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


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Defining ‘family violence’ for legal purposes

For the purpose of this Review, no difficulties arise with the word ‘family’ in the expression ‘family violence’. It obviously includes parents, children, grandparents and other members of the extended family, as well as husbands and wives. It also includes intimate partners. For practical purposes, family violence can be taken to include any violence involving members of the households of parties to proceedings under the Act.

Defining the word ‘violence’ is a more complex matter. A range of different shades of meaning can be seen in dictionary definitions. The Macquarie Dictionary, for example, lists the following meanings of ‘violence’:5

1. rough force in action: the violence of the wind.

2. rough or injurious action or treatment: to die by violence.

3. any unjust or unwarranted exertion of force or power, as against rights, laws, etc.; injury; wrong; outrage.

4. a violent act or proceeding.

5. rough or immoderate vehemence, as of feeling or language; fury; intensity; severity.

For the adjective ‘violent’ it has

1. Acting with or characterised by strong, rough force: a violent blow, explosion, tempest, etc

2. Acting with, characterised, by or due to injurious or destructive force: violent measures, a violent death.

3. Intense in force, effect, etc; severe, extreme: violent heat, pain contrast, etc.

4. Roughly or immoderately vehement, ardent, or passionate: violent feeling.

5. Furious in impetuosity, energy etc: violent haste.

The World Health Organisation (WHO) has defined violence as:

the intentional use of physical force or power, threatened or actual … that either results in or has a high likelihood of resulting in injury, death, psychological harm, maldevelopment or deprivation.6

The National Council to Reduce Violence Against Women and their Children uses the following words in its definition of ‘domestic violence’:

The term ‘domestic violence’ refers predominantly to abuse of a person… While there is no single definition, the central element of ‘domestic violence’ is an ongoing pattern of behaviour aimed at controlling one’s partner through fear, for example by using behaviour which is violent and threatening. It occurs between people who have, or have had, an intimate relationship. In most cases, the violent behaviour is part of a range of tactics to exercise power and control…  7

The definition currently in the Family Law Act 1975 is as follows:

family violence means conduct, whether actual or threatened, by a person towards, or towards the property of, a member of the person’s family that causes that or any other member of the person’s family reasonably to fear for, or reasonably to be apprehensive about, his or her personal wellbeing or safety.

Note: A person reasonably fears for, or reasonably is apprehensive about, his or her personal wellbeing or safety in particular circumstances if a reasonable person in those circumstances would fear for, or be apprehensive about, his or her personal wellbeing or safety.

It can be seen at once that this definition is not identical to the dictionary definitions, nor as extensive as some definitions that apply in other contexts. For example, some actions that did not in fact cause a person to be fearful would seem to fall within the dictionary definitions of violence, but outside the definition in the Act. Similarly, ‘rough’ actions that caused a person to be fearful, but which would not have caused a ‘reasonable person’ to be fearful, would fall outside the definition in the Act, but would be included in some of the dictionary definitions. Conversely, the Act’s definition is wider than the definition used by the National Council, in that it would probably include, for example, uncontrolled rage that caused reasonable fear but was not intended to control a partner through fear.

While the meaning of the word in the community is a matter of usage (which dictionaries attempt to reflect), the meaning of the word in the law is a matter of choice. If the word is to be used in the legislation, the meaning given to it will affect the operation of any rules or principles that use it. While no doubt the legislature would not want to define the word in a way that strays too far from its ordinary meaning, there are many choices that could be made. For example, under the present legislation a deliberate decision was made in 2006 to limit the previous definition by adding the concept that the fear had to be reasonably held.

In considering the appropriateness of a definition, it is important to consider the context – the particular rule or principle involved. For example, if the context is the safety of people attending the court premises, it might be sensible to define violence in a way that focuses on physical danger. By contrast, if the context is determining the best interests of children, it might be sensible to have a wider definition, one that would include things that might be harmful to children but would not necessarily put at risk people attending the court.

