The Challenges of Securing Human Rights to Safety in Australian Family Law Frameworks

By Elspeth McInnes

Human Rights to Safety

Article 3.

Universal Declaration of Human Rights

Everyone has the right to life, liberty and security of person.

Who is able to exercise this right?

Australian 13-year homicide data (Mouzos and Rushforth 2003) identifies:

Average 129 family homicides per year:77.4 (60%) are partners or ex-partner homicides and women were

killed in 3 out of 4 cases (n=58). 1 in 4 (n=14.5) of these homicides occurred after separation

25 (19%) are parent/child homicides with fathers as perpetrators in 63% of cases (n=15.7). Domestic violence, mental illness and separation were the most commonly identified contexts of parent/child homicides.

The homicide data underscores the reality that:

Mothers and children experience significant harms, injuries and deaths from violent partners and fathers.

Separation is a period of escalated risk for many mothers and children surviving violence and family law is a central institution in separation disputes.

Australian Family law frameworks currently routinely re-expose children and mothers to continuing abuse, sometimes with fatal results. Eg. The homicides of Jessie and Patrick Dalton (Four Corners 16/8/04)

Family Law System Elements

Legal aid Mediation Lawyers Courts Judicial officers

Family Report Writers Children’s

Representatives Relationships Services Child Contact Centres

Challenges

Constitutional divisions Domestic Violence and the Law Securing a child protection response Child abuse and substantiation Child sexual assault and criminal prosecution Access to legal aid Child contact and family law reform

Constitutional Problems

The protection of children and adults from violence and abuse is divided across state and federal governments (Kelly & Fehlberg 2002).

The federal government has jurisdiction over marriage and relevant issues such as divorce, and child and property arrangements.

The eight state and territory governments have jurisdiction over criminal conduct and responses to domestic violence and child abuse.

Constitutional Problem Outcomes

State child protection authorities are not funded or mandated to provide support to the Family Court’s information and investigation needs.

State variations in definition, intake processes and prioritisation lead to fragmented national responses to child protection.

Constitutional Problem Outcomes

State child protection responses are event based and driven by state legislation and do not easily match the needs of the federal Family Law Act.

Family Court litigants seeking to present evidence held by state agencies such as child protection and police, rarely succeed without legal assistance.

Domestic Violence and the Law

Violence and abuse in family relationships is commonly treated as a civil matter rather than a criminal offence (Scutt 1995).

Hurdles to safety from family violence include 1. being able to contact police 2. getting police to attend 3. police support for the target 4. applying for restraint order 5. getting a restraint order 6. getting police to enforce a restraint order.

42% of single women who had ever been partnered reported experiencing violence, usually from an ex-partner (ABS 1996).

Policing AVOs

Lack of available Police particularly in country areas

Lack of skills in responding to DV Belief that an AVO will ‘make things worse’ Belief that Family Court orders take

precedence over AVO conditions (Katzen 2000).

Lack of recognition of danger to children from domestic violence

DV IS CHILD ABUSE

Domestic violence is under-recognised by professionals, perpetrators and victims as a form of child abuse.

Professional intervention for domestic violence is adult oriented.

Parents are often unaware that children have witnessed or heard the violence and/or its aftermath. A national study of young people found one in four had witnessed domestic violence against their mother or stepmother (Indermaur 2001).

DV IS CHILD ABUSE

Children experience domestic violence as traumatic. They may be directly attacked, injured in an assault on their mother, injured while trying to protect their mother, or injured as a means of terrorising the mother.

They experience the impact of the abuse on the parenting by their mother – mental health problems, physical injuries, death (James 1994).

DV and Child Protection

Child protection responses to domestic violence have usually focused on the mother and relied on her to protect the children from a violent partner.

Violent men are either absent and thus invisible or deter child protection workers through intimidation, threats and assaults (Stanley and Goddard 2002).

In the Family Law ‘No Fault’ framework, domestic violence is not seen as particularly relevant to decisions about children beyond preventing them from witnessing violence. Handovers at Police stations and contact centres are thus seen as a ‘solution’.

