Executive summary

This report presents the findings of the Court Outcomes Project, which forms part of the Evaluation of the 2012 Family Violence Amendments research program that was commissioned and funded by the Australian Government's Attorney-General's Department (AGD).

The relevant amendments to the Family Law Act 1975 (Cth), which came substantially into effect on 7 June 2012, were intended to support increased disclosure of concerns about family violence and child abuse, and to support changed approaches to making parenting arrangements where these issues are pertinent to ensuring safer parenting arrangements for children. The Court Outcomes Project examined the effects of these 2012 reforms on court filings, patterns in court-based parenting matters and the judicial interpretation of key legislative provisions introduced by the amendments.

The project has three parts. The first part of the project (the Court Administrative Data Study) involves an analysis of administrative data obtained from the Family Court of Australia (FCoA), the Federal Circuit Court of Australia (FCC) and the Family Court of Western Australia (FCoWA). The data enable assessments of patterns in filings in parenting matters, together with other relevant issues, including filings in relation to Form 4 Notices/Notices of Risk, the number of memoranda or reports provided by family consultants and the number of matters in which orders for Independent Children's Lawyers (ICLs) were made. The second part of the Court Outcomes Project (the Court Files Study) involves an analysis of quantitative data collected from pre- and post-2012 family violence amendments samples of family law court files in three categories: those where orders are made following a judicial determination (n = 613); those where consent orders were made after proceedings had been issued (n = 774); and those where applications for consent orders are made without litigation (n = 505). The study examines patterns in orders for parental responsibility and care time, together with a range of other relevant issues, including the prevalence in the files of allegations about family violence and child abuse. The third part of the project (the Published Judgments Study) is an analysis of published judgments that examines how the legislative amendments are being applied in court decision making.

Together, the three studies comprising the Court Outcomes Project provide empirical data on the extent to which changes reflecting the aims of the 2012 family violence amendments are evident in court-based matters. These data provide insight into the extent to which family violence and child abuse concerns were raised in court proceedings before and after the 2012 reforms, and the extent to which any changes were evident in patterns in court orders. These data also identified patterns in filings for court applications and associated documents, including those intended to alert courts to the presence of risks and the application of the amendments that were intended to influence court-based decision making.

This Court Outcomes Project complements the other two elements of the evaluation research program: a study of separated parents' experiences (Experiences of Separated Parents Study [ESPS], incorporating the Survey of Recently Separated Parents (SRSP) conducted in 2012 and 2014), and a study of practices and experiences among family law professional practices (Responding to Family Violence Study [RFV]).

Main findings

Patterns in applications and orders for parenting arrangements

Overall, the Court Outcomes data suggest subtle shifts in patterns of parenting applications and outcomes since the 2012 family violence amendments. The administrative data provided by the FCoA, FCC and FCoWA as part of the Court Administrative Data Study indicate small increases in applications for final orders in matters involving children in the 2013-14 period when compared with prior periods. From 2012-13 to 2013-14, filings increased by 442 to 14,826 applications for final children's orders. Most of this shift was associated with filings in the children-plus-property categories. Increases were also reflected in filings for applications for consent orders in the FCoA and the FCoWA, particularly in the FCoA, rising by 2,493 (to 12,986) since 2011-12. However, much of this increase also appeared to be associated with changing dynamics relating to property matters.

Patterns across the three samples of pre- and post-reform data collected for the Court Files study indicated largely consistent levels in the proportions of orders for shared parental responsibility in the consent after proceedings and consent without litigation samples. Pre-reform, around nine out of ten consent files involved orders for equal shared parental responsibility, but after the reforms such an outcome was less common in the judicial determination sample (51% pre-reform and 40% post-reform).

Different patterns were also evident in orders for equal shared parental responsibility and care time according to whether (a) allegations of either family violence or child abuse were raised; (b) both of these allegations were raised; or (c) neither of these allegations were raised. These court file data suggest subtle shifts in these areas, in a direction consistent with the intention of the 2012 family violence amendments to improve the appropriateness of parenting orders by giving greater weight to protection from harm. Post-reform, children in the judicial determination sample were less likely to be subject to orders for shared parental responsibility in cases involving allegations of family violence and/or child abuse, and less likely to be subject to orders for shared care time (35-65% of nights shared between parents) where these cases involved allegations of both family violence and child abuse, when compared to the pre-reform period. Changes in relation to orders for equal shared parental responsibility were more marked than for care time in the judicial determination sample, while changes for care time were more marked than for parental responsibility in the consent after proceedings sample (which only decreased in cases where neither allegation were raised).

More specifically, shared care-time arrangements were largely stable in the judicial determination sample, applying to 8% post-reform where both family violence and child abuse were raised, compared with 9% pre-reform. In the corresponding consent after proceedings sample, shared care time fell to a statistically significant extent, from 25% to 12%. Shared parental responsibility outcomes were relevant for 54% of the pre-reform judicial determination files involving allegations of both family violence and child abuse, and were significantly lower after the reforms (32%). For consent after proceedings children, shared parental responsibility was ordered for 83% pre-reform and 88% post-reform. In cases where only one of these allegations was raised, the most noteworthy change was in relation to shared parental responsibility orders in the judicial determination sample, which fell by 11 percentage points to 34%. For shared care-time arrangements in this category there was an increase post-reform of 3 percentage points. In the consent after proceedings sample, there appears to be a trend towards shared care-time outcomes post-reform being marginally lower (19% cf. 15%) and shared parental responsibility outcomes being marginally higher (93% cf. 96%), but neither were statistically significant. Where neither allegation was raised, patterns in orders for parental responsibility and care time were largely stable, save for orders for shared care time in the consent after proceedings sample, which decreased to a statistically significant extent from 29% to 13%. Orders involving no face-to-face time between children and one of their parents remained rare in both the pre- and post reform file samples (fathers: 2% pre-reform, 3% post-reform; mothers: < 1% both pre- and post-reform).

In relation to the judicial determination file sample, these data suggest that in the period since the 2012 family violence amendments, courts were more likely to make decisions against shared parental responsibility, but this did not translate into a substantial shift in approaches to care-time arrangements. In relation to consent after proceedings matters, orders for parental responsibility did not change substantially after the reforms, but orders for shared care-time were less frequent, and for mother majority time more frequent. For arrangements reached by consent without litigation, patterns in shared parental responsibility orders did not change substantially, but patterns in shared care-time orders recorded a subtle increase.

Changes were negligible in the extent to which orders provided for no time with one parent, or reflected arrangements for supervised time, or changeovers to be supervised or at a neutral place.

Disclosure of family violence and child abuse concerns

The Court Outcomes Project data indicate that allegations of family violence and child abuse were raised more frequently in court-based matters post-reform. The proportion of cases in the Court Files Study in which allegations were raised increased from 29% in the pre-reform sample to 41% in the post-reform sample. The proportion of cases in which both family violence and child abuse allegations were raised increased from 8% to 17%, and where child abuse only was raised the proportion increased from 3% to 5%. Where family violence was raised in the absence of child abuse, the proportion of cases remained relatively stable, increasing from 18% to 19%. In both areas, an increase in mutual allegations was evident, but the dynamics behind this increase were unclear.

Overall, the Court Files Study data show that the increase in allegations about family violence and child abuse was just as, if not more evident, in files where allegations of physical abuse and physical violence were made, compared with allegations of emotional abuse and emotional violence. This would tend to suggest that of the two relevant aspects of the reforms - the wider s 4AB and s 4(1) definitions and the various changes intended to support disclosure - it is the latter changes that are more influential in producing these shifts. The data, which show an increase in the number of post-reform files where families had engaged with prescribed child welfare authorities and personal protection order systems, also suggest a positive effect of the reforms in this context. The extent to which children were alleged to have been exposed to family violence increased (although not to a statistically significant extent) from 48% to 58%, but the rate at which allegations were made that children were victims of family violence remained relatively stable (39% to 40%). Increases in the raising of concerns about family violence and child abuse were particularly evident in the judicial determination sample, with increases in the proportion of matters involving these kinds of allegations of between 11 and 14 percentage points. Together, these findings indicate very limited change in the extent to which concerns about children and family violence are raised, suggesting the recognition of children's exposure to family violence in s 4AB(3) has thus far had limited effects.

The findings from the Court Administrative Data Study regarding the filing of Form 4 Notices/Notices of Risk also supports a conclusion that concerns have been raised more often since the 2012 family violence amendments. Excluding the figures for the Adelaide Registry of the FCC to account for the effect of a pilot program in that registry, the number of Notices of Risk filed nationally increased from 2,229 in 2011-12 to 4,437 in 2013-14. Most of this increase reflects changes in the FCC, with the FCoA and FCoWA having much smaller increases. Data collected since the implementation of the 2012 family violence amendments also indicate an increase in the proportion of Notices of Risk being referred to prescribed child welfare authorities. Increases in both the FCoA (2013-14: 90%; 2012-3: 76%) and in the FCC (excluding Adelaide) (2013-14: 88%; 2012-13: 74%) were identified.

Risk assessments and evidentiary profiles

The Court Administrative Data Study indicated a slight decrease in the number of family consultant memoranda (i.e., brief reports) ordered in family law matters following the implementation of the 2012 family violence amendments in the FCoA and the FCC. Following a peak in the number of family consultant memoranda ordered in 2012-13 (n = 4,618), there was a small decline for the most recent period (2013-14) of 138. In contrast, the number of family consultant reports (i.e., longer reports) ordered across all three courts has been relatively steady since 2011-12, when 4,683 Family Reports were ordered. The court administrative data also indicate an increase in the number of matters for which ICL involvement was ordered following the 2012 family violence amendments. In 2013-14, 3,981 orders for ICL involvement were made, compared with 3,695 in 2012-13, with a higher degree of increase in such orders for the FCoWA. While there has been some fluctuation since 2004-05 in the proportion of matters where an ICL has been ordered, the proportion of matters with such orders for 2013-14 were 25% in the FCoA, 27% in the FCC, and 29% in the FCoWA. On the other hand, the number of cases dealt with in the FCoA's Magellan list has declined since the 2012 family violence amendments. After peaking at 268 cases in 2008-09, the number dropped markedly to 165 in 2010-11, followed by a more gradual decline, with 118 cases in 2013-14.

The proportion of files in the Court Files Study samples with evidence in relation to a need to protect children from abuse was present for 22% of the total sample, compared with 11% pre-reform, which represents a statistically significant increase. Family Reports were more likely to be generated in cases involving allegations of family violence and/or child abuse after the reforms (53%) than before (33%). Explicit discussion of risk assessment was more evident in Family Reports after the reforms (31%) than before (22%). Risk was explicitly identified as being present in 28% of the post-reform reports and not present in 29%. The Family Reports indicate that a view either way could not be formulated in 43% of cases. More files included evidence relating to personal protection orders after the reforms (25%) than before (17%), and evidence of engagement with prescribed child welfare authorities was also evident to a significantly greater extent after the reforms (7% before cf. 13% after). Two other areas that were receiving greater emphasis (to a statistically significant extent) in post-reform files were the child's right to meaningful involvement with each parent after separation (11% cf. 7% pre-reform) and evidence referring to the possibility that children's views were influenced (7% cf. 4% pre-reform).

Overall, the Published Judgments Study demonstrated that the constellation of facts and evidence in any given case could determine how particular provisions, including s 4AB, were applied in the context of the given case. The issues relevant to parenting order outcomes highlighted in the Published Judgment analysis included the nature and severity of family violence, the nature of the child's relationship with each parent, and the conclusion formed by the court about whether the family violence was of a level of severity sufficient to justify orders ceasing or restricting parent-child relationships in the context of the behaviour of each parent and the court's conclusion about the nature of the child's relationship with each parent. In some judgments, the validity of a parent's behaviour in raising concerns about family violence and child abuse received significant scrutiny in court decision making, and a variety of approaches, including changing the parent with whom a child spends most time, were applied in situations in which a court concluded that such concerns were unreasonably raised. The Published Judgments Study also considered varying approaches emerging in relation to the application of s 60CC(2A), which explicitly prioritises the primary consideration in s 60CC(2)(b), which relates to "the need to protect children from physical or psychological harm arising from being subjected to, or exposed to abuse, neglect or family violence". The approaches emerging in the analysed judgments included the interpretation of s 60CC(2A) as shifting the balance but not altering the need to consider the evidence as a whole; the operation of s 60CC(2A) acts as a "tie-breaker" (Rhoades, Sheehan, & Dewar, 2013) and the consideration of s 60CC(2A) in the context of applying the unacceptable risk test. A further approach emerging involved judgments reflecting the application of a combination of these approaches to the interpretation and application of s 60CC(2A). The analysis in the Published Judgment Study reinforced the point that family law matters frequently raise very complex factual and evidential issues, giving rise to real challenges when litigating in an adversarial context.

Patterns of service use

There was little indication in the evidence arising in the Court Outcomes data of any significant changes in the patterns of service use following the reforms. As noted above, the analysis of the Court Administrative data identified a national increase of 442 to 14,826 applications for final orders in matters involving children. This increase occurred mostly in relation to applications involving both children and property, suggesting that dynamics more associated with property than children may be relevant in this context. In relation to the use of family dispute resolution (FDR) prior to the issuing of proceedings, the Court Administrative Data indicate that the "certificate" route (where parties attended FDR but were issued with a s 60I certificate) was more common than the "exception" route (where it was determined that parties were not required to attempt FDR). There was a small increase in the former and a similarly small decrease in the latter pathway in 2013-14 compared to the previous year. Overall, however, there was a trend towards the narrowing of the numbers using each of these pathways.

The demographic profiles of the parties in the pre- and post-reform Court Files Study samples were very similar, suggesting little change in the nature of the groups who used the courts before and after the reforms. There was one area where change of a potentially significant nature was evident, and this related to the gender mix of fathers and mothers as applicants and respondents in court proceedings. In the post-reform period, the proportions of fathers as applicants increased (50% pre-reform cf. 44% post-reform) and the proportion of mothers as applicants decreased (53% cf. 47%). It is also noteworthy that the resolution time for judicial determination of parenting matters increased substantially, from 5 to 8 months. This cannot be attributed solely to the 2012 family violence amendments in the absence of evidence about other pertinent issues, including the sampling method applied and the amount of judicial resources available to hear matters.

Summary: Influence of the 2012 family violence amendments

Each component of the Court Outcomes Study identified shifts consistent with the intention of the 2012 family violence amendments, which included measures aimed at improving the disclosure and identification of, and response to, family violence and child abuse in family law matters.

The findings relating to increases in the prevalence of allegations of family violence and child abuse, the filing of Form 4 Notices/Notices of Risk and disclosure of engagement with family violence and child protection systems are all consistent with these aims of the 2012 amendments. Also consistent with the intention of the reforms to support safer parenting arrangements for children where there are concerns about family violence and child abuse, are the data indicating shifts in patterns for orders for shared parental responsibility and shared care time in circumstances where allegations of family violence and child abuse are raised. In relation to the judicial determination file sample, these data suggest that in the period since the 2012 family violence amendments, courts were more likely to make decisions against shared parental responsibility, but this did not translate into a substantial shift in approaches to care-time arrangements. In relation to consent after proceedings files, orders for parental responsibility were no less common after the reforms, but orders for shared care time were less frequent, and orders for mother majority time were more frequent.

These patterns suggest that the 2012 family violence amendments have had limited effect on the overall pattern of judicial determination outcomes for care-time arrangements, despite the fact that evidence raising protective concerns was adduced more often than it was before the reforms, and that matters where this evidence was adduced were less likely to resolve without judicial determination than previously. In contrast, in the analysis of the consent after proceedings files, the 2012 family violence amendments were not associated with a downward shift in parental responsibility arrangements, but a correlation was identified between the reforms and changes in orders for the shared care time. It may be that matters that are settled after proceedings are issued are more clear-cut from a factual and evidentiary perspective than those proceeding to judicial determination, such that one party is in a substantially stronger bargaining position from a forensic perspective. The disjunction in the patterns between the two samples nevertheless gives rise to questions about the operation of the legislative framework, particularly given that factual issues raising protective concerns were more common in the judicial determination files than in the consent after proceedings files. It should also be acknowledged, however, that to some extent, the greater prevalence of shared parental responsibility in the consent after proceedings sample may reflect the bargaining dynamics and trade-offs pertinent to negotiation in these contexts.

The analysis of published judgments informs the making of observations about the extent to which the legislative factors influence the patterns described above.

First, given that the presumption of equal shared parental responsibility is not applicable (or is treated in practice as rebuttable) where there are concerns about family violence or child abuse, a reduction in orders for equal shared parental responsibility orders is consistent with an increase in the raising of concerns about family violence and child abuse in court proceedings to a greater extent than before the 2012 amendments, together with a greater willingness on the part of judicial officers to make orders for sole parental responsibility in these circumstances.

Second, less significant shifts in care-time arrangements where concerns about family violence and child abuse were raised invite consideration of why the 2012 family violence amendments have influenced parental responsibility outcomes to a greater extent than care-time outcomes in the judicial determination files, particularly in light of the inclusion of s 60CC(2A). The analysis of published judgments suggests that a range of considerations influence judicial decision making in matters involving family violence and child abuse concerns in the context of the overall decision framework set out in Part VII of the FLA. It highlights the point that judicial determinations involving orders for sole parental responsibility and limited or no care- time arrangements arise in cases where a very severe history of family violence is established and the behaviour of one parent is clearly deficient compared to the behaviour of the other. In cases where courts are persuaded that the situation, including the behaviour of each parent, is less clear cut than this, particularly where the parents' motivation for raising allegations of family violence or child abuse comes into question, then care-time decisions are likely to favour arrangements that maintain relationships with both parents. The data relating to the prevalence of relevant factual issues show that arguments that a parent is undermining the other parent's relationship have been raised more frequently since the reforms, as have been arguments about family violence and child abuse. The question of one parent's capacity to support the child's relationship with the other remains a live issue in court proceedings, especially in the context of the continuing strong philosophy that it is in a child's best interests to maintain relationships with both parents after separation.

1. Introduction

This report sets out the findings of the Court Outcomes Project, which contributes to the Evaluation of the 2012 Family Violence Amendments Project by focusing on the effects of the legislative amendments on parenting matters dealt with in the family law courts by consent or judicial determination. The Court Outcomes Project has three parts. The first part (the Court Administrative Data Study) is an analysis of administrative data obtained from the three family law courts, which assesses patterns in filings in parenting matters and other relevant issues, including filings in relation to Form 4 Notices/Notices of Risk, the number of memoranda or reports provided by family consultants (long or short) and the number of matters in which orders for Independent Children's Lawyers (ICLs) were made. The second part (the Court Files Study) is an analysis of court files, which is based on quantitative data collected from family law court files involving matters resolved by judicial determination and consent. The analysis is based on samples of matters resolved before and after the 2012 reforms, allowing a rigorous comparison of outcomes in these two time periods. It examines patterns in orders for parental responsibility and care time, and a range of other relevant issues, including the prevalence in the files of allegations about family violence and child abuse. The third element (the Published Judgments Study) is an analysis of published judgments that examines how the legislative amendments are being applied in court decision making.

The Court Outcomes Project complements the other two elements of the Evaluation Research Program: a study of separated parents' experiences (Experiences of Separated Parents Study [ESPS], incorporating the Survey of Separated Parents [SRSP] conducted in 2012 and 2014), and a study of family law professional practices (Responding to Family Violence Study [RFV]). The research program was commissioned and funded by the Australian Government's Attorney-General's Department (AGD).

1.1 Background

The Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 (Cth), which came substantially into effect on 7 June 2012, was introduced to support improvements in the family law system's identification of and response to family violence. In particular, it aims to better support the disclosure of concerns about family violence, child abuse and child safety by parents engaged with the family law system, and to encourage professionals to respond to these disclosures in a manner that prioritises protection from harm. These amendments to the Family Law Act 1975 (Cth) (FLA)¹ respond to the findings and recommendations of three reports, namely the Evaluation of the 2006 Family Law Reforms (Kaspiew et al., 2009), the Family Courts Violence Review (Chisholm, 2009), and Improving Responses to Family Violence in the Family Law System (Family Law Council, 2009).

The main elements of the 2012 family violence reforms involved:

• introducing wider definitions of "family violence" and "abuse" (s 4AB and s 4(1));
• clarifying that in determining the best interests of the child, greater weight is to be given to the protection of children from harm where this conflicts with the benefit to the child of having a meaningful relationship with both parents after separation (s 60CC(2A));
• strengthening the emphasis placed on protecting children from harm by imposing obligations on advisers² to inform parents/parties that post-separation decision making about parenting should reflect this priority and that they should regard the best interests of the child as the paramount consideration (s 60D);
• imposing a legislative obligation on an "interested person" (including parties to proceedings and ICLs) to file a Form 4 Notice/Notice of Risk when making an allegation of family violence or risk of family violence (s 67ZBA);
• extending the obligation to file a Form 4 Notice/Notice of Risk when making an allegation to "interested persons" (including ICLs) as well as parties to proceedings that a child has been abused or is at risk of being abused (s 67Z);
• imposing obligations on parties to proceedings to inform the courts about whether the child in the matter or another child in the family has been the subject of the attention of prescribed child welfare authorities (s 60CI);
• imposing a duty on the court to actively enquire about whether the party considers that the child has been, or is at risk of being, subjected or exposed to family violence, child abuse or neglect (s 69ZQ(1)(aa)(i)), and whether the party considers that he or she, or another party to the proceedings, has been, or is at risk of being, subjected to family violence (s 69ZQ(1)(aa)(ii));
• setting out the court's obligation to take prompt action in relation to a Form 4 Notice/Notice of Risk filed in relation to allegations of child abuse or family violence (s 67ZBB);
• amending the additional best interests consideration relating to family violence orders (s 60CC(3)(k)); and
• amending or repealing provisions that might have discouraged disclosure of concerns about child abuse and family violence.

The AVERT Family Violence: Collaborative Responses in the Family Law System (AGD, 2010) and the Detection of Overall Risk Screen (DOORS; McIntosh & Ralfs, 2012) are two further initiatives implemented in recent years with the intention of improving practices in relation to identifying, assessing and responding to risks and harm factors in the family law system context.

1.2 The operation of Part VII of the Family Law Act 1975 (Cth): An overview

The legal framework relevant to the resolution of parenting matters is substantively set out in Part VII of the FLA, although relevant definitions are also contained in s 4(1) (abuse in relation to a child) and s 4AB (family violence). There are two sets of provisions that play a critical role in informing decision making in children's matters. One set of provisions provides the infrastructure for consideration of the "best interests" principle, and the other set relates to parental responsibility and care time.

The best interests principle is at the core of both sets, but in different ways. The main provisions that provide guidance for the application of the best interests principle are the Objects and Principles (s 60B), which inform the application of the Part VII framework in a philosophical sense, the principle specifying that the child's best interests are paramount (s 60CA), and the s 60CC enumeration of primary and additional factors that guide the exercise of the best interests discretion. The s 60CC(2) factors are the "primary considerations" relating to the benefit to the child of having a "meaningful relationship" with both parents after separation, and the "need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence". Since the 2012 family violence reforms, the so-called "tie-breaker" provision (Rhoades, Lewers, Dewar, & Holland, 2014), s 60CC(2A), specifies that greater weight is to be given to the latter factor where a conflict occurs between the two factors in any given case. The "additional" s 60CC(3) factors comprise 13 separate provisions, together with a "catch-all" provision that allows the court to take into account "any other fact or circumstance". As part of the 2012 family violence amendments, these provisions were changed so that the court may consider and draw inferences from "any" family violence order (s 60CC(3)(k)), not just those made on a final or contested basis. A provision requiring courts to have regard to the extent to which one parent had facilitated the child's relationship with the other parent was also removed.

The presumption in favour of "equal shared parental responsibility" (ESPR) is at the core of the provisions related to parental responsibility and care time (s 61DA). The presumption in favour of ESPR is not applicable where there are reasonable grounds to consider that a party has engaged in family violence or child abuse (s 61DA(2)). The presumption is also rebuttable on grounds that its application would not be in a child's best interests (s 61DA(3)). Where orders for ESPR are made pursuant to the presumption, courts are obligated to consider making orders for children to spend equal or substantial and significant time with each parent where this is held to be reasonably practicable and in a child's best interests (s 65DAA(1)). Where decision making occurs pursuant to these provisions, the child's best interests remain paramount and the s 60CC(3) factors are also relevant.

In circumstances where the presumption is not applied or rebutted, decision making in relation to parental responsibility and care time are determined by reference to the child's best interests (s 60CA), requiring consideration of the Objects, the Principles (s 60B) and s 60CC. Case law decided since the 2006 shared parenting amendments to the FLA has set out a decision-making pathway that requires orders for ESPR and equal shared care time to be considered as part of the best interests consideration, regardless of whether the ESPR presumption is applied or not (Goode and Goode [2006] FamCA 1346). The High Court has reinforced the necessity for judges to adhere to the legislative decision-making pathway in s 65DAA in order for court orders to be predicated on a valid exercise of legislative power (MRR v GR [2010] 240 CLR 461). This means that the court must be satisfied that orders for equal or substantial and significant care time are in a child's best interests and reasonably practicable.

In the context of the exercise of the best interests discretion (s 60CA), concerns about family violence and child abuse may be relevant at several different points. In addition to the protection from harm consideration in s 60CC(2)(b), two other provisions in s 60CC draw the court's attention to family violence. One raises as a consideration "any family violence involving the child or a member of the child's family" (s 60CC(3)(j)). The other, as noted earlier, requires the court to consider any family violence order. Where findings are made about these issues, they may result in the non-application or rebuttal of the s 61DA presumption and, depending on the severity of them and the significance placed on them in the context of other factors in the exercise of judicial discretion, they may influence the orders for parental responsibility and care time in a variety of different ways, as explained further in Chapter 4. A further relevant provision is s 60CG, which is placed in a section of Part VII that deals with family violence and specifies that orders "should not expose a person to an unacceptable risk of family violence". The patterns in orders for parental responsibility and care time described in Chapter 4 reflect the exercise of discretion under these provisions in the context of factual conclusions in relation to the judicial determination sample. In relation to matters determined by consent, application of the s 60CC "primary" and "additional considerations" is discretionary (s 60CC(5)), although such orders remain subject to the paramountcy of the best-interests principle.

Previous research established that most court orders (whether made by consent or judicial determination) provided for shared parental responsibility after the 2006 family law reforms (Kaspiew et al., 2009). Although shared time is considerably less common in court-determined arrangements than shared parental responsibility, research has also demonstrated that orders involving minimal or no time with one parent are made only where the evidence in support of such an outcome is strong (Kaspiew, 2005a; Moloney et al., 2007), illustrating the longstanding approach that children benefit from involvement with both parents except in cases where dysfunction, including that arising from family violence and child abuse, warrants an outcome inconsistent with this view.

In considering the findings set out in this report, it is important to appreciate that they reflect a legal environment in which there has been limited appellate authority on the interpretation and application of the 2012 family amendments. The discretionary nature of decision making at first instance is evident in the way the new provisions are applied and interpreted in the context of a legislative framework in which discretion determines how particular facts and circumstances will influence the end result. In this context, the discussion based on quantitative data gathered from court files provides evidence on an aggregate basis on the change in patterns for parental responsibility and care time that were evident before and after the reforms. It also demonstrates shifts in the nature and frequency with which particular issues - including family violence and child abuse concerns - are raised in family law court proceedings.

It should also be noted that the legislative pathway set out in Part VII has been described in judicial comment (Marvel v Marvel [2010] FamCAFC 101, [87]; Zabini v Zabini [2010] FamCA 10), practitioner comment (O'Brien, 2010), research (Rhoades et al., 2014) and academic analysis (Fehlberg, Kaspiew, Millbank, Kelly, & Behrens, 2014) as complex, convoluted and not readily understood, especially by lay people.

1.3 Courts, processes and terms

1.3.1 Courts and the legal process

Jurisdiction under the FLA is exercised by three main courts in Australia: the Family Court of Australia (FCoA), the Federal Circuit Court of Australia (FCC; previously the Federal Magistrates Court of Australia [FMCA]) and the Family Court of Western Australia (FCoWA).³ Each of these three courts exercises first-instance jurisdiction under the FLA, and the FCoWA also exercises non-federal jurisdiction under Western Australia's own legislative framework governing the resolution of disputes involving non-married couples (Family Court Act 1997 (WA)). ⁴ The FCoA has appellate jurisdiction from first-instance judgments of all three family law courts.

In the past decade, significant shifts have occurred in court caseloads, as described in the Family Law Court Filings 2004-05 to 2012-13 report (Kaspiew, Moloney, Dunstan, & De Maio, 2015). One of these shifts has seen a growth in the expansion of the FCC caseload and a contraction in the FCoA caseload, particularly in children's matters, such that the FCC share of filings represents some 86% of the total caseload distribution between the FCC and the FCoA (p. 22).

A further shift, attributable to the increased support for family dispute resolution (FDR) provided as part of the 2006 family law reforms, has resulted in a 25% drop in court filings in parenting matters (Kaspiew, Moloney et al., 2015, p. 7). Under FLA s 60I(6) (which came into full effect from 1 July 2008), parents are required to attempt FDR before lodging an application for parenting matters. In cases involving family violence and safety concerns (or other limited circumstances, including urgency), the matter may be brought directly to court, pursuant to the exceptions to s 60I(9) (the exception route). These concerns may also result in a certificate being issued by an FDR practitioner where a matter is considered unsuitable for FDR (see section 2.2).

