SUBMISSION TO THE STANDING COMMITTEE ON SOCIAL POLICY AND LEGAL AFFAIRS FAMILY, DOMESTIC AND SEXUAL VIOLENCE
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SUBMISSION TO THE STANDING COMMITTEE ON SOCIAL POLICY
AND LEGAL AFFAIRS FAMILY, DOMESTIC AND SEXUAL VIOLENCE
Zoe Rathus AM
Senior Lecturer
Griffith University Law School
Brisbane. August, 2020
Introduction
I write this submission as a senior lecturer at the Griffith University Law School in Brisbane.
My areas of research and teaching are largely centred around the Australian family law
system and domestic and family violence. I worked in private practice from 1981 to 1989,
with many of my clients being women who had left violent men and initially escaped to
women’s refuges. Between 1989 and 2004 I was the co-ordinator of the Women’s Legal
Service in Brisbane and I commenced in my current position in 2005. This is the experience
and expertise I bring to this submission. Over my working life I have listened to the stories
of 100s of women and shared information about the family law system with clients, legal
and non-legal professionals in the family law system and academic colleagues from all over
Australia and internationally.
I am also one of the authors of submission specifically about family reports and I will not
repeat the issues covered in that submission.1 In this submission I will only address those
Terms of Reference on which I have expertise.
a) Immediate and long-term measures to prevent violence against women and their
children, and improve gender equality.
This is a very big question, and there are others who are more expert at programs and
prevention strategies, but we know that deeply entrenched attitudes about gender and
violence still persist in our community – and in most communities – and changing that is a
huge challenge. However, I also acknowledge that great progress has been made for
women – progress which was unimaginable for me as a female law student in the second
half of the 1970s. We have a woman Chief Justice in Queensland2 and a woman Chief
Justice on the High Court.3 And yet this year has also seen the revelation that six female
judges’ associates have made serious allegations of sexual harassment against former High
Court justice, Dyson Heydon. So credible were the complaints that Chief Justice, Susan
Kiefel, initiated an investigation and subsequently issued a statement saying:
The findings are of extreme concern to me, [and others associated with the Court].
We're ashamed that this could have happened at the High Court of Australia. We
1
I am one of the authors of another submission to this Inquiry which specifically addresses our research on
family reports and family violence, with Dr Helena Menih, Dr Samantha Jeffries and Professor Rachael Field.
2
The Honourable Catherine Holmes AC.
3
The Honourable Susan Kiefel AC
1have made a sincere apology to the six women whose complaints were borne out.
We know it would have been difficult to come forward. Their accounts of their
experiences at the time have been believed.4
The statement by the Chief Justice that the young women ‘have been believed’ was, no
doubt, incredibly important to the complainants – because for many women, it is the fear of
not being believed about violence, and the consequences of that, that keep them silent.
This observation is particularly relevant in family law parenting cases. And although that
situation involves a man who is now aged 77, even as I write this submission, the
questioning of research about violence against women continues as to beset the field. A
female PhD candidate I am supervising presented her project on digital abuse of women
post-separation5 to other PhD students this week (August 2020) and was asked the
perennial question – what about the men? So, yet again, a female researcher learned how
to answer that question.
I mention these two events, not because they are more serious than others, but because
they expose the endemic and entrenched nature of violence against women and their
children. It seems that sexual harassment can occur over many years in the ultimate court
of the land – perpetrated by a holder of one of our highest legal offices – and that PhD
students are still asked by other PhD students why they are examining violence against
women. It is a wicked problem. Attitudinal changes as well as proper resourcing of
education program and services are part of what is required. Women must have safe
spaces to call out male violence – and men must also play their role in calling out their
friends, fathers, brothers work mates.
I am also concerned by an attitude that lingers in the Australian psyche - that women lie
about violence in their relationships to gain something in legal proceedings. Although both
men and women do not always tell the truth in family law proceedings, it is almost certainly
easier, and more common, for a perpetrator to dishonestly deny violence6 than for a ‘non-
victim’ to make it up. While there is research that suggests some women may lie about
violence, there is significant evidence that women find it hard to speak about violence. They
experience shame and humiliation in talking about it, partly because this requires implicitly
admitting staying with a man who has abused them, and maybe their children. Research
and practice experience also tell us that women are inclined to minimise violence they have
experienced, rather than exaggerate it.7
One way in which family violence experienced by mothers and their children is silenced or
dismissed in family law proceedings occurs when fathers claim that the mother has
alienated the children from him. The concept of ‘parental alienation’ (PA) is a highly
contested social science construct which is deployed in family law proceedings. I accept
that some parents engage in very unattractive post-separation behaviour aimed at the other
parent – but I submit that the use of PA ideas in our courts is highly gendered and
4
https://cdn.hcourt.gov.au/assets/news/Statement%20by%20Chief%20Justice%20Susan%20Kiefel%20AC.pdf
5
When completed, her research will relevant to the issues raised in ToR (e).
