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Domestic violence laws in Australia

4. The Family Law Act and State/Territory protection orders legislation: Discussion of key issues

6.4.1. It is beyond the scope of this Report to examine in detail the way in which the FL Act and State/Territory protection orders legislation operate in practice, or to recommend specific reforms. However, in preparing the Report we have drawn on recent Australian and international research and academic commentary on family law and domestic violence issues. On the basis of this research, we have identified several key issues relating to the operation of the FL Act and its relationship with State and Territory legislation. These issues are outlined briefly below.

Family Dispute Resolution (FDR) in the context of family violence

6.4.2. As noted in Part 5, separating parents are generally required to obtain a certificate from an FDR practitioner to show that they have at least attempted FDR before a court will hear an application for an order under Part VII of the FL Act. The FL Act provides that:

6.4.3. We note that these mechanisms do not necessarily mean that people who have experience of family violence or child abuse will not participate in FDR. Families in which there has been, or is a risk of, family violence or child abuse may still participate in FDR for a number of reasons, including the following.

6.4.4. Failureto disclose violence: as observed in Part 5, both the exception to the requirement to undertake FDR at all, and the possibility of obtaining a certificate from a practitioner stating that FDR is not appropriate, rely on disclosure of family violence to the court or to an FDR practitioner. Victims are known to experience significant difficulties in disclosing family violence, with the result that it commonly goes under-reported.303

6.4.5. Parties’ choice to participate in FDR despite being exempt from the legal requirement to do so304: FDR may be perceived as a less expensive, faster or less traumatic way of resolving issues post-separation than a court process. Some victims of violence may feel pressured to reach an out-of-court agreement in order to expedite the process of separation and minimise the risk of further violence, or to agree for the sake of their children.305

6.4.6. The use of FDR in cases involving family violence and child abuse raises complex issues which are the subject of ongoing research and debate, both in Australia and internationally. While we have considered some of this material in researching this Part, it is beyond the scope of this Report to reach conclusions or make recommendations about how these issues should be resolved. We note only that the relevant research indicates that sophisticated systems are needed to enable FDR practitioners to ‘screen’ for violence and abuse in families, and to make assessments of the risks that participation in FDR might present.306 Also, the choice of some people who have experienced violence to participate in FDR raises questions about how FDR can best be delivered so as to ensure that, so far as possible, such vulnerable participants are in a position to bargain on an equal footing with their partners.307

Contact issues

‘Standard’ orders in favour of contact

6.4.7. It appears to have been relatively rare for a court to make an order under the FL Act that denies a parent contact with a child, including in cases involving allegations of family violence.308 As noted in Part 5, the 2006 reforms to the FL Act implemented a new model for decision-making about the time that children spend with parents, and included presumptions in favour of equal or substantial and significant time where parental responsibility is shared equally.309 Decisions are to be made on the basis of the best interests of the child, with courts directed to take account of the need to protect children from the risk of family violence and child abuse.

6.4.8. However, recent research suggests that orders to facilitate contact with children have tended to follow ‘standard’ formulae.310 Where family violence is alleged, but the allegation is not supported by evidence, courts tend to make orders for contact arrangements that are similar to those made in cases where violence is not an issue.311 In this context we note that while allegations of violence may not be substantiated by evidence in FL Act proceedings for a range of reasons, it appears that the absence of evidence cannot be assumed to mean that the allegation is unfounded or untrue. Because family violence often goes unreported at the time it is committed, a party who later alleges that violence has taken place over the course of their relationship may be unable to produce any contemporaneous records to substantiate their claim.312 In addition, because many claims of violence are neither accepted or denied by the party alleged to have been violent, courts may not be required to make a positive finding as to whether or not the violence took place. 313 As the authors of the recent Australian Institute of Family Studies report into allegations of violence and child abuse in FL Act proceedings observed, ‘legal decision-making may often be taking place in the context of widespread factual uncertainty. ’314 There is some evidence that courts take a more cautious approach to contact issues when allegations of family violence are substantiated by evidence; however, it remains rare for a court to deny a parent any contact with a child. 315

The impact of contact on children

6.4.9. There is a substantial body of research concerned with the impact of contact arrangements on children, and in particular on whether it is in children’s best interests to have contact with a parent who is or has been violent.316 This issue is particularly complex where children have not themselves been the direct targets of violence, but may have witnessed violence against a parent or other family member. Similarly, if contact arrangements are likely to be characterised by recurrent episodes of violence directed at one of the children’s parents, there is a question about whether the benefit children derive from spending time with the perpetrator of violence outweighs the harm that results from being exposed to further family violence.317 Contact may also give some violent parents the opportunity to continue to manipulate and control their former partners after separation.318

