Thanks are due to Suzanne Christie, Carrie Chan, Amanda Elliot, Mehera San Roque, Elsie Gordon and Jane Wangmann for their invaluable research assistance in respect of this project. Special mention must go to Jane Wangmann for her expert carriage of the project during the last two years of its existence. We appreciate the comments of Jane Wangmann, Reg Graycar and Rosemary Hunter on drafts of the report. Edwina Kobus has provided substantial assistance with the editing and layout of the report.

Thanks are also due to the Family Court and those women's refuges and women's health centres that disseminated literature about this project to clients. Their efforts enabled us to make contact with our interview subjects.

Particular thanks, however, must go to the women and professionals who agreed to be interviewed for this project. Without their insights and experiences this report would not have been possible.

This report presents the results of interviews with 40 women who were negotiating and facilitating child residence and contact arrangements with an ex partner who had abused them. These results are supplemented by findings from interviews with 22 individuals and representatives of bodies who were professionally involved in the process of facilitating the development or implementation of child contact arrangements. The professionals included lawyers, counsellors, refuge workers, domestic violence court assistant scheme workers and supervised contact centre workers.

• All of the women who were interviewed had been subjected to psychological or emotional abuse whilst they were in a spousal relationship with their former partner. In addition the overwhelming majority (85%) also had experienced one or more forms of physical and/or sexual abuse. A number of the women who had been subjected to severe physical abuse nonetheless commented that the psychological abuse was as hard to handle, and often harder, than the physical abuse.

• Our study adds to a growing body of literature that has found that spousal abuse and child abuse are inter-related phenomena. Women in our study reported that almost two-thirds of the children had witnessed physical violence against their mothers. A number of the women expressed concerns about the effects on their children of witnessing abuse. This included the children becoming fearful, confused or protective towards their mothers, or picking up violent behaviours themselves. Almost one third (32.5%) of the children had been the targets of physical violence themselves (indications are that this figure would be much higher if psychological abuse was also counted). Some women reported that abuse had been deliberately directed towards themselves or the children in order to control the other party, or that they had been abused whilst pregnant or holding, feeding, or changing the children.

• Women had left their former partners on more than one occasion in three-quarters of the 42 violent relationships discussed in the interviews.

• For most women leaving the relationship had not meant an end to the violence. All but one of the women (97.5%) had experienced violence or abuse after separation and she had gone to great lengths to have no contact with the father of her child after separating from him. Many women described an increase in violence immediately post-separation, although some women said that it had later declined or, in a small number of instances had ceased as time had passed.

• Where violence had declined or ceased post separation this was typically because opportunities for the violence had been reduced by minimising contact between the two parties. Clearly, as discussed below, contact or contact negotiations may facilitate the continuation of violence where they allow an abusive party to have access to their former partner.

• Most women (70.9%) found it very difficult to disclose domestic violence to lawyers, counsellors or other professionals, at least initially. However, most professionals assumed that women can and do disclose their experiences of domestic violence. This is despite the fact that, when asked, all but one of the professionals recognised factors that might present obstacles to women’s disclosure. This finding has implications for future training and for the conduct of professional practice. It also suggests the danger of professionals relying on self -disclosure as a means of screening cases for apparent risk factors.

• Some women reportedly feel constrained in disclosing domestic violence and in seeking help by fears that the Department of Community Services (DOCS) might intervene with respect to the children, with the possibility that the children may be taken into care. Several professionals reported that it was a key concern among their clients, especially Aboriginal clients. Several women had been reported to DOCS by their former partners, apparently as part of a pattern of abuse. This suggests the need for community education and professional training about child protection policies with particular attention to the concerns of Aboriginal women. Given the legacy of the Stolen Generations it is hardly surprising that some Aboriginal women fear the legal system.

• Of the women who commented on the issue, the majority (81.6%) had an Apprehended Domestic Violence Order (ADVO) at some point in time.

• Contrary to suggestions that ADVOs are too easy to obtain, the overwhelming majority of the women (82.6%) had difficulties in obtaining an ADVO. More than half of these women reported having been to court on many occasions (typically five or six times). For women juggling the demands of parenthood and work this was an onerous burden. Other difficulties included failures of process, fears of the perpetrator when attending court, difficult or unhelpful attitudes on the part of the magistrate in the local court hearing the complaint and cross applications being made in order to harass or undermine the women concerned.

• More than two-thirds of the women (69.5%) commented that the ADVO had been ineffective or not entirely effective. Some women thought that it was completely useless, a few commented that it had aggravated their situation, while others thought it had at least a limited positive effect. However, some women clearly saw their ADVO as having positive effects in spite of it being ineffective in preventing the violence.

• Many women were dissatisfied with police responses to breaches of the orders. Of the 31 women who had ADVOs, 21 (67.7%) had reported breaches to the police and in 13 (61.9%) of those cases charges had been laid. These figures may appear to suggest that orders were enforced effectively. However, most of the women interviewed recounted repeated breaches of the orders that were not acted on by the police. Some women said that their former partner’s behaviour had changed as a consequence of being charged with the breach of an order.

• Some women expressed dissatisfaction because of the difficulty of proving that a breach had occurred and/or because they perceived that sentences for breaches were inadequate.

• Several women raised jurisdictional issues that apparently limited the effectiveness of their orders. For instance, police reportedly had failed to act on reported breaches in respect of several ADVOs because they said that the ADVO was unclear when read in conjunction with the terms of a Family Court order.

• Interviews suggest great variability in the police response to domestic violence. Of the 19 women who commented specifically on their dealings with the police, 3 had found them consistently helpful, 9 consistently unhelpful, and 7 had found that police responses varied depending on what station or officer they were dealing with. Women who’d had difficult experiences with police reported: feeling that the police did not take them seriously unless and until a serious physical assault had occurred, having to practically harass the police to get help, police failing to charge for breaches of ADVOs, the police identifying more with the violent ex partner than the women complainant and the women feeling judged by the police for being in the situation to begin with. Interviews with professionals substantiated these accounts.

• Only 2 of the women we interviewed had sought a family court injunction under section 114 of the Family Law Act 1975 in response to their ex-partner’s violence.

• Almost half of the women (47.5%) we interviewed had used a refuge at some point in time. This is unsurprising given that refuges and women’s support services were referral points for this study. The overwhelming majority of women (89.47%) were extremely positive about the support and guidance they had received from a refuge.

• Many of the women that we interviewed supported the value of contact with the non-resident parent in principle: 15 (40.5%) thought that contact was a positive thing, 10 (27.0%) were opposed to contact for their own children and 12 (32.4%) felt ambivalent about it. Those who opposed contact, or were ambivalent about it, were typically concerned about the children’s safety and well being.

• Negotiations concerning the residence, contact and parenting of children are typically not a singular event but may be ongoing. Where parties cannot reach amicable agreements there may be repeated recourse to the family law process as their needs and circumstances and those of their children change.

• Thirty-five women commented on their experiences with lawyers. Of these 17 (48.6%) had a positive experience, nine (25.7%) had a uniformly bad experience, and nine (25.7%) had positive experiences of some lawyers and negative experiences of others. Some women felt that their lawyers did not listen to them, made concessions in negotiations that were not in accord with their wishes, or pressured them to make agreements. Professionals typically agreed that the quality of lawyers was variable and recognised that some women felt pressured by lawyers.

• Lack of legal aid funding constituted a major problem for some women. Only one-third of our sample had full grants of legal aid. Professionals agreed that the lack of legal aid, and/or caps on legal aid, had negative consequences for the court and clients, including: women dropping actions, women conceding to unworkable contact arrangements that put them at further risk, agreements by default, and a failure to vary orders despite good grounds for doing so. The problems raised by both women clients and professionals concerning the inadequacy of legal aid find support in the research literature.

• Private forms of negotiation may reflect a lack of access to the formal legal system and/or fear of the possible repercussions of seeking external assistance rather than a positive choice by the parties. Interviews suggest that Aboriginal parties are especially fearful that the legal system will not work in their interests or that they may have their children taken away. Private agreements may also arise when court orders prove to be unworkable.

• Many women experienced Family Court counselling as a negative experience. Some felt unsafe and others were intimidated by their ex partner. Only a minority reported that they had had separate sessions for counselling. Among concerns raised by women were: the perception that they were being pressured to reach an agreement, that counsellors had a starting position that contact was necessarily in the children’s best interests, or that they held other assumptions that prevented them from responding to the specific facts or an alternative view of the children’s best interests.

• Family Court counsellors differed in their accounts of the policies or practices adopted in cases involving domestic violence. Confirming the picture that emerged from the interviews with the women, separate counselling was not uniformly supported by counsellors and not always practiced. In addition, screening for domestic violence prior to counselling was not universal and there seemed to be strong reliance on victims of domestic violence to self-identify.

• A small number of women had attempted mediation, mostly unsuccessfully. Despite a general belief that domestic violence matters are not mediated due to concerns about power imbalances, Family Court counsellors agreed that some cases were mediated either because they slipped through the screening process or because they were judged by mediators to be suitable. Women’s experiences of mediation were similar to their experiences with counselling.

• Most women were critical of the process involved in Family Court hearings and many found it to be intimidating and disempowering. Many thought that insufficient attention was paid to the specific facts of their case and to the history of violence in their relationship.

• Six women experienced the legal process as a form of abuse because ex partners had made repeated applications or used proceedings as a means of having some contact with them. It was suggested by three women that there needed to be greater continuity in the professionals who handled cases to improve case outcomes. This would also help to ensure that vexatious applications were recognised as such. Some of the women were concerned that repeated applications could be made and that no limits were placed on this process.

• Women were commonly fearful during negotiations concerning contact. Almost half feared being in the same room as their former partner. Women described being stalked, obstructed, assaulted, and verbally abused before or after counselling or court proceedings and being tailgated on the way home.

• Many women had been involved in matters in two or more courts. This was frustrating and confusing for some. Where there were child abuse allegations some women had also had proceedings in Children’s Courts.

• In cases involving child abuse allegations concerns raised included the perceived failures by DOCS to take action, the Family Court reportedly not giving due weight to evidence offered by DOCS officers, and the complexities of having matters in two or more different courts. A streamlined system for dealing with such cases, together with better coordination between DOCS and the Family Court, is long overdue in NSW and such schemes should be adopted in all States and Territories. Pilot programs currently exist in Melbourne (Magellan) and Western Australia (Columbus).

• Among the women interviewed the most common means of arriving at the current arrangements for residence and contact was consent orders (n=18: 43.9%), followed by court adjudicated orders (n=15; 36.6%). Eight women (19.5%) had reached outcomes through private negotiations.

• At the time of interview 33 women had residence of all of the children who were the subject of the negotiations, and two had residence of some of the children and contact in relation to the others. The fathers were contact parents in all of the cases where the mother had residence, although in a small number of instances this had broken down because the children were refusing to go on contact. At the time of interview only four women said that the contact was supervised (although in one of the cases where contact was meant to be supervised by a centre the children were refusing to go on contact, and in the two cases where it was to be supervised by relatives of the contact parent the supervision had, in fact, broken down). Five women were non-resident parents and in all cases this was contrary to their wishes. Three had consent orders, one had a private agreement and one had a court adjudicated outcome.

• The high level of unsupervised contact arrangements in our study is disturbing given that the father of the children had a past record of violent behaviour in all instances towards the mother of the children (more often than not witnessed by the children), and in a significant number of instances towards the children themselves.

• Of the 13 sets of children who had been the targets of physical violence by their father, six had unsupervised contact, fathers had residence in four cases, contact was supervised in two cases and phone contact only in one case.

• Professional respondents were divided over whether contact should go ahead when the contact parent had been abusive towards the child/ren. Similar numbers recommended no contact or that contact should depend on the specific circumstances. Two professionals recommended that supervised contact should occur.

• In 25 cases children had witnessed violence against their mother. Of those cases, the father had unsupervised contact in 17 cases, residence in four cases, and supervised contact in three cases. In the remaining case, the father was having phone contact only with the children.

• Most professional respondents seemed to assume that violence against a mother was clearly separable from any consideration of the well being of the child. Few respondents raised questions about children’s exposure to violence directed against their mother or the effects of witnessing such violence.

• Several women thought that their cases had been influenced by a notion of standard orders. Professionals also agreed that there was a practice of arriving at standard orders (such as every second weekend and half of the school holidays) and that even when domestic violence was present cases rarely departed from this standard. If the outcomes of matters in which domestic violence has occurred do not differ from those where there is no history of domestic violence then this raises a question about the extent to which domestic violence is being given due consideration in contact decision-making.

• Many of the women interviewed, and some professionals, felt that the family law system privileges contact between children and both their parents above other considerations in decision-making concerning child contact.

• There was evidence to suggest that consent orders and private agreements should not necessarily be assumed to be truly consensual. Both the women and many of the professionals recognised personal, financial and systemic factors that placed pressure on women to enter agreements concerning contact.

• At least nineteen women (47.5%) considered that the arrangements in place for residence and contact in their cases either compromised their own personal safety or weren’t in the best interests of the children. Of these women, four had private agreements (constituting 50% of private agreements), nine had consent orders (50% of consent orders), and six had court adjudicated orders (40% of court adjudicated orders).

• Women’s concerns about contact were typically expressed with reference to the best interests of the child and several questioned whether the family law system did in fact protect children’s best interests. Several professionals raised similar concerns. It was suggested that there should be more resources for services for children and that children’s wishes should be accorded more respect.

• The women we interviewed had experienced a high level of violence during changeover and contact. Of the 35 women who were resident parents a large majority (85.7%) described violence associated with the exercise of contact. Only six (17.1%) indicated that they had experienced no violence at contact changeover. Nonetheless four of these women still describe intimidating or frightening behaviour during contact changeover. The violence encompassed a wide range of abusive behaviours and was sometimes directed at people who were supporting the women during contact changeover. Obviously the nature of changeover is such that any abuse of their mothers will often be witnessed by the children. A number of the women also described incidents in which the children were roughly handled during changeover.

• Many of the women had tried several different strategies and venues for contact changeover in an endeavour to find arrangements that worked for them and their children. Almost half (18: 45%) had at some time had contact changeover taking place at their residence or the residence of the contact parent, often at risk to themselves. Other commonly used changeover points were a supervised contact centre, women’s resource centre , a police station or McDonalds.

• The safest venues for changeover to take place for the women in our study appear to have been contact centres and schools (where older children were dropped off by one parent before school and picked up by the other parent after school). This is because they allowed for changeover with no contact between the parents, and thus offered the potential to keep women physically safe and spare children the trauma of witnessing further violence or adult conflict. However, these venues were not completely safe and not without other problems. For example, some women were ambushed on the way to or from a contact centre.

• In contrast to the women’s experiences, professionals typically assumed that public changeovers for contact, such as police stations and McDonalds, or the use of third parties to facilitate contact changeovers, were effective safeguards for women.

• While there was support from women and many of the professionals for Contact Centres, some shortcomings were noted including: the distances the women had to travel to use the centres; a high turnover of staff such that some children dealt with a succession of strangers at changeovers; and the short periods of time that supervised changeover was made available in any particular case because of the high level of demand for these services in the community.

• Only one of the women who used a third party to effect the changeover experienced this as an unqualified success. Other women reported problems such as the difficulty of finding a neutral third party who was willing to undertake the inconvenience of their role, and who was willing to put up with the abuse or harassment that sometimes came from the contact parent.

• Some women commented that they had agreed to arrangements that they felt were unsafe because it was what the other party wanted and they were attempting to appease him or could not persuade him to do anything else. Other women said that such arrangements had been court ordered.

• It is probably not possible to make hard and fast rules about the value to children of contact with a violent parent. Indeed, given that our research did not measure the relationship between contact and children’s well being other than to ask mothers about children’s behaviour at home after contact, we are unable to make specific findings on this. Nonetheless, the mothers’ concerns about the children’s well being during and after contact lead us to suggest that, in cases of domestic violence, it should not be presumed that contact is in the best interests of the child.

• An overwhelming majority (71.4%) of the women who were resident parents expressed concerns about the treatment of the children during contact visits, and two of the contact parents expressed similar concerns in respect of residence. They described parenting practices that they considered were inappropriate, neglectful, or dangerous to the children’s health and well-being. Some of the women described behaviours that seemed intended to annoy or upset the mother, and others described neglect that apparently arose because the contact parent was using contact to see the mother rather than the children.

• More than half of the women who were resident parents (54.3%) said that their children were disturbed or unsettled after contact.

• Of the women who commented on whether their children wanted contact with the contact parent (n=29), 62% said that at least one of their children wanted to have contact with the contact parent. Conversely, 11 (38%) said that their children did not want to have the contact they were required to have. Some older children who did not want to have contact appear to have had their wishes respected but others did not. Thus some children were required to face their father and tell him they did not want to have contact, or were put under considerable emotional pressure to go on contact. Some mothers talked about feeling complicit in traumatising their children by continually forcing or persuading them to go on contact when they did not wish to or when they feared the contact parent.

• Almost half of the women who were resident parents (n=15, 42.8%) had had contact supervised at some point in an attempt to make contact safer for their children. Most had used informal supervision (n=12) and all had experienced problems with informal arrangements, including the breakdown of supervision because it was burdensome for the supervising party or due to ongoing harassment of the supervising party by the contact parent. Contact supervised by a relative of the contact parent seemed particularly problematic. Some women reported being verbally abused by the supervising party, and were concerned about the quality of the supervision.

• Almost one-third of resident parents (n=11, 31.4%) said that they would like to have contact supervised through a centre but in nine cases there wasn’t a contact centre in their area. Only 3 of the women with supervised contact had obtained formal supervision through a contact centre. In one instance this occurred at considerable personal expense and inconvenience to the resident parent. In two cases it had broken down, or was in the process of breaking down, because the children resisted having contact.

• Professional respondents expressed mixed views about contact centres, particularly in cases involving violence. Concerns were expressed about the limited availability of such centres and their restricted hours, the level of supervision they were able to offer, the level of staff training for violence, whether the services they offered were linguistically and culturally appropriate, the effect on children of supervised contact at such places, the appropriateness of contact at all in cases involving violence and the fear that the availability of such centres would mean that contact was ordered where it was inappropriate.

• Almost half of the women (n=17, 48.6%) we interviewed who were resident parents described the threatened or actual abduction or non-return of children by the contact parent.

• Almost half of the women (n=17, 48.6%) we interviewed who were resident parents had the experience of the contact parent failing to exercise contact. Women described this as having had negative consequences, including being unable to plan ahead, not having much needed time off from the children and the pain or disappointment experienced by the children.

• The overwhelming majority of resident parents also experienced other breaches of the contact arrangements. In fact only 3 of the resident parents (8.6%) said that the contact parent always stuck to the letter of their arrangements. The most common complaint (48.6%) was that the contact parent did not collect or return the children at the appointed time. Other women described breaches of specific conditions designed to protect either them or the children, such as the contact parent being under the influence of drugs or alcohol when exercising contact, contrary to an order or agreement.

• Despite breaches and other problems, many of the mothers went to extraordinary lengths to facilitate contact, including providing financial and material resources to make contact possible and enduring personal risks. However, some of the mothers we interviewed said that they had gradually become disillusioned with the value of contact for their children in circumstances where the contact parent was either neglectful or abusive.

• Women typically reported that they complied with contact arrangements all of the time, or with limited exceptions. Some women had withheld contact in the short term while in refuges or awaiting court orders or the finalisation of agreements. Where women said that they had denied contact when there was an order or agreement in place, this usually related to the well being of the children. Examples given included: when the child was sick, when there were fears for the child’s safety, when the child was distressed about having to go on contact or had made allegations of sexual assault against the contact parent or their associates.

• Despite the numerous breaches that had occurred, most resident parents had not sought to enforce the terms of contact orders by bringing contravention applications. They talked of the prohibitive cost of going to court, the hopelessness of getting more court orders with no one to enforce them and fear of the other parent.

• At least nine of the women were or had been at one point contact parents in relation to some or all of the children. Most of these women were prevented by the resident parent from exercising contact even when orders were in place and most had decided not to try and enforce the orders.

This report is the result of an Australian study of the experiences of women who have had to negotiate and facilitate residence and contact arrangements with an ex-partner who has abused them. It is inspired by a similar study conducted by Marianne Hester and Lorraine Radford called Domestic Violence and Child Contact Arrangements in England and Denmark. One motivation for the project was the desire to improve professional practice for a very high-risk population. As discussed further below, empirical research has demonstrated that many women experience violence at the time of separation, to the extent that the term ‘separation assault’ has been coined to describe this phenomenon. Empirical research also suggests that women who have children may be particularly constrained in the options available to them to respond to that violence, and further that the requirement for ongoing interaction with their former partner in reaching decisions concerning children may render them vulnerable to further violence. The confluence of domestic violence, separation, children, and disputes around contact or residence for children, render the women who are the focus of this study a particularly vulnerable group. This issue is particularly pressing because of the potentially problematic features of the reformed family law scheme for resolving residence and contact disputes, discussed below.

Although the primary focus of the project is that of the experiences of women and children, we have also examined the degree to which the understandings and assumptions of professionals working in the Family Law area match the experiences of the women concerned. For a comprehensive study dealing with the attitudes of professionals and institutions, particularly since the reforms mentioned, see the recent research of Helen Rhoades, Reg Graycar and Margaret Harrison, The Family Law Reform Act 1995: The First Three Years. What marks the present study as distinctive from that of Rhoades et al is that we expressly examined practices with respect to domestic violence while they examined the legislative reforms more generally. We also examine the negotiation process in cases of domestic violence in some detail. This focus on domestic violence cases may seem narrow, but as empirical evidence has shown, issues of spousal violence and child abuse form the core business of the Family Court. This chapter describes the legal context in which the project took place before going on to set out the nature of the project. First it outlines the basic Australian family law schema within which residence and contact arrangements are made, the legislation governing the granting of Apprehended Domestic Violence Orders (ADVOs), the interface between the application of ADVOs and Family Law orders, and definitions of domestic violence. It then sets out the research methodology used in the project and profiles the sample interviewed for the project.

The Family Law Reform Act 1995 (the Reform Act) made some important changes to the Family Law Act 1975 in so far as it deals with the finalisation of parenting arrangements post separation. All of the women interviewed for this project were interviewed subsequent to the changes introduced by the Reform Act. However, some of the women talk about their experiences before the Reform Act came into force. All of the professionals interviewed for the project were interviewed after the Reform Act had been in force for almost three years and were able to comment on the changes.

Children are now described in the Family Law Act as having a number of "rights", including the right to have contact with both parents after separation. For example, section 60B(2) sets out the principles of Part VII of the Family Law Act in the following terms:

One of the concerns expressed when the new schema appeared was whether this general statement of principle would encourage a view among professionals that contact with both parents is prima facie in the child’s best interests, even in instances where, for example, one of the parents had been violent. Further, there was concern that this presumption might exist even though there are express references to violence in determining the "best interests of the child", and thus scope for the argument under section 60(2)(b) that contact with a violent parent might not be in the child’s best interests. Eriksson and Hester have argued that under similar legislative provisions in the UK and Sweden ‘the child’s right appears in practice to be a parent’s right and almost a child’s obligation.’

Another common concern was that creating a norm of contact could put women who are leaving violent relationships under pressure to negotiate with their perpetrators and to facilitate ongoing child contact even though anything less than complete severance of the relationship they have with the perpetrator might place them at considerable personal risk. Some argued that there should be an exception to a child’s right to contact in this section when ongoing connection with the child’s father would involve danger to the child’s mother in spite of the fact that this arguably would not endanger the child. Of course in such cases it would be possible to argue that it is not in the child’s best interests to have their resident parent placed in a situation of stress and danger. Nonetheless it can be suggested that women deserve to have their physical security and integrity valued in its own right – not valued only to the point that it coincides with the interests of their children.

The concerns that were expressed when the legislation first appeared have been borne out by research studying the implementation of the new schema. Thus Rhoades, Graycar and Harrison found that at the stage of interim decision making there has been a shift in approach so that in practice decision makers are often assuming that the best interests of the child will be met by maintaining contact rather than that being an issue for determination. It has meant that in cases where there are allegations of violence the trend at interim hearing no longer has been to suspend contact to ensure the child’s safety until trial but to use neutral hand-over arrangements and unsupervised contact. Supervised contact is being used in cases involving more serious violence than those where supervision was ordered prior to the reforms. On the other hand at final contested hearings the rate of orders for no contact has remained substantially unchanged which "suggests that there is a significant proportion of cases where it can be shown, with hindsight, that the interim contact arrangements are not in the child’s best interests, and may well be unsafe for the child and the carer." This development has been dubbed by some as the rise of a "pro-contact culture." Rhoades, Graycar and Harrison also confirmed that many women had agreed under pressure from their lawyers or their ex-partner to contact orders that did not provide them or their children with the level of protection that they wanted.

The paramount consideration in making decisions about child residence and contact is the best interests of the child. When making parenting orders (including consent orders) the court is obliged to make the child’s best interests its central focus. In respect of private arrangements negotiated between the parties themselves this focus is not as strong. Section 68F(2) is the provision that sets out the factors for a court to take into account when determining the child’s best interests. However, when the court is making a consent order, then section 68F(3) provides that "the court may, but is not required to, have regards to all or any of the matters set out in subsection (2)". Form 12A, which parties are required to complete to formally apply for a Consent Order from the outset, requests details about the child’s housing arrangements, financial support, health problems and education. However, these details are not required if both parents have independent legal advice. Furthermore, most consent orders are not initially formally applied for but instead arise out of negotiations following an application for interim or final orders. In this case Forms 3 or 8 will be used, neither of which require these kinds of details. Rhoades et al report that that it takes approximately 12 minutes for a consent order to be "scrutinised" and approved. Clearly, given the paucity of information before the court in such cases, and the amount of time generally spent on such matters, any scrutiny by the court is likely to be minimal.

Before the passage of the Reform Act, the allocation of the custody of the child to one parent implied that responsibility in relation to the day to day welfare of the child was vested in that parent. The access parent generally retained shared guardianship – in other words shared responsibility in relation to the long-term welfare of the child– but did not necessarily have any input into the every day decisions concerning the daily care of the child.

The Reform Act changed the effect of court orders. Both parents now have parental responsibility for their children regardless of changes in the nature of the parents’ relationship and regardless of any parenting orders made unless a different arrangement is necessary to give effect to an order or is provided for in the order. In other words, regardless of residence and contact arrangements, parental responsibility will, as a general rule, continue to be shared after separation. A general expression of this principle is to be found in section 60B(2(c) which provides that "Parents share duties and responsibilities concerning the care welfare and development of their children." A more specific expression of the principle is to be found in the structure of parenting orders. Parenting orders are now divided into four types: residence orders, contact orders, maintenance orders and specific issues orders. The latter deals with "any other aspect of parental responsibility for a child." Whilst under the new scheme it remains possible for the residence parent to obtain a specific issues order to reserve to them some or all of the overall range of parental responsibilities, this must now be negotiated or obtained in addition to the residence/contact arrangements. Prior to the Reform Act, if a parent had a sole custody of the child, that parent alone automatically had the responsibility to make decisions for the daily care and control of the child.

Chris Staniforth is one of a number of commentators who argued that the changes made by the Reform Act "could create confusion, uncertainty and ample scope for the oppressive party in an abusive relationship to extend, beyond the physical termination of the relationship, their power and control." Once again this prediction appears to have been born out by the follow up research on the changes. Rhoades, Graycar and Harrison found that the "reforms have created uncertainly and confusion about the state of the law" and also that "the reforms have created greater scope for an abusive non-resident parent to harass or interfere in the life of the child’s primary caregiver by challenging her decisions and choices".

Parents can reach agreement about child residence and contact amongst themselves or they can use a range of professionals either to facilitate negotiation with each other or to negotiate on their behalf. These include professionals such as lawyers, mediators or conciliation counsellors. If the parents can agree amongst themselves (by whatever means they employ) then they can reach an informal understanding or they can negotiate a registered or unregistered Parenting Plan or they can apply for the Court to make a consent order. In the event that the parents of the child are unable to agree on residence or contact arrangements they will need to apply to the court for a parenting order.

Fewer than 5% of applications for Family Court orders reach a final hearing. Numerous applications go to an interim hearing, but the majority of applications, even those that reach an interim hearing, are determined by consent orders. The parties to a residence and contact dispute are encouraged to use private means of dispute resolution (defined in the Family Law Act as "primary dispute resolution methods") to resolve their differences rather than litigation. For example, section 60B(2)(d) declares that "Parents should agree about the future parenting of their children." Similarly, section 63B(a) provides that:

Before the court can make a parenting order, which is not a consent order or an interim order, it must be satisfied under section 65F that "the parties to proceedings have discussed the matter to which the proceedings relate with a family and child counsellor or welfare officer." Where proceedings have commenced, the Court may, at any time, order a conference with a child counsellor for the parties to discuss the welfare of the children and try to resolve issues.

There is debate about the degree to which private means of dispute resolution are appropriate in cases where there has been a history of family violence. The better opinion would seem to be that in the vast majority of cases such means of dispute resolution are not appropriate. They will be appropriate only in very limited circumstances and only if mechanisms are put in place to ensure the safety and empowerment of the women concerned.

Some commentators argue that placing an increased emphasis on private ordering is disturbing to the degree that it will place inappropriate pressure on women who have been subjected to violence to negotiate with their perpetrators. For example, Marianne Hester and Lorraine Radford, in their study of child contact arrangements in England and Denmark, found that systems of private ordering can result in women feeling pressured to negotiate child contact arrangements with men they do not feel safe with and also to appear cooperative by agreeing to arrangements that potentially compromise their safety and the safety of their children.

There are a number of attempts in, and subsequent to, the Family Law Reform Act to accommodate these concerns about violence and private dispute resolution. For example, parties wanting a parenting order are exempted from conciliation counselling under section 65F(2)(b) if:

The Chief Justice of the Australian Family Court has also issued a direction on the management of cases involving family violence. This direction provides that mediation will normally be regarded as inappropriate in cases where someone is in fear of family violence and in some such cases conciliation may also be inappropriate. If conciliation does occur then alternative conciliation procedures will be adopted to ensure the safety of all concerned. The direction states that:

Order 25A, rule 5 of the Family Law Rules lists the risk of family violence and child abuse as two of a number of issues that an approved mediator must take into account during the initial intake interview in deciding whether a dispute should be mediated.

It is worth noting that, in spite of these concerns, attempting private dispute resolution is in some instances required as a precondition to (or as a substitute for) an grant of legal aid.

In addition to general concerns about the appropriateness of private methods of dispute resolution when there has been a history of family violence, concerns have been expressed about the practices of some professionals who specialise in private dispute resolution. For example, overseas evidence indicates that mediators, counsellors and possibly solicitors may have an orientation towards shared parenting and may tend to stress the benefits of contact between children and non-resident parents, even when there are indications of a history of domestic violence. Marianne Hester and Lorraine Radford, in their study of child contact arrangements in England and Denmark, found that this orientation may "obscure problems concerning violence from male partners, and may lead directly to unsafe outcomes for both women and children". As noted above, recent research on the reformed schema has indicated a similar trend in Australia. Obviously the increased focus on private ordering means that private professionals, such as solicitors, conciliation counsellors and mediators, have become of critical importance in the process of creating and implementing contact arrangements.

Some of the potentially negative possibilities of the current scheme for negotiating child residence and contact arrangements in cases involving family violence have been outlined above. To counter these possibilities there are now a number of provisions that specifically acknowledge that family violence is relevant to decision making about children.

A general statement of the significance of the phenomenon of domestic violence on Family Law decision making was inserted (as part of the Reform Act) in section 43(ca) of the Family Law Act 1975. This provides that:

More specifically, section 68F(2) directs the court when it is determining what is in the child’s best interests (except in respect of consent orders) to consider, amongst other matters:

Clearly paragraphs (c)(i) and (ii) of section 68F(2) explicitly acknowledge that violence directed against a carer can have a direct or indirect impact on her children.

