User:Mozart/Notes on domestic violence

Broderick, 'Not so straight forward' (2011)

The Alternative Law Journal published an abridged version of Elizabeth Broderick's September 2011 speech as Federal Sex Discrimination Commissioner at the 3^rd biennial (first national) LGBTIQ domestic violence conference.

• 'Approximately 1.2 million women have experienced domestic violence at the hands of a (usually male) current or former partner.'
• 'Responses have understandably and necessarily focused on reducing the prevalance of male violence against women.'
• Domestic violence 'can occur in all relationships, regardless of the sex, sexual orientation or sex or gender identity of the persons involved.'
• 'Research suggests … that domestic violence occurs at a similar rate in same sex relationships as in heterosexual relationships.'
• 'Firstly there needs to be a focus on better educating the general community about LGBTIQ domestic violence. People need to know that … domestic violence occurs in these relationships just as it occurs in other relationships. There also needs to be greater awareness about the serious harms of a lack of acceptance and recognition of LGBTIQ communities. Relatedly, people who identify as LGBTIQ … need to know where they can go for help.'
• 'Secondly, there must be adequate and ongoing funding and resources to ensure that responses to domestic violence are inclusive of LGBTIQ communities.
• 'Finally, the National Plane to Reduce Violence Against Women and Their Children needs to be implemented in an inclusive way.'
• 'Everyone should be able to live their lives free from all forms of violence, including domestic violence.'

Chappell and Curtin, 'Does Federalism Matter?' (2012)

In 2012 Publius: The Journal of Federalism published a comparative evaluation of family and domestic violence policy in Australia (a federation) a New Zealand (a unitary state) by Louise Chappell (University of New South Wales) and Jennifer Curtin (University of Auckland).

Abstract

'Does federalism make a difference to policy making in the area of family and domestic violence (FDV)? This article explores this question through a comparison of Australia and New Zealand whose state architecture aside from federalism is very similar. It argues that Australian federalism has provided laboratories for innovative policy making and the continual articulation of a progres- sive policy response to FDV. By contrast, in New Zealand subnational experiments have occurred, but continuous progressive policy responses have been less evident because centralization accentuates the need for left-wing governments to substantively advance the issue.'

Outline

• 'It examines federalism’s impact on legal and policy responses to family and domestic violence (FDV)—an area central to women’s equality—through a comparative study of Australia, a centralized federation, and New Zealand, a centralized unitary state.'

• 'While federalism may offer some advantages to those pursuing any reform, including policy innovation and learning, it can equally pose additional barriers including achieving a coordinated and integrated policy response. By contrast, the unitary alternative offers fewer veto points and coordination challenges, but arguably provides less scope for experimentation and learning. We suggest that in Australia the development of ‘‘progressive’’ FDV policy has been influenced by opportunities for policy innovation and learning on one hand and coordination challenges on the other, whereas in New Zealand capacity for greater coordination has been possible, but innovation has been less ‘‘progressive’’ and more dependent on the presence of a left-wing party in government.'

• 'A comparative evaluation of the legislative and policy initiatives follows before an analysis that reveals that federalism and left-wing governments are both significant in the pursuit of FDV policy reform.'

• 'FDV … presents challenges in all settings because it requires an integrated response; that is, it requires horizontal action across a range of policy portfolios—health, housing, policing, criminal and family law, employment—to comprehensively address the problem. … In many federal and decentralized systems, different levels of government hold separate responsibility for relevant policy areas, while sharing others, requiring simultaneous horizontal integration and vertical coordination responses.'

• 'While domestic violence usually refers to violence by a man against his female partner or ex-partner, a continuum of alternative frames can be identified.'

• 'At one end is the equality/power frame that sees FDV stemming from power differentials between men and women. In the center sits a de-gendered frame, where victims and perpetrators are defined in gender neutral terms and where violence is understood as the outcome of societal ignorance and state failure.'

• 'At the opposite end is an individualized view of the problem, where genderless perpetrators are violent towards unidentified victims, and systemic factors are not considered.'

• 'These variations in diagnoses, lead to different prognoses or reform options.

• 'Policy responses to FDV range from efforts to shift gender norms, stereotypes, and power relations to more conservative law and order measures to punish and deter individual offenders.'

• 'Further complicating the policy frame is the need to add the term ‘‘family’’ to domestic violence. Our use of ‘‘family’’ does not align with the view that the solution to private violence is strengthening family bonds and building greater family harmony in a traditional sense.'

• 'Rather, it is the frame used by many Maori and Indigenous Australians who prefer it to ‘‘domestic violence’’ because it captures the way violence is "perpetrated by potentially multiple abusers connected by extended family relationships located within the community".'

• 'In this article we use the gender-neutral nomenclature ‘‘family’’ and ‘‘domestic’’ violence, rather than violence against women, to capture the range of frames outlined above. In doing so we also acknowledge the evidence that demonstrates women globally are the majority of FDV victims while the majority of perpetrators are men including in Australia and New Zealand.'

• 'All women, regardless of their socioeconomic status and background are at risk of suffering this violence, but some women are particularly vulnerable. In Australia and New Zealand this includes Indigenous, Maori, and Pacifica women.'

• '… we suggest that federalism is a necessary but not sufficient condition to produce progressive FDV policy reform as left-wing governments within an integrated party system are also likely to be significant to such policy responses. To this end, we explore whether the interaction between these two variables represents an example of a compound causation whereby left-wing governments and federalism mutually influence progressive policy responses, in part because of the built-in learning and competition effects.'

Australia

• 'In Australia, constitutionally criminal law rests with states and territories leaving them responsible to introduce legislation to criminalize FDV. Since the 1980s states and territories have borrowed from each other in defining the crime of domestic violence and each has criminalized FDV. This is evident in the timing of law reform across jurisdictions. In each case, legislation has been amended at least once to expand the definition of FDV to include a wider range of crimes including economic and emotional forms of abuse while the majority of states recognize a broad spectrum of situations in which violence can occur, including same-sex, patient–carer and non-cohabiting relations.'

• 'In most jurisdictions the legislation reflects gender neutral language, which discusses the way ‘‘people’’ experience violence,9 thereby failing to identify the fact that women are the majority of victims and men the majority of perpetrators of these crimes.'

• 'During the same time period, states and territories each adopted a system of civil-law domestic violence protection orders. These allow courts to stop (potential) perpetrators from approaching (potential) victims. Despite some differences in civil schemes, a recent review into their application found that across jurisdictions the provisions largely had similar effect. In respect of the definition of domestic violence, types and speed with which the orders can be made, and, the punishment for contravening orders, the civil provisions across the states are ‘‘clear, comprehensive and robust’’.'

• 'There is some evidence of intra-jurisdictional policy integration as well as innovation and learning between subnational units regarding legislative responses to FDV.'

• 'At the Commonwealth level, legislative intervention in FDV occurs primarily through the Family Law Act. This act provides the federal Family Court with powers over ‘‘guardianship, custody, maintenance and access,’’ and insists it take into account family violence matters (issues concerning child protection and adoption remain with the states).'

• Under the Hawke and Keating ALP governments the legislation maintained a gender neutral frame but this shifted under the Howard Coalition government to a conservative individualized frame. The Coalition’s amendments to the Family Law (Shared Parental Responsibility) Amendment Act 2006 changed coparenting arrangements to reflect the view that FDV is the exception to the norm and a problem of a few ‘‘bad’’ individuals.'

• 'Among the many problems identified with these amendments was the potential of exposure of victims of FDV to further abuse by the perpetrator through custody orders.'

• 'The Australian FDV legislative framework has problems. The 2009 National Council to Reduce Violence against Women and their Children (NCRVWC) Time for Action report found criminal law was underutilized in all jurisdictions in favor of civil-law provisions with the effect of decriminalizing FDV.'

• 'Lack of coordination between Commonwealth parenting provisions and state-based domestic violence protection orders that were especially apparent after the 2006 FLA amendments, and the portability of protection orders between jurisdictions have been major concerns.'

• 'The system has been described as a ‘‘complex maze’’ through which vulnerable people, mostly women and children, have difficulty navigating.'

• 'In 2009, the Australian Law Reform Commission commenced an investigation into a number of these problems, while the 2011 National Action Plan to Reduce Violence against Women and their Children identifies them as priorities for action. The Gillard ALP government responded with the 2011 Family Law Legislation Amendment (Family Violence and Other Measures) Bill 2011 that overturned many of the 2006 changes by taking better account of violence in custody matters and attempting to better coordinate the FLA with state and territory family services.'

New Zealand

• 'In New Zealand, the development of law in the area of family and domestic violence has been incremental in its approach. The Domestic Protection Act (1982) enacted by the Nationals but with bipartisan support, was a significant first step. It contained provisions for non-molestation and nonviolence orders, and empowering police to detain for twenty-four hours without charge any person who had breached a nonviolence order. The act gave police considerable discretion about whether or not to arrest in the first place. Evaluations of the law’s impact indicated that without police training and education on domestic violence, little change would result.'

• 'The National’s 1995 Domestic Violence Act extended the definition of domestic violence to include psychological and emotional abuse, expanded who could apply for protection orders to include siblings, caregivers and those in same-sex relationship, and mandated rehabilitative programs for offenders. It was amended in 2009 to extend police powers to issue safety orders, even where there are insufficient grounds to make an arrest. The orders ensure the immediate safety of a victim, forcing the perpetrator to leave the address for up to five days. Other changes strengthened bail provisions and reduced barriers to police arresting suspects of protection order breaches.'

Similarities between Australia and New Zealand approaches

• 'In both countries there have been ongoing incremental efforts to close the gap between law and practice, although with more venues in the Australia legislative action there has been more regular and constant reform.'

• '… in each case a gender-neutral framing of the issue has been the norm.'

• 'However, there does seem to be some gender sensitivities underlying the ‘‘safe at home’’ initiatives: these laws expect that it is women and children who are victims and who should stay at home, while it is men who are violent and who should leave the domicile.'

Policy plans

• 'Over the past two decades all Australian jurisdictions have developed FDV strategic plans in an effort to bring about policy integration.'

• 'These plans have included efforts to engage police and legal services, housing and refuge services, and employment and health service amongst others.'

• 'Federalism has contributed to the development of these policy integration plans through subnational innovation followed by horizontal policy learning, most obviously in the past ten years. In establishing FDV plans, ‘‘follower’’ states have drawn on earlier blueprints.'

• 'Compared with legislative initiatives, these plans have applied an overt gender or power frame to the issue and names women as the primary victims of FDV. The NSW definition that ‘‘recognises that domestic violence is gender-based violence and a violation of human rights’’ (NSW Plan 2010) is reflective of that used in the other plans. The gender or power lens is further strengthened in many of these plans through a link to the definition used by the UN Committee on the Elimination of All Forms of Discrimination against Women (CEDAW).'

• 'These plans have not addressed all FDV policy challenges at the subnational level. Ongoing problems exist with ‘‘dis-integrated’’ services, funding, and specialized services for women from indigenous and other minority sectors of the population. Nevertheless, the plans have gone some way in bringing the issue to the fore and pointing out the need for ‘‘joined up’’ responses to FDV.'

• 'Compared with its state and territory counterparts, the Commonwealth government does not have the same record of integrating FDV areas over which it has responsibility including homelessness, social security, health, and family law.'

• 'Where the Federal government has had more impact is through driving forward vertical coordination. The 1992 ALP National Strategy on Violence against Women, the 2011 Rudd/Gillard ALP National Plan and to a lesser extent, the 1997 Coalition Partnerships Against Domestic Violence (PADV), have each attempted to secure better intergovernmental coordination across the FDV policy field.'

• 'The ALP’s 2011 national plan, which picks up many of the initiatives from 1992, is the most comprehensive to date. It has a twelve-year time span, addresses prevention, provision of services, and prosecution elements of violence against women and children across all jurisdictions and horizontally across the Commonwealth.'

• 'It draws particular attention to the high levels of violence suffered by indigenous women and children and points to the failures in earlier collaborative efforts to address FDV in this community.'

