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Response to "No Way to Live report"

Perhaps Dr Laing's "No way to Live Report" should be retitled "No way to conduct research"! One would have to question the validity of research findings with a sample size of only 22 subjects.

Perhaps Dr Laing's "No way to Live Report" should be retitled "No the way to conduct research"!

One would have to question the validity of research findings with a sample size of only 22 subjects. I'd also be interested to know how Dr. Laing select her sample of subjects.

Another issue  did Dr. Laing verify the a subjects claims by reviewing their evidence presented in their respective Family Law Court proceedings? I guess that would be pointless because her subjects didn't raise domestic violence concerns as an issue for consideration in their respective matters. Is there any evidence corroborating the claims of Dr. Laing subjects? Or is the 'study' based on subjective rants from jilted parents who didn't get their way or simply resent their former partners?

Regardless, how does the failure of Dr. Laing subjects to raise domestic violence concerns reflect poorly on the Family Court or the Family Law Act? Id argue it doesnt. Failure by her subjects not to raise domestic violence concerns with the Court is their responsibility - and to a lesser extent - their lawyers.

At the end of the day - lawyers act upon instructions from their clients. If a parent fails to disclosure information to the Court with respect matters effecting the welfare of a child (including domestic violence) - and I note parties ARE REQUIRED to disclosure all information relevant to the welfare of a child - that parent is responsible for putting their child at risk of harm through non-disclosure. Not the Court. Not the 'friendly parent' element of the Act. The parent.

In Family Law child-related proceedings - one of the very first questions a Judge or Magistrate will ask is - "Are there any domestic violence orders or restraining orders in place with respect the parties or their children?".

Question 13, Part B of the Family Court's compulsory Parenting Questionnaire seeks the following information:

Have you or any person with whom the child resides or has contact:
- been involved in child welfare proceedings
- been found to have breached orders
- committed an offence under the Family Law Act? If so, please provide details.


Question 14, Part B the Parenting Questionnaire asks the following:

Are there any current Family Violence Orders in the State or Territory in which you are currently residing or any other State or Territory, or have there been any in the past which affect you or any of the children in this case? If so, please provide details.

Question 17 Part B of the Part B the Parenting Questionnaire asks the following:

Do you have any other concerns about your safety or the childrens safety other than while attending court? If yes, what are those concerns?

On the front cover of the Parenting Questionnaire, parents are reminded of their obligation to make frank and full disclosures as follows:

You have a duty to the Court and each other party under Rule 13.01 of the Family Law Rules to give full and frank disclosure of all information relevant to the case in a timely manner.

Furthermore, immediately below questionnaire offers the following:

Some tips for completing this Questionnaire
1.   DO raise any concerns you may have about your own or your childrens safety with the judge at the earliest possible moment


Presumably, all of Dr Laing's 22 subjects failed to disclosure domestic violence concerns to the Family Court in their respective questionnaires. Furthermore, Dr. Laings subjects withheld information for the Court in violation of Rule 13.01. And the question begs, How can the Family Court or the Act be held accountable for the failure of Dr. Laings subjects to make full and frank disclosure to the Court in their respective Parenting Questionnaires pursuant of Rule 13.01?


Did any of Dr. Laing's 22 subjects initiate proceedings in a Local or Magistrates court to obtain restraining orders in relation to domestic violence? If any did, presumably this information was withheld from the Family Court. However, its more likely that there were no restraining orders in place as this would have been difficult to conceal this information from the Family Court.

On the surface it would appear that Dr Laing's subjects failed to take any meaningful action with respect their alleged domestic violence concerns what-so-ever.

The absence of family violence restraining orders, or Local and Magistrates Court proceedings, brings into disrepute the veracity and seriousness of the domestic violence claims advanced by Dr Laing's 22 subjects.

I question the veracity of domestic violence concerns raise by Dr Laing's subjects.

Over the course of the last 4 years, I have attended 100 or more Family Court matters at the Sydney registry. I represented myself in Family Court matters involving abuse allegations. Im not a lawyer. My observations of the Family Court, Judges and Magistrates are that they generally deal with matters involving domestic violence allegations effectively and appropriately.

A court being a court, arrives at a final determination after testing the evidence presented to the court. Family Courts can only deal with evidence presented to it. If a party fails to disclosure information  or indeed withhold information - how can the Family Court, the Family Law Act, Judges or Magistrates be held responsible for this? The essence of Dr. Laings findings are illogic and total nonsense!

Dr. Laing didn't conduct a study of any meaning or relevance.

Dr. Laing has provided some highly questionable data used by a lobby group to validate a piece of propaganda for political purposes. These types of attacks on the Family Court and the Act are unhelpful, annoying and do not advance in any meaningful way the welfare or interests of children in relation to domestic violence.

