QUEENSLAND UNIVERSITY OF TECHNOLOGY

PUBLIC LECTURE SERIES

21 April 2009, 6.00 pm

FAMILY VIOLENCE, MENTAL HEALTH AND RISK ASSESSMENT IN

THE FAMILY LAW SYSTEM
The Hon. Diana Bryant, Chief Justice, Family Court of Australia*

Preamble

The question of how to protect children in our society from danger in all forms is very
much at the forefront of our community consciousness, and appropriately so. We see
every day in the papers stories of how children have been abused by family friends,
school teachers and strangers.

What I want to talk about tonight is the risk of harm to children by their parents. That
too is a matter very much in immediate consciousness for reasons I will refer to later
in this paper.

Protection of children should need no debate. We live in a society where we regard

the protection of children as being vitally important and we want our courts and other
institutions to support that position. It should be simple then for that to happen and
there should in theory be no debate about it. But within families where there is a
breakdown in their relationship and the parties each go their separate ways, the
tension between what the Family Law Act 1975 (Cth) presently describes as “the
benefit to the child of having a meaningful relationship with both of the child‟s
parents”1 and “the need to protect the child from physical or psychological harm from
being subjected to or exposed to abuse, neglect or family violence”2 creates a tension
which often has to be determined by judges. This tension has to be determined on
properly admitted evidence but with a particular emphasis on protection of the child.

* I acknowledge the assistance of Kristen Murray, Senior Legal Research Adviser, Family Court of Australia, in the preparation
of this paper.
1
Family Law Act 1975 (Cth), s 60CC(2)(a).
2
Ibid, s 60CC(2)(b).

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It is this tension, particularly where violent acts have occurred to children, that I want
to discuss this evening.

It is a controversial topic and usually breaks down on gender lines. I would like to
discuss it in more objective terms because I don‟t think as a community we will learn
anything unless we are prepared to do so.

I have tried to avoid expressing personal views but rather to put forward information
that is not often considered when public debates occur in the media. Not everybody
will agree with the material presented but I hope you will all listen attentively and
perhaps at the end of the lecture we can all collectively start to think about what sort
of laws we as a community want to protect our children. Because it is a matter for the
whole community.

Introduction

On the morning of 29 January 2009, after overnight temperatures in Melbourne of

almost 29 degrees, a young girl was thrown by her father off the Westgate Bridge to
her eventual death, before the eyes of horrified commuters.

The media quickly learned that the child‟s parents had recently been involved in
litigation in the Family Law Courts. It then emerged that parenting orders had been
made just the day before the tragic incident.

It did not take long for commentators across the country to begin drawing their own
conclusions. The vast majority assumed that there must have been a direct causal link
between the family law litigation, the parenting orders made and the father‟s shocking
act.

The situation was further confused when the child‟s family spoke to the media of
having been failed by “the justice system”. It was not clear whether this was intended

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as a reference to the Child Protection Unit in the Department of Human Services, the
Family Law Courts, or some other relevant agency.

Talkback radio and print opinion pieces were replete with criticism of the family law
system. Some alleged that the shared parenting amendments of 2006 were forcing
children to live with unsafe fathers. Others alleged that the family law courts were
biased against fathers who were thus driven to extreme responses.

Calls were made for “something to be done”, “action to be taken”, and for “less
adversarial procedures” to be introduced.

The federal Attorney-General‟s Department instigated a review of the case.

Examination of the circumstances revealed that the parties had ultimately reached
their own agreement as to the care arrangements for the children. It also emerged that
the children had been living with both parents, by agreement, in a shared care
arrangement for two years before the father committed the ultimate act of violence
against his daughter. In the scheme of things the Court‟s involvement in this family‟s
life was peripheral.

Nevertheless, a public rally is being held on 3 May, ostensibly in memory of the

children who have died at the hands of their parents following Family Court
involvement. People attending the rally are being encouraged to wear red hoods and
scarves, not just to disguise their identity but also, and I quote, to “signify the blood of
Australian children being shed by FCA orders which force children to have access to,
or shared care with parents who are violent or sexually abusive.”3

The narrow and confronting focus of this particular rally makes it a somewhat
extreme example. Yet, the issues raised by the event organisers and the broader
public debate surrounding the case involve positions and perspectives that are very
familiar to those of us working in the family law system.

3
From rally advertisement entitled „Rally against family court access decisions to violence (sic)‟.

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What I found particularly disappointing about the tenor of the public debate over this
case was the themes missing from it. I intend to address three such themes tonight.

First, there was no attempt to understand whether or how such an event could have
been predicted.

Secondly, there was no acknowledgement of the many references in the Family Law
Act requiring family violence to be considered and taken into account by judges in
deciding parenting cases, nor any reference to the many processes in the Family Law
Courts, and particularly in the Family Court of Australia, in the areas of family
violence and supporting vulnerable clients.

Finally, and perhaps most importantly, the haste with which blame was sheeted home
to the Family Court prevented any real consideration of the role the community as a
whole could and should play in assisting to prevent such tragedies.

