NAFCC is a national (and international) feminist coalition of organisations who have formed to advocate on behalf of women and children going through the Family Court system with concerns about domestic violence and child abuse.
The National Abuse Free Contact Campaign was initiated because of concerns relating to the exposure of women and children to ongoing male violence, following separation as a result of unsafe contact arrangements, usually ordered by the Family Court.
Safety from violence and abuse is a human right and a first condition of the capacity to exercise all other human rights.
Mother and child targets of family violence are ordinarily denied this human right in the family law system.
We recommend that greater use should be made of both of these amendments to the Family Law Act 1995 to ensure safety for both women and children.
2. We recommend for the introduction of a rebuttable presumption of no contact where there are allegations of violence established on the balance probabilities (similar to the NZ Guardianship Act). Persons found on the basis of civil proof to have used violence would have to show why they were safe before contact was allowed.
3. That adequate funds and resources be established for state child protection services, legal aid agencies and the Family Court in the development of the Magellan project nationwide.
4. That the Magellan project includes all forms of family violence, so that issues of children’s safety from both child abuse and domestic violence are addressed.
5. We recommend that an inquiry be established into the viability of a national child protection unit or that Federal Government provide support and funding to state child protection systems to conduct specific investigations in family law cases where allegations of violence and abuse have been made.
6. We call for the abolition of the ‘friendly parent’ provision in cases where violence or abuse is an issue.
7. Education across the family law system for all professionals including the judiciary in family violence dynamics and child development is necessary. We recommend education and training for judicial officers, legal practitioners, children’s representatives, mediators, counsellors and those involved in preparing family assessments for family court, and child protection services in areas such as:
8. Access to legal aid for parties in cases involving violence or risk of violence is a major issue.
We recommend:
9. We also call upon the Federal Government to support and fund the establishment of Domestic and Family Homicide Review bodies in each state and territory to undertake investigative reviews into domestic and family homicides to identify issues for reform and gaps in the system and imperatives for change.
Family violence is a key driver of separation (Sheehan & Smyth 2000), a key obstacle to dispute resolution and an issue in 66% of cases in the court system.
The Family Violence and Family Court Research Program conducted by Monash University and the Australian Catholic University Canberra also highlighted significant concerns about child protection and the Family Court. This research demonstrated that:
The Family Law Council's report on Family Law and Child Protection (2002) also argues that the current system does not adequately address the issue of child protection within the Family Court proceedings and has recommended the establishment of a national child protection system within the Family Court.
The University of Sydney and the Family Court also conducted research into the Family Law Reform Act of 1995. The Family Law Reform Act contained two significant amendments. Firstly the Reform Act added “the need to ensure safety from family violence” as one of the guiding principles of the Family Law Act. The second principle that was added was, subject to the best interests of children, “children have the right to know, and be cared for by both their parents” and “children have a right to contact, on a regular basis, with both their parents”. The research conducted over 1997 and 1998 found that the ‘right to contact principle’ had been given greater emphasis than the domestic violence aspects of the reform and that this right to contact principle is not necessarily subject to the best interests of the child. Their research suggests that an interim order refusing contact has become more difficult to obtain since the Family Law Reform Act came into operation, despite allegations of domestic violence. The ‘right to contact’ principle has taken precedence over concerns about children’s exposure to domestic violence and child abuse.
Fathers’ rights campaigners have successfully re-defined men’s violence against women as a probably false tactical allegation by women ‘for advantage’. Kaspiew’s (2007) research shows that violent perpetrators exercise power and control over their ex partners and children in the Australian Family Court system by using tactical strategies that are successful in influencing the Court’s pro-contact decisions, even in cases of severe violence.
Moloney et al’s report (Australian Institute of Family Studies 2007) identified that allegations of violence made ‘no difference’ to contact orders in most cases, therefore, on the evidence, there is no ‘advantage’ in alleging violence and researchers accept that most are true.
