Responding to family violence

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

3. Family violence and child abuse: Amended definitions and the removal of perceived legislative disincentives to disclosure

This chapter sets out the findings from the Survey of Practices 2014 on two further elements of the legislative reforms: the amended definitions of family violence (s 4AB) and child abuse (s 4) and the removal of provisions perceived to inhibit disclosure of concerns about these issues. One provision that was removed was s 60CC(3), which required courts to have regard to the extent to which one parent has facilitated the child's relationship with the other parent. The other was s 117AB, which provided courts with the power to make a costs order against a party found to have "knowingly made a false statement in proceedings".

Discussion based on responses to quantitative survey questions is supplemented by more detailed qualitative insights into professionals' views on each of these issues.

The data reported in this chapter indicate that most of the professionals involved in the survey consider the new definitions support safer parenting arrangements for parents and children. On the question of whether the system's response to non-physical forms of family violence has improved, response patterns suggest a limited shift in this regard. In relation to the effects of the provisions considered to potentially inhibit disclosures of family violence and child abuse, the data indicate that these changes are most likely to be seen as being positive (i.e., resulting in more disclosure of family violence and child abuse) by non-legal professionals and less likely to be associated with being either positive or negative (false, frivolous of vexatious allegations) by lawyers and judges.

3.1 Amended definitions of family violence and child abuse

This section focuses on professionals' views on the new definitions of family violence (s 4AB) and child abuse (s 4) (see Box 2). It begins by presenting findings on two survey questions concerning whether these definitions support safer parenting arrangements and whether non-physical forms of family violence are now identified and dealt with more effectively. Qualitative insights that shed further light on the variety of views on the new definitions are then discussed.

3.1.1 New definitions: Quantitative insights

The definitions of family violence and child abuse were widened as part of the 2012 family violence reforms in response to recommendations from the Australian and NSW Law Reform Commissions (2010) and the Family Law Council (2009). In relation to family violence (s 4AB), noteworthy features of the new definition include the fact that the primary statement (s 4AB(1)) encompasses non-physical abuse, and the relevant behaviour needs to result in "coercion, control or fear" in order to come within scope. The non-exhaustive list of examples (s 4AB(2)) includes a range of behaviours, including repeated derogatory taunts, economic abuse and social and cultural isolation.

The new definition provisions also explicitly recognise and define the exposure of children to family violence, where it causes serious psychological harm, as a form of child abuse (s 4). The definition of "abuse" in FLA s 4 previously referred to state and territory laws in relation to assault and sexual assault, and this reference was omitted from the new definition. New elements include causing serious psychological harm, including but not limited to, exposing the child to family violence and "serious neglect" of the child. The extent to which these aspects of the changes have resulted in greater attention being paid to the exposure of children to family violence in legal practice and court proceedings is discussed in Chapters 4 and 6.

Box 2: New family violence and child abuse definitions in the Family Law Act 1975 (Cth)

s 4AB

(1) For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member), or causes the family member to be fearful.

(2) Examples of behaviour that may constitute family violence include (but are not limited to):

(a) an assault; or

(b) a sexual assault or other sexually abusive behaviour; or

(c) stalking; or

(d) repeated derogatory taunts; or

(e) intentionally damaging or destroying property; or

(f) intentionally causing death or injury to an animal; or

(g) unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or

(h) unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or

(i) preventing the family member from making or keeping connections with his or her family, friends or culture; or

(j) unlawfully depriving the family member, or any member of the family member's family, of his or her liberty.

(3) For the purposes of this Act, a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence.

(4) Examples of situations that may constitute a child being exposed to family violence include (but are not limited to) the child:

(a) overhearing threats of death or personal injury by a member of the child's family towards another member of the child's family; or

(b) seeing or hearing an assault of a member of the child's family by another member of the child's family; or

(c) comforting or providing assistance to a member of the child's family who has been assaulted by another member of the child's family; or

(d) cleaning up a site after a member of the child's family has intentionally damaged property of another member of the child's family; or

(e) being present when police or ambulance officers attend an incident involving the assault of a member of the child's family by another member of the child's family.

s 4(1)

abuse, in relation to a child, means:

(a) an assault, including a sexual assault, of the child; or

(b) a person (the first person) involving the child in a sexual activity with the first person or another person in which the child is used, directly or indirectly, as a sexual object by the first person or the other person, and where there is unequal power in the relationship between the child and the first person; or

(c) causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence; or

(d) serious neglect of the child.

The new definitions, particularly s 4AB, were the subject of significant debate in Parliament and other forums in the period prior to the enactment of the legislation. Some commentators suggested the definition was too wide8 while others raised concerns that some aspects of the wording could result in an overly narrow application, in part because of the use of the terms "fear", "coercion" and "control" (Rathus, 2013). The analysis of published judgments as part of the Court Outcomes project will examine how the definitions are being applied by judicial officers. Table 3.1 sets out participants' views on the question of whether the new definitions support safer parenting arrangements for parents and children. Overall, most participants provided positive responses to this question, with 73% mostly or strongly agreeing. Affirmation was strongest among non-legal professionals (75%) and lowest among lawyers (70%), although the differences are modest. Overall, differences in the distribution of positive and negative responses between the professional groups were similar. Notably, 14% of judicial officers nominated the "cannot say" option.

