27 November 2009 Executive Summary 4 Recommendations 11 Part 1: preliminary 18 1 terms of reference 18

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Heading C

Although this is a helpful list, in my view the drafting might usefully be reconsidered. As presently written, this second matter suggests that the court is able to decide that it is in the interests of a child to spend time with the person without considering those matters; it then considers those matters in relation to what directions are required to give effect to the order. The difficulty is, in my view, that it is only when the full proposed order is considered that the court can determine whether it is in the interests of a child to spend time with the parent. For example, in a situation requiring supervision, the court would not first determine that it was in the child’s interests to spend time with the parent and then think about supervision. It would consider (in the light of all relevant evidence, including the availability of a suitable supervisor) whether the particular order including its provisions relating to supervision, would be in the child’s best interests.

Heading D

The wording of paragraph (iii) is awkward, and ‘principle’ is misspelled. I am not sure that this paragraph, dealing with a final hearing, should refer to ‘allegations’ at all. If I understand it correctly, the meaning would be better expressed ‘Consider the nature and extent of any family violence, including whether it is in the nature of ‘controlling family violence [insert here a reference to the literature], and in this connection whether the evidence indicates that the violent party… etc.

Heading E

The material under this heading is essentially a summary of the Sturge and Glasser report. This is now 10 years old, and the document should explain why it is singled out for special attention. Consideration might useful be given to whether later material, such as the Wingspread Report, could usefully be mentioned. It would be desirable to include some words indicating that it is always important for the court to rely on good quality and up to date social science. The fact that a particular report has been relied on by courts, whether in Australian or elsewhere, is no substitute.

Heading F

This heading needs revision. The subsequent material deals with matters that need attention when the court is considering what parenting orders to make, not when it orders a child to spend time with a parent. The second sentence is misleading: the question is whether the proposed orders would subject the child to an unacceptable risk. The heading as a whole is seriously misleading in that it does not refer to the possibility that the child’s best interests may be served by an order providing for no face to face contact.

In my view the material under this heading should be revised in one of two ways. The heading and the text could be revised to take account of the cases where there should be no contact. Alternatively, there could be an additional separate section dealing with the circumstances in which the court might make orders for no contact.

1 See www.aifs.gov.au.

2 In contrast, the terms of reference of the Australian Law Reform Commission limits its task to ‘the safety of women and their children’, reflecting the 2009 Report of the National Council to Reduce Violence against Women and their Children, Time for Action.

3 See Family Law Council, Discussion Paper - Violence and the Family Law Act (August 1998); Kennon v Kennon (1997) 22 Fam LR 1; (1994) FLC 92-443.

4 The Attorney-General’s speech establishing the Review can be found at: [http://www.attorneygeneral.gov.au/www/ministers/mcclelland.nsf/Page/Speeches_2009_ThirdQuarter_24July2009-SpeechtotheAlbury-WodongaFamilyPathwaysNetworkEvent ].

5 It adds another meaning irrelevant to this Review: ‘a distortion of meaning or fact’.

6 Quoted in AIFS Family Violence Report.

7 The National Council to Reduce Violence Against Women and their Children, Time for Action: The National Council’s Plan for Australia to Reduce Violence against Women and their Children, 2009-2021, pp. 186 – 188, . Some of the omitted words are consistent with the National Council’s focus on violence against women, and are inappropriate for the present Review, which is not limited in this way.

8 In particular, the paper by Tom Altobelli FM, ‘Family Violence and Parenting: Future Directions in Practice’ forthcoming in the Australian Journal of Family Law, contains a helpful and insightful review of the literature and of its application to family law practice. It has been of considerable assistance in the preparation of this discussion.

9 There are a number of instructive papers in the Family Court Review, Special Issue on Domestic Violence (July 2008), notably Jaffe, PG, Johnston, JR et al, ‘Custody Disputes Involving Allegations of Domestic Violence: Toward a Differentiated Approach to Parenting Plans’ (2008) 46 Family Court Review 500 and Kelly, JB, Johnson, MP, ‘Differentiation Among Types of Intimate Partner Violence: Research Update and Implications for Interventions’ (2008) 46 Family Court Review 476.

10 Ver Steegh, N, Dalton, C ‘Report from the Wingspread Conference on Domestic Violence and Family Courts’ (2008) 46 Family Court Review 454 (‘the Wingspread Report’).

11 Moloney, L, Smyth, B, Weston, R, Richardson, N, Qu, L and Gray, M, Allegations of Family Violence and Child Abuse in Family Law Children’s Proceedings. A Pre-reform Exploratory Study, 2007, Australian Institute of Family Studies, Melbourne (‘the AIFS violence study’).

