Responding to family violence

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

9. Summary and conclusions

This chapter presents the findings of one part of a three-stage evaluation of the 2012 family reforms. The Survey of Practices examined the views and experiences of professionals working across the family law system. Responses from 653 professionals, including 37 judicial officers/registrars, 322 lawyers and 294 non-legal professionals were involved in the survey. Information from 2,473 parents - comprising a sub-sample that completed a module of questions relating to service use and disclosure of family violence as part of the Survey of Recently Separated Parents 2014 - provided an important means of triangulating the data from professionals. Therefore, this assessment of the effects of the 2012 family violence reforms is informed by the perspectives of both professionals and parents.

The discussion in this chapter summarises the findings of the Survey of Practices on how the family violence reforms are working. Conclusions formed on the basis of the data available from this study may be subject to revision when the findings of the other two elements of the evaluation - the Court Outcomes Project and the Surveys of Recently Separated Parents 2012 and 2014 - are available. The first part of the chapter sets out a thematic analysis of the findings. The second part provides a summary based on the insights from this study of emerging responses to the research questions that have guided the Evaluation of the 2012 Family Violence Amendments. It should be noted that these are tentative conclusions and may be revised on the basis of the findings from the other parts of the evaluation.

A significant feature of the approach applied in this study has been the inclusion of perspectives of professionals from different disciplines working in different parts of the family law system. This has supported the development of a multidimensional understanding of experiences with the reforms in different parts of the system, building the foundation for understanding how professionals in different areas of the system are working with the reforms. More generally, it sheds light on the influence of the legislation in both court and non-court-based practice, including legal practice and practice in the family dispute resolution arena. Parents' perspectives are also an integral part of considering the extent to which professionals' accounts of their own practices are reflected in client experiences in using the legal system since the reforms.

An important aspect of the context for these findings is the complex nature of family violence. The findings of SRSP 2012 have demonstrated that it varies considerably in form, frequency and severity (De Maio et al., 2013). From a longitudinal perspective, the findings of the LSSF Wave 3 established that family violence and safety concerns can be dynamic, with some parents reporting that these concerns abate, or to a lesser extent, fluctuate over time (Qu et al., 2014; section 3.3). They also show that for some parents, family violence and safety concerns can be sustained for five years after separation. These studies also reinforce the point that it is these families at the more complex end of the spectrum who engage, and in some cases continue to re-engage, with family law system services over time.

Several important findings from the parents' module in this study warrant reiteration. Four in ten parents reported seeing psychologists or psychiatrists. Close to three in ten parents who reported a history of physical violence since separation used more than six services. Close to two in ten who reported a history of emotional abuse since separation used more than six. This level of intensive service use was only evident among 3% of parents who reported no physical violence or emotional abuse since separation.

9.1 Thematic analysis

9.1.1 Majority support for the direction of the 2012 family violence reforms

Significantly, the data set out in Chapters 2 and 3 show the direction of the 2012 family violence reforms have the support of a substantial majority of the participants in the Survey of Practices. On an aggregate basis, 77% of the sample agreed that the family law system needed the 2012 family violence reforms. The professional group most in favour of the reforms was non-legal professionals, with 88% of this group agreeing the reforms were necessary. A smaller but substantial majority of lawyers (70%) and a still smaller majority of judicial officers/registrars (57%) agreed these reforms were necessary. These response patterns are relatively consistent throughout the survey, with majorities of professionals supporting key aspects of the reforms, including: the new definitions of family violence and child abuse (s 4AB and s 4), and the provision specifying that protection from harm was to be given greater weight than a child's right to a meaningful relationship when the two principles are in conflict (s 60CC(2A)). Minorities of between 21% (definitions) and 11% (protection from harm) disagreed with these aspects of the reforms. The relative response patterns in these areas establish a pattern characteristic throughout the report: non-legal professionals are consistently more positive about the reforms and the necessity for them than are lawyers or judicial officers/registrars.

Among some judicial officers and registrars and, to a lesser extent, lawyers, the overall pattern of responses suggests that a minority of these professionals considered that family violence and child abuse were dealt with effectively prior to the reforms and that the changes consolidated pre-existing approaches. In contrast, some professionals (particularly lawyers and non-legal professionals) considered that the reforms have had only very limited effects on addressing entrenched ineffective practice in relation to family violence and child abuse in the family law system.

