Transcript FAMILY VIOLENCE AND CHILD ABUSE CASES UNDER THE …

FAMILY VIOLENCE AND CHILD
ABUSE UNDER AUSTRALIA’S
FAMILY LAW ACT 1975 (Cth)
outline
•
•
•
•
•
•
•
•
•
relationship between family violence and child abuse
studies
children witnessing violence
effect
best interests of the child and relevant sections Family
Law Act 1975 (FLA)
case law
reports and reviews
Family Law Legislation Amendment (Family Violence
and Other Measures) Act 2011 (FVA)
useful references
relationship between family
violence and child abuse
• child abuse (c/a) and family violence (f/v) are
closely linked (Laing, 2010)
• two-thirds of separated couples in Australia cite
f/v as cause of separation and one-third of those
refer to severe f/v (Brown and Alexander, 2007)
• between 30% and 70% of abused children (in all
forms) will be simultaneously abused with their
mother (Brown et al, 1998)
• f/v was a factor in 52% of substantiated child
protection cases in Victoria (DHS, 2008)
studies
• 1998 study of 200 contested cases in FCA showed 50%
involved f/v and/or c/a allegations (Brown et al, 1998)
• 2003 study of 300 cases found that over 50% involved
allegations of f/v or c/a (AIFS, 2007)
• 2003 submission by FCA to parliament that 75% of
judicially determined cases involved allegations of family
violence (FCA, 2003)
• similar trends post-2006 amendments to FLA ie over
50% of children’s cases involve f/v or c/a
• post-2012 reforms?
children witnessing violence
• approx one in four children in Australia have witnessed violence
against their mothers or step-mothers (Indermaur, 2001)
• in 2003 study, 68% of FCA contests and 48% of FMC contests
involved allegations that children heard or saw f/v between their
parents
• in Personal Safety Survey 2005, victims reported that children were
present in 49% of cases of f/v by current partner (ABS, 2006)
• children who witness f/v experience emotional abuse (AIHW)
• almost 24,200 children were recorded as present at f/v incidents
attended by police in 2009/2010 (Vic Police)
effect
• numerous studies confirm that children
who witness or are exposed to f/v may
have long-term trauma, delayed
development in all spheres and sometimes
irreparable harm
• being directly or indirectly exposed to f/v
between parents or high conflict is a form
of child abuse
Family Law Act 1975 (Cth)
• s 4(1) abuse, in relation to a child, means:
(a) an assault, including a sexual assault, of the
child; or
(b) a person involving the child in a sexual
activity …in which the child is used, directly or
indirectly, as a sexual object … and where there
is unequal power in the relationship …; or
(c) causing the child to suffer serious
psychological harm including … the child being
subjected to or exposed to family violence; or
(d) serious neglect of the child
definitions
• s 4AB family violence means:
(1) …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
(2) examples of behaviour that may constitute family
violence include …
(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
definitions
(2) (g) unreasonably denying the family member financial autonomy
…
(h) unreasonably withholding financial support needed to meet the
reasonable living expenses of the family member or child …
(i) preventing the family member from making or keeping
connections with family, friends or culture
(j) unlawfully depriving the family member or any of his/her family
of their liberty
(3) … a child is exposed to family violence of the child sees or hears
family violence or otherwise experiences the effects of family
violence
(4) examples of situations that may constitute a child being exposed to
family violence include …’
objects and principles
• s 60B(1) objects to ensure the best interests of children include
(a) ensuring that children have the benefit of both their parents
having a meaningful involvement in their lives …
(b) protecting children from physical or psychological harm from
being subjected to, or exposed to, abuse, neglect or family violence
• s 60B(2) principles underlying these objects include
(a) children have the right to know and be cared for by both their
parents …
(b) children have a right to spend time and communicate on a
regular basis with both their parents …
(c) parents jointly share duties and responsibilities concerning the
care welfare and development of their children
how a court determines what is in a
child’s best interests
•
‘twin pillars’
s 60CC(2) the primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both parents
(b) the need to protect the child from physical or psychological; harm from being
subjected to, or exposed to, abuse, neglect or family violence
•
s 60CC(2A) if there is any inconsistency in applying the considerations in s 60CC(2),
the court is to give greater weight to the consideration in para (2)(b)
•
s 60CC(3) thirteen additional considerations including
(j) any family violence involving the child or a member of the child’s family
(k) any family violence order that applies or has applied to the
child or a member of the child’s family and any relevant inferences
that can be drawn from the nature of the order; the circumstances in which
the order was made; any evidence admitted …; any findings made by the
court in proceedings for the order and any other relevant matter
equal shared parental responsibility
(ESPR)
• s 61DA presumption of equal shared parental
responsibility is rebutted if
(2) there are reasonable grounds to believe that
a parent of the child (or a person who lives with
a parent of a child) has engaged in abuse of the
child …or family violence
case law
Cases prior to Family Law Reform Act 1995
a. Early cases
‘he may be a violent husband but he’s a
good father’
Heidt 1976
Dean 1977
Cartwright 1977
Chandler 1981
1990s
b. 1990s: period of enlightenment
family violence between adults is relevant in
children’s cases
Merryman 1994
Jaeger 1994
JG and BG 1994
Patsalou 1995
‘unacceptable risk’
M and M; B and B 1988 (High Court)
UNCROC ratified
post-1995 and pre-2006 reforms
Cases after 1995 amendments
a. domestic violence is relevant to parenting capacity and specific
parenting orders
Blanch v Blanch and Crawford 1998
A and A 1998
M and M 2000
T and S 2001
T and N 2003
D and D 2005
and English Court of Appeal in
Re L (a child)(Contact: Domestic Violence) V, M and H 2001
not so relevant …
b. domestic violence is not so relevant
Bartholomew and Kelly 2000
Grant and Grant 2001
post-2006 reforms
Cases after Family Law Amendment (Shared Parental Responsibility)
Act 2006 (Cth)
a.
