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Risk in child abuse cases in the family law system: What’s the problem?

By Elspeth McInnes - posted Friday, 8 June 2012


The 7 June 2012 changes to the Family Law Act elevate the significance of protecting parties from exposure to violence or abuse. In children’s matters, child safety is to be prioritised ahead of a ‘meaningful relationship with both parents’ where these principles are in conflict. The changes are an important and necessary step to improve safety for victims of abuse but the process of implementation will be critical if there are to be effective improvements in the lived experiences of victims of violence in the family law system.

There are three key issues embedded in the concept of making orders to improve victim safety. How is the risk of violence or abuse identified? If there is an identified risk, how is it assessed? How is the assessed risk managed in practice? Each of these aspects is problematic in cases before the courts, which feature allegations of violence or abuse. Family Court data has consistently identified that allegations of violence or abuse are a common feature of children’s matters applications before the court. This reflects the selection process, which allows access to the courts only after other possibilities for agreement have been exhausted. There are three aspects of risk in the family law system.

The process of identifying risk is complicated. The broader definition of violence and abuse under the new Act specifies a wider range of behaviours that can be identified as a risk to safety. As civil courts, family law decision-makers have to rely on the quality of evidence presented to them by the parties. Most family violence happens in secret, behind closed doors, often without a great deal of external documented evidence. Many victims have not themselves identified that they are living with violence, others are fearful of disclosing. The 2010 study Family Violence and Family Law in Australia by Dale Bagshaw et al found that 40 per cent of women were fearful of disclosing violence.

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In cases where women have sought Domestic Violence Orders, the family courts have been able to disregard these. Law Professor Patrick Parkinson noted in his 2011 submission to the Parliamentary Senate Committee Hearing on the Bill in the following terms: “…judges in family law cases draw no inferences from the mere existence of a family violence order. This has been the clear view of family lawyers for the last 15 years.”

The new law requires judges to take account of such orders, but it remains to be seen whether such institutionalised cultural perceptions will be changed in practice. 

Identifying risk in child abuse matters is similarly difficult. The law requires allegations of abuse to be referred to state and territory child protection systems but it does not compel these agencies to actively investigate and respond. Even in cases where a child protection service investigates and substantiates the abuse, judges can choose whether to accept such reports. They are directed to avoid making positive findings of a criminal nature because the family law courts are not criminal courts. 

Instead, an Independent Children’s Lawyer is appointed to accomplish the task of commissioning a family report with recommendations, produced after around one hour of contact with each parent and the children. This report is seen by the court to be independent. Where children have made disclosures or there is other evidence of abuse, such as injury, report writers often provide possible competing explanations to the effect that the abuse might have happened or the child may have been coached to make false claims or to form false beliefs or that the mother may be over-protective or mentally deluded. Given that few family report writers have specific qualifications or expertise in child development, trauma, mental illness and family violence, such equivocations reflect the limits of the period of assessment and their professional knowledge.

When risks to safety are identified, for example by admissions by the perpetrator or criminal convictions, the courts have to turn to the question of assessing the seriousness of the risk and the likelihood of its occurrence. This consideration of evidence often refers to the Briginshaw principle that links the gravity and likelihood of the risk to the quality of evidence. In practice this means that the majority of allegations of child abuse cannot succeed. Children and mothers are not accepted as reliable witnesses to their experience. However in cases where the existence of past abuse is accepted, the court considers whether such abuse is likely to recur, and if so, the gravity of the impact. The court, to denote cases where a parent is deemed to present a danger of serious and continuing risk of child abuse, adopted the term ‘unacceptable risk’.

Risks of violence by one parent toward another are assessed during proceedings but these may be seen as ‘mutual conflict’ where both parents are deemed responsible for continuing hostility, or as emotional outbursts in the stress of separation. In any case parental separation is seen by many decision-makers as effective action to prevent future violence. This follows a logic whereby preventing direct contact between the parents prevents the possibilities of violence between them.  It does not take into account that child contact and parenting arrangements provide opportunities to abusive parents for a continuation of violence against the children and the other parent.

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In terms of managing risks of violence or abuse the courts therefore rely on security services at court buildings and strategies to avoid direct contact between parents. This manifests as orders that child contact handovers occur at police stations or at children’s contact services or at school. There are limits to the efficacy of such strategies. Parents can be stalked to and from contact handovers and at their residence, threats can occur via phone or in person and assaults can be directed at the parent and at the children. Such conduct does not fit with the dominant paradigm in family law that victims’ claims of violence are exaggerated or invented or that parents are mutually hostile or that abusive outbursts are short-lived. Victims with restraining orders from state courts face the problem that federal family law orders over-rule state provisions where they are in conflict. State police and magistrates courts often express to victims that they can do nothing in the face of family law orders.

Managing risk in children’s cases is even more difficult. The courts currently rely on supervision of contact as the principal means of protecting children from parents who are identified as presenting an ‘unacceptable risk’ to their safety. There are numerous flaws in the supervision approach. In most cases it is a short-term arrangement with the aim of building the child’s confidence in being with the other parent, gradually moving to unsupervised time. Child contact services and professional supervisors will only accept clients where both parents agree, a place is available, the case is seen as suitable and the parents can pay for the service. Where these conditions are not met, the family cannot access a professional service to supervise contact. Cases featuring serious violence can be rejected as unsuitable, leaving the victims to manage without support.

Even in cases where supervised contact is available there are still problems for children. Children are forced to spend time with a person who has terrified or injured them in the past. Supervisors do not always recognise or support children experiencing terror at being with the abusive parent. Children’s resistance to contact with dangerous parents is often reinterpreted as an outcome of the coaching and manipulation of the primary carer parent rather than a genuinely held fear. Supervisors do not always recognise or act to stop abuse of the child during contact. Victims speak of being abused while in the same room as other people with no one apparently noticing what is happening to them.  Child sex offenders note that favourite opportunities for abuse include watching TV on a couch together, sleeping in the same bed, sitting in a car, playing in a swimming pool: all settings that provide proximity and concealment. There is also no acknowledgement in the supervision paradigm of the impact on the child of being targeted and groomed by a sex offender parent.

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Our apologies to Elspeth. We ran a media release yesterday instead of this op-ed. While the op-ed covered the ground well, this article is much more extensive.



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About the Author

Dr Elspeth McInnes is a Lecturer at the University of South Australia, Convenor of the National Council of Single Mothers and their Children and a member of the ACOSS Executive. Dr McInnes' most recent research has focused on mothers' transition into lone parent family structures, exploring the impact of violence on mothers and children during separation and their subsequent adaptation and access to community resources and to both market and non-market income.

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