Domestic Violence, Child Protection & Family Law: Worlds Apart

1. Domestic Violence, Child Protection & Family Law: Worlds Apart Dr Elspeth McInnes AM University of South Australia 31 May 2012 Melbourne

2. Responding to DV • Domestic or family violence is the most common context of child abuse – long history of difference between child welfare and domestic violence services. • Domestic violence services:- • Believe and support women and their children. • Recognise that the perpetrator is ALWAYS responsible for their conduct. • Recognise that supporting mothers to be safe and recover is the best way to assist child victims. • Understand domestic violence is used to exert control over women and children. • Increasingly, violence against mothers is being systemically recognised as a child protection issue, BUT in child protection frameworks mothers are held responsible for the child’s situation.

3. What question are you asking? (Higgins & Kaspiew 2011) When separating parents raise allegations of child abuse, 5 bodies each have a different focus, addressing different questions or issues: • Statutory child protection departments: Are you a protective parent? Is the child currently safe? Does the situation meet the threshold for statutory intervention? • Children’s Court: Are you an adequate parent? What actions need to be taken to improve the parent’s capacity and ensure the child’s safety? • Police: Is there sufficient evidence of a crime for a conviction to be likely? • Criminal courts: Has the alleged crime been proved beyond reasonable doubt? • Family law system: What pattern of time spent with you and the child’s other parent (and under what circumstances) is in the child’s best interest? Is the child protected from harm under these arrangements? Are you a “friendly parent” (facilitating the child’s relationship with the other parent)? • None of these systems is focused specifically or exclusively on whether abuse occurred, or is it likely to occur (or recur). • In family law disputes, the following questions are central, yet are not necessarily directly covered by any of the relevant investigative agencies: • ..Is the child at risk of harm in the household of either parent (or other caregiver)? • ..Would the child be safe if he/she was to spend time unsupervised with the parent against whom allegations of abuse have been raised?

4. State law looks Backwards State & territory child protection law is • Retrospective and focused on past events of alleged child abuse. • Adversarial – workers to support families may need to remove children into care, or threaten to do so if conditions are not met. • Forensic – Child removal to care requires evidence which can be presented to a court. • Short-term – interventions are aimed at restoring family function as quickly as possible with intervention orders only lasting for 6 or 12 months.

5. Family law looks Forwards Family law is • Prospective – what future arrangements will be in the child’s best interests? • Civil & private – the parties in dispute seek court determination of their dispute and provide the evidence in support of their case without involvement by the Crown or any other external investigator. • Past conduct is not seen as indicative or determinant of future conduct. • Long-term – Final orders are aimed at long term arrangements where the parties will not need to return to the court unless there is a substantial change of circumstances.

6. Contradictions for Protective Parents • In some states Police are required to report to child protection when they attend a domestic violence incident with children present. • Exposure to domestic violence is typically recorded as ‘emotional abuse’ and mothers, who are victims of the violence, are primarily recorded as the perpetrators of ‘emotional abuse’ because they are held responsible for choosing to stay in the violent relationship. • Emotional abuse was the most commonly substantiated form of abuse in Australia • (Child Protection Australia 20010-11 AIHW).

7. Protect Children or Lose Them • The outcome for mothers living with family violence and/or child abuse is that they become recorded as emotional abusers and state child protection agencies threaten to remove children if they do not end the relationship. • Under the Family Law Act 1975 Shared Parental Responsibility changes of July 2006 decision makers must apply a rebuttable presumption of equal shared parental responsibility (S 61 DA, under which they MUST consider the maximum time possible with each parent, or substantial or significant time (S65DAA).

8. Family Court and Federal Magistrates Court • Division 12 A :A Less adversarial approach ––unless notice of risk of abuse – Form 4 • If Form 4, will invoke a Section 60CC consideration – 8 week period to hearing. Section 69ZW allows court to order relevant state agency data from health, child protection and police. • 2 courts – Federal Magistrates Court (FMC) – default stream: and Family Court of Australia (FCA) – complex cases: Magellan = serious abuse cases. • Shea –Hart (2006) study of 20 Magellan judgments concluded the following: • ‘The dominant discourses, which were predominantly, but not exclusively relied on by judges and social scientists who provided evidence to the Court, served to justify a number of failures in the decisions said to be made in children’s ‘best interests’. In the majority of cases these included a failure to centralise children’s exposure to domestic violence, to identify child victim’s special needs, and to question the fathering capacity of violent men.’