• 'In an important first, it also seeks to connect with other intergovernmental strategic plans, including indigenous, child protection, health, and homelessness agendas.'

• 'As with other national plans, the Council of Australian Government’s (COAG)—the intergovernmental machinery through which inter-jurisdictional agreements are made, and implementation, reporting, and evaluation are coordinated—has been given a central role in this latest version.'

• 'Following other ALP national plans, the 2011 version uses a gender or power frame. It states ‘‘[t]he unequal distribution of power and resources between women and men and adherence to rigid … gender roles and stereotypes reflects gendered patterns in the prevalence and perpetration of violence’’.

• 'Its prescriptions include achieving greater gender equality in society, increasing women’s position in politics and improving their economic participation and independence (outcome 1.3). This sits in contrast to the frame used in the Howard government’s PADV, which individualized the problem and focused increasingly on perpetrator programs.'

• 'One area where New Zealand has provided a better integrated response to FDV than Australia is in regards to cultural dimensions associated with family violence. While Australian governments at all levels have undertaken reports into and adopted policies to address FDV issues in indigenous communities, many have failed to address the different context in which this violence occurs, and responses have suffered from lack of vertical and horizontal integration.'

• 'By contrast, in 1984 the New Zealand Labor government created Te Kakano o te Whanau, which was a nationwide strategy to provide services for Maori women victims of incest, rape, sexual abuse, and related violence. Attention has been given to consultation with Maori and to coordination across agencies and indigenous organizations, as well as a number of preventative programs established by iwi authorities at the subnational level.'

• 'These efforts have seen the needs of Maori communities and Maori women in law and policy over time have become institutionalized in the policy-making process. Policy initiatives that have sought to address explicit the needs of Maori women across a number of policy domains have tended to be initiated by Labor governments in New Zealand until recently. In addition, the Ministry of Women’s Affairs established a bicultural focus in its gender policy audits from its inception (by Labor) in 1986.'

• 'In New Zealand FDV policy the preference has been to explicitly focus on family as well as domestic violence, reflecting in part concerns of the Maori community. While this might have constrained the adoption of an explicit feminist-inspired gender or power frame, it has resulted in a more collectively framed and culturally diverse response and facilitated political and cultural traction around the issue FDV. '

• 'In Australia, there appears to be a cascade effect, where one or two states or territories take the lead in FDV initiatives and others then follow. In New Zealand, substantive outcomes have been more punctuated and policy (as opposed to law) reform dependent on Labor being the party in government; Labor governments in New Zealand have also enabled a greater emphasis on cultural diversity compared to Australia.'

• '… we have seen in the Australian federal case evidence of laboratory federalism … . Initiatives in FDV have been initiated subnationally followed by horizontal policy transfer across jurisdictions, and there is also evidence of vertical transfer between the Commonwealth and states and territories … . Policy experimentation and learning have also occurred in New Zealand. The central government has been prepared to create FDV pilot projects … . These projects essentially provide the same function as laboratory federalism—an opportunity to test an innovative policy idea without the risk of widespread failure. They also lead to policy learning. The Hamilton experiment was transferred transnationally, from Minnesota, then upwards to the national level in New Zealand and across the Tasman Sea to Australia, where it was adopted across the states and territories. In both New Zealand and Australia, national FDV policy makers have also been influenced by new policy ideas from elsewhere, including UN initiatives, reflecting the increasing importance of the international arena to policy innovation, learning, and diffusion.'

• 'The second influence of state architecture on FDV policy making relates to integration and coordination. FDV requires intra-jurisdictional integration whatever the state architecture. It is complicated in federal systems because shared competencies require coordination across all subnational units (to enable the portability of protection orders for example), as well as vertically between national and subnational units. The Australian federal government has put significant effort into developing national plans that work across these dimensions.'

• 'The most obvious variance in policy innovation between these two countries lies in two areas: recognition of cultural diversity and the application of gender or power frames. In New Zealand, since the 1980s FDV legal and policy reforms have reflected a strong commitment and responsiveness to the culture and interests of Maori women. The institutionalization of the Treaty of Waitangi, facilitated in part by a centralized state architecture, is an important explanatory factor here. In Australia, the absence of constitutional recognition for indigenous people and the difficulties in achieving collaboration across governments on indigenous issues generally has combined to produce poorly coordinated legal and policy responses for indigenous women.'

• 'Evidence of a stronger articulation of the gender or power aspects of FDV in policy responses in Australia compared with New Zealand can also be linked to state architecture arrangements. Arguably, in Australia this frame has been maintained in policy-making because no one conservative government has been able to permanently (re)frame the problem in a de-gendered manner. When the Howard Coalition government shifted toward a conservative frame at the Commonwealth level in the early 2000s, ALP governments at the subnational level maintained a gendered framing of the issue. When the ALP returned to Canberra in 2007, it drew on earlier federal ALP government initiatives as well as subnational and international developments to draw up its national plan. The influence of state and territory ALP government policy in the area on Federal Labor was facilitated by the integrated nature of the Australian party system, where joint party conferences and formal and informal party networks and intergovernmental machinery encouraged the spread of policy ideas from the periphery to the centre. In New Zealand, the absence of alternative domestic gender or power frames has been challenged by nongovernmental organizations, but neither right- nor left-wing governments have sought to shift the framing of this issue from one that is gender-neutral. We would argue the absence of subnational governments (and the built-in incentives for learning and competition that come with multilevel policy capacity) have contributed to inertia in policy framing on this issue in New Zealand, but a commitment to Maori understandings of the importance of ‘‘family’’ have also prevented a feminist frame from gaining further traction.'

• 'Australia’s centralized federalism and integrated party system has provided some opportunities for innovation but has brought with it coordination challenges, especially for addressing indigenous FDV. New Zealand has not struggled with the same coordination issues, but has had to seek external impetus for its reform agenda.'

Dal Grande et al, 'Domestic violence in South Australia' (2003)

The Australian and New Zealand Journal of Public Health published a 2003 study conducted by Eleanora Dal Grande, Jacqueline Hickling, Anne Taylor and Tony Woollacott of the South Australian Department of Human Services.

Abstract

The introductory pages discuss the effects of domestic violence, the prevalence, and the shortcomings of previous studies. The abstract provides the following information:

• Objective: To determine the self-reported prevalence of domestic violence in South Australian adults and to examine the associated risk factors, demographic factors and related health issues using computer-aided telephone interviewing (CATI) methodology.

• Sample: A representative random sample of South Australian adults aged 18 years and over selected from the Electronic White Pages. Overall, 6,004 interviews were completed (73.1% response rate).

• Results: In total, 17.8% of adults in South Australia reported some form of domestic violence by a current or an ex-partner. Demographic factors such as low household income, unemployment or part- time employment and health variables such as poor to fair self-reported health status and alcohol abuse problems were found to have a significant relationship with domestic violence.

• Conclusions: Approximately one in five South Australian adults report physical and emotional abuse from current or ex-partners, of whom the majority are women who are separated, divorced or never married and on lower incomes. Telephone interviewing is a cost-effective method of identifying prevalence estimates of domestic violence when compared with data collection by way of police reports or hospital emergency statistics.

• Implications: Domestic violence is a serious public health concern often ‘hidden’ by the lack of appropriate data. This study has shown that domestic violence is frequent and has important social, economic and health consequences.

Method

• 'The data for this research, collected in September and October 1999, used SERCIS (Social, Environmental and Risk Context Information System), a telephone monitoring system designed to collect high-quality health data on large samples of the South Australian population. The proportion of households in South Australia with a telephone connected is 97%, hence the potential for non-coverage bias was negligible.'

• 'SERCIS utilises the CATI III (computer-assisted telephone interviewing) system to conduct interviews. All households in South Australia with a telephone connected and the telephone number listed in the Electronic White Pages (EWP) were eligible for selection in the sample.'

• 'At each selected household, the adult with the last birthday was chosen for interview.'

• 'Interviews were conducted by trained female health interviewers in English, Italian, Greek and Vietnamese. The overall sample response rate was 73.1%, with 6,004 completed interviews.'

• 'The domestic violence questions were derived and modified from other interpersonal violence household surveys (Australian Women’s Safety Survey, Canadian Violence Against Women Survey) and to accommodate the inclusion of males in this study. Domestic violence questions were asked of both men and women aged over 18 years and over who were in a relationship or who had a previous significant long-term relationship.'

• 'Respondents were asked if a current partner or an ex-partner had ever physically or emotionally abused them. The definition of domestic violence used in this study is described in Table 1. Respondents were also asked whether they had ever been sexually or physically abused by people other than their partners or ex-partners or whether they had experienced abuse or neglect as a child.'

• 'Demographic variables included in the analyses were: gender; age; area of residence; country of birth; main language spoken at home; marital status; work status; highest educational attainment; pension from the Department of Social Security; and gross an- nual household income.'

• 'The data were weighted by area, age, gender and probability of selection in the household using the ABS Estimated Resident Population for 1997.'

• 'Univariate analyses were conducted for males, females and persons in total who had ever experienced domestic violence com- pared with those who had not. All independent variables that were statistically significant at the 0.25 level in each of the univariate analysis were entered into a logistic regression analysis.'

Definition of Domestic Violence

• Physical abuse
  • Ever hurt physically; for example kicked, choked, pushed or hit with their fist or anything else that could hurt them
  • Ever threatened to use or has used a gun or knife to harm them
  • Ever forced into any sexual activity when they did not want to
• Emotional abuse
  • Spiritual abuse such as denying the practice of religion
  • Social abuse such as restricting social freedom and isolating from family and friends
  • Economic abuse such as withholding money or deliberately giving inadequate funds for household needs
  • Other abuse such as threats and intimidation, constantly being called names or humiliated

Results

• Overall prevalence of domestic violence: 17.8%
• Prevalence of physically violent or abusive relationships: 12%
• Prevalence of emotionally abusive relationships: 14.1%
• Female respondents who experienced domestic violence: 22.9%
• Male respondents who experienced domestic violence: 12.1%
• Domestic violence on more than one occasion: 75.9%
• Persons who reported domestic violence were significantly more likely to
  • be aged between 35 and 54,
  • be separated, divorced or never married,
  • be employed part-time or unemployed,
  • have a gross annual household income of <$40,000,
  • report their health as being fair or poor,
  • have medium self-esteem and alcohol abuse problems,
  • be current smokers,
  • have a mental problem,
  • have suicidal thoughts.
• Percentage of victims who suffered physical hurt: 38.6% (23.8% male, 44.9% female)
  • Percentage reporting injury: 90% (84.8% male, 91.1% female)
    • Bruising: 89.6% male, 90.7% female
    • Cuts/scratches/burns: 36.1% male, 36.8% female
    • Fractures/broken bones: 0.8% males, 19.9% female.
    • Other injuries reported include internal injuries, broken teeth and miscarriage.
• Coping mechanisms:
  • Prescribed medications: 19.9% (7.1% male, 25.4% female)
  • Alcohol/non-prescribed drugs: 15.1% (19.2% male, 13.3% female)
• Percentage who did not contact
  • police: 82% (91.9% male, 77.4% female)
  • non-health services: 72.4% (81.6% male, 68.5% female)
  • health services: 72.1% (73.9% male, 71.3% female)
• Main reasons for not using services was that victims felt they did not want or need help, it was too minor, too much time had elapsed or they were unaware of the services.

Easteal, 'Violence Against Women in the Home' (2003)

In 2003 the Queensland University of Technology Law and Justice Journal published an article by Dr Patricia Easteal (Adjunct Professor in Law at the University of Canberra), that 'first looks at the victims' experiences and then gives examples of how, either through its 'black letter' or implementation, that civil, criminal, family, social security and immigration law obscure and distort the victims' reality through the dominocentric kaleidoscope.' Extracts from a number of letters from victims are published within the article.

Getting the 'Power' Picture into Focus

• Diagram of the 'Victims' Kaleidoscope Picture of Violence' showing eight forms of violence based on control:
  • emotional denigration,
  • emotional jealousy,
  • threats,
  • financial,
  • using kids, pets, property,
  • physical,
  • sexual,
  • isolation.

