“It’s Like Standing on a Beach, Holding Your Children’s Hands, and Having a Tsunami Just Coming Towards You”: Intimate Partner Violence and “Expert” Assessments in Australian Family Law

ABSTRACT

The ways in which postseparation parenting disputes are managed has undergone significant change in Australia since the Family Law Act (Cth) was first enacted in 1975. The best interests of children have always been paramount in children’s cases and over the last 20 years, this concept has been legislatively shaped to include ongoing beneficial post separation parental relationships and protection from harm. A critical piece of evidence to inform a Family Court’s decision making in such matters is a family report, which is an expert assessment compiled by a social science professional. The authors report findings from an Australian based qualitative study exploring the experiences of family report assessment practice from the perspective of victim mothers who have separated from men who perpetrate intimate partner violence. The authors conclude that reforms are necessary to improve the practice and procedure of family report writing in Australia. Such reforms should ensure that the lived experience of victims of intimate partner violence is validated, assessment processes have victim efficacy, and the outcomes of such reports do not put women and their children at ongoing risk of harm.

KEYWORDS:

• family/domestic violence
• victims
• legal process
• children

Disclosure statement

No potential conflict of interest was reported by the authors.

Notes

1. We mainly use the term intimate partner violence in this article because our focus was on violence against women in heterosexual relationships. In Australia the relevant legislation, the Family Law Act 1975 (Cth), uses the term family violence but that encompasses a broader spectrum of violence than we examined. However, when we are quoting from the interview participant mothers, we have used whatever language they used—which was usually “domestic violence.”

2. The Family Courts of Australia and the Federal Circuit of Australia will be referred to as the family courts in the present article. They both operate at federal level but the Family Court is the superior court.

3. Although under the Family Law Act, certain professionals who are commissioned to prepare family reports are called family consultants—see Family Law Act 1975 (Cth) s 11A and s 11B)—we have used the term FRWs because there is now a range of social scientists who prepare family reports. Those employed at the family courts are family consultants as defined, but others are not.

4. A statutory definition of “best interests of children” is set out in the Family Law Act 1975 (Cth) s 60CC(2) and (3).

5. Independent Children’s Lawyers are appointed to complex cases judges under s 68L of the Family Law Act 1975.

6. We have chosen to use the word victim because the mothers were generally quite recently separated and were still in, or dealing with, the family law system. They were not yet survivors.

7. Or “custody evaluations,” as they are called in the United States.

8. Parental exchange of children at designated drop-off and pick-up points.

9. Family Law Act 1975 section 62G.

10. Legal Aid in Australia is legal assistance provided by the government. Each state and territory has its own Legal Aid Commission, which is responsible for administering Legal Aid. There are Legal Aid offices in cities, suburbs and towns across Australia (see https://www.australia.gov.au/information-and-services/public-safety-and-law/legal-aid).

11. See Family Law Regulations 1984 (Cth), reg 7.

12. Equal shared parental responsibility requires parents to consult each other and make joint decisions about major long-term issues for the child

13. Griffith University and the Queensland University of Technology in Brisbane Australia.

14. Family Law Act 1975 section 121—which arguably includes publication by the mother of the family report to the research team.

15. The research team has recommended to a current Inquiry into the family law system that consideration be given to legislative reform that would enable access to family law documents for bona-fide research activities (Australian Law Reform Commission (2017–18) Review of the Family Law System).

16. This is a brand of disposable dish cloth very commonly used in Australia.

17. Some research suggests that male narcissists will behave with particular hostility toward heterosexual women (Keiller, 2010).

18. This involves making the victim think they are going crazy. Also known as gaslighting, it is a tactic used by some abusive men as part of their psychological attack (for a discussion of the term gaslighting, see Calef & Weinshel, 1981).

19. These FRWs operate in private practice and are appointed under regulation 7 of the Family Law Regulations (1984) by the Chief Executive Officer of the Family Court of Australia or Federal Circuit Court.

20. Contact Centres are facilities that provide a supervised space where change overs can take place and/or contact visits between children and parents can occur safely.

21. Family Law Act 1975 section 11D.

22. This is under consideration in the current review of the family system (cf. Australian Law Reform Commission, 2018).