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FAMILY VIOLENCE AND
THE FAMILY LAW ACT 1975
BY
FEDERAL MAGISTRATE DAVID HALLIGAN
A PAPER FOR
THE SALVOS LEGAL 2010 INAUGURAL LECTURE SERIES
25 SEPTEMBER 2010
1
Introduction
1. Family violence is a distressingly common phenomenon in our society.
It can have profound effects on direct victims and on children exposed to
it. It is a significant issue in many family law proceedings.
2. I will provide some historical background in relation to the current
scheme of the parenting provisions of the Family Law Act 1975,
including 3 recent reports about those provisions, and then I will-
a) Provide a broad line of the legislative scheme for making a
parenting order under the Family Law Act;
b) Consider what is family violence;
c) Consider what the Family Law Act says about family violence and
the significance of family violence in both parenting and property
disputes;
d) Consider what the social science tells us about family violence;
e) Consider the implications of the social science for the preparation
and presentation of family law cases involving family violence; and
f) Identify what you should do if concerned for your client‘s safety at
court because of family violence.
Background
3. In 2006, the provisions of Family Law Act dealing with children (Part
VII) were significantly amended by the Family Law Amendment (Shared
Parental Responsibility) Act 2006. These amendments were preceded by
a Parliamentary Committee enquiry (the Hull Committee) during which
there was a public debate about whether a presumption of equal time
parenting after separation should be introduced into Australian law.
4. While no such presumption was introduced, nonetheless, when speaking
of the 2006 amendments, the Full Court of the Family Court of Australia
said-
2
“It can be fairly said there is a legislative intent evinced in favour
of substantial involvement of both parents in their children‟s lives,
both as to parental responsibility and as to time spent with children,
subject to the need to protect children from harm, from abuse and
family violence and provided it is in their best interests and
reasonably practicable”1
5. Since 2006, there has been further debate about whether the 2006
amendments over-emphasise substantial involvement of both parents in
children‘s lives at the cost of exposing children to family violence.
6. In January 2010, the Government released 3 reports of inquiries it
commissioned into the Shared Parental Responsibility Amendments-
a) ―Evaluation of the 2006 Family Law Reforms‖ by the Australian
Institute of Family Studies, December 2009 (the AIFS Report);
b) ―Family Courts Violence Review‖ by Professor Richard Chisholm
AM, 27 November 2009 (the Chisholm Report);
c) ―Improving responses to family violence in the family law system:
An advice on the intersection of family violence and family law
issues‖, Family Law Council, December 2009 (the FLC Report).
7. I will refer to aspects of these reports in this paper.
8. A 4th report commissioned by the Commonwealth Attorney-General‘s
Department was released in April 20102. It surveyed parents and
children who had experienced relationship breakdown, with and without
family violence. It reported that ―for most respondents (68.7% of
women and 52.2% of men) the consequence of family violence was that
suitable and safe arrangements for themselves and their children were not
achieved after separation‖. In relation to respondents whose experience
of the family law system was after the 2006 amendments, the report
stated-
“They reported being coerced by the combined pressure from legal
advisers and family dispute resolution practitioners to agree to
arrangements that were unsafe or inadequate for their children,
1
Goode v Goode, [2006] FamCA 1346 at [72], (2006) 36 Fam LR 422 at 443, (2006) FLC 93-286 at
80,901.
2
―Family Violence and Family Law in Australia‖, Bagshaw et al, Monash University, University of
South Australia and James Cook University, April 2010.
3
including shared parenting, overnight or unsupervised contact, or
any contact. For some 54% of women and 4% of men in the post-
2006 group, the co-existence of family violence, mental illness and
substance abuse presented especially challenging problems that
they said were not recognised.”
Outline of legislative scheme in deciding parenting disputes
9. At the outset, for the benefit of those who may not be familiar with the
Family Law Act, I will briefly summarise the legislative scheme
applicable to the making of a parenting order3 under the Act.
a) The court may make such order as it thinks proper, subject to the
provisions of ss.61DA and 65DAB4;
b) S.61DA requires a court making a parenting order to apply a
rebuttable presumption that it is in the best interests of the child for
the child‘s parents to have equal shared parental responsibility for
the child, unless there are reasonable grounds to believe that a
parent of the child, or a person who lives with a parent of the child,
has engaged in child abuse or family violence5. The presumption
may be rebutted by evidence satisfying the court that it would not
be in the child‘s best interests for the parents to have equal shared
parental responsibility for the child6;
c) S.65DAB requires a court making a parenting order to have regard
to the most recent parenting plan (if any) entered into by the child‘s
parents, if doing so would be in the child‘s best interests;
d) In deciding whether to make a parenting order, the child‘s best
interests are the paramount consideration7;
e) In determining what is in a child‘s best interests, the court must
consider specified ―primary‖ and ―additional‖ considerations set
out in s.60CC;
3
A parenting order is one dealing with, among other things, who a child is to live with, the time a child is
to spend with someone, the communication a child is to have with someone, and the allocation of parental
responsibility for a child (Family Law Act 1975, s.64B).
4
Family Law Act 1975, s.65D.
5
Ibid, s.61DA(2).
6
Ibid, s.61DA(4).
7
Ibid, s.60CA.
4
f) The Family Law Act articulates specific objects of Part VII (under
which parenting matters are determined) and the principles
underlying those objects, in s.60B;
g) ―(I)n deciding to make a particular parenting order, including an
order for parental responsibility, the individual child‘s best interests
remain the paramount consideration … and the framework in which
best interests are to be determined are the factors in ss 60CC(1),
(2), (3), (4) and (4A). The objects and principles contained in s
60B provide the context in which the factors in s 60CC are to be
examined, weighed and applied in the individual case.‖8
h) If the court intends making an equal shared parental responsibility
order, the court must consider whether an order that the child spend
equal time with each parent would be both in the child‘s best
interests and practical, and if so, it must consider making such an
order. If the court intends making an equal shared parental
responsibility order and decides not to make an equal time order,
the court must then consider whether an order that the child spend
substantial and significant time9 with each parent would be both in
the child‘s best interests and practical, and if so, it must consider
making such an order10;
i) The court may consider parenting arrangements for a child different
to those advanced by the parties, provided the parties are afforded
procedural fairness11.
What is family violence?
10. The term family violence is used in a variety of settings, and senses. It is
a term used, and defined, in legislation, and it is a term used in the social
science literature. In the family law setting, social science is an
important aid in determining children‘s best interests. However, in
8
Goode v Goode, [2006] FamCA 1346 at [10] ], (2006) 36 Fam LR 422 at 428, (2006) FLC 93-296 at
80,888-9.
9
See Family Law Act 1975, s.65DAA(3).
10
Ibid, s.65DAA.
11
U v U, [2002] HCA 36, (2002) 191 ALR 289, (2002) 29 Fam LR 74, (2002) FLC 93-112, Bolitho v
Cohen, [2005] FamCA 458, (2005) 33 Fam LR 471, (2005) FLC 93-224, Powell v Ptolemy, [2005]
FamCA 1032, (2005) FLC 93-239, sub nom. P v P, (2005) 34 Fam LR 340.
5
deciding parenting disputes, it is the statutory definition to which
ultimate reference must be made.
11. Family violence for the purposes of the Family Law Act is defined as
follows12:
“family violence means conduct, whether actual or threatened, by a
person towards, or towards the property of, a member of the
person‟s family that causes that or any other member of the
person‟s family reasonably to fear for, or reasonably to be
apprehensive about, his or her personal wellbeing or safety.
Note: A person reasonably fears for, or reasonably is
apprehensive about, his or her personal wellbeing or safety in
particular circumstances if a reasonable person in those
circumstances would fear for, or be apprehensive about, his or
her personal wellbeing or safety.”
12. The Act defines other terms relevant to this definition, namely ―member
of the person‘s family‖13, ―relative‖14 and ―step-parent‖15, but it is
unnecessary to set them out here.
13. While the present definition of family violence was inserted into the
Family Law Act in 2006, the Act has contained a definition of family
violence referring to a person being fearful for, or apprehensive about,
his or her personal well being or safety since 1995. Despite that, I have
been unable to find a judgment that has considered the meaning of
family violence under the Family Law Act in any detail.