The consequence of this is that it is normal for children of violent and abusive fathers to be ordered to have continuing contact with their father.
This provides opportunities to the perpetrator to continue to abuse the children and his ex-partner.
The Institute of Family Studies has completed its 2007 report on Allegations of family violence and child abuse in family law children’s proceedings by Lawrie Moloney, Bruce Smyth, Ruth Weston, Nicholas Richardson, Lixia Qu and Matthew Gray.
This report highlights the significance of domestic violence and child abuse in family law matters. It confirms what previous studies (Brown et al 1998; Shea Hart 2004) have found, which is that domestic violence and child abuse are core business of the Court. The report found that over 50% of cases both in Family Court and Federal Magistrates Service contain allegations of family violence, and that such allegations are severe.
The report also presents information which suggests that the lack of evidentiary material in cases alleging violence is a significant problem, indicating that decision making is based on incomplete information.
The report describes this as “a climate of considerable factual uncertainty.”
The report goes on to state:
“We suggest that where uncertainty predominates in a set of such core documents, its impact is most likely to be in the direction of a relative downgrading of the violence and child abuse allegations.”
The findings also show that in cases where there are allegations of family violence, there is frequently no response required, and where there is a response to the allegations, there is little testing of the denials. The report also cites research which shows that false allegations are not borne out as likely in family law cases. This report shows that in fact false denials are of significance, and needs to be taken into consideration in parenting arrangements.
Serious consideration should be given to creating the onus on the respondent to demonstrate they are unfounded; otherwise, the allegations must be taken into consideration in parenting arrangements.
There were also findings which demonstrate that it is unusual for contact to be denied, that orders for overnight stays predominated among cases involving contact orders, whether or not allegations were made and regardless of the apparent severity or probative weight of that evidence.
The results from this research clearly highlight a significant problem within the family law system in adequately protecting women and children from ongoing abuse following separation.
All of the above research confirms the experience of the National Abuse Free Contact campaign gained from women and children affected by domestic violence and child abuse. Time and again we find that women and children are put at risk of further violence by the inadequacies of the Family Law system.
In July 2006, family law legislation was amended. These amendments followed a federal government inquiry into family law which resulted in the report “Every Picture Tells A Story”: A Report on the inquiry into child custody arrangements in the event of family separation by the House of Representatives Standing Committee on Family and Community Affairs and was released in December 2003.
Prior to and during the inquiry many submissions and concerns were raised about the safety of children and women following separation. There is both national and international well-documented research which repeatedly confirms that violence is prevalent, severe and under-reported in family breakdown disputes.
The changes in legislation in July 2006 however create further barriers to women and children achieving safety and in fact will penalise women who raise concerns about their and their children’s safety.
The National Abuse Free Contact Campaign is concerned that the changes would mean that:
Key changes in the legislation include:
Thus the Bill promotes parents’ ‘rights’ to share equally in their children, particularly by requiring consideration of equal time arrangements. The Bill diminishes the weight given to children’s views by making these a ‘secondary’ criterion. The Bill as it currently stands will further undermine the safety of children and their family members.
The Bill creates conflicting primary considerations (children to have meaningful relationships with both parents and children to be protected from harm) and an additional secondary criterion (willingness to facilitate a relationship with the other parent) for determining a child’s best interests that are likely to lead to children being placed at greater risk of exposure to violence or abuse.
The impact of this will put pressure on women to ‘keep quiet’ about violence or abuse and obscures the problem of false denials of violence.
4. Changing the Family Law Act definition of ‘family violence’ to be ‘objective’ – may lead to the victim’s experience of violence not being properly factored into decision making.
5. Changes to Division 11, which deals with the interaction between family law orders and state family violence orders, may make it harder to change family law orders to protect people from violence and do not give effect to the Family Law Council’s recommendations
6. Making mediation compulsory without appropriate safeguards to deal with violence and abuse cases will impact on safety.