6
N Trocmé and N Bala ‘False Allegations of Abuse and Neglect When Parents Separate’ (2005) 29 Child Abuse
& Neglect 1333-1345.
7
COAG Advisory Panel on Reducing Violence against Women and their Children, Final Report,
Commonwealth of Australia, 2016
2detrimental to the best interests of children. I attach an article of mine which has recently
been published in the Journal of Social Welfare and Family Law8 which should be considered
as part of my submission.
Groundbreaking research by Joan Meier and colleagues in the USA found that PA accusations
by fathers had a significant negative impact on mothers’ perceived credibility. Where the
father claimed PA, courts were more than twice as likely to disbelieve any claims of abuse by
mothers and almost 4 times more likely to disbelieve allegations of child sexual abuse.9
It concerned me greatly that this attitude appeared to underpin the Inquiry of the Joint Select
Committee on Australia’s Family Law System which was established in September, 2019.
c) The level and impact of coordination, accountability for, and access to services and
policy responses across the Commonwealth, state and territory governments, local
governments, non government and community organisations, and business.
In terms of accountability, the submission from the family report research team (of which I
am a member) commented on the need for a proper complaints process to be built into the
family law system in Australia in.
It is also clear that enhanced information sharing between the states, territories and
commonwealth governments would improve safety and outcomes for women and children.
d) The way that health, housing, access to services, including legal services, and
women’s economic independence impact on the ability of women to escape domestic
violence.
In this term of reference, I set out my views on changes required to the Family Law Act10
(FLA), particularly Part VII which deals with parenting cases. Although amendments to the
FLA aimed at improving the family law system’s response to domestic and family violence
(DFV) occurred in 2012 after the Chisholm Report,11 it is clear that these did not bring about
sufficient (or any real) change in terms of protecting mothers and their children who had
experienced DFV. Subsequent Inquiries have since considered this issue further and major
recommendations for amendments have been made – including by this committee12 and
the Australian Law Reform Commission.13 However, no significant changes have been to the
substantive provisions of Part VII since 2012.
8
Z Rathus, ‘A history of the use of the concept of parental alienation in the Australian family law system:
Contradictions, collisions and their consequences’ (2020) 40 Journal of Social Welfare and Family Law 5-17.
9
J Meier et al, Child Custody Outcomes in Cases Involving Parental Alienation and Abuse Allegations, George
Washington University School of Law, Legal Studies Research Paper No. 2019-56.
10
1975 (Cth)
11
Ri Chisholm, Family Courts Violence Review. Canberra: Attorney-General's Department, 2009.
12
House of Representatives Standing Committee on Social Policy and Legal Affairs, A Better family law system
to support and protect those affected by family violence, Parliament of Australia, 2017
13
Australian Law Reform Commission, Family Law for the Future: An Inquiry into the Family Law System -
Final Report, Australian Government, March, 2019.
3I believe changes to Part VII are required as part of a cultural shift in family law to truly place
DFV front of mind for decision-makers in family law. It is well understood that the words of
the law are not only relevant to judicial decision-making, but also influence family dispute
resolution (FDR) and other negotiations to settle parenting cases, decisions about legal aid
merit and the messages professionals in the family law system convey to parents. The
presumption that equal shared parental responsibility (ESPR) is in the best interests of
children (s 61DA) and the structure of Part VII, leading to specific time outcomes (s 65DAA)
has caused confusion and may well have contributed to unsafe outcomes for children.
Given the detailed recommendations for legislative change outlined in the ALRC Report
published in March, 2019, I have aligned my discussion with those suggestions. Although I
agree with the general direction for reform they have proposed, I do not agree with the
detail of their formulations and have set out my suggestions out here. A summary of my
recommendations is set out at the end.
ALRC Recommendation 4
Section 60B of the Family Law Act 1975 (Cth) should be repealed.
I support this recommendation. The objects and principles section serves no purpose and
the duplication of ideas and concepts (with slight variations) in the best interest factors (s
60CC) is complex and confusing.