12 The Wingspread Report, 456-7.

13 Loretta Frederick & Julie Tilley, Effective Interventions in Domestic Violence Cases: Context is Everything, Battered Women's Justice Project, Minneapolis, MN, May 2001, http:// data.ipharos.com/bwjp/documents/effective_interventions.pdf. [Footnote from the Wingspread Report].

14 Section. 3, Domestic Violence Act 1995.

15 Victorian Law Reform Commission, Review of Family Violence Laws: Report, 1 March 2006, Chapter 4, p. 95, http://www.lawreform.vic.gov.au/wps/wcm/connect/Law+Reform/resources/file/eb9212475ed4473/family%20violence%20chapter%204.pdf.

16 Section 5, Family Violence Protection Act 2008 (VIC).

17 The Wingspread Report, 458-9 (citations omitted).

18 For example, the first category on the above list, or something like it, has been variously categorised by different researchers as ‘abusive controlling violence’, ‘coercive controlling violence’, ‘battering’ and ‘intimate terrorism’. Similarly, the second category has been called ‘conflict instigated violence’, ‘situational violence’ and ‘common couple violence’: see Tom Altobelli FM, ‘Family Violence and Parenting: Future Directions in Practice’ forthcoming in the Australian Journal of Family Law.

19 As it was put at the Wingspread Conference, ‘viewing domestic violence through the lens of potential patterns provides an opportunity to re-examine fundamental assumptions and think about how different family situations could be effectively matched with selected interventions and outcomes based on risk level’.

20 Tom Altobelli FM, ‘Family Violence and Parenting: Future Directions in Practice’ forthcoming in the Australian Journal of Family Law.

21 Ibid p7.

22 Ibid p 507.

23 For a detailed discussion, see submission 33.

24 The word ‘triage’ comes from the French verb trier, meaning to separate, sort, sift or select. It refers to sorting or prioritizing (originally, in a medical context, when allocating benefits such as food or medicine to patients on the basis of need and likely benefit).

25 Jaffe et al., supra note 9, at 25-29 (specialized assessment needs are delineated for normal conflict, high conflict, and spousal violence cases). [Footnote from the Wingspread Report]

26 Australian Bureau of Statistics (2005) Personal Safety Survey, Cat No. 49060 (Reissue), Canberra: Commonwealth of Australia.

27 AIFS Violence Study, page 13.

28 Background paper, page 25.

29 AIFS Violence Study, page 19.

30 AIFS Violence Study, page 14.

31 The AIFS Violence Study states at p 9: ‘Kimmel’s conclusion that violence that is instrumental and aimed at maintaining control is overwhelmingly (over 90%) perpetrated by men, is broadly in accordance with almost all the literature that has examined this category of violence […] Gender is embedded in the social, the economic and the psychological. It is an important story, and there is no doubt that men perpetrate most of the serious violence-related damage both to themselves and to women. At the same time, gender is not the whole story.’

32 For example, submission 23 said that of the 90 men assisted by its Men’s and Children’s Accommodation and Crisis Service over the period 1999-2002, 40% reported ‘that they had been seriously abused by their female partners (within the ACT Police’s definition of “domestic violence”)’, and 20% reported that they ‘had been victims of serious physical violence by their female partners’.

33 Submission 47, 48 and 61.

34 Submission 2.

35 On this topic, see also the discussion in the AIFS Violence Study at 21-23.

36 AIFS Violence Study, page 1.

37 Paragraph 64B(2)(h), Family Law Act 1975.

38 Sections 31, 39, Part X, Family Law Act 1975, Section 10, Federal Magistrates Act 1999.

39 In Western Australia, effectively the same jurisdiction is exercised by the Family Court of Western Australia, a state court. Some limited jurisdiction under the Family Law Act is also exercised by the local or magistrates courts in the states and territories, but these too are state courts.

40 Section 123 of the Family Law Act provides, in substance, that a majority of judges of the Family Court can make rules of court ‘providing for or in relation to the practice and procedure to be followed’ in the Family Court, but not in the FMC: subsections (1) and (1A). Similarly, s 81 of the Federal Magistrates Act 1999 provides for a majority of the Federal magistrates to make rules of court relating to practice and procedure in the FMC.

41 The Federal Magistrates Act 1999 provides, in substance, that the Family Law Rules (ie the rules that apply to the Family Court of Australia) apply, with necessary modifications, to the extent that the Federal Magistrates Court Rules are insufficient.

42Initiating Application Kit (do it yourself kit), Family Court of Australia website,

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