In addition to these provisions, section 68K provides that the court, when making orders, must, to the extent that it is possible to do so consistently with the child’s best interests being the paramount consideration, avoid inconsistency with existing family violence orders and avoid exposing a person to an unacceptable risk of family violence. It has been argued that this provision inappropriately contemplates that it might be in the child’s best interests to make an order that is inconsistent with a family violence order and/or that entails an unacceptable risk of violence to the mother.

Australia’s Constitution means that neither the Commonwealth nor the States have exclusive competence in areas of law that may be considered "family law" in other systems. Hence child protection and protection from family (and other) violence are matters for State law, although parties to a marriage may obtain an injunction under the Family Law Act. However, other "family law" issues, such as divorce and the resolution of disputes about children or matrimonial property are matters of Commonwealth law.

Each Australian State and Territory has legislation under which victims of domestic violence (and sometimes others) can seek protection from violence. The specific nature of the orders (termed ‘protection orders’ in most States and Territories and ‘family violence orders’ in the Family Law Act) and the relationships covered by the respective legislation differ between jurisdictions but there are key features that are common. The orders generally seek to protect the victim, and sometimes also her children by placing limits on the future behaviour of the defendant. They can be tailor made to the specifics of the individual case. The orders are made in magistrates courts (or their equivalent) on the balance of probabilities and the breach of an order is a criminal offence. An order made in any State or Territory, or New Zealand, may be registered in any other Australian State or Territory, and has the same effect as if it had originated in the registering jurisdiction.

In NSW protection orders are called Apprehended Domestic Violence Orders (ADVO). The complaint that forms the basis for seeking such an order may be made orally or in writing to a Justice (usually the Chamber Magistrate of a local court) by the person needing protection or by a police officer. Only a police officer may seek an order on behalf of a child under 16 years where it is the child who is in need of protection. However, the court may make a protection order that covers the person seeking protection and others sharing a domestic relationship with that person, including children, where all parties require protection, even where the complaint is not brought by the police. The court may make an Apprehended Domestic Violence Order if the person seeking protection has reasonable grounds to fear, and in fact fears, violence, harassment, molestation or stalking by a person with whom they have or have had a domestic relationship. Interim orders may be made by the court, and, where there is the consent of the parties, by the clerk of the local court. In some circumstances interim orders may be made by telephone. In addition, where a defendant is convicted of certain offences, the court is required to make an Apprehended Domestic Violence Order for the protection of the victim, other than in limited exceptional circumstances.

State and Territory protection orders have a number of advantages over the section 114 injunction available under the Family Law Act. As noted above, they are not limited to parties to a marriage. The procedure for seeking State or Territory protection orders is relatively simple, accessible to most, and usually cheaper than that involved in obtaining a Family Court injunction. Unlike State or Territory protection orders, only some forms of breach of a section 114 injunction constitute grounds for the police to arrest without a warrant, and action on a breach requires that there is a specific application before the court to deal with that breach. Breach of a State or Territory order is a criminal offence, whereas breach of a Family Law order gives rise to only civil enforcement proceedings. Finally, State and Territory police are often unfamiliar with or reluctant to act on Family Law injunctions.

Many women involved in Family Court proceedings where domestic violence is an issue will have sought a protection order in a State or Territory court prior to, or coincident with, any application to the Family Court. In our sample this was true for the majority of the women (see Chapter 3). Research indicates that many women seek a protection order at the point when the abuse becomes more serious, and/or the children are affected. Often women seek such legal intervention when other non-legal efforts to stop the abuse have failed. Empirical studies have also demonstrated that separation violence, such as ‘attacks and abuse aimed a preventing women’s separation, forcing them to return or retaliating for their leaving,’ constitute one of the main reasons for women seeking protection orders.

Reforms to the Family Law Act and to relevant provisions of some State and Territory laws have sought to avoid the potential for confusion and conflict where parties have matters proceeding in, or orders from, both the Family Court and a State or Territory court under specific domestic violence provisions. The Family Law Act imposes an obligation on any party to inform the Family Court of any protection orders or interim protection orders that exist. This is in order to ensure that the court is likely to be aware of any current ADVOs when it is making contact orders. The Family Law Act also has provisions dealing with any conflict between a contact order and a protection order. Section 68R sets down the procedure to be followed when the Family Court wishes to make a contact order that is inconsistent with an ADVO. The court is required to use accessible language to explain to both parties to the proceedings the purpose of the contact order, the obligations the order creates, the consequences of non-compliance, the court’s reasons for making an order inconsistent with an ADVO, and the circumstances in which a person can apply for the contact order to be varied or revoked. The court must also be very specific in the contact order about exactly how contact is to take place and must provide everyone affected with a copy of the order, including the registrar of the court that last made or varied the ADVO and the Commissioner or Head of police in the State or Territory in which the person protected by the ADVO resides. What this means is that the court is required to be very clear about why it is necessary to make an inconsistent contact order, must make sure that the exact perimeters of that inconsistency are spelt out and must make sure that all of the affected parties are fully informed. This provision is important because section 68S provides that Family Court contact orders prevail over inconsistent State family violence orders and the family violence order is invalid to the extent that it is inconsistent with such a contact order. Section 68T does, however, give a magistrate who is making or varying a family violence order the power to "make, revive, vary, discharge or suspend" a Family Court contact order.

Problems arise despite the changes. For instance, Rhoades et al found that some police would not enforce protection orders by acting on breaches where there was a Family Court order for contact. Their research also suggests that allegations of domestic violence were not always given much weight in interim hearings in Family Court proceedings. Interim hearings are limited to a maximum of two hours and there is no examination of parties or witnesses. Interim orders are made on the basis of affidavit material and submissions. Given that in many cases interim hearings become, in fact, the final hearing for reasons such as, lack of legal aid for a full hearing or the matter being ‘resolved’ after the interim hearing, this lack of informed consideration of domestic violence and the children’s best interests is cause for concern. In addition, (as discussed in chapter 4), a significant number of the women interviewed in our study were unclear about the separate jurisdictions and powers of the Family Court and magistrates courts (termed "local courts" in New South Wales) and they could not always identify which orders were in place and with what effect. This ongoing confusion by parties may also contribute to difficulties in having orders effectively enforced.

It is difficult to provide a comprehensive definition of domestic violence because it potentially encompasses such a diverse range of abusive behaviours. Domestic violence may include one or more of the following – physical violence, threats of violence, stalking, psychological abuse, social abuse, economic abuse, sexual violence, property damage and even violence against domestic pets – and these behaviours can vary in their frequency, severity and impact.

Partnerships Against Domestic Violence, the program under which Commonwealth, State and Territory governments and the community collaborate to work against domestic violence, has adopted the following statement on domestic violence:

What is useful about this definition is that it contains two concepts which some would argue to be defining features of a situation of domestic violence. The first is the motivation of the perpetrator. The violence is not irrational but has an express purpose, which is the control of the target. The second is the effect of the violence on the target - her ongoing fear. Fear may operate as a powerful means of controlling a woman’s behaviour and may constrain her life choices in significant ways. Such a definition also challenges approaches that consider each discrete incident of domestic violence without reference to the history and context of the relationship. The meaning of a given incident cannot be discerned ‘objectively’ but rather emerges from the shared history and interaction between the parties. It is also worth noting that the statement expressly reflects the fact that domestic violence is primarily, although not exclusively, committed by men against women and recognises that domestic violence often continues beyond separation.

The Power and Control Wheel in Appendix One is a tool developed to illustrate how control is exercised through domestic violence. The hub of the wheel represents the motivation of all abusive tactics – to establish power and control. Each spoke represents a particular tactic used by abusers. The rim, that which gives it strength and holds it together, is the actual physical and/or sexual abuse.

What is important about this definition is that it gives cogent expression to the notion that domestic violence does not just consist of physical abuse, and, in fact, that the physical abuse is never an isolated behaviour. Certainly many women who have been the targets of abuse say that it is the psychological abuse, rather than the physical violence, that is particularly difficult to deal with and to recover from. Just because a woman is not being physically abused at any point in time does not mean that she is not currently the target of abuse. It could mean that other tactics of the abuser are presently working to maintain his power and control. As Barbara Hart has argued "[b]attering is the sum of all past acts of violence, and the promise of future violence, that achieves enhanced power and control for the batterer".

Research has demonstrated that domestic violence is likely to escalate at the time of separation and the period immediately afterwards. For example, nearly half of the women killed by spouses in NSW between 1968-1981 were either separated, or in the process of leaving the relationship at the time of the killing. The escalation of violence at this point in time makes sense if, in fact, it is true that one of the central features of domestic violence is that it is motivated by the desire to exercise power over, and to control, the target. Obviously separation is the ultimate challenge to a perpetrator’s power and control. Martha Mahoney introduced the term ‘separation assault’ to highlight both the intensification of violence associated with separation and the fact that this violence is an attack on women’s autonomy. Other researchers use the term ‘postseparation woman abuse’ to challenge simplistic assumptions that violence ceases with separation and to provide an analytical focus to violence beyond separation. This also means, of course, that the negotiation of child residence and contact arrangements will generally take place during a particularly risky and fraught period of time and that the implementation of child contact arrangements may be dangerous for many battered women. In New Zealand, for example, domestic homicide statistics demonstrate that the highest risk category for women is during access changeover times. The Australian Law Reform Commission report Equality before the Law notes that,‘[S]ome men use access as a means of continuing harassment of and control over their ex-partners.’ International research also indicates that threats to take children from their mother are common tactics of abuse and that divorce cases in which there are allegations of domestic violence are more likely than others to result in ‘custody fights’.

Some authors have sought to distinguish between different forms or levels of seriousness of domestic violence, arguing that they have different characteristics and antecedents. For instance, Johnson has set out a typology of four categories of violence: intimate terrorism, mutual violent control, common couple violence and violent resistance. However, this work remains controversial and subject to criticism. First, it is limited because it is based on a re-analysis of secondary data sets. Secondly, it does not seem to recognise studies suggesting that the meaning of domestic violence and its effects are not necessarily readily discernible to third parties, and are contextual. Thirdly, it does not seem to leave open the possibility that acts may have different meanings in different cultural contexts. Finally, research on the meaning of violence indicates that men and women may understand violent events differently, and that part of an abusive man’s tactics of control may be seeking to impose his (self serving) definition of the violence on his partner. A too ready resort to simple typologies, whatever their appeal for analysis, may also risk imposing other people’s definitions on the women concerned.

Throughout this report we present women’s various accounts of violence. However, we do not classify these accounts into different categories or even levels of seriousness because we are concerned that such classification runs the risk of distortion. We are not confident that the existing typologies are meaningful and we are persuaded by the research suggesting the salience of subjective and contextual features of violence in the derivation of meaning. It is the women who have experienced domestic violence who are best placed to comment on the meaning of the violence and the impact it has had on them.

Another issue surrounding the phenomenon of domestic violence is the degree to which it affects the children of the relationship. Research shows that not all children are affected in the same way and the manner in which children are affected will also depend on age, gender and the support available for children. However, published research seems to indicate that witnessing domestic violence perpetrated on one of their parents generally influences children’s behavior detrimentally, that violence by the father to the mother will often have been witnessed by the children, and that the violence which is witnessed by the children will often be severe. It also indicates that children themselves may be directly at risk in situations of domestic violence. There is a possibility that the risk to children of abuse might increase after separation because the abuser may transfer his attention from his usual target of abuse who is now inaccessible, the mother, to the next most vulnerable targets, the children. A recent survey of 5,000 Australian young people found that up to one quarter had witnessed physical domestic violence against their mother or step mother. The study found that the strongest predictor of the young person’s use of violence in their own intimate relationships was having witnessed ‘parental domestic violence’.

A controversial question is whether it would help children from violent situations to have no contact with a previously violent parent after the parents separate, at least in the short term. Mertin found a clear pattern of recovery in children who had no contact with violent fathers, or who did not perceive their fathers as dangerous. He also concluded that:

More unclear is the impact on a child’s well being when regular contact does occur in a climate of ongoing violence and dispute. Some "studies indicate that when conflict is very high, children, particularly boys, living with their mothers are more likely to be negatively affected by frequent contact or transitions." Other studies suggest that maternal dissatisfaction with visits is more predictive of child well being than is actual conflict. Rodgers and Pryor, who reviewed 200 studies of the impact of divorce on children, concluded that children do not always benefit from an ongoing relationship with a parent especially where there has been violence.

A related issue, although one which is frequently overlooked, is the impact of motherhood on a woman’s experience of, and capacity to respond to, domestic violence. Much of the literature assumes that women are independent, autonomous actors. In fact women’s concerns for their children profoundly affect their decisions. Concerns about children’s interests and fears of losing residence may act to keep some women in a violent relationship. Research on divorcing mothers also has found that some women had ‘reduced their demands for child support and other resources because of their fears of losing custody’.

Finally, it is worth mentioning that, in spite of its prevalence in the contemporary Australian community, domestic violence is still a very hidden social phenomenon. It is widely under reported and comes with a raft of mechanisms of social denial which have operated historically to minimise the seriousness of the problem.

The research for this report was designed to examine the process of negotiating children’s contact with their parents after separation and the effect of such child contact arrangements on the women and children concerned in circumstances where there was, or had been, domestic violence. Research in a number of countries has demonstrated the difficulties women have in reaching child contact arrangements with ex-partners who have been abusive. Against the background of that research we were interested to examine the issue within Australia. This study is not a before and after study of the reforms made by the Family Law Reform Act, but rather an assessment of the effects of current law and practice.

We explored these issues through semi-structured interviews with a sample of women, and with professionals working in related areas such as lawyers, counsellors, refuge workers and supervised contact centre workers. Where possible, interview data was supplemented by court documents provided by interviewees and by diaries kept by a small number of the interviewees documenting their ongoing experiences with contact and residency arrangements.

This research is necessarily exploratory. Funding limitations have placed constraints on both the sample size and the geographical area that could be covered by the research. Nonetheless, the consistency of our findings with those of other comparable research projects, as discussed throughout, provide reasons to have confidence in our findings.

It is worth noting that throughout this report we have sometimes provided percentages in order to indicate themes or patterns in our findings. This is not intended to distract from the fact that the small nature of the sample means that the primary benefit of this research will be qualitative rather than quantitative.

The women were recruited for the study with the assistance of the Family Court, women’s refuges and women’s health centres, all of which distributed literature about the study to clients. Individual women who wished to participate in the research then made contact with the researchers.

We chose not to interview men in this study. We made this decision to avoid compromising the safety of the women involved. It is also the case that most perpetrators of domestic violence are male.

Despite our interest in children’s experiences and perceptions, we chose not to interview children for other reasons. Such interviews require special skills in order to avoid putting children at risk. Interviews with children also raise special ethical concerns. Where there has been conflict between the children’s parents the children may be especially vulnerable and it may be difficult to gain parental consent for such interviews.

The use of a semi-structured interview technique allowed individual participants to have some role in defining the issues and experiences they perceived as important. The schedule was based, in part, on that used by Hester and Radford, modified for local circumstances and to reflect local law, policy and practice. The interview schedule for the women is on file with the authors.

The sampling methodology used in this research project necessarily limits the generalisability of the findings. The fact that the women interviewed are self-selected means that our sample will not be representative of all women who are resident parents and who have been the targets of violence. In addition, relying on agencies to distribute information to their clients about the study necessarily limits potential subjects to those in contact with such agencies. However, there are real practical and ethical impediments to undertaking such research in other ways. First, there is no way that a representative sample could be selected for this research, since such a sample relies on first identifying all members of the population who meet the study’s criteria and then sampling from within that population. Domestic violence remains a stigmatised and often hidden phenomenon and thus identifying that population is not possible. Secondly, many women who experience domestic violence are in crisis, some are in hiding and others move to new locations as they attempt to escape the violence. Concerns about the women’s (and children’s) safety necessitated allowing the women to self select.

The sample consisted of 40 women who have been/are the targets of domestic violence and who have negotiated/are negotiating child contact arrangements with their abusive ex-partners. Interviewing commenced at the beginning of 1998 and finished at the end of 2000. All interviews were tape recorded with the permission of the interviewees and the majority of these were transcribed in full. In all cases a coding sheet was also completed recording demographic data and other ‘objective’ data items. Women were assigned pseudonyms to afford anonymity.

In 11 cases follow-up interviews were conducted to clarify issues or to find out the outcome of proceedings that were pending at the time of interview. In four other cases attempts to conduct follow up interviews were unsuccessful because the women could not be located. Attempts to seek follow-up interviews were made only with the women’s express permission and were not pursued where there were concerns about compromising a woman’s safety.

Women in the sample were also asked if they would keep a diary to record instances related to domestic violence, contact or residence. This was an important element of the design since decisions concerning contact, residence and the parenting of children are ongoing and often subject to re-negotiation as circumstances and the needs of the children change. The diaries offered one means of gathering data about this ongoing decision making. Five women completed diaries.

Given that many of the women in the sample were in crisis and all were facing significant life challenges it is not surprising that so few women agreed to keep diaries. While the small number of diaries necessarily limits their generalisability and thus the data need to be used with caution, they do provide important insights into the day to day realities for some women of seeking to reach parenting decisions with an ex-partner who is or has been abusive.

Interviews with professionals were undertaken for three reasons. First, they offered a chance to learn more about the experiences of women beyond our sample who have been the targets of violence and who have needed to negotiate contact arrangements against this background. Many of the professionals we interviewed had had extensive experience with clients in this position. Secondly, this offered a limited means of triangulating data and comparing and contrasting professional accounts with those of the women in our sample. Thirdly, we aimed to gain some insight into the professional practice of those who are involved in facilitating the negotiation and implementation of child contact arrangements.

We interviewed 22 individuals and representatives of bodies who are professionally involved in the process of facilitating the development or implementation of child contact arrangements. This was a purposive sample derived from individuals or organisations known to have relevant experience. The researchers made direct approaches to individuals or organisations with invitations to participate in the study. The Family Court facilitated interviews with mediators and court counsellors at two registries.

We used a semi structured professional interview schedule, modified for each professional grouping (on file with the authors). Interviews were tape recorded, with permission, and the tapes transcribed. In most instances the interviews were conducted with individuals, but in two cases interviews involved two professionals at the professionals’ request.

The majority of the women interviewed were born in Australia and three were from Aboriginal and/or Torres Strait Islander backgrounds. Ten women were born overseas, five in English speaking countries and five in non-English speaking countries.

Their ages ranged from 19 to 55 with a median age range of 30 to 34 years. Six were working in paid employment full time, 11 were working part time or casually, and 23 were in non-paid employment as mothers.

The fathers of their children were aged between 27 and 60 with a median age range of 40 to 44 years. Twenty were working full time (seven of whom were self employed), 18 were unemployed, and one was working part time.

Thirty women had been married to the father of their children and 12 had been living with him as a de facto couple. The relationships had lasted from nine months to 23 years with a median range of six to ten years.

The majority of the women had separated from their former partner on more than one occasion. While 11 women said that they had separated just once, 13 had separated twice, six had separated three or four times, seven had separated five or more times and five could not specify the number of times but said that it was "lots" or "constantly." At the time of being interviewed the women had been separated from their former partner for periods ranging from four months to 21 years. Five of the women had been separated for less than one year and 21 had been separated for a period of more than one year but less than five years. The fact that seven of the 40 women interviewed had been separated for six or more years and yet domestic violence by their former partner remained a salient issue for some of them indicates that domestic violence can be enduring and is not necessarily likely to abate with time after separation.

The numbers of children the couple in question had together ranged from one to five, with most former couples making contact arrangements for one (n=12) or two children (n=18). The children’s ages ranged from 17 months upwards. The oldest "child" was 31. Of the children for whom residence and contact arrangements had to be made, two were under two years, 29 were aged two to five years, 24 were aged six to ten years, 21 were 11 to 15, six were over 16. There were similar numbers of girls (n=43) and boys (n= 45).

At the time of interview 33 women had residence of all of the children, two had residence of some of the children and contact in relation to the others, and five of the women were contact parents in theory, although often not in practice, in relation to all of their children. At the time of interview the fathers were contact parents in all 33 of the cases where the mother had residence– although in one instance he lived in another country and was having only phone contact. In a small number of cases the arrangements had broken down because the children were refusing to go on contact visits to their father. At the time of interview only four women said that the contact parent was having supervised contact. In two of these instances it was supervised by a contact centre (although in one case no contact had actually taken place because the children became hysterical each time) and in two of these cases it was to be supervised by relatives of the contact parent (although in both instances the resident mother believed that these arrangements had broken down).

The arrangements were made by a court order in 33 cases. Eighteen of these were consent orders and 15 were court adjudicated orders. Eight women had reached outcomes through private negotiations. The orders were still at the interim stage in six cases and one case was still going to court at the pre-interim stage. Two women said that their residence/contact arrangements had changed two or more times since separation.

The 22 professional interviews consisted of interviews with five refuge workers, five solicitors, three domestic violence court assistant scheme workers, two workers from supervised contact centres, one domestic violence counsellor from a women’s health service, one Area Health Service Child and Family Worker and seven Family Court Child and Family counselors. The refuge workers included child support workers within a refuge, an Aboriginal refuge worker and a NESB refuge worker. Two of the solicitors were from private practice, one was from a community legal centre, one was from the Legal Aid Commission and one had formerly worked primarily with Aboriginal clients.

We chose to interview these professionals because of their experience of the various stages of arranging child contact where domestic violence might be involved. Those from refuges and women’s health services work mostly with women and/or children who have experienced domestic violence and had observed and participated in various ways in negotiating and facilitating child contact. The solicitors interviewed all had a large amount of experience working with contact cases where domestic violence was involved. Two of the solicitors said about 40% of their contact cases involved domestic violence, one said 30%, one of the private solicitors said 75-80%, and the other solicitor thought that probably 100% of their contact case workload involved domestic violence. Domestic violence court assistance scheme workers provide women applying for an ADVO with non-legal support including emotional support, advocacy and information. Given that many cases of contact are determined in the local court, often associated with ADVO proceedings, we felt it was important to interview domestic violence court assistance scheme workers. As noted above, the emphasis on primary dispute resolution within the Family Court means that Child and Family Counsellors and mediators are often central to the process of negotiating child contact arrangements. In addition, children meet with a Family Court counsellor when a Family Report has been ordered by the Court.

In the following four chapters we outline the results of our research. In Chapter Two we contextualise our examination of the negotiation and experience of contact arrangements by describing the women interviewees’ experiences of violence before and after separation from the father of their children. We also consider whether the violence was witnessed by and/or directed at the children of the relationship. In Chapter Three we describe the women’s experiences of using legal intervention to address the violence that they confronted. In Chapter Four we outline their experiences of the various family dispute resolution processes available to negotiate residence and contact arrangements. Finally, in Chapter Five we look at issues surrounding the actual exercise of the negotiated contact and residence arrangements.

This chapter sets the context for our examination of the negotiation of child residence and contact by outlining the women interviewees’ experiences of domestic violence. Our primary concerns were to examine the women’s experiences of violence before and after leaving violent men, to consider whether the violence was witnessed by the children and/or was directed at the children, and to look at what activated the women to leave the relationship.

These data were collected using a semi-structured interview schedule. The open-ended nature of the questions allowed the women to recount the violence as they understood it. The advantage of such an approach is that it avoids imposing external meanings on the women’s experiences. However, one consequence of this approach is that the range and number of violent behaviours described by the women is likely to be incomplete.

The findings reported below are consistent with those of the broader research literature concerning women’s experiences of domestic violence.

The interviews with the women demonstrate the wide range of abusive behaviours that men use against their female partners. Most of the women had experienced multiple forms of violence. All 40 of the women interviewed had been subjected to psychological or emotional abuse whilst they were in the relationship. Only six of the women said that this was the sole form of abuse that they had experienced. The overwhelming majority of the women (n=34; 85%) had experienced one or more forms of physical and/ or sexual abuse in addition to psychological or emotional abuse.

A number of the cases of physical abuse involved extremely severe and/or life threatening violence:

Diane described being regularly bashed, threatened with death and forced to have sex against her will until a final incident in which she was held up against a wall with a knife to her throat while her partner told her that he was going to kill her. Fortunately a neighbour interrupted him and this incident formed the impetus for her decision to leave the relationship.

Ellen described numerous incidents and injuries inflicted by her ex partner which he alleged to be accidental. These included stabbing her in the hand when she was doing the dishes; driving the car over her foot; and letting the car bonnet down on her head when she was looking at the engine. Other incidents included: being belted "with a fence paling and [being] black and blue from one end to another"; having a hot roast thrown at her; being hit in the head "for nothing"; her partner waiting until she was asleep in bed, "punch[ing] the daylights out of [her]" and then claiming to be asleep; breaking a beer glass in her eye leaving a scar on the eye itself; and hitting her head on the bed side table when she didn’t want to have sex. She reported that her partner would accompany her to the doctor and lie about how she had acquired her injuries. She left because he had threatened to kill her many times, and she found evidence that he had been planning to carry it out. When she contacted her good friend and her mother after escaping she learned that he had told both of them that:

Rebecca had experienced violence from three ex partners. The first partner had a psychotic incident in which he stabbed and bashed her whilst she was heavily pregnant and broke into her parents’ house and physically attacked them. The second would regularly hit and kick her, as well as behaving in other ways designed to terrorise the family, such as killing a puppy by splattering it against a brick wall. She described an incident in which he tried to run her over at the bus stop. She was pinned between the car and a brick wall and somehow managed to extract her leg and jump over the bonnet. The car was written off. She described her relationship with her third ex-partner as "like being in gaol for ten years." A week after she married him he broke her jaw and she had major surgery requiring permanent pins. The lives of herself and her children were controlled in every detail and her former partner reinforced his authority with physical violence. "[I]f I was late he … didn’t want excuses he’d just knock you out. That’s it. No excuses. Knocked out – as soon as you walked in that door …" He would not allow the woman and the children to be in the same room:

Toni said:

Susan said the violence was:

Some women tended to play down the violence that they had endured, minimising the seriousness of what had happened to them. There were also a number of cases in which women commented that the physical violence was not frequent but, nonetheless, was enough to maintain control in the relationship. For example, Megan said:

Another example was Gina who said that her partner was physically abusive only once or twice a year "which was enough to keep me in line."

Pregnancy is a time of particular vulnerability for women and violence during this time can have a serious impact on pregnancy outcomes. Although we did not specifically ask the women about violence during pregnancy, eight (20%) volunteered the information that the violence was harder to endure or had worse consequences when it occurred whilst they were pregnant. For example, Belinda described her daughter being born prematurely after her partner had punched her around the head whilst she was heavily pregnant. Rebecca was hospitalised after her husband stabbed her when she was pregnant after a dispute about the possible gender of the baby.

Sexual violence was mentioned in eight cases (20%), including attempted rape and rape (it should be noted that we did not specifically ask the women about sexual abuse and so these numbers could be an underestimate of the sexual violence which actually occurred). Jenny, for example, said that her partner would organise for "his mate to come over and do whatever." Diane said:

All of the women reported that they had suffered psychological abuse. Many of them, even those subjected to severe physical abuse, commented that the psychological abuse was as bad and often worse than the physical abuse. For example, Rebecca said that she could handle the physical abuse "except against the kids" but the psychological abuse is "worse than any physical abuse you can go for" and was "24 hours a day." Susan said:

Ellen who had been verbally abused, strangled, thrown off furniture, had objects thrown at her and smashed and had been threatened with a gun and told that he was going to shoot her and burn her remains in a State forest said that "I actually found the emotional abuse worse than the physical."

The psychological, emotional and verbal abuse typically centred around attempts to control the women’s lives. The most frequently mentioned form of psychological abuse, raised by 16 women (40%), was being called derogatory names, told that they are worthless, and, or being subjected to racist or sexist abuse. Four women reported having received death threats and six women reported threats of other forms of violence. In many instances psychological abuse also took the form of isolating women within their homes and removing other forms of support. Ten women (25.6%) reported not being allowed to have friends, contact with family and, or to invite people to the house. Three were not allowed to leave the house and a fourth, Alison, was tied up and physically locked in the house. Melanie was not permitted to drive and Alison had the mileage on her vehicle checked. Other direct attempts to limit women’s autonomy included: having to hand over her wages every week or not being given any or enough money; being told what to wear; being called incessantly on the phone whenever she left the house; not being allowed to have her own opinion or finish a sentence; and not being allowed to choose her career or where she lived.

Other examples of the abuse included:

• being forced to sleep outside or on the floor;

• having the phone tapped with a voice activated tape recorder;

• being locked in the bedroom at night;

• having to ask permission to watch a television show;

• not being allowed to be in the same room with the children;

• all the windows in the house being bolted shut;

• being rung at work and screamed at because they had run out of baby formula or because the clothes in the washing were inside out;

• not letting her breast feed their child because he thought her breasts might drag;

• sleep deprivation;

• going through her things without her permission or stealing from her;

A number of the women described the consequences of the abuse as taking a toll on their self-esteem and their identity, leaving them feeling very unsafe and in a position of constantly trying to please and placate the perpetrator. For example, Diane said that:

Recent research also indicates that emotional abuse is associated with an increased risk of both minor and severe physical injuries. The authors of that research argue that service providers should treat the presence of emotional abuse as a warning sign, and as an important public health problem in its own right.

Our study adds to the growing body of research suggesting that spousal abuse and child abuse are inter-related phenomena. Here we note that a significant percentage (62.5%) of the children in our study had witnessed the violence against their mothers and more than a third had actually been the targets of physical violence themselves (indications are that this figure would be much higher if psychological abuse was also counted).

Twenty-five of the women (62.5%) we interviewed commented that their children had directly witnessed the physical violence that occurred whilst they were in the relationship. We are unable to say whether in any of the remaining 15 cases the children had overheard or been aware of the abuse even though, to their mother’s knowledge, they did not directly witness it.

Disturbingly, some of the women said that their partners would deliberately abuse them in front of the children in order to "get at" the women, to terrorise the children or to show off to the children. Tracey said:

Sandra said:

Some of the women had been beaten whilst they were actually holding their children, breast feeding, or, in Gina’s case changing a nappy:

Kate said her son had normalised the abuse and would have no reaction to it when he witnessed it. Others spoke of their children becoming fearful, or emotionally confused or protective of their mother. For example, Susan said that all of her children fear for her life and that her older children have been expecting attempts on her and their own lives. A number of the women described their children intervening and attempting to stop the abuse. Belinda said that her five-year-old "would always run up and yell at him, ‘stop hitting mummy’ or ‘stop yelling at mummy’ and things like that." Rebecca was kidnapped and had an attempt made on her life by her ex-partner. She was rescued by her son who ‘hassled the police’ until they did something about her disappearance.

Many of the women expressed concern about the possible long-term effects on their children of witnessing the violence. Some of the women talked about not wanting their sons to think that it was "okay to hit and demoralise and humiliate women." Eight women (20%) commented that their sons had picked up violent behaviours. Five (12.5%) commented that their sons were now abusing them, their girlfriends, and in one instance being physically violent to other children.

Research has found that there is a higher risk of injury for women who have been assaulted in the presence of their children. While this may seem counter-intuitive, it also may suggest that perpetrators who are willing to carry out an assault in front of their children may likewise feel little constraint about causing actual injury.

Thirteen of the women (32.5%) commented that there had been physical violence (often in addition to psychological violence) towards a child or children. In addition, nine women (22.5%) mentioned psychological without physical violence towards their children (such psychological abuse was other than the children witnessing violence against their mothers).

