Sydney Law School

Legal Studies Research Paper No. 08/18

January 2008

Domestic Violence and Child Contact Arrangements

Miranda Kaye, Julie Stubbs & Julia Tolmie

This paper can be downloaded without charge from the Social Science Research Network Electronic Library

at: http://ssrn.com/abstract=1084682.

Kaye, M Stubbs J & Tolmie J ‘Domestic violence and child contact arrangements’ (2003) 17 Australian J of Family Law 93-133.

Domestic Violence and Child Contact Arrangements

Miranda Kaye*, Julie Stubbs# and Julia Tolmieϒ

This article outlines the results of an Australian study examining the experiences of 40 women who have had to negotiate and facilitate contact arrangements with an ex-partner who has abused them. Those results are supplemented by findings from interviews with 22 individuals and representatives of bodies professionally involved in the process of facilitating the development or implementation of child contact arrangements. It was found that for most of the women the end of the relationship had not meant an end to violence towards them. Much of that violence was linked in some way to the negotiation or exercise of child contact. It was also found that the protection of women and children was frequently overlooked in the process of negotiating and implementing child contact arrangements.

Introduction The incidence of spousal violence against women is high, particularly in the separating population.1 Negotiation of, or the exercise of, child contact may place women in contact with an abusive ex-partner and hence expose them and/or their children to the risk of abuse. The confluence of domestic violence, separation, children and disputes around contact or residence for children, may thus render some women a particularly vulnerable group. This is confirmed by studies conducted in a number of countries which have demonstrated the difficulties women have in reaching child contact arrangements with ex-partners who have been abusive.2 Against the background of that research we were

* Senior Lecturer, Faculty of Law, University of Sydney # Associate Professor, Faculty of Law, University of Sydney ϒ Senior Lecturer, Faculty of Law, University of Auckland 1 See, for example, the Australian Bureau of Statistics Women’s Safety Australia, 1996, Canberra. This study found that 8% of women who were married or in de facto relationships reported an incident of violence at some time during their current relationship, whilst 42% of women who had ever been in such a relationship reported an incident from a previous relationship (at page 50). Of all of the women who had ever experienced violence in a relationship,35% had experienced it during separation (at page 57). 2 Marianne Hester and Lorraine Radford, Domestic Violence and Child Contact Arrangements in England and Denmark, Policy Press, Bristol, 1996; Howard H Davidson, A Report to the President of the American Bar Association: The impact of Domestic Violence on Children, American Bar Association, Washington,

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interested to look at the nexus between violence and child contact arrangements within Australia. Accordingly, this article outlines research undertaken into the experiences of Australian women who have to negotiate and facilitate residence and contact arrangements with an ex-partner who has abused them.3 This paper first briefly describes the methodology used in conducting the research before going on to outline some of the findings. The violence that the women and their children experienced is described before discussing the difficulties that they had in protecting themselves from that violence. Such difficulties include: the interaction between protection orders (ADVOs) and Family Law matters; the problems that the women experienced in negotiating contact arrangements with a abusive ex partner; the outcomes that commonly resulted in these types of cases; the women’s experiences of implementing the contact arrangements they had negotiated; and, finally, enforcement issues.

Research Methodology

(a) Interviews with women

We used semi-structured interview schedules to interview 40 women who had been/were the targets of domestic violence whilst in a relationship with the father of their children and who had negotiated/were negotiating child contact arrangements post separation.4 The interviews with the women took place between July 1998 and end of 2000.5 We used a semi-structured interview technique in order to allow individual participants to have some role in defining the issues and experiences they perceived as important.6

The women that we interviewed were recruited for the study with the assistance of the Family Court, women’s refuges and women’s health centres, all of which distributed literature about the study to clients. Individual women who wished to participate in the research then made contact with the researchers.

DC, 1994; Linda Neilson, “Spousal Abuse, Children and the Legal System”, Final Report For the Canadian Bar Association, Law for the Futures Fund, New Brunswick, 2001, available at http://www.unbf.ca/arts/CFVR/spousal_abuse.pdf [last accessed 18/11/02]. 3 A full report is available as “Negotiating Child Residence And Contact Arrangements Against A Background Of Domestic Violence” Family, Law Research Unit Working Paper No4, 2002 (http://www.gu.edu.au/centre/flru/.). The project was funded by an Australian Research Council Small Grant, the NSW Law Foundation and the Faculty of Law, University of Sydney. 4 Eleven follow-up interviews were also conducted to clarify issues or to find out the outcome of proceedings that were pending at the time of interview. 5 No women had experience with the new Federal Magistrates Service. 6 The schedule was based, in part, on that used by Hester and Radford, above n 2, modified for local circumstances and to reflect local law, policy and practice. The interview schedules for the women and professionals (modified for each professional grouping) are contained in schedules to the final report. See above at note 3.

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Where possible interview data was supplemented by court documents provided by interviewees and by diaries kept by a small number of the interviewees7 documenting their ongoing experiences with contact and residency arrangements. 8

We chose not to interview men in this study.9 We made this decision to avoid compromising the safety of the women involved.10 It is also the case that most perpetrators of domestic violence are male.11 Despite our interest in children’s experiences and perceptions, we chose not to interview children for other reasons. Such interviews require special skills in order to avoid putting children at risk. Interviews with children also raise particular ethical concerns.12

This research was necessarily exploratory because funding limitations placed constraints on both the sample size and the geographical area that could be covered by the research.13 Throughout this article we have sometimes given percentages in order to indicate themes arising in the interviews. Nonetheless the small sample means that this research is intended to produce qualitative rather than quantitative data. In addition, the sampling methodology used in this research project necessarily limited the generalisability of the findings. The fact that the women interviewed were self-selected meant that our sample was not representative of all women who are resident or contact

7 Five women completed diaries. 8 Whilst ideally it would be preferable to have behavioural measures to confirm the interview outcomes at all stages of this project, such as observing the negotiation processes and professional/client interactions, the highly confidential and sensitive nature of contested family disputes makes this impossible and arguably unethical. 9 We note the concerns of some researchers that fathers’ perspectives have been overlooked. However, as our primary concern was how victims of domestic violence negotiate contact for their children, we believe that our focus on mothers is a legitimate one due to the gendered patterns of domestic violence. See Kathleen J Sternberg ‘Fathers, the Missing Parents in Research on Family violence’ in ME Lamb (Ed) The Role of the Father in Child Development (3rd ed.), John Wiley & Sons, 1997. 10 For example, we did not want to run the risk of alerting the perpetrators to the women’s involvement in the project in instances of high volatility and abuse, or otherwise unwittingly antagonising the situation. For women in hiding we did not want to provide a link back to the target. We also did not want to place our researchers in circumstances that were potentially volatile and dangerous. 11 Australian Bureau of Statistics Women’s Safety Survey. These findings have been confirmed in other countries, see Patricia Tjaden and Nancy Thoennes Full report of the prevalence, incidence and consequences of violence against women, Findings from the National Violence Against Women Survey, Washington D.C. US Department of Justice, 2000. We do not discount the fact that there are some men who are genuine targets of domestic violence and would welcome analogous research on this issue. The study by Keys Young for Legal Aid and Family Services, Research/ Evaluation of Family Mediation Practice and the Issue of Violence, A-G’s Dept, Canberra, 1996, p 82, did attempt to interview and survey men about mediation and violence with inconclusive results. 12 Joan Sieber Planning ethically responsible research, Sage, 1992, Chapter 10; Einat Peled ‘Ethically Sound Research on Children’s Exposure to Domestic Violence: A Proposal’ in SA Graham-Bermann and JL Edleson (Eds) Domestic Violence in the Lives of Children: The Future of Research, Intervention, and Social Policy, American Psychological Association, 2001; Peter G. Jaffe, Samantha E. Poisson and Alison Cunningham, ‘Domestic Violence and High-Conflict Divorce: Developing a New Generation of Research for Children’ in SA Graham-Bermann and JL Edleson (Eds) Domestic Violence in the Lives of Children: The Future of Research, Intervention, and Social Policy, American Psychological Association, 2001. Where there has been conflict between the children’s parents the children may be especially vulnerable and it may be difficult to gain parental consent for such interviews. 13 Subjects were drawn mainly from the Sydney metropolitan area.

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parents and who have been the targets of violence. In addition, relying on agencies to distribute information to their clients about the study necessarily limited potential subjects to those in contact with such agencies. However, there are real practical and ethical impediments to undertaking such research in other ways. First, there was no way that a representative sample could be selected for this research since such a sample relies on first identifying all members of the population who meet the study’s criteria and then sampling from within that population. Because domestic violence remains a stigmatised and often hidden phenomenon, identifying all the members of the population which was being studied was impossible. Secondly, many women who experience domestic violence are in crisis, some are in hiding and others move to new locations as they attempt to escape the violence. Concerns about the women’s (and children’s) safety necessitated allowing the women to self select.

ren’s ages ranged from 17 months upwards. There were similar numbers of girls (n=43) and boys (n= 45).

(b) Interviews with professionals

amily Court facilitated interviews with mediators and court counsellors at two registries.

The majority of the women interviewed for this project were born in Australia and three were from Aboriginal and/or Torres Strait Islander backgrounds. Ten women were born overseas, five in English speaking countries and five in non-English speaking countries. Thirty women had been married to the father of their children and 12 had been living with him as a de facto couple.14 The relationships had lasted from nine months to 23 years, with a median range of six to ten years.15 The majority of the women had separated from their former partner on more than one occasion. At the time of being interviewed the women had been separated from their former partner for periods ranging from four months to 21 years. The numbers of children the couple in question had together ranged from one to five, with most couples making contact arrangements for one (n=12) or two children (n=18). The child

We also used semi-structured interview schedules to interview 22 individuals and representatives of bodies professionally involved in the process of facilitating the development or implementation of child contact arrangements. This was a purposive sample derived from individuals or organisations known to have relevant experience.16 The researchers made direct approaches to individuals or organisations with invitations to participate in the study. The F

14 Note that one woman was interviewed in relation to 3 of her ex-partners and therefore there are more men than women mentioned. 15 Figures were missing for four relationships. 16 Purposive sampling, while not representative, can be an effective and efficient way of targeting research for specific purposes: David A. De Vaus, Surveys in social research, Allen & Unwin, 1985, p 68. The 22 professional interviews consisted of interviews with refuge workers (n=4), solicitors (n=5), domestic violence court assistant scheme workers (n=3), workers from supervised contact centres (n=1), domestic violence counsellors from a women’s health service (n=1), Area Health Service Child and Family Workers (n=1) and Family Court Child and Family counsellors (n=7). The refuge workers included child support workers within a refuge, an Aboriginal refuge worker and a NESB refuge worker. The solicitors were from private practice (n=2), community legal centres (n=1), the Legal Aid Commission (n=1) and one who had formerly worked primarily with Aboriginal clients.

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Interviews with professionals were undertaken for three reasons. First, they offered a chance to learn more about the experiences of women beyond our sample who had been the targets of violence and who needed to negotiate contact arrangements against this background. Many of the professionals we interviewed had had extensive experience with clients in this position. Secondly, these interviews offered a limited means of triangulating data and comparing and contrasting professional accounts with those of the women in our sample. 17 Thirdly, we aimed to gain some insight into the professional practice of those who are involved in facilitating the negotiation and implementation of child contact arrangements.

The Violent Context All of the women interviewed for this project had been subjected to psychological or emotional abuse whilst they were in the relationship. Only six of the women said that this was the sole form of abuse that they had experienced. Most of the women had experienced multiple forms of violence. The overwhelming majority of the women (n=34; 85%) had experienced one or more forms of physical and/ or sexual abuse in addition to psychological or emotional abuse. Our study adds to the growing body of research suggesting that spousal abuse and child abuse are inter-related phenomena.18 Women in our study reported that almost two-thirds (62.5%) of the children had witnessed physical violence against their mothers and more than a third had actually been the targets of physical violence themselves (indications are that this figure would be much higher if psychological abuse was also counted).

All but one of the 40 women we interviewed (97.5%) had experienced violence or abuse since separation. Of the 39 women who experienced post-separation abuse, 24 describe at least one incident of physical abuse. In addition, all of the 39 women who experienced post-separation abuse describe experiencing ongoing psychological abuse. This includes

17 In other words the capacity to use more than one approach or source to reflect on a given issue. "[T]he use of multiple methods, or triangulation, reflects an attempt to secure an in-depth understanding of the phenomenon in question. Objective reality can never be captured. Triangulation is not a tool or strategy of validation, but an alternative to validation. The combination of multiple methods, empirical materials, perspectives and observers in a single study is best understood, then, as a strategy that adds rigor, breadth and depth to any investigation." (Norman Denzin, ‘Introduction’ in N Denzin and Y Lincoln (Eds), Strategies of Qualitative Inquiry, Thousand Oaks, California, Sage, 1998, p 4). 18 For example, Thea Brown, Margarita Frederico, Lesley Hewitt and Rosemary Sheehan, Violence in Families: The Management of Child Abuse Allegations in Custody and Access Disputes before the Family Court of Australia, The Family Violence and Family Court Research Program, Monash University and the Australian Catholic University Canberra, Melbourne, 1998; A Tomison, “Exploring Family Violence: Links Between Child Maltreatment and Domestic Violence” (2000) 3 Issues in Child Abuse Prevention; Kathryn Rendell, Zoe Rathus and Angela Lynch, for the Abuse Free Group, An Unacceptable Risk: A Report on Child Contact Arrangements where there is Violence in the Family, Women’s Legal Service Inc., Brisbane 2000; Rebecca Morley and Audrey Mullender, ‘Domestic Violence and Children: What Do We Know From Research?’ in A Mullender and R Morley (Eds) Children Living with Domestic Violence: Putting Men’s Abuse of Women on the Child Care Agenda, Whiting & Birch Ltd, London, 1994.