The New Zealand model – presumption against unsupervised contact

6.4.10. In New Zealand, legislation dealing with family violence and children takes a much more restrictive approach to facilitating contact between children and the perpetrators of family violence. Protection orders contain a standard condition that prohibits contact between the perpetrator and the person for whose protection the order is granted, except: 319

6.4.11. If, in an application for custody of or access to a child, a court finds that a party ‘has used violence against the child or a child of the family, or against the other party to the proceedings’, there is a presumption that a court must not make an order that the violent party provide day-to-day care for the child, or an order for unsupervised contact between that child and the violent party.320 The court may make such an order if the court is satisfied that the child will be safe while the violent party provides day-to-day care for the child or has contact with the child.321

6.4.12. Although the New Zealand model is cited as an example of a progressive legislative response to the risk posed by unsupervised contact with violent parents, it has also been subject to criticism. There is ongoing debate about whether evidence supports the need for a presumption against unsupervised contact, and whether non-physical forms of abuse should be treated in the same way as physical violence.322

‘Friendly parent’ criteria

6.4.13. Some commentators have identified difficulties with the application of ‘friendly parent’ criteria in cases involving family violence. ‘Friendly parent’ criteria are those which direct a court to have regard to the attitudes and behaviour exhibited by each parent towards the other parent in the context of making orders about the time that children spend with each parent. In the FL Act, s 60CC(4)(b) has been called a ‘friendly parent’ criterion.323

6.4.14. Friendly parent criteria may discourage disclosure of family violence in Part VII proceedings– women who cannot adduce sufficient evidence to prove their claims of past violence may be advised not to raise the issues at all, for fearof being labelled ‘unfriendly’ or hostile. (This message may be reinforced by the risk of an adverse costs order against a person who is found to have knowingly made a false allegation or statement – see s 117AB).324 The friendly parent criterion may also deter women from seeking orders that prevent violent parents from having any contact with their children, for fear that this application may itself result in such applicants being labelled ‘unfriendly’.

Interaction between the FL Act and State/Territory child welfare jurisdiction

6.4.15. Examination of the complex interaction between the FL Act and child welfare legislation in each Australian jurisdiction is beyond the scope of this Report.325 However, it does appear that for some families with experience of family violence, child welfare laws add an additional layer of complexity to their encounters with the legal system. In addition to the interaction between the FL Act, the applicable State or Territory protection orders legislation and any relevant criminal laws, child welfare legislation may also be relevant. If the arrangements and orders in place under each legislative regime do not operate cohesively, then children’s safety and wellbeing, and that of their parents, may be compromised.

The connection between family violence and child abuse

6.4.16. Some forms of family violence that are directed towards children are, clearly, a form of child abuse.326 However, violence between other family members can have significant consequences for children, even if they are not directly the targets of the violent behaviour. Exposure to family violence is known to have significant developmental and social effects on children.327 Increasingly, such exposure is itself recognised as a form of child abuse.328

6.4.17. Family violence between adult partners is a key predictor of other instances of child abuse, including sexual abuse of children.329 Familicide, including the murder of children, is also linked to prior histories of family violence.330

Child abuse in FL Act proceedings

6.4.18. Allegations of abuse of children have been described as the ‘core business’ of the Family Court.331 Child abuse is alleged in a small but significant portion of contested FL Act proceedings. These cases are often complex, and require considerable time and resources in order to test allegations and determine suitable parenting orders. The Family Court has instituted programs designed specifically to manage cases involving child abuse as effectively as possible. Currently, cases involving serious allegations of physical and sexual abuse of children are referred to the courts’ Magellan program. Cases in the Magellan program are subject to close case-management and often feature significant involvement by child welfare services and court counsellors.332

6.4.19. Generally, issues of child abuse and child welfare are matters within the jurisdiction of the States and Territories. However, contested FL Act cases involving children frequently involve allegations of child abuse. In such cases, theremay be overlap or conflict between the jurisdiction of a court under the FL Act, the jurisdiction of State and Territory Children’s Courts, and the role and responsibilities of State/Territory child welfare authorities.

State child welfare jurisdiction

6.4.20. Ordinarily, if there are allegations that a child is being abused, State or Territory child welfare authorities will have a statutory responsibility for the child’s protection. This may involve intervening in a family in order to prevent further abuse, notifying police of activity which may constitute a crime, or bringing proceedings in State or Territory courts that have jurisdiction to make orders about the welfare of children.

Interaction between State child welfare legislation and the FL Act333

6.4.21. The FL Act allows, and in some cases requires, courts and court personnel to engage with State and Territory ‘prescribed child welfare authorities’ to respond to allegations of child abuse. When Part VII proceedings have been commenced in a State or Territory, the prescribed child welfare authority will be an officer of the State or Territory who is responsible for the administration of the child welfare laws in that jurisdiction, or some other person prescribed under the FL Act (see s 4(1)).

