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Cite as: March 2015 89 (3) LIJ, p.42

Changes to family law legislation have prioritised the safety of the child. This article explores decisions handed down following the reforms and identifies several themes that have emerged in post-reform family law decision-making.

By Anna Parker and Dr Adiva Sifris

The Family Law Amendment (Family Violence and Other Measures) Act 2011 (Cth) (the FV Act) commenced operation on 7 June 2012. This legislation, which amended the Family Law Act 1975 (Cth) (the Act), was designed to improve the manner in which the family law courts deal with cases involving family violence and abuse.

The amendments

The FV Act was introduced in response to a number of reports suggesting that issues of family violence and abuse were not well understood or adequately managed within the family law system.1 The amendments to the Act introduced by the FV Act included expanding the definitions of family violence and child abuse. Family violence now includes a wide range of threatening behaviours, such as stalking, repeated derogatory taunts and intentionally causing death or injury to an animal. Exposure to family violence includes situations when a child sees, hears or experiences family violence. The definition of child abuse now incorporates psychological harm as well as serious neglect of a child.2

Prior to the enactment of the FV Act, there was no direction as to how ensuring that parents have a meaningful involvement with their children would be balanced against protecting the children from harm. The amended legislation clearly directs the courts to prioritise the protection of children from harm over the promotion of a meaningful relationship with both parents. This is particularly important in the context of the two “primary considerations” relevant to the determination of a child’s best interests.3 The legislation also repealed provisions which were seen to discourage disclosure of violence and abuse, including the controversial “friendly parent” provision, which required the court to consider the willingness and ability of each parent to encourage a close and continuing relationship between a child and the child’s other parent.

Themes from post-reform cases

A number of themes can be identified in family law decisions following the enactment of the reforms. Three of those themes are explored in this article – the extent of prioritisation of the protection from harm over meaningful relationships, the refusal on the part of the courts to make orders for equal shared parental responsibility, and detailed consideration of the context and type of family violence involved.

Prioritisation of protection from harm

A number of post-reform judgments have emphasised the importance of the amendments providing that protection of children from harm is to be prioritised over meaningful relationships. For example, in McAllister & Day,4 a case in which the mother alleged serious family violence, threats and coercion, Brown FM expressed the view that by virtue of s60CC(2A), children’s safety had become the Court’s priority.5 In Bell, a case in which the mother faced serious allegations of physical violence and verbal abuse towards the father and his new partner, Pascoe CFM noted that “[t]he new family violence provisions require the Court to give greater weight to the s60CC(2)(b) factors rather than merely balancing them against the s60CC(2)(a) considerations”.6

What has been the practical effect of these amendments? The extent to which protection from harm has been prioritised over “meaningful relationships” has been mixed. Some cases indicate that “meaningful relationships” continue to be given significant weight. For example, in Labine7 the mother alleged that the father was prone to violent outbursts and abusive language and the Court described violence as a “corrosive threat to the emotional well being of children”.8 Brown FM nevertheless allowed the children to stay overnight with the father and in so doing emphasised that the reforms did not mean that “the Court must disregard the benefit of a child having a meaningful level of relationship with both parents, even in cases where there are concerns pertaining to family violence”.9 These cases reflect Strickland J’s view that “the reallocation of priorities in the primary considerations has not been accorded the significance that one might expect it would be”.10 However, on a positive note, there have been other cases where the protection of children from harm has been given priority over meaningful relationships, to the extent that a violent parent has been given no time with their children or had their time significantly curtailed.11 These decisions may reflect a trend towards decision making which accords more fully with the intention of the amendments, which are quite clearly to prioritise the safety of children.