9.1.2 Support for the legislative changes

Each of the main significant legislative changes dealt with in the report attracted majority support across the sample and majority support within each of the professional groups involved in the survey. There was very strong support among all professionals for the assistance provided by s 60CC(2A), which clarifies that the principle that children need to be protected from harm outweighs their right to a meaningful relationship with each parent where these principles are in conflict. This provision was seen to be critical, both in areas where advice is provided to parents (lawyers and non-legal professionals) and where decisions are made (judicial officers/registrars). From the perspective of those who give advice, it was seen to support being able to provide clearer, firmer guidance to parents and was also seen to have an educative function. In decision-making practice, it was seen to support making protective determinations in circumstances where a protective approach may not have been sustainable prior to the reforms, such as at interim hearings. There was little evidence that this provision has caused concern.

The expanded definitions of family violence (s 4AB) and child abuse (s 4) also attracted majority support, with 73% of the sample agreeing that they supported safer parenting arrangements for parents and children. Endorsement of the view that more effective responses to non-physical forms of family violence were evident was less strong, with fewer participants agreeing (37%) than disagreeing (48%) that this was the case. Qualitative comments indicate a spread of views about the new family violence definition and shed light on the reasons for the negative responses among some professionals. It is clear that the interpretation of the definition varies, with some professionals considering it to be too wide and others being concerned that it may be applied narrowly because of the necessity to establish fear, coercion or control. However, many professionals consider the definition to appropriately reflect social science evidence and social understandings of the behaviours that constitute family violence, and consider that it helps in eliciting information from clients.

The discussion in this report shows that advice-giving practice has shifted in a direction consistent with the intent of the reforms, with 64% of lawyers and 56% of non-legal professionals indicating that they have changed the advice they give about family violence. Similarly, advice about child abuse has changed, according to 59% of lawyers and 50% of non-legal professionals.

These findings suggest greater certainty in advice-giving and decision-making practice in the new legislative environment. However, the overall pattern in responses to propositions about the extent to which adequate priority is accorded to: (a) protection from harm, and (b) a meaningful relationship shows endorsement in relation to the former proposition sits nearly 20 percentage points below the latter.

Some evidence of the effects of advice-giving practices under the 2012 family violence reforms is shown in parents' accounts of the decisions they made as a result of accessing services. The data demonstrate that the patterns differ between parents who had reported experiencing family violence and those who had not (see section 7.3). In the group who had experienced no violence before or during separation, 54% reported that accessing the service made no difference to their decisions. In contrast, one-third of the group who reported experiencing physical violence decided to seek restrictions on contact with the other parent. These findings suggest a nexus between advice-giving practices and parents' subsequent actions, but the evidence of this is weaker in connection with emotional violence: only 21% of parents who reported emotional abuse in the absence of physical violence indicated they decided to seek restrictions on the other parents' time with the child. The data also indicated an ongoing and higher level of service use by those parents reporting that they experienced family violence (directed against them or their child).

9.1.3 Screening, assessment and responding to family violence: A work in progress

In relation to screening for and dealing with family violence and child abuse, the evidence indicates that this is an area where practice requires further refinement (Chapter 4). On an aggregate basis, more professionals in the sample disagreed (46%) than agreed (43%) with the proposition that the legal system had been able to screen adequately for family violence and child abuse. Differences among professionals were important in this context, with non-legal professionals being less confident than lawyers and judicial officers/registrars in this regard. The 2008 and 2014 comparative data from lawyers suggest an incremental improvement in this area, with total agreement rates of 46% in 2014, compared with 43% in 2008.

Significantly, the evidence from parents reinforces these findings. As reported in section 7.5.1, 41% of parents indicated they had not been asked about family violence and 38% indicated they had not been asked about safety concerns. Domestic violence services were most likely to be associated with eliciting disclosure of concerns about safety (for the participant parent and children) (88%), followed by FRCs (73% fathers and 71% mothers) and FDR services (66% of fathers and 77% mothers). Fathers were less likely to report being asked about these concerns by courts (41%) and lawyers (43%), as were mothers, to a lesser extent (60% courts and 58% lawyers).