14. ―Wellbeing‖ is not defined in the Family Law Act. The Macquarie
Dictionary defines ―wellbeing‖ as ―good or satisfactory condition or
existence; welfare‖. Infidelity may reasonably cause a person to fear for
their wellbeing in the sense of having a ―good or satisfactory condition‖
as a member of a couple. Yet that clearly is not the sort of behaviour
intended to be caught by the definition.
15. The concept of wellbeing is potentially very wide, and hence potentially
productive of uncertainty about what behaviours are caught by the
definition. Where family violence is repeatedly referred to in the Family
12
Family Law Act 1975, s.4(1).
13
Ibid, s.4(1AB).
14
Ibid, s.4(1AC).
15
Ibid, s.4(1).
6
Law Act, and where it is a very significant issue in parenting disputes,
uncertainty does not serve the best interests of children.
16. The FLC Report has recommended that the definition in the Family Law
Act be amended to replicate the definition in s.5 of the Family Violence
Protection Act 2008 (Vic), which provides-
“(1) For the purposes of this Act, family violence is—
(a) behaviour by a person towards a family member of that
person if that behaviour—
(i) is physically or sexually abusive; or
(ii) is emotionally or psychologically abusive; or
(iii) is economically abusive; or
(iv) is threatening; or
(v) is coercive; or
(vi) in any other way controls or dominates the family
member and causes that family member to feel fear for
the safety or wellbeing of that family member or another
person; or
(b) behaviour by a person that causes a child to hear or
witness, or otherwise be exposed to the effects of, behaviour
referred to in paragraph (a).
17. The Victorian Act defines economic abuse and emotional or
psychological abuse as follows:
“6. For the purposes of this Act, economic abuse is behaviour by
a person (the first person) that is coercive, deceptive or
unreasonably controls another person (the second person), without
the second person's consent—
(a) in a way that denies the second person the economic or
financial autonomy the second person would have had but for
that behaviour; or
(b) by withholding or threatening to withhold the financial
support necessary for meeting the reasonable living expenses
of the second person or the second person's child, if the
second person is entirely or predominantly dependent on the
7
first person for financial support to meet those living
expenses.
Examples—
coercing a person to relinquish control over assets and income;
removing or keeping a family member's property without
permission, or threatening to do so;
disposing of property owned by a person, or owned jointly with
a person, against the person's wishes and without lawful
excuse;
without lawful excuse, preventing a person from having access
to joint financial assets for the purposes of meeting normal
household expenses;
preventing a person from seeking or keeping employment;
coercing a person to claim social security payments;
coercing a person to sign a power of attorney that would enable
the person's finances to be managed by another person;
coercing a person to sign a contract for the purchase of goods
or services;
coercing a person to sign a contract for the provision of
finance, a loan or credit;
coercing a person to sign a contract of guarantee;
coercing a person to sign any legal document for the
establishment or operation of a business.
7. For the purposes of this Act, emotional or psychological
abuse means behaviour by a person towards another person that
torments, intimidates, harasses or is offensive to the other person.
Examples—
repeated derogatory taunts, including racial taunts;
threatening to disclose a person's sexual orientation to the
person's friends or family against the person's wishes;
threatening to withhold a person's medication;
8
preventing a person from making or keeping connections with
the person's family, friends or culture, including cultural or
spiritual ceremonies or practices, or preventing the person from
expressing the person's cultural identity;
threatening to commit suicide or self-harm with the intention of
tormenting or intimidating a family member, or threatening the
death or injury of another person.”
18. It remains to be seen whether the FLC recommendation will be
implemented. If they are, the reference in the definition of family
violence to causing a person to fear for their wellbeing will remain.
What the Family Law Act 1975 says about family violence
Family violence and the objects and principles of Part VII (s.60B)
19. The objects of Part VII of the Family Law Act, articulated in s.60B,
include ensuring that the best interests of children are met by, inter alia-
“(b) protecting children from physical or psychological harm from
being subjected to, or exposed to, abuse, neglect or family
violence‖16
20. The Act also sets out certain principles that underlie the objects, all of
which are expressed in terms of children‘s rights17. Those rights include
rights to know and be cared for by, and to spend time on a regular basis
with, both parents18. All the principles are qualified by the phrase
―except where it is or would be contrary to a child‘s best interests‖.
21. It is of note that in this recitation of children‘s rights there is no reference
to children having a right to be nurtured in an environment free from
abuse or violence, despite one of the objects the principles are said to
underlie being to protect children from physical or psychological harm
from being subjected to, or exposed to, abuse, neglect or family
violence19.
16
Family Law Act 1975, s.60B(1)(b).
17
Ibid, s.60B(2).
18
Ibid, s.60B(2)(a) and (b).
19
Ibid, s.60B(1)(b).
9
Family violence and family dispute resolution (s.60I)
22. Parties to parenting disputes are required to attend family dispute
resolution (mediation) before filing an application unless there are
circumstances which bring the matter within one of the exceptions to the
requirement. An applicant for a parenting order must usually file with
the application a certificate from a family dispute resolution practitioner
(mediator) certifying either that the parties attended family dispute
resolution, or that the other party failed to attend when invited, or that the
family dispute resolution practitioner considered, having regard to
matters prescribed for the purpose, that it would not be appropriate to
conduct or continue family dispute resolution.20
23. The matters to be taken into account by a family dispute resolution
practitioner in determining whether family dispute resolution is
appropriate21 include-
“… whether the ability of any party to negotiate freely in the
dispute is affected by any of the following matters:
(a) a history of family violence (if any) among the parties;
(b) the likely safety of the parties;
(c) the equality of bargaining power among the parties;
(d) the risk that a child may suffer abuse;
(e) the emotional, psychological and physical health of the
parties; …”
24. There is no need to file a certificate from a family dispute resolution
practitioner in certain circumstances22, including where-
“(b) the court is satisfied that there are reasonable grounds to
believe that:
…
(iii) there has been family violence by one of the parties to
the proceedings; or
20
Ibid, s.60I(7) and (8).
21
Family Law (Family Dispute Resolution Practitioners) Regulations 2008, Reg.25(2).
22
Family Law Act 1975, s.60I(9).
10
(iv) there is a risk of family violence by one of the parties to
the proceedings”.
25. If an applicant files a parenting application without a s.60I certificate in
reliance on s.60I(9), the application must be accompanied by affidavit
evidence sufficient to prove, prima facie, the existence of family violence
or the risk of it.
26. Where reliance is placed on the fact of family violence to file an
application without a certificate, the application must also be
accompanied by a written indication from the applicant-
“…that the applicant has received information from a family
counsellor or family dispute resolution practitioner about the
services and options (including alternatives to court action)
available in circumstances of abuse or violence.”23
27. This latter requirement does not apply-
“…if the court is satisfied that there are reasonable grounds to
believe that:
(a) there would be a risk of abuse of the child if there were
to be a delay in applying for the order; or
(b) there is a risk of family violence by one of the parties to
the proceedings.”24
28. It is of note that the second limb of this provision, a risk of family
violence, is not qualified as is the first limb, a risk of child abuse, by the
phrase ―if there were to be delay in applying for the order‖.
Apprehended violence orders
29. A party to proceedings in which the court must determine what is in the
child‘s best interests, who is aware of a family violence order25 applying
23
Ibid, s.60J(1).
24
Ibid, s.60J(2).
25
For the definition of ―family violence order‖, see Ibid, s.4(1) and Family Law Regulations 1984,
Reg.12BB and Schedule 8. Both an apprehended domestic violence order and an apprehended personal
violence order under the Crimes (Domestic and Personal Violence) Act 2007 (NSW) fall within the
definition of ―family violence order‖.
11
to the child or a member of the child‘s family, must inform the court of
the order.26
30. When considering what order to make, the court must, to the extent it is
possible to do so consistently with the child‘s best interests being
paramount, ensure that the order is consistent with any family violence
order and does not expose a person to an unacceptable risk of family
violence.27
31. It is therefore suggested that a sealed copy of any current relevant family
violence order should be filed with the court or produced to the court
whenever the court is considering making an order. If an interim family
violence order is in force, care should be taken to check the outcome of
the adjourned family violence order proceedings, and be able to produce
to the court dealing with the family law proceedings the current interim
or final family violence order.
