Anstie, Lara, ‘Cross examination of victims of family and domestic violence by self-represented perpetrators in family law proceedings’ (2016) 43(4) Brief 38.
Authored by a Western Australian family law practitioner, this article discusses the potential for cross-examination to be exploited by perpetrators to commit further emotional abuse against victims, and in that context, the court’s obligation to ensure procedural fairness to an alleged perpetrator while protecting the interests of an alleged victim of domestic and family violence. Reference is made to the Family Court of Australia’s Family Violence Best Practice Principles and the Family Court of Western Australia’s Family Violence Policy, and recommendations are made for changes to the Family Court Rules 1998 (WA) and Family Court Act 1997 (WA) that provide for a process for the protection of victim witnesses in cross-examination and otherwise in giving oral testimony.
Australian Law Reform Commission and New South Wales Law Reform Commission, Family Violence: Improving Legal Frameworks (Consultation Paper, 2010).
On 17 July 2009, the Attorney-General of Australia, the Hon Robert McClelland MP, asked the Australian Law Reform Commission (ALRC) to conduct an Inquiry together with the New South Wales Law Reform Commission (NSWLRC) into particular questions in relation to family violence that had arisen from the 2009 report of the National Council to Reduce Violence against Women and their Children, Time for Action. At its meeting on 16–17 April 2009, the Standing Committee of Attorneys-General (SCAG) agreed that Australian law reform commissions should work together to consider these issues. The ALRC was asked to consider the issues of:
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the interaction in practice of State and Territory family/domestic violence and child protection laws with the Family Law Act 1975 (Cth) and relevant Commonwealth, State and Territory criminal laws; and
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the impact of inconsistent interpretation or application of laws in cases of sexual assault occurring in a family/domestic violence context, including rules of evidence, on victims of such violence’ (p 7).
The Consultation Paper is arranged in five Parts: an introductory section, followed by parts dividing up the subject areas of the Terms of Reference as providing the lens through which the interaction issues are considered’ (p 91).
Kennon: The ALRC notes that notably absent from the factors set out in ss 75(2) and 79(4) Family Law Act 1975 (Cth) is the notion of fault. In Kennon, (Re: Cassandra Kathleen Kennon (Appellant/Wife) and Ian William Kennon (Cross-Appellant/Husband) Appeal (1997) FLC 92-757; [1997] FamCA 27 (10 June 1997)) the court recognised family violence as a relevant factor in determining property disputes under the Family Law Act (p.425). This paper goes on to critically analyse the application of Kennon
The ALRC notes that relocation disputes are highly sensitive, as “refusing to make relocation orders in situations involving family violence has serious repercussions for the safety of victims and their children”. It recognises that many relocation disputes are associated with unilateral moves after separation but prior to court proceedings. This may give rise to a recovery order under pt VII of the Family Law Act or the Convention on the Civil Aspects of International Child Abduction (Hague Convention).
Australian Law Reform Commission and New South Wales Law Reform Commission, Family Violence – A National Legal Response (ALRC Report 114) 2010.
This report presents a comprehensive review of legal responses to Family Violence in Australia. The commissions received many submissions. The effect of family violence and parenting arrangements is discussed at [15.11] (p 675). The report notes that –
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‘Spousal abuse may not end with separation—in particular, abusive controlling violence may escalate after separation.
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People who use family violence may be deficient or even abusive parents and poor role models for their children. They may also undermine their victims’ parenting role.
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Victims of family violence may find parenting difficult, as a result of abuse, poor self-esteem and the stress of separation and court proceedings. Time, protection and support may be required to re-establish their parenting role. A victim’s behaviour under the stress of an abusive relationship or separation should not prejudice parenting decisions.’
Chapter 17 of the report deals with the jurisdiction and practice of the Federal Family Courts. It notes that s 79 of the Family Law Act 1975 (Cth) permits federal family courts to make orders about the distribution of the property of parties to a marriage upon the breakdown of that marriage. Section 90SM governs how property is to be distributed between parties to a de facto relationship, and mirrors s 79 to a large extent (p.791). The report notes that in Kennon(Re: Cassandra Kathleen Kennon (Appellant/Wife) and Ian William Kennon (Cross-Appellant/Husband) Appeal (1997) FLC 92-757; [1997] FamCA 27 (10 June 1997)), the court established the principle that ‘when assessing a party’s contributions, the court can take into account a course of violent conduct by one party towards the other that has had a significant adverse impact on that party’s contribution or has made his or her contributions significantly more arduous than they ought to have been’. Further, ‘[w]hile family violence, in itself, is not relevant to an assessment of future needs of a party, the consequences of family violence—for example its effect on the state of the victim’s health or physical and mental capacity to gain appropriate employment—can be considered when assessing future needs’. The report goes on to critically analyse the application of Kennon (pp.792-796).
Australian Law Reform Commission, Family Law for the Future – An Inquiry into the Family Law System, ALRC Report 135, March 2019
The ALRC was commissioned to consider appropriate reforms to the family law system and Family Law Act necessary or desirable in relation these matters (see the Terms of Reference and p5 of the Final Report):
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the appropriate, early and cost-effective resolution of all family law disputes
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the protection of the best interests of children and their safety
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family law services, including (but not limited to) dispute resolution services
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family violence and child abuse, including protection for vulnerable witnesses
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the best ways to inform decision makers about the best interests of children, and the views held by children in family disputes
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collaboration, coordination, and integration between the family law system and other Commonwealth, state and territory systems, including family support services and the family violence and child protection systems
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whether the adversarial court system offers the best way to support the safety of families and resolve matters in the best interests of children, and the opportunities for less adversarial resolution of parenting and property disputes
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rules of procedure, and rules of evidence, that would best support high quality decision making in family disputes
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mechanisms for reviewing and appealing decisions
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families with complex needs, including where there is family violence, drug or alcohol addiction or serious mental illness
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the underlying substantive rules and general legal principles in relation to parenting and property
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the skills, including but not limited to legal, required of professionals in the family law system
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restriction on publication of court proceedings
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improving the clarity and accessibility of the law
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any other matters related to these terms of reference.
The ALRC released its report in March 2019, including 60 recommendations for reform. Key recommendations include:
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closing jurisdictional gaps between Commonwealth and state/territory courts
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factors to be considered when determining parenting arrangements that promote a child’s best interests
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compliance with children’s orders
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introducing a statutory tort of family violence applicable in the context of determining the division of property interests
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encouraging amicable resolution between parties of property and financial matters
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case management and social support services for people engaged with the family law system.
Bagshaw, Dale 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.
This article reports key findings of two national online surveys with adults and children in relation to post-separation parenting, which formed part of the larger research. Adult respondents described how family violence affected their parenting arrangements and their use of family services to assist with parenting decisions. There were gender differences in the reported experiences of and responses to violence, with women reporting more serious forms of violence than men. Many adults felt dissatisfied with service providers' acknowledgement and appreciation of the impact of family violence on adult and child victims. Adults were most dissatisfied with services for decision-making regarding planning for their children's care post-separation. Their concern for their children's safety was supported by children's own reports. The study raised many questions about how well family law policies, as expressed in the legislation and implemented in the national service system, respond to violence in families such as those who were involved in this research (p 49).
Bailey, Alice, 'Separating safety from situational violence: Response to ‘Allegations of family violence and child abuse in family law children‘s proceedings‘' [2007] (77) Family Matters 26.
The paper discusses the report: Moloney et al. ‘Allegations of family violence and child abuse in family law children‘s proceedings: A pre-reform exploratory study Research Report No. 15 — May 2007’ (Australian Institute of family Studies, 2007)- see below. The article notes the Maloney et al report provides evidence challenging a common myth that women frequently claim false allegations of family violence in child custody cases and that unless allegations are accompanied by strong evidence, they will have little impact on post-separation child contact.
Behrens, J. & Bruce Smyth, Australian Family Court Decisions About Relocation: Parents’ Experience and Some Implications for Law and Policy. (2010) 38 Federal Law Review 1-20.
The project reports on in-depth semi-structured interviews with parents (11 mothers and 27 fathers) who had a contested court order in relation to relocation between 2002 and mid–2005 and a detailed analysis and coding of judgments in relocation cases for the same period.
The themes that emerged from the interviews included:
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the pre-court circumstances were important in predicting outcome;
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a high prevalence of high conflict and/or abusive relationships predating the relocation dispute, including a significant minority of short, unhappy relationships with separation occurring during pregnancy or shortly after the birth of a single child;
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the relocation dispute was one of many sources of conflict and dispute between most parents we spoke with;
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smoother paths after relocation for parents who were in less high conflict relationships, and for whom this was really a 'relocation only dispute';
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relocation as a significant point of transition in parent–child relationships,
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those applying to relocate giving complex, multiple reasons for their decision, often including the poor quality of their relationship with the other parent.
Booth, Tracey, Miranda Kaye, & Jane Wangmann. (2022). Addressing the problem of direct cross-examination in Australian family law proceedings. University of New South Wales Law Journal, 45(4), 1415–1448.
Difficulties experienced by victims of family violence who are cross-examined by the unrepresented perpetrator of that violence (or vice versa) in family law proceedings are well-documented. Such direct cross-examination can be traumatic and unlikely to generate high quality evidence. In 2019 this problem was addressed in Australia by the Family Violence and Cross-Examination Scheme ('Scheme'). Under this Scheme, direct cross-examination by self-represented litigants is prohibited on a mandatory or discretionary basis in certain family law cases involving allegations of family violence. This article examines the implementation of the Scheme by drawing on data from a large ethnographic project that was concerned with self-representation in family law proceedings involving allegations of family violence and an analysis of recent case law. We highlight issues in the early administration of the Scheme as well as more complex ongoing issues. This article provides an evidence base to guide policy and legislative developments in this area.
Bozin, Danielle, ‘The Hague Child Abduction Convention's Grave Risk of Harm Exception: Traversing the Tightrope and Maintaining Balance between Comity and the Best Interests of the Child’ (2016) 35(1) University of Tasmania Law Review 24-42, doi: 10.3316/INFORMIT.135379927197544
This article provides a critical analysis of divergent judicial opinions about how Australian courts should interpret the 'grave risk of harm' exception in the Hague Convention on Civil Aspects of International Child Abduction. Conflicting views about the extent to which the exception to a child's return should permit consideration of a child's best interests may be a manifestation of the ‘balancing act’ that must be performed during return proceedings. The Convention seeks to protect children from the harmful effects of international parental child abduction through prompt return, whilst also accommodating situations where non-return is justified on welfare considerations.
See in particular that since the Convention’s creation, there has been a trend away from abducting by non-custodial fathers to abducting by primary-caregiving mothers. The article notes that abducting mothers are often “principally motivated by a need to flee domestic violence and/or child abuse”, as well as a desire to return to their homeland, family and social support networks (p30). The article concludes that given that the ‘grave risk of harm’ exception is most often raised in circumstances of alleged domestic and family violence, how Australian courts interpret this exception is particularly important.
Bromfield, Leah, et al, ‘Issues for the Safety and Wellbeing of Children in Families with Multiple and Complex Problems: The Co-Occurrence of Domestic Violence, Parental Substance Misuse and Mental Health Problems’ (National Child Protection Clearinghouse Issues Paper No 33, Australian Institute of Family Studies, December 2010).
This paper investigates the separate impacts of parental substance misuse, domestic violence and parental mental health problems. It presents evidence regarding the extent to which these problems co-occur and a discussion of the wider context of exclusion and disadvantage, its causes and its consequences. Finally, it provides an overview of research and theory for working with families with multiple and complex problems. This literature review cites statistics from a US study, the statistics were collected from household census data from over 20,000 households (G. Fox and M. Benson ‘Violent men, bad dads? Fathering profiles of men involved in intimate partner violence.’ In R. Day & M. Lamb (Eds.), Conceptualizing and measuring father involvement. (Mahwah, New Jersey: Lawrence Erlbaum Associates Publishers, 2004)):
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37% of children were accidentally hurt during domestic violence;
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26% of children were intentionally hurt during domestic violence;
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49% of mothers were hurt protecting children;
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47% of perpetrators used the child as pawn to hurt mothers;
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39% of perpetrators hurt mothers as punishment for children's acts;
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23% of perpetrators blamed mothers for perpetrators’ own excessive punishment of children.
Bryant, Diana, ‘The Family Courts and Family Violence’ (Paper Presented at the Judicial Conference of Australia Colloquium, 9-11 October 2015).
This paper discusses various issues which confront the family courts where family violence is a feature. The Chief Justice identifies cross-examination by alleged perpetrators of alleged victims as one of 16 particularly complex issues. See at p 4 – ‘Where the alleged perpetrator cannot afford a lawyer, or chooses not to get one, and is ineligible for legal aid, there is a need for the court to ensure that each party is afforded procedural fairness in presenting their case and, where facts are in issue in parenting matters (beyond the question of whether or not violence has occurred), to deal with the issue of cross examination of the alleged victim by the alleged perpetrator.’
Carson, R., et al., (2022). Compliance with and enforcement of family law parenting orders: Final Report, ANROWS.
This research (based on surveys, analysis of court data and overseas models of order enforcement) explores non-compliance with family law orders.
The researchers note: ‘Contravention applications are not particularly common, comprising approximately 8 per cent of all applications for final orders in parenting matters.’(p13)
The research demonstrates that non-compliance arises from a complex interplay of difficult interpersonal dynamics, including family violence, and systemic limitations in the response to them. The researchers observe that ‘parties who engage in litigation over their parenting arrangements following separation are a particularly complex subset of separated parents.’ They show that ‘parents who subsequently experience problems with compliance with parenting orders are an even more complex subset: their families are often characterised by family violence, challenging interpersonal dynamics, conflict over a protracted period of time, and serious concerns about child wellbeing.’ (p14)
‘Women are significantly more likely than men to describe relationships as fearful, and men are significantly more likely than women to describe them as conflictual.’ (p14)
‘Family violence and safety concerns are also a key contributor to non-compliance where such concerns were not brought to the court’s attention or were not given due consideration in the development of parenting orders, resulting in inappropriate or unsafe parenting orders or orders not accepted as safe by the contravening party.’ (p15)
Carson, R., Qu, L., Kaspiew, R., Stevens, E., Sakata, K., Horsfall, B. et al. (2022). Evaluation of the Lawyer-assisted Family Law Property Mediation: Legal Aid Commission Trial: Final Report. Melbourne: Australian Institute of Family Studies.
An evaluation of the lawyer assisted family law property mediation program which aims to assist parties (particularly women) with property pools < $500 K especially where they have experienced family violence.
Carson, Rachel, Edward Dunstan, Jessie Dunstan and Dinika Roopani, Children and young people: Family law system experiences and needs - Final Report 2018 (Research Report – June 2018, Australian Institute of Family Studies).
This report sets out findings from the Children and Young People in Separated Families: Family Law System Experiences and Needs project, a qualitative study commissioned and funded by the Australian Government Attorney-General’s Department (AGD). This study aimed to investigate the experiences and needs of young people whose parents had separated and had accessed the family law system.
The study comprised in-depth, semi-structured interviews carried out between May 2017 and April 2018, with 61 children and young people aged between 10 years and 17 years (supplemented by interviews with 47 parents of these children). The interviews with 47 parents of these children were undertaken by telephone to enable the collection of demographic information by way of background to the data provided by the children and young people. These data enabled the research team to understand the services accessed by the parents and the pathways used to resolve their family law matters. Against this backdrop, the data from the interviews with children and young people provided rich insights into the experiences and needs of children and young people whose parents had separated and had accessed the family law system.
Findings are included in the executive summary and included:
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Most children and young people (76%) wanted parents to listen more to their views in relation to parenting arrangements and regarding the separation more generally, to provide them with space and time to process events, and for their parents to respect their views as their own even if they disagree with them.
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Of those children and young people who indicated that they felt both parents listened to them (21% of participants), all except one felt either quite close or very close with both parents.
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More than one-third (38%) of children and young people described wanting ongoing communication with parents and others to understand more about what was going on in the post-separation context.
Caruana, Catherine, ‘Dispute resolution choices: A comparison of family dispute resolution, family law conferencing services and collaborative law’ [2010] (85) Family Matters 80.
This article provides a comparison of family dispute resolution, family law conferencing and collaborative law. Practitioners’ views, differences in the lawyer’s role, cost and the range of applicable issues in each theatre are discussed. Traditional mediation (known as Family Dispute Resolution - FDR) is discussed on p 81. The article identifies that careful screening processes for issues such as domestic violence and child abuse are conducted and FDR practitioners ‘may refuse mediation where they believe there is a concern about the safety of the clients or the mediators, or where there is a power imbalance that cannot be adequately addressed within the process’ (p 81). It points out that while the client must be able to negotiate on their own behalf, there are mechanisms available to support clients including conducting the mediation ‘on a shuttle basis where the parties are located in separate rooms and the mediators move between the rooms’ (p 81).
Chisholm, R & Fehlberg, B. (2022) The High Court and family law: The Hague child abduction cases. Australian Journal of Family law, 35: 39-67.