6.4.22. Courts exercising jurisdiction under the FL Act also have specific responsibilities when child abuse is alleged in FL Act proceedings. An official of the court is obliged to notify the relevant child protection authority if a party to a FL Act proceeding files a notice of an allegation of child abuse (s 67Z). Certain persons, including court personnel, FDR practitioners and lawyers independently representing the interests of a child, have responsibilities to notify a child welfare authority if the person has reasonable grounds for suspecting that a child has been abused, or is at risk of being abused (s 67ZA).

6.4.23. In addition, child welfare authorities have the right to intervene in cases in which it is alleged that a child has been abused or is at risk of being abused (s 92A). Courts may request the intervention of child welfare officers in FL Act proceedings that affect, or may affect, the welfare of a child (s 91B).

6.4.24. However, the FL Act also provides that in some cases the operation of State and Territory child welfare laws effectively takes precedence over courts’ jurisdictionunder the FL Act (in a reversal of the usual relationship between Commonwealth and State laws operating on the same subject matter). A court may not make an order under the FL Act that applies to a child while the child is under the care of a person under a child welfare law unless(s69ZK(1)):

If it appears that orders may be made under a child welfare law for a child to be taken into care, then a court may adjourn proceedings under the FL Act (s69ZK(2)).

Overlap between the FL Act and State and Territory welfare jurisdiction

6.4.25. In general terms, State and Territory child welfare legislation covers some of the same ground as the FL Act, in the sense that it is concerned with the care, protection and welfare of children. Children’s Courts may have jurisdiction to make orders about matters that may also be the subject of FL Act orders – for instance, orders about the persons with whom a child is to live or spend time. (Asnoted above, if there are orders in place under State or Territory welfare laws, these may take precedence).

6.4.26. Matters arising in one area may lead to proceedings in another – for instance, a State welfare authority may arrange for a child to be cared for by a relative, which might then give rise to proceedings under the FL Act for the conferral on that relative parental responsibility in relation to the child.334 Conversely, evidence in FL Act proceedings may raise child protection issues which must be notified to State child welfare authorities, and which it is those authorities responsibility to act upon.

6.4.27. The overlap between the FL Act and State and Territory child welfare laws can result in there being multiple proceedings on foot in relation to the same family at the same time, or in rapid succession. This can be particularly problematic given the inherent vulnerability of the parties, particularly children whose welfare has already been compromised. Children may be required to give evidence in a number of proceedings, there may be delay or uncertainty with respect to their living arrangements and they may, in the interim, be exposed to risk of further abuse.335

