Responding to family violence
- Executive summary
- 1. Introduction
- 2. Overview of the effects of the Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 (Cth)
- 3. Family violence and child abuse: Amended definitions and the removal of perceived legislative disincentives to disclosure
- 4. Identifying and assessing harm and risk of harm
- 5. Service-use dynamics after the family violence reforms
- 6. Responding to harm and risk of harm
- 7. Parents' experiences
- 8. Consequences of the family violence reforms: Qualitative insights
- 9. Summary and conclusions
- Appendix A: Notice of Risk (SA Pilot) and Form 4 Notice
- Appendix B: Understanding of the exceptions to FLA s60I
8. Consequences of the family violence reforms: Qualitative insights
This chapter sets out qualitative findings from the Survey of Practices that provide insight into professionals' perceptions of the consequences of the 2012 family violence reforms. Open-ended survey questions in the final section of the survey sought the views and experiences of judicial officers and registrars, lawyers and non-legal professionals in relation to the positive, negative and unintended consequences of the reforms. Following an examination of these participant views and experiences, this chapter will conclude with a summary of the patterns emerging from these data about the consequences of the family violence reforms.
The data presented in this chapter provide further insight into some of the views and experiences that underlie the patterns in the quantitative data discussed in the preceding chapters. In particular, they provide more detailed insight into the views behind the majority responses endorsing many aspects of the reforms and the minority responses indicative of less positive views. Overall, positive consequences of the reforms are seen as raising awareness of the relevance of family violence and child safety concerns to parenting arrangements and providing a statutory basis for prioritising protection from harm. A range of negative consequences were raised, including those that arise from increased scrutiny of family violence and child safety concerns in terms of evidentiary requirements, court workloads and demands placed on child protection services. Some practitioners expressed concerns about an increase in false, frivolous and vexatious allegations about family violence and child safety. Such concerns are longstanding and pre-date the reforms, although some practitioners expressed the view that they have increased since the reforms.
8.1 Positive consequences of the family violence reforms
This section presents discussion of what are seen by the family law system professionals who participated in the Survey of Practices as the positive consequences of the 2012 family violence reforms. The discussion is based on responses to an invitation to comment on positive consequences in an open-ended text box. Some of these responses referred to the greater legislative clarity about the priority to be accorded protection from harm and the widened definitions of family violence and child abuse. Such comments have already been considered in the discussion in Chapters 2 and 3 respectively. In addition to these issues, three other main overlapping themes were evident in the discussion of positive consequences. Most broadly, the educative role of the reforms was endorsed by many professionals and was seen to be important at many levels, including in shaping community understanding and professional practices. A second theme related to improved support for examining family violence from several different practice perspectives, including in eliciting disclosure and improving the nature of the evidence that is presented to courts. A third theme related to having statutory backing for what is seen as sound practice: considering protection from harm as an inherent part of making parenting arrangements. A particularly important point made by some participants who raised this theme was a perception that the 2012 family violence reforms support a greater consideration than before of the effects of exposure to family violence on children. Overall, this comment from a judge encapsulates what are seen as the positive consequences of the reforms:
They have highlighted the problem so there is now more focus on violence. (JO36, FCoA, judge)
8.1.1 Education and awareness
Many comments on positive consequences indicated that the reforms have raised awareness of family violence and child safety issues and their relevance to making parenting arrangements. They were seen to support practice in working with parents to identify concerns about family violence and child abuse and, more particularly, to provide parents with advice on parenting arrangements in this context. Heightened awareness among a range of professionals was also seen as an important positive consequence.
Two related issues were raised in such comments. The first was that the range of behaviours encompassed in the new definition provides a better basis for understanding family violence, including in relation to the exposure of children to violence. The second was the fact that the reforms supported conscious consideration of the implications of family violence for children's wellbeing and parenting arrangements in this context.