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behaviour such as threatening death or injury, verbal abuse (sometimes loudly and in public), stealing, stalking, vandalism to homes and cars, harassing phone calls, repeated unwelcome visits, objects being thrown at the house or through windows, houses being broken into, and lies being told to government departments, employers and landlords in an effort to make trouble for the women. Importantly, a significant proportion of the post-separation violence could be linked in some way to the negotiation and/ or exercise of child contact. The fact that seven of the 40 women interviewed had been separated for six or more years and yet domestic violence by their former partner remained a salient issue for some of them indicates that domestic violence can be enduring and does not necessarily abate with time after separation.

Protection Orders: interaction with family law matters Most of the women in our study had attempted to protect themselves and/or their children from the violence that they faced by obtaining or trying to obtain a protection order, known in New South Wales as an Apprehended Domestic Violence Order (ADVO). Of the 38 women who commented on this 31 (81.6%) had obtained an ADVO at some point.19 A further three women had attempted to obtain an ADVO but had been unsuccessful. Only three women reported that they had not sought an ADVO.20

The impact of Australia’s Constitutional arrangements for the women in our study meant that child protection and protection from family violence by obtaining an ADVO are matters generally dealt with in State courts by State law, whilst family law matters, including parenting orders, are matters for Commonwealth law. The fact that some family law matters may be heard either in a State court (Local Court) or the Family Court (and now the Federal Magistrates Service21) adds to the complexity. Unsurprisingly, not all of the women interviewed for this study were able to identify clearly the details of the legal interventions they had been involved in. Some did not fully understand the distinctions between Local Courts and the Family Court. Some had had so many court appearances that it was difficult for them to identify what had happened on any particular occasion. For example, Rebecca22 said:

I was going through the Children’s Court the same time I was going through the Family Law Court as well as the Local Court. Three courts. All in one hit. So what orders were being made in one court were thrown out by the other court

19 However, one of these women had several violent ex-partners and had been unsuccessful in obtaining an ADVO against one of her ex-partners. 20 One other woman who commented on the experience of trying to obtain an ADVO did not indicate what the outcome was. 21 At the time of the interviews none of the respondents had experience with the newly established Federal Magistrates Service. 22 Women have been assigned pseudonyms to afford them anonymity.

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and they’re all telling you what to do and here you are sitting there and heads spinning.

Perhaps more significant than the confusion generated by the multiplicity of jurisdictions that women needed to negotiate to resolve their family crises, is the fact that the interaction between the legal practises surrounding the issue of ADVOs and those surrounding the resolution of contact disputes significantly undercut the protection the law offered in respect of domestic abuse. Thus a number of the women had experienced problems in obtaining appropriate ADVOs or in enforcing their ADVOs due to the co-existence of the State and Commonwealth jurisdictions.

Division 11 of the Family Law Act 1975 (Cth) (“FLA”), which was introduced in 1995 to deal with inconsistencies between FLA contact orders and State and Territory family violence orders, does not seem to be working to remedy the problems. By way of example, the second time that Barb applied for an ADVO for herself and her children the Local Court decided not to deal with the matter because her ex-partner had started proceedings in the Family Court. The magistrate commented that the “Family Court was looking after it now” and that her interim Family Court orders for supervised contact “covered the situation.” This was not the case because the contact orders issued did not, in fact, protect Barb at all and, furthermore, proceedings in the Family Court do not preclude action being taken for a protection order in a State court.23 The magistrate went on to comment that, in any event, he “couldn’t overrule the Family Court”. This was incorrect because the hearing took place after the introduction of Division 11 and so the magistrate did have the power to grant an ADVO and vary the contact order, as appropriate, using s68T of the Family Law Act. 24

The use of s68T in Helen’s case would also have left her better protected. In a diary entry Helen discussed going to the Local Court to obtain a variation to her ADVO to prevent her ex-partner entering the villa complex at which she lived and how happy and secure she felt in consequence:

Feel comfortable as I have an order he can’t come into the villa complex at all. So I have personal space. Real happy day….No-one able to terrorise me at my front door.

However, the next day her ex-partner attended her premises for contact with the children. She wrote, “DREAD and heart racing I hear his truck come into the villa complex”. She rang the police who informed her that the Family Court contact order allowed him to collect the children from her premises and this overrode the ADVO so that there was no breach of the ADVO. The magistrate making the variation of the ADVO must have been 23 562FA Crimes Act specifically deals with the making of a protection order where there is a relevant contact order of the Family Court. However, a recent survey of NSW magistrates found that 40 percent of the magistrates agreed with the practice of some courts in deferring final ADVOs where Family Court proceedings are also in place. Some other magistrates were reported to object to this practice as it put women at risk: see Jennifer Hickey, and Stephen Cumines, Apprehended violence orders: a survey of magistrates, Judicial Commission of New South Wales, 1999, p 35. 24 This story is consistent with research suggesting that magistrates are not using this power: Kearney McKenzie and Associates, Review of Division 11: Report, Kearney McKenzie & Associates, Sydney, 1998, p 17.

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aware of the Family Court contact orders because the ADVO contained two arguably inconsistent clauses. One clause stated that the “defendant must not go within 100 metres of [address] unless exercising access under Family Law orders”. The second clause stated that “the defendant must not enter the premises or the villa complex of the protected person’s [address]”. Accordingly, the Magistrate could have used s68T to vary the Family Court contact order so that the contact changeover had to take place outside the villa complex or in another safe location. They did not and Helen later wrote:

I am shattered. I feel like it has been a big waste of time getting [ADVO] and changing the orders. … They might as well slap him on the back.

Other women, such as Gina, found that enforcing the ADVO was also difficult when there were Family Court contact orders in place. Gina commented that every time she had taken her ADVO in to the police, they had said that it was not clear enough when considered in conjunction with the “Family Law papers” to arrest her abuser. She disagreed with this view, saying that the Family Court orders were quite specific about the parameters of the contact he was permitted to have. The issue for Gina, like many of the other women interviewed, was that her ADVO was issued with a standard condition allowing the defendant to contact her for the purpose of arranging or exercising child contact. This meant that when the contact order was made by the Family Court questions of inconsistency between the ADVO and contact orders technically did not arise and so Division 11 did not apply to enable variations of the contact order. It also meant that it was difficult for the police to determine when a breach of the ADVO had actually occurred. Hayley Katzen, whose work confirms that these kinds of experiences are a problem, has found that police officers in these types of cases “generally focused on the tangible conditions of the order, such as ‘contact permitted for the purposes of arranging access’ rather than considering the threatening or harassing nature of the reported behaviour.”25

Susan was another woman in our study who found that jurisdictional complexities left her with little protection from the violence that she was attempting to negotiate. She had a s114 FLA injunction that she thought would protect her.26 However when the local police were called they failed to enforce the order on the basis that it was a federal police matter. They took this approach presumably because they were not familiar with s114 injunctions.27 As a consequence they said that they would only act if violence actually occurred.

25 Hayley Katzen ‘It’s a Family Matter, not a Police Matter: The Enforcement of Protection Orders’ (2000a) 14 Australian Journal of Family Law 119 at 134-135; Hayley Katzen, ‘How Do I Prove I Saw His Shadow?’: Responses to Breaches of Apprehended Violence Orders, Northern Rivers Community Legal Centre, 2000b, pp 173-8. 26 Only two women interviewed indicated that they had sought an injunction under s114 in response to their ex-partner’s violence. 27 s114AA provides that where an injunction is in force under section 114 for the personal protection of a person and a police officer believes, on reasonable grounds, that the injunction has been breached by: (i) causing, or threatening to cause, bodily harm or (ii) harassing, molesting or stalking , the police officer may arrest the respondent without warrant.

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There is, of course, no easy solution to the jurisdictional overlaps in the area of family violence and family contact orders.28 We note that the Violence Committee of the Family Law Council is currently preparing a letter of advice to the Attorney-General regarding options to reform Division 11 of the Family Law Act and we await those recommendations with interest.29 In the meantime it is essential that Magistrates, police prosecutors and family law practitioners are better educated about the problems that may arise from the making of ADVOs which are “subject to Family Court contact orders” and also about the existence of the power in s68T.30 It would also seem sensible to amend s562D Crimes Act 1900 (NSW), and its equivalent in other States and Territories, to expressly include the possibility of variation, suspension or discharge of a contact order amongst the list of prohibitions and restrictions which may be imposed by an ADVO.

Negotiating Contact31 The most common manner of arriving at the current arrangements amongst women interviewed for this study was consent orders (n= 18; 43.9%), followed by court adjudicated orders (n=15; 36.6%). In addition, eight women (19.5%) had reached outcomes through private negotiations.32

(a) Agreements by consent?

The fact that eighteen women in the current study had consent orders33 and eight had private agreements could reflect the fact that within the court system there is an emphasis on parties (and their legal advisers) reaching agreement when contact and residence applications are made.34

28 See Family Law Council, The Best Interests of the Child? The Interaction of Public and Private law in Australia, Discussion Paper No. 2, Canberra, 2000, at p23-5 and Chapter 4. See also Family Law Pathways Advisory Group, Out of the Maze: Pathways to the Future for Families Experiencing Separation, Commonwealth of Australia, Canberra, 2001, Recommendation 28, at p 84. 29 See http://www.ag.gov.au/flc/newsletter/flcn33.htm [last accessed 22/10/02]. 30 The “drafting of the section is remarkable and unfortunate in its complexity” (Miranda Kaye, “Magistrates’ Powers to Alter Family Court Contact Orders: Section 68t Family Law Act 1975” (forthcoming) Judicial Officers’ Bulletin). The section requires that when exercising the power, the magistrate have regard to the best interests of the child and the purposes of Division 11 as listed in s68Q. The section mentions at least six other provisions of the Family Law Act. 31 Please note that an overview of institutional and procedural aspects of the Australian system for resolving contact disputes is contained in the full report, above at note 3 32 Percentages are based on 41 cases since one woman is counted twice as she had a consent order with respect to one former partner and a private agreement with another former partner. 33 This included one woman who had consent orders with two of her former partners, but a private agreement with another partner. 34 Claire Furniss (2000) ‘The process of referral to a family contact centre: policies and practices’ 12 Child and Family Law Quarterly 255 at 263. Rosemary Hunter found that solicitors believed that the policies and practices of the Family Court “created an expectation to settle” and that this was because “primary dispute resolution was written into the Act itself.” Only “the very worst cases” were expected to go to hearings and this expectation to settle was communicated to practitioners and clients: (Rosemary Hunter, Legal Services In Family Law, Justice Research Centre, 2000 p 338). In addition, she also found that Legal

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There is a tendency to congratulate participants and the system when consent is reached, but sometimes the true nature of that consent must be questioned. A number of previous studies have suggested that one of the costs of placing greater emphasis on primary dispute resolution and the early settlement of residence and contact disputes is that women who have been the targets of domestic violence will be put under pressure to make contact arrangements that are unsafe for them or for their children.35 We found some support for this in the present study. Interviews with both women and professionals suggested that apparent agreement to residence and contact arrangements might not be evidence of genuine consent in some cases where domestic violence is involved.36

Ten of the professionals we interviewed commented that parties sometimes entered agreements under pressure and that these agreements were not always in their own interests, or in the interests of their children. These professionals came from across a wide range of areas of practice and included two Family Court counsellors, three solicitors, two refuge workers, a court assistance scheme worker, a women’s support worker and a domestic violence worker.37 For example, some of the professionals reported that clients sometimes felt pressured by Family Court counsellors to reach an agreement, or even to reconcile with an abusive partner, for the sake of the children. One of the Family Court counsellors, in fact, raised concerns that they were failing clients due to the pressures to “settle sooner and sooner”:

I think it’s going to work against them. They you know they need time, anybody needs time who is coming out of a situation where there’s domestic violence. … And I’ve felt I have seemed to fail them. … And I worry that this push to be cost effective, to be you know be measured by your client’s satisfaction or performance appraisal um that you know it’s not an economy really because we

Aid Commission guidelines were also seen as having an important role in enforcing the rate of settlement (p 339). 35 Helen Rhoades, Reg Graycar and Margaret Harrison, The Family Law Reform Act 1995 The first three years, Final Report, University of Sydney and the Family Court of Australia, 2000, at p 71; Hester and Radford, above n 1, pp 29-31; Helen Rhoades (2002) ‘The ‘No Contact Mother’: Reconstructions of Motherhood in the Era of the ‘New Father’’ 16 International Journal of Law, Policy and the Family 71, at pp 83, 87. 36 This is supported by Rhoades, Graycar and Harrison who also found evidence of women making unsafe contact arrangements by “consent” because they felt there was no other option to which the father would agree or because their lawyer had advised them that the court would not agree to any alternative (Rhoades, et al, above n 32, pp 96-97). Rhoades et al also reported at p 97 that it takes approximately 12 minutes for a consent order to be “scrutinised” and approved. See also Linda Neilson, Spousal abuse, Children and the Legal System, Final Report for Canadian Bar Association, Law for the Futures Fund, Muriel McQueen Fergusson Centre for Family Violence Research, University of New Brunswick, March 2001, at http://www.unbf.ca/arts/CFVR/spousal_abuse.pdf., at p77. 37 For example, a family law accredited solicitor said that at the time of the interview they had several cases of women who had been pressured into contact agreements, suggesting that this was not an unusual occurrence. A solicitor who had formerly worked in a service with Aboriginal family law clients was very critical of the notion that outcomes were reached by consent. They described how their clients would often get flustered and feel pressured in counselling, and thus saw litigation, at least to the point of interim orders, as a better option. However, the solicitor also recognised that they had the capacity to litigate where others might not since they were not required to apply for Legal Aid and thus were not subject to caps or other limits on grants for aid. One Family Court counsellor said “I just feel as though people are under the impression sometimes when they come here that they have to make, they have to get agreement.”

