator to identify these risks and terminate the ADR session if signs of threatening behaviour begin to emerge.[84] This particular vulnerability, in effect, summarised the National Working Party on Mediation in New Zealand’s resistance to endorsing mediation in a domestic and family violence context.[85]

This essay does not seek to suggest that ADR, as a mechanism that often relies on the skill and awareness of a third-party facilitator, is ill-equipped to deal with situations of domestic and family violence. However, acknowledging the sensitivity of the issues that often underscore child protection disputes, two general principles can be made about the use of ADR in a domestic and family violence context despite it being a significant challenge.

First, applying the blanket rule that ADR is inappropriate in situations of family and domestic violence would deny parents, mostly women, the opportunity of engaging in a process that is more affordable, flexible and empowering than the courtroom.[86] Moreover, it is questionable whether the court would lead to a timely, less costly and more satisfactory form of justice, and adopting such a position would bring into question the value of ADR, and the law more generally, for women.[87]

The resistance to the use of ADR has also targeted ADR’s ideology of consensus but from a moral condemnation perspective.[88] Opposers have argued that consensus encourages private settlement which in turn, undermines the ability of the court to hold perpetrators to account and take the abusive behaviour seriously in a public forum.[89] In other words, ADR has been said to undermine the retributive justice efforts of the court in responding to domestic and family violence.

However, this argument does not acknowledge the variety of innovative solutions that may be generated under the wide umbrella of ADR processes. Some of these outcomes may also be healing for the family unit as a whole, having an important restorative effect for both offender, survivor, and community.[90] For example, it may be the case that a collaborative ADR forum, through its precondition of voluntary cooperation, will help focus one party’s attention on understanding the patterns of abusive behaviour and developing practical strategies to enable behavioural change.[91]

In the context of FGC, Bogue identified another interesting dynamic. He observed that ‘widening the circle’, by inviting the extended family network to the decision-making forum, created more safety.[92] In this respect, there was ‘strength in numbers’, which would neutralise the power of any one individual present.[93]

Acknowledging that this might not work for every family dynamic, there is still an important takeaway, nonetheless. ADR mechanisms, through their general emphasis on participation and collaboration, create a better balance between solutions that might hold wrongdoers to account and solutions that emphasis positive restorative and relationship-building actions.[94]

Returning to the second general principle, nonviolence must also be a precondition of ADR and not up for negotiation.[95] This will largely be down to the ability of the third-party facilitator to address the issue of conflict in the preparatory stage and remove the obstacles to participation for the family members involved beforehand.[96]

A corollary of this argument is that the overall suitability of ADR for any given child protection dispute will likely depend on the individual circumstances at play. To further this point, Boxall and Payne provide a nuanced assessment of how domestic violence ‘typologies’, or categories, may be useful to practitioners making assessments for ADR.[97]

They propose that while classical groupings such as ‘intimate terrorists’ and ‘situational couple violence’ may aid decision-making at a very high-level, it is only when the idiosyncratic factors of survivors and offenders can be analysed independently, such as the unique beliefs held by either party, does typographical research offer any value.[98] When viewed from a therapeutic jurisprudence analytical lens as well, there is wisdom in the idea that the applicability of ADR will turn on a case-by-case basis.

The potential of the law to have a therapeutic impact will likely rest on the particular social or psychological dynamics that underscore the dispute.[99] For example, the willingness of the perpetrator to acknowledge accountability, or the propensity of the survivor to deny or downplay the violence, will have significant bearing on whether the ADR practitioner will be able to effectively reframe either parties’ understanding of the issues for the better during the session.[100]

What is clear, however, is that a standardised or mechanical process will not be effective or appropriate in resolving child protection disputes that concern domestic and family violence. Ultimately, ADR, through its flexible and collaborative procedural innovations, might be better adapted to achieve positive and safe outcomes for parties.


Child protection disputes are significantly complex and difficult to unpack, with deep, often competing, interests coming from all the stakeholders involved. In this respect, there is no single ‘catch-all’ solution. At the same time, the court is clearly not the most appropriate forum to address the acute sensitives of these matters.

