THE NORTH QUEENSLAND LAW ASSOCIATION
DELIVERED BY
JUSTICE ROBERT BENJAMIN AND FEDERAL MAGISTRATE
JOSEPHINE WILLIS
THE FAMILY COURT AND FEDERAL MAGISTRATES COURT OF
AUSTRALIA
“TYPES OF VIOLENCE, THOUGHTFUL OR POLITICALLY
CORRECT”
AT THE
SHANGRI LA HOTEL IN CAIRNS
CAIRNS, NORTH QUEENSLAND, 28-29 MAY 2010
28 MAY 2010
TYPES OF VIOLENCE, THOUGHTFUL OR POLITICALLY
CORRECT
Justice Robert Benjamin and Federal Magistrate Josephine Willis
The Tale of Two Margaret’s
In 1535 Margaret Neffield of York produced evidence to an ecclesiastical court
that her husband had once attacked her with a knife and another time with a
dagger, breaking her arm. The court held there were no grounds upon which
to grant her the only form of judicial separation then available. Her husband
had only acted for the purpose of “reducing her from errors”
Almost six centuries passed.
In 1980 in NSW another Margaret reported to the NSW Task Force on
Domestic Violence that after being punched to the head, knocked to the ground
and trampled on, “the police told me that as I had provoked the attack by
answering my husband back, the court would not look kindly on my action”
(editorial, Australian Dispute Resolution Journal, 1990, vo1, No.3).
Fortunately society’s view of violence has changed since then.
The sad reality, which the Family Court and the Federal Magistrates Court’s
are currently facing, is that parenting disputes now coming before the Court’s
routinely involve allegations of violence. The type of behaviour alleged and its
effect on children, in particular, is increasingly serious and concerning.
However, this is not something which is unique to Australian Courts. Family
Courts across the western world are experiencing almost identical challenges,
increasing caseloads, greater complexity, fewer resources, greater frequency of
self-represented litigants and a role that has evolved from pure adjudication to
1
managerial judging.
Although there is common concern about the impact of
family violence on its victims and their children there are differences,
sometimes based on politics and ideology about the causes, incidence and most
appropriate responses to family violence.1
Judges, social workers and lawyers need to look at the different types of
violence to gain insight and an understanding into why such violence occurs.
What is family violence?
Section 4 of the Family Law Act 1975 (Cth) defines family violence as:conduct, whether actual or threatened, by a person towards, or
towards the property of, a member of the person's family that causes
that or any other member of the person's family reasonably to fear
for, or reasonably to be apprehensive about, his or her personal
wellbeing or safety.
Note: A person reasonably fears for, or reasonably is apprehensive about, his or
her personal wellbeing or safety in particular circumstances if a reasonable
person in those circumstances would fear for, or be apprehensive about, his or
her personal wellbeing or safety.
What types of family violence are there?
In February 2007 a number of papers were delivered at the Wingspread
Conference where the social scientists and lawyers discussed the challenges
that family violence provides to those who practice family law. As Dr Altobelli
expressed in a paper given at that conference:-2
Everyone is conscious about the possibility of false denials and false
allegations.
In the maelstrom of daily practice it is a constant
challenge to keep up with changing legislation, case law and
procedures, let alone to access the social science research and
1
Altobelli Dr “Family Violence and Parenting: Future Directions in Practice” (2009) 23 Australian
Journal of Family Law at 194 – paper delivered by Dr Altobelli in academic rather than judicial
capacity.
2
Altobelli Dr, “Family Violence and Parenting: Future Directions in Practice, 11th Australian Family
Law Conference at 1– paper delivered by Dr Altobelli in academic rather than judicial capacity
2
literature which is so helpful when applied to the daily practice of
family law.
There is a common concern about the insidious impacts of family
violence on victims and their children.
There are differences,
sometimes based on politics and ideology, about the causes,
incidents and most appropriate response to family violence.