The need to protect children (s.60K)
32. Under s.60K, the court hearing proceedings in which allegations of
family violence or the risk of it have been raised is required to take
specified action as soon as practical and generally within 8 weeks, as
follows-
“(2) The court must:
(a) consider what interim or procedural orders (if any)
should be made:
(i) to enable appropriate evidence about the
allegation to be obtained as expeditiously as possible;
and
(ii) to protect the child or any of the parties to the
proceedings; and
(b) make such orders of that kind as the court considers
appropriate; and
(c) deal with the issues raised by the allegation as
expeditiously as possible.
26
Family Law Act 1975, s.60CF.
27
Ibid, s.60CG.
12
…
(3) Without limiting subparagraph (2)(a)(i), the court must
consider whether orders should be made under section 69ZW to
obtain reports from State and Territory agencies in relation to the
allegations.
(4) Without limiting paragraph (2)(a)(ii), the court must consider
whether orders should be made, or an injunction granted, under
section 68B.”
33. What triggers these requirements is the filing of a Notice of Abuse or
Family Violence28. It is therefore essential that for proceedings in the
Federal Magistrates Court, practitioners ensure a Notice is filed at the
same time as any affidavit containing evidence of child abuse or family
violence is filed. For proceedings in the Family Court of Australia, a
Notice of Abuse or Family Violence together with an affidavit setting out
the evidence on which the allegations in the Notice are based must be
filed if allegations of abuse or family violence are made.29
34. In relation to the requirement under s.60K that a court consider, inter
alia, whether orders should be made, or an injunction granted, under
s.68B30, it seems most likely that the particular power contemplated by
s.60K is that conferred by s.68B(2). Whether the effect of the interaction
of ss.60K and 68B is to confer power on the court to make an order or
grant an injunction under the latter section when no application for such
an order or injunction is before it, that is, on the court‘s own initiative,
remains to be authoritatively determined.
Family violence in assessing the child’s best interests (s.60CC)
35. The need to protect a child from physical or psychological harm from
being subjected to, or exposed to, abuse, neglect or family violence is
one of the two primary considerations in determining what is in the
child‘s best interests.31
36. The additional considerations in determining what is in a child‘s best
interests include any family violence involving the child or a member of
28
Ibid, s.60K(1), and see Trapp v Vonne & Another, [2009] FMCAfam 497, (2009) 41 Fam LR 471.
29
Family Law Rules 2004, r.2.04B.
30
Family Law Act 1975, s.60K(4).
31
Ibid, s.60CC(2)(b).
13
the child‘s family as well as any family violence order that applies to the
child or a member of the child‘s family, provided that the order is a final
order or its making was contested.32
37. Family violence may also be relevant to a number of other additional
considerations, including the child‘s relationship with the parents33, the
likely effect on the child of any change in the child‘s care
arrangements34, the parent‘s parenting capacities35, and the parents‘
attitudes to the child and the responsibilities of parenthood36.
Family violence and the presumption of equal shared parental
responsibility (s.61DA)
38. As already mentioned, the rebuttable presumption about equal shared
parental responsibility does not apply if there are reasonable grounds to
believe that a parent, or a person who lives with a parent, has engaged in
family violence.37
39. However, that does not mean that the court could not nonetheless make
an equal shared parental responsibility order. It still may do so if
satisfied it would be in the child‘s best interests.
Family violence and the Independent Children's Lawyer (s.68L and Re
K)
40. In proceedings in which the child‘s best interests are, or the child‘s
welfare is, the paramount, or a relevant, consideration, the court may
appoint an Independent Children's Lawyer if it appears to the court that a
child‘s interests ought to be independently represented by a lawyer.38
41. While the discretion to appoint an Independent Children's Lawyer in
such cases is unfettered, the Full Court of the Family Court of Australia,
in Re K39, set out guidelines for judicial officers identifying
32
Ibid, s.60CC(3)(j) and (k)
33
Ibid, s.60CC(3)(b).
34
Ibid, s.60CC(3)(d).
35
Ibid, s.60CC(3)(f).
36
Ibid, s.60CC(3)(i).
37
Ibid, s.61DA(2).
38
Ibid, s.68L.
39
(1994) 17 Fam LR 537, (1994) FLC 92-461.
14
circumstances where the appointment of an Independent Children's
Lawyer ―should normally be made‖, which include the following -
“(vi) Where the conduct of either or both of the parents or some
other person having significant contact with the child is alleged to
be anti-social to the extent that it seriously impinges on the child's
welfare.
Such conduct would include cases where there is a background of
serious family violence. In using that term we make it clear that it
extends beyond actual physical violence to circumstances where
there is a history of serious threats or psychological and emotional
abuse of one or other of the parents or some other person having
significant contact with the child. It is obvious that if one party is
in serious fear of the other the child may need separate
representation to protect his or her position where the parent in
fear may be overborne by the other.”40
Requiring State agencies to provide information about family violence
42. The court is empowered to order prescribed State agencies41 to provide
the court with the documents or information specified in the order, being
documents or information about-
a) any notification of suspected child abuse of the subject chid or of
suspected family violence affecting the child;
b) any assessments by the agency of investigations of such
notifications or findings or outcomes of those investigations; and
c) any reports commissioned by the agency in the course of
investigating a notification.42
43. However, such an order cannot require the production of a document or
information that identifies the person who made a notification.43
44. The section conferring this power is expressed to render any State law
that would hinder or prevent an agency complying with an order for the
40
Ibid, Fam LR at 556-7, FLC at 80,774-5.
41
The NSW Department of Community Services (which no longer exists under that name) and the NSW
Police are prescribed State agencies (Family Law Regulations 1984, Reg.12CD and Schedule 9).
42
Family Law Act 1975, s.69ZW(1) and (2).
43
Ibid, s.69ZW(3).
15
provision of documents or information of no effect to that extent.44
While the Children and Young Persons (Care and Protection) Act 1998
(NSW) contains provisions45 that prevent disclosure of a notifier‘s
identity unless ordered by a court, including a court exercising federal
jurisdiction, it is not expressed in identical terms to the Family Law Act,
s.69ZW, and it is possible s.69ZW(4) may be called into play. If so, the
validity of the provision in the Commonwealth enactment may be open
to challenge.46
Family violence and injunctions (ss.68B and 68C)
45. A court with jurisdiction under the Family Law Act may make an order
or grant an injunction ―in relation to a child‖.47 The power extends to
granting an injunction for the personal protection of a child, a parent of
the child, or another person with whom the child is to live or spend time
under a parenting order, or a person who has parental responsibility for
the child. This provision could thus be used to make an order with
provisions such as those contained in a family violence order under State
law.
46. If an injunction granted under the Family Law Act for the personal
protection of a person is in force, a police officer may arrest a person
against whom the injunction was granted without warrant on reasonable
belief that the person against whom the injunction is granted has
breached the order by causing or threatening to cause bodily harm to the
protected person, or by harassing, molesting or stalking the protected
person.48
47. It is important to note that for the power of arrest without warrant to
attach to a personal protection injunction, the injunction must be
expressed to be for the personal protection of a specified person.49
44
Ibid, s.69ZW(4).
45
See s.29.
46
Cf Northern Territory v GPAO, [1999] HCA 8, (1999) 24 Fam LR 253, (1999) FLC 92-838.
47
Family Law Act 1975, s.68B(1)
48
Ibid, s.68C(1).
49
Ibid, s.68C(2).
16
Division 12A and family violence
48. Division 12A of Part VII of the Family Law Act makes special provision
for the conduct of ―child-related proceedings‖50, including parenting
proceedings. It includes a statement of principles for conducting child-
related proceedings which courts must give effect to both in hearing and
in deciding cases, including51-
“The third principle is that the proceedings are to be conducted in
a way that will safeguard:
(a) the child concerned against family violence, child abuse
and child neglect; and
(b) the parties to the proceedings against family violence.”
49. A number of the provisions of the Evidence Act 1995 (Cth) do not apply
to child-related proceedings, including provisions in relation to hearsay
and opinion.52 However, otherwise inadmissible evidence rendered
admissible under this provision is to be given such weight as the court
thinks fit.53
50. The court may decide to apply one or more of the provisions of the
Evidence Act that do not otherwise apply in child-related proceedings, if-
“(a) the court is satisfied that the circumstances are exceptional;
and
(b) the court has taken into account (in addition to any other
matters the court thinks relevant):
(i) the importance of the evidence in the proceedings; and
(ii) the nature of the subject matter of the proceedings; and
(iii) the probative value of the evidence; and
(iv) the powers of the court (if any) to adjourn the hearing,
to make another order or to give a direction in relation to the
evidence.”54
50
See the definition of ―child-related proceedings‖, Ibid, s.69ZM
51
Ibid, s.69ZN(5).