This paper provides a short overview and history of the Hague convention. It then reviews the six Hague cases that the High Court has decided and considers their contribution:
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De L v Director-General, New South Wales Dept of Community Services (1996) 187 CLR 640; (1996) 20 Fam LR 390; FLC 92–706; [1996] HCA 5
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DP v Commonwealth Central Authority (2001) 206 CLR 401; (2001) 27 Fam LR 569; (2001) FLC 93-081; [2001] HCA 39
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JLM v Director-General, NSW Department of Community Services (2001) 206 CLR 401; (2001) 27 Fam LR 569; (2001) FLC 93-081; [2001] HCA 39
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MW v Director-General of the Department of Community Services (2008) 244 ALR 205; 82 ALJR 629; 39 Fam LR 1; [2008] HCA 12
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LK v Director-General Department of Community Services (2009) 237 CLR 582; 2009) 40 Fam LR 495; [2009] HCA 9
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RCB v Forrest (2012) 292 ALR 617; 48 Fam LR 236; [2012] HCA 47
Chisholm, Richard, ‘The Sharing of Experts’ Reports Between the Child Protection System and the Family Law System’ (Canberra: Attorney-General’s Department, 2014).
This report is a supplement to the Richard Chisholm’s earlier report ‘Information-sharing in Family Law & Child Protection: Enhancing Collaboration’ (2013). It is noted that experts’ reports are one instance of information that can usefully be shared between the systems. Some features of experts’ reports require special consideration, and these form the focus of this report (p 1). Part 2 considers the advantages and disadvantages of sharing experts’ reports while part 3 considers the legality of the sharing of experts’ reports. Part 4 discusses practical issues and recommendations, including the regulation of the disclosure of experts’ reports provided to the courts.
Chisholm, Richard, ‘Information-sharing in Family Law & Child Protection: Enhancing Collaboration’ (Canberra: Attorney-General’s Department, 2013).
Chapters 2 and 3 of this report review the relevant legal framework, in particular the federal and state laws that affect information-sharing. Chapter 4 describes a number of formal written information-sharing agreements between the family courts and child protection departments (and other parties). Chapter 5 reviews general issues about drafting such agreements, and makes a number of recommendations. Chapter 6 deals with the most important specific issues, making recommendations about how formal agreements might best address each issue. Chapter 7 deals with information-sharing mechanisms other than formal agreements. In chapter 6, family violence is specifically considered (p 105).
Chisholm, Richard, ‘Family Courts Violence Review: A Report’ (Canberra: Attorney-General’s Department, 2009).
Professor Chisholm was required to ‘assess the appropriateness of the legislation, practices and procedures’ that apply in cases where family violence is an issue and to recommend improvements. The author acknowledged the challenges that family violence presents for the family law system and observed that more than half the parenting cases that come to the courts involve allegations by one or both parties that the other has been violent (p 4). The report considers extensively the issue of family violence in the family law system. Part 2 considers court practices and procedures of the federal family courts in cases with family violence issues. Part 3 discusses issues with the applicable legislation in force at the time. Part 4 considers other matters, mainly relating to support services, information sharing and legal representation.
Chisholm, Richard, ‘“Less adversarial” proceedings in children’s cases’ [2007] (77) Family Matters 28.
The author discusses the ‘Less Adversarial Proceedings’ approach in relation to hearing child related proceedings, introduced in 2006 amendments to the Family Law Act. This article overviews the less adversarial principles and duties under the new legislation (at 31-32).
Coy, Maddy et al, Picking up the pieces: domestic violence and child contact (Rights of Women and CWASU, 2012).
Section 5 of this report presents quantitative and qualitative data on women and legal professionals’ experience of legal proceedings. In relation to legal representation, this report found that there were instances where women had to represent themselves (and thus have to cross-examine men who had been violent to them) or face the prospect of being cross-examined by their ex-partners. Women were afraid of these two scenarios (p 38). Solicitors and barristers surveyed identified two issues relating to potential abuse and intimidation that self-representation raises. First, ‘perpetrators representing themselves used cross-examination as another route to harass and undermine their ex-partners’. Second, fearful victim-survivors representing themselves may not disclose the full details of their abuse and may inhibit themselves from questioning perpetrators about their actions and motivations (p 39). The report identifies multiple ways in which the outcome of the case can be influenced where women and/or their abusive ex-partners represent themselves:
1.
Victim-survivors are not enabled to give their best evidence about histories of abuse, which may be crucial to determining whether contact, and in what form, is deemed appropriate.
2.
The difficulties of cross-examining their perpetrators may mean they do not ask sufficiently probing questions or challenge responses, which again informs what evidence is available to the court.
3.
They are rarely equipped with the legal knowledge and experience to prepare documentation and negotiate family law processes e.g. requesting finding of fact hearings.
4.
Pressure to reach speedy resolution may mean that women accede to arrangements which are not necessarily in their own or their children’s best interests’ (p 40).
Croucher, Rosalind, ‘Family Law: Challenges for Responding to Family Violence in a Federal System’ in Hayes, Alan, and Daryl Higgins (eds), Families, Policies and the Law: Selected Essays on Contemporary Issues for Australia (Australian Institute of Family Studies, 2014).
This chapter discusses the history and place of family law in Australia’s federal system. Difficulties in addressing family violence in what is an often fragmented legal framework are discussed. Many different courts and jurisdictions are involved, especially where the dispute extends between states or territories. This is particularly problematic where child protection is an issue.
De Maio, John, et al, ‘Survey of Recently Separated Parents: A study of parents who separated prior to the implementation of the Family Law Amendment (Family Violence and Other Matters) Act 2011’ (Commissioned Report, Australian Institute of Family Studies, 2013).
This report presents key findings from the Survey of Recently Separated Families (SRSP) 2012. The study aimed to gain a more detailed understanding of parents' experiences of family violence and concerns about child safety, and how well the legal system responds. Interviews were conducted with 6,119 parents who separated between 31 July 2010 and 31 December 2011 - that is, five years after the family law reforms of 2006 and one year prior to the legislative reforms introduced by the Family Law Amendment (Family Violence and Other Measures) Act 2011. The study found that family violence is common among separated families, and though many of the participants reported this violence to police or other services, a sizeable minority (47%) of them did not.
Dewar, John, et al, ‘Litigants in Person in the Family Court of Australia: A report to the Family Court of Australia’, 2000).
(The findings of this report were summarised concisely in: Family Court of Australia, Self-represented Litigants - A Challenge: Project Report (December 2000-December 2002) and Family Law Council, ‘Litigants in Person: A Report to the Attorney-General’ (August 2000) - see below)
The methodology is set out at p28-32. This study employed quantitative and qualitative approaches, primarily questionnaires and semi-structured interviews with judges, judicial registrars, registrars and litigants in person; the researchers interviewed a small number of legal practitioners, and convened focus groups with various groups. 49 unrepresented litigants who had conducted their own matters at the interim stage were also interviewed. A number of hearings involving litigants in person were also observed
Findings Include:
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Most unrepresented litigants were unrepresented because they could not afford legal representation. A significant minority of unrepresented litigants did not want to be represented by a lawyer, and a further significant minority had not applied for legal aid because they were advised that they were ineligible.
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Unrepresented litigants are more likely to have limited formal education, limited income and assets and to have no paid employment.
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The needs of unrepresented litigants vary, but include information, support and advice.
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Courts are affected by unrepresented litigants with judicial officers and registry staff reporting high levels of stress and frustration, difficulty maintaining an appearance of impartiality, and balancing the needs of the unrepresented litigant and the opposing party.
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Unrepresented litigants are more demanding of the time of judicial officers and registry staff than represented parties, although matters involving unrepresented litigants tend to have shorter disposition times.
Family Court of Australia, Self-represented Litigants - A Challenge: Project Report (December 2000-December 2002).
In a context where the number of partially or fully self-represented litigants before the Family Court is increasing, the Court launched the Self-represented Litigants – A Challenge project in December 2000. The goals of the project included developing a nationally consistent approach to providing services to self-represented litigants and improving court services (including practices, procedures, protocols and proformas) (p 3).
‘The Family Court recognises that self-representing and other litigants are entitled to all reasonable information and assistance from the Court, so far as is possible, to enable a person to understand what is required to present his or her case to the Court or to engage in dispute resolution processes under the Court’s auspices’ (p 5).
Family Court of Australia, Finding a Better Way: A bold departure from the traditional common law approach to the conduct of legal proceedings (April 2007).
This document contains a general overview of the Family Court’s transition from the traditional common law adversarial trial to the less adversarial trial (LAT). It contains a history of procedural reforms to the Family Court. It discusses the differences between adversarial and inquisitorial systems, and contains detailed discussion of the operation of the LAT model.
See in particular at pp 6-7, where it is noted that traditional adversarial processes such as cross-examination present particular difficulties in family disputes which are often compounded when there are family violence allegations or more subtle imbalances of power in the relationship.
Family violence generally is discussed at pp 55-56 - ‘The frequency with which issues of both child and spousal abuse are raised in Family Court proceedings makes it vital that any procedural changes provide at least the same level of protection to possible targets of violence as did the processes which they replaced.’
The LAT improves the Court’s responses to family violence allegations through
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Early consideration of the issue;
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Determination of single issues of disputed fact separately and;
•
Judicial consistency (the same judicial officer handles the case for its duration).
See further - ‘The direct dialogue between the judge and the parties enables the judge to assess the circumstances of the family without the buffer of formality and, hopefully, without the parties being intimidated or overwhelmed by the courtroom environment. There is a need for care in dealing with such cases particularly where one party may be in fear of the other. A party may well have concerns about speaking freely in the presence of the other party and the judge must be conscious of such a possibility. Arrangements can include changes to the format of the courtroom, permission to have additional companions present or special arrangements for a party being able to participate by video as is consistent with the Court’s family violence strategy. Family consultants may play a significant role in such cases, especially where they have had prior involvement with the family’ (pp 55-56).
Family Court of Australia, ‘Implications of the Australian Institute of Family Studies "Allegations of Family Violence and Child Abuse in Family law Children's Proceedings" report: Response from the Family Court of Australia’ [2007] (77) Family Matters 16.
This article emphasises the value of reliable evidence and guidelines in judicial decision making, and highlights Family Court initiatives in improving practices and outcomes, such as the Less Adversarial Trial, the Child Responsive Model, and staff training.
See in particular at p 17 – ‘The issue-based focus of the Less Adversarial Trial and the greater control exercised by the trial judge over the conduct of proceedings, including the evidence to be relied upon, enables the Family Court to bring a more structured and purposive approach to its consideration of allegations of violence and abuse’…’Although the report highlighted the lack of expert evidence in particular cases, the new Less Adversarial Trial process will allow the judge to identify issues of violence or abuse at an early stage and direct the appropriate evidence to be put before the Court.’
The Attorney-General requested the Family Law Council to consider the following matters in relation to the complex needs of families seeking to resolve their parenting disputes, including emotional, sexual and physical abuse, family violence, substance abuse, neglect and mental health issues. This report relates to the matters listed below in items 3, 4 and 5.
(a)
The possibilities for transferring proceedings between the family law and state and territory courts exercising care and protection jurisdiction within current jurisdictional frameworks (including any legal or practical obstacles to greater inter-jurisdictional co-operation).
(b)
The possible benefits of enabling the family courts to exercise the powers of the relevant state and territory courts including children’s courts, and vice versa, and any changes that would be required to implement this approach, including jurisdictional and legislative changes.
(c)
The opportunities for enhancing collaboration and information sharing within the family law system, such as between the family courts and family relationship services.
(d)
The opportunities for enhancing collaboration and information sharing between the family law system and other relevant support services such as child protection, mental health, family violence, drug and alcohol, Aboriginal and Torres Strait Islander and migrant settlement services.
(e)
Any limitations in the data currently available to inform these terms of reference.
The Family Law Council made 22 recommendations (summarised at pp12-18) in the following areas:
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Family safety services
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Early whole-of-family risk assessments
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Family lawyers and risk identifications
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Family dispute resolution practitioners and risk management strategies
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Judicial risk assessments and court-ordered programs
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A court-based integrated services model
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Case-managed integrated services in the family relationships sector
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Self-represented litigants with complex needs
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Support services for families in rural and regional areas
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Collaboration between family law and state and territory courts
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Family violence competency
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Joint professional development
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Children’s views and experiences
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Family dispute resolution and confidentiality
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State and territory courts exercising family law jurisdiction
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Aboriginal and Torres Strait Islander families
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Culturally and linguistically diverse families
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Court support workers
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Self-represented litigants and misuse of process
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Crossover cases
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Consent parenting orders
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Legislative reform.
Family Law Council, ‘Litigants in Person: A Report to the Attorney-General’ (August 2000).
This commissioned report extensively considers the issue of litigants in person in the family law context. The report was written in the broader context of the number of self-represented litigants increasing. It contains discussion of the reasons for the increase in unrepresented litigants as well as general characteristics of unrepresented litigants.
See firstly at p 9, where the report notes various concerns that in family law matters involving allegations of family violence, women were suffering a continuing form of abuse through their unrepresented former partners cross-examining them and filing endless interim applications. Note, at p 17, the report notes – ‘adequate presentation of a case includes testing the opponent’s case by cross-examination and other measures’. At p 25 – ‘In many instances a litigant may be intransigent or genuinely disgruntled and not necessarily vexatious. The judge has authority to control proceedings if the unrepresented litigant uses cross examination of the former spouse as an opportunity for harassment. However, judges have to balance concerns about harassment with the unrepresented litigant’s right to put evidence to the court, and they generally attempt to avoid any perceptions of bias’.
Family Law Council, ‘In Response to the first two terms of reference on Families with Complex Needs and the Intersection of the Family Law and Child Protection Systems’ (Interim Report to the Attorney-General, June 2015).
The Attorney-General requested the Family Law Council to consider the following matters in relation to the complex needs of families seeking to resolve their parenting disputes, including emotional, sexual and physical abuse, family violence, substance abuse, neglect and mental health issues. This report relates to the first two matters. The remaining matters will be dealt with in a report due June 2016.
(a)
The possibilities for transferring proceedings between the family law and state and territory courts exercising care and protection jurisdiction within current jurisdictional frameworks (including any legal or practical obstacles to greater inter-jurisdictional co-operation).
(b)
The possible benefits of enabling the family courts to exercise the powers of the relevant state and territory courts including children’s courts, and vice versa, and any changes that would be required to implement this approach, including jurisdictional and legislative changes.
(c)
The opportunities for enhancing collaboration and information sharing within the family law system, such as between the family courts and family relationship services.
(d)
The opportunities for enhancing collaboration and information sharing between the family law system and other relevant support services such as child protection, mental health, family violence, drug and alcohol, Aboriginal and Torres Strait Islander and migrant settlement services.
(e)
Any limitations in the data currently available to inform these terms of reference.
This report comprehensively summarises the legislative provisions governing the resolution of parenting disputes under the Family Law Act, and the intersection with legal systems governing family violence and child protection. Some important observations:
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Fragmented legal systems – families most likely to be involved with more than one of these jurisdictions are those with support needs associated with DFV and at a time of high risk and vulnerability (child protection/children’s court; family courts; state/territory DFV courts)
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Reluctance by state/territory magistrates to use s68R FLA to vary Family Court orders when making DFV orders in order to resolve inconsistencies between DFV orders and parenting orders; can be done on its own motion without the consent of the parties; and sometimes magistrates assume that the parenting order is sufficient to protect child without needing to include the child on the DFV order (concerns about inadequate time limits in s68T on variation/suspension of parenting order where done in interim proceedings)
•
The Australian and New South Wales Law Reform Commissions examined similar concerns about the use of s 68R by state and territory magistrates and the application of s 68T in their 2010 Family Violence – A National Legal Response report. They concluded that the underuse of s 68R at that time was attributable to a range of factors, including:
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a lack of awareness or understanding of s 68R among judicial officers, lawyers police and others involved in family violence protection order proceedings;
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a view taken by some magistrates that issues in relation to parenting orders should be a matter for the family courts;
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judicial officers lacking adequate information or evidence necessary to amend the parenting orders; and
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parties to proceedings not having access to appropriate legal advice.
Faulks, John, ‘Justice and the protection of children’ in Hayes, Alan, and Daryl Higgins (eds), Families, Policies and the Law: Selected Essays on Contemporary Issues for Australia (Australian Institute of Family Studies, 2014).
This chapter considers how the Federal Circuit and Family Court of Australia deals with matters involving children where there are allegations of abuse. It identifies that the balancing of the interests of the children and the parents, and frequently of other people associated with the children, is at the centre of what is just in the family law system. This issue is examined here, together with the differences in the roles of judges and experts in child development and abuse, and child psychology and psychiatry, and how each has a part to play in the system of justice. Also of concern is how the voices of children are being heard in the system. Evidence issues are discussed in detail.
Fehlberg, Belinda and Christine Millward, ‘Family violence and financial outcomes after parental separation’ in Hayes, Alan, and Daryl Higgins (eds), Families, Policies and the Law: Selected Essays on Contemporary Issues for Australia (Australian Institute of Family Studies, 2014).