Table 3.1: Agreement that the new definitions of family violence and abuse support safer parenting arrangements, by professional groups, 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 new definitions of family violence and abuse support parenting arrangements that are safer for parents and children". Percentages may not total 100.0% due to rounding.
Source: Survey of Practices 2014
Strongly agree 7 18.9 47 14.7 58 19.9 112 17.3
Mostly agree 20 54.1 178 55.6 162 55.5 360 55.5
Mostly/strongly disagree 5 13.5 73 22.8 59 20.2 137 21.1
Cannot say 5 13.5 22 6.9 13 4.5 40 6.2
Total 37 100.0 320 100.0 292 100.0 649 100.0

The survey examined the extent to which any changes in practice in relation to non-physical violence had occurred since the reforms. Participants were asked to indicate the strength of their agreement or disagreement with the proposition that "the identification, assessment of, and response to, non-physical forms of family violence by the family law system has not improved since the family violence reforms". Overall, the response pattern suggests less of a shift in this regard, with 37% of the total sample supporting a view that practice has improved and 48% indicating it hasn't (Table 3.2). Notably, the distribution of positive, negative and "cannot say" responses among lawyers and non-legal professionals was very similar. Among judicial officers/registrars, however, a higher proportion detected improvement (43%), compared to just over a third of the lawyers and non-legal professionals. They were also most likely to return "cannot say" responses, with 30% selecting this option, compared with about 15% of lawyers and non-legal professionals. The interpretation of these responses raises some ambiguity as, consistent with other areas, some of the professionals may have considered that this area had already been handled well before the reforms.

Table 3.2: Agreement that the identification, assessment of, and response to non-physical family violence has not improved since the 2012 reforms, by professional groups, 2014
  Judicial officers Lawyers Non-legal Aggregated
No. % No. % 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 identification, assessment of, and response to, non-physical family violence by the family law system has not improved since the family violence reforms". Percentages may not total 100.0% due to rounding.
Source: Survey of Practices 2014
Strongly agree 2 5.4 51 16.0 54 18.4 107 16.5
Mostly agree 8 21.6 108 33.9 85 29.0 201 31.0
Mostly disagree 13 35.1 94 29.5 87 29.7 194 29.9
Strongly disagree 3 8.1 18 5.6 22 7.5 43 6.6
Cannot say 11 29.7 48 15.1 45 15.4 104 16.0
Total 37 100.0 319 100.0 293 100.0 649 100.0

3.1.2 New definitions: Qualitative insights

Qualitative comments regarding the new definitions of family violence and child abuse reflected a varied range of views and some differing interpretations of the definitions themselves. Many comments were positive about the new definitions, particularly the recognition of non-physical forms of violence. Others, however, suggested it had "widened the net", capturing a range of behaviours that shouldn't necessarily be considered relevant to parenting matters. A sub-theme in this regard concerned the extent to which the family law system was equipped to distinguish between serious and less serious forms of family violence in terms of knowledge (training and experience) and resources. Responses along these lines suggest a varied range of approaches and understandings of the types of behaviours that amount to family violence and the point at which such behaviours reach a level of gravity warranting the attention of the family law system. Implicit in some comments, and explicit in others, were understandings (and concerns for some participants) linked to theories about typologies of violence that have arisen from the work of researchers and clinicians such as Janet Johnston and colleagues and Michael Johnson and colleagues.9 Some responses also questioned whether the new definitions do, in practice, amount to a wider approach to family violence. In this context, the qualifying words "coercion", "control" and "fear" were raised as potentially limiting the interpretation of the definition.

Judicial officers/registrars

Participating judicial officers and registrars provided their views and experiences of the amended definitions of family violence in FLA s 4AB and, to a lesser extent, of abuse in relation to a child in FLA s 4. These participants answered open-ended survey questions about the consequences of the family violence reforms, and/or questions seeking comment on 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.

Judicial officers were positive about the expansion of the definition to include a broader range of violent and abusive behaviour:

The change to the definition of family violence to include coercive and controlling behaviour and to the definition of child abuse to add exposure to family violence were both very helpful in assisting courts and family law professionals to deal with difficult cases involving behaviour which may not have come within previous definitions. (JO70, judge, FCC)

A legislatively mandated requirement to consider a broad and far more appropriate definition of FV (JO54, judge, FCC)

The broader definition of family violence in FLA s 4AB was identified by some judicial participants as encouraging greater awareness of, and focus on, family violence by family law professionals and the wider community alike:

The broader more descriptive definition helps practitioners focus on/explore the issue more fully with clients. (JO50, judge, FCC)

The broader definition was also described as leading to more evidence to be adduced in the context of this greater awareness of and focus on family violence. For example:

The reforms have meant a greater awareness of family violence issues as legal issues and that has meant more evidence of that violence (in its expanded definition form) has been adduced. (JO44, judge, FCC)