The third shift arises from the de facto property reforms in 2008 that saw matters involving post-separation property and financial disputes previously dealt with in the state and territory systems brought into the federal sphere through the referral of powers from the states and territories (except in WA) and amendments to the FLA. Kaspiew, Moloney et al. (2015) noted that between 2008 and 2013-13, the number of applications involving property disputes in the FCoA and the FCC increased by 17% (p. 12).

In light of the aim of the 2012 family violence amendments to better identify matters involving family violence and concerns about children's safety, an element of the Evaluation Research Program (presented here as part of the Court Outcomes Project) was to examine court administrative data to assess patterns in court caseloads and consider issues surrounding the identification of matters involving risk. It should be noted that resource constraints, rather than a lack of need or demand, may be an influence on the findings reported in the forthcoming sections, particularly in relation to family consultant engagement, orders for ICL involvement and the number of matters handled in the Magellan list.

1.3.2 Explanation of terms

A range of terms related to court matters and processes are used in presenting the findings discussed in this report. The explanation for terms that may not be readily understood by non-lawyers is set out in this section.

Family dispute resolution and FLA s 60I

Under s 60I of the FLA, parties are required to attempt FDR prior to lodging a court application for parenting orders (s 60I(1)). Certain exceptions to this requirement apply, including circumstances involving urgency, and matters where there are reasonable grounds to believe there has been, or is a risk of, family violence or child abuse by one of the parties to the proceedings (s 60I(9)). Where these grounds are established, a court may hear a matter without an s 60I certificate being lodged (s 60I(7)). Under s 60I(8), FDR practitioners may issue certificates on the basis that:

• the party did not attend FDR due to the refusal or failure of the other party or parties to attend (s 60I(8)(a));
• the FDR practitioner made an assessment that the matter was not appropriate for FDR (s 60I(8)(aa));
• the parties attended FDR and made a genuine effort to resolve the dispute without success (s 60I(8)(b));
• FDR was attempted but one or both parties did not make a genuine effort to resolve the dispute (s 60I(8)(c)); or
• the parties began FDR, but the FDR practitioner decided it was not appropriate to continue, having regard to the circumstances of the matter (s 60I(8)(d)).

These matters are referred to as being heard as a result of an s 60I certificate being lodged.

FDR and the operation of the exceptions have been extensively examined by the Australian Institute of Family Studies (AIFS) in a range of reports including: Kaspiew et al. (2009); Qu, and Weston (2014); Kaspiew, De Maio, Deblaquiere, and Horsfall (2012); De Maio, Kaspiew, Smart, Dunstan, and Moore (2013); Moloney, Kaspiew, De Maio, Deblaquiere, Hand, and Horsfall (2011); Qu, Weston, Moloney, Kaspiew, and Dunstan (2014); Kaspiew, Carson, Dunstan, De Maio et al. (2015); and Kaspiew, Carson, Coulson, Dunstan, and Moore (2015).

Independent Children's Lawyers

ICLs are specially trained legal practitioners appointed by legal aid commissions in each state and territory, which also administer the funding for them. They are appointed to represent the best interests of children in particularly complex cases, including those involving serious allegations of family violence and child abuse. Recent research by AIFS has examined the role and efficacy of ICLs (see Kaspiew, Carson, Moore, De Maio, Deblaquiere, & Horsfall, 2014).

Form 4 Notice/Notice of Risk concerning family violence and child abuse

A Form 4 Notice/Notice of Risk is the form that courts require litigants (and other interested persons) to file with an application to alert the courts to cases involving concerns about family violence and child abuse. In the period covered by this research, court practices concerning notices of family violence and child abuse changed, as explained in section 2.3. Other AIFS research relevant to courts and family violence and child abuse includes: Kaspiew et al. (2009), Kaspiew et al. (2014), Higgins (2007), and Moloney et al. (2007).

Magellan

This is a special case management program operated in the FCoA. It is designed to deal expeditiously with parenting matters in the FCoA that involve allegations of sexual abuse or serious physical abuse of children (see Higgins, 2007). It involves collaboration between the FCoA, state and territory prescribed child welfare authorities, police and state/territory legal aid commissions to support an intensively case-managed approach to a limited number of serious matters.

Family consultants

Family consultants⁵ are psychologists or social workers who work with the family law courts and provide expert clinical assessments to the courts about families involved in court proceedings.⁶ The family consultant role is set out in FLA Part III. Child Dispute Services,⁷ which is the service within the FCoA and the FCC that coordinates family consultant activities, employs about 80 internal family consultants, with a further group engaged as sub-contractors pursuant to Regulation 7 of the Family Law Regulations 1984. Family consultants may provide brief reports to the court to inform decision making at an interim stage (s 11F memoranda), or longer reports as proceedings develop (Family Reports, s 62G). All of their dealings with families are reportable to the courts (s 11C). The case management approaches of the FCoA, the FCC and the FCoWA are different, and this means that family consultants operate in a slightly different way in each court (see section 2.4). In the FCoA, the Child Responsive Program is part of the case-management pathway and involves family consultants in several steps, commencing with an intake and assessment interview when a matter begins.⁸ In the FCC, family consultant engagement occurs where judges make orders for s 11F or s 62G reports. In the FCoWA, in addition to preparing s 11F or s 62G reports, family consultants provide information about child protection and criminal justice engagement where this is relevant to the court the first time a matter is listed for hearing. In 2015, family consultants in the Melbourne and Brisbane registries were conducting a trial of a behaviourally based family violence screening questionnaire to be completed by each party prior to their interview with the allocated family consultant, with the trial expected to be completed in late 2015 (FCoA & FCC, 2015, p. 15).

Consent orders

Arrangements for children and property matters may be made by agreement with or without court involvement. Agreement may occur after an application for final orders has been lodged to initiate legal proceedings. It may also occur as a result of an agreement negotiated in FDR, with or without the assistance of lawyers. Courts make orders by consent in such circumstances, and the agreement then becomes legally binding. Where legal proceedings are not already on foot, they may file an application for consent orders pursuant to the Family Law Rules 1984, Rule 10.15. The FCoA and FCoWA have special forms and processes for this (FCoA: Application for Consent Orders, and FCoWA: Form 11 Application for Consent Orders).

1.4 The evaluation methodology

1.4.1 Overview

The methodology for the Evaluation of the 2012 Family Violence Amendments was based on a mixed-method research program designed to examine the effects of the reforms using several different quantitative datasets. This allowed pre- and post-reform comparisons of patterns in court orders and of the views and experiences of parents and professionals. Unlike the 2006 family law reforms, which were based on a range of policy, legislative and service system changes, the 2012 family violence reforms were primarily based on amendments to the legislation.

The Court Outcomes Project makes an important contribution to the overall Evaluation Research Program as it examines the effects of the legislative changes on parenting arrangements that are reached either through litigation pathways (by judicial determination or by consent after proceedings have been initiated) or through presentation to courts for endorsement as consent orders. A particular focus of the analysis is the extent to which the dynamics involved in litigation in matters where there are concerns about family violence and child abuse have shifted in a direction consistent with the intent of the reforms. The elements based on the Court Administrative Data and Published Judgments Studies support the interpretation of the Court Files Study findings, as well making an independent contribution to examining the wider systemic implications (court filing patterns) and narrower decision-making implications (outcomes in individual cases through the application of the legislation) of the amendments.

1.4.2 Research questions

The overall Evaluation Research Program was guided by a set of research questions. The evidence from the Court Outcomes Project component aims to assess the following aspects of those questions:

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 file analysis in the Court Files Study addresses this question by providing quantitative empirical evidence on orders for parental responsibility and care time reached by consent, judicial determination, or consent after proceedings have been initiated. The evidence allows differences in outcomes in matters that do and do not involve family violence and safety concerns to be assessed. The Court Administrative Data Study provides insight into some issues pertinent to the assessment of matters involving family violence and child safety at a systemic level. The Published Judgments Study supports understanding of how the application of the amendments in individual cases contribute to the patterns evident in the file analysis data. (See also question 4.)

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

The Court Files Study data provide evidence on the number of cases that involved allegations of family violence and child safety before and after the reforms. The Court Administrative Data Study also sheds light on this question through analysing patterns in the filing of Form 4 Notices/Notices of Risk before and after the reforms.

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

The Court Administrative Data Study examines filings in matters involving children across the three courts, providing evidence on patterns in court use.

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?

• Court-endorsed outcomes (consent orders) and court-ordered outcomes (judicially determined orders):
  • The Court Files Study addresses this point by providing evidence on patterns in orders for parental responsibility and care time in matters resolved through judicial determination, consent after proceedings have been initiated and matters resolved by consent without an application for final orders being lodged.
• Court-based practices, as reflected in the manner in which practitioners and judges fulfil their obligations under the Family Law Act 1975 (Cth):
  • The analysis of Form 4 Notices/Notices of Risk in the Court Administrative Data Study evidences the extent to which parties and practitioners are meeting their obligations in drawing concerns about family violence and child safety to the attention of courts. The Court Files Study data also examine this issue through analysis of data on the prevalence of allegations of child abuse and family violence and the provision of information about engagement with child protection and personal protection orders systems.

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

The analyses in the Court Files and the Published Judgments Studies address this question.

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

The analyses in the Court Files and the Published Judgments Studies address this question.

1.4.3 Court Administrative Data Study: Methodology

This research involved obtaining and analysing administrative data held by the three courts through submission of a research proposal to each of the court's research and ethics committees. These data were extracted by court personnel from the respective courts' CaseTrack systems. Data for each financial year from 2009-10 to 2013-14 were provided by each court, covering CaseTrack numbers for the following:

• applications for final orders, categorised by children only, property and children, and property only cases;
• matters involving self-represented litigants (data available for FCoA and FCC only);⁹
• application for consent orders, categorised by children only, property and children, and property only cases (data available for FCoA and FCoWA only);
• matters with a Form 4 Notice/Notice of Risk filed;
• Family Reports and s 11F memoranda prepared;
• orders for the appointment of an ICL; and
• matters involving relocation orders.

An analysis combining these data with those previously provided to AIFS for the years 2004-05 to 2009-10 was then conducted.

1.4.4 Court Files Study: Methodology

Data sourced from court files provide direct evidence about the effects of the legislative amendments on patterns in orders for parental responsibility and care time. The aim of the Court Files Study was to collect and analyse systematic quantitative data from family law court files to allow an assessment of the effects of the 2012 family violence amendments. More specifically, this component of the evaluation involved examining data sourced from files in parenting matters that were finalised by:

• judicial determination (i.e., where parties could not agree and the legal proceedings continued to the final conclusion, with a judge determining the outcome); or
• consent (i.e., where the two parties had reached an agreement during their legal proceedings or by filing an application for consent orders pursuant to the Family Law Rules 1984, Rule 10.15).

The sample was drawn from two time points to enable a comparison of patterns emerging in cases prior to and following the implementation of the 2012 family violence amendments:

• pre-reform: matters initiated after 1 July 2009 and finalised by 1 July 2010; and
• post-reform: matters initiated after 1 July 2012 and finalised by 30 November 2014.¹⁰

The study focused on collecting and analysing data relevant to patterns in orders for parental responsibility and care-time arrangements, with an emphasis on comparing outcomes in matters that did and did not involve family violence and child safety concerns.

Data collection

The data collection instrument used in this study was a project-specific instrument developed using FileMaker Pro database software and adapted from the pre-existing database used for the corresponding Court Files component in the Legislation and Courts Project forming part of the AIFS Evaluation of the 2006 Family Law Reforms (Kaspiew et al., 2009). This FileMaker Pro instrument enabled quantitative data to be coded into a range of pre-determined fields and related to the following broad categories:

• basic demographic data of applicants and respondents - age, gender, occupation, citizenship, and dates of cohabitation, marriage, separation and divorce;
• information on whether the parties were legally represented and whether an FDR certificate was presented (and the reasons nominated if an FDR certificate was not presented);
• basic demographic data relating to children - age, gender, their relationship to the applicant and respondent, and who the child lives with;
• nature of the proceedings - including the application type, the orders sought by the applicant/respondent for parenting time, supervised parenting time, parental responsibility and relocation;
• factual issues in the case - including allegations concerning family violence and child safety concerns;
• evidence (by type) of family violence and/or child safety concerns submitted to the court;
• whether a Family Report was ordered, whether a risk assessment was conducted by the Family Report writer, the outcome of that risk assessment and recommendations made by way of parenting orders;
• the orders made by the court in the relevant family law proceedings (including family violence orders), together with current or past state personal protection orders; and
• findings made about family violence and/or child abuse in the judgment (if available on file).

Data collection for the Court Files Study commenced on 20 January 2015 and concluded on 30 April 2015. Senior year law students were employed by AIFS as data collectors, working under the supervision of AIFS Family Law Evaluation Team members. Recruitment of the data collectors involved a careful vetting process, and only those with appropriate academic records and experience were employed. As AIFS employees, all data collectors were bound by the same confidentiality and security requirements as members of the AIFS Family Law Evaluation Team.

Following intensive training undertaken by Family Law Evaluation Team members, the data collectors reviewed the sample case files and recorded the incidence of key data items. The initial training and ongoing supervision ensured that the data collectors were equipped with the practical skills to operate the FileMaker Pro database, together with the knowledge to understand the material contained in the court files, the data collection instrument and the coding frame applied.

Ethical considerations

The AIFS Human Research Ethics Committee and the research and ethics committees of the FCoA, the FCC and the FCoWA provided ethical review and approval of the Court Files Study, covering all aspects of the methodology and data collection protocols. Access to identifiable court records occurred only onsite at the courts under supervision of relevant court staff. As noted above, all AIFS staff (including the data collectors) who accessed court records were bound by strict confidentiality agreements and complied with Police Checks and (in applicable states) with Working With Children Checks.

For this study, access to the court files was granted by the Attorney-General under Rule 2.08 of the Federal Circuit Court Rules 2001and Rule 24.13 of the Family Law Rules 2004. Consent was not sought from the families whose files were reviewed as part of this study as it was considered impracticable to obtain informed consent from all individuals who are parties in court records. Court records are developed and maintained for legal purposes and, although they are public documents, they are subject to certain restrictions, including the prohibition of publishing information on parties to, or children subject to, litigation under s 121 of the FLA.

Sufficient privacy and confidentiality protections were put in place throughout the study to mitigate any risks arising from not seeking the consent of families whose files were being reviewed and to ensure that no breach of s 121 of the FLA occurred. All information collected from the court records was de-identified at first reading and no personal data were collected. The data were stored in password-protected encrypted files, which were also used to send regular backups to AIFS via Australia Post's Express Post service during the fieldwork period. The computers and USBs used in the data collection process were also password-protected.

To enable further checking of a file where queries arose during the data collection and verification phase of the study, data were re-identifiable, with court identification numbers substituted by an artificial research number for each case. An identification key was developed for this substitution process and only re-identifiable information was held by AIFS. The identification key was kept in a secure area at the court locations and also in a locked filing cabinet at AIFS. At the completion of the data collection, verification and analysis phase, the identification key was destroyed, at which point the data became non-identifiable.

The data collection for the Court Files Study involved subject matter of a sensitive nature. Family law matters involve issues associated with relationship breakdown, and those before the courts often involve particularly difficult issues, such as family violence, child abuse, substance addiction and mental illness. As such, comprehensive duty-of-care protocols were established to ensure appropriate support and guidance for data collectors employed in the study. These protocols included providing data collectors with telephone access to a Family Law Evaluation Team member at all times, together with opportunities to de-brief with a supervisor and to access support via the AIFS Employee Assistance Program or an AIFS-employed psychologist.

Sample

The sampling strategy employed for the Court Files Study was based on the approach used in the Legislation and Courts Project in the AIFS Evaluation of the 2006 Family Law Reforms (Kaspiew et al., 2009). The sample was based on court files drawn from the FCoA and FCC registries in Melbourne, Sydney and Brisbane and from the FCoWA. The Melbourne, Sydney and Brisbane registries handle the majority of all applications filed nationally in these courts and, as such, the resulting samples are representative of a majority of FCoA and FCC cases. Consistent with the Legislation and Courts Project, a sample of pre-reform court files and a sample of post-reform court files from each of these registries were selected via a random sampling strategy.

The rationale for the inclusion of a pre-2012 family violence reform sample, instead of re-using the post-2006 sample obtained for the Legislation and Courts Project, was that this more recent sub-sample was based on cases finalised in an environment that had already been changed by the 2006 amendments. In terms of legal understandings and practice, this environment was anticipated to be significantly different from the one in which the data for the post-2006 reforms sample were collected. Conventional wisdom suggests that it takes time for settled understandings of new legislation to occur, as appellate jurisprudence refines interpretations of the amended law and, as such, a more recent pre-2012 family violence reform sample was needed.

The sampling strategy was devised to achieve a target number of judicial determination files and consent files in each registry. Consistent with the Legislation and Courts Project, these target numbers were based on the courts' filing statistics, the number of files available in each registry and on the Court Files Study budgetary constraints. These target numbers, together with the sample numbers achieved in each category, are outlined in Table 1.1 (pre-reform) and Table 1.2 (post-reform). In relation to the pre-reform period, the sample found to be in scope (see Tables 1.3 and 1.4) was 895, which was 83% of the target sample of 1,076. In relation to the post-reform period, the in-scope sample of 997 was 84% of the target sample of 1,189. More specifically, in relation to the Melbourne, Sydney and Brisbane registries, the aim was to achieve a combined total of 100 judicial determination files in each of the FCoA and FCC registries, and a combined total of 180 consent files in each of the FCoA and FCC registries, consisting of both consent after proceedings and application for consent order cases. In relation to the FCoWA, the aim was to achieve a total of 100 judicial determination files and 180 consent files.

Table 1.3 shows that 1,415 pre-reform and 1,434 post-reform case records were collected, and 512 and 409 files were deemed to be out of scope in each time period, respectively.

The process of weighting corrects for bias that arises from the different proportions of the population being sampled in each strata or group. Consistent with the Legislation and Courts Project, the following formula was employed to calculate an estimation weight for each sampling group:

weight  =  population size / collected sample

It was estimated on this basis that for the pre-reform period, 1,448 case files on the sampling frame were out of scope, resulting in 3,747 files being available for analysis. For the post-reform period, 3,208 were estimated as being out of scope, with 12,023 files available for analysis.

Table 1.4 details the reasons for court file records being determined as out of scope in both the pre- and post-reform samples of the Court Files Study. The most substantial proportion of out-of-scope files related to the absence of a final order within the time period allocated to the case via the sampling frame, followed closely by the absence of a substantive Part VII FLA (parenting) matter in the relevant file. The "other reasons" category also represented a substantial proportion of out-of-scope files and included reasons such as the file being related to adoption proceedings, not containing orders consistent with their categorisation by the relevant court, or being unavailable for the data collectors to access during the data collection period.

Data cleaning and analysis

At the conclusion of fieldwork, a number of tasks were undertaken to correct errors and resolve inconsistencies prior to commencing data analysis. Where error messages remained in case records entered in the FileMaker Pro data collection instrument - such as where fields had been left empty by the data collectors and "not applicable" or another similar code should have been entered - these records were inspected and rectified. Serious errors occurred in 225 case records, rendering these data unusable. Where data in case records were incomplete or inconsistent, amendments were made to the case records that reflected the correct entry where this could be ascertained, using codes entered in other fields and/or the detailed notes provided by the data collectors in the notes tool in the FileMaker Pro instrument.

Data were analysed using STATA MP Version 13.

The resulting sample of pre- and post-reform case files in each registry are reported in Tables 1.5 and 1.6. Due to the variations in file numbers for the judicial determination samples in each registry, data were not comparable between registries.

1.4.5 Published Judgments Study: Methodology

The Published Judgments Study involved a systematic analysis of published appeal and first instance court judgments applying the new provisions introduced by the 2012 family violence amendments. The judgments are from the FCoA, the FCC (formerly the Federal Magistrates Court of Australia [FMC]) and the FCoWA, and relate to family law proceedings that commenced after the amendments came into effect in 2012.

A purposive sampling approach was applied in compiling the database of published judgments for this study. This approach involved the review of Full Court (Appeals) judgments and first instance judgments available on the FCoA website, and judgments available on the FCC website and the FCoWA website up to the time of writing. Judgments containing consideration and/or application of the provisions introduced or amended by the 2012 family violence amendments were selected for inclusion in the judgment database for this study.

Searches were also conducted of the relevant Austlii Commonwealth and Western Australian databases: Family Court of Australia - Full Court 2008- ; Family Court of Australia 1982- ; Federal Circuit Court of Australia 2013- ; Federal Magistrates Court of Australia - Family Law 2000-13; Family Court of Western Australia 2004- ; and Family Court of Western Australia - Magistrates Decisions 2008- . Key terms, including "4AB", "60CC(2A)", and "violence" and "abuse", were applied to the "this phrase" search on each of these Austlii databases, and relevant judgments were identified and included in the judgment database.

Summaries were made of relevant judgments for closer analysis and inclusion in this report.

1.4.6 Limitations

The findings presented in this report reflect one component of the Evaluation of the 2012 Family Violence Amendments, namely those involving some level of family law court intervention. Data collected from the Experiences of Separated Parents Study provides insight into the experiences of recently separated parents accessing non-legal family law services or no formal services, while the Responding to Family Violence study also provides insight into both legal and non-legal professionals' out-of-court experiences, thus providing well-rounded insights when all components of the evaluation are considered together as a whole.

The evaluation methodology is predicated on assessing the implications of the reforms for parenting matters generally, rather than specific types of cases, such as those involving relocation. Further, some of the issues examined in this report involve discussion of data that provides limited insight into the intersection between the federal family law system and state- and territory-based systems involving child protection and personal protection orders. The extent to which these issues are explored is limited by the scope of the evaluation and further research would be needed to understand the broader implications of the issues raised in this report, particularly in relation to the implications for prescribed child welfare authorities of the greater number of referrals of Form 4 Notices/Notices of Risk since the reforms.

Time and budgetary constraints also influenced the methodology applied in the Court Files Study and Published Judgments Study components of this Court Outcomes Project. In relation to the Court Files Study, a shorter data collection period was available and an abbreviated data collection instrument (compared to that implemented in the Legislation and Courts Project in the AIFS Evaluation of the 2006 Family Law Reforms; Kaspiew et al., 2009) was applied to enable comparison of core categories of data and the collection and analysis of data specific to the post-2012 amendments context. The cases in the post-reform sample reflect applications lodged and determined within two years and four months of the amendments taking effect, in an environment where appellate consideration of the amendments was (and remained) limited. This may mean that further effects of the amendments have yet to unfold. The findings should thus be considered to be indicative of the emerging effects of the reforms rather than being conclusive.

In relation to the Published Judgments Study, time and resource allocation supported limited analysis of judgments from the relevant post-2012 amendment period for the purpose of supporting understanding of the quantitative data in the Court Files Study. Other limitations arising in relation to the Court Administrative Data study related to the reporting of the available data, with data being available from some but not every court on certain issues or in relation to certain time periods, including, for example, data relating to the referral of Form 4 Notices/Notices of Risk to prescribed child welfare authorities.

1.5 Structure of this report

This report has three further parts. The first two parts are based on data from before and after the 2012 family violence amendments.

The first part is based on data provided by all three courts in the Court Administrative Data Study. It provides evidence on how the 2012 reforms have affected court procedures, outcomes and caseloads, including analyses of court administrative data on:

• patterns in applications for parenting, property, and parenting and property matters;
• non-FDR cases, dealt with under the exceptions of s 60I or lodged with a s 60I certificate;
• Form 4 Notices/Notices of Risk filed;
• family consultant reports;
• orders for ICLs;
• matters heard in the FCoA's Magellan list; and
• relocation orders.

The second part presents the analysis of data gathered from the files of all three courts as part of the Court Files Study. It includes:

• demographic profiles of the parties and their children;
• an overview of matters that involve allegations of family violence and/or child abuse;
• the evidence on file to address those claims;
• the extent of engagement with child protection and personal protection order systems; and
• patterns in orders for parental responsibility and care time, with a focus on differences in pre- and post-reform arrangements and in cases that do and do not involve family violence allegations.

The final part, using findings from the Published Judgments Study, analyses judgments on parenting matters following the reforms and explores how key aspects of the amendments are being applied in court decision making.

1.6 Summary

This report focuses on the effects of the 2012 family violence amendments on parenting matters resolved either by judicial determination, or by consent with court endorsement also being sought. The effects of the amendments on court filings evident in the court administrative data and a range of others issues, including the extent to which Form 4 Notices/Notices of Risk are filed before and after the reforms are examined first. Patterns in court orders for parental responsibility and care time in matters where allegations of family violence and child abuse before and after the reforms provide a basis for understanding whether the legislative changes have changed outcomes for children and are examined in the second part. The third part of the report describes the application of the new legislative provisions on the basis of published judgments. The final part addresses the relevant research questions on the basis of the evidence from all three parts.

2. Court administrative data and the 2012 family violence amendments

This chapter examines the effects of the 2012 family violence amendments on court caseloads. It is based on court administrative data provided by the three family law courts, the FCoA, the FCC and the FCoWA. The discussion provides an overview of overall patterns in filings for applications involving children only, children plus property, and property only, extending the analysis set out in Family Law Court Filings 2004-05 to 2012-13 (Kaspiew, Moloney et al., 2015) by a further year (2013-14). It also examines several other issues relevant to the operation of the 2012 amendments, including the number of matters heard in the family law courts because they have been determined not to be suitable for FDR, the number of ICLs appointed, the number of Form 4 Notices/Notices of Risk filed, the number of matters heard in the FCoA's Magellan program, and the number of matters in which family consultants provide brief or full reports to the courts.

The examination of administrative data from each of the family law courts informs an understanding of how the 2012 family violence amendments have affected procedural and substantive outcomes in matters resolved by judicial determination or by consent between the parties. The first part of this discussion provides an overview of the patterns in court filings focusing on the post-reform period. It then sets out findings on data relating to applications based on exceptions to the requirement to attend FDR allowed for under FLA s 60I(9) or based on a certificate from an FDR practitioner where FDR has been unsuccessful. This is followed by analysis of the numbers of Form 4 Notices/Notices of Risk that were filed and were referred to the relevant prescribed child welfare authority, the numbers of Family Reports ordered, and the number of matters in which orders for ICL involvement were made. The analysis concludes with a discussion of data relating to the number of cases dealt with in the FCoA's Magellan list and in relation to the making of relocation applications and relocation orders.

2.1 Court administrative data: An overview

The discussion in this section focuses on the patterns of court filings in matters involving children (including children-only and children-plus-property matters) for the period since the 2012 family violence amendments. See Kaspiew, Moloney et al. (2015) for a discussion of filings prior to this period.

2.1.1 Applications for final orders (non-consent filings)

Figure 2.1 shows that the period since the implementation of the 2012 family violence amendments has seen a slight increase in the number of applications for final orders in matters involving children. The number of these applications increased by 442 between the 2012-13 and 2013-14 financial years, totalling 14,826 in the latter period. This increase reflects slight increases in each of the three courts. The tally for the financial year that preceded the implementation of the reforms (2011-12) reflected a slightly higher number (14,542) than the 2012-13 tally (14,384), raising the possibility that some potential applicants may have delayed filing applications until the reforms had been implemented.

Figure 2.1: Applications for final orders involving children (children-only and children-plus-property matters), FCC, FCoA and FCoWA, 2004-05 to 2013-14

Analyses of three discrete categories of applications for final orders (property only: Figure 2.2; children only: Figure 2.3; and children plus property: Figure 2.4) indicate that the overall increase seen in Figure 2.1 is mostly driven by increases in the categories for property only (up by 353 to 8,198) and children plus property (up by 288 to 2,773). Figure 2.3, which sets out children-only applications, shows a very modest increase of 154 cases (total 12,053). These patterns, which show increases in all of these categories to different extents in each court, indicate that property, more so than children's matters, may be influencing the overall increase shown in Figure 2.1.

The possibility that the reforms have some influence in this context (since the new family violence definition applies in all FLA matters) cannot be discounted. However, causal association between these trends and the 2012 family violence amendments cannot be drawn either, in the absence of other evidence.

Figure 2.2: Applications for final orders involving property-only matters, FCC, FCoA and FCoWA, 2004-05 to 2013-14

Figure 2.3: Applications for final orders involving children-only matters, FCC, FCoA and FCoWA, 2004-05 to 2013-14

Figure 2.4: Applications for final orders involving children-plus-property matters, FCC, FCoA and FCoWA, 2004-05 to 2013-14

2.1.2 Applications for consent orders

Data on applications for consent orders is only available for the FCoA and FCoWA. This is because each of these courts has a dedicated form (FCoA: Application for Consent Orders, and FCoWA: Form 11 Application for Consent Orders) and process for applying for these orders, and this means that they are recorded discretely in each of these courts' administrative data systems. The orders dealt with in these processes reflect a situation where the parties have come to an agreement by negotiation and seek to have this agreement made legally binding through endorsement as consent orders, using the dedicated processes available in these courts. This is to be distinguished from situations where parties initiate court proceedings (through lodging an application for final orders) but then arrive at an agreement and seek court endorsement for that agreement. The CaseTrack data relied on for this report do not provide insight into the proportion of applications for final orders that are resolved in this way. In the FCC, the same application form is used for both types of resolution, so separate data on consent orders in the FCC are not available.

