Responding to family violence

A survey of family law practices and experiences
Evaluation of the 2012 Family Violence Amendments – October 2015

2. Overview of the effects of the Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 (Cth)

This chapter begins the discussion of the substantive findings of the Survey of Practices. It starts with a discussion of response patterns to some broad questions in the Survey of Practices relating to core elements of the reforms, including the way in which the balance is struck between the aims of ensuring children have a meaningful relationship with both parents after separation and ensuring they are protected from harm from exposure to family violence, child abuse or neglect (see Box 1 for relevant legislative provisions). It then discusses survey responses on other aspects of the changes, including participant perceptions about whether the changes have benefitted children and whether the participants have changed the advice they give parents. In all of these areas, the discussion is based on aggregate responses for 2014, comparison of 2008-09 and 2014 responses (where 2008-09 data are available), and differences in response patterns among professional groups where these are noteworthy.

Box 1: Family Law Act 1975: s 60CC

How a court determines what is in a child's best interests

Determining child's best interests

(1) Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).

Primary considerations

(2) The primary considerations are:

(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and

(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).

(2A) In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph(2)(b).

Overall, the general patterns in findings suggest a positive response to the 2012 family violence reforms, with practitioner responses indicating that protection from harm is given greater weight now than it was previously, and that advice-giving practices have shifted in a direction consistent with the intent of the reforms to better identify families where this is an issue. At the same time, the responses do not suggest that any less weight is placed on maintaining relationships with parents and children after separation where this is appropriate.

2.1 Meaningful relationships and protection from harm

This section examines participant views on the balance between what have been referred to as the "twin pillars" of Part VII7 - the need to protect the child from harm and their right to maintain a meaningful relationship with both parents. It also sets out participant attitudes to the "tie-breaker" (Rhoades, Sheehan, & Dewar, 2013) provision, s 60CC(2A), that specifies greater weight is to be placed on protection from harm.

2.1.1 "Adequate priority" on meaningful relationships and protection from harm?

Table 2.1 depicts the pattern of responses to two propositions that refer to two critical and interlinked issues: the extent to which the family law system gives "adequate priority" to a child's right to meaningful involvement with both parents, and the need to protect children and other family members from harm from family violence, child abuse or neglect. Concern about the family law system's capacity to support an appropriate balance being struck in the effectuation of these aims has been a central aspect of the 2012 family violence reforms, as discussed in Chapter 1.

Table 2.1: Agreement that adequate priority is given to children's meaningful relationships and protection from harm, by professional group, 2014
  Judicial officers Lawyers Non-legal Aggregated
No. % No. % No. % No. %
Note: Judicial officers/registrars were asked in 2014, lawyers were asked in 2014 and 2008 and non-legal professionals were asked in 2009 and 2014: "To what extent do you agree or disagree that the following statements describe your view? The child's right to meaningful involvement with both parents is given adequate priority in the system" and "The need to protect children and other family members from harm from family violence and child abuse is given adequate priority in the system". Percentages may not total 100.0% due to rounding.
Source: Survey of Practices 2014
Child's right to meaningful involvement with both parents
Strongly agree 15 41.7 88 27.4 60 20.8 163 25.2
Mostly agree 21 58.3 196 61.1 179 61.9 396 61.3
Mostly/strongly disagree 0 0.0 36 11.2 45 15.5 81 12.5
Cannot say/not applicable 0 0.0 1 0.3 5 1.8 6 1.0
Total 36 100.0 321 100.0 289 100.0 646 100.0
Protecting children/family members from harm
Strongly agree 16 43.2 53 16.6 45 15.4 114 17.5
Mostly agree 20 54.1 165 51.6 137 46.8 322 49.5
Mostly/strongly disagree 1 2.7 98 30.7 107 36.5 206 31.7
Cannot say/not applicable 0 0.0 4 1.3 4 1.4 8 1.2
Total 37 100.0 320 100.0 293 100.0 650 100.0

The findings presented in Tables 2.1 to 2.4 are shown broken down by sample groups (see Chapter 1) as well as the entire sample. Taking the responses of the sample as a whole, the findings indicate that a majority provided affirmative responses to each statement, though a greater majority endorsed the proposition that "the child's right to a meaningful involvement with each parent is given adequate priority in the system". This proposition was endorsed by 87% of the sample, compared with 67% agreeing with the statement that the "need to protect children and other family members from harm from family violence and abuse is given adequate priority in the system". A much greater proportion (32%) of the sample also provided negative responses to the protection from harm statement, compared with 13% for the meaningful relationship statement. Non-committal responses (cannot say, not applicable) were uncommon in relation to each of these statements.

The two sample groups that are most likely to yield highly reliable results because of large sample sizes are the lawyers and non-legal professionals, and their responses in relation to these propositions are broadly consistent.

2.1.2 Has anything shifted? Comparison between 2008-09 and 2014 responses

Comparison of the responses of lawyers in 2008 and 2014 and non-legal professionals in 2009 and 2014 to these propositions provides some insight into the extent to which the family violence reforms can be seen to be associated with changed views among these professionals.

From the perspective of lawyers, the results depicted in Table 2.2 suggest a shift has occurred, with greater proportions endorsing the proposition in relation to protection from harm in 2014 compared with 2008. Notably, the relative proportions providing an affirmative response in relation to each aim have increased - marginally in relation to meaningful relationship (89% cf. 86%) and substantially in relation to protection from harm (68% cf. 55%). However, consistent with the results reported in the preceding section, affirmative responses for protection from harm sit 20 percentage points below those for meaningful relationships, suggesting that parity between these principles remains some way off (if indeed parity reflects optimum operation when the intent of the legislature was for greater emphasis to be placed on protection from harm). The absence of any reduction, and indeed a marginal increase, in affirmative responses in relation to meaningful relationships suggests that any change in relation to protection from harm has not come at the expense of meaningful relationships.

