Family Matters No. 86 - March 2011

The effect of family violence on post-separation parenting arrangements

The experiences and views of children and adults from families who separated post-1995 and post-2006
Dale Bagshaw, Thea Brown, Sarah Wendt, Alan Campbell, Elspeth McInnes, Beth Tinning, Becky Batagol, Adiva Sifris, Danielle Tyson, Joanne Baker and Paula Fernandez Arias

Abstract

In 2009, the Australian Attorney-General commissioned research into family law and family violence in Australia, with a focus on the relationship between people's experiences of family violence and decisions made about post-separation parenting, with and without assistance from service providers in the family law system. The study included adults and children who had separated after 1995 and after the introduction of the Family Law (Shared Parental Responsibility) Amendment Act(Cth) in 2006. This article reports key findings of two national online surveys with adults and children in relation to post-separation parenting, which formed part of the larger research. Adult respondents described how family violence affected their parenting arrangements and their use of family services to assist with parenting decisions. There were gender differences in the reported experiences of and responses to violence, with women reporting more serious forms of violence than men. Many adults felt dissatisfied with service providers' acknowledgement and appreciation of the impact of family violence on adult and child victims. Adults were most dissatisfied with services for decision-making regarding planning for their children's care post separation. Their concern for their children's safety was supported by children's own reports. The study raised many questions about how well family law policies, as expressed in the legislation and implemented in the national service system, respond to family violence in families such as those who were involved in this research.

In 2009, the Australian Attorney-General commissioned research into family law and family violence in Australia, with a focus on the relationship between people's experiences of family violence and decisions made about post-separation parenting, with and without assistance from service providers in the family law system. The study included adults and children who had separated after 1995 and after the introduction of the Family Law (Shared Parental Responsibility) Amendment Act (Cth) in 2006.

This article reports key findings of two national online surveys with adults and children in relation to post-separation parenting, which formed part of the larger research. Adult respondents described how family violence affected their parenting arrangements and their use of family services to assist with parenting decisions. There were gender differences in the reported experiences of and responses to violence, with women reporting more serious forms of violence than men. Many adults felt dissatisfied with service providers' acknowledgement and appreciation of the impact of family violence on adult and child victims. Adults were most dissatisfied with services for decision-making regarding planning for their children's care post-separation. Their concern for their children's safety was supported by children's own reports. The study raised many questions about how well family law policies, as expressed in the legislation and implemented in the national service system, respond to violence in families such as those who were involved in this research.

Background to the research

In 2006, the Australian Government introduced legislation amending the Family Law Act 1975 (Cth), despite considerable debate about the changes. The amended legislation was aimed at creating a more meaningful relationship between children and parents following parental separation. To this end, it incorporated new concepts of shared parental responsibility and equal shared time, new policies relating to discouraging adversarial and legalistic approaches to dispute resolution, and new services to support the new concepts and policies, including a new national network of family relationship centres. There was significant support for the changes and they were endorsed by the Labor opposition (e.g., Ludwig 2006); however, there was also much criticism of the changes, especially regarding the degree of protection the changes would offer women and child victims of family violence (e.g., see Chisholm, 2006).

The research that is the subject of this paper (Bagshaw et al., 2010), along with research on the impact of shared parenting on children (Cashmore et al., 2010), was commissioned by the Australian Government's Attorney-General's Department in 2009 and was undertaken by researchers from the University of South Australia, Monash University and James Cook University. Other reports examining the question of family violence in the federal family law context released in the past year include a report on court processes by Professor Richard Chisholm (2009), a report on improving responses to family violence in the family law context by the Family Law Council (2009) and the report of an inquiry into laws dealing with family violence by the Australian Law Reform Commission (2010).

The overall aim of our research was to examine the impact of family violence (domestic violence and child abuse) during and after parental relationship breakdown from the perspective of children and parents, and the impact of the Family Law Amendment (Shared Parental Responsibility) Act 2006, specifically in relation to the effect that a history or existence of violence within the relationship had on:

  • the decisions that people make about accessing the courts and dispute resolution services;
  • decisions people make while using courts and dispute resolution services; and
  • post-separation parenting arrangements.

The researchers are from three Australian states and from the disciplines of psychology, social work, sociology, criminology, law and education. They gained the views of a total of 1,153 adults (90%) and children (10%) who had experienced parental separation from 1995 to the present, allowing a comparison of respondents from the periods before and after the 2006 amendments (Bagshaw et al., 2010).

This article summarises findings from two national online surveys, which formed a part of the research, in relation to the third research question: the effect that a history or the existence of violence within a relationship had on post-separation parenting arrangements, from the perspective of adults and children.

Research design

In the larger study, the researchers used an explanatory approach (Weinbach, 2005), beginning with an extensive review of the literature. They collected quantitative and qualitative data via national online surveys (931 adults and 105 children) and telephone interviews (105 adults and 12 children) involving voluntary, anonymous, self-selected children and adults who had separated post-1995, and who had experienced family violence. This section focuses on the design of the online surveys. It is important to note that some respondents only answered some of the questions, which accounts for the discrepancy in numbers in some of the statistics and tables in this article.

The literature review informed the development of questions for the two online surveys - one for adults and another for children - which were implemented nationally. Survey Monkey was used to construct the online survey, enabling the researchers to sort quantitative data into categories and convert it into tables and graphs. Survey questions also sought qualitative responses. Bagshaw and Chung (2000a) and others have argued that quantitative data alone cannot measure or show the more complex, non-physical aspects or the subtle nature of the abuse of power and control in family violence, hence the survey was designed so that respondents could make qualitative comments. As Chisholm (2009) has pointed out, "understanding of family violence requires examination not only of physical actions but of the context and meaning of the actions to those involved" (p. 36).

A content analysis strategy (Grinnell, 1997) was used to identify major themes in the respondents' qualitative comments. Given that prior studies suggest that men and women's constructions and experiences of violence can differ (see Bagshaw & Chung, 2000a, 2000b; Mulroney & Chan, 2005; Richardson & May, 1999), the responses of the men and women surveyed were also compared.