Figure 2.5 shows that applications for consent orders increased in both the FCoA and FCoWA in 2013-2014 compared with 2011-12. This increase is much more significant for the FCoA, where total consent order applications rose by 2,493 (to 12,986) in these two years. The increase in the FCoWA was more modest by comparison - a rise of 182 to 2,504.

Figure 2.5: Applications for consent orders, FCoA and FCoWA, 2004-05 to 2013-14

As with the dynamics noted in relation to applications for final orders, the increases in consent order applications are accounted for by increases in property-related applications (Figure 2.6). In the FCoA, 74% of consent orders in 2013-14 were for property only, compared with 68% in 2011-12. Proportions of applications for children-only consent orders fell from 20% to 15% in this period and combined applications were largely stable.

In the FCoWA, there was a larger but stable proportion of property-only consent orders in each time period (73-83%), with small fluctuations in the other periods.

Figure 2.6: Applications for consent orders, by children-only, children-plus-property, and property-only matters, FCoA and FCoWA, 2004-05 to 2013-14

2.2 Non-FDR pathways

As noted at the outset, one of the significant features of the 2006 family law reforms was the requirement for parents to attend FDR where they could not agree on parenting issues, prior to lodging a court application. This requirement was phased in, taking full effect from 1 July 2008, when all parenting applications, even those involving previous court orders, were required to comply.

These reforms mean that matters can proceed to court through one of two routes. The first route is based on exceptions to the requirement to attend FDR, as outlined in s 60I(9), which includes the following grounds:

• urgency (s 60I(9)(d)); or
• the court is satisfied that there are reasonable grounds to believe that a party to the proceedings has engaged in family violence (s 60I(9)(b)(iii)) or child abuse (s 60I(9)(b)(i)).

The second route applies when a party attends an FDR service (such as a Family Relationship Centre [FRC]) and receives certificate from an FDR practitioner on any of the following grounds:

• the other party refused to attend (s 60I(8)(a));
• the FDR practitioner made an assessment that FDR would be inappropriate (s 60I(8)(aa));
• an attempt at FDR was made and all parties made a genuine effort to resolve the dispute (s 60I(8)(b));
• an attempt at FDR was made, but one or more parties did not make a genuine effort to resolve the dispute (s 60I(8)(c)); or
• FDR began, but the FDR practitioner made an assessment that it would not be appropriate to continue (s 60I(8)(d)).

Given the emphasis in the 2012 family violence amendments on identifying matters where family violence and child safety concerns are pertinent, it is possible that a by-product of the reforms may have been a shift in the number of matters dealt with pursuant to the exceptions or lodged as a court application with a certificate. However, the changed legal dynamics, with the shift in advisers' obligations (s 60D) and the enactment of the "tie-breaker" provision (s 60CC2A), could also mean that greater clarity in the law supports settlement using FDR in some situations to a greater extent than before. On this basis, patterns in the numbers of cases dealt with in the courts under either of the two pathways, may be indicative of shifts in these areas as a result of the reforms, although it is also possible that a mutual influence in these areas may inform the patterns and therefore not be discernable in the data. There may be increased identification of matters involving family violence and child safety concerns, but these matters may be more amenable to resolution by agreement as a result of s 60DA and s 60CC(2A). Each of the family law courts requires applications for final parenting orders to be lodged with either an s 60I certificate, or a form allowing a court to consider whether grounds for an exception are made out.

Figures on the numbers of matters lodged with s 60I certificates or heard pursuant to the exceptions have not been publicly available before. It is worth noting that Figures 2.7 and 2.8 together establish that the "certificate" route is more common than the "exception" route and has been since the period covered by this analysis (2009-10 to 2013-14). However, the disparity between them has narrowed in the more recent period. In 2013-14, there were 5,461 exception-based applications, compared with 6,549 certificate-based ones. This compares with 5,183 exception-based applications and 7,290 certificate-based applications in 2009-10, and suggests a refinement of practice and understanding in connection with the operation of s 60I among lawyers, FDR practitioners and other professionals. Since 2006, the greater number of exception cases suggests both that professional intake and identification processes are operating effectively and that there are instances where lawyers are confident to issue proceedings where FDR would not be appropriate.

It is also notable that in the period after the enactment of the 2012 family violence amendments, there was a very subtle reversal of the downward trend in certificate-based applications, and a similarly subtle decrease in the upward trend in exception-based applications.

Figure 2.7: Number of s 60I certificate-based applications, FCC, FCoA and FCoWA, 2009-10 to 2013-14

Figure 2.8: Number of FDR exception-based applications, FCC, FCoA and FCoWA, 2009-10 to 2013-14

In relation to certificate-based applications, these increased very marginally by 76 cases, from 6,473 (2012-13) to 6,549 (2013-14). Patterns of representation of these categories of cases in the caseload of each court in the pre- and post-reform periods were stable.

As already noted, Figure 2.8 shows a small downward movement in exception-based applications, with these applications falling from 5,512 to 5,461 since the 2012 reforms. It is notable that this type of application is fairly stable as a relative proportion of children-related applications (i.e., children-only and children-plus-property matters) in the FCC and the FCoA, but not the FCoWA. Unlike the other two courts, where changes were small, the FCoWA recorded a substantial increase in the proportion of exception-based cases, rising by 5 percentage points to 57% (data not shown). This suggests that a preference for dealing with matters as exceptions (rather than as proceedings in FDR intake and assessment) may be emerging in WA to a greater extent than before the reforms.

2.3 Form 4 Notices/Notices of Risk

2.3.1 Overview of Notices of Risk

All three courts have forms intended to assist in the identification of matters where allegations concerning child abuse or family violence, or risk thereof, are involved. Over the period reflected in Figure 2.9 (discussed in this section), policy in relation to these forms, as well as the name of the forms and the information to be provided on the forms, has varied. The name applied in this discussion is "Notice of Risk", although in practice parlance they are still sometimes referred to as Form 4 Notices. The aspects of the 2012 family violence amendments that may be reflected in the data in this area are the widened definitions of family violence and child abuse (s 4(AB), s 4(1)) and the expanded obligations in relation to informing courts, and courts asking about, child abuse and family violence. Prior to the 2012 amendments, parties were obliged to file a specified court form to draw allegations of child abuse to the courts' attention (s 67Z). Court staff (and other family law system professionals) had a corresponding obligation to notify prescribed child welfare authorities "as soon as is practicable" if they had grounds for suspecting a child was being abused or was at risk of abuse (s 67A(2)).

As a result of the 2012 family violence amendments, these legislative obligations were extended to family violence in connection not only with children subject to proceedings but also to parties (s 67ZBA). Further, the amendments widened the class of people required to complete a "prescribed form" to notify the court of concerns about abuse and family violence, and about risks of abuse and family violence. As a result of the 2012 amendments, s 67Z and s 67ZBA require an "interested person" in proceedings to file the notice, with "interested person" now specified as including others prescribed by the regulations and ICLs, as well as the parties (s 67Z(4) and s 67ZBA(4)), thereby confirming the requirements of Rule 2.04B, Family Law Rules 2004 (detailed below). Of note is that the 2012 amendments not only impose obligations on courts to inquire about whether children are at risk of abuse, neglect or family violence and whether parties are at risk of family violence (s 69ZQ(1)(aa)), but also set out the court's obligation to take prompt action in relation to a Notice of Risk filed in relation to allegations of child abuse or family violence (s 67ZBB).

Currently, each of the family law courts have a different Notice of Risk, and since their introduction, requirements in relation to these forms have shifted. The forms support the effectuation of the courts' statutory obligations to inquire about family violence and child abuse and to notify prescribed child welfare authority where child abuse is suspected. In Victoria, the Department of Health and Human Services and the Melbourne and Dandenong Registries of the FCoA and the FCoWA implemented a trial involving a child protection practice leader being co-located in each of these registries to facilitate communication between the two systems following the reforms. An evaluation of the trial has been completed (Wall et al., 2015).

In the FCC, all parties are required to complete a Notice of Risk, even where no risks are alleged (the form allows them to indicate that this is the case). This requirement, supported by amendments to Rule 22A.02 of the Federal Circuit Court Rules 2001, has been in place since 12 January 2015. Accordingly, the data reported in this section do not reflect current practice. They do, however, cover a period during which a pilot initiative (the Adelaide Pilot) that lead to the 15 January 2015 change was operating. This pilot involved a requirement for all parenting applications to be accompanied by a Notice of Risk form. It operated in the FCC Adelaide Registry from 4 February 2013 (FCC, 2014).

As noted above, the FCoA has a Form 4 (Notice of Child Abuse, Family Violence, or Risk of Family Violence) that is required to be filed in two circumstances: first, where allegations of child abuse or risk of child abuse are made in relation to a child to whom the proceedings relate (s 67Z); and second, where allegations of family violence or risks of family violence are made by a party to the proceedings that are contended to be relevant to the orders the court should make to the application (s 67ZBA).

The FCoWA also has a Form 4 (Notice of Child Abuse of Family Violence (Or Risk)) that should be filed in circumstances similar to the FCoA.

Apart from the changes made as a result of the 2012 family violence amendments, the main changes in relation to these notices in the period covered by the analysis have been:

• 2014: the form was amended to accommodate matters filed before and after 7 June 2012 by providing pre-and post-reform definitions of family violence and child abuse;
• 2006:
  • the class of cases in which Notices of Risk were required to be filed was widened from cases involving allegations of child abuse or of a risk of child abuse to include allegations of family violence or of a risk of family violence (Rule 2.04B, Family Law Rules 2004); and
  • the class of persons required to file such notices was widened to ICLs and interveners as well as parties (Rule 2.04B, Family Law Rules 2004).

2.3.2 Number of Notices of Risk filed

Figure 2.9 shows that the 2012 family violence amendments accelerated a pre-existing trend toward annual increases in the number of individual Notices of Risk being filed with each registry. The figure shows a count of individual notices filed rather than a count of cases involving notices, and also separates data from the Adelaide Registry of the FCC from the national figures so that the patterns can be seen independent of the effect of the Adelaide Pilot. The analysis based on national figures (with the exception of Adelaide) shows the number of matters in which these notices were filed jumped from 2,229 to 4,064 (an increase of 82%) from 2011-12 to 2012-13, and increased again by 9% to 4,437 in 2013-14.¹¹ This increase in raw numbers was mostly driven by increases in notices being filed in the FCC, with the increase shown in FCoWA and the FCoA being substantially more modest in these terms.

The data relating to the Adelaide registry of the FCC show a continuing steep increase since the reforms, with numbers rising from 1,086 in 2012-13 to 2,424 in 2012-13 (a 123% increase).

Figure 2.9: Number of Notices of Risk filed, FCC, FCoA and FCoWA, 2004-05 to 2013-14

2.3.3 Referral to prescribed child welfare authorities as a result of notices being filed

Since the 2012 family violence amendments, the courts have maintained records on the number of times Notices of Risk are referred to the prescribed child welfare authorities. Figures 2.10 and 2.11 demonstrate an increase in the proportion and number of notices being referred to the prescribed child welfare authorities between 2012-13 and 2013-14 (excluding the Adelaide Registry, where the pilot initiative required the lodgement of a Notice of Risk in all cases in that registry during this period). These data indicate that in 2013-14, 90% of notices filed in the FCoA were referred (cf. 76% in 2012-13) and 88% of notices filed in the FCC (excluding Adelaide) were referred (cf. 74% in 2012-13). In 2012-13, 1,086 applications involving children were filed in the Adelaide Registry and notices were referred to Families SA (the South Australian child protection agency) in relation to 59% of these applications. In turn, Families SA provided a response in relation to 64% of these notices (FCC, 2014).

Figure 2.10: Proportion of Notices of Risk referred to prescribed child welfare authority, FCC and FCoA, 2012-13 to 2013-14

Figure 2.11: Number of Notices of Risk referred to prescribed child welfare authority, FCC and FCoA, 2012-13 to 2013-14

The data considered in this section indicate that most, but not all, notices are referred to the prescribed child welfare authority. The Family Law Courts Client Services Advice No. 1/2012requires the authorised client services officer to notify the prescribed child welfare authority where the notice contains allegations of child abuse or risk of child abuse or allegations of family violence or risk of family violence amounting to abuse of a child or risk of abuse of a child. This advice requires the authorised client services officer to assess whether the relevant allegations comply with the definitions of family violence or abuse in relation to a child in the FLA, and guidance may be sought from their team leader, the Judicial and Registry Services Manager or the Registry Manager, who may consult with the appropriate Registrar if required (Client Services Advice No. 1/2012, p. 3). The data in Figure 2.10 suggest that notices determined not to comply were not referred to the prescribed child welfare authority.

2.4 Family consultant memoranda and reports

As noted earlier, family consultant reports may take the form of a brief memorandum under FLA s 11F that may inform court deliberations in the earlier stages of proceedings. They may also take the form of a more extensive assessment of a family and their circumstances, known as a Family Report. In either instance, a key aspect of these reports is assessing the extent to which risk factors may be present in any particular case.¹² In the context of the adversarial setting in which court proceedings take place, they are an important source of independent, expert insight into family dynamics. In addition to assessing the implications of family dynamics for safety and other issues, family consultants also have a role in providing advice to the courts about children's views. Another way such evidence may be brought before the court is through the report of a Single Expert Witness. Depending on the approach taken by ICLs in different states and territories, the evidence on children's views by the family consultant or single expert witness may be the only source of insight into children's views available to the court (Kaspiew et al., 2014). In the FCoWA, family consultants liaise with child protection and criminal justice agencies to provide information to the court about a family's engagement with these systems when a matter is first brought before the court.

Figure 2.12 sets out the number of cases in which s 11F memoranda were ordered between 2009-10 and 2013-14. The analysis in relation to FCoA and FCC figures indicates that the 2012 family violence amendments were associated with an arrest in the consistent upward movement in these figures. From a low of 3,367 in 2009-10, a year-by-year increase is evident, peaking at 4,618 and declining by a modest 138 in 2013-14. Corresponding data are not available for FCoWA.

Figure 2.12: Number of s 11F memoranda filed, FCC and FCoA, 2009-10 to 2013-14

The number of Family Reports prepared for matters in the three courts is shown in Figure 2.13. The aggregated figure for the three courts show that the implementation of the reforms was associated with the arrest of a slight decline in the number of Family Reports ordered in the preceding financial year. In 2011-2012, 4,683 Family Reports were ordered, falling to 4,563 in 2012-13 and rising again in 2013-14 to 4,661.

Figure 2.13: Number of Family Reports filed, FCC, FCoA and FCoWA, 2011-12 to 2013-14

The differences between the patterns in the FCoWA, FCoA and FCC may reflect varying practice approaches. It is not possible from these data to establish how many cases had both an s 11F memorandum and a Family Report. Nor is it possible to say how many involved evidence and/or a report from a Single Expert Witness.

2.5 Orders for Independent Children's Lawyers

ICLs are another source of engagement with family law children's matters that is independent of the parties to the proceedings. A recent report on ICLs highlighted the important role they play in mitigating the adversarial nature of court proceedings over children through gathering evidence, informing settlement and putting evidence of children's views before the court, where this is consistent with their practice orientation (Kaspiew et al., 2014).

The analysis of the numbers of matters in which orders for ICL involvement were made indicates that the period after the reforms saw an increase in the number of such orders, with 3,981 orders made in the 2013-14 financial year, compared with 3,695 in 2012-13 (Figure 2.14). Notably, the proportionate increase in such orders was greater for the FCoWA ( Figure 2.15 ) and negligible for the other courts. This follows a period of longer term fluctuation, which reached a high for ICL orders in the FCoA and FCC of nearly four in ten matters - up from an average low of about one-quarter in 2011-12.

In summary, these data show that just under three in ten matters involving children also had orders for ICL involvement in 2012-13, with FCoWA practice in this regard producing a slightly higher proportion of matters with ICLs compared with the FCoA and the FCC.

Figure 2.14: Number of ICL orders, FCC, FCoA, and FCoWA, 2004-05 to 2013-14

Figure 2.15: ICL orders as a proportion of final orders involving children (children-only and children-plus-property matters), FCC, FCoA and FCoWA, 2004-05 to 2013-14

2.6 Magellan matters

The number of cases dealt with in the FCoA's Magellan list has diminished since the 2012 family violence amendments (Figure 2.16). The number of matters dealt with in this process dropped from 160 in 2011-12 to 118 in 2013-14. This is consistent with a largely downward trend evident since 2008-09. Magellan matters declined as a proportion of all FCoA children's matters (Figure 2.17) to 8% in 2013-14 from 11% in 2012-13. Figure 2.18 shows that when considered in the context of all FCoA and FCC filings for final orders involving children, Magellan matters reflected just 1% of the combined caseload for children. This suggests a slight decrease in the proportionate representation of Magellan matters in the preceding three years, during which they were between 1.3% and 1.1% of the caseload.

Figure 2.16: Number of Magellan cases started, FCoA, 2004-05 to 2013-14

Figure 2.17: Magellan cases started as a proportion of FCoA children's matters (children-only and children-plus-property), 2004-05 to 2013-14

Figure 2.18: Magellan cases started as a proportion of FCC and FCoA children's matters (children-only and children-plus-property), 2004-05 to 2013-14

2.7 Relocation orders

Since 2009-10, the FCoA and the FCC have maintained records on the number of applications for final orders that involve matters concerning relocation. Corresponding data are not available for FCoWA. These matters are not dealt with differently under the FLA from other types of parenting matters, but there are principles that have developed in case law that are applicable to these kinds of applications. Recent appellate consideration of the issue of relocation in Horner v Voss¹³ and Sawant v Karanth¹⁴has confirmed that the best interests of the child are the paramount consideration in such cases, with the parent's desire to relocate having to give way to the child's best interests where the two considerations are inconsistent.¹⁵ In Horner v Voss for example, the mother's long-held ambition to accept an overseas posting was found to be consistent with the children's best interests, in circumstances where "the determining factor [was] … whether or not the proposed relocation would interfere with the child's right to maintain a meaningful relationship with their father".¹⁶ As the mother was identified by the court as being trusted to "actively encourage and facilitate the children's relationship with the father", and had made provision for the children to spend significant time with the father,¹⁷ she was permitted to relocate overseas with two of the parties' three children for a period of three years.

The analysis in Figure 2.19 shows that the number of applications for final orders classified as involving relocation diminished in both courts after the 2012 family violence amendments, falling on an aggregate basis from 155 to 122. This represents a change in a pattern of relative stability in both courts for the preceding two years. Figure 2.19 indicates that the first year covered by the data reflects a fall in these applications between 2009-10 and 2010-11, from 175 to 160 on an aggregate basis. By 2013-14, applications further reduced from 155 in 2012-13 to 122 on an aggregate basis.

Figure 2.19: Number of child relocation orders filed (permitted and denied orders), FCC and FCoA, 2009-10 to 2013-14

Figure 2.20 shows that the applications for relocation orders represented a very small proportion of final orders involving children, particularly in the FCC.

Figure 2.20: Child relocation orders filed (permitted and denied orders) as a proportion of final orders involving children (children-only and children-plus-property matters), FCC and FCoA, 2009-10 to 2013-14

2.8 Summary

The administrative data provided by the FCoA, FCC and FCoWA indicate that there have been small increases in applications for final orders in matters involving children in the 2013-14 period compared with earlier years. In the 2013-14 financial year, 14,826 such applications were submitted, with this figure reflecting an increase of 442 from the previous financial year. Most of this shift was associated with filings in the children-plus-property category.

Applications for consent orders filed in the FCoA and the FCoWA have increased in these two courts since 2011-12, particularly in the FCoA. In this court, the total number of applications for consent orders in 2013-14 had risen by 2,493 (to 12,986) since 2011-12. The increase in the FCoWA for the same time period was more modest by comparison - an increase of 182 to 2,504. Reflecting a similar trend as the applications for final orders, much of this increase appeared to be associated with changing dynamics relating to property matters.

For cases that followed a non-FDR pathway, the administrative data indicate that the "certificate" route (where parties attended FDR but were issued with a s 60I certificate) was more common than the "exception" route (where it was determined that parties were not required to attempt FDR). There was a small increase in the former and a similarly small decrease in the latter pathway in 2013-14 compared to the previous year. Overall, however, there was a trend towards the narrowing of the numbers using each non-FDR pathway. Reflecting this, in 2013-14, there were 5,461 exception-based applications compared with 6,549 certificate-based applications. In comparison, in 2009-10 there were 5,183 exception-based applications and 7,290 certificate-based applications.

The 2012 family violence amendments markedly increased the previous gradual upward trend in the number of Notices of Risk being filed. Excluding the Adelaide FCC registry (due to the effect of an Adelaide pilot initiative), in 2013-14, 4,437 Notices of Risk were filed, an increase from 4,064 in 2012-13, following a marked jump from 2,229 in 2011-12. Most of this increase reflects changes in the FCC, with the FCoA and FCoWA having much smaller increases.

Data collected since the implementation of the 2012 family violence amendments also indicate an increase in the proportion of Notices of Risk being referred to prescribed child welfare authorities. In the FCoA, these data indicate that 90% of notices filed were referred in 2013-14 (cf. 76% in 2012-13). In the FCC (excluding Adelaide), 88% of notices filed were referred in 2013-14 (cf. 74% in 2012-13).

The number of family consultant memoranda ordered decreased following the implementation of the 2012 family violence amendments. Following a low of 3,367 in 2009-10 in the FCoA and FCC, there was a consistent increase in family consultant memoranda ordered until 2012-13, when the number peaked at 4,618. For the most recent period, 2013-14, there was a small decline of 138. In contrast, the number Family Reports ordered across all three courts has been relatively steady since 2011-12, when 4,683 Family Reports were ordered across all three courts. There was a slight increase in the most recent period (2013-14) to 4,661, arresting a small decline to 4,563 in 2012-13.

The administrative data reported in this section indicate that following the 2012 family violence amendments, there was an increase in the number of matters for which ICL involvement was ordered. In 2013-14, 3,981 orders for ICL involvement were made, compared with 3,695 in 2012-13. There was a higher degree of increase in such orders for the FCoWA. While there has been some fluctuation since 2004-05 in the proportion of matters where an ICL has been ordered, the proportion of matters with such orders for 2013-14 were 25% in the FCoA, 27% in the FCC, and 29% in the FCoWA.

The number of cases dealt with in the FCoA's Magellan list has declined since the 2012 family violence amendments. After peaking at 268 cases in 2008-09, the number dropped markedly to 165 in 2010-11. Since then there has been a more gradual decline, with 118 cases in 2013-14. There has been a relative stable number of matters involving a relocation application over the last two years in the FCoA and FCC (data for the FCoWA are not available). There has been a slight decrease in such applications since the 2012 family violence amendments, with 122 such matters across both courts in 2013-14. This represents less than 1% of all final orders involving children.

3. Court files analysis and the 2012 family violence amendments

This part of the report sets out the findings of the Court Files Study of the Court Outcomes Project. This component is based on data from 1,892 files involving children's matters in the Melbourne, Sydney and Brisbane registries of the FCoA, and the FCC and FCoWA. The discussion focuses on four main issues relevant to the research questions for the Evaluation of the 2012 Family Violence Amendments:

• whether more parents have been disclosing allegations of family violence and child abuse;
• the evidentiary profile of children's matters before and after the 2012 family violence amendments;
• whether there is any indication of change in the extent to which evidence in relation to personal protection orders and child protection involvement is provided; and
• the extent to which patterns in court orders for parental responsibility and care time have changed.

The analysis is based on three separate pre- and post-reform subsamples:

• matters proceeding to judicial determination (judicial determination);
• matters commencing on a litigation pathway but resolving by consent prior to judicial determination (consent after proceedings); and
• matters settling by agreement, with orders being presented to the courts for endorsement as consent orders (consent without litigation).

A further analytic approach is based on comparing three categories:

• matters where family violence and child abuse were both raised;
• matters where either family violence or child abuse was raised; and
• matters where neither family violence nor child abuse were raised.

This approach supports an understanding of how the 2012 family violence amendments have affected parenting arrangement outcomes (parental responsibility and care time) in matters resolved by judicial determination, consent after proceedings, and consent without litigation. The first part of this discussion provides an overview of demographic and other characteristics of the pre- and post-reform samples. It then sets out findings on the prevalence of family violence and child abuse allegations, the evidentiary profile of children's matters, and the patterns in orders for parental responsibility and care time.

3.1 Demographic profile

This section presents the demographic profile of parties, obtained from the quantitative data from court files involving children's matters finalised in the three family law courts.

Overall, the profiles of the samples from the pre- and post-reform periods were similar. There were, however, some small but notable changes. These included an increase in the post-reform period in the proportion of fathers as applicants in proceedings, and a related decrease in the proportion of mothers as applicants. The time it took for cases to progress from initial application in the post-reform period more than doubled compared to the pre-reform period.

3.1.1 Parties' role in the family

Table 3.1 indicates that the vast majority of parties in both the pre- and post-reform periods were parents. Pre-reform, 97% of applicants and 100% of respondents were either mothers or fathers. Similarly, post-reform, 97% of applicants and 99% of respondents were either mothers or fathers. Maternal or paternal grandparents and parties designated as "other" accounted for very small proportions of applicants and respondents in both periods.

The most marked difference between the pre- and post-reform periods in relation to the parties' role in the family was in the proportion of applicants who were fathers. Pre-reform, 53% of applicants were mothers, and 44% were fathers, while post-reform, the proportion of applicants who were mothers decreased to 47% and the proportion of fathers increased significantly, to 50%. There was a corresponding increase in the proportion of respondents who were mothers: pre-reform, this figure was 45%, increasing to 52% post-reform. Conversely, there was a decrease in the proportion of respondents who were fathers across the two periods, from 54% pre-reform to 47% post-reform.

3.1.2 Employment, country of birth, Indigenous status and legal representation

Employment characteristics

In both the pre- and post-reform periods, around three times the number of fathers than mothers were in full-time employment (Table 3.2). While a higher proportion of mothers than fathers were employed part-time, the majority of women from both time periods (58% pre-reform, 55% post-reform) were not employed (unemployed or not in the workforce). There was a corresponding higher proportion of women than men whose main source of income was government benefits (28% cf. 9% respectively pre-reform; 25% cf. 8% post-reform).

Country of birth

Around three-quarters of applicants in both periods were born in Australia, with figures similar between mothers and fathers (Table 3.2).

Indigenous status

The proportion of people who identified as Aboriginal and/or Torres Strait Islander was stable across the two time periods (under 2%) (Table 3.2). The figures are slightly lower than the proportion of the population who identify as Aboriginal or Torres Strait Islander, as averaged out across the four states where data collection took place (3%).

Legal representation

The majority of applicants had a private solicitor, with a slightly higher proportion of mothers compared with fathers falling in to this category (Table 3.2). More mothers than fathers had publically funded legal representation (8% cf. 6% pre-reform; 7% cf. 4% post-reform). About a fifth of all applicants in both time periods had no legal representation.

3.1.3 Age, duration of relationship, duration of case and relationship status

Age

Table 3.3 indicates that there was little variation in the age of parties between the pre- and post-reform periods. When examined by determination type (Table 3.4) and by court (Table 3.5) there was also little variation in the mean age of parties.

Duration of relationship

Table 3.3 demonstrates that overall, there was very little change in the length of relationship at final separation. However, there was slight variation in relationship duration when determination type was taken into account. Table 3.4 shows that cases determined by judicial determination had the lowest mean duration of relationship in both the pre- and post-reform periods, with both being at 7 years. This increased to 8 years for both pre- and post-reform cases resolved by consent after proceedings. The longest mean relationship duration was for parties involved in cases determined by consent without litigation: 10 and 11 years respectively in the pre- and post-reform periods. The shorter length of relationships for parties involved in adversarial determinations may indicate a greater volatility in these relationships than for those parties whose cases are determined by consent.

Duration of case

There was a substantial increase from 2 to 5 months in the duration of cases from the application to the final order from the pre-reform period to the post-reform period (Table 3.3). Note, however, that this substantial variation between the pre-reform and post-reform samples may have arisen in part due to the shorter time period from which the pre-reform sample was drawn (1 July 2009-30 June 2010, compared to the post-reform sample period of 1 July 2012-30 November 2014). When considered in relation to determination type (Table 3.4), cases determined by adversarial pathways had the greatest increase in mean duration. Cases determined by judicial determination almost doubled their mean duration, from 5 months pre-reform to 8 months post-reform. For cases determined by consent after proceedings, there was a similar increase, from 4 months pre-reform to 8 months post-reform.

When considered in relation to court type, the FCC had a significant increase in duration of cases, from 4 months pre-reform to 8 months post-reform (Table 3.5). The duration of cases in the FCoA increased from 1 month pre-reform to 2 months post-reform, with the shorter duration times in the FCoA compared the FCC reflecting the proportion of cases that are determined by consent without litigation in the former court. The duration of cases in the FCoWA also significantly increased, from 2 months pre-reform to 5 months post-reform.

Relationship status at time of final separation

Overall, there was little change in the relationship status of the parties at the time of final separation between the pre- and post-reform periods (Table 3.3). When considering determination type (Table 3.4), across both periods there were clear patterns that cases determined by consent without litigation had the highest proportion of couples being married at the time of final separation - 72% pre-reform and 76% post-reform. The proportion of married couples at separation dropped to around half of those whose cases were determined by judicial determination (38% pre-reform and 49% post-reform) or consent after proceedings (56% pre-reform and 53% post-reform). Cases determined by judicial determination had the highest number of parties with a relationship status categorised as "other" (20% pre-reform and 12% post-reform). Similar to the duration of relationship (discussed above), this factor may be reflective of the relative complexity of relationships in cases determined by judicial determination.