• 'There are many manifestations of violence aside from the more apparent and harder to hide broken bones and bruises. These less visible acts, just like slaps and shoves, are about a need to exert power and are enacted through emotional abuses, rape, financial exploitation, damaging property, injuring pets, harming the children and death threats. The different masks of control are on-going, generally gets more serious and may be joined by a variety of other physical expressions of power. Overall, the abusive behaviours tend to escalate over time but it is a slow, insidious and isolating process punctuated by periods of remorse.'

• 'Leaving the relationship does not necessarily mean the violence will stop. In the ABS Women's Safety Survey, of those who had experienced violence by a previous partner, for more than one third (35.1%) the violence continued after separation.'

• 'Almost half of spousal homicides committed by men targeted the killing of women who had left them, or were attempting to leave them.'

• 'The mental, psychological and spiritual abuses, generally precede other types of violence. … [L]imiting or preventing contact with friends and family (social control) is frequently reported.

• 'The "perpetrator" partner in the relationship may take absolute control of the finances doling out little or no money to the other. Immigrant women, particularly those who are sponsored to Australia, are particularly vulnerable due to their relative lack of knowledge about financial and welfare entitlements.'

• '… economic control does not always stop after estrangement.'

• 'United States studies have found that 10-14 per cent of all married women in that country have been or will be raped by their spouse and that the highest risk period may be during or after a relationship breakdown.

• 'The ABS Women's Safety Survey reveals that only 1% of those currently in a relationship admitted to sexual assault by a current partner whilst 10.2% said it had taken place in a previous relationship.'

• 'We also know from various rape victim surveys that husbands or ex-partners are named as the perpetrator by between 13 and 15 per cent of respondents. And, for just over three-quarters of the marital rape victims in Voices of the Survivors, the sexual assault was part of a general pattern of physical violence. In that study and others, rape by a partner or ex-partner correlated with the highest frequency of additional injuries, even more so than rape by a stranger.'

• 'When raping his partner, the husband may not use physical force. Within the dynamics of a violent marriage, there are other types of coercion at his disposal. The threat of violence either toward her or the children can act to negate her consent. Given the range of coercion and the mythology about what constitutes resistance, rape and 'conjugal rights', undoubtedly many women do not see their husbands' behaviour as sexual assault.'

• 'Between four to nine percent of women are abused during their pregnancy and/or after the birth.'

• 'In the Women's Safety Survey of those who had experienced violence by a previous partner, violence took place during pregnancy for 41.7%, for just about half of these. it began during that time.'

• 'Theoretical explanations suggest that jealousy or anger toward the unborn child, pregnancy specific violence not directed to the child or 'business (violence) as usual' may be the triggers.'

The Victims' Kaleidoscopes: Effects

• 'Narrow definitions of violence and the power of words to construct reality may help to obscure the violence from the victim's own vision.'

• 'Analysis of the ABS data shows that cases without injury, perpetrated by a current partner, experienced by the young and uneducated 'were less likely than other types of assault to be reported and to result in the use of victim services'.

• 'Amongst the adolescent sample, risk increased with a non-biological male, lower socio-economic and/or indigenous backgrounds. Similarly, in the ABS sample, almost one quarter (23%) of women who had ever been married or in a de facto relationship had experienced violence (physical, sexual, threats or attempts).'

• 'Only 8% of those currently in relationship reported violence, which is in marked contrast to the 42.4% of those ever in a relationship, who responded affirmatively.'

The Witnesses' Kaleidoscope

• 'Two Australian research projects looked at frequency of violence against women in the home: the ABS Safety Survey of adult women and their experiences of partner or ex- partner violence and one study that sampled 5,000 Australians aged between 12 and 20. Almost one fourth of the latter respondents had witnessed an incident of physical or domestic violence against their mother or stepmother.

• 'Often children are a part of the household. For example, in 1997/98, 46 per cent of the children and young people accompanying victims of domestic violence to supported accommodation services were children aged under five years; 43.6 per cent were aged between five and 12 years; and 10.1 per cent were aged 13-16 years. Many of these children had witnessed their mothers' victimisation.'

• 'It is difficult though to isolate the effects of witnessing since the presence of domestic violence increases the likelihood of other child maltreatment in the family - it has been estimated that between 40-60% of men who abuse their partners also inflict violence upon the children in the family.'

• 'It is suggested that the degree of effect is affected by age, coping strategies and individual resiliency; gender; the nature, severity and frequency of the violence (witnessing domestic violence and also being physically maltreated, is associated with higher levels of distress and/or acting out, compared with only witnessing violence); whether the pattern of violence has ceased; attendant environmental factors, such as the mother's ability to parent, and the availability of legal and social protection are also important in reducing or exacerbating effects.'

• 'Having someone caring and trustworthy to talk to has been identified as an important ameliorator.'

• 'In a recent Australian study involving focus groups, witness/children describe effects on their scholastic performances and impacts on their self-esteem, suicidal ideation and difficulties in trusting others.'

• 'There are other possible consequences that affect the child's well being at the time of the violence and later in life. These include developing a hyper-vigilance to potential threat, a greater risk of emotional and behavioural problems, and enhanced potential for conflict in relationships.'

Colliding (at times) with the Dominocentric Kaleidoscope

• 'Without an understanding or willingness-to look at the pattern of domestic violence, the one 'alleged assault' or incident that propels the woman into contact with a friend, acquaintance, police or gate-keeper, may be decontextualised and seen as a spontaneous, impulsive (no premeditation) action (more easily trivialised) … As we have seen though, through the kaleidoscope of the victim, the physical assault is but one, often relatively insignificant, component of the violence. Yet, the courts (and many in the community) tend to look at the seriousness of physical injury, and not at the longer lasting emotional harms.'

• 'Phrases like "wife abuse" and "battered wives" and the term "domestic violence" understate the seriousness and criminality of violence within the home. "Domestic" means private, or relatively unimportant in contrast to the "real" world outside of the home. By prefixing violence with the word "domestic", as a general category of offence, it becomes less criminal and more easily seen as "relationship problems".

• 'In one 1988 survey initiated by the Office of the Status of Women, nearly one in five Australians believed that it was acceptable for a man to use physical violence against his wife under certain circumstances. A follow-up 1995 survey did show some enlightenment about these issues with 93% agreeing that domestic violence was criminal and four fifths stating that it was not a private matter. However, 18% still perceived circumstances in which physical force was acceptable (mostly self-defence). Only 8% believed that it was justified when the man is provoked as compared to 14% in 1987 (eg infidelity, nagging).'

• 'Similarly, in the Partnerships Against Violence research that sampled 5,000 Australians aged between 12 and 20, only a small proportion did not identify extreme acts of violence as domestic violence. Females were more apt to label acts of domestic violence with males normalizing them. Over one quarter (27%) of respondents still believed that that it is private and should be handled by the family. Not surprisingly, those who minimized DV were apt to hold more traditional attitudes about gender roles.'

• 'Concurrent with community education programming has been a rather strong backlash in Australia by men's rights groups who argue that males experience a similar amount of violence by female partners, that many women obtain domestic violence orders as a strategy in divorce cases and that the criminal justice system is overly sympathetic to the women (as is government funding).'

• '"... backlash has attempted to reinforce old, and reimpose new, practices of subjugation and silences in relation to sexual and domestic violence."'

• 'In fact, despite the plethora of legal reform to deal with violence against women in the home, when we next turn to the responses of the criminal justice and other legal systems to domestic violence, we find variation 0 with adherence to that trivialising that results from perception of domestic violence through at least some of the lenses shown in Figure 2.'

In the Context of Issuing Protection Orders

• 'The wording of domestic violence civil legislation, such as the laws enacted in each Australian jurisdiction through the 1980s, can affect police response. For instance, the Model Criminal Code Committee's "black letter law" has been found wanting with the persistence of: a too narrow definition, a precipitating or 'trigger' incident and proof that the defendant is likely to perpetrate another violent act.

• 'Further, in most jurisdictions, the onus of prosecution or action is placed upon the victim. Plus to some unknown extent, there is still a view of violence against women as involving mutuality and provocation. As one officer summonsed to a domestic violence call in the ACT told the victim, "The reason men hit women is that you've got the gift of gab and you overpower men in an argument." And in Queensland, recent research has revealed a similar minimising of the violence with more than half of the DVO applications made by the "aggrieved spouse".'

• 'In NSW where police must apply for orders (except for certain circumstances), they initiated 52% in 1995 in contrast to 16% of the 1994/1995 protection orders applications in Victoria.'

• 'Research in the ACT revealed that, although empowered to do so (but not required) police were reluctant to take out domestic violence orders (DVOs) on behalf of women, most believing that the victim should be the applicant for an order.'

• '… studies have shown that some Magistrates do examine women's experiences through at least a few of the dominant lenses. This is illustrated by their occasional lack of acceptance of a woman's reasonable fear as sufficient grounds for granting an intervention order.'

• 'For these magistrates, physical signs of abuse were necessary to fulfil their image of violence.'

• 'In the Northern Territory some failed to give women an order by treating the violence as a family problem or as something requiring counselling and as in part the responsibility of the victim. They were able to do this in part by not looking at the pattern of the behaviour and simply noting the most recent action in a decontextualised and trivialising way.'

• 'Similar requirements of recent physical violence were identified in a survey by the NSW Judicial Commission, in Victorian research and in a Queensland study.'

• 'Most did believe though (in response to specific queries) that they understood the uniqueness of violence in the home and the need to understand the process and context. "Blaming the victim" or provocation can be discerned though from the 54% in NSW 54 and the 42% of Queensland magistrates who agreed with the statement that "it takes two to tango in any relationship".'

• '"I think that in some cases this is true. Some perpetrators are simply using victims as punching bags. Others, however, finally snap when outmatched verbally in an argument."'

In the Context of Breaches of Protection Orders

• 'Three studies of police and breaches (one in Victoria and two in NSW) have found a high rate of non-action with officers certainly not charging if the breach did not include physical assault or property damage.'

• 'Officers may even witness breaches at police stations during contact ordered handovers and not act by identifying the incident as a family matter or parental conflict. Police may play another more intangible role in decisions not to arrest. As Katzen points out, the woman's wishes can be influenced by officers neither explaining the criminality of the act(s) or the range of options available.'

• 'Again, this lack of police use of their powers could be, at least in part, a consequence of what they perceive of as a less than punitive approach by the courts on breaches. [The] Department for Justice … found that in Victoria, 1993, bail was granted in 76% of the breaches.'

• 'Women in a Queensland study did identify such trivializing with complaints that magistrates were failing to either penalize or direct offenders to programs … One possible solution suggested was to enact a specific domestic violence assault offence.'

• 'A NSW police officer discussing a man arrested four times for breach of a protection order stated that on each of these occasions, the penalty imposed for the breach was a good behaviour bond.'

• 'Such minimising by magistrates has enabled tragic outcomes to occur by releasing those who breach on bail … Some of these cases, such as Andrea Patrick's murder in 1993, receive a great deal of media coverage in part because they were preceded by a lengthy period of stalking, protection orders and breaches.'

• '… the breach is perhaps being compared to a male standard of a one-off assault that stands by itself.'

• '"Arguably then, the effect of domestic violence legislation has been to separate 'intimate partner' violence out from other forms of assault. The repositioning of violence between intimate partners within the private, less publicly accountable sphere has been to subtly construct it against the 'more serious' categories of criminally vilified violence. Violence between intimates can now be legitimately examined in a different light to criminal matters and different assumptions and rules are applied to the way it is dealt with. The construction of domestic violence as a counter poise to 'more serious' forms of violence illustrates the continuing relevance of gender to the issue."'

In the Context of Defining Provocation or Self-Defence

• '"... many solicitors, judges and/or juries do not possess the requisite knowledge of the dynamics of domestic violence to be in any position to judge the availability of the defence generally and its applicability in the particular case."'