Although it would be quite possible for the Act to have different definitions of the word ‘violence’ for the purpose of different provisions, such an approach might be confusing. And, in fact, as presently drafted the Family Law Act 1975 contains one definition, which applies in a number of different contexts.

It follows that there is no inherently right or wrong legal definition of ‘family violence’. If the expression is to be used in the Act, a policy choice will have to be made about how it is to be defined. In making this choice it will be necessary to consider the impact of the definition in relation to the different legal provisions in which it appears.

For example, the definition could be used to indicate a range of behaviour that would entitle a court to take some action, although whether the court would actually do so might depend on the particular circumstances, and the seriousness of what was done. Definitions of violence in state and territory domestic violence legislation are of this kind. By contrast, the definition might be used in a way that has immediate consequences, as where it identifies circumstances in which a person is exempted from attending mediation. It is arguable that a fairly wide definition is appropriate in the first situation, because to the extent that it catches less serious situations, the court might decide to take no action. In the second case, where the definition is used to achieve a particular result - the person is exempt from the requirement if the definition applies – it might be appropriate for it to be more limited.

The nature of family violence


For the purpose of this discussion, ‘family violence’ will be used in its ordinary sense – imprecise though that is – rather than with the specific meaning given to it by s 4 of the Act.

There is a vast literature on this topic, and it is impossible to review it in this Report. I have benefited from many of the submissions made to this Review,8 and from published papers by internationally respected authors.9 Although I have read as widely as the limited time permitted, this discussion draws primarily on sources that seem current, well-informed and reputable.

I should mention two in particular. The first is what is known as the Wingspread Conference. In 2007 two major family law organisations in the USA, the National Council of Juvenile and Family Court Judges, and the Association of Family and Conciliation Courts, assembled 37 experienced family violence practitioners and researchers to work on the topic, and the report of their conference is of great value.10 The second is the recent report by the AIFS on family violence allegations in the family courts.11 It contains information about violence allegations in the family courts and how they are handled. Although it draws on a sample of cases before the amendments of 2006, it is the only existing study of its kind in Australia, and contains much that is important. In addition, it has a valuable review of the literature.

The discussion here is an attempt to summarise what is most relevant for the purpose of this Review. I accept that there will be room for disagreement about the accuracy of this summary of those limited sources, and also about the reliability of those sources. No doubt some would wish to point to other research and argue for some different conclusions. However I have done the best I can to try to reflect what is said about the topic by the most informed and credible scholars.

Many forms

It is widely accepted that family violence takes many forms, and that understanding and responding to it requires attention to what is involved in each case. Each individual’s experience of violence, and its meaning and consequences is necessarily unique.

Understanding family violence requires examination not only of physical actions but of the context and the meaning of the actions to those involved. This point was strongly made at the Wingspread Conference:12

There was consensus among conference participants that the impact of domestic violence depends in large part on the context in which it occurs. Identical violent acts may have different meanings depending on the impact on the victim and the intent of the perpetrator.13 Consider a situation where partner A slaps partner B. First imagine that when the incident takes place there is no prior history of physical violence or of other abusive behaviors between A and B. Then imagine that, although this incident is the first instance of physical violence, A has previously undermined B's efforts to seek employment, denigrated B's parenting in front of the children, and isolated B from her family and friends. Then imagine a situation where A broke B's nose the week before and A is threatening to kill B and harm their children. The act of slapping is the same in each situation but the impact and consequences are very different. As a result, judicial focus on a single violent incident without consideration of its larger context is misleading and dangerously incomplete.