ALRC Recommendation 5
Section 60CC of the Family Law Act 1975 (Cth) should be amended so that the factors to be
considered when determining parenting arrangements that promote a child’s best interests
are:
• what arrangements best promote the safety of the child and the child’s carers,
including safety from family violence, abuse, or other harm;
• any relevant views expressed by the child;
• the developmental, psychological, and emotional needs of the child;
• the benefit to the child of being able to maintain relationships with each parent and
other people who are significant to the child, where it is safe to do so;
• the capacity of each proposed carer of the child to provide for the developmental,
psychological, and emotional needs of the child, having regard to the carer’s ability
and willingness to seek support to assist with caring; and
• anything else that is relevant to the particular circumstances of the child.
I support the general direction of this reform, but believe that there are still problems with
this formulation. These problems are set out in more detail below under each factor.
• what arrangements best promote the safety of the child and the child’s carers,
including safety from family violence, abuse, or other harm
I believe that the word ‘safety’ is not the best choice for the first factor. Safety is all about
looking into the future and, at a practical level, working out if the child might be in danger as
result of spending time with someone. This is actually quite a high bar to set and asks the
wrong question. I am concerned that this might unintentionally focus attention mostly on
4physical and sexual safety. Although physical and sexual safety are critical, I submit that the
impact of having lived with a parent who abuses the other parent is dealt with poorly in the
current family law system – and that may not be captured in the idea of ‘safety’. It is the
legacy of living with family violence, not always what might happen in the future, that is a
concern.
I suggest that wording around ‘safety’ could be:
ensuring the physical, psychological and emotional safety of the child taking into
account any family violence or abuse which has been or may be experienced by the
child or to which the child has been, or may be, exposed.
I note that the ALRC Report discussed the concept of ‘trauma informed practice’. 14 This
type of practice focuses on the impacts of ‘trauma arising from interpersonal violence’ and
the need to ‘protect the physical and emotional safety of consumers/survivors’.15 It
requires awareness of both past and current experiences of abuse and ‘involves looking not
just at recent and imminent risks to a child’s safety but at the cumulative impact of trauma
on the child over time. Compounded experiences of multiple episodes of abuse diminish a
child’s sense of safety, stability and wellbeing and affect their development, and this needs
to be understood and addressed’.16
• any relevant views expressed by the child
In terms of views expressed by children, the role of judges in the direct participation of
children in the family law system remains a contentious issue in Australia. Inexplicably, in
some countries which are legally and culturally similar to Australia judicial interviewing of
and meeting with children is common. Why do New Zealand and Scottish judges do it while
Australians and Canadians do not?17 Australian family law judges have shown a resistance
to direct interaction with children.
I understand that judges and others hold valid concerns about meeting with children.18
Special skills are required to do this well and judges have no training for this task. There are
questions about who should be present and how the interaction should be recorded and
reported. And exactly what can a judge do with anything they learn through the interaction?
But it is also clear that in 2020 many children expect to participate in decisions about their
lives.19 This is encouraged at schools, in many homes and public spaces. It is unsurprising
14
For useful resources see: Blue Knot Foundation, ‘Trauma-informed practice in Domestic and Family Violence
Services’ at ; and Community Legal Centres Queensland, ‘Domestic Violence and
Trauma Informed Practice’ at .
15
R Hunter and S Choudhry, ‘Conclusion: international best practices’, (2018) 40(4) Journal of Social Welfare
and Family Law, 548-562 at 549.
16
ibid, p 550
17
M Fernando, 'Family law proceedings and the child's right to be heard in Australia, the United Kingdom, New
Zealand, and Canada', (2014) 52(1) Family Court Review, 46-59.
18
N Flatters and L Yasenik, ‘The Seven Reasons Judges Should Not Interview Children: but if they have to…’
World Congress on Family Law and Children’s Rights, Dublin, June, 2017
19
See, for example, the ongoing work of the Queensland Family and Child Commission, surveying young
Queenslanders about their views on the community in which they live: Queensland Family and Child
5that children feel excluded when the case is all about them, but they are the ones who are
specifically kept out of the court room and away from the judge. Although I acknowledge
that more research will be required and a training program would have to be developed and
implemented, I believe that Australian family law judges should become more active in their
direct engagement with children.