• 'In their judgments of women who have killed a violent partner, judges sometimes use phrases like "marital problems", "matrimonial discord", "domestic dispute", "difficult relationship" and "stormy" relationship to summarise antecedents (such as extreme jealousy, possessiveness, threats to kill with sharp instruments or guns, and much physical abuse such as violent beatings, punching, poking, prodding) to the homicide. These 'umbrella' labels trivialise even the most horrific acts of violence. They each neutralise the role of the perpetrator allocating responsibility to all parties.'

• 'Thus, in numerous cases, one finds judges remarking "… [however] even in situations of acute domestic violence, the community cannot condone the extreme measure of the killing of the aggressor party... It cannot be accepted that the victim may take the law into her own hands to the extent of extinguishing the life of another."'

• 'This denial of the seriousness or the effects of the precipitating violence was evident when in sentencing Lynette Vandersee to a minimum term of five years imprisonment, the judge stated that the degree of provocation "should be assessed as medium, rather than great." He iterated that the dead man: "had sought to control and dominate the defendant and used cruel and abusive language to the prisoner.., made cruel comments about her alleged lack of intelligence and about her physical appearance ... smacking her legs and buttocks with a ruler, pinching her, lightly punching her in the stomach or arm, twisting her nipples and requiring her to have sexual intercourse with him, when she was unwilling, indicating that he was using the prisoner for his own sexual relief."'

• 'Another example – R v McIntyre, Justice Mclnemey said, "She was free to leave at any time"; a viewpoint that disregards the power of emotional abuses to erode self-esteem and the other dynamics that contribute to making it very difficult for the woman to escape.'

• 'In R v Vandersee, Justice James highlighted the period of time that "elapsed between the last provocative conduct on the part of the deceased before he went to bed and the killing of the deceased." However, as Stubbs and Tolmie note, such a view of the victim's perception of threat is: "(W)holly inappropriate because the danger that women who are habitually and seriously abused face is not so much embodied in a single attack as in the day to day experience of living under continuous threat."'

In the Context of Marital Rape

• 'Since 1981, Australian jurisdictions have struck down the immunity of husbands from prosecution and a license to rape.'

• 'However, very few rapes in marriage make it to court. As mentioned earlier, part of the reason is non-reporting. Yet, even if the victim who is still cohabiting with her perpetrator does report, one suspects from both the virtual absence of these cases (particularly those in which the couple are still cohabiting), plus from comments in which recent consensual sex casts doubt upon the legitimacy of the act as a rape, that the court's ability to construct rape within cohabitation remains highly problematic.'

• '"Given that the last of those occasions [reconciliation] was only a month or so before this offence took place, it might not be possible to say that the relationship was then obviously at an end. The respondent probably hoped to repair the rupture and resume living with his wife ... However, the fact was that the parties were living apart, and this cannot be explained as the case of a husband losing his self-control during the continuance of the cohabitation."'

• 'Rape is equated with sex and male sexuality as irrepressible plus the underlying premise appears to be that if the victim had engaged in consensual sex with her ex-partner the day before or in the recent, any future act would be difficult to define as rape.… As a consequence of these values, the cases that are prosecuted are only representative of the most violent (estranged) marital rapes and do not reflect many women's experience of coercion. Neither the language nor the legal interpretation of consent correspond with the victim/women's reality nor capture the range of coercive behaviours such as interpersonal intimidation that involves threats that are not only physical.'

In the Context of Immigration Law

• 'In the early 1990s, remedies were enacted to ameliorate the plight of women who migrated to Australia as the fianc6 or spouse of an Australian citizen who then abused them and acted to have them denied permanent residency if they left the violent home. These reforms enabled such women to apply for permanent residency if they could show a restraining order, a Family Law Act injunction or a court conviction or finding of guilt against the sponsor for assault. … Modified in 1995 to broaden the means of establishing that violence had taken place, the Regulation added 'acceptable evidence that violence has been suffered' to the other means of proof. 'Acceptable evidence' had to consist of a statutory declaration by the person who had experienced the violence and two by 'competent' people (or one declaration by a 'competent' person and a police record of assault). The two 'experts' stat decs must be from different categories or occupations such as doctors, psychologists plus women's service staff like the coordinator of a woman's refuge.'

• '… the expert must not just note consistency between a person's presentation and their account of domestic violence, or even the occurrence of domestic violence but that the competent person must "express an opinion in very specific terms, namely, as to whether relevant domestic violence as defined in regulation 1.23 has been suffered by a person. … This involves not only an opinion that past acts of violence have occurred but also an assessment of the state of mind of the alleged victim."'

• 'Obtaining this degree of specificity can be problematic even for women who have sought help, and more so for those unable to obtain professional assistance due to their fear, shame and lack of access to services. Further, the "stat dec" process is only available if an actual visa application has been made. … A sponsor may also allege that the woman only married him for a visa.'

• 'Unlike some other areas of law, certain types of emotional abuse do qualify for the label 'domestic violence'; however, they must be considered by tribunal members to have been serious enough to cause fear or apprehension for the individual's personal well-being or safety.'

• 'Malik is cited in many of the post-2000 relevant cases as further delineating the boundaries of serious emotional abuse as excluding acts that just have the "effect of causing diminution of a person's feeling of well being". Thus, in Wright, the hearing officer included emotional deprivation, financial deprivation and manipulation since their effects extended beyond reduced "well-being" and caused fear or apprehension. And in Kularatne, the tribunal found that the sponsor's hostile conduct, such as raising his voice, refusing to let his partner out of the house, threatening to end the relationship and her fear of physical violence if she argued with him did constitute domestic violence since they caused the woman to suffer"'fear or apprehension about her personal well- being and safety."'

In the Context of Social Security

• '… duress induced by violence can play another distinct role in the context of social security fraud. Besides forcing the woman to remain in the relationship, the batterer can force her "through physical bashings and threats" to continue to receive payments. Taking the unusual step of introducing experts to testify about the effects of domestic violence, Shirley Stephenson was acquitted of seven counts of imposing upon the Commonwealth, contrary to s 29B of the Crimes Act 1914 (Cth) by obtaining two unemployment benefits and rent assistance ($45,000) from the Department of Social Security when she was employed. The matter was defended on the basis of duress. Her defence was able to match Shirley Stephenson's behaviour against the standard or test of whether "an average person of ordinary firmness of mind, of like age and sex, in like circumstances, involving like risks in respect of the alternatives open, would have availed herself of the opportunity in question'."

In the Context of the Family Court and Children Matters

• 'In the Family Court, traditionally, the effects of witnessing and/or the correlation of violence towards a partner with that directed at children have not been understood as illustrated in Justice Murray's comment in Heidt: "there is no suggestion that Mr Heidt has ever mistreated his children with the violence with which he has treated his wife. … Mr H's affection for his children is evident, and in assessing his potential as a custodial parent I have largely disregarded his behaviour as a husband."'

• 'The mid-1990s evidenced some judicial recognition that spousal violence could be a risk to children's emotional development: "For children to grow up in a climate of potentially violent and dominating relationship between their parents seems to be to be an unacceptable model of family relationships, and would be very likely to create a situation of stress and fear that may well be damaging over a period. It is quite wrong, in my opinion, to assume that violence can be relevant only if it is directed at the children or takes place in their presence."'

• 'Some judges are still finding that the violence was "somehow a product of the relationship between the parties rather than of the husband's personality", an exaggeration of a histrionic woman or describing pushing or hitting with an open hand which sometimes resulted in bruising to her face and body as "of a relatively minor nature and do not appear to be part of any long term strategy on the part of the husband to cause harm to the wife or to the children".'

• 'And, post the 1995 reforms discussed next, one still hears judicial comments like those in Heidt that entirely negate the effects of witnessing: "Although there have been allegations made by the wife of violence perpetrated upon her by the husband, culminating in the vicious assault upon her on 28-29 December 1996, there is no evidence to suggest that the husband has behaved inappropriately towards the children, or exhibited any violence towards them."'

• 'A higher profile for abuse issues was reflected in statutory law with the enactment in late 1995 of the Family Law Reform Act 1995 (Cth). Now specified as a factor relevant to decisions made about the "best interests of the children", the need to ensure safety from family violence was now stated as one of the guiding policy principles. However, while the Act states that DV is a relevant factor in making orders what has not been outlined is how it should be taken into account. Further as Behrens emphasises, the assessment of 'best interests' is an indeterminate process: "There is an attempt in the legislation to give the best interests standard some content. One way in which this occurs is through the mechanism of a checklist of factors (s 68F(2)) ... it leaves a fairly broad discretion. The checklist does not, for example, exclude particular outcomes. Nor is any priority of factors indicated. The normative content of the list consists largely of hints- nothing stronger. For example, paragraph (b) requires the decision-maker to examine the nature of the relationships involved, but does not indicate what kinds of relationships are to be valued. There is a paragraph at the end of the subsection that enables consideration of 'any other fact or circumstance that the court thinks is relevant'".'

• 'Given the relative heavy weighting of shared parental responsibility, consistency between family violence orders and contact orders can be a problem despite s 68K which "requires (subject to best interests!) that the court ensure the order is consistent with a family violence order and does not expose a person to an unacceptable risk of family violence." If there is inconsistency the order made under the Family Law Act 1975 (Cth) prevails. Thus, contact conditions can make enforcement of a civil protection order difficult. In one NSW report, women reported that when they turned to the police for breaches of AVOs, the officers on occasion had advised them that there had not been a breach, as contact was permitted by the order through a pro forma condition, which allowed the defendant to contact the protected person for the purpose of arranging, or exercising contact with the children as ordered by the Family Court.'

Slow Re-Focusing?

• 'A recent evaluation of … the ACT Interagency Family Violence Intervention Program … showed that over the two years that the integrated model had been operating, there were increases in the number of: family violence cases commenced and completed during a 12 month period, matters finalised by way of an early plea of guilty without the police being required to produce a full brief of evidence and in number of defendants convicted. Certainly the ACT Program has shown a dramatic difference in attitudes between officers who, had participated in special training sessions. They were more likely to disagree (68%) that victims who stay with their violent partners have only themselves to blame. This compared to only 12% ofthenon-trained officers. More than half (56%) of those who had been specially trained disagreed that "Spousal assault is often the result of provocation by the victim". This contrasts markedly with the 61% of untrained who agreed with the assertion.'

Kaspiew, 'Family violence in children's cases under the Family Law Act 1975 (Cth)' (2008)

In 2008 the Journal of Family Studies published an article by Rae R Kaspiew (Research Fellow, Australian Institute of Family Studies), the abstract of which states:

The issue of family violence poses one of the most significant challenges in making post-separation parenting arrangements. Australian Institute of Family Studies research on allegations of family violence in family law children’s proceedings has confirmed that under the previous family law framework, the issue of family violence was not dealt with effectively. This article examines the legal context for the report’s findings in Part I and considers how family violence will be dealt with under the new family law system in Part II.

Introduction

• 'Allegations of Family Violence and Child Abuse in Family Law Children’s Proceedings: A Pre-Reform Study released by the Australian Institute of Family Studies (AIFS), confirms that finding effective ways to deal with family violence remains a key challenge for family law system professionals including lawyers, social scientists and judicial officers. Although the Family Court of Australia (FCoA) has been proactive in addressing the issue through its 2004 Family Violence Strategy, the AIFS Report has shown that decision making in parenting cases involving violence has largely been taking place in a factual vacuum, because in many cases allegations of violence (most of a severe nature) are being made with little supporting detail or evidence. Apart from a small minority of cases in which evidence of high probative value was available, the report provides further evidence that few links were made in decision- making between a history of violence and outcomes in parenting cases. This article examines the law that was applicable when the cases examined in the AIFS Report (hereafter the "Allegations of Family Violence Report") were in progress and considers how family violence may be dealt with under the new regime.'

• 'An overlap between family violence and various types of child abuse is being substantiated, with estimates of the extent of co-existence varying between 30% and 60%.'