Access to Child Protection

Making a notification of suspected child abuse often does not result in an investigation. In NSW, Victoria and SA less than 50% of reports were investigated in 2002-03

Of those cases which were investigated, less than half were substantiated in WA, SA, TAS, ACT and NT (AIHW 2004).

Substantiation means positive evidence supporting abuse was found. Lack of substantiation does not mean abuse did not occur.

Types of Abuse most Likely to be Substantiated by State Services

Emotional abuse (34%); physical abuse (28%) and neglect (28%) were the types of abuse most likely to be substantiated.

Sexual abuse (10%) was the least likely to be substantiated (AIHW 2004).

Research into child abuse allegations in the context of family law proceedings has identified that the ‘false report’ rate is around 1 in 10, consistent with the rate in other contexts (Brown et al 2001).

Factors Inhibiting Substantiation

Age of the child Current living circumstances of the child Suitability of the investigation process Timeliness of the investigation Lack of skilled staff Fear of the alleged perpetrator Context of family court proceedings

Criminal Justice System Responses to Child Sexual Abuse

• Even when a case has been reported, investigated and substantiated, a prosecution normally will not proceed when the victim is 7 years or under without conclusive corroborating evidence.

• Of those cases which are prosecuted, the majority will fail to achieve a conviction (Eastwood & Patton 2002).

• The criminal justice system is unable to effectively prosecute offenders against very young children (Cossins 2003).

Family Court and Child Protection

The Family Court does not have jurisdiction to determine whether child abuse has occurred but relies on state criminal justice systems to determine whether or not a parent is guilty of criminal child abuse such as sexual assault.

But State services often discount reports of child abuse as an adversarial strategy when there are family court proceedings and leave such cases to the family court (Brown et al 2000;Hume 1996; Humphreys 1999).

State services are oriented to short term intervention based on investigated past events. Family law is oriented to future best interests with reference to current and predicted future needs (Kelly and Fehlberg 2002).

Family Court and Child Protection

The Family Court has no investigative capacity when allegations of abuse are made and relies on the evidence of the parties to decide the best interests of the child.

Restrictions on legal aid mean that many parents dealing with child abuse will run out of legal aid before the case is finalised and have to prepare and present complex evidence and legal argument (FLC 2002).

Mothers who persistently attempt to protect their children from abuse during contact by defying court orders face jail sentences and/or reversal of residence.

Magellan and Columbus

The Family Court’s Magellan Project and the Columbus Project in WA provide frameworks to link state child protection investigation and reports to the Family Court in selected cases.

Identified problems include: tight screening criteria, variable implementation across states and locations, and cross-institutional constraints.

The Family Law Council has proposed a national child protection unit attached to the Family Court to inform decision making in cases of alleged child abuse (FLC 2002). Nothing has happened.

Fatherlessness Fever: Contact trumps safety

The 1996 changes to family law emphasised continuing parental responsibility and children’s rights to contact with their parents but evaluation studies (Rhoades et al 2001, Dewar & Parker 1999) have identified that parent-child contact is being privileged ahead of safety.

Several Australian studies have detailed mothers’ difficulties in protecting their children from violent fathers during contact (Rendell et al 2000; Kaye et al 2003

Safety First Approach Needed

Securing human rights to safety in family law depends in part on legislative changes to require judicial decision-makers to privilege safety as a threshold issue for defining a child’s best interests.

Where violence or abuse has been found on the balance of probabilities to have been present there should be a presumption of no contact unless safety can be protected and the child in fact benefits from contact, as assessed by trained professionals skilled in family violence and child abuse.

Institutional Support Needed

• Following the Family Law Council 2002 recommendation a multidisciplinary national family violence unit should be established as part of the family law system to gather evidence from relevant police, health, education and child welfare records and the parties in cases of alleged abuse to provide expert advice to inform court decision making.

Legal Aid Boost Needed

Unrepresented litigants in cases of alleged abuse use most of the court resources and time.

Legal aid should be extended to all cases involving abuse and violence to ensure vulnerable parties have access to their legal rights.