The violence against pregnant women provides a clear example "of the way in which the abuse of women and children may be inextricably intertwined." However, many of the women’s experiences also highlight the inter-relationship between domestic violence and child abuse. Children may be abused as a means of abusing their mother, they may be hit ‘accidentally’ when the father is hitting their mother, they may be hit when trying to intervene to protect their mother or the mother may be hit when she is trying to protect them. This inter-relationship is illustrated graphically in Rachel’s account:

Diane whose child was now having supervised contact with the father said:

She was advised incorrectly that her child could not have protection under a family violence order.

Rebecca spoke of her third partner bashing her son (his stepson) with an iron bar. He beat her son, called him a ‘poofter’ and threatened to kill him when she was not around. She described always watching which rooms her partner was going into to make sure he wasn’t heading towards her son’s room. She also described him using psychological violence against her daughter (his stepdaughter). She could not have friends around because he would embarrass her by calling her stupid and an idiot and "putting on a performance." The Family Court awarded this man residence for all the children, including his stepchildren. The children resided with him for three years. Rebecca talks of her son’s anger towards her that she was not able to protect him during those years:

Jenny described her baby learning to stand up and putting his hands on the top of the heater to balance. The father hit the child’s fingers because his marijuana mix was on the heater. He hit the child often. When the child would knock his bong over he would hit the baby on his back or wherever he could reach. In this instance there was an interim residence order in her favour and her partner had unsupervised contact with the child, which included overnight contact.

Some of the physical violence described consists of irresponsible behaviour or excessive discipline. For example, Ellen described her ex-partner’s behaviour as including things like pressing the babies’ heads in the soft spot because it made them blink or sliding them across the floor before they could walk. This man had residence of the children and she had contact. Sandra described her ex-partner head-butting the son when he was eight and "smack[ing] too wildly …[and] be[ing] really abusive verbally while he was doing that." In this case he had residence and she had contact in theory but none in practice. Barb said:

Barb had residence and her former partner had court ordered supervised contact.

By contrast, three of the 40 women went out of their way to comment that there had never been any physical violence towards the children. Belinda, for example, that he was a "very patient dad" who rarely gave them even a smack. Indeed she said, "he won’t smack the children but he’ll smack me".

Many of the children had been subjected to emotional or psychological abuse by their fathers. Delores said that her ex partner had recently attended the school with his girlfriend and told her six-year-old daughter that they had "killed her mother at home". She described the little girl coming home "very distressed" and the difficulty she experienced subsequently in trying to get her to go to school. Other examples of emotional and psychological abuse directed at children included: threatening to kill the child(ren) or their mother; killing children’s pets; destroying or removing children’s favourite toys; interrogating the children to discover their address and or phone number, or details of their mother’s life; and name calling and abuse, including in one case screaming outside the door of the house "I pay for you so you have to see me."

Interestingly, in relation to abuse of the children, a number of women remarked that the father of the children had deliberately gone out of his way to avoid paying child support, seemingly unable to make the connection between his payments and the welfare of the children. Some of the lengths that the contact parent had gone to were quite extraordinary. For example, returning all Child Support Agency mail "not known at this address", simply quitting his job, and misreporting self-employed income. A number of the women commented that they felt that the issue of child support had become another way to attempt to control them. For example, Gina remarked that the father refused to pay child support in case it benefits her rather than the children. He was on unemployment benefits but reportedly had a successful secret business for which he didn’t put in tax returns. He has said that he won’t give her child support unless he can look over her accounts and see what she spends her money on.

Seven cases (17.5%) involved allegations of sexual abuse in relation to a child. Five of these cases involved allegations against the father (one of which involved suspicions in relation to both the father and the paternal grandfather), one concerned an associate of the mother and one concerned an associate of the father. Many of these cases involved unsubstantiated allegations. It is worth noting that there is a documented difficulty in substantiating the sexual abuse of children, particularly when it takes place on contact and where there is no physical evidence. Barriers include the fact that most children disclose to their mothers and may never feel comfortable telling an independent person, disclosure mostly occurs after separation when the child is no longer living in the same home as the abuser, most children engage in ‘tentative disclosure’, and there is a common assumption (unsubstantiated by the research) that mothers make up stories to stop their ex partners having contact with their children and therefore mothers’ concerns may be met with increased suspicion if Family Court proceedings are underway or are likely.

The mother did not commence the investigations into possible sexual abuse in all the cases. In Yvonne’s case a Department of Community Services (DOCS) investigation was instigated by the daughter’s doctor when she contracted a urinary tract infection. The daughter disclosed nothing against her father but has had counselling and "has been a lot happier since." In that case the parents had what was termed a "residence/residence" arrangement in that the children "reside with" the father every Friday from 4pm until Saturday at 4pm and with the mother at all other times. In Ellen’s case the allegations of sexual abuse were made by an ex-girlfriend of the father which were corroborated by vaginal problems in the daughter. Investigations were conducted by DOCS but were inconclusive. In this instance it was reported that the father had a mental illness and at one point during the course of the relationship was masturbating and wandering around naked in front of the children. The Family Court made a residence order in the father’s favour and a contact order for Ellen to have contact with the children every third weekend.

Some of the possible instances of abuse occurred during contact visits. Vivian’s son told her after the third or fourth contact visit, "Dad pulled my bum". She contacted DOCS and the Child Protection Team but her son did not want to talk to them about it. Her ex-partner had unsupervised contact ordered by the court with changeover at a contact centre. In another instance Meena’s daughter was allegedly sexually assaulted by one of the father’s friends whilst on a contact visit with the father. Meena obtained "a restraining order" (or perhaps a variation of the contact order) which states that the father is to have no contact with the friend whilst the children are having contact with him.

Of the seven cases involving allegations of sexual assault, four were also said to involve physical violence against the children, and three were said to also involve psychological abuse.

Our findings concerning the co-incidence of violence against women and child abuse are particularly important given that professional discourses and practices typically have treated the two as entirely separate. Moreover, in different areas of professional practice the same behaviours may be met by quite different responses. For instance, Eriksson and Hester argue that in child protection cases mothers may be expected by social services to actively protect their children from abuse, and yet in divorce cases ‘mothers who bring up problems related to men’s violence are likely to be considered uncooperative.’ They argue that these distinctions in professional practices are so great as to constitute ‘two different planets’ and have tended to negate recognition of the links between men’s violence to women partners and the abuse of their children.

However, our findings are consistent with research that has increasingly come to recognise that "the presence of one form of violence in a family may be a strong predictor of the other. In any case, abuse of the mother often amounts to abuse of the children and vice versa." Violence against a woman may have a psychological effect on her children, in some cases it may spill over onto the children, and violence against either the children or the mother may be used to control the behaviour of the other. Batterers commonly use children as a means to manipulate or intimidate their partners or former partners and women’s strategies to deal with domestic violence frequently are constrained by concerns about their children. Violence against a woman also may have a significant impact on her ability to take care of her children’s needs. A recent US report on protecting children from violence has recognised child abuse and domestic violence as overlapping phenomena and has adopted a policy of ‘making mothers safe’ as a key principle in protecting children.

Since being separated from an abusive partner was a defining characteristic of our sample, all of the women had left their former partners on at least one occasion.

Some women identified a particular incident that sparked them to leave for the final time, while others found it difficult to pinpoint an exact time or event that prompted them to leave. The incident usually represented an escalation of the violence which was either life-threatening or just one incident too many. For example, for Diane it was having a knife held against her throat whilst her former partner threatened to kill her. Vivian said that what prompted her leaving was being raped by her partner for the first time. For Gina it was an attempted rape and then being dangled by her legs over the 30 foot high balcony. For most of the women, fear for the well being of the children was a major factor in the decision to leave their partner. That fear sometimes arose because the violence was being witnessed by the children, because the children were becoming directly involved in the violence, and or from a concern about the longer-term impact of the violence on their children. For example, Sylvia said:

Other research has found that for many women the point of separation and the period immediately afterwards is likely to see an escalation of violence rather than a cessation of violence, although there might be a change in the nature of the abuse. Martha Mahoney has called violence at this time ‘separation assault’, to refer to the fact that violence is a common response to a woman’s decision to separate from a relationship characterised by domestic violence and that some men use violence after separation as a means of gaining or regaining power in the relationship.

All but one of the 40 women we interviewed (97.5%) had experienced violence or abuse since separation. This woman, Diane, had gone to great lengths to have no contact whatsoever with the father of her child. She had moved "far away" to a secret address, avoided all places she thought he might go, had an ADVO and used a supervised contact centre. However, Diane had not been able to avoid a serious ‘separation assault’ at the moment when she left her husband, in which he threatened her with a knife, bashed and kicked her.

Fifteen of the 40 women interviewed (36.6%) said that they had experienced an increase in the violence since separation. Thirteen women (32.5%) said that the violence had decreased recently. Eight of the women (20%), including three of the women subjected to psychological violence only, did not comment on whether or not the violence had increased or decreased since separation. Only four of the women (10%) said that the violence had now ceased, although it had not ceased immediately after separation.

Women typically described post-separation violence as including threats (sometimes death threats), stalking, assaults, having their homes broken into, and repeated phone calls. Several women described how post-separation violence was being directed not just towards themselves but to other family members or support persons. Some women recounted forms of harassment that included false reports about their own behaviour or that of friends or family members to agencies such as the police, landlords, or the Department of Social Security.

Sandra commented that threats were more frightening now that she no longer lived with the perpetrator because she never knew when or how the threat would be carried out:

Susan said that there had been no let up in the four years since separation and, if anything the violence had become worse because ‘the power game he was playing was giving him no satisfaction’. She described being stalked at home, school, work and around town on a daily basis for 18 months, receiving threats including death threats in the mail, having her support people threatened and a male friend who was supporting her accused of child molestation, letters being written to the children threatening that things would happen to their mother if certain things did not take place in contact negotiations, her employers receiving threatening letters, having things thrown at her and being visited every 4-6 weeks by the police who once searched the house for firearms they had been told that she was hiding. Rebecca described death threats on a nightly basis and being captured and held at knifepoint for seven hours by her ex partner who said that he was going to kill her and then the children. He has been in gaol ever since but his friends still threaten and harass her. Dorothy described her mother’s door being smashed in, her mother’s car being rammed, being punched in the ribs during contact and continual harassment. Delores described having had rocks thrown at her windows, being stalked, being verbally abused, being tailed in the car, having her house repeatedly broken into, her car stolen and tyres slashed, having her address changed or given to mailing companies, waking up in the morning to find doors have been opened, having her outdoor furniture regularly moved and garden ornaments broken. She said that incidents like outdoor furniture being moved or doors and gates being opened or closed were occurring every night or every second night at one point. Gina described being stalked, being phoned ‘20 times a day’, and having the lives of herself, her children and other family threatened. Her ex-partner also made false complaints to the Department of Social Security and to her landlord in an attempt to evict her from the property.

The experiences of the thirteen women who said that the violence had decreased varied considerably. For some, violence had decreased since separation, whereas for others it had escalated with separation and decreased more recently. Nonetheless, women who said that the abuse had decreased still described quite disturbing behaviour such as being repeatedly phoned, being assaulted, death threats, being dragged by the hair, pushed against rocks, being slapped across the face, having their house broken into, and being stalked. Nine women explained the decrease in terms of the fact that the accused simply did not have access to them in the same way. For example, Rachel no longer lived in the same country as the father of the children as she had fled his extreme violence against her and the children. In her case she had been physically attacked by him since separation but only during the one time he visited Australia to have physical (as opposed to phone) contact with their children. Nicole commented that the physical violence decreased after separation because he could no longer physically lay his hands on her. However, she also reported that the verbal abuse had increased initially and only recently decreased when the opportunities for such abuse were minimised by the fact that they started using a contact centre and thus had no contact with each other. Teresa explained the recent decrease in abuse in a belief that her ex-partner might have a new girlfriend, whilst Belinda thought it was because her ex-partner was attending counselling and Carmen thought her ex-partner might have finally accepted the separation.

Among the eight women who made no comment as to whether the violence had changed since separation, most described post-separation violence that was very serious. Joyce described being assaulted, receiving death threats, having her windows smashed, her car stolen and sugar being put into her petrol. Kate described being smacked in the face during contact changeover. On another occasion she was attacked by her ex-partner and kept trying to crawl outside onto the balcony to attract attention, but was repeatedly dragged back inside. Megan described her ex-partner being violent ‘every month or so’. She had her car smashed, her door smashed, possessions burned, a brick thrown through her bathroom window, her house broken into, death threats, threats to bomb her mother’s house, being drugged and kidnapped, being held up against a wall, having her neck bruised and being punched in the stomach, and having her friend bashed and grabbed by the throat.

Of the four women who reported that the violence had now ceased, one, Cath, commented that the violence increased immediately after she separated from the father of her children and then escalated from once a month to two to three times a week for a year. It eventually stopped when she met her second husband and now she says that she is the "best of friends" with the father of her children. A second woman, Rebecca, reported that the violence had ceased in relation to two of her ex partners. The first received psychiatric treatment and "dealt with his problem" and the second has ceased physically abusing her but was still abusing her psychologically: she says that she "gives as good as she gets" on that score. A third woman, Bronwyn, attributed the cessation of violence to leaving everything of value with her ex partner – including the baby’s bed - and going out of the way to explain everything to him, including that she has no desire to harm him. However, she described her ex partner as still making verbal threats to her and said that she was worried that he may have been instrumental in a car accident that left her brother unable to walk. The fourth woman, Meena, experienced an increase in violence after separation and described being repeatedly telephoned, receiving threatening letters and being punched at her son’s carnival. However, she commented that there has been no violence in the last 12 months.

A significant proportion, although not all, of the violence the women experienced after separation was linked in some way to child contact. This will be explored further in chapters four and five. However, it should be noted at this point that where the contact or negotiations for contact afforded some level of access to the woman this facilitated the continuation of the violence. In chapter five we also discuss the impact on the children of having continued contact with the perpetrator of the violence.

In line with other research that has asked women about their experiences of violence, we found that:

• The violence experienced by the women interviewed included a wide range of abusive behaviours.

• In a substantial proportion of cases children had witnessed domestic violence between their parents.

• Violence against the women was often associated with physical and/or emotional abuse of the children by ex partners.

• Many of the women described an increase in violence immediately post-separation. For a large number of the women who had experienced a decline or cessation of violence at some point post separation this could be attributed to minimising opportunities for the violence to occur by minimising contact between the two parties.

• A significant proportion of the post-separation violence could be linked in some way to the negotiation and exercise of child contact.

The prevalence of post separation violence within our sample is likely to reflect the sampling methodology employed in this study, and cannot be generalised to other groups. However, the finding that domestic violence often continues after separation is supported by numerous other studies and cannot be dismissed as an artifact of the sampling methodology. The extent and apparent seriousness of such violence within this sample challenges simple assumptions that separation offers an end to domestic violence. It also helps provide some insights into the context within which women must seek to comply with the provisions of the Family Law Act 1975 concerning contact, residence and parenting. Ongoing violence challenges not only the safety of women and children, but also attacks women’s autonomy and may constrain their capacity to make decisions.

This chapter considers women’s experiences of legal responses to domestic violence and includes their accounts of the responses by police and relevant professionals in the legal system and/or community sector. In particular we consider whether the women found it difficult to talk to professionals about the violence, how the professionals responded to that violence, the women’s experiences of the procedures involved in obtaining an apprehended violence order and their experiences of the police and of women’s support services or refuges.

As noted in Chapter 1, some women are faced with a complex set of legal interventions, often in more than one jurisdiction, when they seek legal assistance to deal with domestic violence. Where child protection issues arise the complexities are magnified. Data presented below show that most of the women in our sample were involved in matters before State courts (usually seeking a protection order under State legislation) in addition to their negotiations over residence and contact for the children, which in turn sometimes involved court appearances. Some also had other matters dealt with under the Family Law Act 1975 (such as divorce, property settlements, and orders for the recovery of children). The fact that some Family Law matters may be heard either in a State court (Local Court), the Federal Magistrates Service or the Family Court adds to the complexity. Not surprisingly, not all of the women interviewed for this study were able to identify clearly the details of the legal interventions they had been involved in. Some did not fully understand the distinctions between Local Courts and the Family Court. Some had had so many court appearances that it was difficult for them to identify what had happened on any particular occasion.

These observations are significant, not just for what they suggest about the complexity of women’s lives in seeking to deal with domestic violence, but also because they challenge the notion that it is reasonable to assume that women can readily access and negotiate the legal options, and consequent procedures, formally available to them. They may also remind us that, as women and children’s needs and circumstances change over time they may need repeated recourse to law, and possibly repeated court interventions. This is particularly likely to be the case where they cannot reach amicable agreements with their former partner.

Women need to tell solicitors, police, mediators and other professionals that they have been the target of violence in order for appropriate action to be taken. Thirty-one of the 40 women we interviewed (77.5%) commented on their experiences of seeking help and telling professionals about the violence. We also asked professionals whether they thought that clients would readily disclose to them their experience with domestic violence.

It is important to note that the women we interviewed had mainly been referred by agencies to whom they had already taken the step of talking about their situation. Other studies have shown that a significant proportion of women may not speak about the violence to anyone. Certainly some of the women we interviewed had never spoken about the violence to anyone whilst living with the perpetrator so opening up about the violence was understandably difficult. Belinda said:

Edwina had been prevented by her partner from speaking about the violence:

When she eventually told the police about the violence, she felt that they did not believe her. After a court case in which her ex-partner was charged with drink driving, Edwina had to be escorted out of the court by the police "because he got really nasty":

Twenty-two of the women who commented on their experience of telling professionals about the violence (70.9%) said that they had found it very difficult, to do so, at least initially. Ten of these women said that this was wholly or partly because they found it hard to talk about something so personal or embarrassing or that it was something that they were in denial about themselves. For example, Teresa said:

Vivian said:

What is distressing is that when Vivian eventually did tell her second lawyer about being raped, his response was:

Six of these 10 women who initially found it difficult to talk about the violence due to embarrassment or denial found that once they had opened up to someone, such as a refuge worker, they were then able to let other people know and found their responses helpful.

Twelve of the twenty-two women (54.5%) who commented that they had found it difficult to talk to professionals about the violence said that this was because some of the professionals had not given them an opportunity, didn’t appear interested, did not understand domestic violence, or did not believe them. For example, Susan found she was able to talk to the two Family Court counsellors and workers at ‘women’s housing’ and a community legal service about the violence. However, in relation to her lawyer she said:

Sandra commented that she did not believe that her lawyers or the police understood the dynamics of domestic violence. She said:

Anna had no difficulty telling her solicitor but had great difficulty telling the magistrate in the Local Court where she was seeking an ADVO. She said that she ended up feeling:

The remaining nine women who commented on their experience of talking about, and seeking help in respect of, the violence said that they had had no difficulty telling professionals about the violence. Many of these women commented that the professionals that they had dealings with were "very helpful."

Interestingly, two of the 31 women who commented about their experiences of communicating the violence stated that they were unable to tell their own solicitors about the violence towards the children. For example, Rachel said that she had never told her lawyer about the violence towards the children and he had never asked. Sandra seemed constrained in telling her lawyer about the father’s violence to the children because that might require involvement by DOCS. Because the focus of child contact negotiations should be the best interests of the child, a lawyer who is aware of violence towards the mother (as these lawyers were) should, at the very least, have been alert to and have asked about the presence of any violence towards the children.

While the discussion above has focussed on disclosure to professionals, it also should be acknowledged that some women find disclosure to friends, family and other informal networks difficult. For instance, Susan said:

Given that the majority of women in our study said that they had difficulties telling people about the violence, it is disturbing to note that all but one of the professionals that we interviewed answered "yes" to the question, "do you think that clients would readily disclose to you their experience with domestic violence?" One of the Family Court Counsellors went so far as to say, "mostly here it is disclosed, and very openly disclosed. Screamed from the roof tops in many ways."

This belief in frank and easy disclosure was held in spite of the fact that many of the professionals also recognised that there might be factors that would impede disclosure in some cases and/or cases where the women concerned might minimise the violence that they experienced. Three refuge workers and a solicitor each commented that some women were constrained in their disclosures by concerns that it might lead to intervention by the DOCS with respect to their children and/or that the information might have an adverse effect on the Family Court’s assessment of them as a parent. This was reported to be a particular concern among Aboriginal women. As one refuge worker commented:

A solicitor gave the example of a client who they suspected was terrified of her ex partner but would not say that he was violent because she had real concerns that the children would be made wards of the State.

Other reasons identified by these professionals as potentially impeding disclosure, or encouraging the minimisation of violence, included: fear of retaliation by the perpetrator towards the women or the children; the presence of the other party in a counselling session; a lack of trust that the legal system could protect them, especially among the most vulnerable, such as women "who really are married to a maniac"; fear of the legal system, especially among Aboriginal clients; shame; privacy; concerns about revealing violence to a male professional; concerns that they must present to the court in a formal or "together" manner; cultural factors; the need to develop trust over time; the fact that some women were uninformed or misinformed about their rights, especially women from non-English speaking backgrounds; a failure by some women to identify their own experiences as domestic violence; and the fact that some women have not yet reached the stage where they are ready to deal with the violence.

One solicitor recognised that "the way we think as lawyers might stop [women] or prevent them from disclosing violence". She said:

Nan Seuffert has analysed the role of lawyers acting in domestic violence matters. She argues, on the basis of her research, that "lawyers should not begin the process of translating the client’s narrative of her experiences in to legal categories immediately". Rather they should build a dialogue with the client, recognising both that the client’s narrative may change as they come to better understand the law, and that the lawyer’s understanding of the case may change "as the client and lawyer reinterpret those experiences due to new understandings of the law or for other reasons."

Professionals were also asked whether they had ever received any reports of domestic violence that they had not believed, or that they thought were fabricated. The responses to this question varied widely. Four people, two solicitors, a refuge worker and a domestic violence worker, responded that this had never occurred. Two refuge workers and a solicitor responded that it rarely happened, with one commenting that it was much more likely that women mask the violence rather than they make it up. Four respondents indicated that on occasion they had wondered about the truthfulness of allegations. These included two Family Court counsellors, a child care worker and a child and family worker. However, one of the Family Court counsellors reflected that on occasion where they had doubted allegations, and men had convincingly denied those allegations, there had been indications from the children or elsewhere to corroborate the fact that domestic violence had occurred. Another Family Court counsellor commented that: "I don’t think it matters much. Its not worth going there, you know, getting in that you know semantic debate about whether someone was violent or they weren’t." By contrast another Family court counsellor made strong claims about spurious allegations:

One other Family Court counsellor reported a range of circumstances that might suggest fabrication, or ‘embellishments’ including a disjunction between a client’s reported fear and their non-verbal communication. However, this counsellor also acknowledged that by the time they saw the client she may have been supported and empowered by others such as community workers or welfare workers, and thus may present differently now than at the time of initial crisis. This counsellor then went on to describe their understanding of fabrication.

This quote suggests that the views professionals hold about the veracity of allegations of domestic violence may be fundamentally affected by their personal understandings of what constitutes domestic violence. In this quote, for example, the counselor appears to understand domestic violence as merely the actual incidents of physical abuse that occur in the relationship. Thus the fact that there are not many of these incidents means, for them, that the woman’s claims to have been in a violent relationship are grossly over-inflated. If one understood that the physical abuse in a violent relationship has the function of backing up and reinforcing a spectrum of other types of abusive behaviors, all of which are designed to control the woman concerned, then one might have a different attitude to the woman’s claims to have been in a violent relationship. We have noted in Chapter Two the comments of some of the women we interviewed to the effect that, although the acts of physical abuse in their relationship were not frequent, they set the tone for the entire relationship. Thereafter they were frightened of what their husband was capable of doing to them and one look from him would be enough to bring them "in line".

The willingness or capacity of women to speak about the violence they have experienced is only one aspect of ensuring effective communication with the professionals they turn to. Davies et al argue that approaches to battered women have become formalised, and routinised such that "[I]n an age of protective orders, specialized units, and coordinating councils, we have sometimes forgotten the importance of simply listening to battered women." They contrast ‘service defined advocacy’, that is, the interventions of professionals who provide a service "whether or not it fits into a battered woman’s risk analysis or safety plans," with ‘woman-defined advocacy’, that is, those professionals who tailor their responses to the needs and interests of individual women within the real world rather than an ideal setting. Listening to the perspective of a battered woman is fundamental to achieving effective advocacy and service provision.

Susan offered a thoughtful response, suggesting that some professionals may have fallen into routine patterns of responding to domestic violence. In other words ‘service defined responses’ which may limit the capacity for recognising and responding to individual woman’s needs. She felt silenced by the fact that routine practices of various professionals treated all cases involving issues of violence in the same way:

Some of the professionals also recognised that full disclosure could take time and a supportive relationship. A refuge child support worker commented that it can take a week to relax the client "and work out the best way to work with the children and the mother so they tend to disclose more and more as you go and you build confidence with the client." Similarly one of the refuge workers commented that "we hear the most horrendous tales sometimes, somewhere near the end of [the woman’s six to eight week] stay here".

Thirty-eight of the 40 women we interviewed commented on whether or not they had tried to obtain, or had obtained, an Apprehended Domestic Violence Order (ADVO). Of these women, 31 (81.6%) had obtained an ADVO at some point. A further three women had attempted to obtain an ADVO but had been unsuccessful. Only three women reported that they had not sought an ADVO. As indicated in Chapter One, research suggests that separation assault may be a common reason for women seeking a protection order. In addition, a recent study of Family Law Case Profiles also found evidence of ADVOs in the majority of domestic violence cases. The high proportion of women within this study who had sought an ADVO is thus consistent with both international and Australian research.

One woman who had not sought a protection order said that this was because her partner had access to guns and the police had advised her that an ADVO was of little use because he could shoot her before they got there. Another said that this was because she didn’t think an ADVO would help the situation. The final woman had spoken to the police a few times but had never gone so far as to take out an ADVO. Her ex-partner was now in prison and so such an order had become unnecessary.

Meena, who had been unsuccessful in seeking an ADVO commented that the police had initiated the action on her behalf, but that the court had dismissed the application. She described the court as a "Kangaroo Court" and said that she would never apply for an ADVO again:

Barb had tried to get an ADVO for her son, rather than herself, because her children were terrified of their father, there were allegations of sexual abuse, and he was threatening to "come and get them" that weekend. She commented that she was "laughed out of court." This may have been because only police have the power to apply for an order on behalf of a child. However, a person who is seeking their own protection order can ask for other people with whom they have a domestic relationship, including children, to be included on the order. It may be the case that Barb only included information about the risk of violence to her child and did not include any (or not enough) information about her own fears, in order to meet the standard of proof for an ADVO that would cover both herself and her child. The second time she applied for an ADVO for herself and her children the Local Court decided not to deal with the matter because her ex-partner had started proceedings in the Family Court. The magistrate commented that the "Family Court was looking after it now" and that her interim Family Court orders for supervised contact "covered the situation." In fact proceedings in the Family Court do not preclude action being taken for a protection order in a State court. The magistrate commented that he "couldn’t overrule the Family Court". This was incorrect. The hearing was after reforms to the Family Law Act and so the magistrate would have had the power to grant the ADVO and vary the contact order as appropriate using s68T of the Family Law Act.

Ellen obtained an interim ADVO, which was applied for on her behalf by the police. However, she did not attend the hearing for the final ADVO and the proceedings were dropped. She said that she had reconciled with her partner at the time and he led her to believe that an ADVO constituted a criminal record that would prevent him from working. As she had supported him financially for 18 months already this was not something that she wanted. After a later separation she tried to get an ADVO to deal with his stalking but he successfully contested it.

Interestingly a number of the women who had eventually obtained an ADVO commented that they had withdrawn their first application for an ADVO or had had their first ADVO revoked. For example, Nerida said that she had an ADVO revoked after three months because her ex-partner’s father had told her that if she let her ex-partner "have his life back" he would personally make sure that he left her alone. However, if she didn’t then they "weren’t signing Jack in the Family Court." She felt that the fact that she had the initial ADVO revoked has reflected badly on her at other stages in court proceedings. Cath said that she applied to have an ADVO taken out on her first husband and he threatened her so much that she "just didn’t turn up for court." However, she did obtain an ADVO against her second husband. Kate commented that her husband talked her out of applying the first time; she felt sorry for him and withdrew her application. Helen said that the police continually failed to serve the order and eventually she couldn’t "stand it anymore" and had it revoked.

Contrary to suggestions sometimes made that ADVOs are too easy to obtain, many women we interviewed who eventually managed to obtain ADVOs had difficulties getting their orders. Twenty-three women commented on the process that they went through to get the orders and, of these, only four women said that they did not have any difficulties. Cath called the police in respect of an incident of violence and she was "that bad" that they took photos of her and rang her that evening to tell her to be in court the next day. They applied for the ADVO on her behalf and also charged her ex-partner with assault. Two of these women managed to get ADVOs by consent. Melanie had legal and support group assistance to obtain an ADVO against her ex-partner, but she then had difficulties in respect of the ADVO he had taken against her which left her locked out of her home.

The remainder of this section deals with difficulties the women reported experiencing in the process of obtaining an ADVO. Obviously the role of the police will be central in many cases to the process of applying for an ADVO. However, because their role is also crucial in a range of other matters such as enforcing ADVOs, prosecuting for criminal assault and offering advice and assistance we have chosen to deal with all policing matters in a separate section below.

Numerous Court Appearances The most striking feature of the stories of the 19 women who said that they had difficulties is the number of times they had to go to court to obtain their final ADVO. Eleven women specifically commented on this fact. Typically they described going to court on up to five or six occasions in respect of an order. Reasons for the many appearances included difficulties serving their ex-partner (either because of his unavailability or because of police procrastination) and their ex-partner not attending court. Some women were required to go back to court to change certain conditions, like the distance from the woman’s home, or to add third parties. For women who were juggling the demands of work and parenthood attending court so many times was an onerous burden.

Failure of Process The women also described numerous other difficulties in the process of getting orders. For example, Joyce said that she had obtained an interim ADVO the day after receiving a death threat but the next day her former partner "had the interim A[D]VO taken off". She said, "Right. Now you can’t do that. But he did it." That night he assaulted her and her daughter. Rebecca said that, after a series of phone calls to the police, she finally managed to persuade them to apply for an ADVO. However, she was led to believe that the order ‘was dropped’ after three days. Eventually this man kidnapped her and threatened her life and in consequence was in gaol at the time of the interview.

Megan’s application to extend an ADVO failed because her ex-partner hadn’t harassed her for the duration of the ADVO. This could have been interpreted as a case in which the order had actually worked to protect her but was instead construed as a situation where the perpetrator was no longer a danger. She said, "I don’t sleep much at night. I’m waiting for him to come knocking at my door because I know what he is like." She said that when he next ‘does something’ she planned to make another attempt to renew the order. Tina had the difficult experience of the police taking a week to serve the interim order, which really worried her because her ex partner had access to guns. Pauline said that her husband told her that when the police came to serve the order on him they apologised and had a drink with him. She said, "He’s such a charmer. He puts on such a nice act." Several women reported that it was a great disappointment that they were unable to include their children on their order, particularly when their ex partner had actually abused the children in the past. As discussed in Chapter One, since April 2000, the legislation in NSW permits a child to be listed on an ADVO sought by an adult with whom the child has a domestic relationship. It is not clear whether the experiences described by these women occurred before or after the introduction of this provision. Several women appear to have been told that to protect their children from their ex-partner’s violence they had to go to the Family Court. In fact that is not their only legal recourse. Police may act as complainants to seek an ADVO on behalf of a child.