[There is] greater AWARENESS of need to give high priority to the protection of children when determining their best interests … [and] that consideration pervades the decision-making process. (JO37, FCoWA, judge)
[There is] greater understanding amongst parties and in the community about the scope and nature of violence, beyond the physical. Probably also understanding the impact on children and that the indirect impact can be just as damaging. (JO69, FCC, judge)
In my view, amending legislation does not have the impact on parent behaviour and litigant behaviour that those pushing for such change generally anticipate. It is, however, a desirable outcome that steps have been taken to send to the community a message that being a "friendly parent" is not always in the best interests of the child. Parents should feel free to be frank with the court about their concerns about the behaviour of the other parent. (JO51, FCoWA, judge)
Practitioners are more aware of family violence issues and the impact that family violence has on children. (L490, lawyer)
Greater recognition of low level family violence and the power imbalances that result. (L49, lawyer)
[A positive consequence is] raising awareness about its prevalence, consequences for children, compelled thinking about strategic responses in the family law and care and protection arena, [and the] flow on is community awareness and education. It is being taken more seriously by police and courts. (L616, 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)
[There is] more awareness of the need to ask about it, and that it can have negative impacts for children. Less "threats" made to victims about being in trouble for making allegations. Probably a better opportunity to educate clients about it, and also get them to Parenting After Separation courses run by FRCs and the like. (L410, lawyer)
[There is] greater awareness on behalf of both myself and my clients of the definition of family violence and legal rights accordingly. (NL149, FRC, mediator/FDR practitioner)
[There is] greater understanding and awareness of family violence amongst the community as well as service professionals and the legal profession and a recognition that family violence is multi-faceted and has profound effects on children's health and wellbeing. (NL355, FRC, mediator/FDR practitioner)
A further set of comments on the positive consequences of the 2012 family violence reforms indicated that the changes support increased scrutiny of issues relating to family violence and child safety in a range of practice contexts, including FDR, legal practice and in courts. Non-legal professionals, lawyers and judicial officers/registrars indicated that the reforms support a greater level of scrutiny of these issues in their practice settings. In the court context, some comments suggested that family violence and child safety concerns are raised earlier in proceedings than previously, that more evidence on these questions is adduced, supporting better decision making, particularly at interim level (see also Chapter 4). Some comments suggested that prioritising safety made decision making at interim level clearer and there was a greater emphasis on risk management at this and other stages.
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, FCC, judge)
[There is] no trial by ambush. The issues are put forward early in proceedings. (JO48, FCoWA, magistrate)
[Issues of family violence] can be given greater weight, particularly in interim hearings. (JO68, FCC, judge)
[There are] simpler processes/ease of obtaining an order for sole PR [parental responsibility], sole care (in interim), supervised care for other parent. [The] court has heightened awareness and sensitivity to FV issues. (L355, lawyer)
For some practitioners, a greater emphasis on risk management was evident in their own practice and that of others.
There is perhaps a more heightened awareness by practitioners and the extent to which proposals seek to address the identified risks form a greater part of negotiations than prior to the reforms. (L317, lawyer)
I now have a much more comprehensive series of questions to put to clients regarding abuse and domestic violence issues. I have long been concerned with orders for a child to spend time with a parent where there are serious allegations of DV. We have developed a clearer understanding of the vicarious abuse suffered by a child when exposed to the abuse of one parent against the other. (L128, lawyer)
In addition to identification of risk and scrutiny of family violence, a further issue was raised: several participants suggested that there was greater awareness among some professionals of the implications of a history of family violence for parent-child relationships.
Lawyers and parents are far more willing and open to raise FV and issues of concern that impact on children with courts. Courts are far more open to hearing allegations of FV and take [them] far more seriously than in the past. The common view of many of the judiciary in the past of "bad/violent partner but good dad" is pleasingly under challenge from a far more aware and sophisticated analysis and understanding of the impacts of FV on parents, parenting and children. (L470, lawyer)
I think that more practitioners are identifying issues that may not have been detected before the reforms. I also think that parents are receiving more information about the impact upon their children. This has hopefully led to more protection for children from the less obvious and more long-term negative outcomes of being exposed to their parents' conflict. (NL23, FCC, family consultant)
8.1.3 Statutory support for sound practice in protecting children
Another important theme in the discussion of positive consequences concerned the value of having sound practice in prioritising the protection of children from harm enshrined in legislation. This is consistent with the discussion on views of s 60CC(2A) in Chapter 2; however, these comments were not pertinent to this provision only, but refer to the reforms overall. Some of these comments emphasised different elements of the reforms, but the combination of the definition and s 60CC(2A) emerged as being particularly significant in supporting this direction. Confidence that advice in relation to protecting children had a statutory base was seen as being critical in supporting good practice across practice settings, including family dispute resolution. Some comments indicated that the reforms also provide support for dispelling notions that parents' rights were more important than children's needs (see also Chapter 2).
Courts now have clear legislative power to frame orders to protect parties and children from family violence. (L131, lawyer)
[There is] greater weight being given to family violence by prioritising it over meaningful relationship. Improved definition of family violence, which is subjective rather than objective and takes account of other forms of violence such as abuse to animals, financial abuse, etc. and it being a non-exhaustive list. Removal of the friendly parent provisions, removal of costs orders, requirement for court to enquire about family violence. (L501, lawyer)
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)
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)
Several professionals working in a variety of areas, including those not directly concerned with dispute resolution, indicated the reforms provided a clearer platform for supporting parents who did not want to expose the child to the violent or abusive behaviour of the other parent.