On the other hand, some judicial officers and registrars expressed concern at the expansion of the definition of family violence. While acknowledging the assistance of definitions, one judicial officer expressed concern about emphasising the coercive and controlling component of the definition, and the potential to incorrectly classify behaviour:

I am concerned that through the good intentions of expanding the definition section in the FLA we may have inadvertently emphasised coercive and controlling behaviour as a precondition or common factor. Whilst a helpful tool in understanding violence and helping to educate litigants, practitioners and the courts, I am concerned that the use of the typologies may lead to wrong or unhelpful classification. (JO46, judge, FCC)

Another judicial officer expressed concern that the broadening of the definition could lead to perpetrators raising allegations of family violence in response to the allegations made against them:

[It provides the] opportunity for [the] physical violence perpetrator to allege "family violence" from other parent under much wider definitions in response to allegations against them. (JO60, magistrate, FCoWA)

Some judicial participants suggested that the widening of the definition could lead to the minimising of all violent behaviour or to overwhelming pressures on statutory child protection agencies:

Some practitioners take the view that the non-physical definitions have gone too far and therefore can tend to minimise all violence. I don't know the answer to that dilemma! (JO44, judge, FCC)

The definitions are very wide … This has led to pressures on the state welfare agencies seeking to process increased Form 4s. (JO39, registrar, FCoA)

As foreshadowed in this last comment, judicial participants also identified problems with understanding the amended definition of family violence:

The definition is complicated so difficult for the non-lawyer to understand. (JO68, judge, FCC)

Another judicial officer questioned whether it had in fact broadened the range of cases covered:

I am unconvinced that the definition has widened the scope for cases to fall within it. The biggest problem is still the state of the evidence. There is little attempt being made to focus on proving objectively these facts … I am still a little uncertain as to whether anything can be concluded yet but I am wondering whether the widening of the definition is indeed what has happened. For example, the word "serious" now appears in the definition. Has that limited the definition on the basis that serious in the context of other words used such as "coercion" may mean that a lot of cases fall outside the definition. (JO36, judge, FCoA)

This judicial officer also questioned the utility of the definition in practice:

I wonder whether it might be more sensible to go back to the starting point. Is it necessary to have a definition(?) Most complicated dysfunctional family cases involving children do not need the focus of a definition; they need a solution for children whose lives will rarely be improved by orders because they still live in that dysfunctional world. The need for a definition has been exacerbated by the legislature having attempted to define best interests. If … s 60CA stood alone and the current 60CC provisions were mission statements or objects and principles, it might be a lot more sensible. (JO36, judge, FCoA)

Lawyers

Like the responses of judicial officers/registrars, those from lawyers concerning the new definition reflected a range of views, concerns and interpretations. Many positive responses referred to the fact that the new s 4 and s 4AB definitions made it easier to work with clients to develop understanding of the behaviours that amount to family violence and abuse. Other comments suggested very mixed views on the workability of the definitions.

Positive effects arising from the more "nuanced definition of family violence" (L286) were described by numerous lawyers to stem from the breadth of behaviour captured within the scope of the definition:

The expansion of the definition is the most important factor … financial and other social controls and psychological abuses are now properly recognised. (L341, lawyer)

I believe the new definition captures more cases of family violence and allows for a recognition of the myriad of coercive and controlling behaviours which constitute family violence. The non-exhaustive list of examples in the definition is useful. (L498, lawyer)

Consideration is given to a broader range of conduct which might be regarded as violent and which in any event is adverse to children's interests. (L241, lawyer)

Broader definition of family violence, more in line with current thinking about family and domestic violence. (L30, lawyer)

[A positive outcome is] the ability to use an expanded definition of family violence and abuse. (L112, lawyer)

This broader definition in FLA s 4AB was in turn identified by some participating lawyers as leading to improved awareness of the effects of family violence, together with improved practices in identifying, assessing and responding to these risks and harm factors on the part of family lawyers. For example:

Lawyers are using the broader definition of family violence, which takes into account a range of controlling and coercive behaviours. Legal professionals are becoming more aware of how family violence can affect children. I believe lawyers are more likely to ask questions about family violence and explore its implications. The changes have placed responsibility on legal professionals to take family violence into account when giving advice and this has in turn led to better arrangements being made for children. (L498, lawyer)

I think the expansion of the definition assists lawyers in taking instructions from their clients. (L406, lawyer)

Clarification and extension of what is domestic violence. There is more of a chance that lawyers will include domestic violence issues in the affidavits, which can lead to a stronger protection for the children in the long term. (L500, lawyer)

Consistent with the responses of judicial participants, some participating lawyers also identified the significance of the expanded definition introduced by FLA s 4AB in promoting greater understanding (in both the community and among family law professionals) of the behaviour that may be said to constitute family violence, with this greater understanding supporting disclosures:

The identification of family violence to include the non-physical, coercive, controlling and economic violence has assisted clients significantly to disclose. It is necessary to identify to clients the types of violence as the public do not widely know about this identification and types of violence. Clients are relieved to know that they can be heard on these matters and that it does constitute violence. The judiciary now know what it is. (L82, lawyer)