Fear of the Perpetrator during Court Attendance and Court Support Schemes Several women spoke of their fear of attending court for ADVO proceedings. For instance Joyce described her experience in the following terms:

Several women spoke very positively of the support they received through court support schemes that operate at many of the local courts in NSW, and some indicated that they felt they would not have been able to go through with the matter in the absence of that support. For example, Cath described a very positive experience of attending court for an ADVO:

Susan went to court with a support person, but her ex-partner still intimidated her by handing her a bundle of papers, the top page of which was a newspaper article entitled "Forever in Fear: these women took out ADVOS and now they are dead". Nerida told of how a court support worker assisted by taking her to "the safe room" at the Local Court and sat with her but went on to describe how her ex-partner and his brother continued to intimidate her by pacing up and down outside. Several women commented that the Family Court should offer similar services.

Experiences of Chamber Magistrates As noted in Chapter One, there are two ways in which a woman may apply for an ADVO: the police may apply for one on her behalf or she may make an application herself at the local court (often referred to as a ‘private application’). The option of making a private application is sometimes an important choice for women who want to ‘do it themselves’ and not involve the police, and on other occasions it may be because the police have failed to initiate an application on their behalf. Some of the women we interviewed mentioned that the police had not taken action when called to a domestic incident but instead referred them to a chamber magistrate. If a woman makes a private application, often the chamber magistrate is the first person within the legal system that they come in contact with. Chamber Magistrates can be a vital resource for women in explaining the law and legal processes and in making referrals to other services.

While we did not specifically ask women about their experiences of Chamber Magistrates, several women raised the issue in their interviews. For instance Vivian had seen two different Chamber Magistrates and contrasted their approaches to her situation, describing the first as wonderful but the second as not so supportive.

Several professionals working in women’s services interviewed for the project confirmed that they frequently received referrals from the local Chamber Magistrate. In addition, a Family Court counsellor also provided positive comments about Chamber Magistrates in domestic violence matters.

Experiences of Local Magistrates in the ADVO Hearing What was striking in our study was the number of the women who specifically commented that they found the magistrate in the Local Court difficult or unhelpful when it came to determining their ADVO proceedings. For example, Tina commented that:

Claire commented that she wouldn’t give "two bob for" the first Local Court Magistrate she appeared before. She said that he seemed to think her ADVO was not important and kept interrupting proceedings to return to a drug case he was doing at the same time. It was "get the two of them out there and … sort it out and then come back into me." Anna said that the police tried to get her "an emergency ADVO" but the magistrate refused on the basis that the incident had taken place on Sunday at 5am and she didn’t go to the police station until Monday night. She felt morally judged and remarked that:

Anna eventually went to court again to try and get an order herself:

She commented that later the court assistance person said she was lucky to have obtained that order because that particular magistrate had "problems with these issues anyway." Sharon remarked that she obtained an interim order while staying with a girlfriend after she had left her home. However, the next time she appeared in court, along with her ex-partner, the magistrate "couldn’t see why he should be out of his home because it was half his house" and because she could not go back there she had to go into a refuge. Barb reported that the court decided that her supervised contact order "dealt with the situation."

A recent study by James Ptacek has noted the significance of judicial attitudes and demeanour on the outcomes and satisfaction of complainants in protection order matters. He found that for women who felt that the legal process and personnel were supportive, many "left the court with new resources that placed them in a better negotiating position with their partners or former partners….". In a similar vein, Justice Colleen Moore of the Family Court of Australia has argued that "[j]udges should be encouraged to examine the messages they unwittingly convey by their conduct during hearings in domestic violence cases."

Some of the professionals acknowledged that women seeking ADVOs could have very different experiences of the magistrate hearing their cases. Much depended on the attitudes of particular magistrates. This comment from a Family Court counsellor was fairly typical:

A number of the solicitors were concerned because many of the magistrates "speak in a way that [the clients] don’t understand", are "quite grumpy and ….really stroppy". However, these views were not universal. Some professionals were very positive about particular Magistrates or Local Courts where effective court support schemes were in place to support victims and efficient procedures had been introduced.

Numerous professionals specifically commented that magistrates were "very reluctant" to reduce the "rights" that fathers had to see their children. For example, a domestic violence worker who previously worked for a court support scheme commented that:

There is cause for concern if the issue of contact is being prioritised over the safety of the women and children. It is also of concern because parents in fact have no "rights" of contact in relation to their children under the Family Law Act 1975. As discussed in Chapter One, any rights of contact belong to the children and, even then, are subject to their best interests.

These comments by the professionals that we interviewed are corroborated to some extent by a recent survey of NSW Magistrates concerning domestic violence. The survey found marked variation in Magistrates’ responses to questions concerning domestic violence. One disturbing finding from the study was that 90 per cent agreed with the statement that "Apprehended Domestic Violence Orders are used by applicants in Family Court proceedings as a tactic to aid their case and deprive their partner from access to children", although one third did not think that this happened often. This concern that a desire to deprive fathers of contact is resulting in the abuse of ADVO proceedings is not supported by an empirical study of Family Law case profiles which concluded that there was strong support for the veracity of allegations of domestic violence in those Family Law cases.

The professionals we interviewed did express some understanding of the difficult position that Magistrates found themselves in: one of the solicitors commented that "dealing with the level of unrepresented clients, no wonder". The NSW Judicial Commission has also noted that proceedings for ADVOs produce more complaints than any other form of litigation and argued that

Cross Applications Little empirical evidence is available about the use of cross applications in ADVO proceedings but anecdotal evidence suggests that the practice is increasing, and that cross applications are being used by some perpetrators as a form of harassment, and/or as a tactic to undermine the credibility of the other party.

Cross-applications are sometimes made at a similar point in time and heard in the same proceedings, sometimes resulting in mutual orders (orders against both parties). Hunter and Stubbs have argued against the making of mutual orders unless both complaints disclose sufficient grounds for an order. They cite provisions in the Violence Against Women Act (US) 1994 which make this stipulation. Sometimes the cross-application is made at some later point in time. For instance, Katzen found that in each of the three cases in her sample in which a defendant sought an ADVO against his former female partner, they took this action after they themselves had been charged with a breach of an ADVO.

It was noteworthy that 12 of the women that we interviewed (30.0%) had had ADVO proceedings initiated against them by their ex-partners and in seven cases these applications had been successful. Many of these women commented that they felt that their partner was being dishonest or revengeful in initiating the orders. For example, Meena who was a police officer said that her ex partner knew that it would affect her career and also make her look bad in their future litigation. Teresa commented that her ex partner’s application against her was "tit for tat" and that he also tried to ‘put one on’ her 68 year old mother ‘who has only one knee cap’ and her sister in Queensland ‘who has only come to visit once or twice’.

A number of women had consented to ADVOs initiated by their ex partners in the hope that it would be effective in keeping their abusive partner away apparently without recognising that it may have negative consequences for themselves. Ellen, sadly, had failed to defend the application that her ex-partner was making because she was acting on the advice of her solicitor. She didn’t have the money to travel to the court where the complaint was to be heard and her solicitor advised her to save her money because it was not a criminal offence and she did not want to go anywhere near him anyway. Unfortunately her ex-partner then used the order he had obtained as part of a pattern of harassment against her. He rang different police stations in Sydney falsely alleging that she had broken the ADVO and she was obliged to go in each time and make statements: "I had to go to Eastwood police station, Blacktown police station, Castle Hill police station and Pennant Hills police station."

While professionals were not specifically asked about cross-applications, one did provide an example of poor policing resulting in an unjustified cross-application against a female client that was ultimately dismissed by the court with an order for costs made against the police.

Measuring the effectiveness of ADVOs is difficult. Women’s lives are complex and dynamic and research suggests that women use a range of different strategies to deal with domestic violence as their needs and circumstances change. ADVOs may be more useful at one point in time than at other times, or may work well in combination with some strategies but not others. Some perpetrators may respond well to having an ADVO while others may not. In some cases ADVOs may even exacerbate the situation. Research that has considered the outcomes of ADVOs simply in terms of whether the violence had ceased (specific deterrence) is inadequate since this is a static measure and because it cannot be assumed that this is the (sole) criterion that women themselves use to determine whether orders have been effective. For instance, Stubbs and Powell found that some women felt empowered by the knowledge that they had the right to seek protection. As evident from the women’s descriptions below, ADVOs may sometimes be judged as having been useful even in the face of ongoing violence, including breaches of the orders. The effectiveness of ADVOs also may be undermined by failures to enforce the orders.

Twenty-three women commented on the effectiveness of the order in preventing the violence. Seven of these women were reasonably happy with having an ADVO. Some had experienced the order as instrumental in stopping or decreasing the violence, although other strategies such as avoiding all contact and getting their ex partner charged with breach were also necessary to achieve this result. For example, Cath said that from the date that the ADVO was made there had been no violence because there had been no contact whatsoever. However, some women felt that the ADVO had some positive effects even where the violence had not ceased. We will comment further on this below.

By contrast 16 women who commented on the effectiveness of an ADVO were less positive. Some women said that it was completely useless, whilst others seemed to think that it had at least a limited effect.

A number of women said that their ex partners took no notice whatsoever of the order. For example, Hazel said that after she had got the order her former partner had come to her door, laughed in her face and said that he would come there whenever he wanted to. Carmen, who got an ADVO by consent, said that it was "hopeless":

Claire had had two ADVOs consecutively. She said that she felt that the first ADVO, while they were still living together, had made things worse. The ADVO had been made after an incident in which he had been charged with stalking and harassing her but he had been released ‘on section 556A’. She said that "[a]s a result he laughed about it and felt he got away with it. He took no notice of that ADVO." She says that, in spite of stalking her throughout the ADVO, he had only been charged with one breach and was not convicted. During the second ADVO, which was current at the time of the interview, she reported he still followed her but that there had been no breach – presumably by which she meant that there had been no violence.

Many women were not happy with the way that police responded to the breaches of the orders. For example, Vivian said that the ADVO was "not worth the paper it was written on" as it had been breached numerous times by her ex-partner and he had never been charged. Nerida said she would never apply for an ADVO again as "I might as well have a string of garlic around my neck." She said that the police had sought six orders on her behalf but had never taken action for breaches. Her former partner had breached the orders numerous times and she had reported the breaches to the police (at one point she had 000 on autodial) but nothing was done. Gina commented that the ADVO has "not really stopped anything"^. She had been to the police an estimated 20 times, but had found it difficult getting them to do anything about it. She reported that despite her frequent calls to the police, the first time he had been arrested for breach had been two weeks prior to the interview. Sandra commented that her ex partner had engaged in a number of breaches of the order but had only been charged once.

Of the 31 women who had ADVOs, 21 (67.7%) had reported breaches to the police and in 13 (61.9%) of those cases charges had been laid. A further two women indicated that the orders had been breached but not reported. Hazel said that this was because she was concerned about the possible effects on the children of police arresting their father and because he knew her address and might retaliate against her. A second woman did not report the breaches because she recognised that without a witness the breaches would be difficult to prove in court. In this case the woman’s solicitor wrote a letter to the defendant warning him not to breach the order again. In seven cases it was unclear whether the orders had been breached. In Nicole’s cases it is arguable that a breach had occurred, but since the ADVO did not specify a distance by which the defendant must stay clear of the woman’s property, police reportedly did not consider the defendant’s approach to her constituted a breach. She subsequently had the ADVO amended to specify an exact distance.

The fact that 13 out 21 reported cases resulted in charges for breach may appear to suggest that orders were enforced effectively. However, like the cases of Vivian, Gina, Sandra and Nerida described above, most of the women interviewed recounted repeated breaches of orders many of which were not acted on by police. Many women raised concerns about police failures to enforce breaches and these are discussed further below. Kim and Hazel had lodged formal complaints to the Ombudsman concerning poor police responses to their concerns. Our findings are consistent with research by Trimboli and Bonney, and Katzen, together with the report of the NSW Ombudsman that has demonstrated that the breach of ADVOs is relatively commonplace, and that police failure to take action on breach is a matter of ongoing concern and complaint. In this context it is disturbing to note that a survey of NSW Magistrates reports that all of the magistrates who responded thought that ADVOs were effective. Although the criterion used for gauging effectiveness was not specified, it is evident from Magistrates’ comments that they believed the incidence of breaches to be small.

Some women reported positive outcomes from the prosecution of a breach of an ADVO. For example, a woman who’d had great difficulties in getting police to charge her former partner with the breaches, reported a change in her former partner’s behaviour when he was charged despite the fact that the case did not lead to a conviction. Megan said that violence had decreased since her ex partner had been convicted and fined for a breach of an ADVO. Others were dissatisfied with the outcome. Reasons for dissatisfaction included the difficulty of proving that a breach had occurred, and what was perceived to be an inadequate sentence upon conviction. Hazel said that ADVOs are a waste of time because it is just his word against hers. She’d had two ADVOs. She reported that her ex partner breached an interim ADVO order and received a $100 good behaviour bond as a consequence. On another occasion he appealed against an ADVO and it had been dismissed. Teresa commented that her ADVO was "effective to a degree but not 100%". Her ex-partner had breached the order by following her on a train. She had reported it and he was charged but it was dismissed after she became confused in court about where they were sitting on the train. She said the magistrate did not take it seriously and there were no witnesses. Vivan described her difficulties having her ex partner charged after numerous breaches of the order. The police told her that she didn’t need to attend court. Her former partner pleaded not guilty and the matter was adjourned. On the next occasion she attended court but her partner did not. On a third occasion the police, who were the witnesses, did not appear. Her ex partner argued that it was just a coincidence that he was in her vicinity and the magistrate said "only you two know what really happened" and put him on a two year good behaviour bond without conviction. Anna’s ex-partner was charged with breaching an ADVO and found guilty because she had the evidence of eight messages on her answering machine saying that she was a ‘dumb Abo’ and that going to gaol would be worth it. He was fined $600, put on a good behaviour bond and told that if he did it again he might go to gaol. She said, "do I have to be killed and he might go to gaol? You know what I mean?"

Sandra commented that the ADVO had increased her former partner’s anger and violence to her and that it had "given him a lot more rights than me." She said that:

Moreover she had the impression that the ADVO against him prevented her from going to his place, even to have contact with her children as specified in the Family Court order.

Edwina was a woman who simply relocated jurisdictions to escape the violence and was too afraid of her ex partner to take any court action at all, including seeking an ADVO or contact with her children.

Some professionals acknowledged that there are cases where ADVOs could, in fact, inflame an already dangerous and volatile situation. For example, one Family Court counsellor noted with concern that:

Several women experienced problems arising out of the inconsistency between federal and state systems that affected the efficacy of their orders. For example, Gina explained that the Family Law Act 1975 has precedence over an ADVO so that every time she had taken her ADVO in to the police, they had said that it was not clear enough when considered in conjunction with the "Family Law papers". She disagreed with this view saying that the Family Court orders were specific but the police were still hesitant to arrest him. Hayley Katzen has found that police tended to avoid acting on the breach of an ADVO when there were Family Law issues involved. Helen was incorrectly advised about the effect of seeking a variation to an ADVO. In her diary entry she discussed going to the Local Court to obtain a variation to prevent her ex partner entering the villa complex at which she lived and how happy and secure she felt:

However, the next day the father attended her premises for contact. She wrote, "DREAD and heart racing I hear his truck come into the villa complex". She rang the police who attended and informed her that the Family Court contact order overrode the ADVO and that there was no breach. She later wrote:

Angela had particularly difficult jurisdictional issues as the father of her children lived across the State border. Although she had a NSW ADVO registered in other States/Territories, she commented that the NSW police would not question him or take action against him because he lived in another State. She suggested that like the Family Law Act, domestic violence laws should be a national as opposed to a state based system.

Sharon and Kim described their ex- partners getting around the order by getting third parties to abuse them or making threats to family and friends. One woman commented that she thought that harassment from third parties should automatically be included on the order. She said that everything has to be specified on the order or the police do not pay attention to it.

As noted above, some women reported that an ADVO had positive effects even where it did not stop the violence or harassment. For example, Delores described the ADVO as a "magical piece of paper that I just love so much" in spite of the fact that she lives life as a semi-recluse – keeping her circle of friends small, avoiding places her ex partner might go and making sure she has company in public – to minimise the continued harassment and stalking by him and his girlfriend. Dorothy expressed her belief in the value of an ADVO indirectly. Her ex partner had been convicted and fined for a breach of an order that had been made for her protection, and also had been convicted and gaoled for a breach of an ADVO made to protect another person. She expressed considerable fear about the fact that the last time she tried to renew her ADVO she was not permitted to do so and therefore is without one. She clearly took the view that there was some value in having an ADVO notwithstanding her ex partner’s history of having breached orders.

These women’s responses are rendered explicable by the research literature which demonstrates that for some women, seeking legal intervention such as protection orders has positive effects independently of the impact of the order on the offender’s behaviour. Ptacek found that:

He also found that "...the leverage they were able to gain through the threat of criminal sanctions was seen as beneficial; for many women standing up for their own rights offered its own rewards". Stubbs and Powell found that some women gained other benefits by having an order, such as concessions concerning finances or children, even if the order was not entirely successful in stopping violence. Fischer and Rose found that for many women, seeking a protection order was motivated by "a desire for external validation, a mechanism to communicate loudly and clearly that they were serious, and a public record of the abuse and their effort to stop it." They also report that some women then "dropped the order, feeling that they had obtained more control and they wanted to give their partner another chance." Women who "drop" orders or withdraw proceedings are often presented as not being serious about seeking assistance to deal with domestic violence, or as wasting police and court resources. Yet empirical studies such as those by Fischer and Rose, Ptacek, and Davies et al demonstrate that women actively seek to assess the risks they face and that these risks, and thus the strategies they see as potentially helpful to minimise the risks, may vary over time. "Dropping" orders for some may be a response to threats, or fear, while for others it may be a strategic move in ongoing negotiations with the defendant. We found a number of instances where this had occurred. As noted above, Nerida dropped her first order because her father in law had suggested that if she did they would be co-operative in Family Court proceedings and he would prevent his son from contacting her. Unfortunately she felt the fact that she had revoked this initial order was taken to undermine her credibility in claiming that there had been violence in subsequent proceedings.

The women we interviewed had very mixed experiences of the police. The overwhelming impression is that there is great variability in the police response to the phenomenon of domestic violence. A woman’s experiences thus may reflect the particular officer(s) she actually has dealings with and their skills and understandings. It might also depend on who she is or who the police judge her to be.

The variability of the police response is manifest in the stories told by different women. Some women, for example, had a positive experience resulting from the police taking charge and initiating proceedings for ADVOs. Other women were told by the police that it was up to them to go to court and take out orders. Rebecca was told this even though she had made it clear to the police that she was unable to leave her own house to get to court because her ex-partner was waiting for her outside the house and she was in fear of him.

Nineteen women specifically commented on their dealings with the police. Of these women, three had found the police consistently very helpful, nine had found the police consistently unhelpful and seven had found the police response helpful or unhelpful depending on which officer or station they were dealing with. Teresa who had mixed experiences of the police nonetheless found the victim support officer to be very helpful.

Women who had had difficult experiences with the police described problems that included: feeling that the police did not take them seriously unless and until a serious physical assault had occurred; having to practically harass the police to get help; the police failing to charge for breaches of ADVOs; the police identifying more with the violent ex partner than with the woman complainant; and, the women feeling judged by the police for being in the situation to begin with.

For example, it was common for women to say that they did not think that the police listened unless there was a major incident of physical violence or they witnessed something occurring themselves. Joyce commented that:

Megan remarked that the first people she went to about the domestic violence were the police and as a result of their response she was made to feel really stupid: "You know it was the kind of attitude. Unless you’re like beaten to a pulp [you are not taken seriously]."

As noted above, many women reported that police were reluctant to enforce breaches of ADVOs. For example, Sharon commented that the police "don’t want to know about it." She experienced numerous breaches of her ADVO and describes one night in which her ex partner was following her and the children:

Cath commented that she had given up on the police because they did nothing and yet the fact that she had called them always succeeded in aggravating the harassment by her former partner. Toni said that she called the police "every day" because he was breaching the ADVO and they would say "oh it’s not our matter." Nerida reported that her ex partner was never charged with breach of the ADVO even though the breaches were numerous and she reported every one. Sandra commented that if you come across as "a bitch or stern they don’t really want to help you. If you have one little conflict with them they get really defensive… I’m starting to learn how to play them." She described her former partner coming to her house several times but only being charged in respect of one of those incidents. At other times he has rung with death threats or had yelled abuse from the street and the police officer had refused to charge him on the basis that he had not done enough or that it was not that bad. She commented that much depends on the police officer you get on the night and added "I don’t care, I know my rights I have seen a magistrate now, I’ve seen [a] Legal Centre and they said that … he has to be charged."

Rebecca, who’d had positive and negative experiences with police, described a series of negative interactions with them that included: ringing the police so often that they told her not to ring them again; having her ex partner stand behind her in the police station but being told by an officer that they could do nothing about it because he was on public property (despite the fact that she had an ADVO); trying to get an escort from work when her former partner was waiting for her and the police refusing to help her; ringing the police to seek their assistance in getting an ADVO and being advised to go to court to get one even though her ex partner was on her door step and she was unable to get out of her front door. She also described an incident attended by police in which her ex partner had her on the ground and was kicking her and yet the police told her to get off the property and stay 500 metres away. She said:

Eventually her former partner kidnapped her with a knife and a gun, raped her, and held her hostage for seven hours. It was only the actions of one of her sons who went to the police station and refused to leave until they got her back that resulted in her rescue. Since this incident her former partner had been convicted and gaoled and the police reportedly have been ‘terrific.’

Some of the women made comments indicating that they felt that the police identified more with their ex partner than them, or that their ex partner used charm or other means to get the police on-side. For example, Delores said that the police had either made things worse or done nothing to help. She commented that it was very hard in a small country town if a police officer is good friends with the person that you have the ADVO out against. The police officer had kept telling her that she should move. She suggested that the police sympathised with her former partner as many of them were separated too. Hazel commented that her former partner, who was in gaol, was getting other people to ring her with death threats and she was told by the police that there was nothing they could do.

Finally, a number of women commented that they had felt judged by the police for their situation. For example Cath, speaking of police attitudes said:

Toni commented that some police were okay and some were not. She said that a police Domestic Violence Liaison Officer had said to her "to tell you the truth you are an idiot for staying with him." Nerida, who described 80 percent of the police as helpful, reported that one officer, who had arrived (belatedly) in response to an incident of domestic assault, had an attitude that was:

Anna, who said the police had arrested her former partner for breach of the ADVO after he left death threats on her answering machine, nonetheless was dissatisfied by police attitudes. She said she felt alienated in the police station because there were four police officers working in the room where her statement was taken and some of them were laughing at parts of it and she was left feeling as though she was being ‘the bitch’ or was the perpetrator rather than the victim. She felt that her story should have been taken in a private room.

One woman indicated that she had taken her complaints to the Local Area Commander and that she was pleased to learn that as an apparent consequence police had received training about domestic violence.

A few women seemed to be confused about the role of the police. For example, some of them clearly thought the police should be involved when the children were taken by their former partner or that they should enforce Family Court orders. In fact the police are agents of the criminal justice system rather than the family law system. It is thus the case that a recovery order is necessary before the police can reclaim children who have been abducted by a parent and Family Court orders for residence or contact are not otherwise enforceable by the police. It is also true that police sometimes face evidentiary problems when investigating breaches of ADVOs, especially where there are no witnesses and no other evidence.

The professionals also commented that police responses to domestic violence and breaches of ADVOs are mixed. For example, a Child and Family Worker with an Area Health Service commented:

A solicitor in private practice remarked:

The solicitor went on to explain that the police issued an application for an ADVO against the woman, but there was no evidence to support the order in court and the police eventually withdrew the summons and had costs awarded against them.

Some professionals were concerned that the violence was trivialised and considered a ‘domestic’ or ‘family matter’ by police. A co-ordinator of a women’s Domestic Violence Court Assistance Scheme commented:

Another solicitor’s exasperation with the lack of police action in regard to breaches of ADVOs is evident in the following comment.

They were also concerned that women may choose not to report breaches to the police in the future due to past unhelpful responses. However, a refuge worker suggested that police often faced difficulties in dealing with breaches due to the attitudes of magistrates:

The views presented above regarding problems in the policing of domestic violence are supported by the findings of several recent reports. For instance, Trimboli and Bonney also found evidence of an inconsistent response to domestic violence by police (and chamber magistrates), a diversity of practices in different locations, and marked differences in the satisfaction levels of complainants at different locations. The NSW Ombudsman raised concerns, inter alia, about police attitudes to domestic violence, failures to provide adequate victim support, delays or inaction in response to initial reports of domestic violence, failure to act on reported breaches of ADVOs or being dismissive of breaches that they perceived to be ‘minor’ or ‘technical’ breaches, and the failure to serve summonses or other documents. While the Ombudsman recommended changes to some procedures and systems, he also noted that many of these problems seemed to arise from non-compliance with aspects of legislation and standing operating procedures. The report noted that in the year 1997-98, the Office of the Ombudsman received 300 complaints related to the policing of domestic violence.

While concerns about the initial response by police to domestic violence calls are noted in the above studies, there also has been recognition of some improvements in police responses over time. However, police failures to act on the breach of ADVOs has been an enduring problem. Research conducted over two decades has demonstrated concerns by complainants and professionals alike that police too often do not act on reports of breaches of ADVOs. As noted above, Trimboli and Bonney found that almost 73 percent of reported breaches resulted in no action by police. Katzen’s study of breaches of ADVOs found evidence of the influence of non legal factors (background, situational, officers’ attitudes, organisational factors and rural issues) on police officers’ responses to breaches. She also found reason to question police recording practices that seem to overstate the effectiveness of police responses to breach.

Inadequate responses by police can jeopardise the safety of women and children, and may also influence women’s subsequent decision making in seeking help to deal with domestic violence. For instance, Trimboli and Bonney report that 9.5 percent of those who did not report breaches of ADVOs did not do so due to previous negative interactions with police. Police failure to act also may have ramifications in subsequent legal proceedings, for instance where courts fail to extend an ADVO because in the absence of a reported breach they see no evidence that the complainant should be fearful, or where the absence of charges against a defendant undermine a women’s claims in Family Law proceedings.

Two women indicated that they had sought an injunction under section 114 the Family Law Act 1975 in response to their ex-partner’s violence. Meena reported that she had sought the injunction to prevent her ex partner from attending the school and kindergarten of the children after she had received complaints from teachers that he was making a nuisance of himself. She also had an ADVO in place for her own protection. Susan had a section 114 injunction that she thought would protect her but the local police had failed to enforce it arguing that it was a federal police matter. They said that they would only act if violence actually occurs.

Nineteen (48.7%) of the women interviewed had used a refuge at some point (sometimes in addition to women’s support services), two had used women’s support services and two commented that they would have used refuges but were unable to get in, either because they were full or because she believed she was ineligible on the basis that she was no longer living with her violent ex-partner. The percentage of women in our sample who used refuges is not surprising given that we relied on refuges and women’s support services to refer many of our interviewees to us. This factor also may have affected how positively these services were reflected in our interviews with the various women.

The women who used refuges or women’s support services had found these overwhelmingly helpful. Nineteen commented positively or extremely positively about their experiences. Women specifically appreciated services such as: emergency accommodation, and assistance in finding permanent accommodation, assistance in obtaining Legal Aid, referrals to good solicitors, assistance in preparing documentation for the Family Court, information referral, including referral to culturally and linguistically appropriate social workers, assistance in obtaining an ADVO, pressure put on the police to enforce breaches of the ADVO, counselling and emotional support, courses on self-esteem or domestic violence, escorts to police stations, hospitals and court, testimony in court, follow up support after leaving the refuge, and physical assistance with contact changeover. One woman had a refuge worker testify in the final hearing about contact for her son but said that the court did not respect her views because she did not have a formal education. She was dissatisfied that the woman’s expertise wasn’t recognised.

Only two women who had used refuges did not have a positive experience. Bronwyn was asked to leave the first refuge after her son was bullied. She had a misunderstanding in the second refuge with another mother over parenting practices and felt blamed by the refuge worker. She was of Chinese background and the refuges she stayed at may not have been culturally appropriate. Sylvia said that she was "totally out of her element" and felt very alienated and alone with a small baby.

Several women commented on the assistance they received from other agencies. Court Assistance Scheme workers had assisted several women with information and support at court. Nurses who were conducting a routine screening program for domestic violence had referred one woman to a support service when she attended hospital for an unrelated matter. Another woman from a non-English speaking background also praised workers at a hospital for referring her to a refuge and to a social worker fluent in her language. Several women reported using community-based services such as Barnados, and Tresillian Family Care Centres. Some spoke of the value of friends and family in providing ongoing support and sometimes physical protection, while others spoke of their isolation in the absence of family or friends. Several women also acknowledged the strain that the violence and associated legal proceedings had caused for friends and family members. For instance, Anna said "It affected my work, it affected my family relationships that's why I don't have a family no more um it put a strain on my friends."

The interviews examined above suggest several areas for concern.

The first is the ready assumption among professionals that women can and do disclose their experiences of domestic violence. This is despite the fact that, when asked, all but one of the professionals suggested factors that might present obstacles to women’s disclosure. This finding has implications for future training and for the conduct of professional practice. It may also suggest the danger of professionals relying on self- disclosure as a means of screening cases for apparent risk factors.

A related concern arises from reports that women may feel constrained in their disclosures, and thus in their help seeking behaviours, by fears that DOCS might intervene with respect to the children, with the possibility that the children may be taken into care. We have no empirical data on the frequency with which children are taken into care in such circumstances. However, since several professionals reported that it was a key concern among their clients and several women had been reported to DOCS by their former partners, apparently as part of a pattern of abuse, it appears to be a significant issue. This suggests the need for community education and professional training about child protection policies with particular attention to the concerns of Aboriginal women. Given the legacy of the Stolen Generations it is hardly surprising that some Aboriginal women fear the legal system.

As discussed above, and despite the popular view that ADVOs are very easy to obtain, many of the women interviewed reported problems in seeking such orders and in having the orders enforced. Interviews with professionals substantiated the women’s stories. Among the ongoing concerns about ADVOs were: police attitudes and the variability in police practices; failures by some police to enforce orders; the number of times some women needed to attend court before an order was granted; the apparently frequent use of cross-applications for ADVOs against both parties; and concerns about some magistrates’ attitudes to domestic violence.

This chapter examines women’s accounts of their attempts to reach agreements concerning contact arrangements for their children. This includes their experiences of private forms of negotiation, forms of primary dispute resolution and the court process and the outcomes of negotiations. It also presents professionals’ accounts of those processes and associated factors such as mechanisms for screening domestic violence cases, and facilities intended to enhance the safety of participants where there has been domestic violence. The chapter also considers women’s attitudes towards contact.

Negotiations concerning residence, contact and the parenting of children are typically not a singular event but are more likely characterized as an ongoing set of processes. Where parties cannot reach amicable agreements they may need repeated recourse to the Family Law system as the needs and circumstances of the children and parents change, or as agreements reached are found to be unworkable. In addition, some parents have tried several forms of dispute resolution both inside and outside the legal system. The Family Court also offers, and sometimes requires, that parties engage with multiple forms of dispute resolution. Thus, many of the women interviewed for this study reported multiple attempts at negotiating these issues, they often had experience of several different forms of dispute resolution and their stories were sometimes quite complex.

The effect of women’s experiences of domestic violence on their capacity to negotiate residence and contact is a recurrent theme in this chapter. In each of the contexts considered below, private negotiation, primary dispute resolution and court adjudication, we found evidence that some women experienced genuine constraints on their capacity to negotiate freely and to assert their own interests and the interests of their children. Many of the professionals interviewed for the study provided responses that were consistent with the women’s accounts. While this evidence is elaborated throughout the chapter, it is important to highlight the issue at the outset as it has implications for our consideration of both the processes of dispute resolution and the outcomes.