52
Ibid, s.69ZT.
53
Ibid, s.69ZT(2).
54
Ibid, s.69ZT(3).
17
51. The Full Court observed, in a case where the allegations of family
violence included allegations of rape, that ―trial judges will, in most
circumstances where allegations of serious criminal offences are made,
choose to have all the provisions of the Evidence Act apply to the
determination of the issue, as provided for in section 69ZT(3)‖55.
52. Care needs to be taken in preparing affidavit evidence of family violence
to include the best evidence, having regard to all the provisions of the
Evidence Act, because-
a) An allegation of family violence is a serious allegation;
b) In deciding whether it is satisfied a fact is proved on the balance of
probabilities, the court must take into account the gravity of the
matter alleged, among other things56;
c) Otherwise inadmissible evidence rendered admissible under s.69ZT
may be given such weight as the court thinks fit;
d) Otherwise inadmissible evidence rendered admissible under s.69ZT
would usually be afforded less weight than evidence admissible
under the Evidence Act;
e) The court may apply some or all of the provisions of the Evidence
Act abrogated by s.69ZT, thus rendering inadmissible evidence
prepared in reliance on s.69ZT, and requiring you to redraft the
affidavit evidence in your client‘s case.
53. The Full Court considered in depth the task of a judicial officer dealing
with allegations of family violence in parenting proceedings in Amador v
Amador57. Prof Chisholm has written a useful analysis of this decision.58
Special costs provision (s.117AB)
54. The final provision to which specific reference should be made is the
requirement that the court must order a party to pay some or all of the
55
Amador v Amador, [2009] FamCAFC 196, at [93], unreported, 3 November 2009.
56
Evidence Act 1995 (Cth), s.140.
57
[2009] FamCAFC 196 at [79] – [97].
58
―How to treat allegations of violence and abuse: Amador v Amador‖, (2010) AJFL 276.
18
costs of another party if the court is satisfied the first party ―knowingly
made a false allegation or statement in the proceedings‖.59
55. It is said that this provision inhibits parents raising allegations of family
violence. Prof Chisholm has recommended the repeal of this provision.
He has recommended that the fact of a false allegation or statement
become a factor to be considered when a court exercises the general
discretion to order costs60.
56. However, while the mandatory costs provision remains, the scope of the
provision warrants careful consideration. It only comes into play if the
court is satisfied that a party has knowingly made a false allegation or
statement in the proceedings, that is, if the allegation or statement was
made in evidence, it would amount to perjury. I suggest this sets the bar
quite high.
57. Where I suggest some care needs to be exercised is in the use of Notices
of Child Abuse or Family Violence. When filed, they clearly amount to
an allegation in the proceedings. To my observation, they are often filed
when they should not be (and often not filed when they should be). If
the facts asserted in the Notice cannot, on any view of it, amount to child
abuse or family violence, the definitions of both terms being set out in
the form of Notice, it may be argued that the party filing the Notice must
have known that the allegation was false. However, if the facts asserted
arguably come within the defined terms of child abuse or family
violence, then a Notice should be filed.
Best Practice Principles
58. The Family Court of Australia in March 2009 published ―Best Practice
Principals for use in Parenting Disputes when Family Violence or Abuse
is Alleged‖61 (Best Practice Principles).
59. In Maluka v Maluka62, Benjamin J said of the Best Practice Principles-
“6. The Family Court has always recognized the risk to children
and spouses of family violence, abuse and the risk of abuse. In
59
Family Law Act 1975, s.117AB.
60
Ibid, s.117(2A).
61
http://www.familycourt.gov.au/wps/wcm/resources/file/eb6f1303a17fe3c/FVBPPApril2009_V2.pdf.
62
[2009] FamCA 647.
19
March 2009 the Family Court published Best Practice Principles
for use in Parenting Disputes when Family Violence or Abuse is
Alleged. These Best Practice Principles were developed:-
in recognition and understanding of the devastating effects of
family violence and abuse on victims; in furtherance of the
commitment of the Family Court to protecting children and
parents from harm resulting from family violence and abuse63.
7. The Best Practice Principles were developed having regard to
the Court‟s Family Violence Strategy; the guidelines set out in the
Court‟s Magellan case management system; and to meet the
legislative recognition of the place accorded to family violence
under the Act.
8. Copies of the Best Practice Principles were given to the parties‟
legal representatives during the hearing and I informed them that I
would have regard to these principles including the matters that
may be considered at the final hearing and in making findings of
family violence or abuse or unacceptable risk of abuse.
9. The Best Practice Principles are a very useful checklist for
parties, legal practitioners and judicial officers when dealing with
allegations of family violence and/or abuse.”
60. In Collier v Williams64, the Full Court considered as one of the grounds
of appeal the contention that the trial judge erred in an appellate sense in
failing to follow ―in form or spirit‖ the Best Practice ―Guidelines‖. Their
Honours (Faulks DCJ, Boland and Stevenson JJ) said-
“125. It is significant to note that the word „guidelines‟ appears
nowhere in this document, for the very good reason that its contents
are in no way intended to fetter judicial discretion and could never
have that effect. …
126. It cannot be an appealable error that his Honour did not use
the Best Practice Principles as a checklist or framework for his
consideration of the issue of family violence. The very language of
the document makes it clear that the Principles are intended only as
a voluntary source of assistance to judicial officers, not as a fetter
to their discretion.”
61. Thus, while the Best Practice Principles ―are a very useful checklist for
parties, legal practitioners and judicial officers when dealing with
63
Preamble to the Best Practice Principles.
64
[2010] FamCAFC 168
20
allegations of family violence and/or abuse‖, a judicial officer‘s failure to
use them does not constitute appealable error.
62. A review of the judgments data bases of the Family Court of Australia
and Federal Magistrates Court reveals that the Best Practice Principles
are referred to in 2 Full Court judgments and 6 first instance decisions, 4
of which were Family Court of Australia decisions and 2 Federal
Magistrates Court decisions. I note that the Chisholm Report
65
recommends -
“That the family law courts66 review the extent to which judicial
officers … use and benefit from the (Best Practice Principles), and
consider any measures that might lead to the Principles becoming
more influential.”
63. I commend the document to practitioners as a very useful guide and
checklist when preparing a parenting case where child abuse or family
violence issues are raised.
Family violence and property settlement
64. Family violence is a relevant consideration in property settlement
proceedings under the Family Law Act in some limited circumstances.
In a joint judgment in Kennon v Kennon67, Fogarty and Lindenmayer JJ
said68-
“Put shortly, our view is that where there is a course of violent
conduct by one party towards the other during the marriage which
is demonstrated to have had a significant adverse impact upon that
party‟s contributions to the marriage, or, put the other way, to have
made his or her contributions significantly more arduous than they
ought to have been, that is a fact which a trial judge is entitled to
take into account in assessing the parties‟ respective contributions
within s.79.
…
It is essential to bear in mind the relatively narrow band of cases to
which these considerations apply. To be relevant, it would be
necessary to show that the conduct occurred during the course of
65
Chisholm Report, Recommendation 4.8.
66
That is, the Family Court of Australia and the Federal Magistrates Court.
67
(1997) 22 Fam LR 1, (1997) FLC 92-757.
68
Ibid, Fam LR at 24, FLC at 84,294.
21
the marriage and had a discernible impact upon the contributions
of the other party. It is not directed to conduct which does not have
that effect and of necessity it does not encompass (as in Ferguson69)
conduct related to the breakdown of the marriage (basically
because it would not have had a sufficient duration for this impact
to be relevant to contributions).”
65. Baker J, the other member of the Full Court in Kennon, said70:
“The incidence of domestic violence in a marriage would generally
be a relevant factor when the court comes to assess contributions
pursuant to the provisions of s.79 for the reason that the
contributions made by a party who has suffered domestic violence
at the hands of the other party may be all the more onerous because
of that violence and therefore attract additional weight.”
66. In Bormann v Bormann71, the Full Court said of this issue-
“76. The so-called Kennon factor is not the equivalent of an award
for damages. It identifies that the contribution of one party may
have been all the greater than the contribution of the other because
of the circumstances in which that contribution had to be made.”