The adult survey was divided into nine main sections.1 The first three sections asked for background information, the nature of the respondents' relationships with their ex-partners and the overall impact of family violence and family law on their parenting relationships post-1995 and post-2006. Section four asked about respondents' experiences of and satisfaction with the family services they had accessed during and since their separation.2 Section five asked more specific questions of parents about their children and parenting post-separation, pathways to parenting arrangements, their understandings of family law, and patterns of care after separation. Section six focused on the adult respondents' experiences of family violence - the types, duration and frequency, changes over time, harm arising from the violence for adult victims, the contexts of post-separation violence, disclosing violence, service responses to disclosures, and domestic violence orders. At the beginning of this section, family violence was defined as follows:

Family violence includes abuse of one family member (including a child) by another and can involve physical, sexual, psychological, social and financial abuse and neglect. Normally the abused person is fearful of and/or intimidated by the abuser and feels relatively powerless. (Bagshaw et al., 2010, Vol. 2, p. 3)

Section seven focused on the adults' perceptions of the nature and effects of family violence on their children. Section eight asked about respondents' experiences of accessing family services following separation, and section nine asked specific questions about the impact of changes brought about by the Family Law Amendment (Shared Responsibility) Act 2006 (Cth) and how respondents' understandings of those changes had helped or hindered what they wanted to do since they had separated.

The questions in the children's survey were also divided into sections, which covered demographic data, a profile of the respondents, information about where they resided, time spent with each parent, contact arrangements, exposure to their parents' arguments pre- and post-separation, their perceptions of their own and their parents' responses to conflict and violence, who the children had sought help from, how safe they felt when with each parent, their views about children's rights to have a voice in parenting decisions, actions the children took to keep themselves safe when exposed to violence, and what things about their lives they would have liked to have been different.

Links to the online surveys were placed on a secure website and information about the surveys was spread nationally through newspaper advertisements and radio interviews. In addition, an email request from the two co-directors of the research team was sent out through the Department of Families, Housing, Community Services and Indigenous Affairs' (FaHCSIA) state and territory office network to the Chief Executive Officers (CEOs) of a range of family relationship services. Email requests were also sent to the CEOs of other relevant services and service networks, such as the family courts, legal services, domestic violence services and services for men and children. Almost all organisations that were contacted helped in publicising the research and the link to the online survey. Some asked the research team to submit additional ethics applications or research requests. No such applications were refused.

The University of South Australia's Human Research Ethics Committee (HREC) and Monash University's Standing Committee on Research on Humans approved the research for the overall project and the instruments used at each phase of the research. Approval was also granted by the ethics committee of James Cook University. At the request of some of the services, the study was also approved by the University of Tasmania, the Research Committee of the Australian Association of Social Workers, and the Family Court of Australia's Research and Ethics Committee.

Links to supportive services such as the Children and Teens First website (which provides information about a wide range of services in Australia)3 and Kids Helpline were provided in each of the surveys.4

Responses to the online surveys

Adults who responded to the survey were from capital cities (48.2%), regional towns and cities (34.8%), rural areas (16.5%) and remote areas (0.6%), from all Australian states, and from a spread of age groups from under 20 to over 60 years of age: 43% of women and 54% of men were aged between 40 and 49 years. The cultural background of the adult respondents was typical of the general population, with 3.2% coming from Indigenous backgrounds, 10.5% from the United Kingdom, 1.8% from New Zealand, 7% from Europe, 1.4% from Asia, 0.2% from Africa, 0.5% from North America, 0.8% from South America, 1.1% from another English-speaking country, 1.1% from another non-English speaking country and 72.3% identifying as "other Australians". They voluntarily chose to respond to the survey, and consequently the sample is unlikely to be representative of the general community and the findings cannot be generalised.

Respondents included men and women who had attended a Family Relationship Centre (FRC) or another family dispute resolution (FDR) service, men and women who had used the court system (instead of or as well as an FRC or other service), men and women who had not used either system (but who may or may not have accessed other services), and children of parents where family violence had occurred or was continuing.

A total of 931 adults responded to the survey; however, some did not respond to all of the questions so the numbers and percentages of responses varied in relation to each of the questions. Of the 913 who identified their sex, 74.2% were women and 25.8% per men. This was not surprising, as the stated focus of the survey was on family violence and family law and the empirical research shows that victims of family violence are more likely to be women than men (ABS, 2006; Bagshaw & Chung, 2000a, 2000b; Family Law Council, 2010)..

Of 559 women, roughly one-third (28.2%) had separated post-1995 and had only used services pre-2006 (the first cohort); one-third (30%) had separated post-2006 and had not used services prior to that time (the second cohort); and one-quarter (24.4%) had been in the system for the longest period of time, both post-1995 and post-2006 (the third cohort). The majority of the 183 men identified as being part of the pre-2006 cohort (31.4%), followed by those in the post-2006 cohort (26.7%). Almost one-fifth of these male respondents (19.5%) had been in the system both post-1995 and post-2006.

Roughly 10% of the total number of survey respondents (n = 105) began the children's survey and 65% of these children (n = 68) completed it. The respondents to this survey were aged between 5 and 25 years, with a mean age of 13 years. Of the 88 respondents who identified their sex, 53.4% (n = 47) were girls and 46.6% (n = 41) were boys. Seven young adults above the age of 18 (8.3%) chose to complete the survey retrospectively and the researchers decided to include their responses in the data analysed, as their experiences had occurred within the time period under study.

Effect of family violence on parenting arrangements: Key findings from the adult survey

Most respondents to the adult survey were people who said family violence (domestic violence and child abuse) was an issue in their relationship with their ex-partner (82% of women; 56% of men). However, the percentages varied across the three cohorts, with the highest percentage of men and women identifying violence as an issue in the third (both post-1995 and post-2006) cohort (89.7% of women; 63% of men).

