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 –
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)):
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:
This 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.
See generally from p 4 – ‘There are few more difficult or more important challenges for the family law system than dealing with cases where family violence is an issue. Family violence happens throughout the community, and is especially likely to be present among families that separate and resort to the family law system. More than half the parenting cases that come to the courts involve allegations by one or both parties that the other has been violent, and violence issues often go together with other problems, for example those associated with substance abuse and mental ill-health. Violence is bad for everyone, and particularly dangerous for children, whether or not it is directed specifically at them. These cases present the courts with truly daunting tasks: to provide a setting in which the parties feel safe and confident that they will be treated with respect; to deal with the cases with necessary efficiency but most importantly with justice and fairness; and to ensure as far as possible that arrangements made for children, whether as a result of the parties’ consent or by the court’s adjudication, are suitable for their needs, which will include being safe and having both parents contribute to their developmental needs’ (p 4).The theme of the report is discussed at p 5 - ‘A theme that recurred during the Review was that family violence must be disclosed, understood, and acted upon. This theme seems helpful whether we are thinking of a lawyer interviewing a client, a dispute resolution practitioner dealing with a new case, the work of a counter clerk at a family court, or of a judicial officer. The family law system, and each component in it, needs to encourage and facilitate the disclosure of family violence, ensure that it is understood, and act effectively upon that understanding’.
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.
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:
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:
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.
The Family Law Council made 22 recommendations (summarised at pp12-18) in the following areas:
The following summarises the key aspects of this paper:
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.
The paper explored these questions by conducting a review of exisitng literature:
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.
ConclusionsThere 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.
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).Parental capacity is discussed in section 4.5 (p 89).
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:
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:
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.
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:
Court Outcomes Project involving:
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.
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.
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).
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).