9. Child Abuse claims in the Family Law System • When an allegation of child abuse is made the alleger may request that their lawyer File a Form 4 Notice of Risk of Abuse => referred to state department for investigation (often no active investigation takes place due to tier screening and is returned ‘unsubstantiated.’) • Courts appoint an Independent Children’s Lawyer (ICL) to arrange a family report prepared by a family consultant who will often be a social worker or psychologist. (Only clinical psychologists and psychiatrists are qualified to make diagnoses of mental illness). • The report writer normally meets separately with each parent in the company of the child for an hour or so. This report ordinarily carries the most weight with the court as it is seen to be independent.

10. ‘Unacceptable Risk’ • Family law judges are directed to avoid making findings of a criminal nature as they are not criminal courts. • Family law has not taken account of uncontested DV orders as they have not been tested in court (This changes June 7). • Violence and abuse towards the mother is not ordinarily recognised as relating to capacity and safety as a father. • Child protection substantiation of child abuse allegations can be rejected by judicial decision-makers on the basis that the accused has not had access to natural justice processes. • Judicial decision makers may find an ‘unacceptable risk’ is present where they have evidence, such as criminal convictions or perpetrator admissions, that a parent has behaved in ways that could present a risk of harm to the child/ren.

11. 15 March 2012 Herald Sun THE Family Court has ordered an 11-year-old girl to spend time with her sex offender father even though she is at risk of being abused by him. The father's victims includes a person with an intellectual disability and several members of his own family. …Justice Anne Rees ordered the father be allowed to spend alternate Sundays, Father's Day and Christmas Day with his youngest daughter, as long as the visits are supervised by his partner and his mother."I am satisfied that there is a risk that K will be sexually abused by her father if she is in his care," Justice Rees said. …Justice Rees rejected the father's application for equal shared parenting of K, ordering limited supervised contact. "Having determined that there is a risk to K in the care of her father, I must determine whether that risk is unacceptable," the judge said. "That involves the exercise of balancing the benefits to K of having an ongoing loving relationship with her father and the paternal family against the risk that she will be sexually abused by her father. "The balance is fine but it is the comfortable certainty of vigilant supervision by (his current partner) and the paternal grandmother which persuades me that the balance tips in favour of supervised time for K with her father."

12. Robins  & Ruddock [2010] FamCA 35 (22 January 2010); • Father’s convicted of possessing child pornography and placed on the child sex offender register. He had been restrained previously from sharing his bed with his own daughters (10 & 8) and had been seen standing over a step- child with her pants down and with an erection, masturbating . • The family report writer, Dr R -neither child should have unsupervised overnight time with the father, although there is no reason why they ought not to have unsupervised day time with the father. When questioned about this Dr R said:- • that the children are at an age and maturity where when awake, dressed and together it would be unlikely that the father would act inappropriately towards them. However, at night when they were perhaps asleep or partly asleep and not aware of each other’s whereabouts they would be less secure.

13. Child’s views • The child protection worker,Ms SA provided the following statement: • A indicated that she did not want to spend time alone with her father. We asked her why she didn’t and she said “because of what I told the police”. “I do not like it. It makes me feel weird”. “I don’t want to be alone with him”. She kept repeating “please don’t tell Dad”. • PAR 89:Before the interview Ms SA had concerns about the mother’s bona fides with regard to A’s alleged disclosure. After the interview Ms SA formed a professional view that something had happened to the child. It was Ms SA’s professional opinion was that there were no signs that A had been coached.

14. Assessing Evidence • Par 100:Ms ML’s affidavit[10] was admitted into evidence without controversy. It was indicative of the father being aggressive and violent up to 2007. The evidence is of little value • Par 115: However, I am satisfied that the father invited A into his bed and that A felt uncomfortable and that the father demonstrated affection towards her, in a way which was in all the circumstances inappropriate for a child of that age and in those circumstances. Accordingly I am satisfied there needs to be a measure of protection put in place for these children in terms of their time with the father.

15. Need for Protection • PAR 117:The father has extensive experience in dealing with children at risk bearing in mind the family’s involvement with foster care over a significant period of time. • I am satisfied that there needs to be supervision at the home when the children sleep over. I am satisfied that there needs to be a door on the children’s bedroom which is capable of being shut at the request of the children. They should at least, until the youngest is 14, share the same room so that they can have the mutual support of one another. Such a finding predicates against equal time and against equal shared parental responsibility.

16. Findings • PAR 122 :I accept that the father is a forceful, dominant person who is keen to argue his case and has a very powerful personality. The mother on the other hand seems somewhat timid and self effacing. She is not a forceful person. • Par 151 I am satisfied that it is important that the children have a meaningful relationship with both parents. The children have a close bond with their parents and love them and enjoy their time with them. • Par 165 The mother obtained a family violence order against the father in 2007. While I am critical of the mother in relation to using that application instead of an application to the Federal Magistrates Court or the Family Court, I accept her evidence as to her sense of frustration and concern for her children arising out of the events over the preceding year. • Par 167: As discussed earlier the mother obtained a family violence order against the father in 2007. The order was in force for a period of twelve months and has expired. I give it little weight in the circumstances of this case.