Refusal to make orders for equal shared parental responsibility

Prior to the enactment of the FV Act, concerns had been raised as to the frequency with which orders for equal shared parental responsibility were made in cases with features of family violence.12 Such orders were made despite the fact that the presumption of equal shared parental responsibility did not apply in circumstances of violence.13 Although orders for equal shared parental responsibility have continued to be made in cases involving serious issues of violence, including cases in which the presumption has not been applied because of violence,14 the post-reform cases suggest that sole parental responsibility is now more likely to be ordered in cases where there are indications of violence and/or abuse.15

These findings are consistent with the preliminary observations of Strickland J that in the post-FV Act era, as compared with pre-reform judgments, serious allegations of violence featured prominently in decisions not to award equal shared parental responsibility.16 Such results have flow-on effects on the time children spend with each parent, as the absence of equal shared parental responsibility orders avoids the compulsory application of the requirement in s65DAA to consider equal or substantial and significant time. The prevalence of equal or substantially shared care outcomes in cases involving violence had been identified as a concern prior to the enactment of the FV Act.17

Distinguishing types of family violence

The cases demonstrate an enhanced willingness on the part of judicial officers to consider allegations of violence in the context of know-ledge about the complexities, dynamics and typologies of family violence. For example, in Labine Brown FM indicated that “family violence is not homogenous in its qualities and implications for children”.18 Brown FM further distinguished between situational violence “which arises as a result of a stressful situation, such as a relationship breakdown” and coercive and controlling behaviour which is “more systematic and deliberate, arising from a clear power imbalance between the parties” and which was identified as the main focus of s4AB.19 In McLeay & Anderson, Judge Harman described the family violence to which the mother had been exposed as “most insidious, complex and long-lasting”.20 This tendency towards a more nuanced approach to family violence has also been noted by Strickland J.21

The deleterious effects of exposure to family violence on children were also detailed in a number of judgments, including the risk of injury, fear and inappropriate role modelling.22 Cases also indicate an express recognition of the difficulties associated with proof of family violence including that violence often occurs “behind closed doors” without witnesses, and is often underreported as a result of shame or fear. For example, in McAllister & Day the father was on parole, having been released from incarceration for drug offences. The mother alleged serious family violence against him and sought that he have supervised time with the child. The mother was unable to corroborate her claims of violence by the father who vehemently denied such allegations. Brown FM acknowledged the difficulties in proving family violence and that victims do not always behave “in an entirely rational or predictable manner”.23

Although the emphasis on understanding and distinguishing the dynamics of family violence is encouraging and positive, it is concerning that some forms of violence, particularly those characterised as “situational”, and their impact on children, may be minimised or glossed over.24 A number of judgments concluded that it was unlikely that violence would reoccur (because, for example, the parties had separated), which is undoubtedly a relevant consideration, but worryingly, the Court failed to undertake a detailed consideration of the possible future impact on the children of past violence.25

In Bell, for example, Pascoe CFM held that “[w]hile I find that there have been heated exchanges between the parties, sometimes escalating to physical violence, they are now in the past. They were also all localised around the time of separation between the parties . . . obviously an unexpected and very traumatic period of time” and “I accept that this has ‘become a civilised case’ and that the parties are working towards better relationships in the future. I find there is no apprehension of violence . . .”26 In New & Gilpin the Court held that allegations of family violence which had been found to be true were “historical matters and have limited probity”.27 In Doyle the Court concluded that “[t]here is no reason to believe that the parents in this matter will engage in violence against each other in the future”.28

In McAllister & Day Brown FM expressed a view that “not all incidents of family violence will be necessarily damaging for a child”.29 There was also a tendency in some of the judgments to direct criticism or scepticism towards parties who alleged violence but had not taken what the courts considered to be appropriate steps to protect the children or extricate them from it,30 which is at odds with established knowledge about the dynamics of family violence.31

Conclusion

The cases discussed suggest that the enactment of the FV Act has led to some positive developments in the treatment of family violence in family law cases but there is still room for improvement. These cases indicate that while there is an increased recognition of the occurrence of family violence and its nuanced nature, there nevertheless remains a reluctance to fully implement these reforms and to unconditionally prioritise the protection of children from harm. To some extent this may be attributable to the recognised difficulties with proof of family violence but in the authors’ view, the problem is much larger. The issue lies at the core of the Act which continues to treat violence and abuse as an exception to the dominant model of post-separation families under the implicit assumption that most families do not experience these problems. The research demonstrates that a large proportion of families engaged in litigation over parenting arrangements have experienced issues of violence and abuse. Such issues have been identified as the “core business” of the family law courts.32 The dangers of relying on an idealised model of a cooperative post-separation family rather than recognising the reality of the prevalence of family violence have been well recognised.33 Further legislative reform is recommended to ensure that issues of protection and safety for parents and children become the norm rather than the exception.


