Allegations of family violence and child abuse in family law children's proceedings

A pre-reform exploratory study
Research Report No. 15 – May 2007

7. Parenting proposals and court outcomes

This chapter sets out the types of parenting orders sought by litigants and the outcomes of proceedings. Couple cases in which allegations of spousal violence and parental child abuse were raised are compared with couple cases that did not contain allegations.

The chapter comprises two sections. Non-adjudicated cases are examined first, followed by the small sample of cases requiring a judicial determination.

7.1 Non-adjudicated cases

This section examines cases in the general litigants sample that did not involve a judicial determination (that is, both parties reached agreement about their parenting arrangements and the court formalised this agreement with a consent order; in some cases, no orders followed because one or both parties discontinued proceedings). In total, 170 cases in the general litigants sample were examined.130 It is important to note that some of these cases were complex in nature, with some having different arrangements occurring for different children in a family, and others having unspecified arrangements ("as agreed" or "as specified") or orders unrelated to parenting time (for example, the order could be about parental decision-making, changeovers or supervision conditions).

7.1.1 Children's living arrangements

We begin this analysis by focusing on pre-existing living arrangements for children, and changes in these arrangements brought about by orders.

Table 7.1 subdivides the sample into three groups according to residence status at the time of the proceedings: resident mothers/non-resident fathers (hereafter called "maternal residence"); resident fathers/non-resident mothers ("paternal residence"), and a mixture of "other" arrangements.131 The top panel of Table 7.1 shows the prevalence and nature of residence orders, while the bottom panel indicates the prevalence of change in residence resulting from a residence order. The results point to the dominance of the status quo. Only 16% of cases involved a change in residence arrangements for children.132

Table 7.1 Court orders for children’s living arrangements: Couple cases
  Pre-litigation residence arrangement
Maternal residence
( n = 131)
(%)
Paternal residence
( n = 16)
(Number)
Other cases
( n = 23)
(%)
Total
( n = 170)
(%)

Residence order

With mother

87.8

[3]

56.5

77.1

With father

0.8

[10]

0.0

6.5

Shared a

4.6

[2]

21.7

7.6

Split

0.0

[0]

13.0

1.8

 

Total order

93.1

[15]

91.3

92.9

No order

6.9

[1]

8.7

7.1

Total

100.0

[16]

100.0

100.0

Change in residence

with mother

 

[3]

52.2

8.8

with father

0.8

 

0

0.6

shared residence

4.6

[2]

4.3

5.3

split residence

0

[0]

8.7

1.2

 

Total change

5.3

[5]

65.2

15.9

No change

94.7

[11]

34.8

84.1

Total

100.0

[16]

100.0

100.0

Note. a"Shared" care refers to care of children by each parent in excess of 109 nights per year.

An order was made covering residence in 93% of cases. In 77% of all cases, an order was made for children to live with their mother. In almost all of the pre-existing maternal residence cases (95%), children continued to live primarily with their mother (see bottom panel in Table 7.1). While a change was more likely to have occurred in cases where the children were not already living with their mother, pre-existing non-maternal residence applied to a minority (23%; that is, 39 of 170 cases).

The "other cases" category mainly refers to a mixture of shared, split or disputed residence arrangements. Given that around one quarter of the "other cases" (26%) involved disputes about the nature of pre-existing arrangements, the extent of change for this group may be a small over- or under-estimate. In total, 77% of orders were for children to live with their mother. This translated into a change to maternal residence in only 9% of cases. Around 7% involved an order to live with the father, resulting in a change to paternal residence of less than 1% of cases. An order for shared residence occurred for 8% of cases, requiring a change in children's living arrangements for 5% of all cases. That is to say, change was uncommon and, if it occurred, it was more likely to involve a move to live with the mother, or to live with both parents on a shared care basis.

Although not shown in the table, it is interesting to note that 13 fathers applied for the children to live with them, but only one of these fathers was successful in his application. Eight of the 13 fathers had orders for overnight stays, while another father obtained an order for daytime contact graduating into overnight stays. Seventeen fathers sought shared care; 6 were successful; 9 obtained orders for overnight stays; 2 obtained other orders.133 With so little change occurring in children's living arrangements, attention is now turned towards the relatvionship between parenting time and allegations of spousal violence and/or parental child abuse.