You can tell clients that the court prioritises protecting the child and explain to clients the expanded definition of family violence, which may encourage them to seek assistance. (L97, lawyer)

Family violence is much more on the agenda. The improved definition has lead to increased/increasing understanding. It can be raised with more confidence, although how raising it is dealt with is not yet a certainty. (L505, lawyer)

A broader definition of family violence creates a better understanding of all the different behaviours that can constitute family violence. (L334, lawyer)

[Positive consequences are the] greater willingness of victims of family violence to raise the family violence in proceedings and [the] greater comfort that their experiences will satisfy the definition at law. [The] ability to rebut the presumption of ESPR in more matters [and] a more consistent message between legal services and community/support services about what constitutes family violence. (L272, lawyer)

Other participating lawyers emphasised the importance of the legislative definition in assisting with greater community awareness more generally:

It is beneficial for the public to have a definition of FV in black and white. (L372, lawyer)

In contrast, some lawyers described their disapproval of the expanded definition introduced by FLA s 4AB. For some, this disapproval was based on the view that the breadth of the definition had the effect of downplaying or trivialising violence, that it was difficult to apply, or that it had lost its meaning:

The definition of "violence" has been widened. But instead of calling it "violence" some professionals now call it "family conflict", which trivialises violence. Just because BOTH parents were violent to each other, it then becomes "family conflict". But it's still violence. (L303, lawyer)

DV has been trivialised, as the definition is so wide as to apply to a lot of situations where it is (near) impossible to work out who is the aggressor and who is the victim. Consequently, the court simply cannot consider properly all allegations. (L487, lawyer)

Because the definition is so wide it has lost its meaning and impact. (L470, lawyer)

A broad definition of family violence can be difficult to work with. (L286, lawyer)

The amended definition was identified as giving rise to a lack of differentiation between forms of violence, which in turn had led to a failure to respond to violence described as being of a "serious or sustained" nature:

The widening of the definition of DV has not assisted. The very serious and sustained type of violence is not distinguished from the less serious situational violence that often occurs when couples are separating. Professionals tend to therefore lump all types of violence into the same category. This leaves victims (and their children) of serious sustained violence often inadequately unprotected as they typically require far more protection than victims of situational violence. (L187, lawyer)

The definition of family violence is too wide, not giving proper attention to true family violence when children are being truly put at risk either personally or psychologically. (L38, lawyer)

Concerns raised by some participants that suggested a proliferation in false, exaggerated or irrelevant allegations will be considered further in Chapter 8 in the context of a more focused discussion on the evidentiary issues raised by participating legal professionals.

Non-legal professionals

Positive reflections arising from this broader definition of family violence arose in the comments of numerous non-legal professionals. Consistent with the comments of some judicial and legal professionals, these participants supported the clarity or breadth of the revised definition, and the way in which it captured "the less visible components of family violence":

Practitioners who work in the field are invited to give greater consideration to the less visible components of family violence that have similar and greater impacts for victims. Children are potentially seen as having greater levels of vulnerability in these proceedings and therefore their safety given higher priority. (NL186, D/FV service, service level coordinator/service manager)

There is clearer specific information on what constitutes violence. (NL395, FCC, family consultant)

[A positive consequence is that they are] helping people in general to have a clearer understanding of what constitutes family violence. (NL493, FRC, mediator/FDR practitioner)

[Positive consequences are the] adequate definitions of the nature and types of family violence, written in "plain" (non-legal) language, which means non-legal professionals and lay people alike can read and understand the meaning of such raising awareness in the community/society at large about family violence and the various type of such. (NL596, FRC, mediator/FDR practitioner)

The new increased definitions of what constitutes family violence more adequately include verbal and emotional abuse and as such better protect children - or at least raise the issues for all those who make decisions on behalf of children (parents, lawyers, courts, practitioners, support services and child protection services). (NL430, family relationships counselling service, service level coordinator/service manager)

Indeed, the amended definition was identified by some non-legal professionals as reflecting both the reality of the lived experience of family violence and the available social science research:

The reforms' new broader definitions are better covering what is happening in the community. (NL37, FRC, mediator/FDR practitioner)

Expanding the definition of DV to include a broad range of behaviours - is in line with social science. (NL97, D/FV service, D/FV professional)

The removal of restrictions or limitations arising from definitions of family violence also received positive comments:

The reforms provide more inclusion of aspects of violence that in the past may have been excluded. (NL395, FCC, family consultant)

[Positive consequences are the] expanded definitions that don't limit what family violence may consist of. (NL67, FRC post-separation services manager)

In particular, the availability of a clear legislative definition that enshrined current practice knowledge in law, was identified by one non-legal professional as facilitating the identification of, and appropriate response to, family violence:

Having what we have long known professionally enshrined in the legislation enables us to very clearly name the issues as they are, and to focus on the impact on children, and thus give the court evidence which increases the courts' ability to act protectively towards children. (NL14, FCC, family consultant)

[A positive consequence was] the recognition that violence should be more widely defined and recognised and given greater consideration legally than previously. (NL556, post-separation services manager)

It certainly promotes a greater capacity for the identification of different types of violence for the benefit of all family members involved. (NL412, FDR service, mediator/FDR practitioner)