ANNA PARKER is a partner at Nicholes Family Lawyers and an LIV family law and children’s law accredited specialist. DR ADIVA SIFRIS is a senior lecturer in law at Monash University, Clayton. She lectures primarily in the area of family law.

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  1. For example Richard Chisholm, Family Courts Violence Review (November 2009), p90.
  2. Family Law Act 1975 (Cth) ss4 and 4AB.
  3. Note 2 above, s60CC(2A).
  4. [2012] FMCAfam 863.
  5. Note 4 above, at [121].
  6. [2013] FMCAfam 6 at [108]. See also Brooks & Holden [2013] FCCA 140 at [77]; Mabry & Neilson [2013] FCCA 478 at [52], [74]; Mallard & Herbert [2014] FCCA 77 at [15].
  7. [2012] FMCAfam 1398.
  8. Note 7 above, at [115].
  9. Note 7 above, at [109]. See also Haas & Babcock [2013] FCCA 635 at [92].
  10. The Hon Justice Steven Strickland and Kirsten Murray, “A Judicial Perspective on the Australian Family Violence Reforms 12 Months On” (2014) 28 Australian Journal of Family Law 48, 81.
  11. For example, Andrews & Lampton [2014] FamCA 425; Birkett & Hemsley [2014] FCCA 1568; Vong & Ngo [2014] FCCA 228.
  12. See, for example, Rae Kaspiew et al, “Evaluation of the 2006 Family Law Reforms”, Australian Institute of Family Studies (2009), 189.
  13. Note 2 above, s61DA.
  14. For example, New & Gilpin [2013] FCCA 987; Haas & Babcock [2013] FCCA 635.
  15. For example, Herman & Dennis & Anor (No.2) [2012] FMCAfam 1000; Rio & McGrath [2013] FCCA 41; Stone & Stone [2013] FamCA 357; Wigfield & Dempsey [2014] FCCA 195; Caldera & Mateo [2014] FCCA 1686.
  16. Justice Steven Strickland, “A Judicial Perspective on the Australian Family Violence Reforms 12 Months On” (paper presented at the AFCC 50th Annual Conference, Los Angeles, 29 May-1 June 2013), p19.
  17. Rae Kaspiew, et al, Evaluation of the 2006 Family Law Reforms, Australian Institute of Family Studies (2009), 169, 364.
  18. Note 7 above, at [116]–[118].
  19. Note 17 above. See also McAllister & Day at [139]; Haas & Babcock at [90]–[91]; McLeay & Anderson at [72]; Meyer & Shipton at [161].
  20. McLeay & Anderson [2013] FCCA 1257, at [103].
  21. Justice Steven Strickland, “A Judicial Perspective on the Australian Family Violence Reforms 12 Months On” (Paper presented at the AFCC 50th Annual Conference, Los Angeles, 29 May-1 June 2013), 25, 28, 30, 44.
  22. For example, McAllister & Day at [136]–137]; Haas & Babcock at [86]–[88]; Whiting & Dawson at [96]–[97]; Cartwright & Cartwright [2013] FCCA 1453 at [363].
  23. Note 4 above, at [134]. See also Cartwright at [287]–[290].
  24. Note 16 above, pp19, 44.
  25. For example, Labine at [123]; Stone at [93]; Carbirne & Jetton at [103]; Carlton & Larry at [77].
  26. [2013] FMCAfam 6, at [187]–[188].
  27. [2013] FCCA 98, at [74].
  28. [2013] FCCA 2186, at [83].
  29. Note 4 above, at [139].
  30. For example, Chapa & Chapa [2012] FMCAfam 1420 at [26]–[31]; Walsh & Walsh [2013] FMCAfam 92, [97].
  31. See, for example, Judicial College of Victoria, Family Violence Bench Book, [5.2.7.4].
  32. 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” (Report, December 2009), p34.
  33. See, for example, Amanda Shea Hart and Dale Bagshaw, “The Idealised Post-Separation Family in Australian Family Law: A Dangerous Paradigm in Cases of Domestic Violence” (2008) 14 Journal of Family Studies 291.

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