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may be dealing with more complex issues later on. And we’re really not representing or giving women representation or the time that they need.

This counsellor felt that those women most likely to be disadvantaged were those who were ground down by events and were willing to “sign anything to get rid of the bastard”.

Some of the women we interviewed, like Kim, were very clear that having consent orders should not be equated with satisfaction with the outcome. She said:

By consenting that means you’re happy – wrong. By consenting you’re just buying peace. It’s got nothing to do with whether you were happy about the arrangements or not.

In fact, at least nineteen of the women we interviewed (47.5%) considered that the arrangements in place for residence and contact in their case either compromised their own personal safety or weren’t in the best interests of the children.38 Of these women, four had private agreements (constituting 50% of private agreements), nine had consent orders (50% of consent orders), and six had court adjudicated orders (40% of court adjudicated orders). Obviously these numbers are too small to draw any conclusions about a relationship between the process by which outcomes were reached and women’s assessments of the extent to which the order might compromise their safety or that of their children. Nonetheless, the fact that half of all privately negotiated agreements and half of all consent orders involve ongoing concerns about risks to the mother or children suggests the need for more research into private negotiations and the careful consideration of consent orders.39 In particular it should be noted that of the eight women who had arrived at their current arrangements for residence/contact through private negotiation exclusively (with or without the assistance of a lawyer) only one reported that the arrangements were reached amicably and had worked smoothly.

Four of the women with concerns about unsafe outcomes had relinquished residence: Sandra’s ex-partner had simply taken the children to live with him, contrary to a consent order; Edwina said that she was afraid for her life if she attempted to challenge the father’s residence; Marcia and Hazel both reported that in the end their former partners wouldn’t co-operate and it was easier and safer to give in and let him take the children.

Some women described agreeing to hand-over arrangements that they did not feel safe with.40 For example, Tracey said that she negotiated, through a Family Court counsellor, unsupervised contact with hand-over on the street and the Family Court approved this

38 Because we did not specifically ask a question directed at this issue the actual number of women in our study in this situation may have been much higher. But note that on the other hand seven women described refusing to compromise on their children’s safety in relation to some matters. 39 The Radford, Sayer and AMICA study found that informally arranged contact seemed to present the greatest risk to the child’s safety. Lorraine Radford, Sarah Sayer and AMICA, Unreasonable Fears? Child contact in the Context of Domestic Violence: A Survey of Mothers’ Perceptions of Harm, Women’s Aid Federation of England, 1999, p 20. Neilson, above n 33, concluded that agreements reached by consent in parental abuse cases ‘should be enforced with caution’ p 77. 40 Five women raised this issue with interviewers. Since respondents were not specifically asked a question about this, we cannot be sure if there were other women who had this experience.

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arrangement. She came to this arrangement in spite of a history of severe violence, death threats and her solicitor warning her to leave her house so that her ex-partner couldn’t find her when he was released on bail. She said that she agreed to the contact arrangements in order to appease him. She wanted to “make it run smoothly and I thought… if I gave him a bit of leeway… he could feel that somehow he’s in control of the situation and then maybe he’d behave himself.” She said that the counsellor didn’t suggest anything or give them any guidelines to go by. When the Family Court approved this arrangement they didn’t realise that he had been arrested for assaulting the police and her father during a previous contact hand-over at the police station. Two weeks later the local court gave her ex-partner bail conditions that rendered the arrangement that had been approved by the Family Court unworkable and required her to return to the Family Court to have the question of contact revisited.

Amongst those with concerns about unsafe outcomes, women who had consent orders and those with privately negotiated agreements gave similar reasons for having agreed to the arrangements. These included the fact that it was easier to give in to an uncooperative and abusive co-parent, or that they believed that the children had a right to see their father and they hoped that if they gave him what he wanted he would be easier to deal with. However, several women with consent orders also cited factors associated with the dispute resolution process as having shaped their decision. For example: they thought they were legally obliged to agree; they felt under pressure from their former partner and/or the counsellor to agree; and/or they thought the arrangements were standard.

(b) The process as a form of abuse Six of the women in our study appear to have experienced the dispute resolution process itself as a form of harassment.41 These women had very litigious ex-partners. For example, Joyce commented that her ex-partner had made 29 applications to the Family Court in three years. He had threatened at the beginning of proceedings that he would drag her into court every day of the week until he got what he wanted. Kim said that she had been in court every two months since separation and that her former partner would sometimes bring her to court so that he could see her.42 In Meena’s case there had been 22 applications made to the court including original applications, appeals, variation applications and contravention applications. These had resulted in an estimated 66 court appearances. Her former partner made all but five of the applications. There had been three full residence hearings, the last one of which lasted eight days. At each hearing, residence was awarded to Meena. A separate representative who had been appointed for the children applied for an order restraining the father from instituting further proceedings but the application was refused. Approximately one month later the father made another application and came before the same judge who had handled the previous matter. The judge reportedly told the father that unless he withdrew his application he

41 This is in addition to the women who commonly described being harassed or threatened during child contact arrangement processes rather than by child contact arrangement processes (see next section below). 42 Susan commented that they were up to their 34th ‘court case’ in four years, only three or four of which she had initiated. Claire said that the father of her children had told her solicitor that he was going to ‘break her’ by taking her three children from her and he kept repeatedly taking child matters back to court.

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would have no choice but to declare him vexatious “…and that he was very sorry that he did not make those orders in the first instance”.

These cases illustrate that the court process can be used, and certainly experienced by parties, as a form of abuse. Other studies have also found that forms of dispute resolution may be used as a means of abuse and control. That is, the numerous applications are motivated by a determination to exercise power over their former partner and the children, or used as a means of harassing their ex-partner.43 Research also illustrates that courts themselves can be bullied by abusive partners. Ruth Busch has written compellingly about courts attempting to appease violent men by entertaining their applications and acceding to their requests.44 Joyce, whose ex-partner was continually taking her to court, talked about the value of having just one judge manage the file. 45 She said that in ongoing violent relationships patterns emerge which can only be appreciated and appropriately dealt with if one person is involved in overseeing the entire dispute resolution process. She described her own experience in the following terms:

one judge would say that Justice X’s decision to stop his access was.. unnecessarily hard and I’ve gone, “but.. Justice X had a history of the matter. He’s heard it before and he made that decision after hearing more than one matter”… and then this new [judge] comes along and says “well I think that was really harsh”.

Interestingly, some women described going to court repeatedly or without any real resolution because the father did not show up.46 For example, Vivian went to the Family Court eight times without her former partner appearing and so the matter was adjourned.

43 Rendall, above n 16, pp 38-39; Rhoades, above n 32, pp 76-77. See also Australian Law Reform Commission, For the Sake of the Kids: Complex Contact Cases and the Family Court, Report No. 73, Australian Law Reform Commission, 1995, pp 22-23. Note Wilson on this phenomenon in the US (Trish Wilson (1996) “Mothers Under Siege: Tactics of the Fathers’ Rights Movement” http://www.voiceofwomen.com/articles/fathers.html) and Neilson, above n 33, on Canada. See also Hunter, above n 31, who found that the lawyers of self funded litigants would sometimes engage in aggressive tactics designed to exhaust the grant of legal aid of the other party. Rhoades et al, above n 32, p 96 commented that some judges had complained that a large number of unmeritorious contravention applications were being brought by unrepresented parents. Dewar et al, found that litigants in person were more inclined to bring frivolous or untenable applications before the court (John Dewar, Barry W. Smith and Cate Banks, Litigants in Person in the Family Court of Australia, Family Court of Australia, 2000, p19). 44 Ruth Busch, “Don’t Throw Bouquets at me…(Judges) will say we’re in Love” in J Stubbs (ed) Women, Male Violence and the Law, Sydney Institute of Criminology, 1994,.pp 112-115. 45 An important benefit of a Magellan/ Columbus style project being piloted in NSW would be that the project would involve the use of the same team for the entire legal proceedings of a case. This would ensure continuity of case management for each case and the development of expertise in the details and dynamics as it progressed (Thea Brown, Rosemary Sheehan, Margarita Frederico and Lesley Hewitt, Resolving Family Violence to Children: The evaluation of Project Magellan, a pilot project for managing Family Court residence and contact disputes when allegations of child abuse have been made, Monash University, Melbourne, 2001, p 11). 46 Unfortunately it was not possible to ascertain in how many of these cases the women were applicants as opposed to respondents.

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When a second application was made she went to court at least 12 times. Megan ended up with an order from the Family Court for “such contact as agreed upon between the parties” because her former partner repeatedly failed to appear and the judge did not think it was fair to make a more restrictive order in his absence. She commented that this was an ideal result for the father as he is a “master at manipulation” and the order is a perfect opportunity for him to ring her and threaten her and “carry on” in spite of the ADVO.

(c) Harassment or fear during child contact negotiations

Women commonly described being very afraid during the process of negotiating contact and residence arrangements privately or through the court, some to the point of fearing for their life or for the lives of their children. For example, Nicole said that she did not feel safe anywhere because no matter what precautions are taken there is nothing they can do to protect you from a person like that – “If they want to get you they will get you.” Pauline commented that it was hard to make arrangements when she was in so much fear. As noted above, Edwina experienced such fear that she did not even embark on the negotiation process but simply let her ex-partner have residence.

Sixteen women commented that they found it extremely intimidating to be in the same room as the father of the children, either during proceedings, or in the foyer or waiting room before the dispute resolution process started, or afterwards. Some of these women had ex-partners who took advantage of the fact that they were both required to be present in order to be intimidating.

Nine women described their ex-partners’ behaviour as going beyond intimidation during this time and amounting to active harassment or abuse. For example, Nicole said that her former partner made hand gestures to her during proceedings indicating what he was going to do to her. She was able to understand what he was saying but no one else seeing his movements would have understood what they were about. Rebecca said that her former partner let her know that he had managed to smuggle a gun into and out of the Family Court.

Women also described being stalked, obstructed, assaulted, and verbally abused before or after proceedings and being tailgated on the way home. For example, Nerida said that at the court “[h]e and his brother were walking around in circles like dogs waiting to eat you.”

Nine professionals gave examples of forms of abuse that sometimes occur during contact negotiations or counselling sessions, including: damaging cars or other property; hanging around outside windows; making abusive phone calls or leaving abusive messages on answering machines; making threats to kill the woman, or the children, or to commit suicide; making references to other cases in which fathers had killed wives or children; following the woman home; threatening to take the children; withholding property; and verbal insults during the negotiation process. For example, a women’s refuge worker reported that in one case a father had disagreed with the way that the negotiations were proceeding and had lashed out at his former partner’s face during the session. One Family Court counsellor indicated that sometimes a father’s displeasure about the way

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negotiations were proceeding would be taken out on the children, and that the counsellor had sometimes feared for the children’s safety during this time.

Whilst the majority of professionals were aware that harassment, violence or other forms of abuse occurred during contact negotiations, they differed in their estimates of how commonly this occurred. A Family Court counsellor suggested that such abuse happened “probably a lot more regularly than what we’d be willing to admit” and a solicitor in private practice agreed that it happened fairly frequently. By contrast another Family Court counsellor estimated that it didn’t happen very often.

Women had mixed experiences of the safety procedures in the Local Court and the Family Court. A number of these women said that they were not aware of precautions taken to secure their safety, or that if precautions were taken then they were not adequate. For example, Nerida commented that at the Local Court there was a separate room but she did not feel safe as it was “staffed by ladies” and there was “some weasly police man down the other side of the court house.” At the Family Court there were separate rooms but they were not staffed and there was no one to help her or escort her to her car. She says that at one point she hid behind the tea lady for protection. Anna felt very unsafe at the Local Court when applying for an ADVO in spite of the fact that there was a woman there whose hand she held throughout and who walked her to work afterwards. At the Family Court she said that there was no one to hold your hand or tell you what to do. She had no escorts – she entered and left alone – she feared for her life and was not aware of steps taken to ensure her safety. A Family Court counsellor also expressed reservations about the ‘safe room’ in the court, which they said was hardly ever used. This counsellor said that to use the safe room risked labelling the person, and might be counter productive and reinforce their anxiety.

Several women commented that the safety procedures were as good as they could be but the problem was that nothing was fool proof. For example, Meena said that “[i]t’s just a fact of life that you’re going to court and you’ve got to be in the same room as the other person and you don’t know what they are going to do.” Similarly, a Child and Family Worker doubted the success of strategies designed to achieve a physical separation of the parties before and after Family Court counselling because in her experience parties would come into contact in the court area.

Other women described being happy with the efforts that were made to protect them from their former partner,47 or at least said that they had helped. For example, Hazel said that she rang before going to the Family Court and had been put in a separate room that was always locked and then had been asked to wait after proceedings until her former partner had gone. There was also someone with her at all points in time. Nonetheless, she still remarked that the overall experience was frightening.

47 Carmen said she felt safe at the Family Court because there were lots of people around and there was a separate “women’s room” for her to sit in. Alison said that she felt safe on the first occasion because they moved her ex-partner in and out really quickly, and on the second occasion they held him until she had left.

