Child Custody, Domestic Violence and Family Law in Australia: A Spotlight on Donna’s Research
Donna is currently in the write up stage of her PhD thesis, looking at Child custody, domestic violence and family law in Australia. Her research includes an examination of published legal judgements around the application of the rebuttable presumption of equal shared parental responsibility; interviews with mothers whose children have contact with their violent, abusive fathers; and a survey of young adults who experienced parental separation prior to their 16th birthday about their experiences of contact with their non-resident parent.
For most separating couples, the decision about who looks after the children and the time they spend time with each parent is decided between themselves without intervention from the family law system. For other couples, mediation or legal advice can be useful, however for a small number of couples, usually less than 5%, involvement with the family law system occurs.
Domestic violence – what do we know?
Current statistics show that 1 woman in 3, over the age of 15 years who has ever had an intimate partner, has been exposed to at least one form of violence. Overwhelmingly, the perpetrators are men, and the victims are women and children. It is acknowledged that women also perpetrate domestic violence.
Domestic violence – what is it?
It is a pattern of behaviours that intersperses coercive and controlling behaviours with physical violence in order to gain and maintain control of an intimate partner. It includes emotional and psychological abuse, physical violence, sexual abuse, financial abuse, and threats of physical and sexual abuse.
Domestic violence – what are the impacts?
For the (predominantly) women and children subjected to these behaviours, the impacts are many and varied, and include PTSD, depression, and anxiety. Children may ‘act out’ or become withdrawn, and have difficulties at school.
Separating from an abusive partner
Research and statistics show that separation is one of the most dangerous times for women who are in a relationship with a violent, abusive man. Thirty per cent of femicides (murders of women) occur at or around the time of separation. Some women will report their partners to police, others may apply for an intervention order (also known as an AVO) in order to protect themselves and their children, others still will leave him and take no legal action.
This is governed by the Family Law Act 1975, which has been amended several times, including 2006 and 2011. It is the legislation that determines divorce, division of property, and child contact (previously known as custody).
Within Part VII of the Act is a rebuttable presumption of equal shared parental responsibility. The Act states that it is in the child/ren’s best interests for their parents to share responsibility for their upbringing, however, this presumption is rebutted i.e. does not apply if there are “reasonable grounds to believe” that family violence and/or child abuse has occurred. This presumption, if ordered, requires the parents to discuss and come to agreement on the major long-term issues concerning the children, including their education, and their healthcare.
It should also be noted that Section 121 of the Family Law Act prevents participants from discussing their experiences of the system at any time, for any reason. This ostensibly is to protect the children of the parents who have litigated.
Mothers who have left relationships with violent, abusive men, sometimes at the behest of child protection services, may find themselves drawn into the family law system, either because their ex-partner makes an application to spend time with the children, or because they realise that spending time with their father is not good for the children, and they want the children protected.
Donna has found that judges in the Federal Circuit Court (previously the Federal Magistrates Court) are still applying the presumption even in the face of clear evidence of family violence having occurred in the relationship. Over 100 cases were examined, of which 72 (65%) had evidence of an AVO, and the presumption was applied in 15 cases. Judges making the order for equal shared parental responsibility even in cases in which the judge acknowledged the severity of the violence the mother and child/ren had been exposed to.
For mothers whose children are ordered by the court to spend time with their violent, abusive fathers, there is considerable distress for both the mothers and the children. In some cases, the mothers have lost custody of the children to the father, despite credible evidence of his abuse of her and the children.
For young adults, where there was violence and abuse, or substance abuse issues in the parental relationship, and they were court ordered to spend time with their father, they did not enjoy the contact, and a significant number of them have little to no contact with their fathers now that they are adults. One participant stated “I should never have been made to see my father after my parents separated.”
Busting myths around domestic violence and child contact
Within society is the pervasive myth that the family courts are biased against men. The research consistently shows that when men ask, they will get it in 70% of cases, with violent, abusive men twice as likely to file for custody as non-abusive men.
Another common myth is that women make false allegations of domestic violence in order to gain the ‘upper hand’ in custody battles. The research shows that when women report violence and abuse, they are more likely to have a worse outcome than in cases where there was no domestic violence reported to the courts i.e. the courts will order that the children spend more time with the father accused of violence and in some cases, mothers will lose custody altogether.
AVOs are a source of another myth – that they are used as a tactical weapon in ordered to keep fathers out of children’s lives, however the research shows that women only apply for AVOs when they have been subjected to severe violence and abuse. It is important to note that section 68Q of the Family Law Act renders a state intervention order invalid. So, even in cases where an AVO prevents the father from being within a certain distance of the mother, and sometimes the children, the father can still have contact with the children, and spend time with them.
There is the belief held that violent men can still be good fathers, and, that children need their fathers. Men who used violence and abuse in their relationships cannot be ‘good’ fathers as their behaviour shows that they are unable to put anyone else’s needs before their own. They will often also abuse the children, with a 30-70% overlap of domestic violence and child abuse occurring in families.