Amongst some of the papers delivered at the conference were three papers
presented by:• Nancy Ver Steegh & Clare Dalton, “Report from the Wingspread
Conference on Domestic Violence And Family Courts”, published
Family Court Review Volume 46 No. 3, July 2008 pp 454 to 475
(“Ver Steegh & Dalton’s report”),
• Joan B Kelly and Michael P Johnson, “Differentiation Amongst
Types of Intimate Partner Violence: Research Update and
Implications for Interventions”, published Family Court Review,
volume 46 No. 3, July 2008 pp 476 to 499 (“Kelly & Johnson
paper”), and
• Peter G Jaffe, Janet R Johnston, Clare V Crooks and Nicholas Bala,
“Custody Disputes Involving Allegations of Domestic Violence:
Toward a Differentiated Approach to Parenting Plans”, published
Family Court Review, volume 46, No. 3, July 2008 pp 500 to 522
(“Jaffe & Johnston’s paper”).
The authors of all three papers discuss the different types of family violence.
Kelly and Johnson identify family violence as falling into different patterns
such as:-
3
•
coercive, controlling violence;
•
violent resistance;
•
situation of couple violence;
•
situation instigated violence.
Coercive, Controlling Violence
Coercive, controlling violence is the description used by Kelly and Johnson in
their paper (supra). Jafee and Johnson, in their paper (supra), say that coercive
controlling violence is sometimes described elsewhere as battering or intimate
terrorism.3 Whichever description is used it is seen as an “ongoing pattern of
the use of threat, force, emotional abuse and other coercive means to
unilaterally dominate one partner and induce fear, submission and compliance
in the other”.4 “Its focus is on control for example by intimidation, emotional
abuse, isolation, minimizing, denying, blaming, using children, asserting male
privilege, economic abuse coercion and threats”.5 In a discussion of coercive,
controlling violence Kelly and Johnson say:• Abusers do not necessarily use all of these tactics, but rather use a
combination of the ones that they feel are most likely to work for them.
Because nonviolent control tactics may be effective, without the use of
violence (especially if there has been a history of violence in the past),
coercive controlling violence does not necessarily manifest itself in high
levels of violence.6
• Although this type of violence does not always involve frequent and/or
severe violence, on average its violence is more frequent and severe than
other types of intimate partner violence.7
• It is the combination of these higher levels of violence with the pattern
of coercive control which defines coercive controlling violence and
produces a highly negative impact on victims.8
• It in not unusual for victims of such violence to report that the
psychological impact of their experience as being worse than the
3
Jaffe P, Johnston J, Crooks C and Bala N, “Custody Disputes Involving Allegations of Domestic
Violence: Toward a Differentiated Approach to Parenting Plans”, published Family Court Review,
volume 46, No. 3, July 2008, 500 at page 501.
4
Ibid.
5
Altobelli Dr op cit at page 194.
6
Kelly J and Johnson M “Differentiation Amongst Types of Intimate Partner Violence: Research
Update and Implications for Interventions”, published Family Court Review, volume 46 No. 3, July
2008, 476 at page 481.
7
Ibid at page 482.
8
Ibid.
4
physical effect. The major psychological effects are fear, anxiety, loss of
self esteem, depression and post traumatic stress.9
• There is considerable evidence supporting the effects of such violence on
self esteem, much of which has been sourced from the services and
shelters that collect qualitative data from the victims.10
• Depression is considered to be the most prevalent psychological effect.11
Dr Altobelli, in his paper (supra) says coercive controlling violence is “possibly
the most insidious form of family violence that will be encountered in family
law practice”.12
Although physical violence may be present it is the
psychological effect on the victim and its impact on parenting that presents at
the foremost. Therefore the impact of coercive, controlling violence needs to
be identified and assessed at an early stage.
Violent Resistance
Violent resistance is one partner uses violence to defend themselves in
response to abuse by their partner. It is sometimes described as “Female
Resistance, Resistive/Reactive Violence and Self Defence”.13 The violence is
an immediate reaction to an assault and is primarily intended to protect oneself
or others from injury. However, there is a real risk that violent resistance to
coercive, controlling violence leads to more serious injury for the resister. Dr
Altobelli says the “importance of evidence about context in these situations is
self-evident”.14
Situational Couple Violence
Situational couple violence is partner violence that does not have its basis in
the dynamic of power and control.15 This is described by Jaffe and Johnson as
9
Ibid at page 483.
Ibid.
11
Ibid.
12
Altobelli Dr op cit at page 209.
13
Kelly et al op cit at page 479.
