Allegations of family violence and child abuse in child-related disputes in family law proceedings
Allegations of family violence and child abuse in child-related disputes in family law proceedings
Moloney, L, Smyth, B, Weston, R, Richardson, N, Qu, L, & Gray, M 2007, Australian Institute of Family Studies, Melbourne
The recent release of the Australian Institute of Family Studies report on Allegations of family violence and child abuse in child-related disputes in family law proceedings has generated significant discussion in the domestic and family violence sector. This Features section of the Newsletter presents three reflections on the report: one comprising a summary from some of the report’s authors, one from Professor Dale Bagshaw from the University of South Australia and one from the Clearinghouse. We hope these comments will stimulate further discussion about this important report and its findings.
A brief summary of the AIFS “Research Report No 15”
Lawrie Moloney (AIFS/La Trobe University), Bruce Smyth (ANU/formerly AIFS) and Ruth Weston (AIFS)
The Family Law Amendment (Shared Parental Responsibility) Act 2006 raises many important issues regarding the assessment and handling of family violence. It focuses on the twin objectives of the right of each child to grow up with love and support from both parents but also to be kept safe from harm. Understandably, at times there is a clear tension in achieving both these objectives.
Most reported research into the impact of differential parenting arrangements after separation and divorce and the links between allegations of violence and both negotiated and judicially determined outcomes has been based on small and/or non-probability samples that describe few if any reliability or validation checks. Most often, descriptions of the way the data have been gathered and the manner in which they have been analysed have been, at best, opaque.
In 2006, the federal Attorney-General’s Department commissioned AIFS to obtain reliable information on the rate of allegations of violence and child abuse in cases in which formal child-related applications were being made to the Family Court of Australia or the Federal Magistrates Court. In particular, it was important to obtain this information with respect to a sample of cases that preceded the 2006 family law reforms, to enable the impact of the reforms to be assessed.
Through examining a random sample of 300 Family Court and Federal Magistrates Court files in Victoria and South Australia in 2003, the study sought to answer:
• How often were allegations of family violence and child abuse raised, and what were the main types of allegations?
• How commonly were allegations denied, and what forms did those denials take? (e.g., full/partial? vague/detailed?)
• How, and how often, were the allegations or refutations corroborated?
• What findings (if any) were made with respect to the allegations? and
• What outcomes resulted from the allegations and how (if at all) were they linked to the findings?
Key findings from the study were as follows:
• allegations of violence and/or child abuse were made in the majority of cases
• the majority of the allegations were of a serious nature
• most allegations:
– had little evidentiary material in support
– were coupled with high rates of non-response
• both the allegations and responses (when responses were provided) generally had low levels of detail and
• it was unusual for contact between a child and a parent to be denied. Thus:
– overnight parenting arrangements were common regardless of allegations
– however, if evidence was supplied, there was a smaller likelihood of overnight parenting arrangements with the alleged perpetrator being ordered – suggesting that courts are responding to allegations when evidence is provided.
These findings suggest that decision-making within the sample registries was occurring at this time in the context of considerable factual uncertainty regarding violence. During the period examined (2003), the courts, court staff and legal representatives in the registries surveyed may at times have been overwhelmed not only by the sheer number of allegations but also the difficulty in discriminating between which allegations posed a serious threat to a parent or to a child. Unless allegations were quite specific in nature or accompanied by good corroborative evidence (or both), the outcomes for children and parents were indistinguishable from outcomes in cases in which no allegations had been made.
The Report points to a need for those at key triage points in the formal family law system, especially
• staff from Family Relationship Centres and linked community-based services
• legal representatives and
• court-based Family Consultants to continue to develop better assessment skills that can elicit greater detail concerning allegations and, where possible, more corroborative evidence.
The Report suggests further research in a number of important areas. For example, Australian research into:
• those aspects of the experience of abuse that might improve understanding of the dynamics of non-disclosure or partial disclosure within the family law system and
• the sorts of advice lawyers give to their clients on raising and responding to allegations (or not raising or not responding to them).
A number of limitations and caveats are clearly spelled out in the Full Report. The Report is a good example of the way in which findings of a study are only the beginning of new lines of inquiry and the start of potentially new ways to look at long-standing thorny problems. Our hope is that the findings act as a catalyst for stimulating informed discussion and debate on these important issues.
A response to the AIFS report
Hawke Research Institute,
University of South Australia
Providing a name or a legitimate way of categorising and speaking about one’s experiences is the first step in making the prevalence of harmful forms of violence visible in the family law context (Du Bois 1983; Kelly 1990). The definitions of family or domestic violence provided by the Commonwealth’s Office for Women, the Australian Family Law Act 1975 and most feminist theorists include the key features of ‘fear’ and ‘power’, or ‘intimidation’ or ‘control’.