• 'Social science typologies, such as those developed by Johnson (1995) and Johnston and Campbell (1993) demonstrate how increasingly sophisticated approaches to conceptualising family violence have become. A common thread through these approaches is that not all violence is the same, and that it occurs upon a continuum of severity ranging from situation-based "conflict" to an extreme form of "patriarchal" control marked by severe violence and the exertion of control through mechanisms such as emotional and verbal abuse, social isolation and restriction of access to financial resources.'

• 'These developments point to a need for par- enting arrangements to be developed in the con- text of a detailed insight into the nature of any history of violence. In a specifically legal context, it can shed light on the respective bargaining positions of the parties and inform the quality of "consent" that may be available from a party who has been the target of violence in the context of mediated outcomes. Knowledge of the type of violence and the way it has impacted upon children is crucial to informing views as to the potential value (or detriment) to a child of an ongoing relationship with a perpetrator.'

Part 1: Past Practice

• 'In reflecting on the legislative and jurisprudential background of approaches to the issue of family violence, three broad phases are evident. … The context for the findings of the Allegations of Family Violence Report is the third phase, in which a significant tension emerged between legislative acknowledgement of the relevance of family violence to children’s matters and the emphasis placed on the child’s right to contact.'

• '… research showed that parenting orders made on an interim basis were overturned after a trial on the basis that the interim arrangements were not in the child’s best interests, often because of concerns about family violence.'

Reform Act 1995

• 'The third phase in the development of the Court’s approach to family violence occurred in the context of the operation of the Family Law Reform Act 1995 (‘Reform Act 1995’). With this Act came the first legislative acknowledgment of the relevance of family violence to children’s matters. Family violence involving the child or a member of their family was referred to in the welfare-based checklist (Reform Act 1995 s68F(2)(i)) which outlined the factors the Court was to consider in deciding what orders would be in the child’s ‘best interests’ (s65E). The need to protect children from physical or psychological harm from abuse, ill-treatment, violence or other behaviour had been incorporated into this checklist in amendments made in 1991 and this was widened in 1995 to refer to ‘direct or indirect’ exposure to such risks (s68F(2)(g)). Additionally, a definition of family violence was inserted into the section of the Act governing children’s matters (s60D).'

• 'A range of research has suggested that the pro-contact philosophy of the Reform Act 1995 had a profound impact on approaches to post-separation parenthood at several levels, including legal professional practice and court-based approaches. A significant aspect of this impact has been the accumulation of considerable ambiguity about the way that allegations of a history of violence should influence the formulation of parenting orders. This is evident in research that has examined the impact of the Reform Act 1995, and trends in the jurisprudence concerning allegations of violence and abuse and ongoing parent–child relationships.

• '… former FCoA judge, John Fogarty, … argued that current Full Court approaches "state the problem in a way that suggests the adverse consequences of one wrong conclusion – a false finding that there has been sexual abuse (when the child has actually not been abused) – are necessarily more damaging than those of the other wrong conclusion – a false finding that there has not been sexual abuse (when in fact the child was abused)".’

Widespread culture

• 'The significance of this emphasis in Full Court decision-making … is indicative of a widespread culture that places great emphasis on maintaining parent–child relationships and requires high benchmarks of proof as to the existence of a risk to a child (including as a result of exposure to family violence). The impact of these cultural values at the level of practice has been confirmed by the findings of the Allegations of Family Violence Report. In particular, the findings support arguments based on previous small scale research, that allegations of violence must have very strong evidential support before it becomes tactically feasible to link concerns about a history of violence with arguments for no contact or supervised contact.

• 'While the design of the Allegations of Violence Report does not allow the causes of the silence around the majority of family violence allegations to be definitively addressed, other research suggests that a range of factors may contribute. Two possibly interlinked considerations may be the reluctance of targets of family violence to disclose its existence and a poor understanding of family violence among some members of the legal profession.'

• 'The salient point from the research is that an acceptance of ongoing, unsupervised contact became the default position as a result of mutually reinforcing judicial and professional approaches in a context where most allegations of violence were unsupported by evidence or detail.'

Summary

• 'If the issue of violence is not examined in court and court-related processes, then there is no basis for decision-makers to consider:
  • Whether the child has been exposed to the violence and the impact of that exposure;
  • Whether the child is still being exposed to violence at changeovers;
  • Whether the child is exposed to violence when spending time with the alleged perpetrator;
  • The nature of the child’s relationship with the alleged perpetrator of the violence;
  • The nature of the parenting that the child may be exposed to when spending time with the alleged perpetrator …;
  • The alleged perpetrator’s motivation for bring- ing legal proceedings in light of increasing recognition that such processes may be used to maintain control after separation;
  • The impact on the primary caregiver of having to facilitate the continued relationship between a violent former partner and the child. This issue has been recognised as a relevant consideration in Australian case law.'

• 'In light of the private nature of family violence, it would appear to be unsafe to proceed on the assumption that allegations of family violence are untrue unless a high standard of proof is met, in the context of legal proceedings oriented toward establishing what parenting arrangements are in the best interests of children. … However, the Allegations of Family Violence Report indicates that this has been the practice, even in cases where the allegations indicate a severe level of violence.

• 'Pryor and Rodgers concluded that the "assumption that contact per se is measurably good for children does not stand up to close scrutiny".'

Part 2: Future Challenges

• 'The "family law system" now looks very different from the one that was operative when the cases in the Allegations of Family Violence Report were in progress. Both the substantive legal framework and the process for dealing with parenting matters have changed significantly as a result of the enactment of the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth). The system requires the issue of family violence to be explicitly considered at several key points. In addition, the FCoA of Australia has implemented its own Family Violence Strategy to inform court-based processes and procedures. A detailed discussion of these developments is beyond the scope of this article, but the following brief discussion of some aspects of the new scheme suggests that allegations of family violence will have to be given greater consideration at a number of points in the system.'

• 'An overarching point is that the need to protect children from physical or psychological harm and from being subjected to, or exposed to, abuse, neglect or family violence has been ele- vated to an object in the reformed Part VII of the FLA (s60B(1)). This elevation reflects the increased emphasis to be placed on the issue of family violence in the new system and is designed to promote understanding that protecting children from harm is as important as the shared parenting aims also outlined in the objects provisions.'

• 'Under the new system, a history of family violence ought to become known to the relevant professionals when a parenting matter first enters the system due to the application of screening procedures in the context of compulsory family dispute resolution (FDR). From July 2007, it became compulsory for most people involved in a parenting dispute to attend FDR before filing an application for a Court order (s60I(5)). Cases involving a history of family violence and abuse comprise a key exception to this requirement (s60I(9)(b)). This means that where such a history can be established on "reasonable grounds", parties in such cases may file an application for their matter to be heard in court. However, parties in matters where such a history is present may still choose to use family dispute resolution processes (s60J).'

• 'Just as a history of violence is relevant in determining the procedural pathway a parenting dispute may take, it will also determine how the substantive law will be applied in that dispute. In addition to giving greater prominence to the need to protect children from violence and abuse, the SPR Act 2006 introduced a presumption of favour of equal shared parental responsibility (s61DA).'

Pertinent concerns

• 'Alongside the provisions that direct attention to family violence are a series of other changes that have been made, which have given rise to concerns that issues relating to family violence may not necessarily be brought forth in parenting disputes. Three of these are particularly relevant to this discussion: a tighter definition of family violence, a provision which obligates Courts to award costs against a party found to have made false statements in proceedings, and the introduction of a "friendly parent criterion".'

• 'Turning first to the issue of definition, the legislative definition of ‘family violence’ (s4) has become semi-objective in the new framework. … The addition of the word ‘reasonable’ imports an objective measure into the definition, although this is qualified by a note requiring the Court to consider the particular circumstances of the target and whether these would cause a reasonable person to feel fearful or apprehensive. Instead of standing in the shoes of the target of the violence as the previous Reform Act 1995 s 60D subjective definition required, the Court is now required to consider whether fear or apprehension would be experienced by a reasonable person in the circumstances of the target. Concerns raised about the insertion of the semi-objective measure focus on the arguments that the term reasonable diverts attention from the subjective experience of the target and downplays the impact that a history of violence and control may have on the meanings that particular actions may have for targets.'

• 'The second provision that has caused concern about facilitating disclosures of violence in the new system is the insertion of a provision that requires that the court must make a costs order against a party who is found to have knowingly made "false allegations or statements" (SPR Act 2006 s117AB). The Explanatory Memorandum to the SPR 2005 Bill noted that this provision "attempts to address concerns that allegations of family violence can be easily made and may be taken into account in family law proceedings". The then Attorney-General, Mr Philip Ruddock, had also publicly expressed concerns about false denials, as well as false allegations. The s117AB provision aroused concerns that it would inhibit disclosures of family violence being made and the Senate Legal and Constitutional Legislation Committee recommended against the inclusion of the provision in the bill, pending the completion of the Allegations of Family Violence Report. Given that Moloney et al’s research was unable to substantiate claims that ‘false’ allegations of family violence were common in the system, the Legal and Constitutional Legislation Committee’s concern that "it is unclear whether this is a problem that needs solving" remains justified.

• 'Finally, the framework now includes an explicit "friendly parent criterion", which requires the court to consider each parent’s attitude to facilitating the other parent’s relationship with the child (SPR Act 2006 s60CC(3)(c)). USA research has indicated that such provisions operate to ensure that less emphasis is placed on family violence in the context of presumptions in favour of "joint custody". … Australian commentators have argued that the structure of the SPR Act 2006 raises similar concerns and may create a conflict between being a "friendly parent" and raising legitimate concerns about child safety and wellbeing.'

Conclusion

• 'In conclusion, this discussion of past and present legal frameworks has suggested that family violence is more prominent as an explicit consideration now than it was previously, though some aspects of the SPR 2006 could arguably discourage or impede disclosure.'

Nancarrow and Struthers, 'The Growth of Domestic Violence Responses in Australia' (1995)

In 1995 Social Alternatives published a brief article on domestic violence by Heather Nancarrow and Karen Struthers.

Introduction

• 'By the end of the 1980s all state and territory government had conducted some form of investigation into domestic violence. … The only State currently without specific domestic violence legislation is Western Australia.'

• 'These legislative initiatives were accompanied by widespread reforms in a range of areas within government, most notably policing, and the implementation of broad-based community education strategies. These State and Federal initiatives gave enormous impetus to the ongoing work of feminists who had struggled to provide support to women and children affected by domestic violence in the face of political opposition to the state's intervention into "private" violence. By the end of the 1980s it seemed the message had been taken on board and the governments around the country were more serious about their responsibility to ensure the safety of all citizens. Such commitment was demonstrated by the provision of government funding for support and intervention services, and the establishment of coordinating structures both within government and across government and the community sector.'

How have these gains been made?

• 'The struggle hasn't been easy and many of the women involved in this area of social change have experienced severe personal criticism for "breaking up the family" and being "anti-men". In fact, feminists are increasingly being blamed for violence itself with some commentators arguing that it is due to the change in sex-roles brought about by the feminist movement, that men have "lost" their way and are reacting angrily and violently, although this doesn't explain pre-feminist domestic violence.'

• 'Myths such as, "women provoke their husbands", and "women seek out violent men", abound. These views derive from values and beliefs based on negative stereo-types of women. It is extremely difficult to overturn these beliefs because of the extent to which they are culturally embedded.'

• 'Most action by women has been voluntary rather than paid. Women have rallied together for many years setting up 'safe houses', counselling services, raising community awareness and seeking law reform. In developed countries [including] Australia … many of these activities now receive government funding and are well established within the social service structure of those countries. Numerous countries, particularly in the Pacific Islands, are looking to Australia for strategies and models to address the issue of domestic violence in their communities.

• 'In Australia, the conduct of domestic violence task force investigations during the 1980s resulted from the relentless lobbying of feminists, those within the women's refuge movement in particular. This period was also characterised by the … social justice agendas of Labor government, the growing attention to enhancing the status of women in Australia, the growing numbers of women in political roles and senior executive positions within government, and the relentless efforts of thousands of women meant that the barriers were finally coming down. Violence against women was increasingly being acknowledged as a product of the unequal status of women relative to men.'