14
Altobelli Dr “op cit at page 204.
15
Kelly et al op cit at page 479.
10
5
conflict instigated violence.16 It is also known as situational or common couple
violence.
Kelly and Johnson make the following comments about this type of family
violence:Situational Couple Violence is the most common type of physical
aggression in the general population of married spouses and cohabiting
partners, and is perpetrated by both men and women. It is not a more
minor version of Coercive Controlling Violence; rather, it is a different
type of intimate partner violence with different causes and
consequences. Situational Couple Violence is not embedded in a
relationship-wide pattern of power, coercion, and control. Generally,
Situational Couple Violence results from situations or arguments
between partners that escalate on occasion into physical violence. One
or both partners appear to have poor ability to manage their conflicts
and/or poor control of anger. Most often, Situational Couple Violence
has a lower per-couple frequency of occurrence and more often involves
minor forms of violence (pushing, shoving, grabbing, etc.) when
compared to Coercive Controlling Violence. Fear of the partner is not
characteristic of women or men in Situational Couple Violence, whether
perpetrator, mutual combatant, or victim. Unlike the misogynistic
attitudes toward women characteristic of men who use Coercive
Controlling Violence, men who are involved in Situational Couple
Violence do not differ from non violent men on measures of misogyny.
Some verbally aggressive behaviors (cursing, yelling, and name calling)
reported in Situational Couple Violence are similar to the emotional
abuse of Coercive Controlling Violence, and jealousy may also exist as
a recurrent theme in Situational Couple Violence, with accusations of
infidelity expressed in conflicts. However, the violence and emotional
abuse of Situational Couple Violence are not accompanied by a chronic
pattern of controlling, intimidating, or stalking behaviours.
16
6
Jaffe et al op cit p501.
Situational Couple Violence is less likely to escalate over time than
Coercive Controlling Violence, sometimes stops altogether, and is more
likely to stop after separation.17
This type of violence is usually encountered in families before the Family Law
Courts. It is also the most prevalent form of family violence in the period
before separation. Whilst it is serious, and clearly has the potential to become
even more serious, it possibly allows for greater flexibility when developing
post-separation parenting arrangements.18
Separation Instigated Violence
Here violence is instigated by the separation itself in circumstances where there
has been no prior history of violence in the intimate partner relationship or in
other settings. These are unexpected and uncharacteristic acts of violence
perpetrated by a partner with a history of civilized and contained behaviour.19
Often it is an isolated act in reaction to stress during separation.20 This is
clearly a category of violence familiar to those who practice in the Court as this
passage from Kelly and Johnson demonstrates: …this is not Coercive Controlling Violence as neither partner reported
being intimidated, fearful, or controlled by the other during the
marriage. Separation-Instigated Violence is triggered by experiences
such as a traumatic separation (e.g., the home emptied and the children
taken when the parent is at work), public humiliation of a prominent
professional or political figure by a process server, allegations of child
or sexual abuse, or the discovery of a lover in the partner's bed. The
violence represents an atypical and serious loss of psychological control
(sometimes described as "just going nuts"), is typically limited to one or
two episodes at the beginning of or during the separation period, and
ranges from mild to more severe forms of violence.
17
Ibid pages 485-486.
Altobelli Dr op cit at 205.
19
Kelly et al op cit at page 487.
20
Jaffe et al op cit at page 501.
18
7
Separation-Instigated Violence is more likely to be perpetrated by the
partner who is being left and is shocked by the divorce action. Incidents
include sudden lashing out, throwing objects at the partner, destroying
property (cherished pictures/heirlooms, throwing clothes into the
street), brandishing a weapon, and sideswiping or ramming the
partner's car or that of his/her lover. Separation-Instigated Violence is
unlikely to occur again and protection orders result in compliance.
Unlike perpetrators of Coercive Controlling Violence, men and women
perpetrating Separation-Instigated Violence are more likely to
acknowledge their violence rather than use denial and are often
embarrassed and ashamed of their behaviors. Some have been caring,
involved parents during the marital relationship, with good parent–child
relationships. Their partners (and often the children) are stunned and
frightened by the unaccustomed violence, which sometimes leads to a
new image of the former partner as scary or dangerous. Trust and
cooperation regarding the children become very difficult, at least in the
shorter term.21
Not all families experience family violence in the same way, and not all family
violence is the same. Being able to differentiate families and differentiate
violence leads to the rejection of a “one-size-fits-all” approach to these cases.