In our research findings, all forms of violence needed to be explicitly named and understood, along with the central issues of power and control, which can be subtle and hard to detect (Cook & Bessant, 1997). The following definition of domestic violence - included in the Partnerships Against Domestic Violence Statement of Principles and agreed by the Australian Heads of Government at the 1997 National Domestic Violence Summit - most accurately depicts the experiences of the adults who responded to our survey:

Domestic violence is an abuse of power perpetrated mainly (but not only) by men against women both in relationships and after separation. It occurs when one partner attempts physically or psychologically to dominate and control the other. Domestic violence takes a number of forms. The commonly acknowledged forms are physical and sexual violence, threats and intimidation, emotional and social abuse and economic deprivation. (Australian Government, 1997, p. 1)

Family violence and gender

Most adults surveyed (68.7% women; 52.2% men) stated that family violence had affected their parenting arrangements after separation. However, the triggers for the violence, and the nature and impact of the violence were different for the men and women who provided qualitative responses.

Of women who had ended their prior relationship, 65% of them had done so because of family violence. The largest proportion of women who said they found that family violence made parenting arrangements difficult was in the cohort that had been accessing services for the longest period of time (post-1995 and post-2006); the largest proportion of males stating that violence was a problem was in the post-2006 cohort. We acknowledge that some of the most unhappy users of family law services were probably among those that chose to respond to the survey.

Both women (54%) and men (46%) nominated implementing parenting arrangements and making decisions about children (47% men, 55% women) as contexts where violence against them was frequently or mostly occurring. However, in no context did a majority of men agree that violence was frequently or mostly occurring against them; in contrast, the majority of women said that violence was frequently or mostly occurring against them; in particular when making parenting arrangements and decisions about children.

The qualitative responses to the adult survey showed that women and children were far more likely than men to be victims of severe abuse and threats, giving rise to fear and intimidation. This supports the findings of other recent studies (e.g., Kaspiew et al., 2009; Moloney et al., 2007a, 2007b).

While a small number of men identified themselves as victims of family violence, men and women constructed their experiences of family violence differently (see Richardson & May, 1999). They reported different definitions, meanings, experiences and effects of violence and different responses to it and to their violent partners. This is also consistent with the findings of other studies (Bagshaw & Chung, 2000a & 2000b; Mulroney & Chan, 2005; James, Seddon, & Brown, 2002). In their qualitative responses, women commonly reported violence towards them by men as being unprovoked, more often physical (including destruction of property) and sexual. They described the violence in many different ways as an extreme form of social, emotional, psychological and financial control, and frequently spoke about intimidation and threats that tended to escalate. For example, one woman spoke about the frequency of violence: "It started out as yelling, then progressing to pushing and throwing and the silent treatment, then moved onto rape and physical destruction of property".

Some women felt powerless over arrangements to share care of the children with the fathers and felt they had been pressured into unfair agreements. For example, one woman who used services before the 2006 reforms said: "The power he held over me during the relationship continued afterwards in regard to parenting arrangements and finances". She said that she was bluffed into thinking she must agree to "equal time". Another said: "I made decisions based on my fear of him".

The qualitative data from the male respondents who reported ongoing violence from female ex-partners to themselves and their children did not include physical or sexual violence or threats of harm to the children. Rather, male victims reported ongoing harassment and psychological abuse from their female ex-partners. The majority of these men, while distressed, said they were not fearful of their former partner, nor did they report feeling powerless. For example, one man said: "My ex-wife is very violent to me but I have been able to block her access to the children and so it is not such a problem". However, a few men said they were fearful and some felt powerless because they believed their ex-partner was using accusations of violence to stop them having access to their children.

Women generally rated harms arising from violence much higher than did men. They reported serious violence by men (ex-partners, children's fathers, step-fathers and male relatives) towards themselves and their children, both before and after separation. Women reported life-threatening acts but men did not. One in three women, compared to only one in seven men, reported extreme physical or sexual harm. Continuation of violence from ex-partners after separation was commonly reported by women and included threats (including of murder and/or physical harm to the respondent and the children), property damage and financial losses, harassment by letter or phone, and stalking. Furthermore, women were more likely than men to report experiencing fear on a continuing basis before, during and after separation, and this constant fear affected their mental health.

Mental health, alcohol and substance abuse, criminal activity and family violence

One-quarter of the women and just more than one-quarter of the men surveyed said that mental health problems and/or misuse of alcohol or other drugs, and/or criminal activity were a factor in their concerns for the safety of their children following separation. Evidence suggests that parental capacity is compromised by the effects of alcohol and drug abuse (Dawe, Harnett, & Frye, 2008); in particular when combined with mental health problems and family violence.

It was clear from the analysis of the survey data that mental illness can be a cause of, context for, or consequence of separation and can be caused by and/or exacerbate family violence. This finding is supported by other researchers (see Laing, 2004; McInnes, 2008; Kaspiew et al., 2009). Some parents (both men and women) said that their partner's mental illness was not taken into account when making parenting arrangements. However, some women also claimed that their mental illness was caused by family violence and this was not acknowledged when parenting arrangements were decided, either depriving them of the primary care of their children or allowing for the violence to continue.

Disclosing violence

Being a victim of violence and being too afraid to tell anyone was a problem for approximately two in five of all of the women surveyed and one in three of the men. The post-2006 cohort data showed that men's and women's experience of violence from their ex-partner, and being too afraid to tell anyone, affected approximately two in five men and women.

Only 60% of the respondents who attended FRCs said they disclosed their experiences of family violence and only 10.5% of those who reported violence to a FDR service were given a certificate of exemption (see s60I of the Family Law Act) from using the service. In this context, women were more likely than men not to disclose violence and twice as likely to report that family dispute resolution proceeded if family violence was disclosed.

A minority of respondents whose ex-partner had used violence were advised by their lawyer not to raise it. In general, men (30%) were twice as likely than women (16%) to say they had been advised not to disclose their ex-partner's violence. In the post-2006 cohort, 34% of men and 18% of women said they had been advised not to disclose their ex-partner's violence.