Negotiations concerning contact also may be shaped by women’s attitudes to contact. Many of the women that we interviewed supported contact with the non-resident parent in principle. Of the thirty-seven women who commented on the value of contact, 15 (40.5%) thought that contact was a positive thing, ten (27.0%) were opposed to contact for their own children and 12 (32.4%) felt ambivalent about it. Four women commented that they had started out feeling very positive about the need for contact and had changed their minds about its value for their children as they had observed how it had worked and how it had affected their children in practice. The effects of contact on the women and children are examined in Chapter 5.

Women who supported contact for their children offered a number of reasons, some abstract and some particular to their own circumstances. These included: because the children love the contact parent, because it gave the resident parent a break, because the children need a father/mother figure, because the contact parent offers them things that the resident parent can’t, because, for example, the contact parent had family and the resident parent didn’t, because the contact parent is also their parent, and so that there is another adult in their life. Women commented that they held these views even though they personally preferred to have nothing to do with the father of their children. For instance, Cath said:

The majority of the women who opposed contact commented that this was because of the special circumstances of their case and stressed that each case needed to be assessed on the facts. Most emphasised the well being of the children and thought that contact was beneficial for the children only if they had a healthy or safe relationship with the contact parent. Reasons for suggesting that contact was not a good thing included: that it was not safe for the children, or for them, that it undermined the child, that it encouraged their sons to take on violent attitudes, that it otherwise psychologically damaged the children because of the abuse they had experienced, that the child did not want contact, that there were allegations that the father or another family member had abused the child, or other children, that the father did not show the child love and respect, and that the children were not looked after on contact. Some women were fearful that children might be abducted or not returned from contact visits.

Most professionals recognised that some women held fears for the safety of their children on contact. While one Family Court counsellor suggested that women’s fears were sometimes misplaced because "the struggle for somebody who has been abused is to be able to see that this person, in a different context, could relate differently, like for example, might be a lousy partner, might be a pretty good parent," this view was not universally held. For instance, a solicitor observed that it was extraordinary that

Thus, most women were not "implacably hostile" towards contact but rather sought to ensure that if contact occurred that their children were safe. These findings are consistent with recent research conducted in the UK.

Lawyers may be involved in various ways when parties negotiate contact, including: in private negotiation, in proceedings for protection orders in the Local Court jurisdiction and in relation to all forms of dispute resolution undertaken within the framework of the Family Law Act.

Our study suggests considerable variation in the responses of lawyers to the needs of women trying to negotiate contact/residence arrangements with violent ex-partners. Thirty-five women commented on their experiences with lawyers. Of these, 17 (48.6%) had a positive experience, nine (25.7%) had a uniformly bad experience, and nine (25.7%) had positive experiences of some lawyers and negative experiences of others.

Many lawyers were deemed to be effective advocates with characteristics such as: their willingness to listen to a client and validate her concerns, their practicality, efficiency, understanding, speed, accuracy in representing what clients wanted, and their ability to be tough and make a stand when "enough is enough". However, others were reported to be ill prepared legally, ill informed about domestic violence and unable to effectively or sensitively represent their clients. As a consequence, some of the women in our study describe being left feeling that their solicitors had damaged their cases.

The most commonly reported negative experiences were that lawyers did not have time for their clients, did not really listen to them, particularly in relation to their concerns for their children, or made concessions in court or in negotiations that did not represent their wishes and without consultation. For example, in two cases it was reported that lawyers failed to produce evidence of the violence in court, such as hospital records and photographs, despite having been informed about it. Rachel commented that lawyers "take charge and don’t really listen to what you want. They sometimes take the easier route and do what’s best for them and not for the person." Her lawyer tried to pressure her to allow the children to visit their father in America. He reportedly had been violent to the children and had not seen them for years. During negotiations with the other party her lawyer suggested that the children could go to America for two weeks instead of the suggested six but this was clearly against her wishes.

Six women said that lawyers had failed to appear or cancelled at the last minute, leaving their clients without legal representation or with representation by someone who knew nothing about their case. Seven women said that their lawyers had not provided them with key information about the law, what they were signing, or what their court orders meant. For example, Toni said she was dyslexic, could not read the orders and didn’t know what was going on, yet her solicitor had told her to "just sign them" and that if she did not she would lose Legal Aid. Two women reported a failure to refer clients to support services or in one case actively dissuading a client from seeking such support. For example, Vivian’s first lawyer told her not to accept help from a local women’s service as they were "all dykes" and would try and run her life. When she did seek help from them she found them extremely useful. Five women indicated that they had received bad or incompetent advice. Vivian’s first lawyer led her to believe that he had obtained an interim order on her behalf, but when they went to collect it they were both surprised to find that there was no record of it having been made. Diane clearly had been misinformed about the legal position. She had been told that the law required her to allow her ex partner contact. She was distressed about this as he had abused the child. Other negative experiences of lawyers included the perception that their lawyer was unsympathetic (reported by five women). Barb went so far as to say that her lawyer acted as though he was working for her husband.

Professionals’ views Fifteen professionals, including some lawyers, offered comments about lawyers and these were largely consistent with those of the women. They typically recognised wide variations in practices between lawyers. Some drew distinctions between lawyers, with a preference for lawyers with substantial family law background. Some had a list of preferred lawyers to whom they would refer clients but acknowledged concerns about other lawyers or some lawyers’ practices.

As noted in Chapter Three, one lawyer acknowledged that lawyers’ practices might sometimes hamper women’s attempts to communicate about the violence they have experienced. Other professionals interviewed also raised concerns that some lawyers did not listen to clients or did not follow instructions. In fact, one Family Court counsellor described saying to a client "look it’s what you want. Your solicitor is an advocate for you, he’s representing you, you’re not representing your solicitor". A related concern reported by a Family Court counsellor, two solicitors and a domestic violence counsellor was that clients felt that some lawyers did not have an adequate understanding of domestic violence and/or failed to take it seriously. However, three Family Court counsellors indicated that lawyers with substantial experience in the family law domain typically had a good understanding of domestic violence.

A Child and Family Worker with an Area Health Service illustrated her experiences with lawyers by reference to a particular client:

A significant concern raised by five professionals was that some clients felt pressured by lawyers to agree to contact arrangements that were not consistent with their wishes. For instance an accredited family law specialist in private practice commented:

The finding that some lawyers pressure clients into consenting to contact arrangements is consistent with recent empirical research concerning lawyers’ practices in Family Law. Rosemary Hunter concluded that "Australian family lawyers are very directive of their clients because of their adherence to the [Family Law] Act, which demands that they manage client needs very tightly. This raises the question of whether this practice overrides clients’ interests…".

Concerns that clients felt pressured into reaching agreements or consenting to orders also arose with respect to other professional groups working in Family Law and are discussed further below.

Lack of access to affordable legal assistance was a major problem for many of the women in this study. One third of the women who responded to questions about payment for legal advice were unable to get legal aid (11 women from 33 respondents, 33.3%). One-third had received legal aid for some matters but not others and the same proportion (including two who had been represented by the Aboriginal Legal Service) seem to have been fully funded by legal aid.

Many of those who were not fully funded by legal aid commented on the difficulties they had paying for legal representation. Joyce lost legal aid after she and her children moved in with her new partner. She felt that it was unfair that his income was considered in deciding whether or not she should get legal aid as they are not his children. Her comments have to be understood in light of the fact that her ex partner is a persistent litigant. At the time of the interview she was unrepresented when she attended court.

Dorothy said that she was unable to obtain legal aid when she sought to change unsuitable contact orders to protect her children but is now receiving legal aid in respect of the contempt charge she is defending for breaching her orders. This suggests that some women may face an invidious choice between trying to live with unworkable contact orders or the possibility of contempt proceedings for failing to honour contact orders.

Of course, a grant of legal aid did not necessarily ensure satisfactory outcomes. For example, Sylvia commented that her solicitor did the bare minimum because they were being paid so little by legal aid. She had to file her own documents in court and reapply continually for legal aid. She described feeling out of her depth and constantly terrified about what would happen to her if she was unsuccessful in her most recent application.

Professionals’ views There was clear consensus among the professionals who commented on the issue that legal aid funding was inadequate. Fifteen respondents from a diverse range of professional backgrounds said that it was becoming increasingly difficult for clients to get legal aid.

Two Family Court counsellors described the real difficulties that a woman who had experienced domestic violence might face representing herself in court. One said "I know the system and I'm fairly articulate and I wouldn't want to do it".

Another Family Court counsellor observed that legal aid cuts had negative consequences for the court:

Other problems arising from inadequate legal aid as reported by the professionals included: child representatives not being appointed in cases where they were necessary; counselors having to take on the role of preparing reports that should have been prepared by psychiatrists; women dropping actions where they had a good case but felt unable to represent themselves, especially where the other party had legal representation; people being forced into agreements at Legal Aid conferences; women conceding to unworkable contact arrangements that put them at further risk, or agreements by default; aid being withdrawn part way through proceedings with disastrous effects; cases not being taken back to court to vary orders despite good grounds; long delays in getting appointments for legal aid even in urgent cases; women being refused legal aid because they have access to property despite having no money at all; the risk of unqualified workers trying to help women prepare for appearing in court as unrepresented litigants; and the necessity to prove your case twice, once to the Legal Aid Commission and once in court. Several respondents raised concerns about in-house mediation or other forms of merit review used by the Legal Aid Commission and one solicitor described this as the commission ‘acting as judge’. One domestic violence worker was concerned that Aboriginal clients may find it particularly difficult to meet the rigid guidelines imposed for the grant of legal aid, or have their grants terminated for instance through failures to attend court or to give instructions. A further point raised by one solicitor was that the restrictions on funding for family law matters meant that the law was not being tested and thus not being changed.

The problems raised by both the women and professionals interviewed concerning the inadequacy of legal aid find support in the research literature. For instance, Rosemary Hunter concluded on the basis of empirical research on legal services in family law that:

Limited legal aid funding for Family Law proceedings is of great concern. Both the safety of the mother and the children’s wellbeing may be compromised by the absence of adequate legal representation. The best interests of the child(ren), which is such a fundamental concept in family law, is often dependent on the ability of their mother to safeguard them during the negotiation of residence and contact. It is obviously of particular importance that women who have been the targets of abuse are adequately supported to ensure that they are best able to promote their children’s wellbeing. It is also important that the law be tested.

Many parties attempt forms of private dispute resolution in order to arrive at contact agreements, although some also proceed to formal legal intervention. At the time of the interview eight women had arrived at their current arrangements for residence/contact through private negotiation exclusively (with or without the assistance of a lawyer). However, three of the eight had since made applications to formalise arrangements for residence or contact and these were currently before the Family Court.

Among those who had reached private agreements, only Rebecca reported that the arrangements were reached amicably and worked smoothly. Cath, who described the informal arrangements she had with her ex partner as working well now, had endured years of physical assault, threats at gunpoint, stalking and repeated harassing phone calls. In spite of this she had agreed to allow her former partner to have contact with the children because she had a strong belief that the children should have an ongoing relationship with their father and thus she would just "put up with the hassles". Edwina had no residence and no contact because of her fear of her former partner. She had had some occasional contact with her children in the past but no longer did so because her former partner had simply refused to allow it. Although she received legal advice about the options open to her, she was too afraid to take her former husband to court. Pauline had court orders concerning property but not for residence and contact. She said that "contact arrangements are whatever he wants or he gets annoyed… It is very hard to make arrangements when there is so much fear. I try not to upset him when making arrangements which means he gets what he wants".

Five professionals said that most Aboriginal clients were reluctant to go to the legal system, often out of fear that the system would not work in their interests or that they may even have their children taken away. One professional said that as a consequence, private arrangements made directly between the parties or through other family members were more common than legally sanctioned agreements for Aboriginal clients.

Thus the recourse to private forms of negotiation may reflect a lack of access to the formal legal system and/or fear of the possible repercussions of seeking external assistance rather than a positive choice by the parties. Further, a UK study found that informally arranged contact seemed to present the greatest risk to the child’s safety.

It also may be the case that where contact orders reached through agreement or by judicial determination do not work, women may be forced back into private forms of dispute resolution, especially where legal aid is not granted to seek the variation of orders or where parties feel disenchanted with the legal process. For instance, Rebecca, who had a private agreement with one former partner but consent orders with another, had found the consent orders to be unworkable. After two years of Family Court proceedings she had little respect for the formal legal process and felt that she had no option but to come to a private agreement with that former partner. He was sick of the court system as well and they came to a mutual agreement that was more convenient than the orders. Helen also had to renegotiate the terms of contact when her former partner decided that the consent order was no longer convenient.

As discussed in Chapter One, there is a range of possible dispute resolution mechanisms that a separated or divorced couple with children might be involved in within the Family Law process. The mode(s) of dispute resolution used may be chosen by parties in some cases, but also may be court ordered and will depend on the nature of the factors in dispute and the capacity of the parties to reach agreement.

The Family Court’s preference for primary dispute resolution is clear in the case management guidelines that require:

Parties are usually required to attend a group information session. Conciliation Counselling is available on a voluntary basis before or after matters are filed before the court, but may be required for some matters. Where there is domestic violence, policy generally requires that the normal processes are modified or alternative processes offered. There are also special procedures for matters in which child abuse allegations have been raised. Where there are property issues in dispute, Conciliation Conferences conducted by Deputy Registrars of the court are usually compulsory. Where there are concerns about family violence, parties can be seen separately and in some cases conciliation may be seen as inappropriate. While matters concerning disputes about children normally involve mediation, where family violence is an issue the court recognises that "mediation will normally be regarded as inappropriate." Directions Hearings can be undertaken with each party separately, or only with the lawyers.

Counsellors may have a number of roles in the Family Law process. Current practice requires Case Conferences to be held when matters are first initiated before the court. For children’s matters these are conducted by counsellors and may be held with both parties together or separately. Courts may order Family Reports to be prepared by the court counsellors. Mediation for children’s matters is typically conducted by Family Court mediators some of whom are counsellors. Counsellors are also involved in Directions Hearings concerning children’s matters. The multiple roles of Family Court counsellors may have contributed to some apparent confusion by women interviewed in this study as to whether they had experienced counselling or mediation or another process (see further below). In addition, some women and children had apparently had counselling by other agencies outside the Family Court. In the section that follows the comments concerning counsellors also incorporate some references to counsellors preparing Family Reports for the court, although this is not strictly speaking a form of dispute resolution.

Twenty five women (62.5%) said that they had used counselling in order to resolve their family law dispute at some point, because a counsellor was involved in producing a Family Report for the court or because they had conciliation or relationship counselling.

Overwhelmingly, the experience was described by women as negative and/or unsuccessful. Only Nerida described counselling as a wholly positive experience and expressed complete satisfaction with her counsellor. She had counselling in a separate session as she feared being in the same room as her former partner. The counsellor had prepared a report for the court and had recommended that if her former partner was awarded contact then it should be highly supervised in a contact centre. Nerida felt that the counsellor had addressed her concerns. However, other women had found aspects of counselling to be valuable, although they may have also criticised parts of the experience. For example, some women felt validated because counsellors had seen their former partner’s intimidating behaviour. Thus Tina commented that she no longer felt crazy and Vivian said that it resulted in help for her daughter.

Only six women who’d had counselling (24%) mentioned that they had separate sessions to avoid being in the same room as their former partner. Five of these six cases resulted in court adjudicated orders and the sixth resulted in a private agreement. Two others said that they’d had separate sessions in addition to an unsuccessful joint session – described by one as a "slinging match" and the other as one in which she felt "unsafe" and "couldn’t get a word in". Both of these cases resulted in consent orders. In addition, Alison and Delores each had their counselling sessions over the phone. Ellen remarked that she had asked for separate sessions but ended up doing joint counselling. No agreement was reached and the matter went to a court hearing that resulted in residence being awarded to the father.

Five women who had joint sessions specifically commented that they felt unsafe or intimidated. For example, Melanie said that the court did not understand that her former partner was stronger than she was and that no steps were taken to ensure her safety or that of her child. She said that the child was crying and had lied in the session because he wanted to please his father with whom he was living. Helen described the compulsory counselling as "just a continuation of his abuse all the way through." On the eve of the court hearing her ex partner agreed to contact orders. These findings suggest that counsellors might not be as vigilant as they could be in making the option of separate sessions available to women who have experienced partnership violence.

Many women reported a negative experience of counsellors. Some women commented that they believed the counsellor was not really interested in the issues and just wanted to dispose of the case, that the counsellor did not read the documents or had not acquainted themselves with the background to the case, or that the counsellor put them under pressure to make instantaneous decisions about matters they needed time to think about. Six women said that they didn’t feel believed or listened to by the counsellor. Vivian had experienced counselling in both private settings and with the Family Court. She was dissatisfied with her private counsellor who had left the parties together to "work it out" as he left for another appointment when "the whole point [was that] we were going to see him because we couldn’t work it out."

Several women commented that the counsellor had a starting position that contact was in the children’s best interests. For example, Dorothy reported that the counsellor kept saying that the father has a right to contact and insisting on overnight contact. She commented that the father was a very violent person and yet the "counsellor tried to make you feel like you should do this for the kids – the kids have to have contact with their father, no matter what he’s like." Some women said that their counsellor came to the session with pre-conceived assumptions about the case that prevented them from responding to the facts or to the children’s welfare accurately. For example, Joyce, who had an extremely litigious ex-partner, said that their counsellor just assumed that "with three boxes of family matters" they both had a problem – she felt "tarred with the same brush" as her former partner. Marcia was left with the impression that the male counsellors and the father were starting from the position that because she was a woman she would not be equipped to bring up sons.

Some women felt that their counsellor appeared to side with their former partner, either because he had his session first, or because he presented in a calmer and more collected way than they were able to. For example, Ellen said that the counsellor (who was preparing a Family Report) did not ask her any questions about her life style as he had already got the information from her former partner who had his session first. She was astonished to read that the report said that either parent would be suited to take the children but that because the former partner was a school teacher their education was likely to be better with him whereas their life with her would be more exciting but volatile. She did not know how he had reached that conclusion. Marcia said that her former partner was very charming in public and that by comparison she seemed like "the one with the problems." She felt that as a consequence she was not believed.

Other women were concerned that an arrangement arrived at in a counselling session was not binding or that the father wouldn’t comply. For example, Pauline said that her former partner agreed in counselling to stop pressuring the oldest son to continue seeing him but he hadn’t complied. He had screamed at the children "I pay for you so you have to see me." Delores described the father changing his mind about returning the children to her in the two hours it took her to drive home.

A number of the women for whom a counsellor was writing a Family Report for the court were extremely unhappy that counsellors were making decisions about the children based on apparently limited evidence. Megan said that the counsellor did not pick up on any of the daughter’s fear of her father (whom she also loved) and the effect on the child of domestic violence and having been abducted.

Professionals’ views Not surprisingly, the professionals with the most to say about counselling were those who worked as counsellors with the Family Court (n=7). However, their responses were not uniform.

Six of the seven counsellors indicated that they were aware of policies to offer separate counselling where there had been domestic violence. However, there were differences in how the policy was interpreted.

Some counsellors were uncomfortable with the policy or saw it as working against best clinical practice. For example, two Family Court counsellors indicated that they had a clear preference for joint counselling. One of these counsellors acknowledged that there was a policy to see couples separately wherever they requested a separate appointment, but argued that joint counselling often served the children’s interests and offered a wonderful opportunity to resolve issues. This counsellor gave the example of a forthcoming case in which a woman didn’t want to have to speak to her former partner. The counsellor had encouraged joint counselling because they considered that the man wouldn’t believe that the relationship was over unless he heard it from his former partner. The counsellor said that the woman had an "exemption" in the ADVO that would allow her to attend the joint counselling. This counsellor also said that practice had changed in that previously where people sought separate appointments that was respected but that "now we ask questions and … We actually put more pressure on people to try to resolve their disputes even if there is violence."

Three Family Court counsellors said that joint counselling would occur if the counsellor thought it appropriate, the couple agreed and it wasn’t precluded by the terms of an ADVO.

Another Family Court counsellor disagreed with these accounts and stressed that if there was an ADVO in place, whatever the terms, counselling was always separate, even where the couple didn’t mind joint counselling.

Family Court counsellors also differed in their assessments of the procedures in place to screen cases for domestic violence. One Family Court counsellor indicated that, unlike mediation, there was no structured intake for counselling. Another said that bookings were taken by clerical staff , and that joint counselling might occur where parties failed to disclose domestic violence when making their booking. Others seemed confident that effective screening was in place.

Other practices described by counsellors to ensure the safety of participants in counselling included: asking the victim to come at some time ‘other than the usual time’, asking the victim to attend ten or 15 minutes before the other party and then allowing her to leave first, having security and/or the Federal Police on notice in extreme cases, and having women escorted to their cars by security guards.

The diversity of responses by Family Court counsellors concerning the handling of domestic violence cases was somewhat unexpected. Other professional groups often assume that the Family Court has effective safeguards in place to protect clients who have experienced domestic violence, including screening and a policy discouraging joint counselling. Recent research by Rosemary Hunter, for example, found reason to be confident in Family Court practices. She concluded that, although cases involving allegations of domestic violence and or child abuse were more likely than other cases to involve Family Court counselling, the use of separate counselling sessions within the Family Court gave reason to be confident in the screening mechanisms in place to identify domestic violence. Yet the accounts of Family Court counsellors described above suggest that screening is not uniformly conducted and that separate sessions are not necessarily used for domestic violence matters. These accounts also raise some questions about what is called separate counselling. For instance, is seeing one party whilst the other party is in the waiting room, or offering a phone hook up really separate? Do such practices respond adequately to women’s fears and the risks to their safety? Moreover, is the common practice within the local court of making ADVOs subject to exceptions for Family Court counselling adequately responding to safety concerns? These issues may be worthy of further research.

Some professionals commented more directly on the likely benefits of counselling for victims of domestic violence. These included having their experiences validated and being offered support in standing up to their abusive former partner. For example, a Family Court counsellor said:

Another counsellor suggested that counselling could be helpful in

By contrast, some respondents reported that clients sometimes felt pressured by Family Court counsellors to reach an agreement, or even to reconcile with an abusive partner for the sake of the children. One of the Family Court counsellors, in fact, raised concerns that they were failing clients due to the pressures to "settle sooner and sooner":

This counsellor felt that those women most likely to be disadvantaged were those who were ground down by events and were willing to "sign anything to get rid of the bastard". Similarly a solicitor reported that:

A refuge worker was concerned that not all counsellors understood the dynamics of domestic violence and that violent men would not comply with the agreements reached in counselling. Three Family Court counsellors also conceded that they typically received little or no feedback from clients and thus had no systematic way of monitoring client satisfaction or case outcomes.

The fact that counselling was commonly court ordered but that many of the women who had counselling found the experience to be stressful, frightening and/or ineffective, raises concern. This, taken together with the differences in practice for domestic violence cases outlined above by Family Court counsellors, suggests that there is a need to question whether adequate safeguards are in place within the Court’s counselling services to ensure that counselling is safe for participants.

As noted in Chapter One, the dominant view would seem to be that in the majority of cases involving a history of family violence, mediation is not an appropriate form of dispute resolution. This is because of the power imbalances that are likely to characterise such relationships and that make equitable negotiation impossible. In fact, it has been said that "the bottom line is that the components of mediation that are critical to its effectiveness are wholly absent when considered in the context of abusive relationships." In spite of this, nine of the 40 women we interviewed (22.5%) said that there had been some attempt at mediation in their case.

Five of the nine women who had attempted mediation indicated that it had not continued to an outcome because their former partner had refused to co-operate, or because the mediator drew a halt. For example, Tina said that the mediator spent 45 minutes with her former partner and then said that it wasn’t going to work since he wasn’t willing to compromise at all. Susan also remarked that as her former partner was non-negotiable there was no negotiation process. He seemed to just want to force his point of view regardless of her feelings or those of the children.

The women who had had mediation expressed similar concerns to the women who had joint counselling. These included feeling unsafe, feeling pressured to make decisions, and feeling pressured to allow the children contact with the other parent. For example, Susan reported that "I never really felt safe because I felt that what I had said during the [mediation] process um at times when [her ex partner] was present would affect my safety." Marcia felt as though the mediators expected her to make spur of the moment decisions without adequate information. She refused to make decisions around the property without her ex partner producing documents or information about matters such as his superannuation entitlements and felt that this "peeved" the mediators. Sylvia thought that the registrar was inexperienced and took his lead from the counsellor who seemed to be only interested in the child having contact with the father. She got the impression that they thought she was being nasty when she was simply trying to ensure that her child was safe since the child’s father was an alcoholic.

Professionals’ views A number of professionals were strongly sceptical about the appropriateness of mediation in domestic violence cases. Two refuge workers doubted the capacity of some women to reach a negotiated settlement when they had never been able to negotiate anything in their relationship and, in a similar vein, a Child and Family Worker commented that in most cases mediation fails because women are "in no fit state to handle it". This worker went on to say that where an agreement was reached that wasn’t legally binding, women often did not have the energy to pursue the matter further. A refuge worker was also sceptical about the likelihood that agreement reached in mediation would be honoured by any man who had a history of violence against his partner. In addition, this worker suggested that the requirement for mediators to be neutral was difficult for some clients who interpreted this as lack of support, or saw the mediator as taking the other side.

On the other hand one Family Court counsellor described cases in which mediation might be suitable as including where the violence had happened long ago, the relationship was new, or the woman felt well able to assert herself.

Several professionals interviewed referred to the screening mechanisms in place to keep domestic violence cases out of mediation and seemed to assume that domestic violence matters were not being mediated. Nonetheless, it was acknowledged by two Family Court counsellors that some cases were mediated either because they had slipped through the screening process or because they had been judged by mediators to be cases suitable for mediation.

A Family Court counsellor also reported that they had received some complaints from clients about mediation conducted outside the Family Court. These complaints were that people felt pressured to reach an agreement, or were made to feel guilty if after four or five hours they had not reached an agreement: "somehow they had to do the mediator a favour by coming to agreement." Further, the counsellor was concerned that agreements reached in mediation sometimes did not last, or that nothing was really resolved. This counsellor also reported having had two cases in which clients saw external mediators from Christian agencies where the prevailing expectation had been that the parties should reconcile.

Rosemary Hunter’s research on legal services in family law also notes scepticism by solicitors about the use of private mediation services, that is, services provided outside the Family Court. These concerns included a concern about cases being mediated in spite of severe power imbalances, a lack of confidence in the abilities of mediators, and an experience that the agreements reached in mediation were sometimes unworkable, unenforceable or even "bizarre." Research conducted in the United Kingdom concerning court welfare officers and voluntary sector mediators has demonstrated a similar range of concerns.

Different practices among court welfare and voluntary sector mediators have been found to be linked with their definitions and understandings of domestic violence. Hester et al found that court welfare officers were more likely to recognise that violence was predominantly directed by men towards women, whereas voluntary sector mediators were very likely to understand domestic violence as mutual violence. Those who adopted a mutual violence analysis were less likely to adopt a safety oriented approach, more likely to pursue mediation and more likely to consider that being fair to parties required them to be neutral in their dealings with the parties.

The present study is too small to be definitive but may suggest that the different practices described by professionals and especially Family Court counsellors, some of whom are mediators, may reflect different underlying understandings of domestic violence held by those professionals. This may be worthy of further research.

Fifteen women had contact orders made by a court after an interim or final hearing. Several other women also had some experience of the courtroom arising from previous applications, directions hearings or because their matters were part heard when consent orders were agreed to between the parties.

Most women were critical of the court process and felt that it did not invite communication. Some felt disempowered by factors such as the fact that solicitors spoke on their behalf in court, the difficult language used in court documents, that the court didn’t ask them how they felt or what was really happening, that the judge didn’t appear to be listening, that the judge only appeared to ever read the first two pages of what was in front of him, that there wasn’t enough time to go into things, and that the process was pompous and unnecessarily belittling. A number of women commented that the court was not really interested in knowing what was going on, or genuinely resolving the problem, it just wanted to quickly dispose of the case. Some women said that they did not understand what was going on. For two women this was because they had refused an interpreter, thinking they would understand or not wanting to waste the taxpayer’s money, and then found that they did not understand formal or legal English. A number of women found the experience intensely frustrating because their ex partner had lied in the affidavits before the court, or their lawyer had not done them justice in respect of their affidavits and therefore the court was making decisions on the basis of incomplete or erroneous information. Some said they couldn’t understand the court orders as they were very long and were not explained to them. Nerida said that she was very intimidated by having her former partner in the courtroom. She felt that he had appeared to the court as an honest, positive member of society, while because of her fear she must have seemed a bit of a mess, paranoid, and with not really credible. She could not even form sentences and the judge seemed to imply that she was just "blithering" or "whingeing".

Few women drew distinctions between interim hearings and final hearings in their comments. It is possible that some women were not fully aware of the constraints under which interim hearings are held and had expectations of having a fuller opportunity for giving evidence and for argumentation before the judge than an interim hearing provides. If that is the case these comments suggest that some women were not adequately informed about the court process.

Several women described the process of going to court as aggravating the situation. For example, Sandra clearly regretted taking the matter to court as her former partner had warned her that if she did so he would make her life a living hell. Although she had consent orders that gave her the right to have contact, she was prevented from seeing her children and wondered if she had not gone to court whether the outcome would have been different. On the other hand some of the women said that being in court was preferable to private negotiation. For example, Carmen also had consent orders. She said that if it had only been herself and her former partner making the arrangements without the court or the solicitors it would not have been amicable, but because it was a situation where he couldn’t speak directly to her, he didn’t cause any fuss.

Professionals’ views Few professionals offered comments specifically about their clients’ courtroom experiences. Since Family Court counsellors typically estimated that most matters they dealt with were resolved through consent orders it is perhaps not surprising that they had little to say about the actual court process.

However, a Child and Family Worker with an Area Health Service talked about women’s fears of going to court in these terms:

A solicitor who had formerly worked in a service with a large number of Aboriginal clients reported that Aboriginal clients were typically very fearful of going to court, and, despite having had little or no experience of the Family Court, clients saw it as "just court and it's white fellas and it's you know it’s a white system." They reported that Indigenous clients were particularly fearful that the court would take their children away from them. This solicitor was also critical of the absence of support service for Indigenous clients within the Family Court and drew a negative comparison with areas such as policing, housing or the Department of Community Services in which special Aboriginal support workers were employed.

Six of the women in our study appear to have experienced the dispute resolution process as a form of harassment. These women had very litigious ex partners. For example, Joyce commented that her ex partner had made 29 applications to the Family Court in three years. He had threatened at the beginning of proceedings that he would drag her into court every day of the week until he got what he wanted. Kim said that she had been in court every two months since separation and that her former partner would bring her to court so that he could see her.

Meena’s case illustrates that the court process can be used, and certainly experienced by parties, as a form of abuse. Other studies have also found that forms of dispute resolution may be used as a means of abuse and control. That is, the numerous applications are motivated by a determination to exercise power over their former partner and the children, or used as a means of harassing their ex partner. Research also illustrates that courts themselves can be bullied by abusive partners. Ruth Busch has written compellingly about courts attempts to appease violent men by entertaining their applications and acceding to their requests.

Professionals’ views Interviewers did not explicitly ask research subjects about the use of dispute resolution processes as a means of furthering abuse. However, six professionals (27%), including solicitors, a refuge worker and Family Court counsellors, raised concerns about violent men who used negotiations for contact, or legal proceedings concerning the children as forms of abuse (this is distinct from violence or abuse occurring during contact negotiations as discussed below, or violence during contact changeover which is discussed further in Chapter Five). They referred to repeated applications made by one party as a means of harassing their former partner, for example, men ‘fighting tooth and nail’ for contact but then failing to exercise that right. A solicitor argued that "it’s just a sense of power and control … it’s not about contact invariably…" A Family Court counsellor commented that abusive partners sometimes exploited the legal process by pushing matters through quickly before a woman had the time to recover sufficiently from the effects of domestic violence to be able to protect her own interests and those of her children.