Taken from a transformation perspective, a child protection dispute starts with an initial grievance from the authorities about the parents and family circumstances at home. It evolves into a dispute once the authorities have intervened to remove the child from the home. The adjudicative function of the court naturally focuses its attention on whether the authorities were justified in taking this course of action. However, in doing so, it stifles the voice of those most adversely affected by this decision, the broader family of the child, as well as ignores the social and familial circumstances that may have given rise to the initial grievance in the first place.

In response to these challenges, ADR mechanisms, the FGC and the Aboriginal Care Circle model in particular, appear well adapted to empower the voice of key stakeholders in the decision-making process. The FGC and the Aboriginal Care Circle model, both examples of ADR innovations designed specifically for a child protection context, envelop the family and child with a natural community of support. In effect, the emphasis is placed on the positive rebuilding of relationships, both within the family itself, and between the family group and the authorities, rather than who was right or wrong in the given set of circumstances.

Against this optimistic backdrop, it is also important to acknowledge that ADR in a child protection dispute is not without its own difficulties, especially where domestic and family violence in concerned. To maximise the therapeutic impact of the law, careful attention will need to be given to the individual set of circumstances at play, so that the flexible and collaborative procedural innovations of ADR can be best tailored to the family unit involved.

[1] Australian Institute of Health and Welfare, ‘Rate of children in out-of-home care remains stable’ (Media Release, 18 May 2021) <,of%2Dhome%20care%20across%20Australia>.

[2] Community Legal Centres NSW, Final Response to Shaping a Better Child Protection System Discussion Paper (December 2017) 6.

[3] Leticia Funston and Sigrid Herring, ‘When will the stolen generations end?: A qualitative critical exploration of contemporary ‘child protection’ practices in Aboriginal and Torres Strait Islander communities’ (2016) 7(1) Sexual Abuse in Australia and New Zealand 51, 51.

[4] Tamara Walsh and Heather Douglas, ‘Lawyers, Advocacy and Child Protection’ [2011] MelbULawRw 21; (2011) 35(2) Melbourne University Law Review 621, 624.

[5] Ibid.

[6] Funston (n 3) 54.

[7] Ibid.

[8] Ibid.

[9] Ibid.

[10] Walsh (n 4) 624.

[11] Ibid.

[12] Tamara Walsh and Heather Douglas, ‘Lawyers’ Views of Decision-Making in Child Protection Matters: The Tension Between Adversarialism and Collaborative Approaches’ [2012] MonashULawRw 19; (2012) 38(2) Monash University Law Review 181, 182.

[13] Ibid.

[14] Walsh, ‘Lawyers, Advocacy and Child Protection’ (n 4) 622.

[15] Ibid.

[16] Caitlin Cassidy, ‘“Absolutely appalling”: 100 vulnerable children died in NSW last year’, The Guardian (online at 3 December 2021) <>.

[17] Walsh, ‘Lawyers, Advocacy and Child Protection’ (n 4) 622.

[18] Walsh, ‘Lawyers’ Views of Decision-Making in Child Protection Matters’ (n 12) 183.

[19] Ibid 182.

[20] Walsh, ‘Lawyers, Advocacy and Child Protection’ (n 4) 622.

[21] Anthony Morgan et al, ‘Evaluation of alternative dispute resolution initiatives in the care and protection jurisdiction of the NSW Children’s Court’ (AIC Reports Research and Public Policy Series No 118, Australian Institute of Criminology, 2012) 18.

[22] Ibid.

[23] Ibid.

[24] Ibid.

[25] Ibid.

[26] William Felstiner, Richard Abel and Austin Sarat, ‘The Emergence and Transformation of Disputes: Naming, Blaming, Claiming . . .’ (1980-81) 15(¾) Law & Society Review 631.

[27] Ibid 631-32.

[28] Ibid 637.

[29] Ibid 649.

[30] Ibid 637.

[31] Ibid.

[32] Ibid 638.

[33] Rachael Field and Eugene Hyman, ‘Non-Adversarial Approaches to Domestic Violence: Putting Theory into Practice’ (2017) 26(4) Journal of Judicial Administration 275, 277.

[34] Ibid.

[35] Hayley Boxall, Anthony Morgan and Kiptoo Terer, ‘Evaluation of the Family Group Conferencing pilot program’ (AIC Reports Research and Public Policy Series No 121, Australian Institute of Criminology, 2012) 1.