17. Result • Par 168: Because of the close bond between the children and their father I have reached the conclusion that the best interest of A and M are most likely to be served by an order that the father spend time with the children, but that any overnight time be supervised by another adult. This will address A’s nervousness in relation to spending unsupervised overnight time with the father. • Par 175 I propose to order the children spend each alternate weekend with the father from after school Friday until the commencement of school Monday (or Tuesday if Monday is a pupil free day). I will provide that the children spend half their school holidays with the father. However, there will need to be someone supervising the father when the time is to be overnight. That can be an adult friend, it just needs someone else in the home of whom the children have some knowledge of and regard to. The mother should know who that person is.

18. What we know • The father is a convicted child sex offender with queries about sexual activity with his children and step-children. • He is a foster care provider • He is forceful and controlling and previously subject to an AVO • His daughter doesn’t want to be alone with him and is frightened of him.

19. The Consequences of the Judgement • The 10 and 8 year old have to regularly spend time with the abusive controlling child sex offender. • The children are responsible for staying awake and together to prevent their molestation by their father. • The father is supposed to provide the means for the children to secure their bedroom – which could lock them in. • The adult supervisor who is an adult friend of the father could be a child sex offender. • The issue of the children’s subjection to the manipulative attention of the offender is invisible.

20. What is Revealed • Illustrates the ‘risk management’ approach to children’s safety. • Reveals the reality that even where child sex offending is proved, children are ordered into paedophile ‘care’. • Shows assumption that children’s disclosures are coached. • Reveals judicial disregard of AVOs and violence against women. • Reveals how children’s fear of the father becomes a ‘close bond’ in judgement. • Reveals the absence of any consideration of the psychological impact of the girls’ exposure to the manipulative attention of the child sex offender.

21. What needs to change? • Structured decision making needs to force judges to screen and assess for violence and abuse and prioritise safety. • When an abusive parent uses physical or sexual abuse, safety must mean no face to face contact.

22. Family Violence and Family Law Services Research • 1100 adults (90%) and children (10%) answered a survey and phone in to identify how family violence impacts on access to the family law system, the decisions they make and shared parenting arrangements. • 913 adult survey responses: 236 men 677 women • The study identified that family violence affected parents’ decisions about accessing the family law system, their decisions within the system and their post-separation parenting arrangements. • 85% of women and 56% of men said there was violence or child abuse during their former partnership but women were much more likely than men to report serious physical sexual psychological and controlling violence and abuse, men were more likely to report verbal emotional and psychological abuse.

23. Gender differences in Violence • Women were more likely than men to be afraid for themselves and their children due to ongoing physical sexual psychological and emotional violence against them. • Men were most concerned about obstructions to seeing their children and false allegations of violence against them and saw these as expressions of violence against them. • 34% of women and 19% of men felt that their reports of violence were believed.

24. Children’s Experiences • Most child respondents said violence experiences had reduced for them after separation, especially when only one parent was violent. • 39% of surveyed children said they did not feel safe with their father after separation and just under 10% did not feel safe with their mother.

25. Use of Services • 3.5% of respondents, mostly women, avoided all services due to fear. • 82% voluntarily used services after separation and began with services outside the family law system. • 78% used family and friends • 58% used GPs • Mothers mainly had contact with Centrelink for financial support • Fathers mainly had contact with the Child Support Agency.

26. Legal System Use • 74%of survey respondents went to a lawyer. • 50% of survey respondents had been to court • After the 2006 changes lawyers gave advice that raising unproven allegations of violence could cause them to be poorly regarded in court. • Lawyers also gave advice of equal time with each parent being considered and the penalties for falsely alleging violence. • Only 10% of post-2006 separated parents surveyed who disclosed family violence said they were exempted from mediation.

27. FRC Critiques • 40% of surveyed parents with a history of FV did not disclose. • Parents said FRC staff did not understand the nature and effects of FV • Parents said FRC staff were unable to counter the dominant use of power by violent ex-partners.

28. Court Critiques • Felt disbelieved, ignored minimised around the issue of violence • Lack of serious investigation of violence or abuse claims by report writers and court experts • Judges ignoring the issue of violence as well as state DV orders and child protection orders • Men were more likely to be satisfied by court action than were women.