This article provides and analysis of interviews conducted with 60 separated parents as part of a wider study on links between post-separation parenting and financial settlements, following major family law and process amendments in 2006.
The authors note that their interviews suggested that disclosure of family violence was discouraged in a context where there was pressure to support the abusive partner’s involvement and agree to shared time’ (p 239). The authors conclude that ‘family violence often influenced parenting arrangements and thus indirectly influenced financial settlements. Family violence often affected mothers’ child support receipt, including in CSA Collect/Child Support Collect cases. Mothers who described family violence that affected property settlements also commonly described problems obtaining child support from their ex-partner. Family violence that diminished or ceased after separation could still have a continuing influence, discouraging pursuit of legal remedies by those exposed. (at 24)
Fogarty, John, ‘Family Court of Australia: into a brave new world’ (2009) 20(3) Australian Family Lawyer 2-24.
In this article, the author critiques the rationale and operation of the ‘less adversarial trial’ (LAT). The ‘radical’ nature of the changes in particular are criticised. The author advocates instead for carefully explained, incremental reform ‘with, in particular, strong control over the early identification of the issues and the evidence’ (p 10).
Freeman, Marilyn and Nicola Taylor, ‘Domestic violence and child participation: contemporary challenges for the 1980 Hague Child Abduction Convention’ (2020) 42(2) Journal of Social Welfare and Family Law 154, (UK) doi: 10.1080/09649069.2020.1751938
This article addresses two contemporary challenges for the 1980 Hague Child Abduction Convention: (i) domestic violence and (ii) child participation. The published literature on these topics, including the children’s objections exception, is explored, as are the ways in which these challenges are addressed within some of the Contracting States to the Convention and through the Guide to Good Practice on Article 13(1)(b). Other current international initiatives are discussed, including the development of a child-friendly version of the Convention through The International Association of Child Law Researchers, as well as certain Contracting States (ie Switzerland and japan) including provisions specific to domestic violence in their enabling legislation.
The authors note that domestic violence and its treatment under the Convention have become critical issues in recent years, as the profile of abductors has shifted from non-custodial fathers to primary and joint primary carer mothers. Many of these women abduct to escape family violence or abuse. The article summarises existing literature at p 155 that the tension between discouraging child abduction and protecting victims of domestic violence manifests in the ‘unjust treatment of domestic-violence victims under the Hague Convention’ (Quillen 2014).
Rob George & April Gallwe, ‘How do parents experience relocation disputes in the family courts?’ (2016) 38(4) Journal of Social Welfare and Family Law 394.
Abstract: This article reports the findings of an empirical study of parents who were involved in relocation disputes in England, expressing their views on the experience of being involved in such a case. The authors consider the origins of the disputes and parents’ perceptions of how their cases were resolved, as well as some initial discussion of the aftermath of the cases as seen in the first few months.
The authors also note that relocation cases are known to be amongst the most difficult decisions for family court judges. See in particular p 405, where two mothers who had been subjected to violence and abuse by the relevant fathers described having their relocation request denied. In both cases, the court reinforced contact time between the father and children. This included one case where, although the father had a protection order made against him after stalking the mother, the court refused the relocation application and approved significant overnight contact each week with the father. The mother reported that this outcome felt as if they had “[put] our abuser right back in control”.
Harrison, Margaret, Finding a Better Way: A bold departure from the traditional common law approach to the conduct of legal proceedings (April 2007).
This document contains a general overview of the Family Court’s transition from the traditional common law adversarial trial to the less adversarial trial (LAT). It contains a history of procedural reforms to the Family Court. It discusses the differences between adversarial and inquisitorial systems, and contains detailed discussion of the operation of the LAT model.
See in particular at pp 6-7, where it is noted that traditional adversarial processes such as cross-examination present particular difficulties in family disputes which are often compounded when there are family violence allegations or more subtle imbalances of power in the relationship.
Higgins, Daryl and Rae Kaspiew, ‘Child protection and family law… Joining the dots’ (NCPC Issues No. 34, Australian Institute of Family Studies, 2011).
This paper looks at the specific issues facing those responsible for ensuring the safety and wellbeing of children in the context of parental separation, and the two separate legal systems: family law and child protection. Of most relevance here is the discussion from p8 which considers the family law system specifically. In particular, the discussion on p 12 considers the application of the ‘unacceptable risk test’ in the context of allegations of child abuse and child neglect in the family courts. The paper also contains summaries of cases which serve to illustrate the interaction between the family law and child protection systems.
Horsfall, Briony and Rae Kaspiew, ‘Relocation in separated and non-separated families: Equivocal evidence from the social science literature’ (2010) 24 AJFL 34.
Abstract: The article examines social science evidence relevant to the issue of relocation. It aims to identify and analyse the literature on the impact of relocation on children, young people and adults in separated and not separated families. The article concludes that relevant research is diverse and contested across psychological and social variables. Emergent themes from surveys of international studies and Australian family law court decisions include that socio-economic difficulties often underlie frequent relocation and significant negative outcomes, and that domestic violence is a potential issue in relocation disputes.
See in particular Part 3 on ‘Domestic violence, post-separation parenting and relocation’. The article outlines United States based research by Bowermaster (1998) on relocation and family violence, which suggests that aspects of relocation disputes may be linked to “the greater likelihood of litigation in high conflict couples and the controlling tendencies of abusive husbands seeking to restrict women’s movements” (p 49). The authors also note that Australian legal literature recognises the potential for abusive partners to engage in vexatious litigation as a means to exert control, which raises the possibility of children being exposed to the harms inflicted by family violence and for “relocation to be intended, in part, to protect a parent and children from further exposure” (p 50).
The article concludes that research investigating relocation in the particular context of parental separation is scarce, with limited social science literature being a barrier to accurately informing practice, policy and decision-making in the Australian context of relocation disputes.
Humphreys, Cathy and Monica Campo, Fathers who use violence: Options for safe practice where there is ongoing contact with children (CFCA Paper No. 43 – June 2017, Australian Institute of Family Studies).
The following summarises the key aspects of this paper:
Background
This paper responds to a challenge that has continued to frustrate workers attempting to intervene to support women and children living with DFV – that the DFV intervention system (in the specialist women’s DFV sector and statutory child protection) is structured around women and their children separating from men who use violence. However, many women and children may not be in a position to separate from their abusive and violent partners, and some women and children’s wellbeing and safety may not be enhanced by separation.
Inquiry
The paper explored these questions by conducting a review of exisitng literature:
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What is the practice or evidence base for working with families where the perpetrator remains in the home?
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Are there safe ways to work with women and children living with a perpetrator of DFV, or for women and children who still have significant contact with a perpetrator post-separation?
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In particular, whether there are strategies for working with fathers who use violence, that engage and address the issues for children, women and men who are continuing to live with DFV.
Observations
This review demonstrates that there is a paucity of evidence for effective approaches for responding to DFV in families where the perpetrator remains in the home or in regular contact with women and children. There are, however, a number of practices developing in these areas: nurse home visits; restorative justice approaches; couple counselling; statutory child protection investigations; and interventions with vulnerable families/whole of family approaches. All urge caution and all recommend a priority on training workers, and only ever bringing men and women together under certain circumstances and with strict caveats. This is necessary if work is to be effective and not inadvertently escalate danger and/or collude with the power and controlling tactics of the perpetrator of violence.
Conclusions
There is some experimentation with interventions in these complex family situations, and some early signs of success. The challenges of working with the diverse nature of fathers who use violence are significant. Nevertheless, this may prove to be an important practice development for future DFV intervention.
Humphreys, Cathy and Meredith Kiraly, ‘Developmentally sensitive parental contact for infants when families are separated’ [2010] (85) Family Matters 49.
This paper uses data from an initial research study which explored issues with infants where the children’s court ordered high-frequency contact (4-7 days per week) between infants and their parents while the infant was living with foster or kinship carers. The infants originally came into care due to significant issues in relation to child abuse and neglect. The applicable issues for infants taken into out-of-home care are different from situations where infants’ parents have separated. However, family law proceedings relating to separated parent of infants contain similar dilemmas in relation to contact orders (p 49).
Importantly, ‘experiencing violence and abuse is also dangerous territory for infants. Babies who are “incubated in terror” show attachment disruption and poor neurological development, as the chemicals released in a pervasive environment of fear are inimical to healthy brain development. Protection from violence and abuse is pivotal to the infant’s healthy development and safety, particularly given their physical fragility. This issue cuts across all jurisdictions’…’Adversarial processes may not be optimal to finding the way through to the best interests of babies, particularly when some flexibility may be needed. This is true of both the Children’s Court and family law jurisdictions. However, by definition, violence and abuse tramples on the rights of the most vulnerable (in this case, infants) and they may in the end need the protection of the court in order to safeguard their interests.’ (p 58)
Jaffe, Peter G., Janet R. Johnston, Claire V. Crooks, Nicholas Bala, ‘Custody disputes involving allegations of Domestic violence: toward a differentiated approach to parenting plans’ (2008) 46(3) Family Court Review 500.
Premised on the understanding that domestic violence is a broad concept that encompasses a wide range of behaviors from isolated events to a pattern of emotional, physical, and sexual abuse that controls the victim, this article addresses the need for a differentiated approach to developing parenting plans after separation when domestic violence is alleged. A method of assessing risk by screening for the potency, pattern, and primary perpetrator of the violence is proposed as a foundation for generating hypotheses about the type of and potential for future violence as well as parental functioning. This kind of differential screening for risk in cases where domestic violence is alleged provides preliminary guidance in identifying parenting arrangements that are appropriate for the specific child and family and, if confirmed by a more in-depth assessment, may be the basis for a long-term plan.
Regarding the credibility of allegations of child maltreatment, domestic violence and parental abuse of drugs and alcohol, the authors (at pp506-509) write there is virtually no research on the extent to which spousal abuse allegations are clearly false and maliciously fabricated, but this issue is becoming an increasing concern for the justice system …it is critical to emphasize that the making of false allegations of spousal abuse is much less common than the problem of genuine victims who fail to report abuse, and the widespread false denials and minimization of abuse by perpetrators (earlier research sources cited in support).
James, Kerrie, ‘Domestic Violence Within Refugee Families: Intersecting Patriarchal Culture and the Refugee Experience’ (2010) 31 The Australian and New Zealand Journal of Family Therapy 275.
This article examines the stages of the refugee journey and the intersections of domestic violence with culture, trauma, resettlement and masculinity. Arguing that therapists must challenge aspects of culture that promote violations of women’s human rights while understanding the unique situation of refugee families, the article concludes by identifying principles for therapeutic and community based interventions. See in particular at 276 where the author notes ‘The popular view of culture is essentialist; that is, a view of culture as fixed and immutable. Yet ‘culture’ is not a bounded entity experienced in the same way by all people within it. Culture is diverse, fluid and contested, intersecting with oppression and power. Within cultures there is often strong opposition to harsh and unjust practices and to people using religion or tradition to justify women’s oppression and exploitation.’
James-Hanman, D & Holt, S. Post-Separation Contact and Domestic Violence: our 7-Point Plan for Safe[r] Contact for Children (2021) 36 Journal of Family violence 991-1001 doi: 10.1007/s10896-021-00256-7
This commentary poses some difficult questions, challenging a conversation about both the risks and benefits of contact in the context of a history of domestic violence and abuse. The authors outline a seven-point plan, based on the evidence, that they argue could make a significant difference to safe(r) post-separation contact for children. The seven points are discussed in the paper but include:
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The emphasis must be on safe and meaningful contact
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Be aware that domestic violence and abuse is a specific and deliberate attack on the mother-child bond and interventions need to therefore repair this, not damage it further
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Question parental knowledge of and genuine interest in their children
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Recognise that children are active agents in their lives: reports should not be written about them without their input; decisions about contact should be informed by children’s voices
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Improved processes in the family courts
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Understand that past physical assaults are not a good indicator of future risk
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Making evidence informed decisions
Johnston, JR and Sullivan, MJ, ‘Parental alienation: in search of common ground for a more differentiated theory’ (2020) 58(2) Family Court Review 270-292.
Abstract: The concept of parental alienation (PA) has expanded in popular usage at the same time that it remains mired in controversy about its scientific integrity and its use as a legal strategy in response to an increasing range of issues in family court. In this paper we describe how competing advocacy movements (for mothers, fathers and children) in the family justice field have, over time, helped shape the shifting definitions and widening focal concerns of PA - from children who make false allegations of abuse, to those who resist or refuse contact with a parent, to parent relocation, and to the emotional abuse wrecked upon children who are victims of a manipulative parent….
‘… it is not a simple task to show that the child’s beliefs, perceptions and behavior are unwarranted, that no adequate reason or legitimate rationale exists for the child’s negative stance. The problem is that this is a “residual” or default definition and requires the PA proponent to undertake extensive hypothesis testing to prove a series of non-events. In practice, this often involves showing that abuse and/or deficit parenting on the part of the target parent did not occur. It should also involve showing other “reasonable” explanations for the child’s negative stance do not exist- like the developmental stage of child; prolonged absence of target parent; normal adjustment difficulties with divorce transition and step-family formation; untenable loyalty conflict in response to parental conflict; and sib-ling influences’ at pp276-277.
‘The worry is that PA seems to be becoming an increasingly influential “all-purpose” or generic legal strategy in family litigation. Its uncritical admission in expert testimony in court can potentially bolster petitions for substantial changes in custody and orders to participate in unwanted treatments without ensuring due investigation into the multiple factors that contribute to the severity, longevity, etiology, prognosis, nature and effects of children’s resistance or refusal of contact with a parent. PA may also be used to rebut relocation petitions and to counter a wide range of allegations of family violence and abuse. Unquestionably, some children need to be protected from harmful PA behaviors and family court may be the only recourse. If so, critical care with respect to the admission and usage of PA in court proceedings is needed to avoid misleading, simplistic and erroneous testimony. Without responsible stewardship governing the use of PA constructs, there is the potential for them to contribute to unjust, harmful and litigious outcomes’ at 286.
Joint Select Committee, Second interim report: Improvements in family law proceedings, (2021: Commonwealth of Australia).
[4.84] As highlighted in the first interim report, the committee heard a diverse range of views on the extent to which a parent can be alienated from their children by another parent or family member. The committee acknowledges that parental alienation syndrome is not a recognised psychiatric disorder within the scientific community.
[4.85] The committee has heard evidence of a number of instances where a parent has denied the other parent access to their children, for no apparent reason other than spite or to achieve greater financial outcomes. In contrast, the committee has also heard that there can be a perception that parental alienation is occurring when there are actually other factors in play, such as family violence. The committee were also told by the Australian Institute of Family Studies that parental alienation was not something that was apparent in their research: … I would say that it's not an issue that's emerged in the context of our very extensive research in the family law and family violence space.
Committee view
[4.87] The committee acknowledges that there are instances where one parent will deny access to and seek to turn a child against the other parent after the relationship breaks down. In many cases, there will be a substantive reason for this behaviour, though that may not always be the case. The committee considers that better education around family dynamics and family violence for professionals in the family court system will assist the court to identify cases where parental alienation is occurring or where a parent is legitimately seeking to protect their child from harm. The committee has recommended that family law professionals undertake training in a number of areas, including family violence, complex trauma, family systems and the dynamics of parental alienation at Recommendation 15.
This report sets out the findings of one part of a four-part research program that examines compliance with and enforcement of family law parenting orders. These findings are based on two elements: the views of 343 professionals who work with separated parents who completed an online survey, and those of 11 judicial officers who exercise family law jurisdiction and participated in one-on-one interviews. See page 11-12 for key findings.
The findings in this report demonstrate that non-compliance arises from a complex range of issues, with five overlapping themes emerging as particularly significant: family violence and safety concerns, child-related issues, circumstances where parents’ behaviour is seen as particularly difficult (including situations where systems abuse may be occurring), orders that are seen as unworkable for technical or substantive reasons, and the existence of a contravention regime that is widely regarded as ineffective.
In relation to responding to non-compliance: The financial cost associated with legal proceedings was the most commonly identified obstacle to taking action in relation to compliance, with 96 per cent of the sample agreeing this discourages clients from taking action. Similarly, reluctance to re-engage with a court process and the level of complexity associated with legal proceedings were seen as obstacles by 93 per cent and 88 per cent of participants respectively. Fear of the other party was nominated as an obstacle by 80 per cent of the sample.
A majority of the professionals involved in the survey and interviews considered the system for responding to contraventions was ineffective, with 56 per cent disagreeing with the proposition that the regime is effective in discouraging non-compliance with parenting orders and only 14 per cent agreeing.
Kaspiew, Rae, et al, Compliance with and enforcement of family law parenting orders: Views of professionals and judicial officers (ANROWS, 2022).
Abstract: This report presents findings from a research study which examines compliance with and the enforcement of parenting orders. The study is based on a survey of 343 professionals and 11 judicial officers from Australian Family Law courts. The relevant findings indicate that the drivers of non-compliance with parenting orders are complex. Systemic issues contribute, including shortcomings in the responses to family violence, safety concerns and limitations on the participation of children and young people.