• 'Queensland's Domestic Violence Task Force was conducted under, and reported to, the National Party Government in 1988. Its leader Joh Bjelke-Petersen, appeared to believe that Queensland didn't experience problems such as domestic violence, or if it did "it was no business of the government to interfere in private family matters" — keeping families together took precedence over the safety of women and children being abused at home. For strategies to be successful in this context they often had to be framed as pro-family even though the legislative changes and other strategies were in fact aimed at freeing women from a violent home life. This was not a major barrier to the creative and committed women in the community and in government, and their supporters. They had become highly skilled negotiators …'

• '… in Queensland domestic violence was still being viewed as a welfare issue rather than a criminal problem. This is evident from the persistent negative response to women subjected to domestic violence from some police and magistrates, in spite of extensive training of police (and education of magistrates by the Domestic Violence Policy Unit in Queensland) on this issue.'

Current responses to domestic violence

• 'State and territory governments have established, to varying degrees and with varying levels of success, Domestic Violence Units within Police Services and other areas of government; protocols for health care providers on the identification and management of domestic violence; training for professional bodies; educational programs on domestic and dating violence for school students; and the inclusion of domestic violence in professional tertiary education programs among other initiatives. The federal government has also participated in action to counter domestic violence. This includes financial support for women's refuges through the Supported Accommodation Assistance Program (SAAP); undertaking programs such as the 1989 "Break the Silence" and the 1993 "Stop Violence Against Women" community awareness campaigns; the establishment of the National Committee on Violence Against Women (NCVAW); and through the provision of grants for domestic violence initiatives under the National Agenda for Women Grants Program. The NCVAW has provided an excellent framework for approaching violence against women at the national level, in its National Strategy on Violence Against Women, 1992. … As the NCVAW no longer exists it seems that the implementation of the National Strategy is largely to be left to individual states, although progress to date raises concern about the effectiveness of this approach. At the end of 1993, a year of the Strategy had been embraced by the Prime Minister, the National Strategy had been discussed at only six of the National Councils and in each case it was the Queensland representatives who had placed it on the agenda. This fact may be attributed to the existence of Queensland's Statement of Policy on the Prevention of Violence Against Women, launched shortly before the National Strategy.'

• 'The NCVAW also produced a number of other valuable resources, such as National Guidelines for Training in the Area of Violence Against Women, which are to be implemented at the State level. Unfortunately, it appears that such implementation in many States will be dependent on the ongoing goodwill and creativity of the community sector, working with minimal resources.'

• 'Since its election in 1993 [the conservative Western Australian] Government has abolished the Western Australian Domestic Violence Advisory Council and the Domestic Violence Policy Unit. An Inter-Departmental Committee on Spouse Abuse has been established for information sharing, but it has no mandate for across-government co-ordination and there are no mechanisms for community input.'

• 'Having a Labor Government appears to have aided Queensland's efforts to curtail domestic violence. Significant growth funds for domestic violence initiatives have been achieved by the Department of Family Services and Aboriginal and Islander Affairs since 1990. This growth has occurred through the Division of Community Services Development, which is the Government's largest provider of resources and support to the non-governmental sector, and amounted to an addition $2.33 million for new initiatives in this area, $976,000 of which was allocated for additional specialist domestic violence services.'

• 'Although this level of service provision and the opportunity for State-wide co-ordination and integration is commendable, particularly in the nation's most geographically dispersed population, staffing levels and the salary subsidies provided to those community-based organisations to operate, are minimal. These services also remain relatively Anglo-Australian oriented, although the funding guidelines stipulate a requirement for services to be accessible and equitable for all members of the community.'

• 'A number of responses specifically for women of non-English speaking backgrounds have been established in some states, such as the Migrant Women's Emergency Support Services in Queensland and South Australia and, in New South Wales, the Immigrant Women's Speakout and the Islamic Women's Refuge. However, the bulk of resources for responses to domestic violence has been directed towards mainstream services which have not widely implemented strategies to ensure accessible and equitable services.'

• 'For example, there has been very little response from mainstream services on the subject of domestic violence and domestic homicide occurring within the context of serial sponsorship, in spite of the high incidence of such cases with respect to Filipino women alone. The general exclusion of culturally diverse groups in responses to domestic violence may largely result from the fact that the significant gains have emanated from the feminist move- ment, which has not been particularly culturally inclusive itself.'

• 'The gains for Aboriginal women, which have been more substantial than those for non-English speaking background women in terms of culturally specific service provision, may be attributed to the organised political power of those women.'

• 'NCVAW provided, in its National Strategy, a comprehensive analysis analysis of the structural and individual change that is required to eradicate violence against women. A very positive aspect of this strategy is the inclusion of all forms of violence against women, rather than fragmenting or compartmentalising the various forms of male violence to which women are subjected.'

• 'For the National Strategy to be successful, there must be a national co-ordinating body to facilitate the implementation of the strategy and to monitor its progress, and there must be accountability mechanisms to encourage action by relevant government agencies that are not implementing strategies to alleviate violence against women. It is vital that the results of auditing government activities in relation to the implementation of the Strategy are made public and that community-based activists continue to monitor and lobby for the implementation of the strategy. The required monitoring and implementation role may be appropriately supported through the Office of the Status of Women with the Federal Women's Budget Statement process, requiring departments to identify their progress on violence against women initiatives each year and to nominate their plans for the coming year. Such strategies will also have to be inclusive of the needs of women from diverse cultural backgrounds.'

• 'To present well argued cases for funding, community members are increasingly being required to provide funding bodies with sophisticated data identifying need; costs to the community and performance information on how well a program is achieving its objectives. Whilst this is important for public accountabihty, it is difficult to gather in areas such as domestic violence where its incidence and effects are largely hidden, and where positive change — particularly in the short term — is difficult to measure. It is imperative that statutory bodies upgrade their information systems to accurately record the incidence of domestic violence, patterns of sentencing and handling of domestic violence matters in courts, and other important areas of activity. Similar, service providers need further resources to enhance the coordination of data collection and capacity to undertake research — particularly longitudinal research to measure attitude and behaviour change.'

• 'The power of the media, when used effectively, is illustrated by the memorable attention given to Justice BoUen and his colleagues in relation to a number of judgements concerning violence against women. These comments were used by activists to demonstrate the systemic abuse of women and, specifically, to highlight gender bias in the law, leading to an Australian Law Reform Commission Inquiry "Equality before the law: justice for women".'

• The existence of anti-women's groups, such as 'The Rory Jack Thompson Society' on the Gold Coast, and the more insidious groups, disguised as pro-feminist, which attempt to undermine women who are seeking equity for women and men, frustrate positive change. To achieve a better quality of life for men, women and children, efforts towards gender equity must be supported rather than undermined. Significant advances in the future to deal with men's violence are reliant on widespread action and support from men. Action from men to challenge sex-role stereo-types, particularly images of masculinity, is likely to be far more effective in changing attitudes about violence against women than action from women alone. The gains achieved through the women's movement have not been designed to be anti-men, they are designed to achieve justice for women and are, indeed, anti-masculinity. If men put their collective weight behind the movement for gender equity, rather than creating barriers to it, they are likely to have a great deal to gain, with significant change to male role expectations. It is only with such challenges to the construction of masculinity and broader structural reform to ensure equity for women, that the elimination of domestic violence can be achieved.

Shea Hart and Bagshaw, 'The idealised post-separation family in Australian family law' (2008)

In 2008 the Journal of Family Studies published an article by Amanda Shea Hart (Lecturer, School of Social Work & Human Services, Central Queensland University) and Dale Bagshaw (Associate Professor, School of Social Work and Social Policy, University of South Australia) that

presents the findings of an in-depth discourse analysis of 20 First Instance unpublished judgments, delivered over a five-and-a-half-year period from one registry of the Family Court of Australia, in contested contact cases where the presence of domestic violence was acknowledged by the Court. A number of dominant themes from the judgments intersected to show how many judicial determinations about children’s ‘best interests’ were underpinned by conservative values that emphasised the importance of the fathers’ presence for children’s future wellbeing and development. In most of the judgments analysed, the fathers’ history of violence was readily excused or ignored, mothers were blamed for failing to support father–child contact, the voices of the children involved were often discounted and a dominant paradigm of the idealised post-separation family took precedence over the special needs of the children. There was little visible consideration of the potential or current effects of domestic violence on the children concerned.

Introduction

• 'The FCA deals with significant numbers of parenting disputes of which the highest and increasing percentage are applications for contact.'

• ' Family law is not simply law about separation and divorce, as a significant number of families reflect complex interfamilial relationships, including exposure to violence and abuse.'

• 'However, as no reliable statistics are kept by the Family Court on cases involving domestic violence, such cases remain undifferentiated from parenting disputes where domestic violence is not an issue.'

• ' … it is important to understand and make transparent how domestic violence, and the im- pact of exposure to domestic violence on chil- dren, is understood by the judicial officers and expert witnesses who provide evidence to the Family Court about the best interests of the child.'

• 'One of the most controversial aspects of the Family Law Reform Act 1995 (‘Reform Act’) was the introduction of the child’s right to know and be cared for by both parents and to have direct, regular contact with both parents. Along with the introduction of the first explicit statutory recognition in Australian family law of the rele- vance of family violence to decision-making about children, a dominant discourse has emerged on the ‘rights of the child’ to know both parents. This has led to an emphasis on shared parenting, which in turn has fuelled disputes in the area of family law and made contesting father–child contact a difficult process.

• 'Separation often occurs because of domestic violence.'

• '… within the context of family law violent perpetra- tors continue to exercise power and control over their ex-partners and children through ongoing litigation over parenting and use tactical strategies to manipulate the Court’s pro-contact decisions.

• 'There can be concerning outcomes for children who are required to spend time with their violent fathers following separation, as this contact creates opportunities for children to be exposed to violence, indirectly or directly. The safety and psycho- logical needs of these children must be recognised and understood for their best interests to be served.'

• 'There are consistent international research findings on the short- and long-term adverse effects on children from exposure to domestic violence.'

• 'This can include serious physical, psychological, cognitive, behavioural, developmental, emotional and relational problems affecting the children’s life satisfaction, self-esteem and future relationships and can disrupt the normal tasks of childhood.'

• 'Their problems resemble those of children who have been directly abused by their parents, are similar to the problems of children who have witnessed other traumatic events and are significantly different from the problems children experience from non- violent homes.'

• Australian and international research shows that children who have been exposed to domestic violence often sustain fear and dread of recurring violence and fear the perpetrator’s unpredictable management of anger.'

• '… despite the emerging knowledge available, the needs of child victims of domestic violence continue to receive less attention than the needs of their abusive parent.'

• 'There is some evidence that there may be a lack of specialist knowledge held by legal and social science professionals involved in Family Court proceedings in Australia about the full range of violence to which children can be exposed.'

• 'Traditionally the law has relied heavily on narrow definitions of domestic violence which is reflected in Section 60D of the 1995 Reform Act that defined ‘family violence’ as: "conduct, whether actual or threatened by a person towards, or towards the property of, a member of a person’s family that causes that or any other member or any other member of the person’s family to fear for, or to be apprehensive about, his or her personal well being or safety."'

• 'All forms of violence need to be explicitly named and understood, along with the central issue of power and control, which can be subtle and hard to detect.'

• 'This research study … used the feminist definition of domestic violence emerging from the National Domestic Violence Summit: "Domestic violence is an abuse of power perpetrated mainly (but not only) by men against women both in relationship and after separation. It occurs when one partner attempts physically or psychologically to dominate and control the other. Domestic violence takes a number of forms. The commonly acknowledged forms are physical and sexual violence, threats and intimidation, emotional and social abuse and economic deprivation."'

• 'Family Court Judges hold powerful and widely discretionary positions and make coercive determinations that "impact upon the lives of litigants to an extent not often encountered in the general courts".'

Aim of the research

• 'The aim of this study was to identify how Judges constructed children’s best interests following the introduction of the 1995 Reform Act in cases where children had witnessed domestic violence, by identifying dominant and competing discourses in the Judges written judgments.'