‘twin pillars’ and tension between right of child to have meaningful
relationship with both parents and to be safe & protected from
harm
2006 - Nawaqaliva and Marshall
H and R
2007 - Mazorski and Albright
Colson and Olds
Murphy and Murphy (social science)
Charles and Charles 2007 (‘knowingly’ for costs order)
post-2006 reforms
2008 - Shaw and Shaw (social science; different types of f/v))
Sabin and Francis
Mills and Watson
Dylan and Dylan (social science and UNCROC)
Carlton and Carlton (social science; different types of f/v)
Moose and Moose (‘knowingly’ for costs order; long-term supervision)
2009 - Oakley and Cooper (Best Practice Principles)
Cabelka and White (social science)
Maluka and Maluka (Best Practice Principles)
Wood and Wood
Amador
2010 - Many and Quebec
Cameron and Walker (Best Practice Principles)
2011 - Brainard and Wahlen & Anor (exposing children to f/v)
Quincy and Roberts (serious assault on child)
post-2012 reforms
2012 – Parish and Parish (‘low level’ f/v)
Keaton and Mahoney (extreme f/v;
brutality to children; diff types of f/v)
Shergold and Clark (exposure to f/v)
White and Mathers (unacceptable risk)
2013 – Hillier and Wootton (social science on BWS)
Best Practice Principles
Following the UK’s Guidelines for Good Practice on
Parental Conflict where there is Domestic Violence
published in 2002, the Family Court of Australia
published the Best Practice Principles for Use in
Parenting Disputes when Family Violence or Abuse is
Alleged in March 2009.
A revised version and third edition was published by the
FCA and the Federal Magistrates Court in 2012. This
provides decision-makers, practitioners and litigants
with practical guidance where there are issues of
family violence or child abuse. These are not
mandatory guidelines nor principles.
reports and reviews
National Council to Reduce Violence against Women and their Children,
Background Paper; The Cost of Violence against Women and their
Children; Domestic Violence Laws in Australia and Time for Action: The
National Council’s Plan 2009-2021, 2009
Chisholm, Family Courts Violence Review, 2009
Family Law Council, Improving Responses to Family Violence in the Family
Law System: An Advice on the Intersection of Family Violence and Family
Law Issues, 2009
Kaspiew et al, Evaluation of the 2006 Family Law Reforms, AIFS, 2009
Bagshaw and Brown et al, Family Violence and Family Law in Australia: The
Experiences and Views of Children and Adults from Families who separated
Post-1995 and Post-2006, 2010
reports and reviews
ALRC and NSWLRC, Family Violence:
Improving Legal Frameworks, 2010
(consultation paper)
ALRC and NSWLRC, Family Violence- A
National Legal Response, 2010 (report)
FVA 2011 reforms
•
•
•
•
•
•
•
•
•
•
•
The Family Law Legislation Amendment (Family Violence and Other
Measures) Act 2011 came into effect in June 2012. Reforms include
new definitions of ‘child abuse’ and ‘family violence’
removed reference to test of ‘reasonableness’
UNCROC added to s 60B objects
new s 60CC(2A) remedying any conflict between the two primary
considerations
s 60CC(3)(c) ‘friendly parent’ provision repealed
courts must refer to evidence and findings in any state proective order
proceedings
new provisions relating to state child protection/welfare law and relevant
agencies
immunity to state child protection authorities if participating in family law
proceedings
new obligations on advisers
notices about risk of f/v or c/a must be filed
s 117AB as to costs for ‘knowingly making false statements’ repealed
2011 reforms
are these enough?
•
•
•
•
•
•
•
•
no change to ESPR
no change to perception that shared care = equal care
no change to equal care as starting point if ESPR ordered
ignores research on shared care being detrimental to children is
parents in conflict
courts will still ‘bend over backwards’ to establish or preserve
relationship with ‘the poorest of parents’ (Wood and Wood 2005)
no preamble eg see Family Violence Protection Act 2008 (Vic)
no acknowledgement that family violence is gendered
no provision for use of social science and expert evidence about
family violence or child abuse
useful references
• T Altobelli, ‘Family Violence and Parenting: Future Directions in
Practice’ (2009) 23 AJFL 194
• R Alexander, ‘Moving Forwards or Back to the Future? An Analysis
of Case Law on Family Violence under the Family Law Act 1975
(2010) 16:2 UNSWLJ Forum 63
• T Brown & R Alexander, Child Abuse and Family Law (Allen and
Unwin,2007)
• A Harland, D Cooper, Z Rathus and R Alexander, Family Law
Principles (Thomson Reuters, 2011)
• P Parkinson, ‘The 2011 Family Violence Amendments: What
Difference Will They Make?’ (2012) 22 Australian Family Lawyer 1
• Z Rathus, ‘Shifting the Gaze: Will Past Violence be Silenced by a
Further Shift of the Gaze to the Future Under the New Family Law
System’ (2007) 21 AJFL 58
useful resources
• Australian Bureau of Health and Welfare
• Australian Bureau of Statistics
• Australian Domestic and Family Violence
Clearinghouse
• Australian Institute of Criminology
• Australian Institute of Family Studies
• AIFS, National Child Protection Clearinghouse
• Family Violence Best Practice Principles (2012)