The article raises two main issues relating to the enforcement regime. Firstly, there is potential for punitive responses to contraventions to disincentivise parents from seeking safer parenting orders. Secondly, there is potential for enforcement litigation to become part of an ongoing family violence dynamic, marked by a pattern of coercive control. From this perspective, non-compliance or legal action in relation to contravention may play a factor in ongoing abuse. In response to enquiries about the dynamics of families alleging contraventions, 66% of surveyed professionals reported that ongoing parental conflict applied to at least three quarters of relevant clients, followed by 46% reporting family violence and 22% reporting other safety concerns. A high percentage of professionals with family violence training nominated other reasons for parental non-compliance, including that it was no longer safe for the child or contravening party to comply with an order. Almost one fifth of surveyed professionals referred to circumstances relating to family violence and safety concerns and “justifiable non-compliance” in these circumstances (p 49).
Kaspiew, R., Carson, R., Rhoades, H., Qu, L., De Maio, J., Horsfall, B., & Stevens, E. (2022). Compliance with and enforcement of family law parenting orders: Views of professionals and judicial officers (Research report, 01/2022). ANROWS.
This report sets out the findings of one part of a four-part research program that examines compliance with and enforcement of family law parenting orders. These findings are based on two elements: the views of 343 professionals who work with separated parents who completed an online survey, and those of 11 judicial officers who exercise family law jurisdiction and participated in one-on-one interviews. The other three parts of the research program are based on data collection from family law court files involving contravention applications, an online survey of parents and carers with family law parenting orders, and an analysis of the approaches applied to contravention in three international jurisdictions. (p11)
Systemic factors include shortcomings in the identification, assessment and management of risk. (p13)
When working with parents for the development of parenting orders, it is critical that practitioners ensure that safety and risk are adequately assessed and considered in the parenting arrangements. (p14)
This evidence demonstrates that the parents who obtain family law parenting orders are a particularly complex group, with concentrated levels of risk indicators. In light of the small proportion of parenting orders that involve contravention matters…, it is important to emphasise that the contravention regime is applied to a small subset of a particularly complex group of families. (p17)
Kaspiew, R., Horsfall, B., Qu, L., Nicholson, J. M., Humphreys, C., Diemer, K., … Dunstan, J. Domestic and family violence and parenting: Mixed method insights into impact and support needs(ANROWS, 2017).
The Domestic and Family Violence and Parenting Research program examined the impact of domestic and family violence (DFV) on parenting capacity and parent–child relationships in Australia. It focused on three main issues:
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parental conflict in families and impacts on the emotional health and parenting behaviours of mothers and fathers and child functioning;
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how DFV experienced before separation, after separation, or both affects parents’ emotional health and parent–child relationships; and
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mothers’ experiences of engagement with services in the domestic and family violence, child protection, and family law systems in the context of DFV.
A mixed method approach involved: literature review; analysis of the Longitudinal Study of Australian Children; analysis of two (Australian Institute of Family Studies) datasets of over 16,000 separated parents; qualitative in-depth interviews with 50 women who had experienced DFV and engaged with services in the DFV sector, the child protection system, or the family law system.
The Key findings and future directions research summary related to this report identifies specific implications for practitioners engaging with mothers, fathers, and children against a background of DFV:
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Women who engage with services against a background of DFV have a number of complex material and psycho-social needs.
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If women are not already engaged with a specialist DFV service, then such a referral is usually necessary.
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It is likely that women and their children are experiencing ongoing abuse unless contact with the perpetrator has ceased and other safety measures to prevent abuse are available (e.g. being legally permitted to live at an undisclosed address to prevent stalking).
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Women may need assistance and referral in relation to financial and housing needs, including being informed about the availability of Financial Wellbeing and Capability services and Financial Counselling.
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Women and their children may be experiencing physical and emotional consequences from DFV and abuse and may need long-term therapeutic assistance.
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Mothers may need referrals to programs and services that will support the restoration of parenting capacity from a perspective of understanding the dynamics of DFV, including programs that offer services to mothers and children together. Children may also need assistance separately.
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Where relationships between fathers and children are being maintained, fathers may need referral to services in relation to parenting. Where this is occurring, the wellbeing and safety of children need to be monitored.
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Service providers should be alert to the fact that their services and other types of services and agencies may be used in a pattern of systems abuse. Staff, including legal professionals, should be trained to recognise this and provide appropriate advice and referrals wherethis is occurring.
Kaspiew R. et al, Domestic and family violence and parenting: Mixed method insights into impact and support needs: Key findings and future directions Compass: Research to Policy and Practice, Issue 4 (June 2017).
“ANROWS Compass (Research to policy and practice papers) are concise papers that summarise key findings of research on violence against women and their children, including research produced under ANROWS’s research program, and provide advice on the implications for policy and practice.
This report addresses work covered in ANROWS research project 1.8 “Domestic and family violence and parenting: Mixed method insights into impact and support needs”. Please consult the ANROWS website for more information on this project. In addition to this paper, ANROWS Landscapes and ANROWS Horizons papers are available as part of this project.” P. i
See p. 9 for discussion of “Specific implications for practitioners engaging with mothers, fathers, and children against a background of DFV”
Kaspiew, Ray, et al, ‘Evaluation of the 2012 Family Violence Amendments’ (Synthesis Report, Australian Institute of Family Studies, 2015).
This report sets out the overall findings of the Evaluation of the 2012 Family Violence Amendments to the Family Law Act 1975 (Cth), which substantively came into effect on 7 June 2012. The report is based on data from 12,198 parents (pre-reform: n = 6,119, post-reform: n = 6,079) (ESPS), 653 family law system professionals (RFV), 1,892 family law court files (pre-reform: n = 895, post-reform: n = 997) and other data. See especially [7.3.3] (p68-70) noting a range of studies and analyses highlighting the potential for legal systems and processes to be used as a means of perpetuating harassment, including through litigation over parenting arrangements and other separation-related matters (at p69).
Kaspiew, Rae, et al, ‘Evaluation of the 2012 Family Violence Amendments’ (Synthesis Report, Australian Institute of Family Studies, 2015).
Building on findings of the Survey of Recently Separated Parents 2012, the Longitudinal Study of Separated Families, and the 2009 AIFS Evaluation of the 2006 Family Law Reforms, this report examines the impacts of changes to the Family Law Act 1975 (Cth) in the area of family violence and has three parts:
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Responding to Family Violence - a survey of family law practices and experiences which primarily involved online surveys of practices and perspectives of family law professionals (n=653)
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the Experiences of Separated Parents Study (ESPS), which comprised two cross-sectional quantitative surveys - the Survey of Recently Separated Parents [SRSP] 2012 (n= 6,119) and the Survey of Recently Separated Parents 2014 (n=6,079) providing pre-reform and post-reform data on parents’ experiences of separation and the family law system; and
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Court Outcomes Project involving:
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Court Files Study: an examination of quantitative data from 1,892 family law court files providing insight into patterns in orders made by judicial determination and consent made in the Family Court of Australia, the Federal Circuit Court of Australia, and the Family Court of Western Australia, including in relation to parental responsibility and parenting time (pre-reform: n=895; post reform n=997);
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an examination of patterns in courts filings based on administrative data from the three family law courts and
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an analysis of published judgments applying to the 2012 family violence amendments.
One of the ‘Key messages’ from the report is that parents who use family law systems tend to be those affected by complex issues including family violence, mental ill-health, substance abuse and safety concerns for themselves and/or their children. This is discussed in detail in chapter 2. In particular, it was found that each cohort of separated parents studied had similar patterns of family violence (p 10). Around two-thirds of separated parents indicated that they had a history of emotional abuse or physical violence prior to or during separation and this continued for a slightly lower proportion after separation (p 10). It noted the ‘prevalence of physical violence diminished after separation, as did the prevalence of emotional abuse, though to a much less significant extent’ (p 10). The exposure of children to family violence for each cohort of separated parents is discussed at p 14. Chapter 4 sets out the evaluation findings on whether the 2012 family violence amendments had supported increased disclosure of family violence and child abuse concerns to family law system professionals, the screening and assessment practices and responses to disclosures of family violence and/or child safety concerns.
Kaspiew, Rae, et al, ‘Experiences of Separated Parents Study’ (Evaluation of 2012 Family Violence Amendments)’ (Report, Australian Institute of Family Studies, 2015).
This report sets out the findings of a core element of the Evaluation the 2012 Family Violence Amendments project—the Experiences of Separated Parents Study (ESPS). This element is based on a comparison of data from two cross-sectional samples of the Survey of Recently Separated Parents (SRSP): the 6,119 parents surveyed in the SRSP 2012, who had separated between 1 July 2010 and 31 December 2011; and the 6,079 parents surveyed in the SRSP 2014, who had separated between 1 July 2012 and 31 December 2013. The family violence amendments introduced by the Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 came substantially into effect on 7 June 2012, meaning the SRSP 2012 survey represents parents’ pre-reform experiences and the SRSP 2014 represents parents’ their post-reform experiences.
Together with the Longitudinal Study of Separated Families (LSSF) Wave 1 data, these samples of separated parents reported similar levels of family violence, with around 1 in 5 parents indicating they suffered physical hurt by their former partner and nearly 2 in 5 reporting emotional abuse alone (p 14). See generally chapter 3 – ‘Family Violence and Safety Concerns’. Most parents in both cohorts reported at least one type of emotional abuse before/during or since separation (p 58). Further, ‘overall, mothers reported experiencing emotional abuse in greater proportions than fathers both before/during separation and since separation’ (p 58). The most commonly reported form of emotional abuse (see p24) was ‘—insults with the intent to shame, belittle or humiliate’ (p 58). A similar proportion of parents in both cohorts reported that their children saw or heard family violence prior to or during separation (p 60). However, the proportion of parents reporting that their children witnessed family violence in the period since separation decreased in the second cohort.
Kaspiew, Rae, et al, ‘Responding to Family Violence: A Survey of Family Law Practices and Experiences’ (Report, Australian Institute of Family Studies, October 2015).
This report presents the findings of Responding to Family Violence: A Survey of Family Law Practices and Experiences (Survey of Practices). This report draws on surveys and interviews with professionals (n653) (judicial officers and registrars, lawyers and non-legal family law professionals) working across the family law system and telephone interviews with parents (n2,473) who used family law system services in the period of approximately 12 months preceding August 2014.
It concludes that ‘overall, the general patterns in findings suggest a positive response to the 2012 family violence reforms, with practitioner responses indicating that protection from harm is given greater weight now than it was previously, and that advice-giving practices have shifted in a direction consistent with the intent of the reforms to better identify families where this is an issue. At the same time, the responses do not suggest that any less weight is placed on maintaining relationships with parents and children after separation where this is appropriate’ (p 13).
Practitioners’ views about striking the right balance between protecting a child from harm and maintaining a meaningful relationship with both parents (in the context of the 2012 reforms and the ‘tie-breaker’ provision (s 60CC(2A)) of the Family Law Act 1975 (Cth)) are discussed from p 14. Many practitioners were positive about the effect of s 60CC(2A) in re-prioritising family violence and protecting children from harm which leads to better outcomes for children.
Kaspiew, Rae, et al, ‘Court Outcomes Project’ (Report, Australian Institute of Family Studies, October 2015).
The 2012 amendments to the Family Law Act 1975 (Cth) ‘were intended to support increased disclosure of concerns about family violence and child abuse, and to support changed approaches to making parenting arrangements where these issues are pertinent to ensuring safer parenting arrangements for children.
The Court Outcomes Project examined the effects of these 2012 reforms on court filings, patterns in court-based parenting matters and the judicial interpretation of key legislative provisions introduced by the amendments’ (p vii).
The report contains numerous statistical comparisons of the situation pre- and post-reform. It identified that allegations of family violence or child abuse have been raised more frequently since the 2012 reforms. This increase in disclosure of family violence and child abuse was a key intent of the reforms. The presumption of equal shared parental responsibility is not applicable where concerns about family violence or child abuse exist (p xii). Therefore, a decrease in the number of orders for equal shared parental responsibility in the context of family violence or child abuse is consistent with the aim of the 2012 reforms.
A detailed overview of the prevalence of family violence allegations in family court proceedings after the amendments is provided from p 43. 36% of cases after the 2012 amendments involved allegations of family violence, compared with 26% pre-reform. The prevalence of allegations of both physical and emotional abuse also increased after the reforms, but this was more marked for physical violence.
The proportion of allegations made against both parents also increased (p 43). Other statistical interpretations of this data, such as the prevalence of family violence allegations after the reforms according to the way the matters were resolved (p 45) are provided.
An overview of factual issues raised (particularly how factual issues changed following the reforms) is provided from p 46. It is noted that issues such as substance abuse and mental ill health are ‘not uncommon’ for parents who use family law services (p 47).
Kaspiew, Rae, et al, ‘Independent Children’s Lawyers Study’ (Final Report (2nd Edition), Australian Institute of Family Studies, June 2014).
This report has examined the role of ICLs in the family law system. The capacity of many ICLs is recognised to be excellent (p xii). Issues identified throughout the report include the need for ICLs to have greater awareness of child development issues and the overall limitations of ICLs in consulting effectively with children. Indeed, some ICLs emphasised the delineation of their role from that of a social science expert. It is important to ensure ICLs do not go beyond their expertise (pp48-49). However, it was nevertheless thought prudent for ICLs to have more training in child development issues.
Kaspiew, Rae, et al, ‘Post-separation parenting arrangements involving minimal time with one parent’ in Hayes, Alan, and Daryl Higgins (eds), Families, Policies and the Law: Selected Essays on Contemporary Issues for Australia (Australian Institute of Family Studies, 2014).
This chapter examines recent empirical evidence on post-separation parenting arrangements, with a particular focus on arrangements where children have little or no contact with one parent. It demonstrates that a range of factors is linked with circumstances in which fathers have little or no contact with children, but that contact with services and courts is supportive of maintaining, and in some circumstances, increasing fathers’ involvement with their children’ (p 224-225).
Kaspiew, Rae, et al, ‘Evaluation of a pilot of legally assisted and supported family dispute resolution in family violence cases’ (Commissioned Report, Australian Institute of Family Studies, 2012).
The Coordinated Family Dispute Resolution model was developed to provide a safe, non-adversarial, and child-sensitive means for parents to sort out their post-separation parenting disputes. The model was trialled in five sites across Australia. This report presents an evaluation of the model, examining whether the model addressed practitioner and family safety during the program, safe parenting arrangements, the best interests of children, and power imbalances between parents. The evaluation also examines challenges and advantages due to the interdisciplinary nature of the model.
Chapter 7 (p 102) discusses ‘CFDR negotiation in the shadow of family violence’. See further at p 116 – Notes: ‘…FDR is based on the notion that the process supports parents in agreeing on parenting arrangements and is a step in the direction of future self-management. In the context of family violence, this ideal is recognised to be difficult to achieve because of the power dynamics such a history creates in a relationship, at a general level, and more specifically, because of the potential ongoing effects of trauma.’
Kaspiew, Rae, Juliet Behrens and Bruce Smyth, ‘Relocation disputes in separated families prior to the 2006 reforms: An empirical study’ [2011] (86) Family Matters 72.
Abstract: This article reports on the findings of a mixed-method research project that examined relocation cases litigated prior to the 2006 reforms to the family law system. The study was based on an analysis of 190 court judgments made between 2002 and 2004 in the Family Court of Australia, and qualitative interviews with 38 parties to relocation disputes between 2002 and mid-2005. A key finding from the study is that most litigated disputes over relocation between separated partners occur in the context of fractured inter-parental relationships, being the product of conflict rather than the single source.
In particular, the article reports findings from the judgment sample that among litigated relocation disputes, 80% of relationships could be characterised as ‘high conflict or abusive’, with allegations of violence being raised in nearly 70% of cases (p 73). When asked of their reasons for relocating, 8% of litigants reported doing so to ‘escape family violence, threats or the drug scene’ (p7 4). The authors also highlighted the gendered nature of relocation disputes, with 88% of the parties who made the application being women (p 73).
See also findings from the interview sample that the majority of relationships described by parents were ‘marked by significant levels of conflict, with allegations of abuse and family violence relevant in the majority of cases’ (p 75). Of 38 participants, 24 reported significant conflict before, during and after the dispute (most of whom reported family violence and some alleged instances of child abuse). A smaller group of 4 participants were marked by the most severe levels of family violence and mental health problems, citing a ‘complete, or almost complete, diminution of contact between one parent and the children after the dispute’ (p 75).
Kaspiew, Rae et al, ‘Evaluation of the 2006 Family Law Reforms’ (Australian Institute of Family Studies, 2009).
This evaluation of the impact of the 2006 changes to the Family Law Act involved the collection of data from some 28,000 people involved or potentially involved in the family law system - including parents, grandparents, family relationship service staff, clients of family relationship services, lawyers, court professionals and judicial officers - and the analysis of administrative data and court files.
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See generally Chapter 2: ‘Characteristics of separated parents: Challenges and issues for family relationships and wellbeing’. Of particular relevance is the discussion from p 24 dealing with ‘Separated parents’ reports of experiencing family violence’. It was found that nearly two-thirds of separated mothers and just over half of separated fathers indicated that they suffered emotional abuse from their partner before or during separation. 26% of mothers and 16.8% of fathers indicated that they suffered physical abuse prior to their separation. Of this group, most respondents indicated that their children witnessed violence or abuse.