Before I turn to my three themes, I wish to briefly discuss the relevant provisions of
the Family Law Act itself.

The Family Law Act was substantially amended in 2006. Those amendments are
colloquially known as the „shared parenting reforms‟ and it is fair to say they were not
uncontroversial.

The shared parenting reforms have been described by the organisers of the May 3
rally as strengthening the “equal access to both parent‟s notion, without enough
regard for the fitness of both parents to care for a child, by recommending shared-care
where possible.”

The organisers of the rally are calling for further legislative reform to better protect
children from violence and abuse. That is their right.

My own observations of the 2006 reforms and how they are being applied are that
judicial officers are applying the admittedly complex new provisions appropriately
and sensibly and arriving at what the Act clearly states is a decision that must be made

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in a child‟s best interests. This decision is to be made having regard to presumptions
that can be rebutted where it is not in the best interests of children that they be
applied.

However, I am aware that in the community it is not always understood that

children‟s best interests remain the ultimately determining factor. There appears to be
a belief, one that is perhaps widely held, that:

a) the Family Law Act requires courts to apply equal shared parental
responsibility AND equal time; and
b) that the Courts are routinely doing so.

That is not the case, at least insofar as the Family Court is concerned (statistics are not
currently available for the Federal Magistrates Court).

This can be demonstrated by reference to the recently published Family Court

statistics on the outcome of parenting disputes finalised in 2007-08. These statistics
show that in litigated cases, a 50/50 care arrangement was only awarded in 15% of
cases. Parties agreed to a 50/50 arrangement in 19% of cases.

In a third of litigated cases, the Family Court ordered that children spend 30% or less
time with their father. Abuse and/or family violence was the major reason why this
order was made. In 9% of litigated cases, the Family Court ordered that children
spend 30% or less time with their mother, the major reason being the presence of
mental health issues. In 6% of litigated cases the father was ordered to spend no time
with the children and the same order was made in respect of mothers in 1% of
litigated cases. Abuse and family violence was the major reason these orders were
made.

However, public confidence in courts is eroded if the public doesn‟t understand what
the legislation actually requires judicial officers to do. Nor should it be the sole
responsibility of the courts to educate the public about what the legislation means.

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I am confident that the Attorney-General and his Department are aware of these
problems and certainly the organisers of the rally I referred to are highlighting them.

Predicting extreme and dangerous behaviour

My first theme is risk assessment and predicting extreme behaviour.

One of the most challenging tasks judicial officers face is making assessments of risks
of harm to children arising from sexual abuse or family violence, or psychological
harm from a mentally ill or neglectful parent.

Extreme behaviour of the type I‟ve described, where a child tragically loses their life,
is thankfully uncommon.

The Australian Institute of Criminology prepared a report into Family Homicide in

Australia in 2003, using data from the National Homicide Monitoring Program. They
found that between 1 July 1989 and 30 June 2002 there were, on average, 25 children
killed by their parents each year. That number seems to have declined slightly. In
2006-7, on my reading of the figures, 22 out of a total of 26 child murders were
committed by parents.4

It goes without saying that even though the murder of a child by their parent – known
as filicide – is a comparatively rare phenomenon, the death of even one child at the
hands of their parent is completely unacceptable. To quote Dostoyevsky‟s question as
posed by Ivan Karamazov, “in order to bring men eternal happiness, it is essential
and inevitable to torture to death one tiny creature, only one small child. Would you
consent?”5 Fortunately we live in a society in which we would not.

It is critically important that we seek to understand why acts of such callousness and
brutality occur. In order to do so we need to repress the tendency to find a causal link

4
Jenny Mouzos and Catherine Rushforth, Family Homicide in Australia, Australian Institute of Criminology, No. 255, June
2003; Jack Dearden and Warwick Jones, Homicide in Australia : 2006-07 National Homicide Monitoring Program annual
report, http://www.aic.gov.au/publications/mr/01/ (accessed 10 April 2009).
5
See Fyodor Dostoyevsky, The Brothers Karamazov, The Lowel Press, New York, p. 269, <
http://www.gutenberg.org/files/28054/28054.txt>, Ariel Dorfman, „The Last Temptation of Ivan Karamazov, Queens Quarterly,
22 June 2004, < http://www.accessmylibrary.com/coms2/summary_0286-13011988_ITM>.

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between the event and the closest external intervention, especially if our prejudices
impel us to that conclusion.

The common story from experienced family lawyers is that the cases in which tragedy
occurs are usually the cases one would least expect.

This is consistent with what the published research tells us.