The variety of forms that family violence can take is emphasised in some legislation. For example, in New Zealand’s Domestic Violence Act 1995 ‘domestic violence’ is defined to include: physical abuse, sexual abuse, and  psychological abuse, including, but not limited to intimidation, harassment, damage to property, and threats of physical abuse, sexual abuse, or psychological abuse. The definition goes on to note that a single act may amount to abuse. It also notes that as a number of acts that form part of a pattern of behaviour may amount to abuse for that purpose, even though some or all of those acts, when viewed in isolation, may appear to be minor or trivial.14

Similarly, the Victorian Law Reform Commission, in its 2006 report Review of Family Violence Laws: Report recommend that the definition of ‘family violence’ for the purposes of personal protection laws be defined to include non-physical forms of violence.15. The Commission’s recommendations are reflected in the definition of ‘family violence’ in the Family Violence Protection Act 2008 (Vic):

behaviour by a person towards a family member of that person that is physically or sexually abusive, emotionally or psychologically abusive, economically abusive, threatening, coercive, or in any other way controls or dominates the family member and causes that family member to feel fear for the safety or wellbeing of that family member or another person, or behaviour by a person that causes a child to hear or witness, or otherwise be exposed to the effects of that behaviour.16

Like the definition of the National Council to Reduce Violence Against Women and their Children, quoted above, that definition appears to be narrower than the definition in the Family Law Act in that it requires the behaviour to be controlling or dominating.

Differentiation of categories of family violence

In recent times, researchers have found it helpful to distinguish between different forms of family violence, pointing out some common features and patterns. Different scholars have offered different analyses or typologies. Here is the version discussed at the Wingspread Conference:17

Violence used by a perpetrator in the exercise of coercive control over the victim. Sometimes referred to as “classic battering,” this type of violence occurs when an abuser (usually male) uses force as one tactic in a larger escalating pattern aimed at intimidating and controlling the victim. Physical violence and sexual abuse are often accompanied by threats, psychological and emotional abuse, isolation of the victim, manipulation of children, and exercise of economic control.

Violent resistance or self-defence. This type of violence occurs when a victim (typically female) uses violence to protect herself against a perpetrator who is using force as a part of a larger pattern of coercive control.

Violence driven by conflict. This type of violence takes place when an unresolved disagreement spirals into a violent incident, but the violence is not part of a larger pattern of coercive control. It may be initiated by either the male or female partner. However, female victims are more likely to suffer negative consequences, including injury, than are men.

Separation-instigated violence. With this type of violence, the first violent incident occurs at the time of separation as a response to the trauma of separation on the part of an individual with no history of coercive controlling behavior. Separation-instigated violence may alternatively be viewed as a subset of violence driven by conflict. However, under either approach, care must be taken to distinguish separation-instigated violence from the first violent manifestation of coercive control.

Violence stemming from severe mental illness. Some perpetrators of domestic violence evidence psychosis and paranoia, and their violence is driven by severe mental illness.

It is not appropriate to engage here in a detailed discussion of the different typologies presented by different researchers.18 The above list is sufficient to make the point that family violence takes many forms, and acknowledging the differences between them may help us to understand it.

Typologies like this have potential benefits and potential risks. The potential benefits include helping us move away from stereotypes and simple assumptions: reading such a list, we might realise that family violence might sometimes be rather different from what we may have assumed.19 As Tom Altobelli puts it, differentiation ‘seeks to understand family violence in context, and to then use this as a guide to crafting parenting arrangements’.20

The potential risk is that we might come to think that every instance of family violence will fit within one category or another, and we might tend to respond to situations of violence by focusing on the typical features of that category, rather than the particular case. Accordingly, participants at the Wingspread Conference warned against the inappropriate use of labels, which:

could potentially place families in danger, or steer them toward inappropriate interventions. In addition, to the extent that typologies draw bright lines differentiating one type of violence from another, their application is likely to oversimplify family situations which are complex and not so easily categorized in practice. Finally, without substantial expertise and experience on the part of those charged with applying the labels, they are vulnerable to manipulation and misidentification.

In short, these typologies are good if they help us attend to and understand the nature of the violence in each particular case; and bad if they distract us from this essential task and lead us to over-simple reactions.

How are we to understand family violence in a particular case? Categories can help, as we have seen, though we must look deeper. But what are we to look for?

