Child Welfare & Family Law - Women Everywhere Advocating

Domestic Violence, Child Protection
& Family Law: Worlds Apart
Dr Elspeth McInnes AM
University of South Australia
31 May 2012 Melbourne
Responding to DV
• Domestic or family violence is the most common context of child
abuse – long history of difference between child welfare and
domestic violence services.
• Domestic violence services:• Believe and support women and their children.
• Recognise that the perpetrator is ALWAYS responsible for their
• Recognise that supporting mothers to be safe and recover is the
best way to assist child victims.
• Understand domestic violence is used to exert control over women
and children.
• Increasingly, violence against mothers is being systemically
recognised as a child protection issue, BUT in child protection
frameworks mothers are held responsible for the child’s situation.
What question are you asking?
(Higgins & Kaspiew 2011)
When separating parents raise allegations of child abuse, 5 bodies each have a different focus,
addressing different questions or issues:
• Statutory child protection departments: Are you a protective parent? Is the child currently safe?
Does the situation meet the threshold for statutory intervention?
• Children’s Court: Are you an adequate parent? What actions need to be taken to improve the
parent’s capacity and ensure the child’s safety?
• Police: Is there sufficient evidence of a crime for a conviction to be likely?
• Criminal courts: Has the alleged crime been proved beyond reasonable doubt?
• Family law system: What pattern of time spent with you and the child’s other parent (and under
what circumstances) is in the child’s best interest? Is the child protected from harm under these
arrangements? Are you a “friendly parent” (facilitating the child’s relationship with the other
• None of these systems is focused specifically or exclusively on whether abuse occurred, or is it
likely to occur (or recur).
In family law disputes, the following questions are central, yet are not necessarily directly covered
by any of the relevant investigative agencies:
..Is the child at risk of harm in the household of either parent (or other caregiver)?
..Would the child be safe if he/she was to spend time unsupervised with the parent against whom
allegations of abuse have been raised?
State law looks Backwards
State & territory child protection law is
• Retrospective and focused on past events of alleged
child abuse.
• Adversarial – workers to support families may need to
remove children into care, or threaten to do so if
conditions are not met.
• Forensic – Child removal to care requires evidence
which can be presented to a court.
• Short-term – interventions are aimed at restoring
family function as quickly as possible with intervention
orders only lasting for 6 or 12 months.
Family law looks Forwards
Family law is
• Prospective – what future arrangements will be in the
child’s best interests?
• Civil & private – the parties in dispute seek court
determination of their dispute and provide the evidence in
support of their case without involvement by the Crown or
any other external investigator.
• Past conduct is not seen as indicative or determinant of
future conduct.
• Long-term – Final orders are aimed at long term
arrangements where the parties will not need to return to
the court unless there is a substantial change of
Contradictions for Protective Parents
• In some states Police are required to report to child
protection when they attend a domestic violence
incident with children present.
• Exposure to domestic violence is typically recorded as
‘emotional abuse’ and mothers, who are victims of the
violence, are primarily recorded as the perpetrators of
‘emotional abuse’ because they are held responsible
for choosing to stay in the violent relationship.
• Emotional abuse was the most commonly
substantiated form of abuse in Australia
• (Child Protection Australia 20010-11 AIHW).
Protect Children or Lose Them
• The outcome for mothers living with family violence
and/or child abuse is that they become recorded as
emotional abusers and state child protection agencies
threaten to remove children if they do not end the
• Under the Family Law Act 1975 Shared Parental
Responsibility changes of July 2006 decision makers
must apply a rebuttable presumption of equal shared
parental responsibility (S 61 DA, under which they
MUST consider the maximum time possible with each
parent, or substantial or significant time (S65DAA).
Family Court and Federal Magistrates
Division 12 A :A Less adversarial approach ––unless notice of risk of abuse – Form
If Form 4, will invoke a Section 60CC consideration – 8 week period to hearing.
