In this Alert, Partner Rachael Murray and Associate Fraser Murray discuss the results of evaluation of the 2012 amendments to the Family Law Act which were designed to improve responses to family violence and child abuse. While the evaluation findings suggest that the changes implemented are a “step in the right direction”, the question remains whether the family law community is doing enough to protect those most vulnerable.

In 2012, significant amendments were made to the Family Law Act with a view to improving both the identification of family violence and the family law system’s response (including screening practices) to family violence and child safety concerns in parenting matters.

Some two years following the implementation of the amendments, an evaluation commissioned by the Commonwealth Attorney-General’s Department has been undertaken and the results indicate that the family violence amendments have influenced a positive shift towards more scrutiny of parenting arrangements. The evaluation was conducted based on data gathered from 12,198 separated parents; a study examining the views of 653 family law professionals; and analysis of 1,892 Family Law Court files.

The findings of the evaluation are contained in three reports, shortly to be released to the public:

  1. Responding to Family Violence”:  A study of more than 650 professionals dealing with family violence;
  2. Experiences of separated parents study”:  A study examining the experiences of 6,119 separated parents prior to the reforms and 6,079 post implementation; and
  3. The Court outcomes project”:  An analysis of court administrative data from 1,892 case files.

In a recently released statement, Dr Rae Kaspiew, a senior research fellow at the Australian Institute of Family Studies has said that:

  • the findings demonstrate that one in five parents had concerns for their safety or their children as a result of ongoing contact with the other parent.
  • an analysis of Family Law Court files revealed that there are fewer children living in shared care arrangements in cases involving allegations of child abuse (11%), than prior to the reforms in 2012 (19%).
  • the data based on parents’ reports also shows that there is a strong association between arrangements involving no time or daytime only between a parent and a child where there are safety concerns among separated parents generally.However, there are some arrangements involving more time than this for children in these circumstances (though it is important that a parent seeks help if they are worried about their safety or their children’s safety).

Of significant interest (particularly to those parties contemplating the institution of proceedings or already in the Court queue awaiting determination of their matter) of cases were litigated and determined by a Judge, orders for shared parental responsibility in cases involving violence or allegations of violence have decreased from 51% to 40%, and that orders for supervised time with a parent remained stable and were rare. The making of orders for no face-to-face time between parents and children remains a rare outcome. 

The need for improvement in practice was evident in the finding that after the reforms, three in ten separated parents interviewed said they had “never been asked” about family violence or safety concerns when using dispute resolution that lawyers and courts used to resolve parenting matters.  Perhaps not surprisingly the findings suggest a need for a sharper focus on family violence, child abuse and other factors that may suggest risk, such as substance misuse or mental health issues.

The research highlights reservations among professionals within the family law system about the capacity of the system to adequately deal with cases involving family violence or child abuse concerns.  Professionals are worried about the burden on child protection agencies and delays for the children involved.

The research also demonstrates that:

  • further refinements in practice are required, along with the development of more effective screening processes which still have some way to go.
  • While there has been greater emphasis on screening (particularly among lawyers and courts) this has not translated into a perception by parents that their concerns about safety were appropriately dealt with.To achieve this, the family law system needs better tools for assessing these issues, professionals need more training and there needs to be a way of prioritising the most urgent cases.

To read a more detailed summary of the evaluation, click here