  1. See D Kirkwood, Behind Closed Doors: Family Dispute Resolution and Family Violence (Domestic Violence and Incest Resource Centre, 2007) p 27.
  2. The Family Law Regulations 1984 provides that if, after considering certain prescribed matters, a family dispute resolution practitioner is not satisfied that family dispute resolution is appropriate, the family dispute resolution practitioner must not provide family dispute resolution: r 62(4). See Part 5, paragraph 5.2.59.
  3. Kaye et al, ‘Child Contact Arrangements’, op cit, pp 103-4, 111-2.
  4. In Australia, the Family Law Regulations require FDR practitioners to screen for domestic violence, and the FL Act allows a practitioner to certify that it is not appropriate for FDR to be attempted or to proceed. See, further: R Braaf and C Sneddon, ‘Family Law Act Reform: the potential for screening and risk assessment for family violence’ (Australian Domestic and Family Violence Clearing house, Issues Paper No 12, 2007).
  5. D Kirkwood, Behind Closed Doors, op cit; R Field, ‘Federal Family Law Reform in 2005: the problems and pitfalls for women and children of an increased emphasis on post-separation informal dispute resolution’ (2005) Queensland University of Technology Law and Justice Journal 28; R Field ‘A Feminist Model of Mediation that Centralises the Role of Lawyers as Advocates for Participants who are Victims of Domestic Violence’ (2004) 20 Australian Feminist Law Journal 65.
  6. L Moloney, B Smyth, R Weston, N Richardson, L Qu and M Gray, Allegations of Family Violence and Child Abuse in Family Law Children’s Proceedings: A Pre-Reform Exploratory Study (Australian Institute of Family Studies, 2007), p 100; A Shea Hart, ‘Children Exposed to Domestic Violence: Undifferentiated needs in Australian family law’ (2004) 18 Australian Journal of Family Law 170.
  7. The Australian Institute of Family Studies is undertaking an evaluation of the 2006 family law reform package on behalf of the Australian Government. The evaluation will assess how the new family law system is working, and how families are faring under thisnew system. See http: //www. aifs. gov. au/institute/research/projects. html (accessed 18 November 2008).
  8. Kaye et al, ‘Child Contact Arrangements’, op cit, 132.
  9. Moloney et al, Allegations of Family Violence, op cit; R Kaspiew, ‘Violence in Contested Children’s Cases: An empirical exploration’ (2005) 19 Australian Journal of Family Law 112, pp 122-3.
  10. Moloney et al, Allegations of Family Violence, op cit, p 84.
  11. Ibid, pp 87-91.
  12. Ibid, p 97.
  13. Ibid, pp 100 and 119; Kaspiew, ‘Violence in Contested Children’s Cases’, op cit, pp 122-3 and 128-9.
  14. See for example J McIntosh, ‘Thought in the Face of Violence: A child’s need’ (2002) 26 Child Abuse and Neglect 229; A Morrell, J Dai, S Dunn, I Sung and K Smith ‘Child Custody and Visitation Decisions When the Father Has Perpetrated Violence Against the Mother’ (2005) 11 Violence Against Women 1076; Sheehan et al, Children’s Contact Services, op cit; Kaye et al, ‘Child Contact Arrangements’, op cit, 93.
  15. For a discussion of post-separation violence associated with contact, see Rendell et al, An Unacceptable Risk, op cit.
  16. Kaspiew, ‘Empirical Insights’, op cit.
  17. Domestic Violence Act 1995 (NZ) s 19.
  18. Care of Children Act 2004 (NZ) s 60(3).
  19. Care of Children Act 2004 (NZ) s 60(4).
  20. See, generally, A Perr y, ‘Safety first? Contact and family violence in New Zealand: an evaluation of the presumption against unsupervised contact’ (2006) 18 Child and Family Law Quarterly 1.
  21. Kaspiew, ‘Violence in Contested Children’s Cases’, op cit, 136; B Fehlberg and J Behrens, Australian Family Law: The Contemporary Context (OUP, 2007) p 292.
  22. In this regard, it is important to note that recent research indicates that the proportion of allegations of family violence and Child abuse in FL Act proceedings which are clearly ‘false’ is small. However, some people face significant difficulties in adducing evidence of family violence in proceedings, particularly where they have not disclosed the violence previously to police, doctors etc. See, further: Moloney et al, Allegations of Family Violence, op cit.
  23. For more detailed discussion, see Family Law Council, Family Law and Child Protection: Final Report (September 2002).
  24. See for example the definitions of ‘family violence’ and ‘abuse of a child’ in s 4(1) of the FL Act.
  25. A Worrall, J Boylan and D Roberts, ‘Children’s and Young People’s Experience of Domestic Violence involving Adults in a Parenting Role’ (Social Care Institute for Excellence Research Briefing, June 2008); J McIntosh, ‘Thought in the Face of Violence’, op cit; L Laing, ‘Children, Young People and Domestic Violence’ (Australian Domestic and Family Violence Clearing House, Issues Paper No. 2, 2000); M Sudermann and P Jaffe (1999), A Handbook for Health and Social Service Providers and Educators on Children Exposed to Women Abuse/Family Violence, (Family Violence Prevention Unit, Health Canada) www.hcsc.gc.ca/hppb/familyviolence/html/children_exposed/english/index. htm.
  26. See, for example E Somer and A Braunstein, ‘Are Children Exposed to Interparental Violence Being Psychologically Maltreated?’ (1999) 4 Aggression and Violent Behaviour, 449-456; Sudermann et al, A Handbook, op cit.
  27. Jaffe et al, Making Appropriate Parenting Arrangements, op cit; VLRC, Family Violence, op cit, p 22.
  28. C Harris Johnson, ‘Familicide and Family Law: A study of filicide-suicide following separation’ (2006) 44(3) Family Court Review 448.
  29. See, for example, J Stewart, ‘Specialist Domestic/Family Violence Courts within the Australian Context’ (Australian Domestic and Family Violence Clearing House, Issues Paper No 10 2005) p 25; Moloney et al, Allegations of Family Violence, op cit. p 47; HonA Nicholson, CJ and M Harrison, ‘Family Law and the Family Court of Australia: Experiences of the First 25 Years’ (2000) 24 Melbourne University Law Review 756, 778.
  30. See further D J Higgins, Cooperation and Coordination: An evaluation of the Family Court of Australia’s magellan case management model (Australian Institute of Family Studies, October 2007).
  31. See, generally, F Kelly and B Fehlberg, ‘Australia’s Fragmented Family Law System: Jurisdictional Overlaps in the Area of Child Protection’ (2002), 16(1) International Journal of Law, Policy and the Family 38.
  32. Ibid.
  33. Ibid; Family Law Council, Family Law and Child Protection, op cit.

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