67. In Rettke v Rettke72, when considering an argument that the trial judge
erred in taking family violence into account under the principle
enunciated in Kennon because the family violence ―was on the ‗lower‘
side of the scale‖ and ―was spasmodic and not a consistent course of
conduct through the marriage‖, the Full Court said73-
“Whether or not the violence was „…on the lower side of the scale‟
is not in point. The trial Judge found there to have been violence
and, on the evidence before him, was entitled to do so. That the
violence was „…spasmodic and not a consistent course of conduct
through the marriage‟ is not a reason for disregarding violence
where, as was the case here, the Court accepts that the violent
conduct occurred as alleged.”
68. Thus, while based on the reasons of the majority in Kennon, for family
violence to be relevant in assessing contributions for property settlement
there must be a ―course of violent conduct‖ occurring ―during the course
69
Ferguson v Ferguson, (1978) 4 Fam LR 312 , (1978) FLC 90-500.
70
(1997) 22 Fam LR 1 at 67, (1997) FLC 92-757 at 84,329.
71
Unreported, Full Court of the Family Court of Australia (Kay, Coleman and O‘Ryan JJ), 8 April 2003.
72
[2000] FamCA 514, unreported, Full Court of the Family Court of Australia, 18 May 2000.
73
Ibid, at [75].
22
of the marriage‖, that made the victim‘s contributions ―significantly
more arduous‖ or ―had a discernible impact upon the contributions of the
other party‖, based on Rettke the principle is not limited to the worst
cases of family violence, nor is it limited to cases where the family
violence continued consistently throughout the whole of the marriage.
69. Nonetheless, the comments by the majority in Kennon that the principle
enunciated will be applicable in a ―relatively narrow band of cases‖ have
meant that, absent evidence on which it may reasonably be argued that
there has been a course of violent conduct, rather than a single incident
or isolated incidents, that has had a discernible impact on the nature and
quality of the contributions made by the victim, usually as homemaker
and parent, courts have not entertained a Kennon argument.
What social science tells us about family violence
Effect on children of exposure to family violence
70. A recent Australian Institute of Criminology research report74 stated-
“What the available evidence indicates is that witnessing violence
in the home poses a threat to children‟s physical, emotional,
psychological, social, educational and behavioural wellbeing (see
McGee 2000; Morgan & Chadwick 2009; Richards forthcoming;
Tomison 2000; Tucci et al. 2005; Zerk, Martin & Proeve 2009).
Browne and Winkelman (2007) noted that child abuse and neglect
have been associated with insecure attachment in both childhood
and adulthood, as well as cognitive distortion associated with
safety (eg preoccupation with danger), controllability (eg
perceptions of hopelessness) and internal attribution (self-
blaming). They also acknowledged that „long after trauma victims
regain environmental control over their lives, they continue to
suffer from perceptions of powerlessness, helplessness,
ineffectualness, and vulnerability to poor psychological adjustment‟
(Browne & Winkelman 2007: 693).
…
In an English study, McGee (2000) … listed the following as some
of the effects of such violence on children: fear; sadness; anger;
74
Bartels, L, ―Emerging issues in domestic/family violence research‖, Australian Institute of
Criminology, Research in Practice Report No 10, April 2010,
http://www.aic.gov.au/publications/current%20series/rip/1-10/10.aspx.
23
adverse effects on identity, health, education; and impacts on
relationships with their mother, father, extended family and
friends.”
71. The effects of family violence on children were summarised thus in an
article in Issues in Child Abuse Prevention75-
“There is growing empirical evidence that early exposure to
chronic violence may significantly alter a child‟s neural
development (Perry 1997). …
Other identified effects include: an elevated risk of becoming
involved in violent relationships with peers and adults; an elevated
risk for a spectrum of serious emotional and behavioural problems,
including depression, anxiety disorders, psychophysiological
(somatic) complaints, peer conflicts, social isolation, and conflicts
with adults and other forms of authority (Fantuzzo & Lindquist
1989; Jaffe et al 1990; Kruttsmidt & Dornfield 1993; James 1994;
Suderman & Jaffe 1997; Sappington 2000). This trauma may result
not only from witnessing the violence, but in some cases as a
function of the mother withdrawing her emotional support from the
child (Sykes & Symons-Moulton 1990; James 1994).
However, the nature and extent of these consequences may be
moderated or mediated by a variety of factors including: age of the
child; children‟s coping strategies and individual resiliency;
gender; the nature, severity and frequency of the violence
(witnessing domestic violence and also being physically maltreated,
is associated with higher levels of distress and/or acting out,
compared with only witnessing violence); whether the pattern of
violence has ceased; attendant environmental factors, such as the
mother‟s ability to parent, and the availability of legal and social
protection are also important in reducing or exacerbating effects
(Hughes 1988; Hughes, Parkinson & Vargo 1989; Jaffe et al.,
1990; Kruttsmidt & Dornfield 1993; Malinosky-Rummell & Hansen
1993; Sternberg, Lamb & Greenbaum 1993; Spaccarelli 1994;
O‟Keefe 1995; Suderman & Jaffe 1997; Edleson 1999a).”
72. The potential for amelioration of the effects of exposure to family
violence identified in the final paragraph quoted is significant. Stopping
the violence, effective legal protection, and helping improve the mother's
75
Tomison, AM, ―Exploring family violence: Links between child maltreatment and domestic violence‖,
Issues in Child Abuse Prevention, Number 13 Winter 2000. Also at
http://www.aifs.gov.au/nch/pubs/issues/issues13/issues13.html.
24
parenting capacity, which may be impaired by family violence, are
identified as relevant factors.
73. The effects on children of exposure to parental violence has also been
summarised as follows76:
“Behavioural, cognitive, and emotional problems include
aggression, conduct disorders, delinquency, truancy, school failure,
anger, depression, anxiety and low self-esteem. Interpersonal
problems include poor social skills, peer rejection, problems with
authority figures and parents, and an inability to empathise with
others. Preschool children traumatised by the earlier battering of
their mothers had pervasive negative effects on their development,
including significant delays and insecure or disorganised
attachments (Lieberman & Van Horn, 1998). School-age children
repeatedly exposed to violence are more likely to develop
posttraumatic stress disorders, particularly when combined with
other risk factors of child abuse, poverty, and the psychiatric illness
of one or both parents (Ayoub, Deutsch & Maraganore, 1999;
Kilpatrick & Williams, 1997). Threats to use or use of guns or
knives is associated with more behavioural symptoms in 8-12 year
olds, when compared to youngsters where there is intimate partner
violence without knives and guns (Jouriles at al, 1998). There are
also higher rates of both child abuse and sibling violence in violent,
compared with nonviolent, high-conflict marriages.”
Is all family violence the same?
74. I commend to you an excellent paper by Dr Tom Altobelli FM delivered
at the 11th Australian Family Lawyers‘ Conference in Fiji last year77.
What follows under this and the next heading is a summary of aspects of
some of the literature surveyed in his paper.
75. There is now a recognition among social scientists that there are
identifiable differences in patterns of family violence, and that
differentiation of these patterns is important in addressing the child‘s best
interests. Kelly & Johnson78 suggest four categories of family violence,
76
Kelly, JB, & Johnson, MP, ―Differentiation Among Types of Intimate Partner Violence: Research
Update and Implications for Interventions‖, Family Court Review, Vol 46 No 3, July 2008, p.476 at
p.489-490 (Kelly & Johnson).
77
Altobelli, T, ―Family Violence and Parenting: Future Directions in Practice‖, 11th Australian Family
Lawyers Conference Fiji, 5-9 June 2009.
78
Kelly & Johnson, p.476.
