Intersecting systems and the needs of families: Family law, child protection and domestic violence
29 June 2022, 01:00PM to 02:00PM
Rae Kaspiew, Daryl Higgins, Jess Hill, Anne Hollonds, Lisa O’Neill
This webinar was held on Wednesday, 29 June 2022.
Problems arising from Australia’s fragmented system for responding to families affected by family violence and child abuse have attracted significant focus in the last decade. Split responsibilities between the states and territories having responsibility for child protection and family violence and the Commonwealth holding responsibility for family law increase these difficulties. The well-recognised burden of navigating these different systems is shouldered by vulnerable families.
This webinar reunited the panellists from AIFS Conference 2022 event ‘Intersecting systems and the needs of families: Family law, child protection and domestic violence’. The panellists discussed this topic with a focus on implications for practitioners working in areas related to family and domestic violence, family law and child protection.
The recorded panel event includes discussion on:
- Issues and developments in relation to the intersecting systems that address the needs of children affected by family violence and child abuse – namely child protection, family violence and family law
- Policy developments in the national child protection and family violence frameworks, the Federal Circuit and Family Court of Australia’s Lighthouse Project and child protection responses to children exposed to family and domestic violence
- Practice insights for practitioners supporting children and families to navigate these intersecting systems.
The broader systems discussion may be useful for those in leadership and management roles as well.
Audio transcript (edited)
RAE KASPIEW: Welcome everyone to today’s webinar, Intersecting Systems and the Needs of Families, Family Law, Child Protection, and Domestic Violence. My name’s Dr Rae Kaspiew, I’m the Research Director, Systems and Services here at the Australian Institute of Family Studies. I would like to start with an acknowledgement of the Bunurong and Wurundjeri people of the Kulin Nation as the traditional owners of the lands I’m speaking from today on the banks of the beautiful Birrarung River. I would like to pay my respects to their elders both past, present and emerging, as well as any Aboriginal and Torres Strait Islanders joining us today. Last fortnight AIFS held its biennial conference where we considered the theme putting families at the centre from a range of different perspectives. The topic of this webinar was one of the panels presented.
As not everyone could attend, and this is very important subject matter, we decided to give you a taste of the conference and provide an opportunity to focus our discussion to the questions that you, the audience here today, have on this topic. The panellists all agreed to participate in this webinar, and we’re very grateful to them for that. So I’m thrilled to welcome again our four very eminent panellists: Lisa O’Neil, Senior Judicial Registrar of the Federal Circuit and Family Court of Australia, Anne Hollonds, the National Children’s Commissioner, Professor Daryl Higgins, Director of the Institute of Child Protection Studies at the Australian Catholic University, and finally but not least we have Jess Hill, an investigative journalist who has done a significant amount of work to place focus on the issue of family violence. Please join me in welcoming our panellists.
We are going to play an edited version of the discussion that we had at the AIFS Conference. The full panel will be available on the AIFS website in the coming week, but before we do that I want to set the scene. The family law team at the Australian Institute of Family Studies recently completed a project that was funded by Australia’s National Research Organisation for Women’s Safety. It was a project that looked at compliance with an enforcement of Family Law Parenting Orders. We looked at 300 files involving matters that went to Contravention Applications. So that’s the pointy end of the families that go to court for parenting matters. In 300 files involving Contravention Applications, we found that more than 90% of matters involved allegations of family violence and child abuse with children directly involved in most cases.
55% of those matters involved cross-allegations, meaning that each party had made allegations against each other in relation to family violence. More than a quarter of the files had a history of state child protection system engagement. Half of all the matters had a current or past personal protection order on file, with mothers being the presented party in 79% of cases. One-third of that sample of matters had had more than five years in the court from the start of the parenting matter. So that is a very graphic example of the way that our systems intersect, and our families using these systems often need to engage with multiple systems. So that’s the topic of the webinar today.
So we have Lisa speaking about the Family Court and the Lighthouse Project, which is an attempt – a very important measure to better meet the needs of families affected by family violence in the Family Court, and its use of risk screening. Daryl comes from a child protection perspective and highlights investigation of safety and parenting capacity as an issue relating to the gap between the family law and child protection systems. Anne highlights barriers for families trying to access services, and how failings in systems like health and mental health lead to increased pressure on the child protection system. Jess describes some of the experiences she has heard about families involved in the Family Court system. We’re now going to look at the part of the panel from the conference. I hope you find it interesting. Thank you.
LISA O'NEIL: So the Lighthouse Project has been piloted in three sites, Brisbane, Adelaide and Parramatta, and is soon to be rolled out to 12 other registries. It uses risk screening which parents can complete via an online application at the time of filing a parenting-only application to find the most appropriate case management pathway for the case. So it uses a traffic light type system of high, medium and low to decide which is the most appropriate case management pathway. So this is quite different for our court because in the past, as you know, people filed and you were on the same sort of trajectory regardless of what the level of risk was in your case. So screening is voluntary, some people might not feel safe to disclose, but there are many prompts to try and encourage people to complete that screening.