Table 2.2: Lawyers who strongly or mostly agree that meaningful relationships and protection from harm are given adequate priority, 2008 and 2014
  FLS 2008 Survey of Practices 2014
No. % No. %
Notes: Lawyers were asked in 2008 and 2014: "To what extent do you agree or disagree that the following statements describe your view? The child's right to meaningful involvement with both parents is given adequate priority in the system" and "The need to protect children and other family members from harm from family violence and child abuse is given adequate priority in the system". a This item was answered by 320 respondents. Percentages do not total 100% as not all response categories are presented and multiple responses could be chosen.
Sources: Family Lawyers Survey 2008; Survey of Practices 2014
The child's right to meaningful involvement with both parents is given adequate priority in the system 274 85.9 284 88.5
The need to protect children and other family members from harm from family violence and child abuse is given adequate priority in the system 175 54.9 218 a 68.1
Total respondents 319   321  

Table 2.3 depicts the responses of non-legal professionals to the two propositions in 2009 and 2014. The rates of agreement with each proposition increased between 2009 and 2014, in relation to meaningful relationships (by four percentage points) and slightly more substantially in relation to protection from harm (by six percentage points).

Notably, the agreement rates with both of these propositions in both time frames were lower for non-legal professionals than for lawyers, and the shift between 2009 and 2014 for the protection from harm statement was much less substantial for this group. As with lawyers, the discrepancy between rates of endorsement for the two propositions sits at 20 percentage points.

Table 2.3: Non-legal professionals who strongly or mostly agree that meaningful relationships and protection from harm are given adequate priority, 2009 and 2014
  FRSP 2009 Survey of Practices 2014
No. % No. %
Notes: Non-legal professionals were asked in 2009 and 2014: "To what extent do you agree or disagree that the following statements describe your view? The child's right to meaningful involvement with both parents is given adequate priority in the system" and "The need to protect children and other family members from harm from family violence and child abuse is given adequate priority in the system". a This item was answered by 289 respondents. Percentages do not total 100% as not all response categories are presented and multiple responses could be chosen.
Sources: Survey of FRS Staff (FRSP Services), Wave 2, 2009; Survey of Practices 2014
The child's right to meaningful involvement with both parents is given adequate priority in the system 677 79.2 239 a 82.7
The need to protect children and other family members from harm from family violence and child abuse is given adequate priority in the system 482 56.4 182 62.2
Total respondents 855   293  

2.1.3 Views on FLA s 60CC(2A)

A further significant aspect of the 2012 family violence reforms was the enactment of s 60CC(2A), the provision intended to provide a clear statement that greater emphasis should be placed on the protection from harm principle when it conflicts with the meaningful relationship principle in any particular case. Two questions were asked to support an assessment of this provision. One tapped attitudes by asking participants to indicate their level of agreement with the statement that "it is helpful to have s 60CC(2A) to make it clear that protection from harm is more important than the benefit to a child of a meaningful relationship" (Table 2.4). The other question tapped effects by seeking endorsement or non-endorsement of the proposition that "the protection from harm consideration is accorded greater weight when relevant" (Table 2.4).

Table 2.4: Participants who strongly or mostly agree that s 60CC(2A) is helpful and that protection from harm is accorded greater weight, by professional group, 2014
  Judicial officers Lawyers Non-legal Aggregated
No. % No. % No. % No. %
Notes: Professionals were asked: "To what extent do you agree or disagree that the following statements describe your views about the family violence reforms: It is helpful to have s 6OCC(2A) of the FLA to make it clear that protection from harm is more important than the benefit to the child of a meaningful relationship", and "To what extent do you agree or disagree that the following statements describe your view? The 'protection from harm' consideration is accorded greater weight when relevant". a 312 respondents answered this question. b 349 respondents answered this question. Percentages do not total 100% as not all response categories are presented and multiple responses could be chosen.
Source: Survey of Practices 2014
It is helpful to have s 60CC(2A) of the FLA to make it clear that protection from harm is more important than the benefit to the child of a meaningful relationship 31 83.8 269 84.4 259 88.4 559 86.2
The "protection from harm" consideration is accorded greater weight when relevant 35 94.6 208 a 66.7 - - 243 b 69.6
Total respondents 37   319   293   649  

The attitudinal question attracted a greater level of endorsement than the effects question. The vast majority of the aggregate sample (86%) affirmed the helpfulness of s 60CC(2A), with only 11% providing negative responses (data not shown). Affirmative responses were evenly divided between the "strongly agree" and "mostly agree" response options: 44% and 43% respectively (data not shown). Only small differences between professional groups were evident in relation to the attitudinal question.

In contrast, the effects-related question elicited a less decisively positive set of responses. A smaller majority of the aggregate sample provided affirmative responses overall (70%) and the affirmation was more likely to be less strongly expressed (48% mostly agree cf. 22% strongly agree). A greater proportion of the sample (23%) expressed disagreement (data not shown). A programming error meant that non-legal professionals were not asked this question, so these findings are only relevant for the views of judicial officers/registrars and lawyers. Between these two groups, the response patterns show a substantial difference. Lawyers were much less likely than judicial officers/registrars to agree that protection from harm was accorded greater weight when relevant, with just over a quarter of the lawyer sample returning negative responses, compared with 3% of the judicial officer sample (data not shown).

2.1.4 Qualitative responses

As noted in the methodology in Chapter 1, participants in the professional surveys had the opportunity to provide further open-ended comments on their views in a range of areas. The questions associated with these responses covered the consequences of the family violence reforms, their approach to decision making since the introduction of the reforms, and any changes to the ways in which family law professionals screen/identify, assess and respond to family violence issues as a result of the reforms. The responses to these questions raised a variety of different issues, highlighting a spectrum of views and experiences. Where relevant, discussion in this report draws on the qualitative data to support the interpretation and understanding of the quantitative response patterns.