25
although other authors use different descriptors for the same
categorisation79-
a) Coercive Controlling Violence80, involving ―intimidation;
emotional abuse; isolation; minimising, denying and blaming; use
of children; asserting male privilege; economic abuse; and coercion
and threats. Abusers do not necessarily use all of these tactics, but
they do use a combination of the ones that they feel are most likely
to work for them. Because these nonviolent control tactics may be
effective without the use of violence (especially if there has been a
history of violence in the past), Coercive Controlling Violence does
not necessarily manifest itself in high levels of violence.‖81 Despite
the gender-specific reference just quoted, Coercive Controlling
Violence by women has been documented in both heterosexual and
lesbian relationships.82 ―Coercive control must be considered a
major risk factor for continued or increased violence.‖83
b) Violent Resistance84, to Coercive Controlling Violence. ―Much
Violent Resistance does meet at least the common-sense definition
of self-defence: violence that takes place as an immediate reaction
to an assault and that is intended primarily to protect oneself or
others from injury. … (I)n heterosexual relationships, most
women find out quickly that responding with violence is ineffective
and may even make matters worse.‖85
c) Situational Couple Violence86, being ―the most common type of
physical aggression in the general population of married spouses
and cohabiting partners, and is perpetrated by both men and
women. It is not a more minor version of Coercive Controlling
Violence; rather it is a different type of intimate partner violence
with different causes and consequences. (It) is not embedded in a
relationship-wide pattern of power, coercion and control. Generally
79
Jaffe, PG, Johnston JR, Crooks, CV & Bala, N, ―Custody disputes involving allegations of domestic
violence: towards a differentiated approach to parenting plans‖, Family Court Review, Vol 46 No 3, July
2008, p.500 (Jaffe et al).
80
Also called abusive-controlling violence, Jaffe et al, p.501.
81
Kelly & Johnson, p.481.
82
Op cit, p.482.
83
Op cit, p.483.
84
Jaffe et al use the same term.
85
Kelly & Johnson, p.484.
86
Also called conflict-instigated violence or common couple violence, Jeffe et al, p.501.
26
(it) results from situations or arguments between partners that
escalate on occasion into physical violence. One or both partners
appear to have poor ability to manage their conflicts and/or poor
control of anger. … (It) more often involves minor forms of
violence (pushing, shoving, grabbing, etc) when compared to
Coercive Controlling Violence‖.87
d) Separation-Instigated Violence88, ―instigated by the separation
where there is no prior history of violence in the intimate
relationship or in other settings. Seen symmetrically in both men
and women, these are unexpected and uncharacteristic acts of
violence perpetrated by a partner with a history of civilised and
contained behaviour. … (It) is triggered by experiences such as a
traumatic separation (e.g., the home emptied and the children taken
when the parent is at work), public humiliation of a prominent
professional or political figure by a process server, allegations of
child or sexual abuse, or the discovery of a lover in a partner‘s bed.
The violence represents an atypical and serious loss of
psychological control (sometimes described as ‗just going nuts‘), is
typically limited to one or two episodes at the beginning of or
during the separation period, and ranges from mild to more severe
forms of violence.‖89
76. Violence resulting from mental illness may not fit any of these
categories.90 It is suggested there is a fifth category of family violence,
mutual violent control, between two coercive controlling partners, about
which there is little current research.91
Effect of family violence on victims
77. The social science literature suggests that coercive controlling or
abusive-controlling violence may have a profound impact on the victim-
“It is not unusual for victims of coercive controlling violence to
report that the psychological impact of their experience is worse
that the physical effects. The major psychological effects of
87
Kelly & Johnson, p.485.
88
Jaffe et al use the same term.
89
Kelly & Johnson, p.487.
90
Cf op cit, p.489.
91
Op cit, p.477.
27
coercive controlling violence are fear and anxiety, loss of self-
esteem, depression and posttraumatic stress. The fear and anxiety
are well documented in many qualitative studies of coercive
controlling violence (eg, Kirkwood, 1993; Dobash & Dobash,
1979; Ferraro, 2006), and quantitative studies confirm that fear
and anxiety are frequent consequences of intimate partner violence
(Sackett & Saunders, 1999; Sutherland, Bybee & Sullivan, 1998).
…
Depression is considered by many to be the most prevalent
psychological effect of coercive controlling violence. Golding‟s
(1999) analysis of the results from 18 studies of battering and
depression found that the average prevalence of depression among
battered women was 48%. However, because none of these studies
distinguished between coercive controlling violence and other types
of partner violence, this number most certainly understates the
effects of coercive controlling violence. When Golding separated
out studies done with shelter victims (likely to be dominated by
coercive controlling violence), the average prevalence of
depression was 61%.
Nightmares, flashbacks, avoidance of reminders of the event, and
hyperarousal (ie, the major symptoms of posttraumatic stress
syndrome) have more recently been recognised as consequences of
domestic violence. In a study of survivors of domestic violence who
were receiving services from shelters and other agencies, 60% of
the women met criteria for a diagnosis of posttraumatic stress
syndrome (Saunders, 1994). Johnson and Leone (2000) … found
that victims of coercive controlling violence were twice as likely as
victims of situational couple violence to score above the median on
a scale of posttraumatic stress symptoms.”92
Significance of categorisation of family violence in family law setting
78. It has been suggested93 that differentiation of the types of family violence
is ―a relevant factor in determining the appropriate post-separation
parenting arrangements‖. Jaffe et al illustrate this as follows-
a) ―Spousal abuse does not necessarily end with separation of the
parties. … (I)n a small proportion of cases, especially (coercive
controlling violence), the intensity and lethality of domestic
92
Op cit, pp.483-4.
93
Jaffe et al, p.501.
28
violence escalates after the victim leaves the relationship.
Furthermore, promoting parent-child contact where ex-spouses are
prone to become physically violent when in conflict (situational
couple violence) may create opportunities for renewed domestic
violence over visitation issues and exchanges of children.‖94
b) ―In extreme cases, domestic violence following separation is lethal,
especially in the case of the more abusive relationship‖95 (Coercive
Controlling Violence).
c) ―Perpetrators of domestic violence are more likely to be deficient if
not abusive as parents. … (While) there is a wide range of
capacity to parent among high-conflict and violent families, …
common features are lack of warmth, coercive tactics and rejection
of their children. This pattern is especially true for those exhibiting
abuse and coercive control of their spouse (Coercive Controlling
Violence), probably also true of couples who resort to physical
force to resolve conflict (Situational Couple Violence), and less
likely or time limited if the violence was an isolated event‖
(Separation-Instigated Violence).96
d) ―Individuals who have a pattern of abuse of their partners (Coercive
Controlling Violence) and those who commonly resolve conflicts
using physical force (Situational Couple Violence) are poor role
models for children. Poor role modelling occurs even after the
parental separation, whether or not parents mistreat their children
directly, because when children witness one parent assaulting the
other, their sibling, or other family member, and using threats of
violence to maintain control, their own expectations about
relationships tend to emulate these observations. Moreover, often
very frightened by these scenes, young children tend to identify
intensely with the violent parent.‖97
e) ―Abusive ex-partners (Coercive Controlling Violence) are likely to
undermine the victim‘s parenting role. In a range of obvious and
more insidious ways, abusive ex-partners are likely to attempt to
94
Op cit, pp.501-2.
95
Op cit p.502.
96
Op cit, p.502.
97
Op cit, p.502.
29
alienate the children from the other parent‘s affection (by asserting
blame for the dissolution of the family and telling negative stories),
sabotage family plans (by continuing criticism or competitive
bribes), and undermine parental authority (by explicitly instructing
the children not to listen or obey).‖98
f) ―Abusive ex-partners (Coercive Controlling Violence) may use
family court litigation as a new forum to continue their coercive
controlling behaviour and to harass their former partner. … In
some of these cases the perpetrators are self-represented,
heightening the possibilities for abuse through intimidating or
berating a former partner in cross-examination, unless an astute
judge intervenes.‖99
g) ―Diminished parenting capacities among victims of domestic
violence often occurs. Preoccupation with the demands of the
abuser (Coercive Controlling Violence), a conflict-ridden marriage
(Situational Couple Violence), or a traumatic separation
(Separation-Instigated Violence) may render parents physically and
emotionally exhausted, inconsistently available, overly dependent
upon, or unable to protect their children from the abuser. … For
the majority of victims, separation from the perpetrator of domestic
violence may provide an opportunity for improvement in both
general functioning and parenting capacities. However, those who
have been victimised by prolonged abuse and control (Coercive
Controlling Violence cases) are likely to suffer sustained difficulties
– like anxiety, depression, substance abuse and posttraumatic stress
disorder – all of which can compromise their parenting for some
time.‖ 100
h) ―Victims‘ behaviour under the stress of the abusive relationship
(Coercive Controlling Violence) and during the aftermath of a
stressful separation (Separation-Instigated Violence) should not
inappropriately prejudice the residential or access decision. In the
face of a real threat of violence, victims who live in fear of their ex-
partner are not paranoid, nor may it be appropriate for them to
promote a relationship between their children and the other parent.
98
Op cit, p.503.
99
Op cit, p.503.
100
Op cit, p.503.