Section 69ZW allows court to order relevant state agency data from health, child
protection and police.
2 courts – Federal Magistrates Court (FMC) – default stream: and Family Court of
Australia (FCA) – complex cases: Magellan = serious abuse cases.
Shea –Hart (2006) study of 20 Magellan judgments concluded the following:
‘The dominant discourses, which were predominantly, but not exclusively relied on
by judges and social scientists who provided evidence to the Court, served to justify
a number of failures in the decisions said to be made in children’s ‘best interests’. In
the majority of cases these included a failure to centralise children’s exposure to
domestic violence, to identify child victim’s special needs, and to question the
fathering capacity of violent men.’
Child Abuse claims in the Family Law
 When an allegation of child abuse is made the alleger may
request that their lawyer File a Form 4 Notice of Risk of
Abuse => referred to state department for investigation
(often no active investigation takes place due to tier
screening and is returned ‘unsubstantiated.’)
 Courts appoint an Independent Children’s Lawyer (ICL) to
arrange a family report prepared by a family consultant
who will often be a social worker or psychologist. (Only
clinical psychologists and psychiatrists are qualified to
make diagnoses of mental illness).
 The report writer normally meets separately with each
parent in the company of the child for an hour or so. This
report ordinarily carries the most weight with the court as
it is seen to be independent.
‘Unacceptable Risk’
• Family law judges are directed to avoid making findings of a
criminal nature as they are not criminal courts.
• Family law has not taken account of uncontested DV orders as they
have not been tested in court (This changes June 7).
• Violence and abuse towards the mother is not ordinarily recognised
as relating to capacity and safety as a father.
• Child protection substantiation of child abuse allegations can be
rejected by judicial decision-makers on the basis that the accused
has not had access to natural justice processes.
• Judicial decision makers may find an ‘unacceptable risk’ is present
where they have evidence, such as criminal convictions or
perpetrator admissions, that a parent has behaved in ways that
could present a risk of harm to the child/ren.
15 March 2012 Herald Sun
THE Family Court has ordered an 11-year-old girl to spend time with her sex offender father
even though she is at risk of being abused by him. The father's victims includes a person with
an intellectual disability and several members of his own family.
…Justice Anne Rees ordered the father be allowed to spend alternate Sundays, Father's Day and
Christmas Day with his youngest daughter, as long as the visits are supervised by his partner and
his mother. "I am satisfied that there is a risk that K will be sexually abused by her father if she is
in his care," Justice Rees said.
…Justice Rees rejected the father's application for equal shared parenting of K, ordering limited
supervised contact. "Having determined that there is a risk to K in the care of her father, I must
determine whether that risk is unacceptable," the judge said. "That involves the exercise of
balancing the benefits to K of having an ongoing loving relationship with her father and the
paternal family against the risk that she will be sexually abused by her father.
"The balance is fine but it is the comfortable certainty of vigilant supervision by (his current
partner) and the paternal grandmother which persuades me that the balance tips in favour of
supervised time for K with her father."
Robins & Ruddock [2010] FamCA 35 (22
January 2010);
• Father’s convicted of possessing child pornography and placed on
the child sex offender register. He had been restrained previously
from sharing his bed with his own daughters (10 & 8) and had been
seen standing over a step- child with her pants down and with an
erection, masturbating .
• The family report writer, Dr R -neither child should have
unsupervised overnight time with the father, although there is no
reason why they ought not to have unsupervised day time with the
father. When questioned about this Dr R said:• that the children are at an age and maturity where when awake,
dressed and together it would be unlikely that the father would act
inappropriately towards them. However, at night when they were
perhaps asleep or partly asleep and not aware of each other’s
whereabouts they would be less secure.
Child’s views
• The child protection worker,Ms SA provided the following
• A indicated that she did not want to spend time alone with
her father. We asked her why she didn’t and she said
“because of what I told the police”. “I do not like it. It makes
me feel weird”. “I don’t want to be alone with him”. She
kept repeating “please don’t tell Dad”.