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See from p 29 which considers - ‘Co-occurrence of family violence, mental health problems and addiction issues’. It was found that parents who indicated that both mental health and addiction issues were present were most likely to report that the other parent had physically hurt them (43% of fathers and 50% of mothers). Overall, ‘experiences of family violence were reported by 85% of fathers and 92% of mothers who said that both mental health and addiction issues had been present before separation, compared with 41% of fathers and 46% of mothers who said that neither of these problems had been present. In other words, family violence seemed to be pervasive among families in which both mental health and addiction issues were thought to be present’ (p 30).
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Chapter 9: ‘Legal system professionals regularly made the point that women felt pressured to agree to outcomes in negotiations that they didn’t feel were in their children’s interests. While this was said to be happening frequently, particular concerns were expressed about the nature of the agreements reached in two different situations. The first concerned cases where there had been a history of family violence. The second situation causing concern involved matters where a lack of legal representation at all, or a perceived imbalance in the quality of the legal representation, failed to alleviate the apparent pressure caused by the imbalance in bargaining power, resulting in women agreeing to inappropriate arrangements’ (p 221).
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See Chapter 10: ‘Family violence and child abuse: Parents’ pathways and professionals’ perspectives’. This chapter is relevant in relation to its general discussion of family violence in the family law system.
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See Chapter 11, ‘Children’s wellbeing’, in particular section 11.3 (p 262) which discusses ‘Family violence, safety issues and the nature of inter-parental relationships’.
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See 14.4 which discusses the Family Court of Western Australia Model.
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Also see ‘15.1.2 Consent orders’ (from p337).
Kelly, Joan B & Johnson, Michael P, ‘Differentiation Among Types of Intimate Partner Violence: Research Update and Implications for Interventions’ (2008) 46 Family Court Review 476.
A growing body of empirical research has demonstrated that intimate partner violence is not a unitary phenomenon and that types of domestic violence can be differentiated with respect to partner dynamics, context, and consequences. The authors describe four patterns of violence: Coercive Controlling Violence, Violent Resistance, Situational Couple Violence, and Separation-Instigated Violence. The controversial matter of gender symmetry and asymmetry in intimate partner violence is discussed in terms of sampling differences and methodological limitations. Implications of differentiation among types of domestic violence include the need for improved screening measures and procedures in civil, family, and criminal court and the possibility of better decision making, appropriate sanctions, and more effective treatment programs tailored to the characteristics of different types of partner violence. The authors argue that in the family court, reliable differentiation should provide the basis for determining what safeguards are necessary and what types of parenting plans are appropriate to ensure healthy outcomes for children and parent–child relationships.
Kruk, E, ‘Parental alienation as a form of emotional child abuse: current state of knowledge and future directions for research’ (2018) 22(4) Family Science Review, 141-164.
Abstract: This article examines the current state of research on parental alienation, which reveals that alienation is far more common and debilitating for children and parents than was previously believed. In extreme cases, one can make the argument that parental alienation is a serious form of emotional child abuse. Careful scrutiny of key elements of parental alienation in the research literature consistently identifies two core elements of child abuse: parental alienation as a significant form of harm to children that is attributable to human action. As a form of individual child abuse, parental alienation calls for a child protection response. As a form of collective abuse, parental alienation warrants fundamental reform of the family law system in the direction of shared parenting as the foundation of family law….
‘…numerous studies show that alienated children exhibit severe psychosocial disturbances. These include disrupted social-emotional development, lack of trust in relationships, social anxiety, and social isolation. Such children have poor relationships with both parents. As adults, they tend to enter partnerships earlier, are more likely to divorce or dissolve their cohabiting unions, more likely to have children outside any partnership, and more likely to become alienated from their own children… Low self-sufficiency, lack of autonomy, and lingering dependence on the alienating parent are a third characteristic of alienated children. … Alienated children are more likely to play truant from school and leave school at an early age. They are less likely to attain academic and professional qualifications in adulthood. They tend to experience unemployment, have low incomes, and remain on social assistance. They often seem to drift aimlessly through life. Alienated children experience difficulties controlling their impulses, struggling with mental health, addiction, and self-harm …. They are more likely to smoke, drink alcohol, and abuse drugs, often succumb to behavioral addictions, and tend to be promiscuous, foregoing contraception and becoming teenage parents…’ at 150-151 (references removed).
Laing, Lesley, No Way to Live: Women’s Experiences of Negotiating the Family Law System in the Context of Domestic Violence (Faculty of Education and Social Work, University of Sydney, 2010).
This research reports on the experiences of 22 women who were involved in the family law system following their separation from a relationship in which they had experienced domestic violence. In particular see section titled: “‘He just wants to see his children’ – a lens for excusing men’s behaviour” (from pp47-49) that draws on a number of excerpts detailing how fathers have manipulated police to harass and intimidate mothers (e.g. calling police to her house alleging she’d threatened to kill her children; turning up late for contact).
Lee‐Maturana et al, Characteristics and experiences of targeted parents of parental alienation from their own perspective: A systematic literature review (2019) 71 Australian Journal of Psychology 83-91.
Abstract
Objective: The aims of this systematic literature review were to identify and synthesise all relevant information about targeted parents’ characteristics and experiences from their own perspective.
Results: Nine relevant articles were included after conducting inclusion criteria and quality assessment. Data were collated and analysed using guidance on the conduct of narrative synthesis in systematic reviews.
Conclusion: Targeted parents report consistent stories about the nature of the alienation tactics used by alienating parents across the included studies. Targeted parents expressed dissatisfaction with legal and mental health system services available to them. Further, despite feeling despair, frustration, and isolation, targeted parents appear to be resilient and seek out positive coping strategies. This review showed that research on targeted parents from their own perspective is sparse, and more studies are needed.
‘Targeted parents reported negative consequences of being exposed to alienating behaviour, such as dissatisfaction with the legal and mental health systems, emotional and financial implications, and psychological distress… The lack of understanding of parental alienation by those involved in the legal and mental health systems may be contributing to increased feelings of anxiety and depression in targeted parents’ at 89 (references removed).
Maloney, et al, ‘Allegations of family violence and child abuse in family law children’s proceedings: A pre-reform exploratory study’ (Research Report No. 15, Australian Institute of Family Studies, 2007).
‘The study examines (a) the prevalence and nature of allegations of family violence and child abuse in family law children's proceedings filed in 2003 in selected registries; (b) the extent to which alleging parties provided evidence in support of their allegations, and to which allegations were denied, admitted or left unanswered by the other party; and (c) the extent to which court outcomes of post-separation parenting disputes appeared to be related to the presence or absence of allegations.’
McDonald, Myfanwy and Kate Rosier, ‘Interagency Collaboration: Part A. What is it, what does it look like, when is it needed and what supports it?’ (AFRC Briefing No. 21, Australian Institute of Family Studies, 2011).
These two papers focus attention upon how interagency collaborations benefit children and families. Part A looks at what collaboration is, the benefits and risks of involving families in collaborations, when interagency collaborations are likely to be most effective and explores how they can be supported through specific models of governance. Part B investigates the evidence regarding the relationship between collaboration and improved outcomes for children and families.
McIntosh, Jennifer et al, ‘Post-Separation Parenting Arrangements and Development Outcomes for Infants and Children’ [2011] (86) Family Matters 41.
In recent years there has been much interest in the impacts on children, both positive and negative, of different patterns of parenting after separation, especially where the care of children is shared equally or substantially between both parents. This article summarises key findings from two recent Australian studies of outcomes for two potential risk groups: school-aged children living in separations characterised by high inter-parental conflict (Study 1), and infants and preschoolers in the general population of separated families (Study 2). Both studies were commissioned by the Australian Government Attorney-General's Department.
Meier, J, Dickson, S., O’Sullivan, C., & Rosen, L. (2022) The Trouble with Harman and Lorandos’ Parental Alienation Allegations in Family Court Study (2020)Journal of family, trauma, child custody & child development, 19(3-4): 295-317, doi:10.1080/26904586.2022.2036286.
In this article Meier and colleagues respond to a study by Harman and Lorandos which in turn responded to a study by Meier and colleagues.
The Harman J & Lorandos, D. study can be found here: (2021). Allegations of family violence in court: How parental alienation affects judicial outcomes. Psychology, Public Policy and Law, 27(2), 187–208 https://doi.org/10.1037/law0000301. The Meier and colleagues’ study that Harman and Lorandos critique can be found here: Meier, J., Dickson, S., Rosen, R., O’Sullivan, C., & Hayes, J. (2019). Child custody out- comes in cases involving parental alienation and abuse allegations, Final Report to National Institute of Justice.
This Meier and colleagues (2022) critique overviews this debate and points to ‘pervasive design and methodological errors’ in the Harman & Lorandos study and asserts that they ‘undermine both the appearance and assertion of rigor in their approach; these problems and the foundational differences in their dataset from [Meier et al’s] own disqualify their study from serving as any kind of credible test or disconfirmation of our study.’
Highlighting significant gaps in the research, Meier and colleagues (2022) conclude: ‘There are genuinely important questions here – most fundamentally, how often are abuse allegations true, false, or knowingly fabricated in family court? How often are parental alienation claims deployed to nullify credible risk? Neither study can directly answer these questions, but they are at the root of the divide between those who espouse the view that parental alienation and false abuse allegations are common, and those who assert that abuse allegations are rarely fabricated but alienation is widely misused to deny credible abuse. Answering these questions requires reasoned and deliberate research and consideration by objective scholars and practitioners acting in good faith.’ p20
Mercer, J and Drew, M, ‘Introduction to parental alienation concepts and practices’ In Mercer J and Drew, M. eds. Challenging Parental Alienation: New Directions for Professionals and Parents, (2021) Routledge.
Abstract: The idea of parental alienation has been used with increasing and alarming frequency in child custody decisions since its introduction in the 1990s, despite a lack of evidence showing that the basic concept applies in more than a few cases. For the system of ideas that relates a preferred parent’s actions to a child’s avoidance or rejection of the other parent, the term parental alienation belief system is used…. (US focussed resource but includes perspectives from Britain, Canada, and Australia)
‘There are several serious problems associated with the use of the parental alienation belief system in child custody work. One is the simple fact that there is no established method for discriminating between children who reject a parent for ample reason (e.g., experience of that parent as violent, physically, or emotionally abusive, or sexually predatory) and those whose rejection has been created or inappropriately influenced by the preferred parent…’ 7
‘…there are no data on incidence or prevalence of child avoidant behavior or of parent encouragement of such behavior. No information exists for determining how frequently there are false positive claims that actual encouragement of avoidant behavior has occurred, nor indeed how often there are false negative findings, the latter possibly meaning that children who have really been inappropriately persuaded are not identified and helped.’ 7
‘A second and serious parental alienation-related problem involves the recommendations of parental alienation proponents testifying in child custody conflicts. These recommendations invariably include some form of parental alienation treatment, sometimes called reunification therapy, but such treatments do not usually stand alone. Children sent for some treatments are by court order transferred to the custody of the nonpreferred parent and prohibited from contact with the preferred parent, for periods of time that may begin with 90 days but may be extended for years. Some teenagers have re-ported adverse effects of programs they attended…and there is evidence that there is danger to some who are placed with abusive parents and prevented from having contact with the preferred parent or other family members who could monitor their well-being. The burden on the preferred parent is extraordinarily heavy. The anxiety and concerns of the preferred parent for the child are likely to be great, particularly if there is a history of domestic violence.’ 7
Mercer, Jean and Drew, Margaret (eds) Challenging Parental Alienation: New Directions for Professionals and Parents, 2021, Routledge.
Book description: This book addresses the concept of parental alienation – the belief that when a child of divorced parents avoids one parent, it may be because the preferred parent has persuaded the child to do this. It argues against the unquestioning use of parental alienation concepts in child custody conflicts. Increasing use of this concept in family courts has led at times to placement of children with abusive or violent parents, damage to the lives of preferred parents, and the use of treatments that have not been shown to be safe or effective. The 13 chapters cover the history and theory of "parental alienation" principles and practices. Methodological and research issues are considered, and diagnostic and treatment methods associated with "parental alienation" beliefs as well as those recommended by research and ethical evidence are analyzed. The connections of "parental alienation" with gender and domestic violence issues are discussed as are the experiences of individuals who have experienced "parental alienation" treatments. The book argues that "parental alienation" principles and practices should be avoided by family courts, in the best interests of children in custody disputes.
Moloney, et al, ‘Understanding parenting disputes after separation’ (Research Report No. 36, Australian Institute of Family Studies, 2016).
‘This report explores the behaviour of separated parents by exploring the psychology of post-separation parental disputes and then interrogating three independent data sets to see what further insights they provide on the issues.’
See in particular the findings in Chapter 3, which considered, ‘Practitioners’ experiences of Parenting Disputes’: ‘Practitioners noted that often families who were in entrenched conflict had multiple problems, including psychiatric, substance use and violence issues. These issues contributed to disputes as they are often sources of safety concerns’ (p 36).
Moloney, Lawrie, Bruce Smyth, Ruth Weston, Nicholas Richardson, Lixia Qu and Matthew Gray, ‘Allegations of family violence and child abuse in family law children’s proceedings: A pre-reform exploratory study Research Report No. 15 — May 2007’ (Australian Institute of family Studies, 2007).
This research was commissioned by the Federal Attorney-General’s Department to provide baseline information to assist in informing the Australian Government’s Family Law Violence Strategy. The study examines (a) the prevalence and nature of allegations of family violence and child abuse in family law children’s proceedings filed in 2003 in selected registries; (b) the extent to which alleging parties provided evidence in support of their allegations, and to which allegations were denied, admitted or left unanswered by the other party; and (c) the extent to which court outcomes of post-separation parenting disputes appeared to be related to the presence or absence of allegations. The study was based on a content analysis of two random samples of court files from the Melbourne, Dandenong and Adelaide registries of the former Family Court of Australia (FCoA) and the former Federal Magistrates Court (FMC): 240 files from the general population of cases in which parenting matters were in dispute (the general litigants sample), and 60 files from judicially determined matters in which parenting was in dispute (the judicial determination sample). In summary, a total of 300 court files were analysed: 150 from the former Family Court of Australia and 150 from the former Federal Magistrates Court. It should not be assumed that this sample is representative of the divorcing population. In other words, the findings should not be generalised to this population. The research found that more than half the cases in the former FCoA and FMC in both samples contained allegations of adult family violence and/or child abuse. Note the discussion in chapter 8 which identifies that the ‘most extensive work to date on the subject …has concluded in that country (Canada) that false denials are more common that false allegations.’ Findings included that:
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Cases in the FCoA that required judicial determination were more likely than other cases to contain evidence of spousal violence that appeared to have some strong probative weight.
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Cases that seemed to contain the most severe allegations of spousal violence were especially likely to be accompanied by evidentiary material. Many of these cases required a judicial determination.
National Scientific Council on the Developing Child, ‘Excessive Stress Disrupts the Architecture of the Developing Brain’ Working Paper No 3 (2005).
This working paper from the National Scientific Council on the Developing Child defines the concept of “toxic stress”—what happens when children experience severe, prolonged adversity without adult support. It discusses how significant adversity early in life can alter a child’s capacity to learn and adapt to stressful situations, as well as how sensitive and responsive caregiving can buffer the effects of such stress.
Neilson, Linda C, ‘Parental Alienation Empirical Analysis: Child Best Interests or Parental Rights?’ (Muriel McQueen Fergusson Centre for Family Violence Research and The FREDA Centre for Research on Violence Against Women, 2018).
This article considers how ‘Canadian courts are responding to parental alienation claims’, to evaluate the validity of concerns regarding the theory (pp 2-3). Common concerns include a lack of scientific support for the theory (p 5); the potential for inappropriate application in cases of family violence, particularly to undermine safety considerations (pp 5, 31-3); implicit gender bias (p 9); the potential for parental alienation claims to deflect attention from child best interest considerations (p 18); and impacts on domestic violence evidence (p 22). The author concludes that courts continue to consider child best interest factors, but that judges often display implicit bias against mothers and domestic violence evidence in cases that endorse parental alienation theory (pp 45-6). Moreover, there is evidence of limited understanding of the impact of domestic violence on victims, and child development principles (p 46). Detailed ‘scrutiny of child best interest factors’, child-development principles, and trauma-informed practice should be adopted in place of single controversial theories and victim blaming approaches (p 48). The article includes detailed consideration of Canadian caselaw throughout.
Parkinson, Patrick, ‘The ties that bind: Separation, divorce and the indissolubility of parenthood’ in Hayes, Alan, and Daryl Higgins (eds), Families, Policies and the Law: Selected Essays on Contemporary Issues for Australia (Australian Institute of Family Studies, 2014).
