FAMILY VIOLENCE AND CHILD ABUSE UNDER AUSTRALIA’S FAMILY LAW ACT 1975 (Cth)

1. FAMILY VIOLENCE AND CHILD ABUSE UNDER AUSTRALIA’S FAMILY LAW ACT 1975 (Cth)

2. outline • relationship between family violence and child abuse • studies • children witnessing violence • effect • best interests of the child and relevant sections Family Law Act 1975 (FLA) • case law • reports and reviews • Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 (FVA) • useful references

3. relationship between family violence and child abuse • child abuse (c/a) and family violence (f/v) are closely linked (Laing, 2010) • two-thirds of separated couples in Australia cite f/v as cause of separation and one-third of those refer to severe f/v (Brown and Alexander, 2007) • between 30% and 70% of abused children (in all forms) will be simultaneously abused with their mother (Brown et al, 1998) • f/v was a factor in 52% of substantiated child protection cases in Victoria (DHS, 2008)

4. studies • 1998 study of 200 contested cases in FCA showed 50% involved f/v and/or c/a allegations (Brown et al, 1998) • 2003 study of 300 cases found that over 50% involved allegations of f/v or c/a (AIFS, 2007) • 2003 submission by FCA to parliament that 75% of judicially determined cases involved allegations of family violence (FCA, 2003) • similar trends post-2006 amendments to FLA ie over 50% of children’s cases involve f/v or c/a • post-2012 reforms?

5. children witnessing violence • approx one in four children in Australia have witnessed violence against their mothers or step-mothers (Indermaur, 2001) • in 2003 study, 68% of FCA contests and 48% of FMC contests involved allegations that children heard or saw f/v between their parents • in Personal Safety Survey 2005, victims reported that children were present in 49% of cases of f/v by current partner (ABS, 2006) • children who witness f/v experience emotional abuse (AIHW) • almost 24,200 children were recorded as present at f/v incidents attended by police in 2009/2010 (Vic Police)

6. effect • numerous studies confirm that children who witness or are exposed to f/v may have long-term trauma, delayed development in all spheres and sometimes irreparable harm • being directly or indirectly exposed to f/v between parents or high conflict is a form of child abuse

7. Family Law Act 1975 (Cth) • s 4(1) abuse, in relation to a child, means: (a) an assault, including a sexual assault, of the child; or (b) a person involving the child in a sexual activity …in which the child is used, directly or indirectly, as a sexual object … and where there is unequal power in the relationship …; or (c) causing the child to suffer serious psychological harm including … the child being subjected to or exposed to family violence; or (d) serious neglect of the child

8. definitions • s 4AB family violence means: (1) …violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member) or causes the family member to be fearful (2) examples of behaviour that may constitute family violence include … (a) an assault; or (b) a sexual assault …; or (c) stalking; or (d) repeated derogatory taunts; or (e) intentionally damaging or destroying property; or (f) intentionally causing death or injury to an animal

9. definitions (2) (g) unreasonably denying the family member financial autonomy … (h) unreasonably withholding financial support needed to meet the reasonable living expenses of the family member or child … (i) preventing the family member from making or keeping connections with family, friends or culture (j) unlawfully depriving the family member or any of his/her family of their liberty (3) … a child is exposed to family violence of the child sees or hears family violence or otherwise experiences the effects of family violence (4) examples of situations that may constitute a child being exposed to family violence include …’

10. objects and principles • s 60B(1) objects to ensure the best interests of children include (a) ensuring that children have the benefit of both their parents having a meaningful involvement in their lives … (b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence • s 60B(2) principles underlying these objects include (a) children have the right to know and be cared for by both their parents … (b) children have a right to spend time and communicate on a regular basis with both their parents … (c) parents jointly share duties and responsibilities concerning the care welfare and development of their children

11. how a court determines what is in a child’s best interests ‘twin pillars’ • s 60CC(2) the primary considerations are: (a) the benefit to the child of having a meaningful relationship with both parents (b) the need to protect the child from physical or psychological; harm from being subjected to, or exposed to, abuse, neglect or family violence • s 60CC(2A) if there is any inconsistency in applying the considerations in s 60CC(2), the court is to give greater weight to the consideration in para (2)(b) • s 60CC(3) thirteen additional considerations including (j) any family violence involving the child or a member of the child’s family (k) any family violence order that applies or has applied to the child or a member of the child’s family and any relevant inferences that can be drawn from the nature of the order; the circumstances in which the order was made; any evidence admitted …; any findings made by the court in proceedings for the order and any other relevant matter

12. equal shared parental responsibility(ESPR) • s 61DA presumption of equal shared parental responsibility is rebutted if (2) there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of a child) has engaged in abuse of the child …or family violence

13. case law Cases prior to Family Law Reform Act 1995 a. Early cases ‘he may be a violent husband but he’s a good father’ Heidt 1976 Dean 1977 Cartwright 1977 Chandler 1981

14. 1990s b. 1990s: period of enlightenment family violence between adults is relevant in children’s cases Merryman 1994 Jaeger 1994 JG and BG 1994 Patsalou 1995 ‘unacceptable risk’ M and M; B and B 1988 (High Court) UNCROC ratified