Methods and approaches used for screening are a significant consideration when examining the issues associated with the response patterns in relation to adequate screening. The data from participants in the current study suggest the DOORS screening tool - a practice strategy implemented to support better identification of family violence, child abuse and other risks - had a mixed reception and limited effects. The evidence in this report suggests that a substantial proportion of professionals, particularly lawyers, have not had exposure to DOORS. Among those participating professionals who have, only a small number reported using it in their day-to-day practice, with most lawyers and non-legal professionals indicating that they rarely or never used it (51% lawyers and 69% non-legal professionals).

These findings indicate that the training provided to familiarise professionals with DOORS has had limited reach. Further, participants expressed mixed views on the screening and assessment approach that DOORS represents. There were a number of positive responses, particularly from non-legal professionals, suggesting that the availability of this tool reflected an advance for the family law system's ability to respond to family violence, child safety and other issues related to risk. However, some participants in this group expressed concerns about the tool.

A fundamental aspect of the concerns raised by each of the professional groups related to the proceduralised nature of the DOORS approach, with many expressing the view that this kind of approach was no substitute for practice-based wisdom, careful questioning and personal engagement with clients, informed by highly developed professional judgement. Underlying this view was a concern that the application of the DOORS approach in the absence of carefully honed professional judgement would be inadequate.

Other concerns raised by participants related to the workability of the approach in day-to-day practice. The amount of time required to administer the two parts of DOORS was a concern that was raised, as was the way in which these were administered. An approach based on the completion of a questionnaire was seen as problematic for a number of reasons. These included the impersonal nature of the engagement with clients over difficult issues that this approach entails. There were also concerns that this approach was not appropriate for clients with limited or no literacy in English, including clients from Aboriginal and Torres Strait Islander backgrounds and culturally and linguistically diverse communities. The comments from family consultants indicate it is not considered appropriate for practice in this context.

It is important to acknowledge, however, that DOOR2 of the DOORS tool enables the DOOR1 questions to be administered by a practitioner with their client.

Some participants raised more substantive concerns about the nature of legal practice and the way in which a social-science-based screening approach fits within it. These comments go to the tension between the obligation as a legal practitioner to take client information at face value and follow client instructions, and the adoption of a method based on social science knowledge and practice. This was seen by some participants to raise a conflict with the lawyer's obligations in their "fiduciary relationship of trust and confidence" that necessitates acting on the basis that clients are telling the truth, with the possibility that conflicting views could be formed on the basis of the DOORS assessment. A further emerging issue flagged was the admissibility of the results of the DOORS screening process in litigation and the possibility that arguments could be successfully raised that this form of lawyer-client communication did not attract legal professional privilege. Related points that participants raised were the extent to which the application or non-application of DOORS could have implications for claims about professional negligence against legal practitioners.

The discussion of screening and assessment for family violence, child abuse and other risk-related issues in Chapter 4 suggests that this is an area where improvements to practice remain a "work in progress". In addition to a need for further training and a more focused examination of the implementation of the DOORS framework across the family law system, the responses of professional participants suggest that the question of the implications of the adoption of this approach in legal practice requires further consideration. In particular, there is a need for a detailed analysis on the effects of this approach in legal practice from the perspective of clients and professionals.

It is also clear that FDR is provided in a substantial number of cases where there are concerns about family violence and child safety, as discussed in Chapter 5. This occurs consciously in some cases, but may also occur without sufficient awareness in others. Clinical decisions about providing FDR are made in a dynamic context: knowledge about a family's circumstances may change as the process progresses, and the question of whether FDR is provided may be influenced by both parents' preferences (perhaps to a limited extent) and the professional's judgement. The issue this raises is the circumstances in which this is appropriate practice and whether arrangements made in this context protect children. This is not an issue that has arisen as a result of the 2012 family violence reforms, rather it is a development that has emerged since (or possibly even pre-dates) the 2006 family law reforms. However, one of the significant questions that arises in this context is whether the 2012 family violence reforms support safe agreement-making in this context. The findings in this report tend to suggest that this may the case, but it is also an issue that will be examined further using data from SRSP 2012 and 2014.