The Australian Institute of Criminology‟s 2003 study of filicide states “the underlying
motive behind incidents of filicide are difficult to explain. This is evident in the
analysis of filicides in Australia, where the motive was undetermined in three out of
five cases.”6

An article appearing in the Family Court Review in 2006 entitled „Familicide and
Family Law: A Study of Filicide-Suicide Following Separation‟, cites a study
undertaken by an Australian researcher, Alison Wallace, who concluded that filicide
is “most often an unpremeditated crime undertaken in haste.”7 In her introduction to
the article, Carolyn Johnson, the author of the 2006 study, says that in relation to
familicide (where a parent kills a child and then him or her self) “At this time, due to
a dearth of research in this area, professionals do not have enough understanding of
the problem to be able to say how, and why, these offences occur and, therefore, it has
been difficult to propose how they might be prevented.”8

The AIC however postulates that in the cases in which parental motivation for killing
their children is known, domestic “altercations” (whatever that might mean) and
jealousy or termination of a relationship arising from actual or pending separation
were precipitating factors.9

6
Family Homicide in Australia, above n. 4, p. 3.
7
Alison Wallace, Homicide: the social reality, Bureau of Crime Statistics and Research, Sydney, New South Wales, 1986, as
cited in Carolyn Harris Johnson, „Familicide and Family Law: a study of filicide-suicide following separation‟, (2006) 44 Family
Court Review 448, p. 455.
8
Johnson, ibid, p. 448.
9
Family Homicide in Australia, above n. 4, pp. 3-4.

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Although parents‟ motivation for killing their children is not often discernible, there
have been attempts to classify acts of child murder according to motivation and, from
there, identify particular risk factors.

The most well known of these is the typology developed by Dr Phillip Resnick. Dr
Resnick established his organisational system after considering 131 case reports on
child murder gleaned from world literature from 1951 to 1967. Dr Resnick proposed
five categories of filicide:

Altruistic filicide – murder committed out of love to relieve the real or

imagined suffering of the child

Acutely psychotic filicide – where a person in the throes of an acute psychosis

kills their child with no comprehensible motive

Unwanted child filicide – where mothers kill their children for reasons of
illegitimacy or unwanted pregnancy

Accidental filicide – where a child dies as a result of child abuse or neglect

Spouse revenge filicide – where a parents seeks to „get back‟ at his or her
partner for a particular reason, such as the end of the relationship10

The risk factors associated with the five types of filicide appear to vary. For example,
and unsurprisingly, acutely psychotic filicide is associated with diagnosis of serious
mental disorders such as schizophrenia, bipolar or major depressive disorders,
psychotic features, prior contact with mental health professionals, past suicide
attempts and social isolation (usually in the case of mothers).

The terrible phenomenon of filicide is overlain by that of filicide-suicide, where one

parent kills a child or children and then themselves. I mention this because of the
additional complexities suicide by the perpetrator brings to the whole issue of risk
assessment and prevention.

10
See Friedman et. al., „Filicide-Suicide: common factors in parents who kill their children and themselves‟, (2005) 33 Journal
of the American Academy of Psychiatry and the Law 496.

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I referred to Carolyn Harris Johnson‟s Familicide and Family Law study earlier. It‟s
a particularly interesting study, which examines seven Western Australian cases of
family homicide followed by suicide in cases where custody or access issues (as the
researchers term them) were identified as being in issue. It is one of the few in-depth
studies that I‟m aware of that looks specifically at the intersection between familicide
and family law disputes.

The study‟s findings repudiate many of the myths put about by critics of the family
law courts, in particular the suggestion that there is a direct causal relationship
between parenting orders, and particularly orders for shared care and unsupervised
contact in cases where domestic violence has been alleged, and fatal harm to children.

In the seven cases examined by Johnson, all involved a father killing a child or
children and then himself, or in one case attempting suicide. The primary finding of
the study is the presence of significant commonalities amongst the familicide offences
subject to the study. These are:

Familicide was more related to separation than to a dispute about who a child
lives with or how much time the child spends with a parent.

There was a history of domestic violence.

The perpetrator had a history of obsession, egocentricity and pathological

jealousy and made previous threats to harm or kill, held a proprietary view of
his wife and children, and showed evidence prior to the offence of untreated
mental health issues.

The offence was premeditated.

Women underreported the violence.

There were abandonment fears and a lack of individuation in the perpetrator

which appeared to be linked to emotional deterioration at the time of
separation.11

11
Johnson, above n. 4, p. 457.

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A section of the study is entitled „misconceptions‟ and two key ones emerge. The
first is that familicide is caused by a legal dispute. Johnson‟s study did not support
this. In fact, not one of the survivors she interviewed perceived that there had been a
dispute with the other parent as to custody or access and only one family out of the
seven studied had proceedings before a family court. The second is that fathers are
denied contact with their children and this results in them taking their children‟s lives
and their own. In all of the cases reviewed by Johnson, the father was having contact
with the children.12

Of course, the organisers of the forthcoming rally would say that is precisely the
problem: fathers are routinely and inappropriately allowed to spend time with their
children, to their children‟s peril. But if Johnson‟s analysis is correct and, at least in
cases of murder-suicides, many care arrangements are arrived at outside the court
system, then it would appear that involvement in a dispute in the courts may be
temporal, but not causative.