The Family Law Act was amended to make risk screening confidential and inadmissible, meaning it can’t be used in the proceedings, because we wanted people to feel safe to disclose information in the risk screen without the fear that that would be used against them. So just in terms of the numbers involved, 60% of cases screen high, about 17% medium, and it’s important to say they can still be very high-risk cases, and 23% screen low. So the low-risk cases are referred to early dispute resolution because we want those people to have an opportunity to resolve their issues and move out of the system before their issues escalate. We’ve learnt a lot about our litigant population through this project.
Because that screening’s confidential and inadmissible, we capture more information which can be used in court through the Notice of Child Abuse, Family Violence and Risk. And that’s where people are disclosing themselves what sort of risks their children and they are experiencing, and I thought you might be interested in that. So during a one-year period 18, 300 notices were filed, 54% of parties said a child had been abused or was at risk of abuse, 64% of parties said that they had experienced family violence, 57% of parties said that their children had experienced family violence, 39% said that drugs, alcohol, substance misuse was an issue, 40% said that there were mental health issues which could cause harm to a child, 26% said a child was at risk of being abducted, and 14% said that there’d been a recent threat to harm a child.
So of those 60% of cases in that highest risk category they have four or more risks. So we’re talking about families with very complex needs. Those families are placed on a special list called the Evatt List, and really carefully case managed to try and make sure that we have the information that we need from the police, from the child welfare authority, from subpoenas, because what we’re trying to do is to allocate the resources based on the level of risk in the case. So these are the cases where an ICL will be ordered, where there’ll be a Child Impact Report, and we’ll have involvement from the child welfare authority and the police, get information through Section 69ZW, or where it’s really urgent we can arrange for a representative from the child welfare authority, so that’s the collocated worker, to actually come into the court and provide us with a summary.
And that’s really important because in our court there are often those contested allegations of violence, so each parent saying that they’ve experienced violence from the other parent. What we’re trying to do is understand the dynamic in the family to understand who’s the most in need of protection, and those records from the police and the child welfare authority can be really, really helpful in understanding the family’s history and the needs of those children.
RAE KASPIEW: Thank you Lisa. Really interesting to hear about the developments in the courts Lisa. And Daryl, I know that you’ve had a significant interest over many years in relation to interfaces, overlaps and gaps in systems, so I’m just interested to hear your thoughts on the challenges and whether you’re aware of any solutions that are emerging at the moment?
DARYL HIGGINS: Yeah thanks Rae, and as you know we wrote together about Mind the Gap, the fact that there is some really significant gaps in the systems between family law and child protection. My background, I haven’t come from a family law background, I’m mainly child abuse and neglect, child protection, and having worked for a number of years at the Australian Institute of Family Studies where there’s a strong focus around family law issues, understanding the complexity and the ways in which those systems both intersect, but also how there are gaps remaining was shocking to me. I think one of the biggest gaps that even though there is overlapping responsibilities and what seems like overlapping desire to be able to identify risk and to be able to ensure the safety of children, certainly the legislative obligation, the responsibility of both of those systems require that, there’s still some major gaps.
And the gap that I really see is about investigation. The responsibility of state child protection departments is to respond largely to mandatory reports about risk of harm, and many of the circumstances that come to the attention of a Family Court don’t meet the thresholds. So even if they are investigated it’s not substantiated. Often, because of incredibly high workloads with the statutory child protection departments, it doesn’t even get investigated. So there’s a range of different systems for dealing with this. I was involved with evaluating Magellan which was a case listing model within the Family Court to deal with sexual abuse and serious physical abuse cases, but there’s a whole range of problems that it was trying to solve, made some headway towards that, but I think still remain.
Clearly, and Lisa I think it goes to the issue that you raised about the, I don’t know if it’s called Form Four, but that notification of risk; that often parties - parents who are separated and arguing over where children can be cared for safely, don’t necessarily clearly identify the full range of harms, or in fact raise it at all. And it’s hard to know whether that’s because parents are deliberately holding back, whether they’re fearful, or in fact whether they’re not being well-advised from their lawyers around what their responsibilities are. So there’s a gap from that system perspective in even knowing what the concerns are. Then from the other side the Magellan model was trying to bring forward those investigations so that state and territory child protection departments would agree, even though it looked like it wouldn’t necessarily meet their criteria, to conduct an investigation.
Most cases that are going through the court system though don’t end up in the Magellan listing, even if they involve child abuse allegations. So most are going through the Federal Circuit Court, or not being listed in that partly because that Notice of Risk doesn’t necessarily flag early on that this is actually a key feature of the case. But coming to the biggest gap that I wanted to put out there, and I’d love to hear from my colleagues here whether they think is even sensible, is that we don’t have an independent system that actually measures capability of parents, who is able to do a good job of parenting and care safely for their children. Child protection departments, that’s not their responsibility. They’re saying, ‘Do you meet the criteria for effectively child removal?’ That’s the endpoint of a child protection investigation. There might be a number of stages along the way to try and keep children safe such as referring to a parenting program, et cetera.
But if you’re substantiating harm and the harm is high risk enough, then the tool that a child protection department has it to remove. So the skillset and the orientation of child protection workers is not to be doing a broad scale evaluation of parenting styles, parenting capacity, who’s able to be most responsive to children, are both parents capable of doing that, or under what circumstances might there be some concerns in the context of parents who might be separated. And similarly, I think Family Court systems don’t really have that in-depth capability of doing it, although I think Lisa from what you’re saying, there’s some moves towards that with the pilots that you’re talking about. But to me the big gap is an independent system of both of those two structural systems, of the Family Court system and the child protection system, where you can go to have an independent parenting assessment. It kind of sounds a little bit like the Family Relationships Centres, as they were originally envisaged.