29. Consequences • 68.7% of women and 52.2% of men said the consequences of FV was they could not achieve suitable and safe arrangements for themselves and their children after separation. • For those who separated after 2006, 54% of women and 47% of men said the coexistence of family violence, mental illness and substance abuse were not recognised. • Women reported children’s increased exposures to serious violence after the 2006 changes. They were much more concerned about the developmental impacts of violence on children. Men were concerned more about the emotional impacts on children and did not have any consciousness of child development.

30. FAMILY LAW DISASTER CONTINUES • Increased continuing exposures to family and domestic violence post separation. • Increased deaths injuries and harms to children from abusive parents after separation (egDarcey Freeman, ImranZilic, Farquharson children). • Developmental harms to children arising from disregard for attachment and exposures to violence.

31. 2011 amendments commencing June 7 2012 • Prioritise the safety of children in parenting matters • Broader definitions of abuse and family violence. • Strengthen obligations on family law system professionals to prioritise children’s safety. • Give courts better access to evidence of abuse and family violence through improved reporting requirements. • Make it easier for participation of state/territory child protection in family law proceedings where appropriate.

32. Defining child abuse • abuse, in relation to a child, means: (a) an assault, including a sexual assault, of the child; or (b) a person (the first person) involving the child in a sexual activity with the first person or another person in which the child is used, directly or indirectly, as a sexual object by the first person or the other person, and where there is unequal power in the relationship between the child and the first person; or (c) causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence; or (d) serious neglect of the child.

33. New Family Violence Definition • For the purposes of this Act, family violence means 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. Examples of behaviour that may constitute family violence include (but are not limited to): (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; or (g)unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or (h) unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or (i) preventing the family member from making or keeping connections with his or her family, friends or culture; or (j) unlawfully depriving the family member, or any member of the family member’s family, of his or her liberty.

34. How the court determines a child’s best interests S 60CC • The primary considerations are: (a)  the benefit to 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 violence 2011 changes would prioritise safety where these considerations are inconsistent.

35. S 60 CC Other considerations • Child’s views • Each parent’s relationship with the child • the willingness and ability of each of the child's parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent (To be repealed under 2011 changes) • The likely effect of change or separation on the child • The practical difficulty and expense of the child spending regular time with each parent • The capacity of each parent to provide for the needs of the child, including emotional and intellectual needs • The parents’ and child’s characteristics (age, sex, maturity, culture) • Parents’ attitudes to and fulfilment of parental responsibility – spend time, communicate with child, and involvement in key decisions • Any family violence and any final family violence orders (delete adjective final in 2011 changes)

36. Requirement to Disclose Child Welfare Involvement • New obligations on parties to inform the court about risks to the child or another child of the family: whether the child has been subject of a care order, notification or investigation under state child welfare laws. • 2006 introduced compulsory costs orders against people knowingly making false allegations: 2011 changes this to court’s discretion.

37. Continuing Problems • No capacity to properly investigate child abuse allegations. • Spurious use of mental illness labels when mothers allege child abuse. • Pressure on mothers to withdraw allegations or lose residence. • Refusal of legal aid where mothers are designated ‘mentally ill’ by unqualified ‘experts.’ • Systemic risk of corruption where ICLs can select favourite report writers.

38. Child safe family law • Let’s advocate for the family law system to be a system of child-safe organisations http://www.childsafe.org.au/a-childsafe-organisation/ • All professionals involved in children’s matters should be subject to a working with children check screening for charges or convictions of violence or child abuse. • Legislation should require decision-makers to adhere to the standards of ‘working-with-children’ checks when determining arrangements for children so that children are not placed in the care of people who would be barred from working or volunteering with children.

39. References • Bagshaw, D., Brown, T. , Wendt, S., Campbell, A., McInnes, E., Tinning, B., Batagol, B., Sifris, A., Tyson, D., Baker, J., Fernandez Arias, P. 2010 Family Violence and Family Law in Australia: The Experiences and Views of Children and Adults from Families who Separated Post-1995 and Post-2006, Attorney-General’s Department, Canberra. http://www.ag.gov.au/www/agd/agd.nsf/Page/Families_FamilyRelationshipServicesOverviewofPrograms_ResearchProjectsonSharedCareParentingandFamilyViolence • Higgins, D. & Kaspiew, R. 2011 Child Protection and Family Law, Joining the Dots. National Child Protection Clearinghouse Issues Paper No. 34 Melbourne: AIFS. • Shea-Hart, A. ( 2006) Children Exposed to Domestic Violence: Whose‘Best Interests’ in the Family Court?, Adelaide: Thesis for University of South Australia School of Social Work and Social Policy.