The Sydney Morning Herald
27 May 2011
Abuse claims 'rarely used as court weapon'
By Adele Horin
The Minister for the Status of Women, Kate Ellis, has criticised individuals and groups who claim that separated mothers routinely made false allegations of violence and child abuse to gain tactical advantage in family law disputes.
Speaking yesterday in a debate on the introduction of a new family law bill, Ms Ellis said it was of concern that these groups were gaining increasing prominence and respectability.
Ms Ellis said of even more concern was that ''this spurious view'' seemed to have got some following in the community, with a survey by VicHealth showing 46 per cent of respondents agreed with the statement that women going through custody battles often made up claims of domestic violence to improve their case.
The Minister for the Status of Women, Kate Ellis saidWe are hearing their arguments repeated across the nation and indeed in the Parliament and … they are distorting domestic family violence figures, spreading misinformation and propagating the view that family violence and child abuse claims are fabricated during custody proceedings
Ms Ellis said research by the Australian Institute of Family Studies found the rates of family violence allegation in custody proceedings in the Family Court or the Federal Magistrates Court were similar to the reported rates of spousal violence in the general divorcing population.
The opposition has introduced proposed amendments to key parts of the government's Family Law Legislation Amendment (Family Violence and Other Measures) Bill, indicating a battle ahead for passage of the long-mooted reforms.
The Minister for the Status of Women, Kate Ellis saidIn short, claims that abuse allegations are manufactured are bogus and unsupported by any respectable form of evidence
The government says the provision deters women from reporting violence in case they are deemed unwilling to foster the parent-child relationship.
A spokesman for the shadow attorney-general, Senator George Brandis saidThe opposition would not support removal of the ''friendly parent'' provision from the act.
As well, the opposition wants mandatory cost orders to be retained as a deterrent to people lying to the court. The government says the provision also deters some people from reporting violence in case they are not believed and have costs awarded against them.
The opposition also wants the word ''reasonable'' to describe a person's fear of violence retained. ''It is not too much for the fear to be reasonably held,'' the spokesman said.
The opposition supports the government's proposed new wording to give greater priority to children's safety over their having a meaningful relationship with the other parent.
Secretary of the Shared Parenting Council saidIt is very unfortunate that the Minister's advisor's are either deliberately obtuse or simply not at the coal face. From my own personal experiences and attendance at many family and domestic violence cases in the magistrates court, I can assure the Minister that her advice is simply WRONG when it comes to false allegations of violence and child abuse allegations.
My experience is that in almost every conflictual case, where one person is withholding contact, the first line of defence is to validate their actions in withholding and withdrawing contact. The usual activities to substantiate these actions and get sympathy and support is to make allegations of "abuse", "arguments", "withholding funding," and those who really have a fervour for upping the anti (and for trying to extend matters for what seems like an eternity for a parent that suddenly looses contact), either call in their first line of assistance viz the Police and second line support through DOCS , JIRT or any other agency that will have a sympathetic ear namely Centrelink and the Child Support Agency. AVO's are common in matters involving family court proceedings. If you don't believe me, then believe 90% of local court Magistrates who think so.
There is absolutely no doubt that there must be immediate support and maximum intervention measures when there is on going and sustained physical violence and abuse.However the Ministers advisor's need to step up to the mark and give proper advice in this critical area. They need to get out to the Magistrates Court or sit in the Federal Magistrates Court and listen to such straight talkers such as FM Halligan (There are many others who have to listen to the falsities and fabrications espoused every other day). I am beginning to form a view that in some of these cases the complainants actually talk themselves into believing things to be true, that are in fact only marginally true or not true at all.. But to the person making the application to Police they are very real.
The Magistrates themselves and the Government reports clearly tell us what the real story is. You only have to look at the ALRC (Australian Law reform Commission) report into violence and less recently however, but still valid, the Law Reform Commission of NSW who published a number of reports on the Law Link web site. I quote some excerpts from various reports:
5.14 The Survey of Magistrates also found that 90% of respondents were of the view that ADVOs were used by applicants in Family Court proceedings as a tactic to aid their case and deprive their partner of access to children.*15 .It is common for child protection concerns to be raised in an application under the Family Law Act. In 2007, a study of 300 court files involving parenting disputes from three registries of the Family Court and the Federal Magistrates Court revealed that allegations of child abuse were raised in between 19% to 50% of all cases: and more than half of the cases in the sample involved allegations of family violence, many at the severe end of the spectrum.
(See also L Moloney and
others, Allegations of Family Violence and Child Abuse in Family Law Childrens Proceedings: A Prereform Exploratory Study (2007), prepared for the Australian Institute of Family Studies.)