RAE KASPIEW: Thank you Daryl.
ANNE HOLLONDS: - systems. Let me just say a little bit, if I might, about systems change, simply because often these terms are used and not well defined. So what I would call a system is the laws, policies, practices, people, values, power structures, and importantly the money that determine how things get done. And education is an example of a system that’s meant to meet the community’s needs for education, child development and training at the tertiary level. By the way, really good example this morning of a big systems change moment when you’ve got big states of New South Wales and Victoria jointly saying they’re going to do something quite remarkable in the preschool years. Watch that space. So that’s an example of a systems change moment that you don’t see very often.
So we have all these systems, they don’t work well together. Of course, we have the justice system which includes the family law system. And then there’s the child protection system, that’s the one that’s meant to step in when the other systems have failed to keep children safe. And of course, we know the child protection system is chronically overwhelmed because it’s the failure pf the other systems, heath, education, social services, et cetera. Upstream they’re failing, so you basically end up downstream with the child protection system. Domestic and family violence, mental ill-health, basic needs like income security and affordable housing, these are the issues that kids and families tell us about when we bother to ask them, these are the barriers for keeping children safe and well. The basic systems that are meant to be looking after all of us are failing the kids and families who are living with the most disadvantage.
System change involves recognising that children and their families don’t live in one policy silo. Our lives are complex, and we all need these systems to work well together and to be coordinated, and the more complex our needs are the more the fragmentation of systems are failing us. Most of us manage fine to navigate them when things are going okay, but once you start to pile on a few issues in your family you find these systems are broken. The more needs you have the more evident that the systems are not designed to meet our needs as the consumer, their designed principles are based on other criteria. If you’re living with poverty, disadvantage, disability or other special needs these systems are not working for you. We need to start listening to kids and families, we need to address those elements I listed before like the power structures, the values that underpin the systems, we need to examine ourselves and our own beliefs and behaviour because it’s entirely possible that the way we’re behaving is inadvertently helping to keep things the same.
However, and listen I’ll finish up on this Rae, child safety and wellbeing is not a system, it’s an objective, it’s a value, it’s our responsibility under the Convention on the rights of the child, and child safety and wellbeing should be our national priority but it’s not. All policy and service systems should have child safety and wellbeing as a core objective that they’re accountable for, and this includes systems primarily focused on adults such as domestic and family violence, adult mental health, drug and alcohol, justice and prisons. These systems, they need to at least know their clients are parents. We don’t count them when they’re in prison as parents. They need to recognise and support them with their parenting responsibilities. The job of protecting children is not the job of the child protection system alone. The evidence is clear, there’ll never be enough ambulances at the bottom of the cliff. I was one of those child protection frontline workers early – right at the start of my career, and I can tell you, the amount of change in 40 years is minuscule. If anything the job has just got harder.
So of course we need change within that child protection system, we can talk about that if we want, but none of that change, the workforce development, the applying the Aboriginal and Torres Strait Islander child placement principles, the getting workers away from their desks and out into the field, none of that’s going to be enough because the child protection system alone cannot keep kids safe. That’s why talking about the intersection of the systems is where the conversation needs to go. The core systems failure is the fact that child safety is siloed there, and we’re not listening to kids and families about the upstream form to those systems where most of our money goes, health and education in particular. That’s what innovation should look like, that’s what reform should look like upstream, and we should stop tinkering around the edges. I call it managerialism, not leadership where we’re just looking at the symptoms of stuff, we’re not getting to the underlying drivers and causes. I’ll stop there.
RAE KASPIEW: Thank you Anne.
RAE KASPIEW: Very, very powerful points you make there. So Jess, you’ve spoken to a lot of victim survivors in your work as a journalist investigating family and domestic violence, what do you hear from those women primarily about how the systems meet or don’t meet their needs?
JESS HILL: So predominantly I hear from parents and grandparents and extended relatives who are desperate almost to the point of insanity. They contact me daily asking for advice on how to get a lawyer who will listen to them, what they can do about a family report that’s just wrongly diagnosed them as having borderline, what they can do about the fact that because they brought child sexual abuse allegations to the Family Court they’re about to have contact removed. I remember when I spoke to Rosie Batty for the first time in 2015 she said to me, ‘If it weren’t for the Family Court I almost would not get contacted by victim survivors’, and I kind of know what she means by that now because I’d say 60 to 70% of my contacts are about Family Court. And the fact that they’re contacting me as a journalist shows you how dire the need is, and how little services there are that are adequate to meet their needs.
So the thing for me I guess is that we have a court system that has evolved particularly over the last 20 years to be decidedly pro-contact. Helen Rhodes has written so well about this. It’s a culture that is replicated in many international jurisdictions including the UK where there is a very hot conversation going on at the moment about that culture and how dangerous it is for children. So we have a pro-contact court, and yet we have a court for which the majority of cases involve at least allegations of family violence. So we have a court that is a frontline child protection response service that is pro-contact. So let’s just wrap our heads around how that works as a paradigm. Lawrie Moloney's in the audience today, and I just want to credit him for an incredible study that he and colleagues did last year on allegations of child sexual abuse that were put in front of the court. They found that 86% of child sex abuse allegations between 2012 and 2019 were unfounded by a judge.