The case I have mentioned, where orders were made in accordance with what the
parties agreed (and not by a decision imposed by a judge) would seem to support
Johnson‟s findings. If the parties reached their own agreement, as they did, after two
years of contact between the father and children, in what way is the judicial officer
who made the orders (on this occasion a Federal Magistrate) responsible for what
later occurred?

That thought certainly occurred to me when I read the „in memorium‟ list being
distributed by the anti-Family Court rally organisers. The list includes the name of
Robert Farquharson, who shockingly drove his car containing his three sons into a
dam when returning them to their mother‟s care, resulting in all three boys drowning
and was convicted or their murder. There were no proceedings, either past or
pending, in either the Family Court or the Federal Magistrates Court when those
children were killed. How it could then be said that their deaths are the responsibility
of a judge of the Family Court eludes me.

12
Ibid p. 458.

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This is the point I am striving to make: what is there to be gained from looking for a
scapegoat or villain in tragic circumstances such as these?

These simplistic, monist theories of responsibility and attribution of blame, which are
levelled at the most convenient scapegoat, are worse than mischievous. They are
occludent. They divert and distract. They direct attention away from the questions
we should all be asking and all want answered: why did this happen and how can we
prevent it happening again?

The devastating bushfires in Victoria are a telling example. What if we accepted the
position adopted by certain elements in the media – that the bushfires were solely
caused by local governments adopting „green‟ environmental policies which caused
the build-up of excessive fuel load?

The answer is that we would fail to understand and, more importantly, learn from the
role of extreme weather events, evacuation and disaster relief policy, emergency
services training and human agency, to name but a few factors in a complex matrix.
We would doom ourselves to repeating the same mistakes, with the same (or worse)
catastrophic consequences.

It is abundantly clear from the research I‟m familiar with that filicide and familicide
are notoriously difficult to predict and, as I mentioned earlier, that accords with my
own experience. I will shortly turn to how we approach risk assessment in the Family
Court. But we do know that family violence, where that has been present in a
relationship, and the presence of an untreated mental disorder or mental illness, are
risk factors. Johnson says so much in her study, in identifying a need for greater
awareness of the risk factors involved in family violence and the dangers some
families face following separation.13 That is needed not only for those organisations
that work within the broader family law system but by members of the community as
well.

13
Ibid pp. 459-60.

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We must note that many cases resolve without court intervention and they too, on rare
occasions, result in familicide. The Farquharson case is one appalling example.
However, it is likely that other organisations – perhaps counselling services, legal aid
or community legal centres – will have had interaction with such families. Are they
too to be held accountable when a terrible event like the murder of a child occurs after
parents have reached their own agreement, or only the family courts?

That there is a need for greater awareness of risk factors, and particularly the role that
family violence and mental illness play in predicting dangerousness, is beyond
dispute. I will shortly turn to discuss various initiatives the Family Court has put in
place in this vitally important area.

But even so, it cannot as a simple matter of logic be that in every case in which
family violence is alleged, children are in mortal danger.

As the argument runs, in every case in which a child dies at the hand of a parent, there
is some evidence that the perpetrator used violence against family members.
Therefore, and conversely, does it follow that in every case involving allegations of
violence, a child will be killed?

One need only state the proposition to see that it fails the most rudimentary test of
logic.

Assessing risk is an exquisitely difficult task, as judges in family and criminal courts
know only too well. Decisions are arrived at by careful consideration of the factual
circumstances, by taking account of expert medical and other reports, by regard to the
legislative framework in which the court operates and by reference to an established
body of jurisprudence.

Necessarily, a degree of prediction and scenario testing is involved. But it is

emphatically not a process that proceeds on the basis of clumsy linkages between
„cause‟ and „effect‟ and simplistic equations: allegations of violence plus allegations
of poor mental health equal murder.

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The test that applies to family courts is one of deciding whether or not a parent
presents an unacceptable risk of harm to a child. This test was laid down by the High
Court in the case of M & M [Child Abuse] (1988) 166 CLR 69. That case involved
allegations of sexual abuse but the concept of unacceptable risk applies more broadly,
including for example an unacceptable risk of harm of physical neglect, an
unacceptable risk of harm from exposure to high-level parental conflict and an
unacceptable risk of harm from being exposed to scenes of violence.

It is important to understand that is not the Family Court‟s role to make a finding as to
whether a person against whom allegations have been made is found to have
committed the offences complained of. That is the role of the criminal courts.

