Activist: courts must be safe resort for domestic abuse cases
An anti-domestic violence campaigner has raised grave concerns about a proposal by a judge for the use of collaborative law over the courts to resolve certain divorce and family matters.
Tammy Richardson-Augustus, a lawyer and activist, referred to comments by Assistant Justice Alexandra Wheatley, who wrote for the Collaborative Law Alliance, an organisation launched in 2006, saying that the courts should be “the guardian and arbiter of last resort — not the default mechanism for family dispute resolution”.
Mrs Justice Wheatley went on to suggest that alternative dispute resolution, which seeks to settle outside of court with methods including mediation, arbitration and early neutral evaluation, should be considered — but she added it was not an appropriate route in certain cases such as those involving domestic violence.
Ms Richardson-Augustus said that Mrs Justice Wheatley’s endorsement of ADR “fundamentally misapprehends reality and risks undermining years of hard-won victim-centred advocacy”.
She added: “Her call for the Family Court to be the ‘final station’ after all other avenues have been exhausted has caused deep unease among survivors and advocates. It betrays a troubling disconnect from the lived experiences of those the family justice system purports to serve.”
Ms Richardson-Augustus went on to say that with cases involving abuse, the court is already the last resort, “reached only after years of endurance and danger”.
She said: “We need victims to access it sooner and for it to be a safe resort.
“ADR may have merit in certain contexts, but in cases of abuse ADR is not a magic panacea; it’s a peril.
“Judicial endorsement of ADR, absent explicit qualifiers, disclaimers and protective safeguards, risks exposing victims to renewed coercion under the guise of settlement.”
She added that Scottish Women’s Aid, a British-based domestic abuse organisation, said mediation in family cases where domestic abuse is an issue is “wholly inappropriate and in fact a procedure that is specifically prohibited”, and that international standards, including those of the United Nations, reinforce the position.
Mrs Justice Wheatley, an assistant justice assigned to the Family Division of the Supreme Court, said in her article: “The court’s involvement, in my respectful view, [should] be reserved for circumstances where collaborative or ADR processes have been exhausted or are clearly inappropriate, such as in cases involving domestic violence, power imbalances or entrenched non-cooperation.”
However, she added: “The courtroom ought not to be the first stop for families in distress, but the final station after all other avenues have been earnestly pursued.”
Mrs Justice Wheatley’s article came as the introduction of family arbitration nears completion for the island’s courts.
She made the case that traditional litigation came with “a distinctive set of burdens”, including being adversarial, lengthy and expensive in nature.
Mrs Justice Wheatley said the collaborative law process she is trained in focused on “open disclosure, transparency and the identification of common interests”, and provided a neutral mediator.
She said it had resulted in more amicability between parties, solutions tailored to the individuals and improved efficiency, while sustaining confidentiality.
Mrs Justice Wheatley has since said in response to Ms Richardson-Augustus’s concerns: “The recent article published by The Royal Gazette, in which I advocated for the adoption of a more collaborative approach across a broad range of family matters, has prompted valuable discussion. I am encouraged by the engagement it has generated, as collective dialogue is essential to developing better, more effective and more efficient solutions.
“It remains important to emphasise that every case must be assessed on its individual circumstances. In situations involving domestic violence, mediation will most often be unsuitable as a method for resolving family issues.”
She referenced as an example the recent Supreme Court decision in Father v Mother (Travel Prohibition Application) [2024], in which there were allegations of domestic violence against one of the parties.
She added: “We remain committed to driving meaningful reform in how family matters are addressed, with the aim of achieving the best possible outcomes for all parties involved.”
Ms Richardson-Augustus said: “Judicial imprimatur or endorsement lends ADR an ominous weight. What is styled as voluntary resolution becomes compulsion as victims fear their refusal will be construed as obstructive or unreasonable — prejudicing custody claims or inviting adverse costs.
“When a judge’s authoritative stamp appears aligned with a particular professional alliance, as in this instance, survivor autonomy is chilled, deterring victims from instructing counsel of their choosing.”
Ms Richardson-Augustus did say the courts are not without restrictions, operating in a “data vacuum without reliable statistics on the incidence of abuse, victim attrition, etc”.
She added: “Institutions must not look away or put children in path of further abuse. There is no clear cogent understanding of abuse. Clear competence is necessary for screening to be effective.”