Overall themes

The discussion highlights four main threads in the qualitative responses that are relevant throughout this report. One thread reflects views endorsing the necessity for the 2012 family violence reforms and explicitly recognises or implies that practices needed improvement. The second thread is based on a view that practices in relation to family violence and child abuse concerns prior to the reforms were already effective, with the reforms supporting this pre-existing direction. The third thread endorses the necessity for the reforms but indicates that they have had limited influence on practices. There are two sets of concerns raised in connection with the perception of these limited effects: the first relates to resourcing issues, while the second suggests that there remains a lack of awareness among professionals about family violence and child abuse, despite the reforms. The fourth thread reflects a more negative view of the reforms, suggesting that they were unwarranted and may have had negative consequences. Considered in light of the pattern of quantitative responses - which are largely positive about the direction established by the 2012 family violence reforms - it would appear that the first three threads reflect the thinking among a majority of family law system professionals and the fourth thread reflects a minority view.

The helpfulness of FLA s 60CC(2A)

The data in the preceding section show that a large majority of the professionals surveyed were positive about the "helpfulness" of s 60CC(2A), and a smaller majority were supportive of the view that it was accorded greater weight when relevant. Qualitative data provide further understanding of the views and experiences behind these responses, both the majority positive responses and the minority negative responses.

Insights of judicial officers/registrars

Some judicial participants identified FLA s 60CC(2A) as influencing their approach to decision making in cases involving family violence. The following response, for example, indicated that this provision was particularly helpful in decision making at interim hearings:

The risk of family violence must be given a greater priority. This is helpful because allegations of family violence are almost always disputed. Decisions about disputed fact cannot be made in interim hearings so being required to greater consideration to risk of harm means weight can be given to the allegations without having to make a finding of fact. (JO68, judge, FCC)

Other judicial participants indicated that, in practical terms, FLA s 60CC(2A) simply reflected the prevailing approach to decision making in cases where children are in need of protection from harm:

In terms of practice, the changes did not otherwise make a big difference as the need to protect from harm has always had greater weight in practice than the weight accorded to the benefit of a meaningful relationship where the two considerations pulled in different directions. (JO70, judge, FCC)

As discussed in Chapter 8, the greater weight now accorded to the protection from harm primary consideration (FLA s 60CC(2)(b)) and the statutory recognition of the priority to be given to this consideration over the meaningful relationship primary consideration (FLA s 60CC(2)(a)), were identified by numerous judicial participants as positive consequences of the family violence reforms.

Insights of lawyers

Many participating lawyers were supportive of the introduction of FLA s 60CC(2A). Some reflected positively on the legislative support provided by s 60CC(2A) and the clarification of the greater weight to be accorded to the protection from harm primary consideration:

Courts now have clear legislative power to frame orders to protect parties and children from family violence. (L131, lawyer)

s 60CC(2A) is particularly helpful in clarifying weight to be attributed to the factors in s 60CC(2) best interests. (L369, lawyer)

The introduction of s 60CC(2A) was identified by some lawyers as providing legislative authority to seek parenting arrangements that accommodated the protection of children from harm:

It is helpful for the court to have the s 60CC(2A) provision, so the priority to protect is mandatory. Courts would have protected children in any event, but by not having it in black and white it has been difficult to convince perpetrators that their "rights" must be subservient. (L372, lawyer)

At least I can now fight tooth and nail in respect to s 60CC(2A), even if I am treated oppressively because of it. (L280, lawyer)

Lawyers and FDR practitioners having statutory backing for what they have been saying in the past to clients. (L20, lawyer)

Having a legislative recognition that family violence is a serious issue, and that it should be accorded significant weight when considering what are the appropriate parenting arrangements for children. (L43, lawyer)

[A positive consequence is] the ability to argue that the protection of a child from abuse or harm is the paramount consideration. (L112, lawyer)

Other lawyers identified the introduction of s 60CC(2A) as positively affecting the decision-making process, which in turn led to outcomes that were directed at better protecting children from harm:

[A positive consequence is] an appropriate re-prioritisation of family violence and its effects. The reforms have gone some way to address the potential for interim parenting orders to be less responsive than necessary to family violence, with time arrangements being only properly co-ordinated when final orders are made after issues are tested. (L258, lawyer)

It has made a huge difference having the requirement to consider family violence as the most important criteria. (L148, lawyer)

[A positive consequence is] the court providing better protection with … s 60CC(2A). (L227, lawyer)

The only positive consequence is giving priority to protection from harm over meaningful relationship. That has made a difference to court decisions and to encouraging victims to tell the court about violence. (L64, lawyer)

As noted in the quote directly above, FLA s 60CC(2A) was described by some lawyers as not only making a difference to court outcomes in children's cases, but it was also described as providing parties with reassurance to disclose family violence and to seek safe parenting arrangements:

Parties can be made aware that family violence has been elevated as an issue in the eyes of the court. (L113, lawyer)

The main positive about the reforms is we can now make it clear that safety is the paramount consideration in making arrangements for the children. We can advise clients that where there are safety concerns they do not have to make the children available to the other party. There was previously a difficulty in trying to balance the considerations of meaningful relationship with safety. (L498, lawyer)

Consistent with the responses of some judicial participants, some lawyers identified FLA s 60CC(2A) as reflecting the prevailing approach to the interpretation of the two primary considerations outlined in s 60CC(2):

The only bit that has made a change is the clarification that risk has a higher priority over meaningful relationship and quite frankly most judges and family lawyers were already taking that approach anyway prior to the reforms. (L336, lawyer)

For those that did not clearly understand the 2006 reforms and the aims … of the reforms, the amendments spell it out in clear language. (L228, lawyer)