3.66 The Criminal Law Committee of the Law Society of NSW stated that:
ADVOs are very often used as a tool by one, other or both of the parties following a separation. They can be especially important in relation to matters pertaining to occupation of the matrimonial home and in respect of childrens issues. The separation of a marriage is an inherently stressful situation and parties may well be more inclined to behave inappropriately at such times. The abuse of the system in the circumstances undermines the real value of Part 15A of the Crimes Act and the objectives stated there.116
3.68 The Childrens Magistrate at Lidcombe Childrens Court suggests that it would be naive to assume some complainants do not institute ADVO proceedings (where they would not otherwise have done so) in order to take advantage of such an order or to puff up a genuine but otherwise minor incident and then seek an order.118 He also considered that AVOs may potentially have a significant influence in a contested residency/contact dispute in the Family Court.119
In a discussion Paper 45 (2002) - Apprehended Violence Orders: Part 15A of the Crimes Act section 2.34 reports that in 1999, the Judicial Commission of NSW released a Survey of Magistrates.*69 . The Survey detailed the responses of Magistrates to a questionnaire asking about their attitude to their roles, and to the issues involved, in AVOs. All respondents to this survey considered that ADVOs were effective in addressing domestic violence. This is compared with 71% of Magistrates who considered APVOs to be an ineffective way of dealing with personal violence or harassment. One of the major reasons given for the difference in perceived levels of effectiveness between ADVOs and APVOs was the belief that APVOs were increasingly being used unmeritoriously in response to trivial matters. Following from this, 52% of Magistrates surveyed considered that APVOs would be better dealt with in a forum other than Local Courts, such as Community Justice Centres or counselling services, compared with 68% who believed the Local Court was the most appropriate forum for dealing with ADVOs.*70 .
2.35 Other themes emerging from the Survey included the need for an expanded role for Chamber Magistrates, better court resources, and a better system for screening out frivolous cases, such as the introduction of a filing fee.
5.10 Although there is a procedure for obtaining a restraining order or an injunction aimed at stopping domestic violence under the FLA,*9 . it would appear that the ADVO provisions in the Crimes Act are more commonly used by people seeking protection. In many cases, people who have a matter in the Family Court, have either taken an ADVO against their partner or are subject to an ADVO, or are in the process of obtaining one.
Abuse of ADVOs
5.13 The Commission has received submissions from some groups alleging that the ADVO provisions are being abused to gain a tactical advantage in family law proceedings.*13 . The CLRD review received similar submissions. This view was also put forward in a parliamentary debate:
There is some reluctance by defendants of an interim apprehended violence order to consent to an interim AVO because of the impact that that may have on custody or other proceedings. Whilst we might not like it, AVO proceedings are being used as tools in custody battles and in matrimonial arrangements.*14 .
Kate Ellis is simply misinformed… It is clear as to why a survey by VicHealth showed 46 per cent of respondents agreed with the statement that women going through custody battles often made up claims of domestic violence to improve their case. Not only does the system itself support that view but there are many cases coming to the attention of reform groups.
There needs to be a better system of determining what are genuine and warranted cases that need support and intervention services but it is not just taking away any judicial test to substantiate the making allegations or discrediting and criticising individuals and groups who claim that separated mothers routinely made false allegations of violence and child abuse to gain tactical advantage in family law disputes.
These individuals and groups, surely, are not simply making this "stuff up" for something to do… They, like the Shared Parenting Council and Self Represented Litigants group have a stream of members approach with story after story that shows there is definitely a problem in this complex area
If the Minister wants some cases in recent weeks please give me a call. As a last point it is interesting also to see that when the Federal Magistrates or Family Court makes orders and contact resumes, how quickly the parties start working together and previous matters surrounding AVO documents seem to evaporate.
Greg Andresen, Research & Media Liaison, Men's Health Australia saidDear colleagues,
The Australian House of Representatives had the Second Reading of the Family Law Legislation Amendment (Family Violence and Other Measures) Bill 2011 last Thursday. The Bill seeks to wind back the shared parenting reforms made in 2006 under the Howard Government under the guise of protecting women and children from family violence. For those interested in reading the debate, the Hansard transcript is now available at http://www.aph.gov.au/hansard/reps/dailys/dr260511.pdf. It is heartening to hear the Federal Opposition speak out sensibly against the proposed Bill.
I have heard (as yet unconfirmed) news that the Bill passed the lower house of Parliament today.
In her speech last Thursday, the Minister for the Status of Women misled the parliament with the following claims:
"The rate of domestic and family violence in this country is an epidemic, but it is an epidemic that is not frequently discussed either in this House or in our neighbourhoods and communities. Let us take a moment to look at the facts. Those who suffer from family violence are predominantly women and children. The evidence for this is irrefutable. Research by the Australian Bureau of Statistics has found that one in three Australian women has experienced physical violence since the age of 15."
The same research by the Australian Bureau of Statistics found that one in two Australian men has experienced physical violence since the age of 15. These are not statistics for domestic and family violence but statistics for ALL violence.