• the benefit to the child of being able to maintain relationships with each parent and
other people who are significant to the child, where it is safe to do so
I have a concern about the above phrase being used in the best interests of children (BIC)
list. While that idea reflects an important consideration in these cases, some of those words
are now imbued with a slightly artificial meaning that was carved out to avoid some of the
consequences of the original drafting of Part VII, particularly s 60CC(2)(a). The early decision
of Bennett J in G and C20, which determined that s 60CC(2)(a) was evaluative and not
presumptive, was a critical moment in the interpretation of that section – and possibly was
not an interpretation expected by the legislature. There is no guarantee how the
jurisprudence created around the current words would apply to the newly constructed
section. Although the word ‘meaningful’ has been removed, that may simply confuse things
more – and replacing it with ‘significant’ merely codifies cases like Mazorski v Albright.21
The research which I have been involved in regarding how family violence is dealt with in
family reports revealed the extent to which the idea of ‘meaningful relationships’ was seen
by lawyers and social service providers to be an avenue through which the relevance of
family violence was minimised and the on-going relationship prioritised. As one social
service provider said:
I believe the child’s right to safety needs to override the right to know both
parents or have a meaningful relationship with those parents. The safety of
children really is often just overlooked. (Social Service Provider).22
A similar comment from a lawyer showed the breadth of this view:
It clearly says that they need to protect the child from physical or psychological
harm, from being subjected to or exposed to abuse, neglect, or family violence.
It’s supposed to be given greater weight than the benefit to the child of having a
meaningful relationship but they look for the meaningful relationship, and then
they pay lip service to the domestic violence. [The meaningful relationship still
seems to be the driver.] (Legal Practitioner).23
Commission, Growing up in Queensland 2020 (Interim Report): Early insights - The voices of 4,000 young
Queenslanders, July 2020,
20
[2006] FamCA 994
21
[2007] FamCA 520
22
S Jeffries, R Field, H Menih and Z Rathus, ‘Good Evidence, Safe Outcomes in Parenting Matters Involving
Domestic Violence?: Understanding Family Report Writing Practice from the Perspective of Professionals
Working in the Family Law System’ (2016) 39(4) University of New South Wales Law Journal 1355 at 1381.
23
Ibid, 1382 – The last part of the quote was not included in our article but is in the original transcript.
6I recommend that a different phrase with quite different language be used to express this
idea contained in the list of factors relevant to BIC, such as:
‘that children be able to continue relationships that are important to them, provided
that any history of family violence or abuse be taken into account in considering
whether or not any relationships should be continued and the nature of how that
on-going contact should occur.’
ALRC Recommendation 6
The Family Law Act 1975 (Cth) should be amended to provide that in determining what
arrangements promote the best interests of an Aboriginal or Torres Strait Islander child, a
court must consider the child’s opportunities to connect with, and maintain the child’s
connection to, the child’s family, community, culture, and country.
I support this recommendation.
ALRC Recommendation 7
Section 61DA of the Family Law Act 1975 (Cth) should be amended to replace the
presumption of ‘equal shared parental responsibility’ with a presumption of ‘joint decision
making about major long-term issues’.
I have strongly argued that the legal devise of a presumption was, and continues to be,
completely the wrong tool to use in the way it has been in the FLA.24 A presumption at law
should be used only in situations where what is presumed is extremely likely to be true.
Presumptions should reflect the expected state of affairs. For example, the presumption
contained in s 69P(1) FLA provides that if a child is born to a married woman, the husband of
that woman is presumed to be the father. This makes sense. It is most likely to be the case,
but, of course, may not be. It should not have to be proved in a court unless there is a
dispute about paternity, in which case the presumption can be rebutted by appropriate
evidence.25
But the presumption contained in s 61DA is not of this nature. The idea that the best
interests of children are served by each of their parents having ESPR is an entirely different
type of construct. It is a policy, or perhaps a social science, ideal that is not applicable in
many families – and therefore is dangerous when it performs the role of a presumption –
perhaps invisibly or unnoticeably inviting limited evaluation and encouraging acceptance of
its truth.
International scholarship has also recognised the problems of presumptions in a system that
deals with human relationships and expert social science evidence about families.26 Peter
Jaffe has argued against any presumptions that apply to parents who are litigating:
24
Z Rathus, ‘Social Science or “Lego-science”? Presumptions, Politics and Parenting and the New Family
Law’ (2010) 10(2) Queensland University of Technology Journal of Law and Justice 164.