Child protection takes priority and parents who struggled to hand over their children to an abusive parent and whose children [were] betrayed by the parent handing them over to the abusive parent are less frequently put through this trauma. (NL498, Post-Separation Cooperative Parenting Program, counsellor)
[They] encouraged all stakeholders within the family law system to have a common goal of protecting the child, improved understanding of cumulative harm, provide more weight to protecting the child (in other words the child's rights) instead of ensuring the "rights of the parent". (NL494, POP, post-separation services manager)
I am more confident to privilege the child's safety and wellbeing over any relationship with parent. I don't give advice, but knowing about this change to the law empowers me to discuss this issue with a parent in a way I may not have done previously. (NL83, FRC, mediator/FDR practitioner)
[It is] dispelling the notion of the males' "right" to 50% of time to children. (L160, lawyer)
8.2 Negative consequences of the family violence reforms
This section sets out the issues raised as being negative consequences of the reforms, recorded in open-ended text boxes inviting reflections on this question. Across the three professional groups involved, three themes emerged. The first concerned the family law system's ability to deal with the consequences of the increased number of parents raising concerns about family violence and child abuse in parenting matters. This concern has a number of dimensions, including the system's ability to separate out urgent and serious cases, and to deal with them expeditiously. A second theme reflected a view that the reforms had had limited effects on improving responses to family violence and child safety concerns, with some participants attributing this to a lack of resources and a lack of understanding of these issues among family law system professionals. The third theme raised a set of concerns related to allegations of family violence and child abuse that were perceived to be false, frivolous or raised spuriously to gain strategic advantage in disputes over parenting arrangements.
Each of these themes was reflected to a varying extent in comments from participants in each professional group, but the second theme was particularly prevalent among non-legal professionals, and also commonly raised by lawyers. Conversely, the third theme was raised more by lawyers than non-legal professionals. The first theme was most prominent in the answers of the limited number of judicial officers/registrars who provided comments on this issue.
The following sections present discussion on each theme. They enlarge understanding of the views and concerns that underlie the response patterns presented in the preceding chapters.
In responding to the request for comments on negative consequences, the response "no negative" comments was also made by many participants, particularly non-legal professionals.
8.2.1 Systemic pressures
A substantial number of comments about the negative consequences of the reforms raised concerns about emerging pressures on the family law system. A varied range of issues were mentioned, including longer court processes and delays in getting to court, the implications of the need for greater specificity about family violence and child abuse from an evidentiary, personal and cost perspective, and the perceived increased level of notifications to child protection services.
The time frame within which parenting disputes are heard that do not involve allegations of family violence has increased significantly - as matters which involve allegations of family violence are given priority of listing. This can result in, for example, a person whose child has been removed from the state without their permission, and with whom they are having no contact at all, but in relation to which there are no family violence allegations, not having their matter have its first hearing date in less than 3 months from filing. Given that parties are required to obtain a certificate from a dispute resolution practitioner prior to filing - and given that this process takes a minimum of 6 weeks (as the FDR has an intake process, then they invite the other party, then they invite them again if they fail to respond, prior to issuing the required certificate) this is resulting in parents being without any form of contact with their children for 5 months before the court even looks at the matter for the first time. (JO63, FCoA, registrar)
This comment by a judicial officer also raises a broader point that the family law courts have limited power to make orders protecting children:
How [can the] court deal with violence where it has no effective coercive powers in child protection and the perpetrator and the victim seek to continue their relationship. The violence is driven underground and the Child Protection Services are reluctant to be involved in proceedings under the Family Law Act. They regard such proceedings as being protective. (JO34, FCoA, judge)
As these comments show, concerns about increased caseloads and the complex issues involved in making assessments were not confined to the implications for child protection agencies (see also sections 4.2.5 and 6.3.1-6.3.2).
[The child protection authority] and other services are inundated and cannot meet the need for investigation in a timely way and in the best interest of children's safety. (NL306, FRC, family consultant)
The assessments required for the courts are now even more complex than previously but additional resources have not been provided to the family consultants services. Essentially, the expectations are greater but the time frame for family consultant interventions has remained the same (particularly for family reports). (NL19, FCC, family consultant)
Increases in the costs, delays and hostility associated with litigation, together with increases in the complexity of matters and of paperwork were nominated by some lawyers as negative consequences of the family violence reforms:
[There are] delays in families being assessed by single experts because of the shortage of experts. (L156, lawyer)
[A negative consequence is] parties including allegations in their affidavit of family violence, which are often not relevant and make the proceedings more litigious. For example, if there is no real risk to the child, allegations of past violence by one party directed to the other is raised when there are no further risks of abuse - such as changeover now being at a school, so the parents do not come into contact with each other. Also, how does family violence affect whether a parent is to spend for example 2 nights a fortnight as opposed to 4 nights - Parents raise allegations of family violence, however they still agree the other parent should spend unsupervised time with the child, but argue over how many nights. How is family violence relevant in these instances? (L54, lawyers)
8.2.2 Limited effects of the reforms
Some participants framed their comments about the negative consequences of the reforms in terms that suggested that the changes had had limited effects. These comments were made by 149 participants. Lawyers were most likely to make such comments (n = 99), followed by non-legal professionals (n = 42) and judicial officers/registrars (n = 8). In addition to the systemic and resource pressures outlined above, a range of issues was referred to in these kinds of comments. These included tokenistic responses by some agencies and professionals in the family law system, and a lack of change in ongoing problems with limited awareness about the nature and implications of family violence and child safety issues among some professionals. Some participants saw the complexity of Part VII of the Family Law Act 1975 (see also section 2.3.2) and the complexity of the family system itself as hampering the capacity of the legislative amendments to bring about substantive change. These themes were most common in the observations about negative consequences made by non-legal professionals and were also frequently raised by lawyers.