• PAR 89:Before the interview Ms SA had concerns about the
mother’s bona fides with regard to A’s alleged disclosure.
After the interview Ms SA formed a professional view that
something had happened to the child. It was Ms SA’s
professional opinion was that there were no signs that A
had been coached.
Assessing Evidence
• Par 100:Ms ML’s affidavit[10] was admitted into
evidence without controversy. It was indicative of the
father being aggressive and violent up to 2007. The
evidence is of little value
• Par 115: However, I am satisfied that the father invited
A into his bed and that A felt uncomfortable and that
the father demonstrated affection towards her, in a
way which was in all the circumstances inappropriate
for a child of that age and in those circumstances.
Accordingly I am satisfied there needs to be a measure
of protection put in place for these children in terms of
their time with the father.
Need for Protection
• PAR 117:The father has extensive experience in dealing
with children at risk bearing in mind the family’s
involvement with foster care over a significant period
of time.
• I am satisfied that there needs to be supervision at the
home when the children sleep over. I am satisfied that
there needs to be a door on the children’s bedroom
which is capable of being shut at the request of the
children. They should at least, until the youngest is 14,
share the same room so that they can have the mutual
support of one another. Such a finding predicates
against equal time and against equal shared parental
• PAR 122 :I accept that the father is a forceful, dominant person who is
keen to argue his case and has a very powerful personality. The mother on
the other hand seems somewhat timid and self effacing. She is not a
forceful person.
• Par 151 I am satisfied that it is important that the children have a
meaningful relationship with both parents. The children have a close bond
with their parents and love them and enjoy their time with them.
• Par 165 The mother obtained a family violence order against the father in
2007. While I am critical of the mother in relation to using that application
instead of an application to the Federal Magistrates Court or the Family
Court, I accept her evidence as to her sense of frustration and concern for
her children arising out of the events over the preceding year.
• Par 167: As discussed earlier the mother obtained a family violence order
against the father in 2007. The order was in force for a period of twelve
months and has expired. I give it little weight in the circumstances of this
• Par 168: Because of the close bond between the children and their
father I have reached the conclusion that the best interest of A and
M are most likely to be served by an order that the father spend
time with the children, but that any overnight time be supervised
by another adult. This will address A’s nervousness in relation to
spending unsupervised overnight time with the father.
• Par 175 I propose to order the children spend each alternate
weekend with the father from after school Friday until the
commencement of school Monday (or Tuesday if Monday is a pupil
free day). I will provide that the children spend half their school
holidays with the father. However, there will need to be someone
supervising the father when the time is to be overnight. That can be
an adult friend, it just needs someone else in the home of whom
the children have some knowledge of and regard to. The mother
should know who that person is.
What we know
• The father is a convicted child sex offender
with queries about sexual activity with his
children and step-children.
• He is a foster care provider
• He is forceful and controlling and previously
subject to an AVO
• His daughter doesn’t want to be alone with
him and is frightened of him.
The Consequences of the Judgement
• The 10 and 8 year old have to regularly spend time
with the abusive controlling child sex offender.
• The children are responsible for staying awake and
together to prevent their molestation by their father.
• The father is supposed to provide the means for the
children to secure their bedroom – which could lock
them in.
• The adult supervisor who is an adult friend of the
father could be a child sex offender.
• The issue of the children’s subjection to the
manipulative attention of the offender is invisible.
What is Revealed
• Illustrates the ‘risk management’ approach to children’s
• Reveals the reality that even where child sex offending is
proved, children are ordered into paedophile ‘care’.
• Shows assumption that children’s disclosures are coached.
• Reveals judicial disregard of AVOs and violence against
• Reveals how children’s fear of the father becomes a ‘close
bond’ in judgement.
• Reveals the absence of any consideration of the
psychological impact of the girls’ exposure to the
manipulative attention of the child sex offender.
What needs to change?