The Family Court‟s task is to determine, on the balance of probabilities, whether if

ordering that a child spend time with a parent, the order would place the child at an
unacceptable risk of harm. Judges are required to assess the facts before they can
consider any risk to the child when making orders about care arrangements and these
risks must be balanced against the desirability of a child maintaining a meaningful
relationship with both parents.14

The task of trial judges in evaluating evidence of violence and deciding the relevance
of that violence to the outcome of a children‟s case was discussed by Justice
Chisholm, a former judge of the Family Court, in the case JG & BG (1994) FLC 92-
515, and subsequently approved by the Full Court. Justice Chisholm emphasised the
individualised, contextual basis of the inquiry: His Honour said:

Violence may take many forms and have a quite different significance
in different cases. It might be, for example, a single outburst, out of
character, caused by a stressful situation, for which the violent persons
feels immediately regretful and apologetic. It might be the result of
mental instability or disease. It might stem from a person’s inability to
control his or her temper. It might represent a deliberate pattern of
conduct through which the violent person exercises a position of

14
This is one of the two primary considerations family courts must take into account pursuant to section 60CC(2) of the Family
Law Act 1975 (Cth).

13
 dominance and power over the other. It might be associated with a
particular situation, and be unlikely to be repeated in different
situations, or it might be a recurrent pattern of behaviour occurring in
many situations. The violent person may deny the violence, or seek to
justify it, or alternatively might accept responsibility for it and be
willing to take appropriate measures to prevent it happening again.

These and many other aspects of violence may be highly relevant to the
court in its task of attempting to determine the relevance of the
violence to the children’s welfare.

As can be seen, it does not automatically follow that in every dispute in which
violence is raised, the Court should make an order that a child should have no contact,
or only supervised contact, with the person against whom the allegation is made.

However, if as a society that is what we want, we need to say so, in legislation. But
we also need to cautiously assess all the positives and negatives associated with the
legislative application of presumptions that course would involve. In other words we
need to calmly assess and debate these issues.

Some jurisdictions have headed down this path.

In New Zealand the Care of Children Act 2004 (NZ) states that if the Court is
satisfied that a party to the proceedings has used violence against the child or against
the other party to the proceedings, then the Court must not make an order that the
child live with or have contact with the perpetrator, except for supervised contact.15
The organisers of the anti-Family Court rally seem to support including a similar
provision in Australian law.

However, it needs to be borne in mind that the New Zealand legislation is not
expressed in such black and white terms as some suppose. There is a defined process
the Court must follow when allegations of violence are raised and one of the

15
Care of Children Act 2004 (NZ), s. 60(3).

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obligations imposed on the Court is to determine, on the basis of the evidence
presented, whether or not the allegation of violence is proven. Where allegations that
a person has used violence against a child or the other parent are proven, the starting
point is no unsupervised contact. However, this does not apply where violence is not
proven and even if it does, there are a number of factors upon which a court can find
that it would be safe for a child to live with or spend unsupervised time with a person
who is proven to have used violence.16

Many of these factors are picked up in the Family Court‟s Family Violence Best
Practice Principles, which I will discuss shortly.

The New Zealand experience shows that mandatory „no contact‟ provisions can have
unintended consequences. The basis of the legislation was to protect women (and
children) but I am informed that as the legislation operates in favour of the first
person to apply, men are applying first and making allegations of violence against
mothers, resulting in orders prohibiting contact between children and their mothers
who may have been primary carers.

Furthermore, if we legislate in similar terms and require courts to determine disputed

facts at an early stage as they must do if one parent has no contact, then courts must
be provided with sufficient additional resources to enable them to decide, according to
the requisite civil standard and at an early stage, whether a parent has used violence.
This would place a significant obligation on the Government to appoint sufficient
judicial officers to the courts to deal with an increased urgency.

The new Victorian Family Violence Protection Act 2008 (Vic) similarly contains „no
contact provisions‟. Section 93 of that Act provides that if the court decides that it
may jeopardise the protected person's or child‟s safety for the child to live with, spend
time with or communicate with the respondent, the court must include a condition in
the family violence intervention order prohibiting the respondent from living with,
spending time with or communicating with the child.17

16
Ibid s 60(4) and s 60(5).
17
Family Violence Protection Act 2008 (Vic), s. 93.

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It will be interesting to see how the Victorian legislation fares but there are already
cases coming to the family courts where one parent is having no contact with the
children and parties cannot get an early hearing date in the State court

We should examine what other jurisdictions have done but we should not hastily and
arbitrarily arrive at this, or any other, outcome. There needs to be a debate around
family violence, mental health, and children‟s safety. That debate cannot occur where
courts are vilified for doing their job.

The circumstances leading up to and contributing to the death of a child need to be

examined calmly and thoroughly. That occurs to some extent as part of police
investigations, trials and the coronial process.

Something more may be required. I would welcome further research into filicide, in
the public eye but without the hysteria that has characterised recent public discourse.

Initiatives of the Family Law Courts

Obviously but problematically for courts, successes in detecting indicators of risk

remain largely ignored, precisely because tragedy is prevented or avoided.
Conversely, the relatively few failures of the courts to detect such a risk receive
disproportionate attention because of the gravity of that which results.

I am a strong believer in continuous improvement and I welcome constructive

suggestions as to process reform. Those suggestions however need to be predicated
on an understanding of the various procedures and supports the Courts currently have
in place.