3.1.4 Ages and number of children subject to proceedings

Ages of children

The ages of children subject to proceedings were stable over the pre- and post-reform periods (Table 3.6). The majority of children were in the 5-11 years old range (51% pre-reform and 53% post-reform).

When considering the age of children by determination type (Table 3.7), overall there tended to be a slightly higher representation of younger children subject to proceedings in adversarial pathways across both time periods. Of children in the 0-4 year age group, 31% in both the pre-reform and post-reform samples were involved in judicially determined cases, 25% pre-reform and 27% post-reform were involved in consent after proceedings cases, and 26% pre-reform, and 21% post-reform were involved in cases determined by consent without litigation.

Reflecting the fact that older children are slightly less likely to be subject to adversarial proceedings than younger children, the FCoA had lower proportions of younger children than the FCC across both time periods, most likely due to the fact that the FCC does not have a dedicated process for consent orders (Table 3.8). In the FCoA sample, 25% of children pre-reform and 21% post-reform were aged 0-4 years. In the FCC sample, 27% of children pre-reform and 28% post-reform were aged 0-4 years.

Number of children per file

Table 3.9 indicates that the number of children subject to proceedings per file was stable across the pre- and post-reform periods. The vast majority of cases involved one or two children (86% in both periods).

In light of findings from Wave 3 of the Longitudinal Study of Separated Families about recurrent use of FDR processes by families with complex features (Qu et al., 2014, p. 63), analysis of the extent to which the Court File Study samples involved repeated litigation was conducted. Figure 3.1 indicates that over one-third of judicial determination files (38%) and almost one-third of consent after proceedings files (32%) in the Court Files Study samples involved families that had previously had a matter before the court.

Figure 3.1: Cases in which the parties had previously had a case before the courts, judicially determined and consent after proceedings files

Notes: Data have been weighted. No. of observations: judicially determined, n = 613; consent after proceedings, n = 774.

3.1.5 Summary

The demographic profiles of the samples from the pre- and post-reform periods were relatively stable. Some notable changes did occur, however, most markedly in relation to the duration of cases. The mean number of months for a case to proceed from initial application to final order increased substantially between the pre- and post-reform periods. This change was most apparent in cases determined by judicial determination and consent after proceedings. However, some allowance should be given to the longer time period in which the post-reform sample was collected. There was a much smaller increase in the duration of cases determined by consent without litigation. A small change also occurred in the proportion of applicants who were fathers, with this figure increasing in the post-reform period. There was a concomitant shift in the proportion of mothers who were applicants and respondents, with the former decreasing and the latter increasing in the post-reform period.

3.2 Allegations of family violence and child abuse

An important aim of the 2012 family violence amendments was to improve the identification of concerns about family violence and child abuse. The legislative provisions relevant to the achievement of this aim include those imposing obligations on courts to inquire about these issues and on parties to disclose these issues. Also relevant are the provisions that removed perceived disincentives to disclosure, including the removal of the "friendly parent" criterion in s 60CC and the provision in relation to costs orders for knowingly made "false statements".

Table 3.10 sets out the number of allegations of family violence and child abuse that were made across the Court Files Study sample, including matters in the three determination categories (judicial determination, consent after proceedings and consent without litigation). Table 3.10 indicates that, cumulatively, 29% of pre-reform matters involved an allegation, increasing to 41% of matters in the post-reform sample. The proportion of matters in which both issues were alleged doubled from 8% to 17%, a statistically significant increase. Child abuse allegations alone were substantially less common than allegations of both violence and abuse or of family violence alone. Nevertheless, a statistically significant increase is evident in relation to child abuse allegations alone, from 3% to 5%, but the rate of allegations of family violence alone remained relatively stable across both periods. The proportion of matters in which neither family violence nor child abuse were alleged decreased significantly from the pre-reform (71%) to the post-reform (59%) period.

3.2.1 Child abuse allegations: A detailed overview

An overview of the prevalence of different types of child abuse allegations (psychological abuse, physical abuse, neglect, and sexual abuse), against whom they were raised, and who raised them is set out in Table 3.11. Overall, the extent to which allegations of child abuse were raised after the 2012 reforms rose to a statistically significant extent, by nearly 11 percentage points, with 22% of files in the total sample including allegations of this nature. Allegations of the four specific types of abuse all rose to statistically significant extents after the reforms, and their relative distributions remained similar. The most common type of abuse alleged was psychological abuse, with the proportions of cases involving such allegations increasing from 6% to 13% after the reforms. The proportion of cases involving allegations of physical abuse rose from 6% to 12%, and neglect went from 4% to 10%. Allegations of sexual abuse were evident in just under 2% of cases pre-reform, compared with just over 3% of cases post-reform.

The middle panel of Table 3.11 shows the results of analyses examining against whom child abuse allegations were raised. There appear to be shifts in these patterns, but they fall short of statistical significance. The proportion of cases in which allegations were raised against both parents increased from 8% to 11%. Allegations were raised against fathers in just over half the post-reform cases, rising from 43% in the pre-reform sample. In contrast, the proportion of cases in which allegations of child abuse against mothers were made fell from 29% to 23%. The proportion of cases in which someone other than a parent was the alleged perpetrator of child abuse also fell from 20% to 15%.

The lower panel of Table 3.11 describes who raised the child abuse claims, pre- and post-reforms. Changes in this area are not statistically significant. The proportion of cases in which allegations were raised by both parents are consistent with those in the middle panel, with this occurring in 8% of cases pre-reform and 12% post-reform. The proportion of cases in which fathers raised allegations fell from 35% to 29%. Conversely, the proportion of cases in which mothers raised allegations increased from 45% to 53%. As with claims made against people other than parents, claims made by people other than parents fell from 13% to 6%.¹⁸

3.2.2 Allegations of family violence: A detailed overview

The data in Table 3.12 provides a detailed description of the nature of family violence allegations (including emotional abuse or physical violence) before and after the reforms, based on the total sample. The first panel indicates that the prevalence of these allegations increased after the reforms to a statistically significant extent, with 36% of post-reform cases involving these allegations, compared with 26% pre-reform. The prevalence of allegations of both physical and emotional abuse increased to a statistically significant extent, but this was more marked for physical violence. Prior to the reforms, about one in five cases included allegations of emotional abuse, and this increased to 28% after the reforms. For physical violence, the proportion of cases involving such allegations rose from 17% to 28%.

The second panel sets out findings on who was alleged to have perpetrated family violence. These findings also indicate statistically significant shifts. The proportion of allegations being raised against both parents in a matter rose from 13% to 21%. The proportion of cases in which allegations were raised only against fathers remained the majority in both periods, but recorded a fall from 70% to 65%. The proportion of cases in which allegations were raised only against mothers was stable at 9%, while those raised against individuals or parties other than parents fell from 8% to 5%.

The third panel sets out the results of analyses assessing who made the allegations. These findings largely reflect those in the second panel, with statistically significant increases in allegations being raised by both parents, from 16% to 23%. A slight reduction occurred in the proportion of files in which fathers alone made allegations (from 12% to 10%), and a slight increase in the proportion in which mothers alone made allegations (63% to 66%) was evident. The proportion of cases in which non-parents raised allegations fell from 9% to 2%.

The fourth panel sets out who was alleged to be the victim of the family violence. Again, patterns are broadly consistent with the findings in the earlier panels. The proportion of files in which both mothers and fathers were alleged to be victims rose from 11% to 20%. This largely reflects a decrease in the proportion of files in which mothers were alleged to be victims, which fell from 67% to 61%. Proportions of files in which only fathers were alleged to be victims were stable (9%).

The lower two lines of the table focus on children's experiences of family violence. The proportion of cases in which allegations of children being exposed to family violence increased by ten percentage points to 58%. In contrast, the proportion of cases in which children were alleged to also be victims of family violence was virtually stable at 39% pre-reform and 40% post-reform.

3.2.3 Allegations of violence and abuse by determination type

Table 3.13 sets out the extent to which allegations of family violence and child abuse were raised in the pre- and post-reform samples according to the way in which matters were resolved. The findings depicted in the table indicate that in all determination types, allegations of family violence and child abuse together were raised more frequently after the reforms than before. As noted at section 3.4.2, in consent matters, the courts require the parties to disclose whether there has been previous engagement with systems involving prescribed child welfare authorities agencies or personal protection orders.¹⁹ Each party (or their lawyer, where lawyers are involved in the preparation of applications for consent orders) is required to complete an annexure that requires them to certify: whether or not they (the party or their lawyer) consider the relevant child to have been or to currently be at risk of being "subjected to or exposed to abuse, neglect or family violence"; whether or not either party has been or is currently at risk of family violence; and whether or not allegations of abuse, neglect or family violence have made in proceedings, and if they have, to specify in which court documents the allegations have been raised, and how the proposed orders attempt to deal with these allegations.²⁰ These requirements explain how allegations of abuse and/or family violence are recorded in the consent sample data collection.

In judicial determination files, the proportion of matters in which both issues were raised almost doubled, from 20% pre-reform to 38% post-reform. The increase in both issues being raised was less substantial for consent after proceedings sample, in which both allegations were raised in 16% of cases pre-reform and 23% of cases post-reform. Allegations of family violence in the absence of child abuse allegations diminished in both samples, falling from 33% to 27% in the judicial determination sample, and from 35% to 29% in the consent after proceedings sample. Allegations of child abuse alone were raised in 11% of pre-reform judicial determination cases and 4% post-reform, but this pattern was reversed in the consent after proceedings sample, with allegations more than doubling after the reforms, from 4% to 9%.

The proportion of matters in which neither issue was raised fell from 37% to 31% in the judicial determination sample, and from 46% to 39% in the consent after proceedings sample.

Overall, the differences in allegations of family violence and child abuse between the pre-reform and post-reform periods within both the judicial determination and consent after proceedings categories were statistically significant.

The data on material pertinent to family violence and child abuse that were revealed in applications for consent without litigation indicate that there was little change in relation to family violence allegations, while child abuse allegations were slightly more likely to be raised after the reforms. Before and after the reforms, very small minorities of these cases included information about child abuse, but this increased off a very low base of 0% to 1%.

The lower panel of Table 3.13 shows the proportion of matters in which any of four kinds of allegations raising protective concerns (any abuse, family violence, children's exposure to family violence, children being victims of family violence) were made in each resolution type sub-sample, pre- and post-reform.

In judicial determination files, allegations in relation to all of these types of concerns rose by between 11 and 14 percentage points after the reforms. The proportions of each type of concern in judicial determination files after the reforms were: child abuse: 42%; family violence: 65%; children being exposed to family violence: 37%; and children being victims of family violence: 31%.

In consent after proceedings files, allegations of each of these kinds of concerns increased, but to a much lesser extent, except for child abuse. The proportion relating to child abuse allegations rose by 12 percentage points to 32%. The biggest increase in relation to the other kinds of concerns for this sub-sample was in relation to children witnessing family violence, which rose by 5 percentage points to 32%. A very modest increase was evident for family violence allegations (3 percentage point to 53%), and allegations that children were family violence victims decreased slightly (by 2 percentage points to 20%).

3.2.4 Factual issues raised

As explained at the outset, a hierarchal range of factual issues is set out in s 60CC for the court to consider in determining the nature of the orders that will be in a child's best interests in any individual case. These factual issues are the two "primary considerations", the child's right to a meaningful relationship with each parent after separation, and the need to protect them from harm from abuse or exposure to family violence. The latter consideration is to be given greater weight under s 60CC(2A). The list of "additional considerations" (s 60CC(3)) includes 13 specific items, plus a 14th "catch-all" provision referring to any other fact or circumstance. Notably, the 2012 amendments also remove reference to the extent to which a parent has facilitated the child's relationship with the other parent. That factor was included in the data collection to support the assessment of the effects of this element of the 2012 amendments. This factor was only explicitly referred to in the s 60CC list between 2006 and 2012; however, research prior to the 2006 amendments established it was an important factor in decision making, even without explicit legislative recognition (Kaspiew, 2007).

The Court Files Study data collection instrument was designed to capture information on these issues in fields based on the s 60CC factors, plus some additional ones identified as being potentially relevant. These are factors that could be considered under some of the issues specified under s 60CC, but the instrument captured them separately for conceptual clarity. This strategy was adopted in light of data from the ESPS, which demonstrated that in addition to family violence and child abuse, a range of other complex issues, including substance abuse and mental ill health, are not uncommon for parents who use family law services, especially lawyers and courts (Synthesis report, section 2.3.3). The factual issues included in the data collection instrument and reflected in this section can be grouped into factors that:

• raise protective concerns - parental family violence, parental alcohol and substance misuse, protection from abuse, parental mental health, protection from high conflict, housing or environmental neglect, criminal history, and family violence orders;
• relate to the quality and maintenance of parent-child relationships - the child's right to a meaningful relationship with their parents, parenting capacity, and the extent to which a parent has facilitated the other parent's relationship with the child;
• relate to parenting history - parental engagement with their child, and their history of financial support, including child support; and
• are child-related - these include the effects of care-time arrangements, their views, the possibility that their views were influenced by the other parent, whether they have special needs, their Indigenous or other cultural background that should be taken into consideration.

Table 3.14 shows the frequency with which the factual issues specified were raised in children's matters before and after the reforms. The findings indicate that the frequency with which protection-related issues were raised increased substantially in the post-reform sample. Statistically significant increases included the frequency with which family violence was raised, which increased by 10 percentage points to 35%, and protection of the child from abuse issues which doubled from 11% pre-reform to 22% post-reform. Statistically significant increases were also evident in the proportion of matters in which concerns were raised about parental alcohol or substance misuse (up 6 percentage points to 22%) and mental health (up 5 percentage points to 16%).

For parent-child relationship issues, the child's right to a meaningful relationship with their parents was also raised more frequently after the reforms, increasing by a statistically significant 4 percentage points to 11%. Consistent with previous research indicating that the relationship facilitation principle has recognition in family law practice (independent of any statutory recognition), the proportion of cases in which this was an issue increased by a statistically significant 4 percentage points to 21% (see section 4.2.2 for a discussion of this principle in post-reform judgments). However, even the pre-reform data in the current study (reflecting the period when the principles did have explicit legislative recognition) suggest a reduction in these cases after the 2006 reforms. The findings of the Evaluation of the 2006 Family Law Reforms indicate that the issue was raised in 31% of the judicial determination sample and 19% of the consent after proceedings sample (Kaspiew et al., 2009, p. 341).

Most of the children's characteristics group of factors were present in stable proportions in each time frame, although slight decreases were evident for some. Thus, the special needs of children were raised in identical proportions in each time frame. The effects of care-time arrangements were raised slightly less often after the reforms - down by 3 percentage points to 10%. The child's views factor was stable, being raised in 8% of matters both pre- and post-reform. This finding tends to suggest that the inclusion of an explicit reference to the United Nations Convention on the Rights of the Child in the Objects provision (s 60B(4)) has not at this stage had an influence on the way in which children's views are treated in the framing of litigation strategies. In this context, a further finding set out in Table 3.14 suggests that litigation strategies after the reforms may in fact have been increasingly framed in a way that complicates the questions of children's views. Arguments suggesting that the child's views have been influenced by the other parent have increased in frequency by a statistically significant 3 percentage points to 7%. In the Evaluation of the 2006 Family Law Reforms, 3% each of the judicial determination and consent after proceedings samples had material on the file indicating this was an issue (Kaspiew et al., 2009, p. 341).

The increase in frequency with which the factors about children's views being influenced and the relationship facilitation issue were being raised suggest that raising controversial arguments concerning "estrangement" or "alienation" in parent-child relationships may have gathered pace following the reforms. These arguments may co-occur with arguments about protective concerns, operating in such a way that the "estrangement" or "alienation" allegations are raised to counter protective concerns. The psychological constructs on which these arguments are based are controversial in the social science literature, in family law commentary and analysis, and in case law. This issue is discussed further in Chapter 4, in the discussion of published judgments.

Factual issues by determination type

Table 3.15 sets out the extent to which the factual issues identified in the preceding analysis were relevant according to determination type. This discussion centres on the judicial determination and consent after proceedings sub-groups, with a particular focus on the distribution of factual issues across these two sub-groups and the extent to which this distribution shifted after the reforms.

Comparison of the frequency with which particular factual issues are present in matters in the two samples based on determination type indicates some shifts in the relative distribution of the factual issues in the two samples pre- and post-reform, consistent with the absolute shifts in prevalence of particular issues raised in the preceding section. In relation to several factual issues relevant to protection from harm, the findings in relation to the post-reform sample show a widening disparity between the two samples in comparison with the pre-reform patterns. This suggests some shift in the dynamics that influence whether matters continue on a litigation pathway or are resolved before or during trial as a result of the reforms. It is notable that matters where the following factual issues were raised were substantially more likely to be present in the judicial determination samples in comparison with the consent after proceedings samples post-reform:

• family violence - a comparatively even distribution between the two determination types pre-reform was converted to a 13 percentage point disparity post-reform, with this issue present in 65% of judicial determination and 52% of the consent after proceedings cases post-reform;
• substance misuse - a 10 percentage point disparity pre-reform became an 11 percentage point disparity post-reform, with this issue relevant in 42% of judicial determination and 31% of consent after proceedings files post-reform;
• parental mental health issues - a pre-reform disparity of 2 percentage points, which was marginally more frequent in the consent after proceedings sample, was converted into a 10 percentage point disparity after the reform, with more judicial determination (33%) files involving this issue than those resolved by consent after proceedings (23%).

These data indicate that not only are these issues being raised more frequently in proceedings following the reforms, but the cases in which they are raised have become less likely to be amenable to resolution by agreement at some stage on the litigation pathway in comparison to the pre-reform context.

A further area where the data suggest a shift in dynamics regarding resolution in litigated or partly litigated matters is in relation to children's views as a factual issue. Here, a pre-reform disparity, which saw this raised as an issue in close to twice as many consent after proceedings matters as judicial determination matters (12% cf. 19%), narrowed to a disparity of only 1 percentage point. The extent to which this was raised as an issue in the post-reform judicial determination sample (12%) shows little change, but there has been a reduction in the frequency of its relevance in the consent after proceedings sample (13%). A contention that is raised in litigation to counter arguments based on children's views as a factor to be taken into consideration, the argument that their views have been influenced and should therefore be considered cautiously, increased in the post-reform judicial determination sample (5% to 8%). This argument was also raised moderately more frequently in the post-reform consent after proceedings sample, increasing from 9% to 12%. The treatment of arguments of this nature in published judgments is discussed further in Chapter 4.

3.3 Risk assessments and evidentiary profiles

This section considers the evidentiary profile of matters where allegations of family violence and/or child abuse were raised pre- and post-reform in order to support understanding of the effect of the reforms in this respect. The first part of the discussion focuses on Family Reports and their inclusion of risk assessments, and the second part considers the evidentiary profiles of these matters more broadly. It should be noted that in 2015, family consultants started trialling a family violence screening questionnaire that is an adaption of the Mediators' Assessment of Safety Issues and Concerns (MASIC), Practitioner Version 2 (Beck, Holtzworth-Munroe & Applegate, 2012, as cited in FCoA & FCC, 2015).

3.3.1 Family Reports and risk assessments

Table 3.16 presents findings on three related issues:

• the extent to which Family Reports were present in files for matters in which allegations of family violence and/or child abuse were made;
• the extent to which the Family Report explicitly discussed issues related to the consideration of risk; and
• whether or not the discussion in the report indicates a conclusion in relation to risk assessment, where this is explicitly referred to in the report on the file.

Note that the data in Table 3.16 reflect the information available from the Family Reports included in the sampled files. While the Australian Standards of Practice for Family Assessments and Reporting (FCoA, FCC, & FCoWA, 2015) provide guidelines in relation to the provision of risk assessments, it was expected that not all Family Reports in files included in the pre- and post-reform sample for this study reflect these guidelines. Further, the exercise of professional judgment may also influence the extent to which risk assessments are discussed in Family Reports, as these are released to the parties and this issue may require careful handling for a range of reasons, including safety.

The findings set out in the first panel of Table 3.16 demonstrate that the availability of Family Reports for matters involving family violence and/or child abuse allegations increased substantially after the reforms, rising from one-third to just over one-half of matters where these issues were raised.

The middle panel of Table 3.16 shows the extent to which an explicit indication that a risk assessment had been conducted was evident in the Family Reports on the files in which allegations of family violence and/or child abuse were raised. Such indications were evident in three in ten cases after the reforms, representing an increase of about 8 percentage points.

The last panel of the table depicts the results of analyses about the conclusions expressed by the family consultant in relation to the Family Reports in which risk assessments were explicitly referred to. The sample available of pre-reform Family Reports was too small to sustain analysis, so the table only presents post-reform findings. For these cases, conclusions reflecting a presence or absence of risk were evident in close to commensurate proportions of cases: 28% and 29% respectively. For a substantial proportion (43%), coding indicates the Family Report writer was unable to form a view.

3.3.2 Evidentiary profiles

This section examines the extent to which other kinds of evidence were presented to the courts in matters where family violence and/or child abuse allegations were raised in the pre- and post-reform judicial determination and consent after proceedings samples. Table 3.17 sets out the extent to which ten specific kinds of evidence were present in the files, in addition to one catch-all category of "other". The types of evidence covered include that which reflects engagement with police and justice systems (personal protection orders, other police evidence) and prescribed child welfare authorities, as well as more general evidence from medical and educational settings, Single Expert Witnesses and corroborative affidavits from people other than the alleged victim.

The findings show fairly consistent levels in the distribution of the different kinds of evidence on the files between the pre- and post-reform samples, although some areas show statistically significant increases. The most common piece of evidence before and after the reforms was a personal protection order, and the prevalence of these remained similar in both time frames (further information about personal protection orders is set out in the next section). Evidence generated from other types of engagement with police was the next most common, and showed a small but not statistically significant increase after the reforms, rising from 8% to 11%.

Areas where statistically significant increases are shown were in relation to two types of evidence generated from engagement with prescribed child welfare authorities. Evidence of this nature was twofold. One type was evidence generated through orders made under FLA s 69ZW, or s 202K of the Family Court Act (WA) requesting prescribed child welfare authorities provide information from their files on the history of a family. The proportion of matters with this type of evidence increased from 1% to 3% (statistically significant). The other, wider type of child-protection-related evidence relates to information about child protection engagement other than that provided under FLA s 69ZW or s 202K of the Family Court Act 1997 (WA), and covers evidence generated about engagement with child protection systems in other ways. The proportion of matters where evidence of this nature was on the file also increased to a statistically significant extent from 4% to 8%. These changes are consistent with the obligations imposed by the 2012 family violence amendments requiring parties to disclose child protection engagement, and the courts to enquire about such engagement.

The other areas where statistically significant increases were evident were in relation to medical evidence (increasing from 1% to 4%), and Single Expert Witness reports (increasing from 1% to 3%).

Overall, the proportion of cases involving family violence and/or child abuse allegations where evidence was adduced from sources other than the parties increased from 46% pre-reform to 49% post-reform.

More specifically, Table 3.18 compares the extent to which the 11 categories of evidence were present in judicial determination and consent after proceedings files in the pre- and post-reform context. While there were statistically significant differences between the evidence on judicial determination files and consent after proceedings files in the pre-reform context with regard to information about child protection engagement other than s 69ZW or s 202K information (judicial determination: 10% cf. consent after proceedings: 2%) and medical evidence (judicial determination: 4% cf. consent after proceedings: 0%), there were no differences of statistical significance between these file types in the post-reform context. Of note, a greater proportion of post-reform consent after proceedings files contained information about child protection engagement other than s 69ZW or s 202K information (9%) than did post-reform judicial determination files (7%). Excluding personal protection orders (which decreased from 30% pre-reform to 27% post-reform) and evidence from children's contact services (which remained stable at 0%), increases in the presence of all categories of evidence were evident when comparing the pre- and post reform consent after proceedings file data. In relation to judicial determination files, increases were also recorded with respect to all categories of evidence excluding information about child protection engagement other than s 69ZW or s 202K information (pre-reform: 10% cf. post-reform: 7%).

3.3.3 Personal protection orders

This section examines the extent to which personal protection orders (PPOs) are referred to in material on family law court files. The 2012 family violence amendments changed the approach to these orders, under s 60CC(3)(k). Previously, the provision referred to orders made on a final or contested basis as a factor the court should have regard to in considering what parenting orders would be in a child's best interests. Now, the provision directs attention to inferences that can be drawn from "any family violence order" that applies or had applied to a child or family member, including the nature of the order, the circumstances in which it was made, any evidence admitted in the proceedings in relation to the order, and any findings made by the court that made the order. Accordingly, to support an assessment of the effects of this change, part of the data collection in the Court Files Study focused on information about personal protection orders. An obligation to inform courts about relevant family violence orders has existed in s 60CF since the 2006 family law reforms.

Table 3.19 indicates that the proportion of cases in which information about a personal protection order was included on the file rose from 17% to a quarter after the reforms, representing a statistically significant change. In the pre-reform sample, 29% of these cases had references to information about final orders, compared with 26% post-reform. The information on the file pertained to interim personal protection orders in 45% of pre-reform cases and 53% of post-reform cases. For a further 27% of pre-reform cases and 22% of post-reform cases, it was unclear whether the order referred to was made on a final, interim or other basis. The personal protection order referred to in these data had been preceded by an earlier personal protection order in 15% of cases pre-reform and 21% of cases post-reform.

Where information about a personal protection order was referred to in material on a file, data on the nature of the order were also collected where they were available. These findings are depicted in Table 3.20, with the upper panel showing how the orders referred to in the files were determined, and the nature of the conditions they involved. In both time periods, orders made by court determination were most common, with 45% of these pre-reform and 42% post reform. The proportion that had been determined by consent was marginally higher in the post-reform sample, at 23%, compared with 18% pre-reform. In both periods, a minority of orders referred to was settled by undertaking without admissions (7%). For around three in ten cases where personal protection orders were referred to, the way in which they were determined was unclear. Breaches of personal protection orders were referred to in relation to 9% of the pre-reform sample and 8% post-reform.

The bottom panel shows the findings on the nature of the restraints imposed by personal protection orders referred to in the files. A greater proportion of the pre-reform sample included a limitation on physical proximity (pre-reform: 45% cf. post-reform: 37%), whereas a greater proportion of the post-reform sample included limitations on communication (pre-reform: 38% cf. post-reform: 43%). A significantly lower proportion of post-reform personal protection orders provided that contact with children was an exception to the restraint imposed by the order (pre-reform: 34% cf. post-reform: 17%). In both periods, only a small proportion of personal protection orders varied or suspended an existing parenting order (pre-reform: 3% and post-reform: 2%).

Findings on the persons protected by personal protection orders referred to in the files are set out in Table 3.21. Most commonly, the protected person was the mother, and this proportion rose to a statistically significant extent after the reforms (from 60% to 77%). Children were the protected persons in about three in ten cases, with little difference between the two time periods. Fathers were protected persons in just over one in ten cases, with the post-reform figure reflecting a very small downward shift.

The lower panel of Table 3.21 shows upon whom the personal protection order imposed a restraint. These data are consistent with the findings in the upper panel, in that fathers were most commonly subject to the restraint, to a statistically significant greater extent post-reform (61% cf. 74%). Mothers were subject to the restraint in just over one in ten cases.

3.3.4 Child protection system engagement

The 2012 family violence amendments sought to increase the extent to which engagement with state prescribed child welfare authorities was revealed in proceedings for parenting orders under the FLA. These changes came with the introduction of an obligation on parties to inform courts of their engagement with child welfare authorities (s 60CH: care arrangements; s 60CI: notifications and investigations). For this reason, data were collected on child protection system engagement, where such information was available in the court file. Table 3.22 shows that as a proportion of all files, cases with child protection engagement rose to a statistically significant extent after the reforms, from 7% to 13%. As a proportion of all cases involving allegations of child abuse, 31% involved engagement with the child protection system prior to the reforms, compared with 40% after the reforms.

Table 3.23 sets out findings on the more detailed question of what the information on the family law court file indicated about the nature and consequences of engagement with the child protection system. The first three lines of the table show findings on the consequences of engagement that led to an investigation, and consequent action by prescribed child welfare authorities. For 10% of pre-reform and 9% of post-reform cases, the material in the file indicated that a substantiated notification had led to action by the prescribed child welfare authority that was other than court action. For similarly small proportions (9% pre-reform and 7% post-reform), substantiation led to court action (in the state/territory children's courts), with orders that allowed the child (subject to the notification) to remain at home. The smallest proportion of all substantiated notifications referred to in the files had the outcome of an order for a child to be placed in out-of-home care (6% pre-reform and 5% post-reform).

