Archives
Violence allegations in parenting disputes: Reflections on court-based decision making before and after the 2006 Australian Family Law reforms
Lawrie Moloney
School of Public Health, La Trobe University; Australian Institute of Family Studies, Melbourne VIC
Abstract
In this article I address the issue of support for decision making in cases of alleged violence in Australian family courts. I focus first on results from a 2007 Australian Institute of Family Studies Research Report, which examined cases of violence and abuse alleged prior to the implementation of the Commonwealth Government's 2006 Family Law Amendment (Shared Parental Responsibility) Act (the reforms).
A key finding of the Report was that although allegations were common and often serious, they appeared to have only minimal impact on court sanctioned parenting outcomes. The seemingly minimal impact appeared, in turn, to be linked to scarcity of detail within the allegations, combined with little corroborative or independent expert evidence.
As a backdrop against which to consider post reform possibilities, I draw on
five published responses to the AIFS Report as well as on key observations
emanating from the North American Wingspread Conference on Domestic Violence
and Family Courts. I acknowledge a number of Australian reform-related initiatives
that are aimed at responding more adequately to allegations of violence and
abuse.
But I argue that the impact of these initiatives will be constrained by the extent to which courts have access to good information and assessments. When this is unavailable at interim hearings, I support those who argue that the default position of courts must be to adopt an initial risk management approach that privileges safety over relationships, and to follow this up as quickly as possible with services that can provide quality independent information.
But I argue further that a truly effective
family law system should be one in which independent forensic assessments, or
at least good independently derived information, is available to courts right
from the beginning.
While it is too early to argue definitively that the reforms cannot achieve the goal of responding adequately to allegations of violence and abuse, I point to ongoing structural and resource reasons that are likely to make this difficult. I conclude by pointing to structural and resource-based changes, which may eventually prove necessary to address this problem.
Keywords
family violence, child abuse, Family Law decisions, family law forensic services, family dispute resolution, parenting after separation
References
Australian Institute of Family Studies (2007) Evaluation of the family law reform package. Family Matters 77: 39-42.
Bailey A (2007) Separating safety from situational violence. Responses to allegations of family violence and child abuse in family law children's proceedings: A pre-reform exploratory study. Family Matters 77: 26-27.
Bala N (2008) An historical perspective on family violence and child abuse. Comment on Moloney et al, Allegations of Family Violence, June 12 2007. Journal of Family Studies 14(2-3).
Bass E and Davis L (1988) Courage to heal: A guide for women survivors of childhood sexual abuse 1st edn. New York: Perennial Library.
Behrens J (2006) Barriers to meeting the needs of victims of domestic violence in the family law system. In Smyth B, Richardson B and Suriano G (eds) Proceedings of the International Forum on Family Transitions, pp.231-234, Australian Institute of Family Studies, Melbourne VIC.
Bickerdike A (2007) Implications for family dispute resolution practice: response from Relationships Australia (Victoria) to the Allegations of family violence and child abuse in family law children's proceedings report. Family Matters 77: 20-25
Brown T, Frederico M, Hewitt L and Sheehan R (1998) Violence in families: Report number one: The management of child abuse allegations in custody and access disputes before the Family Court of Australia. Family Violence and Family Court Research Program, Monash University and Australian Catholic University, Melbourne VIC.
Cleak H, Bickerdike A and Moloney L (2006) Women's services' perceptions of and referral to family mediation. Journal of Family Studies 12(2): 184-202.
Dalton C (1999) When paradigms collide: Protecting battered parents and their children in the Family Court system. Family and Conciliation Courts Review 37: 273.
Ellis D (2008) Divorce and the family court. What can be done about domestic violence? Family Court Review 46: 531-536.
Family Court of Australia (2004/5) Family Violence Strategy. Family Court of Australia, Canberra ACT.
Family Court of Australia (2007a) Implications of the Australian Institute of Family Studies 'Allegations of family violence and child abuse in family law children's proceedings' report. Response from the Family Court of Australia. Family Matters 77: 16-17.
Family Court of Australia (2007b) Trial and case management pathway.