7.1.2 Parenting time

Given that in most cases children were living with their mother, and orders reflected this, we focus on parenting time from the point of view of non-resident fathers. Specifically, this section attempts to answer the following questions.

Did parenting orders vary according to:

  • whether or not allegations of spousal violence or child abuse were made?
  • whether or not allegations that children witnessed spousal violence were made?
  • the apparent severity of the allegations made?
  • the apparent probative weight of the evidence provided?

It is worth noting at the outset that 50 (38%) of the 131 non-resident fathers in the general litigants sample applied for orders for overnight stays; 62% of these fathers obtained such orders, 22% obtained an order for daytime contact graduating to overnight stays, while 6% were denied contact. The remaining 10% obtained orders for other arrangements.

7.1.2.1 Allegations of spousal violence and case outcomes

Table 7.2 shows different court outcomes according to whether or not allegations were raised about spousal violence, and whether children were alleged to have witnessed this violence.

Table 7.2 Non-resident fathers' parenting time, by allegations of spousal violence: Couple cases
Case outcome

Allegations of spousal violence

No allegations
( n = 66)
%
Yes but not seen by children
( n = 20)
%
Yes and seen by children
( n = 41)
%
Total spousal violence allegations
( n = 61)
%
No allegations
( n = 38)
%
Spousal violence allegations
( n = 42)
%

Overnight stays

47.0

50.0

48.8

49.2

81.6

63.8

Daytime only

10.6

15.0

22.0

19.7

18.4

25.6

No contact

0.0

10.0

7.3

8.2

0.0

10.6

Other order a

34.8

20.0

17.1

18.1

Total: 100.0

Total: 100.0

 

Total orders

92.4

95.0

95.1

95.1

   

No order

7.6

5.0

4.9

4.9

   

Total

100.0

100.0

100.0

100.0

   

Note. a"Other order" mostly concerns parental decision-making responsibilities, but also includes orders that were recorded as "as agreed" or "as specified", changeover arrangements and scheduling parenting time.

Table 7.2 suggests that 47-50% of fathers had orders for overnight stays. But orders for daytime-only contact and no contact increased if allegations of spousal violence were raised. This was particularly the case for daytime-only contact where it was alleged that children had witnessed spousal violence (22%).

Cases containing no allegations of spousal violence were more likely than cases containing allegations of spousal violence to have "other" orders (35% vs 17-20%). The exact nature of some of these "other" orders was unclear in that some were referred to in the case files as "as agreed" or "as specified" arrangements. "No order" may also imply no change in parenting time. This ambiguity makes it difficult to compare patterns of orders for those with and without allegations. The presence of "other" orders and "no orders" is part and parcel of the complexity of post-separation parenting arrangements.

In an attempt to obtain a clearer picture of the possible relationship between allegations and specific types of parenting orders, the two columns on the far right of Table 7.2 exclude these more ambiguous parenting orders or lack of orders. That is, these two columns focus on those files that clearly indicated orders for overnight stays, daytime-only contact or no contact. For this subgroup, orders for overnight stays were lower where allegations of spousal violence had been raised than when there were no allegations (64% vs 82%), whereas the proportion of orders for daytime-only contact and no contact increased (26% vs 18%, and 11% vs 0% respectively).134

Thus, regardless of which lens is used to analyse these data, orders for overnight stays occurred most commonly - both for cases containing allegations of spousal violence and for cases in which no allegations were raised. Nevertheless, allegations for spousal violence appeared to increase the chance of orders for daytime-only contact or no contact.

7.1.2.2 Apparent severity of allegations and case outcomes

Were orders in any way related to the apparent severity of allegations? This is an interesting question, and one that we now attempt to answer.

There were only 12 relevant cases (involving consent orders) where the severity of the set of allegations was rated as being the least severe or ambiguous (Category A). For the analysis shown in Table 7.3, these cases were combined with the 20 cases that contained allegations that were classified as Category B, even though the research team concluded that Category B allegations were fairly close in the level of "severity" as those classified as Category C (the most serious sets of allegations: see Chapter 5).