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Interestingly, several women commented that the perpetrator had used the safety procedures that were available at the court. For example, Ellen said that her former partner used to sit in the safety room at the court and “used every safety issue there was.”

(d) Primary Dispute Resolution

We asked the women about their experiences of primary dispute resolution under the Family Law Act. There is a range of possible dispute resolution mechanisms that a separated or divorced couple with children might be involved in within the Family Law process and counsellors may have a number of roles in that process. 48 The multiple roles of Family Court counsellors may have contributed to some apparent confusion by women interviewed in this study as to whether they had experienced counselling or mediation or another process.49 In addition, some women and children had apparently had counselling by other agencies outside the Family Court.50 In the section that follows the comments concerning counsellors also incorporate some references to counsellors preparing Family Reports for the court, although this is not strictly speaking a form of primary dispute resolution.

(i) Counselling

Twenty five women (62.5%) said that they had used counselling in order to resolve their family law dispute at some point, because a counsellor was involved in producing a Family Report for the court, or because they had conciliation or relationship counselling.

Generally the experience was described by women as negative and/or unsuccessful. Only Nerida described counselling as a wholly positive experience and expressed complete satisfaction with her counsellor. She had counselling in a separate session as she feared being in the same room as her former partner. The counsellor had prepared a report for the court and had recommended that if her former partner was awarded contact then it should be highly supervised in a contact centre. Nerida felt that the counsellor had addressed her concerns.

Other women had found aspects of counselling to be valuable, although they may have also criticised parts of the experience. For example, some women felt validated because the counsellors had seen their former partner’s intimidating behaviour. Thus Tina commented that she no longer felt crazy and Vivian said that it resulted in help for her daughter. Helen said that although her partner abused her throughout their joint counselling session, the individual counselling she had was empowering. Some professionals also commented on the likely benefits of counselling for victims of

48 The Australian Family Court has recently adopted the generic term “mediation” to describe all of its dispute resolution services. However, where possible, we have considered mediation and counselling as separate dispute resolution methods. 49 Rosemary Hunter also found that litigants generally did not have a clear understanding of the various dispute resolution processes they encountered (Rosemary Hunter, “Through the looking glass: Client’s perceptions and experiences of Family law litigation” (2002) 16 AJFL 7 at pp 11-12). 50 Note that we did not survey the practices of private counselling services.

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domestic violence. These included having their experiences validated and being offered support in standing up to their abusive former partner.

Several women remarked that the counsellor had a starting position that contact was in the children’s best interests. For example, Dorothy reported that the counsellor kept saying that the father has a right to contact and insisting on overnight contact. She commented that the father was a very violent person and yet the “counsellor tried to make you feel like you should do this for the kids – the kids have to have contact with their father, no matter what he’s like.” She said that she felt stressed, depressed and angry during the negotiation process and unsafe during the counselling sessions “because he is an intimidating person” and “a very violent person, like verbally and physically, and you never know what you are going to get – like a thump in the face…” Some women said that their counsellor came to the session with pre-conceived assumptions about the case that prevented them from responding to the facts or to the children’s welfare accurately. For example, Joyce, who had an extremely litigious ex-partner, said that their counsellor just assumed that “with three boxes of family matters” they both had a problem – she felt “tarred with the same brush” as her former partner.51

Policies for dealing with the violence?

Only six women who’d had counselling (24%) mentioned that they had always had separate sessions to avoid being in the same room as their former partner. Two others said that they’d had separate sessions in addition to an unsuccessful joint session – described by one as a “slinging match” and the other as one in which she felt “unsafe” and “couldn’t get a word in”. Ellen remarked that she had asked for separate sessions but ended up doing joint counselling. Five women who had joint counselling only specifically commented that they felt unsafe or intimidated during the process. For example, Helen described the compulsory counselling as “just a continuation of his abuse all the way through.” All of which suggests that counsellors might not be as vigilant as they could be in making the option of separate sessions available to women who have experienced partnership violence.

Six of the seven counsellors interviewed indicated that they were aware of policies to offer separate counselling where there had been domestic violence.52 However, there were differences in how the policy was interpreted. On the one hand some counsellors were uncomfortable with the policy or saw it as working against best clinical practice. For example, two Family Court counsellors indicated that they had a clear preference for joint counselling. One of these counsellors acknowledged that there was a policy to see

51 Some women felt that their counsellor appeared to side with their former partner, either because he had his session first, or because he presented in a calmer and more collected way than they were able to. Marcia said that her former partner was very charming in public and that by comparison she seemed like “the one with the problems.” She felt that as a consequence she was not believed. Melanie said that her former partner had made out that she was mad and violent. “And you know it seemed to me like nobody believed me, nobody look at me, nobody think of me because it just seemed to me that I was absolutely nothing you know.” 52 See, for example, the Chief Justice’s Direction as to the Management of Cases Involving Family Violence, 15 January 1993.

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couples separately wherever they requested a separate appointment but argued that joint counselling often served the children’s interests and offered a wonderful opportunity to resolve issues. This counsellor also said that practice had changed in that previously where people sought separate appointments that was respected but “now we ask questions and … we actually put more pressure on people to try to resolve their disputes even if there is violence.”53 By way of contrast one Family Court counsellor took the opposite view, stressing that if there was an ADVO in place, whatever the terms, counselling was always separate, even where the couple didn’t mind joint counselling. In between were those who would sometimes contemplate joint counselling, although the norm might be separate sessions. For example, three Family Court counsellors said that joint counselling would occur if the counsellor thought it appropriate, the couple agreed and it wasn’t precluded by the terms of an ADVO.54

Family Court counsellors also differed in their assessments of the procedures in place to screen cases for domestic violence. One Family Court counsellor indicated that, unlike mediation, there was no structured intake for counselling. Another said that bookings were taken by clerical staff, and that joint counselling might occur where parties failed to disclose domestic violence when making their booking. Others seemed confident that effective intake procedures to screen for domestic violence were in place.

The diversity of responses by the Family Court counsellors in this study concerning the handling of domestic violence cases was somewhat unexpected.55 Other professional groups often assume that the Family Court has effective safeguards in place to protect clients who have experienced domestic violence, including screening and a policy discouraging joint counselling. Recent research by Rosemary Hunter, for example, found reason to be confident in Family Court practices. She concluded that, although cases involving allegations of domestic violence and or child abuse were more likely than other cases to involve Family Court counselling,56 the use of separate counselling sessions within the Family Court gave reason to be confident in the screening mechanisms in place to identify domestic violence.57 Yet the accounts of Family Court counsellors described above suggest that screening is not uniformly conducted and that separate sessions are not necessarily used for domestic violence matters.

(ii) Mediation

53 This counsellor gave the example of a forthcoming case in which a woman didn’t want to have to speak to her former partner. The counsellor had encouraged joint counselling because they considered that the man wouldn’t believe that the relationship was over unless he heard it from his former partner. The counsellor said that the woman had an “exemption” in the ADVO that would allow her to attend the joint counselling. 54 One of these counsellors described having a practice of seeing the victim first, so that the women felt validated and most important “while the other party just waits outside”. 55 Practices may also vary from registry to registry, but our study did not examine whether that is the case. 56 Rosemary Hunter, Family Law Case Profiles, Justice Research Centre, 1999, p 193. 57 Note, however, that she questioned the adequacy of screening mechanisms in other primary dispute resolution options: Hunter, above n. 51, p 203.

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Despite some debate about the degree to which mediation is appropriate in cases where there has been a history of family violence, the prevailing view would seem to be that in the vast majority of such cases mediation is inappropriate.58 In spite of this, nine of the 40 women we interviewed (22.5%) said that there had been some attempt at mediation in their case. Several of the professionals interviewed referred to the screening mechanisms in place to keep domestic violence cases out of mediation and seemed to assume that domestic violence matters were not being mediated. Nonetheless, it was acknowledged by two Family Court counsellors that some cases were mediated either because they had slipped through the screening process or because they had been judged by mediators to be cases suitable for mediation.

Five of the nine women who had attempted mediation indicated that it had not continued to an outcome because their former partner had refused to co-operate, or because the mediator drew a halt. For example, Tina said that the mediator spent 45 minutes with her former partner and then said that it wasn’t going to work since he wasn’t willing to compromise at all. Susan also remarked that as her former partner was non-negotiable there was no negotiation process. He seemed to just want to force his point of view regardless of her feelings or those of the children.

The women who had had mediation expressed similar concerns to the women who had joint counselling. These included feeling unsafe, feeling pressured to make decisions, and feeling pressured to allow the children contact with the other parent. For example, Susan reported that “I never really felt safe because I felt that what I had said during the [mediation] process um at times when [her ex-partner] was present would affect my safety.”

A Family Court counsellor also reported that they had received some complaints from clients about mediation conducted outside the Family Court. These complaints were that people felt pressured to reach an agreement, or were made to feel guilty if after four or five hours they had not reached an agreement: “somehow they had to do the mediator a favour by coming to agreement.” This counsellor also reported having had two cases in which clients saw external mediators from Christian agencies where the prevailing expectation had been that the parties should reconcile. Rosemary Hunter’s research on legal services in family law also notes scepticism by solicitors about the use of private mediation services. Their concerns included stories about cases being mediated in spite of severe power imbalances, a lack of confidence in the abilities of the mediators, and an experience that the agreements reached in mediation were sometimes unworkable, unenforceable or even “bizarre.” 59 Research conducted in the United Kingdom

58 Hilary Astor, ‘The Weight of Silence: Talking about Violence in Family Mediation’ in M Thornton (ed) Public and Private: Feminist Legal Debates” Oxford University Press, (1995); Hilary Astor, ‘Swimming Against the Tide: Keeping Violent Men Out of Mediation’ in J Stubbs (ed) Women, Male Violence and the Law, Institute of Criminology, 1994; Sara Cobb (1997) ‘The domestication of violence in mediation’ 31 Law and Society Review 397. See the Chief Justice’s Direction As to the Management of Cases involving Family Violence, 15 January 1993 and Order 25A, rule 5. 59 Hunter, above n 31, pp 335-337.

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concerning court welfare officers and voluntary sector mediators has demonstrated a similar range of concerns with some private mediation services.60

Outcomes At the time of interview 33 women had residence of all of the children in dispute, and two had residence of some of the children and contact in relation to the others. The fathers were contact parents in all of the cases where the mother had residence, although in a small number of instances this had broken down because the children were refusing to go on contact. Five women were non-resident parents and in all cases this was contrary to their wishes, in spite of the fact that three had arrived at this result via consent orders, one by private agreement and only one as a court adjudicated outcome.

At the time of interview only four women said that contact was currently supervised, although in one of the two cases to be supervised by a contact centre, no contact had yet taken place because the children were refusing to go on contact. In two other cases where contact was meant to be supervised by relatives of the contact parent the woman believed that it had broken down in practice.

The outcomes led us to question how much consideration was given to family violence in contact decision making.

(a) Children as victims of or witnesses to violence in the family

We believe that the high level of unsupervised contact arrangements in our study is a matter of concern given that the father of the children had a past record of violent behaviour in all instances towards the mother of the children (more often than not witnessed by the children), and in a significant number of instances towards the children themselves.61

In 25 cases children had witnessed violence against their mother. Of those cases, the father had unsupervised contact in 17 cases, residence in four cases, and supervised contact in three cases.62 In the remaining case, the father was having only phone contact

60 Marianne Hester, Chris Pearson and Lorraine Radford, Domestic violence, A national survey of court welfare and voluntary sector mediation practice, The Policy Press, 1997, pp 57-59. See also Keys Young, for Legal Aid and Family Services, Research/ Evaluation of Family Mediation Practice and the Issue of Violence, A-G’s Dept, 1996. 61 See above in the section titled . Our results are consistent with a number of studies that document the rise of a “pro-contact’ culture. See: Rhoades, et al, above n 32, pp 72-82; John Dewar and Stephen Parker, Parenting, planning and partnership: The Impact of the New Part VII of the Family Law Act 1975, Family Law Research Unit Working Paper No 3, Faculty of Law, Griffith University, 1999; Hunter, above n 31, p 193; Rendell, et al, above n 16, pp 69, 90, 98; Hester and Radford, above n 1, p 19; Carol Smart and B Neale (1997) ‘Arguments Against Virtue – Must Contact be Enforced?’ Fam Law 332.

The Violent Context

62 Of the 11 of these cases that were court adjudicated, eight resulted in unsupervised contact, two in supervised contact and one in residence for the father. Of the 11 consent orders, eight resulted in unsupervised contact, one in supervised contact and in two cases residence for the father. In the three

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with the children. This was because the mother had fled to Australia with the children as a result of her former partner’s extreme violence and her former partner continued to live overseas.

Of the 13 cases of children who had been the targets of physical violence by their father, six had unsupervised contact, the fathers had residence in four cases, two cases had supervised contact and in one case there was phone contact only.63

Professional respondents were asked for their views about whether contact should proceed where there had been violence against the mother and/or the children. Most professional respondents seemed to assume that violence against a mother was clearly separable from any consideration of the well-being of the child. For example, a Family Court counsellor argued that the solution to ongoing violence wasn’t to stop contact “because … the kiddy could well feel um like they’ve done something to contribute to this awful thing that is going on between the parents”. Another questioned what was worst for a child: the qualities of a violent parent, or the disruption of attachment to that parent. A third Family Court counsellor stressed that:

stopping contact at all with a child even if there has been abuse, can cause all kinds of problems with the child later on. I mean, I think that the child still needs to have some knowledge about the father, even if they come to the conclusion that dad’s not a particularly nice person….