Women commonly described being very afraid during the process of negotiating contact and residence arrangements privately or through the court, some to the point of fearing for their life or for the lives of their children. For example, Nicole said that she did not feel safe anywhere because no matter what precautions are taken there is nothing they can do to protect you from a person like that – "If they want to get you they will get you." Pauline commented that it was hard to make arrangements when she was in so much fear. As noted in Chapter Two, Edwina experienced such fear that she did not even embark on the negotiation process but simply let her ex partner have residence.

Several women reported that their ex partner had reported them to the Department of Community Services (DOCS) making unfounded allegations that they were an inadequate or abusive mother, or had threatened to do so, as a form of harassment or in an attempt to gain some leverage in negotiations.

Sixteen women commented that they found it extremely intimidating to be in the same room as the father of the children, either during proceedings, or in the foyer or waiting room before the dispute resolution process started, or afterwards. Some of these women had ex-partners who took advantage of the fact that they were both required to be present in order to be intimidating.

Nine women described their ex-partners’ behaviour as going beyond intimidation during this time and amounting to active harassment or abuse. For example, Nicole said that her former partner made hand gestures to her during proceedings indicating what he was going to do to her, but no one seeing them would have known what they were about. Rebecca said that her former partner had managed to smuggle a gun into and out of the Family Court. Women describe being stalked, obstructed, assaulted, and verbally abused before or after proceedings and being tailgated on the way home. Nerida said that at the court "[h]e and his brother were walking around in circles like dogs waiting to eat you."

Women had mixed experiences of the safety procedures in the local court and the Family Court. A number of these women said that they were not aware of precautions taken to secure their safety, or if precautions were taken they were not adequate. For example, Nerida commented that at the Local Court there was a separate room but she did not feel safe as it was "staffed by ladies" and there was "some weasly police man down the other side of the court house." At the Family Court there were separate rooms but they were not staffed and there was no one to help her or escort her to her car. She says that at one point she hid behind the tea lady for protection. Anna felt very unsafe at the Local Court when applying for an ADVO in spite of the fact that there was a woman there whose hand she held throughout and who walked her to work afterwards. At the Family Court she said that there was no one to hold your hand or tell you what to do. She had no escorts – she entered and left alone – she feared for her life and was not aware of steps taken to ensure her safety.

Several women commented that the safety procedures were as good as they could be but the problem was that nothing was fool proof. For example, Meena said that "[i]t’s just a fact of life that you’re going to court and you’ve got to be in the same room as the other person and you don’t know what they are going to do."

Other women described being happy with the efforts that were made to protect them from their former partner or at least said that they had helped. For example, Hazel said that she rang before going to the Family Court and had been put in a separate room that was always locked and then had been asked to wait after proceedings until her former partner had gone. There was someone with her at all points in time, although the overall experience was still frightening.

Interestingly several women commented that the perpetrator used the safety procedures that were available at the court. For example, Ellen said that her former partner used to sit in the safety room at the court and "used every safety issue there was." She commented that "someone that plays the system has got to be looked at because what he did to me I think any man could sort of get away with to some degree."

Professionals’ views The majority of professionals were aware that harassment, violence or other forms of abuse occurred during contact negotiations. However, they differed in their estimates of how commonly this occurred. A Family Court counsellor suggested that such abuse happened "probably a lot more regularly than what we’d be willing to admit" and a solicitor in private practice agreed that it happened fairly frequently. By contrast another Family Court counsellor estimated that it didn’t happen very often.

Nine professionals gave examples of forms of abuse that sometimes occur during contact negotiations or counselling sessions including: trashing cars, hanging around outside windows, abusive phone calls or messages left on answering machines, veiled threats and threats to kill the woman, the children or threats of suicide; emotional abuse; following the woman home; making references to other cases in which fathers had killed wives or children; threats to take the children; property damage; and the withholding of property. A women’s refuge worker reported that in one case a father had disagreed with the way that the negotiations were proceeding and had lashed out at his former partner’s face during the session. Another refuge worker reported having had a client attacked with a knife by her former partner outside a Local Court. One Family Court counsellor indicated that sometimes a father’s displeasure about the way negotiations were proceeding would be taken out on the children, and that the counsellor had sometimes feared for the children’s safety.

Several professionals also addressed strategies used to keep parties safe while in the Family Court. For instance, a Family Court counsellor expressed reservations about the ‘safe room’ in the court, which they said was hardly ever used. This counsellor said that to use the safe room risked labelling the person, and might be counter productive and reinforce their anxiety. A Child and Family Worker doubted the success of strategies designed to achieve a physical separation of the parties before and after Family Court counselling because in her experience parties would come into contact in the court area.

Several women did not like the fact that the court failed to set limits on the process. In some instances, as noted above, this was because the father was extremely litigious and the failure to set limits on the process meant a great deal of expense and inconvenience as well as the trauma of continuously revisiting events. For other women, they wanted some point at which the case was finally resolved and could not be revisited. Of course this is not a simple matter and women too need the prospect to appeal or to bring applications to vary an order.

Three women commented on the value of continuity with professionals. Joyce, whose ex partner was continually taking her to court, talked of the value of having just one judge manage the file. She said that in ongoing violent relationships patterns emerge which can only be appreciated and appropriately dealt with if one person is managing the file:

Interestingly, some women described going to court repeatedly or without any real resolution because the father did not show up. For example, Vivian went to the Family Court eight times without her former partner appearing and so the matter was adjourned. When a second application was made she went to court at least 12 times. Megan ended up with an order from the Family Court for "such contact as agreed upon between the parties" as her former partner repeatedly failed to appear and the judge did not think it was fair to make a more restrictive order in his absence. She commented that this was an ideal result for the father as he is a "master at manipulation" and the order is a perfect opportunity for him to ring her and threaten her and "carry on" in spite of the ADVO.

A number of the women who describe proceedings being continually adjourned spoke of the costs of endlessly showing up: travelling time, child care, and money (for example, that they had to pay their solicitor for the day for nothing). Delores said that the matter in her case was not heard until the third day and she had to wait from 9 a.m. to 5 p.m. on each of the first two days. Each time it took her three hours to drive to court and she had to put the children in childcare all day. She left home at 5.30 a.m. and arrived home at 9 or 10 p.m.

As noted in Chapter Three most of the women in our sample were involved in matters before State courts (usually seeking a protection order under State legislation) in addition to their negotiations over residence and contact for the children within a federal court framework. At least three women also had been involved in court proceedings concerning child protection issues – two in Children’s Court proceedings brought by DOCS and one in a police action for an ADVO for her child.

A number of women were frustrated and dismayed by the fact that they had proceedings in more than one court. Some women described finding matters removed from the Local Court to the Family Court, or different aspects of the dispute running in several courts. In some cases orders made in one court did not appear to be respected in another court. For example, Rebecca said:

Vivian thought that she had residence orders made by the Local Court until she went to pick them up and found that none had been made. On the second occasion that she attended the Local Court she found that everything had been transferred to the Family Court. She said that she wanted to cancel the proceedings then and start again and was told that she couldn’t. She got so upset and angry that the Chamber Magistrate accused her of harassing court staff. She had been making agreements on the basis that she had certain orders and the agreements weren’t valid without the orders.

A number of women talked not only about being in multiple courts but the difficulty of dealing with domestic violence in one forum and family law matters in another. For example, Gina said that her ADVO says that the contact parent is not to approach her except in accordance with the Family Court orders. The police kept telling her that her ADVO was not clear enough when read in conjunction with the Family Court papers and they were therefore reluctant to arrest the perpetrator when he made contact with her.

At the time of the interviews none of the respondents had experience with the newly established Federal Magistrates Service. However, a number of respondents did offer comments concerning differences that they discerned between the practices of the Family Court and the local courts exercising jurisdiction under the Family Law Act. It should be noted that each local court is probably quite a distinct entity so any comments do not necessarily apply to all local courts.

A court assistance scheme worker and a Family Court counsellor both raised concerns that local courts did not have the time or the expertise to give careful consideration to family law matters. Two other Family Court counsellors suggested that local courts varied considerably in their response to family law issues. One said that the courts were more chaotic and not as safe for women. The other felt that there had been some backlash against domestic violence in the local courts, as indicated by some "appalling decisions".

However, these views were not universally held. For instance, a women’s support worker indicated that she much preferred to accompany clients to the local court because there were less formalities and she had a clear idea of how things were done in the particular court she had experience of. She was satisfied with the manner in which it dealt with family law matters. A Family Court counsellor also offered high praise for a particular local court which, despite a heavy load of ADVOs and Family Law matters and the professional staff being "worked like dogs", had a great court support scheme and everything "worked like clockwork".

Nine women raised particular concerns arising from allegations of physical and or sexual abuse of a child or children. In eight of these cases abuse had been reported to DOCS, and in the remaining case the mother was planning to report the matter. Concerns included the perceived failures by DOCS to take action, the Family Court reportedly not giving due weight to evidence offered by DOCS officers, and, as discussed above, the complexities of having matters in two or more different courts.

For example, Rebecca tried to tell the Family Court that her daughter had been abused by her former partner and was not believed, apparently because he had not been charged. Eventually DOCS removed her daughter from her care because the Family Court had given her former partner unlimited contact with his children. Such contact would have meant that he would have come into contact with the stepdaughter he had abused because his children and his stepdaughter were all living with Rebecca. Barb’s son had disclosed sexual abuse by his paternal grandfather and this had been substantiated by DOCS. There were also suspicions that the child’s father may have abused him too and DOCS had advised her to keep the child away from his father. However, her attempt to seek a no contact order at an interim hearing failed, apparently after her solicitor failed to appear at court. When she sought an ADVO to protect the child from the grandfather DOCS failed to provide evidence to the police to substantiate the allegations and the magistrate would not make an order that conflicted with existing contact orders, nor did the magistrate seek to vary the contact orders to avoid potential conflict with the ADVO despite having the power to do so under s68T of the Family Law Act. Joyce reported that the Family Court disregarded a recommendation from DOCS in awarding her former partner unsupervised contact with the children. This was reportedly despite clear evidence from DOCS that her older daughter did not want contact with her father and the fact that her former husband had failed to return the children on many previous occasions. She estimated that she has had five recovery orders.

Professionals were not specifically asked about child protection issues but several raised concerns about what they perceived as the failure of the system to respond to such allegations. A domestic violence counsellor and a child and family worker both said that there was a tendency for DOCS to cease any involvement where family law proceedings were underway on the assumption that child protection issues would be addressed by the Family Court. Yet child protection is not a direct responsibility of the Family Court. A women’s refuge worker also raised concerns about a lack of transparency in DOCS’ processes and the poor level of training of some DOCS workers on domestic violence and related issues.

Concerns about systemic failures in the response to child protection find support in several recent reports. A discussion paper by the Family Law Council notes fragmentation, inconsistency and overlap in laws for the care and protection of children across Australia, and highlights failures in coordination between the Commonwealth and the States/Territories. A report by Rosie’s Place and the Women’s Legal Resources Centre argues that

The report goes on to argue that, in the absence of DOCS interventions, mothers are often placed in the difficult position of findings ways to protect their children, even if that means stopping contact in contravention of a Family Court order.

Programs to streamline case management of residence and contact disputes involving child abuse allegations have been introduced in the Melbourne Family Court (known as the Magellan Pilot Project) and the Western Australian Family Court (the Columbus Pilot Project). Children who have witnessed domestic violence perpetrated by one parent on the other are not included within the former project but have been specifically included in the latter project where there is seen to be a significant emotional and physical risk to the child. Such projects typically aim to reduce delays and improve outcomes. A streamlined system for dealing with such cases together with better coordination between DOCS and the Family Court is long overdue in NSW. Ideally a national system should be established.

The most common manner of arriving at the current arrangements amongst women interviewed for this study was consent orders (n= 18; 43.9%), followed by court adjudicated orders (n=15; 36.6%). As noted above, eight women (19.5%) had reached outcomes through private negotiations.

At the time of interview 33 women had residence of all of the children in dispute, and two had residence of some of the children and contact in relation to the others. The fathers were contact parents in all of the cases where the mother had residence, although in a small number of instances this had broken down because the children were refusing to go on contact. Five women were non-resident parents and in all cases this was contrary to their wishes. Three had consent orders, one had a private agreement and one had a court adjudicated outcome.

At the time of interview only 4 women said that contact was supervised, although in one of two cases to be supervised by a contact centre, no contact had yet taken place because the children were refusing to go on contact. In two other cases where contact was to be supervised by relatives of the contact parent the woman believed that it had broken down in practice.

The high level of unsupervised contact arrangements in our study is surprising given that the father of the children had a past record of violent behaviour in all instances towards the mother of the children (more often than not witnessed by the children), and in a significant number of instances towards the children themselves.

In 25 cases children had witnessed violence against their mother. Of those cases, the father had unsupervised contact in 17 cases, residence in four cases, and supervised contact in three cases. In the remaining case, the father was having only phone contact with the children. This was because the mother had fled to Australia with the children as a result of her former partner’s extreme violence and her former partner continued to live overseas. Of the 11 cases that were court adjudicated, eight resulted in unsupervised contact, two in supervised contact and one in residence for the father. Of the 11 consent orders, eight resulted in unsupervised contact, one in supervised contact and in two cases residence for the father. In the three remaining cases that were private agreements one was phone contact only, in one case the father had residence and in one case contact was unsupervised.

Of the 13 cases of children who had been the targets of physical violence by their father, six had unsupervised contact, fathers had residence in four cases, two cases had supervised contact and in one case there was phone contact only. In Nerida’s case contact was required to be supervised by the paternal grandmother but this was allegedly not happening in practice. Of the six cases that were court adjudicated, four resulted in unsupervised contact, one resulted in residence for the father and one resulted in supervised contact. The remaining case was a private agreement for phone contact only.

Professional respondents were asked for their views about whether contact should proceed where there had been violence against the mother and/or the children. Most professional respondents seemed to assume that violence against a mother was clearly separable from any consideration of the wellbeing of the child. For example, a Family Court counsellor argued that the solution to ongoing violence wasn’t to stop contact "because … the kiddy could well feel um like they’ve done something to contribute to this awful thing that is going on between the parents". Another questioned what was worst for a child: the qualities of a violent parent, or the disruption of attachment to the parent. A third Family Court counsellor stressed that:

Few respondents raised questions about children’s exposure to violence directed against their mother or the effects of witnessing such violence. Only a minority of interviewees said that where there had been a history of violence against the mother, decisions about contact should be conditional on some assessment of the effect of that violence on the child or children. Where the child’s safety was at risk, or they had been adversely affected through witnessing the violence, they accepted that contact might not be appropriate.

This was surprising, particularly in relation to some of the professionals, given the substantial research on this issue and also the clear Full Court of the Family Court decisions that a violent parent is a poor role model and that witnessing or being exposed to violent behaviour is relevant to residence and contact outcomes.

Professional respondents were divided equally over whether contact should occur when there had been violence against a child. One argued that contact should never occur if the violence was severe, but that otherwise it should depend on circumstances such as the child’s age, the child’s wishes, or the child’s safety. Two respondents said that contact should go ahead but that it should be supervised. However, a solicitor questioned the assumption that supervised contact was a solution in these circumstances, and argued that:

The high levels of unsupervised contact in this project, as well as the views of many of the professionals interviewed, are problematic given the research suggesting that it will not always be in a child’s best interests to have contact, let alone unsupervised contact, with a violent parent. For example, Rodgers and Pryor reviewed 200 studies of children’s post divorce adjustment and found that a continuation of parental involvement does not always benefit a child, especially where there has been family violence. Sturge and Glaser argue that permitting contact when the contact parent has a history of abuse risks "failing to meet and actually undermining the child’s developmental needs or even causing emotional abuse and damage – directly through the contact or as a consequence of the contact." They suggest that domestic violence is relevant to decisions about whether or not to allow contact in that: the child may have a continuing sense of fear of the violent parent; the child may have post-traumatic anxieties or symptoms which proximity to the non-resident parent may re-arouse or perpetuate; there may be continuing awareness of the fear the violent parent arouses in the child’s main carer; the resident parent may have post-traumatic symptoms in relation to the past violence; there may be "effects of such situations on children’s own attitudes to violence, to forming ‘parenting’ relationships and to the role of fathers in such relationships and in caring for and protecting their children"; and there may be risk of direct physical abuse of the child. Given the risks to a child of contact with a violent parent, they recommend a presumption against contact unless the non-resident parent can prove that he can offer something of benefit to the child and the child’s situation. Similarly, a Canadian study recently concluded that while "the principle of facilitating contact with the non-custodial parent is appropriate in many situations, it should not apply in cases where there has been domestic violence." In addition, a New Zealand study of contact arrangements in the context of domestic violence found that half of the custodial parents in their study whose children had unsupervised access with the contact parent reported physical and emotional abuse or neglect, as well as abuse directed at themselves during access visits. The effects of contact on the women and children in the present study are discussed further in Chapter Five.

By definition all of the women interviewed had experienced violence by a former partner. However, several women and some professionals argued that this history of violence was not examined, or was not given due emphasis in the process of resolving the issue of contact.

Eight women thought that judges, magistrates or registrars did not treat their experience of domestic violence as a significant issue, or ignored the fact that they had an ADVO. Five had court adjudicated contact orders and three had contact orders reached by consent. For example, Susan thought that the courts acted as if all cases involving allegations of violence are the same and did not attend to the specifics of her case. Kim reported that the judicial registrar had said that her ADVO had no implications in the Family Court. She commented that, to the contrary, she thought it was extremely relevant that "you have somebody threatening you or you have a fear of them and you have to hand your children to that very same person." She also remarked that she was "stuck in limbo" with the Family Court giving no weight to the ADVO, the police refusing to enforce the Family Court orders, and the Family Court Orders over riding the protection that she had under the ADVO. Gina made positive comments about the Family Court but distinguished her own experience by saying:

Several women made calls for judges at both the Local and Family Courts to be better educated about, and more sensitive to, issues of domestic violence. It was also suggested that victims/survivors of domestic violence and welfare workers should be involved in that training since they had relevant expertise.

By contrast, two women commented positively on their experiences of the Family Court’s handling of family violence. For instance, Delores remarked that the judge who was presiding in her case took the domestic violence and the ADVO into account in determining the contact arrangements. The judge reportedly stated that the history of violence made any other contact arrangements "unworkable".

Women’s concerns that domestic violence was not given much emphasis within the family law system are supported by the accounts of professionals. For example, a domestic violence worker argued that the fact that ADVOs were not given sufficient weight in the Family Court reflected a lack of understanding of the seriousness of domestic violence. She said "I really don’t know how [much] more serious it needs to get than women being shot at court…" Some professionals seemed to suggest that the presence of an ADVO did not necessarily have an impact on the practices of family law professionals, but that it might be given some weight where other factors also indicated reason for concern. Thus, the fact that a woman had experienced violence and/or was fearful of future violence was not of itself seen as significant, whereas repeated failures to abide by an ADVO by a party were likely to trigger concerns. For example, one of the solicitors observed that "a breach [of an ADVO] is considered more appropriately" but that "I don’t think that [an ADVO] gets you much mileage."

As noted above most of the professionals interviewed took the view that violence against the mother was not sufficient reason for no contact between the child and their father. In most instances professionals argued that contact hand-over arrangements could be put in place to ensure the mother’s safety. These views are contradicted by the experiences of the women that we interviewed, as discussed below in Chapter Five.

Only one respondent, a domestic violence counsellor, thought that there should be no contact where there has been violence against the mother. It was somewhat surprising that only one respondent explicitly made the safety of the mother an important consideration, although this understanding may have been implicit in the views of some other respondents on contact hand-over arrangements.

The views of the women and professionals that we interviewed are consistent with recent research by Rhoades et al who found that women commented on a "lack of understanding about violence they had encountered throughout the [family law] system" and also that several judges suggested that lawyers were not prepared to ask for no contact any more.

Consistent with the idea that domestic violence is not given due emphasis in contact decision making is the suggestion that "standard orders" are being imposed in residence and contact cases. Several women made comments suggesting that the outcome of their cases was influenced by some notion of standard, or minimum, orders. For instance, Kim initially opposed contact but said that "the court won’t give you none. .. So yeah. … I took the bare minimum." In Kim’s case that was every alternate weekend from 9 a.m. Saturday to 5 pm Sunday. Sandra, who was a non-resident parent seeking contact, said that she was advised not to argue for the contact that she wanted but to put an application to the court couched in standard terms:

Gina was advised by her solicitor not to oppose contact, on the basis that the court wouldn’t make such an order. On advice, she consented to unsupervised contact with a supervised changeover. When asked how the family law system might be improved she replied:

There was a clear consensus among the professionals interviewed that orders for no contact were rarely made and were very difficult to get. They also agreed that the most common outcome of contact deliberations, whether court ordered or through agreement reached in other ways, was that the contact parent have contact with the child(ren) on every second weekend, and half of the school holidays, or something similar. Some respondents called these ‘standard orders’. A Family Court counsellor attributed these standard orders to lawyers, although a lawyer saw them as arising from the family law system. Most of those interviewed acknowledged that the orders typically made in domestic violence matters did not differ from those made in cases where there had not been a history of domestic violence.

The commonly reported resort to ‘standard orders’ raises several questions. To what extent are the parties’ needs and interests being given real consideration if there is such ready resort to a standard outcome? If the outcomes of matters in which domestic violence has occurred do not differ from those where there is no history of domestic violence, then to what extent is domestic violence given consideration in contact decision-making?

Throughout this chapter we have noted a perception by many of the women interviewed and some professionals that the Family Law system privileges contact between children and both their parents above all other considerations in decision-making concerning child contact. These observations were not limited to court adjudicated matters. There was a suggestion that the pro-contact culture existed across the Family Law system, shaped the practices of professionals working within it, and exerted influence on women’s decision making in the context of consent orders. Even private negotiations, sometimes under the influence of lawyers, seemed to operate in the shadow of understandings of what were thought to be common practices in the Family Court. The presumption that it was good for children to have contact with their fathers seemed to hold even when the contact parent was self-destructive, unstable or abusing the children.

While in the previous section we have described the common resort to unsupervised contact in our study as surprising, these findings are consistent with a number of studies that document the rise of a ‘pro-contact’ culture. For instance, Rhoades, Graycar and Harrison found that since reforms to the Family Law Act in 1995 it was more likely than before the Family Law Reform Act that : fathers would ask for contact in circumstances where there had been a history of domestic violence; many women were agreeing to, or being subject to, arrangements that did not represent what they considered to be safe for their children (particularly when unsupervised contact was taking place against a background of violence); solicitors were advising "women with concerns about domestic violence that they were unlikely to obtain an order suspending contact unless the violence was ‘exceptional’ or directed at the children"; and judges at interim hearings rarely ordered that there be no contact (although they found the rate of orders to this effect at final hearings had not changed) but instead preferred the use of neutral hand-over arrangements as an interim safety measure. Similarly, Rendell, Rathus and Lynch found that there was a pro-contact culture in Queensland that had an impact on Legal Aid Conferences, Family Assessment Reports, and Family Court decisions. Such outcomes also have been noted in England and Canada.

As discussed further in Chapter Five, supervised contact centres may not be a panacea for the problems involved when children have contact with parents who have a history of domestic violence. Many issues remain to be resolved in the provision of supervised contact services, much is still not known about the risks and benefits of such services, and they do present the danger that courts – influenced by the "pro-contact culture" discussed in this chapter and lulled into a false sense of security by the promises of safety presented by such centres - will order contact in circumstances where it is simply not in the child’s best interests.

Eighteen women in the current study had consent orders. In addition, eight women had private agreements. These figures reflect the fact that within the court system pressure is placed upon all parties (and their legal advisers) to reach agreement when contact and residence applications are made. Rosemary Hunter found that solicitors believed that the policies and practices of the Family Court "created an expectation to settle" and that this was because "primary dispute resolution was written into the Act itself." Only "the very worst cases" were expected to go to hearings and this expectation to settle was communicated to practitioners and clients.

A number of previous studies have suggested that one of the costs of placing greater emphasis on primary dispute resolution and the early settlement of residence and contact disputes is that women who have been the targets of domestic violence will be put under pressure to make contact arrangements that are unsafe for them or for their children.

At least nineteen of the women we interviewed (47.5%) considered that the arrangements in place for residence and contact in their case either compromised their own personal safety or weren’t in the best interests of the children. Of these women, four had private agreements (constituting 50% of private agreements), nine had consent orders (50% of consent orders), and six had court adjudicated orders (40% of court adjudicated orders). These numbers are too small to draw any conclusions about a relationship between the process by which outcomes were reached and women’s assessment of the extent to which the order might compromise their safety or that of their children. Nonetheless, the fact that half of all privately negotiated agreements and half of all consent orders involve ongoing concerns about risks to the mother or children suggests the need for more research into private negotiations and the careful consideration of consent orders.

Four of the women with concerns about unsafe outcomes had relinquished residence: Sandra’s ex partner had simply taken the children to live with him contrary to a consent order; Edwina said that she was afraid for her life if she attempted to challenge the father’s residence; Marcia and Hazel both reported that in the end their former partners wouldn’t co-operate and it was easier to give in and let him take the children.

Five women described hand-over arrangements that they did not feel safe with. One of these cases was a private agreement, three arose from consent orders, and one was court ordered. For example, Tracey said that she negotiated, through a Family Court counsellor, unsupervised contact with hand-over on the street and the Family Court approved this arrangement. She came to this arrangement in spite of a history of severe violence, death threats and her own solicitor warning her to leave her house so that her ex partner couldn’t find her when he was released on bail. She said she agreed to the contact arrangements in order to appease him. She wanted to "make it run smoothly and I thought… if I gave him a bit of leeway… he could feel that somehow he’s in control of the situation and then maybe he’d behave himself." She said that the counsellor didn’t suggest anything or give them any guidelines to go by. When the Family Court approved this arrangement they didn’t realise that he had been arrested for assaulting the police and her father during contact hand-over at the police station. Two weeks later the local court gave her ex partner bail conditions that rendered this arrangement unworkable and required her to return to the Family Court to have the question of contact revisited.

Among those with concerns about unsafe outcomes, women who had consent orders and those with privately negotiated agreements gave similar reasons for having agreed to the arrangements. These included: it was easier to give in to an uncooperative and abusive partner; they believed that the children had a right to see their father, and they hoped that if they gave him what he wanted he would be easier to deal with. However, several women with consent orders cited factors associated with the dispute resolution process as having shaped their decision: they thought they were legally obliged to agree, they felt under pressure to agree from their former partner and/or the counsellor, or they thought the arrangements were standard.

Some women, like Kim (see below), were very clear that having consent orders should not be equated with satisfaction with the outcome.

On the other hand seven women described refusing to compromise on their children’s safety in relation to some matters. In four of these cases the matters went to a court hearing, in two cases the matter was determined through private negotiation, and the seventh was a consent order. For example, Megan said that "[her former partner] practically dictated [the first orders] because at that point I was very much conditioned to do anything he wanted me to do" but commented that things had changed. She no longer allowed over-night contact because it was distressing the children. She also had a series of detailed conditions included in the contact arrangement each of which arose from an incident that had occurred that she did not want repeated.

Professionals’ views Ten professionals acknowledged that women sometimes entered agreements under pressure and that these agreements were not always in their own interests, or in the interests of their children. These professionals came from across a wide range of areas of practice and included two Family Court counsellors, three solicitors, two refuge workers, a court assistance scheme worker, a women’s support worker and a domestic violence worker.

Professionals described numerous factors that might result in outcomes that were not truly consensual, and sometimes unsafe. These factors included both the consequences of past or ongoing abuse, and flaws in systemic responses to domestic violence. The latter includes: fear that a refusal to allow contact might mean that residence is given to the other parent who is indicating a willingness to allow it; fear of women being cast as vindictive if they don’t make some compromises; women focusing on the children but not on their own interests; the withdrawal of support or ostracism by members of the family; the withdrawal of Legal Aid; pressure from lawyers, and Family Court counsellors urging them to agree to some form of contact; a lack of support; wanting to get it over and done with because they have had enough of the system; hurried professionals not taking a client’s needs into account; bullying; and for women with no respite from 24 hour, seven day a week child care, the resort to contact with the father as release from the stress of being the sole care-giver. For example, a solicitor suggested that

The Family Court has adopted as a principle that "the well-being and safety of people using the Court’s services will not be compromised by attempts to arrive at negotiated resolution of their disputes." However, this may be interpreted as being in tension with the court’s requirement that all avenues of primary dispute resolution should be exhausted before a case is listed.

Interviews with women and professionals in the present study suggest that apparent agreement to residence and contact arrangements may not be evidence of genuine consent in some cases where domestic violence is involved. This is supported by Rhoades, Graycar and Harrison who also found evidence of women making unsafe contact arrangements by "consent" because they felt there was no other option to which the father would agree or because their lawyer had advised them that the court would not agree to any alternative. Research also suggests that consent orders reached by the parties are given little scrutiny by courts. For instance, Rhoades et al report that that it takes approximately 12 minutes for a consent order to be "scrutinised" and approved.

The issue given greatest emphasis by the women interviewed was the best interests of their children. They commonly prefaced comments about the dispute resolution processes or case outcomes with reference to concerns about protecting their children.

As noted above, some women (and professionals) perceived that there was a presumption in favour of contact in the Family Court and that it sometimes took precedence over the well being of the children. Women who were concerned that their children had been abused or neglected by the contact parent, those who thought that residence and contact agreements were unsafe for children and those whose children were reluctant to go on contact visits commonly questioned whether the outcomes were in children’s best interests (see further Chapter Five).

Six women commented that children should be more involved in the process and more time should be spent with them to find out what they wanted. Two women suggested counselling for the children.

Some women commented that they felt that the child’s separate representative was inexperienced in dealing with children, did not work closely enough with the children, or was biased in favour of the father. What this meant was that the representative failed to really understand the significance for the children of their father’s violence. For example, Ellen said the representative was someone who had worked with the other parent in the past, only listened to his views, and sat with him in court. She also thought that separate representatives should be people who have actually had children themselves as the experience of being a parent changes one’s views. Barb commented that the children’s separate representative never worked closely with her children and never really got to know them. They therefore never picked up her children’s distress about going on contact with their father: "Even [the supervised contact centre workers] said she should have been coming here and seeing what is happening for your children… She’s sort of useless for your case because she don’t know your kids from a bar of soap."

Claire’s case below illustrates the trauma of a mother faced with signing orders that she believed were not in her child’s best interest, but that she felt powerless not to sign. Claire ostensibly had consent orders reached when the matter was part heard.

A number of professionals also explicitly questioned whether the family law framework actually works in children’s best interests despite that being the paramount consideration in the legislation. For example, a solicitor was concerned that there was an over-emphasis on children having to have a relationship with their parents and asked whether that was likely to always be in a child’s best interests.

Professionals including a Family Court counsellor, a contact centre worker and a refuge worker also commented on the lack of services to support children. For instance, a worker with a contact centre argued that:

Others also questioned the extent to which children’s wishes were taken into account in reaching decisions. For instance, a women’s refuge worker commented that "[t]he amount [sic] of times that decisions are made where the children haven’t been spoken to, just astounds me, no reports, nothing being considered about how, what’s happened to the children, the impact on them."

Five women were non-resident parents at the time of the interview. Three had consent orders, one had a private agreement and one had a court adjudicated order. In no case could these women be construed as having given genuine consent to the outcome. They had given in to a violent and uncooperative partner, been too afraid to seek residence or had a court decide against them.