Method

Research process

• 'The first stage involved a small quantitative analysis of First Instance judgments made pre- and post- Reform Act by Judges in the Adelaide registry of the Family Court. Initially 109 judgments were purposefully selected from all 785 judgments of parenting disputes from 1 January 1991 to 31 December 2001. In all of the cases selected contact was disputed, a final determination had been made by a Judge, both biological parents were parties to proceedings and the presence of domestic violence was acknowledged in the judgment. … In the majority of selected cases, both prior to and after the introduction of the Reform Act, the analysis showed ongoing patterns of unsustainable consent agreements between the separated parents about contact and orders being made by the Judges for parent–child contact. The judgments revealed the presence of the full range of behaviours which constitute domestic violence and there were also a significant number of cases that included allegations of direct child abuse (60% pre-Reform Act; 73% post-Reform Act). Domestic violence that was acknowledged by the judges was perpetrated mainly by fathers towards mothers (84% pre Reform Act; 79% post Reform Act) and the violence varied in frequency and severity. Violent acts reported in the judgments included physical and verbal aggression, property damage, assault with or without use of weapons, threats to kill, stalking, harassment, and various forms of social control. In a comparatively small number of cases (16% pre Reform Act; 21% post Reform Act) both parents were found to be violent. However, overall the fathers were described as perpetrating the more serious violence.'

• 'The second stage of the research applied a feminist poststructuralist framework and Foucauldian approach to a qualitative, in- depth discourse analysis of 20 post-Reform Act judgments from the same Family Court registry. The sample for the qualitative analysis was drawn from the purposefully selected judgments. The study confined itself to judgments in which the judges had acknowledged that at least one act of domestic violence had occurred.'

• 'In analysing statements about how the Judges constructed the best interests of the child, the aim was to use a transparent process, free from researcher bias, and one that could be replicated if necessary.'

• 'This study required the selection of "information rich cases for study in depth".'

• 'The process used to select cases which were relevant to the focus of the research was crucial to the validity of the analysis process and to the testing of developing ideas that emerged from the data.'

• 'Stratified random sampling was used to achieve proportional representation in the final sample profile of 20 judgments. This method is often applied in qualitative research to identify variation within the population being studied.'

• 'The sample was divided according to the year that each judgment was made so that the changing socio-political environment could be taken into account.'

• 'The maximum sample number of cases analysed from any one year was five and these were from the years 2000 and 2001 where there were increasing numbers of these cases. The proportional representation more accurately reflected the actual pattern and range of cases that received a final judicial determination in each year and minimised the undue influ- ence of unknown events occurring in any one year. Also there was a proportionate representation of all Judges from the Family Court registry involved. This contributed to the accuracy and representativeness of the findings.'

• 'Out of five judicial positions at the Adelaide registry, there were a total of eight judges who presided for periods during the years from which the sample judgments were taken. All but one Judge, who had suffered from a fatal illness, were represented in the sample of judgments selected for analysis. The changing population of Judges contributed to the variation in the number of judgments made by each Judge in the final sample. The 20 judgments that formed the final sample were delivered by three female and four male Judges. The anonymity of the Judges and the clients was ensured by the use of coding. The overall purpose of the study was to identify the dominant knowledge and beliefs that informed normative decision making by Judges as a profession within one registry of the Family Court of Australia, not to analyse the statements made by Judges as individuals.'

• 'It is acknowledged that the sample size for the qualitative study was relatively small, but this allowed for in-depth analysis.'

• 'A systematic approach to data collection, storage and retrieval, which is important in the analysis of texts, was assisted through the use of the qualitative software computer package NVivo.'

• 'A cyclical process of analysis was undertaken that required a rigorous approach to classifying and analysing the data. Because rigorous and prolonged engagement is a central part of post-structuralist research, self-reflexive practice was adhered to in order to make the influences on the researcher’s perspectives transparent, along with peer review and supervision to enhance the analytic trustworthiness in qualitative research.'

• 'Through a rigorous process of deconstruction, patterns of regularity and variability emerged to reveal the dominant as well as the competing themes from the discourses contained within the full judgments.'

Sample profile

20 judgments were analysed:

• 33 child subjects of proceedings.
• Age range: 2–16 years at final hearing.
  • Majority: 5–11 years old.
• In 18 judgments (90%) Family Report assessments had been conducted.
  • 13 had multiple family reports.
• In 16 judgments (80%) a Children's Representative was present at the final hearing.
• In 8 judgments (40%) child protection authorities had been involved.
• In 13 judgments (65%) face-to-face parent-child contact was ordered.
• No final orders included supervised contact.
• In all cases the judicial statements indicated the full range of violence acts had occurred including
  • 'poured lighter fluid on the wife and threatened to set it on fire',
  • 'threat to kill',
  • 'ruled the household with an iron fist',
  • 'punching a hole through the door',
  • 'abusive and aggressive while under the influence of alcohol',
  • 'stalked',
  • 'harassed',
  • 'obsessive about the wife and children mixing with other people',
  • 'broke [wife's] ribs', and
  • 'pulled from the car'.
• In none of the judgments was violence limited to the point of separation.
• In each judgment it was acknowledged that the fathers had been perpetrated of at least one incident of violence.
• In most judgments there were references to repeated and ongoing violent acts:
  • some were accepted as having occurred,
  • some were said to have been 'fabricated' or 'exaggerated' by the mothers.
• It was unclear which episodes were disputed due to ambiguity in the judgments.
• In 4 judgments (20%) it was stated that the fathers had been convicted of assaulting the mothers.
  • In 3 other judgments (15%) fathers had been convicted of breaching DV restraining orders.
• In 6 judgments (30%) fathers had been convicted for crimes against others including assault, GBH, rape, housebreak, larceny and criminal contempt.
• In 2 judgments (10%) mothers were seen as the more violent parents and had been found guilty of assaulting the fathers.
• In 12 judgments (60%) violence was referred to as having occurred between both parties.
  • No differentiation between retaliatory or defensive and primary forms of violence.

Findings

• 'The findings support a concern previously articulated by feminist researchers and academics that, since the introduction of the Reform Act in 1996, the marginalisation of the issue of domestic violence in family law in Australia has placed an impera- tive on women and children to cooperate with a pro-father contact ideology and has ignored the potential risks for women and child victims of domestic violence post separation.'

• 'The findings also strongly suggest that it is crucial for professionals in the Family Court of Australia to listen to the lived experiences of children who have been exposed to domestic violence, and to individualise and differentiate their needs from those of children who have not been exposed to violence.'

Gendered roles

• 'In the judgments analysed, dominant gendered discourses that privileged the roles and relation- ships of a normative, heterosexual, two-parent ‘traditional’ family were central to the constructions of the best interests of the child. This finding contravenes the principle of "gender neutrality" which underpins the Family Law Act 1975 (Cth) and the FCA’s ongoing efforts to present a ‘neutral’ position in relation to mothering and fathering.'

• 'An expectation of parental compliance with traditional gendered roles shaped the judicial definitions of what was acceptable and unacceptable parenting. In every judgment analysed, the fathers had, on at least one occasion, perpetrated violence against the mothers and the vast majority of violent "incidents" that were alleged, admitted and found to have occurred were perpetrated by the fathers.'

• 'In 15 of the 20 judgments (75%), Judges’ statements implied that they were critical of mothers’ departures from a normative, gendered expectation that they should be compliant, self-sacrificing, loyal and responsible for family relationships.'

• 'A powerful dominant discourse, which categorised ‘alienating’ mothers as "implacably hostile", was consistently evident in the judicial statements whenever mothers were perceived to have failed in their caretaking role by not supporting and facilitating ongoing father–child contact. In 7 of these judgments (46.6%), the Judges acknowledged that serious violence by the fathers toward the mothers had occurred.'

• 'One major concern repeatedly expressed by the Judges related to their perception that resident mothers misused their power over the non-resident fathers. … Mothers’ legitimate concerns about the potential influence of violence on their children appeared to be discounted in the majority of cases. However, in three judgments where contact was not ordered, the Judges did acknowledge that the children’s exposure to their fathers’ violence had caused "depression, fear and anxiety" and had adversely affected the mothers’ parenting capacity. Despite these acknowledgments, in these same judgments qualifying statements downplayed the legitimacy of the mothers’ fears for their children’s safety.

• 'The possibility that fathers may be falsely denying that they were continuing to be violent, or were minimising reports of their violent behaviours, which violent men are prone to do, did not emerge as a dominant theme.'

• 'In the majority of the judgments analysed there was a strong and consistent judicial focus on the attitudes and behaviours of the mothers towards the fathers; the parenting capacities of violent fathers and the special needs of the child victims of domestic violence were marginalised or ignored. Overall, the dominant judicial narratives supported an ideology of cooperative, ongoing, shared parenting. This finding supports the views of others who are concerned about how entrenched the construct of "alienating mothers" is in the family law field in Australia and the United Kingdom, and how powerful this is in influencing case law and the beliefs of social science and legal professionals.'

• 'Mothers were expected to maintain the caring and emotional ties between fathers and children, while at the same time ensuring the protection of their children. These competing demands placed those mothers who were victims of domestic violence, and who were concerned about risks to their children from contact with their violent fathers, in a "Catch 22" situation. Repeated statements in the judgments revealed that a failure to adhere to both of these imperatives rendered the mothers victims of domestic violence as "incompetent" parents. … The statements were based on an assumption that the mothers had freely entered into the agreements, despite the Judges having knowledge of the fathers’ abusive and controlling behaviour and the research findings that show how perpetrator threats, fear and the power of the dominant ideology of the post-separation family can pressure mothers into agreeing to their children’s contact with violent fathers.'

• 'In relation to fathers, the influence of powerful social norms was demonstrated in Judges’ statements that down-played the issue of father violence and its impact on the children and emphasised fathers as being essential to their children's post-separation wellbeing. This was in spite of research evidence to suggest that some children are better off when they have no contact with their violent fathers and that abusive fathers can use the issue of child contact to continue their harassment of the mother after separation and divorce.'

• 'In all of the 20 judgments analysed, the Judges expressed concerns about the effects of the absence of the fathers on their children’s lives. A "protectionist" discourse, used by the psychologists and psychiatrists who informed the Judges, was evident in judicial statements about "risk" or "long-term harm" to children from the loss of their fathers, loss of fathers’ "input into children’s development", or from children being "deprived of" contact with their father.'

• 'The fundamental themes emphasised repeatedly in judicial statements in the majority of cases were not the emotional, physical and psychological safety of the children, nor the children’s wishes for no contact with their fathers, but instead focused on fathers as being deserving parents, and mothers as having the responsibility to overcome their "hostility" or "resistance" and to "facilitate" and "co-operate" to enable the children’s "rights" to father–child contact. In 7 judgments (35%) Judges expressed sympathy for fathers’ "disadvantaged", "regrettable" or "tragic" situations and for the "much sorrow" and "hurt" caused by the mothers who were described as powerful in achieving "unjust" and "unfair outcomes" for violent fathers who had lost contact with their children. This finding supports the concerns of other researchers that the needs and interests of non-resident parents, usually fathers, have been prioritised over the rights and welfare of children in family law cases in Australia.'

• 'In 15 of the 20 judgments (75%) analysed, common statements referred to fathers as having a "rational attitude", "stoicism", "insight" and "capacity to change". These qualities are commonly linked to stereotypical, gendered presumptions about men. There was scant reference to or information about fathers’ parenting skills or their capacity to parent.'

• 'The analysis of gendered statements about masculinity and fatherhood revealed that in 13 of the judgments (65%), violent husbands were described as "loving" fathers. In 12 of these judgments (60%) the binary construct of loving-father/violent-husband was consistently repeated. This demonstrates how a reliance on generalised normative, gendered assumptions can marginalise or ignore the considerable research evidence of the negative effects of witnessing domestic violence, and other forms of child abuse, on children.'