Other lawyers considered the introduction of FLA s 60CC(2A) to be unnecessary or were ambivalent about the effects of the reforms:

Prior to the reforms, I did not perceive it to be an issue that the legal system prioritised the "meaningful relationship" over protection from harm. I felt the court did a perfectly good job of balancing those competing considerations on a case-by-case basis in its discretion. (L255, lawyer)

People are at least considering the impact of family violence, and judges are at least supposed to prioritise safety over relationship. (L139, lawyer)

A number of lawyers were of the view that FLA s 60CC(2A) had in practice failed to accord any greater priority to the protection from harm consideration:

The "meaningful relationship" provisions are still overshadowing the need to protect children. (L280, lawyer)

The need to protect children from harm and exposure to family violence is given a lower priority than the notion of children having a close and meaningful relationship with both parents. Expressions of concern by mothers are too often dismissed in favour of spending time orders regarded as necessary for the close and meaningful relationship. Mothers are concerned about the negative judgement of them that follows their expression of a desire for none/minimal contact with a partner who has a history of violence against women. Judges are too dismissive of a parent's expressed concerns about family violence. (L382, lawyer)

Single expert witnesses and judicial officers still prioritise shared care above children's safety. (L46, lawyer)

I think the most positive outcome is the change in law that children being safe is a priority over them seeing a parent. In saying that I think the family court is still pretty relaxed about allowing children to spend time with parents who are violent, have drug and alcohol issues, etc. (L161, lawyer)

I don't think that the legal profession understands the significance of the changes to the legislation in the re-prioritising of the risks of family violence over and above the question of a meaningful relationship. Often in mediation conferences, there is greater attention to resolving the matters to appease both parties rather than properly addressing the issues of family violence. Often the family violence issues are avoided given that the FDRP [family dispute resolution practitioner] would have to terminate the conference once raised therefore preventing a carefully weighed assessment of family violence and the risks thereafter. (L339, lawyer)

Concerns raised by participants relating to the denial, minimisation or misapprehension of family violence will be considered further in Chapters 4 and 6 in the context of the discussion of the practices of family law professionals in screening/identifying, assessing and responding to harm and risk of harm.

2.2 Attitudes to the necessity for and symbolism of the 2012 family violence reforms

Further examination of attitudes to the reforms among professionals across the system was based on responses to two questions that respectively sought views on whether the family law system "needed the family violence reforms" and whether they were "mainly a symbolic gesture".

Consistent with the suggestions in the preceding sections of largely positive attitudes among professionals to the family violence reforms, the responses to these two questions suggest substantial support among most professionals. In relation to the proposition that "the family law system needed the family violence reforms", affirmative responses were made by 77% of the sample, with 42% strongly agreeing (Table 2.5). Only 16% of the overall sample offered negative responses.

Table 2.5: Agreement that the family law system needed the family violence reforms, by professional group, 2014
  Judicial officers Lawyers Non-legal Aggregated
No. % No. % No. % No. %
Notes: Professionals were asked: "To what extent do you agree or disagree that the following statements describe your views about the family violence reforms: The family law system needed the family violence reforms". Percentages may not total 100.0% due to rounding.
Source: Survey of Practices 2014
Strongly agree 6 16.2 111 34.6 154 52.6 271 41.6
Mostly agree 15 40.5 114 35.5 103 35.2 232 35.6
Mostly/strongly disagree 12 32.4 68 21.2 24 8.2 104 16.0
Cannot say 4 10.8 28 8.7 12 4.1 44 6.8
Total 37 100.0 321 100.0 293 100.0 651 100.0

Differences between professional groups in response to this question are noteworthy. Overall, non-legal professionals were most likely to support the need for the reforms (88%). In contrast, lower proportions of lawyers (70%) and judicial officers/registrars (57%) were positive. Although the smaller sample size for judicial officers/registrars (n = 37) means that these findings should be interpreted conservatively, they are consistent with a view already noted by some judicial participants (and lawyers) that family violence was already being dealt with effectively prior to the reforms.

In relation to the lawyers' responses, the pattern of results to a similar question that was evident in the benchmarking 2006 Family Lawyers Survey in relation to the 2006 family law reforms, is close to the inverse of these results. In the 2006 survey, participants were asked to indicate the extent of their agreement with the proposition that "the family law system needed the current reform package". Negative responses were offered by 70% of male and 77% of female lawyers, with positive responses coming from 27% male lawyers and 20% of female lawyers (data not shown).

A further indication of lawyers' attitudes to the 2012 family violence reforms is indicated by responses regarding whether the changes were mainly a symbolic gesture (Table 2.6). While there exists some ambiguity in the way the term "symbolic" might be interpreted, given the context and our comparison with FLS 2008, we consider that the most likely interpretation applied by participants would be "not substantive in nature". Overall, more survey participants disagreed that the changes were mainly a symbolic gesture (57%) than agreed (33%). The professional groups most likely to disagree were judicial officers/registrars (76%), followed by non-legal professionals (62%).

A majority of lawyers reported that the changes were more than simply symbolic, with 51% disagreeing with the proposition and 39% agreeing. In comparison with an element of the 2006 family law reforms - "promoting less adversarial ways of resolving disputes over children" - the 2012 family violence reforms were less likely to be seen as symbolic by lawyers. Just over half (52%) of the 2008 lawyer participants affirmed the symbolism of the 2006 aims in relation to less adversarialism (data not shown), compared with the 39% already reported in relation to the 2012 family violence reforms.