The qualitative responses of both men and women in the survey who decided or were advised not to disclose violence indicated that many were faced with the "victim's dilemma", described by Chisholm (2009, p. 29) as being the choice of "balancing the risk to the child from not taking protective action against the risk to the child of doing so unsuccessfully, with the consequence that the child spends more time with the perpetrator".

The findings of our study support the dominant theme in Chisholm's (2009) report, namely that in every component and at every point in the family law system, disclosure and understanding of family violence should be encouraged and facilitated, and effective actions should be taken to support the safety of all parties.

Disbelief and disregard for the effects of violence

Most women who disclosed that they or their children were victims of violence said they could not get the help they needed from services (in particular, from solicitors and the courts) to protect themselves and their children. Often they were not believed and, when they were, they said they still received no protection for themselves and their children. For example, one mother said: "The judge said that he [my ex-partner] was violent ... [the judge] agreed that he was violent ... but [the judge] ordered overnight contact".

Overall, women (34%) were more likely than men (19%) to feel that their allegations of violence from their ex-partner were believed and taken seriously, but approximately half of both the men and women felt their allegations were not taken seriously. In the data from the post-2006 cohort, only 19.5% of men and 28% of women felt their allegations were believed and taken seriously. The 2006 law reforms, which introduced penalties for false statements, fostered beliefs that allegations of violence were likely to be viewed as false if evidence could not be provided (see also Chisholm, 2009). Chisholm (2009, pp. 49-50) and Australian Institute of Family Studies researchers (Moloney et al., 2007a, p. 1) also noted, however, that claims that mothers make false allegations as a form of revenge or to take tactical advantage in disputes over children have been, and still are, widespread in the community in spite of having "largely been debunked by the research community".

Overall, men (24%) in our study were more likely than women (15%) to feel that their denials of family violence were believed, which may be because there tend to be more allegations of violence made by women than by men. However, men (41%) were also more likely than women (30%) to feel their denials of violence were not taken seriously. In the post-2006 cohort, 27% of the men and 15% of the women felt their denials of family violence were taken seriously.

We support Chisholm's (2009, p. 50) view that, given that there is "no good evidence" that allegations of violence are likely to be fabricated by men or women, all allegations and denials of family violence should be treated seriously and should be thoroughly investigated by family violence experts before parenting arrangements are made. One reason for investigating denials is that it is well documented that male perpetrators of violence tend to minimise or deny their violence (e.g., see Bagshaw & Chung, 2000a & 2000b).

Levels of satisfaction with family services in relation to parenting arrangements

Participants were asked questions about their experiences of family relationship services, pathways through the family law system and their level of satisfaction with the family law services they used. The services most commonly used were outside of the family law system and included: family and friends (78%), Centrelink (68%), health services (58%), counsellors in private practice (54%), the police (54%) and lawyers in private practice (74%). The family law services most highly utilised included the Child Support Agency (73%), the Family Court of Australia (55%), Family Relationship Centres (42%) and legal aid services (40%).

The survey showed the highest dissatisfaction rate to be with services they used to assist them with decisions about children's matters arising from separation: overall, 64% of respondents (68% of men; 62% of women) were strongly dissatisfied with these services. Satisfaction with these services marginally decreased after the 2006 reforms and satisfaction rates with family violence services marginally increased for couples who separated after the 2006 reforms. However, on the whole, the respondents were also highly dissatisfied with their use of family violence services (57% of men; 55% of women), which were self-defined by the participants and included a broad range of services they employed to address issues of family violence. Both male and female respondents named police services, the Family Court of Australia and child protection services as those they were least satisfied with. They were most satisfied with domestic violence services (external to the family law system), general medical practitioners and Centrelink. After the 2006 reforms, men's satisfaction with family violence services decreased by 6%. However, post-2006, men expressed a 9% increase in satisfaction with services used to assist with decision-making about children's matters.

Men reported using different and fewer family services than women, although a higher percentage of men reported using family services after 2006 than before 2006. Two dominant themes emerged from men's qualitative responses to a question about how family violence had affected their use of professional services. Firstly, some men felt alienated from family violence services because of reluctance on the part of police and other family service providers to consider that men could be legitimate victims of family violence and women could be perpetrators of violence. Secondly, some men stated they were fighting false allegations of abuse against them and so had to continually convince services of their innocence. Overall, the combination of low service usage and high dissatisfaction with family services among men indicates that family service providers and government regulators may need to consider how best to respond to the needs of men who experience family violence after separation.

The impact of family violence on parenting arrangements for the post-2006 cohort

In the post-2006 cohort, all women reported ongoing violence to themselves and to the children, as well as continuing fear, ongoing threats, harassment and stalking - all of which made parenting difficult. In comparison with the other two cohorts (post-1995, and both post-1995 and post-2006), respondents in this cohort mentioned using mediation, FRCs, private counselling and legal services from solicitors, barristers and courts more frequently for decisions about their parenting arrangements.

There were also more frequent references by women from this cohort to financial blackmail or threats from their ex-partners, similar to the report of this mother:

My ex used our son as a bargaining tool. He would threaten to have more access if I did not agree to a particular financial arrangement ... He also logged my emotional and psychological states ... He refused to let my son be babysat by my parents to stop me from going to university ... He did not want me to continue studying.

One third of the women in this cohort reported financial threats and pressure, ranging from being made homeless by being forced to leave the family home, or having their ex-partner obstruct a court-ordered settlement, withhold assets held by the bank and withhold clothes and furniture. Some of the threats were linked to the desire of men to obtain more time with their children.

Recent reports suggest that the presumption created by the 2006 reforms in favour of equal shared parental responsibility have actually created widespread misunderstanding of the operation of the law. They suggest that separating parents and some of their advisers have believed that the term "equal shared parental responsibility" means that they are entitled to equal time; that is, 50-50 shared care arrangements for their children (Chisholm, 2009; Family Law Council, 2009; Kaspiew et al., 2009). We also found that these factors had some influence on parenting decisions, especially for women who separated after the 2006 changes to the Family Law Act. Their qualitative comments referred repeatedly to "50-50 arrangements", "equal time", "50% parenting" and the like. Women spoke of pressure to agree to such arrangements, including pressure from lawyers, despite the arrangements being contrary to the interests and safety of the children. Some men also felt that their expectations about equal time parenting arrangements were discounted by the court because of systemic bias on the part of family law professionals (e.g., due to a perception that some men do not make good fathers).