Over the past three decades, research into family or domestic violence between adults has identified a predominance of male violence against women, which is also reflected in a range of statistics (Australian Bureau of Statistics 2006; Mouzos & Houliaras 2006). However, in the case of disputes over children in the family law context, there is still a conceptual tendency for professionals, including judges, to redirect responsibility for male violence to the mothers involved, and in addition, their allegations of family violence are often not believed (Shea Hart 2006).
Not surprisingly, Moloney et al. (2007) have noted in their study that where allegations of spousal violence were made (48-79% of all cases) the tenor of the allegations was ‘severe’ and the allegations were most likely to be made by mothers. Mothers were more likely than fathers to provide or elicit relatively strong evidence for their allegations of spousal violence. More than half of the fathers in all groups provided or elicited no supporting evidence for their allegations of spousal violence. In addition, in 68% of those cases there were allegations that the children ‘saw or heard’ the violence and orders for children’s overnight stays with their fathers ‘predominated among cases involving contact orders, whether or not allegations were made and regardless of the apparent severity or probative weight of the evidence’. ‘Allegations of child abuse were almost always accompanied by allegations of adult family violence’. It is therefore essential that family law professionals have a clear and common understanding of what constitutes family or domestic violence, and have research-based knowledge of the effects of violence on the children involved when making decisions about children’s ‘best interests’ (Bagshaw & Quinn 2007).
The rates of domestic violence in separated families are significant when compared to intact families (Jaffe, Lemon, & Poisson 2003; Smyth 2004). Many couples separate or divorce because of domestic violence and the risk of children being exposed to domestic violence, including homicide, increases dramatically at the time of separation (Bagshaw & Chung 2001; Laing 2000). Given the difficulties and barriers to reporting violence in the family law context, especially with the 2006 family law reforms that require victims of violence to provide evidence for their allegations if they are to avoid sanctions, I am concerned about the suggestion made by Moloney et al. (2007) that there may be a need to differentiate between different types of ‘family violence’ in the Family Court of Australia.
Conflict or violence between couples who have a roughly equal balance of power, and who are not fearful of each other, have not been traditionally included under definitions of family or domestic violence; the motives, dynamics and effects of the violent or conflict behaviour are very different. Whilst a distinction can be made between high level couple conflict and what is commonly understood as family or domestic violence, there are dangers in re-labelling some forms of violence in intimate relationships as ‘situational violence’, with the implication that the violence is relatively mild and that there is roughly equal balance of power. Some of these dangers have been outlined previously (Bagshaw & Chung 2000) and include the following:
• it is already difficult for women to have their allegations of violence believed or taken seriously in the family law context
• there is a risk that serious ‘family violence’ will be renamed as something else, such as ‘family conflict’
• violent behaviour may be relabelled as something else, such as ‘stress’, ‘depression’ or ‘a mental health problem’
• research indicates that women and men both tend to play down or minimise men’s violence in their accounts, while men tend to exaggerate women’s violent acts
• women rarely initiate or escalate violence and are more likely to act in self-defence
• men’s violence is more severe and usually involves an attempt to control, coerce, humiliate or dominate, by generating fear and intimidation, whereas women’s violence is more often an expression of frustration in response to their dependence or stress and
• women are more likely to be killed by current or former male partners, in particular during the process of separation, than anyone else.
Shea Hart’s (2006) recent research in one Family Court registry, involving a discourse analysis of twenty judge-ments made in cases where children had witnessed domestic violence, found that the violence was referred to in limited ways that relied on recording objective facts and incidences, implying a failure to understand the dynamics of domestic violence. Violent behaviour was often relabelled as ‘conflict’, minimising its seriousness. Also, domestic or family violence and child abuse were commonly referred to as separate issues and there appeared to be a poor understanding of the findings of contemporary research, which show high rates of co-occurrence of domestic violence and child abuse (Edleson 2002).
To challenge the power of entrenched beliefs about ‘alienating’ mothers and ‘loving’ ‘responsible’ fathers that tend to mask the issue of family violence and its potentially serious adverse effect on children’s wellbeing, it is essential to expand the knowledge base that informs judges and other ‘experts’ in the court setting and introduce continuing education in the area of domestic violence and its effects on children as a requirement for these professionals. However, if this is to occur we must be sure that definitions of domestic or family violence do not perpetuate the problem of its minimisation.