Again, the Wingspread Conference provides valuable guidance:

There was consensus among conference participants that each domestic violence situation must be closely examined to determine the potential for lethality, the risk of future violence, and the presence of other forms of intimidation. Critical variables identified by conference participants included: the frequency, intensity, and recency of the violence; the presence of sexual coercion or abuse; the existence of nonphysical coercive strategies including verbal abuse, threats, isolation, and financial control; the presence of an established history of violence, criminal activity, substance abuse, or mental health issues; the determination of "who is afraid of what"; the needs, interests and well-being of children; any history of child maltreatment; and the extent to which the violence is consistent with a recognized pattern with proven implications for ongoing risk or the utility or impact of particular interventions or determinations. Family strengths and protective factors should also be taken into account and supported.21

A related point is the importance of considering the emotional meaning of what has happened:

The specific abuse complaints need to be examined in terms of their logical and emotional meaning for the complainant: Did the abuse involve deep shaming and humiliation? Was the victim made to feel responsible? Was the abuse normalized, that is, seen as justly deserved punishment or discipline? How an abusive incident is perceived needs to be understood in terms of the family and cultural context in which it is made. Particular behaviors may be deemed especially insulting and offensive in some minority ethnic families in ways that may not be understood by most others (e.g., slapping with shoes in an Islamic culture). Moreover, a victim might have multiple abusers (e.g., her spouse and mother-in-law in some Indian families); or the violence to which the children are exposed is between family members other than the parents (e.g., between father and mother's new boyfriend or involving older siblings).22

I would add that the emotional meaning for the perpetrators might also be important. Understanding and dealing with the situation might well be affected by whether the perpetrators see themselves as violent, whether they regret what they have done, or whether they see their own behaviour as normal, or justified.23

Implications for screening and triage24

The Wingspread Conference gave considerable attention to screening and triage, which is of obvious importance in the family courts. They face the challenge of sorting out, when cases first arrive, whether they involve issues of family violence, the nature of those issues, and the most appropriate way to handle each case. The Conference did not underestimate the difficulties involved:

The first-order task of identifying domestic violence falls on those who interact with the family as it enters the court system. Conference participants emphasized that, in many jurisdictions, no person or office is specifically charged with screening for domestic violence. Further, even when a screening process is in place, cases may go undetected because domestic violence can be difficult to discern and either or both of the adult parties, for different reasons, may downplay the abuse. There was consensus among conference participants that families entering the court system should be screened for domestic violence, but less consensus about how this should be accomplished. …

There was consensus that, when cases of domestic violence are identified or when initial screening is insufficient to confirm or rule out the presence of domestic violence, families should be individually considered and referred to appropriate services and court processes. As a part of the screening and review process for each family, risk and protective factors should be identified and mitigated or supported, respectively.

It was pointed out that such screening is no easy task. If, for example, the screening involves looking only at physical violence, ‘a historic pattern of coercive control may be overlooked, and the ongoing risk to family members may not be addressed’. Accordingly the Conference discussed the use of screening tools. It is not necessary here to review the details of these tools, but they are highly relevant to Australia, when the family courts face the same problems as they do elsewhere. However the Wingspread Conference agreed that there should be

a multi-method, multi-informant approach to family assessment featuring increasingly intense inquiry as higher levels of conflict and abuse are uncovered.25 Indeed, effective screening may ultimately require use of a variety of screening tools, each developed for a specific purpose and for potential use at different stages of the proceeding. For example, while the initial focus of screening might concern lethality and safety, that initial inquiry might trigger a mental health or substance abuse assessment or a further screening to assess the appropriateness of participation in dispute resolution processes such as mediation.

The extent of family violence

It is difficult to assess the extent of family violence in a community generally, or, for example, in cases coming to the family courts. This is partly because of the difficulty in determining what happened in any particular case (family violence may often happen behind closed doors, and there may be little corroborative evidence), and partly because of the wide range of behaviour that can be included as family violence: when one does find research evidence, different studies are often measuring different things.