The so-called "friendly parenting" provision contained in section 60CC(3)(c) of the Family Law Act means that, in essence, when making a parenting order, one of the factors the court is now required to take into account is "the willingness and ability of each of the child's parents to facilitate and encourage a close and continuing relationship between the child and the other parent". Many respondents who accessed services post-2006 said they did not disclose violence to the court for fear that if their allegations were unproven they would be viewed as an "unfriendly parent" and the children they were trying to protect would be exposed to the perpetrator for longer periods (see the earlier reference to the "victim's dilemma").

In the qualitative responses from this post-2006 cohort, women consistently said that fear of losing the primary care of their children was a major factor influencing decision-making, while for the men it was fear of losing contact with their children. One-fifth of women who accessed services post-2006 said they felt "forced" to agree or were "bullied" into agreeing to equal time parenting arrangements. In qualitative responses, a large proportion of all respondents (in particular, women who had accessed services from 2006 onwards), said concerns for their safety and the safety of their children were not heard or considered when parenting decisions were made. A larger proportion of women than men also stated that their children were "not safe" when with the other parent.

More respondents in this post-2006 cohort had used services to assist with parenting arrangements than in the other two cohorts. One person said, "the Family Relationship Centre worked well and mediation there was helpful". However, some thought that the FRC pre-mediation and information sessions did not focus on family violence and they thought this needed to be more firmly addressed. More parents in this post-2006 cohort than in the other cohorts had been granted intervention orders to prevent contact between the violent parent and the victims, and more reported that these were effective in stopping the violence, but they did not say why. Overall, domestic violence orders had been applied for by 28 men and 239 women, and police had attended breaches in 156 cases. When police prosecuted breaches of women's orders, there was a higher rate of success (44%) than for breaches of men's orders (37%).

The family courts were seen more negatively than positively by the respondents in the post-2006 cohort in relation to parenting decisions. Some of this was linked to the notion of shared parental responsibility (often confused with shared parenting), which many suggested had detracted attention from the violence. As one mother said: "I have felt pressured by the court to give the father contact even though he is unsafe; the court believes he must have access every weekend". Another mother said: "My concerns [as to his violence] were ignored by the court. He says he has overcome his anger problem. However, since then he has attempted to force me into a deserted isolated car park, but as I did not go and he did not assault me, I cannot take any action. His intimidation of me and the children did not count in court".

Fathers in this cohort expressed similar problems of being a father with a violent female ex-partner. One thought the legal system, solicitors and courts, had "virtually ignored" him and his son's problems as a result of psychological, sexual and financial abuse from a partner who was the breadwinner and who had had a number of admissions to a psychiatric facility. Like some other men, he reported that his ex-partner made allegations of violence against him to ensure agreement with her parenting plans. Many of the men in this cohort reported that their ex-partners had mental health or substance abuse problems.

The impact of violence on parenting arrangements for the post-1995 and post-2006 cohort

The cohort who used services both post-1995 and post-2006 (i.e., who had experienced the two different systems) reported different consequences of family violence than did the post-1995 cohort and post-2006 cohort. For the majority in this cohort, family violence (in particular, physical violence by men toward women and children) had continued after the separation, causing them to use court and court-related services - such as contact centres, the police and child protection services - for many years. This cohort was the most frustrated and dispirited, with most women reporting being highly anxious and fearful, and most men being angry and detached. Most described the services they used as unhelpful and believed that the violence they had reported had been given little or no consideration.

Respondents in this cohort described how they tried for years to convince services that they and/or their children were being threatened by violence. Women reported more success in this than men, but spoke of years of exhaustion, high anxiety levels, fear and long-term psychological problems for their children. As one mother reported: "The children don't sleep well ... They now accept his violence as normal, but they are always afraid he will come over and kill us". Three-quarters of these women spoke of great fear, in particular that they and/or their children would be killed by their former partner. They made comments such as, "I fear for my life and for my daughter's life", "I fear for my daughter's life", "I live in fear" and "I am surprised every day that we are still alive". These women described former partners as extremely violent, with criminal histories of violence, and who abused drugs or alcohol. For some women the continued substance abuse meant their male partners drifted away and for this they were grateful. A typical comment was, "I now have sole care of my children due to his drug use and consequent absence". The most difficult period for this group of women was when their children were under 12 years of age; as the children became older, some mothers said their response to their fathers' direct abuse was to cut their ties with him, regardless of court orders and parenting agreements.

The men in this cohort reported similar long-term violence against them that was not believed, but they responded differently. They did not speak of ongoing fear or of resenting their ex-partners' greater power, but rather of their frustration and anger with their situation. They were angry with their former partner and with the services they accessed. Some reported that their ex-partner had made false allegations of violence against them and were angry about the long amount of time that services took to investigate them. For half of these men, the result was that, despite investigations that supported their views, they lost their relationship with the children; sometimes walking away was the easiest thing to do. However, none of the women did this.

All members of this cohort used services for their parenting decisions and almost all were involved with the Federal Magistrates Court or the Family Court of Australia. Despite the availability of new family services post-2006, this group had not been referred to them or moved to use them.

Adult respondents who did not use formal family services for parenting arrangements

Just over 10% (n = 92) of adults who responded to a question about the use of formal services said they had made their own decisions following separation without using formal family services to assist with parenting arrangements. More than one-quarter of those said that they preferred to resolve their parenting disputes privately because their separation was amicable, there was no disagreement, they wanted to avoid what they perceived as an adversarial legal system or family violence had ceased. However, a little less than 19% of those who did not access formal services said they made that choice because family violence made their use of services dangerous or impossible. Family violence victims said they felt bullied into making agreements or they rejected formal services because they would provide further avenues for abuse. This finding supports previous reports (see Kaye, Stubbs, & Tolmie, 2003) and warrants further consideration.