[Positive consequences are the] greater awareness of the new definition of FV and the requirement to follow-up/take action when issues are disclosed. (NL415, FDR service, mediator/FDR practitioner)

The educative function arising from the breadth of definitions was highlighted by some non-legal professionals, with one describing the amended definition of family violence as both challenging perceptions of what constitutes family violence and providing a "platform" to discuss the broader effects of family violence and respond appropriately where identified:

Broader definitions allow practitioners in the sector to challenge people's perceptions of what FV is and gives a good platform to discuss impact of FV on children especially where children are not "directly" exposed to FV, i.e., arguments while they are sleeping, impact of conflict levels between parents on children. Clearer definition on when mandated to report serious psychological harm is a wonderful addition. Gives more leverage when reporting suspected child abuse to DHS. (NL614, FDR service, post-separation services manager)

Clearer definition of family violence, which reinforces the practitioners' information provided for parents. (NL636, FRC, mediator/FDR practitioner)

Provides a high profile for family violence when talking to clients, which all helps in working towards "zero tolerance" and clients' understanding of what family violence is; in particular, emotional abuse. (NL416, FRC, mediator/FDR practitioner)

It's now easier to be clear with clients about the legality of family violence and the boundaries they need to be aware of. (NL187, FRC, mediator/FDR practitioner)

Again, consistent with the responses of judicial and legal participants, some non-legal professionals also identified the significance of the expanded definition in promoting greater understanding (both in the community and among family law professionals) of the behaviour that may be said to constitute family violence, with this greater understanding supporting the disclosure of family violence:

More inclusive of different forms of abuse and helping clients to understand that what they have been living was in fact abuse. Therefore, helping clients to seek appropriate help to reconcile these issues. (NL51, FRC mediator/FDR practitioner)

The fact that there are explanations of what constitutes a child being exposed to family or domestic violence [that] have been included with the changes has been extremely helpful in raising awareness with mothers specifically. It often opens their eyes to the fact that while her child/children may not be physically assaulted by the other party, they are still experiencing [family and domestic violence]. (NL137, no service or position specified)

[The family violence reforms have] raised awareness and provided a more inclusive and clear definition of FV. (NL13, FCoA, family consultant)

Some non-legal professionals also emphasised the benefit arising from the amended legislative definition of family violence in assisting with the encouragement of not only awareness of what may constitute family violence but also awareness of the significance of protecting children from harm arising in the context of family violence. One non-legal professional referred to the amended definitions of both family violence and child abuse in this context:

Greater awareness across the family law sector of the importance of protecting children from harm, assisted by the broader definition of family violence and including neglect and exposure to family violence as child abuse. (NL18, FCoWA, family consultant)

Other non-legal professionals were critical in their reflections on the amended definition of family violence in FLA s 4AB. For a small number of non-legal professionals, the definition was identified as unduly restrictive in nature:

The typologies of family violence are not true and [are] unhelpful. (NL492, D/FV service, D/FV professional)

3.1.3 Using the new definitions as an educative tool

Table 3.3 sets out the views of different professionals on the extent to which the new definitions of family violence and abuse have supported improved understanding among family law system professionals and clients. Considering the aggregated responses, the two professional groups most seen to demonstrate an improved understanding are FDR practitioners and Independent Children's Lawyers (ICLs), with about 60% of responses across the board agreeing that the new definitions have improved understandings. The new definitions were seen to have less of an educative effect for parents, particularly fathers, with 42% of the sample suggesting improved understandings among mothers but substantially fewer (about one-quarter) agreeing the same had occurred among fathers.

Table 3.3: Professionals strongly or mostly agreeing that new definitions of family violence and abuse have improved understandings of family violence, by associated 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 changes to the definitions of family violence and abuse have resulted in improved understandings of what constitutes family violence by the following professionals [listed]". "Cannot say" responses range was 10-68%. a The number of responses to individual questions varied - judicial officers/registrars: n = 34-35, lawyers: n = 280-284, non-legal professionals: n = 255-263; aggregated professionals: n = 542-581. Percentages do not total 100% as not all response categories are presented and multiple responses could be chosen.
Source: Survey of Practices 2014
ICLs 27 77.1 191 67.5 133 51.0 351 60.6
Other lawyers 23 65.7 187 65.9 83 31.9 293 50.6
Judicial officers and/or registrars 27 77.1 190 67.4 108 41.7 325 56.4
Family consultants and/or single expert witnesses 23 67.7 176 62.2 140 53.9 339 58.8
FDR practitioners 12 34.3 154 54.4 193 73.4 359 61.8
FRC staff - - 106 37.5 180 69.0 286 52.6
Children's contact service staff - - 131 46.1 156 59.8 287 52.7
Post-separation support services staff - - 90 31.8 157 60.6 247 45.6
Family counsellors - - 103 36.3 155 59.9 258 47.5
Parenting Order Program staff - - 89 31.5 129 49.6 218 40.2
Mothers 10 29.4 119 42.5 115 44.1 244 42.4
Fathers 4 11.8 82 29.2 67 25.9 153 26.7
Other parties 3 8.8 47 16.8 41 16.1 91 16.0
Total respondents a 35   284   263   581  

3.2 Effects of the repeal of provisions seen to discourage disclosure

The 2012 family violence reforms also involved the repeal of provisions that were seen to have the potential to discourage people from raising concerns about family violence and child abuse. These provisions were: s 117AB, which explicitly supported a court's power to make costs orders where a party was found to have knowingly made a false statement in proceedings;10 and s 60CC(3), which directed the court's attention to the extent to which one parent had facilitated the involvement of the other parent in the child's life.