25
s 69U
26
J Bowermaster, ‘Legal Presumptions and the Role of Mental Health Professionals in Child Custody
Proceedings’ (2001-02) 40 Duquesne Law Review, 265; N Ver Steegh and D Gould-Saltman, ‘Joint Legal
Custody Presumptions: A Troubling Legal Shortcut’, (2014 52(2) Family Court Review 263; M Brinig, L
Frederick and L Drozd, ‘Perspectives on Joint Custody Presumptions as Applied to Domestic Violence Cases’,
7… parents who enter the justice system to litigate about child custody or access have
passed the point where shared parenting should be presumed or even encouraged.27
Other scholars have noted that exceptions about family violence which are built into
presumptions often fail to prevent inappropriate applications of the presumption, because
of the difficulties of disclosure and being believed.28
I argue that the introduction of the presumption that ESPR is in the best interests of children
has been significant in skewing family law outcomes since 2006. Although the relevant
section states that the presumption does not apply when there has been family violence or
child abuse, research conducted after the 2006 amendments suggests that this exception is
not strongly applied and that parents end up with shared parental responsibility in many
cases where there has been family violence, abuse or serious conflict or where serious
allegations have been made.
The Evaluation of the 2006 amendments published by AIFS in 2010 showed the small extent
to which allegations of violence and abuse impacted on the making of orders for ESPR. Even
where both family violence and child abuse had been alleged, over 75% of these cases led to
orders for ESPR, whether made by a judge or by consent.29 Where the allegations related
to family violence only, the ESPR outcomes rose to nearly 80%, suggesting that the
exceptions contained in the presumption section were not working as intended by the
legislature. It should, however, be noted that where orders for sole parental responsibility
were made in favour of the mother, family violence and child abuse were quite often cited
as the reason.30
AIFS has also undertaken an evaluation of the family violence amendments which became
operative in 2012.31 This allowed a comparison of court and settled outcomes before and
after those changes. The evaluation showed that shared parental responsibility orders were
still being made in cases where there were allegations of child abuse and / or family
violence, but there were differences depending upon whether allegations of both kinds
were made and whether the orders were judicially imposed or consented to. The overall
results were:
52(2) (2014) Family Court Review 271; P Jaffe, A Presumption Against Shared Parenting for Family Court
Litigants’, 52(2) (2014) Family Court Review 187.
27
P Jaffe, A Presumption Against Shared Parenting for Family Court Litigants’, 52(2) (2014) Family Court
Review 187 at 187.
28
M Brinig, L Frederick and L Drozd, ‘Perspectives on Joint Custody Presumptions as Applied to Domestic
Violence Cases’, 52(2) (2014) Family Court Review 271 at 276-277.
29
R Kaspiew et al, Evaluation of the 2006 Family Law Reforms, 2010, AIFS, p 190.
30
R Kaspiew et al, Evaluation of the 2006 Family Law Reforms, 2010, AIFS p 188 (31% family violence and
18.7% abuse, which may overlap).
31
R Kaspiew et al, Court Outcomes Project, AIFS, October, 2015.
8As can be seen, although the allegations make some difference, many parents share
ongoing parental responsibility for their children post-separation despite a history of family
violence or abuse.32 The most significant change occurred in respect of shared parental
responsibility orders made by judges, which reduced from 51% pre-reform to 40% post-
reform.33 However, it must be remembered that only a tiny percentage of applications
commenced in the court end with a judicially determined order. Where parents consented
to the orders made, whether before or after initiating proceedings, orders for ESPR are
present in about 90% of cases. There were much smaller shifts in terms of changes to
orders for shared care time. These largely remained stable after the amendments, despite
the relevance of a history of family violence or abuse to the actual living arrangements of
children.
Although the ALRC recommendation has changed the precise detail of the presumption I
recommend that the FLA contain no presumption at all about what is BIC for the reasons
stated.
ALRC Recommendation 8
Section 65DAA of the Family Law Act 1975 (Cth), which requires the courts to consider, in
certain circumstances, the possibility of the child spending equal time, or substantial and
significant time with each parent, should be repealed.
I support this recommendation.
At a practical level perhaps the most damaging aspect of the structure of Part VII is the
legislative link between orders for ESPR and time outcomes for children. The time section (s
65DAA) is triggered when the presumption is applied and an order for ESPR is made, but it is
also triggered if an order for ESPR is made in any other situation. A judicial officer can
decide that the presumption should not be applied because of a history of family violence or
abuse, or should be rebutted for some other reason, but can still make an order for ESPR.34
Then the wording of the introductory phrase of s 65DAA means that equal and substantial
significant time outcomes must be considered.
32
It is understood that not all the allegations of family violence and abuse made can or could be proved.