It also needs to be understood that family courts are not forensic bodies. They do not
have an independent investigatory capacity or role when violence or abuse is alleged.

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This is made explicit in New Zealand‟s Care of Children Act 2004 (NZ)18 and a
similar provision might be a useful edition to the Family Law Act 1975 (Cth).

Family courts are reliant upon other agencies, particularly child welfare departments
and police, to undertake investigations into matters that may be relevant to the
proceedings before it. And although the Court can make directions as to the filing of
material and can issue subpoenas compelling the production of documents, it cannot
order state agencies to undertake enquiries into particular matters. It is hardly an ideal
situation but in the absence of the Commonwealth assuming responsibility for child
protection from the states, that will continue to be the reality.

That is not to say that we don‟t have extremely useful resources at our disposal to
assist in arriving at outcomes that are in the best interests of children.

There is capacity under the Family Law Act to appoint Independent Children‟s
Lawyers (ICLs), who form a view as to the child‟s best interests and make
submissions in accordance with that view. ICLs are obliged to act impartially in
dealing with other parties in the proceedings, ensuring the views of the child are put to
the Court and analysing documents to be used in the proceedings and bring salient
matters to the Court‟s attention.

Another important tool in the toolbox is family reports.

These are expert reports either prepared by Family Consultants, who are highly
skilled in-house counsellors, or by professionals with expertise in a particular field of
study, such as child psychiatry or psychology. Whether a family report is ordered in a
particular case is a matter for individual judicial officers. This could include where a
judicial officer is being asked to make consent orders in disputes involving allegations
of violence and the judicial officer wants further information before making, or
refusing to make, the orders sought.

18
See Care of Children Act 2004 (NZ), s 60(2).

17
Both Independent Children‟s Lawyers and Family Reports are invaluable to decision
makers. We are fortunate compared to colleagues sitting in family courts in other
common law jurisdictions, who do not routinely have such resources available to
them.

The Family Court has had a violence policy in place since 1993. The current
operative, overarching strategy is the Family Violence Strategy 2004-05.

The Family Violence Strategy and various initiatives developed emanating from it
were formulated in an environment of increasing complexity in family law
proceedings.

Over the past decade in particular it has become apparent that:

allegations of family violence are being raised more frequently
multiple allegations are being made in the course of the one case
allegations are being made by both parties against each other
the alleged behaviour is more concerning and
allegations of violence are often accompanied by allegations of substance
abuse and poor mental health.

Risk assessment is obviously critical to protecting separated couples when they come
to court and to ensure that fear of violence – past, present and future – is identified
and explored as early as possible.

A pilot „screening and risk assessment‟ program was trialled in the Brisbane registry
in 2005 and evaluated by an external provider, Relationships Australia. Client
feedback showed that the ability of clients to participate in Court events had been
maximised by feeling safer before arriving at Court.

The family courts (the Family Court and the Federal Magistrates Court) implemented
the screening pilot on a national basis. All non-judicial staff – in excess of 400 people
– have received training in family violence and mental health issues, as have
Registrars and Family Consultants. It is an intensive training program, undertaken

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over five days, and supported by referral protocols, check lists and precedent safety
plans.

In the area of mental health, which occupies over two days of the five day program,
staff are trained in detecting indicators of stress and mental illness, coping with and
gaining control over potential emergency situations, and referring clients to
appropriate agencies. These are done through what are called „warm linkages‟ so
instead of a client simply being given a telephone number or website address, Court
staff call the agency on the client‟s behalf to make an appointment. The same process
applies when making referrals to family violence support agencies. We have
negotiated referral arrangements with approximately 80 community based,
Commonwealth and State organisations.

All client service staff have been trained to ask, in cases where a parent discloses
family violence or a fear of family violence, whether or not a Form 4 has been filed.
The Form 4 „Notice of Child Abuse or Family Violence‟ is part of the broader process
the Court has in place to give effect to new obligations that were imposed by section
60K, one of the provisions that came into effect in July 2006.

Section 60K places an obligation on family courts to take “prompt action” in cases
where there are allegations of child abuse, family violence, risk of child abuse or risk
of family violence. The term “prompt action” is not defined but the Family Court has
its own time standards in place.

When the Form 4 Notice is filed the Court is duty bound to consider, as soon as is
practicable:

what procedural or interim orders should be made to protect the child who is the
subject of the proceedings or any party to the proceedings

what orders should be made to enable evidence to be obtained about the

allegations as expeditiously as possible

19
 whether an order should be made to obtain reports from State and Territory
agencies in relation to the allegations; and

whether an injunction should be granted for the personal protection of a party or

other people at risk, such as children.

The court must then make such orders as the court considers appropriate and deal with
the allegations as expeditiously as possible.

When a Form 4 is filed in the Family Court it is immediately referred to a Duty

Registrar. In cases where there is an immediate need for particular orders or
injunctions to be made to protect mothers and children, or less commonly fathers, the
matter will go before a judge on the same day.