This chapter considers the history and contemporary issues around reform to family law in Australia, particularly in relation to parenting orders. See especially from p 179 which discusses ‘Shared parenting and family violence’. The author notes, ‘the issue of protecting women and children from violence has not proved effective as an argument against laws that recognise the indissolubility of parenthood, nor against having any provisions in legislation that encourage the continuing involvement of non-resident parents. One reason is the lack of an evidence base for the supposed connection between laws that encourage the involvement of non-resident parents in their children’s lives, and an increased risk of violence. There is simply no evidence for a linear relationship between the time that non-resident parents spend with their children, and a greater incidence of post-separation violence towards the primary caregiver.’
The chapter concludes – ‘There is no future in arguments that say encouraging the involvement of both parents in children’s lives through legislation will expose women and children to a greater risk of violence. Successive Australian parliaments have responded to this argument not by winding back the emphasis in the law on the involvement of both parents but by enacting stronger and stronger legislative provisions that address, or purport to address, the issue of family violence… The issue of violence against women is one of great importance, but the middle ground is to be found in articulating more clearly the circumstances when parenthood ought to be dissoluble, rather than resisting the historic transformation in the law of parenting after separation. In that way, the law can avoid too simplistic a bifurcation where the only issue that might stand in the way of court orders for substantially shared care is if there is a proven history of family violence’ (p 183).
Parkinson, Patrick, ‘Violence, abuse and the limits of shared parental responsibility’ [2013] (92) Family Matters 7.
Abstract: This article argues that while supporting the maintenance of a child’s relationship with both parents is suitable for most separated parents, limitations on joint parental responsibility are also appropriate in cases where there are family violence concerns.
See especially the part on ‘Two safety priorities’ (p 14-15), which notes that a parent’s experience of coercive controlling violence may explain their resistance to regular contact between the child and the father, even if contact can be made safe through contact handovers. It may also explain the parent’s ‘desire to relocate a long way from the other parent when there is not another convincing rationale for the move other than to get away’ (p 14).
Parkinson, Patrick and Judith Cashmore, ‘When Mothers Stay: Adjusting to Loss After Relocation Disputes’ (2013) 47 (1) Family Law Quarterly 65.
This article reports on the experiences of fifteen mothers over a 4-5 year period following the conclusion of a relocation dispute where the initial application to move was unsuccessful. Eight of the surveyed mothers indicated that in hindsight, it had been better for their children to stay in close proximity to their father (all of whom said the children were “fairly” or “very” close to their father). The level of toxicity in the father-mother relationship was found to be one of four key factors affecting mothers’ adjustment to the result.
See in particular that three of the four mothers who had not adjusted to being unable to relocate reported “high levels of acrimony or hostility” with the father (p 83-84). Hostility and anger were also reported by three mothers who had adjusted to the outcome. Toxicity in these relationships had varying causes, with several cases involving allegations of verbal and emotional abuse during the relationship and controlling behaviour post-separation.
See also findings at pp 69-70 that six of the fifteen surveyed mothers reported instances of family violence. Of these, one participant reported recurring violence throughout their cohabitation, a second reported a standalone incident of physical assault, a third reported the existence of a restraining order whilst cohabiting, and the remaining three reported having restraining orders post-separation.
Parkinson, Patrick, ‘The realities of relocation: Messages from judicial decisions’ (2008) 22 Australian Journal of Family Law 35.
Abstract: This article examines relocation decisions since the law changed in July 2006 to place a greater emphasis on the importance of involving both parents in the lives of children. The analysis of these 58 relocation cases indicates that it is harder for a primary caregiver to relocate than before the 2006 amendments. The authors note that in a number of the cases where a relocation was allowed, an order was also made for sole parental responsibility. The article also notes it is harder to justify a relocation overseas than within Australia.
The caselaw analysis demonstrates the importance of lawyers and mediators helping parents to ‘reality test’ the costs and benefits of a proposed relocation, and also to give realistic advice to a parent who wants to oppose a relocation. Issues for parents wanting to relocate include the risks of residential mobility, and the costs and burden of the children’s travel. Issues for parents opposing a relocation include whether there would be a significant diminution in the quality of the relationship between the parent and child if the relocation occurred, whether there might be evidence of a history of violence, and whether it is reasonable and practicable for that parent to relocate also.
Peel, Sara and Rosalind Croucher, ‘Mind(ing) the gap: Law reform recommendations responding to child protection in a federal system’ [2011] (89) Family Matters 21.
This paper considers the ‘gap’ between the child protection system and the federal family law system. Existing provisions address these gaps to some extent; for example, by enabling family courts to obtain information from child protection agencies, and to issue subpoenas (Family Law Act 1975 (Cth), s69ZW, Family Law Rules 2004 (Cth), pt 15.3). Family courts may also request child protection agencies to intervene in the court proceedings, thus becoming a party to proceedings; and agencies may choose to intervene in cases that involve allegations of abuse. Information sharing is considered specifically from p 28.
Perry, Bruce D, ‘Applying Principles of Neurodevelopment to Clinical Work with Maltreated and Traumatized Children’, in Working with Traumatized Youth in Child Welfare, ed by Nancy Boyd Webb, Guilford Press NY (2006).
This chapter examines therapeutic work with maltreated children from a neurodevelopmental perspective. The overarching premises of this perspective are that an awareness of human brain development and functioning provides practical insights into the origins of the abnormal functioning seen following adverse developmental experiences (e.g. abuse, neglect, and trauma), and, furthermore, that an understanding of how neural systems change suggests specific therapeutic interventions (p 27). See in particular at p 40, where the author notes ‘The majority of (the) sequential and use-dependent development of the brain takes places in early childhood. Indeed, by age 4, a child’s brain is 90% adult size. The organizing brain is very malleable and responsive to the environment. This means that of all the experiences throughout the life of an individual, the organizing experiences of early childhood have the most powerful and enduring effects on brain organization and functioning. Three years of neglect can cause a lifetime of dysfunction and lost potential’.
Qu, Lixia et al, ‘Post-separation parenting, property and relationship dynamics after five years’ (Commissioned report, Australian Institute of Family Studies, December 2014).
The Longitudinal Study of Separated Families examines the experiences, circumstances, and wellbeing of separated parents and their children in Australia. It was commissioned as part of the evaluation of the 2006 Family Law reforms, and three waves of surveys have now been conducted. This current report presents findings from wave 3, conducted in 2012 with 9,028 parents five years after separation. It explores the opinions and experiences of separated parents regarding: quality of inter-parental relationships; child-focused communication between parents; safety concerns and violence and abuse; use and perceived helpfulness of family law services; pathways for developing parenting arrangements; family dispute resolution; stability and change in care-time arrangements; property division and their timing and perceived fairness; and child support arrangements and compliance. The report also asks parents about their child's wellbeing, and compares this with care-time arrangements and family dynamics.’
The findings painted a positive picture of separated families overall but there were still a minority of parents who faced significant issues such as violence and abuse and held safety concerns. ‘It has become increasingly clear that each of the mainstream professions in the family law system has a potentially constructive role to play in helping to untangle the serious predicaments in which a minority of family law clients find themselves’ (p xix).
For example, higher levels in children’s wellbeing emerged where parents indicated that there was a positive inter-parental relationship – ‘consistently low or worsened child wellbeing was more likely to be reported by parents who reported experiencing violence/abuse, holding safety concerns, or having negative inter-parental relationship in both waves compared with reports of other parents’ (p 162).
Also, where emotional abuse was experienced by a small minority of parents (in Wave 3 of the data), large proportions of these victims indicated that the abuse occurred ‘sometimes or often’, as opposed to ‘rarely or only once’ in the preceding 12 months (p 40).
‘In fact, most respondents who stated that the other parent had engaged in humiliating insults, monitored their whereabouts, or circulated of defamatory comments also indicated that these behaviours occurred sometimes or often. After about five years of separation, the monitoring of a person’s whereabouts may be particularly likely to reflect obsessive harassment, unless such monitoring has been instigated by genuine concerns about personal safety or the safety of others, including the children’ (p 40).
Qu, Lixia and Ruth Weston, ‘Parenting dynamics after separation: A follow-up study of parents who separated after the 2006 family law reforms’ (Commissioned Report, Australian Institute of Family Studies, 2010).
This report examines, ‘the pathways that separating families have taken through the family law system, and the impact the changes to the family law system have had on these families. The Longitudinal Study of Separated Families examined relationships and wellbeing in separated families in Australia. Some 10,000 separated parents with children were interviewed for the first wave in 2008, as part of the evaluation of the 2006 Family Law reforms. This report presents findings from the second wave, when the parents had been separated for two to three years’. See in particular section 4.2 – ‘Use of family dispute resolution (FDR)’. Recent use of FDR in the context of physical or emotional abuse is considered at p 49. Use of FDR was reported by around one in three fathers and one in four mothers who said that they had experienced physical or emotional abuse between survey waves and by only around 10% of parents who had not experienced either form of abuse’ (p 49).
Qu, Lixia, Family dispute resolution: Use, timing, and outcomes (2019) Australian and New Zealand Journal of Family Therapy 24-42.
After the 2006 Australian family law reforms, it became mandatory for separating or separated parents to mediate disputes over children before filing an application for the courts. The process is known as Family Dispute Resolution (FDR).
This paper examines three cohorts of parents who had separated in different periods after the reforms. It shows that parents who went to FDR were typically able to reach an agreement, but also that the use of and outcomes from FDR were closely linked to circumstances surrounding separation. And finally that parents who used FDR typically did so in the early stage of separation, with its use much less common after a separation of three or four years.
Key points:
1.
Use of FDR is quite common among separated parents and the take-up has increased. Among the two cohorts of recently separated parents (surveys conducted in 2012 and 2014), nearly four in 10 reported use of FDR within a year and half after separation, representing an increase from three in 10 for a similar 2008 survey.
2.
Separated parents who used FDR differed from those who did not, with a higher likelihood of use associated with higher socio-economic status, separation from a registered marital relationship and having children of primary or junior high school age. More importantly, FDR use was closely associated with experience of toxic issues (family violence, mental health, or substance misuse) before or during separation and poor quality of inter-parental relationship and post-separation safety concerns.
3.
Parents who used FDR were more likely to reach an agreement than to have other outcomes. The rate of reaching agreements increased over time, with close to one-half of FDR users among the more recent cohort (2014 survey) reporting this positive outcome. On the other hand, the rate of issuing a certification fell.
4.
The longitudinal data of separated parents who were interviewed at three time points after separation (1.5, 2.5, and 5.5 years) revealed that most used FDR once, which typically occurred soon after separation.
5.
The data further reveal that the longer the separation, the less likelihood parents reached an agreement through FDR.
Qu, Lixia, et al, ‘Post-separation parenting, property and relationship dynamics after five years’ (Australian Institute of Family Studies, 2014).
For the first time in the Longitudinal Study of Separated Families (LSSF), Wave 3 included a module exploring post-separation property and financial arrangements. Chapter 6 ‘Property Division’ looks at key relevant issues including the amount and nature of assets held, how they were divided after separation, and what mechanisms were used to support the finalisation of property division. Under the Family Law Act 1975 (Cth), the post-separation property division regime remains discretionary in nature. Broadly the courts have the discretion to make orders concerning property interests ‘as [they] consider appropriate’ (FLA s 79).
A range of retrospective and prospective factors may be taken into account in the exercise of this discretion. Retrospective factors include the respective contributions of each party to, for example, the acquisition and maintenance of property, the financial support of the couple or family, and the “welfare” of the couple or family in the capacity of “homemaker” or parent (FLA s 79(4)). Prospective considerations include the age and state of health of each party, future earning capacity, parenting responsibilities and entitlement to superannuation (FLA s 79(4)(e) and FLA s 75(2)). Courts need to be satisfied that any order is “just and equitable” “in all the circumstances” (FLA s 79(2) and s 90SM(3)).
At 6.5 ‘Property division ratios reported by mothers and fathers’, the report discusses factors associated with how property is divided including family violence/abuse. The authors state at p.106:
‘Fathers who reported experiencing emotional abuse and/or physical hurt before or during separation indicated that mothers received a higher share (and thus the fathers accepted a lower share) compared with fathers who had not been the recipient of violence/abuse. Similarly, mothers who reported experiencing physical hurt inflicted by the other parent received a lower proportion compared with mothers who had not been the recipient of violence/abuse. However, there was no statistically significant difference between mothers who reported experiencing emotional abuse alone and mothers who reported no violence/abuse.
Mothers who experienced family violence/abuse before or during separation were more likely to be the one who left the family house. For example, one-half of the mothers who reported experiencing physical hurt before separation indicated that she left the house at separation, compared to one-third of the mothers who reported no violence/abuse leaving the house. Excluding the variable of who left the house at separation from the model for mothers, the effect of physical hurt was statistically significant. It is likely that parents who experienced violence/abuse may have accepted the less satisfactory settlements due to fears of reprisal or simply wanting to get out of the negotiation process as quickly as possible due to their experiences’.
The report concludes, in relation to family/abuse abuse, ‘A reported history of emotional abuse or physical hurt is associated with a lower share of property division and a greater likelihood of experiencing a sense of unfairness (p.115).
Queensland, Special Taskforce on Domestic and Family Violence in Queensland, Not Now, Not Ever: Putting an End to Domestic and Family Violence in Queensland (2015).
Submissions to taskforce raised the lack of legal representation and assistance as a major concern for victims, particularly where a male respondent can afford legal representation. Submissions stated that this often results in the victim withdrawing or not pursuing a legal response and can lead to a failure in protection for an aggrieved. Submissions also noted the benefits from a duty lawyer system:
•
‘Mitigating the trauma of the court process for victims;
•
Parties are better informed of their rights and the legal process and know what they can and cannot ask of the court
•
Victims will receive assistance and advice with completing their application forms. This will ensure all relevant information is before the court. The court process will proceed more smoothly as a consequence of properly prepared documents and legally informed clients appearing before it
•
Queensland Police Prosecutors will also indirectly benefit as a consequence in the same way as the court will
•
More appropriate orders and conditions can be applied for which improves victims safety, and reduces the risk of recidivism, breach and applications for variations of the orders
•
Timely legal advice and information to respondents could lead to a less litigious approach to proceedings and appropriate referrals
•
Victims will be empowered to pursue their matters and not withdraw because of fear or intimidation by the perpetrator or because of lack of knowledge of the complex legal system. The result will be greater safety for older people, women and children experiencing domestic and family violence. (p 312)
Rathus, Z. A history of the use of the concept of parental alienation in the Australian family law system: contradictions, collisions and their consequences. (2020) 42 (1) Journal of Social Welfare and Family Law 5-17.
Abstract
‘This paper presents insights into the history and current deployment of the concept of parental alienation in the Australian family law system. It begins in 1989…[and] traces aspects of the socio-legal and social science research, gender politics, law reform and jurisprudence of the following 30 years, paying attention to moments of significant change. … The history reveals an irreconcilable tension between the ‘benefit’ of ‘meaningful’ post-separation parent-child relationships and the protection of children from harm. When mothers’ allegations of violence in the family are disbelieved, minimised or dismissed, they are transformed from victims of abuse into perpetrators of abuse – alienators of children from their fathers…’
‘It is impossible to provide a concise definition of 'parental alienation' (PA) … because of its contested position in scientific and legal literature. It is employed by some professionals to describe parental conduct in separated families where the children are, apparently without good reason, reluctant or resistant to spending time with one parent.’ (p.6, references removed).
Rhoades, H, ‘Book Review: Challenging Parental Alienation: New Directions for Professionals and Parents, Jean Mercer and Margaret Drew (eds)’ (2022) 35 Australian Journal of Family Law 290-294.
‘The book (see further reference below- International) also provides a valuable warning to readers outside the US about the dangers of reunification therapies, which appear to have flourished despite a lack of empirical support for their effectiveness. Their coercive approach provides a stark contrast to the trauma-informed programs for rebuilding parent-child relationships that are provided in Australia’s services sector, programs that were often designed in consultation with children’ at 294.
Smallwood, Emma, Stepping Stones: Legal Barriers to Economic Equality After Family Violence (Women’s Legal Service Victoria, 2015).
This research reports on a study involving 30 interviews with women experiencing family violence and 40 surveys completed by community service workers. This report includes case studies and discusses the experiences reported by the interviewees. See at pp.40-44, the report discusses the treatment of family violence by the Family court in relation to property matters.
Strickland, Justice Steven, ‘Attachment Theory and Family Violence: a judicial perspective’ (Paper delivered at AFCC 49th Annual Conference, Chicago, 6-9 June 2012).
This paper discusses the 2006 and 2011 family law reforms from the perspective of attachment theory. Attachment theory, which relates to the need for strong bonds with ‘attachment figures’ from an early age is outlined from p 3. See also in particular the comments regarding notices of risk at pp 31-32.
Sturge, Claire and Danya Glaser, ‘Contact and Domestic Violence – The Experts’ Court Report’ (2000) 30 Family Law, 615-629.
This expert report was prepared for the cases Re L (Contact: Domestic Violence); Re V (Contact: Domestic Violence); Re M (Contact: Domestic Violence); Re H (Contact: Domestic Violence) [2000] 2 FLR 334. The experts were asked to prepare an opinion on the circumstances in which a child should have no contact with a parent who has used or exposed the child to domestic and family violence. The adverse effects on children of being exposed to family violence are discussed.