In two-thirds of those cases the care was increased with the allegedly unsafe parent, and in 17% of the cases the contact was switched entirely, so to the allegedly unsafe parent. There have been amazing improvements. The Lighthouse Project is an incredible improvement. The training with the Safe and Together Institute, which is I think one of the best educational teams in the world, is an amazing improvement. Mapping of perpetrator patterns and impact on children and families is such a great improvement. But we are dealing with this in this slow-motion way, and it is an urgent problem. This is not something that an Attorney General can just make a nice piece of reform to leave a legacy. This is something that the Attorney General should feel is an absolute matter of compelling urgency.
RAE KASPIEW: I hope you enjoyed hearing those parts of our very interesting and important panel discussion from the conference. We’re now turning to questions from listeners. Some of these questions were provided by registrants before the webinar, and some of them are live. I’m interested to know perhaps Jess you might have a response to this question from one of our audience members, what do you think about including parents more in conversations about child safety and wellbeing, and the systems to support children to stay with their family?
JESS HILL: Yeah, it’s a tricky one for me because where I come to the Family Court space is through the prism of family violence, and particularly where there’s been situations either of coercive control and/or direct physical or sexual abuse of the children. I’m not sure I fully understand the scope of the question in terms of talking more to parents about the upbringing of the children, but what it brings up for me is this notion of equal shared parental responsibility, which is obviously at the moment a core function of the court, obviously much disputed from various angles. But if we’re to really take that seriously what is equal shared parental responsibility, and actually having things in place to monitor that or to get some feedback on whether that equal shared parental responsibility is actually the case where that is ordered, or whether it’s just something that’s been used as a mechanism of control by one parent, and that what they have been ordered into by the courts is not actually being lived up to.
Because I think if we were to truly have a way of monitoring equal shared parental responsibility and making sure that was the case for kids who end up with those orders to have that with both parents, maybe we would actually have much better outcomes. Instead of just having equal shared parental responsibility ordered and there being practically no mode of review, aside from an appeal or some effort to vary orders, there’s no way to actually review whether that is working and how it is affecting the children, and how shared the parenting is in reality.
RAE KASPIEW: Thanks Jess. Daryl, you’re waving, have we got you back online with sound?
DARYL HIGGINS: Yes I think so. Sorry about that. Look, can I just jump in on one of the things Jess is saying about the involvement of family, and I agree, but I think taking a child-centred approach to that question is really important, and I think that’s one of the things that I was highlighting before in terms of the gap that’s missing is an investigative kind of function that is actually able to take a child-centred approach. And one of the challenges is that the family law system is private law. So it’s two parties that have a dispute, so there is no independent arbiter that’s coming in. The two parties have to rely on evidence from outside, so that could be evidence from a child protection department, but as we’ve already pointed out few of the allegations are actually appropriately tested in that forum.
So how do we actually hear the voice of children about where they’re going to be safe, and how they are going to best be parented? I think that in some instances, in many instances, having continued contact and shared responsibility is appropriate and what is in children’s best interests, but in other instances it is clearly not, and how do we differentiate that? At the moment I don’t think we have a reliable system to actually provide that investigation, and to do it in a gentle and child-centred way. Interestingly in places like the US they’ve got a much more robust system of what’s called children’s advocacy centres, which I don’t think connect up with the family law system as we’re hoping that it might do, but it’s really about the interface between the criminal justice system and the child protection system, so the police and child protection workers are able to have concerns about children investigated.
But that’s I suppose my big concern is that we often miss the point that it’s a private law matter between two parties who can’t agree, and that’s fundamentally going to be problematic when we’re focusing on the wellbeing of children and their safety.
RAE KASPIEW: Thank you Daryl. They’re very interesting thoughts, and I think our thinking has got very sophisticated in the last few years about child participation in some areas, but possibly practice has yet to catch up. Lisa, are you back online?
LISA O'NEIL: Can you hear me now?
RAE KASPIEW: Yes I can Lisa, so that’s wonderful. I’ll just refresh your memory on that question that was asked about how child protection and the family court communicate now, and what’s the interface there, and of course you may wish to refer to the collocated child protection pilot.
LISA O'NEIL: All right. So there are two main ways that the court provides information to the child welfare authority and obtains information from it. So the Notice of Child Abuse, Family Violence and Risk which every parent now has to complete when they file a parenting application, whether it’s in division one or division two, weeks information about family violence and child abuse. If there are allegations of child abuse or serious family violence, those notices are referred to the child welfare authority so that it can make its investigations.
And if I could just respond to the excellent point that Daryl made about the differences between Australian and American law, without boring everyone with a constitutional lecture; the commonwealth’s responsible for family law and the states are responsible for the services like child protection, police and hospitals, so the sort of places that hold really important information about the welfare of children. Child welfare authorities are responsible for investigating allegations, whereas the court adjudicates disputes between parents, as Daryl said. So the other thing that can happen is that the court can make a request to a child welfare authority to intervene in the proceedings pursuant to Section 91B of the Family Law Act, but that’s something that doesn’t commonly occur.