Australian Bureau of Statistics 2006, Personal Safety Survey, ABS, Canberra
Bagshaw, D & Chung, D 2000, ‘Gender Politics in Research: Male and Female Violence in Intimate Relationships’, Women Against Violence, vol. 8, pp. 4-23
Bagshaw, D & Chung, D 2001, ‘The Needs of Children who Witness Domestic Violence: A South Australian Study’, Children Australia, vol.26, no. 3, pp. 9-17
Bagshaw, D & Quinn, K 2007, ‘Reshaping Responses to Children when Parents are Separating. Hearing Children’s Voices in the Transition’, Australian Social Work, vol. 60,(September edition – in press)
Du Bois, B 1983, ‘Passionate scholarship: Notes on values, knowing and method in feminist social science’, in G Bowles & R Duelli Klein (Eds), Theories of women’s studies, Routledge & Kegan Paul, London
Edleson, J. 2002, ‘Studying the Co-Occurrence of Child Maltreatment and Domestic Violence in Families’ in S Graham-Bermann & J Edleson (Eds), Domestic Violence in the Lives of Children. The Future of Research, Intervention, and Social Policy, American Psychological Association, Washington DC
Jaffe, P, Lemon, N, & Poisson, S 2003, Child Custody & Domestic Violence. A Call for Safety and Accountability, Sage Publications, Thousand Oaks, California
Kelly, L 1990, ‘How Women Define Their Experiences of Violence’, in K Yllo & M Bograd (Eds), Feminist Perspectives on Wife Abuse, SAGE Publications, Newbury Park
Laing, L 2000, Children, young people and domestic violence, Australian Domestic and Family Violence Clearinghouse, Issues Paper 2, Sydney
Moloney, L, Smyth, B, Weston, R, Richardson, N, Qu, L, & Gray, M 2007, Allegations of family violence and child abuse in family law children’s proceedings: a pre-reform exploratory study Australian Institute of Family Studies, Melbourne
Mouzos, J & Houliaras, T 2006, Homicide in Australia : 2004-05 National Homicide Monitoring Program (NHMP) annual report, AIC Research and Public Policy Series, no 72
Shea Hart, A 2006, Children Exposed to Domestic Violence: Whose ‘Best Interests’ in the Family Court? Unpublished Doctoral thesis, School of Social Work and Social Policy, University of South Australia, Adelaide
Smyth, B 2004, Parent-Child Contact and Post-Separation Parenting Arrangements, Research Report no 9, Australian Institute of Family Studies
AD&FV Clearinghouse response to the AIFS report
Rochelle Braaf & Clare Sneddon
The AIFS report (Moloney et al. 2007) informs stakeholders about family law cases which feature allegations of abuse, particularly regarding the courts’ treatment of those cases and areas for improvement.
Significantly, the study found a high rate of cases alleging family violence or child abuse (more than half of those before the courts), with most cases alleging severe abuse. We support the report’s suggestion that dispute resolution service providers, family law practitioners and Family Court based consultants appropriately assess each case, as a threshold consideration, to determine whether violence is an issue. Judicial officers, judges and magistrates also require education about family violence and child abuse, to better assess allegations and make determinations that ensure the ongoing safety and wellbeing of victims. The study findings support initiatives like Project Magellan that deal specifically and expeditiously with cases involving child abuse. This should be extended to include spousal abuse.
Where violence was alleged, the report found that children often witnessed it. This supports other research (e.g. ABS 2006, Indermaur, Attkinson & Blagg 1998) that a significant percentage of children witness spousal violence. This phenomenon is recognised by researchers and in legislation as direct child abuse (e.g. Tomison 2000). The courts should recognise witnessing violence as decisive in determining contact and parenting arrangements.
The study found that many cases did not provide any supporting evidence or, at least, any strongly probative evidence to support allegations (between 71 and 92% of the total number of family violence or child abuse allegations provided no corroborative evidence, p. 116). If victims were unable to provide evidence of abuse, the courts largely ignored allegations when determining contact.
The report’s authors acknowledged that it can be extremely difficult for victims to provide evidence of violence, as it tends to occur in private, unwitnessed except by the victim(s) and abuser, and there may be no physical injuries. Providing evidence has become more important in the courts since recent reforms require a claimant to prove their ‘reasonable fear or apprehension about their wellbeing or safety’ and have introduced penalties for making false allegations of violence (Braaf & Sneddon 2007). This may discourage victims from disclosing violence in the courts. The findings imply that parties alleging violence must substantiate their claims, if they are to influence parenting arrangements. We would argue that courts also need to recognise the difficulties in obtaining evidence and seek other ways to investigate the history and context of abuse.
