Allegations of family violence and child abuse in family law children's proceedings: key findings of Australian Institute of Family Studies Research Report No. 15.

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This research, which used court files as its primary data source, was commissioned by the Australian Government Attorney-General's Department to provide information that could assist in monitoring its Family Law Violence Strategy in the wake of the 2006 family law reforms. In essence, the study sought to produce relevant baseline data that preceded the reforms. To meet this aim, the researchers drew on a sample of files that were as recent as possible but had been finalised. Knowing that it is not uncommon for litigants to return to court even where 'final' orders have been made (Kelly & Fehlberg, 2002), the researchers selected the 2003 calendar year as the time period of interest. It was hoped that sufficient time had passed for most of these matters to have been finalised by the time the samples were drawn in May 2006.

Background to the research

The 2006 family law reforms were outlined in a series of 'Fact Sheets' that were available from Family Relationships Online. (1) Key reforms include:

* the establishment of 65 Family Relationship Centres around the country, the rollout commencing in July 2006 and concluding in July 2008;

* expansion of a range of early intervention services; the establishment of the Family Relationships Advice Line;

* the passing of the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth); and

* significant amendments to the existing child support legislation.

Many commentators have noted that two core objectives of the reforms stand in some tension with each other. On the one hand, there is the aim to support the right of each child to grow up with love and support from both parents, even if they have separated. On the other hand, there is a further aim to ensure that children in separating families are kept safe from harm, especially the harm caused by inter-parental violence and child abuse.

Changes to the Family Law Act introduced through the Family Law Amendment (Shared Parental Responsibility) Act 2006 aim to ensure that cases in which violence or abuse are alleged are handled quickly, fairly and properly. At the same time, there is a recognition that alleged violence and abuse cases are among the most difficult within the family law system.

Difficulties in implementing an effective family violence strategy are further exacerbated by the fact that there has been ongoing debate about the 'real' extent of violence and abuse allegations in family law cases, and whether or not most of them are 'true'. There has been an increasing acceptance that family violence and child abuse allegations have become or have come to be recognised as 'core business' within the Family Court. However, a difficulty with most of the key studies that have made such claims is that they have not been tied to clear definitions of violence or child abuse and/or descriptions of what is being alleged.

It can of course be legitimately argued that instead of being overly concerned with definitions or descriptions, an acceptable starting point is to record cases with allegations, regardless of the circumstances in which these allegations are made. From this point of view, all allegations matter because violence and abuse are never acceptable. A responsible default position from this perspective might also be to assume that allegations are much more likely to be 'true' than 'false'.

From a research perspective, however, an ongoing tension in this field has been in the capacity to distinguish between scholarly research and advocacy. According to Johnston, Lee, Olesen, and Walters (2005), many North American writers on the subject need no further convincing that:

 
   the extent of real abuse suffered by children and their mothers has 
   been largely ignored, dismissed, or greatly minimized by family 
   courts. For this reason, they believe that the safety of mothers 
   and children has too often been placed at grave risk by custody and 
   access arrangements awarded by the court that favour a controlling 
   and manipulative abuser. (p. 283) 

Conversely, Johnston et al. (2005) have noted that some fathers' groups frequently claim that separated mothers routinely make false accusations of family violence and/or child abuse for revenge or to gain a tactical advantage in child custody disputes, with the aim of reducing their former partners' involvement in their children's lives or of cutting them out altogether. Johnston et al. suggest that those who hold this view often support Gardner's (1999) formulation of a 'parental alienation syndrome' to buttress their claims. Gardner claimed to have produced evidence that 'vindictive parents' (mainly mothers) commonly pressure their children to make false claims of mistreatment, especially of sexual abuse in child custody cases.

Though now largely debunked by the research community (see, for example, Faller, 1998, 2003; Garber, 2004) and ruled inadmissible in a number of North American courts (Shields, 2007), (2) some of the thinking that informed Gardner's largely self-published views continue to strike a popular chord. In Australia, for example, a recent telephone survey of 2000 people in Victoria (VicHealth, 2006) found that 46 per cent of respondents agreed with the statement that "women going through custody battles often make up claims of domestic violence to improve their case" (p. 24). (3) Men and women in the general population were equally likely to hold this view, while men from certain cultural groups were more likely than women in those groups to believe that women fabricate allegations to gain a tactical advantage in custody disputes (Taylor & Mouzos, 2006).

Popular perceptions such as these can persist irrespective of factually based evidence. But as the literature review in the Allegations of Family Violence report (Chapter 3) demonstrates, Australia has produced little in the way of sound empirical evidence that might assist family law policy makers move forward with confidence. Indeed most of the research to date has reported on small and/or non-probability samples. Provision of reliability and validity tests is unusual and, with some exceptions (e.g. Kaspiew, 2005), reporting on how the data were gathered and analysed has tended to be opaque. It must be said that again with some exceptions, the review of the international …