The effect of family violence on children: Key findings from the adult and children's survey

Adult survey responses

The AIFS study (Kaspiew et al., 2009, p. 5) reported that among those parents who separated after the 2006 changes to the Family Law Act, around one in five parents said they held safety concerns associated with ongoing contact with their child's other parent, and more than 90% of these parents had either been physically hurt or emotionally abused by the other parent.

As mentioned in the previous section, in the qualitative responses to the adult survey a large proportion of the parents who separated post-1995 indicated that their children were not safe when with the other parent. They also stated that their concerns for the safety of their children were not heard or considered when parenting decisions were made. As Table 1 indicates, of those who responded to a question about whether they thought their children were safe when with the other parent, women in the two cohorts that covered the time period post-2006 were more likely to strongly disagree.

Table 1: Numbers and percentages of men and women from three cohorts in relation to whether they thought that their children were safe when with their other parent
Answer options Males Females
Cohort 1: Pre-2006
% (n)
Cohort 2: Post-2006
% (n)
Cohort 3: Post-1995 & post-2006
% (n)
Total males
% (n)
Cohort 1: Pre-2006
% (n)
Cohort 2: Post-2006
% (n)
Cohort 3: Post-1995 & post-2006
% (n)
Total females
% (n)
Strongly disagree 27.3% (15) 27.5% (11) 15.8% (6) 17.3% (32) 28.9% (37) 37.7% (57) 39.4% (50) 35.5% (144)
Disagree 14.5% (8) 17.5% (7) 26.3% (10) 13.51% (25) 25.0% (32) 18.5% (28) 22.8% (29) 21.9% (89)
Neutral 20.0% (11) 17.5% (7) 15.8% (6) 13% (24) 25.0% (32) 24.5% (37) 16.5% (21) 22.17% (90)
Agree 30.9% (17) 22.5% (9) 28.9% (11) 20% (37) 11.7% (15) 13.2% (20) 14.2% (18) 13.1% (53)
Strongly agree 7.3% (4) 15.0% (6) 13.2% (5) 8.1% (15) 9.4% (12) 6.0% (9) 7.1% (9) 7.39% (30)
Totals 55 40 38 133 128 151 127 406

Note: Percentages may not add up to 100.0% due to rounding.

In the qualitative responses to the adult online survey, 25% of the adults reported that the violence to their children pre- and post-separation was very serious and included head injuries, overdoses of sedatives requiring hospital admission, abduction of children and confirmed sexual abuse of children. In qualitative responses from 256 mothers to questions about the nature and effects of family violence on their children post-separation, there were many repeated and overlapping statements about men's (fathers, step-fathers and male relatives) abusive behaviours toward their children, and some of these were extreme. They described acts of psychological, emotional, verbal, sexual and physical abuse and neglect to which child victims were exposed as a result of inappropriate parenting arrangements. They also described many negative consequences for their children. Women frequently reported that they and their children felt frightened or terrified. Women were most distressed about children younger than four, who had the most serious injuries, including drug overdoses and head injuries.

By contrast, in the qualitative responses from 59 fathers to questions about the nature and effects of family violence on their children post-separation, there was very little repetition or overlap, partly because there were fewer and less detailed responses and the men tended to focus more on the mothers' emotional and psychological abuse of children, and abuse from the mother's current male partner.

Ten per cent of mothers said they gained no contact orders to protect their children and a smaller group who had organised for their children to have supervised contact with their violent fathers (mostly with a relative) reported being constantly threatened and harassed. A small number of mothers successfully avoided their children having contact with the perpetrator; in some cases by consent and in others because he was mentally ill and lost connection with the children.

Adult survey respondents were asked to mark on a five-point scale the extent to which direct abuse by one or both of the parents had harmed their children. The findings showed that:

  • of 502 respondents to this question, 70.9% (75 men; 281 women) thought their children were "considerably" or "extremely" harmed emotionally/psychologically;
  • of 499 respondents to this question, 50.7% (54 men; 199 women) thought their children were "considerably" or "extremely" harmed socially (e.g., through disrupted peer relationships);
  • of 501 respondents to this question, 48.1% (53 men; 188 women) thought their children were "considerably" or "extremely" harmed educationally;
  • of 490 respondents to this question, 24.9 (19 men; 103 women) thought their children were "considerably" or "extremely" harmed physically; and
  • of 485 respondents to this question, 13.8% (15 men; 52 women) thought that their children were "considerably" or "extremely" harmed sexually.

In addition, prior research indicates that children witnessing domestic violence is a form of child abuse and can have traumatic and longlasting effects on children (Laing, 2000; Perry, 2001; Postmus & Merritt, 2010; Shea Hart, 2004; Shea Hart & Bagshaw, 2008; Streeck-Fischer & Van der Kolk, 2000; Zerk, Mertin, & Proeve, 2009). Of 628 adults who responded to a question about children witnessing family violence, 58.9% (76 men and 295 women) said they had engaged in abusive behaviours with their ex-partner and their children had seen and heard the abuse. In addition, 11.9% said their children had seen the abuse and 15.9% said their children had heard the abuse. Only 13.1% said they had neither seen nor heard the abuse.

Finally, when parents were asked whether they thought their children's concerns and wishes were considered when parenting decisions were made, more than half (53.8%; n = 86) of the men, and nearly half (49.1%; n = 219) of the women who responded said that they "disagreed" or "strongly disagreed". Conversely, more than one-quarter of the men (26.3%, n = 42) and 28.7% (n = 128) of the women indicated that they agreed or strongly agreed with this statement.

Children's survey responses

Research suggests that parental arguments and fights can affect children's emotional health - especially their feelings of self-worth, agency and efficacy - and can lead to adjustment difficulties in later life (e.g., see Carpenter & Stacks, 2009; Postmus & Merritt, 2010). Of the 65 children who answered a survey question about whether or not they had heard their parents argue pre- and post-separation, 52.3% (n = 34) said they saw or heard their parents argue prior to separation. Significantly, 18 children reported that they were usually hurt or frightened following their parents' arguments. One child wrote: "You won't let me give you more answers so I did lots of things you put, but mum killed my dog and my bird and I am not allowed to use a phone and no one can help me". Another child reported being held by her father while he was hitting her mother.