Hazel reported that at one stage she had a residence/residence order in which the children spent one week with each parent, and the parents were meant to share decision- making concerning the children. However, that arrangement was unsuccessful. On one occasion her ex partner failed to return the children. She did not have the funds to pursue a recovery order and was concerned that if she recovered the children the violence and harassment were likely to continue. She has since relinquished residence and sees her children at their school without her former partner’s knowledge as she fears his violence.

Sandra had found the legal system totally ineffectual in protecting herself or her children.

Few professionals offered comments about non-resident parents. However, a solicitor observed that women who were non-resident parents were often judged harshly and seen as having abandoned their children. The solicitor noted that men who had residence would commonly use this argument to avoid the mother having contact with the children. Yet, women were often able to put aside failings by their former partner in the belief that contact would be desirable for the children. Thus, according to this solicitor, non-resident mothers were often held to different standards than were non-resident fathers.

The onus falls on mothers, who themselves may continue to be the targets of domestic violence, to protect their children and of course themselves when negotiating contact and residence arrangements with their former partner who has abused them. These negotiations are typically not a single event but are ongoing. This chapter has demonstrated that many women experienced personal, financial and systemic pressures that constrained their capacity to negotiate. Thus, some children and their mothers were in a very vulnerable situation.

Lawyers provide the primary form of professional support for women negotiating residence and contact. However, lawyers reportedly varied in their capacity to provide effective support and advocacy for women clients who had experienced domestic violence. While some were very good, others were perceived to act against women’s instructions, to make concessions in negotiations that were contrary to women’s interests, and to place pressure on clients to settle. Lack of legal aid funding constituted a major problem for some women. Professionals agreed that the lack of legal aid, and or caps on legal aid, had negative consequences for the court and clients including: women dropping actions, giving in to unworkable contact arrangements that put them at further risk, agreements made by default, and a failure to vary orders once made despite there often being good grounds to do so.

Family Court counsellors differed in their accounts of the policies or practices adopted in cases involving domestic violence. Separate counselling was not uniformly supported by counsellors and not always practiced. Screening for domestic violence prior to counselling was not universal and there seemed to be a strong reliance on victims of domestic violence to self-identify. Many women experienced counselling as a negative experience. Some felt unsafe and others were intimidated by their ex partner. Only a minority reported that they’d had separate sessions for counselling. A small number of women had attempted mediation, mostly unsuccessfully. Despite a general belief that domestic violence matters are not mediated due to concerns about power imbalances, Family Court counsellors agreed that some cases were mediated either because they slipped through the screening process or because they were judged by mediators to be suitable.

Many women had been involved in proceedings in two or more courts. This was frustrating and confusing for some. Where there were child abuse allegations, some women had also had proceedings in Children’s Courts. In cases involving child abuse allegations concerns were raised about the perceived failures by DOCS to take action, the Family Court reportedly not giving due weight to evidence offered by DOCS officers, and the complexities of having matters in two or more different courts. A streamlined system for dealing with such cases together with better coordination between DOCS and the Family Court is long overdue in NSW.. Pilot programs currently exist in Victoria (Magellan) and Western Australia (Columbus).

Among women interviewed for this study outcomes were most commonly reached by consent orders (n= 18; 43.9%), followed by court adjudicated orders (n=15; 36.6%). Eight women (19.5%) had reached outcomes through private negotiations. Despite the fact that the majority of women had consent orders or private agreements that presume ‘consent’, the evidence suggests that there is good reason to be cautious about describing these outcomes as truly consensual. The women and many of the professionals recognised the many pressures on women to enter agreements or consent orders concerning contact and that some agreements may even put women or children at risk. Almost half of the women we interviewed considered that arrangements in place for residence and contact either compromised their own personal safety or weren’t in the best interests of the children. Of these women, four had private agreements and nine had consent orders.

The interviews suggest that domestic violence is not necessarily seen as relevant to contact decision-making. Most professional respondents seemed to assume that violence against a mother was clearly separable from any consideration of the wellbeing of the child. Professionals typically assumed that public handovers for contact or the use of third parties to facilitate contact handovers were effective safeguards for women. In 25 cases children had witnessed violence against their mother. However, in most of those cases the father had unsupervised contact or residence. Professional respondents were divided over whether contact should go ahead when the contact parent had been abusive towards the child/ren. However, even where violence had been directed to the children unsupervised contact was a common outcome. Several women thought that their cases had been influenced by a notion of ‘standard orders’ and professionals agreed that domestic violence cases rarely departed from this standard. Many of the women interviewed and some professionals felt that the family law system privileges contact between children and both their parents above other considerations in decision-making concerning child contact. Some questioned whether the Family Law system did in fact protect children’s best interests. Several professionals raised similar concerns. It was suggested that there should be more resources for services for children and that children’s wishes should be accorded greater respect in family law decision-making.

This chapter considers the women’s experiences of the actual exercise of child contact. The women that we interviewed described a number of problems they experienced when their violent ex-partner exercised contact. Some of these problems may be common among parents dealing with contact arrangements. However, other problems are particular to violent relationships and highlight a need for special consideration of child contact arrangements in the context of domestic violence. In this chapter we examine whether the women and children were subject to violence or abuse during contact or contact changeover, whether the exercise of contact with the children was used in order to have contact with the woman, how the children were affected by contact, the attempts women made to make contact safer, various breaches or threatened breaches of contact arrangements and attempts to enforce or vary the contact arrangements.

The overwhelming majority of the women that we interviewed had experienced violence during child contact visits or at changeover time.

Of the 35 women who were resident parents facilitating contact with the father, only five (14.3%) said that they had not experienced violence at contact changeover. Diane achieved this by having a secret address, living a considerable distance from the father so that there were no accidental meetings, avoiding all places and events where he might be present and using a contact centre for supervised contact which had very controlled times of arrival and departure. In other words, she had been successful in setting up arrangements that ensured that she had no contact whatsoever with the contact parent in spite of the fact that he was having contact with the child. It is also noteworthy that three of the women who said there had been no violence during the exercise of contact nonetheless described intimidating or frightening behaviour by the father of the children associated with contact. For example, Barb described experiencing verbal abuse and "physical changeovers." By the latter she meant behaviours such as her former partner slamming his fist on the car bonnet, shouting at her, and physically trying to force the children into his car. Of one of these occasions she commented: "[son] was screaming and [daughter] – it was horrible like. The kids were really distraught."

The remaining 30 women (85.7%) described differing degrees of violence occurring during changeover or during contact visits.

Some of this violence was directed at people who were supporting the women during contact changeover. This behaviour consisted of threatening, bashing, punching, driving cars at, harassing or spitting on friends, new partners or relatives who were providing protection or assistance to the women during changeover. For example, Claire said that the family who were facilitating the contact changeover initially stopped after three months because it was "wrecking their lives." The father of the children had phoned them, harassed them, and sat in front of the house in his car watching them so that their children were afraid to go out of the front door. This harassment of those supporting the women is not surprising given that research has shown that one of the classic strategies adopted by perpetrators of domestic violence is to isolate the victim from social supports that might otherwise diminish her vulnerability to the abuse.

Like the pre-separation violence outlined in Chapter Two, the violence directed at the women during contact demonstrated a wide range of abusive behaviours. Physical abuse included punching, hitting or slapping her in the face, ribs, stomach or other parts of her body, beating her, grabbing her by the throat, pushing her, dragging her along by the hair, holding her in a head lock, holding her hostage, causing injury by forcibly pulling objects out of her hands or from around her neck, driving along with the car door open so that it hit and knocked her to the ground, and drugging her drink. In some cases an ex-partner had destroyed a woman’s property, often in attempts to enter the house or, at least to frighten her. Such behaviour included kicking or smashing down doors and smashing windows. The psychological abuse associated with contact included stalking, threats of physical assault or death, threats to kill the children, threats of sexual assault, emotional or verbal abuse, harassment in person or over the phone, threats of suicide, and theft of a woman’s car.

For many women, the abuse around contact was both physical and psychological. For example, Cath said:

Almost all of the professionals had been involved with cases where there had been reports of violence after a contact agreement or order. One of the Family Court counsellors commented:

Many of the women we interviewed had tried several different options and venues for contact changeover in an endeavour to find arrangements that worked for them and their children.

The most common arrangement – used at some time by 18 women (45%) – was for contact changeover to take place at their residence or the residence of the contact parent. For a couple of women with older children they could still avoid contact with the contact parent because they closed the front door and let the children make the transition in and out by themselves. However, many of the other women expressed dissatisfaction with changeover at their residence as they were frightened of the contact parent or did not want his intrusion. For a number it had proved to be unsafe. Those women who were unhappy with this arrangement commented that they did it this way because he just came around anyway, or that he insisted on it and it was easier to give in, or because it was court ordered.

Twelve women said that although the contact itself was not supervised, they were using, or had used at some point, a contact centre, or a women’s resource centre for contact changeover. Most of these women described finding this type of service very helpful as it meant that they did not have to deal with the contact parent. This minimised the stress and danger for them and the trauma for the children. For example, Meena, who said that changeover used to be "very, very bad" (she was punched and intimidated during changeover), said that it hasn’t been too bad since she started using a women’s resource centre as a changeover point because she no longer had to confront him every time. Women also saw the more structured contact changeover provided through a centre as leaving less room for breaches of the contact arrangements.

Those using centres with strict arrival and departure times, and security, were also reassured that they could keep their addresses secret and that the contact parent could not follow them home or lie in wait for them on the way to contact. Unfortunately, however, even a number of the women who used refuges or centres for contact changeover were ‘ambushed’ or followed home after contact by the contact parent. For example, Tina described the contact parent lying in wait for her bus on the way to the centre, obstructing her way, and trying to snatch the child. He was not supposed to show up until ten minutes before contact but he was often there an hour early watching and calling out to the child. He did so in disregard of both the ADVO and the requests of the staff at the resource centre. Kim noted in her diary that she had been followed from the contact centre by the contact parent after changeover on a number of occasions. She also noted, "the futility of driving to [x] and having non face-to-face contact when he’s at my door almost everyday was silly."

A number of the women commented that the contact parent did not want to use the centre and, in some instances, went out of their way to circumvent its use. For example, Sylvia used a women’s resource centre for the contact return. Because the contact parent was an alcoholic and had restrictions on drinking during contact, the arrangement theoretically ensured that a third person could witness his demeanour. However, he frequently did not drop the child off to the worker but directly to the mother waiting outside the centre so that no one else could see that he was drunk.

Potential shortcomings of the centres were the distance that women had to travel to use them, the high turnover of staff so that the children had to be taken between the parents by strangers which was distressing to them, and the short length of time that supervised changeover was sometimes made available because of the level of demand for these services in the community.

Decision makers should take care when ordering changeover at a refuge. One of the refuge workers raised concerns that a Family Court judge had ordered contact changeover at the refuge where the woman was staying with the children. This was despite the policy of not identifying the location of the refuge. The refuge worker commented: "And he used to come around here and pick the kids up and drop them off and it wouldn’t have mattered what we said about the refuge [being] a safe place and all the rest of it."

Six women had used a police station at some point for changeover. Three of these women nonetheless described experiencing violence during changeover. The advantage appeared to be that the police were there as backups when this happened. For example, Teresa described the contact parent as "difficult even with the police around." However, she said that "when he got stroppy" the police put them in separate rooms, asked her if she felt comfortable about letting the child go on contact and then supported her decision. However, the security provided by the police had its limitations. Susan described violence occurring in the car park because the contact parent refused to wait outside the station. Some women also commented that it did not feel right for the children to be dropped off at a police station.

Some of the professionals were also concerned about the use of police stations for changeover. One of the solicitors in private practice commented:

Other professionals were also concerned about the safety of changeover at the police station. For example, a co-ordinator of a women’s Domestic Violence Court Assistance Scheme said:

One of the refuge workers that we interviewed talked about a client who:

Five women said that they had used a McDonald’s for contact changeover at some point. The theoretical advantage of this as a changeover point is that it is a public place, it is well lit, it is child friendly and there are likely to be plenty of people around. Nonetheless two women described the contact parent verbally abusing them during contact changeover, and Ellen, who described being assaulted and stalked by the contact parent in the past, said that she did not feel safe at McDonald’s but it is the venue that the child’s representative chose.

Some of the professionals commented on the frequent use of McDonald’s restaurants for changeover. One solicitor said:

Other women had used various public places for changeover. For example, two women described using a railway station platform at some point, three women said they used a hotel or tavern car park, and three of the women did changeover in the street. However, none of these venues had proved safe. Both women using a railway station had experienced verbal and physical abuse during changeover there. Both were women who had used supervised contact centres for changeover in the past and would prefer to be continuing to do so. All the women using a tavern car park had experienced verbal and/or physical abuse during changeover there. Kate, who used to have changeover in the street, described the contact parent smacking her in the face when he arrived at the changeover point because he had had an accident on the way and was in a bad mood. Parks and shopping centres were occasionally also used by some of the women, once again with limited safety.

Four of the women with older children used the children’s school as a changeover point with apparent success in minimising the violence. This is because under such arrangements the parents need not have any contact at all, particularly if the contact parent has overnight contact and both collects and returns the children to the school, rather than to their mother.

Ten women had used a third party, generally a relative or friend, to effect changeover at some point. Only one of these women, Megan, described this strategy as an unqualified success. Megan described a history of severe violence associated with contact changeover as she has had her door and car smashed, and been choked, threatened, and bashed. She also described attacks on some of the people providing her with support. She now uses a third party to pick up and drop off the children from McDonald’s on the basis that taking herself out of the equation would save "all the violence and the rubbish that has been going on for the last two years." She said that the arrangement has taken the worry and stress out of changeover for her and it takes place without abuse or trauma for the children because he doesn’t have a history with the third person doing the changeover and it therefore takes place in a civilised fashion. She did comment that she has had to organise this herself and that "there are some women that wouldn’t have the means to do that."

Problems that other women experience with using a third party include: the person doing the changeover being abused by the contact parent, the woman herself being abused when the third party is a relative or new partner of the contact parent, the difficulty of finding someone who is neutral and willing to undertake the task, and the fact that the third party is inconvenienced when breaches occur and might feel resentment towards the women rather than the perpetrator. Rebecca commented that in consequence of involving them "you lose your family and friends."

A women’s Domestic Violence Court Assistance Scheme Co-ordinator commented that some women choose not to involve family and friends because they don’t want them getting hurt:

Seven women took a support person with them on changeover, as opposed to doing the changeover through this person. This appeared to have the advantage of alleviating their fear of the contact parent’s violence but it was no guarantee of safety. Both Tracey and her father were assaulted on contact changeover. Susan commented that this arrangement is hard on the support person and she is always conscious of their safety. However, she added that it is useful to have a witness to what happens at changeover, as well as someone to assist with her agitation and fear.

Sometimes the presence of a support person might actually aggravate the abuse. One of the Family Court counsellors was commenting on a woman who wanted to change the changeover arrangements when they said:

We have found that that those contact changeover arrangements that work best and are safest for the women (and reduce the chances of children witnessing abuse although don’t necessarily protect the children themselves) are those that do not bring the parents into direct contact with each other.

A number of the professionals we interviewed seemed to be unaware of the problems women experienced with contact handover arrangements. For instance, several assumed that third parties such as other family members or friends could be found to assist in contact changeovers, or that changeovers in public places such as shopping centres, police stations or at McDonalds might be adequate to secure the mother’s safety. Some also mentioned supervised contact centres, although there was also wide recognition that these centres were not widely available.

On the other hand a Child and Family worker with an Area Health Service commented:

More than two-thirds of the women (n=25, 71.4%) who were resident parents expressed concerns about the treatment of the children during contact visits, and two contact parents expressed similar concerns in respect of residence. These women described parenting practices that they considered to be inappropriate or neglectful, and in a number of instances dangerous to the children’s health and well-being.

The children often witnessed the abuse of the mother during contact or changeover. They were sometimes more directly involved in that aggression. For example, Joyce said:

Nerida said that on one contact changeover he dragged her down the stairs when she had the child in her arms and, in order not to fall on her, she had to throw the child up the stairs. He than grabbed the child and threw her in the back of the car without putting on her seat belt. He reversed down the driveway so that the child was flung into the front of the car and onto the dashboard.

Women’s concerns about the treatment of children during contact or residence included: failing to attend adequately or appropriately to children’s needs for food, toileting, bathing, sleep or medication or ignoring them; unsafe behaviours such as drug or alcohol use by the other parent, leaving children unaccompanied, or involving children in risky or inappropriate activities; interrogating children about their mother, or making threatening or abusive statements about the mother to the child; inappropriate forms of discipline; and abusive behaviours or returning children with injuries.

Some of these neglectful behaviours seemed designed to annoy or upset the mother. For example, Dorothy commented that the contact parent adopted a policy of doing the opposite of what she asked him to. If she told him that the children had to take medication that day, he wouldn’t give it to them. If she asked him to make sure they put their seatbelts on, he wouldn’t let them. And if she asked him not to take them swimming because they had an ear infection, he would take them swimming. Kim detailed in her diary that the children would return from contact visits issuing threats from the contact parent such as "Daddy will punch your lights out" or "Daddy told us to go and get the gun and shoot you".

Some of the neglect was due to the fact that the contact parent was using contact to see the mother rather than the children. By way of example, Cath said that immediately after separation the father would come to pick up the children and would not take them – or even say hello or goodbye to them. Instead he spent the duration of the contact visit harassing or being violent to her before leaving. Another contact parent told the resident parent in front of the children that he did not love the children and never wanted to see them again.

The professionals were asked to comment on the fears that women clients who had been abused might have for their children during contact visits. One Family Court counsellor made a typical comment:

A solicitor in private practice commented that:

Many of the mothers gave their perceptions of their children’s feelings about contact. Of course, these perceptions may not accurately reflect the children’s feelings. For example, it has been shown that parents tend to minimise the impact that witnessing abuse has on their children.

Given the above descriptions of possible neglect and abuse of children during contact visits, it is not surprising that 19 of the 35 women (54.3%) who were resident parents said that their children were disturbed and unsettled after contact. Of these children, all except five were children who had witnessed violence against their mothers. In addition, four of the children who were described as unsettled after contact had themselves been the targets of violence in the past.

The kinds of unsettled behaviour these women described as occurring regularly in their children after contact included being angry, being naughty, wetting the bed, being tired or sick, not eating, being unable to sleep, being hyperactive, becoming shy and withdrawn, and being confused. For example, Gina said that her children come back from contact confused as their father "tells them things" and takes out the bitterness that he cannot express to her on the children. She has to "debrief them" when they get back from contact visits. Her son stopped eating for around three months and she has had to arrange counselling for her oldest daughter and has explained to her how to keep herself safe when her father becomes violent and how to get herself out of the house if necessary. She commented that "I don’t think that these are things that any child should have to go through and I think that’s really unfair to the children but there’s nothing I can do about it." Nerida said that her child who was almost seven years old had been affected by her father’s violence to the extent that she would not go to the toilet by herself or be alone in another part of the house until six months after her father had left. She reverted to being a normal child until contact recommenced 18 months later when she began barking under her desk at school like a dog and biting other children. Nerida commented that when she tried to explain in court that this was a manifestation of distress about having to have contact with her father the judge implied that the mother could equally have caused this behaviour.

Twenty nine of the women we interviewed commented on whether they believed their children wanted contact with the contact parent. Ten women whose children were disturbed after contact and eight others said that their children wanted to have contact with the contact parent (although in one instance one of the children wanted contact and the other did not). On the other hand, two of the women whose children were disturbed after contact and nine others said that their children did not want to have the contact that they were required to have. Of these eleven, six women said that their children had witnessed violence or abuse against their mothers, but only one said her children were the victims of violence.

Megan described her daughter refusing to go on contact after her father smashed down their door, smashed their car and terrorised everyone who was in the house at the time. The child pulled her eyelashes out, couldn’t sleep, would not stay in her bed alone for three months afterwards, started dirtying her pants, and expressed terror when she found out that she was to have contact with her father. Megan commented that "one of the things she’s had to struggle with... is the fact that she doesn’t feel that I am capable of keeping her safe. Because I can’t keep myself safe." Pauline said that her oldest son had to be rushed to hospital with stomach pains when his father asked him to stay overnight and has told her that when he is older he will be strong enough to stop seeing his father. Barb said that prior to using a contact centre, changeover took place in the park. The children would always become hysterical. On one attempt one child screamed so hard that he vomited and the other had her leg hooked around the door of the car when they were trying to get her in. Eventually they tried changeover through a contact centre but the children still did not want to go on contact. She described scenes where the children were crying and had to be pulled off her. The last time she took her son on contact he clawed at her so frantically that he cut her wrist and drew blood. Her ten-year-old daughter threatened to kill herself by jumping from a moving car if she had to go on contact. Barb commented that at that point she stopped telling them that contact would be fun. Contact had currently broken down because the contact centre supervisors did not want to force the obviously distressed children to have contact.

Whilst some of the older children who did not want contact appear to have had their wishes respected it is disturbing to note that some children have not. Sturge and Glaser note that "[i]n [cases of] domestic violence, where the child has memories of that violence we would see their wishes as warranting much more weight than in situations where no real reason for the child’s resistance appears to exist."

Some children in our study were described as being forced to face their father and let him know that they did not want to go on contact or being put under considerable emotional pressure to go on contact. For example, Joyce described the father having contact with his 11-year-old daughter reinstated even though she had made it clear through the DOCS officer, who gave evidence in the Family Court, that she did not want to go on contact. She was then forced to confront her father in person and tell him that she did not want to go. His response was that if she did not come on contact with him he would not return her younger sister after contact. He had tried, without success, to get the mother to drop the elder child off and then drive away so that she was forced to go on contact. The elder daughter still had contact with her father’s family even though they had used that contact to try and put her on the phone to "Daddy who is crying." Claire said that after her daughter, who was then 11 or 12 years old, had indicated that she did not want contact anymore, her father waited until she got off the school bus and then abused her in front of the school. He also sent a fax to her through his solicitor saying that if she didn’t go on contact with him she would be in contempt. He said to her: "I spent $5000 on a barrister to get access and you do this." On another occasion Claire’s daughter was vomiting because she did not want to go on a contact visit. The police rang Claire and said that she would jeopardise her residence if she did not take her daughter to the police station where contact changeover took place. When she got to the station the officer talked the child into going with her father.

Not all of the professionals felt qualified to comment on the effects of contact on children, although many commented generally on the effects of witnessing domestic violence on children. However, one Family Court counsellor said:

The most obvious attempt to make contact safer for the children concerned is to ensure that it is supervised. Supervised contact covers a wide variety of situations. The contact may be supervised by a friend or family member of one of the parents, or by the resident parent, or the contact may take place under varying levels of supervision or facilitation at a children’s contact service or other centre. Some centres provide only low vigilance supervision or facilitation whilst some can provide highly vigilant one-on-one supervision where necessary.

Three women said that they had initially supervised contact themselves, as they were too frightened to leave the children alone with the contact parent when they first separated from him due to his level of aggression and/or his drug use. Obviously such supervision placed the women in potentially unsafe situations or made them vulnerable to harassment by their ex-partner. One mother, Megan, was subjected to violence and had her drink drugged whilst supervising contact. Vivian commented that at "times I’d go over there and he wouldn’t pay any attention to the kids at all and I thought – he’d just want to talk to me, ‘come back’ and you know."

Nine women mentioned that contact had been informally supervised at some point, usually by a relative or friend. In some instances these arrangements had broken down because the relative or friend was no longer willing to bear the burden of supervision. Dorothy had used a private agency to supervise contact, but reported that such an arrangement had broken down because her ex partner had shown up drunk, assaulted her, humiliated the children and the agency refused to provide further supervision. Her diary stated that: "There was verbal and physical violence during access. The father went to punch me in the head and went to choke me. Both my children were sitting on my lap at the time." However, the main problems with these arrangements arose when contact was supervised by a relative of the contact parent. Nicole was verbally abused by a supervising relative. Two women expressed concern about the quality of the supervision. For example, Christine said the relative was not a responsible person and the house in which the contact took place was not safe. Nerida said that contact was intended to be supervised by her former partner’s mother. However, she reported that contact was not always supervised and that the supervisor had watched the contact parent being violent to her without intervening.

Professionals generally confirmed women’s accounts of particular problems arising when family members were required to supervise. It was suggested that family members became unwilling to continue to supervise contact following abuse, that some women were reluctant to submit their family to ongoing conflict and abuse by asking them to supervise contact or be a changeover point, or that the supervision was ineffective.

Other studies have found similar problems with informal supervised contact. For example, in New Zealand, Chetwin et al. determined that custodial parents who supervised access themselves were at risk, and the children involved were less safe and happy with these arrangements as they often witnessed conflict and abuse. They also found that when access was supervised by extended family members the children were not always emotionally safe and most informal supervisors regarded their role as being a presence rather than providing active supervision.

Overall, only three women in our study said that their children had had, or were having, supervised contact through a contact centre. Diane’s 17-month-old child was having ongoing supervised contact with his father at a centre. The father had shaken and threatened the child before separation. The other two women had had supervised contact for a short period of time. Barb, who had used a supervised contact centre, spoke very highly of the staff and professionalism of the centre, but said that contact had broken down because no matter how kind and loving they were, the children still did not want to go on contact. Joyce, whose children were again scheduled for supervised contact at a centre, said that she hoped that the centre would refuse to supervise the contact in relation to her eldest daughter who was 11. The child didn’t want contact and Joyce did not want her to have to confront her father and tell him this.

Supervised contact often requires the agreement or co-operation of the contact parent. Two women said that they would have liked to use a centre but were unable to do so because the contact parent would not consent. Nerida said that supervised contact at a centre was ordered on an interim basis, but whilst she contacted the centre, the father didn’t. This meant that at the final hearing the judge did not order supervised contact at the centre because the centre had not been able to assess suitability.

Supervised contact centres are not widely available in the Sydney metropolitan region or other areas in which the women interviewed resided. Indeed there are only seven operating centres in New South Wales of which the Australian Children’s Contact Services Association is aware (only two of which are in the greater Sydney metropolitan region). Some of those centres only provide changeover services, not supervision of contact. Nine of the women who did not use a centre for either contact or changeover said that they would have if there had been one that they could use in their area. Diane, who used a contact centre, travelled for two hours to the centre and then waited for two hours outside the centre while contact took place before travelling two hours to her home.

Most of the professionals we interviewed were in favour of supervised contact centres but agreed that there were currently too few of them available and or that their hours were too restricted. However, many of the professionals who supported the need for more centres expressed concerns about the operation of such centres in cases involving abuse. Several stressed the importance of having well trained professional workers and reported concerns that charities and other volunteers were often unable to deal with the violence that sometimes confronted them. One refuge worker expressed concerns about inappropriate referrals from courts and gave as an example the situation where there was an ADVO in place for the protection of the children. Another concern is whether the centres are currently appropriate for clients from Aboriginal and Torres Strait Islander communities and whether the centres are able to cater to children and parents from culturally and linguistically diverse backgrounds.

However, not everyone was positive about supervised contact centres. One Family Court counsellor described such centres as ‘bizarre’ and questioned the professionalism and ‘bias’ of the staff. A solicitor said that most of their clients were very positive about such centres. They noted that those clients who were negative were typically contact parents who were required to use the service but "who object to being bossed around or spied on or, you know, harassed."

Although the majority of women and professionals expressed a desire for more supervised contact centres, it is noteworthy that some were concerned that the very availability of such centres may mean that contact would be ordered that would not otherwise be considered to be in the child’s best interests. For example, Diane doubted the value of contact for her child as the father had been violent to the baby. It is interesting to speculate whether contact would have been ordered by the court if there had been no supervised contact centre available. Another concern is that if supervised contact proceeds without "incident", there appears to be an expectation that unsupervised contact will then occur although in some cases unsupervised contact would never be appropriate.

It is difficult to determine whether the availability of such centres has contributed to a presumption of contact in cases of violence, or whether an existing culture of contact has generated a greater need for such centres. One worker said:

Of course the use of supervised contact centres does have limits in cases involving violence and it may be that the cases that present the greatest danger to women and children are the very ones that cannot evoke even the limited protection offered by the centres. A refuge worker who was supportive of the centres raised a concern about cases that were not accepted by contact centres because they were assessed as being outside the guidelines, especially where this was due to abuse. Such cases usually had to fall back on unsupervised contact or family members. A worker from a supervised contact centre acknowledged this dilemma:

Almost half of the women (17 of 35; 48.6%) we interviewed who were resident parents described the threatened or actual abduction or non-return of children by the contact parent. Thus, women described threats to abduct the children (five cases), threats not to return the children after contact (one case), attempts to abduct the children (three cases), the children being abducted from the street or from school (five cases), the contact parent failing to return the children after a contact visit (seven cases), and the father enforcing what one woman termed an ‘illegally obtained recovery order’ and then simply refusing to return the children (one case). Joyce said that after the court reduced contact because of what the contact parent was doing to her and the children, he began refusing to return the children. Once he took the youngest child from school for two and a half weeks and had her in hiding for a week and a half with someone that the child did not know. Joyce has had to obtain five recovery orders in three years and the court still allows him unsupervised contact. Megan described going to pick up the children after a contact visit but they were not there. The contact parent told her that she would never see the kids again and asked, ‘any last words you’d like to say to [daughter] as she’s growing up?" She did manage to get the children back the next day with the help of a friend but both of them were assaulted in the process.

Six of the women who did not actually describe abductions or non-returns by the contact parent nonetheless described a high degree of fear around the possibility of abduction. Several of these women described taking measures to prevent this from happening. Pauline has refused to send the children on a contact visit to America. Toni made the contact parent sign every time he exercises contact to prove he has taken them. Carmen tried to ensure that the contact hours were short so that the contact parent had less of an opportunity to get on a plane and get out of the country.

If a child is not returned after a contact visit, the resident parent may apply for a recovery order. Only three of the women that we interviewed mentioned that they had sought recovery orders. Hazel had commenced an application for recovery of the children, but decided not to pursue it because he would simply have taken the children back at any time anyway. The children now reside with the father and Hazel has contact orders made by consent, but the father refuses to allow her contact with the children.

Almost half of the women (17 of 35; 48.6%) who were resident parents said that the contact parent had failed to exercise contact. Some described this occurring at irregular occasions, whilst others described extended periods of time when contact was not exercised. For example, Carmen commented that the contact parent had refused to see the children three or four times for periods of around a month and a half on the basis that if he couldn’t see her he didn’t want to see the children. When she asked him what she was supposed to tell the children he said, "Tell them I’m dead." Nerida said that during the six months that the contact parent was supposed to have supervised contact he didn’t bother with contact at all. Anna commented that the contact parent got angry that she was not at home when he was exercising contact and thought she might be seeing other men. He therefore stopped contact altogether so that she would have the child all the time and would not have the opportunity to have an independent life. Rebecca said that the father exercised contact sporadically but had stopped altogether once he started a new relationship. Once he did not see his child for eight years, then turned up and wanted to see her for a few weeks in a row and then disappeared again.

Many of these women described the failure to exercise contact as having negative consequences for themselves and the children. For a number of women the failure to exercise contact occurred without adequate notice, making it extremely difficult to plan ahead or organise their lives. Furthermore it often meant waiting for visits that never eventuated, which was both frustrating and time consuming. Toni said that on three occasions she and the children had waited for her former partner at a railway station for two hours but he had failed to appear. In addition, it had been arranged that the children would spend one week in the Easter holidays with him but again he failed to meet at the railway station. His failure to exercise contact also had financial consequences for Toni since he paid no child support and $100 was deducted from her family benefit each fortnight on the basis that the children were meant to spend every second weekend and half the school holidays with their father.

Other women spoke of having no family support and thus urgently needing the time off from looking after the children. For example, Bronwyn described initiating the court order for contact arrangements because she wanted the father to feel his responsibility for his son. She had no family support, and was overwhelmed and needed help with the child. At some point she put the little boy into foster care so that she could have some respite, but had to discontinue that when she saw how much it was distressing her son.