Accessed at http://www.familycourt.gov.au/presence/connect/www/home/publications/
papers_and_reports/presentations/presentation_Trial_and_CM_Pathway
on 24 May 2008.
Family Law Council (2002) Family law and child protection. Final report. Canberra: Commonwealth of Australia.
Family Law Courts (undated) Fact Sheet: Compulsory Dispute Resolution - Court Procedures and
Requirements. Accessed at
http://www.familylawcourts.gov.au/wps/wcm/connect/FLC/Home
/Publications/Family+Law+Courts+publications/Compulsory+Family+Dispute+
Resolution+%E2%80%93+court+procedures+and+requirements
on 24 May 2008.
Federal Magistrates Court (2007) Federal Magistrates Court response to the Australian Institute of Family Studies 'Allegations of family violence and child abuse in family law children's proceedings' report. Family Matters 77: 18-19.
Frederick L (2008) Questions about family court domestic violence screening and assessment. Family Court Review 46: 523-530.
Gribben S (1994) Violence and family mediation: Practice. Australian Journal of Family Law 8(1): 22-39.
Higgins D (2007) Cooperation and coordination. An evaluation of the Family Court of Australia's Magellan case management model. Family Court of Australia/Australian Institute of Family Studies, Melbourne VIC.
Jaffe P, Crooks C and Bala N (2006) Making appropriate parenting arrangements in family violence cases: Applying the literature to identifying promising practices. Accessed at http://www.justice.gc.ca/en/ps/pad/reports/2005-FCY-3/2005-FCY-3E.pdf on 30 April 2007.
Jaffe P, Johnston J, Crooks C and Bala N (2008) Custody disputes involving allegations of domestic violence: Towards a differentiated approach to parenting plans. Family Court Review 46: 500-522.
Johnson M (2005) Domestic violence: It's not about gender-or is it? Journal of Marriage and Family 67: 1126-1130.
Johnson M and Ferraro K (2000) Research on domestic violence in the 1990s: Making distinctions. Journal of Marriage and Family 62: 948-963
Johnston JR (2006) A child-centered approach to high conflict and domestic violence families: Differential assessment and interventions. Journal of Family Studies 12(1): 15-36.
Johnston J, Lee S, Olesen N and Walters M (2005). Allegations and substantiations of abuse in custody-disputing families. Family Court Review 43(2): 283-294.
Kaspiew R (2008) Family violence in children's cases under the Family Law Act 1975 (Cth) - past practice and future challenges. Journal of Family Studies 14(2-3).
Kelly J and Johnson M (2008) Differentiation among types of intimate partner violence: Research update and implications for interventions. Family Court Review 46(3): 476-499.
Kirby M (1985) Psychology and evidence law reform, in Nixon M (ed) Issues in Psychological Practice, pp.93-106, Longman Cheshire, Melbourne VIC.
Keys Young 1996 Research/Evaluation of Family Mediation and the Issue of Violence: Final Report. Attorney General's Department, Canberra ACT.
Moloney L, Smyth B, Weston R, Richardson N, Qu L and Gray M (2007) Allegations of Family Violence and Child Abuse in Family Law Children's Proceedings. A Pre-reform Exploratory Study. Australian Institute of Family Studies, Melbourne VIC.
Pizzey E (1973) Scream Quietly or the Neighbours Will Hear. London: Enslow Publishers
Rose P (2007) The road to less adversarial trials and beyond. Australian Journal of Family Law 21(3): 232-251.
Salem P and Dunford-Jackson BL (2008) Beyond politics and positions: A call for collaboration between family court and domestic violence professionals. Family Court Review 46(3): 437-453.
Scutt J (1983) Even in the Best of Homes: Violence in the Family. Penguin, Melbourne VIC.
Ver Steegh N and Dalton C (2008) Report from the Wingspread Conference on Domestic Violence and Family Courts. Family Court Review 46(3): 454-475.
Walker L (1979) The Battered Woman. New York: Harper & Row.
Weinstein J (1997) And never the twain shall meet. The best interests of the child and the adversary system. University of Miami Law Review 52: 79-175.
eContent Home