15. post-1995 and pre-2006 reforms Cases after 1995 amendments a. domestic violence is relevant to parenting capacity and specific parenting orders Blanch v Blanch and Crawford 1998 A and A 1998 M and M 2000 T and S 2001 T and N 2003 D and D 2005 and English Court of Appeal in Re L (a child)(Contact: DomesticViolence) V, M and H 2001

16. not so relevant … b. domestic violence is not so relevant Bartholomew and Kelly 2000 Grant and Grant 2001

17. post-2006 reforms Cases after Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) • ‘twin pillars’ andtension betweenright of child to have meaningful relationship with both parents and to be safe & protected from harm 2006 - Nawaqaliva and Marshall H and R 2007 - Mazorski and Albright Colson and Olds Murphy and Murphy (social science) Charles and Charles 2007 (‘knowingly’ for costs order)

18. post-2006 reforms 2008 - Shaw and Shaw (social science; different types of f/v)) Sabin and Francis Mills and Watson Dylan and Dylan (social science and UNCROC) Carlton and Carlton (social science; different types of f/v) Moose and Moose (‘knowingly’ for costs order; long-term supervision) 2009 - Oakley and Cooper (Best Practice Principles) Cabelka and White (social science) Maluka and Maluka (Best Practice Principles) Wood and Wood Amador 2010 - Many and Quebec Cameron and Walker (Best Practice Principles) 2011 - Brainard and Wahlen & Anor (exposing children to f/v) Quincy and Roberts (serious assault on child)

19. post-2012 reforms 2012 – Parish and Parish (‘low level’ f/v) Keaton and Mahoney (extreme f/v; brutality to children; diff types of f/v) Shergold and Clark (exposure to f/v) White and Mathers (unacceptable risk) 2013 – Hillier and Wootton (social science on BWS)

20. Best Practice Principles Following the UK’s Guidelines for Good Practice on Parental Conflict where there is Domestic Violence published in 2002, the Family Court of Australia published the Best Practice Principles for Use in Parenting Disputes when Family Violence or Abuse is Alleged in March 2009. A revised version and third edition was published by the FCA and the Federal Magistrates Court in 2012. This provides decision-makers, practitioners and litigants with practical guidance where there are issues of family violence or child abuse. These are not mandatory guidelines nor principles.

21. reports and reviews National Council to Reduce Violence against Women and their Children, Background Paper; The Cost of Violence against Women and their Children; Domestic Violence Laws in Australia and Time for Action: The National Council’s Plan 2009-2021, 2009 Chisholm, Family Courts Violence Review, 2009 Family Law Council, Improving Responses to Family Violence in the Family Law System: An Advice on the Intersection of Family Violence and Family Law Issues, 2009 Kaspiew et al, Evaluation of the 2006Family Law Reforms, AIFS, 2009 Bagshaw and Brown et al, Family Violence and Family Law in Australia: The Experiences and Views of Children and Adults from Families who separated Post-1995 and Post-2006, 2010

22. reports and reviews ALRC and NSWLRC, Family Violence: Improving LegalFrameworks, 2010 (consultation paper) ALRC and NSWLRC, Family Violence- A National LegalResponse, 2010 (report)

23. FVA 2011 reforms The Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 came into effect in June 2012. Reforms include • new definitions of ‘child abuse’ and ‘family violence’ • removed reference to test of ‘reasonableness’ • UNCROC added to s 60B objects • new s 60CC(2A) remedying any conflict between the two primary considerations • s 60CC(3)(c) ‘friendly parent’ provision repealed • courts must refer to evidence and findings in any state proective order proceedings • new provisions relating to state child protection/welfare law and relevant agencies • immunity to state child protection authorities if participating in family law proceedings • new obligations on advisers • notices about risk of f/v or c/a must be filed • s 117AB as to costs for ‘knowingly making false statements’ repealed

24. 2011 reforms are these enough? • no change to ESPR • no change to perception that shared care = equal care • no change to equal care as starting point if ESPR ordered • ignores research on shared care being detrimental to children is parents in conflict • courts will still ‘bend over backwards’ to establish or preserve relationship with ‘the poorest of parents’ (Wood and Wood 2005) • no preamble eg see Family Violence Protection Act 2008 (Vic) • no acknowledgement that family violence is gendered • no provision for use of social science and expert evidence about family violence or child abuse

25. useful references • T Altobelli, ‘Family Violence and Parenting: Future Directions in Practice’ (2009) 23 AJFL 194 • R Alexander, ‘Moving Forwards or Back to the Future? An Analysis of Case Law on Family Violence under the Family Law Act 1975 (2010) 16:2 UNSWLJ Forum 63 • T Brown & R Alexander, Child Abuse andFamily Law (Allen and Unwin,2007) • A Harland, D Cooper, Z Rathus and R Alexander, FamilyLaw Principles (Thomson Reuters, 2011) • P Parkinson, ‘The 2011 Family Violence Amendments: What Difference Will They Make?’ (2012) 22 Australian Family Lawyer 1 • Z Rathus, ‘Shifting the Gaze: Will Past Violence be Silenced by a Further Shift of the Gaze to the Future Under the New Family Law System’ (2007) 21 AJFL 58

26. useful resources • Australian Bureau of Health and Welfare • Australian Bureau of Statistics • Australian Domestic and Family Violence Clearinghouse • Australian Institute of Criminology • Australian Institute of Family Studies • AIFS, National Child Protection Clearinghouse • Family Violence Best Practice Principles (2012)