Table 7.3 Apparent severity of allegations of spousal violence or parental child abuse raised by outcomes for non-resident fathers
Case outcome

Allegations of spousal violence or parental child abuse

No allegation
( n = 66)
%
Categories A & B
( n = 32)
%
Category C
( n = 33)
%
No allegations
( n = 38)
%
Categories A & B
( n = 27)
%
Category C
( n = 24)
%

Overnight

47.0

62.5

42.4

81.6

74.1

58.3

Daytime only

10.6

12.5

24.2

18.4

14.8

33.3

No contact

0.0

9.4

6.1

0.0

11.1

8.4

Other order

34.8

12.5

21.2

Total: 100.0

Total: 100.0

Total: 100.0

 

Total with order

92.4

96.9

93.9

     

No order

7.6

3.1

6.1

     

Total

100.0

100.0

100.0

     

Note. Category A refers to the most ambiguous allegations, and to allegations that did not seem as serious as those contained in Category B or C. By contrast, Category C allegations appeared to be particularly serious. "Other order" mostly concerns parental decision-making responsibilities, but also includes orders that were recorded as "as agreed" or "as specified", changeover arrangements and scheduling parenting time.

Table 7.3 shows that orders for overnight stays were the most common type of orders made, regardless of the existence or apparent severity of allegations, and were more common for the combined cases with allegations that were classified as either Category A or B (63%) than for those with no allegations (47%). This is an artefact of the relatively low proportion of "other" orders (13%) that occurred for those with allegations classified as Category A or B. It is therefore useful to re-examine the data relating exclusively to specified orders for overnight stays, daytime-only contact, and no contact (the three far-right columns). Overnight stays remained the most common type of order, but was highest for cases with no allegations at all, and lowest for cases with Category C allegations (82% vs 58%). Category C allegations were the most likely to have daytime-only contact orders (33% vs 15-18%), while orders for no contact occurred for 8-11% of cases, regardless of their apparent severity, and no cases where no allegations were made.

7.1.2.3 The apparent probative weight of evidence and case outcomes

Thus far, the analysis has focused on the potential links between allegations and parenting/residence orders, without regard as to whether these allegations were supported by evidence. Table 7.4 takes up this issue. We have combined cases with no evidence for allegations with those with evidence that seemed to carry less probative weight because of the small numbers in each of these groups. (See Chapter 6 and Appendix E for a description of the evidentiary classification system adopted.)

Table 7.4 Apparent probative weight of evidence for allegations of spousal violence or parental child abuse raised, and outcomes for non-resident fathers: Couple cases
Case outcome

Allegations of spousal violence or parental child abuse

No allegations
( n = 66)
%
Allegation(s): no evidence or evidence of a less probative weight
( n = 30)
%
Allegation(s): at least one with strong probative weight
( n = 35)
%
No allegations
( n = 38)
%
Allegation(s): no evidence or evidence of a less probative weight
( n = 21)
%
Allegation(s): at least one with strong probative weight
( n = 30)
%

Overnight stays

47.0

53.3

51.4

81.6

76.1

60.0

Daytime-only

10.6

13.3

22.9

18.4

19.0

26.7

No contact

0.0

3.3

11.4

0.0

4.7

13.0

Other order

34.8

23.3

11.4

Total: 100.0

Total: 100.0

Total: 100.0

 

Total orders

92.4

93.3

97.1

     

No order

7.6

6.7

2.9

     

Total

100.0

100.0

100.0

     

Note. "Other order" mostly concerns parental decision-making responsibilities, but also includes orders that were recorded as "as agreed" or "as specified", changeover arrangements and scheduling parenting time.

Close to half of all the cases resulted in orders for overnight stays (47-53%). However, if attention is directed exclusively at cases where specific orders for overnight stays, daytime-only contact or no contact occur, then the proportion of orders for overnight stays decreases where allegations were supported with apparently strong probative weight (60% vs 76-82%). The latter cases were the most likely to have daytime-only contact orders (27% vs 18-19%) and no contact orders (13% vs 0-5%). In short, allegations accompanied by weak or no evidence appeared to have little if any impact on orders.