Few respondents raised questions about children’s exposure to violence directed against their mother or the effects of witnessing such violence. Only a minority of interviewees said that where there had been a history of violence against the mother decisions about contact should be conditional on some assessment of the effect of that violence on the child or children.64 Where the child’s safety was at risk, or they had been adversely affected through witnessing the violence, they accepted that contact might not be appropriate.

Professional respondents were divided over whether contact should occur when there had been violence against a child. One argued that contact should never occur if the violence was severe, but that otherwise it should depend on circumstances such as the child’s age, the child’s wishes, or the child’s safety. Two respondents said that contact should go ahead but that it should be supervised. Another respondent, a solicitor, questioned the assumption that supervised contact was a solution in these circumstances, and argued that:

remaining cases that were private agreements one was phone contact only, in one case the father had residence and in one case contact was unsupervised. 63 As mentioned in the previous paragraph this is because they were living in a different country from their father because of his extreme violence and negotiations for contact were still underway. Of the six cases that were court adjudicated, four resulted in unsupervised contact, one resulted in residence for the father and one resulted in supervised contact. The remaining case was a private agreement for phone contact only. 64 A recent Canadian study produced similar findings. According to Neilson “[t]he vast majority of lawyers who answered the survey, both male and female, put forth the point of view that, in the absence of child abuse, contact with both parents is usually in the best interests of the child, even in abuse cases” (above n 33, p 53).

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judges these days seem to be more um likely to minimise the effect of domestic violence by pushing the contact, so they, they get around it by saying well look, let's have these people meet in a neutral place, you know, out in the open or go to a contact centre. I think one of the biggest problems I see is this attitude that children have to grow up knowing their parents no matter what. And I just can't see that that's always the best thing for the child.

The high levels of unsupervised contact in this project, as well as the views of many of the professionals interviewed, are problematic given the research suggesting that it will not always be in a child’s best interests to have contact, let alone unsupervised contact, with a violent parent.65 There are also Full Court of the Family Court decisions that make it clear that a violent parent should be considered as a poor role model and that witnessing or being exposed to violent behaviour is relevant to residence and contact outcomes. 66 A New Zealand study of contact arrangements in the context of domestic violence found that half of the custodial parents in their study whose children had unsupervised access with the contact parent reported physical and emotional abuse or neglect, as well as abuse directed at themselves during access visits.67 The experiences of contact for the women and children in the present study also present cause for concern about the safety of unsupervised contact arrangements for women and children in cases where domestic violence has occurred and will be discussed below.

(b) Violence against mothers

By definition all of the women interviewed had experienced violence by a former partner. However, several women and some professionals said that this history of violence was either not examined, or was not given due emphasis in the process of resolving the issue of contact. 68

Eight women thought that judges, magistrates or registrars did not treat their experience of domestic violence as a significant issue, or ignored the fact that they had an ADVO. Five had court adjudicated contact orders and three had contact orders reached by consent. For example, Susan thought that the courts acted as if all cases involving

65 Bryan Rodgers and Jan Pryor, Divorce and separation: The outcomes for children, Joseph Rowntree Foundation, 1998; Claire Sturge and Danya Glaser (2000) “Contact and Domestic Violence – The Experts Court Report” Fam Law 615. See also Children Act Sub-Committee of the Advisory Board on Family Law, Contact Between Children and Violent Parents: The Question of Parental Contact in Cases Where there is Domestic Violence, Lord Chancellor’s Department, 1999, at p 617; Nicholas Bala, Lorne Bertrand, Joanne Paetsch, Bartha Knoppers, Joseph Hornick, Jean-François Noel, Lorraine Boudreau and Susan Miklas, Spousal Violence in Custody and Access Disputes: Recommendations for Reform, Status of Women Canada Policy Research Fund, 1998, at pp 11-12. See also Chapter 5. 66 For example, see Patsalou (1995) FLC 92-580; A v A (1998) FLC 92-800; Blanch v Blanch and Crawford (1999) FLC 92-837. 67 Alison Chetwin, Trish Knaggs and Patricia Te Wairere Ahiahi Young, The Domestic Violence Legislation and Child Access in New Zealand, Ministry of Justice, 1999. 68 The views of the women and professionals that we interviewed are consistent with recent research by Rhoades et al who found that women commented on a “lack of understanding about violence they had encountered throughout the [family law] system”; Rhoades, et al, above n 32, p 73. See also Neilson, above n 33, p103, on the manner in which social and legal information concerning partner abuse are ‘siphoned off’ at each stage of legal proceedings.

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allegations of violence are the same and did not attend to the specifics of her case.69 Kim reported that the judicial registrar had said that her ADVO had no implications in the Family Court. She commented that, to the contrary, she thought it was extremely relevant that “you have somebody threatening you or you have a fear of them and you have to hand your children to that very same person.” She also remarked that she was “stuck in limbo” with the Family Court giving no weight to the ADVO, the police refusing to enforce the Family Court orders, and the Family Court Orders over riding the protection that she had under the ADVO. Gina made positive comments about the Family Court but distinguished her own experience by saying:

I don’t think that [the Registrars] gave it [the ADVO] too much consideration to be quite honest. I think they kept thinking that the children had a right to see their father and that was paramount in their minds… I don’t think [the Family Law system] takes into account women who have [ADVOs] and have had domestic violence situations and feel that they have an ongoing problem.

Two other women commented positively on their experiences of the Family Court’s handling of family violence. For instance, Delores remarked that the judge who was presiding in her case took the domestic violence and the ADVO into account in determining the contact arrangements. The judge reportedly stated that the history of violence made any other contact arrangements “unworkable”.

Women’s concerns that domestic violence was not given much emphasis within the family law system were supported by the accounts of professionals. For example, a domestic violence worker argued that the fact that ADVOs were not given sufficient weight in the Family Court reflected a lack of understanding about the seriousness of domestic violence. Some professionals seemed to suggest that the presence of an ADVO did not necessarily have an impact on the practices of family law professionals, but that it might be given some weight where other factors also indicated reason for concern. Thus, the fact that a woman had experienced violence and/or was fearful of future violence was not of itself seen as significant, whereas repeated failures to abide by an ADVO by a party were likely to trigger concerns. For example, one of the solicitors observed that “a breach [of an ADVO] is considered more appropriately” but that “I don’t think that [an ADVO] gets you much mileage.”70

As noted above, most of the professionals interviewed took the view that violence against the mother was insufficient reason for no contact between the child and their father. In most instances professionals argued that contact hand-over arrangements could be put in place to ensure the mother’s safety. These views are contradicted by the experiences of the women that we interviewed, as will be discussed below. Only one respondent, a domestic violence counsellor, thought that there should be no contact where there has been violence against the mother.

69 Dorothy argued that the violence was not dealt with at all in the Family Court, nor was her former partner’s criminal record: “They were just, oh yeah, everyone else says this at court, we don’t really want to listen to it.” 70 A Family Court counsellor also said that they didn’t place too much emphasis on an ADVO but “if someone has breached an [ADVO] I really sit up and take notice”.

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(c) “Standard orders”

Consistent with the idea that domestic violence is not given due emphasis in contact decision making is the suggestion that “standard orders” are being imposed in residence and contact cases. Several women made comments suggesting that the outcome of their cases was influenced by some notion of standard, or minimum, orders. For instance, Kim initially opposed contact but said that “the court won’t give you none. .. So yeah. … I took the bare minimum.” In Kim’s case that was every alternate weekend from 9 a.m. Saturday to 5 pm Sunday. Sandra, who was a non-resident parent seeking contact, said that she was advised not to argue for the contact that she wanted but to put an application to the court couched in standard terms:

… the Legal Aid guys you know said you’re never gonna get these wishes. The judge isn’t going to hear all the behind the scene stories so you’ll just have to get the normal thing. So he said this is what most people will get. So he instructed me on what to ask for.

Gina was advised by her solicitor not to oppose contact, on the basis that the court wouldn’t make such an order. On advice, she consented to unsupervised contact with a supervised changeover. When asked how the family law system might be improved she replied:

I think the court should take very seriously the threats and the violence that’s gone on in the marriage and to very, very carefully consider before they allow any … unsupervised [contact]…because the system as it is, is just everyone goes through the same way basically and [ gets the same orders].

There was a clear consensus among the professionals interviewed that orders for no contact were rarely made and were very difficult to get.71 They also agreed that the most common outcome of contact deliberations, whether court ordered or through agreement reached in other ways, was that the contact parent have contact with the child(ren) on every second weekend, and half of the school holidays, or something similar. Some respondents called these ‘standard orders’.72 Most of those interviewed acknowledged that the orders typically made in domestic violence matters did not differ from those made in cases where there had not been a history of domestic violence. 73

71 Rhoades, et al, above n 32, at p 76, found that several judges suggested that lawyers were not prepared to ask for no contact any more. 72 A Family Court counsellor attributed these standard orders to lawyers, although a lawyer saw them as arising from the family law system. 73 Neilson, above n 33, at p 83, suggested that in Canada the processing of family law cases is more in accord with lawyers’ perceptions of legal norms than with the interests and needs if individual clients.

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Experiences of Contact

Contact Changeover and Issues of Safety

(a) Violence during the exercise of contact or at contact changeover

The overwhelming majority of the women that we interviewed had experienced violence during child contact visits or at changeover time.74 In fact, of the 35 women who were resident parents facilitating contact with the father, only five (14.3%) said that they had not experienced violence at contact changeover. Diane achieved this by having a secret address, living a considerable distance from the father so that there were no accidental meetings, avoiding all places and events where he might be present and using a contact centre for supervised contact which had very controlled times of arrival and departure. In other words, she had been successful in setting up arrangements that ensured that she had no contact whatsoever with the contact parent in spite of the fact that he was having contact with the child. It is also noteworthy that three of the women who said there had been no violence during the exercise of contact nonetheless described intimidating or frightening behaviour by the father of the children associated with contact. For example, Barb described experiencing verbal abuse and “physical changeovers.” By the latter she meant behaviours such as her former partner slamming his fist on the car bonnet, shouting at her, and physically trying to force the children into his car.75 The remaining 30 women (85.7%) described differing degrees of violence occurring during changeover or during contact visits. Some of this violence was directed at people who were supporting the women during contact changeover.76

The violence which occurred during contact and/or changeover included a range of abusive behaviours. Physical abuse included being punched, hit, slapped, beaten, grabbed by the throat, pushed, dragged by the hair, put in a head lock, held hostage, had objects forcibly pulled out of her hands or from around her neck, and having her drink drugged. The psychological abuse associated with contact included stalking, threats of physical assault or death, threats to kill the children, threats of sexual assault, emotional or verbal abuse, harassment in person or over the phone, threats of suicide, and theft of a woman’s car.

74 Neilson reported similar findings in her Canadian study. She found that access commonly provided the opportunity for abuse to continue and that children were exposed to high levels of conflict on a continuing basis after separation (above n 33, at p 51). 75 See also Belinda who described arguments and controlling behaviour on contact, as well as her ex-partner sitting in his car outside the refuge where she had fled with the children because he wanted to see the children. Sharon described being followed home after a contact visit in breach of her ADVO. 76 Tracey described threats against her father during changeover. In this case, the ex-partner had an ADVO out against the father, because he did not want him attending changeover. Megan described a friend being spat on and bashed because she was helping her pick up the children after contact. She also described her ex-partner threatening to bomb her mother’s house. Sylvia described her parents being threatened ‘a lot.’ Ellen said that her ex-partner drove his car at her new partner who avoided being run over by jumping out of the way. Jenny said that her ex-partner punched her current partner when the ex-partner was abducting the child.

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Almost all of the professionals had been involved with cases where there had been reports of violence after a contact agreement or order. One of the Family Court counsellors commented:

probably the worst [cases] are where [contact] is just not about the kids really….It's just used as a reason to harass the woman and the kids are not important at all which, that's the most common awful one you see where you are quite sure that it’s not about these children, it's about something else…They want to see the kids because it provides an opportunity for abuse of the ex-spouse.

(b) Attempts to make contact changeover safer

Many of the women we interviewed had tried several options and venues for contact changeover in an endeavour to find arrangements that worked for them and their children.

(i) Changeover at residence

The most common arrangement – used at some time by at least 18 women (45%) – was for contact changeover to take place at their residence or the residence of the contact parent. A couple of women with older children could still avoid contact with the contact parent because they closed the front door and let the children make the transition in and out by themselves. However, many of the other women expressed dissatisfaction with changeover at their residence as they were frightened of the contact parent or did not want his intrusion. For a number it had proved to be unsafe. Those women who were unhappy with this arrangement commented that they did it this way because he just came around anyway, or that he insisted on it and it was easier to give in, or because it was court ordered.

(ii) Changeover at a centre

Twelve women said that although the contact itself was not supervised, they were using, or had used at some point, a contact centre or a women’s resource centre for contact changeover. Most of these women described finding this type of service very helpful as it meant that they did not have to deal with the contact parent. For example, Meena, who said that changeover used to be “very, very bad” (she was punched and intimidated during changeover), said that it hadn’t been too bad since she started using a women’s resource centre as a changeover point because she no longer had to confront him every time. Women also saw the more structured contact changeover provided through a centre as leaving less room for breaches of the contact arrangements.