While 67.8% (n = 40 of 59) of children reported that they felt frightened or scared when their parents fought post-separation, 52.5% (n = 31) also felt helpless because they could not stop the fights and 28.8% (n = 17) also thought that the arguments and fights were their fault. This is a much higher percentage than those who reported feeling frightened or scared when their parents fought pre-separation and the reasons for this warrant further investigation. Prior research indicates that children can feel far more vulnerable after separation (in particular where there is family violence) and need far more protection, attention and support from sources other than parents where violence is an issue (Bagshaw, 2007). Parents also need education to understand the effects that conflict and violence have on their children post-separation (Bagshaw et al., 2006).

In relation to parenting arrangements, most children surveyed (66.2%; n = 51 of 77) said that they would have liked to have made a decision about their residence and contact arrangements following separation; in particular those who had been exposed to or were direct victims of family violence. These findings are supported by other national and international research that indicates that children want to be consulted on issues that directly affect them (Bagshaw, 2007; Campbell, 2008; Cashmore & Parkinson, 2009; Neale, 2002; Smart, 2001). Children in our study said they wanted their decisions to be communicated to another adult - such as a judge or magistrate (37.7%), a lawyer (28.6%), or a counsellor or mediator (24.7%) - which suggests that children and young people might find it easier to communicate their choices to a professional adult rather than to members of their families, especially where those children have experienced family violence. While some respondents would have liked their mothers (26%) or fathers (19.5%) to ask them about where they might live, these low frequencies reflect the literature that suggests that parents can put their children in difficult positions if they ask them for their "wishes".

Of the children in our sample who reported continued exposure to parental conflict after separation, 42.4% (n = 28) sought help from a friend, 39.4% (n = 26) from siblings and the same percentage from children's counsellors, 9% (n = 6) from court personnel and 25.8% (n = 17) from other people. There were 19.7% (n = 13) who "didn't talk to anyone". which is a concerning finding. When asked what actions were most helpful, 49 children responded and 19 said that people who helped them listened to their concerns and gave good advice. Distracting activities (such as games and visits to people) also helped (n = 6) and emotional support such as hugs, "always being there" and reassurance were valued (n = 17).

Forty-three children suggested various kinds of help that other children might need when their parents separate. These included a need to "be believed" rather than simply being listened to (39.5%), general support from people who care, effective counselling, effective parents who protect them and do not fight, a need to have a voice and to have their needs and wishes considered, and an effective court ("not to have the court make [their] life worse"; "for the stupid court to actually listen").

Children were asked how safe they felt now (after the separation) when with each of their parents. Children who responded were more than twice as likely to feel "very safe" (67.2%; n = 43) or "mostly safe" (16.9%; n = 11) when with their mother than when with their father. Nearly three times more children reported feeling "not at all safe" (38.7%; n = 24) or only "a bit safe" (6.3%; n = 8) when with their fathers than when with their mothers.

Even though the sample size is small, these findings support other research that suggests that family violence (domestic violence and child abuse) can lead to children feeling unsafe in the company of a violent parent, some for many years following the violence (Carpenter & Stacks, 2009; Harne, 2003; Zerk, Mertin, & Proeve, 2009).

Overall, our findings support those of other researchers who have also found that family violence can damage children and their relationships with one or both of their parents after separation; in particular if appropriate and timely assistance is not offered to the children and families affected (Bagshaw et al., 2006; Family Transitions, 2010; McIntosh, 2003; McIntosh & Chisholm, 2008; Perry, 2001; Postmus & Merritt, 2010; Shea Hart, 2004; Shea Hart & Bagshaw, 2008; Streeck-Fischer & Van der Kolk, 2000).

Conclusions

This article reports on the findings from the analysis of data from two national online surveys (one for adults and one for children), which collected quantitative data and also allowed for qualitative comments about family violence and its impact on parenting and parenting arrangements post-1995 and post-2006. The surveys formed one part of the Family Violence and Family Law study commissioned by the Australian Attorney-General's Department.5 The findings are based on the analysis of data from a self-selected sample of respondents to opt-in surveys and, while they are indicative of the experiences of the participants in the research, they are not generalisable to the broader population.

For most adult respondents, family violence posed problems in relation to decisions about their parenting arrangements that had to be dealt with after separation and within the family law socio-legal service system. The research findings reflect those in the Chisholm report (2009), which focused on assessing the appropriateness of legislation, practices and procedures that apply in family violence cases - in particular in the courts - and which were largely based on submissions and meetings with stakeholders. Our study reports on the lived experiences of a sample of men, women and children who had separated since 1995 and since 2006, and for whom family violence was and was not an issue. It therefore adds value to the other reports that have also recently been published in relation to the impact of the 2006 changes to the Family Law Act (e.g., Cashmore et al., 2010; Chisholm, 2009; Family Law Council, 2010; Kaspiew et al., 2009).

In our adult sample, there were clear gender differences in the reported motives for, experiences of and responses to violence; a finding that supports those of other studies (e.g., Richardson & May, 1999; Bagshaw & Chung, 2000a & 2000b; James, Seddon & Brown, 2002; Mulroney & Chan, 2005). Women and children were far more likely than men to be victims of severe abuse, intimidation and threats, giving rise to fear and intimidation.