[36] Ibid.

[37] Morgan (n 21) 18.

[38] Nicholas Petrie and Louise Kruger, ‘Child Protection Matters in the Northern Territory’ (2014) 39(2) Alternative Law Journal 104, 104.

[39] Ibid.

[40] Ibid.

[41] Boxall (n 35) 2.

[42] Morgan (n 21) 18.

[43] Walsh, ‘Lawyers’ Views of Decision-Making in Child Protection Matters’ (n 12) 201.

[44] Ibid 202.

[45] Gregory Firestone, ‘Empowering Parents in Child Protection Mediation: Challenges and Opportunities’ (2009) 47(1) Family Court Review 98, 99.

[46] Ibid.

[47] Ibid.

[48] Marie Connolly, ‘Family Group Conferences in Child Welfare’ (2007) 19 Developing Practice: The Child, Youth and Family Work Journal 25, 26.

[49] Boxall (n 35) 2.

[50] Daniel Bogue, ‘Reversing the Trend: Families Resolving and Responding to Their Own Problems of Living through Family Group Conferencing’ (2010) 2010(1) International Journal of Narrative Therapy and Community Work 23, 23.

[51] Boxall (n 35) 2.

[52] Walsh, ‘Lawyers’ Views of Decision-Making in Child Protection Matters’ (n 12) 203.

[53] Field (n 33) 277.

[54] Walsh, ‘Lawyers’ Views of Decision-Making in Child Protection Matters’ (n 12) 203.

[55] Ibid.

[56] Ibid.

[57] Petrie (n 38) 104.

[58] Ibid.

[59] Ibid.

[60] Bogue (n 50) 25.

[61] Ibid 27.

[62] Ibid 25.

[63] Connolly (n 48) 26.

[64] Ibid.

[65] Ibid.

[66] Petrie (n 38) 106.

[67] Ibid 105.

[68] Bogue (n 50) 30.

[69] Connolly (n 48) 26.

[70] Bogue (n 50) 31.

[71] Sarah Ciftci and Deirdre Howard-Wagner, ‘Integrating Indigenous Justice into Alternative Dispute Resolution Practices: A Case Study of the Aboriginal Care Circle Pilot Program in Nowra’ [2012] AUIndigLawRw 14; (2012) 16(2) Australian Indigenous Law Review 81, 81.

[72] Ibid 83.

[73] Ibid 84.

[74] Ibid 82.

[75] Ibid 81.

[76] Ibid 88.

[77] Ibid.

[78] Ibid 82.

[79] Ibid 84.

[80] Amy Lawton, Olivia Hamilton and Cheryl Jackson, ‘Aboriginal Family Planning Circle evaluation: Empowering Aboriginal communities in evaluating and future-proofing Aboriginal-led community programmes’ (2020) 20(1) Evaluation Journal of Australasia 23, 27.

[81] Firestone (n 45) 106.

[82] Chukwunweike Ogbuabor, ‘Applying global standards in using ADR to settle domestic violence cases in Nigeria’ (2016) 27(3) Australasian Dispute Resolution Journal 179, 182.

[83] Firestone (n 45) 107.

[84] Ibid 108.

[85] Ogbuabor (n 82) 181.

[86] Rachael Field, ‘Mediation and the Art of Power (Im)Balancing’ [1996] QUTLawJl 19; (1996) 12 Queensland University of Technology Law Journal 274, 291.

[87] Ogbuabor (n 82) 183.

[88] Ibid 182.

[89] Ibid.

[90] Ibid 184.

[91] Ibid.

[92] Bogue (n 50) 29.

[93] Ibid.

[94] Ibid.

[95] Firestone (n 45) 108.

[96] Paul Ban, ‘Dialogue and alignment in preparing families for family group conferences’ (2009) 20(1) Australiasian Dispute Resolution Journal 33, 35.

[97] Hayley Boxall and Jason Payne, ‘Another tool in their arsenal? The potential of domestic violence typologies to inform family law alternative dispute resolution processes’ (2017) 7(1) Family Law Review 20.

[98] Ibid 29.

[99] Field, ‘Non-Adversarial Approaches to Domestic Violence’ (n 33) 280.

[100] Boxall, ‘Another tool in their arsenal’ (n 97) 25.

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