At p 615, the authors discuss the psychiatric principles of contact between the child and the non-residential parent as guided by developmental and psychological knowledge, theory and research. This includes knowledge of child development, interactional issues and innate factors. These core principles should guide decisions relating to contact. The different purposes of contact are discussed at p 616. The benefits and risk of direct and indirect contact with the non-residential parent is discussed from p 617-619.
Tomison, Adam M, ‘Exploring Family Violence: Links Between Child Maltreatment and Domestic Violence’ (National Child Protection Clearinghouse Issues Paper No 13, Australian Institute of Family Studies, June 2000).
This article reviews the research about the relationship between domestic violence and various forms of child maltreatment. In particular, it points to the high proportion of cases of emotional abuse of children identified by child protection workers in families where there is domestic and family violence and to the mild association between presence of domestic violence and a higher than expected proportion of children sustaining injuries. Pages 8-9 of this article discusses the variety of ways a child may be exposed to domestic violence, including as a hostage to ensure the mother’s return home and forcing a child to watch assaults.
Trane, Sarah T., Champion, Kelly M., and Hupp, Steven D. A. Comparison of Parental Alienation Treatments and Evidence-Based Treatments for Children. In Mercer J and Drew, M. eds. Challenging Parental Alienation: New Directions for Professionals and Parents, (2021) Routledge.
Conclusion: ‘Psychology and other social sciences have delineated the importance of research methods for describing treatments as evidence-based. Parental alienation treatments lack the evidence required to be considered evidence-based by agreed-upon professional standards. In addition to the review provided in this chapter, a 2017 review also concluded that no rigorous research could be identified for parental alienation treatments. Moreover, their safety remains in question, let alone their effectiveness at reaching purported treatment goals. If treatment goals are the reduction of coercion among parents and children, psychology research has a lot to say about best methods and procedures for improvements in this regard. Indeed, methods almost universally suggest the need for parents to demonstrate improvements in their own emotion regulation skills, communication skills, and ability to create a safe and supportive environment for their children before their children can be expected to demonstrate such skills. It behooves the Court, attorneys, and other professionals involved with these most challenging cases to understand that there remains a distinct lack of evidence to assure that the existing parental alienation programs are psychologically safe or effective for families. While it is possible that these programs emerged with the best of intentions to assist distressed and desperate parents, they do not rise to the ethical imperative to create EBTs that warrant court-ordered participation.’ (p155, References removed).
Trimmings, Katarina, Onyója Momoh, ‘Intersection between Domestic Violence and International Parental Child Abduction: Protection of Abducting Mothers in Return Proceedings’ (2021) 35(1) International Journal of Law, Policy and the Family 1-19 (UK).
The focus of the article is on the intersection between domestic violence and parental child abduction. In particular, it considers the interpretation of the Article 13(1)(b) ‘grave risk of harm’ defence in cases involving allegations of domestic violence by the abducting mother against the left-behind father, and on the protection of such abducting mothers in return proceedings. The content of the article is divided into two substantive parts. The first part explores the courts' approach to the grave risk of harm exception to return in circumstances where allegations of domestic violence have been raised. The second part of the article examines the courts' approach to protective measures, including undertakings, in child abduction cases involving allegations of domestic violence.
UN General Assembly, Custody, violence against women and violence against children Report of the Special Rapporteur on violence against women and girls, its causes and consequences (Report of the Special Rapporteur on violence against women and girls, its causes and consequences, Reem Alsalem) (2023).
Abstract: ‘The report addresses the link between custody cases, violence against women and violence against children, with a focus on the abuse of the term “parental alienation” and similar pseudo-concepts.’
In Part III the report discusses the definition of what the Special Rapporteur describes as the ‘pseudo-concept of “parental alienation”’:
1.
‘There is no commonly accepted clinical or scientific definition of “parental alienation”. Broadly speaking, parental alienation is understood to refer to deliberate or unintentional acts that cause unwarranted rejection by the child towards one of the parents, usually the father.’
2.
‘The pseudo-concept of parental alienation was coined by Richard Gardner, a psychologist, who claimed that children alleging sexual abuse during high conflict divorces suffer from “parental alienation syndrome” caused by mothers who have led their children to believe that they have been abused by their fathers and to raise allegations of abuse against them. He recommended draconian remedies to address the syndrome, including a complete cut-off from the mother in order to “deprogramme” the child.’
3.
‘It was argued that the more that children rejected the relationship with their fathers, the more evidence of the alienating syndrome was observed. Gardner’s theory has been criticized for its lack of empirical basis, for its problematic assertions about sexual abuse and for recasting abuse claims as false tools for alienation, which, in some cases, have dissuaded evaluators and courts from assessing whether abuse has actually occurred. It has been dismissed by medical, psychiatric and psychological associations, and in 2020 it was removed from the International Classification of Diseases by the World Health Organization. Nevertheless, it has gained considerable traction and has been widely used to negate allegations of domestic and sexual abuse within family court systems on a global scale.’ (references removed- see original).
In Part IV: A of the Report there is discussion about the high rates of domestic violence in intimate relationships and observes:
‘Allegations of domestic violence tend to receive insufficient scrutiny by courts and to trigger problematic assumptions, for example that it causes little harm to the mother or child and that it ceases with separation. The consequences of domestic violence and its effects on children are also misunderstood and underestimated by judges, who tend to prioritize and grant contact with fathers. In doing so, judges fail in their duty to protect children from harm, giving abusive fathers unsupervised access to their children, including in cases where judges have found that physical and/or sexual violence has occurred.’ (references removed- see original) [12]
The Report states: ‘The use of parental alienation is highly gendered and frequently used against mothers.’ [14]
Further in Part IV: B of the Report there is a discussion about the tactics used to trump allegations of domestic violence. The Report states ‘there are numerous ways in which allegations of domestic violence are sidelined and delegitimized through invoking parental alienation’ including ignoring the history of domestic violence against mothers and children in decisions of custody and visitation rights; efforts to scrutinize domestic violence are not actively pursued and that despite a history of domestic violence; the ‘pseudo concept’ of parental alienation has been involved or mothers have been blamed for purposely isolating children from their fathers, even where the safety of the mother or the child was at risk. The Report states: ‘By ignoring or undermining domestic violence in a family, courts fail to acknowledge the issue in their decisions, thereby presenting domestic violence as an exception rather than the norm in cases of parental alienation.’
In Part V the Report discusses the impact of parental alienation on the best interest of the child. The Report observes that ‘[i]n the context of domestic violence, there is a duty to listen [to ensure] that decisions are better informed and that the child’s safety and welfare are promoted.’
1.
‘When custody decisions are made in favour of the parent who claims to be alienated without sufficiently considering the views of the child, the child’s resilience is undermined and the child continues to be exposed to lasting harm. It may also sever the stable and safe bond with the non-abusive primary caretaker. Submissions from Australia [and other countries] report cases where children were removed from the primary carer and compelled to reside with the perpetrator parent, whom they resist. In addition, submissions noted how police child protection services have enforced access and custody orders in cases where the child clearly did not wish to comply, traumatizing both the child and the mother.’
UN OHCHR, Special Rapporteur on violence against women and girls, its causes and consequences (SR), https://www.ohchr.org/en/calls-for-input/2022/call-inputs-custody-cases-violence-against-women-and-violence-against-children (2022).
Purpose: To inform the Special Rapporteur on violence against women and girls’ report on the nexus between custody and guardianship cases, violence against women and violence against children, with a focus on the abuse of the concept of “parental alienation” and related or similar concepts.
‘The tendency to dismiss the history of domestic violence and abuse in custody cases extends to cases where mothers or children have brought forward credible allegations of child physical or sexual abuse. In several countries, family courts tend to judge such allegations as deliberate efforts by the mothers to manipulate their child and pull them away from their father. This supposed effort by a parent alleging abuse is often termed “parental alienation.” The term generally refers to the presumption that a child’s fear or rejection of one parent, typically the noncustodial parent, stems from the malevolent influence of the preferred, typically the custodial parent.’
‘Although these concepts lack a universal clinical or scientific definition, emerging patterns across various jurisdictions of the world indicate courts worldwide are using the concept of “parental alienation” or similar concepts explicitly or are allowing for its instrumentalization. The vast majority of those accused of ‘alienating’ their child while alleging abuse are women. Consequently, many women victims of violence and abuse face double victimization as they are punished for alleging abuse, including by losing custody or at times being imprisoned. Children who are victims of violence and abuse by a parent (in many cases the father) often continue to be subjected to such violence and abuse, against themselves and/or the other parent (in most cases the mother) post-separation, through imposed contact with the abusive parent. These dynamics often allow parents to be intimidated, coerced or forced by their abusive ex-partners and pressured by the courts to withdraw their allegations of abuse or to agree to a specific custody arrangement. In many instances, when given the risk of losing contact with their children and the high impunity the violence committed by their partner, women end up withdrawing their allegations or not reporting at all. According to experts, in many cases, the perpetrators of violence have deliberately inflicted violence on their children as a continuation of the violence inflicted on their partner who is the parent of their children and therefore a continuation of the attempt and process of controlling the target (i.e. the mother).’
Vesneski, William M. et al, ‘U.S. Judicial Implementation of the Hague Convention in Cases Alleging Domestic Violence’ (2011) 62(2) Juvenile Family Court Journal 1-20, doi: 10.1111/j.1755-6988.2011.01058.x
This qualitative study examined U.S. legal cases where abused mothers living abroad fled with their children to the United States. These women subsequently faced child abduction lawsuits brought by their abuser. The cases are governed by the Hague Convention. Using content analysis, the study analysed 47 published U.S. state and federal judicial opinions involving the Convention and allegations of domestic violence. It finds that U.S. courts are reluctant to employ Convention provisions that could prevent children from being returned to their mother’s abuser.
The Article emphasises that transnational family relationships have become more common in the past thirty years. The article notes that for abused women with children, ending these relationships is exceedingly complicated and thus mothers often turn to family members for assistance in repairing their lives. The authors also recognise that because the Convention focuses exclusively on children, it does not explicitly recognize domestic violence between children’s parents as a reason to deny children’s return to the habitual residence, even if return means placement with the children’s abusive parent. This gap in the Convention is significant, because social science research suggests that many families experience both domestic violence and child maltreatment. The authors view that this gap “falls short of accounting for the actual, lived experience of battered women and their children” (p 16) and patterns of coercion inherent in domestic violence that prevent a woman from participating in decisions about where she and her children live.
The article concludes that “the failure of the Hague Convention and its U.S. implementation to recognize these dynamics creates an additional barrier to safety for women seeking to protect themselves from a violent partner” (p 16).
Walsh K. The Failure to Recognize Continuing Harm: Post-Separation Domestic Abuse in Child Contact Cases. Violence Against Women. 2024:10778012241243049. PMID: 38557267.
“This article presents findings from a case file review of post-separation parenting cases in England and Wales…It describes the types of abuse most frequently encountered in these cases [verbal and psychological abuse, harassment, stalking, threats of violence (including death threats), physical and sexual assaults and threats or attempts of suicide, threatened or actual abduction of children, undermining of mothers’ parental authority or capacity, and using parenting time arrangements to track and control mothers’ schedules]…The study finds that key legal provisions governing these cases are not being followed, with little understanding shown for the nature of post-separation abuse.”
Wangmann, J., Booth, T., & Kaye, M. (2020). “No straight lines”: Self-represented litigants in family law proceedings involving allegations about family violence (Research report, 24/2020). Sydney: ANROWS.
Abstract: This research focuses on documenting current practice and generating new knowledge about the impact and effect of self-representation by one or both parties in Family Law proceedings involving allegations of family violence.
The research team conducted semi-structured interviews with SRLs and professionals who engage with SRLs in family law proceedings to produce a general interview sample. The researchers then also undertook an intensive case study that involved court observation, case file review, and interviews with SRLs or other representatives involved in those observed/reviewed cases.
The research confirmed that there are high numbers of SRLs engaged in family law cases involving allegations of family violence, and the primary motivation for self-representing is financial. The study revealed that SRLs are impacted by their self-representation, as well as histories of family violence, in numerous ways. Primarily, SRLs lack knowledge of the legal process: for example, they are often unaware of the heavy emphasis on paperwork and negotiation in family law cases, and they are unprepared to complete paperwork, or negotiate, in ways that effectively support their case. Intersecting with the lack of knowledge is the impact of family violence: ability to complete paperwork and negotiate is also affected by experiences of violence and resulting trauma, and perceptions of safety.
Given these findings, the report stresses the importance of enhanced, up-to-date and practical information for SRLs in multiple formats, as well as increased access to lawyers and legal advice. The report also raises the need to explore possible system change, particularly with a view to the fragmentation of areas of law that respond to family violence. Alongside enhancing family violence expertise across key court personnel, the report recommends integrating information about safety into routinely accessed documents in order to raise awareness about available services.
Warrier, Sujata ‘It’s in Their Culture: Fairness and Cultural Considerations in Domestic Violence’ (2008) 46 Family Court Review 537.
This essay attempts to critique the prevailing thinking on culture and cultural competency within the context of domestic violence. See in particular at p 539, where the author notes ‘Thinking of culture as fixed leads us to make generalizations based only upon ethnic or racial identification. Such thinking conveniently overlooks the intersection of other categories such as class, sexual orientation, disability, immigration status, and so on. Further, none of these categories are fixed in time or one-dimensional. All these categories intersect in individuals and groups differently and change over time as the social and political landscape changes.’
Weston, Ruth et al, ‘Care-time arrangements after the 2006 reforms’ [2011] (86) Family Matters 19.
This article examines the prevalence of different care-time arrangements for separating families after the 2006 reforms, parents’ views about the flexibility and workability of their arrangements, characteristics of families with different care-time arrangements and the strength of the relationship between child wellbeing on the one hand and care-time arrangements and family dynamics on the other.
Note at p29: ‘Across all care-time arrangements, children’s wellbeing appeared to have been compromised where there had been a history of family violence, where parents held safety concerns (for them or their child) associated with ongoing contact with the other parent, and where the inter-parental relationship was either highly conflictual or fearful. Children in shared care-time arrangements appeared to be no worse off than other children where there had been a history of family violence or a negative inter-parental relationship. However, mothers’ assessments suggested that, where there were safety concerns, children in shared care fared worse than those who lived mostly with their mother.’
Women’s Safety and Justice Taskforce, Hear her voice: Report one, Volume 2 ‘The Mountains we must climb’ (2021)
‘The Taskforce has heard that attempts by victims of coercive control to protect themselves and keep their children safe may be considered to be parental alienation in the family law system and counterintuitively act against them in that jurisdiction’ p274.
‘Perpetrators of domestic and family violence and coercive control often use family law proceedings and outcomes as a mechanism to continue to exert power and control over their victims. This undermines efforts by states and territories to continuously improve responses to domestic and family violence to protect victims, including children, and hold perpetrators to account and stop the violence. Community perceptions of the presumption of shared parental responsibility in the Family Law Act 1975 (Cth) often lead victims of domestic and family violence to believe they are compelled to offer equal shared care to abusive fathers. Victims are frightened that the court will view them as alienating the children from their father if they try to protectively limit contact. This potentially exposes children to significant harm and means victims are subject to ongoing power and control by the perpetrator during periods of contact over the children. Mothers who act protectively in the best interests of their children to limit the contact their children have with a perpetrator-father are often accused of parental alienation within the family law system’ at 276.
Zashin, Andrew A, Domestic violence by proxy: a framework for considering a child’s return under the 1980 Hague Convention on the Civil Aspects of Child Abduction’s Article 13(b) Grave risk of harm cases post Monasky, (2021) 33 Journal of the American Academy of Matrimonial Lawyers 571-592.
This review considers American cases that have interpreted the ‘grave risk of harm ‘test. The author observes that one can not separate undisputed violence from the habitual residence considerations (p574). The author observes that some US courts ‘have aligned in their analysis of more severe fact patterns (e.g., agreeing that sexual abuse to a child is sufficient to create the grave risk of harm), the courts have continuously met cases of domestic violence with confusion and dissonance.’ (p585) The author observes that grave risk cases can create a spectrum of harm, and where cases fall on the spectrum can illuminate the zone of danger. On one end are cases evidencing a grave risk of harm due to the psychological and physical abuse endured by a minor child, and on the other are cases where no abuse to the minor child or spouse exist, but where a respondent parent argues that factors relative to the environment of the habitual residence create a grave risk of harm (p587).
Among the objectives of the 2006 amendments to the Family Law Act 1975 (Cth) (FLA) and the Family Court Act 1997 (WA) (FCA) were the discouragement of adversarial approaches to family dispute resolution (FDR) and the introduction of a national network of family relationship centres resourced with accredited FDR practitioners. Section 60I FLA and Section 66H FCA aim to ensure that all parties who have a dispute about Part VII FLA or Part 5 FCA (children) matters make a genuine effort to resolve the dispute by FDR before applying for an order under the Part. FDR can be provided through the 65 Family Relationship Centres, other government funded organisations, Legal Aid Commissions and private services.