A further issue of relevance to the findings on the identification and assessment of family violence and child abuse concerns in court-based practice is the role and utility of the Form 4 Notice of Child Abuse, Family Violence and Risk of Family Violence. A majority of participating judicial officers and registrars (73%) reported that, when filed by lawyers, the Form 4 Notice assisted them to understand whether there were risks to parents or children in a case. However, a majority of the judicial sample (59%) disagreed that the Form 4 Notice was of the same assistance when filed by self-represented litigants. Relevant qualitative data from judicial professionals described benefits arising from the Form 4 Notice to include improved information flow with prescribed child welfare authorities and more informed assessments of risks and harm factors, although affidavit material and expert reports were nominated by some judicial respondents to be of greater benefit. Support for the revised and compulsory Notice of Risk to be introduced in 2015 following its pilot in the South Australian Registry of the FCCoA received positive endorsement as a more effective method of flagging risk. Participating lawyers were less positive in their reflections on the Form 4 Notice. Nevertheless, while one-half of participating lawyers thought the Form 4 Notice was simple and easy to use, a substantial proportion (41%) did not agree. Further, professionals who responded to the open-ended survey questions described concerns about the utility of the form and its need for revision and simplification.

9.1.4 Substantive responses to matters involving family violence and child safety

In relation to dealing with family violence and child abuse, the evidence indicates that, consistent with findings relating to screening and assessment capacities, this too is an area where practice requires further refinement (see Chapter 6). On an aggregate basis, more professionals in the sample disagreed (49%) than agreed (41%) that the legal system had been able to deal adequately with cases involving allegations of family violence and child abuse. Differences among professionals were again important in this context, with non-legal professionals being less confident than lawyers and judicial officers/registrars in this regard. The 2008 and 2014 comparative data from lawyers suggest an incremental improvement in this area, with total agreement rates of 48% in 2014 compared with 43% in 2008.

In terms of substantive changes to parenting arrangements, close to a majority of the aggregate sample of professional participants (49%) reported that the family violence reforms had resulted in more arrangements for supervised or neutral venue changeovers. While affirmative responses were largely consistent across each participant category, responses from judicial officers, registrars and lawyers reflected higher levels of disagreement than non-legal professionals on this proposition. A slightly lower proportion of the aggregate sample of participants (44%) agreed that the family violence reforms resulted in more supervised time arrangements, with greater consistency emerging in the affirmative responses of lawyers and non-legal professionals on this question. Only 21% of the aggregate sample of participants agreed that the reforms had resulted in more arrangements for no parenting time, with a substantially greater proportion disagreeing. While affirmative responses were largely consistent across each participant category on this question, responses from judicial officers, registrars and lawyers reflected lower levels of agreement than among non-legal professionals. A majority of participating lawyers (60%) agreed that to a greater degree courts now prioritised safety from family violence and child abuse at the interim hearing stage.

The qualitative data reported throughout this report, but particularly in the discussion of positive consequences in Chapter 8, indicate that many professionals endorse the legislative mandate to prioritise protection from harm in agreement-making in FDR, in advice-giving in legal practice and in decision making in court. Comments from lawyers and judicial officers/registrars suggest that legislative support for protective decision making at interim hearing stage, a point at which evidence is often sparse, has been a welcome aspect of the reforms.

Parents' levels of satisfaction with the services they accessed show that parents who had experienced family violence were more likely to be dissatisfied than those who had not, confirming professionals' concerns. Notably, however, majorities of parents reported being satisfied with the service they were questioned about, even when they had reported a history of family violence before or during separation. There is considerable variance in the rates of reported dissatisfaction according to gender, the service used and whether the participant had experienced physical hurt or emotional abuse alone. Fathers were less likely than mothers to be satisfied with their experiences with FDR, FRCs, lawyers and courts (section 7.4), with the widest discrepancy evident in relation to courts, where 34% of fathers reported dissatisfaction, compared with 20% of mothers. Courts were more likely to elicit dissatisfaction responses where parents had reported emotional abuse (34%) than where they had reported physical violence (24%). Conversely, parents reporting physical violence were more likely to be dissatisfied with FDR (36%) than those reporting emotional abuse alone (30%). Of those who used lawyers, 23% reported physical violence and dissatisfaction and 20% reported emotional abuse and dissatisfaction.