More women than men who responded to the adult online survey in our study accessed family law services to assist with their parenting arrangements, and most respondents (women and men) were dissatisfied with them. The most frequent complaint that men and women had about all of the services that they accessed post-2006, with the exception of domestic violence services, was the disbelief or disregard perceived by victims when they reported family violence, and a consequent lack of assistance that ranged from the violence and associated problems being ignored, to their being labelled as "alienating" parents, to being offered unsuitable parenting proposals (with a sense of coercion about them), to actual further harm. There were many reports, in particular from mothers, of inappropriate parenting arrangements that seriously compromised their children's safety, including arrangements that exposed children to serious psychological, emotional, sexual and physical abuse - mainly from a parent, but also from a step-parent or relative. The fact that nearly half (n = 31 of 65) of the children who completed the survey reported feeling "not at all safe" when with one of their parents is a concerning finding. Nearly three times more of these children reported feeling "not at all safe" when with their fathers than when with their mothers.

The reported high level of non-disclosure of violence in our sample needs to be taken into account by legislators and service providers in the family law system. Only 60% of victims who attended said they disclosed family violence to an FRC. Women were more likely than men not to disclose violence and twice as likely to report that FDR proceeded if family violence was disclosed. Only 10.5% of those who reported violence to an FDR service were given an exemption from using the service. This may be because some made an informed choice to proceed with family dispute resolution and that appropriate safeguards were in place; however, this finding warrants further investigation.

Many respondents who accessed services post-2006 said they did not disclose violence to the court for fear that if their allegations were unproven they would be viewed as an "unfriendly parent" and the children they were trying to protect would be exposed to the perpetrator for longer periods. Only 34% of women and 19% of men who reported violence felt that their reports were believed. These and other findings of this research support the recommendation in the Chisholm report (2009) that in every component and at every point in the family law system, disclosure and understanding of family violence should be encouraged and facilitated, and effective actions should be taken to support the safety of all parties. The researchers agree with the recommendation made by Chisholm (2009) and the Family Law Council (2010) that consideration should be given to amending section 60CC(3)(c) of the Family Law Act to ensure as far as possible that children are protected at all times from violence and abuse and parents are not discouraged from exposing violent behaviour for fear that they will be regarded as an "unfriendly parent".

Adult survey respondents were asked to comment on the impact of specific aspects of the 2006 reforms (shared parental responsibility, shared care of children, false statements and relocation) and to identify ways in which the Family Law Act and the family law system could be improved. There was a high level of uncertainty about the new concepts; for example, shared parental responsibility was frequently confused with shared care. The most commonly cited recommendations for change were the need for: improved responses to the needs and wishes of children, changes to the "presumption of 50-50 shared care", improved understanding of and responses to family violence, and improvements to investigative practices and processes associated with separation matters in the Family Court.

A dominant and repetitive theme in the qualitative responses from adults (women in particular) indicated that many of the family law professionals they came into contact with failed to recognise and/or understand the subtle, complex and controlling aspects of family violence and its effect on victims. Many suggested that more education and training of all family law professionals (lawyers and judges in particular) is needed so that the non-physical aspects of violence are recognised; disclosures of violence are facilitated, believed and investigated; and parenting decisions ensure that their children are safe and are not exposed to danger when with the other parent. Some suggested that all allegations of violence should be investigated by family violence "experts", such as those employed in domestic violence services external to the family law system (who they felt did understand the nature and effects of family violence), before parenting decisions are made.

The adults and children who responded to the online survey also proposed many other changes to family law legislation and to the socio-legal services system, which are detailed in the report of the research (Bagshaw et al., 2010). These included the need for children to be consulted and listened to in relation to parenting arrangements - especially when there are allegations of violence - and to be given feedback if parenting arrangements are contrary to their stated wishes; the need for ongoing and mandatory education on the nature and effects of family violence for the entire family law system; the need for more support services for victims of violence, in particular for children exposed to family violence; and the need for policy and legislative changes to give priority to the protection of victims of family violence; in particular, changes that enhance children's physical, sexual, psychological, emotional, social and developmental safety.

Endnotes

1 See Bagshaw et al. (2010). Volume 1 of the research report is available online and in hard copy and provides an overview, summary and discussion of the findings. Volume 2 (the appendices) includes the survey questions and a more detailed analysis of each section of the survey, illustrated with tables and graphs. Available on the Attorney-General's Department website: <tinyurl.com/29l69co>.

2 It is important to note that just over 10% of the respondents to the adult survey had not used services and their responses were analysed separately to ascertain why this was so.

3 Children and Teens First (CHaT First) is a website developed from the research findings of the Children and Families in Transition Project (Bagshaw, Quinn, & Schmidt, 2006) and provides relevant information and contact details for a range of services for children, young people and parents from separated families, including information about family violence and associated services: <www.chatfirst.com.au>.

4 One family service organisation expressed concerns about the ethics of using an online survey with children, so the researchers withdrew the survey and made some modifications in response to these concerns. Two of the researchers and the members of the ethics committee of that organisation are engaged in ongoing constructive dialogue about ethics and research with children. At a later stage, two men from men's rights groups contacted the researchers and threatened to sabotage the children's survey. As enough data had been collected at that stage, the survey was withdrawn.

5 It is important to note that these findings were supported by the analysis of additional data gathered later in the study from call-back interviews and "phone-ins" in Queensland and South Australia, which have not been included in this article (see Bagshaw, et al., 2010).

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Co-directors and researchers: Associate Professor Dale Bagshaw is an Adjunct at the University of South Australia; Professor Thea Brown is at Monash University.

Researchers: Dr Sarah Wendt, Dr Alan Campbell and Dr Elspeth McInnes are senior lecturers and researchers at the University of South Australia. Beth Tinning is a lecturer and researcher at James Cook University. Dr Adiva Sifris is a senior lecturer and Dr Becky Batagol and Dr Danielle Tyson are lecturers and researchers at Monash University.

Research assistants: Dr Joanne Baker was located at the University of South Australia and is now a lecturer at Flinders University. Paula Fernandez Arias is at Monash University.

Suggested citation:

Bagshaw, D., Brown, T., Wendt, S., Campbell, A., McInnes, E., Tinning, B., Batagol, B., Sifris, A., Tyson, D., Baker, J., & Fernandez Arias, P. (2011). The effect of family violence on post-separation parenting arrangements: The experiences and views of children and adults from families who separated post-1995 and post-2006. Family Matters, 86, 49-61.