Despite centres having strict arrival and departure times and security, a number of the women who used centres for contact changeover were ‘ambushed’ or followed home after contact by the contact parent. For example, Tina described the contact parent lying in wait for her bus on the way to the centre, obstructing her way, and trying to snatch the child. He was not supposed to show up until ten minutes before contact but he was often there an hour early watching and calling out to the child. He did so in disregard of both the ADVO and the requests of the staff at the resource centre. Kim noted in her diary

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that she had been followed from the contact centre by the contact parent after changeover on a number of occasions. She also noted, “the futility of driving to [x] and having non face-to-face contact when he’s at my door almost everyday…”

Other potential shortcomings of the centres were the distance that women had to travel to use them, the high turnover of staff so that the children had to be taken between the parents by strangers which was distressing to them, and the short length of time that supervised changeover was sometimes made available because of the level of demand for these services in the community.

(iii) Changeover at the police station

Six women had used a police station at some point for changeover. However, the security provided by this option had its limitations. Three of these women described experiencing violence during changeover at the police station. The advantage appeared to be that the police were there when the violence occurred. That this might not always be an advantage is demonstrated in the following story recounted by a co-ordinator of a women’s Domestic Violence Court Assistance Scheme:

And I mean like the police station has been used on a few occasions but um you know it’s not a very nice environment for kids and also the attitude of police. Like I – I remember this one woman saying to me she was assaulted at the police station. Because they – they were having the changeover in the police station and they started having an argument and the police officer said go outside with your domestic.”

Some women commented that it did not feel right for the children to be dropped off at a police station, a sentiment also echoed by some of the professionals. One of the solicitors in private practice commented:

The one that I try very, very hard to resist and I really try and push people away from it, is using the police station as the place to change over, I hate the concept of the children associating meeting mum or dad at the police station and I’m surprised by the number of people who suggest it and haven’t thought about that as an issue as to how the children would perceive it. Their concern is their safety and they see the police as protecting them which is not unreasonable I suppose, but I hate associating the children with it, in their minds associating contact with the police being involved in any way. So the most common alternative is McDonald’s ...

(iv) Changeover at McDonald’s and other public places

Five women said that they had used a McDonald’s or other fast food restaurant for contact changeover at some point. The theoretical advantage of this as a changeover point is that it is a public place, it is well lit, it is child friendly and there are likely to be plenty of people around. Nonetheless, two women described the contact parent verbally abusing them during contact changeover. In addition, Ellen, who described having been assaulted and stalked by the contact parent in the past, said that she did not feel safe at McDonald’s. She used it because it was the venue that the child’s representative chose.

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Some of the professionals commented on the frequent use of McDonald’s restaurants for changeover. One solicitor said:

I know I wouldn’t like to be a McDonald's manager because I do know that there have been dramas - you know kiddies being tug-of-warred through the car you know, trying to get the kids out and the kids won't go - they've run in and asked the McDonald’s manager to ring the cops or something77

Other women had used various public places for changeover. However, none of these venues had proved safe. The two women who had used a railway station had both experienced verbal and physical abuse during changeover there. Both were women who had used supervised contact centres for changeover in the past and would prefer to be continuing to do so. All three women using a hotel car park had experienced verbal and/or physical abuse during changeover there. Kate, who used to have changeover in the street, described the contact parent smacking her in the face when he arrived at the changeover point because he was in a bad mood. Parks and shopping centres were occasionally also used by some of the women, once again with limited safety.

Four of the women with older children used the children’s school as a changeover point with apparent success in minimising the violence. This is because under such arrangements the parents need not have any contact at all, particularly if the contact parent has overnight contact and both collects and returns the children to the school, rather than to their mother.

(v) Using a third party to undertake/ assist with changeover

Ten women had used a third party, generally a relative or friend, to effect changeover at some point. Only one of these women, Megan, described this strategy as an unqualified success. Megan described a history of severe violence associated with contact changeover as she has had her door and car smashed, and been choked, threatened, and bashed. She also described attacks on some of the people providing her with support. She now uses a third party to pick up and drop off the children at McDonald’s on the basis that taking herself out of the equation would save “all the violence and the rubbish that has been going on for the last two years.” She said that the arrangement has taken the worry and stress out of changeover for her and it takes place without abuse or trauma for the children. She did comment that she has had to organise this herself and that “there are some women that wouldn’t have the means to do that.”

Problems that other women experienced with using a third party include: the person doing the changeover being abused by the contact parent, the woman herself being abused when the third party is a relative or new partner of the contact parent, the difficulty of finding someone who is neutral and willing to undertake the task, and the fact that the third party is inconvenienced when breaches occur and might feel resentment

77 A co-ordinator of a women’s Domestic Violence Court Assistance Scheme commented: “I’ve heard women say that [the Family Court has] suggested they should do the changeover at a public place like McDonalds and um you know I just think that’s outrageous…you know that our society should be able to guarantee more safety than that.”

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towards the women rather than the perpetrator. Rebecca commented that in consequence of involving them “you lose your family and friends.” A women’s Domestic Violence Court Assistance Scheme Co-ordinator remarked that some women choose not to involve family and friends because they don’t want them getting hurt:

sometimes the family just don’t want to be involved because they know what the defendant’s like and they quite often cop the abuse as well and um so you know this woman last week said to me well, it’s just as easy for me to keep being the contact because my parents don’t want to be the contact any more because he just abuses us … I was going to say she can handle him – well she can – she feels like she wants to protect her parents, she doesn’t want them to cop that either so it’s better for her to cop it than them.

Seven women took a support person with them on changeover, as opposed to doing the changeover through this person. This appeared to have the advantage of alleviating their fear of the contact parent’s violence but it was no guarantee of safety. Both Tracey and her father were assaulted on contact changeover. Susan commented that this arrangement is hard on the support person and she is always conscious of their safety. However, she added that it is useful to have a witness to what happens at changeover, as well as someone to assist with her agitation and fear. Sometimes the presence of a support person might actually aggravate the abuse. One of the Family Court counsellors was commenting on a woman who wanted to vary changeover arrangements when they said:

the husband had just gone berserk and kicked the car and tried to take one of the children out of the car, he was just physically violent towards the woman in the car park when they were trying to do the hand over. And the only reason for it was that she had somebody else in the car with her, another adult in the car.

(vi) Making contact changeover safer?

These results give some preliminary support to the suggestion that those contact changeover arrangements that might work best and be safest for the women (and reduce the chances of children witnessing abuse although not necessarily protecting the children themselves) are those that do not bring the parents into direct contact with each other.

As noted above, a number of the professionals we interviewed seemed to be unaware of the problems women experienced with contact handover arrangements. For instance, several assumed that third parties such as other family members or friends could be found to assist in contact changeovers, or that changeovers in public places such as shopping centres, police stations or at McDonalds might be adequate to secure the mother’s safety. Some also mentioned supervised contact centres, although there was also general recognition that these centres were not widely available.

Children’s Experiences of Contact

[Many of my female clients who had experienced domestic violence] talk about the fear of continued abuse of themselves but that seems to be less or almost less

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important [than fear of abuse of the children]. If anything it is a very protective role that they perceive for themselves, protecting the children against harm, whether that is physical harm or that sort of harm that arises out of cross-examining the children about what mum has been up to, who she’s seeing, what she’s doing, finding out about mum (Family law solicitor, private practice)

(a) Abuse or neglect of the children on contact

More than two-thirds of the women (n=25, 71.4%) who were resident parents expressed concerns about the treatment of the children during contact visits, and two contact parents expressed similar concerns in respect of residence. These women described parenting practices that they considered to be inappropriate or neglectful, and in a number of instances dangerous to the children’s health and well-being. 78

Some of the neglectful behaviours that occurred on contact seemed designed to annoy or upset the mother. For example, Dorothy commented that the contact parent adopted a policy of doing the opposite of what she asked him to. If she told him that the children had to take medication that day he wouldn’t give it to them. If she asked him to make sure they put their seatbelts on he wouldn’t let them. And if she asked him not to take them swimming because they had an ear infection then he would take them swimming. Kim detailed in her diary that the children would return from contact visits issuing threats from the contact parent such as “Daddy will punch your lights out” or “Daddy told us to go and get the gun and shoot you”.

Some of the neglect was due to the fact that the contact parent was using contact to see the mother rather than the children. By way of example, Cath said that immediately after separation the father would come to pick up the children and would not take them – or even say hello or goodbye to them.79 Instead he spent the duration of the contact visit harassing or being violent to her before leaving.80

The children also often witnessed the abuse of the mother during contact or changeover. They were sometimes more directly involved in that aggression. For example, Joyce said:

What happened was … at the changeover [when the father was to return the children]… he was parked on one side of the road at his brother’s place …– and I arrived about 15 minutes early but he was already there. The girls wanted to come back. He didn’t want them to. He was going to drive off with them because he didn’t want them to come back to me. There’s constant emotional abuse of them as well you know, ‘don’t go near mother’, ‘she’s awful’, ‘she’s the one that left’, blah, blah, blah. Um and [first child] came screaming over and told me to unlock the car which I did and she got in. She opened the back door for [second

78 Neilson (above n 33) found that participants in her study reported ‘that responsible parenting during access visits was more the exception than the rule’, at p 215 . 79 At least seven other women thought that the contact parent was primarily using contact to see her rather than the children. Because we did not specifically ask the women a question directed at this issue these numbers may under report this phenomenon in our sample. 80 Another contact parent told the resident parent in front of the children that he did not love the children and never wanted to see them again.

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child] to get in because [ex] had come over as well. He’s reached in, unlocked her door, grabbed her by the feet and started dragging her out…She’s kicking and screaming and telling him no and he’s dragging her out of the vehicle… He eventually got the girls out, [ex] sat down on the footpath, one in each arm. You know, it was really awful.

Nerida said that on one contact changeover he dragged her down the stairs when she had the child in her arms and, in order not to fall on her, she had to throw the child up the stairs. He then grabbed the child and threw her into the back of the car without putting on her seat belt. When he reversed down the driveway the child was flung into the front of the car and onto the dashboard.

(b) Children unsettled by contact or disturbed about having to have contact

Many of the mothers gave their perceptions of their children’s feelings about contact.81 Nineteen of the 35 women (54.3%) who were resident parents said that their children were disturbed and unsettled after contact.82 Of these children, all except five were children who had witnessed violence against their mothers. In addition, four of the children who were described as unsettled after contact had themselves been the targets of violence in the past.

The kinds of unsettled behaviour these women described as occurring regularly in their children after contact included being angry, being naughty, wetting the bed, being tired or sick, not eating, being unable to sleep, being hyperactive, becoming shy and withdrawn, and being confused. For example, Gina said that her children come back from contact confused as their father “tells them things” and takes out the bitterness that he cannot express to her on the children. She has to “debrief them” when they get back from contact visits. Her son stopped eating for around three months and she has had to arrange counselling for her oldest daughter and has explained to her how to keep herself safe when her father becomes violent and how to get herself out of the house if necessary. She commented that “I don’t think that these are things that any child should have to go through and I think that’s really unfair to the children but there’s nothing I can do about it.”

Twenty nine of the women we interviewed commented on whether they believed their children wanted contact with the contact parent. Ten women whose children were disturbed after contact and eight others said that their children wanted to have contact with the contact parent (although in one instance one of the children wanted contact and the other did not). On the other hand, two of the women whose children were disturbed after contact and nine others said that their children did not want to have the contact that they were required to have. Of these eleven, six women said that their children had

81 Of course these perceptions may not accurately reflect the children’s feelings. 82 Without comparison with a “control group” of children who had not experienced parental violence, it is impossible to say how much of the unsettled behaviour is due to the violence and how much is due to the separation of their parents and the ‘normal’ disturbance that might take place before or after contact visits.

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witnessed violence or abuse against their mothers, but only one said her children were the victims of violence.

Megan described her daughter refusing to go on contact after her father smashed down their door, smashed their car and terrorised everyone who was in the house at the time. The child pulled her eyelashes out, couldn’t sleep, would not stay in her bed alone for three months afterwards, started dirtying her pants, and expressed terror when she found out that she was to have contact with her father. Megan commented that “one of the things she’s had to struggle with... is the fact that she doesn’t feel that I am capable of keeping her safe. Because I can’t keep myself safe.” Barb said that prior to using a contact centre, changeover took place in the park. The children would always become hysterical. On one attempt one child screamed so hard that he vomited and the other had her leg hooked around the door of the car when they were trying to get her in. Eventually they tried changeover through a contact centre but the children still did not want to go on contact. She described scenes where the children were crying and had to be pulled off her. The last time she took her son on contact he clawed at her so frantically that he cut her wrist and drew blood. Her ten-year-old daughter threatened to kill herself by jumping from a moving car if she had to go on contact. Barb commented that at that point she stopped telling them that contact would be fun. Contact had currently broken down because the contact centre supervisors did not want to force the obviously distressed children to have contact.