It has not been possible to conduct a detailed review of the literature, but it seems useful to refer to some evidence that gives at least a general indication of what might be the extent of family violence in Australia.

Perhaps the most useful indicator is the ABS study of 2005, the Personal Safety Survey.26

In relation to violence generally (not just family violence), the survey found that an estimated 35% (5,275,400) of men and women had experienced physical assault since the age of 15. In the 12 months prior to the survey, there were an estimated 443,800 (5.8%) women who experienced an incident of violence compared to 808,300 (11%) men. People were three times more likely to experience violence by a man than by a woman.

The Survey also gives some insight into the amount and characteristics of family violence (though it does not use that term). Reviewing the experience of violence by participants in the previous 12 months, the Survey reported:

The overall experiences of physical assault for men and women, in the 12 month period prior to the survey were different.

  • Of those men who were physically assaulted, 65% (316,700) were physically assaulted by a male stranger compared to 15% (35,500) of women who were physically assaulted by a male stranger.

  • Of those women who were physically assaulted, 31% (73,800) were physically assaulted by a current and/or previous partner compared to 4.4% (21,200) of men who were physically assaulted by a current and/or previous partner . […]

As to ‘violence by current partners’, the survey found:

Since the age of 15, 0.9% (68,100) of men and 2.1% (160,100) of women experienced current partner violence.

As to sexual violence:

During the 12 months prior to the survey 1.6% (126,100) of women and 0.6% (46,700) of men experienced an incident of sexual violence. […]

Since the age of 15, 5.5% (408,100) of men reported experiencing sexual violence compared to 19% (1,469,500) of women.

  • 10% (16,100) of women who had experienced violence by their current partner had a violence order issued against their current partner as a result of the violence. Of those women who had violence orders issued, 20% (3,200) reported that violence still occurred

Violence, parenting and children

Sadly, the research indicates that children are often exposed to family violence. The ABS Personal Safety Survey reports:
  • 49% (111,700) of men and women who experienced violence by a current partner reported that they had children in their care at some time during the relationship. An estimated 27% (60,700) said that these children had witnessed the violence. […]

  • 59% (667,900) of women who experienced violence by a previous partner were pregnant at some time during the relationship; of these, 36% (239,800) reported that violence occurred during a pregnancy and 17% (112,000) experienced violence for the first time when they were pregnant

  • 61% (822,500) of persons who experienced violence by a previous partner reported that they had children in their care at some time during the relationship and 36% (489,400) said that these children had witnessed the violence

The AIFS Report contains a valuable discussion of this matter, also finding that children are often involved. The discussion starts:

Of the 21,000 family-related incidents that were reported to Victorian police in a 12-month period in 1997/1998, children were recorded as present on more than half the occasions (Atmore, 2001). Bedi and Goddard (2007) have provided a brief review of the impacts on children of living alongside intimate partner violence. Although much of the research is again plagued with definitional problems, one is struck by the similarities between the reports of the symptoms and outcomes with respect to the children in this situation, and the symptoms and outcomes, noted above, that attach to more direct forms of child maltreatment.27

The impact on children of exposure to family violence is another important topic, the subject of considerable recent research. In her submission, Dr Lesley Laing writes:

Over the past 20 years, a substantial body of research has identified that exposure to domestic violence is associated with a range of emotional, behavioural and developmental problems in children and young people (Margolin, 2005; Wolfe, Crooks, Lee, McIntyre-Smith, & Jaffe, 2003) and with increased risk of other forms of child abuse and neglect (Edleson, 1999). Indeed, a meta-analysis of many studies found that exposure to domestic violence was associated with similar levels of harm to those experienced by children who experience direct physical child abuse (Sternberg, Baradaran, Abbott, Lamb, & Guterman, 2006).”

