Why?

The system is failing victims of domestic violence and their children

Victims of domestic violence are especially vulnerable to being bullied into unsafe agreements involving shared parenting.  Domestic violence often occurs ‘behind closed doors’ and there is a failure by many participants in the system to identify it or to prioritise emotional as well as physical safety.  Victims reach agreements often in an attempt to appease the perpetrator, because the victim believes ‘shared parenting’ is the law, they are told it is the law, they have no say or are threatened.  Additionally, they are also susceptible to court orders for shared parenting being made for a range of reasons including a lack of legal aid, inability to advocate in the system for assistance and because perpetrators of violence frequently and vigorously pursue “their legal rights” through the system.

Shared parenting arrangements can ‘mess up’ important normal daily routines of children who have experienced violence.  Clients have reported to us

  • having to stop breastfeeding babies to comply with orders;
  • their school-age children are being delivered to school without uniforms, with no lunch and/or are not being taken at all;
  • children struggling emotionally to cope where one parent is constantly denigrating, abusing or undermining the other;
  • children witnessing their mother and care-giver being hurt, assaulted and verbally abused;
  • some children being abused themselves and both mothers and children experiencing a deterioration in their health (including their mental health);
  • children being anxious, confused, angry and fearful;
  • Others being violent and denigrating towards their mothers.

These problems are widespread and national.

There is strong evidence that the system is not working

The reports found that physical or emotional abuse is reported by nearly two thirds of women going through separation, and over 50 per cent of parenting matters in the family law courts involve serious allegations of family violence and/or child abuse.

As well as being damaging to mothers, family violence is damaging to children. Almost one in four children in Australia have witnessed violence against their mothers or stepmothers. Exposure of children to family violence causes long-term psychological, emotional, physical and behavioural problems (see section 2.6 of the National Council to Reduce Violence Against Women and Children’s Background Paper for more details).

Three government-commissioned reports by the Family Law Council, the Australian Institute of Family Studies and former Family Court Justice Professor Richard Chisholm have all identified that there are significant problems in how family law and its processes respond to cases of family violence, and that significant changes are needed to keep women and children safe.

Researchers are now seeing the ‘fallout’ since the 2006 amendments and are warning against shared care’s appropriateness for young children, especially when there is high conflict. The disadvantage is intensified for victims who are Aboriginal and Torres Strait Islander or from culturally or linguistically diverse backgrounds or who experience other social disadvantage.

The Family Law Act already offers protection– why is more change needed?

Child abuse and domestic violence are core issues in the family law system.  There are serious deficiencies in the way the system deals with these issues.  An under-resourced system struggling with complex issues can often ‘latch onto’ simple solutions, such as 50:50 or notions of ‘equality’.  This is especially the case when many professionals lack training and expertise in identifying and dealing with domestic violence and child abuse and their interrelationship.  It is common for these issues to co-exist in many families moving through the system.  A lack of protection for victims of violence and their children can be further compounded when there is a lack of cultural sensitivity or sensitivity towards other issues such as disability.

Clear, concise and unequivocal language in the Family Law Act is required to protect the most vulnerable.  Listening to the people on the ground who have expertise in domestic violence and who work with victims of violence and their children is essential to gain knowledge about how changes to the law will work in practice.