The lower three lines of the table show findings for the proportion of cases where notifications were substantiated, not substantiated or where the consequences of engagement with prescribed child welfare authorities was not specified. These data show that the proportion of cases where consequences were "not specified" in the family law court file has diminished significantly since the reforms, being evident for 64% of the pre-reform sub-sample as against 26% of the post-reform sub-sample. This reflects an increase in the proportion of cases where a "not-substantiated" outcome is recorded after the reforms (from 12% to 53%). The proportions of cases where child protection substantiations were recorded in the family law court file decreased slightly (24% cf. 21%). These findings indicate that more specific information about child protection engagement is now being reported to family law courts. As noted by Professor Richard Chisholm (2013) in his report on information sharing between the family law system and the state child protection system, some state/territory legislative provisions inhibit information flow. Similarly, sharing information from the family law system (such as Family Reports) with the state's prescribed child welfare authorities facilitates knowledge about a child or family (Chisholm, 2014). The FCC has recently amended its rules to enable this type of information sharing to be used better and s 121 of the FLA has recently been amended by the Civil Law and Justice Legislation Amendment Act 2015 (Cth) to permit provision of certain information (defined as "any pleading transcript of evidence or other document") to prescribed child welfare authorities.

3.4 Patterns in orders for parental responsibility and care time

This section considers the patterns in orders for parental responsibility and care time in the pre- and post-reform periods. The unit of analysis is children (rather than cases), since cases might involve more than one child, and orders may differ for different children in the same case.

In relation to parental responsibility, outcomes were coded as: shared parental responsibility, sole to mother, sole to father, and "other". This latter category captures circumstances in which parental responsibility was vested in a non-parent, or where the orders allocated particular aspects to each parent or excluded a parent from involvement in particular aspects of parental responsibility. As noted in the introduction, orders for parental responsibility may reflect: (a) an agreement between the parties (even in judicial determination files this may be an issue the parties have reached agreement on); (b) the application of the presumption in favour of equal shared parental responsibility; or (c) a chain of reasoning based on the best interests considerations in circumstances where the presumption is not applied or rebutted.

In relation to care time, the presentation of the analysis reflects the fact that time-related orders do not always specify the precise distribution of time between parents, but rather may set out part of the pattern (e.g., the child to live mostly with the father or mother, and spend time with the other parent "as agreed"). The analysis therefore presents findings for "total cases" and "cases where contact orders are specified". These orders may arise by: (a) full or partial agreement between the parties; (b) the exercise of judicial discretion pursuant to the application of the presumption and the consequent application of s 65DA; and (c) by the exercise of judicial discretion pursuant to a best interests analysis, independent of the application of the presumption. Patterns in parental responsibility orders, pre- and post-reform, are discussed first.

3.4.1 Parental responsibility orders

Orders for shared parental responsibility were relevant to the majority of the children in the sample both before (86%) and after (85%) the reforms. Orders vesting sole parental responsibility in mothers were made for about one in ten children in both time frames, with this being marginally less likely after the reforms (Table 3.24). The number of children for whom orders allocated sole parenting responsibility to fathers was low in both time periods, but the post-reform period reflected an increase from the pre-reform period.

A more detailed breakdown of parental responsibility orders by determination type shows that outcomes reached by judicial determination were substantially less likely to have shared parental responsibility outcomes compared with consent-based outcomes, and this was evident to an even greater extent after the reforms (Table 3.25). In the judicial determination sample, orders for shared parental responsibility applied to 51% of children pre-reform, compared with 40% post-reform. The proportion of children with orders allocating sole parental responsibility to mothers increased by 10 percentage points post-reform, to 45%, and those allocating sole parental responsibility to fathers increased by 3 percentage points to 11%. The only other area where the findings in Table 3.25 indicate a noteworthy shift is in relation to children with orders allocating sole parental responsibility to mothers in the consent without litigation sample: these were half as likely after the reforms (4%) as before (10%). Children in this sample with consent orders allocating sole parental responsibility to fathers more than doubled, going from a low base of 1% to 3%.

3.4.2 Parental responsibility outcomes in cases with allegations of family violence and child abuse

Table 3.26 sets out the results of the analysis examining patterns in orders for parental responsibility in cases where allegations of family violence and/or child abuse were raised before and after the reforms, on the basis of all the cases in the sample. Consistent with the findings reported above, shared parental responsibility outcomes are stable where no family violence and/or child abuse was alleged. Non-statistically significant shifts are evident in relation to matters where one or both of these issues were raised. Shared parental responsibility outcomes in cases where both issues were raised fell slightly, from 72% to 70%. Such outcomes increased slightly where one of these issues was raised in the absence of the other, from 80% to 84%.

3.4.3 Care-time arrangements in parenting orders

The analysis in this section describes the prevalence of three different types of care-time arrangements. The first is "mother majority", where children spend most nights with their mother and spend 0-34% of nights with their father. The second is shared care time, encompassing arrangements in which children spend 35-65% of their nights with each parent. The third is "father majority", where the children live with the father and spend 0-34% of nights with the mother.

The discussion proceeds in four stages. The first part presents overall findings. The next three parts set out findings in relation to each of the three determination types.

Overview of care-time arrangements

Table 3.27 sets out the overall pattern of orders for care time evident across the total sample for all files, and files where the hours of parenting time are specified. The lower panel shows the information available for the cases where contact hours are not specified, according to whether the orders provided for an "as agreed" arrangement or whether information was lacking. The analysis shows that in both time periods, in both categories of case, the most common arrangement was for children to live with their mother and spend 0-34% of nights with their fathers. While, differences between the pre- and post- reform samples were not statistically significant, the proportion of children in these arrangements increased in the post-reform period in both categories. In relation to cases where hours of parenting time were specified, 64% of children were in these arrangements pre-reform, compared with 69% post-reform. For total cases, the pre-reform proportion of 50% increased to 56% post-reform.

Shared care-time arrangements decreased in the post-reform period for children in both types of case. In matters where hours of parenting time were specified, 27% of children were in shared care pre-reform, compared with 22% post-reform. In relation to children in the total cases category, the pre-reform proportion of 21% dropped to 18% post-reform.

The proportion of children in arrangements involving most time being spent with fathers and 0-34% of time with mothers showed little change between time periods. For matters where the hours of parenting time were specified, these arrangements applied to 9% of children pre-reform and 8% post-reform. For the total cases category, 7% of children were in these arrangements pre-reform and post-reform.

Arrangements involving supervised parenting time

Figures 3.2 and 3.3 present data relating to orders for the supervision of parenting time across the pre- and post-reform court file samples. These data show that supervised time was rare in both samples, with no difference emerging over time. Figure 3.2 indicates that the proportion of supervised time orders made remained unchanged, with 4% of files in both the pre- and post-reform samples containing orders for supervised time. Figure 3.3 indicates that where supervised time was ordered, the supervision was required to be undertaken by a contact centre in one-half of the relevant pre- and post-reform files (2%). Supervision by relatives, friends or partners or other arrangements comprised the remainder of the pre-and post-reform supervised time orders, although graduated orders were also recorded with respect to those supervised time arrangements in the pre-reform sample.

Figure 3.2: Whether supervised time ordered, pre- and post-reform

Notes: Data have been weighted. No. of observations - pre-reform: n = 1,495; post-reform: n = 1,713.

Figure 3.3: Type of supervised time ordered, pre- and post-reform

Notes: Data have been weighted. No. of observations - pre-reform: n = 1,495; post-reform: n = 1,713. Percentages may not total 100.0% due to rounding.

Arrangements involving supervised changeover

Figure 3.4 indicates that orders for supervised changeover or orders providing for changeover to take place at a specified location increased from 12% in the pre-reform sample to 14% post-reform. Figure 3.5 indicates that the majority of these orders required changeovers to take place in a neutral and public venue, increasing from 8% in the pre-reform sample to 9% post-reform. Orders for changeovers to take place at the relevant child's school, child care or kindergarten increased from 2% (pre-reform) to 3% (post-reform), and orders for changeovers to take place at a police station decreased from 2% (pre-reform) to 1% (post-reform).

Figure 3.4: Whether supervised changeover or specified changeover location ordered, pre- and post-reform

Notes: Data have been weighted. No. of observations - pre-reform: n = 1,495; post-reform: n = 1,713.

Figure 3.5: Type of supervised changeover ordered, pre- and post-reform

Notes: Data have been weighted. No. of observations - pre-reform: n = 1,495; post-reform: n = 1,713. Percentages may not total 100.0% due to rounding.

Arrangements involving no face-to-face parenting time

Table 3.28 shows the extent to which arrangements involving no face-to-face time with one or other parent were present in orders before and after the reforms. This was rare in both periods and no statistically significant change was evident. Orders involving no face-to-face time with fathers were made for 2% of children pre-reform and 3% of children post-reform. There was no change in relation to mothers with no face-to-face time, which was less than 1% in both periods.

Care-time arrangements and allegations of family violence and/or child abuse

Table 3.29 shows the proportion of children in all files in the sample who were subject to orders for shared care time before and after the reforms, according to whether allegations of family violence and/or child abuse had been raised in their matters. The table shows a statistically significant diminution in the proportion of children with shared care-time outcomes where allegations of both family violence and child abuse were raised, with these falling from 19% to 11% after the reforms. A less substantial fall is reflected for children where either allegation was raised separately, with 17% having care-time outcomes before the reforms, compared with 15% after the reforms. Patterns for children where neither of these issues were raised were substantially similar (22% pre- and post-reform).

Care-time arrangements by type of determination

Table 3.30 sets out the proportions of children in the different care-time arrangements pre- and post-reform in matters that were resolved by judicial determination. The most notable feature of these findings is the limited change occurring in each time period. In both time frames, close to two-thirds of children in cases where contact hours were specified were in mother majority care, with this arrangement applying to almost four in ten children in all cases. Shared care-time arrangements applied to around one-sixth of children in cases where contact orders were specified, and about one in ten children in all cases. In the pre- and post-reform samples, 18-19% of children in cases with contact hours specified lived with their father and spent 0-34% of nights with their mother. This arrangement applied to about one in nine children in all cases that were judicially determined.

The findings on care-time arrangements for children in cases where court proceedings were initiated but settlement was achieved before or during trial show considerably more change than do the findings in relation to the judicial determination sample (Table 3.31). In this sample, children were more likely to be living with their mothers for most of time and less likely to be in shared care after the reforms. For cases where contact hours were specified, the proportion of children in mother majority arrangements increased from 60% to 75%. For children in all cases, this arrangement applied to 53% pre-reform, compared with 67% post-reform. The proportion of children in shared care-time arrangements where contact hours were specified fell from 28% to 15%, and for all cases, this type of arrangement reduced from 24% to 14%. The proportions of children in father majority care-time arrangements across both sample types in both time frames were fairly stable at about one in ten.

Care-time arrangements for children whose matters were resolved without initiating proceedings other than to seek endorsement of consent orders were not as stable as those in the judicial determination sample (Table 3.32). Nor, however, do they demonstrate the same degree of change as those in the consent after proceedings sample. Overall, the findings for this sample show a tendency toward more shared care-time arrangements. For children in cases where contact hours were specified, shared care time applied to 27% pre-reform compared with 33% post-reform. For all cases, children in shared care rose from just over one in five to just over one-quarter. Children in mother majority care fell slightly (67% to 64%) in cases where contact hours were specified, and among all cases, this arrangement was largely stable. Children in father majority arrangements decreased slightly from 6% to 4% where contact were hours specified, and 5% to 3% of all cases.

Parental responsibility and care time where there are allegations of family violence and/or child abuse

This section focuses more specifically on the extent to which orders for shared parental responsibility and shared care time applied to children in circumstances where allegations were made of: (a) child abuse and family violence and/or child abuse; (b) either family violence or child abuse; and (c) no allegations of this nature were made. Table 3.33 sets out the results of the analysis, treating each type of determination separately (although results for children with neither kind of allegation in consent without litigation matters are not shown due to small sample sizes).

Patterns in orders for shared care time and shared parental responsibility in cases where no allegations of family violence or child abuse were raised were largely stable, with two exceptions. In the consent after proceedings sample, shared care-time orders fell from 29% to 13% (statistically significant). In the consent without litigation sample, shared care-time orders rose from 21% to 26%.

In cases where both allegations were raised, judicial determination matters showed a statistically significant reduction in shared parental responsibility orders (down 21 percentage points to 33%). Shared care-time orders in this category were identified in 9% of pre-reform files as opposed to 8% of post-reform files. Conversely, shared care-time orders in the consent after proceedings sample diminished by a statistically significant 13 percentage points to 12%. Shared parental responsibility orders in this category were identified in 83% of pre-reform files, compared to 88% of post-reform files.

In cases where only one of these allegations was raised, the most noteworthy change is in relation to shared parental responsibility orders in the judicial determination sample: these fell by 11 percentage points to 34%. For shared care-time arrangements in this category there was an increase post-reform of 3 percentage points. In the consent after proceedings sample, there appears to be a trend towards shared care-time outcomes post-reform being marginally lower (19% cf. 15%) and shared parental responsibility outcomes marginally higher (93% cf. 96%), but neither were statistically significant.

3.5 Summary

Overall, the findings set out in this report indicate some shifts in a direction consistent with the intention of the reforms in most areas considered. These shifts are mostly modest, and there is little indication in the data that approaches to children's matters have changed to any great extent, except where there are concerns about both family violence and child abuse.

In keeping with the aim of encouraging parents to make concerns about family violence and child abuse known to professionals in the family law system, the extent to which these issues were raised in court matters increased, with the proportion of files without such allegations falling from 71% to 59%. The proportion of files where child abuse concerns were raised increased from 11% to 22%, and the proportion of cases in which family violence allegations were raised increased from 26% to 36%. In both these areas, the data suggest a slight shift in an increase in mutual allegations (that is, where each party raises allegations against the other), but the dynamics behind this are unclear.²¹

In relation to family violence, statistically significant increases arose in relation to emotional and physical abuse allegations, but the increase was greater for physical abuse (up 12 percentage points to 28%) than emotional abuse alone (up by 9 percentage points to 28%). This would tend to suggest that the measures supporting disclosure are the greater driver of this increase than the wider definition (s 4AB), which could be expected to support greater disclosure of emotional abuse than the previous definition.

The extent to which children were alleged to have been exposed to family violence increased (from 48% to 58%), but this was not statistically significant. The rate at which allegations that children were victims of family violence remained stable. These findings indicate very limited change in the extent to which concerns about children and family violence are raised, suggesting the recognition of children's exposure to family violence in s 4AB(3) has thus far had limited effects.

An increase in the extent to which concerns associated with family violence and child abuse were raised was particularly evident in the judicial determination sample, with increases in the proportion of matters involving these kinds of allegations of between 11 and 14 percentage points.

The analysis of factual issues raised, reflecting the operation of s 60CC and some other issues (including substance misuse and mental ill health), shows material relevant to protective concerns is present on the court files to a greater extent than before the reforms. The proportion of files with evidence in relation to a need to protect children from abuse was present for 22% of the post-reform sample, compared with 11% pre-reform. Two other areas that were receiving greater emphasis in evidence were the child's right to meaningful involvement with each parent after separation, with the proportion of files where this was explicitly addressed rising from 7% to 11%. A further shift was apparent in the proportion of files with evidence referring to the possibility that children's views were influenced, with this increasing from 4% to 7%.

Family reports were more likely to be generated in cases involving allegations of family violence and/or child abuse after the reforms (53%) than before (33%). Explicit discussion of risk assessment was more evident in Family Reports after the reforms (31%) than before (22%). Risk was explicitly identified as being present in 28% of the post-reform reports and not present in 29%. The Family Reports indicated that a view either way could not be formulated in 43% of cases. More files included discussion of personal protection orders after the reforms (25%) than before (17%), and engagement with prescribed child welfare authorities was also evident to a greater extent after the reforms (7% cf. 13%).

The analysis of patterns in orders for parental responsibility demonstrated largely consistent levels in the proportions of orders for shared parental responsibility in the consent after proceedings and consent without litigation samples, with around nine out of ten children in each sample subject to orders for equal shared parental responsibility. In judicial determination files, children with orders for shared parental responsibility were less common after the reforms, applying to 40% post-reform, compared with 51% pre-reform. Overall, the proportion of children with shared parental responsibility outcomes where no allegations of family violence or child abuse were raised remained stable in the two time frames. Where only one of these issues was raised (i.e., either family violence or child abuse), the likelihood of a shared parental responsibility order being made increased slightly after the reforms, rising from 80% to 84%. Where both of these issues were raised, marginal decreases were evident, with the proportion of shared parental responsibility outcomes decreasing slightly, from 72% to 70%.

In relation to care-time arrangements, there was some evidence of shifts in these areas, as shown earlier in Table 3.29. For the overall sample, there was a statistically significant decline in the proportion of children in shared care-time arrangements in matters where allegations of both family violence and child abuse were raised (from 19% to 11%). Where one of these issues was raised, there was no significant change in the proportion of children with shared care time (from 17% to 15%). These arrangements were largely stable with children for whom neither of these issues had been raised, applying to just over one-fifth of the children in this group. Orders involving no face-to-face time with one parent remained rare in both periods. Three per cent of children had orders for no face-to-face time with fathers after the reforms, compared with 2% before the reforms. Fewer than 1% of children had orders for no face-to-face time with mothers in both periods.

Overall, the patterns in orders for parental responsibility and care time reported in this chapter raise some interesting issues when considered against the objectives of the 2012 family violence amendments. The findings arising from the cases that demonstrate the most direct effect of the law - the judicial determination sample - show that orders for shared parental responsibility decreased after the reforms but that changes in patterns of care-time orders were almost negligible. Small but not statistically significant shifts away from shared care-time orders were evident in matters where family violence and child abuse allegations had been raised. These aggregate-level data suggest that since the reforms, courts have been more likely to make decisions against shared parental responsibility pursuant to non-application or rebuttal of the presumption and the application of the best interests discretion. This does not translate, however, into a substantial shift in approaches to care-time arrangements, with the aggregate-level data indicating little change. This suggests that the 2012 family violence amendments have had limited effect on the overall pattern of judicial determination outcomes for care-time arrangements. As the discussion of factual issues indicates, this is despite the fact that evidence raising protective concerns was adduced more often than it was before the reforms, and that cases in which such evidence was adduced were less likely to be amenable to resolution without judicial determination than previously.

In relation to consent after proceedings matters, orders for parental responsibility did not change substantially after the reforms, but orders for shared care time were less frequent, and orders for mother-majority time were more frequent in the context of family violence and abuse. Thus, the 2012 family violence amendments have not produced a substantial shift in parental responsibility arrangements, but they have influenced the effects of the shared care-time provisions. It may be that the cases that settle in this way are more clear-cut from a factual and evidentiary perspective than the cases that proceed to judicial determination, meaning that one party is in a substantially stronger bargaining position from a forensic perspective. However, the disjunction in the patterns between the two samples raises some intriguing questions about the operation of the legislative framework, particularly as factual issues raising protective concerns are more common in judicially determined matters than consent after proceedings matters. It should also be acknowledged, however, that to some extent, the greater prevalence of shared parental responsibility in the consent after proceedings sample may reflect the bargaining dynamics and trade-offs pertinent to negotiation in these contexts.

For arrangements reached by consent without litigation, patterns in shared parental responsibility orders did not change substantially, but patterns in shared care-time orders recorded a subtle increase.

4. Published judgments and the application of the 2012 family violence amendments

4.1 Introduction

The findings presented in the preceding chapter shed light on the effects of the 2012 family violence amendments on court orders made by consent and judicial determination, using the quantitative data collected from court files. This chapter examines the operation of the 2012 family violence amendments through an analysis of the application and interpretation of the provisions that were part of the core changes made to the FLA in 2012, in judgments included in the Published Judgments Study. The discussion in this chapter is intended to illustrate the application of the main new or changed provisions in the context of the operation of the overall Part VII framework set out in sections 1.2 and 4.2.

As noted at the outset, the operation of Part VII in litigated cases depends on the exercise of judicial discretion in the determination of what orders are in a child's best interests in any particular case. This exercise of discretion is guided by consideration of the range of facts in any given case and the weight accorded particular factors by the judicial officer in the context of the overall circumstances of the family and the child(ren) whose best interests are being considered. As the earlier discussion of the common factual issues that arise in contested matters establishes, issues related to protective concerns such as family violence, child abuse, parental mental ill health and substance misuse are commonly relevant in day-to-day decision making. As the discussion in this chapter demonstrates, the contemporary context for best interests decision making frequently revolves around consideration of the implications of a range of factors that may suggest quite significant dysfunction. Accordingly, the following discussion supports understanding of the context for the application of the new and changed provisions with a contextualised analysis of the broader circumstances of some cases.

At the present time, some three years after the new substantive legislative provisions became effective, appellate consideration of the 2012 family violence amendments remains extremely limited. Appellate consideration is discussed where this has occurred, but much of the discussion that follows is based on first instance judgments that illustrate the application of law in individual cases. Where apparently varied approaches are evident in relation to particular provisions, this is highlighted on the basis that this is an inherent feature of discretionary decision making in a new legislative environment. The discussion of published judgments is preceded by a brief summary of existing commentary on the 2012 family violence amendments.

4.2 Previous commentary

This section sets out the main insights from previous commentary, analysis and research on the 2012 legislative amendments, with a particular focus on the new definition of family violence (s 4AB), the effects of s 60CC(2A), and the application of the amendments in the context of the overall Part VII framework.

4.2.1 The s 4AB definition of family violence

In relation to the definition of family violence, contrasting views have been expressed. Analysis by Zoe Rathus raised the concern that the new family violence definition may be interpreted narrowly, if the terms "coercion, control and fear" are applied in a way that is informed by the social science literature on typologies (Rathus, 2013). This literature, mainly emanating from the US, suggests that that there are varying forms of violence. A conceptualisation by Michael Johnson (Johnson, 2008), often cited in family law literature (Altobelli, 2009), referred to four typologies: intimate terrorism, violent resistance, situational couple violence and mutual violent control. Rathus argued that if the s 4AB definition is applied on the basis of an understanding of family violence informed by the typologies, then violence of a nature consistent with Johnson's "intimate terrorism" would be considered to fall within s 4AB, and other types of violence may not. Rathus argued this would be inappropriate for a range of reasons and would mean that "lawyers and judges who limit the meaning of the definition by invoking the typology literature may misinterpret their client's instructions of the evidence before them" (p. 1).

Contrasting views on the application of the definition in cases, based on analysis of cases decided in the first 12 or so months of the operation of the 2012 family violence amendments, have been expressed in other analyses. In a multi-faceted assessment of the early effects of the amendments, Steven Strickland (writing extra-judicially) and Kristen Murray concluded that their analysis of the cases showed "judicial officers are alive to the complexities associated with the aetiology, nature, cause and effects of family violence, particularly with respect to its impact on children" (Strickland & Murray, 2014, p. 63). In contrast, Renata Alexander argued that her analysis showed that a strict approach was being applied to the definition (Alexander, 2014, p. 5).

4.2.2 FLA s 60CC(2A) and the Part VII framework

Expert commentary on the potential effects of s 60CC(2A) has also highlighted uncertainty about the interpretation and application of this provision. Three areas of uncertainty of particular relevance to the discussion of published judgments in the next section have been highlighted in these analyses. The first is how "harm" will be conceptualised in decision making and the type and extent of harm that needs to be established before the application of s 60CC(2A) will justify a finding that the need to protect a child from harm will result in orders elevating that consideration above the child's right to a meaningful relationship with each parent after separation (Fehlberg et al., 2014; Rhoades, Sheehan, & Dewar, 2013). The second is the extent to which the application of s 60CC(2A) will alter outcomes in the context of the overall Part VII decision-making framework. The third is the question of whether the relevance of the unacceptable risk test, enunciated by the High Court in M v M (1988) 166 CLR 69, has been changed by s 60CC(2A).

Strickland and Murray's (2014) examination of post-reform judgments supported a conclusion that appellate guidance would be "particularly welcomed" in relation to the importance that should be accorded s 60CC(2A) and how the exercise of weighting the primary and additional considerations in s 60CC should be approached. They indicated that "divergent" judicial approaches on this question were "notable" and argued that the "importance attributed to meaningful relationships has not necessarily abated as a consequence of the elevation of safety as a primary consideration, as perhaps might have been expected" (p. 80).

In considering the implications of their analysis and potential impediments to the achievement of the aims of 2012 reforms, Strickland and Murray (2014) suggested that the complexity of the Part VII framework and the absence of guidance in the legislation for decision making when an allegation of family violence or risk of harm is upheld potentially limited the effects of the reforms. These concerns reinforce those expressed in other commentary and research (Fehlberg et al., 2014; Rhoades et al., 2014), including the analysis that underpinned Richard Chisholm's (2009) recommendations in the Family Courts Violence Review that s 65DAA, which requires courts to consider orders for equal or substantial and significant time where orders for equal shared parental responsibility are made pursuant to the presumption in s 61DA, be repealed.

Basically, these analyses suggest that the Part VII framework, particularly through the presumption in favour of equal shared parental responsibility (s 61DA) and the linked obligation to consider equal or substantial and significant time orders where the presumption is applied (s 65DAC), supports shared parenting outcomes (equal shared parental responsibility and equal or substantial and significant time orders) to a greater extent than outcomes that might be consistent with the prioritisation of the child's relationship with one parent over another for protection from harm or other reasons. Fehlberg et al. (2014) argued that the Full Court of the Family Court of Australia's decision in Goode [2006] FamCA 1346 consolidated this tendency: the "legislative pathway described in Goode makes clear links between the presumption of ESPR and shared time, even in circumstances where the presumption of ESPR does not apply or has been rebutted. Thus, while there is no presumption in favour of shared time in the FLA, the effect of the decision-making pathway prescribed by Goode is that shared time is potentially under consideration in the majority of cases" (Fehlberg et al., 2014, p. 310).

In contrast, although the Part VII framework supports the identification of family violence and abuse concerns and specifies that they are to be given greater weight when in conflict with the child's right to a meaningful relationship with each parent after separation, it provides no particular guidance on how considerations should be weighed (apart from s 60CC(2A)) or what outcomes should be considered where protection from harm is an important consideration.

The application of the unacceptable risk test has generated much commentary in recent years, focusing particularly on the question of whether it has been interpreted and applied appropriately (Chisholm, 2010, 2011; Fogarty, 2006; Parkinson, 2015). The test, requiring courts to consider whether orders for custody or access (as the terminology then was) would "expose the child to an unacceptable risk of sexual abuse" (M v M (1988) 166 CLR 69), is not applied only in sexual abuse cases, but in a range of matters where risks to children are relevant, including family violence and parental drug use (Fehlberg et al., 2014). The question of whether this test remains relevant following the enactment of s 60CC(2A) has not been judicially considered at appellate level.²² Conflicting positions have been put forward in academic commentary, which has focused on the application of the test in sexual abuse cases. Lisa Young and colleagues argued that s 60CC(2A) changes the fundamental nature of the court's obligations in this context, in a way that obviates the discretionary balancing exercise of risk of abuse against the potential benefits of parent-child contact (Young, Dhillon, & Groves, 2014). Young et al. argued that under s 60CC(2A), the question that should guide decision making in matters where a risk of abuse is raised is: "In light of the evidence relevant to physical or psychological harm, am I satisfied I have protected the child from future physical or psychological harm?" (Young, Dhillon, & Groves, 2014, p. 262).

Patrick Parkinson (2015) has argued a contrary position. In his view, the relevance of the unacceptable risk test is unchanged by the introduction of the s 60CC(2A) and remains pertinent to the exercise of discretion in determining what orders are in a child's best interests (p. 23). Parkinson argued that s 60CC(2A) "is not an instruction to the court to prioritise protection from the risk of possible harm (where the evidence does not support a conclusion that such harm has already occurred or is likely to occur) over the benefit to the child of a meaningful relationship with both parents" (p. 16). Parkinson indicated that in the absence of a finding in relation to abuse, s 60CC(2A) "requires evidence of a different kind - evidence to satisfy a court that the child is sufficiently likely to be subjected to abuse in the future that there is a need to protect him or her from physical or psychological harm by making appropriate protective orders" (p. 16), and that it is in this context, that the unacceptable risk test "provides a reasonable basis for a discretionary judgment about future risk" (p. 23).

Parkinson's (2015) analysis dealt with two other important, interrelated issues about the application of the unacceptable risk test. His discussion rested on a distinction between proof and evaluation. He argued that the unacceptable risk test involves an evaluation of future risk, as risk is not in itself susceptible to proof. What needs to be proven is the facts underpinning the "reasonable basis for a discretionary judgment about future risk" (p. 23), noted above. Consistent with M v M, this does not require abuse to be proven in the past, however, as "even where the evidence is insufficient to justify a finding of abuse … the evidence may be sufficient to justify a finding that the risk of abuse if protective orders are not made, is an unacceptable one" (p. 23). He also cautioned against applying reasoning concerning alleged facts that may be unproven to the requisite standard of proof (the balance of probabilities and in some instances to the stricter end of this standard: Briginshaw v Briginshaw (1938) 60 CLR 336; Evidence Act 1995 (Cth) s 140)). He suggested that it is erroneous to argue that "failure to satisfy the burden of proof that something did happen means that it is proven that something did not happen" (Parkinson, 2015, p. 21). In the context of the unacceptable risk test, this means that "it is not the case that abuse needs to be proven in the past in order to found a determination of unacceptable risk in the future" (p. 23). Richard Chisholm (2010) observed that the judgment of the Full Court in Amador v Amador²³ indicated that objective corroboration or complaints to relevant authorities were not special requirements in cases involving allegations of violence, and that courts "should not shrink from making findings of abuse or violence when those findings are relevant and open on the evidence" (p. 282). Nevertheless, in the recent Full Court decision in Sawant v Karanth,²⁴ it was held, in the context of a discussion of Amador, that it was not incumbent upon the court to make findings about whether specific incidents occurred in that case because they were not necessary to determine the best interests of the child as "the findings as to family violence (and parental conduct, more generally), informed a number of important s 60CC considerations directly relevant to the child's best interests".²⁵

These divergent approaches to the conceptualisation of harm, to the application of s 60CC(2A) and to the role of the unacceptable risk test in the post-2012 family violence amendment context are issues informing the analysis of decision-making approaches and outcomes in the remainder of this chapter.

