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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)?‖




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