[They are] too general and added nothing of practical significance. (L234, lawyer)
It doesn't seem to have made as great a difference as I believe it should have. (L321, lawyer)
I haven't seen many changes to the application of the law - in terms of outcomes. Parenting orders are still being made allowing contact with violent parents. There is a strong future focus in the law courts, which don't give weight to the ongoing emotional impact of experiencing or witnessing violence. There is still a lot of pressure to reach an agreement out of court, even if there may be safety concerns - not enough support to go to court if there is no agreement or if the parenting plan is not working - Legal Aid is getting rejected in concerning circumstances and parents are representing themselves even when they have been victims of violence. (NL97, D/FV service, D/FV professional)
Women are still being forced to hand over young children to violent men with no adequate supervision. (NL605, D/FV, children's contact service professional)
Some participating lawyers who lamented this lack of change were critical of the court's response to the family violence reforms:
[It] doesn't address the culture of denial in the FC. (L280, lawyer)
[There is] a perception that courts will take child safety into account, when in reality they don't. (L46, lawyer)
Judges and practitioners take little notice!! (L285, lawyer)
Some lawyers and non-legal professionals were more specific in their descriptions of a lack of change, indicating that the reforms had not made an appreciable difference to responses or court outcomes in cases involving risks or harm to children or had not made a substantive change to the levels of understanding or attitudes to family violence in the legal parts of the system. Some comments in this vein raised the interplay between the family violence provisions and the presumption of equal shared parent responsibility (s 61DA), suggesting that the shared parenting philosophy embedded in the presumption remained dominant.
Nothing has really changed for a vast majority of people using the family court system. There is still a very strong leaning towards presumption of shared care or substantial care in situations when there is domestic violence or child abuse. (L18, lawyer)
The family violence reforms to the Family Law Act don't seem to have made as great a difference to the outcome of parenting matters as would have been expected. The fundamental problem with the Family Law Act provisions relating to parenting is with equal shared parenting and presumptions about equal time arrangements - despite not being intended this way the provisions give people the impression that children are property of the parents, to be "shared out" as the parents see fit. (L314, lawyer)
Criticism in this respect was not limited to the responses of courts. Similar observations were made with respect to family consultants, single experts and lawyers and family dispute resolution practitioners:
The changes have not necessarily had an impact on the views and recommendations of experts, ICLs or the decisions of judges. The outcomes in terms of orders made do not seem to have changed in that there is still an expectation that children will spend significant or regular time with perpetrators. (L245, lawyer)
[There is] little understanding by practitioners representing the perpetrator of the breadth of the definition of family violence and the dangers of having a child exposed to this. (L126, lawyer)
Having worked as both a family lawyer and a family dispute resolution practitioner, there are still a lot of lawyers and some FDR practitioners who minimise abuse in a family. (L128, lawyer)
This lack of change was regarded by one lawyer as particularly problematic for matters at the interim hearing stage:
There is still a lack of investigation/determination of the evidence of family violence at an early stage. It seems to be shelved as one of the many issues to be resolved at trial. There is a lack of acknowledgement of responsibility by perpetrators. Affidavits are not detailed enough about family violence and how it has affected the children and parenting capacity. (L198, lawyer)
This thoughtful response from a lawyer raised the challenges associated with making cultural change and evolving knowledge and understanding:
I can't see any negative consequences, just that it takes time for cultural change to happen. It is still quite slow to see family violence getting the recognition it should have, given its prevalence and serious effects. The impact of family violence on caregivers needs to be taken more seriously and not be artificially treated separately from protection of children. (L505, lawyer)
A small number of lawyers considered that the family violence reforms "did not go far enough":
The reforms did not go far enough. The presumption of "equal shared parental responsibility" and how it links to time considerations still results in parties believing that they have a right to equal time. A terminology change to parental responsibility and no emphasis on particular time arrangements would be far better. The best interests of the child should be assessed in accordance with the s 60CC factors not presumptions of particular prescribed time arrangements. (L334, lawyer)
[They are] not enough, too little very late. (L280, lawyer)
A theme present to a lesser extent in the answers of judicial officers/registrars and lawyers was quite prominent in the responses of non-legal professionals: the potential for the effects of the reforms to be undermined by insufficient expertise about family violence among family law system professionals. Some non-legal professionals reported that a negative consequence was that the family violence reforms were not sufficiently effective in practice, as they had not given rise to improvements in the proper identification, assessment and response to risks and harm factors (see also Chapters 4 and 6):
I believe that the reforms are good in theory, however, as a domestic/family violence worker it is apparent to me that while the reforms have been done, not a lot is being seen to have changed when the families are getting to court. It is my experience that family consultants, independent children's solicitors and judges are still not necessarily putting the best interest of the child when it has been noted by solicitors in affidavits and Form 4s, that there is domestic violence, especially when it is not physical and the woman for whatever reason has not reported to police. (NL88, D/FV service, D/FV professional)