Dr. Laings research undermines the interests of children by further advancing the myth that parents do not have recourse in Family Law to address domestic violence risks and puts children at risk of harm.

This type of ill conceived research - and I apply the term 'research' rather generously Dr. Laings study - brings into disrepute the quality of research projects undertaken by the University of Sydney's Faculty of Education & Social Work.

This study merely demonstrates Dr. Laings ''unsophisticated'' understanding of her subject matter and deficiencies in her capacity to produce meaningful research.

They must be giving PhDs away these days because this is not the standard of research one could reasonably expect from a senior lecturer at a prestigious Australian university.

Perhaps Dr Laing should have popped over to the Law Faculty to sense check her research before publishing this stuff.

Dr. Laing needs to "acknowledge and take responsibility for the harm" caused to children by propagating and advancing the myth - fuelling the misconception - that parents cant express concerns for the welfare of their children in the Family Court.

And yet another article published by Adele Horin with any critical thought or evaluation applied.

4MYDAUGHTER
I am not going to comment on anything written by 4mydaughter but just wanted to clarify something for readers who might be less familiar with the Courts.

The Questionnaire that 4mychildren refers to applies to applications in the Family Court which usually takes on the more complex cases.  The Federal Magistrates Court (which in my understanding has the higher Case load of parenting disputes) to my own knowledge or individual experience does not have this same questionnaire.

"Never, "for the sake of peace and quiet," deny your own experience or convictions". Dag Hammarskjold
I needed help with my case and couldn't afford a lawyer and found these guys invaluable  srl-resources.org
CrazyWorld said
The Questionnaire that 4mychildren refers to applies to applications in the Family Court which usually takes on the more complex cases. The Federal Magistrates Court (which in my understanding has the higher Case load of parenting disputes) to my own knowledge or individual experience does not have this same questionnaire.

This is true. The Federal Magistrates Court does not have an equivalent Parenting Questionnaire. However parties still have a duty to disclosure all relevant information pertaining to the welfare of a child in parenting matters before the FMC.

Regardless, presumably any domestic violence concerns would have been picked up through the Dispute Resolution process? Disclosure of significant domestic violence claims during compulsory dispute resolution would trigger a mandatory report to child protection services by the Registered Dispute Resolution Practitioner. Dispute Resolution would then cease and an Affidavit  Non-Filing of Family Dispute Resolution Certificate lodged with the FMC.

Did Dr. Laing's 22 subjects also fail to raise domestic violence concerns during dispute resolution processes?

Yet another reason to doubt the veracity of domestic violence claims alleged by Dr Laing's 22 subjects.

4MYDAUGHTER
Well argued 4MD.
 
It is high time that academics who sell their creditability for agenda publicity are taken to task. From a scientific perspective it was unnecessary to go beyond the sample size of 22. This by default disqualifies the brave stories as valid research even before the questions of disclosure and motivation.

The family court is about the best interests of children. This nonsense that women are afraid to accuse, surreptitiously advocating implementation of the Chisholm presumption that men are violent until proved otherwise, implies that the best interests of children must first pass through what is best for their mothers. This erroneous precept that mothers are better parents was rebutted by the High Court in Gronow.
   
Unfortunately the Family Court is the epicentre for junk science. Laing is just another paid political broadcast. Minister for women???
FAMILY LAW ACT 1975 - SECT 60CF

Informing court of relevant family violence orders

             (1)  If a party to the proceedings is aware that a family violence order applies to the child, or a member of the child's family, that party must inform the court of the family violence order.

             (2)  If a person who is not a party to the proceedings is aware that a family violence order applies to the child, or a member of the child's family, that person may inform the court of the family violence order.

             (3)  Failure to inform the court of the family violence order does not affect the validity of any order made by the court.

4MYDAUGHTER
4mydaughter said
…. Over the course of the last 4 years, I have attended 100 or more Family Court matters at the Sydney registry. I represented myself in Family Court matters involving abuse allegations. Im not a lawyer. My observations of the Family Court, Judges and Magistrates are that they generally deal with matters involving domestic violence allegations effectively and appropriately.

A court being a court arrives at a final determination after testing the evidence presented to the court. Family Courts can only deal with evidence presented to it. If a party fails to disclosure information  or indeed withhold information - how can the Family Court, the Family Law Act, Judges or Magistrates be held responsible for this? The essence of Dr. Laings findings are illogic and total nonsense!
Some very sensible commentary that should be read by the ALRC as part of their Consultation Paper on Family Violence Reform and the numerous proposals listed in the substantial paper. I was at the LFAA Conference in Canberra and the acting Chief Justice John Faulks had some comments to make in relation to domestic violence matters in the court. I took a range of notes and reproduce from those.
We know that the number of Notices of or risk of abuse or family violence filed in the Family Court over the past five years has decreased from 767 filed in 2004-05 to 441 in 2008-09.  However cases raising issues of abuse and family violence has risen between 2004-05 and 2008-09 by around 12%. He said this was partly due to statistical reasons from the fact that the work in the Family Court has become more focused at the most complex area of disputes and at the same time the Family Court is handling a smaller number of applications overall (as the Federal Magistrates deal with the majority of matters).

