I have a great amount of respect for Tanya Plibersek and her colleagues in seeking some of her efforts in reducing violence against women. There are many questions that surround this. In one article it announces $100 million for family relationship services and in the other it announces funding of $26 million for family violence. $12 million for a 24 hour crisis service. It costs to run one domestic violence service $1.5 million dollars per year. It would cost approximately $12 million to have one in every capital city. This does not include the other programs training and services that would need to be set up to accomplish these goals. It does not seem to be enough to cover what is being set out in the plan. It is fantastic however to see the issues that we have been raising for sometime, now finally acknowledged. I await to see this plan implemented and more clarity on how this will be addressed. I also hope that there are some provisions for family violence affected victims who are already in the family law system that ensures their safety as well.
The nexus between family law, child protection and domestic and
family violence
Domestic and family violence is a common cause of relationship breakdown137, with the process of separation creating specific vulnerability to chronic and dangerous post-separation violence for some women and their children138 139 140 141 142 143. The violence they experience can escalate and take different forms after separating (such as stalking; actual or threatened child abduction; and litigation abuse, including legal action to prevent abused women and children from re-locating)144 143.
Paradoxically, and in spite of the dangers, separation is a key safety strategy that women and their children use to escape violence and the escalation of trauma-induced mental health problems. Many child-protection workers regard women continuing to live with domestic violence as evidence of a “failure to protect”. Separation from the perpetrator of violence and abuse is a primary safety strategy advocated by child-protection workers who sometimes threaten removal of children from the home if action to separate is not taken146. Issues of family violence and child abuse are therefore central, not peripheral, issues in the family law arena147 148.
The Family Law Amendment (Shared Parental Responsibility) Act 2006, however, represents a potential obstruction to a just and integrated response to family violence in Australia149. The Act states that “in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3).” Subsection (2) states: “the primary considerations are: a) the benefit of the child of having a meaningful relationship with both of the child’s parents; and b) the need to protect the child from physical or psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence150.”
Under the Family Law Amendment (Shared Parental Responsibility) Act 2006, it is left to the court to decide how to reconcile the objectives of a child’s right to a meaningful relationship with both parents and the protection of the child from exposure to violence when there is conflict. Section 61DA also states that: “[w]hen making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.”
While the legislation does not necessarily privilege either of the primary considerations, it seems that there have been considerable problems in reconciling the two in practice. Under previous (almost identical) legislation151, evidence emerged that a very strong pro-contact culture had arisen and that the “the opportunity for a significant relationship with both parents” took precedence over a history or even recent experiences of violence and abuse152. Evidence from the Council’s consultations, and from the judiciary itself, tends to show that such a presumption
is inappropriate for a great number of families using the Act153.
Firstly, the legislation places the burden of rebutting this presumption on the
most vulnerable people who are using the Act (namely women and children
escaping violence and abuse). This is because evidence is required to show that there are reasonable grounds that the parent of the child has engaged in abuse,
or family violence, or that it is not in the child’s best interests to have shared
parental responsibility154.
149
Secondly, where there is violence, women are commonly unable to meet both the “protective parent” criteria and the criteria for a “friendly parent”, defined as “the willingness of each parent to facilitate the child’s relationship with the other parent”155, and they risk state child protection intervention without a protective stance towards the safety and well-being of their children156. And, finally, the tension between the children’s long-term need to “know their father” in a “pro-contact” culture, over their safety and wellbeing and damage to their neurological development requires early evaluation and review. The Council therefore proposes that any future reform be informed by both empirical research and the views of those involved in the family
law system.
It is also the case that State and Territory civil protection orders and orders under the Family Law Act 1975 can overlap or conflict. While state legislation is progressively widening definitions of domestic and family violence, the Family Law Amendment (Shared Parental Responsibility) Act 2006 has moved to a more restrictive definition, whereby the person must be in reasonable fear or apprehension for their well-being or safety due to actual or threatened conduct of a violent family member157. There is anecdotal evidence from Women’s Legal Services Australia that this tension can result in orders that are unenforceable in practice.