While it is important to understand the nature of family violence from the point of view of the adults involved, it is of particular importance in family law to focus on what it means for the children. For example, it is possible that some forms of ‘couples violence’ may be tolerable for the adults involved – though this is a controversial topic – but even if this is so, a child’s exposure to persistent parental conflict may be seriously damaging for the child, even if both adults can cope with it.

It has become apparent in the course of this Review that the use of violence is, among other things, an unacceptable way to parent children. There are at least three ways in which it can be damaging to children.

First, children may be damaged by being exposed or subject to violence.

Second, violent behaviour by a parent is a poor example for children: they need to learn from their parents how to deal with people and to deal with problems, and if what they learn is to use violence, there is a risk that they will learn the lesson only too well and become violent adults. Good or adequate parenting involves being a good or at least reasonably good role-model.

Third, violent behaviour by one parent against another, especially if it is of a serious and controlling kind, can have a disabling impact on the parent who is subjected to it. This is likely to reduce that parent’s capacity in many ways, including parenting.

Violence by one parent against the other can thus lead to inadequate parenting by both parents, and can therefore compromise the extent to which the child’s needs can be met by those parents.

None of this is new or startling. The Convention on the Rights of the Child recognises that

the child, for the full and harmonious development of his or her personality, should grow up in a family environment, in an atmosphere of happiness, love and understanding’.

The United Nations’ report Ending violence against women: Study of the Secretary-General notes that research indicates exposure to violence, whether directly or through witnessing the violence, can adversely affect a child’s health, and education, noting that these children ‘have been found to show more anxiety, depression, trauma symptoms and temperament problems than other children.’ Similarly, the National Council to Reduce Violence against Women and their Children provides the following summary of the link between poor parenting and family violence:

Given children are dependent on adult caregivers to provide them with a safe environment and to share their sense of what is normal and right, any form of domestic and family violence harms children, whether they are directly or indirectly a target or victim of abuse’.28

Finally, the AIFS Report says:

From the perspective of healthy child development, continued high conflict seriously erodes parental attunement to the needs and experiences of their children…29

In summary, violent responses, whether directed at a child, or at or between adults on whom the child depends, are simply incompatible with caring for that child’s needs. In this sense, violent responses, along with ongoing, unresolved adult-to-adult conflict, can both be understood as significant acts of neglect.30

To what extent is family violence a gender issue?

It is necessary to deal briefly with two issues that were the subject of much discussion in the submissions, namely the extent that family violence is a gendered issue, and the extent of ‘false allegations’.

The literature reveals remarkably different findings about the extent to which family violence involves violence by men against women. Although the ABS figures, above, and the AIFS literature review31 suggests that most family violence is committed by men against women, some studies suggest that women engage as often as men in at least some forms of violence. Opinions differ greatly about these matters, and about whether violence by women against men tends to be qualitatively different to violence by men against women. The issue was taken up in some detail in a number of submissions to the Review.32

The answer to this question may well be of considerable importance for some purposes, for example the design and resourcing of support services for victims of violence, both male and female. It may be, too, that an understanding of the relevance of gender would help us deal sensitively with male as well as female victims of violence: it seems possible that their experiences might be somewhat different, and perhaps the most appropriate ways of interviewing and screening might be different when the person alleging violence is a male, just as the way of dealing with victims from different cultures or groups in the community might need to be tailored so it is appropriate for those people.

However it is not necessary for the purpose of this Review to express an opinion about the amount or characteristics of violence by men against women compared to violence by women against men. The Wingspread Conference dealt with the problem as follows:

Many conference participants felt strongly that domestic violence is not gender neutral, that gender inequality underlies the violence in many families, and that family court systems must be alert to issues of gender both in the cases coming before them and in their own processing of those cases. At the same time, there was a general recognition that not every case of domestic violence is male initiated and that the ultimate obligation of the court system is to address each case on its own merits

The last sentence pin-points the task facing the courts, and explains why it is not necessary that this Report be based on any particular view about the connection between gender and family violence.