• 'There were competing discourses in 5 of the judgments (25%) where fathers failed to demonstrate stereotypical male qualities and were described as displaying "no insight", lacking in rationality, displaying "emotion and intensity" and as taking "no responsibility" for their behaviour. These fathers attracted strong judicial disapproval and in four cases did not succeed in obtaining a final order for contact.'

• 'It is important to note that in these cases, denial of father–child contact did not appear to be solely related to the severity of the perpetrated violence, but instead was related to the fathers’ departure from a gendered male stereotype and their lack of moral intent, or their inability to change their violent "irresponsible" behaviours due to mental illness. In two cases of serious violence, the fathers’ offending history included a range of physical assaults, property damage and threats to kill, but contact was ordered. Statements displaying little knowledge of the research on violent men were made about these fathers having "insight" by having come "to the realisation that it was his fault" and having "modified" behaviours.'

Children's incompetence

• 'In the broader society, the concept of childhood and the patterns of control over children are changing. However, the domi- nant judicial discourses identified in this study suggested that the Judges were slow to move away from patriarchal conceptions of children. At some stage, in all of the 20 judgments, there was reliance on questionable and outmoded psychological theories of child development that constructed the children and adolescents as "developing beings" in need of adult management.'

• 'Whenever children stated that they would spend time with the parent who had been violent, this was accepted by the Judges. There was no evidence that questions had been asked about why a child wanted or agreed to be in the company of his or her violent parent or whether it would be in the child’s best interests to do so. Where children’s stated wishes were in competition with their fathers’ needs, the former would often lose. Children who opposed contact with their parent were constructed as being incompetent to know what was in their own best interests, even in their adolescence.'

• 'However, in 8 judgments (40%) at the stage of final hearing, acceptance or qualified acceptance was given by the judges to the wishes of the child. This occurred only after the children (including those who were described as "stubborn" or as being "steadfast" in their "refusal" to cooperate with imposed father–child contact) were required by the Court to be involved in a number of interventions including counselling, supervised contact and repeated assessments that involved face-to-face interaction with their violent fathers. The failure to listen to the voices of the children concerned at the early stages of proceedings, and the imposition of these processes, could be seen as contravening children’s rights and best interests.'

• 'In 5 of the 8 judgments (62.5%) where chil- dren’s wishes for no contact were accepted, their wishes were only accepted after the social science ‘experts’ acknowledged the deterioration of the children’s wellbeing from repeated attempts by the Court to successfully impose father–child contact orders.'

• 'Where … professionals succeeded in redefining the children as competent to make a decision, and where children’s stated wishes for no contact with their violent fathers had been accepted, a marked improvement in the children’s overall wellbeing was noted in the final judgments.

Children's exposure to violence

• 'The children in the judgments analysed presented with a wide range of non-age related social, emotional, learning and behavioural problems … which are consistent with criteria for the trauma-related condition of Post Traumatic Stress Disorder (PTSD).'

• 'Recognition that these behaviours may have been symptoms of PTSD would have alerted Judges and other professionals to the possibility that witnessing parental violence and/or spending time with a violent father may pose further risks to the children concerned. However, the possible links with PTSD were not mentioned in any of the judgments analysed.'

• 'Domestic violence was often referred to in limited ways that relied on recording objective facts and was often described by Judges as isolated "incidents" that occurred in the past. There was little evidence of an understanding of the recent research on children who witness domestic violence.'

• 'In 17 judgments (85%) there were allegations or descriptions of child abuse and in 8 cases (40%) the Child Protection authorities had been involved. However, no findings were made by the Judges that either parent had abused the child. Domestic violence and child abuse were commonly referred to as separate issues, and there appeared to be a poor understanding of the findings of contemporary research that have shown high rates of co-occurrence of domestic violence and child abuse.'

• 'The possible enduring and serious adverse effects on children from exposure to violence were largely overlooked, with one notable ex- ception where the Judge made the connection between the child’s behavioral and emotional difficulties and exposure to domestic violence. In this case, the mother was perceived to be the more violent parent and had departed from the traditional gendered nurturing role. The ‘detrimental effect’ that the mother’s ‘unacceptable’ violence had on the child’s deteriorating behav- iour was repeatedly commented on by the Judge, reinforcing research which suggests that men’s violence tends to be downplayed and women’s violence exaggerated.'

• 'Within legal systems ‘stock stories’ that reflect embedded ‘truths’ are supported by ‘counter stories’ to socially construct stereotypes that rein- force the positioning of the disadvantaged. In the judgments analysed, the ‘stock story’ on the essential need for developing children to have ongoing relationships with both parents, especially with their fathers, following family dissolution interplayed with a range of ‘counter stories’ that came to the fore and redefined children’s victimisation. These created barri- ers to linking the problem behaviours of the children and their wishes for no contact with their violent fathers to the issue of children’s exposure to domestic violence in the considerations of their best interests. Alternative explanations for the children’s problems that either normalised their behaviour or problematised the children were often provided by ‘expert’ social scientists and accepted by the judges.'

• 'The failure to focus on the effects of exposure to domestic violence on children in the determination of children’s ‘best interests’ created a culture wherein Judges could avoid having to make ethical and moral judgments and reinforced the dominant, untested belief that father absence was the dominant factor contributing to poor adjustment of children, rather than their exposure to parental violence.'

• 'In the judgments analysed, violence was often reconstructed and relabelled as conflict. This re-construction was present in 14 judgments (70%), including 8 of the judgments where statements were also made that acknowledged an adverse effect on the children from exposure to violence. … The dynamics associated with domestic violence were either not understood or were overlooked, and therefore the requirement for perpetrators to take responsibility for their violence was often not addressed."

• '… expert information is essential to inform Judges’ under- standing of the safety needs and risks to a child’s wellbeing, and each child’s individualised response to violence.'

• 'Prior research has identified similar practice oversights in Australian family law, in particular where comprehensive, appropriate screening for domestic violence has been absent or has failed at various stages of proceedings before the Family Court.'

• 'The failure of Judges to enact the leg- islative provision to call for additional evidence, or to seek information directly from the child about their lived experiences of domestic violence, also suggested that the decision-making process acted as an instrument of social regulation that reflected a politicised agenda within the Australian family law jurisdiction.'

• 'Social and institutional structures that are domi- nated by patriarchal attitudes and beliefs can "stigmatise and pathologise those who have been victimised" by domestic violence, usually women and children. This was evident in 9 judgments (45%) where the Judges’ used problematising discourses in relation to children who resisted contact with their violent fathers, assuming that all children wanted and needed a father presence. Psychological discourses categorised these non-compliant children as incom- petent, problematic beings. Emotive statements described them as displaying "bad behavior" and as "troublesome", "hostile", "petulant", "self-centered", or "disrespectful", signifying the Judges’ disapproval of their resistance.'

• 'Descriptions in the judgments of the children’s conflicting emotions, behavioural problems and resistance to father–child contact were decon- textualised and they and their mothers were described as alienating the fathers, reflecting the questionable assumptions underpinning the discredited Parental Alienation Syndrome. Children who resisted contact with a violent parent were described as having "unreasonable" negative feelings and responses towards that parent, demonstrating an ignorance of research that indicates that children exposed to violence can have strong reactions to a non-resident, violent parent and their responses may not have been disproportionate to their actual lived experiences.'

• '… the judgments failed to indicate that an adequate assessment of each child’s behaviour had been made in the con- text of parental violence, wherein their behav- iours may have been recognised as appropriate, or even positive, given the trauma that they may have experienced. The imposition of interventions to correct the behaviors of these children involved disempowerment and "coercion … of the errant child", masked their lived experiences and needs and reflected a dominant patriarchal belief about children’s "proper" subject position within an idealised post-separation family.'

Discussion and conclusions

• 'The repeated judicial statements, which revealed dom- inant discourses on the "best interests" of the child, reflected patriarchal values and traditional notions of family. Dominant and repeated statements reflected an assumption that fathers’ presence was required for children’s future wellbeing and development, in spite of evidence that the fathers had been violent toward the other parent and that some children repeatedly stated that they did not want contact with them.'

• 'This study has demonstrated the use of judicial discretionary power to privilege the tradition- al patriarchal concept of family and the right of violent fathers to contact with their children, over the special needs of children who were exposed to domestic violence. The primary focus of the application of the children’s "best interests" principle was on reinstating the role of the fathers in the lives of their children and achieving the cooperation of the mothers, in spite of there being a history of domestic violence. The idealised notion of "loving" father–child, post-separation relationships through "reformulated relationships of domination" overshadowed concerns about the risks related to children’s exposure to domestic violence, blamed mothers for failing to support father–child contact and downplayed the fathers’ history of vio-lent behaviors.'

• 'In Australian family law a heavy reliance on the orthodoxy of an idealised post-separation family, constructed by politics, social welfare and the state, has created an illusion that all children’s needs are met under this paradigm. The findings from this study show that in one Family Court registry, Judges’ attempts to work within this paradigm, in the children’s best interests, potentially compromised the wellbeing of the children involved. This was demonstrated by reports of the deterioration in some children’s wellbeing following attempts by the Court to reinstate or increase their contact with their violent fathers. The consistent pattern of children’s improved wellbeing following the cessation of contact with their violent fathers revealed that compliance with the dominant paradigm was not in those children’s best interests.'

Moving forward: Centralising the issue of children’s exposure to domestic violence in family law matters

• The extent and seriousness of domestic violence is not abating in Australia and cases involving domestic violence are core business of the Family Court of Australia.'

• 'As this study has demonstrated, the FCA needs active encouragement and support to address the problem of children’s exposure to domestic violence. Dominant discourses identified in this study readily excused fathers for their violent behaviours, blamed mothers for their departure from normative gen- dered role expectations and marginalised the voices of children and the special needs of child victims of violence. It is essential for Judges, and the professionals who inform them about children’s best interests, to move beyond an agenda that is circumscribed by dominant patriarchal beliefs about an idealised reconstituted family and to learn from the findings of contemporary research.'

• 'Within this legislation there are two competing primary principles – the importance of the child having meaningful relationships with both parents and at the same time being protected from abuse or family violence. … As this research has demonstrated, the child’s right to safety did not compete well with the principle of ongoing cooperative parenting in one Family Court registry. This finding has more recently been supported by Kaspiew’s (2007) research in the Melbourne registries of the FCA that identified the litigation strategies adopted in Family Court proceedings in cases where violence is an issue and the prevailing pro-father contact ideology within the Court, even is cases of severe violence. Therefore, substantial steps urgently need to be taken to ensure that the safety of children is prioritised.'

• 'Entrenched constructions of mothers as inappropriately exercising power to alienate fathers and of violent fathers as being "loving" and "responsible" parents mask the issue of domestic violence and its potentially serious adverse effect on children’s well-being. It is essential to challenge these discourses and expand the research knowledge base that informs Judges and other experts in the Court by introducing continuing education based on sound research in the area of domestic violence and its effects on children as a requirement for all family law professionals.'

• 'Within a highly discretionary Court, where there is a history of patriarchal ideology, it is questionable that under the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) the child’s right to safety will ever compete successfully with the powerful legislative principle of equal shared parental responsibility and the benefit to the child of having a meaningful relationship with both parents. To create an imperative for prioritising the child’s right to safety, legislative change is required that adopts a rebuttable presumption of no contact between the perpetrator and the child in all cases where domestic violence is alleged. The aim of such legislative change is to specifically bring any risk factors to the fore before any order is made for a child to spend time with the alleged perpetrator of domestic violence. Other countries including New Zealand, Ireland and some states in the United States of America have taken this important step.

• 'There is also a need for early identification and differentiated, specialist case management within the FCA that includes a range of strategies for managing cases involving domestic violence.'

• 'Another essential step is for the Court to empower child "victims" of domestic violence who, as child "subjects" of court proceedings, are often cast as "problem" or "incompetent" beings. Opportunities need to be created for children to improve their status within the court system, to participate in litigation or pre-litigation processes and contribute to decisions that are made in their own best interests.'

• 'The new child-focused approach that is cur- rently being introduced into the FCA will pro- vide an important window of opportunity for the concerns raised in this paper to be addressed.'