There is a misapprehension around the filing of Form 4s which it is incumbent upon

me to correct. I am not sure how, but many people – lawyers included – are of the
understanding that if a Form 4 is filed and the allegations of violence or abuse are not
„proven‟ in court, an order for costs will be made against the person making the
allegation. If that is what women believe or are being told, I can see how that would
be a powerful disincentive against raising allegations.

The offending section is section 117AB. It only applies in circumstances in which a

person knowingly makes a false allegation or statement. It does not apply where one
person makes an allegation and the Court, whether because of lack of evidence or
other reason, is unable to find that the act complained of actually occurred. Basically,
section 117AB is only relevant in cases where a person makes a malicious allegation
that is found to be untrue. Furthermore, it applies with equal force to false denials as
it does to false allegations.

I am very concerned that section 117AB is seen as a major impediment to raising

violence in family law proceedings. The section is broadly misunderstood and for
that reason I have suggested to the Attorney-General that the Government give
consideration to repealing it.

20
The risk assessment framework is also a key feature of the Child Responsive
Program, which is the pre-trial phase of the Court‟s case management system. It is
the part of the process in which Family Consultants work with families to help them
understand the effect of disputation and parental conflict on their children and assists
parties to either resolve their dispute or prepare for trial.

Even when family violence has not been previously identified, the intake and
assessment meeting which is the first meeting in the Child Responsive Program, is
always conducted with each parent separately to provide another opportunity to
screen for family violence.

When children are identified as being at risk of violence, either through reports from
parents or as a result of meetings with the family consultant and the child, the family
consultant will make a notification to the relevant child protection agency.

Risk is assessed every time the family consultant meets with the family and children
and is an on-going part of the family consultant‟s work.

Any assessed risk is outlined for the judge in the Issues Assessment document that is
prepared by the Family Consultant following meetings with the parents and children.
This alerts the judge to allegations of violence and the possible impact of any violence
on the children. It is an important document and one that the presiding judge will
have available to him or her prior to and on the first day of trial. The Family
Consultant is also available to give evidence about any allegations of violence on the
first day of trial.

In the Family Court trials are conducted within a less adversarial framework so if the
matter does proceed to the first day of a trial and a family assessment report is
ordered, the Family Consultant will undertake a more extensive evaluation of
violence. This takes place through clinical interviews with extended family,
observations of children and parents/carers, consultation with other professionals and
relevant agencies, viewing relevant subpoenaed material, and the use of other tools to
predict the risk of future violence occurring. Information obtained by an independent

21
children‟s lawyer from other sources such as police records, hospital records, and
criminal histories can also inform the assessment undertaken by the family consultant.

The issue-based focus of the Less Adversarial Trial and the greater control exercised
by the trial judge over the conduct of proceedings enable judges to bring a more
structured and purposive approach to their consideration of allegations of violence
and abuse within a broader factual matrix.

The majority of children‟s cases are heard using a less adversarial trial framework.
However, the Court has taken a different approach to cases where serious allegations
are raised about the sexual or physical abuse of children. The approach the Family
Court has developed, known as „Magellan‟, is an interagency collaborative model
involving police, child welfare departments, legal aid and medical experts. It is
designed to ensure that those cases, which involve the most vulnerable children, are
dealt with as effectively and efficiently as possible. It is now been implemented in all
Family Court registries.

The Magellan program was recently evaluated by the Australian Institute of Family
Studies and I am pleased to say the results were very positive and mirrored our
internal findings to its efficacy.19,20

Professor Alan Hayes, the Director of the Institute of Family Studies, prepared an
introduction to the Magellan evaluation report. In it he said:

The Magellan Project was an attempt by the Family Court of Australia to

recognise the complex and multifaceted nature of the court processes,
especially when they involve serious allegations of sexual or physical abuse of
children. Complex problems can only be addressed if one resists the
temptation to simplify. The report illustrates how with collaboration,
cooperation and above all communication, court processes can be both more
efficient, but more importantly, more effective in addressing the best interests

19
Daryl J. Higgins, Cooperation and coordination: An evaluation of the Family Court of Australia's Magellan case-management
model, Family Court of Australia and Australian Institute of Family Studies, 2007.
20
Ibid pp. 12-13.

22
 of children, including their safety and the security of their family
relationships.21

Again, the value of working together and resisting the impulse to simplify is evident.

The decision making process in cases involving family violence allegations, whether
that be through the Magellan or Less Adversarial Trial processes, is also assisted by
the „Family Violence Best Practice Principles‟ recently developed by the Court after
wide consultation with relevant stakeholder groups, particularly in the domestic
violence sector. These were launched by the Attorney-General at the Family Court
Judges‟ Conference last month and will be available on the family court website. The
Attorney-General said at that time: “these principles will assist the Court in ensuring
that the welfare of children and victims of abuse are (sic) at the forefront of all
decisions made.”22

Essentially, the best practice principles operate as a checklist of matters that may be
considered when a judge is considering making interim orders, ordering a family
report, presiding over a trial or making consent orders. They also contain matters a
judge might wish to consider when he or she has made a finding that family violence
has occurred or that there is an unacceptable risk of a child being exposed to family
violence.