7.1.3 Summary

In the general litigants sample, allegations of spousal violence or parental child abuse appeared to make a difference to case outcomes if they were supported by evidence that appeared to have strong probative weight; the proportion of cases with orders for overnight stays decreased and the proportions of cases with orders for daytime-only and no contact increased. A similar pattern emerged where the sets of allegations were classified as fairly serious (Category C). As noted in Chapter 6 (Table 6.13), cases classified as containing the most severe allegations of spousal violence were more likely than other cases to be accompanied by evidentiary material of a strong probative weight. (Most allegations of child abuse were classified into the Category C grouping.) This means that there was some overlap between the apparent severity of allegations and the apparent weight of evidence in support of such allegations. It should be borne in mind that Category C allegations also tended to be more detailed.

In addition, regardless of the weight of evidence or the apparent severity of allegations, daytime-only contact was more likely to be ordered than no contact. Nonetheless, overnight contact remained the most common of orders, irrespective of the apparent severity of the allegation and the apparent weight of evidence that supported these allegations.

7.2 Judgments, outcomes and written reasons

This section examines cases in both samples that were fully litigated and required a judicial determination. The power of this small sample of adjudicated cases is that many of the judgments contain written reasons by the judge or federal magistrate for their final decision and thus offer insight into the reasoning of the judicial decision-maker. In particular, a judge's or federal magistrate's written reasons allow an assessment of whether there was a finding as to the occurrence of alleged violence or child abuse and whether there was a link between the findings and an order made by the court.

At the same time, analysing data from small selected samples requires a more fine-grained approach than adopted in the prior two chapters, and fine-grained analysis calls for detailed information. On this point, it must be stressed that the following cross-case analysis is an interpretation of a coded court file (which is itself a crude abbreviation of the content of the case). Because we are two steps removed from the actual data, only an impressionistic view of the case outcomes could be gained.

Several questions guide the analysis:

  • What proportion of cases containing allegations went to final hearing?
  • What proportion of these cases were truly contested, as opposed to undefended?
  • How often did the court make findings about violence and child abuse?
  • Where allegations were the subject of a finding, how often did the judge/federal magistrate expressly link the finding about violence or child abuse with the outcome ordered?
  • How often did court findings confirm or vindicate allegations of violence?
  • How often was someone punished for an allegation or denial that was considered to be false?

Figure 7.1 shows the number of couple cases in which parenting issues were judicially determined following litigation,135 the number of these cases in which written reasons for judgment were on file, and the number that contained allegations of violence. The figure shows that, in the general litigants sample, 6 of the 109 couple cases in the FCoA and 4 of the 116 couple cases in the FMC were fully litigated (see Step 2). These numbers represent 6% and 3% of the couple cases. Thus, the percentages that proceeded to litigation are broadly consistent with previously cited FCoA data that suggest litigation rates with respect to all applications of approximately 5-6% (FCoA, 2006).

Figure 7.1 Case flow: Judgments

Figure 7.1 Case flow Judgments, described in text.

As already noted, the design of the study included a sample of 59 cases (30 from the FCoA and 29 from the FMC) that proceeded to judicial determination. Of these, all except two cases in the FCoA and one in the FMC were couple cases. This separate sample was drawn because only a small number of adjudicated cases were likely to be identified in the general litigants sample, which indeed was the case (9 out of 225 couple cases in the general litigants sample).

But not all cases in the judicial determination sample were fully litigated. As Figure 7.1 illustrates, 23 of the 28 FCoA couple cases in which judicial orders were made (82%) and only 17 of the 27 FMC adjudicated couple cases (63%) went to a defended final judicial determination (see Step 2). In other words, 15 cases in the judicial determination sample (5 FCoA and 10 FMC) were not fully litigated, but nonetheless had a judicially determined court order. Most commonly, this occurred because one of the parties (generally the respondent) did not attend the hearing.