In my experience, often parents and sometimes legal representatives and judicial services still fail to apply the wider implications of the new legislation. It gets watered down somehow. It is seen as something to get around rather than a reminder of what children need. (NL430, family relationships counselling service, service-level coordinator/service manager)
More specifically, some non-legal professionals falling within this response category identified a lack of change in the interpretation of disclosures of family violence and in the understanding of the nature and the detrimental effects of family violence:
I have not seen any improvement. Protective mothers are still being labelled as delusional or vindictive. (NL209, FCoA, single expert witness)
The law (that is, legal practitioners, including ICLs) still seems to regard emotional and other forms of violence as tolerable and focuses mainly on physical violence. (NL483, FCC, family consultant)
Some non-legal professionals also identified a continuation in the emphasis on "parental rights" and a focus on "equal time" on the part of family law professionals and parents as negative consequences of the reforms:
The legal fraternity is still more focused on the rights of the parents rather than the wellbeing of the child. I believe the system still treats children as possessions. Most ICLs have no direct contact with the child, which is disappointing, and with the more recent cuts to legal aid funding, we have parents who are disempowered and often victims of violence and abuse directly facing off with the perpetrator, with no legal support in court. It is wrong. (NL146, children's contact service, post-separation services manager)
A lot of parents demand 50-50 care, which is a "position" [that is] very difficult to shift in dispute resolution mediation. (NL423, FDR service, mediator/FDR practitioner)
8.2.3 Forensic complexity
A further aspect of comments about negative consequences underline the forensic complexities that dealing with family violence and child abuse concerns raise in practice, and which are implicit in many of the comments in the preceding sections. Some of these comments raise concerns that the 2012 family violence reforms had encouraged false or exaggerated claims in relation to family violence and, to a lesser extent, child abuse. Some also reflect a view that concerns about family violence and child abuse were being raised spuriously as a means of defeating the other parents' desire to maintain a relationship or spend substantial time with the children. Several of the participants conveyed the view that intervention orders were being obtained under state and territory family violence systems to gain tactical advantage in family law proceedings. Other comments suggested that, in some instances, the family violence reforms had enabled perpetrators of family violence to use the system to continue to harass their former partners to a greater extent than previously.
The analysis of the comments presented here supports further understanding of some of the views that underlie the negative responses to aspects of the reforms discussed in the preceding chapters, particularly those relating to the wider definitions of family violence and child abuse (section 3.1) and the repeal of provisions perceived to discourage disclosure of such concerns (section 3.2). As the analysis set out in the preceding chapters indicates, such comments are consistent with a negative view of the reforms held by a minority of respondents.
Broadly, a frequent theme in comments concerning negative consequences related to allegations of family violence and child abuse being raised falsely, or to an exaggerated extent, or frivolously. A more specific concern along these lines relates to views about family violence protection orders being obtained for tactical advantage in family law proceedings.34 It should be noted that concerns of these kinds pre-date the 2012 family violence reforms (see Kaspiew et al., 2009; Parkinson et al., 2011; Parliament of the Commonwealth of Australia. House of Representatives, 2005). In relation to false claims about family violence and child abuse being made, these views mirror wider community perceptions. The most recent National Community Attitudes Towards Violence Against Women Survey (VicHealth, 2014) demonstrates that just over half of those surveyed in a nationally representative community sample agreed with the statement that "women going through custody battles often make up or exaggerate claims of domestic violence in order to improve their case", and that this proportion remained consistent between 2009 and 2013. The commentary in the VicHealth report notes that "if the view that false allegations are commonplace is reflected in the responses of people from whom women seek help, there may be serious consequences for the safety of women and their children" (p. 61). A 2013 qualitative study by Lesley Laing examined the experiences of women who used the intervention order system in NSW. More than half of these women were also involved in family law system processes. Laing (2013) noted that even though they had experienced severe violence, these women "reported that they encountered scepticism in both systems that their allegations of domestic violence were tactics to gain advantage in their family law matter" (p. 8), and that as a result of the interaction between the two systems, their ability to gain protection through legal means was eroded.
Evidence based on quantitative studies (Birdsey & Snowball, 2013; De Maio et al., 2013), shows a complex picture in relation to disclosing family violence and seeking help. In broad terms, substantial proportions of people who report experiencing physical hurt and emotional abuse also report not disclosing this to any professional. Family violence experienced after separation is more likely to be disclosed than family violence experienced before separation, but substantial minorities do not disclose in either time frame (De Maio et al., 2013; Chapter 5). As the preceding chapter shows, substantial minorities (31-45%) of the parents surveyed for the parents' module for this study did not disclose physical violence, and majorities (55-77%) did not disclose emotional abuse to the services they used (Figure 7.24). Similarly, 58% of parents who had used a service and held safety concerns for themselves or their child did not disclose these concerns (Figure 7.22). These findings do not directly address the extent to which false allegations are made, but they do suggest that from a policy and practice perspective, continuing under-disclosure is a significant issue.
