In 2012, the Federal Government passed changes to the Family Law Act with the intention to increase the Court’s focus on family violence and safety issues relating to children and bring these to the fore in decision making about children.
AIFS has recently completed a review of the effect of these changes, focussing on some of the following questions:
To what extent have patterns in arrangements for post-separation parenting changed since the introduction of the family violence amendments, and to what extent is this consistent with the intent of the reforms?
Overall, there has been a slight increase in arrangements involving no overnight care for a father who has had family violence and safety concerns raised in relation to him.
In matters that proceed to trial, there has been an overall decrease in the number of cases where equal shared parental responsibility is ordered, from 51% to 40%.
Are more parents disclosing concerns about family violence and child safety to family law system professionals?
Family law clients are now more likely to be asked about safety concerns, both by legal practitioners and as part of the court process. However, 3 in 10 parents still reported not being asked about these concerns at all during their involvement with the family law system.
There has been a small increase in the level of reporting of family violence from both mothers and fathers. Mothers remain more likely to disclose violence or safety concerns and there has been a statistically significant increase in fathers reporting violence or safety concerns to lawyers.
Are there any changes in the patterns of service use following the family violence amendments?
Since the 2006 reforms there has been a decrease in reliance on formal services (FDR, lawyers, litigation) where family violence or safety issues were not involved. This is contrary to the previous introduction of cooperative services and reliance on formal services in these cases has continued to decrease.
After the reforms, more parents affected by emotional abuse reported using FDR as the main pathway for resolving parenting arrangements and more parents overall reported reaching agreement in relation to parenting arrangements in FDR (including people affected by family violence).
For those who did resort to the courts for resolution of their dispute, the reforms are associated with longer time frames in courts and other pathways for sorting out parenting arrangements for parents affected by family violence (although it’s unclear whether other factors such as availability of court resources may have contributed to delays).
Overall, the number of parenting applications made to courts does not seem to have changed as a result of the reforms.
Have there been any changes to the way in which services are delivered by lawyers?
Legal practitioners reported regularly asking their clients about family violence and safety issues.
A majority of lawyers also indicated that the reforms caused them to change their advice given in response to allegations of child abuse and family violence.
Have there been any changes to the way in which contested matters were determined by the courts?
The amendments do alter the legislative pathway applied by judicial officers although there practical impact in changing the outcome following a trial is limited, save where there is clear evidence of abuse or risk. Where the evidence of violence or risk of violence is ambiguous the judicial officers were still more likely to favour an approach that preserved and encouraged a relationship with both parents.
Have the family violence amendments had any other consequences?
The amendments do appear to have had an influence on allocation and availability of court resources, as follows:
- There has been an increase in Form 4 Notices of Abuse or Risk being filed, and a corresponding increase in pressure on child protection services required to respond to those notices.
- The prioritisation of matters involving family violence and child abuse has resulted in longer time frames for matters not involving these issues being listed for hearing.
- There are now longer time frames for resolution of court matters overall. being experienced.
Further, parents' views of the family law system have seen small improvements especially for those affected by emotional abuse, and to a lesser extent physical violence. They are now reporting slightly more satisfaction with the system. Fathers remain more dissatisfied than mothers overall.
The report writers were of the view that the reforms are generally affected practice and procedure in the way intended and have been positively received. The reforms are likely to continue to exert an influence in these areas over time.