In addition, not all couple cases involving a fully contested hearing were found to have written reasons on file supporting that determination (see Step 3). Thus in the FCoA, a total of 23 written judgments emerged from both the general litigants and the judicial determination samples. In the case of the FMC, a total of 7 written judgments were available for both samples. Where written reasons were on file, 18 FCoA cases and 6 FMC cases contained allegations of violence or child abuse (Step 4).

Of the 18 FCoA alleged violence cases that contained written reasons, 11 made findings about allegations of family violence and/or child abuse (while in one other case, findings were made about mental health issues) (Step 5). Of the 11 cases where findings were made, 10 cases resulted in a finding that violence had occurred, with a link between violence and the court orders evident in 9 of these 10 cases.

Of the 6 FMC alleged violence cases that contained written reasons, 5 contained findings about allegations of family violence and/or child abuse (Step 5). In 4 of these 5 cases, violence was found to have occurred, with a link between violence and the court orders evident in 3 of these 4 cases.

Thus, of the small select sample of 24 fully contested cases containing allegations and written reasons behind the judgment (Step 4: 18 FCoA, 6 FMC), the final court order appeared to take into account the allegations raised in half these cases (n = 12). These data can, of course, be approached positively or critically. (Is the glass half-full or half-empty?) From a critical perspective, the following questions can be asked: Why were there no findings in 8 cases? What led to a finding that an allegation was unfounded? Where there was a finding that violence had occurred, why was this finding unrelated to the outcome in 2 cases?136

A key aspect that appeared to differentiate between cases in which allegations were and were not addressed was the level of evidentiary material in support of the allegations. In all 8 of the cases where allegations were not addressed, the court file contained no evidence or only evidence of lower probative weight in support of allegations. In contrast, 9 of the 16 cases where allegations were addressed had supportive evidence of higher probative weight in support.137

It is also interesting to note that in all but 2 cases in which allegations were addressed, allegations were made by the applicant and respondent; one case that was the exception was (albeit unsurprisingly) undefended. Three of the 8 cases that involved "unaddressed" allegations were made by one party only, compared with 14 of the 16 cases in which allegations were "addressed". In addition, 3 of the 8 cases contained emotional abuse exclusively, compared with none of the 16 cases in which allegations were addressed. This suggests that those cases in which allegations were addressed were more complex or perhaps involved more tangible allegations.

7.2.1 Findings concerning violence, evidence cited and links with case outcomes

There were 16 cases in which there were findings about allegations of violence or abuse (and an additional finding related solely to allegations of mental health problems: no. 17 in Table 7.5). In 10 of the 16 cases, the findings concerned allegations made against the father only and, in one case (no. 13), allegations were made against the mother only. Three cases (nos. 6, 9 and 16) contained findings about allegations of violence perpetrated by both the father and mother. One case (no. 1) contained findings about allegations directed toward the mother and child by the mother's stepfather, and one case (no. 15) contained findings about the mother's partner only (allegations that were admitted by the mother).

Table 7.5 Findings made by a judicial officer in relation to allegations

No.

App

Court orders

Findings concerned violence by which party?

Findings about the alleged violence and abuse

Evidence cited

Did findings address the veracity of allegations or denials?

Was there a link between findings and orders?

1

Mo

Respondent residence. Day-only contact.

Fa, Oth (Mo’s stepfather)

Yes. Child and mother sexually abused by mother’s stepfather. Father’s physical child abuse and substance abuse by mother occurred.

Sexual abuse—cross-examination of mother. Physical child abuse—admission of respondent. Alcohol abuse— respondent’s evidence.

Yes. Applicant mother lied about child sexual abuse by her stepfather and her substance abuse.

Findings resulted in orders restraining her from consuming alcohol, and mother was incapable of properly supervising child.

2

Mo

Applicant resident. Contact reserved.

Fa

Yes. Physical spousal violence by father occurred.

Applicant mother’s evidence was unchallenged as respondent did not participate.

 

Yes. Residence to mother. Reserving of contact for father.

3

Fa

Residence with respondent. Day-only contact. Supervised contact.

Fa

Yes. Unacceptable risk that child sexual abuse did occur.