33
R Kaspiew et al, Court Outcomes Project, AIFS, October, 2015, p 66.
34
This was made clear quite early in Good v Goode (No2) [2007] FamCA 315 at [63] and has been followed by
other judges.
9It is apparent from the AIFS Evaluations of the 2006 and 2012 reforms, other official reports,
independent research35 and the preliminary consultations for the ALRC Issues Paper that
orders and agreements for equal time, substantial and significant time and other significant
time sharing arrangements are made even where there is a history of DFV. In some families
this will be detrimental to the well-being of the children, in others it will be devastating and
dangerous.
ALRC Recommendation 9
Section 4(1AB) of the Family Law Act 1975 (Cth) should be amended to provide a definition
of member of the family that is inclusive of any Aboriginal or Torres Strait Islander concept of
family that is relevant in the particular circumstances of the case.
I support this recommendation.
A summary of my recommendations in relation to amendments to the FLA recommended
by the ALRC are set out below:
1. Section 60B of the Family Law Act 1975 (Cth) should be repealed.
2. Section 60CC of the Family Law Act 1975 (Cth) should be amended to generally
implement the recommendation of the ALRC with some changes to be as follows:
a. what arrangements best ensure the physical, psychological and emotional
safety of the child and the child’s carers taking into account any family
violence or abuse which has been or may be experienced by the child or the
child’s carer or to which the child or the child’s career has been, or may be
exposed.
b. any relevant views expressed by the child;
c. the developmental, psychological, and emotional needs of the child;
d. that children be able to continue relationships that are important to them,
provided that any history of family violence or abuse be taken into account in
considering whether or not any relationships should be continued and the
nature of how that on-going contact should occur;
e. the capacity of each proposed carer of the child to provide for the
developmental, psychological, and emotional needs of the child, having
regard to the carer’s ability and willingness to seek support to assist with
caring;
f. the nature of the relationship of the child with the proposed carer and other
persons; and
g. anything else that is relevant to the particular circumstances of the child.
35
See for example: L Laing, No Way to Live: Women’s Experiences of negotiating the family law system in the
context of domestic violence, New South Wales Health, University of Sydney and Benevolent Society, 2010; D
Bagshaw, T Brown, S Wendt, A Campbell, E McInnes, B Tinning, B Batagol, A Sifris, D Tyson, J Baker and P
Fernandez Arias, Family Violence and Family Law in Australia: The Experiences and Views of Children and
Adults from Families who Separated Post-1995 and Post-2006, April, 2010.
103. That professionals working in the family law system be encouraged and trained to
use a trauma informed practice.
4. That training and support be provided to judicial officers so that Australian family
law judges can develop confidence in meeting with children during parenting
proceedings where appropriate.
5. That protocols be developed to guide judicial meetings with children.
6. That the Family Law Act 1975 (Cth) be amended to provide that in determining what
arrangements promote the best interests of an Aboriginal or Torres Strait Islander
child, a court must consider the child’s opportunities to connect with, and maintain
the child’s connection to, the child’s family, community, culture, and country.
7. That section 61DA of the Family Law Act 1975 (Cth) be repealed.
8. That section 65DAA of the Family Law Act 1975 (Cth), which requires the courts to
consider, in certain circumstances, the possibility of the child spending equal time, or
substantial and significant time with each parent, be repealed.
9. That section 4(1AB) of the Family Law Act 1975 (Cth) be amended to provide a
definition of member of the family that is inclusive of any Aboriginal or Torres Strait
Islander concept of family that is relevant in the particular circumstances of the case.
The ALRC did not recommend any change to the definition of ‘family violence’ but I believe
that the current definition of family violence is problematic. I have analysed this section in
detail and concluded that the words chosen have created an unfortunate conflation of a
feminist concern to have coercive control understood as a central feature in much DVF and
the American typology literature about family violence.36 I do not wish to rehearse the
detailed critique of the typology literature which has occurred in Australia and other
countries in this submission, but in a nutshell, my concern is that DFV experienced by some
women is diminished in seriousness and relevance to parenting disputes by being
mistakenly categorised as ‘situational couple violence’ (and therefore probably mutual),
‘separation instigated violence’ (and therefore temporary in nature) or violent resistance
(she can give as good as she gets).37 Although some research suggests that new definition
may have allowed more instances of family violence to be deposed to in affidavits, it is clear
from judgments and other research that this definition creates an exclusionary structure
whereby violence must be coercively controlling or cause fear to fall within the definition.38
36
Z Rathus, 'Shifting Language & Meanings between Social Science and the Law: Defining Family Violence',
(2013) 36(2) University of NSW Law Journal 359. See the articles discussed in Maluka v Maluka (2009)
FamCA 647 and Maluka v Maluka (2011) FLC 93-464.