30
… (V)ictims of abuse who leave the family home without the
children should not be viewed as abandoning, neglectful, or
irresponsible parents; in these cases, leaving alone may be the only
way that they believe that they appease their volatile partner.‖101
i) ―Victims of abusive relationships may need time to re-establish
their competence as parents and opportunity to learn how to nurture
and appropriately protect themselves and their children. Time,
protection and support allow an adequate opportunity for a
distinction to be made between the majority of victims of spousal
abuse who are able to re-establish effective parenting, and the small
minority of cases where the victim‘s mental status will be
chronic.‖102
Implications of the social science for the preparation and
presentation of family law cases involving family violence
79. I suggest that the social science literature about the classification of
family violence and the implications of the different types of family
violence can and should inform the preparation and presentation of cases
where family violence is an issue. Some of the aspects of preparation
and presentation that this literature may inform and illuminate are as
follows.
Taking instructions
80. It would be useful to have the classifications of family violence in mind
when taking instructions from a client alleging family violence. The
social science research suggests victims do not always make a complete
disclosure of all incidents of family violence when making an initial
disclosure. This may be for a number of reasons, including fear and
embarrassment. Coercive controlling violence may include sexual abuse
about which a client may be very reluctant to make a disclosure. A
victim of coercive controlling violence with symptoms of posttraumatic
stress disorder may avoid discussion of the triggering events, as
revisiting those events may exacerbate other PTSD symptoms.
101
Op cit, p.503-4.
102
Op cit, p.504.
31
81. Practitioners need to be sensitive to the reluctance of some victims to
make a disclosure, or a full disclosure. They need to explore with the
client the full extent of family violence, which may require considerable
patience, while being sensitive to the fact that for victims of serious
violence, disclosure itself may be a traumatic experience.
82. The social science literature may also provide a useful guide of the sorts
of matters on which to take instructions when trying to assess the
seriousness of the risk to the children from the alleged perpetrator, and
any ongoing risk to your client‘s safety, and perhaps even your own
safety, where your client appears to be reporting a pattern of coercive
controlling or abusive-controlling violence. Jaffe et al suggest a
screening methodology focussing on potency, pattern and perpetrator
(PPP screening).103 I have reproduced this PPP screening methodology
in the attachment.
Support for client/victim
83. The social science literature suggests that engaging with appropriate
support services may be significant in ameliorating the effects of family
violence, both on children and on direct victims. This may also be
important for your client if it appears your client‘s parenting capacity has
been compromised and may be open to attack, and it is arguable that any
deficiencies in parenting may be attributable to the effects of family
violence. It may be that both your client and the children need
therapeutic interventions to address the effects of family violence.
Family violence and the forensic process
84. I have already addressed the need to adduce the best available evidence
of family violence. A court may make a finding of family violence in
family law proceedings, even violence constituting a serious assault,
without corroboration or evidence of contemporaneous complaint.104
However, the more serious the subject matter of the allegation, as the
103
Op cit, pp.504-506.
104
Amador v Amador, [2009] FamCAFC 196, [79]–[81].
32
statutory restatement105 of the Briginshaw106 test makes clear, the greater
the need for persuasive probative evidence to support it.
85. The evidence of family violence should address all the family violence
that has occurred as fully as the client‘s recollection will permit. If the
evidence only identifies one or two isolated incidents of family violence,
especially those occurring around the breakdown of the parents‘
relationship when the client‘s recollection is likely to be fresher and it is
more likely contemporaneous reports may have been made to police,
when in fact there has been a consistent pattern of controlling behaviour
over many years, the court is being presented with an inaccurate picture
of separation-instigated violence, rather than coercive controlling or
abusive-controlling violence. The way the court will assess family
violence must be informed by the extent of the evidence to prove it.
86. By way of example, I recently had an affidavit from a mother in a
parenting case in which she stated-
“I was subjected to an ongoing course of domestic violence by the
applicant father during the period of our relationship. This
violence was both verbal and physical abuse. Physical assaults
would involve the applicant father punching me, hitting me and the
like.
I was subjected to physical assaults by the applicant father on
multiple occasions during the period of cohabitation. These
assaults occurred in our then residences.”
87. The affidavit contained evidence of only two specific incidents of family
violence, one at the time of each of the parties‘ separations.
88. While the general allegations quoted (and they are only that –
allegations, not evidence of facts to prove assault or abuse) are
suggestive of coercive controlling or abusive-controlling violence, the
actual evidence of family violence was consistent with separation-
instigated violence. The potential adverse ramifications for the children
of the court deciding a case on the basis of the family violence being
atypical behaviour under the stress of separation, when in fact the family
violence may have been pervasive throughout the relationship, and hence
105
Evidence Act 1995 (Cth), s.140.
106
Briginshaw v Briginshaw, (1938) 60 CLR 336.
33
be far more likely to have had serious effects on both the victim and the
children, and be far more likely to continue after separation, are
significant.
89. Another difficulty this case illustrates is the delayed disclosure of family
violence. Consent parenting orders were made shortly after separation a
few years ago. It could be argued that the mother's consent to those
orders as then being in the children‘s best interests, and the amount of
time with the children the mother thereby agreed the father should have,
were inconsistent with a contention of any significant risk to the children
based on events, such as alleged family violence, occurring prior to the
orders being made.
90. Allegations of family violence are often challenged in cross-examination
on the basis that they are in effect a recent invention, because the accuser
failed to raise the allegations at all, or to the extent now alleged, in prior
proceedings or in affidavits filed earlier in the current proceedings, or
because the accuser agreed to post separation parenting arrangements
apparently inconsistent with the present allegations.
91. A victim of coercive controlling violence may, consistently with that
form of family violence, agree to parenting arrangements that may
compromise the child‘s welfare. Coercive controlling violence may
become worse on separation. Thus, a victim of coercive controlling
violence may agree to inappropriate parenting arrangements out of fear
of the perpetrator and in an effort to appease the perpetrator. The very
reason an Independent Children's Lawyer should usually be appointed
for a child where there are allegations of family violence is because-
“It is obvious that if one party is in serious fear of the other the
child may need separate representation to protect his or her
position where the parent in fear may be overborne by the other.”107
92. This raises important forensic issues. Allegations of family violence are
easily made, and on occasions are falsely made. It would be important to
address in your client‘s affidavit the reasons why your client agreed to
any prior parenting arrangements, whether they were incorporated into a
parenting order or parenting plan or not, that may be inconsistent with
the client‘s current evidence about family violence. Where the client has
107
Re K, (1994) 17 Fam LR 537 at 557, (1994) FLC 92-461 at 80,774-5.
34
previously sworn an affidavit that made no mention of the allegations
now being made, it would also be important to address in your client‘s
affidavit the reasons why the allegations were not raised earlier.
93. Another issue to address may be your client‘s presentation. A witness
presenting as confident, assertive and in control in cross-examination
may be argued to present inconsistently with a person who was
overborne, subjugated and controlled by an abusive partner. Of course,
parenting hearings usually occur some significant time after separation.
Some victims of family violence seek therapeutic assistance to deal with
the effects of family violence. One way they may be helped is in
building or rebuilding self-esteem, and in gaining or regaining
assertiveness. If your client has had such therapeutic intervention with
positive results, you might consider whether you should obtain evidence
from the therapist about your client‘s presentation at the commencement
of therapy, the nature of therapeutic interventions, and the results of
those interventions.
94. Coercive controlling violence may also have an adverse effect on your
client‘s parenting. Your client may have left the children with the alleged
abuser at the time of separation, your client may have suffered
depression, perhaps even threatened or attempted suicide, your client
may have resorted to excessive discipline of the children, or your client
may have abused alcohol or drugs. If any of these issues have affected
your client‘s past parenting, you should consider whether they may have
been caused by coercive controlling violence, and if they may be, you
should consider seeking expert evidence that may establish a causal
connection between the alleged violence, if proven, and your client‘s
failings as a parent. It would be equally important to adduce evidence of
any therapeutic interventions, and of any parenting or substance abuse
programs, your client may have participated in to address these parenting
deficits, and the results of that participation.
Cross-examination of your client by unrepresented alleged family
violence perpetrator
95. The unrepresented litigant is an all too familiar phenomenon. If your
client is alleging family violence against an unrepresented adversary, you
35
should consider the potential impact on your client of being directly
cross-examined by the alleged perpetrator.