4.3 The application of key provisions

This discussion focuses on the application of the main substantive changes to the framework for making decisions in children's cases that were introduced as part of the 2012 family violence amendments. Accordingly, the discussion starts with a consideration of the application of the definition, and continues with analyses of the application of s 60CC(2A) and of the s 60CC best interests considerations.

This discussion is based on a systematic analysis of published appeal and first instance court judgments applying the new provisions. The judgments discussed represent a selection of cases from the FCoA and FCC, and relate to family law proceedings that commenced after the amendments came into effect in 2012.²⁶

4.3.1 Applying the new definitions of family violence and abuse: s 4AB and s 4(1)

From June 2012, the Act defined family violence in the primary s 4AB(1) clause as "violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member), or causes the family member to be fearful".²⁷ Subsection 4AB(2) goes on to list several examples of behaviour that may constitute family violence, including physical or sexual assault, stalking, verbal abuse, damage to property, harm to pets, unreasonably denying a person autonomy or liberty, preventing contact with family or friends and withholding financial support.²⁸ The following discussion describes how the new definition is being applied in case law. The first part of the discussion focuses on the kinds of behaviour that are found to fall within the definition and the implications that findings of this nature have for the application, non-application or rebuttal of the presumption. The discussion first considers cases that indicate certain kinds of behaviour do not fall within the definition. It then describes cases where the family violence is found to come within the definition and underpins decisions for sole parental responsibility and no or limited time. It then describes some judgments where alleged family violence does not satisfy the court that outcomes other than shared parental responsibility and shared time are in the best interests of the children. The outcomes described in this section not only reflect approaches to s 4AB, but the consequences of these approaches for the chain of reasoning for the subsequent application, non-application or rebuttal of the presumption and the best interests discretion.

Behaviour not within the s 4AB definition

In Carra v Schultz, a matter initiated immediately on the commencement of the amendments, the court considered whether, by preventing a father from spending time with or communicating with their child, the mother was engaged in family violence. In making a finding that no family violence had occurred, the court noted the aspect of the new definition related to coercion and control, holding that, absent any evidence that the father was coerced, controlled or felt fearful, "the withholding of time or communication with a child does not, without more, constitute family violence".²⁹

In Thompson v Berg, the Full Court considered an appeal by a husband against a decision in relation to property matters. One of the grounds of appeal was based on an assertion that the wife's actions in assuming responsibility for the affairs of their joint company while he suffered periods of mental illness, constituted financial abuse within the scope of the behaviour contemplated in s 4AB(2)(g) ("unreasonably denying the family member the financial autonomy that he or she would otherwise have had"). In this matter, the court noted that the pre-amendment definition of family violence applied, but nonetheless found that even if the new definition applied, there was no family violence.³⁰

Behaviour within the s 4AB definition that displaces the presumption

As the preceding discussion indicates, the new definition warrants careful consideration of the qualifying terms - "coercion, control and fear" (s 4AB(1)). These terms that will mean some kinds of behaviour that may be reflected in the examples or contemplated in the primary clause (s 4AB(2)) may nonetheless not be considered to be family violence because it is not established that they have resulted in fear, coercion, and control.³¹ The discussion below highlights a range of approaches to the application of the definition, including approaches that examine issues such as recency and severity to consider whether behaviour that otherwise appears to come within s 4AB may nonetheless not be considered germane to the questions that follow from the construction of the definition, namely the application or non-application of the presumption. In some cases, there is no explicit finding that there was the fear, coercion or control that the definition requires, although perhaps in those judgments that conclusion was implicit. The discussion starts with a detailed examination of the decision in Gilliard v Gilliard, as this is a case that exemplifies the complexity of many contested family law cases. It then provides further examples of the application of the definition in the context of a consideration of how the approach to the nature of the behaviour under consideration is connected with decisions in relation to the application or displacement of the presumption of equal shared parental responsibility.

In Gilliard v Gilliard, the court identified the various elements of the definition in s 4AB when considering the relevant behaviour. The case was being heard in the Magellan list and involved allegations of violence by the father against the mother in the period prior to and during separation, and allegations that the mother had inappropriately used physical discipline against the children. There were three children involved in the case: one lived with the father and two with the mother. Also relevant were questions about the parenting capacity of each parent and the nature of the relationships between the child or children that each parent had in their care and the other parent. The court was being asked by the mother to alter an arrangement whereby two children lived with her and one with father so that all three children lived with her. She was seeking sole parental responsibility and supervised access for the father. The father was seeking orders for shared parental responsibility (although the mother was to have medical decision-making power under his proposal), and a graduated arrangement that would ultimately see all three children sharing their time between both parents. The arrangements in play at the time of the trial had arisen after earlier contested proceedings in the court. Under those arrangements all the children were to live primarily with their mother and spend four nights a fortnight with their father. This arrangement had broken down and what the court found to be the father's "obsessive" belief that the mother's parenting was neglectful and abusive had escalated. He had reported her to police, child protection and other authorities repeatedly. The child in the care of the father did not see his mother, and the court, on the basis of expert evidence, considered the father's parenting style to be abusive as he relied on the children to meet his emotional needs.

In this case, the court found the mother had been the "subject of pushing, yelling, swearing, demeaning, threatening, coercive and controlling behaviour as well as repeated derogatory taunts by the father", and it was held that "such behaviours fall within the definition of family violence in the Act".³² Also, there had been a personal protection order made for a 12-month period on a contested basis after separation. This was referred to but not further discussed in the judgment. Overall, the focus of the court's concern was on the father's behaviour following the earlier contested proceedings. The judge accepted the evidence of the expert witness, Dr K, which characterised the father's behaviour in this way:

Dr K said that in his view, the father's behaviour towards the mother during the marriage and since has shown a pattern of family violence, with quite severe emotional abuse despite the absence of significant physical abuse. He said that after separation the father's relentless criticism of the mother to multiple professionals and in whatever forum he could find, including in settings where the mother had a presence as a parent such as the school and swimming school, has represented ongoing emotional abuse. He said that the father is actively seeking out public settings where the children can cling to him, or be seen to be prevented from approaching him, as an extension of that abuse.

Dr K said that the pattern of family violence has impacted on the children also, directly in terms of the father's emotional abuse of the children, and indirectly in terms of the toll which this abuse has taken on the mother …

Dr K went on to say that in his view the father has been emotionally abusive of the children. He said that he is concerned that the father's reliance on the children to meet the father's need for affirmation, and in particular his need for affirmation as "good" in contrast to the mother's "bad", amounts to emotional abuse of the children. He said that in particular the father's recurrent public playing out of the "scene" of the two forms of "clinging" discussed above is emotionally abusive. He said that this emotional abuse is harmful to the children in terms of their emotional day to day well-being, in terms of tearfulness and sadness, and in terms of their character development and future intimate relationships.³³

The court orders provided that the mother was to have sole parental responsibility and the children live with their mother. All contact with the father was suspended for three months, after which supervised contact, leading ultimately to monthly daytime contact on an unsupervised basis, was ordered. While this outcome may not be surprising, the facts are instructive of the court's interpretation and application of the 2012 family violence amendments.

The decision in Oakes v Oakes [2014] FamCA 285 provides an example of the type of behaviour that will lead courts to conclude that an ongoing relationship with a parent is not in a child's best interests. The discussion highlights the courts' response to the father's application and his arguments about family violence to illustrate the kinds of arguments that are raised in this context. The case concerned a three-year-old girl. The mother was seeking sole parental responsibility and an arrangement involving no contact with the father. The father was seeking equal shared parental responsibility and a shared time arrangement. The court described the history of family violence in the relationship in this way:

Ms Oakes ("the mother") was in a relationship or married to the father for close to a decade. She was subjected to the father's anger in terms of verbal, emotional and physical abuse. She was humiliated by and scared of the violence and remains fearful of the father.

The child J ("the child") was born in 2011. During her pregnancy the mother had been pushed to the ground and kicked in the thighs. At or around the time of the birth of the child the father's anger and out of control behaviour was evident to the mother, her friend and members of the mother's family.

On or about 5 or 6 October 2011 the mother separated from the father to protect herself and the child from the father's behaviour.³⁴

Noting that the family violence continued after separation, and arrangements for the child to spend time with her father under safe circumstances had failed because of continuing threatening and abusive behaviour, culminating in the father "making clear and unambiguous threats to kill the mother" [8], the judge also described the father's denial of the behavior:

In denying his anger the father sought to explain his behaviour as normal or in response to violence to him by the mother. He relies on the absence of intervention orders and police involvement as being indicative of his "innocence".³⁵

Evidence in support of the mother's allegations included hospital records and statements from a range of other witnesses, and the court concluded that "it is clear he presents as an unacceptable risk to the child and child's primary carer" [193]. The orders provided for sole parental responsibility for the mother, and the child to live with the mother and have no contact with the father. The mother was to provide the father with one photograph of the child each year and the father was restrained from approaching the mother or child.

Martin v Martin is another example of family violence considered by courts to justify orders for sole parental responsibility and no or minimal time between the children and their fathers. The family violence was classified as being at the very serious end of the continuum. The judgment described the coercive and controlling violence as a form of terrorism, and found that the children's continued exposure to the father, even if supervised, was a form of abuse.³⁶ In Lowrie v Bagley the court described the history of sexual and family violence perpetrated by the father against the mother as "horrendous" [31] and found that the considerable evidence in the case, including past convictions for the assault of the mother and evidence that the violence had not abated in the five years following separation, demanded a conclusion that the mother and children were at ongoing risk from the father.³⁷

In Merrick v James, the court highlighted the ongoing nature of the violent behaviour; that is, that it was sustained behaviour over a period of time. The court's description of the father's behaviour (which included repeated attempts to strangle the mother, strikes resulting injury and bruising, and attempts to cause her to miscarry by punching her in the stomach) as "chronic family violence over a significant period of time".³⁸

The ongoing nature of violent behaviour was similarly noted by the court in Vance v Carlyle, in circumstances where the evidence indicated the father had physically and verbally abused the mother in a number of ways during and after their relationship, including making threats to kill the mother and the child, or to take the child away from the mother, on more than one occasion.³⁹ In Joelson v Joelson, repeated threats by the father to harm himself, the mother and the children (often conveyed to the mother via the children) were also a feature of the family violence identified.⁴⁰ In Martin v Martin, the father engaged in an "ongoing campaign" of stalking behaviour, which included driving slowly past the home, attending the children's events but not interacting, and repeatedly phoning the mother's home late at night, which the court found was intended to unsettle the mother and children and to make them feel fearful, unsafe, intimidated and controlled.⁴¹ In each of these judgments, the presumption was displaced, and no time or minimal time between the children and their fathers was ordered in the context of references to both a type of behaviour and an assessment of the character of that behaviour based on factors such as how often it occurred.

Other judgments, including Mellick v Mellick⁴² and Kappas v Drakos,⁴³ provide examples of cases where the presumption of equal shared parental responsibility was rebutted (s 61DA(4)) on the basis of the "high conflict" between the parents, manifesting in their inability to communicate and consult with each other about major long-term issues. Nevertheless, orders were made for substantial and significant time on the basis that the relevant parent's behaviour was not identified as posing an ongoing risk to the child.⁴⁴ In Mellick, there were no findings of family violence made, but in Kappas, the presumption was rebutted in part due to there "being reasonable grounds for the Court to believe that the children concerned have been the subject of abuse or family violence" [62].

In Mellick v Mellick,⁴⁵the court dismissed an appeal by the father against orders that the mother have sole parental responsibility for the children aged 7 and 4 years (considered to be in the children's best interests), and that the children spend each alternate weekend and half of the school holidays with the father. The children were identified as having "excellent relationships" with each parent.⁴⁶ In this case, the court made reference to three occasions when apprehended domestic violence orders were made for the protection of the mother from the father, with the father being convicted of breaching the interim protection order made on the second of these occasions, in addition to noting a "distressing incident at changeover" (of which no further details were provided). Reference was also made to the mother vacating the family home with the children after the parties' divorce to live with her new partner, a move which involved her enrolling the eldest child in a new school. Various post-separation parenting arrangements had been made, with the interim parenting orders made just prior to the trial gradually increasing the fathers' time with the children, and attempting to better coincide the children's time with their father.Earlier orders had also required the re-enrolment of the older child in his initial school.

The court emphasised that orders for equal shared parental responsibility were, as a result of s 65DAC, accompanied by obligations to consult, to make a genuine effort to arrive at joint decisions, and jointly decide major long-term issues.⁴⁷ The family consultant described the parental conflict as "toxic" and as being likely to continue, and noted the mother's concern about the father's control over her life and his collusion with her family, which the mother reported as, in part, leading her to make the unilateral decision to relocate.⁴⁸ The trial judge was identified as having "placed real weight" on "the children's horribly disrupted childhood" and the importance of stability and "protection from the effect of parental conflict".⁴⁹ The trial judge held that it was not possible to make findings in relation to the abuse of a child or family violence that would displace the presumption pursuant to s 61DA(2), but found that the presumption was rebutted, "with any degree of mutual support, assistance, provision of information or co-operation" identified as being "far more problematic" than orders that were "clear, certain and provide(d) for the children to live primarily with one parent".⁵⁰ The trial judge held that:

The difficulties that [the mother] has described with respect to schools and obtaining information and, accepting her evidence that they have occurred as she has described, has caused me some real reservation as to whether these parents are able to give any life or meaning, in any non-fictitious fashion, to equal shared parental responsibility. They simply have not exchanged information, have not cooperated with each other, and have not told each other about any or most decisions that they have made. That has included information which, on [the mother's] case, has caused some prejudice or potential prejudice to the health of at least of [the daughter]. In relation to [the son] this has led to the myriad of issues that have been described in the evidence surrounding [Mr B], difficulties at his previous school and other arrangements for his care, which has resulted in both his parents not being actively involved or consulted. With respect to the parents' current and future capacity to communicate, I accept the evidence of each of these parties, and as was put to [the mother] and accepted by her, that it is non-existent or virtually non-existent. Neither can opine as to how that will improve in the foreseeable future. If it cannot or will not improve and is accepted, as it is at present, as moribund and/or, as [family consultant E] has described it, "toxic", it is difficult to understand how that which section 65DAC expects (as to the effect of a parenting order for equal shared parental responsibility) can apply. That section requires that if two or more persons have responsibility, then they must consult with each other in respect to major issues, decisions as defined in section 4 of the legislation. That includes the school that a child attends and any change thereto, religious observance, the child' s health, the child' s name and changes to the child's living arrangements that make it more difficult for one parent to spend time with the child. Other than the absence of any Application by either of these parties to change the child's name, the above four instances have all been called into question. When they have been matters that must be addressed, it has been abundantly clear that the parties cannot consult and have not been in any position to make a joint decision. On that basis, I am not satisfied that there could be any real or meaningful order for equal shared parental responsibility.⁵¹

In Kappas v Drakos, sole parental responsibility orders were also made in the context of orders for the children to spend substantial time with their father. The court held that:

over the 6 years since separation during which time orders were in place for equal shared parental responsibility, rather than the parties becoming more amicable, they had become more antagonistic. This, clearly, supported a change to a sole parental responsibility order, to avoid the children being caught in the middle of the parenting dispute and significant weight is attached to that. Dr B was critical of the lack of an ability to communicate between households. The father's evidence was that he did not respond to text messages from the mother. The father, further, indicated that he did not have workable access to the internet. The father did not agree to the parents communicating by text message and/or email. Without such an agreement, given the level of conflict between the parents, there would be effectively no way to communicate. The Court is of the view that the father had a Gmail account and that his difficulties in accessing it related to a passcode and were temporary. The Court is of the view that an order in terms of [sole parental responsibility] … is clearly in the best interests of the children and should be made.⁵²

Further findings made by the court were that the father had "engaged the children in his negative views of the mother and, particularly, his very negative views of the mother's partner, 'Mr R' " [71]. It also accepted that the father had threatened to kill the mother, her new partner and any children of that couple and that he maintained these threats. The Court noted that but for the ages of the children (15 and 16) and the relationship between the father and children 'that the father's behaviour as referred to above may have, otherwise, disentitled him to spend any time with the children'. The mother had a three year personal protection order against the father which was current at the time of proceedings. He had criminal convictions for breaching previous intervention orders. The orders made by the court provided for changeovers to occur in a way that did not involve breaching the extant order.

In judgments including Thornton v Thornton,⁵³ Conn v Conn⁵⁴ and Flynn v Bray,⁵⁵the lack of appropriate involvement in the responsibilities of parenting was a factor cited, in conjunction with parents' inability to communicate and consult with each other when making orders for sole parental responsibility, in the context of orders for substantial time with the other parent.

For example, in Thornton v Thornton, in declaring that the presumption was rebutted and that the mother was to have sole responsibility in relation to "all major long term issues", the court emphasised the importance of reducing "conflict likely to embroil the children", and acknowledged the mother's primary role in nurturing the children and making the decisions with respect to their care, as compared to the father's lack of insight that was likely to have a negative effect on his exercise of parental responsibility:

In circumstances where significant high conflict attends a co-parenting relationship, and in particular where serious allegations of the type under consideration here have created significant animosity, that requirement has the potential to exacerbate conflict. When, as here, children have been exposed to a lengthy period of significant post-separation conflict and have been the centre of allegations, the exacerbation of conflict (or the creation of new conflict) is a real possibility. Any such conflict is, in my view, antithetical to their best interests. To the extent that orders might do so, they should seek to avoid that conflict. That can be achieved by vesting parental responsibility solely in, relevantly, one of the two parents. In my view, orders can be, and in this case should be, shaped so as to meet concerns arising from the likelihood of the parents not co-operating or their competing assertions creating conflict likely to embroil the children, while at the same time paying regard to the interests of the "other" parent … There is little doubt in my mind that the mother has been the primary nurturer of these children. Quite apart from other evidence (including what I consider to be, effectively, a concession made by the father to that effect), so much is evident from G's statements. Historically, I think it plain that the mother has taken the primary role for making decisions for the children. I have already indicated that I consider that the father's narcissistic traits and lack of insight can impact upon his decision making and parenting.⁵⁶

This was a case in which allegations of sexual abuse were raised, considered by the court and not upheld. The court placed weight on evidence that the children had indicated a desire to spend more time with their father, while at the same time recognising the mother had been their primary caregiver. The orders involving time provided for the children to move from the existing supervised time arrangement to unsupervised weekend and school holiday contact on a graduated basis.

In Conn v Conn⁵⁷and Flynn v Bray,⁵⁸ the courts held that the presumption was both displaced (s 61DA(2)) and rebutted (s 61DA(4)), and more than minimal time orders were made in these circumstances.

In Conn v Conn, orders were made for the mother to have sole parental responsibility and for the father to spend one overnight period each alternate weekend, one mid-week period and half of all school holidays with the younger two of the parties' four children, aged 17, 15, 10 and 4 years. In this case, the family consultant had raised concerns about the children's wellbeing while in the father's care as a result of his use of cannabis, the family violence that had occurred during the relationship (to which the children had been exposed), his erratic behaviour, and ongoing verbal and emotional abuse directed at the children. It was also noted that his behaviour suggested he had "extremely low, if any insight into the needs of the children", which included divulging to the two older children the details of his sexual life with their mother.⁵⁹ Initial parenting orders were made for the father to spend supervised time with the younger children, graduating to unsupervised time upon the provision of clean drug screens to the ICL, and conditional upon his attendance at programs such as an anger management course. The judgment indicates that the father did not provide all requested drug screens to the ICL or provide evidence of his completion of the Men's Behavioural Change program, and his text messages to the mother indicated that he had no intention of doing so because the mother had not facilitated time with the children outside the arrangements ordered by the court. The final hearing proceeded on an undefended basis as the father had indicated that he would not attend or participate in further court proceedings. The Family Report describes the mother as "a most settled and sensible woman" who, "not withstanding a difficult and abusive relationship with the father … has remained child focused and supportive of the two younger children having a relationship with the father".⁶⁰ The Family Report also identified the mother's allegations of family violence as being supported by evidence from both the relevant prescribed child welfare authority and the police, and concluded that:

the father has basic skills to meet his children's needs, however he behaves like a child with his children. Once W and X began the transition into teenage/adulthood, and thus challenged their father, he could only respond as does another child, with anger, and tantrums, instead of controlled, reflective, compassionate and contained parenting … given [the father's] overall presentation, it is unlikely he will change … intervention strategies are unlikely to be absorbed by the father given his lack of educational capacity and other personal resources.⁶¹

Consistent with the Family Report, the court was satisfied that the mother had:

conducted herself in a mature and child focused way at all times. She has been cautious and vigilant in relation to protecting children from inappropriate conduct by the father, whilst at the same time appreciating the need to facilitate an ongoing relationship by the father with Y and Z. I am satisfied that she will facilitate that relationship into the future and will adopt a protective and cautious approach if necessary. I am satisfied that the mother has adopted a realistic approach to the circumstances of the older girls. She has appropriately taken account of their views, acknowledging that their refusal to engage with their father in any way reflects his erratic and volatile responses to them.⁶²

The court described the relationship that the father had with the two younger children as "positive" and held that there was a benefit to the children having a relationship with the father, provided he was able to "refrain from engaging in emotional or physical abuse towards these little girls".⁶³ The court stated that it appeared from the evidence that the father had "moderated his behavior" with the two younger children, and indicated confidence in the mother's ability to act "in a cautious and vigilant manner to ensure that these children are not exposed to abuse or family violence when in the father's care".⁶⁴ In ordering that the mother exercise sole parental responsibility, the court held that:

I am satisfied that there was family violence during the relationship. The father conceded as much to the family consultant, although he failed to understand the seriousness of the physical violence nor appreciate that his yelling at the mother and children would be experienced by them as threatening and intimidating. After separation, the evidence is that the father has continued to engage in family violence, although its occurrence may have moderated. The evidence reveals a person who is unable to control himself when things do not go his way. He resorts to yelling, abuse and intimidating acts as his first response. No doubt this is a reflection of his sad experience as a child and other factors such as his illiteracy. There is no evidence that the father has made any attempt to address this issue despite being fully aware that his volatility and uncontrolled behaviour was an issue in these proceedings. As I am satisfied that there has been family violence and that it is a continuing factor, the presumption of equal shared parental responsibility does not apply. In addition to this, the evidence is that the father would simply be unable to engage in meaningful discussions with the mother regarding long term issues affecting the children. I do not believe it is within his intellectual and emotional capacity to do so. On this basis I am satisfied the presumption is rebutted. I would therefore order that the mother have sole parental responsibility for the children.⁶⁵

The court in Flynn v Bray⁶⁶ found the presumption was similarly both displaced (s 61DA(2)) and rebutted (s 61DA(4)), with again more than minimal time orders made in circumstances involving both parties alleging family violence. The court found that there were reasonable grounds to believe that a parent had engaged in family violence, together with a "long standing inability to communicate".⁶⁷

The court in Baxland v Vincent held that:

The terms of s 65DAC aside, the undefined "equal shared parental responsibility" imports - if the best interests of the child are at its core - the need for a level of maturity, commonsense and cooperation between parents. Historically, the parties have not exhibited those traits when decisions about, and interactions toward, the child are concerned. The absence of one party having the "final say" in decisions about major long-term issues, has the potential for significant future conflict. I consider it antithetical to the child's best interests that the parties be required to consult in the manner required by s 65DAC or, more broadly, to make decisions about major long-term issues equally or together. The s 61DA presumption is rebutted in the child's best interests (s 61DA(4)). It might also be said that the presumption of equal shared parental responsibility is rendered inapplicable by reason of my earlier findings with respect to family violence. For this reason, too, the presumption of equal shared parental responsibility does not pertain to the present case.⁶⁸

Behaviour that is raised but found not to displace the presumption

The cases discussed in the preceding section illustrate the range of circumstances and behaviours in which family violence was accepted by the court, supporting approaches leading to the displacement of the presumption and, in the cases described, orders for sole parental responsibility and no time with the perpetrator of the family violence. This section explores cases in which a history of family violence is raised by one or both parties but it does not result in findings about family violence that displace the presumption.

Simpson v Hahn⁶⁹ was a case involving allegations of family violence, rape of the mother by the father during the relationship, and sexual abuse of one of two children involved in the case after the separation. The father had previous criminal convictions for inappropriate sexual behaviour, but not involving family members. Each parent also alleged the children could be at risk of exposure to violence or abuse in the home of the other. An extensive amount of evidence, including police interviews, was considered in relation to these allegations. The judge concluded the evidence did not support a positive finding concerning the rape allegations. Nor did it support a finding that the children would be exposed to an unacceptable risk of sexual abuse if unsupervised time with the father was ordered. In considering the question of family violence, the court examined the implications of evidence indicating the father had damaged property on several occasions, pushed one of the children into a wall, behaved in a physically intimidating way towards the children, and that one of the children was fearful of him. The court accepted that the child was fearful and that the father had exposed one of the children to abuse and family violence. The court also noted the father had completed an anger management program but expressed concern about his ability to control himself. The court's conclusion on family violence was expressed in this way:

However taking into account the time that has elapsed since the parties separated, the degree of seriousness of the father's conduct being towards the lower end of seriousness, the evidence of the father's new partner and the lack of evidence of an unequivocal nexus between J's fears and any physical abuse by the father, I am not satisfied that there is a need to protect the children from exposure to family violence such that their time with the father should be supervised as the mother proposes. Despite the emphasis in the primary considerations of the need to protect children from abuse or family violence, I am satisfied that there is not an unacceptable risk of the children being exposed to abuse or family violence by the father, such that it overrides the benefit to the children of having a meaningful relationship with him.⁷⁰

The outcome of this case involved orders for shared parental responsibility and that the children live with the mother and have unsupervised daytime contact with the father once a fortnight. The mother had raised concerns that the children were scared of the father. The court relied on evidence from a contact centre and the family consultant indicating observations of positive interactions between the father and children. The father was restrained from allowing the children to be in the company of certain individuals during their time with him. The court concluded that there were "no current concerns of family violence sufficient to rebut the presumption" [487].

A similar approach to parental responsibility emerged in Phitzner v Hollas,⁷¹ where there were alleged incidents of sexual assault of the mother and degradation, physical assaults and sexual abuse of the children. The evidence indicated that on leaving the relationship, the mother had lived in a refuge with the children, that there had been police attendances and an intervention order, and that there were criminal proceedings against the father for the physical and sexual assault of the mother that had not been concluded at the time the parenting application was determined. Charges had also been laid in relation to the assault of one of the children (the youngest). The mother had also asserted that she felt ongoing fear of the father. The court in this case held:

Generally the father's evidence was given with a reasonable level of consistency and in a forthright manner. He made at times appropriate concessions and whilst I did form the view that he was at times a controlling influence within the family and was ready to resort to physical discipline when he considered it to be warranted, nonetheless there was nothing arising out of the evidence that would lend support to the serious allegations of the mother of sexual and physical abuse and assault on both her, the H children and the children the subject of these proceedings.⁷²

The court made orders for equal shared parental responsibility and for the children to spend substantial and significant time with the father.⁷³ The findings were informed by an assessment of the evidence, including evidence from a professional involved therapeutically with the mother and the youngest child. In relation to the family consultant's evidence about the matters in dispute and the observed positive interactions between the child and the father, the court observed that: "Importantly, the family consultant was of the view that if the mother's allegations had some basis in fact then the children's presentation could not have been as was observed. In summary, the entirely proper warm and affectionate interaction between the father and the children was entirely at odds and inconsistent with a history of sexual abuse and physical violence".⁷⁴

Simpson v Hahn and Phitzner v Hollas provide examples of very complex cases where the evidence adduced fails to satisfy the court that the presumption should be not applied or rebutted on the basis of family violence. Other decisions suggest significant attention is paid to a range of issues, including the nature and circumstances of the violence and whether it is sustained over time. In some of these decisions, findings that behaviour amounting to family violence has occurred in the context of separation or is not seen to be recent is not viewed as sufficient to displace the presumption.