9.1.5 Positive, negative or unintended consequences

An important finding evidenced in various ways throughout the chapters is the limited evidence of negative consequences arising from the family violence reforms. For example, professionals' responses generally indicate that no less emphasis is placed on the child's right to a meaningful relationship in 2014 compared to 2008-09. Additionally, the 2012 family violence reforms were not associated with changes in the advice about service use that counteracted the effects of the 2006 family law reforms, which encouraged greater use of services to resolve parenting issues. Indeed the evidence suggests the continuing consolidation of these aims, such as an increase in the levels of confidence lawyers place on FRCs.

The qualitative data reported in Chapter 8 illuminate the perceptions and concerns that underlie some of the response patterns evident in the quantitative data. It is clear that attitudes and approaches to the reforms vary, but it is important not to lose sight of the findings showing majority support for the direction of the reforms. Three significant themes emerge from the discussion in Chapter 8. First, there are concerns throughout the family law system about the forensic complexity that family violence and child abuse raise. The consequence of this complexity can be seen in the comments about heavy court and child protection service workloads. Some professionals raised issues relating to increased costs for clients, longer court hearings, and delays in attaining a hearing. A second, related, concern goes to the question of whether the reforms are linked to an increase in "false allegations" or "frivolous claims". It is clear that there are contrasting viewpoints on this issue. Some practitioners raised these concerns, while others more specifically raised the possibility that the reforms have increased opportunities for abuse to be perpetuated in legal and dispute resolution processes. Some also indicated that the capacity of some family law system professionals to address family violence and understand its complex dynamics and effects were limited. The third theme relates to the extent to which family law system professionals have adequate training to implement the reforms effectively and in a way that means unintended consequences are minimised. The discussion of screening and assessment in Chapter 4 reinforces the multiple challenges involved in addressing such a complex phenomenon across different practice settings in the family law system.

9.2 Emerging responses to the research questions

This summary puts forward tentative responses to each of the research questions to provide an indication of the conclusions that are emerging on the basis of the evidence in this report. They are based on a considered analysis of the overall evidence in this report, specifically considering the weight that can be accorded the views of professionals in light of the data from parents. In several areas, the findings from the two other elements of the evaluation program, the SRSP 2012 and 2014 and the Court Outcomes Project will be decisive in forming firm conclusions to the research question. In turn, the data contained in this report will be critical for interpreting such findings and addressing research question 5.

1. To what extent have patterns in arrangements for post-separation parenting changed since the introduction of the family violence amendments, and to what extent is this consistent with the intent of the reforms?

The insights in this report suggest that since the 2012 family violence reforms, there has been greater emphasis on identifying matters where child safety and family violence concerns are pertinent; however, screening for these issues is not universally applied across the system, and a substantial minority of parents reported not being asked about these issues. It is likely that more attention is being paid to the implications of a history of emotional abuse for service use pathways and parenting arrangements than before the reforms; however, changes in this regard are modest and concerns of this nature are more likely than not to remain undisclosed.

The data demonstrate that in relation to parenting arrangements involving supervised changeover, changeover at a neutral venue, and supervised time, close to a majority of the aggregated sample confirmed that the family violence reforms had resulted in more of these arrangements, although lower proportions of participants reported an increase in arrangements for no parenting time. A majority of participating lawyers (60%) also agreed that courts now prioritised safety to a greater degree when making interim orders. On this basis, it is unlikely that substantial shifts in patterns in post-separation parenting arrangements will be evident.

Where family violence and child safety concerns are identified, the indications from professionals are that parents are more likely to be encouraged to consider parenting arrangements that prioritise the safety of children than they were before the reforms.

The findings from the comparison of data from SRSP 2012 and SRSP 2014 and from the Court Outcomes project (in relation to parents who initiate court proceedings and obtain consent orders) will be most relevant to formulating a firm conclusion to this question.

2. Are more parents disclosing concerns about family violence and child safety to family law system professionals?

As noted, reports from professionals suggest that there is more emphasis on eliciting disclosure of family violence and child safety concerns across the system. However, data from parents indicate that substantial minorities of parents still report not being asked about family violence and child safety concerns (Figure 7.21).