So the way that the commonwealth has tried to breach that gap is through these collocated workers who are actually present in court, and it was intended that the information go both ways. So they’re providing information to the court to assist judicial officers to make decisions about the best interests of children, but they’re receiving information back that they might not have to help them. And the court often facilitates that understanding by providing the department with material provided in the court, whether it’s affidavits, family reports, other reports, to help them make an assessment in their own investigations. I think what’s happened since colocation is that two-way flow has really improved probably both the state and federal Family Court’s ability to make better in time decisions about children.
RAE KASPIEW: Thank you Lisa. Now that’s a pilot, are you able to tell us whether a decision has been made about rolling that out?
LISA O'NEIL: Yeah, so it has been extended. The commonwealth in the last budget did provide extra funding to extend that, and so we’re very pleased about that because it’s something that really does assist the judges to make better in time decisions.
RAE KASPIEW: Thank you Lisa. I think that is one of the very important initiatives that we’ve seen implemented, along with Lighthouse, in recent years. Now I understand that Anne is not visible but she is audible, so Anne, I would just like to invite you, if you can hear us, and I’m hoping you can, to pick up on the point that Daryl raised about child participation. This is very much under your jurisdiction, so I think our audience would be very interested to hear your thoughts on that topic.
ANNE HOLLONDS: Can you hear me Rae?
RAE KASPIEW: Yes I can Anne.
ANNE HOLLONDS: Excellent. It seems we’ve broken the internet here today because some of us can only have one form of communication, and it seems I lost my camera. I think the whole issue of child participation is growing strongly in this country. We certainly are seeing many organisations trying to include children and young people much more in their governance of the organisations and in the development of policies and procedures, and design of services that are meant to help them. We’re not always doing it perfectly, but there is certainly an interest in engaging more with kids. And this is a great thing because of course it is their right under the Convention of the Rights of the Child Article 12 that children’s voices are heard and that we give due weight to what they have to say.
Now of course when it comes to something like the Family Court it’s a whole lot more complex, we’ve got a whole lot more legal history behind the way that the Family Court operates, but I think the Family Court itself and the family law system are ripe for being influenced as well by the fact that we now know, really since the Royal Commission into Institutional Responses to Child Sexual Abuse, we know that children who are silenced are not protected. So we need to find ways of allowing kids to safely participate in matters that have huge implications on their immediate daily lives, but of course their long-term future. I’m very encouraged by the fact that the family law system is really trying to take this on in many different ways.
If you were to ask kids then of course they would say the systems that we’re focusing on today need to be connected because that’s where their lives are lived across those systems, not just one.
RAE KASPIEW: Thank you Anne. That is really very significant information and thinking there. One of our audience Lisa I think has a question for you, and they’re wondering, I’m pretty sure this is about the Lighthouse Project, they would like to understand how ongoing case management works once a case is considered high-risk.
LISA O'NEIL: So the first thing to understand is that the case management starts from the moment their cases are identified or placed on the Evatt List, which is after the litigant list risk screens and before the first court date. So from that moment the Evatt Registrar starts making case management decisions such as the filing and service of the material, requesting that Legal Aid appoint an independent children’s lawyer, setting a date for a Child Impact Report, all these things are done before the first court date, because the intention is that we want these cases to have every court event as a meaningful one so that people don’t just come along to court and get sent away so that directions can get made.
After the interim hearing, which is that first date in court, and by that time we have a lot of information from the child welfare authority, from the Child Impact Report, from the information provided by the parents, from the independent children’s lawyer and subpoenas, an interim order’s made. Then usually the next court event, sometimes it’s a mention because we need to see what’s happening, or obtain some more information, or obtain a Family Report, but usually the next court event is the trial directions and then a trial compliance check and a trial. So what we’re trying to do with these high-risk matters is really support the families through the court system until the end of the case.
RAE KASPIEW: Thank you Lisa. I’m sure the audience is finding that very detailed insight that you’re able to provide really, really useful. And Jess, one of our audience members has asked how lawyers can help clients that are victims of domestic violence. What have you heard from the people that you’ve spoken to about what is and isn’t good legal practice in this context?
JESS HILL: There’s still a real hangover from the days of friendly parent provisions in that lawyers are, routinely it seems, advising their clients not to bring up allegations of abuse. This was documented as a routine issue in the reports that preceded the 2012 reforms, and still I hear the same thing. Or they are limiting their descriptions in affidavits of the environment in the relationship and the family to incidents of violence, of physical violence predominantly, but not able to because they don’t have the nous to actually describe in the affidavit the environment of coercive control, and not only how it affects the intimate partner, but how children were the secondary targets and secondary victims of that control.
So I think it’s difficult, we’re dealing in chronologies in the Family Court, and often in the Criminal Courts as well, and we’re trying to adapt a system that is unrelenting and not incident based into a date and time chronology, which is very difficult. But primarily what lawyers can do to help their clients is to become educated on their core business, and to recognise that if you are family lawyer you are working in a court whose predominant role is child protection, and for whom the vast majority of clients will be bringing allegations of abuse. The first thing to realise as a family lawyer is that if you do not have specialist understanding of family violence and of coercive control and of the intersections between that and more direct forms of child sex abuse and physical abuse, you will get it wrong.