A number of submissions referred to the problem of violence by women against men.33 My impression from conversations with and submissions from legal practitioners is that their cases involved issues by women against men, although much less commonly than the reverse. This was the unanimous view of a group of specialist family law firms in the ACT.34 No doubt male victims of violence also face difficulties in family law proceedings. One legal firm commented:

When representing male alleged victim of domestic violence it is often difficult to assure the client that their complaints and allegations will be taken seriously against a presumption or an assumption that because they are men…the man’s complaint can’t be ‘real’” (Dobinson)

The family law system needs to respond appropriately to each particular case, and deal fairly with the allegations and evidence. It would be wrong for the system as a whole, or for individuals working in the system, to approach the problem with preconceptions about the matter. Even if family violence, and especially the more serious forms of family violence, involves men being violent to women more than women being violent to men, it would be a mistake to assume that women’s violence against men does not exist, or cannot be a serious matter. Any individual who makes allegations, and any individual who defends them, requires a fair hearing and fair treatment, regardless of gender. And it is important that all litigants understand that the system makes no pre-judgment about whether violence has or has not happened in a particular case, or how serious it might be.

The issue of ‘false allegations’

In a similar way, widely different views have been expressed, both in the literature and in the submissions to this Review, about the incidence of ‘false allegations’.

I put the expression in quotation marks because it is ambiguous.35 An allegation can be true or untrue. If untrue, the lack of truth might relate to the whole allegation or only to some detail. The untruth might reflect an honest error, a deliberate desire to fabricate evidence and deceive the court, or it might be in the nature of an exaggerated or unduly colourful account of an event. Again, an allegation might be corroborated by other evidence or be uncorroborated: but in either case, it could be true or false. Finally, it is quite possible that two people give very different accounts of an event, in each case with perfect honesty, but in each case their recollection is much affected by the emotions involved. In such cases each person may conclude, genuinely but wrongly, that the other party has intended to mislead the court. The expression ‘false allegation’, if undefined, could refer to any of these situations.

All this applies equally to denials of family violence.

In my view it is likely that in many cases of conflicting evidence, the reason for the conflict is something other than a deliberate desire by one party to fabricate evidence and mislead the court. Nevertheless, there will surely be some cases in which litigants do indeed fabricate evidence for their own advantage. Sometimes, that will become obvious at a hearing, but more commonly the judicial officer will have no way of knowing whether a person has fabricated their evidence. That is why judges often limit themselves to saying that they prefer the evidence of one person to another. That is a sufficient basis to make a finding of fact and determine the case, and avoids the injustice and distress that would be entailed if the judge called someone a liar when that was not so.

The AIFS study referred to claims ‘that separated mothers routinely make false accusations of family violence and/or child abuse for revenge or to gain a tactical advantage in child custody disputes, with the aim of reducing their former partner’s involvement in their children’s lives or of cutting them out altogether’ and said they were ‘now largely debunked by the research community’.36 However it also found that such views seemed to be held by many in the community – both men and women – referring to a telephone survey of 2000 people in Victoria finding that 46% of respondents agreed with the statement that “women going through custody battles often make up claims of domestic violence to improve their case”.

As in the case of the relevance of gender in family violence, it is not particularly important for the purpose of this Review to know the amount of fabricated evidence among those who allege family violence and those who deny it. It is obvious that the family law system has to be alert to the possibility that any party or witness might be inventing stories to gain advantage in the litigation. It is equally obvious that fairness means that the court should not approach a case by assuming it is likely that either the allegation or the denial will be fabricated. As in other respects, men and women, and those alleging violence and those denying it, must be able to approach the court believing, correctly, that they will get a fair hearing. For this reason, too, it is important that the legislation should not give the impression that the court will approach a case with some preconception about the likelihood of one or other party seeking to mislead the court.

I should add that although much opinion was expressed on the subject, I am not aware of any good evidence to suggest that allegations of violence are more or less likely to be untrue, or to be fabricated, than denials; or that any evidence about family violence is more or less likely to be unreliable than evidence about anything else.

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