Expert testimony.

 

Yes. That all contact be supervised.

4

Fa

Shared residence.

Fa

Yes. Father had verbally abused the mother.

Cross-examination of applicant.

Mother lied on oath about substance abuse.

Verbal abuse had no effect, but finding that mother lied about substance abuse undermined her application for sole residence

5

Fa

Residence with respondent. Overnight contact.

Fa

Yes. Child sexual abuse by father did not occur. Mental illness of father was found.

Mental illness of father found by reference to an expert. Findings on sexual abuse based on cross-examination of parties and examination of child protection records.

Not made. The respondent withdrew allegations.

Yes. Finding that sexual assault did not occur led to orders intended to maximise as far as practicable the amount of contact for the father.

6

Mo

Applicant residence. Overnight contact.

Fa, Mo

Yes. Physical spousal violence by father and mother occurred. Sexual child abuse by mother’s family did not occur. Substance abuse by mother occurred.

Cross-examination of respondent. Admission by applicant. Child protection evidence.

 

Yes. Deny respondent husband residence.

7

Fa

Residence with respondent. Overnight contact. Mother permitted to relocate overseas.

Fa

Yes. Findings of physical spousal abuse by father.

Cross-examination of applicant.

 

Yes. Deny application for shared residence. Therefore, mother permitted to relocate overseas.

8

Fa

Respondent residence. Day-only, graduating to overnight contact.

Fa

Yes. Findings of physical spousal abuse by father.

Subpoenaed documents that showed wife’s attendance at relevant time for medical care.

 

Yes. Anger management and parenting course orders for husband.

9

Fa

Respondent residence. Day-only contact. Mother permitted to relocate overseas.

Fa, Mo

Yes. Physical spousal abuse by father and mother. Emotional child abuse by father did occur.

Disclosures by child for all allegations.

 

Yes. Denied application for shared residence. Therefore, mother permitted to relocate overseas.

10

Mo

Applicant residence. Contact reserved.

Fa

Yes. Emotional and physical spousal abuse by father occurred.

Corroboration by creditable applicant witness.

 

Yes. Contact reserved.

11

Mo

Applicant residence. Contact reserved.

Fa

Yes. Physical spousal violence by father occurred.

Cross-examination of applicant and respondent.

 

Yes. Residence to applicant. Telephone-only contact.

12

Mo

Residence with applicant. Overnight contact.

Fa

Yes. Finding that child sexual abuse by father did not occur.

By reference to a separate expert. Cross-examination of parties. Evidence of child’s behaviour. Evidence of the family reporter.

Judge did not expressly find that the applicant mother made a false allegation, but found that “it appears likely that the mother’s embellishment and misreporting of events emanates from her fear the father may mistreat [the child]”.

Yes. Applicant mother’s application to reserve contact for respondent father dismissed.

13

Mo

Residence with applicant. Overnight contact.

Mo

Yes. Child emotional abuse by mother occurred.

Corroboration by creditable respondent witness.

 

No

14

Mo

Applicant residence. No details for contact.

Fa

Yes. Physical spousal violence by father did occur.

Respondent father incarcerated for breaches of intervention order, which included property damage and beatings of the wife.

 

Yes. Wife sole parental residence. No contact order.

15

Fa

Respondent residence. Overnight contact. Mother’s partner to attend for parenting counselling.

Oth (mo’s partner)

Yes. Physical child abuse by mother’s partner did occur.

Admissions by respondent.

 

Yes. Respondent’s partner to attend for assessment for parenting course. Medium weight. No effect on residence.

16

Mo

Applicant residence. Overnight contact.

Fa, Mo

Yes. Physical spousal violence by father and mother occurred. Father was deemed responsible for violence.

Respondent violence was found using cross-examination of applicant. Applicant’s violence was found by admission by applicant.

Yes. The judge found that respondent father’s fears of the applicant mother were either feigned or exaggerated.

Yes. Findings that respondent father was responsible for violence was major reason for decision to deny shared residence.

17

Mo

Interim (written reasons): no residence orders until mother’s death. Final: residence with father.

Fa

Yes. Mental illness of father did occur.

