Type:	Journal Article
Title:	Violence in contested children's cases: an empirical exploration
Other Titles:	Australian journal of family law
Authors:	Kaspiew, Rae
Keywords:	Post-separation violence;Parenting;Family law;Legislation analysis
Year:	2005
Publisher:	Butterworths
Notes:	General Overview: This Australian article presents an analysis of the treatment of violence in litigated children’s cases, under the ‘right to contact’ principle introduced in the Family Law Reform Act (1995). It is argued that this has led to a de facto presumption in favour of child contact by both parents in family court disputes, which overrides concerns about family violence. Methods: The study examined 40 case files involving children’s matters that proceeded to trial from 1999 to 2000 (from Melbourne and Dandenong Registries of the Family Court). Analysis was made of the data from parents’ affidavits, the family reports and the judgments. Results: The study found that more than half the women in the sample claimed violence to be an issue in the relationship. The violence varied in terms of physical severity and features of control. In some cases it affected the parenting capacities of some mothers. The study also indicated a range of ways that children experienced direct and indirect effects of the violence. In terms of outcomes of cases, the study found that a history of violence did not prevent violent fathers’ contact with their children. The violence had to be extremely severe and have a strong evidential basis before it could be argued to be a disqualifying factor in residence or contact applications. The study perceived that for some violent men the litigation offered an opportunity to maintain control and continue the abuse. Discussion: The article argues that the identification of violence in these cases is treated in two different ways. Violence may be treated as a disqualifying factor in applications by fathers for contact (and even residence). These are situations where the violence is severe and has a strong forensic basis. Disqualifying violence needs to be considered significant by the Court to challenge paternal fitness. In these cases, psychological and some judicial approaches still favour contact (even if supervised). Alternatively, violence may be treated as a ‘contextual’ factor, underlying the mothers’ arguments against the fathers’ applications for increased time (and sometimes residence) with the children. Even in these cases justification for ongoing contact was rarely questioned, despite reasonably severe histories of violence in the relationship and ongoing harassment post-separation. The article discusses the implication of the Family Law (Shared Parental Responsibility) Bill 2005 within this context. The author notes that the messages of equality in terms of equal parenting time and responsibilities are being more clearly received within judicial and legal communities dealing with such cases, than are the messages about family violence. Conclusions: The article concludes that the shared parenting framework has led to an informal operation of a presumption in favour of contact with both parents, regardless of whether family violence has occurred or is continuing. The study found that there has been a shift in the bargaining positions of men and women in favour of fathers, along with the marginalisation of violence as a factor relevant to parenting capacity. The link between a history of violence and parenting capacity remains unexamined by the Court, except in extreme cases.
URI:	https://anrows.intersearch.com.au/anrowsjspui/handle/1/12304
ISSN:	0817-623X
Appears in Collections:	Journal Articles

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