• Structured decision making needs to force
judges to screen and assess for violence and
abuse and prioritise safety.
• When an abusive parent uses physical or
sexual abuse, safety must mean no face to
face contact.
Family Violence and Family Law
Services Research
• 1100 adults (90%) and children (10%) answered a survey and phone
in to identify how family violence impacts on access to the family
law system, the decisions they make and shared parenting
• 913 adult survey responses: 236 men 677 women
• The study identified that family violence affected parents’ decisions
about accessing the family law system, their decisions within the
system and their post-separation parenting arrangements.
• 85% of women and 56% of men said there was violence or child
abuse during their former partnership but women were much more
likely than men to report serious physical sexual psychological and
controlling violence and abuse, men were more likely to report
verbal emotional and psychological abuse.
Gender differences in Violence
• Women were more likely than men to be afraid
for themselves and their children due to ongoing
physical sexual psychological and emotional
violence against them.
• Men were most concerned about obstructions to
seeing their children and false allegations of
violence against them and saw these as
expressions of violence against them.
• 34% of women and 19% of men felt that their
reports of violence were believed.
Children’s Experiences
• Most child respondents said violence
experiences had reduced for them after
separation, especially when only one parent
was violent.
• 39% of surveyed children said they did not
feel safe with their father after separation and
just under 10% did not feel safe with their
Use of Services
• 3.5% of respondents, mostly women, avoided all
services due to fear.
• 82% voluntarily used services after separation and
began with services outside the family law system.
• 78% used family and friends
• 58% used GPs
• Mothers mainly had contact with Centrelink for
financial support
• Fathers mainly had contact with the Child Support
Legal System Use
• 74%of survey respondents went to a lawyer.
• 50% of survey respondents had been to court
• After the 2006 changes lawyers gave advice that
raising unproven allegations of violence could
cause them to be poorly regarded in court.
• Lawyers also gave advice of equal time with each
parent being considered and the penalties for
falsely alleging violence.
• Only 10% of post-2006 separated parents
surveyed who disclosed family violence said they
were exempted from mediation.
FRC Critiques
• 40% of surveyed parents with a history of FV
did not disclose.
• Parents said FRC staff did not understand the
nature and effects of FV
• Parents said FRC staff were unable to counter
the dominant use of power by violent expartners.
Court Critiques
• Felt disbelieved, ignored minimised around
the issue of violence
• Lack of serious investigation of violence or
abuse claims by report writers and court
• Judges ignoring the issue of violence as well as
state DV orders and child protection orders
• Men were more likely to be satisfied by court
action than were women.
• 68.7% of women and 52.2% of men said the consequences
of FV was they could not achieve suitable and safe
arrangements for themselves and their children after
• For those who separated after 2006, 54% of women and
47% of men said the coexistence of family violence, mental
illness and substance abuse were not recognised.
• Women reported children’s increased exposures to serious
violence after the 2006 changes. They were much more
concerned about the developmental impacts of violence on
children. Men were concerned more about the emotional
impacts on children and did not have any consciousness of
child development.
• Increased continuing exposures to family and
domestic violence post separation.
• Increased deaths injuries and harms to
children from abusive parents after separation
(eg Darcey Freeman, Imran Zilic, Farquharson
• Developmental harms to children arising from
disregard for attachment and exposures to
2011 amendments commencing
June 7 2012
• Prioritise the safety of children in parenting matters
• Broader definitions of abuse and family violence.
• Strengthen obligations on family law system
professionals to prioritise children’s safety.
• Give courts better access to evidence of abuse and
family violence through improved reporting
• Make it easier for participation of state/territory
child protection in family law proceedings where
Defining child abuse
• abuse, in relation to a child, means:
(a) an assault, including a sexual assault, of the child; or
(b) a person (the first person) involving the child in a sexual activity with the
first person or another person in which the child is used, directly or
indirectly, as a sexual object by the first person or the other person, and
where there is unequal power in the relationship between the child and
the first person; or
(c) causing the child to suffer serious psychological harm, including (but not
limited to) when that harm is caused by the child being subjected to, or
exposed to, family violence; or
(d) serious neglect of the child.