By reference to expert.

No.

Yes. Strong link between this finding and the decision not to make residence orders until after the applicant mother’s death.

The nature of the allegations that were most commonly the subject of findings concerned spousal physical violence (9 cases).138 Five cases contained findings about child sexual abuse.139 Only one case (no. 6) contained findings about physical spousal abuse and child sexual abuse. Thus, while data presented in Chapter 5 suggest that allegations of child abuse were almost always accompanied by allegations of spousal violence, findings in this small group tended to relate to spousal violence or child abuse, but not both. One case (no. 4) contained findings about emotional spousal abuse exclusively, another (no. 15) involved findings about physical child abuse only, and a third (no. 13) contained findings regarding emotional child abuse only.

Physical violence or sexual abuse was found to have occurred in 12 of the 16 cases (the exceptions were nos. 4, 5, 12 and 13). One of these 12 cases (no. 6) had findings that physical spousal violence had occurred, but that child sexual abuse had not. There were two other cases in which the alleged behaviour was found not to have occurred. Of the five cases containing allegations of child sexual abuse, three (nos. 5, 6 and 12) resulted in findings that the abuse had not occurred, although one of these (no. 6) had a positive finding about spousal physical abuse. All other cases had allegations with positive findings.

Multiple sources of evidence were cited in support of findings in most cases. Commonly cited sources of evidence included: cross-examination of the parties; evidence submitted, including testimony of an expert (such as a psychiatrist); admission by the accused party; child disclosure; subpoenaed medical records; and child protection records. Where only one source of evidence was cited, this evidence tended to be strong (such as conviction and incarceration for a breach of intervention order, full admission or subpoenaed medical documents). Nonetheless, the data examined were not comprehensive. For example, we could not assess issues such as findings of credit that may have also influenced the decision maker's view. On the data that were available, however, the judicial findings were generally underpinned by a solid evidence base.

There was only one case (no. 13) in which there appeared to be no link between the findings and orders. In this case, there was a finding that child emotional abuse occurred, but a range of serious allegations of spousal violence and child abuse made by the applicant mother against the father were apparently not addressed.

Positive judicial findings appeared to contribute to the denial of an application for residence in six cases. In four of these cases (nos. 2, 7, 9 and 11), face-to-face contact was also disallowed or effectively disallowed.140 Two cases in which residence was denied (nos. 1 and 16) did, however, specify some form of contact (1 overnight and 1 daytime-only).

Findings in three cases (nos. 3, 10 and 14) contributed to contact being denied, reserved or supervised. In another case (no. 8), positive findings concerning violence contributed to the decision to require the father to attend anger management and parenting courses. This father was permitted daytime-only contact, eventually to be increased to overnight contact. Likewise, in another case (no. 15), the partner of the respondent mother was required to attend similar courses, although the mother was awarded residence.

Two cases in which negative findings were made in relation to child sexual abuse (nos. 5 and 12) culminated in the dismissal of applications for the denial of contact in favour of overnight stays. In the case in which spousal physical violence was found to have occurred but child sexual abuse was not found (no. 6), residence was denied and overnight contact ordered.

In the case where there was a finding of mental illness (no. 17), a strong link was evident between this finding and the decision not to make residence orders until after the apparently imminent death of the applicant mother.

7.2.2 Findings concerning the veracity of allegations and denials, and effect on outcome

Three cases contained a finding of "false" allegations. The finding in one such case (no. 12) was that the respondent father had not engaged in child sexual abuse. The trial judge did not expressly find that the applicant mother had made a false allegation, but found that "it appear(ed) likely that the mother's embellishment and misreporting of events emanates from her fear the father may mistreat [the child]". There was no action against the mother for making this allegation, but her application to deny the father contact was dismissed in favour of overnight contact.

The finding of a "false" allegation in another case (no. 5) concluded that the sexual abuse by the respondent mother to her children did not occur. In this case, the applicant father was found to have a mental illness. As a result, his application for shared residence was denied in favour of overnight contact with his children. In the third "false" allegation case (no. 6), the court concluded that the applicant mother's family had not physically or sexually abused the child as alleged by the respondent father. The court found that the respondent father was not a credible witness and that he was the cause of considerable conflict in the relationship. This conflict appeared to play a greater role than the apparently "false" allegation in the order made to deny the father's request for residence. Instead, he was granted overnight contact.