Tammy Richardson-Augustus, an anti-domestic abuse campaigner and lawyer, said required enhancements from the judiciary included a focus on children’s voices, strategic leadership in the domestic abuse sphere, specialist support, data and evidence, training and safeguarding.
Overall, she said, actions to help tackle domestic abuse include legislative reform to modernise Bermuda’s legal framework such as “broadening the statutory definition of abuse, rationalising the Children Act and Minors Act to eliminate fragmentation, recognising children in law as victims in their own right, not simply as witnesses of adult harm”.
She said the rule of law adherence is mandatory, adding: “Family Court operates without external oversight, allowing deficiencies to persist unchecked.
“Judicial officers have, in some instances, failed to fully disclose conflicts, served without taking the constitutionally required oath, protracted delays in rendering judgments, paralysing a victim from moving forward with their lives.”
She said victims and survivors are further “threatened with contempt for revealing the atrocities they face in court, a practice that silences testimony and obstructs accountability”.
She said systemic barriers that include a “culture of minimisation of abuse, a policy of reunification of separating partners whose relationship has passed the expiration date, evidentiary requirements, especially in emotional abuse cases, all foster chronic under-reporting and attrition”.
Domestic abuse victims/survivors, especially when unrepresented by counsel, should be granted vulnerable-person accommodation, she said.
Ms Richardson-Augustus said the judiciary must be trained in, and expertly attuned to, recognising the dynamics of abuse — not just the aftermath — and that there was a need to “reduce court silos”.
“Victims/survivors face a labyrinth of laws, courts and procedural silos, all of which the perpetrator can weaponise to delay and further complicate the process... Justice must be a pathway to durable peace/safety, not a maze,” she said.
She said a blanket presumption of parental contact can override the safety of a vulnerable child and create a laboratory for further harm.
“When children are involved, there should be no default assumptions of reunification,” she added.
“We call on policymakers to employ improved risk assessment tools and to align with Bermuda Aces report to see the toll of having children cope and not heal, tfc.bm/aces, UK Harm Panel Recommendations and the UN Framework.
Education was also key, she said, with the need for comprehensive courses designed to reduce occurrences of abuse. They should be offered to different stakeholders including family members, lawyers, and those serving or working with children.
She said a multi-agency approach was needed in sharing expertise and resources to ensure victims/survivors receive a continuum of support. She said she was encouraged by the work already carried out by Kim Wilkerson, the Attorney-General and Minister of Justice, Tinée Furbert, the Minister of Youth, Social Development and Seniors, and the Bermuda Police Service in being part of the solution.
“A siloed approach is disastrous, as understanding of the victim/survivor journey might be held by multiple professionals each playing a vital role, from advocacy to counselling to temporary refuge to follow-on support,” she said.
“We need institutions to prioritise data transparency and ethical data collection. Victim/survivor reform cannot rely on anecdote or assumption.
“Clear, disaggregated data can help us identify patterns, allocate resources effectively and hold persons to account.
“Reform must be rooted not just in empathy, but in evidence-based decisions.”
Ms Richardson-Augustus also highlighted that about one in three women in Britain experiences abuse according its data, that 50 per cent of child-access cases involved abuse, and that “anecdotal evidence suggests Bermuda’s figures are even more stark”.
“Accordingly, domestic abuse is not the exception, nor is it trivial; it is a predominant source of violence, humiliation and death, and must be prioritised.”
She added: “It is important to underscore that the Family Court is the final recourse, but regrettably it is not consistently recognised as a safe option. It is a jurisdiction where discretion is vast and oversight is minimal with no press, no public gallery and, in some instances, no published judgments.
“A data desert obscures the true scale of the problem, reunification is erroneously prioritised over safety, and the cost of addressing procedural irregularities is borne by those already harmed.
Ms Richardson-Augustus implored the judiciary to implement meaningful change and called for the courts to be equipped with “effective screening, trauma‑informed practices, cultural competency, robust training and systemic data collection” aligned with international best practice, bound by constitutional safeguards on judicial appointment, oath-taking, conflict disclosure and the practice of active listening.
“To shirk from its duties to remedy these deficiencies will be to betray the trust of those who turn to it in desperation,” she said.
“The court’s constitutional duty is not merely to ensure efficiency, but safety, dignity and the rule of law.”
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