A court must not hear an application under Part VII FLA or Part 5 FCA unless the applicant has either filed and served a certificate by an FDR practitioner (certifying that the parties have attended or attempted to attend FDR (s.60I(7) FLA; s.66H(7) FCA) and the FCFCA Fact Sheet) or have attended upon a Registrar and obtained an exemption from attending FDR (s.60I(9) FLA; s.66H(9) FCA) on the basis that there are reasonable grounds to believe that there has been or that there is a risk of family violence or child abuse by one of the parties to the proceedings; or the application relates to the contravention of an order made under this part in the previous 12 months; or there are circumstances of urgency or impracticality. The Family Violence Best Practice Principles make it clear that it is not compulsory for parties to participate in FDR in these circumstances.
Where family violence issues are not identified in the FDR intake process, but become apparent in the course of the negotiations, a certificate may be issued by an FDR practitioner under Section 60I FLA or Section 66H FCA certifying that it would be inappropriate to continue. It is important to note that the assessment of the suitability of parties to attend dispute resolution at any stage, has not changed as a result of the merger of the Courts and the implementation of Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (FCFCOA Rules) (Sch 1 Part 1 cl 1(8) and Sch 2 Part 1 cl 1(8)) and the Central Practice Direction Family Law - Case Management 2021 (Central Practice Direction). However, it appears from the pre-action procedures that in the event FDR is not appropriate, for whatever reason, a written notice of an intention to start a proceeding must be given to the other party prior to the filing of an application to the Court (FCFCOA Rules Sch 1 Part 1 cl 3(4) and Sch 1 Part 2 cl 3(4)).
Where a FDR practitioner assesses it safe to do so, a matter involving family violence may proceed to FDR. The specific model of FDR utilised (for example, telephone, skype, online, shuttle, legally-assisted) will be dependent on the circumstances, complexities and needs of individual families.
Any communications made to an FDR practitioner during FDR are confidential unless disclosure is required or authorised by law (Section 10H FLA or Section 53 FCA). Such communications made in FDR are also not admissible in any court or proceedings in any jurisdiction (Section 10J FLA or Section 54 FCA). Additionally, a communication made when a professional consultation is being carried out, on referral from an FDR practitioner, is inadmissible in any court or proceedings in any jurisdiction. However, an admission or disclosure that indicates that a child under 18 has been abused, or is at risk of abuse, may be admitted as evidence unless there is sufficient evidence of the admission or disclosure available to the court from other sources.
Under Section 13C FLA or Section 65K FCA, a judge may also refer parties back to FDR, family counselling, a course, program or service at any stage of the family law proceedings but before doing so must consider seeking the advice of a family consultant about the services appropriate to the parties’ needs (Section 11E FLA or Section 64 FCA).
With the introduction of the FCFCA Rules and the Central Practice Direction,there has been an increased focus on the importance of and reliance on dispute resolution and Family Dispute Resolution (FDR). "Dispute Resolution" is defined in the FCFCOA Rules to include a mediation and conference (r. 105). One of 10 the core principles underpinning the family law jurisdiction and designed to facilitate the resolution of family law matters is the importance of dispute resolution. In the Central Practice Direction this is described as follows:
1.
The Court encourages the use of dispute resolution procedures;
2.
Before commencing actions, parties are expected to make a genuine attempt to resolve the dispute including by complying with requirements and obligations of Section 60I of the FLA and the preaction procedures set out in the FCFCOA Rules;
3.
After commencement of an action, parties are expected to:
(a)
Be proactive and identify the appropriate time and appropriate way in which they can participate in dispute resolution; and
(b)
Be prepared to make and consider reasonable offers of settlement at any stage. Failure to do so may have a cost consequence.
It is also important to note that another of the 10 core principles is assessment of risk. This includes the prioritisation of the safety of children, vulnerable parties and litigants as well as the identification and appropriate handling of issues of risk including alleged family violence. As a result, participation in family dispute resolution and dispute resolution more broadly needs to be considered in this context.
The Central Practice Direction also includes consideration after any interim hearings, as to whether dispute resolution is appropriate and whether measures can be implemented to ensure safety in matters involving family violence and safety concerns. This includes parties being referred off to private mediation, private or community based Family Dispute Resolution, and/or arbitration with the consent of the parties. If the Court is satisfied that it is appropriate for the parties to participate in dispute resolution, the matter will be listed for a date within 6 months of filing for a Conciliation Conference, a Judicial Settlement Conference or a Family Dispute Conference. The Central Practice Directions also note that a second or subsequent dispute resolution may be listed at any time if it appears to the Court that it is reasonably likely this will assist with the resolution or narrowing of the dispute.
There are additional requirements included in the FCFCOA Rules and the Central Practice Direction that parties provide a detailed list of documents to the Mediator or FDR Practitioner and to the other party involved not less than 7 days before the mediation/FDR. These include the following:
1.
All relevant Applications, Responses, Affidavits and Financial Statements filed in the proceedings;
2.
Any relevant expert reports;
3.
A Balance Sheet setting out agreed and disputed assets and liabilities;
4.
Any documents exchanged between the parties which is directly relevant to an issue remaining in dispute (with relevant passages highlighted);
5.
A Minute setting out the precise terms of orders required to give effect to the settlement proposal;
6.
A confidential case outline document in the approved form;
7.
Particulars of any financial resource and a valuation of any asset the value of which is in dispute;
8.
Valuations or market appraisals for any parcel of real estate in which any party has an interest, or any motor vehicle in which the value is not agreed;
9.
Valuation of any superannuation interests and written confirmation that the superannuation trustee of any fund that may be subject to a splitting order has been afforded procedural fairness;
10.
Any family violence orders currently in place; and
11.
Any other documents reasonably requested by the mediator/FDRP.
Research by the Australian Institute of Family Studies (AIFS) in 2015 suggests that parties, and perhaps other professionals involved in the FDR process, may not have a thorough understanding of the 60I/66H exemption. This research shows that some parents who experience family violence continue to present for FDR services, although many who experience family violence proceed directly to the Court without attending or attempting to attend FDR. This research found there was a significant reluctance by parties to disclose family violence issues in the FDR process, and a low 60I/66H exemption rate where family violence issues are disclosed. A separate AIFS study shows that among those parents who used FDR services as a means of resolving parenting issues, substantial proportions of parents reported having experienced physical violence or emotional abuse.
Another Australian study reported that women were more likely than men not to disclose family violence and twice as likely as men to report that FDR proceeded notwithstanding a disclosure of family violence. Central to disclosure is what Chisholm has called the victim’s dilemma: a victim’s choice of balancing the risk to the child of not taking protective action to prevent further family violence, against the risk to the child of doing so unsuccessfully due to, for example, insufficient evidence, with the possible result that the child spends more time with the perpetrator.
The critical question remains in each case, however, as to whether FDR or other mediated or facilitated negotiation processes are appropriate or effective where there is a history of family violence between parties attempting to reach agreement as to parenting arrangements. AIFS has observed in its research that in some circumstances, the process may be empowering for the victim; in other circumstances, the process may cause the victim further fear and trauma, making the victim more vulnerable to the impacts of ongoing power imbalances with the perpetrator, and may produce coerced outcomes that may not be in the best interests of the child. Overall, fewer parents reach agreement using FDR processes where family violence issues exist, and many are unable to reach agreement. For those who do reach agreement, there is evidence that the consequent parenting arrangements may be unstable due to unresolved and ongoing family violence issues and safety concerns, and as a result, these families are likely to need additional support. There is an acknowledged need for constant vigilance by FDR practitioners in recognising and assessing a party’s fear and safety concerns prior to the commencement and throughout the course of the FDR process and, where necessary, issuing a 60I/66H certificate.
If parties reach agreement through FDR they may wish to apply to the Court for consent orders. Where an application is made to the FCFCA for a parenting order by consent (whether or not resulting from an outcome mediated through FDR), the parties must formally advise the Court whether any allegations of family violence or child abuse or neglect (or risk thereof), or of mental ill-health, drug or alcohol misuse, serious parental incapacity or any other allegation involving a risk to the child concerned have been made AND whether a party considers that the child concerned has been or is at risk of abuse, neglect or family violence, and whether a party considers that he or she or another party to the proceedings has been or is at risk of family violence. Should any of these circumstances be advised, the parties must explain to the Court how the parenting order attempts to deal with the allegations (see Rule 10.05 of FCFCA Rules).
Among the objectives of the 2006 amendments to the Family Law Act 1975 (Cth) (FLA) and the Family Court Act 1997 (WA) (FCA) were the discouragement of adversarial approaches to family dispute resolution (FDR) and the introduction of a national network of family relationship centres resourced with accredited FDR practitioners. Section 60I FLA and Section 66H FCA aim to ensure that all parties who have a dispute about Part VII FLA or Part 5 FCA (children) matters make a genuine effort to resolve the dispute by FDR before applying for an order under the Part. FDR can be provided through the 65 Family Relationship Centres, other government funded organisations, Legal Aid Commissions and private services.
A court must not hear an application under Part VII FLA or Part 5 FCA unless the applicant has either filed and served a certificate by an FDR practitioner (certifying that the parties have attended or attempted to attend FDR (s.60I(7) FLA; s.66H(7) FCA) and the FCFCA Fact Sheet) or have attended upon a Registrar and obtained an exemption from attending FDR (s.60I(9) FLA; s.66H(9) FCA) on the basis that there are reasonable grounds to believe that there has been or that there is a risk of family violence or child abuse by one of the parties to the proceedings; or the application relates to the contravention of an order made under this part in the previous 12 months; or there are circumstances of urgency or impracticality. The Family Violence Best Practice Principles make it clear that it is not compulsory for parties to participate in FDR in these circumstances.
Where family violence issues are not identified in the FDR intake process, but become apparent in the course of the negotiations, a certificate may be issued by an FDR practitioner under Section 60I FLA or Section 66H FCA certifying that it would be inappropriate to continue. It is important to note that the assessment of the suitability of parties to attend dispute resolution at any stage, has not changed as a result of the merger of the Courts and the implementation of Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (FCFCOA Rules) (Sch 1 Part 1 cl 1(8) and Sch 2 Part 1 cl 1(8)) and the Central Practice Direction Family Law - Case Management 2021 (Central Practice Direction). However, it appears from the pre-action procedures that in the event FDR is not appropriate, for whatever reason, a written notice of an intention to start a proceeding must be given to the other party prior to the filing of an application to the Court (FCFCOA Rules Sch 1 Part 1 cl 3(4) and Sch 1 Part 2 cl 3(4)).
Where a FDR practitioner assesses it safe to do so, a matter involving family violence may proceed to FDR. The specific model of FDR utilised (for example, telephone, skype, online, shuttle, legally-assisted) will be dependent on the circumstances, complexities and needs of individual families.
Any communications made to an FDR practitioner during FDR are confidential unless disclosure is required or authorised by law (Section 10H FLA or Section 53 FCA). Such communications made in FDR are also not admissible in any court or proceedings in any jurisdiction (Section 10J FLA or Section 54 FCA). Additionally, a communication made when a professional consultation is being carried out, on referral from an FDR practitioner, is inadmissible in any court or proceedings in any jurisdiction. However, an admission or disclosure that indicates that a child under 18 has been abused, or is at risk of abuse, may be admitted as evidence unless there is sufficient evidence of the admission or disclosure available to the court from other sources.
Under Section 13C FLA or Section 65K FCA, a judge may also refer parties back to FDR, family counselling, a course, program or service at any stage of the family law proceedings but before doing so must consider seeking the advice of a family consultant about the services appropriate to the parties’ needs (Section 11E FLA or Section 64 FCA).
With the introduction of the FCFCA Rules and the Central Practice Direction,there has been an increased focus on the importance of and reliance on dispute resolution and Family Dispute Resolution (FDR). "Dispute Resolution" is defined in the FCFCOA Rules to include a mediation and conference (r. 105). One of 10 the core principles underpinning the family law jurisdiction and designed to facilitate the resolution of family law matters is the importance of dispute resolution. In the Central Practice Direction this is described as follows:
1.
The Court encourages the use of dispute resolution procedures;
2.
Before commencing actions, parties are expected to make a genuine attempt to resolve the dispute including by complying with requirements and obligations of Section 60I of the FLA and the preaction procedures set out in the FCFCOA Rules;
3.
After commencement of an action, parties are expected to:
(a)
Be proactive and identify the appropriate time and appropriate way in which they can participate in dispute resolution; and
(b)
Be prepared to make and consider reasonable offers of settlement at any stage. Failure to do so may have a cost consequence.
It is also important to note that another of the 10 core principles is assessment of risk. This includes the prioritisation of the safety of children, vulnerable parties and litigants as well as the identification and appropriate handling of issues of risk including alleged family violence. As a result, participation in family dispute resolution and dispute resolution more broadly needs to be considered in this context.
The Central Practice Direction also includes consideration after any interim hearings, as to whether dispute resolution is appropriate and whether measures can be implemented to ensure safety in matters involving family violence and safety concerns. This includes parties being referred off to private mediation, private or community based Family Dispute Resolution, and/or arbitration with the consent of the parties. If the Court is satisfied that it is appropriate for the parties to participate in dispute resolution, the matter will be listed for a date within 6 months of filing for a Conciliation Conference, a Judicial Settlement Conference or a Family Dispute Conference. The Central Practice Directions also note that a second or subsequent dispute resolution may be listed at any time if it appears to the Court that it is reasonably likely this will assist with the resolution or narrowing of the dispute.
There are additional requirements included in the FCFCOA Rules and the Central Practice Direction that parties provide a detailed list of documents to the Mediator or FDR Practitioner and to the other party involved not less than 7 days before the mediation/FDR. These include the following:
1.
All relevant Applications, Responses, Affidavits and Financial Statements filed in the proceedings;
2.
Any relevant expert reports;
3.
A Balance Sheet setting out agreed and disputed assets and liabilities;
4.
Any documents exchanged between the parties which is directly relevant to an issue remaining in dispute (with relevant passages highlighted);
5.
A Minute setting out the precise terms of orders required to give effect to the settlement proposal;
6.
A confidential case outline document in the approved form;
7.
Particulars of any financial resource and a valuation of any asset the value of which is in dispute;
8.
Valuations or market appraisals for any parcel of real estate in which any party has an interest, or any motor vehicle in which the value is not agreed;
9.
Valuation of any superannuation interests and written confirmation that the superannuation trustee of any fund that may be subject to a splitting order has been afforded procedural fairness;
10.
Any family violence orders currently in place; and
11.
Any other documents reasonably requested by the mediator/FDRP.
Research by the Australian Institute of Family Studies (AIFS) in 2015 suggests that parties, and perhaps other professionals involved in the FDR process, may not have a thorough understanding of the 60I/66H exemption. This research shows that some parents who experience family violence continue to present for FDR services, although many who experience family violence proceed directly to the Court without attending or attempting to attend FDR. This research found there was a significant reluctance by parties to disclose family violence issues in the FDR process, and a low 60I/66H exemption rate where family violence issues are disclosed. A separate AIFS study shows that among those parents who used FDR services as a means of resolving parenting issues, substantial proportions of parents reported having experienced physical violence or emotional abuse.
Another Australian study reported that women were more likely than men not to disclose family violence and twice as likely as men to report that FDR proceeded notwithstanding a disclosure of family violence. Central to disclosure is what Chisholm has called the victim’s dilemma: a victim’s choice of balancing the risk to the child of not taking protective action to prevent further family violence, against the risk to the child of doing so unsuccessfully due to, for example, insufficient evidence, with the possible result that the child spends more time with the perpetrator.
The critical question remains in each case, however, as to whether FDR or other mediated or facilitated negotiation processes are appropriate or effective where there is a history of family violence between parties attempting to reach agreement as to parenting arrangements. AIFS has observed in its research that in some circumstances, the process may be empowering for the victim; in other circumstances, the process may cause the victim further fear and trauma, making the victim more vulnerable to the impacts of ongoing power imbalances with the perpetrator, and may produce coerced outcomes that may not be in the best interests of the child. Overall, fewer parents reach agreement using FDR processes where family violence issues exist, and many are unable to reach agreement. For those who do reach agreement, there is evidence that the consequent parenting arrangements may be unstable due to unresolved and ongoing family violence issues and safety concerns, and as a result, these families are likely to need additional support. There is an acknowledged need for constant vigilance by FDR practitioners in recognising and assessing a party’s fear and safety concerns prior to the commencement and throughout the course of the FDR process and, where necessary, issuing a 60I/66H certificate.
If parties reach agreement through FDR they may wish to apply to the Court for consent orders. Where an application is made to the FCFCA for a parenting order by consent (whether or not resulting from an outcome mediated through FDR), the parties must formally advise the Court whether any allegations of family violence or child abuse or neglect (or risk thereof), or of mental ill-health, drug or alcohol misuse, serious parental incapacity or any other allegation involving a risk to the child concerned have been made AND whether a party considers that the child concerned has been or is at risk of abuse, neglect or family violence, and whether a party considers that he or she or another party to the proceedings has been or is at risk of family violence. Should any of these circumstances be advised, the parties must explain to the Court how the parenting order attempts to deal with the allegations (see Rule 10.05 of FCFCA Rules).