Views on the effects of the repeal of s 117AB were examined by asking two differently framed questions (Figure 3.1). The first tested views on whether the repeal of s 117AB had a positive effect through "encourag[ing] disclosure of concerns of violence or child abuse that are genuinely held and/or likely to be true". The second tested views on whether the repeal of s 117AB had a negative effect through "encourag[ing] false allegations of violence or child abuse". Overall, the response patterns suggest views consistent with a relatively weak association between the repeal of s 117AB and either a positive or negative effect. Although response patterns to the two questions differ to some extent, and "cannot say" responses are high for both, a noteworthy feature is a marked tendency to disavow any negative effect of the change, particularly among judicial officers and registrars, which is the group most likely to have direct experience in this regard.

Figure 3.1: Agreement that the repeal of s 117AB has affected disclosure of allegations of violence or child abuse, by professional groups, 2014

Figure 3.1: Agreement that the repeal of s 117AB has affected disclosure of allegations of violence or child abuse, by professional groups, 2014. Described in accompanying text.

Notes: Professionals were asked: "To what extent do you agree or disagree that the following statements describe your view: That the repeal of provisions relating to the making of an adverse costs order has encouraged the (a) disclosure of allegations of violence or child abuse that are genuinely held and/or likely to be true, and (b) false allegations of violence or child abuse". Judicial officers/registrars: n = 36-37; Lawyers: n = 319-320; non-legal professionals: n = 290-292. Percentages may not total 100.0% due to rounding.

Source: Survey of Practices 2014

Consistent with previous findings (Kaspiew et al., 2009, p. 249)11 suggesting that professionals did not view s 117AB as a significant disincentive to raising concerns, just over a quarter of professionals in the Survey of Practices 2014 indicated that the repeal of s 117AB had encouraged increased disclosure of "allegations likely to be true" (Figure 3.1). "Cannot say" responses were selected by substantial minorities in each sample (between 46% for non-legal professionals and 37% for lawyers). The group most likely to hold views suggesting the repeal had a positive effect were non-legal professionals (32%), although nearly half (46%) made "cannot say" responses. Differences between judicial and legal professionals (judicial officers and registrars and lawyers) and non-legal professionals are marked, with lawyers and judicial officers/registrars, especially, less likely to respond that there has been a positive effect. These response patterns seem particularly likely to reflect different practice experiences, with judicial officers' and lawyers' responses suggesting a weak direct effect between the change and patterns in behaviour in contexts where the law has direct influence. In contrast, in the area where the law has less direct influence and more influence based on what is perceived might or could happen - that is, in negotiations not associated with a process of litigation - the views of non-legal professionals are considerably more consistent with a positive effect.

The response patterns in relation to the question examining a possible negative effect of the repeal of s 117AB - a perceived increase in false allegations - suggest a stronger association between the change and the absence of such an effect. Even in the context of substantial minorities across the groups nominating a "cannot say" response (48% of non-legal professionals, 39% of judicial officers/registrars and 36% of lawyers), responses consistent with the occurrence of a negative effect were made by just under 20% of lawyers and non-legal professionals and by no judicial officers or registrars. In contrast, responses inconsistent with the occurrence of a negative effect were made by a majority of judicial officers/registrars (61%), just under half of the lawyer group (45%) and nearly two-thirds of non-legal professionals.

3.2.1 The repeal of s 117AB: Qualitative insights

Only a small number of participating lawyers specifically commented on the repeal of provisions seen to discourage the disclosure of family violence, child abuse and child safety concerns, with fewer still specifically discussing the effects of the repeal of FLA s 117AB. While one of these participating lawyers (L501) described the removal of this provision as a positive change, other comments from participating lawyers described the repeal as a retrograde step:

[The family violence reforms are] good in theory, however [they] are used as a sword instead of a shield and need serious reforms. Certainly, bringing back costs orders for false allegations is a must … costs are rarely ordered anyway in the Family Law Courts. (L422, lawyer)

[The family violence reforms] can be used as a weapon in that one parent may make baseless allegations, or greatly exaggerate their concerns, in the knowledge that the court will likely take a fairly conservative approach to parenting arrangements until all of the evidence has been considered. The fact that the allegations can be made with the knowledge that there are no costs consequences, and that the court will only order a change of residence in extreme cases, means that even if the allegations are not substantiated there is no real consequence for the accusing party. The frustration is that by the time the allegations are investigated by the court the children may have had many months of having to see the other parent in an artificial environment such as a contact centre. (L113, lawyer)

As noted above, concerns raised by participants that suggested a proliferation in false, exaggerated or irrelevant allegations will be considered further in Chapter 8 in the context of a more focused discussion on the evidentiary issues raised by participating professionals.