Majorities of parents who reported a history of emotional abuse also reported not disclosing or raising this history with services (around three-quarters for FDR, lawyers and courts and 55% for FRCs). Substantial minorities (31-45%) reported not raising or disclosing a history of physical hurt.

SRSP 2012 and SRSP 2014 data will provide a basis for firmer conclusions on this point.

3. Are there any changes in the patterns of service use following the family violence amendments?

Any shifts in this area are likely to be modest. There is little indication that advice on service use and referral patterns have changed to any significant extent. FDR is still being applied in circumstances where concerns about family violence and child safety are pertinent. The obligations on advisors to provide advice consistent with s 60CC(2A) (prioritisation of protection from harm) may mean fewer shared parenting arrangements where there are ongoing safety concerns; however, this remains to be seen. There is evidence of a greater number of notifications being made to child protection agencies as a result of the necessity to complete the Form 4 Notice of Child Abuse, Family Violence, or Risk of Family Violence form.

The SRSP 2012 and 2014 and the Court Filings Study in the Court Outcomes project will support firm conclusions on this point.

4. What is the size and nature of any changes in the following areas and to what extent are any such changes consistent with the intent of the reforms?

Practices among advisors (within the meaning of FLA s 63DA(5) [legal practitioners, family counsellors, family dispute resolution practitioners and family consultants]):

  • Substantial proportions of family relationship service professionals, lawyers, judicial officers and registrars reported placing increased emphasis on eliciting and considering concerns about family violence and child abuse. At the same time, indications of changes in practice among these groups were not universal, with some professionals perceiving a lack of need for change in these areas. There was strong support among family law system professionals for s 60CC(2A), the provision that specifies that greater weight is to be given to protection from harm where it conflicts with the child's right to a meaningful relationship with each parent where these principles are in conflict. Majorities of lawyers and non-legal professionals indicated they had changed the advice they gave clients about family violence and child abuse, but substantial minorities indicated not changing their advice.
  • Substantial minorities of parents reported not being asked about family violence across each service type, particularly by lawyers: 29% of parents who experienced physical hurt and 31% who experienced emotional abuse reported not being asked about family violence in FDR. For those who used lawyers, these proportions were 46% and 53%, and for FRCs they were 31% and 23% respectively.

Court-endorsed outcomes (consent orders) and court-ordered outcomes (judicially determined orders):

  • This will be addressed using data from the Court Outcomes Project.

Court-based practices, as reflected in the manner in which practitioners and judges fulfil their obligations under the Family Law Act 1975 (Cth):

  • There is evidence that there is greater emphasis on identifying concerns about child abuse and family violence in courts. At the same time, there is concern about the capacity of the system to prioritise the resolution of matters involving the most serious kinds of issues. However, substantial proportions of parents (46% who experienced physical hurt and 53% who experienced emotional abuse) reported using courts and not being asked about family violence.

5. Does the evidence suggest that the legislative changes have influenced the patterns apparent in questions 1-4 above?

As noted, when data from SRSP 2012 and 2014 and the File Analysis 2014 are available, firm conclusions in relation to questions 1-3 will be drawn and the findings interpreted in light of the evidence from the Responding to Family Violence report.

6. Have the family violence amendments had any unintended consequences, positive or negative?

The 2012 family violence reforms have the support of majorities of professionals across the system. The wider definitions of family violence and child abuse, the prioritisation of protection from harm over the child's right to a meaningful relationship with both parents, and the obligations to elicit and disclose concerns about family violence and child abuse are seen to support making safer parenting arrangements. At the same time, practice in screening for and assessing family violence is developing and in some practice contexts, particularly legal practice, the implications of screening for lawyer-client relationships have yet to unfold.

At this comparatively early point in the implementation of the 2012 family violence reforms, views on the questions of whether the reforms have been effective are very varied. It's fair to say that a majority of professionals across the system see them as a step in the right direction. Support for the direction of the reforms is strongest among non-legal professionals, but is also evident among majorities of lawyers and judicial officers/registrars. There are also professionals, including lawyers and non-legal professionals, who believe the reforms have had limited effects and do not go far enough. In contrast, there is another group, mainly but not exclusively lawyers, who believe the reforms have had negative unintended consequences, including eroding the extent to which relationships between fathers and children are supported in the system, and increasing the extent to which false, frivolous or vexatious allegations of family violence may be made. In this context, it should be noted that such concerns have been longstanding and mirror a persistent belief held by about half of the community that women make up false allegations of family violence to obtain advantage in "custody proceedings".

