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The Australian Institute of Family Studies' (AIFS) Evaluation of the 2006 Family Law Reforms (Kaspiew et al., 2009) found that one of the central challenges facing the family law system is family violence. A substantial minority of separated parents reported having experienced physical violence, and over half reported having experienced emotional or physical violence.
Concerns about the way in which the family law system deals with family violence are longstanding and pre-date the 2006 reforms (e.g., Family Law Pathways Advisory Group, 2001). Family violence is recognised internationally to be one of the most complex issues for legal systems in general, and family law systems in particular, to deal with effectively (e.g., Ver Steegh & Dalton, 2008).
The data collected as part of the AIFS evaluation highlighted the difficulties faced by those working in the family law system (service system professionals, lawyers, court staff and judicial officers) when working with families affected by family violence. Challenging issues include identifying whether there is family violence, the nature of the violence, whether it is ongoing and the most appropriate responses. Dealing with family violence in the family law context is difficult because of its prevalence in separating families, combined with the fact that there is often little or no evidence because most family violence occurs behind "closed doors", without witnesses. It is also difficult because a parent may be too frightened of their ex-partner to tell anyone about the violence, let alone a court.
The evaluation was based on 17 separated studies involving 28,000 parents and family law system professionals (who include family dispute resolution (FDR) practitioners, relationship services staff, lawyers, judges, family consultants and registrars). Findings clearly indicate that the system has some way to go in developing an effective response to family violence. (1)
This article examines key aspects of the evaluation's evidence on family violence, beginning with a discussion on prevalence. The subsequent sections discuss findings on relationship quality where there has been family violence and on child wellbeing in the context of such a history. Finally, the article examines data on the pathways taken through the family law system by parents who report a history of family violence, and the views of relevant professionals with regard to how the system is serving such families.
Prevalence of violence and safety concerns
The first wave of the Longitudinal Study of Separate Families (LSSF W1 2008) was an important component of the evaluation. Interviews were conducted with some 10,000 parents (around 5,000 mothers and 5,000 fathers with at least one child under 18 years old) who had separated after the 2006 reforms and who were registered with the Child Support Agency. At the time of the survey, parents had been separated for an average of 15 months. For the most part, the child-related questions focused on one child only (the "focus child").
This section uses data from the LSSF W1 2008 to examine the incidence of family violence before and during separation, and the proportion of parents who held concerns about personal or child safety relating to ongoing contact with the other parent.
The measures of family violence focused on physical hurt or emotional abuse. (2) One in four mothers (26%) and one in six fathers (17%) said that their former partner had "physically" hurt them prior to separation (Table 1). Most of these parents also reported that their former partner had emotionally abused them.
Thirty-nine per cent of mothers and 36% of fathers reported having experienced emotional abuse alone. Just over one-third mothers (35%) and just under half of the fathers (47%) said that they had not experienced physical violence or emotional abuse.
In considering these data, particularly in terms of gender patterns, it is important to recognise that many issues were not examined in collecting the information, including whether the acts were aggressive or defensive in nature, the severity and chronicity of the behaviours, and subjective aspects, including intent and impact.
A relatively high proportion of parents (72% of mothers and 63% of fathers) who reported being physically hurt by their ex-partner before separation said that their children had witnessed violence or abuse.
Parents who participated in the LSSF W1 2008 were also asked to indicate whether they currently held safety concerns for themselves and/or their focus child as a result of ongoing contact with the child's other parent. (3) Seventeen per cent of fathers and 21% of mothers reported holding such concerns (Table 2).
A higher proportion of mothers than fathers (8% compared with 3%) were fearful both for themselves and their child, while a slightly higher proportion of fathers than mothers (12% compared with 9%) expressed concerns about the focus child only. While mothers' concerns were predominantly about the child's other parent (92%), fathers' safety concerns were about a broader range of people in the child's life: 68% of fathers reported concerns about the child's other parent; 18% were concerned about the other parent's new partner; and 28% were concerned about another adult. Mothers with safety concerns had tried to limit contact with the other parent at twice the rate of fathers (50% compared with 24%).
The evaluation findings on parents' descriptions of the quality of the inter-parental relationship where a history of family violence had been reported highlight the complex nature of the issues raised by such a history. Parents in the LSSF W1 2008 were asked to indicate which of five descriptors best suited the current state of their relationship with the other parent: friendly; cooperative; distant; lots of conflict; or fearful.
Clearly positive relationships (friendly or cooperative) were reported by a substantial minority of parents who reported earlier experiences of physical hurt (36% of fathers and 39% of mothers), and at least half the parents who reported having experienced emotional abuse alone (55% of mothers and 50% of fathers) (Table 3). Distant or clearly negative relationships (lots of conflict or fearful), were reported by most parents who said that their partner had hurt them prior to separation (61-64%), and by around half the fathers and 45% of the mothers who reported emotional abuse alone. By contrast, all except 15-16% of parents who had not experienced any family violence described their relationships in clearly positive terms.
Although applying to a minority of parents, mothers were more likely than fathers to report being fearful of their ex-partner, with fearful relationships being reported by 11% of fathers and 19% of mothers who reported experiencing physical hurt, and 4% of fathers and 5% of …