The Court is obliged to ensure that any parenting order it makes is consistent with the best interests of the child as the paramount consideration, and  consistent with any family violence order and does not expose a person to an unacceptable risk of family violence.
Following on from that the Family law Act is clear in determining the best interests of the child, "the Court must consider the primary consideration of the need to protect a child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence." Justice Faulks also said during his presentation in Canberra, that often this consideration might be seen on occasions to be in conflict with the other primary consideration of ensuring the benefit to the child of having a meaningful relationship with both of the Childs parents. (I would recommend you read the attachment)

I also remind readers of the Form 4 (Notice of child abuse or family violence) and the views of Professor Chisholm that this should be extended as a screening prerequisite before a Family court matter. (I am not sure if that was meant as ALL Family Courts matters). I have also written here many times of the Family Law Act requirements by the Family Courts to take "Prompt Action"  and there are specific time frames set down although they have been extended in some cases. Justice Faulks also made mention of additional considerations the Family Court takes into account in making orders. He said that appropriate evidence about an allegation needs to be considered, that the child or any parties must be protected and that they do need to deal with issues raised by allegations as expeditiously as possible.

One of the serious complaints about Dr Laing's research is the lack of action taken in the judicial system by the subjects in paper.. Dixon J in Briginshaw v Briginshaw says "The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found.  It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality" which in broad terms means whether or not family violence or abuse has occurred needs to be made out on the civil evidentiary standard on the balance of probabilities, there has to be some test and as we all know we do not use the higher standard "Beyond Reasonable Doubt".

I have also included the following paper Condemn the Fault & Not the Actor? Family Violence: How the Family Court of Australia can deal with the fault and the perpetrators.

Attachment
Keynote Address - Condemn the Fault & Not the Actor? - THE HON JOHN FAULKS Deputy Chief Justice, Family Court of Australia


This was given in May 2010 at the National Convention Centre Canberra, by the Acting Chief justice of the Family Court, John Faulks.

It is an excellent paper that sets out the issues and how the Family Court deals with matters relating to Family Violence. It supports my paper to the ALRC against changes to the Family Law Act in Proposal 4.17 that the definition of family violence in the Family Law Act 1975 (Cth) should be expanded to include specific reference to certain physical and non-physical violence including conduct the subject of Proposals 4.3 to 4.5 and 4.7 to 4.10 above with the definition contained in the Family Violence Protection Act 2008 (Vic) being used as a model.

It is reports, the likes of Dr Laing and dare I say Jennifer McIntosh and subsequent enthusiastic uptake by influential people, such as Minister for Women, Jodi McKay that cause:
  • Our State and Federal legislation to be changed by stealth
  • Taints the views of our Public Servants writing up proposed legislation, who have little understanding of the implications and much greater ramifications to children particularly
  • Cause our judicial officers to sometimes "wander" from delivery of what is set out in the Act
  • Cause Mediation centres to utilise the research as "approved" and "endorsed" by Federal Government departments
  • Influences a whole range of practitioners who do not have adequate time to get to the bottom of inadequate reports to make decisions and recommendations, that otherwise would not have been made
  • Influences the Police and court officials at the front line, who are implementing ADVO proceedings daily
  • and anecdotal evidence from the likes of DiDs suggests causes suicide attempts by parents who cannot see their children.
4mydaughter said
Perhaps Dr Laing should have popped over to the Law Faculty to sense check her research before publishing this stuff.

Dr. Laing needs to "acknowledge and take responsibility for the harm" caused to children by propagating and advancing the myth - fuelling the misconception - that parents cant express concerns for the welfare of their children in the Family Court.

And yet another article published by Adele Horin with any critical thought or evaluation applied.
Very important points made in an excellent response that should resonate well with all researchers… and as for Adele Horin are we that naive to expect anything less.


Executive Secretary - Shared Parenting Council of Australia
 Was my post helpful? If so, please let others know about the FamilyLawWebGuide whenever you see the opportunity
 
And one further important message for anyone experiencing a domestic violence or child abuse situation - a key message lacking from the NSW Minister for Woman (and Minister for Irresponsibility) is this…

Should you be a situation experiencing domestic violence or child abuse, and you have fears for yourself or your child/ren, take immediate action! Call the Police - who can take out a restraining order on your behalf. Raise the matter with the Family Law Courts. If you have existing parenting orders you should consider filing a Form 4 Notice of Child Abuse or Family Violence at the earliest opportunity. That's what a responsible parent does!