3.2.2 The repeal of s 60CC(3): Quantitative insights

In relation to the other potential disincentive to raising concerns about family violence and child abuse - the so-called "friendly parent" criterion, FLA s 60CC(3) - the aggregate response pattern is consistent with a weak association between the repeal of this provision and an effect consistent with the intention of the reforms to encourage the disclosure of concerns about family violence and child safety (a positive effect). Like s 117AB and disclosure, however, differences in response patterns between professional groups suggest that a positive effect is more likely to be perceived by those not concerned with the direct application of the law. Participants were asked to indicate agreement or disagreement with the proposition that "the removal of the consideration relating to facilitating the other parent's relationship with the child has made no difference to whether people are willing to disclose concerns about family violence or child abuse/child safety" (Table 3.4).

Table 3.4: Agreement that disclosure has not been affected by the removal of s 60CC(3), by professional groups, 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 view? The removal of the consideration relating to facilitating the other parent's relationship with the child has made no difference to whether people are willing to disclose concerns about family violence or child abuse/child safety". "Not applicable" responses were not available to be selected by judicial officers/registrars and lawyers but were made by 1.7% of non-legal professionals. Percentages may not total 100.0% due to rounding.
Source: Survey of Practices 2014
Strongly agree 5 13.5 45 14.1 13 4.5 63 9.7
Mostly agree 16 43.2 120 37.5 93 31.9 229 35.3
Mostly/strongly disagree 4 10.8 70 21.9 77 26.4 151 23.2
Cannot say/not applicable 12 32.4 85 26.6 109 37.3 206 31.8
Total 37 100.0 320 100.0 292 100.0 649 100.0

Non-legal professionals made the highest proportion of responses consistent with a positive effect (26% mostly or strongly disagreeing), but even in this group a higher proportion (36%) of responses suggested the absence of any effect (mostly or strongly agree), and just over one-third (37%) indicated they could not say. Among lawyers, the disparity between the proportions supporting a positive effect (22%) and no effect (52%) was even greater, with the lowest proportion of "cannot say" responses being among this group (27%). Judicial officers/registrars were the least likely of all to nominate responses consistent with a positive effect (11%) and most likely to nominate responses consistent with no effect (57%). Nearly one-third (32%) of this group indicated they could not say.

3.2.3 The repeal of s 60CC(3): Qualitative insights

Judicial officers/registrars

Few judicial participants specifically commented on the repeal of provisions seen to discourage the disclosure of family violence, child abuse and child safety concerns, and where these comments were provided, they were made specifically in relation to the repeal of the so-called "friendly parent" criterion previously included in the list of additional considerations in FLA s 60CC(3). One judicial officer in particular described a positive effect arising from the repeal of this additional consideration as reducing the need for parties to raise "every allegation and complaint they can think of" in order to justify their position on parenting time in the way that they may have if the "friendly parent" criterion remained in place:

While some in the field worry about the reforms "inviting" parties to make allegations in an effort to undermine the other party's relationship with the children, in my professional opinion this has always been a vastly overstated concern and is no more likely to occur now than previously. If anything, it is possible that the reforms, particularly removal of the so-called "friendly parent" provisions, may mean parents feel less need to throw every allegation and complaint they can think of, which they previously felt they needed to do, to justify their opposition to the children spending time with the alleged abusive parent. (JO50, judge, FCC)

On the other hand, another judicial officer challenged the need to remove this "friendly parent" criterion considering that it had not operated in a manner to discourage the disclosure of family violence, child abuse and child safety concerns:

I don't think the "friendly parent" provisions operated at all in the way advocates of their abolition advocated. I became persuaded that lawyers really were telling people that, which is very disappointing. In my view, violence, child abuse and associated issues are always been taken seriously by the court. (JO70, judge, FCC)

Lawyers

A small number of participating lawyers commented on the repeal of the so-called "friendly parent" criterion. Once again, while some of these participants described the removal of this provision as a positive step (L501; L61), other comments from participating lawyers considered the repeal to be a retrograde step:

It was a backward and very unnecessary step to remove the obligation to facilitate a relationship with the other parent from the legislation. I know of no examples of where this prevented any of my clients, or those at my firm, from reporting family violence. The removal of the facilitation of a relationship principle signals to parents that this is not an important responsibility that they have to their children. (L120, lawyer)

Removing the consideration about whether the parents are willing to encourage and facilitate a relationship with the other parent implies to parents that they don't need to worry about that anymore. There is an increased focus on the family violence rather than how to move on and create arrangements that are safe but allow the children to develop a relationship with the other parent. (L49, lawyer)

Non-legal professionals

A small number of participating non-legal professionals specifically commented on the repeal of provisions seen to discourage the disclosure of family violence, child abuse and child safety concerns, which appeared to be references to the repeal of FLA s 117AB or to the "friendly parent" criterion.