It also means that judicial responses to family violence can be more nuanced
and more sophisticated.22
Differentiation
There are dangers in differentiation of violence. Some women’s groups are
concerned and apprehensive about the differential approach method. There is
also the risk of inaccurate differentiation with a risk of children becoming
alienated from a parent or insufficient regard taken in response to violence.
Dr Altobelli notes:-23
21
Ibid at page 487.
Altobelli Dr op cit at 205.
23
Ibid at page 206.
22
8
• Family violence is family violence, notwithstanding differentiation;
• Differentiation does not to scale the intensity of violence, which is
crucial.
Screening and Triage
The screening of violence was discussed by Jaffe and Johnston. They call it
the “PPP Screening”. They look at potency, pattern and primary perpetrator.
The factors are described as:-24
Potency
-
level of potency, the degree of severity, dangerousness, and
potential risk of serious injury and lethality – it is the
foremost dimension that needs to be assessed and monitored
so that protective orders can be issued and other immediate
safety measures can be maintained. Prior incidents of severe
abuse injuries inflicted on victims are an important indicator
of the capacity of an individual to explode or escalate to
dangerous levels.
In some cases, explosives or deadly
violence can erupt with little or no history of abuse, but other
warning signs are often evident.
Pattern
-
the extent to which the violence is part of a pattern of
cohersive control and domination (rather than a relatively
isolated incident) is a crucial indicator of the extent of stress
and trauma suffered by the child and the family and the
potential for the future violence. It also suggests what kind of
protective, corrective and rehabilitative measures to take …
Perpetrator -
whether there is a primary perpetrator of violence (rather than
it being mutually instigated or initiated by one or other party
in different occasions) will indicate whose access needs to be
restricted and which parent, if either, is more likely to provide
a non-violent home, other things being equal.
24
9
Jafee et al op cit at page 504.
The authors put in place a table which is particularly useful to practitioners. It
is the basis for the affidavit material for which the practitioners should put
before the court.
Table 1 – The PPP screening25
_______________________________________________________________
Part A: Potency of Violence (level of severity, dangerousness, or risk of
lethality)
1. Are there any threats of fantasies of homicide and/or suicide? If so,
does the person have a specific plan to act on them?
2. Are weapons available (guns, knives etc.), indicating the means are
accessible ?
3. How extreme was any past violence? Were injuries caused, and if so,
how serious?
4. Is the person highly focused upon/obsessed with the specific victim as a
target of blame?
5. Is there a history of mental illness – especially through disorder,
paranoia, or severe personality disorder?
6. Is the person under the influence of drugs or alcohol, indicating
diminished capacity to inhibit angry impulses? Is there a history of
substance abuse?
7. Does the person express a high degree of depression, rage, or extreme
emotional instability (indicating a propensity to act irrationally and
unpredictably)?
8. Is the party recently separated or experiencing other stressful events like
loss of job, eviction from home, loss of child custody, severe financial
problems, etc?
Part B: Pattern of violence and cohersive control
1. Is there a history of physical violence including: Destruction of
property; Threats (to hurt self or loved ones)? Assault or battery? Sexual
cohersion or rape?
25
Ibid at page 505.
10
2. Has there been disregard or contempt for authority (eg. Refusal to apply
with a court ordered or parenting plans, violation of protective orders, a
criminal record)?
3. How fearful and/or intimidated is the partner?
4. Is there a history of emotional abuse and attacks on self-esteem?
5. Does one party make all decisions? (eg. About social work, leisure
activities; how much money is spent; how the children are disciplined
and cared for; household routines and meals; personal deportment and
attire, etc)?
6. Has the partner been isolated/restricted from outside contacts (eg. with
employment, friends and family)?
7. Is there evidence of obsessive preoccupation with, sexual jealousy and
possessiveness of the partner?
8. After separation, have there been repeated unwarranted attempts to
contact the partner (eg. Stalking, hostage taking, threats or attempts to
abduct a partner or child)?