Table 2.6: Agreement that the family violence reforms are mainly a symbolic gesture, by professional group, 2014
  Judicial officers Lawyers Non-legal Aggregated
No. % No. % No. % No. %
Notes: Professionals were asked: "To what extent do you agree or disagree that the following statements describe your views about the family violence reforms: The family violence reforms are mainly a symbolic gesture".
Source: Survey of Practices 2014
Strongly agree 1 2.7 38 11.9 19 6.5 58 8.9
Mostly agree 6 16.2 86 26.9 65 22.3 157 24.2
Mostly disagree 21 56.8 113 35.3 130 44.5 264 40.7
Strongly disagree 7 18.9 50 15.6 50 17.1 107 16.5
Cannot say 2 5.4 33 10.3 28 9.6 63 9.7
Total 37 100.0 320 100.0 292 100.0 649 100.0

2.3 Perceptions in relation to the effects of the reforms

This section examines perceptions about the broader effects of the family violence reforms. The relevant survey questions concerned levels of litigation, whether children in "high conflict" families are more likely to be in shared parenting arrangements, whether the reforms had benefitted children, and the extent to which the Part VII framework supports developmentally appropriate parenting arrangements. The first part of the discussion compares 2008 and 2014 lawyer responses. This is followed by an examination of group responses, including differences between groups.

2.3.1 Broad effects of reforms: Comparison between 2008 and 2014 responses

In both the FLS 2008 and the Survey of Practices 2014 surveys, views on several issues relating to making parenting arrangements were examined. These included levels of litigation, whether the changes had benefitted children "in most cases" and the extent to which the framework (a) supported developmentally appropriate arrangements, and (b) resulted in children in high conflict families being in shared care arrangements. Each of these statements was amended slightly to reflect the context (i.e., the term "family violence reforms" was used in 2014 and "legislative reforms" in 2008), but the core content was the same. Overall, the response patterns in the respective time periods suggest a range of positive findings in relation to the 2012 family violence reforms (see Table 2.7), namely that:

  • there was less indication in 2014 that the family violence reforms had resulted in more litigation (24% affirming) compared with the 2006 legislative reforms in 2008 (46% affirming);
  • nearly half the lawyers in the 2014 sample agreed that the family violence reforms had benefitted children in most cases, compared with 30% in relation to the 2006 legislative reforms in 2008;
  • there was more support (by 17 percentage points) for the proposition that the "current framework makes it easy to assist parents to reach developmentally appropriate parenting arrangements" in 2014 compared with 2008; and
  • lawyers in the 2014 sample were substantially more likely (by 27% percentage points; data not shown) to disagree that the reforms had resulted in more children in shared care arrangements where there was high conflict.
Table 2.7: Lawyers who strongly or mostly agreed regarding the effects of the 2006 and 2012 family law reforms, 2008 and 2014
  FLS 2008 Survey of Practices 2014
No. % No. %
Notes: Professionals were asked: "Based on your experience since the family violence reforms, do you agree or disagree with the following statements: "The family violence reforms have resulted in more litigation about parenting issues"; "The family violence reforms have benefitted children in most cases"; "The current framework makes it easy to assist parents reach arrangements that are developmentally appropriate for their children"; and "The family violence reforms have resulted in fewer arrangements involving shared care (i.e., arrangements within the range of 35-65% night split) where there is high conflict". Proportion of "cannot say" responses ranged from 5% to 16% (2008). a This item was answered by 319 respondents. b Indicates items where 25% or more respondents selected "cannot say". c This item was answered by 315 respondents. d The full question asked in 2014 was: "The family violence reforms have resulted in fewer children in shared care arrangements (i.e., arrangements within the range of 35-65% night split) where there is high conflict". The question asked in 2008 was: "The legislative reforms have resulted in more children in shared care arrangements where there is high conflict", so results reported here are for those who responded "strongly disagree" or "mostly disagree". e This item was answered by 320 respondents. Percentages do not total 100% as not all response categories are presented and multiple responses could be chosen.
Sources: Family Lawyers Survey 2008; Survey of Practices 2014
The family violence reforms have resulted in more litigation about parenting issues 146 45.8 76 a,b 23.8
The family violence reforms have benefitted children in most cases 94 29.5 152 b,c 48.3
The current framework makes it easy to assist parents to reach arrangements that are developmentally appropriate for their children 65 20.4 118 a 37.0
The family violence reforms have resulted in fewer children in shared care arrangements where there is high conflict d 51 16.0 136 b,e 42.5
Total respondents 319   321  

2.3.2 Broad effects of reforms: 2014 group responses

The pattern of responses for all professionals in the 2014 survey is broadly similar to the pattern evident for the 2014 lawyer group (Figure 2.1). On the basis of the aggregate sample, most professionals (37%) said that the family violence reforms had not resulted in more litigation about parenting matters, with 24% saying they had. A significant feature of the response patterns in relation to this question was "cannot say" responses, suggesting the participants were conservative in commenting on issues outside of their direct experience. The largest group nominating this response was non-legal professionals (52%), consistent with their mostly non-legal practice context. Just over a quarter (28%) of lawyers and 43% of judicial participants said they could not say. The differences in response patterns between the groups mostly reflect the extent of the "cannot say" responses.

Figure 2.1: Agreement that the family violence reforms have resulted in more litigation about parenting issues, by professional group, 2014

Figure 2.1: Agreement that the family violence reforms have resulted in more litigation about parenting issues, by professional group, 2014. Described in accompanying text.

Notes: Professionals were asked: "Based on your experience since the family violence reforms, do you agree or disagree with the following statements: The family violence reforms have resulted in more litigation about parenting issues". Percentages may not total 100.0% due to rounding.

Source: Survey of Practices 2014

In relation to the statement that the "family violence reforms have benefitted children in most cases", Figure 2.2 demonstrates that the most common response among each professional group was endorsement, amounting to 49% across the aggregate sample. On an aggregate basis, the proportion disagreeing was 28%, with lawyers being most likely to disagree (32%) and judicial officers/registrars least likely to disagree (20%). "Cannot say" responses were nominated by around one-fifth of judicial officers/registrars (22%) and lawyers (20%). Just over a quarter of non-legal professionals returned "cannot say" responses.