A significant concern is that allegations of spousal violence or parental child abuse did not tend to affect court orders, unless accompanied by evidence of strong probative weight. Although allegations of spousal violence did increase the chance of the courts granting day-time only orders or no-contact orders, it was unusual for contact to be denied completely. More disturbingly, orders for overnight stays predominated, whether or not allegations were made, and regardless of the severity of claims or the probative weight of supporting evidence. Other Australian research studies (e.g. Kaye, Stubbs & Tolmie 2003; Kaspiew 2005) demonstrate the exploitation of child contact and handover arrangements by violent fathers to continue the abuse of child and adult victims. Given that recent reforms stress equal parental responsibility, the courts need to review how violence allegations inform decisions, in ways that maximise children’s safety and well being.
The report’s support for Johnson (1995) and Johnson and Ferraro’s (2000) categorisation of different types of intimate partner violence is puzzling. This typology was not investigated by the study’s review of cases and was not supported by the report’s analyses. In fact, the study highlighted the significance of family violence and/or child abuse as an issue for family law cases before the courts, both in terms of the number of cases and in terms of the severity of abuse (most cases involved allegations of severe abuse).
The proposal that courts utilise a model that distinguishes between spousal violence as abusive, resistive or situational, is dangerous. The premise of Johnson and Ferraro’s model is contentious (see section 220.127.116.11). All violence and abuse in families is unacceptable and destructive to adult and child victims. Women are not necessarily equal in disputes, even when violence is mutual. The model introduces ambiguity and may serve to minimise the seriousness of abuse. The courts have traditionally failed to recognise the ongoing nature and dynamics of family violence and child abuse, tending instead to view violence as incident based. A better approach would be to scrutinise the history of violence in each relationship, examine the power, domination and control dynamics, assess the context and take into account the victim’s fears and perceptions (Nielsen 2004).
The study corroborates population studies, crime statistics and domestic violence research indicating that family violence and child abuse are gendered crimes (e.g. ABS 2006; Mouzos & Makkai 2004). It found that allegations of family violence and child abuse were most often made by applicant mothers. Men’s allegations were more likely to be raised where there were also allegations made by women. Women were also more likely than men to allege that children had witnessed spousal violence (p. 78). In more than half of judicially determined cases, allegations made by mothers included supporting evidence. Fathers were less likely to produce supporting evidence. Given these findings, it is disappointing that the authors did not seriously discuss the implications of gender for allegations of violence and the court process. The report has missed an opportunity to call for greater understanding by the courts of the gendered dynamics of family violence and child abuse.
Aside from some gaps in the report’s discussion of findings and our concerns with its advocacy of Johnson’s typology of intimate partner violence, the AIFS study provides considerable information to inform improvements in the courts’ treatment of cases with a history of violence. The Clearinghouse supports the report’s call for a national study of family court cases involving disputes over post-separation parenting.
Australian Bureau of Statistics 2006, Personal Safety Survey, Australia, cat no 4906.0 ABS, Canberra, (reissue)
Braaf, R & Sneddon, C 2007, Family Law Act reform: the potential for screening and risk assessment for family violence, Australian Domestic & Family Violence Clearinghouse Issues Paper 12
Indermaur, D, Atkinson, L & Blagg, H 1998, Working with adolescents to prevent domestic violence, National Crime Prevention, Canberra
Johnson M P 1995, ‘Patriarchal terrorism and common couple violence: two forms of violence against women’, Journal of Marriage and the Family, vol 57, no 2, pp 283 – 294
Johnson M P & Ferraro, K 2000, ‘Research on domestic violence in the 1990s: making distinctions’, Journal of Marriage and the Family, vol 62, pp 948-963
Kaspiew, R 2005, ‘Violence in contested children’s cases: an empirical exploration’, Australian Journal of Family Law, vol 19, pp 112-143
Kay, M, Stubbs, J & Tolmie, J 2003, Negotiating child residence and contact arrangements against a background of domestic violence, Families, Law and Social Policy Research Unit, Griffith University, Research Report 1
Maloney, L, Smyth, B, Weston, R, Richardson, N, Qu, L, & Gray, M 2007, Allegations of family violence and child abuse in family law proceedings; a pre-reform exploratory study, Australian Institute of Family Studies, Melbourne
Mouzos, J & Makkai, T 2004, Women’s experience of male violence: findings from the Australian component of the International Violence Against Women Survey (IVAWS) Research and Public Policy Series no 56, Australian Institute of Criminology, Canberra
Neilson, L C 2004, ‘Assessing mutual partner-abuse claims in child custody and access cases’ Family Court Review, vol 42, no 3, pp 411-438.
Tomison, A 2000, ‘Exploring family violence, Links between child maltreatment and domestic violence’, Issues in Child Abuse Prevention, Australian Institute of Family Studies, no 13, Winter
Source: Australian Domestic and Family Violence Clearinhouse Newsletter