9. Have there been multiple petitions, litigations that appear to have for the
purpose of controlling and/or harassing?
Part C: Primary perpetrator indicators: who is the primary aggressor, if
either?
1. Who provides a more clear, specific and plausible account of the violent
incident(s)?
Who denies, minimises, obfuscates, or rationalises
incident? (The victim is more likely does the former; the perpetrator the
later).
2. What motives are used to explain why the incident(s) has occurred?
(Victims tend to use language that suggest they were trying to percale,
protect, avoid or stop the violence, whereas perpetrators are to control or
punish).
3. What is the size or physical strength of each party to the amount of
damage and injury resulting from the incident(s)? Does either party
11
have special training or skill in combat? (Perpetrators who are better
equipped are able to cause the greater damage).
4. Are the types of injuries or wounds suffered likely to be caused by
aggressive acts (the perpetrator) or defensive acts (the victims)?
5. If the injuries involve mutual combat, were the violent acts/injuries by
either one or the other party far in excess of that of the other? (Violent
resisters tend to assert only enough force to defend and protect, when
primary perpetrators retaliate, they are more likely to escalate the use of
force aiming to control and punish).
6. Has either party had a prior protection order issued against them –
whether in this or former relationship (indicating who was determined to
be the primary aggressor in the past)?
How to get the evidence of violence before the Courts
What is surprising is the lack of or poor level of evidentiary material to support
the allegations of violence. In a report prepared by the Australian Institute of
Family Studies in 2007, Moloney, Smith, Weston, Richardson, Qu and Gray26
observed that the “scarcity of supporting evidentiary material suggests that
legal advice and legal decision-making may often be taking place in the context
of widespread factual uncertainty”.27 Dr Altobelli in his paper (supra) suggests
that a number of factors may be interacting to cause these ambiguities for
example a victim not being ready to disclose at that time or a lawyer may not
be able to facilitate disclosure. If a disclosure is made the lawyer might ask for
more information which may or may not be forthcoming. The lawyer might
assess the evidence in their own mind, develop and test hypotheses about the
evidence and decide whether or not to present the evidence.
So why, as Dr Altobelli says, is there such a poor level of evidentiary material
to support or respond to allegations of family violence? He says the reasons
26
“Allegations of Family Violence and Child Abuse in Family Law Children’s Proceedings”. A Prereform Explanatory Study, Australian Institute of Family Studies, 2007, Melbourne.
27
Ibid at pages vii.
12
are complex and depends on the victim of family violence, the lawyer to whom
a disclosure is made and the context in which the victim and lawyer engage.28
What is essential in cases involving violence is the preparation and presentation
of evidence. The evidence must emphasise corroboration as the “cornerstone
of credibility.”29
Evidence-in-chief needs to be corroborated to support
findings. This can be achieved by the timely issue of a subpoena for police
records (contemporaneous reports to the police), health workers or social
services or the filing of corroborating evidence-in-chief. It is also essential to
file a Notice of Child abuse or Family Violence when making an allegation of
child abuse or risk of child abuse.30
How do Courts deal with parenting cases involving family violence?
When dealing with cases involving family violence there are two limbs of s
60CC of the Family Law Act 1975 (Cth) (“the Family Law Act) which the
Court’s must have regard to in determining whether a child should spend time
with one or sometimes both of their parents. The first is there a benefit to the
child/children of having meaningful a relationship with each parent.
The
second is the need to protect the child/children from physical or psychological
harm or from being exposed to abuse, neglect or family violence. It is the
interaction between those two limbs which the Court’s must balance when
dealing with allegations of family violence in parenting disputes.
An important tool which the Court’s are able to utilise when determining cases
involving parental violence is the Best Practice Principles. Essentially these
principles:• operate as a checklist of matters that may be considered when ordering a
family report or making orders.
28
Altobelli Dr op cit at page 196.
Ibid at page 211.
30
Under Section 67Z of the Family Law Act 1975 (Cth) it is compulsory for a party to file the Notice.
29
13
• contain matters a judge might wish to consider when he or she has made
a finding that family violence has occurred or that there is an
unacceptable risk of a child being exposed to family violence.