"Research conducted in Victoria just a couple of years ago revealed that intimate-partner violence is the leading contributor to death, disability and illness amongst women in that state who are aged between 15 and 44."
This is true, however, this study only looked at women, so we have no idea what the comparative figures are for men. This statistic is also misleading because the study found that injuries from intimate partner violence made up just 0.7% of the disease burden in women aged 15 to 44; deaths (femicide and suicide) made up 2.3% and 12.9% respectively; substance abuse (tobacco, alcohol and drug use) 10.2%; sexually transmitted infections and cervical cancer 2.2%; and poor mental health (depression, anxiety and eating disorders) 71.8%7. I.e. the vast majority of the contribution to the burden of disease in young Victorian women from intimate partner violence is from illness (poor mental health), not from injury, death or disability. This statistic could easily mislead the public into believing that the leading cause of harm to young women is intimate partner violence (via death, disability and injury), when in actual fact violence doesn't make the top ten causes of death, disability or injury for young women.
"Let us be clear that all violence must be acted upon, and for this reason we must bring it out of the shadows. We must ensure that we face what is a deeply disturbing reality. It is important to take this opportunity to dispel the myths and put some facts on the record. While it is true that men are more likely to be victims of violence, this violence occurs predominantly at the hands of a stranger and in public places, such as the street or the pub, not at the hands of a family member, not at the hands of a partner, not at the hands of those they trust the most and not in their own home. In fact, violence against women and children is, tragically, too often hidden within the family."
It is true that Australian men are more likely than women to experience violence at the hands of strangers and in public places, such as the street or the pub. However, this does NOT mean that men are less likely than women to experience violence at the hands of persons known to them, or in the home. Recent figures from the ABS Personal Safety Survey 2005 show that:
(a) There was no statistically significant gender difference between the victimisation rates for males and females for physical assault by known perpetrators in the last 12 months
(b) There was no statistically significant gender difference between the victimisation rates for males and females for physical assault by family members (includes father, mother, son, daughter, brother, sister, other relative/in-law and ex-boyfriend/ex-girlfriend) in the last 12 months
© There was no statistically significant gender difference between the victimisation rates for males and females for physical assault in the home in the most recent incident in the last 12 months.
"This leads me to the final myth that I would like to dispel today. There has been some opposition to this bill from individuals and groups who say that separated mothers routinely make false accusations of family violence and child abuse. They say that vindictive parents commonly pressure their children to make false claims for the purposes of revenge or to gain tactical advantage in child custody disputes. It is concerning that these groups are gaining increasing prominence and respectability in this country, that we are hearing their arguments repeated across the nation and indeed in the parliament and that they are distorting domestic family violence figures, spreading misinformation and propagating the view that family violence and child abuse claims are fabricated during custody proceedings. But what is more concerning is that this spurious view seems to have gotten some traction in our community. Surveys undertaken a few years ago by VicHealth found that 46 per cent of respondents agreed with the statement that "women going through custody battles often make up claims of domestic violence to improve their case". Forty-six per cent of respondents agreed with this."
It is likely that the reason 46 per cent of respondents agreed with this statement is that they had personal knowledge of a friend or family member who had experienced this, not that they had been swayed by "spurious arguments".
"I would like to be very clear about this. This reasoning has been entirely debunked by research in Australia and overseas."
No such research was cited by the Minister.
"A report in 2007 by the Australian Institute of Family Studies found that the family violence allegation rates in custody proceedings in the Family Court of Australia or in the Federal Magistrates Court are similar to the reported rates of spousal violence profiles in the general divorcing population. In short, claims that abuse allegations are manufactured are bogus and unsupported by any respectable form of evidence."
The Minister would do well to take a course in basic statistics. Persons who go through custody proceedings in the Family Court of Australia or in the Federal Magistrates Court are "the sharp end of the stick", and are not at all representative of the general divorcing population. Therefore any correlation or not in family violence allegation rates amongst court populations and reported rates in the general divorcing population is meaningless.
"Violence and abuse claims are not being made up to support some perceived advantage in Family Court cases."
The Minister would do well to attend any DIDSS meeting, or talk to any family lawyer (or 46% or the general population!) to get a very different perspective.
"In fact, Australian research tells us that the concerns about child and family violence are real, especially during divorce proceedings. Women and children are at their most vulnerable to family violence when parents are separating, and we have seen some pretty high-profile examples of this in recent weeks."
Yes, this is true. Child and family violence are real, especially during divorce proceedings. However, there is no reason to throw away due process in an attempt to protect people from child and family violence. It is possible to protect people from violence AND from false allegations of violence. The minister appears to only care about the former.
Research & Media Liaison
Men's Health Australia
Tel 0403 813 925
Post P.O. Box 1292, Bondi Junction NSW 1355, Australia