37
An idea well embedded in family law: See: T Dick, ‘She Gave as Good as She Got? Family Violence, Interim
Custody/Residence and the Family Court’ (1998) 14 Queensland University of Technology Law Journal 40.
38
J Wangmann, (2016) ‘Different types of intimate partner violence - What do family law decisions reveal?
30(2) Australian Journal of Family Law 77. The same problem has been identified in the USA. See: J Meier,
(2017) ‘Dangerous Liaisons: Social Science and Law in Domestic Violence Cases’ 13(51) Women, Gender and
the Law eJournal.
11There is also the problem that the structure of the section renders it narrower than the
words suggest on initial reading. The definition is entirely encased in s 4AB(1) and s 4AB(2)
only provides a list of examples which only become relevant if the conduct qualifies as
family violence under subsection one. I believe that the definition should be the list of
behaviours which can amount to DFV and should include behaviour that is coercive and
controlling and behaviour that causes fear. However, those characteristics should not need
to be present in every instance before conduct can be said to amount to family violence. I
commend the definition in the Queensland Domestic and Family Violence Act 2012. This
definition includes threats of suicide which are not included in the list in s 4AB.
To assist in considering these matters, judges should be encouraged to order expert DFV
reports.
My recommendations in this regard are:
10. That the definition of family violence under the Family Law Act be amended as
follows:
a. to remove the requirement that conduct must be coercive and controlling or
cause fear to amount to family violence;
b. to include a list of behaviours that may constitute family violence and the list
should include behaviour that is coercive and controlling or that causes fear;
c. that the definition in the Queensland Domestic and Family Violence Act 2012
be considered; and
d. provisions should be included which encourage judges and ICLs to consider
the need for an expert DFV report where this is an issue in a case.
e) All forms of violence against women, including, but not limited to, coercive control
and technology-facilitated abuse.
I will leave others to comment on this except to note that my Griffith colleague Molly
Dragiewicz has published extensively in the area of technology abuse.39
h) The experiences of all women, including Aboriginal and Torres Strait Islander
women, rural women, culturally and linguistically diverse women, LGBTQI women,
women with a disability, and women on temporary visas.
Others will cover this ToR in more detail. All of the groups of women mentioned here
experience additional challenges in dealing with DFV for a range of complex reasons.
Aboriginal and Torres Strait Islander experience DFV, and consequential serious injury, at a
rate far exceeding non-Indigenous women.40 But some of our existing ‘solutions’ contribute
39
Her website contains references to her many publications on this topic: https://www.mollydragiewicz.com/dv-
tech-study-info
40
Anna Olsen and Ray Lovett, Existing knowledge, practice and responses to violence against women in
Australian Indigenous communities: State of knowledge paper, Australia’s National Research Organisation for
Women’s Safety (ANROWS), 2016.
12to the over-representation of Indigenous people in the criminal legal system and the child
protection system – incarnation and out-of-home care – are also killing our First Nations
peoples. There is a serious lack of appropriate services for LGBTIQ women and men despite
statistics which indicate that DFV is as common in this community as in the ‘straight’
community. Different kinds of abuse – including threats of outing – add to the difficulties
faced by LGBTIQ victims - and they also confront disbelief and scepticism that a same sex
partner can be genuinely intimidating. Coercive control is pervasive.41 There is a critical
need for more research in this field.
As Chairperson of the Immigrant Women’s Support Service (IWSS) in Brisbane I am aware of
the extra-ordinarily difficult circumstances faced by our client group. Some have no access
at all to income or services.
I generally support the Blueprint for Reform.42 Importantly I support the idea that a time-
limited new subclass of temporary visa should be introduced to protect survivors of DFV in a
range of circumstances where they are not safe. It should include work, study, medicare
and social security rights. It is not an automatic pathway to a permanent visa, but would
allow the survivor time to organise their new lives. They should then be entitled to apply for
any visa for which they are eligible.
I think that recommendation 1.3 in the Blueprint is too narrow. There are mothers who do
not have family court orders (eg because the Australian father seeks no contact with his
child and would consent to the child leaving Australia). In this situation the citizen child is
forced to leave Australia with his / her mother. These mothers with citizen children, who
have disinterested fathers, should have a pathway to permanent residency. This would be
consistent with family law policy that children should be enabled to have a ‘meaningful
relationship’ with both of their parents.