In relation to personal protection orders, the data set out in Chapter 7 show that 9% of all parents surveyed had been advised to obtain a personal protection order by a lawyer, and this was more common when physical violence had been experienced (18%) than emotional abuse (7%) (Figure 7.36). Two per cent of parents reported being advised to obtain a personal protection order in the absence of a reported history of physical violence or emotional abuse, and these parents may have held safety concerns for themselves or their child as a result of ongoing contact with the other parent. It should also be noted that if a professional identifies circumstances in which a parent or child is at risk of harm, then prudent professional practice would require them to suggest they seek a protection order. In this context, the fact that a minority of parents reported being advised to seek a protection order suggests that such advice is being given sparingly, perhaps even too sparingly.
Against this backdrop, in order to gain a better understanding of the context in which concerns about false, exaggerated and frivolous claims about family violence are expressed by professionals, comments raising these issues were coded and analysed to provide insight into the characteristics of the participants raising them. The coding was based on comments that raised these issues explicitly or by implication. The extent to which judicial participants raised these concerns was very limited (see below), so this process was not applied to judicial officers or registrars. In relation to lawyers, the coding shows that explicit comments of this nature were made by 46 lawyers, and implicit references occurred in the comments of 16 lawyers. The largest group of lawyers raising such concerns were from Queensland, followed by NSW and Victoria. The concerns were most likely to be raised by lawyers in private practice, and the lawyers making them were more likely to report not having undertaken training in AVERT, DOORS or other family violence professional development programs. In relation to non-legal professionals, such concerns were raised by this group to a lesser extent than lawyers. Among these participants, 34 non-legal professionals made explicit comments and six made implicit references. In relation to the states these professionals originate from, the pattern is different from lawyers: these participants were most likely to be from NSW, followed by Victoria and then Queensland. The comments were most likely to be made by participants who indicated their roles were FDRP/mediator and family consultant.
The following quotations provide insight into the nature of concerns raised:
More people are inclined to stretch the truth and perhaps embellish what has happened in a relationship because they know courts are more likely to take notice and no costs order [even] if it is found to be untrue. (L195, lawyer)
As a result of the amendments, minor incidents during a marriage tend to take greater precedence in matters, even if not current or relevant to the proceedings. Practitioners are now on the look out for family violence to an extent which leads to minor disputes (arguing between separating parents, etc.) being embellished to suit a particular purpose other than protection of children. This coupled with the excessive use of the current Intervention Order Proceedings leads to extended and more costly litigation for both parties with limited benefit to the parties at the end of the day. (L55, lawyer)
Some lawyers are assisting their clients to use domestic violence concerns that may not be valid, to manipulate property matters, or to control the time the children spend with the other parent. But that was happening prior to the reforms as well. (L500, lawyer)
[There has been] an increase in false allegations from parents; an increase in children being unfairly removed from care of a parent due to false or exaggerated allegations of family violence; an increase in disagreements between parents at FDR and mediation who would prefer to take their chances in court given the very broad description of family violence. (NL477, Post-Separation Cooperative Parenting Program, intake and assessment worker)
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)
Some of the participating lawyers perceived that making false, exaggerated or frivolous allegations had significant implications for the parenting arrangements made at the interim hearing stage. These views are the converse of those set out in 8.1.2, which endorsed a shift towards a more protective approach to orders at the interim level:
The extent to which the risks of FV and DV are becoming overstated in affidavit material is of concern. In a number of matters which have gone from commencement of proceedings to trial since the reforms commenced (3 matters) there have been "high level" concerns raised in the initial material which by the time of trial/under cross examination were found to be grossly exaggerated. The removal of the "friendly parent" provision seems to have encouraged the making of allegations of risk of harm. My concern is this is making it increasingly difficult for the court to work out which matters are genuine and which require the court's additional resources (i.e., appoint an ICL or Reg 7 consultant). If the trend continues, there appears [to be] an increased risk that matters requiring genuine intervention to protect children or a parent from harm will be marginalised as there will simply be insufficient resources to intervene in every matter where the risk of harm is alleged. (L317, lawyer)
It 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)
Comments from participants on the specific question of intervention orders included the following:
It is very easy to abuse [the family violence reforms]. Parents are using this as a weapon against each other. More people are applying for frivolous DVOs to then be used for children's matters. (L36, lawyer)
Some lawyers are advising clients to take out ADVOs [apprehended domestic violence orders] to assist their case. This often results in fathers having to defend unnecessary ADVOs at a high cost to themselves. Examples are for ADVOs over incidents allegedly taking place 20-30 years earlier where the relationship has continued. Happens in property matters as well as children's matter. Lawyers ignore the elements required for an ADVO. (L215, lawyer)
AVOs are on the increase and most seem a try on. The language of the reforms, as is the language of this questionnaire, is geared towards moving away from "shared care". Privately, many of my friends who practice in family law, say that the reforms were an attempt to "close in" on the 2006 reforms. They stated that they would not say this publicly due to gender politics. (L228, lawyer)
The following participant suggested there had been an increase in mutual orders (i.e., situations where each member of a former couple has an intervention order against the other):35
It seems there is an increase in perpetrators applying for AVOs against the victim. The police and local courts are often not trained to be able to work out who the dominant aggressor is and perpetrators may be becoming aware an AVO can be useful for them in denying their abusive behaviour in family law matters. (L498, lawyer)
8.3 Unintended consequences of the family violence reforms
Several diverse issues were raised as unintended consequences, but comments on this question were overall, less common than comments on the other two questions. Many of the themes already raised were present in these comments: increased pressure on resources, including legal aid; inadequate training in family violence to support the effective implementation of the reforms among some professionals; and the complexity of the Part VII framework remaining unresolved, and in the eyes of some participants, worse. Some comments also raised concerns about some aspects of the reforms being supportive of perpetrators of family violence using the legal system to maintain the abuse of their former partners. Many participants stated they did not consider that the reforms had had any unintended consequences.