In the 12 cases in which there were positive findings concerning allegations of physical violence or sexual abuse, the "other side" had denied or partially denied at least one allegation that was later determined to have occurred.141 In only two of these cases, however, did the judicial officer make reference to the denial. One case (no. 1) concerned a respondent mother's denial that her stepfather had sexually abused her child (and herself). She also denied the allegation of substance abuse and self-harm. This apparently "false" denial contributed to the awarding of residence to the applicant father and an order for the mother to attend alcohol rehabilitation. In the other case (no. 4), the mother was found to have lied about her heroin abuse. The mother's application for sole residence was not successful.

7.3 Summary

The main message that resonates from the data presented in this chapter - for both non-adjudicated cases and adjudicated cases with reasons available - is that allegations of spousal violence or parental child abuse, accompanied by evidence of a strong probative weight, appeared to influence court orders. Without such evidence, allegations did not seem to have much effect on outcomes.

While it was unusual for contact to be denied, parenting time may well have been restricted to the daytime. But by and large, orders for overnight stays predominated in the presence or absence of allegations, regardless of the apparent severity or probative weight of evidence underpinning them.

Residence may be a different story. Children typically lived with their mothers prior to and following the making of parenting orders. The status quo generally remained. An order for a change in residence was more likely to occur when children were not already living with their mother. However, there were too few cases involving alternative arrangements (such as paternal residence, shared care or split arrangements) to enable assessment of the extent to which allegations affected orders for these sub-groups.

Three threads begin to emerge as important in this investigation of allegations of family violence and child abuse: (a) the apparent severity of allegations, (b) the level of detail provided, and (c) the apparent weight of evidence in support of allegations. These threads are taken up in the next and final chapter as part of the broader tapestry of this study's findings and the implications of these for practitioners, policy-makers, and researchers.

Footnotes

130 Of the 225 couple cases in the general population, 55 cases were excluded: 39 cases that were discontinued before final court orders, 7 cases that had multiple final orders because of re-litigation, and another 9 cases that were adjudicated. Of the resulting 170 cases, 4 did not have a final court order; the most recent interim order was treated as the final order in these cases.

131 These "other" cases comprised: 9 former couples with shared care; 6 with "split" arrangements (where at least one child was living with each parent); 6 cases in which the partners disagreed about which parent had the primary care of children; and 2 other complex cases (e.g., one child might be living with one parent, while another was living with extended family).

132 In the small proportion of cases that did not entail any applications for either residence or contact, it is assumed that the lack of an order means that the pre-existing residence arrangements remained in place.

133 We did not record the extent to which these arrangements represented a change in the arrangements that pertained prior to the applications being made.

134 There were too few cases to examine the link between children witnessing spousal violence and specific parenting orders for overnight stays, daytime-only contact, and no contact.

135 The majority of applications in the general population sample resulted in arrangements that were consented to by the parties, scrutinised by a judicial officer and finalised as "orders by consent". The orders referred to here, however, were not consented to, but were made by a judicial officer at the completion of litigation. (In other words, these were not orders by consent that had been scrutinised and approved by a judicial officer.)

136 The first of these two questions refers to the difference between Steps 4 and 5 (18-11 = 7; 6-5 = 1; 7+1 = 8). The second question refers to Step 5, where it is shown that all except one case in each of the courts contained a link between violence and outcome.

137 See definitions of "lower" and "higher" probative weight in Chapter 6 and Appendix E.

138 Those cases involving allegations of spousal physical violence were: no. 2, 6, 7, 8, 9, 10, 11, 14 and 16.

139 Those cases were: nos. 1, 3, 5, 6 and 12.

140The "effectively disallowed" cases relate to two cases (nos. 7 and 9) in which the dismissal of a residence application resulted in the resident parent being allowed to relocate overseas.

141 One case that was the exception was undefended