Child Contact in Abuse Cases should be Monitored and Evaluated

Where children are ordered to have contact with a violent parent, such contact should have been professionally assessed as being in the child’s best interests and have ongoing monitoring, supervision and evaluation.

Where children are found to be adversely affected by contact, contact should cease.

Education in violence and abuse

All parties in the family law system should have training in domestic violence and child abuse – dynamics, indicators, consequences and appropriate responses to support victim safety.

All parties in the family law system should have formal accreditation reliant on such training.

References

Australian Bureau of Statistics, (1996) Women’s Safety Australia, Catalogue Number 4128.0, Canberra, AGPS.

Australian Institute of Health and Welfare (2004) Child Protection Australia 2002-2003, Child Welfare Series No. 34, Canberra, AIHW.

Australian Law Reform Commission, (1995) For the Sake of the Kids: Complex Contact Cases and the Family Court, Report Number 73, Canberra, AGPS.

Brown, T., Frederico, M., Hewitt, L. and Sheehan, R., (2001) ‘The Child Abuse and Divorce Myth’ Child Abuse Review, 10: 113-124.

References cont.

Cossins, A. , (2003) The National Child Sexual Assault Reform Committee, Child Sexual Abuse: Justice Response or Alternative Resolution Australian Institute of Criminology, Adelaide May 1-2.

Eastwood, C. and Patton, W. (2002) The Experiences of Child Complainants of Sexual Abuse in the Criminal Justice System, Brisbane, QUT.

Family Law Council (2002) Family Law and Child Protection, Canberra, AGPS.

References cont.

Four Corners (2004) Losing the Children, ABC TV, Sydney.

Hume, M., (1996) Child Sexual Abuse Allegations and the Family Court of South Australia, Masters Thesis: University of South Australia.

Humphreys C., (1999) ‘Walking on eggshells: Child sexual abuse allegations in the Context of Divorce’, in J. Breckenridge and L. Laing, (eds) Challenging Silence: Innovative Responses to Sexual and Domestic Violence, Sydney, Allen and Unwin.

References Cont.

Indermaur, D., (2001) Young Australians and Domestic Violence, Trends and Issues Paper No. 195, Canberra, Australian Institute of Criminology.

James, M., (1994) Domestic Violence as a form of Child Abuse: Identification and Prevention, Issues in Child Abuse Prevention Number 2. National Child Protection Clearinghouse, AIFS Melbourne.

Katzen, H., (2000) ‘It’s a Family Matter, not a Police Matter: The Enforcement of Protection Orders’, Australian Journal of Family Law, 14 (2):119-141.

Kaye, M., Stubbs, J. and Tolmie, J. (2003) Negotiating Child Residence and Contact Arrangements against a Background of Domestic Violence, Families, Law and Social Policy Research Unit, Griffith University, Queensland.

References Cont.

Kelly, F. and Fehlberg, B., (2002) ‘Australia’s Fragmented Family Law System: Jurisdictional Overlap in Child Protection, International Journal of Law, Policy and the Family, 16: 38-70.

McInnes, E., (2002) Single Mothers, Social Policy and Gendered Violence, Women against Violence, Issue 13, pp. 18-24.

Mouzos, J. and Rushforth , C., (2003) ‘Family Homicide in Australia’, Trends and Issues Paper Number 255, Australian Institute of Criminology, Canberra.

Rendell, K., Rathus, Z. and Lynch, A., (2000) An unacceptable risk: A Report on child contact arrangements where there is violence in the family, Brisbane, Women’s Legal Service.

References Cont.

Rhoades, H., Graycar, R., and Harrison, M., (2001) The Family Law Reform Act 1995: The First Three Years, Final Report, Sydney, University of Sydney and the Family Court of Australia.

Scutt, J., (1995) ‘Criminal Assault at Home: Policy Directions and Implications for the Future’, in W. Weeks and J. Wilson, (eds) Issues Facing Australian Families, Melbourne, Longman.

Stanley, J., and Goddard, C., (2002) In the Firing Line: Violence and Power in Child Protection Work, Wiley, Chichester.