Sturge and Glaser note that “[i]n [cases of] domestic violence, where the child has memories of that violence we would see their wishes as warranting much more weight than in situations where no real reason for the child’s resistance appears to exist.”83 Whilst some of the older children in our study who did not want contact appear to have had their wishes respected some of the children did not. Some children in our study were described as being forced to face their father and let him know that they did not want to go on contact or being put under considerable emotional pressure to go on contact. For example, Joyce described the father having contact with his 11-year-old daughter reinstated even though she had made it clear through the DOCS officer, who gave evidence in the Family Court, that she did not want to go on contact. She was then forced to confront her father in person and tell him that she did not want to go. His response was that if she did not come on contact with him he would not return her younger sister after contact. He had tried, without success, to get the mother to drop the elder child off and then drive away so that she was forced to go on contact. Claire said that after her daughter, who was then 11 or 12 years old, had indicated that she did not want contact anymore, her father waited until she got off the school bus and then abused her in front of the school. He also sent a fax to her through his solicitor saying that if she didn’t go on contact with him she would be in contempt. He said to her: “I spent $5000 on a barrister to get access and you do this.” On another occasion Claire’s daughter was vomiting because she did not want to go on a contact visit. The police rang Claire and said that she 83 Sturge and Glaser, above n 60, at p 624. This report was relied on by the English Court of Appeal in Re L (Contact: Domestic Violence); Re V (Contact: Domestic Violence); Re M (Contact: Domestic Violence); Re H (Contact: Domestic Violence) [2000] 2 FLR 334. Sturge and Glaser remark that it is “damaging to a child to feel he or she is forced to do something against his or her will and against his or her judgement if the child cannot see the sense of it.” The age and understanding of the child are also highly relevant.

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would jeopardise her residence if she did not take her daughter to the police station where contact changeover took place. When she got to the station the officer talked the child into going with her father.

(c) Supervised contact

The most obvious attempt to make contact safer for the children concerned is to ensure that it is supervised. Supervised contact covers a wide variety of situations. The contact may be supervised by a friend or family member of one of the parents, or by the resident parent, or the contact may take place under varying levels of supervision or facilitation at a children’s contact service or other centre. Some centres provide only low vigilance supervision or facilitation, whilst some can provide highly vigilant one-on-one supervision where necessary.

Three women said that they had initially supervised contact themselves, as they were too frightened to leave the children alone with the contact parent when they first separated from him due to his level of aggression and/or his drug use. Obviously such supervision placed the women in potentially unsafe situations or made them vulnerable to harassment by their ex-partner.

Nine women mentioned that contact had been informally supervised at some point by a third party, usually a relative or friend. In some instances these arrangements had broken down because the relative or friend was no longer willing to bear the burden of supervision. For example, Dorothy had used a private agency to supervise contact, but reported that such an arrangement had broken down because her ex-partner had shown up drunk, assaulted her, humiliated the children, and the agency refused to provide further supervision. Her diary stated that: “There was verbal and physical violence during access. The father went to punch me in the head and went to choke me. Both my children were sitting on my lap at the time.” However, the main problems with these arrangements arose when contact was supervised by a relative of the contact parent, either due to abuse of the mother by the supervising relative or due to concerns about the quality of the supervision. For example, Nerida said that contact was meant to be supervised by her former partner’s mother. However, she reported that contact was not always supervised and that the supervisor had watched the contact parent being violent to her without intervening. Professionals generally confirmed women’s accounts of the particular problems arising when family members were required to supervise.84 Other studies have found similar problems with informal supervised contact. For example, in New Zealand, Chetwin et al. determined that custodial parents who supervised contact themselves were at risk, and the children involved were less safe and happy with these arrangements as they often witnessed conflict and abuse.85 They also found that when contact was supervised by extended family members the children were

84 It was suggested that family members became unwilling to continue to supervise contact following abuse, that some women were reluctant to submit their family to ongoing conflict and abuse by asking them to supervise contact or be a changeover point, or that the supervision was ineffective. 85 Chetwin, et al, above n 62.

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not always emotionally safe and most informal supervisors regarded their role as being a presence rather than providing active supervision. Only three of the women in our study said that their children had had, or were having, supervised contact through a contact centre.86 Diane’s 17-month-old child was having ongoing supervised contact with his father at a centre. The father had shaken and threatened the child before separation. Barb87 spoke very highly of the staff and professionalism of the centre, but said that contact had broken down because the centre had refused to supervise contact due to the children’s high levels of distress at having to go on contact. In addition to these women, Nerida said that supervised contact at a centre had been ordered on an interim basis but whilst she contacted the centre the father didn’t. This meant that at the final hearing the judge did not order supervised contact because the centre had not been able to assess suitability.

Supervised contact centres are not widely available in the Sydney metropolitan region or other areas in which the women interviewed resided. Indeed, there are only seven operating centres in New South Wales of which the Australian Children’s Contact Services Association is aware (only two of which are in the greater Sydney metropolitan region).88 Some of those centres only provide changeover services, not supervision of contact. Nine of the women who did not use a centre for either contact or changeover said that they would have if there had been one that they could use in their area.89 Diane, who used a contact centre, travelled for two hours to the centre and then waited for two hours outside the centre while contact took place before travelling two hours to her home.

Most of the professionals we interviewed were in favour of supervised contact centres but agreed that there were currently too few of them available and or that their hours were too restricted. However, many of the professionals who supported the need for more centres expressed concerns about the operation of such centres in cases involving abuse. Several

86 Note that some of these contact orders were for supervised contact for a short period of time and then for unsupervised contact. This is despite the fact that research has shown that it “takes at least six weeks for children to settle into the visiting process” and it “takes at least six months for the foundations of the relationship between child and visiting parent to be layed, re-layed or mended” (Strategic Partners Ltd Contact Services in Australia – Research and Evaluation Project, Legal Aid and Family Services; Attorney-General’s Department, 1998, at x). The average ‘length of stay’ in supervised contact services in 1998 was found to be five months (Strategic Partners Ltd, p 57). 87 Her children’s experiences of contact prior to the attempted use of a contact centre are described in the previous section. 88 http://www.accsa.org.au/services.html. Site accessed 04/12/02. As at 10 October 2002, 35 Family Relationships Services Program (FRSP) funded Children's Contact Services were operating in Australia. The Federal Government Children's Contact Services (CCS) initiative, which is funded under the FRSP, is administered by the Family Relationships Branch of the Commonwealth Department of Family and Community Services. Funding for CCS is provided by the Attorney-General's Department. However, there are also a number of non-Commonwealth funded contact services in operation in Australia. For more detail see http://www.facs.gov.au/internet/facsinternet.nsf/family/frsp-ccs.htm. Site last accessed 4/12/02. 89 Megan said that she had wanted to use such a centre but was told that she could not without a court order. This is not usually the case. Statistics for 1997 - 1998 found that solicitors accounted for 40% of referrals to contact centres, Family Court for 22%, community legal centres for 9.5%, community agencies (10%) and welfare or social workers (8%). It is not clear how many of those referred had court orders (Strategic Partners Ltd (1998), p 21).

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stressed the importance of having well trained professional workers and reported concerns that charities and other volunteers were often unable to deal with the violence that sometimes confronted them. One refuge worker expressed concerns about inappropriate referrals from courts and gave as an example the situation where there was an ADVO in place for the protection of the children. Another concern was whether the centres are currently appropriate for clients from Aboriginal and Torres Strait Islander communities and whether the centres are able to cater to children and parents from culturally and linguistically diverse backgrounds.90

Although the majority of women and professionals expressed a desire for more supervised contact centres, it is noteworthy that some were concerned that the very availability of such centres might mean that contact would be ordered that could not otherwise be considered to be in the child’s best interests.91 A related concern is that if supervised contact proceeds without “incident” there may be an expectation that unsupervised contact will then occur, even in cases where unsupervised contact could never be appropriate.92

Breaches of Contact Arrangements

(a) Abduction/non-return of the children

Almost half of the women (17 of 35; 48.6%) we interviewed who were resident parents described the threatened or actual abduction or non-return of children by the contact parent. For example, Megan described going to pick up the children after a contact visit but they were not there. The contact parent told her that she would never see the kids again and asked if there were, ‘any last words you’d like to say to [daughter] as she’s growing up?” She did manage to get the children back the next day with the help of a friend but both of them were assaulted in the process.

If a child is not returned after a contact visit, the resident parent may apply for a recovery order. Only three of the women that we interviewed mentioned that they had sought recovery orders. Joyce was one of these women. She said that after the court reduced contact because of what the contact parent was doing to her and the children, he began refusing to return the children. Once he took the youngest child from school for two and a half weeks and had her in hiding for a week and a half with someone that the child did not know. Joyce has had to obtain five recovery orders in three years and the court still allows him unsupervised contact. Hazel had commenced an application for recovery of the children but decided not to pursue it because he would simply have taken the children back at any time anyway. The children now reside with the father and Hazel has contact 90 Strategic Partners Ltd, above n 81, pp 52-53. 91 See Lynne Harne and Jill Radford, ‘Reinstating Patriarchy: The Politics of the Family and the New Legislation’ in A Mullender and R Morley (Eds) Children Living with Domestic Violence: Putting Men’s Abuse of Women on the Child Care Agenda, Whiting & Birch Ltd, 1994, at p 83. 92 Martha Bailey (1999) ‘Supervised Access: A Long-Term Solution?’ 37 Family and Conciliation Courts Review 478. Bailey found that most of the Canadian and U.S. supervised access providers that she canvassed thought that long-term supervised access was appropriate when unsupervised access is not a feasible future opinion.

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orders made by consent, although the father simply refuses to allow her contact with the children.

(b) Failure to Exercise Contact and Other Breaches

Almost half of the women (17 of 35; 48.6%) who were resident parents said that the contact parent had failed to exercise contact at some point. Some described this occurring at irregular occasions, whilst others described extended periods of time when contact was not exercised. For example, Carmen commented that the contact parent had refused to see the children three or four times for periods of around a month and a half on the basis that if he couldn’t see her he didn’t want to see the children. When she asked him what she was supposed to tell the children he said, “Tell them I’m dead.” 93

Many of the women described the failure to exercise contact as having negative consequences for themselves and the children. For a number of women the failure to exercise contact occurred without adequate notice, making it extremely difficult to plan ahead or organise their lives. Furthermore, it often meant waiting for visits that never eventuated, which was both frustrating and time consuming. Toni said that on three occasions she and the children had waited for her former partner at a railway station for two hours but he had failed to appear. In addition, it had been arranged that the children would spend one week in the Easter holidays with him but again he failed to meet them at the railway station. His failure to exercise contact also had financial consequences for Toni since he paid no child support and $100 was deducted from her family benefit each fortnight on the basis that the children were meant to spend every second weekend and half the school holidays with their father.

A number of women described the pain or disappointment experienced by the children when the contact parent failed to appear for contact. For example, Delores said that the contact parent stopped having contact at the appointed weekend because he wanted to see his girlfriend which meant that “[t]he kids would be enthusing about seeing Dad and he just wouldn’t show up. And then instead of coming the next weekend he would wait another fortnight to come.” Vivian described her child being so upset that their father hadn’t seen them for several months that she asked a counsellor to call her former partner and request that he exercise contact.94

Several of the women and the professionals commented on the fact that whilst they could be forced to facilitate contact they could not force their ex partner to have contact with his children if he was unavailable or unwilling to do so. 95 For example, Yvonne said:

93 Tina described her ex-partner as not seeing the child for nine months, since he wanted every second weekend “or nothing”. In Gina’s case her ex-partner discontinued contact when she altered changeover from her house to a women’s resource centre. 94 Once around Christmas they showed up five times to the contact centre or the police station (on public holidays when the centre was closed) and he did not show up. 95 Rhoades, above n 32, at pp 77-78: “[e]nforcement is a remedy that is effectively only available to the contact parent, in that the court will not coerce a person into maintaining a relationship with their child.”

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How can that be a legal document and he can just ring up and say oh I’ve got to work, I don’t want the children or he can like for example if he doesn’t want the children this weekend he just rings me up and says I don’t want the children but if I was to hold the children back he can take me back to court and charge me. That’s what makes me so angry… people like me have to send them every weekend you know I can’t just ring him up and say I feel like having a weekend with my children.

Three of the 35 women (8.6%) who were resident parents commented that the contact parent had always stuck to the letter of the contact arrangements. However, the overwhelming majority had not found this to be the case. The primary complaint was that the contact parent failed to arrive at the appointed time or did not return the children at the appointed time. Almost half of the women (n=17, 48.6%) specifically commented on this and two had initiated contravention applications because of repeated lateness. All of these women mentioned that the lateness and unpredictability had a negative effect on them and any third parties involved in changeover. For example, Bronwyn, whose experience is not uncommon, said that she never knew when he would return the child as he would just walk in when it pleased him. She commented that she believed he was trying to make sure that she was not with someone else by surprising her, and that the experience made her uncomfortable.

(c) Facilitating contact

At least 16 of the 35 women we interviewed who were resident parents described going to considerable efforts to facilitate contact, including compromising their own safety, regardless of their own personal feelings about the situation. They said that they did this either because contact was important to their children or because they were legally obliged to facilitate contact arrangements. In Tracey’s case supervised contact broke down in part because her sister was no longer willing to supervise. She then allowed unsupervised contact in spite of being assaulted and abused during changeover because she thought that if the contact parent felt more in control he would behave himself. On one occasion she called his family to try and organise support for him on a contact visit so that it would not be too hard on him to have two small children that he had not seen for several months. Rachel offered to move out of her home for a month so that the contact parent, who lived overseas, could stay with the children when he came to visit them. Carmen bought bunk beds for the contact parent so that he could have the children overnight. Many women went to considerable efforts to prepare the children for contact, to persuade them that contact was something that they wanted, to insist that contact was something that they had to do, or to persuade them to stay on contact once they were there. For example, Barb said:

I would say to him daddy’s going to take you on a motorbike ride, daddy will take you anywhere you want to go you lucky little boy”…and then I’d think… he’s most probably thinking “mum I’ve told you what daddy does and here you are pushing me to go with him.