Weber v Lipson⁷⁵ provides an example of a case where the court's analysis of the facts, including circumstances surrounding intervention orders, does not result in a finding of family violence. The mother had obtained an interim intervention order against the father at the time of separation. The father consented without admission to a final order, consented again without admission to an extension of that order, and consented without admission to having breaches of the order dealt with by a magistrate's court so that he could enter a diversion program and not have a criminal conviction recorded. The mother contended there had been family violence prior to separation and that threatening and intimidating behaviour, leading to the charges over breaches of the intervention order, had continued after separation, and that she was fearful of the father and concerned for the safety of the children in his care. By the time of the trial, the issues in dispute between the parties in relation to the children's care-time arrangements had narrowed to focus on how the father's time with the children should be distributed across a fortnightly rotation involving substantial time arrangements, and whether safeguards should be in place to allay the mother's concerns about the children's safety while in their father's care. The court noted that the father conceded that the parties had experienced "difficulties in the latter stages of their relationship" [64], and also conceded that he may have appeared intimidating to the mother when angry. He denied making threats. The nature of the difficulties experienced prior to separation were not described in the judgment. The court preferred the father's evidence over the mother's in many respects and did not accept that a series of events the mother claimed to be the foundation of her fear of the father were necessarily associated with the father. Evidence before the court (a Family Report) indicated the children had positive relationships with both parents, although their primary relationship was with their mother. Evidence from a Single Expert Witness about the mental health of both parties indicated that neither of them had a mental illness, but that the father had little insight into the effects of his intimidating behaviour on the mother. Both parents completed a Parenting After Separation course, and the father had undertaken a men's behaviour change program and counselling. The court's conclusion was that the "evidence does not support a finding that the father has engaged in family violence or child abuse" [148] and that the presumption was not rebutted. Orders for equal shared parental responsibility were made, reflecting the parents' agreement. The care-time arrangements were for the children to spend substantial and significant time with the father (reflecting the existing arrangement), leading to a "week-about" arrangement after two years.⁷⁶ The orders also adopted the family consultant's recommendation that the parties engage in non-reportable counselling (i.e., counselling that would remain confidential) in relation to the implementation of the orders.

In Labine v Labine, the timing of the alleged conduct and the broader context in which it was said to have occurred appeared to be an important factor influencing how behaviour was characterised. The court in its judgment described the relationship between the parents as difficult or "bumpy" [146] and characterised the conflict as "situational violence" arising from a difficult separation. ⁷⁷

In Mertens v Mertens, the behaviour was characterised as violence, but considered as historical in nature and not relevant to determination of the parenting orders.⁷⁸ The court in this case heard allegations of family violence allegations by both parties and concluded that "both parties were previous perpetrators of family violence, as is relevantly widely defined in the Act", but that because the parents no longer had contact there was "no need to protect the child from harm she may suffer through exposure to family violence committed by either party".⁷⁹

In Bell v Bell, the court described behaviour by the mother, including incidents of verbal and physical abuse that had been witnessed by the children, as amounting to family violence within the FLA definition; however, the behaviour was characterised as being in the context of the breakdown of the relationship and appeared to have limited bearing on the outcome of the matter. ⁸⁰

4.3.2 Exposure of children to violence and conflict

In a number of the cases noted in the previous section, violence was directed at both adults and children. The cases of Simpson, Joelson and Martin offer examples of matters involving family violence directed at children. In Joelson and Martin family violence was found in circumstances that included threatening behaviour that was directed at the mothers and the children, while in Simpson there was evidence that one of the children had been thrown against a wall.

Subsection 4AB(3) of the amended definition of family violence also defines children as being "exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence".⁸¹ The court's decision in Lowrie v Bagley provides an example of the application of this provision.⁸² The court in this case was satisfied that the father had a history of illicit drug and alcohol abuse and of perpetrating "horrendous" [31] family violence, including rape, against the mother. After separation, the mother had allowed the father to exercise unsupervised contact and the court was satisfied this was because she was frightened he would abduct the children if she attempted to prevent contact. He had ceased exercising contact with the children and the mother applied to the court for orders for sole parental responsibility and no contact between the children and the father. The father did not defend the proceedings in circumstances where the court was satisfied the application had been served upon him and he had been afforded procedural fairness. The following quotation demonstrates the court's analysis of the facts and the law:

The father's antipathy towards the mother does not appear to have abated, notwithstanding their separation some five years ago. The mother remains at unacceptable risk of subjection to family violence committed by the father (s 60CG). The evidence also demands a conclusion that the father poses an unacceptable risk of harm to the children, which risk arises from his willingness to perpetrate family violence upon the mother. The children's observation or awareness of such family violence would surely be psychologically damaging to them.

The Court has long accepted as correct that family violence has a pervasive effect upon children, even if they are not directly involved as a victim of, or witness to, violent conduct. It is wrong to assume that family violence can only be relevant to parenting proceedings if it is directed at the children or takes place in their presence. Violence associated with a pattern of dominance by one parent over another, of which the children are aware, is particularly insidious. Children who grow up in such a climate of violence and dominance are exposed to an unacceptable model of family relationships. They can suffer insecurity, fear, unhappiness, anxiety, and hyper-vigilance through awareness of such abusive behaviour by a parent, which is damaging and threatens their emotional development (see Marriage of JG & BG (1994) 18 Fam LR 255 at 261; Marriage of Blanch (1998) 24 Fam LR 325 at 333-336; B & K [2001] FamCA 880 at [32]; B & B [2003] FamCA 274 at [33]-[37]; Amador v Amador (2009) 43 Fam LR 268 at [95]; Khalil & Tahir-Ahmani (2012) FLC 93-506 at [189]).⁸³

Orders for the mother to have sole parental responsibility and the children to have no contact with the father, except at the discretion of the mother, were made, in a context where no alternative proposals were raised by the father in this undefended matter.

In Merrick v James, there was a considerable history of violence by the father against the mother, often in the presence of the children. The father had been convicted of assaulting the mother, and the children witnessed that assault. In that case, the court found that the children's relationship with the father was "marred by family violence" [56] and that the nature and extent of the violence precluded the possibility that they could benefit from a meaningful relationship with him.⁸⁴ In Tisdale v Roganda, the court accepted evidence that the father had the capacity to show violent behaviour, which placed the children at risk even though they were not the target, and ordered that the children not spend any physical time with their father.⁸⁵ In Lansdowne v Shannon,the court made a different assessment. In the context of a finding that family violence had occurred in circumstances that included the children being present during incidents where the father verbally abused the mother and intentionally damaged property, orders were made for the children to spend substantial and significant time with their father.⁸⁶ Having found that family violence had occurred, the court also accepted the evidence of the single expert witness that characterised the violence as "couples situational violence" that was not of a coercive and controlling nature. The court accepted the evidence of the expert that the children had not been traumatised by their exposure to family violence and had a warm and engaged relationship with the father. Orders were made for equal shared parental responsibility and that the children live with the mother and spend substantial and significant time with the father.

In Parsons v Kemp, the court did not make a finding that family violence had occurred, but it did take the effects of the children's exposure to parental conflict into consideration when assessing the need to protect them from psychological harm. The court concluded that the relationship was dominated by ongoing conflict fuelled by both parties, such that "it is the challenge of shielding the children from the conflict between the parents that is the major feature".⁸⁷ In this case, an order was made for there to be equal shared parental responsibility and for the children to live with the mother and spend substantial time with the father.

Similarly, in Kardos v Coutts substantial time between the child and father was ordered in the context of a finding that the father had been emotionally abusive of the child by actively including him in the parents' conflict.⁸⁸ In Baxland v Vincent, the court identified the effect of the parents' intense conflict and lengthy litigation on the child's emotional and psychological welfare and made orders for the child to spend time with the father that were predicated on a course of family therapy intended to help the parents and the child transition to the new time arrangements.⁸⁹ In each of these cases involving ongoing parental conflict, a meaningful relationship was considered to be viable and in the child's best interests. Green v Townsend illustrated an alternative approach: in this case the court found that the evidence was "strongly indicative of orders being put in place that are protective of the children from exposure to psychological harm as a result of conflict between parents" and ordered limited supervised time between the children and the father.⁹⁰

4.4 Giving greater weight to protecting children from harm

An important element of the 2012 family violence amendments was the introduction of a new provision at s 60CC(2A), which explicitly prioritises the need to protect children from physical or psychological harm arising from being subjected or exposed to abuse, neglect or family violence in parenting matters. Greater weight is required to be accorded to this primary consideration over the primary consideration relating to the benefit to the child of having a meaningful relationship with both parents. The discussion in this section considers varying approaches to the application of s 60CC(2A) in judgments analysed for this study. These approaches include the interpretation of s 60CC(2A) as shifting the balance but not altering the need to consider the evidence as a whole; the operation of s 60CC(2A) as a "tie-breaker" and the consideration of s 60CC(2A) in the context of applying the unacceptable risk test. It is important to note, however, that the judgment analysis did identify overlap between these interpretation categories, with some judgments (discussed towards the end of this section) indicating the application of a combination of these approaches to the interpretation and application of s 60CC(2A).

Consideration of the implications of these amendments emerged in judgments shortly after they came into effect. In McAllister v Day, in an interim relocation hearing, the court described the priority to be accorded to s 60CC(2)(b) in the context of considering the whole of the evidence.⁹¹ In this case, the mother had unilaterally relocated with the parties' child, then aged 18 months, alleging that the father's serious violent behaviour involving "persistent violence, threats and verbal abuse",⁹² at times in the presence of the child, had left her with "no viable alternative … other than to flee to family members in another state".⁹³ The alleged incidents included strangulation and threats of facial disfigurement with a 35 cm knife. The mother sought orders that the child live with her and that in due course, the child spend time with the father at a children's contact service, subject to his successful completion of an anger management course. The father's position was that the mother had fabricated the allegations and that the child's age and the parties' financial constraints (which would prevent regular visits to the relocation venue) were such that his relationship with the child would be extinguished if relocation was permitted to continue.⁹⁴ The court described the case as "difficult and finely balanced", with the parties' positions "polarised in the extreme".⁹⁵ In ordering the mother's return with the child, the court held that:

The court's priority is to be focused on protective concerns relating to the children, particularly X. However, that does not give it carte blanche to ignore other of the considerations arising under s 60CC, including the benefits of X having a meaningful level of relationship with both his parents.⁹⁶

This interpretation of s 60CC(2A) as shifting the balance, but not altering the need to look to the whole of the evidence, was also expressed by the court in Kusic v Short.⁹⁷ In this interim hearing, the court considered evidence that the father had physically assaulted his sister (with whom he had lived), and that this event, which also resulting in the fracturing of the father's relationship with his extended family, had caused the mother to remove the children from his care. The mother sought a change to the orders that their children live with the father as he no longer had the support of his family to care for them. In ordering that the children continue to live with the father and spend increased time with mother, the court held that:

The question, to my mind though, is whether the fact that such violence is established something that constitutes, as it were, an absolute bar against the perpetrator? In my view, that is not necessarily so. As I have said, what needs to be looked at is the totality of the factors, but giving real priority, as the Act requires, to the violence aspect.⁹⁸

The decision of the court in Shivas v Darby provides an example of s 60CC(2A) operating as a tie-breaker during the application of the best interests considerations.⁹⁹ This case concerned the parenting arrangements for a child aged five and a half years in circumstances where the mother alleged that there had been many incidents of violence, including assault "too many for her to recollect as separate events" [3]. The father denied the assaults although he agreed that their relationship was "characterised by anger, argument and conflict".¹⁰⁰ The court found that "to some extent, the allegations of violence were reduced in significance by the concession by the mother that although she did not step back from any of her allegations of serious assaults on her by the father over the years they were together, that he had never represented a threat to the child, was not violent or abusive towards him and was not in her view, a source of risk to the child".¹⁰¹ Since the parties separated, the child had lived with the mother and had generally spent regular time with the father. In the proceedings before the court, the father sought that the child live with him on the basis of his concerns for the child's safety in the mother's household, which consisted of two children aged two years and one year with her current partner, and his six and a half year old son occasionally spent time in their home. The father and his current partner were expecting a child and were due to begin cohabitation at the conclusion of the proceedings. Relevant evidence before the court included evidence of both the child and another of the mother's children suffering fractured skulls in separate incidents while in her care, with the court noting the mother's evasive explanations about these instances, her evasive response to allegations of violent assaults of her by her current partner while she was pregnant and when the children were present in the home, together with her denial of the ongoing relationship with her current partner.¹⁰² The court described the family consultant's position in the Family Report as clear - "that the needs of the child would best be met if he remained in the care of the mother, in the company of his younger sisters, with regular alternate weekend and holiday time with the father, provided that the relationship between the mother and her partner ceased".¹⁰³ Although both parents were found to have a meaningful relationship with the child and the capacity to provide for his needs, the court held that the mother was "unable to reconcile the need to protect the child by giving up the ongoing partnership with the father of her two younger children".¹⁰⁴ A switch in the child's primary living arrangements from the mother to the father was ordered on the basis that the mother's new partner was a risk to the child, that the child was fearful of him and that the court was "obliged to give greater weight" [159] to the protective consideration:

The child has been exposed to family violence and there is a need to protect him from both physical harm and psychological harm arising from that situation. He was exposed to family violence as an infant before his parents separated. More recently, he has been exposed to the violent and unpredictable relationship between the mother and her partner. He was present in the home when the mother's partner tried to strangle her and then kill himself. It could hardly be more serious. The child does not like the mother's partner and is frightened of him … I am obliged to give greater weight to the consideration of keeping a child safe at the expense of a child maintaining meaningful relationships with both parents.¹⁰⁵

On this basis the court ordered that:

the safest course is for the child to live with the father and spend regular time with the mother and his sisters, provided he is not brought in contact with the mother's partner. This has the potential to create some real difficulties for the child in relation to the mother and his sisters, but represents a balance between his emotional needs and his physical and psychological safety.¹⁰⁶

The operation of s 60CC(2A) as a tie-breaker also emerged in Gomez v Banks,¹⁰⁷ Kapoor v Shah¹⁰⁸ and Oakes v Oakes.¹⁰⁹ In Gomez v Banks, albeit with the evidentiary limitations associated with interim proceedings, the court accorded greater weight to the need to protect the child from harm by adopting the "safe course" of ordering that the child live with the mother and spend supervised time with the father. The court described this as the "father's time being undertaken at least on an interim basis in protective and controlled circumstances".¹¹⁰ In Kapoor v Shah, the court noted the mother's allegations of family violence and the father's position that the mother's allegations were causing the children apprehension. The court identified the need to give greater weight to children's safety and made final orders that sought to "balance those matters by providing a secure environment for the father's time with the children". ¹¹¹This approach may also be observed in Oakes, where the court found that the father was unable to engage in a meaningful relationship with the child. This view was formed on the basis of evidence that the father was a violent, abusive and angry man with no insight into his behaviour. The court accepted evidence that the father's conduct during supervised time with the child, as observed by the contact centre, was out of control, angry and abusive, and that he had not used the opportunity to try and build a relationship with his child. The court found that the father's conduct presented a risk of psychological harm to the child, even in a structured contact setting.¹¹²

Alternatively, in Cantere v Wilton- Stote,¹¹³ the court considered s 60CC(2A) in the context of an application of the "unacceptable risk" test.¹¹⁴ In this case, the children lived with their mother, spending time with the father post-separation until the mother relocated with the children. Their time with their father ceased following allegations of sexual abuse of the children on the part of the father, made approximately two years after separation. The mother sought orders that she have sole parental responsibility and that there be no orders for the children to spend time or communicate with the father. The father sought orders for the mother's return with the children and for them to spend time with him.

In relation to s 60CC(2A) the court held that:

These (s60CC(2)(a) and (b)) considerations pull in opposite directions. In the great majority of cases it is very much in a child's best interests to have a meaningful relationship with both parents. But it is also vital to protect children. Whilst these are primary considerations, they would not normally "trump" the additional considerations which are set out in section 60CC(3). However in this case in my view the need to protect the children is paramount and the case will be decided on this issue.¹¹⁵

The court described the approach taken as follows:

I emphasise that in making my decision I am not making a finding that the father has sexually abused the children. The evidence falls far short of that which would be required to make such a finding. And indeed I am not required to make such a finding and should not do so unless it is necessary. The test that I must apply is whether the children's spending time with the father would expose them to an unacceptable risk of sexual abuse.¹¹⁶

The father argued that the mother had "either coached the children to make the allegations or that she had in some way infected them with her attitude to the father and to child sexual abuse that what they recounted (was) totally unreliable and … not capable of founding a finding of unacceptable risk".¹¹⁷ While the he court described "credibility gaps in the mother's evidence" [67] the court held, contrary to the submissions of the Independent Children's Lawyer, that the children would be exposed to an unacceptable risk of sexual abuse if they spent time with the father:

In making my decision I do not overlook the fact that the allegations were made by young children who may not be reliable. I am conscious that memories may be implanted in such children. I note that the first statements made by Y were a result of direct questions asked of her by the mother. A trained investigator would not have approached the matter in this way. I note that when interviewed by the South Australian Child Protection Services X made no disclosures…The authorities have used various phrases when attempting to define what is meant by the term "unacceptable risk". In the High Court case of M v M (1988) 166 CLR 69; (1988) FLC 91-979 the trial judge made reference to having a "lingering doubt" as to the allegations of sexual abuse made against the father, that is a lingering doubt as to his innocence. For my part in this case I have more than a lingering doubt. I find the statements made by the children gravely concerning. They are in age appropriate terms. They do not give the appearance of being coached and in any event the mother's reaction to the investigation is inconsistent with this theory…I am unable to find that the mother's attitude has in some other way infected the children and is the explanation for their statements. I find that the children's spending time with their father would expose them to an unacceptable risk of sexual abuse.¹¹⁸

On this basis, orders were made permitting the mother to remain in the relocation area, for her to have sole parental responsibility and for the children to live with her, and restraining the father from being in the relocation area.

Applications of the unacceptable risk test also emerged in Mertens, Deane v Deane,¹¹⁹ Clayton v Bant (No. 2)¹²⁰ and Potter v Ross.¹²¹ In Mertens,the court held that the approach to be applied was:

directed at the existence and quantification of risk, since there is a discernable difference between any risk at all and a risk which is not worth taking.¹²²

In that decision, the court was unable to make a finding as to whether the sexual abuse had occurred in relation to the child, but found that the father did pose an unacceptable risk to child. Considerable weight was given to evidence that the father presented a risk of sexual abuse to the child, including that he had fathered another child with a minor and had been convicted and incarcerated for molestation and attempted rape of another child.

Similarly, in Deane v Deane, the court was unable to make a positive finding of sexual abuse, but found that "the totality of the facts indicates that, absent of some close monitoring of the children in his presence, they are at risk of abuse and I find that risk unacceptable having regard to the nature and extent of the allegations".¹²³ The decisions in Campbell v Wilson and Anor¹²⁴ and Oden v Remmy¹²⁵ canvassed similar issues and resulted in similar outcomes.

In Clayton v Bant (No. 2),¹²⁶ the unacceptable risk test operated as a reference point in circumstances where the risk arose from a source other than sexual abuse. In this case, the court relied on a consideration of unacceptable risk in determining that the child would experience psychological harm if the father (who was an Emirati citizen) removed her to the United Arab Emirates, with the consequential effect that he would seek to impose that country's law, which would result in the child's relationship with the mother being seriously interrupted.¹²⁷ Whether the child was at unacceptable risk of emotional harm was also a factor identified in the court's decision in Potter v Ross.¹²⁸ In this decision the court considered whether the child was at risk in both parents' households (by way of exposure to domestic violence in the mother's home and through the father's efforts to manipulate and undermine the child's relationship with the mother). Drawing on an assessment of unacceptable risk, the court found that the risk of physical harm was not present but that the child was at significant risk of emotional harm from "the father's manipulative and undermining parenting".¹²⁹

A combination of approaches were evident in Merrick, with reference to both the language of s 60CC(2A) and the language of "unacceptable risk". In this case, the court was satisfied on all the evidence that there were reasonable grounds to believe that the father had engaged in chronic family violence over a significant period of time, to which the children (aged almost five and three years at the time of separation) were exposed.¹³⁰ The court accepted that the father's violent behaviour against the mother had continued post-separation and that the father had not spent time with the children since the Christmas Eve two years prior to the hearing, when the father had assaulted the mother in their presence.¹³¹ The mother's evidence was that she had suffered substantial injuries requiring medical treatment as a result of the events of this day and that the father was convicted of assault after he had forced his way into the house by smashing the backdoor, repeatedly punching and hitting the mother, breaking things in the house, including the children's Christmas presents, together with smashing the lounge room windows and damaging the cars parked in the mother's driveway.¹³² On this occasion, the mother called the police and obtained an interim intervention order to protect herself and the children. Other violent incidents deposed in the mother's evidence included an attempt by the father to strangle the mother, and the father punching her repeatedly in the face, causing bleeding and severe bruising and causing the child present to become "highly distressed".¹³³ The evidence also detailed several assaults of the mother while pregnant with their second child, including the father verbally abusing the mother and punching her in the stomach when she was 12 weeks' pregnant; destruction of property in the presence of the mother and children; suspected destruction of the mother's and children's personal property and damage to their home; and a "distressing altercation" involving the father attempting to cause a collision between his car and the car containing the mother and children.¹³⁴

This case was heard in the absence of the father, who had failed to attend any hearings of which he had been provided sufficient notice. The court indicated that in applying the primary considerations, greater weight must be accorded to the need to protect children from physical and psychological harm and that in this case:

the nature and extent of the family violence led … to the conclusion that the benefit to the children of having a meaningful relationship with the father is outweighed by the need to protect them from the psychological harm of being subjected to family violence as defined in the Act.¹³⁵

Together with the history of family violence that was corroborated by the father's criminal history records, the court noted that the children had clearly expressed their views to the family consultant that they did not want to meet the father, and the court found that the children no longer had a relationship with their father "and their relationship with him prior to that time was marred by family violence".¹³⁶ The court referred to evidence including that of the mother and the family consultant in finding that the father could not meet the children's emotional and intellectual needs and that his history of violence and lack of remorse (reported by the family consultant) was not indicative of responsibility towards parenthood. Having considered each of the primary and additional considerations contained within s 60CC(2) and s 60CC(3), the court concluded that:

I accept the submissions of counsel for the mother and the Independent Children's Lawyer that there is an unacceptable risk of psychological harm to the children if they spend any time with the father. … I am satisfied that having regard to the recommendations of the family consultant, the violence demonstrated by the father against the mother in the presence of the children and the wishes of the children, that the father should spend no time with the children. I am satisfied that it would be contrary to the best interests of the children to spend time with the father and that there is a need for a court order prohibiting contact between the father and the children to limit the instigation of further proceedings concerning the children. Accordingly, I make orders as proposed by the mother and the Independent Children's Lawyer that, essentially, the children live with the mother, the mother has sole parental responsibility for the children, that the father should spend no time and have no telephone or internet contact with the children, save for that the father be permitted to send the children or either of them a letter or card on four occasions each year.¹³⁷

In McAllister, the court also employed both the language of s 60CC(2A) (as detailed at the outset of this section) and the language of unacceptable risk:

Pursuant to section 60CG, the court is directed, consistent with the best interests of the child concerned, to make orders that will not expose a person to "an unacceptable risk of family violence." Clearly the distance involved in any move; the nature of the violence involved; and the circumstances of the parties concerned; will have implications for assessing the risk arising from the violence alleged. …it would seem to me likely that the risk would be manageable (and so not one unacceptable to take) if (the mother) lived more proximately to the (omitted) and availed herself of the protection of a family violence order.¹³⁸

In Lowrie, a combination of approaches was also evident, with the court first considering the evidence relevant to s 60CC(2)(b) through the prism of unacceptable risk, before proceeding to employ the language of s 60CC(2A) when concluding that:

the risk of harm posed to the children by the father is too pronounced to presently permit their interaction with him. That consideration outweighs the desirability of their re-engagement with their father in the hope of them deriving benefit from meaningful relationships with him.¹³⁹

Similarly, in Simpson a combination of approaches was applied, where the court found that although the father did not present an unacceptable risk of sexual abuse to children, one of the children feared their father and the father had exposed the children to physical abuse, anger and family violence. In balancing the conclusions about unacceptable risk and the need to protect from harm, the court concluded that:

despite the emphasis on the need to protect children from abuse and family violence, I am satisfied that there is not an unacceptable risk of the children being exposed to abuse or family violence by the father, such that it overrides the benefit to the children of having a meaningful relationship with him.¹⁴⁰

4.5 Parental capacity

As noted at the outset, one aspect of the 2012 family violence amendments was the removal of a s 60CC(3) consideration requiring courts to consider the extent to which each parent had facilitated the involvement of the other's relationship with the child. This consideration, known as the "friendly parent" criterion was included in the s 60CC(3) considerations as part of the 2006 family violence amendments. Research examining the operation of the 1995 amendments demonstrated that behaviour by one parent indicative of a lack of support for the child's relationship with the other parent was considered evidence of poor parental capacity by the courts (Kaspiew, 2005b). The repeal of the provision as part of the 2012 family violence amendments was intended to remove disincentives to disclosing concerns about family violence and child abuse, as noted in the introduction. The findings of the Court Files Study reported in Chapter 3 indicate that arguments relevant to this concept have nonetheless been raised more frequently after the reforms than before the reforms. This section discusses cases in which this concept is raised, considering its place in the overall "factual matrix"¹⁴¹ of individual cases and the bearing it has on outcomes. The analysis shows that arguments related to this concept arise in a variety of ways. At their highest, arguments of this nature raise concerns about what is known as "alienation", a contentious concept that is used to describe circumstances in which one parent is seen to be deliberately undermining the child's relationship with the other parent.¹⁴² Over a substantial period of time, a range of concerns have been raised about the application of this concept, including the fact that its foundation is not established within scientific literature and that it is an argument that may be raised to deflect attention from concerns about family violence and child abuse. An evaluation of the available empirical evidence about parental alienation has concluded that "it is not a diagnostic syndrome at this time but rather a cluster of commonly recognized symptoms; there is little empirically validated evidence about cause, prognosis, and treatment. The present research findings suggest that multiple other factors also contribute to the problem, including higher levels of inter-parental conflict, age of children, personality predispositions of family members, parenting and parent-child relationship patterns, living arrangements and ongoing custody litigation" (Saini, Johnston, Fidler, & Bala, 2012). In another analysis of the literature, Fidler and Bala distinguished alienation from "realistic estrangement", in which a child's resistance to spending time with a parent is based on witnessing family violence or being subject to abuse or "significantly inept or neglectful parenting" (Fidler & Bala, 2010).

The Published Judgments study shows that in some cases, arguments relating to supporting the other parent's relationship are not raised within an alienation framework but are nonetheless part of an overall pattern of facts raised for consideration by the court. This analysis of published judgments provides insight into the nature of these arguments to shed further light on the implications of the Court Files Study findings about the continuation of emphasis on this issue in arguments raised in children's proceedings.

The case law indicates these arguments are framed as being part of an assessment of parenting capacity, which is explicitly required by s 60CC(3)(f) (the capacity of each of the parents and any other person to provide for the needs of the child, including emotional and intellectual needs). They are also relevant to a consideration of s 60CC(3)(c) and (ca) (which relate to the extent to which a parent has taken or failed to take the opportunity to fulfil their parenting obligations). In other cases, it is simply considered relevant to a consideration of the risk of psychological harm under s 60CC(2)(b). The analysis of judgments demonstrates that this consideration arises in a range of circumstances, including in relation to the behaviour of parents with most time, parents with less time, and mothers and fathers. It is regularly raised against a background of allegations concerning family violence and child abuse. In some instances it appears to be raised to counter such allegations (e.g., Phitzner v Hollas [2014] FamCA 344). In others, behaviour that undermines the children's view of a parent occurs against a background of family violence perpetrated by the undermining parent (e.g., Kappas v Drakos [2015] FCCA 147).

The discussion that follows considers three themes in considerations of parental capacity that arise in the published judgments. The first theme considers some cases in which judicial commentary indicates that acting protectively when there are concerns about family violence and abusive behaviour does not amount to a deficiency in parental capacity. The second theme arises from judgments in which the parenting capacity of the majority time parent is seen to require support as a result of abusive behaviour from the other parent. The third aspect concerns approaches in judgments where parents' actions in relation to the children's relationship with the other parent are under consideration in the context of concerns about family violence or child abuse. The approach taken by the courts in these cases generally depends on whether allegations of family violence or child safety are seen to be well founded. When they are not, possible outcomes include a diminution or even cessation of time with the parent who is seen not to be supportive of the other parent's relationship with the children. When they are, a range of outcomes is possible, including a cessation or diminution of time with the parent who is found to be abusive. However, such outcomes are not easily reached, even in cases where parental behaviour is found to be well short of adequate. Not uncommonly, courts will make orders for parents and children to engage in therapeutic interventions to restore relationships where difficulties in the parent-child relationship are attributed to the behaviour of the other parent. However, even where the parent's own behaviour has contributed to the difficulties in their relationship, such outcomes are also evident.

4.5.1 Acting protectively

Some cases reflect an approach that, consistent with the 2012 family violence amendments, does not reinforce a parental obligation to support contact where family violence or abusive behaviour is relevant. Such approaches pre-date the reforms. In Oakes, against an established background of significant and sustained family violence (see above), the court favourably considered the mother's efforts to promote a relationship between the child and the father and did not criticise her ultimate decision to suspend the time they spent together, noting "the father's behaviour was such that she was unable and unwilling to continue". ¹⁴³The orders made, that there be no contact between the child and father, confirmed the mother's decision to prioritise her own and the child's safety over maintaining time with the father. In De Young & Krebig, the court supported the mother's decision to relocate from Sydney to Melbourne to remove herself and the child from "an environment which carries risk of being fuelled by anger, instability, volatility and potentially violence".¹⁴⁴ Although in the context of an appeal against a determination that the mother had contravened orders without reasonable excuse, in Tindall v Saldo,¹⁴⁵ the mother's decision to withhold the child from spending supervised time with the father was subsequently identified as protective in nature.¹⁴⁶ In this case, the mother's contravention occurred in the context of a criminal trial against the father for multiple physical and sexual assaults of the mother and physical assault of the child. The judgment indicates that following the mother's cross-examination over a period of two days, the father pleaded guilty and was released on bail to await sentencing. It was in this context that the court on appeal held that the mother's appearance as a witness and the father's guilty plea was identified as constituting a "palpable change" in the "underlying family dynamic".¹⁴⁷ The court noted the "mother's unchallenged evidence about this turn of events was that as far as she was concerned the father would carry out his previous threats to kill her and the child 'for taking him to court to accept responsibility for his many assaults on [her and the child]' " and that the only way to prevent this was to avoid contact with the father.¹⁴⁸ It was held that the trial judge erred by "failing to have regard to material facts, namely the events of and surrounding the criminal trial, in finding that the mother's belief was not based on reasonable grounds".¹⁴⁹

4.5.2 Supporting parenting capacity

A further dimension of the way parenting capacity is considered can be seen in the way in which some courts will seek to balance the risk of psychological harm to the children if they do not spend time with one parent, against the risk of harm to the children if their primary parent's capacity is adversely affected by fears arising from the children spending time with the other parent. Orders may be made in a variety of forms to achieve this balance.