The 2008 Report on Domestic Violence and Sexual Assault Laws in Australia158 also notes the difference between legislation as written and legislation in practice. Many State and Territory magistrates are concerned about cutting across Family Law Act 1975 matters, and they do not use legitimate powers to revive, vary, discharge or suspend existing Family Law Act 1975 orders that relate to contact with children when these may be jeopardising the safety of women and children. Further, the inherent tension in the Family Law Amendment (Shared Parental Responsibility) Act 2006 between facilitating children’s contact with both parents and protecting children and their parents from family violence is exacerbated when child contact is written as an exception on protection orders and state police may then be reluctant to enforce orders.
It should be noted that the family courts have the power to clarify inconsistencies, and some
States and Territories have now strengthened the civil protection
legislation to provide clarity and direction to magistrates to enhance the safety and protection of children. Some also provide extensive training in relation to children, family violence and the impact of contact orders159 which could form a comparative point of difference to identify the most effective legislative and policy utilisation of ouster/exclusion orders.
155
Presentation of evidence
Certain sections in the Family Law Amendment (Shared Parental Responsibility)
Act 2006 can tend to mitigate against the presentation of evidence of violence in the first place. These include: the provision that some or all of the costs of litigation can be awarded against a party knowingly making a false allegation or statements in the proceedings160; the more restricted definition of family violence161; and the “friendly parent” provision which assesses “the willingness of each parent to facilitate the child’s relationship with the other parent162. This is of significant concern because past violence, although not always recognised by the future-focus of family law, is the key indicator of future violence163.
The evidence of past violence is therefore needed to inform decision making in family law proceedings and to rebut the presumption of shared parental responsibility, but the obstacles to information-sharing by stakeholders in the family law system remain a significant impediment to ensuring that women and their children are safe. Evidence of violence is collected on a case-by-case basis via subpoenae to different organisations, but confidentiality guidelines and legislative limitations on disclosure restrict access to child-protection records, civil and criminal law records and education and medical records. With the exception of the Family Court of Australia’s Magellan Case Management project164, there is a “factual vacuum”165 as there are few formal agreements and communication channels between organisations able to provide this evidence, and neither the Family Court of Australia nor associated
socio-legal services have the power to investigate allegations of abuse166.
Service practices also vary across jurisdictions and a recurrent problem occurs when child protection workers close cases as soon as a “viable carer” is identified and they do not provide active support through the court and follow-up monitoring to ensure the safety of the contact arrangement167. Practices regarding communication and coordination between state child protection departments, and between those departments and courts dealing with Commonwealth family law matters, require development168. Protocols between child protection and family law also need to be expanded upon and/or uniformly applied, to resolve problems of evidence, coordination and case management. Joint education forums between family law and child protection practitioners to address the procedural and legislative conflicts would also result in practical benefits for women seeking legal redress for violence.
Family dispute resolution
Many women who experience violence prefer, for a range of reasons, to attempt to resolve their case through engagement with family dispute resolution rather than through the courts169. Participation in family dispute resolution is required under the Family Law Amendment (Shared Parental Responsibility) Act 2006 before filing an application for a court order unless an exception applies. One of the exceptions covers the situation of family violence. Family dispute resolution practitioners can also issue a certificate where they consider that resolution would be inappropriate due, for example, to the existence of significant power imbalances between the parties170. However, the “future focus” of family dispute resolution can divert attention from the quality of previous parenting, the risks of continuing post-separation violence, and the potential for on-going re-traumatisation of children who have been either directly abused, or exposed to violence171.
While family dispute resolution practitioners are required to develop competence
in the area of family violence172, the development of this specialised area is in its
early stages173. Without attention to family violence, women may feel pressured into shared parenting arrangements that provide endless opportunities for perpetrators
to continue to exert power and control over both women and children. Every
woman should enjoy access to a variety of victim/witness services, but it is crucial that staff are knowledgeable and qualified to support them in their interaction with
the justice system.
It is imperative that the judiciary, legal officers, government agencies and service support workers understand the multifaceted nature of domestic and family violence. The motivation for ongoing domination and control, the impact and consequences of the action on the other person, and the inter-relationship between the criminal and civil law in protecting against such violence all need to be taken into account in family-law decision-making to ensure that women and their children who have experienced abuse receive consistent support from the justice and family law system.
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