Against this background, it is pertinent to reiterate some of the findings from the parents' module in this study. As noted earlier, there was considerable variation in the extent to which parents affected by family violence reported being asked about it. There was also considerable variation in the decisions made in relation to parenting arrangements after using services when their decisions are compared to those of parents not affected by these issues. These findings underline the uneven effects of the reforms. Compared to parents who had not experienced any violence, those who had experienced physical or emotional violence after separation:

  • were more likely to report agreeing to shared care;
  • were more likely to report agreeing to less time with their child;
  • were more likely to report deciding to seek more time with their child; and
  • were more likely to report taking steps to seek protection for them or their child (Figure 7.3).

These findings underline the uneven effects of the reforms.

9.3 Summary

Overall, the findings set out in this report indicate that the 2012 family violence amendments are a step in the right direction in a reform strategy aimed at improving the family law system's capacity to address the needs of families affected by complex issues, including family violence and child abuse. The data reported in this study were gathered some 18 months after the implementation of the 2012 family violence reforms. To some extent, they reflect the operation of a system still undergoing adjustment in the post-reform period.

The direction of the reforms has the support of a substantial majority of the professionals working in the system. According to many professionals' survey responses, priority has been given to protecting children from harm when giving advice and making decisions about children's care arrangements. The findings of the SRSP 2012 and 2014 and the Court Outcomes Project will provide further evidence on this point. There is also a greater focus on screening and identifying families for whom family violence and child safety concerns are pertinent. However, the findings indicate that there is still some way to go in fulfilling the intention of the reforms "to provide better protection for children and families at risk of violence and abuse" (Parliament of the Commonwealth of Australia, House of Representatives, 2011, p. 2).

There are three areas where challenges are particularly evident. One is in the approaches used to screen for and assess family violence, with only a minority of professionals reporting that they use the DOORs tool, and a range of concerns raised about the extent to which it represents a workable approach in day-to-day practice. Second, the identification of cases that are suitable and unsuitable for FDR remains a complex and challenging task. In a departure from the intention of the 2006 family law reforms, cases involving family violence and child abuse are dealt with to a substantial extent in FDR. The evidence reported in this study, together with insights from LSSF Wave 3 (Qu et al., 2014, section 4.6), suggest that this may be appropriate in some cases and inappropriate in others. The implications for families in the latter situation is that there may be delays in the resolution of the parenting matter and extended periods of uncertainty, and potentially a lack of safety, in the care arrangements for children. This is an area that warrants further examination. Third, the mechanisms whereby risks to children and family members are flagged and assessed in court processes also evoke different responses among different practice groups. This point is illustrated in the discussion of positive judicial and negative legal practitioner responses to Form 4 Notices and their utility as a method for flagging the existence of risk factors for children. From a systemic perspective, many practitioners doubt the use of a Form 4 Notice as an effective mechanism for alerting child protection authorities to children who may be at risk.

More broadly, the interface between child protection systems and the family law system continues to cause concern, and there is some indication that the concerns raised by this intersection have been heightened in the post-2012 family violence reform period as a result of the increased emphasis placed on identifying risks to children (e.g., Higgins & Kaspiew, 2011; ALRC & NSW LRC, 2010). In this context, several recent developments are intended to support improvements in this area. Most recent is a reference by the Attorney-General, The Hon. George Brandis, to the Family Law Council to examine how the system's response to complex families can be improved, including specifically in relation to the intersection of the family law and child protection systems (Brandis, 2014). Further relevant developments are the analyses of information sharing by Chisholm (2014) and the National Child Protection and Family Law Collaboration meetings convened by the Attorney-General's Department.36

36 See the Family Law and Child Protection Collaboration web page at: <www.ag.gov.au/FamiliesAndMarriage/Families/Pages/Familylawandchildprotectioncollaboration.aspx>.