And I say that from personal experience from now eight years of writing and researching about this obsessively and still learning about ways in which I’m getting it wrong after doing a documentary, an audio series, a book and 300 speaking engagements on the topic. So if you think that two hours is enough to get across this brief, I just want to disavow you of that notion, and also to say that if you’re not just lawyers but mediators, family dispute resolution practitioners, obviously information on this topic is coming into vogue and being seen as something that’s increasingly mandatory for you to be able to do your work. There are a lot of people offering this type of education who aren’t necessarily qualified to give it, and who may actually be creating more problems for you in your profession by giving you wrongheaded education than what you had before.
And so I’d just be very careful about who you go to for education, and looking for trainers that have some accreditation or have some runs on the board, not just random education bodies. But recognise that this is your core business, and this should not be on individual lawyers, it should be a core part of what you need to study as a family lawyer to become accredited. It should not be just something you take up as a matter of interest.
RAE KASPIEW: Very interesting points, and of course we’ve had many enquiries that have called for education in relation to domestic and family violence for all players in the system, not only lawyers. Our audience seems quite engaged with the question of child participation, and there is a question that goes to the possibility of a direct instructions model for children in the family law system, and so I’d like Daryl and Anne to share responses to that, because of course currently what we have is a model where independent children’s lawyers where they are appointed, and it’s not all cases, are obligated to act in the best interests of the child, rather than acting on a direct instructions basis. Daryl, I might ask you first.
DARYL HIGGINS: Yeah thanks Rae, and I think it goes back to the broader theme that we were alluding to before that really family law disputes are disputes between two parties, and maybe we’ve got a fundamental problem with our system when in fact we should be thinking about three parties. There’s the two parents and then there’s the child or children, and how do we accurately present not only their views, but what are the ways in which we can keep them safe? Because of course there are some children who would be too young to be able to be involved in a direct instruction, i.e. where the child is instructing the solicitor as to her or his or their views about that. Many children wouldn’t want to be in that process.
So I think we have to recognise that any system that was to include direct instruction would be not well-serving some children. It could be children who are preverbal, children with disability, or children who feel really caught, who love both parents but recognise that there are inadequacies perhaps on both sides. So that’s why I think we actually have to take out the process of hearing the voice of children away from the court system, which is unfortunately adversarial, where you’ve got two parties at war with each other. That’s not a good place for children to be the meat in the sandwich for want of a better term. We really need to have a more preventive system that could, as part of its function, be doing these kind of assessments and hearing in a much calmer and less adversarial way what children see and hear, and what is going to be in their best interests.
And so that’s why I would advocate for a new independent system that could feed into both the statutory child protection systems in each of the states and territories as Lisa pointed out, but also into family law decision-making.
RAE KASPIEW: Thank you Daryl, a very nuanced answer there. Anne, what would your response be to the issue of whether we need a direct instructions model in family law?
ANNE HOLLONDS: Well I’ll answer this as a non-lawyer because I think lawyers come at this from a different perspective. But I’d say firstly that I think most people who haven’t been involved in the family law system, when they hear the term independent children’s lawyer would think that’s what the lawyer’s doing is representing the child. So there are nuances here that those of us who work in the system we take for granted. That is not given for anyone else who’s never had anything to do with the system. I think that tells us a lot about I guess to what extent the public might have an investment in understanding and even in thinking about reform in this, because of course we also know that the family law system is the part of law that most people will have something to do with across their lives more than any other aspect of the justice system.
So that basic misunderstanding, and there are many others of course, but that misunderstanding I think is quite an interesting one. And just a couple of things to add to what Daryl says. I think it is worth looking at law reform in this area, but I’m saying this as a non-lawyer. I understand that it’s complex, but it seems to me that the more entrenched the dispute between the parents is, and we know that there are some issues – disputes that go on, it seems for generations actually, well not quite generations but for in fact the whole of the childhood of the child, the more entrenched the dispute, the more important it is for us to look at some form of direct representation, because really the Family Law Act kind of designed for the adults. It’s like all other policy, it’s really written for adults. Somehow we need to elevate child safety and wellbeing.
Somehow we need to have that cut through whatever the adults in the – whether it’s the parents, the judges, the lawyers, everyone has their own set of interests in this, how can we make child safety and wellbeing the absolute prime matter to be addressed. Whatever it takes to make sure we do that, that we elevate child safety and wellbeing, I would think it would be worth having a look at that closely.
RAE KASPIEW: Thank you Anne –
JESS HILL: Can I just make one point also –
RAE KASPIEW: Yes Jess -
JESS HILL: - to what Anne and Daryl have said, and that is that we need to be really aware that the Family Court while, yes there are high conflict families and there are disputes that come out of a conflicted relationship, there are also perpetrators of coercive control who are abusive, who may be also child sex offenders who are also in the courts, and they are using the courts as a way to exert greater power and control over their victims and their children. What we don’t have enough of is training and education for the parts of the court that are coming into direct contact with both parents on how to avoid collusion. These are highly manipulative offenders.
I think I mentioned, it wasn’t on the recording but at the seminar that one American cop put it that he’s never been persuaded by a bank robber to arrest the clerk, and yet that is what happens on a regular basis with perpetrators of coercive control and family violence, and perpetrators of child sexual abuse. Over and over and over I hear from protected parents that the independent children’s lawyer has been colluding with the perpetrator of violence, has become very much a representative of theirs, to the point where they seem to disregard what the children are asking for or talking about or their views, and we saw this in the Jack and Jennifer Edwards case, with incredibly tragic results. The case of that ICL, which drew national attention, that wasn’t an outlier or a bad apple, that was a systemic issue.