Figure 2.2: Agreement that the family violence reforms have benefitted children in most cases, by professional group, 2014

Figure 2.2: Agreement that the family violence reforms have benefitted children in most cases, by professional group, 2014. Described in accompanying text.

Notes: Professionals were asked: "Based on your experience since the family violence reforms, do you agree or disagree with the following statements: The family violence reforms have benefited children in most cases". Percentages may not total 100.0% due to rounding.

Source: Survey of Practices 2014

The question concerning agreement with the proposition that the "current framework makes it easy to assist parents to reach arrangements that are developmentally appropriate", raises a range of issues wider than the effects of the 2012 family violence reforms (Figure 2.3). As the comparison between lawyers' responses in 2008 and 2014 indicates, the 2012 changes are an improvement from the perspective of this group, suggesting that the 2012 changes are more consistent with lawyers' understanding of developmental needs than the 2006 changes. More broadly, however, the response patterns to this question indicate that across the sample, marginally more professionals disagree with the proposition than agree (44% cf. 43%). The strongest levels of disagreement are evident among the professionals who work most closely with the legislative framework in day-to-day practice: judicial officers/registrars. Of this group, just 27% mostly agreed that the framework supported developmentally appropriate arrangements, with none strongly agreeing. In contrast, a majority (51%) disagreed with the proposition, with nearly 11% disagreeing strongly. Nearly half (49%) the lawyer participants disagreed (including 14% strongly disagreeing), while 37% endorsed the proposition. The group that works least directly with the legislative framework - non-legal professionals - were most likely to endorse the proposition (51%), but a substantial minority (38%) also returned negative responses.

Figure 2.3: Agreement that the current framework supports developmentally appropriate parenting arrangements, by professional group, 2014

Figure 2.3: Agreement that the current framework supports developmentally appropriate parenting arrangements, by professional group, 2014. Described in accompanying text.

Notes: Professionals were asked: "Based on your experience since the family violence reforms, do you agree or disagree with the following statement: The current framework makes it easy to assist parents reach arrangements that are developmentally appropriate for their children". Percentages may not total 100.0% due to rounding.

Source: Survey of Practices 2014

Noting the mostly negative views expressed, these response patterns also indicate some variety in views on the extent to which the Part VII supports developmentally appropriate arrangements, within and between the professional groups involved in the survey. These differences are likely to reflect a range of issues, including personal disposition and disciplinary background. Previous research has demonstrated substantial differences in the ways in which legal and non-legal personnel use (and in some cases avoid using) the legislative framework in their practice (Rhoades, 2014; Rhoades, Lewers, Dewar, & Holland, 2014). Negative responses from a majority of the group responsible for interpreting and applying the Part VII framework on a day-to-day basis - judicial officers/registrars - suggest the presence of significant concerns that have not been resolved by the 2012 family violence reforms. Such concerns are consistent with a range of issues raised prior to the 2012 family violence reforms by practitioners and academics (Chisholm, 2009; Kaspiew et al., 2009) and that have continued to be of concern since (Chisholm, 2014; Rhoades, 2014). These issues include the complexity of the legislation and the way in which some provisions - such as the equal shared parenting presumption - are seen to divert focus away from children's needs.

Two further questions relating to shared care arrangements (i.e., arrangements with a 35-65% night split) asked respondents to indicate agreement with propositions about whether the reforms have led to (a) fewer shared care arrangements overall, and (b) fewer shared care arrangements where there has been high conflict (Figure 2.4). The latter question was also asked in 2008, and the findings based on lawyers' responses are also reported. They indicate lawyers thought fewer arrangements for shared care were made in circumstances of high conflict between parents after the 2012 family violence reforms (Figure 2.4). Taken together, the responses to the two questions are most notable for the high proportion of "cannot say" responses, again suggesting a conservative approach among most participants to commenting on matters outside their direct experience. On an aggregate basis, 39% of the sample returned "cannot say" responses to the unqualified statement and 35% to the qualified statement.

Figure 2.4: Agreement that the family violence reforms have resulted in fewer shared care arrangements overall and where there has been high conflict, by professional group, 2014

Figure 2.4: Agreement that the family violence reforms have resulted in fewer shared care arrangements overall and where there has been high conflict, by professional group, 2014. Described in accompanying text.

Notes: Professionals were asked: "Based on your experience since the family violence reforms, do you agree or disagree with the following statements: The family violence reforms have resulted in fewer arrangements involving shared care (i.e., arrangements within the range of 35-65% night split), and The family violence reforms have resulted in fewer children in shared care arrangements (i.e., arrangements within the range of 35-65% night split) where there is high conflict". Percentages may not total 100.0% due to rounding.

Source: Survey of Practices 2014

Finally, responses to a further question on the extent to which the 2012 family violence reforms have produced a shift in the outcomes of cases involving family violence indicate a majority view that they have not, with the largest aggregate response being positive in relation to the negatively worded question (46%), against a negative aggregate response of 33% (Figure 2.5). "Cannot say" responses were made by about one-fifth (21%) of the total sample, with non-legal professionals being the most likely group to nominate this response (26%) and lawyers the least likely (17%). Apart from this, variations in response patterns in the distribution of positive and negative responses were not particularly notable, with the range of positive responses falling between 44% (non-legal professionals) and 49% (lawyers), and negative responses between 35% (lawyers) and 30% (non-legal professionals). Notably, no judicial participants strongly disagreed with the proposition.

Figure 2.5: Agreement that the outcomes of cases involving family violence have changed little, if at all, since the 2012 reforms, by professional group, 2014

Figure 2.5: Agreement that the outcomes of cases involving family violence have changed little, if at all, since the 2012 reforms, by professional group, 2014. Described in accompanying text.