In relation to the "friendly parent" criterion, some non-legal participants described its removal as having a positive effect:

The removal of the "friendly parent" provisions allows victims to be less fearful of disclosing family violence. (NL97, D/FV service, D/FV professional)

One family consultant reflected positively on the "exorcising of the friendly parent aspect of the legislation". (NL129, FCC, family consultant)

Other non-legal professionals reflected more broadly on the effects of the family violence reforms in "allowing parents to act protectively without fear of penalty" (NL122, FDR service, mediator/FDR practitioner) or described the family violence reforms as representing "a step towards the greater protection of children and less hostility to women who raise the allegations" (NL38, FDR service, mediator/FDR practitioner).

On the other hand, some comments from participating non-legal professionals described the negative effects of the family violence reforms as giving rise to a system whereby there is "little or no consequence" to the making of false or frivolous allegations:

The "risk based" system has opened up the door to abuse by parents making allegations of family violence with little or no consequence if they lie but very damaging consequences to the other parent's attachment and relationship with their child. (NL20, FDR service, mediator/FDR practitioner)

Concerns raised by participants that suggested a proliferation in false, exaggerated or irrelevant allegations will be considered in greater detail in Chapter 8 in the context of a discussion focusing on the evidentiary issues raised by participating legal professionals.

3.3 Summary

This chapter has examined the professionals' views of and experiences with two elements of the 2012 family violence reforms: the new definitions of family violence and child abuse, and the repeal of provisions seen to discourage disclosure of concerns about these issues.

Overall, the findings in this chapter are consistent with the themes that started to emerge in Chapter 2. In relation to the definitions, the response patterns among professionals indicate that a majority of participants in each professional group are supportive of the direction of this aspect of the reforms. On an aggregate basis, most professionals (73%) in the sample agreed that the new definitions supported safer parenting arrangements for parents and children. This was an area where few substantial differences between the professional groups surveyed were evident.

Views on whether the new definitions were associated with an improvement in the family law system's ability to identify, assess and respond to non-physical forms of family violence were less positive, with 37% of the total sample agreeing that this was the case. The group that works most closely with the legislative definitions in day-to-day practice - judicial officers/registrars - were most likely to indicate a positive effect.

Qualitative data provide further insight on the range of views on the family violence and child abuse definitions. Professionals from each group made comments indicating that the new definitions supported professionals' work with clients about the behaviours that amount to family violence and child abuse, but it is also notable that the responses to a survey question about the definitions and improved understandings among different stakeholders strongly indicate that this is where most improvement is required.

The qualitative comments on the definitions also highlight differing views among professionals about whether the s 4AB definition does indeed capture a wider range of behaviours than the previous definition or whether in practice its scope is restricted by the qualifying terms referring to coercion, control and fear. Contradictory interpretations in this regard are suggested by the comments, with some professionals suggesting the definitions capture behaviour that should not be of concern in making parenting arrangements, diverting attention and resources away from scrutinising violence at the more serious end of the spectrum. Concerns about resources were raised in a number of comments, which suggests that the need to apply greater scrutiny to concerns about family violence and child abuse was placing a strain on the family law system. On the other hand, many comments endorsed the usefulness of the new definitions in several ways: raising awareness among professionals and parents, supporting better screening and identification for lawyers, and providing more useful definitions for courts. The qualitative comments underline the variety of views and approaches to family violence among professionals.

In relation to the two changes implemented to address perceptions about disincentives to raising concerns about family violence and child abuse, the findings suggest that these changes in practice may be most notable "in law's shadow".12 The findings on the effects of the repeal of s 117AB suggest that this step is not associated with either a negative effect (an increase in "false" allegations of family violence and child abuse) or a positive effect (an increase in disclosure of concerns about family violence and child abuse). Responses consistent with a positive effect were strongest among non-legal professionals, and responses inconsistent with a negative effect were strongest among judicial officers and registrars. It is notable that disavowal of a negative effect was strongest among the group most likely to have direct insight into "false" allegations in court proceedings: judicial officers.

Findings on the repeal of s 60CC(3) - the "friendly parent" criterion - suggest that non-legal professionals perceived the greatest effects of this change of the three groups surveyed. However, responses overall are more indicative of a lack of effect from this change, or a reticence to express a view. Few of the qualitative comments addressed this aspect of the reforms, but those that did raise concerns suggested that this change would mean that family violence would attract too great an emphasis compared with the child's right to a relationship with both parents. This suggests that these concerns are held by professionals who are less likely to support the overall direction of the reforms.

8 Arguments of this nature are summarised in the Family Law Legislation Amendment (Family Violence and Other Measures) Bill 2011 [Provisions].

9 For a discussion of this work see Wangmann, 2011 and Altobelli, 2009.

10 The court retains this power under FLA s 117(2).

11 In 2008, 13% of the sample agreed with the proposition that "the prospect of an adverse costs order has discouraged allegations of violence or child abuse that are genuinely held and/or likely to be true".

12 This term was coined by Mnookin and Kornhouser (1979). It refers to the ways in which legal principles may influence negotiation and agreement that takes place outside of court contexts, including in alternative dispute resolution processes. For discussion of the concept in relation to Australia's family law system see: Kaspiew, Gray, Qu, and Weston (2011).