In Baldwin v Baldwin, the court considered whether the father's time should be supervised because of the effect that unsupervised time would have on the mother's ability to parent, in the context of allegations of sexual abuse and the mother's fears concerning the risk of physical and emotional abuse of child. This question was canvassed by the judge in some detail, before concluding that the effects should not be such that the child's wellbeing will be affected. Supervised time was subsequently ordered as a temporary measure, but for the reason of allowing the child and father to rebuild their relationship after a period of fairly restricted contact.¹⁵⁰ The court applied a similar construction of harm in Vance v Carlyle. In this case, the court found evidence in support of the mother's allegations of family violence, and for this reason felt it was appropriate to restrict the father's time with the child. But it was also noted that a factor in ordering that the father's time with the child be supervised was need to protect the child from the harm that would likely arise if the mother's parenting capacity were further eroded, which was thought likely if too much contact with father was required.¹⁵¹

In Modlin v Anstead and Anor, the court engaged in a detailed discussion of the evidence of a history of family violence perpetrated against the mother and to which the children were exposed. Much of the evidence was left unchallenged by the father. The court ordered no time between the children and the father, in large part on evidence that the mother's parenting capacity would be significantly degraded if the father continued to have contact with the children.¹⁵²

Supervised time is also used as a precautionary measure in interim proceedings where the basis for the parent's fears has not yet been tested. In Holinski v Holinski, the court ordered supervised time as a means of facilitating the relationship between the father and the children, in the context of concerns about the effects of that contact on the mother's parenting capacity. In this case, the mother (with whom the children lived) alleged the father and his family were members of a religious cult, and that the father posed a risk to the children because of his religious beliefs and practices, and had sought to ensure that the children had no ongoing contact with him or his family. The mother had proposed to relocate with the children to the United States with her extended family in order to ensure the children's relationship with the father was entirely severed. The court was quite critical of the mother and her "unreasonable attitude" to the father and of the mother's capacity to provide for the emotional needs of the children, but nonetheless made orders that the father's time should be supervised.¹⁵³The court took a similar approach in Hibberd v Banner, where supervised time was ordered in interim proceedings to "mollify the risk [of sexual abuse of the children by the father] about which the mother is concerned".¹⁵⁴

4.5.3 Undermining the other parent's relationship

However, other cases suggest that actions considered not supportive of the relationship between a child and their other parent will often not be viewed as protective, and will instead be seen as a possible cause of harm to the children. This approach can be seen in Phitzner (see above), in which the court was very critical of the mother, who alleged the father had perpetrated serious physical and sexual violence against herself and the children. The court found "the evidence establishes the mother has been deceptive and manipulative of the circumstances and has displayed little or no insight as to the interests of the children and how they would be served by the mother supporting a proper and meaningful relationship with the father".¹⁵⁵ In this case, the mother - on the grounds that she and the children were at risk of harm from the father - had not facilitated the children spending time with the father in the past and had at times not complied with subsequent interim orders providing for supervised time between the children and the father. The court did not accept the children were at risk from their father and considered making an order that would see the children removed from the primary care of their mother and placed in the care of the father because:

a significant issue in the proceedings is whether by dint of the mother's behaviour, spurious allegations and a demonstrable inability to support the relationship between the children and their father notwithstanding interim orders to that effect, whether indeed arising out of the mother's behaviour she should be considered an unacceptable risk to the children.¹⁵⁶

A similar approach is evident in Reamy v Haycox.¹⁵⁷The court was critical of the mother for not supporting a process of therapeutic counselling for the children that was intended to help repair the relationship with their father. In this case, the court found that the father had perpetrated family violence and the children had been exposed to that violence, but considered that the children were not currently at risk of harm from him. As in Phitzner, the court also considered an order that the child be removed from the mother's primary care on the basis that there was a risk of emotional harm to the child because of negative attitudes about the father in the mother's household.¹⁵⁸ Despite clearly being in contemplation, the court did not make orders changing primary care of the children in these two cases, instead making orders either for shared parental responsibility (Phitzner) or sole parental responsibility to the mother (Reamy), and for the children to spend substantial and significant time with the fathers.

However, there are several examples of cases where a parent's incapacity to support a relationship between the child and the other parent was considered to be sufficiently harmful to the child to warrant such a change. In Schieffer v Schieffer, the child's father had raised allegations of sexual abuse of the child by the mother's partner, and had consequently taken the child from the mother's care and refused all contact between them. The court found the child was no longer at risk of sexual abuse as the mother's relationship with the partner had ended, but that the father had acted indefensibly in preventing all contact between the child and the mother and had intentionally acted to exclude the mother at key junctures and weaken her relationship with the child. A change in the child's residence was ordered because the mother was considered more capable of promoting the child's relationship with father.¹⁵⁹

In Tamarovic v Gillard, the court considered evidence that the mother had sought to alienate the child from the father and had "coached" [158] the child in relation to sexual abuse allegations against the father. The court concluded the evidence did not support a finding that the child was at risk of deliberate physical harm from the father, and was concerned that if the child continued to live with the mother she would be taken to unnecessary therapeutic interventions and exposed to negative views about the father. A change in the child's living arrangements was ordered because the father was seen to be more capable of supporting the child's relationship with the mother.¹⁶⁰ In Colvan v Colvan, the court ordered a change in the children's living arrangements on the basis that it was the only option to deal with the father's efforts to undermine the children's relationship with mother, and mitigate the risk to the children's emotional and psychological wellbeing. The father's animosity was based on his fixed view that, because the children were born using IVF technology using his sperm but donor eggs, he was the only parent of the children and the mother was nothing more than an incubator.¹⁶¹

The outcomes of changed residence in these last case examples are a response to circumstances that the courts considered indicated entrenched views held by the respective parents. There are other cases that suggest that in some circumstances, courts will attempt to structure arrangements to mitigate the effects of the non-supportive parents' behaviours rather than change residence. For example, the court in Blaxland v Vincent considered in some detail the evidence that the conflict between the parents had inhibited the mother's ability to foster a relationship between the child and the father, and that this had influenced the child's strong view that he did not want to spend time with his father. Despite evident concerns about both parents' capacity to develop any level of co-parenting and co-nurturing of child, the court concluded that a relationship between the child and his father should be maintained, in the child's best interests.¹⁶² In making this decision, the court noted that the proceedings had been instituted after s 60CC(3)(c) had been amended, but that the mother's actions in exposing the child to her own issues with the father were still relevant to a consideration of s 60CC(2)(b).¹⁶³

In Vaughton v Randle, the court, in considering the amended s 60CC(3)(c), found that the mother was intent on "disrupt(ing) the relationship between the father and the child and is resistive to the father being involved in decisions about major long term issues". ¹⁶⁴While making orders for the child of the relationship to remain living with the mother, the court was critical of the mother's efforts to deliberately disrupt the relationship between the father and the child, finding that she was "wilfully blind to the serious impact on the child's wellbeing".¹⁶⁵ Rather than making the order for sole parental responsibility sought by the mother, the court ordered that the parties share parental responsibility and that the mother return the child to live in the state from which the child had previously been removed so that time between the father and child could be facilitated.

In Elrasheed v McGrieve, rather than a change in residence, the court ordered equal shared parental responsibility and orders for increasing unsupervised time between the father and child in the context of a "highly conflicted" relationship between the parties, and with the mother's position being that the child would be exposed to an unacceptable risk of sexual abuse by the father if she were to spend unsupervised time with him.¹⁶⁶ The court held that:

Whilst I do not go as far as finding that the Mother has deliberately made up the allegations, I am satisfied that she has misperceived certain things that she has seen and heard in respect of her child and exaggerated them in her own mind to the point of conviction in her position, whilst at the same time motivated by a constant desire to restrict the child's time with the Father.¹⁶⁷

In Potter, the court concluded that the father, who was not the "live with" parent, and who had a persistent view that the child was at risk in the mother's care, was unable to facilitate a relationship between the child and mother as he was so focused on protecting the child from her. Supervised time was ordered with the father as a means of enabling the child to maintain a relationship with his father, while "protecting him from the destabilising influence of the father's manipulation". ¹⁶⁸

In Pierce v Caswell,¹⁶⁹ the court was similarly critical of the father and his partner (who was also not the "live with" parent) for behaving in a manner that sought to undermine the mother's relationship with the child:

The father has never been the primary carer, he has limited experience in having [X] with him for lengthy periods, and he has shown a willingness to disregard [X]'s relationship and love of her mother which is most troubling. Added to this, the father has shown a willingness to be under the influence of Ms C who he loves and respects and in whom he sees no faults. The Court has grave reservations about how long the child's relationship with the mother would last if [X] lived under the primary influence of the father and his de facto partner. Together they have demonstrated a strong desire to assume all parenting decisions and to exclude the mother. Together they have demonstrated contempt for the mother on a personal basis. Ms C has tried everything in her armoury to have the mother statutorily assessed for mental illness, reported to the Department of Child Safety, she has engaged in tactics with a counsellor to have the child in the possession of herself and the father and to control and halt the child's relationship with the mother. The father has been a willing partner and or gone along with the decisions made by Ms C. His inability to see how intrusive these actions have been is quite troubling for the Court. These actions engaged in by both the father and his partner do neither of them any credit.¹⁷⁰

In this case, the court ordered equal shared parental responsibility for major long-term issues relating to the child; however, the father's partner was specifically excluded in the orders from involvement in this responsibility, with the father's time with the child being conditional on his partner refraining from corresponding with the child's schools, doctors, counsellors or other professionals.

In Sawant v Karanth,¹⁷¹ the father's lack of "emotional empathy to the child and the child's relationship with the mother … against a background of violence and abuse perpetrated by him on the mother" was identified in the primary judgment as a relevant to the consideration of s 60CC(2)(b).¹⁷² In this case, the father appealed against orders permitting the mother to relocate with the child to live in India. The trial judge found that were the mother to continue residing in Australia, she and the child would be exposed to the prospect of the father's continuing adverse behavior, while her relocation to India would remove this risk and provide the mother and child with the protective support of her extended family.¹⁷³ In the context of considering the parties' capacities to provide for the needs of the child (including emotional and intellectual needs) (s 60CC(3)(f)), the trial judge held that the father had "shown scant regard for the mother-child relationship", referencing behaviour such as his "patent lack of concern for the child's circumstance" when removing the child, then aged four weeks, from the mother's care.¹⁷⁴ While this decision preceded the amendment to s 60CC(3)(c), the trial judge, on the other hand, noted that the mother's "significant reservations" in relation to facilitating and encouraging a close relationship between the child and the father were "well-founded".¹⁷⁵

4.6 Summary

This chapter has examined the application of legislative provisions that form a key part of the 2012 family violence amendments. The focus of the discussion has been the application of the new s 4AB definition of family violence, including recognition of children's exposure to family violence and s 60CC(2A), which accords greater weight to the protection from harm principle where it conflicts with the child's right to a meaningful relationship with both parents. The chapter has integrated discussion of these provisions with an analysis that also considers court approaches to these provisions in the context of the overall decision-making framework in Part VII of the FLA.

The analysis of published judgments reinforces the pertinence of some of the concerns summarised in the discussion of previous commentary at the beginning of this section; however, it is also clear that a range of judicial approaches are evident on some issues, and there is some variation in approach in a context where appellate consideration of key areas of uncertainty has not yet occurred.

Overall, the analysis demonstrates that the constellation of facts and evidence in any given case will determine how particular provisions are applied in that context. The issues relevant to parenting order outcomes highlighted in this analysis are the nature and severity of family violence, the nature of the child's relationship with each parent, and the conclusion formed by the court about whether the family violence is of a level of severity sufficient to justify orders ceasing or restricting parent-child relationships in the context of the behaviour of each parent. In some cases, close attention is paid to the s 4AB definition, including whether fear, coercion, and control have been established, but this is not always the case. On the one hand, it is clear that courts are not infrequently presented with cases in which the evidence clearly establishes a relevant and severe history of family violence justifying orders limiting or ceasing contact with the perpetrator (e.g., Oakes). On the other hand, other judgments demonstrate that in some circumstances the court's analysis of relevant facts and evidence will not lead to a finding of family violence, or even if it does, this will not always result in the non-application or rebuttal of the presumption of equal shared parental responsibility (e.g., Weber v Lipson, Phitzner v Hollas).

This Published Judgments Study considered varying approaches emerging in relation to the application of s 60CC(2A), which explicitly prioritises the primary consideration in s 60CC(2)(b) which relates to "the need to protect children from physical or psychological harm arising from being subjected to, or exposed to abuse, neglect or family violence". The approaches emerging in the analysed judgments included the interpretation of s 60CC(2A) as shifting the balance but not altering the need to consider the evidence as a whole; the operation of s 60CC(2A) as a "tie-breaker" and the consideration of s 60CC(2A) in the context of applying the unacceptable risk test. A further approach emerging involved judgments reflecting the application of a combination of these approaches to the interpretation and application of s 60CC(2A). In relation to the first-mentioned approach, in Kusic and McAllister, the courts respectively reflected an approach that identified s 60CC(2A) as shifting the balance by according priority to s 60CC(2)(b), but as not altering the need to look to the evidence as a whole and to the totality of relevant factors. The application of this approach was such that while priority was to be accorded to protection from harm arising from family violence, the fact that family violence had been established or that serious allegations of family violence had been made would not necessarily prevent the making of orders to facilitate a meaningful parent-child relationship. The judgments in Shivas and Kapoor provided examples of s 60CC(2A) operating as a tie-breaker in the context of an application of the best interests consideration by the court. In these cases, the priority accorded to the protection from harm primary consideration over the meaningful relationship primary consideration tipped the balance in favour of orders that were viewed as the safe course of action. The court's decision in Cantere provides an example of the consideration of the s 60CC(2A) in the context of an application of the unacceptable risk test. In this case, the unacceptable risk of sexual abuse informed the priority accorded to the protection from harm consideration. The judgment analysis also identified cases such as Merrick and Lowrie, where a combination of approaches were reflected in the decisions, including the consideration of evidence relevant to s 60CC(2)(b) through the prism of the unacceptable risk test, together with employing the language associated with the requirement to accord greater weight to the protection from harm primary consideration as a result of s 60CC(2A).

In some judgments, the motivation behind a parent's behaviour in raising concerns about family violence and child abuse received significant scrutiny in court decision making, and a variety of approaches, including changing the parent with whom a child spends most time, are applied in situations in which a court concludes that such concerns are unreasonably raised. The analysis reinforces the point that family law matters frequently raise very complex factual and evidential issues that raise real challenges when litigated in an adversarial context.

5. Conclusion

This report has presented the findings of the Court Outcomes Project, which contributes to the Evaluation of the 2012 Family Violence Amendments by examining the effects of the legislative amendments on court filings, patterns in court orders in parenting matters and judicial interpretation of key new provisions. The report is based on three separate studies. The first, the Court Administrative Data Study, analysed patterns in court applications and other relevant issues in parenting matters. The second, the Court Files Study, focused on analysis of patterns in court orders in parenting matters on the basis of representative samples of pre-reform (n = 895) and post-reform (n = 997) court files. The third, the Published Judgments Study, analysed the application of key legislative provisions in published judgments.

Overall, the 2012 family violence amendments had two core interrelated aims: to support increased disclosure of concerns about family violence and child abuse, and to support changed approaches to making parenting arrangements where these issues are pertinent to ensure safer parenting arrangements for children. This report provides empirical data on the extent to which achievement of these aims is evident in matters that come before the courts, either in the form of applications for final orders in parenting matters or as applications for court endorsement of arrangements reached by negotiation (consent orders). This evidence is based on the findings of the Court Outcomes Project, which sheds light on the extent to which family violence and child abuse concerns were raised in court proceedings before and after the 2012 reforms, and the extent to which any changes are evident in patterns in court orders. The report also examines other issues that are relevant to understanding the effects of the 2012 family violence amendments: patterns in filings for court applications and associated documents, including those intended to alert courts to the presence of risks and the application of the new legislative provisions that are intended to influence court-based decision making under the Part VII framework in the FLA. The research questions most relevant to this aspect of the overall three-part evaluation methodology (the other two components are the Responding to Family Violence Study and the Experiences of Separated Parents Study) are addressed in the following discussion, using the data presented in this report. A synthesis report (Evaluation of the 2012 Family Violence Amendments: Synthesis Report) brings together the evidence from all three reports to address the evaluation research questions (Kaspiew, Carson, Dunstan, Qu et al., 2015).

5.1 Patterns in parenting arrangements

Research question: To what extent have patterns in arrangements for post-separation parenting changed since the introduction of the 2012 family violence amendments, and to what extent is this consistent with the intent of the reforms? What is the size and nature of changes in the outcomes of court orders reached by judicial determination and consent?

Parenting arrangements that arise from court processes (in matters presented to the courts either for resolution through applications for final orders or for court endorsement as consent applications) take the form of orders for parental responsibility and care time. Orders of this nature across three samples in two time periods (pre- and post-reform) are described in this report: (a) the judicial determination file samples, reflecting matters where a court determination had been made (n = 273 pre-reform, and n = 340 post-reform); (b) the consent after proceedings file samples, reflecting matters where an application for final orders had been lodged but the matter had been resolved by negotiation before or during the trial (n = 375 pre-reform, and n = 399 post-reform); and (c) the consent without litigation sample, where arrangements had been negotiated and presented to the courts for endorsement as consent orders (n = 247 pre-reform, and n = 258 post-reform).

Across these three samples, different patterns were evident in orders for parental responsibility and care time according to whether (1) allegations of either family violence or child abuse were raised; (2) both of these allegations were raised; or (3) neither of these allegations were raised. For the purpose of this analysis, consent orders were dealt with in category (3), as they are not litigation-based outcomes.

Overall, the evidence presented in this report suggests subtle shifts in these areas in a direction consistent with the intention of the reforms to improve the appropriateness of parenting orders by giving greater weight to protection from harm. The nature and extent of these shifts varied by file type. In the post-reform samples, children in the judicial determination sample were less likely to be subject to orders for shared parental responsibility in cases involving allegations of family violence and/or child abuse, and less likely to be subject to orders for shared care time (35-65% of nights shared between parents) where these cases involved both allegations of family violence and child abuse, when compared to the pre-reform period. Changes in relation to orders for shared parental responsibility were more marked than for care time for the judicial determination sample, but the converse was true for the consent after proceedings sample.

Where both issues (family violence and child abuse) were raised, shared care-time arrangements applied to 8% of children in the post-reform judicial determination sample, compared with 9% of the pre-reform sample (i.e., there was no significant change). In the consent after proceedings sample, there was a significant drop in shared care time, from 25% to 12%. Shared parental responsibility outcomes were relevant for 54% of the pre-reform judicial determination sample, compared with 32% post-reform (statistically significant). For consent after proceedings children, shared parental responsibility was ordered for 82% pre-reform and 88% post-reform.

In cases where only one of these allegations was raised, the most noteworthy change was in relation to shared parental responsibility orders in the judicial determination sample: these fell by 11 percentage points to 34%. For shared care-time arrangements in this category there was an increase of 3 percentage points. In the consent after proceedings sample, there appears to be a trend towards shared care-time outcomes post-reform being marginally lower (19% cf. 15%) and shared parental responsibility outcomes marginally higher (93% cf. 96%), but neither were statistically significant.

Where neither allegation were raised, patterns in orders for parental responsibility and care time were largely stable across the three samples based on file type, with one exception: orders for shared care time dropped from 29% to 13% in the consent after proceedings sample (statistically significant).

5.2 Disclosure of family violence and child abuse concerns

Research question: Are more parents disclosing concerns about family violence and child safety to family law system professionals?

The evidence presented in this report indicates that allegations of family violence and child abuse are being raised more frequently in court-based matters post-reform. The proportion of cases involving an allegation increased from 29% of matters in the pre-reform sample to 41% of matters in the post-reform sample. The proportion of cases in which both family violence and child abuse allegations were raised increased from 8% to 17% after the 2012 reforms. The proportion of matters where child abuse only was raised increased from 3% to 5%. Proportions where family violence was raised in the absence of child abuse were stable at about 18%.

Overall, the analysis also shows that the increase in allegations about family violence and child abuse is just as, if not more evident, in relation to allegations concerning physical abuse and physical violence compared with emotional abuse and emotional violence. This would tend to suggest that of the two relevant aspects of the reforms - the wider s 4AB and s 4(1) definitions and the various changes intended to support disclosure - it is the latter changes that are more influential in producing these shifts.

The data showing a greater number of post-reform cases indicate engagement with prescribed child welfare authorities and personal protection order systems is also consistent with a positive effect of the reforms in this context.

The findings from the CaseTrack data provided by courts on the proportion of matters where Form 4 Notices/Notices of Risk had been filed also support a conclusion that concerns are being raised more often since the reforms. Excluding the figures for the Adelaide Registry of the FCC to account for the effect of the pilot in that registry, the number of Notices of Risk filed nationally increased from 2,229 in 2011-12 to 4,437 in 2013-14.

5.3 Service use patterns

Research question: Are there any changes in the patterns of service use following the family violence amendments?

There is little indication of any significant changes in the patterns of service use following the reforms in the evidence presented in this report. Although the number of filings of applications for final orders in matters involving children increased by 442 nationally, this increase occurred mostly in combined applications involving children and property, suggesting that dynamics more associated with property than children may be relevant in this context.

The demographic profiles of the parties in the pre-and post-reform Court Files Study samples were very similar, suggesting little change in the nature of the groups who used the courts before and after the reforms. The only area where change of a potentially significant nature was evident was in relation to the gender mix of fathers and mothers as applicants and respondents in court proceedings. In the post-reform period, the proportion of fathers as applicants increased (pre-reform: 44% to post-reform: 50%) and the proportion of mothers as applicants decreased (pre-reform: 53% to post-reform: 47%). It is also noteworthy that the resolution time for judicial determination parenting matters increased substantially, from 5 to 8 months. This cannot be attributed solely to the 2012 family violence amendments in the absence of evidence about other pertinent issues, including the sampling method applied and the amount of judicial resources available to hear matters. Notwithstanding questions about the cause of this, the implications for families merit further consideration.

5.4 Influence of legislative changes

Research question: Does the evidence suggest that the legislative changes have influenced the patterns apparent in questions 1-4 above?

The shifts described in the preceding paragraphs are consistent with the legislative changes introduced in 2012. As described in Chapter 1, these changes included imposing obligations on parties to disclose concerns about family violence and child abuse and to disclose engagement with child protection and personal protection order systems. The data about the prevalence of allegations of family violence and child abuse, the filing of Form 4 Notices/Notices of Risk and disclosure of engagement with family violence and child protection systems described throughout the report and reprised briefly in this conclusion, are consistent with these aspects of the reforms.

Also consistent with the intention of the reforms to support safer parenting arrangements for children where there are concerns about family violence and child abuse, are the findings indicating shifts in patterns for orders for shared parental responsibility and shared time in circumstances where allegations of family violence and child abuse are raised. The indications are that these shifts are stronger in relation to shared parental responsibility than to care time in the judicial determination samples. The reverse is true in the consent after proceedings samples.

The analysis of published judgments raises several points that support reflection to some extent on the legislative factors that influence these patterns. The first point concerns the presumption of equal shared parental responsibility, which is not applicable (or as sometimes treated in practice, rebuttable) where there are concerns about family violence and or child abuse. The reduced number of shared parental responsibility orders is therefore consistent with concerns about family violence and child abuse being raised in court proceedings to a greater extent than before the reforms, and a greater willingness on the part of judicial officers to make orders for sole parental responsibility in these circumstances. Nonetheless, the Published Judgment study indicates courts apply careful scrutiny to whether or not the facts in particular cases justify the displacement of the presumption.

However, the indications of less significant shifts in care-time arrangements where concerns about family violence and child abuse are raised invite consideration of why it is that at an aggregate level, the 2012 family violence amendments have influenced parental responsibility outcomes to a greater extent than care-time outcomes in judicial determination matters, particularly in light of the inclusion of s 60CC(2A). It is notable that, overall, the data suggest that post-reform there have been shifts in the amounts of time spent with each parent, rather than shifts toward more arrangements with no time or supervised time. The analysis of the application of the legislative framework sheds some light on the factors that may be relevant in this regard, and suggest that a range of considerations influence judicial decision making in matters involving family violence and child abuse concerns in the context of the overall decision framework set out in Part VII of the FLA. It highlights the point that judicial determinations involving orders for sole parental responsibility and limited or no care time arise in cases where a very severe history of family violence is established and the behaviour of one parent is clearly deficient compared to the behaviour of the other. In cases where courts are persuaded that the situation, including the behaviour of each parent, is less clear cut than this, particularly where the parents' motivation for raising allegations of family violence or child abuse comes into question, then care-time decisions are likely to favour arrangements that maintain relationships with both parents. As the findings on the prevalence of material concerning particular factual issues in section 3.2.4 indicates, arguments that a parent is undermining the other parent's relationship have been raised more frequently since the reforms, as have been arguments about family violence and child abuse. The question of one parent's capacity to support the child's relationship with the other remains a very live issue in court proceedings, especially in the context of the continuing strong philosophy that it is in a child's best interests to maintain relationships with both parents after separation.

Although the inclusion of s 60CC(2A) was intended to provide a means of resolving the tension between the two primary considerations, the analysis suggests this provision has had limited effects, especially where courts are persuaded that there is ambiguity associated with the allegations of family violence or child abuse or in the way in which one parent has behaved in relation to the other parent's relationship with the child. Further, the analysis shows that courts remain concerned to ensure that wherever possible, children's relationships with both parents are maintained after separation except in cases where the evidence is unambiguously in favour of an outcome inconsistent with this approach. Evidence in relation to the nature of the child's relationship with the alleged perpetrator of family violence is especially important in this respect. In circumstances where this is not the case, the conceptualisation of harm as arising from the cessation of a child's relationship with one parent continues to underpin views of best interests outcomes as requiring the maintenance of the parent-child relationship in all but the most clear-cut cases.

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Appendix 1: List of judgments analysed in section 4.3

Baldwin v Baldwin [2014] FamCA 43

Baxland v Vincent [2014] FamCA 330

Bell v Bell [2013] FMCAfam 6

Campbell v Wilson and Anor [2014] FamCA 1002

Cantere v Wilton-Stote [2015] FCCA 549

Carra v Schultz [2012] FMCAfam 930

Clayton v Bant (No 2) [2013] FamCA 898

Colvan v Colvan [2015] FCCA 99

Conn v Conn [2015] FCCA 128

Deane v Deane [2014] FamCA 869

De Young v Krebig [2013] FamCA 535

Elrasheed v McGrieve [2014] FamCA 11

Flynn v Bray [2015] FCCA 156

Gilliard v Gilliard [2015] FamCA 18

Gomez v Banks [2013] FamCA 1109

Green v Townsend [2013] FamCA 844

Hibberd v Banner [2013] FamCA 1066

Holinski v Holinski [2013] FamCA 629

Joelson v Joelson [2014] FamCA 788

Kardos v Coutts [2014] FamCA 1085

Kapoor v Shah [2013] FMCAfam 256

Kappas v Drakos [2015] FCCA 147

Kusic v Short [2012] FamCA 816

Labine v Labine [2012] FMCAfam 1398

Lansdowne v Shannon [2014] FamCA 331

Lowrie v Bagley [2013] FamCA 487

Malave v Ratcliffe [2015] FCCA 201

Martin v Martin [2014] FCCA 2838

McAllister v Day [2012] FMCAfam 863

Mellick v Mellick [2014] FamCAFC 236

Merrick v James [2014] FamCA 387

Mertens v Mertens [2014] FamCA 475

Modlin v Anstead and Anor [2013] FamCA 955

Oakes v Oakes (2014) FamCA 285

Oden v Remmy [2014] FamCA 575

Parsons v Kemp [2014] FamCA 1091

Phitzner v Hollas [2014] FamCA 344

Potter v Ross [2015] FamCA 26

Reamy v Haycox [2014] FCCA 2993

Schieffer v Schieffer [2013] FamCA 168

Shakir v Shakir [2014] FamCA 796

Shivas v Darby [2014] FamCA 1149

Simpson v Hahn [2014] FamCA 674

Tamarovic v Gillard [2014] FamCA 532

Thompson v Berg [2014] FamCAFC 73

Thornton v Thornton [2015] FamCA 92

Tisdale v Roganda [2014] FamCA 557

Vance v Carlyle [2014] FamCA 651

Vaughton v Randle [2014] FamCA 147

Weber v Lipson [2014] FamCA 390