96. If your instructions are that your client has been the victim of serious
family violence, whether a single serious assault or long term persistent
controlling family violence, and your client is genuinely fearful of the
other party to a potentially incapacitating extent if required to be in the
same room or to be directly questioned by the alleged perpetrator, you
should consider whether to seek to have your client attend the hearing or
be cross-examined from a different location by CCTV or video link.
97. I suggest such an application should be supported by expert evidence
from a psychologist or psychiatrist about the impact of the alleged
violence on your client, the likely impact on your client of being in the
same room or directly cross-examined by the alleged perpetrator, and
whether, and if so how, any of those effects would be ameliorated if your
client attended the hearing or was cross-examined from a different place
to the alleged perpetrator. There would also need to be clear evidence
from your client describing in appropriate detail the family violence that
is alleged by your client sufficient, if accepted, to support the opinions of
the expert.
98. Even where the other party has legal representation, if being in the same
room as the other party may have serious adverse effects on your client
because of alleged serious family violence, it may be appropriate to
apply for your client to participate in the hearing from a different
location.
The “friendly parent” provisions
99. It is suggested that parents are facilitating inappropriate parenting
arrangements with perpetrators of family violence through fear of being
criticised under the ―friendly parent‖ provision, and that this is occurring
under legal advice to do so.108
100. The ―friendly parent‖ provision refers to the requirement that a court in
assessing what is in a child‘s best interests consider the willingness and
ability of each parent to facilitate and encourage a close and continuing
108
For example, see the Chisholm Report, Part 3.2.
36
relationship between the child and the other parent.109 In assessing this,
the court must consider the extent to which a parent, especially since
separation, has fulfilled or failed to fulfil his or her responsibilities as a
parent, in particular by facilitating or failing to facilitate the other
parent‘s involvement with the child110.
101. The Chisholm Report recommends that the ―friendly parent‖ provision
be amended ―so it recognises that parents sometimes need to take action
to protect children from risk‖. This is consistent with Jaffe et al, who
recognise that in some cases it may not be appropriate for a victim of
family violence to promote a relationship between the children and the
perpetrator of the violence.111
102. It is important to note that in considering the extent to which a parent has
facilitated or failed to facilitate the other parent‘s involvement with the
child, the court is expressly required to do so ―having regard, in
particular, to events that have happened, and circumstances that have
existed, since separation occurred‖112. That does not exclude
consideration of events occurring before separation. Nor does it preclude
consideration of the appropriateness of a parent facilitating or failing to
facilitate the other parent‘s involvement with the children.
103. If separation occurred because of a serious assault on the child by one of
the parents, the other parent could hardly be criticised for not facilitating
the abusing parent‘s involvement with the child victim as if nothing had
happened. On the contrary, if the other parent did so, they would rightly
be open to criticism for knowingly exposing the child to danger.
104. Similarly with family violence. If a parent fails after separation to
facilitate the other parent‘s involvement with the child at all, or to the
extent the other parent sought, the question to be addressed must be
whether the refusal to facilitate greater time was a reasonable decision in
the child‘s best interests, or was unjustified obstruction of a beneficial
relationship between the child and the other parent. And where family
violence is alleged, the determination of that issue must be informed by
the best evidence available to prove the alleged family violence.
109
Family Law Act 1975, s.60CC(3)(c).
110
Ibid, s.60CC(4) and (4A).
111
Jaffe et al, p.503.
112
Family Law Act 1975, s.60CC(4A).
37
105. I suggest that the classification of family violence and its implications
may usefully inform the presentation of the case for a parent under the
―friendly parent‖ provisions, on either side of this equation.
Property settlement
106. The contrast drawn by Fogarty and Lindenmayer JJ in Kennon113
between ―a course of violent conduct by one party towards the other
during the marriage‖ and ―conduct (that) occurred during the course of
the marriage‖ with ―conduct related to the breakdown of the marriage‖114
can be readily aligned with categorisations of controlling coercive or
abusive-controlling violence and separation-instigated violence. To
continue with the social science categorisation, it would seem unlikely
that violent resistance and situational couple violence/conflict-instigated
violence would meet the standard required for a Kennon argument of
enhanced contribution.
Protection of clients at court
107. The Family Court of Australia and the Federal Magistrates Court have a
joint family violence policy. 115 If you or your client are concerned for
your client‘s safety when attending court because of alleged family
violence, you should contact the Family Law Courts National Enquiry
Centre (NEC) by phone116 well in advance of the time for attendance at
court so that appropriate arrangements can be made to ensure your
client‘s safety. It does not matter what the purpose of your client‘s
attendance at court is, whether it is for a court event, a conciliation
conference with a Registrar, or for an appointment with a Family
Consultant, you should alert the NEC as early as possible if there are any
safety concerns for your client.
108. If personal safety issues are raised with the NEC, an appropriate Safety
Plan will be developed for your client.
113
(1997) 22 Fam LR 1, (1997) FLC 92-757.
114
Ibid, Fam LR at 24, FLC at 84,294-5.
115
http://www.familylawcourts.gov.au/wps/wcm/connect/FLC/Home/Family+Violence/Personal+safety/
116
1300 352 000.
38
Attachment
“The PPP Screening117
Part A: Potency of Violence (level of severity, dangerousness, or risk of
lethality)
1. Are there any threats or fantasies of homicide and/or suicide? If so, does the
person have a specific plan to act on them?
2. Are weapons available (guns, knives, etc.), indicating the means are
accessible?
3. How extreme was any prior violence? Were injuries caused, and if so, how
serious?
4. Is the person highly focused upon/obsessed with the specific victim as a
target of blame?
5. Is there a history of mental illness—especially thought disorder, paranoia,
or severe personality disorder?
6. Is the person under the influence of drugs or alcohol, indicating diminished
capacity to inhibit angry impulses? Is there a history of substance abuse?
7. Does the person express a high degree of depression, rage, or extreme
emotional instability (indicating a propensity to act irrationally and
unpredictably)?
8. Is the party recently separated or experiencing other stressful events like
loss of job, eviction from home, loss of child custody, severe financial
problems, etc.?
Part B: Pattern of Violence and Coercive Control
1. Is there a history of physical violence including: Destruction of property?
Threats (to hurt self or loved ones)? Assault or battery? Sexual coercion or
rape?
2. Has there been disregard or contempt for authority (e.g., refusal to comply
with court-ordered parenting plans, violation of protective orders, a criminal
arrest record)?
3. How fearful and/or intimated is the partner?
4. Is there a history of emotional abuse and attacks on self-esteem?
117
Jaffe et al, p.505, Table 1.
39
5. Does one party make all decisions (e.g., about social, work, and leisure
activities; how money is spent; how children are disciplined and cared for;
household routines and meals; personal deportment and attire, etc.)?
6. Has the partner been isolated/restricted from outside contacts (e.g., with
employment, friends and family)?
7. Is there evidence of obsessive preoccupation with, sexual jealousy, and
possessiveness of the partner?
8. After separation, have there been repeated unwanted attempts to contact the
partner (e.g., stalking, hostage-taking, threats or attempts to abduct the
partner or child)?
9. Have there been multiple petitions/litigation that appear to have the purpose
of controlling and harassing?
Part C: Primary Perpetrator Indicators: Who is the primary
aggressor, if either?
1. Who provides a more clear, specific and plausible account of the violent
incident(s)? Who denies, minimizes, obfuscates, or rationalizes the
incident? (The victim more likely does the former; the perpetrator the
latter).
2. What motives are used to explain why the incident(s) occurred? (Victims
tend to use language that suggests they were trying to placate, protect,
avoid, or stop the violence, whereas perpetrators describe their intent being
to control or punish).
3. What is the size and physical strength of each party relative to the amount
of damage and injury resulting from the incident(s)? Does either party have
special training or skill in combat? (Perpetrators who are better equipped
are able to cause the greater damage).
4. Are the types of any injuries or wounds suffered likely to be caused by
aggressive acts (the perpetrator‘s) or defensive acts (the victim‘s)?
5. If the incident(s) involved mutual combat, were the violent acts/injuries by
one party far in excess of those of the other? (Violent resistors [VR] tend to
assert only enough force to defend and protect; when primary perpetrators
retaliate, they are more likely to escalate the use of force aiming to control
and punish).
6. Has either party had a prior protective order issued against them—whether
in this or a former relationship (indicating who was determined to be the
primary aggressor in the past)?‖
40
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