4MYDAUGHTER
4MD - that's based on the assumption that the respondent actually ACKNOWLEDGES the intervention order.
I understand your gripes, but no offense, some of the points raised in that paper reflect some of my experiences..

Excuse me while I duck for cover now.
reallyconfused said
4MD - that's based on the assumption that the respondent actually ACKNOWLEDGES the intervention order. …
As I understand it the respondent has no option but to accept the papers from the Police (usually) so one would assume that the respondent would acknowledge receipt and by having to turn up at the court further acknowledges the proposed order. Where they don't turn up do we assume in response to your post that an order is made in most cases? Maybe you could clarify a little more. Perhaps the easiest way to have someone acknowledge the order is to make a complaint to the Police each time it is breeched. Sooner or later someone will get the message. No need to duck for cover its a pretty tame place to be…

Executive Secretary - Shared Parenting Council of Australia
 Was my post helpful? If so, please let others know about the FamilyLawWebGuide whenever you see the opportunity
 
reallyconfused said
4MD - that's based on the assumption that the respondent actually ACKNOWLEDGES the intervention order.
I understand your gripes, but no offense, some of the points raised in that paper reflect some of my experiences..
Excuse me while I duck for cover now.

Reallyconfused. Not sure if I follow you. "Respondent" in a Family Law Family Violence Order or "Defendant" in an AVO matter?

Regardless, a respondent is not required to acknowledged an intervention order. If someone's breaching a intervention order or family violence order then call the police and get it enforced. If parent is acting inappropriately or threatening in any way, its important to establish the boundaries and enforce them.

I understand a lawyer cautioning their client to the effect that to raise DM concerns could be viewed as an attempt to alienate the other parent. Lawyers will often say this type of thing to test the veracity their own clients DM claims. But at the end of the day, if there are serious DM or child abuse concerns, a responsible parent must take action and inform the courts of their concerns. The challenge in raising DM or child abuse concerns to a court is a way in which information is conveyed. For example, some elements of DM or child abuse claims are often embellished or exaggerated. Painting matters 'blacker than black'. Embellished or exaggerated evidence can often undermine the credibility of all evidence presented to the court and hence undermine proper DM or child abuse concerns.

When conveying incidents of DM to a court your evidence need to be detailed and accurate. I seen instances where someone said, "He hits me all the time". Under cross-examination it eventuates that there have been two instances where the party was struck. So making the statement "he hits me all the time" is a gross exaggeration and inaccurate.

I've seen a mother say in court, "He doesn't pay child support". It eventuated as fact that the father did make a couple of small child support payments - much less than he was required under CSA assessment. But the statement that he absolutely paid no child support adversely affected her credit and brought into question the entirety of her evidence because the statement wasn't true.

So the way in which you present DM or child abuse evidence to the court is very important.

I'd like to understand you comment and situation better - but need more information.

4MYDAUGHTER
reallyconfused said
 … that's based on the assumption that the respondent actually ACKNOWLEDGES the intervention order.
I just assumed and took it to mean a DEFENDANT in an ADVO proceeding (NSW) and not the the APPLICANT (Could be the PINOP Person(s) in need of protection but not always)

Executive Secretary - Shared Parenting Council of Australia
 Was my post helpful? If so, please let others know about the FamilyLawWebGuide whenever you see the opportunity
 
In the Judgement of TINDALL & SALDO posted on the Family Court web site recently, the Judge makes to point the lawyers have the obligation to make the court aware of AVO's as follows:

"3. The parties reached interim consent orders on 21 January 2009, which required the child to live with the mother and spend time with the father, some but not all of which time was supervised. Allegations of domestic violence against the father, refuted by him, lay behind the agreement for interim supervision.

4. The complexion of the case changed on or about 4 September 2009 when the mother filed a Form 4 Notice of Child Abuse alleging the fathers sexual abuse of the child. Those allegations, also refuted by the father, led to a cessation of the child spending time with him for a period of months.

10. A police investigation was launched into the mothers allegations against the father, as a consequence of which the father was charged with various offences against both the mother and the child. The father has entered pleas of not guilty to all charges. He was recently arraigned before the District Court of New South Wales and he expects to be tried on those charges towards the end of 2010 or early 2011.

22. The criminal charges pending against the father, according to the submissions made to this Court, have nothing to do with the allegations of child sexual abuse disclosed in the Form 4, or as discussed with the Family Consultant or single expert. The criminal charges relate to allegations of physical and sexual assault of the mother, and a single charge of physical assault in respect of the child.

39. Despite the pending criminal prosecution against the father, in which it is alleged that the mother and child are both victims of his conduct, there is no evidence of any interim or final Apprehended Violence Order in existence involving either party or the child. If there is a relevant Apprehended Violence Order in force then the lawyers have failed in their duty to tender a copy in evidence, as required by section 60CF of the Act."



4MYDAUGHTER
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