• address matters which a judge may wish to take into account, after
having determined that it is in a child’s best interest to communicate or
spend time with someone against whom a finding of family violence has
been made. These could include for example whether a parent should
spend supervised time with a child at a facility such as the Children’s
Contact Centre or whether the matter should come back before the court
in the future to assess whether the arrangements are working well.
One of the ways which the Courts have dealt with violence in parenting matters
is to make orders that the parent spend no time or supervised time with the
child. Supervised time is designed to promote safe contact between a parent
and a child where the parent is a risk to the child due to emotional or physical
abuse. It can also be appropriate where a child is fearful of a parent, because of
having been directly abused by that parent or having witnessed that parent
perpetrate abuse. The establishment of services such as the Children’s Contact
Centre provide a neutral alternative to family members or friends needing to
supervise time, especially in those cases where no agreement can be reached as
to who the supervisor should be. Supervised time is inappropriate where:-31
• a child/children demonstrate ongoing distress;
• where there is lack of any apparent benefit to the child in spending time
with the abusive parent.
• inadequate supervision.
• the child or parent needs more intensive therapeutic intervention; or
• where the parent with whom the child lives with remains distrustful and
wants supervision where no basis can be found for doing so.
In his article (supra) Dr Altobelli says that supervised time may be appropriate
in family violence cases where “there are high ratings on potency alone, or
31
Altobelli Dr op cit at page 218.
14
moderate-high ratings on potency pattern and primary perpetrator. Thus it
may be appropriate for abusive controlling relationships, or any form of
violence which is current or recent. It may be appropriate as a temporary
measure during assessment of family violence.”
32
Depending upon the
circumstances of a particular case it may also be appropriate for parents who
are mentally ill or are substance abusers and are receiving treatment. “It may
also be appropriate for children who have been traumatised by violence or
abuse but who want to contact or stand to gain from a parent’s continued
involvement in their lives”.33
There is a presumption in law that the best interests of a child will be promoted
by the child having a relationship with both parents. However, the time a child
spends with a parent may be suspended for a number of legitimate reasons for
example a child may be fearful of a parent due to exposure to family violence
or there is an ongoing risk of violence to the child or the non contact parent.
In these circumstances, the Courts may make an order that the child spend no
time with the perpetrator of the violence. It is of course, a matter of last resort
and should not be implemented just because supervision is not “conveniently
available or because a parent refuses to cooperate with supervisors of rails to
comply with an order”.34
An order for no time may be appropriate in
circumstances where:-35
• an abusive controlling parent shows no remorse or willingness to
change;
• a meaningful parent child relationship seems impossible;
• the child persistently refuses to attend or is continually distressed at the
thought of spending supervised time with a violent parent;
• the violent parent refuses to comply with the supervision order;
• there is a very high rating on potency, pattern and primary perpetrator
for example abusive controlling violence with threats or attempts to
32
Ibid at page 219.
Ibid.
34
Ibid.
35
Ibid.
33
15
abduct, hurt, kill, cause harm to the child, harass the other parent,
conviction of assault or homicide;
• the child is estranged because of past abuse or violence; or
• where there is untreated or untreatable severe current substance abusers
and acute mentally ill parents.
How have the Court’s Responded to the increase in parenting cases
involving Family Violence?
In the past the Family Court has been criticised for its handling of disputes
involving violence but is now seen in many quarters as playing a leading role
with its development of protocols and practices and has gone a long way to
raising the sensitivity and awareness of judges and court staff in relation to
family violence issues.
The Court’s have attempted to approach issues of conflict involving its clients
on a number of levels. In January 1993 Chief Justice Nicholson, as he then
was, commissioned a comprehensive review of the Courts family violence
policy.
As a consequence administrative directions were issued which
established the organisational principles for dealing with cases involving
family violence. This was complemented by guidelines developed for use by
registrars, counsellors and mediators in their daily practice.
Other practical steps included providing signs in all registries which
encouraged people to disclose any fear of violence to court staff, and the
inclusion of a segment on family violence and how the court can respond to it,
in the information sessions which clients must attend before filing an
application.
16
It also led to the implementation of the Family Court’s Family Violence
Strategy in 2004-2005.
This Strategy contains eight guiding principles
namely:1. Primacy of safety.