Other issues to emphasise include:
• a determination about whether there has been DFV should be made before
determining the question of ‘genuine relationship’. The issue of whether or not
there was a genuine relationship should then be determined in light of all the
complexity of proof and evidence created by DFV;
• FV provisions should apply to person on Prospective Marriage Visa if there is DFV
and the woman was not married before the relationship breakdown
• FV provisions should apply to persons who have applied for permanent visa onshore
as a secondary application and a person who has applied for a family visa onshore
and is awaiting decision
The staff at IWSS have provided this information to me to share with this Inquiry:
41
See: Marina Carman et al, Pride in Prevention: A guide to primary prevention of family violence experienced
by LGBTIQ communities, Rainbow Health Victoria for the LGBTIQ Family Violence Prevention Project 2019–
2021. For a useful resource see: Catalyst Foundation, Towards a Safe Place, 2018.
42
National Advocacy Group on Women on Temporary Visas Experiencing Violence, Blueprint for Reform:
Removing Barriers to Safety for Victims / Survivors of Domestic and Family Violence who are on Temporary
Visas, 2019.
13• clients may suffer financial abuse because they have married in their home country
and their husband now controls all the money given to the couple by the wife’s
family;
• the family of the wife in the home country may also be threatened;
• the waiting period of four years for women on temporary visas forces women to stay
in abusive relationships.
Client example:
“Mary” (name changed) is a single mother, who has a young child. Mary is on a
Bridging visa E with work and study rights. She is not eligible for Centrelink income
and is receiving only a concession for her Australian-born child. Due to her
situation, she must extend her visa every three months until a final decision is
made by immigration for a permanent visa option. During the COVID 19 lock downs,
Mary was not able to proceed with her part time job and not eligible for any COVID
related support payments. She was also concerned and confused about her and her
child’s immediate future due to the impact of the COVID 19. Currently, Mary is
receiving counselling and emergency relief support, while proceeding with her
work again. However, the traumatic experience of the lock down period and the
limited access to safety nets has put additional stressors on her mental wellbeing.
Restrictions for temporary visa holders need to be reconsidered, as many women
like Mary who have limitations with accessing support and adequate care for their
families, face an impossible living situation. It violates human rights.
IWSS staff also report poor experiences for CALD women reporting sexual violence to police
and a regular failure of police to request interpreters in situations of both DFV and sexual
violence.
I take this opportunity to commend the complex work undertaken by the staff at IWSS and
other frontline DV services. The commitment of these staff has been outstanding and
crucial during the COVID 19 crisis and its impact on victims of violence.
A summary of my recommendations under this Term of Reference are set out below:
11. That service provision for DFV in LGBTIQ communities be properly funded, including training
for staff
12. That research into DFV in LGBTIQ communities be conducted
13. That a new sub-class of visa be created for DFV survivors on temporary visas whose status is
placed at risk
14. A determination about whether there has been DFV should be made before determining the
question of ‘genuine relationship’. The issue of whether or not there was a genuine
relationship should then be determined in light of all the complexity of proof and evidence
created by DFV
15. The FV migration provisions should be extended to cover a range of circumstances where
victims
14i) The impact of natural disasters and other significant events such as COVID-19,
including health requirements such as staying at home, on the prevalence of
domestic violence and provision of support services.
It has been amazing to see the speed at which services adapted to our new world. Services
started to be provided online assistance extremely rapidly and information about DFV and
COVID was available from early on. I note the practical nature of material produced by
organisations such as the Women’s legal Service, Caxton Legal Centre and Legal Aid
Queensland.
I also commend the family courts for their response to the virus. On 26 March the Chief
Justice / Judge, the Hon Will Alstergren, issued a “Statement” regarding the ‘highly unusual
circumstances now faced by Australian parents and carers’ which might ‘make strict
compliance with current court orders very difficult’. His Honour urged that parents look for
solutions ‘sensibly and reasonably’. More importantly, after receiving correspondence from
the Women’s Legal Service regarding the overwhelming problems being experienced by its
client cohort, the Chief Justice set up a regular communication process with Women’s Legal
Services and issued a Joint Practice Direction - JPD 3 of 2020 – The COVID List.
I believe that a great deal would be revealed – positive and negative – about judicial
responses and attitudes to DFV – by undertaking an analysis of the of cases in this list in the
future.
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