Notes: Professionals were asked: "Based on your experience since the family violence reforms, do you agree or disagree with the following statements: The outcomes of cases involving family violence have changed little, if at all, since the family violence reforms". Percentages may not total 100.0% due to rounding.

Source: Survey of Practices 2014

2.4 Advice on family violence and child abuse

This section examines the extent to which the 2012 family violence reforms may have been associated with a shift in the advice provided to clients by lawyers and non-legal professionals in relation to family violence, child abuse and parenting arrangements more generally. The first section is based on a comparison of 2008 and 2014 survey responses in relation to advice about family violence and parenting arrangements. The second sets out findings on advice in relation to child abuse, which was only examined in 2014. A comparison between the responses of lawyers and non-legal professionals on changes in advice-giving practice is the focus of the third section.

There are several aspects of the 2012 family violence reforms that may have bearing on the findings discussed in this section. In addition to the s 60CC changes outlined at the outset, other significant amendments include:

  • the broader definitions of family violence (FLA s 4AB) and child abuse (FLA s 4) (examined in more depth in Chapter 3);
  • the obligation imposed on advisors (including lawyers and dispute resolution practitioners) to advise parents/parties that protection from harm should be prioritised over the child's right to a meaningful relationship (s 60D(1), s 63DA(2)); and
  • the repeal of provisions seen to discourage the disclosure of family violence and child abuse concerns (see further Chapter 3).

2.4.1 Legal advice: Comparison of 2008 and 2014 lawyers' responses

A significant aspect of legal practice examined in both the 2008 and 2014 surveys concerned changes in advice-giving patterns. Three areas were covered: fathers seeing children, allegations of family violence, and outcomes of parenting disputes (Table 2.8). These questions concerned the participant's own advice-giving behaviour and thus are a better indication of how the family violence reforms have changed practice than the more general questions assessing overall impressions discussed in the preceding section. A feature of the responses in 2008 was a notable change in advice-giving patterns in relation to all areas (except family violence) in response to the 2006 family law reforms. Substantial majorities (85-90%) of the sample in each of the two other areas indicated they had changed the advice they gave, in comparison with only 47% in relation to allegations of family violence (Table 2.8). In contrast, a change in advice provided about family violence is most strongly evident in 2014, with 64% of the sample saying they had changed their advice in this respect. The other area where changes were strongly apparent was in relation to outcomes of parenting disputes, with 56% of the sample indicating changed advice-giving on this point.

Table 2.8: Lawyers' agreement that advice-giving regarding fathers, family violence and outcomes of parenting disputes has changed, 2008 and 2014
  FLS 2008 Survey of Practices 2014
No. % No. %
Notes: Lawyers were asked in 2008 and 2014: "Because of the family violence reforms, I have changed the advice I give to clients about: Fathers seeing children; Allegations of family violence; and Outcomes of parenting disputes". Proportion of "cannot say" responses: 3-5%(2009) and 5-8% (2014). Percentages do not total 100% as not all response categories are presented and multiple responses could be chosen.
Sources: Family Lawyers Survey 2008; Survey of Practices 2014
Fathers seeing children 286 89.7 109 41.8
Allegations of family violence 150 47.0 167 64.0
Outcomes of parenting disputes 271 85.0 147 56.3
Total respondents 319   261  

Figure 2.6 sets out findings on another aspect of advice-giving practice, namely advice concerning shared parenting and cooperation. It depicts the extent to which lawyers and non-legal professionals indicated providing this advice in 2014, compared with lawyers' responses from 2008. The question was: "How often (if at all) have you explained to clients involved in parenting disputes that 'substantial sharing of parenting responsibilities after separation requires high levels of capacity to cooperate?' " (Figure 2.1). Overall, the data suggest that in 2014, the practices of lawyers and non-legal professionals on this point were largely consistent with each other. Minor differences in response patterns between the two groups are evident, with more lawyers indicating they gave this advice "almost always" compared with non-legal professionals (75% vs 70%).

Very small shifts in response patterns are evident between 2008 and 2014, with vast majorities in each survey (88% and 93% respectively) indicating they "often" or "almost always" advised clients regarding the need to cooperate.

Figure 2.6: Frequency of advising parents that cooperation is required when sharing parental responsibilities after separation, lawyers and non-legal professionals, 2008 and 2014

Figure 2.6: Frequency of advising parents that cooperation is required when sharing parental responsibilities after separation, lawyers and non-legal professionals, 2008 and 2014. Described in accompanying text.

Notes: Question asked was: "Over the past 12 months (in 2008)/18 months (in 2014), how often have you explained to clients involved in parenting disputes that substantial sharing of parental responsibilities after separation requires high levels of capacity to cooperate?". 2014 - lawyers: n = 259; non-legal professionals: n = 237; 2008 - lawyers: n = 319. Percentages may not total 100.0% due to rounding.

Source: Evaluating the Impact of the Family Law Amendment (Family Violence and Other Measures) Act 2011 (Cth) Survey; Family Lawyers Survey 2008

2.4.2 Advice on child abuse allegations: 2014 responses

An additional question on advice-giving about child abuse was asked in 2014 because of the emphasis on protecting children from harm in the 2012 family violence reforms. Legal and non-legal professionals were asked to provide a response to this statement: "Because of the family violence reforms, I have changed the advice I give to clients about: allegations of child abuse". A majority of lawyers (59%) and half the non-legal professionals (50%) indicated their advice-giving practice had changed in this area (Table 2.9). Sizeable minorities (35% of lawyers and 41% of non-legal professionals) said their practice had not changed. For some, this may suggest a perception that their pre-amendment approach to this issue was already consistent with the direction of the reforms and change was unnecessary.