The best practice principles also go to matters a judicial officer may wish to take into
account when they have determined that it is in a child‟s best interests to
communicate or spend time with a person against whom a finding has been made.
These could include time being spent at a children‟s contact centre, or that a family
consultant undertake a supervisory role, or that the matter be brought back before the
court at a future time to assess whether the current arrangements are working well.

21
Ibid p. 10.
22
The Hon. Robert McClelland MP, Attorney-General, Remarks at the Family Court of Australia Annual Judges' Meeting
Commonwealth Law Courts, Melbourne, Friday 6 March 2009,
http://www.attorneygeneral.gov.au/www/ministers/RobertMc.nsf/Page/Speeches_2009_6March2009-
RemarksattheFamilyCourtofAustraliaAnnualJudgesMeeting (accessed 10 April 2009).

23
Where a hearing has commenced and the parties then reach agreement, the best
practice principles prompt judges to consider whether or not to deliver a short ex-
tempore judgment setting out the background, the evidence relied on and the reasons
why it is in the best interests of the child to make the orders sought.

In every case in which violence is raised it is essential that the Court makes a careful,
considered and detailed evaluation of the evidence available so as to make orders
which best secure the safety of children and other vulnerable family members. The
Family Violence Best Practice Principles act as a useful guide in this process through
alerting everyone in the case – parties, their lawyers, the Independent Children‟s
Lawyer and the Family Consultant – to the sorts of matters a judge will need to have
regard to and the evidence required to properly assess the veracity of allegations of
violence.

The role of the community

And it is really on this point of the family law system; on various components
working together as a whole, that I wish to finish.

Undeniably, courts have an important role in detecting and dealing with allegations of
violence and abuse, and in assessing risks posed to children by a mentally ill parent.
But courts are necessarily limited in their reach and ability to oversee parents‟ lives.

And trying to assert otherwise, in attributing blame for a child‟s death solely to
judicial officers for making particular orders, in demonising one link in a multi-
factorial series of events, means we lose the chance to look for solutions. Or, to
repeat what Professor Hayes said, we lose the ability to address complex problems if
we give into the temptation to over-simplify.

There will be many others in the community who are equally or better equipped to
identify individuals at risk of extreme behaviour, such as co-workers, relatives and
friends who are in frequent contact with the parent. It is really only they who have the

24
chance to observe and interact with a parent on a regular basis who will be in a
position to notice concerning attitudes and behaviours.

That was certainly one of the conclusions reached by Johnson, who in writing about
parental murder-suicides said:

Clearly, in most cases studied there was obvious evidence of risk factors,
including a history of violence, stalking behaviour, threats to harm, rehearsal
of the offence, and refusal to accept the finality of separation. Had this
information been passed on by community members to those in authority, it is
possible some offences may have been prevented.23

Johnson also discusses the difficulties that men continue to have in accessing
appropriate counselling programs to help them through the separation process and to
provide mental health support.24 As I mentioned earlier, family courts are linking
clients in to community-based mental health services. Extended family, friends,
neighbours and colleagues also have role to play in recognising and responding to
concerning behaviours.

I am encouraged by examples of greater inter-agency cooperation and collaboration in

the area of family violence and child homicide.

For example, in Victoria the Systematic Review of Family Violence Deaths was
launched in November 2008. The purpose of the review process is to consider family
violence deaths investigated by Victorian Coroners to inform future intervention and
assist in protecting women and children from violence. It will examine the context
within which family violence deaths occur and examine risk factors, systemic
responses to family violence, and collect detailed data and analysis of family violence
homicides. Support for a review of this kind has long been expressed by stakeholders
at the Victorian Family Violence Statewide Advisory Committee and more broadly,
so its implementation is viewed very positively by stakeholders. There is much
anticipation about what will result from this process over time. For my own part I

23
Johnson, above n. 4, p. 460.
24
Ibid.

25
would like to see every jurisdiction establish a similar process of inquiry into deaths
caused by family violence.

Most jurisdictions have established child death review teams, which undertake
research into child deaths, identify patterns and trends relating to the deaths; and make
recommendations to government and non-government agencies for the prevention of
further child deaths.

But the valuable contribution made by these and other initiatives is diminished to the
extent that the loudest and most shrill of voices succeed in attributing blame for the
murder of a child to, and only to, the Family Court or family courts.

The famous English polymath John Donne, a poet, a preacher and a lawyer, once
wrote:

No man is an island, entire of itself

every man is a piece of the continent, a part of the main…

any man’s death diminishes me, because I am involved in mankind.

That remains as true today as when it was written in the 16th Century.

Any death, but especially that of a young child, diminishes us all. Working towards
preventing such a terrible, shocking act from ever happening again is the
responsibility of our entire community in which we live together.

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