And if we do not have education on how to resist collusion, which men’s behaviour change program facilitators will tell you, is a very difficult thing to do. If you don’t have education and training on that, the chance that you will become their representative and not the child’s representative is extremely high, and they will go to great lengths to persuade you that their ex-partner has personality disorders and is in fact the perpetrator, such that we have an acronym that describes that process. It’s DAVO, deny, attack and reverse victim and offender. That is happening writ large across the Family Courts, and I don’t think that the Family Courts are set up to resist that, and are at the moment being taken advantage of reasonably easily.
LISA O'NEIL: Okay, can I step in because I’ve listened to a lot, and I think it’s really important that this not be a forum to perpetuate some myths. So the first thing I want to say is Jess makes a really good point, the Family Court is a place that there is the potential for systems misuse. And we know that perpetrators do that in a variety of ways from the one that she just referred to which is denying - I’ve read many affidavits where someone who’s actually responded to an order was saying, ‘I’m the victim of coercive controlling violence’ et cetera. So we know that happens, and the other opportunity for systems misuse is to delay the proceedings, increase the other person’s costs, not comply with orders. We know that all these things happen, the court’s really acutely aware of that. A lot of the work we’ve been doing in the last few years is to try and reduce the opportunity for that.
So when we designed the PPP property program, that was designed with this careful case management to try and reduce that. Likewise, when the Evatt List was designed it was designed to try and reduce that. So it wouldn’t be accurate to say that the court’s got not awareness or understanding of this at all. Do I think that we always get it right? No, we don’t because this can be a very confusing dynamic to understand, and it can take time to understand it. But it’s certainly something we are trying to do better at, and we’ll keep trying to do better at. With respect to children and their voices, it’s not true to say that we don’t listen to children or that their views aren’t given weight. These are complex and nuanced issues, and there are many, many variations on it.
RAE KASPIEW: Thank you so much for that discussion Lisa. Thank you for all of your contributions to our four panellists. We’re very, very grateful that you agreed to extend your engagement with this topic with this webinar. Very important material has been discussed. Thank you so much to our audience for attending, listening, for asking questions, and for the important work that you do with children and families. And thank you panellists.
Anne, if there were unlimited resources and cross-government support, what would the solution to this fragmented system look like?
ANNE HOLLONDS: The magic wand question right? Well I think we need to understand that the basic premise that any of these systems should operate separately is clearly misguided. I think that’s what we’ve all been saying, and that’s because child and young people and their families do not live in one silo, one system. Our lives are complex, and essentially what we have in our society is investments in a range of systems that are designed to help us to improve our lives, to keep us safe, to help address the problems that we might experience throughout our lives, and complex human needs really require all of these systems to operate in seamless alignment as much as possible. So that to me is the vision that we recognise the need for systems reform, and that we do it with children at the centre of our focus, that child safety and wellbeing should be elevated as the main aim.
So whatever it is we need to do to our laws, to our policy and service systems to ensure that children are safe and that their wellbeing is prioritised across this country, that’s what we should be doing. So in a way we need a guiding star, we need - because we tend to do this tinkering with, ‘Oh we’ll just fix this little bit - because of this symptom popping up over here let’s fix that’ or, ‘Let’s just do a bit of finetuning around the edges of things.’ We’re not really getting at the core. I think we need to go a bit deeper, and perhaps even that idea of looking at a blank sheet of paper and going, ‘If we had a blank sheet of paper how would we build a family law system?’ for example. I think in the light of all the evidence from the last few decades, in light of all the things this panel has said, in light of all the things we now know, we would not build the family law system the way it is now.
So the question is do we just tinker with it, or do we actually look at a fundamental redesign that is a better fit for the children and their families based on the knowledge we have to date? This sounds big and scary, but I actually think that we’re at a time in our history and social policy where this is what’s going to be required on a number of levels. I think it’s true for the education system, which in many ways is not fit for purpose for many of our most disadvantaged kids, it’s true in the health system. So all of these systems I think require some degree of basic redesign, and ensuring that they’re working well together to address the complex needs that people have, and to actually arrest the progression into those complex responses of child protection, the expensive responses of child protection, youth justice, the criminal justice system generally, the cost of homelessness, mental health issues and so forth, we need to do some redesign work to stop those costs escalating.
RAE KASPIEW: Thank you Anne, love that big picture thinking –
ANNE HOLLONDS: It’s simple really.
RAE KASPIEW: Very easy. The ALRC just said devolve the family law jurisdiction back to the states, so there are some interesting ideas out there. Daryl, what would be your solution to the problem?
DARYL HIGGINS: As you just mentioned Rae I think one of the things is we need to look at the suggestions for reform that have already occurred, already been made, such as the recommendations of the ALRC. Why are we not implementing that? We’ve also got mechanisms for having systems review across government such as the Safe and Supported: National Framework for Protecting Australia’s Children, but unfortunately, it’s really child protection departments talking to child protection departments, it’s not got representation from other areas of government, such as Attorneys General. And so we’re not going to have the interface between child protection and systems like family law dealt with in a forum like the National Framework, despite its objective of being about addressing harm to children and turning around the problem of child abuse and neglect.