Table 2.9: Agreement that the family violence reforms has changed advice given to clients about allegations of child abuse, lawyers and non-legal professionals, 2014
  Lawyers Non-legal Aggregated
No. % No. % No. %
Notes: Professionals were asked: "Because of the family violence reforms, I have changed the advice I give to clients about: Allegations of child abuse". Percentages may not total 100.0% due to rounding.
Source: Survey of Practices 2014
Yes 154 59.0 114 49.6 268 54.6
No 92 35.3 94 40.9 186 37.9
Not applicable - - 19 8.3 19 3.9
Cannot say 15 5.8 3 1.3 18 3.7
Total 261 100.0 230 100.0 491 100.0

2.4.3 Advice-giving practices: Comparisons between professional groups

Table 2.10 shows responses by lawyers and non-legal professionals in relation to the same set of questions about advice-giving approaches, offering a cross-professional comparison. No pre-amendment data are available for non-legal professionals for these questions. In relation to all questions, non-legal professionals were less likely than lawyers to indicate changing their advice after the 2012 family violence reforms. As with lawyers, the area of most substantial change was in relation to allegations of family violence. The two areas where the greatest difference is apparent between lawyers and non-legal professionals is in relation to allegations of child abuse (non-legal professionals are lower by 9 percentage points) and outcomes of parenting disputes (non-legal professionals are lower by 13 percentage points).

Overall these patterns suggest some variation across disciplines and between professionals in the areas where the 2012 family violence reforms have prompted changes in practice. The responses of lawyers and non-legal professionals suggest most change has occurred in relation to allegations of family violence and child abuse, though legal practice has changed more than non-legal practice. This may reflect a greater focus among social scientists on these issues prior to the reforms, but it may also result from the fact that legal practice is prescribed by legislative dictates to a greater extent than non-legal practice.

Table 2.10: Agreement that advice-giving practices have changed since the 2012 family violence reforms, lawyers and non-legal professionals, 2014
  Lawyers Non-legal Aggregated
No. % No. % No. %
Notes: Professionals were asked: "Because of the family violence reforms, I have changed the advice I give to clients about: Fathers seeing children; Allegations of family violence; Allegations of child abuse; and Outcomes of parenting disputes". Proportion of "cannot say" response: 4-8% for lawyers; 1-6% for non-legal professionals. a This item was answered by 230 respondents. b This item was answered by 491 respondents. Percentages do not sum to 100% as not all response categories are presented and multiple responses could be chosen.
Source: Survey of Practices 2014
Fathers seeing children 109 41.8 84 36.1 193 39.1
Allegations of family violence 167 64.0 131 56.2 298 60.3
Allegations of child abuse 154 59.0 114 a 49.6 268 b 54.6
Outcomes of parenting disputes 147 56.3 100 42.9 247 50.0
Total respondents 261   233   494  

2.5 Summary

This chapter has examined findings on some broad issues relating to the 2012 family violence reforms, with a particular emphasis on gaining understanding of professionals' attitudes to some specific aspects of the amendments, and the effects they are starting to have. The availability of comparison data from the 2008 (and in some cases the 2006) Family Lawyers Surveys and the 2009 Family Relationship Services Staff (FRSP) Survey from the Evaluation of the 2006 Family Law Reforms research program has permitted comparison of pre- and post-amendment attitudes, experiences and responses in some key areas, shedding light on the effects of the 2012 changes.

Overall, the findings presented in this chapter indicate that the reforms are a step in the right direction in the context of a reform agenda intended to prioritise protection from harm in the family law system. In relation to the overarching objective of placing greater weight on "protection from harm" where it stands in conflict with supporting a meaningful relationship with each parent after separation, the findings indicate that a larger proportion of family law system professionals believe it has been given "adequate priority" since the reforms, but this proportion is substantially lower than those who believe adequate priority has been accorded to the child's right to a meaningful relationship.

In relation to the s 60CC(2A), which specifies that protection from harm is to be given greater weight than the child's right to a meaningful relationship with both parents after separation, the vast majority of all respondents thought it was helpful (86% agreeing cf. 11% disagreeing). However, views were less positive on the question of whether "protection from harm is accorded greater weight when relevant": 70% of the sample agreed that this was the case, compared with 23% disagreeing.

The findings also reveal a greater level of support among family lawyers for the 2012 family violence reforms than the 2006 family law reforms. Lawyers participating in 2014 were substantially more likely than those participating in 2006 to agree that the family law system needed the reforms and less likely to see them as a symbolic gesture. The largely positive attitudes manifested by lawyers are consistent with the attitudes expressed by other professional groups in the 2014 data collection, although judicial officers were less likely to endorse the need for the reforms than other groups. Majorities of professionals in each group considered the 2012 family violence reforms were needed (on an aggregate basis, 77% agreed and 16% disagreed), but there were marked differences among the groups on the extent of endorsement. Endorsement was strongest among non-legal professionals (88%) and weakest among judicial participants (57%).

Compared with the 2006 reforms, the 2012 family violence reforms were seen by lawyers as less likely to be associated with an increase in litigation, more likely to be of benefit to most children and less likely to result in children being in shared parenting arrangements when there was high conflict. Professionals' responses suggest the reforms have improved support for parenting arrangements that are developmentally appropriate, but fewer professionals overall agreed with the statement that the "current framework makes it easy to reach arrangements that are developmentally appropriate for children" (43%). Notably, the group that works most directly with the legal framework in day-to-day practice, judicial officers and registrars, expressed the lowest level of agreement with this proposition (27%).

Data from lawyers' responses suggest that advice-giving practice in relation to three interconnected issues - fathers seeing children, allegations of family violence, and outcomes of parenting disputes - have shifted, with the greatest change being evident in relation to family violence (in 2014, 64% indicated they had changed their advice, compared with 47% in 2008). A majority of lawyers indicated they had changed their advice on child abuse allegations also (yes: 59% cf. no: 35%).

7 Dessau J in Mazorski v Albright (2007) 37 Fam LR 518 at 526.