Family Law Notes Topic 1:
Family violence & processes for resolving parenting disputes
1.1 Family violence
• The issue of family violence is one that is frequently alleged in family law proceedings
o Feminist critics argue that the legislation does not adequately address the issue of violence
o Fathers’ groups argue that there are many false allegations of violence made in family law disputes
• Research from the Australian Institute of Family Studies in 2007 has shown that from more than 300 court files:
o More than half contained allegations of family violence and/or child abuse;
o Allegations were most commonly classed as ‘severe’;
o Most common forms of alleged violence were physical abuse (actual or threatened), emotional/verbal abuse and property damage;
o Allegations of spousal violence were more common than child abuse, but where allegations of child abuse were made, they were almost always accompanied by allegations of adult family violence – most common was physical abuse of children
o Most allegations were not supported by corroborative evidence
• The researchers made the observation that those cases that present a greater risk to former partners and/or their children need to be dealt with quickly, in order to obtain interim arrangements that will prioritise safety. In some cases, these interim plans will need to be continued until any rehabilitation plans have been proven effective.
• The courts use a formal and structured approach to information gathering that allows the identification of alleged violence and any supporting evidence. The researchers also advise the use of violence assessment protocols by all professionals who may encounter clients in the early stages of a potential family law dispute (e.g. mental health professionals, staff from men’s and women’s services, Child Support agency workers, drug and alcohol counsellors etc)
• Risk scale of family violence:
1. Minor and isolated acts 2. Higher conflict
3. More severe and frequent violence
4. Battery (likely amount to no parental contact re. shared parenting)
5. Terrorism/stalking (likely amount to no parental contact re. shared parenting)
• The researchers believe that more liberal parenting arrangements may be allowed if more appropriate professional interventions for victims, perpetrators and child witnesses were made available – and moreover, more conservative arrangements are necessary when such services are inaccessible or inappropriate, or if there are
systemic barriers to the services (e.g. poverty, language)
• Safety issues need to be given a higher importance during early stages of the dispute (negotiations, hearings)
• The research also found that judicial officers were not being given enough assistance to support them in making difficult decisions surrounding safety issues and threat
assessment – it is suggested that family violence assessment protocols could be a solution that could assist the judicial officers, but is also noted that such protocols cannot be a substitute for clinical or legal wisdom
• Another report by former Family Court judge Prof Richard Chisholm in 2009
recommended that the courts need an early screening process to identify the cases that require a more urgent response due to more serious problems – need a ‘process of scrutiny and triage’
o He notes that such scrutiny should be applied to cases of family violence, as well as cases stemming from problems of mental illness or serious substance abuse
• Some agencies dealing with family law already have such a screening process – e.g.
Legal Aid in WA requires an assessment by a co-ordinator on the suitability of a case for ADR, considering matters including:
o Whether there is a history of family violence;
o Whether there are safety issues;
o Whether there are likely to be safety issues at a conference;
o Whether the parties appear to be physically, psychologically and emotionally capable of participation in a conference
• The Family Court has measures in place to create a ‘safety plan’ for cases where it is deemed violence may be feared – including ensuring that the parties arrive and leave the court separately and that there are private, secure rooms for conference
• Chisholm notes that obtaining external information deemed relevant would assist the court in assessing and dealing with risk in a timely manner, including information already held by police, child protection departments, other agencies and family relationship centres and agencies providing dispute resolution services
Discussion questions
1. What is domestic or family violence? How does your definition sit with the definition incorporated in the FLA since 2012 (see Text, p. 176; FLA, s 4AB)?
FLA s 4AB(1): … family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family … or causes the family member to be fearful
This includes (under subsection 2) assault, sexual assault or sexual abuse, stalking, repeated derogatory taunts, intentional damage or destruction of property,
intentionally causing injury or death to an animal, unreasonable denial of financial autonomy, unreasonably withholding financial support where the family member is dependent, preventing the family member from keeping connections with their family, friends or culture, or unlawful deprivation of liberty
This definition is very much about the coercion or control of the family member I would define domestic or family violence as violence within the home, against a member of the family. This is definitely incorporated within the definition in the FLA.
2. What does the research show about the prevalence of family violence in cases involving the family law courts?
The research shows that allegations of family violence are very prominent, and that allegations are most often classed as severe. Most allegations pertain to physical abuse, emotional/verbal abuse and property damage, all of which would apply under the definition in the FLA s 4AB. There were more allegations of spousal violence than child abuse, but where child abuse was alleged, it was almost always accompanied by allegations of spousal violence.
3. What matters or issues do you think you should consider when interviewing and acting for a client who may be or have been in a violent relationship? What do you think the lawyer’s role is or ought to be, in ensuring that violence is clearly identified as an issue if it has occurred?
I think it is important to realise that family violence is a sensitive issue, so in the process of interviewing and acting for the client, the lawyer needs to be
compassionate and understanding. They need to make the client aware of their options regarding their safety and how best to approach the situation. In order to make the strongest case, the lawyer would need to obtain evidence that clearly corroborates the allegations of their client, so would need to determine whether they have ever been to the police, to counselling or to a men’s or women’s centre or mental health
professional, or if they or their partner have ever had issues with substance abuse.
These professionals would have the information that could help the court expedite the matter and allow for the client to receive the proper protections. Safety of the client is the first priority – e.g. providing them with useful phone numbers, reminding about cyber safety etc.
Red flags when interviewing a client:
• Pregnancy
• Violence can be more prevalent during separation
*** An AVO is a civil order, but if it is breached it becomes a criminal matter It is possible to have an AVO whilst still living together – but most are when you are separated
1.2 Processes for resolving disputes Importance of dispute resolution
• The Family Court has always emphasised the importance of ADR, and since the FLA came into force there has been an increase in non-adjudicated dispute resolution
o It is thought that disputes resolved by agreements have longer lasting advantages
o The growth was also due to the increased cost of trials o Advantages are set out by Mnookin and Kornhauser:
§ Minimising costs of litigation;
§ Avoiding pain of adversarial proceedings;
§ Psychological studies show that children benefit when parents meet an agreement on custody;
§ Negotiated agreements allow parties to avoid risks and uncertainties of litigation
§ Agreements can be time-saving and allow each party to move on with their life
§ Consensual solutions are more likely to be consistent with each party’s preferences and more acceptable over time
o In a divorce that does not involve children, it is believed that the couple should have broad powers to determine their own agreement. However, where children are involved, the State has a responsibility for child protection.
o Then who gets to decide on behalf of the child?
§ It is believed that parents should be given considerable freedom to decide custody, but there are minimum standards for protecting the child from abuse and neglect. Overall, a negotiated agreement is preferable from the child’s perspective, as the child’s relationship with both parents is more likely to continue in a positive way if the agreement is one reached by negotiation. The child’s parents know the child better than any judge, and so it is considered
advantageous to have the parents reach an agreement.
Types of dispute resolution
• Advisory processes
o Conciliation conferences are compulsory in the Family Court and the Federal Magistrates Court if the dispute includes financial issues. It will only move forward to hearing if the issues are not settled.
o Legal aid conferences are used by Legal Aid to help parties try to reach resolution with legal representation and an independent expert chairperson.
If the case is not settled, a report is written by the chairperson regarding the party’s merit for future funding.
§ Legal aid conferences have been described as a combination of mediation, conciliation and early neutral evaluation – but it is an advisory process defined by the role of the chairperson