New Family Violence Definition
For the purposes of this Act, family violence means violent, threatening or other
behaviour by a person that coerces or controls a member of the person’s family
(the family member), or causes the family member to be fearful.
Examples of behaviour that may constitute family violence include (but are not limited
(a) an assault; or (b)a sexual assault; or (c)stalking; or (d)repeated derogatory taunts;
or (e)intentionally damaging or destroying property; or (f)intentionally causing
death or injury to an animal; or (g)unreasonably denying the family member the
financial autonomy that he or she would otherwise have had; or (h) unreasonably
withholding financial support needed to meet the reasonable living expenses of
the family member, or his or her child, at a time when the family member is
entirely or predominantly dependent on the person for financial support; or (i)
preventing the family member from making or keeping connections with his or her
family, friends or culture; or (j) unlawfully depriving the family member, or any
member of the family member’s family, of his or her liberty.
How the court determines a child’s
best interests S 60CC
• The primary considerations are:
(a) the benefit to the child of having a meaningful
relationship with both of the child's parents; and
(b) the need to protect the child from physical or
psychological harm from being subjected to, or
exposed to, abuse, neglect or family violence
2011 changes would prioritise safety where these
considerations are inconsistent.
S 60 CC Other considerations
Child’s views
Each parent’s relationship with the child
the willingness and ability of each of the child's parents to facilitate, and
encourage, a close and continuing relationship between the child and the other
parent (To be repealed under 2011 changes)
The likely effect of change or separation on the child
The practical difficulty and expense of the child spending regular time with each
The capacity of each parent to provide for the needs of the child, including
emotional and intellectual needs
The parents’ and child’s characteristics (age, sex, maturity, culture)
Parents’ attitudes to and fulfilment of parental responsibility – spend time,
communicate with child, and involvement in key decisions
Any family violence and any final family violence orders (delete adjective final in
2011 changes)
Requirement to Disclose Child Welfare
• New obligations on parties to inform the court
about risks to the child or another child of the
family: whether the child has been subject of
a care order, notification or investigation
under state child welfare laws.
• 2006 introduced compulsory costs orders
against people knowingly making false
allegations: 2011 changes this to court’s
Continuing Problems
• No capacity to properly investigate child abuse
• Spurious use of mental illness labels when
mothers allege child abuse.
• Pressure on mothers to withdraw allegations or
lose residence.
• Refusal of legal aid where mothers are designated
‘mentally ill’ by unqualified ‘experts.’
• Systemic risk of corruption where ICLs can select
favourite report writers.
Child safe family law
• Let’s advocate for the family law system to be a system
of child-safe organisations
• All professionals involved in children’s matters should
be subject to a working with children check screening
for charges or convictions of violence or child abuse.
• Legislation should require decision-makers to adhere to
the standards of ‘working-with-children’ checks when
determining arrangements for children so that
children are not placed in the care of people who
would be barred from working or volunteering with
• Bagshaw, D., Brown, T. , Wendt, S., Campbell, A., McInnes, E.,
Tinning, B., Batagol, B., Sifris, A., Tyson, D., Baker, J., Fernandez
Arias, P. 2010 Family Violence and Family Law in Australia: The
Experiences and Views of Children and Adults from Families who
Separated Post-1995 and Post-2006, Attorney-General’s
Department, Canberra.
• Higgins, D. & Kaspiew, R. 2011 Child Protection and Family Law,
Joining the Dots. National Child Protection Clearinghouse Issues
Paper No. 34 Melbourne: AIFS.
• Shea-Hart, A. ( 2006) Children Exposed to Domestic Violence:
Whose‘Best Interests’ in the Family Court?, Adelaide: Thesis for
University of South Australia School of Social Work and Social Policy.

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