The National Abuse Free Contact Campaign believes that positive quality relationships between children and parents are not dependent on parents having equal time with children.
Substantially sharing parenting time is only successful in some limited circumstances - including where parents can communicate well about their children, live close together and respect each others views about parenting issues.
Families in rural and remote areas have less access to services and support.
These changes will significantly increase the risk of further violence and abuse to women and children escaping from violent relationships.
The Family Relationship Centres’ system as a gateway to the court system has uneven understandings and screening for family violence.
Expectations by system professionals that women will reach a mediated agreement and comply with their ex-partner’s contact demands exert pressure on women to agree to unsafe and unworkable contact arrangements
The requirement to consider maximum time with each parent is resulting in increased 50/50 outcomes despite contra-indications in some cases for children’s developmental needs:
In the courts the Form 4 is the only identification of risk of child abuse and neglect.
Parents are discouraged from knowing about it or using it and most are channelled into the less-adversarial court process rather than identification and investigation of risks of violence or abuse.
The court has limited means of informing itself about children’s experiences of family violence, both historically and during court proceedings, being largely reliant on materials presented by the parties.
ExParte domestic violence orders are not accepted as evidence of domestic violence in the family law system.
Child protection system investigation (when there has been one) findings and recommendations can be and have been dismissed by judicial officers as untested and invalid.
Many family law professionals do not apparently understand or recognise that violence towards a child’s parent is also abusive to the child.
Legal expert opinion is divided as to whether children’s right to a meaningful relationship with both parents has primacy over children’s right to safety in the current legislation.
Family law decision-making is continuing to privilege parental contact ahead of risks to children’s safety.
The National Abuse Free Contact Campaign aims to make the government listen, and to prioritise the safety of victims of violence.
An Abuse Free Contact group was first established in Queensland by a group of welfare and legal practitioners. This resulted in a research project that gathered information on the way in which legal and welfare systems respond to women and children affected by violence and abuse after separation. This produced the report An Unacceptable Risk: A report on child contact arrangements where there is violence in the family (2000).
Some of the major recommendations of this report were:
There is a strong need for legislative reform to clarify the first priority of safety from harm for children and adults, including support for denial of contact in warranted circumstances, and support for conditional and accountable contact in circumstances where children’s safety and well-being can be guaranteed.
The 1996 ABS National Women’s Safety Survey found that 23% of women who had ever been in a married or defacto relationship had been subjected to family violence.
A 2004 survey found that 34% of women who ever had a spouse, partner or boyfriend had been subjected to violence by their male partner (Mouzos & Makkai. Women’s Experiences of Male Victimisation. Findings from the Australian Component of International Violence Survey).
The annual domestic violence death toll in Australia was 76 adults and 23 children in the 2002-03 financial year. 78% of murdered women die as a result of Domestic Violence.
Approximately 40% of women subjected to violence by their current partner do not disclose their experience to anyone (ABS 1996).
95% of women abused by their current partner did not report their last experience of abuse to the police (ABS, 1996).
75% of women abuse by their previous partner did not report abuse to the police (ABS, 1996).
According to the Australian Institute of Criminology 14% of women victimised by their partners reported to the police or judicial authorities (Mouzos & Makkai, 2004).
42% of previously partnered single women report experiencing violence, mostly from their ex-partner (ABS 1996; McInnes 2001).
“Child abuse allegations in the context of family law proceedings have been analysed in four Australian studies. These examinations find that allegations rarely are made for tactical advantage, false allegations are rare, the child abuse often takes place in families where there is also domestic violence, and such allegations rarely result in the denial of parental contact.” (Fact Sheet #1: “The myth of false accusations of child abuse.” Prepared by Michael Flood, March 2005)
The risk of domestic violence increases at the time of separation.
Women living with domestic violence often do not take out protection orders and do so only as a last resort. (Fact Sheet #2: The myth of women’s false accusations of domestic violence and misuse of protection orders. Prepared by Michael Flood, March 2005)