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Many women incurred considerable financial expense in order to facilitate contact. Diane and Alison received no child support and yet travelled considerable distances on a weekly or fortnightly basis, bearing all the expenses of doing so, in order to facilitate visits at contact centres or gaols. Indeed, a large percentage of contact parents were contributing little or nothing towards the financial support of their children. Of the 29 resident parents who responded as to whether the contact parents was paying child support, 19 (65.5%) said that the contact parent was not paying them any child support. Many of these women supplied food, clothing and nappies for contact visits. Vivian did all of the driving for contact when the contact parent did not have a car. This was despite the fact that she knew that he had told the Child Support Agency (CSA) that he was unemployed but was working secretly. Other women paid for the children’s phone calls to the contact parent. Kim regularly paid the contact parent’s phone bill so that it would not be cut off and if there was an emergency with the children whilst he was exercising contact he could call her. Interestingly, many of these women remarked that the contact parent was not only providing no support financially, he was misusing contact arrangements in a way that was a further drain on the women’s resources. For example, Nicole remarked that there was a time when all of the clothes she provided for contact were going missing and so she obtained an order directing that all clothes must be returned. He then started returning them mauled by the dog or with cigarette burns in them.

Thirty of the women we interviewed commented on whether they had ever failed to send the children on contact visits with the other parent. Of these, nine said that they had never denied contact, even when they felt it was not in the best interests of the children. Thirteen women commented that there had been one or two occasions when they had not sent the children on agreed or ordered contact visits. In the overwhelming majority of cases the reasons the resident parent gave for not sending children on contact visits related to the welfare of the children.96 These included: the contact parent being under the influence of alcohol, the children being sick, the children being uncomfortable and distressed about having to go, the contact parent being verbally or physically aggressive such that the mother felt concern for the safety of the children, the child making sexual assault allegations, the child having a very important event to attend but being unable to rely on the contact parent to take them, and the resident parent discovering that she did not have the residence order she had thought she did and being afraid that the contact parent would disappear with the children.

Only two of these women indicated that their reasons for denying contact on at least one occasion related to their own feelings. Alison said that she had not facilitated contact when she had a particularly busy weekend or was feeling unwell. In this instance, as the father is in gaol, the entire burden of facilitating contact is on her. She has to travel to the prison, wait outside and travel back, as well as bearing all of the expenses of the journey. Yvonne said that she had denied contact on two occasions, once when a DOCS investigation was taking place and once when her ex-partner remarried. In respect of the

96 Findings that most parents who opposed the idea of contact or who refuse contact do so due to concerns about the child’s well-being have also been made by Hester and Radford, above n 1, and Radford, et al., above n 36, at p 16.

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latter occasion she admitted, “[t]hose were just my feelings. I was not thinking of the children.”

Eight women said that they now always facilitated contact, although there had been a prior period when they had not permitted it. In five instances this occurred before contact arrangements were in place and so there were no actual breaches of arrangements or orders. Indeed, these women had all complied with orders that were made later. Once again, the overwhelming concern of these women was the welfare of the children. The reasons that women cited for denying contact included: an attempted abduction; a serious incident of violence; during a stage of heavy drug use by her former partner; immediately post separation until the mother was sure that the child would be safe; and while in a refuge. In the three cases where contact was denied for a period of time after arrangements or orders were in place, the reasons included: the contact parent moving interstate and refusing to supply the mother, Susan, with an address in circumstances where he had threatened to abduct the children in the past; when sexual assault allegations had been made with regard to the child, although Dorothy offered the father gradually increasing contact on terms which she thought would provide some measure of safety and comfort for the child but he refused to accept those terms; and when Nicole’s teenage children refused to go on contact for a period.

Enforcement issues97

(a) Contravention applications

Despite the numerous breaches of orders by contact parents, most of the women who were resident parents had not sought to enforce the terms of the contact orders by bringing contravention applications. Some commented on the problems that they faced in implementing contact orders or agreements. These were, primarily, the prohibitive cost of going to court, the ultimate hopelessness of getting more court orders with no one to enforce them, and the fear of what the other parent would do to them if they took action. Sylvia described the frustration of going to Legal Aid, the Child’s Separate Representative and the police and finding no one willing to help her about the contact parent continually arriving drunk, in breach of the orders, to exercise contact.

By way of contrast, a number of the women who were resident parents had experienced having contravention applications being brought against them by the contact parent. For example, Rebecca mentioned that one of her ex-partners would put in an application for contravention of the contact order at the slightest provocation. She said:

And then after 12 months I think it got to the point – ‘cause like you had to pick them up right on 6 o’clock and if you were five minutes late it was back to court,

97 All the comments made on enforcement in the interviews with the women were in relation to enforcement issues prior to the introduction of the compliance regime for parenting orders made by the Family Law Amendment Act 2000 (Cth) [27/12/2000].

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after all that you still went back to court. So I [had to] explain to the court –You know [about] … the traffic or running out of petrol and you know one of the kids was sick or whatever. You know, I remember they came down with …chicken pox and [he] took me to court over it.

Interestingly, at least nine of the women we interviewed were contact parents in relation to some or all of the children, or had been contact parents at some point in time. These women described not being permitted to have contact with the children at all, or rarely having contact – whether by phone or physically - even where orders were in place. Ellen’s diary describing her contact experiences consisted mostly of a list of failed contact visits and attempted phone calls which were either not answered or were ended by the resident parent before she spoke to her children. Most of these women had decided not to try to enforce the orders. For example, Hazel said that the resident parent simply refused to give her contact with the children. She once had contact where she met the children at a shopping centre but the father assaulted her during contact. She sometimes went to school in the afternoons so that she could see the children without exposing them to the possibility of witnessing further violence by their father. Nonetheless, her daughter was so afraid of the father coming to school and making a scene that she would only see her mother for ten minutes. The father had retained the children after contact and she had considered obtaining a recovery order, but decided it was pointless because he would only take the children again. Similarly, Marcia commented that she was “in a very difficult situation because if I go to court it’s going to cost me a heap of money to – and who’s going to police it in the end anyway?” Sandra had no contact with her children. She commented that “the papers that you get, if the father doesn’t want to read them and do what it says then there’s – the paper doesn’t help you. The paper doesn’t make him do it.”

(b) Varying orders

Some of the professionals spoke about clients trying to vary contact orders if there had been violence around contact. However, this is difficult and the onus is obviously on the woman to initiate any changes. It may be particularly difficult to obtain a variation if the original order was made by consent. Helen Rhoades has suggested that women may appear fickle or selfish “when they seek to alter the contact arrangements they have apparently agreed to.”98 Several professionals mentioned that Legal Aid was often unavailable or difficult to obtain to vary a contact order.99

A Family Court Counsellor commented that the first step in trying to vary the order would be to try to negotiate with the father of the children. However, that approach may not result in safer contact for the woman in which case she would have to make a court application:

98 Rhoades, above n 32, at p 87. 99 See also, Rendell et al, above n 16, at p 74 and Rhoades et al., above n 32, p 98. It should be noted that since our professional interviews took place, the NSW Legal Aid funding situation has improved. However, legal aid guidelines require a material change in circumstances as one criterion for a grant of aid to bring an application for variation. This may prove to be an obstacle to women who have simply found the orders to be unworkable.

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Changing the location probably is easier to change than making the order for supervision and/or reducing the times because he's likely to not agree to that, and they'd have to go before a Judge…I think it's extremely difficult to get a no contact order.

One of the solicitors commented on how difficult it was to successfully vary a contact order in court:

well varying the contact orders is often about the most difficult thing they can do. Stopping [contact] altogether, as I said, is very, very difficult. So it's a matter of reducing it or putting something in place, some sort of an arrangement which will reduce the possibility of contact between the parents.

Another solicitor talked about clients who had tried to vary contact orders to make themselves safer:

A lot of them just go like first I’m abused by him and now I’m being abused by the legal process. ... Um and I can think of one situation where you are looking at court sanctioned violence basically where the court would not change the contact arrangements and she was then forced to bring her kids to contact and the drop off point was at Westfield and on two occasions she was physically assaulted by him.

The solicitor commented that in that case, the woman’s “Legal Aid grant had been pulled” and so they “assisted her with trying to get him breached on his ADVO”. Some of the other professionals mentioned that where there has been violence around contact, the woman should attempt to obtain an ADVO, or if she has one already, to report the breach of the ADVO to the police. However, it is interesting to note that none of the professionals mentioned that the Local Court magistrate would have the power under section 68T of the Family Law Act to “make, vary, discharge or suspend” a Family Court contact order when making an ADVO.100

Conclusion

This research found that, for most of the women interviewed, the end of the relationship had not meant an end to violence towards them. Much of this violence was linked in some way to the negotiation and exercise of child contact.

Despite this, the protection of women and children from domestic violence appears to be frequently overlooked in the process of negotiating child contact arrangements. We found, for example, a high level of unsupervised contact arrangements being made in respect of children, two thirds of whom had witnessed violence against their mothers and one third of whom had been abused themselves by the contact parent. Furthermore, the professionals we interviewed did not generally consider violence against the residence parent, which had been witnessed by the children, to be crucial to the decision about 100 See the similar findings by Kearney McKenzie & Associates, above n 22, p 17.

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whether contact was appropriate in respect of the children. They were also divided about whether or not contact was appropriate when there had been abuse of the children themselves. It was also commonly reported that there was frequent resort to ‘standard orders’ when contact arrangements were being negotiated. Obviously if the outcomes of matters in which domestic violence has occurred do not differ from those where there is no history of domestic violence, then one must ask to what extent domestic violence is being given consideration in contact decision-making?

In our study there were some women who were finding the actual process of negotiating contact arrangements problematic. For example, some were experiencing the dispute resolution process itself being used as a form of harassment, whilst others were experiencing a great deal of fear or enduring harassment during the process of undertaking negotiations. Some women described their cases going to mediation in spite of the general consensus that mediation will rarely be appropriate in cases where there is a background of violence. Furthermore, the interviews with women and professionals did not give cause for complete confidence that cases are being effectively screened for violence before counselling takes place or that procedures are being set up during counselling to safeguard the targets of violence.

We found an assumption held by many ofthe professionals that we interviewed that certain changeover arrangements such as in public places or with third party assistance were sufficient to ensure women’s safety. However, it was also clear from the interviews with women that this assumption might be ill founded. Amongst our sample the safest contact changeovers for women and children appeared to be those where parents did not come into contact with each other.101

Women who are negotiating contact arrangements, whilst trying to protect themselves and their children from family violence, can also experience difficulty in attempting to traverse the range of different courts and legal categories that they must deal with in the process.102 It is clear that more work needs to be done to reconcile the overlaps and disjunctions between the process of negotiating and implementing contact arrangements with the process of negotiating and enforcing ADVOs so that women and children are not left confused and unprotected in the interstices.

We found a high level of concern amongst the women we interviewed about parenting practises during contact that were considered to be abusive or neglectful of the children, children being unsettled or disturbed after going on contact, abduction or non-return of the children after contact and contact parents failing to exercise contact arrangements that they had made. Some women described children who did not want to have contact not

101 Most of the women using a supervised contact centre or women’s resource centre for changeover found the service very helpful. However, judges and other decision makers should take care when considering safe venues for changeover. One of the refuge workers raised concerns about a case where a Family Court judge had ordered contact changeover at the refuge where the woman was staying with the children. This was despite the policy of not identifying the location of the refuge. The refuge worker commented: “And he used to come around here and pick the kids up and drop them off and it wouldn’t have mattered what we said about the refuge [being] a safe place and all the rest of it.” 102 Reg Graycar and Jenny Morgan, The Hidden Gender of Law, Federation Press, Sydney, 1990, at pp 3-5.

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having their wishes respected, or being forced to confront the contact parent to tell him that they did not want to have contact.

There was strong support by women and professionals for the increased availability of supervised contact centres. However, it was also clear that such centres were not going to be a complete answer to many of the problems experienced in these types of cases. Some interviewees, in fact, expressed concern that an increased availability might tempt parties or courts to make contact arrangements in cases when contact was simply not in the child’s best interests.Obviously the small size of our sample, its unrepresentative nature, and the lack of a control group, make it impossible to generalise from many of the findings in this study. However, in respect of some of the experiences that the interviewees describe, what is disturbing is that anyone should have had those experiences. And in respect of other issues the outcomes indicate at least the need for further research about the negotiation and implementation of contact arrangements when domestic abuse is involved.

As a result of this research we believe that it is time to consider whether a change to the Family Law Act 1975 should be made to include a presumption that, once the court has made a finding of violence, it should not make an order giving residence or unsupervised contact to a party who has used violence against a child of the family or the other party to the proceedings unless it is positively satisfied that the child will be safe.103 Such a presumption is in place in New Zealand and preliminary studies suggest that this has resulted in a general trend towards safer orders for women and children in violent relationships.104 Such a presumption may also empower women when negotiating to resist consenting to contact arrangements that they felt would place themselves or their children at risk.105 Thought must also be given to the degree to which women should be entitled to have their safety considered in its own right – that is, separate from the issue of how it might impact on their children – when it comes to the determination of contact arrangements.

103 We would define safety for children as including being safe from having to witness violence against their residence parent. 104 Such a presumption is found in Section 16B of the Guardianship Act 1968 (New Zealand). In New Zealand the Domestic Violence Act 1995 also makes it clear that a protection order automatically extends to the children of the applicant. It is thus the case that if a protection order is in place the non-custodial parent cannot contact the children unless contact is permitted by a court order or written agreement. These provisions acknowledge that, witnessing domestic violence is in itself abusive of the children, that violence against a spouse can overlap with the direct abuse of children and that, given the dynamics of family violence, agreements reached by the parents may not in fact maintain the safety of the children. 105 Chetwin, et al., above n 62, at p 81.

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