Clearly we see in the data from the family law system that it remains a significant issue that is being unaddressed by the reforms that have been implemented at the state and territory level. So I would absolutely say we have to go back to some of those fundamental reform recommendations from the ALRC.
RAE KASPIEW: Thank you Daryl, and conveniently we have another question that is aimed at you, and it’s probably the last one we have time for. This questioner would like to know investigation of child protection concerns occurs across systems, for example including conversations between police, mental health and child protection?
DARYL HIGGINS: The problem of child protection investigations is that it’s done under the legislative requirements of each state and territory, so it is slightly different. The grounds for intervention are slightly differently worded under each of the state and territory child protection laws. There are lots of mechanisms for child protection workers and through the Children’s Court or the Youth Courts in each of the different sates and territories to bring forward evidence as they see fit, but the problem is that we don’t actually have a coordinated system across those different jurisdictional responsibilities to hear in a consistent way what are the needs of children. And more importantly there’s absolutely no system for measuring what I would call parenting capacity. That’s not part of the remit of child protection systems, and yet of course that’s really the key question of the family law system is are both parties –
It’s two private parties that are disputing where children should reside, and how they should be cared for, and how they can be kept safe. That’s just not part of the remit of a child protection investigation, and I think that that’s a problem. We have other systems where we actually want to address the adequacy of somebody to do a particular thing. We have a driver licence system to actually say, ‘Are you adequately able to get behind a powered vehicle and operate it safely?’ We don’t have the same thing for parenting, and we certainly don’t have it at the point where there’s problems and there’s a dispute over who’s able to safely care for and parent children.
RAE KASPIEW: Thank you Daryl, that’s a very interesting idea, a licence to become a parent. That’s all we have time for. Daryl and other panellists, thank you so much for your input.
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Research Director, Systems and Services | Australian Institute of Family Studies
Dr Rae Kaspiew is a socio-legal researcher with particular expertise in family law and family violence. Prior to her appointment as Research Director, Systems and Services, she managed the Family Law, Family Violence and Elder Abuse research program at the Australian Institute of Family Studies. She has been involved in an extensive range of studies and was the lead author of two large-scale evaluations of successive waves of reforms in family law (the 2006 and 2012 reforms). She also led the team that completed the National Elder Abuse Prevalence Study in 2021. A theme present in her work has been the extent to which systems and services meet the needs of people affected by elder abuse and family violence. Advisory roles have included membership of the Family Law Council, a body that provides policy advice on family law to the federal Attorney-General, from 2010 to 2016. She was also a member of the Violence Against Women Advisory Group (2009–11) that advised the federal Minister for the Status of Women on the implementation of the National Plan to Reduce Violence against Women. Rae is also on the editorial board of the Australian Journal of Family Law.
Director, Institute of Child Protections Studies | Australian Catholic University
Professor Daryl Higgins commenced as the Director of the Institute of Child Protection Studies in February 2017. His research focuses on public health approaches to protecting children and child‑safe organisational strategies. He is one of the chief investigators on the first national prevalence study of child maltreatment in Australia. A registered psychologist, Prof. Higgins has been researching child abuse impacts and prevention, family violence and family functioning for over 25 years.
Jess Hill is an investigative journalist who has been writing and researching about domestic abuse since 2014. Before that, she was a producer for ABC Radio, a Middle East correspondent for The Global Mail, and an investigative journalist for Background Briefing. Jess was listed in Foreign Policy’s top 100 women to follow on Twitter and also as one of the 30 most influential people under 30 by Cosmopolitan magazine (two publications rarely listed in the same sentence). Her reporting has won two Walkley awards, an Amnesty International award and three Our Watch awards. Her book See What You Made Me Do, the first to chart the phenomenon of domestic abuse in Australia, is in stores now.
National Children’s Commissioner | Australian Human Rights Commission
Anne Hollonds is Australia’s National Children’s Commissioner. Formerly Director of the Australian Institute of Family Studies, for 23 years Anne has been the chief executive of government and non-government organisations focused on research, policy and practice in child and family wellbeing. As a psychologist, Anne has worked extensively in frontline practice, including child protection, domestic and family violence, mental health, child and family counselling, parenting education, family law counselling and community development. Anne currently contributes to several advisory groups, including the Family Law Council, Australian Child Maltreatment Study, NSW Domestic and Family Violence and Sexual Assault Council, and the National Plan Advisory Group (NPAG).
Senior Judicial Registrar | Federal Circuit and Family Court of Australia
Lisa O’Neill has extensive experience in all aspects of family law, domestic violence litigation and child protection litigation and policy development. Lisa is a Senior Judicial Registrar in the Federal Circuit and Family Court of Australia where she sits in the Evatt List in Brisbane hearing cases with allegations of serious family violence and other risk factors. She is the developer of the Lighthouse Project, an innovative response to domestic and family violence (DFV) in the Australian family courts; it uses a confidential risk-screening process to triage cases based on the level of risk. Lisa has worked in leadership roles in courts and tribunals including developing training for Queensland magistrates in DFV and in government and private practice legal roles.
Feature image: © GettyImages/ThitareeSarmkasat