Family violence in family law matters

Prevalence of family violence in family law matters

15.7 Family law deals with disputes about parenting arrangements for children and the division of property that arise when parties to a marriage or de facto relationship separate. Past and continuing family violence has an effect on all these matters, but is particularly relevant to parenting arrangements for children.

15.8 In January 2010, the Australian Institute of Family Studies (AIFS) released its Evaluation of the 2006 Family Law Reforms. As part of the evaluation, AIFS conducted a longitudinal study of separated parents. It found that about two-thirds of separated mothers and just over half of separated fathers indicated that their partner had emotionally abused them before or during separation. One in four mothers and around one in six fathers said that their partners had hurt them physically prior to separation, and, of this group, most indicated that their children had seen or heard some of the abuse or violence.[3]

15.9 Where no family violence had been reported, post-separation relationships were likely to be friendly or cooperative. However, where parents reported having experienced physical or emotional violence, 25% developed distant relationships with their former partners; and 40% developed highly conflicted or fearful relationships with their former partners.[4] The evaluation suggested that ‘the experience of a past or present abusive dynamic is a very common characteristic of high-conflict family law clients’.[5]

15.10 The evaluation also examined the pathways taken by separating parents to sort out parenting arrangements. The data showed that a matter that involves family violence is more likely to proceed to the court, rather than be sorted out between the parents.[6]

The effect of family violence on parenting arrangements

15.11 Family violence is a significant factor when determining post-separation parenting arrangements. Dr Tom Altobelli has summarised a number of different ways in which family violence can affect parenting.[7] The factors, drawn from empirical research, include:

  • Spousal abuse may not end with separation—in particular, abusive controlling violence may escalate after separation.

  • People who use family violence may be deficient or even abusive parents and poor role models for their children. They may also undermine their victims’ parenting role.

  • Victims of family violence may find parenting difficult, as a result of abuse, poor self esteem and the stress of separation and court proceedings. Time, protection and support may be required to re-establish their parenting role. A victim’s behaviour under the stress of an abusive relationship or separation should not prejudice parenting decisions.

15.12 As noted in Chapter 5, violence between partners and within families can take a variety of forms. Altobelli emphasises that not all factors will arise in every case of family violence, and that there is therefore a need to differentiate among families experiencing family violence.[8]

15.13 Where there has been family violence, a parent may also have concerns about the safety of his or her children when in contact with the other parent. The AIFS Evaluation found that around one in five parents reported safety concerns associated with ongoing contact between the child and the other parent. Safety concerns were strongly associated with a history of abuse—90% of fathers and 95% of mothers with concerns for the safety of their children also reported that they had been either physically hurt or emotionally abused by their partner. The evaluation notes, however, that:

Around one in five mothers and just over one in ten fathers who did not hold safety concerns also indicated that they had been physically hurt prior to separation. For some of these parents, separation may have relieved them of such concerns.[9]

15.14 Other studies have shown that there is an increased risk of family violence in the period following separation. This risk is heightened when parents meet to facilitate children spending time with each parent, for example during handover arrangements.[10]

15.15 It is therefore important that protection orders made under state and territory family violence legislation and family law orders that allow children to spend time and communicate with parents operate together to ensure the safety of all parties.

[3] Australian Institute of Family Studies, Evaluation of the 2006 Family Law Reforms (2009), 26.

[4] Ibid, 34.

[5] Ibid, 34.

[6] Ibid, 77–78.

[7] T Altobelli, ‘Family Violence and Parenting: Future Directions in Practice’ (2009) 23 Australian Journal of Family Law 194. In particular, Altobelli draws on the analysis in P Jaffe and others, ‘Custody Disputes Involving Allegations of Domestic Violence: Toward a Differentiated Approach to Parenting Plans’ (2008) 46 Family Court Review 476.

[8] Ibid, 200.

[9] Australian Institute of Family Studies, Evaluation of the 2006 Family Law Reforms (2009), 34.

[10] See, eg Women's Legal Service, ‘An Unacceptable Risk: A Report on Child Contact Arrangements Where There Is Violence in the Family’ (2002) 14 Journal of Judicial Administration 157; M Kaye, J Stubbs and J Tolmie, Negotiating Child Residence and Contact Arrangements Against a Background of Domestic Violence (2003).