The issues raised in comments about the reforms being associated with further abuse of victims of family violence were varied, and encompassed concerns about legal aid funding, trauma being caused by court processes, the exacerbation of violent and controlling behaviour and use of the system to perpetuate abuse and control:
We are seeing the courts being used increasingly for frivolous matters and it does to some extent seem that the courts are increasingly being used as a continuation of abuse for victims of domestic and child abuse. The legal aid funding, which cannot be divorced from this analysis, is also being used in matters where there does not seem to be any merit and often the other party who is the victim experiences a great deal of difficulty in obtaining legal aid funding. (L18, lawyer)
Victims tend to be excluded from courtrooms because of their safety concerns (which is unhelpful because they don't get to hear what the judicial officer says, and it feels like marginalisation which is kind of a repeat of the abusive tactics). There needs to be better resourcing of these matters to ensure victims can fully participate. (L402, lawyer)
[There is an] increased ability in some cases for fathers to turn definitions around and use them unjustifiably against mothers. (NL624, FCoA, no occupation specified)
Some perpetrators get more skilled in using other services to continue with the abuse. (NL642, FRC, intake and assessment worker)
A small number of lawyers reported that an unintended consequence of the family violence reforms was an increase in hostility and litigation between parties (L64, L500), the increase in costs, delays and paperwork and continuing concerns about the implications of the complex Part VII legislative framework:
[There are] increased legal costs, increased court delays because judges have to read more material about family violence even if it is not a central issue or major issue in the case. (L336, lawyer)
Courts are meandering through what once was clear legislation. The legislation pathway is more confused than ever. (L202, lawyer)
Consistent with the discussion on the limited effects of the reforms at section 8.2.2, some participants identified the continued downplaying of family violence (by professionals across the system) as being an unintended consequence, with inadequate weight accorded to the "protection from harm" primary consideration and inadequate identification, assessment and response to family violence:
I don't think that a lot of judicial officers get that emotional abuse is often more damaging then the physical abuse and they still don't get that it is bad role modelling for children to be raised in such an environment. (L357, lawyer)
When explaining the reforms, and their intention, I believe it gives people false hope that their children will be protected from a violent parent by the courts. Especially at interim hearings, the reforms don't seem to be given the weight we had hoped and expected. (L43, lawyer)
Like any reform or anything new it is open to criticism as the changes settle into common accepted practice. In my experience some practitioners have been slow to emphasise the significance of family violence and they continue to practice in a manner that is dismissive of alleged acts of family violence. Such practice then puts their client at odds with the court consideration of issues associated with family violence and leads to that client becoming frustrated by the proceedings. (L430, lawyer)
In answer to this question, a number of non-legal professionals reported difficulties in managing parental expectations and responses:
The biggest problem is still the unrealistic expectation about equal time as an option in the highly complex matters that come to the court. I wonder if more "reality testing" and information should be given to the clients by their lawyers prior to filing. (NL19, FCC, family consultant)
[There is a] false expectation for some clients that if violence is alleged and/or has occurred the children will not have any contact with other parent. (NL226, FDR service, mediator/FDR practitioner)
[It] gives a false sense of POWER to the parent against the other parent, which interferes at times with negotiating a parenting agreement. [It] creates a sense of helplessness to the alleged perpetrator - and the loss and grief may lead to premature sense of finality, leading to self-harm or harming of others. (NL597, FRC, mediator/FDR practitioner)
Other non-legal professionals identified the continued downplaying of family violence by lawyers and courts as being an unintended consequence, giving rise to the inadequate identification, assessment and response to family violence:
Ongoing negative consequences of the Family Law Act can be seen in the very limited capacity for this tool to identify and address the wellbeing of women and children effectively where there is family violence. Much attention is given to reducing conflict and reaching care arrangements. (NL186, D/FV service - service-level coordinator/ service manager)
Children [are] still placed at risk due to court parenting orders. Judges [are] not reading material fully prior to making orders, which places children at risk. Separate representatives [are] not taking the consequences of placing children at risk seriously enough. Court counsellors [are] making rash judgments, which places children at risk. (NL280, FDR service, mediator/FDR practitioner)
I don't see the reforms making a lot of difference at the level I work at, as the experience is bi-directional and the legal system struggles with the population of high conflict separation couples. This can then encourage a dismissal of both the reform and the act because it doesn't reflect the reality of the experience of these families. (NL106, POP, post-separation services manager)
Other non-legal professionals argued that an unintended consequence of the family violence reforms involves an increase in the focus on family violence and the protection from harm at the expense of other aspects of the best interests of the child, with these non-legal professionals reporting detrimental effects for both parents and children as a result:
[There has been a] diminution of the myriad other important aspects of children's interest. (NL161, FRC, mediator/FDR practitioner)
[There is an] increase in fathers feeling a lack of options (and therefore hope) in seeing their children. (NL199, FDR service, educator)
This chapter has examined qualitative data illuminating the views of professionals on positive, negative and unintended consequences of the 2012 family violence reforms. These data shed further light on the views, attitudes and experiences that underlie the patterns in responses to quantitative questions presented earlier in this report. They confirm a variety of views and experiences among professionals across the system and some of the views described in section 8.1 (positive consequences) are the opposite of those described in section 8.2 (negative consequences). For example, for some professionals, cautious decision making at the interim level supported the protection of children. In contrast, others saw this as impeding parent-child relationships. Importantly, a substantial number of professionals raised concerns about the limited effects of the reforms and a substantial number also raised concerns about systemic pressures including court delays and increased burdens on child protection systems.
The discussion of positive responses reinforces the findings reported in Chapters 2 and 3 of majority support among most groups of professionals for the direction of the reforms. Positive consequences nominated by each professional participant group included the introduction of the broader definition of family violence and the introduction of s 60CC(2A) as a means of clarifying the priority to be accorded to the "protection from harm" primary consideration when determining parenting orders. The greater awareness of family violence as an issue among professionals, litigants and the broader community, together with improved understandings of the nature and effects of family violence, were factors that were identified as positive consequences of the family violence reforms. Improvements in the identification and assessment of, and response to, family violence by family law professionals, were also nominated as positive consequences by each professional group, together with the increase in focus on protecting children from risks or harm factors.
This chapter also set out professionals' perspectives on the negative consequences of the family violence reforms. Again, these comments provide further insight into views that inform the pattern of responses in the quantitative data reported in the preceding chapters. Overall, negative views are significantly less common than positive views. Negative consequences nominated by professional participants included the absence of appreciable differences in responses or court outcomes in cases involving risks or harm factors, and the absence of substantive changes to the levels of understanding or attitudes to family violence. More specifically, these reported negative consequences included a lack of change in the interpretation of disclosures of family violence and in the level of understanding among professionals of the nature and detrimental effects of family violence. Other negative consequences nominated included increases in the costs, delays and hostility associated with litigation in parenting cases, together with increases in the complexity of matters and of paperwork. There were also concerns about the lack of resources to enable prescribed child welfare authorities or courts to adequately respond in cases involving risks or harm factors. In addition, concerns of an evidentiary nature were also raised by some professionals, including arguments that it had become easier to make false, exaggerated or irrelevant allegations, or that there had been an increase in the making of such allegations.
Finally, the chapter considered professionals' open-ended responses regarding any unintended consequences of the family violence reforms. Participants responding to this question reported an increase in the workload of courts and prescribed child welfare authorities. Other unintended consequences included the family law process potentially being used by perpetrators to continue their abusive behaviour or to deny their violent behaviour, an increase in hostility and litigation between parties, and increases in costs, delays and paperwork. Some professionals also nominated the continued downplaying of family violence, which was identified as giving rise to the inadequate identification, assessment and response to family violence. These unintended consequences were consistent with the negative consequences nominated by some professionals.
34 Research in Queensland prior to the 2012 family violence reforms and after the 2006 family law reforms (Douglas & Fitzgerald, 2013) showed an increase in the number of personal protection orders being taken out by both members of a former couple (mutual orders). The authors of the study suggest that this may in part have been attributable to the 2006 family law reforms and the role that personal protection orders potentially play in the rebuttal of the presumption of shared parental responsibility. An analysis by Parkinson, Cashmore, and Single (2011) of the use of family violence orders against a background of family law disputes in various areas (pre-dating the 2012 family violence reforms) describes the accounts of three fathers interviewed who told the researchers that personal protection order proceedings were dismissed because the allegations were found to be untrue. The analysis is based on interviews with 181 participants from three separate studies that were focused on different kinds of family law disputes.
35 Research examining this issue prior to the 2012 family violence reforms includes Douglas and Fitzgerald (2013) and Wangmann (2009).