2. Recognition of the impact of family violence.
3. Recognition of the impact of violence on children.
4. Recognition of the diversity of court clients.
5. Risk assessment approach.
6. Importance of information provision.
7. Community partnership approach.
8. Importance of development programs.
It also contains five key action areas which are:1. Information and communication.
2. Safety.
3. Training.
4. Resolving the dispute.
5. Making the decision.
In 1995 mandatory reporting obligations were introduced, imposing a statutory
obligation upon court personnel to notify the relevant child welfare
departments when a party made an allegation of child abuse.
In the last
financial year 441 notifications were made through that process.36
Division 11 was also inserted into Part VII of the Family Law Act in that year
to resolve inconsistencies between “contact orders”, as they were then known,
under the Family Law Act and family violence orders made in state courts.
36
The Honourable Chief Justice Diana Bryant, Family Court of Australia “Best Practice and Recent
Experiences in Family Dispute Resolution” – presented at Family Violence Conference Towards Best
Practice Brisbane, Queensland, 1-3 October 2009 at page 2.
17
The list of “best interest factors” was amended to include specific reference to
family violence.
In 2003 a dedicated case management process known as Magellan was
introduced in relation to parenting disputes involving allegations of sexual
abuse or serious physical abuse of children. Every case within the Magellan
process is overseen by a team consisting of the Magellan Judge or Judge,
judicial associates, the Magellan Registrar, a Senior Family Consultant within
Child Dispute Services and a Client Service Officer who manage the case from
start to finish. This ensures continuity, expertise and a solid understanding of
all of the issues in the case. Significant resources are directed to these cases
with an aim to resolving them within six months.
In 2006 the Family Law Act was amended with the passing of the Family Law
Amendment (Shared Parental Responsibility) Act 2006.
The Explanatory
Memorandum and the Act made it clear that children should be safe from being
subjected to family violence and that this includes the harm caused to a child
by witnessing family violence. Section 60K of the Act imposes an obligation
on courts to take prompt action in cases of alleged family violence and abuse.
It also ensures that allegations of violence are brought to the Courts attention as
early as possible, so consideration can be given to orders being made to protect
parents and children and to enable appropriate evidence to be gathered.
A Safety at Court Protocol was also developed which contains a series of
defined steps which must be followed where it is brought to the court’s
attention that a client has safety concerns. Essentially this involves engaging
the client and providing information about support options, determining the
level of need, checking for a family violence order or Notice of Child abuse or
Family Violence and explaining the safety options available such as
familiarisation visits, separate waiting areas, separate interviews, staggered
arrivals and departures, telephone, video link or CCT attendance, security
guard escort, police attendance and the presence of a support person at court.
18
A Child Responsive Program was also introduced. In cases where family
violence has been identified prior to the matter entering the Child Responsive
Program a safety plan will be developed. However, there are safeguards in
place so even in cases where family violence has not previously been
identified, an intake and assessment meeting is conducted by the family
consultant with each parent separately to provide another opportunity to screen
for family violence. Risk assessments are undertaken by the family consultants
and when children are identified as being at risk of violence, the consultant will
make a notification to the relevant child protection agency.
More recently, in March 2009, the Family Court published Best Practice
Principles, which we have discussed earlier, for use in Parenting Disputes when
Family Violence or Abuse is alleged. These Best Practice Principles were
developed:in recognition and understanding of the devastating effects of family
violence and abuse on victims; in furtherance of the commitment of
the Family Court to protecting children and parents from harm
resulting from family violence and abuse37.
These Principles were developed having regard to the Court’s Family Violence
Strategy; the guidelines set out in the Court’s Magellan case management
system; and to meet the legislative recognition of the place accorded to family
violence under the Family Law Act.
Where to next?
Throughout its more than 30 year history, the Family Court has modified and
refined its approach to the management of disputes involving family violence38
and will continue to do so. Most recently the Attorney General has asked the
Australian Law Reform Commission and the New South Wales Law Reform
Commission to conduct an inquiry into the interaction between Commonwealth
and State laws, policies and procedures in the area of family violence. The
37
38
Preamble to the Best Practice Principles.
Ibid.
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Family Court will be making submissions to this inquiry. It will be interesting
to see what the Commissions findings reveal about the cause and effect of
family violence.
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