A number of women described the pain or disappointment experienced by the children when the contact parent failed to appear for contact. For example, Delores said that the contact parent stopped having contact at the appointed weekend because he wanted to see his girlfriend which meant that "[t]he kids would be enthusing about seeing Dad and he just wouldn’t show up. And then instead of coming the next weekend he would wait another fortnight to come." Vivian described her child being so upset that their father hadn’t seen them for several months that she asked a counsellor to call her former partner and request that he exercise contact.

A number of the women and the professionals commented on the fact that "[e]nforcement is a remedy that is effectively only available to the contact parent, in that the court will not coerce a person into maintaining a relationship with their child" For example, Yvonne said:

Two solicitors, one counsellor, a domestic violence court assistance worker and a refuge worker commented that the resident parent is

A domestic violence worker at a Women’s Health Service described the failure to exercise contact as "another power game thing".

Three of the 35 women (8.6%) who were resident parents commented that the contact parent had always stuck to the letter of the contact arrangements. However, the overwhelming majority had not found this to be the case. The primary complaint was that the contact parent failed to arrive at the appointed time or did not return the children at the appointed time. Almost half of the women (n=17, 48.6%) specifically commented on this and two had initiated contravention applications because of repeated lateness. Some women commented that the lateness had an adverse impact on the children. For example, Marcia commented that the child was often dropped off at midnight on a Sunday night, which affected his experience of school the next day. All women mentioned that the lateness and unpredictability had a negative effect on them and any third parties involved in changeover. For example, Bronwyn, whose experience is not uncommon, said that she never knew when he would return the child as he would just walk in when it pleased him. She commented that she believed he was trying to make sure that she was not with someone else by surprising her and that the experience made her uncomfortable.

Conversely, several women described the contact parent dropping the children off unexpectedly early. Sometimes this meant that the children were left at home alone until the resident parent returned. For example, Gina described the contact parent finding out that she had a new boyfriend. On one occasion he dropped the children off when she was away for the weekend and rang her to say that the children were at her home. It took her an hour and a half driving through pouring rain to return to the children.

A number of women mentioned that the contact parent breached conditions of contact that were designed to protect the children. For example, Vivian said that when she originally began dropping the children off for contact the contact parent would be too stoned even to speak – like a zombie or vegetable - and wouldn’t pay any attention to the children. She supervised contact herself on those occasions and it was then made a condition of the contact orders that he not be under the influence of drugs or alcohol when he had contact. Nonetheless he had arrived stoned and once drove off leaving the children’s bags on the side of the road because he was "too whacked to know what he was doing." Sylvia also reported that her former partner was sometimes drunk during contact and that this was contrary to the orders.

Some women who had changeover arrangements designed to protect them by not bringing them into contact with the other parent described the infringement of these arrangements. For example: dropping the children off at her home instead of the agreed changeover point, her former partner sending his girlfriend to do changeover instead of a neutral person, lying in wait for them on the way to the contact centre or following them home.

At least 16 of the 35 women we interviewed who were resident parents described going to considerable efforts to facilitate contact regardless of their own personal feelings about the situation. They said that they did this either because contact was important to their children or because they were legally obliged to facilitate contact arrangements. Thus, women agreed to arrangements that compromised their own personal safety in order to make it easier for the contact parent to keep up contact, such as indicating that the child’s father could come around to their homes and exercise contact whenever and how often it suited him, or personally supervising the contact visits so that they could be sure that the children would be safe whilst it took place. Toni waited several hours in public places when the child’s father did not show up for contact in case he was late. In Tracey’s case, supervised contact broke down in part because her sister was no longer willing to supervise. She then allowed unsupervised contact in spite of being assaulted and abused during changeover because she thought that if the contact parent felt more in control he would behave himself. On one occasion she called his family to try and organise support for him on a contact visit so that it would not be too hard on him to have two small children that he had not seen for several months. Tina tried to organise special contact visits where the father could take the child to do something that they might both enjoy, such as attending a football game. Rachel offered to move out of her home for a month so that the contact parent, who lived overseas, could stay with the children when he came to visit them. Claire, who had a broken leg, organised other people to ferry the children to and from contact visits. Carmen bought bunk beds for the contact parent so that he could have the children overnight. Many women went to considerable efforts to prepare the children for contact, to persuade them that contact was something that they wanted, to insist that contact was something that they had to do, or to persuade them to stay on contact once they were there. For example, Barb said:

Many women went to considerable financial expense to facilitate contact. Diane and Alison received no child support and yet travelled considerable distances on a weekly or fortnightly basis, bearing all the expenses of doing so, in order to facilitate visits at contact centres or gaols. Indeed, a large percentage of contact parents were contributing little or nothing towards the financial support of their children. Of the 29 resident parents who responded as to whether the contact parents was paying child support, 19 (65.5%) said that the contact parent was not paying them any child support. Many of these women supplied food, clothing and nappies for contact visits. Vivian did all of the driving for contact when the contact parent did not have a car. This was despite the fact that she knew that he had told the Child Support Agency (CSA) that he was unemployed, but was working secretly:

Other women paid for the children’s phone calls to the contact parent. Kim regularly paid the contact parent’s phone bill so that it would not be cut off and if there was an emergency with the children whilst he was exercising contact he could call her. Interestingly, many of these women remarked that the contact parent was not only providing no support financially, he was misusing contact arrangements in a way that was a further drain on the women’s resources. For example, Nicole remarked that there was a time when all of the clothes she provided for contact were going missing and so she put in an order that all clothes must be returned. He then started returning them mauled by the dog or with cigarette burns in them.

An example of the lengths some women go to is provided by Megan who, when she first separated, told the father that he could come around and have contact with the children whenever he wanted, which worked out to around three times a week. He was using drugs and his behaviour deteriorated. Eventually she had to get an ADVO because he was throwing bricks through her windows, breaking down the front door and threatening to kill her. She took the children to live in a refuge to keep them all physically safe. Whilst in the refuge she still allowed him to have contact in the face of everyone’s advice, including her solicitor’s, believing that "a father should have contact with his two children… it’s really important." His response was to seriously assault her and abduct the children. Eventually he apologised to her and said that he was off the drugs and she immediately re-instated contact. An interim contact order was made granting him "contact as agreed between the parties". The reason for that wording was because he did not turn up to the interim hearing. He continued to harass her and be violent during contact and contact changeover. She commented that the Court counsellors did not believe her when she was negotiating the most recent round of contact arrangements and stressed that she is not interested in "being a bitch" and depriving him of contact; she just wants to keep her children safe. Eventually final Family Court orders were made but as he didn’t turn up at the final hearing, the order made by the judge was again "contact as agreed by the parties". She "would have preferred to have had definite orders because like.. [the father] is a master and like I was saying – as agreed between the parties – he’s got the perfect opportunity to ring me and say – you know and threaten me and carry on – [despite what] it says on the [ADVO] ..". She has drafted a written contact agreement with the help of a friend.

Thirty of the women we interviewed commented on whether they had ever failed to send the children on contact visits with the other parent. Of these, nine said that they had never denied contact, even when they felt it was not in the best interests of the children. However, Gina commented, that she was getting pretty close to denying contact because of the continued death threats and stalking that she had been experiencing since separation.

Thirteen women commented that there had been one or two occasions when they had not sent the children on agreed or ordered contact visits. In the overwhelming majority of cases the reasons the resident parent gave for not sending children on contact visits related to the well being of the children. These included: the contact parent being under the influence of alcohol, the children being sick, the children being uncomfortable and distressed about having to go, the contact parent being verbally or physically aggressive such that the mother felt concern for the safety of the children, the child making sexual assault allegations, the child having a very important event to attend but being unable to rely on the contact parent to take them, and the resident parent discovering that she did not have the residence order she had thought she did and being afraid that the contact parent would disappear with the children. In Toni’s case, since the contact parent refused to give her his address she had insisted on him signing a document to indicate that he had the children, and on those occasions when he refused to do so she refused contact. She said that she was worried that DOCS might think that she was an irresponsible parent if she handed the children over to him without any contact details and no proof that he had the children.

Only two of these women indicated that their reasons for denying contact on at least one occasion related to their own feelings. Alison said that she had not facilitated contact when she had a particularly busy weekend or was feeling unwell. In this instance, as the father is in gaol, the entire burden of facilitating contact is on her. She has to travel to the prison, wait outside and travel back, as well as bearing all of the expenses of the journey. Yvonne said that she had denied contact on two occasions, once when a DOCS investigation was taking place and once when her ex-partner remarried. In respect of the latter occasion she admitted "[t]hose were just my feelings. I was not thinking of the children."

Five women said that they now always facilitated contact, although there had been a prior period when they had not permitted it. In most of these instances this occurred before contact arrangements were in place and so there were no actual breaches of arrangements or orders. Indeed, these women had all complied with orders that were made later. Once again, the overwhelming concern of these women was the well being of the children. The reasons that women cited for denying contact included: an attempted abduction; a serious incident of violence; during a stage of heavy drug use by her former partner; immediately post separation until the mother was sure that the child would be safe; and while in a refuge.

In the three cases where contact was denied for a period of time after arrangements or orders were in place, the reasons included: the contact parent moving interstate and refusing to supply the mother, Susan, with an address in circumstances where he had threatened to abduct the children in the past; when sexual assault allegations had been made with regard to the child although Dorothy offered the father gradually increasing contact on terms which she thought would provide some measure of safety and comfort for the child, but he refused to accept those terms; and when Nicole’s teenage children refused to go on contact for a period.

Helen was permitting contact in accordance with an informal agreement that modified the consent order between the parties, but was not complying with the original order. The formal agreement was a consent order that gave the father contact from 9 a.m. to 6.30 p.m. every second Saturday and Sunday (in other words, without overnight contact). The arrangements had been changed almost immediately after the consent order was made because the contact parent was working on Saturday and unable to exercise contact on that day. For three years the father had been having contact with the child from 10 a.m. to 5 p.m. every second Sunday. The reduced hours had come about because he was not feeding the child properly and so the arrangements were modified so that the mother could feed the child. However, the contact parent had suddenly demanded that the original consent orders be complied with. This was something that Helen was reluctant to do because she believed that they had an informal agreement had been working satisfactorily for three years and was better for the child than the original orders. She had only refused contact in its modified terms one or two times and this was after she became aware that the contact parent had involved the young child in dangerous activities whilst he had refused to give assurances that he would not do so again.

Despite the numerous breaches of orders by contact parents, most of the women who were resident parents that we interviewed had not sought to enforce the terms of the contact orders by bringing contravention applications. Some commented on the problems that they faced in implementing contact orders or agreements. These were, primarily, the prohibitive cost of going to court, the ultimate hopelessness of getting more court orders with no one to enforce them, and the fear of what the other parent would do to them if they took action. Sylvia described the frustration of going to Legal Aid, the Child’s Separate Representative and the police and finding no one willing to help her about the contact parent continually arriving drunk, in breach of the orders, to exercise contact.

By way of contrast, a number of the women who were the resident parent had experienced having contravention applications being brought against them by the contact parent. For example, Rebecca mentioned that one of her ex-partners would put in an application for contravention of the contact order at the slightest provocation. She said:

As mentioned in Chapter Four, Susan and her ex-partner had been to court on 34 occasions, only four of which were initiated by Susan despite his frequent breaches of the arrangements. She mentioned the prohibitive costs of going to court on each occasion – court costs, travel costs and time off work. This apparent disparity between the numbers of contravention applications brought by non-resident parents and resident parents has been reflected in other research. Helen Rhoades found that 92% of contravention applications were brought by non-resident parents and 3% by resident parents.

Interestingly, at least nine of the women we interviewed were contact parents in relation to some or all of the children, or had been contact parents at some point in time. These women described not being permitted to have contact with the children at all, or rarely having contact – whether by phone or physically - even where orders were in place. Ellen’s diary describing her contact experiences consisted mostly of a list of failed contact visits and attempted phone calls which were either not answered or were ended by the resident parent before she spoke to her children. Most of the women who were contact parents had decided not to try to enforce the orders. For example, Hazel said that the resident parent simply refused to give her contact with the children. She once had contact where she met the children at a Westfield shopping centre but the father assaulted her during contact. She sometimes went to school in the afternoons so that she could see them without exposing them to the possibility of witnessing further violence by their father. Nonetheless her daughter was so afraid of the father coming to school and making a scene that she would only see her mother for ten minutes. The father had retained the children after contact and she had considered obtaining a recovery order, but decided it was pointless because he would only take the children again. Similarly, Marcia commented that she was "in a very difficult situation because if I go to court it’s going to cost me a heap of money to – and who’s going to police it in the end anyway?" Sandra had no contact with her children. She commented that "the papers that you get, if the father doesn’t want to read them and do what it says then there’s – the paper doesn’t help you. The paper doesn’t make him do it."

Some of the professionals spoke about clients trying to vary contact orders if there had been violence around contact. However, this is difficult and the onus is obviously on the woman to initiate any changes. It may be particularly difficult to obtain a variation if the original order was made by consent. Helen Rhoades has suggested that women may appear fickle or selfish "when they seek to alter the contact arrangements they have apparently agreed to." Several professionals mentioned that Legal Aid was often unavailable or difficult to obtain to vary a contact order. A Family Court Counsellor talked about cases where there had been abuse of the woman at changeover and said:

The Counsellor commented that the first step in trying to vary the order would be to try to negotiate with the father of the children. However, that approach may not result in safer contact for the woman in which case she would have to make a court application:

One of the solicitors commented on how difficult it was to successfully vary a contact order in court:

Another solicitor talked about clients who had tried to vary contact orders to make themselves safer:

The solicitor commented that in that case, the woman’s "Legal Aid grant had been pulled" and so they "assisted her with trying to get him breached on his ADVO". Some of the other professionals mentioned that where there has been violence around contact, the woman should attempt to obtain an ADVO, or if she has one already, to report the breach of the ADVO to the police. However, it is interesting to note that none of the professionals mentioned that the Local Court magistrate would have the power under section 68T of the Family Law Act to "make, vary, discharge or suspend" a Family Court contact order when making an ADVO. This lack of awareness or at least use of the magistrates’ powers corresponds with research that shows that very few professionals and magistrates are using the powers to make applications or orders under section 68T.

In keeping with similar studies, we found that most of the women that we interviewed had experienced violence during contact changeover or during contact visits.

It would seem that when one of the parents has been violent to the other and contact is still considered to be in the best interests of the child, the best arrangements for changeover are those in which the two parents do not have contact with each other. These are the arrangements that come the closest to keeping women physically safe and sparing children the trauma of witnessing further violence or adult conflict. This is in keeping with suggestions made in other research.

One way of making contact and / or changeover safer would be the greater provision of child contact centres. However, it must be recognised that not all centres are able to provide the level of supervision required in some cases.

It also should not be assumed that the provision of a neutral or safe changeover location, or even supervision, means that the actual contact is beneficial to the child. The link between spousal abuse and child harm may still be present even if the children are no longer witnessing the violence. In terms of the impact of contact on the children themselves, a significant proportion of women in our project describe their children as being unsettled after contact or disturbed about having to go on contact, and an overwhelming majority describe abusive or neglectful behaviour by the contact parent towards the children during contact visits or in the exercise of residence. Of grave cause for concern are those cases in which children have been forced, or placed under pressure, to go on contact with the abusive parent after they have clearly indicated that they do not want to.

Many women have had difficulties with breaches of the contact arrangements. Almost half of the women describe abductions or threats to abduct or the non-return of the children after contact, nearly half of the women describe the contact parent failing to exercise contact arrangements that were made, and a majority of the women describe the contact parent not sticking to agreed or court ordered times and places for contact changeover. In addition, women with conditions on contact relating to the non-consumption of intoxicating substances often found these to be breached. Women also experienced great difficulty enforcing the contact arrangements that they had in the face of these types of breaches.

Despite all these problems we found that the resident mothers generally have a fairly strong commitment to the value of contact between children and the other parent. Indeed we found that many of the mothers were going to extraordinary lengths to facilitate contact. However, some of the mothers had become disillusioned with the value of contact in circumstances where the contact parent is neglectful or abusive. It is probably not possible to make hard and fast rules about the value to children of contact with a violent parent. Indeed, given that our research did not measure the relationship between contact and children’s well being other than to ask mothers about children’s behaviour at home after contact, we are unable to make specific findings on this. Nonetheless, the mothers’ concerns about the children’s well being during and after contact lead us to suggest that, in cases of domestic violence, it should not be presumed that contact is in the best interests of the child. Obviously each case will need to be carefully examined on the facts. However, it may be that a better starting point is a presumption against unsupervised contact when there has been violence. Such a presumption is in place in New Zealand and preliminary studies suggest that this has resulted in a general trend towards safer orders for women and children in such circumstances.

The study found that for most of the women interviewed, the end of the relationship had not meant an end to violence towards them. Much of this violence was linked in some way to the negotiation and exercise of child contact. We have found that the protection of women and children from domestic violence is frequently overlooked in the process of negotiating and implementing child contact arrangements. This oversight appears to stem from the fact that concerns about domestic violence are often overridden by views about the best interests of the child that assume that the best interests of the child always require contact with both parents, even in those cases where there is real cause to question that. Furthermore, there are problems making contact safe for women and children because of the general lack of access to contact centres. We found many instances of unsafe contact arrangements made both by private agreement and by court order.

The study found an absence of, or failures with screening violent relationships at various points in the system. There was also a mistaken presumption amongst professionals that women who are victims of violence can and will self identify.

The study found that separate Family Court counselling in cases of domestic violence was not uniformly supported or practiced by counsellors and that some of these cases are being mediated despite a general belief that cases involving domestic violence are not appropriate for mediation. We recommend that the Family Court Violence Committee review the policies and practices of counselling and mediation in cases of violence in the Family Court registries in their current Family Violence Consultation.

There is a real concern about whether the child’s best interests are genuinely being protected in cases where child contact and domestic violence co-exist. For example, it is now widely recognised that witnessing domestic violence perpetrated on one of their parents generally influences children’s behavior detrimentally. Given the high levels of violence during contact and contact changeover found in the study, much of which was witnessed by children, it must be questioned whether that contact was in the children’s best interests. Furthermore most of the professionals that we interviewed saw violence against a parent as irrelevant to or separable from children’s interests.

It is also of concern that the safety of the women themselves (even separate from the children’s best interests) was not seen as a major factor when negotiating contact arrangements. Our research found a presumption held by many professionals that certain changeover arrangements such as in public places or with third party assistance were sufficient to ensure women’s safety. However, it was also clear from the interviews with women that this presumption is ill founded.

Pressures on the women to consent to contact and even to become non-resident parents were enormous and led to women consenting to arrangements that compromised either their own personal safety or were not in the best interests of the children. Additionally, court orders such as ‘contact as agreed between the parties’ provided even greater opportunities for abuse than no order at all.

There was a suggestion by several women and many of the professionals that the outcome of their cases were influenced by some notion of standard, or minimum, orders. This notion of standard contact orders means that women are constrained from arguing for what they really feel is safe and appropriate because they are led to believe that any such argument would be futile. If it is the case that the outcomes of matters in which domestic violence has occurred do not differ from those where there is no history of domestic violence then it must be asked to what extent domestic violence is being given consideration in determining a child’s best interests in decision-making about contact.

These problems may be ameliorated by reform to the Family Law Act 1975 so that where there is a history of domestic violence for contact to occur a case must be made that it would be in the best interests of the children. This would be similar to the position in New Zealand where section 16B Guardianship Act 1968 requires a court not to give the violent party custody or access – other than supervised access – unless satisfied that the child will be safe. Additionally, the New Zealand Domestic Violence Act 1995 provides that, when there is a Protection Order in place, the respondent may not contact any child of the applicant’s family, unless contact is permitted under any order or written agreement.

A change to the Family Law Act 1975 introducing a presumption against contact where there has been violence would not only direct the Court to prioritise the safety of children, but would also provide a backdrop for negotiations in such cases. Previous researchers have recommended that:

We endorse that recommendation and note the New Zealand research which found that the 1995 changes to the Guardianship Act together with the Domestic Violence Act 1975 have empowered custodial parents to resist pressure to make access arrangements that they felt would place their children at risk. However, it should be noted that introduction of similar provisions would not provide solutions for those families where the woman is so scared of her ex-partner that she is too frightened to apply for an ADVO or to take family law proceedings. The introduction of this legislation would also not address the problems that we found in relation to supervised contact or the ADVO system.

Australia’s Constitution means that neither the Commonwealth nor the States have exclusive competence in areas of law that may be considered "Family Law" in other systems. The impact of this for women in our study was that child protection and protection from family violence by obtaining an ADVO were matters generally dealt with by State law, whilst parenting orders were matters for Commonwealth law. Many of the women therefore had been involved in matters in two or more courts. This led to frustration and confusion in many cases.

Division 11 of the FLA 1975 was introduced in 1995 to deal with inconsistencies between FLA contact orders and State and Territory family violence orders. However, we found that many of the women received ADVOs that were "subject to Family Court contact orders" so that there was no actual inconsistency between the ADVO and a subsequent contact order. Several of these women then experienced problems in obtaining police action when potential breaches of the ADVO were reported to the police due to apparent difficulties in establishing whether a breach had occurred. We agree with the comment made by a judge to previous researchers which was that the use of pro-forma family violence orders with exceptions for court ordered contact is "a cop-out" which "avoids the real problem of women’s safety". We recommend that Magistrates be educated about domestic violence, child abuse and their inter-relationship.

Division 11 also introduced a power for Magistrates to "make, vary, discharge or suspend" a contact order made under the Family Law Act when making or varying an ADVO. However, our research showed a number of instances where Magistrates had not used this power even where it would have been the most appropriate action and also that professionals interviewed were generally unaware of or hesitant to consider the use of the power. This is consistent with earlier research. We recommend that Magistrates, police prosecutors and solicitors be educated about the existence and use of this power.

In cases involving child abuse allegations the major concerns raised from the overlapping jurisdictions included the perceived failures by DOCS to take action, particularly when the Family Court was already involved, and the complexities of having matters in two or more different courts. A streamlined system for dealing with such cases, together with better coordination between DOCS and the Family Court, is long overdue in NSW. Pilot programs to deal with these cases in an integrated and multidisciplinary way currently exist in Victoria (Magellan) and Western Australia (Columbus). The Magellan project has been evaluated as an "outstanding success". We note that the definition of ‘child abuse’ used in the West Australian Columbus Project includes physical and sexual abuse, substance abuse, psychiatric illness, domestic violence and the witnessing of domestic violence. The Magellan definition does not include this final category. We await the results of the external evaluation of the Columbus project with interest.

An additional important benefit of a Magellan/ Columbus style project would be that the project would involve the use of the same team for the entire legal proceedings of a case. This would ensure continuity of case management for each case and the development of expertise in the details and dynamics as it progressed. This would be extremely beneficial given comments by some of the women about the advantages of continuity with professionals, particularly those women whose ex-partners were extremely litigious.

We support the recommendation of the Family Law Pathways Advisory Group:

There was a high level of unsupervised contact arrangements in our study despite the fact that the father of the children had a past record of violence towards the mother of the children (often witnessed by the children), and in a significant number of instances towards the children themselves. Where contact had been supervised, such supervision was often informally by the mother herself or by family or friends. Those supervision arrangements had all proved problematic.

There was substantial support from both the women and professionals interviewed for formal supervised contact centres. However, few of the women interviewed had been able to use a centre for changeover or contact because there was not one available in their area, and even those who had used a centre found that it was only available for a short period due to the high level of demand for the centres’ services.

There has been an increase in funding by the Commonwealth Government to increase the number of centres, but it was clear from the research that there are still insufficient centres at least in the Sydney metropolitan area. The Australian Children’s Contact Services Association (ACCSA) has developed standards that take account of issues of domestic violence and child abuse. Any funding of further centres should include a requirement that they meet the ACCSA standards.

Not all centres are able to offer a highly vigilant level of supervision. Solicitors and judges should be encouraged to acquaint themselves with the services available at their local supervised contact centre and should not assume that a centre is able to deal with all levels of supervision.

The existence of supervised contact centres should not be seen as a ‘panacea’ to deal with all difficult contact cases. In some cases, no contact may be the most appropriate outcome. As noted above, however, we found that it was extremely rare for a ‘no-contact’ order to be made even in cases of severe domestic violence.

If supervised contact is appropriate on the facts of a particular case, then it is important to also consider whether longer-term supervised contact might be preferable to short-term supervision in the circumstances.

The high levels of violence found in this study during the negotiation and the exercise of contact are of extreme concern. The system is obviously not responding effectively to the needs of women and children where there has been domestic violence. We hope that this research provides useful information to guide policy, practice and law reform to improve the system.

Source: Reprinted with permission from Minnesota Program Development, Inc., Domestic Abuse Intervention Project, 202 E. Superior Street, Duluth, MN 55802.

Blanch v Blanch and Crawford (1999) FLC 92-837

Re L (Contact: Domestic Violence); Re V (Contact: Domestic Violence); Re M (Contact: Domestic Violence); Re H (Contact: Domestic Violence) [2000] 2 FLR 334

Patsalou (1995) FLC 92-580

T and S (2001) FLC 93-086

Crimes Act 1900 (NSW)

Crimes Amendment (Apprehended Violence) Act 1999 (NSW)

Crimes (Family Violence) Act 1987 (Vic)

Crimes (Sentencing Procedure) Act 1999 (NSW)

Domestic Violence Act 1995 (NZ)

Domestic Violence Act (NT)

Domestic Violence (Family Protection) Act 1989 (Qld)

Domestic Violence Act 1994 (SA)

Family Law Act 1975 (Cth)

Family Law Amendment Act 2000 (Cth)

Family Law Reform Act 1995 (Cth)

Firearms Act 1996 (NSW)

Guardianship Act 1968 (NZ)

Justices Act 1959 (Tas)

Protection Orders Act 2001 (ACT)

Restraining Orders Act 1997 (WA)

Alessi, Joseph and Kristin Hearn (1984) ‘Group Treatment of Children in Shelters for Battered Women’ in A. Roberts (ed) Battered Women and their Families, Springer.

Amato, Paul R and Joan G Gilbreth (1999) ‘Nonresident fathers and children’s well-being: A meta-analysis’ 61 Journal of Marriage and the Family 557.

Amato, Paul R and Sandra Rezac (1994) ‘Contact with residential parents, interparental conflict, and children’s behaviour’ 15 Journal of Family Issues 191.

Aris, Rosemary, Chris Harrison and Cathy Humphreys (forthcoming) Identifying Thresholds: Arrangements for contact in the context of domestic violence and other child welfare concerns, University of Warwick.

Astor, Hilary (1991) Position Paper on Mediation, National Committee on Violence Against Women.

Astor, Hilary (1994) ‘Swimming Against the Tide: Keeping Violent Men Out of Mediation’ in J Stubbs (ed) Women, Male Violence and the Law, Institute of Criminology.

Astor, Hilary (1995) ‘The Weight of Silence: Talking about Violence in Family Mediation’ in M Thornton (ed) Public and Private: Feminist Legal Debates" Oxford University Press.

Australian Bureau of Statistics (1996) Women’s Safety Survey, Australian Bureau of Statistics.

Australian Law Reform Commission (1984) Equality Before the Law: Justice for Women, Report No. 69 Part I. Australian Law Reform Commission.

Australian Law Reform Commission (1995) For the Sake of the Kids: Complex Contact Cases and the Family Court, Report No. 73, Australian Law Reform Commission.

Australian Law Reform Commission and Human Rights and Equal Opportunity Commission (1997) Seen and Heard: Priority for Children in the Legal Process, Report No.84, Australian Law Reform Commission.

Bailey, Martha (1999) ‘Supervised Access: A Long-Term Solution?’ 37 Family and Conciliation Courts Review 478.

Bailey-Harris, Rebecca (1996) ‘The Family Law Reform Act 1995: A New Approach to the Parent/Child Relationship’ 18 Adel.L.R. 83.

Bala, Nicholas, Lorne Bertrand, Joanne Paetsch, Bartha Knoppers, Joseph Hornick, Jean-François Noel, Lorraine Boudreau and Susan Miklas, (1998) Spousal Violence in Custody and Access Disputes: Recommendations for Reform, Status of Women Canada Policy Research Fund.

Barnett, Adrienne (1999) ‘Disclosure of Domestic Violence by Women involved in Child Contact Disputes’ 29 Fam Law 104.

Behrens, Juliet (1996) ‘Shared Parenting: Possibilities… and Realities’ 21 Alternative LJ 213.

Blanchard, Anne (1993) ‘Violence in Families: the effects on children’ 34 Family Matters 31.

Blazejowska, Louise (1994) ‘Sorting out the Myths and Reality of Domestic Violence’ 32:11 Law Society Journal 41.

Bonney, Roseanne (1988) Homicide II, NSW Bureau of Crime Statistics and Research.

Bowker, Lee H., Michelle Arbitell and J. Richard McFerron (1988) ‘On the Relationship Between Wife Beating and Child Abuse’ in K Yllo and M Bograd (eds) Feminist Perspectives on Wife Abuse, Sage.

Brown, Thea, Margarita Frederico, Lesley Hewitt and Rosemary Sheehan (1998) Violence in Families. The Management of Child Abuse Allegations in Custody and Access Disputes before the Family Court of Australia, The Family Violence and Family Court Research Program, Monash University and the Australian Catholic University Canberra.

Brown, Thea, Rosemary Sheehan, Margarita Frederico and Lesley Hewitt (2001) Resolving Family Violence to Children: The evaluation of Project Magellan, a pilot project for managing Family Court residence and contact disputes when allegations of child abuse have been made, Monash University, Melbourne.

Busch, Ruth (1994) "Don’t Throw Bouquets at me…(Judges) will say we’re in Love" in J Stubbs (ed) Women, Male Violence and the Law, Sydney Institute of Criminology.

Busch, Ruth (1994) Written Submission to Sir Donald Davison for the Bristol Inquiry.

Busch, Ruth and Neville R Robertson (1994) ‘Not in Front of the Children’ 1 Butterworths Family Law Journal 107.

Cavanagh, Kate, R Emerson Dobash, Russell P Dobash and Ruth Lewis (2001) ‘‘Remedial work’: Men’s strategic responses to their violence against intimate partners’ 35 (3) Sociology 695.

Center for Health and Gender Equity (1999), Population Reports: Ending Violence Against Women, Volume XXVII, Number 4. Population Information Program, Center for Communication Programs, The Johns Hopkins School of Public Health.

Chetwin, Alison, Trish Knaggs and Patricia Te Wairere Ahiahi Young (1999) The Domestic Violence Legislation and Child Access in New Zealand, Ministry of Justice.

Children Act Sub-Committee of the Advisory Board on Family Law (1999) Contact Between Children and Violent Parents: The Question of Parental Contact in Cases Where there is Domestic Violence, Lord Chancellor’s Department.

Chief Justice’s Direction As to the Management of Cases Involving Family Violence, 15 January 1993.

Christopoulos, Christina, Deborah A. Cohn, Daniel S. Shaw, Susan Joyce, Jean Sullivan-Hanson, Sherry P. Kraft and Robert E. Emery (1987) ‘Children of Abused Women: 1. Adjustment at Time of Shelter Residence’ 49 Journal of Marriage and the Family 611.

Church, John (1985) Family Violence: its effects on children and schools, New Zealand Council for Educational Research.

Cobb, Sara (1997) ‘The domestication of violence in mediation’ 31 Law and Society Review 397.

Coumarelos, Christine and Jacqui Allen (1999) ‘Predicting Women's Responses to Violence: The 1996 Women's Safety Survey" 47 Crime and Justice Bulletin 1. NSW Bureau of Crime Statistics and Research.

Dang, K and C Alcorso (1990) Better on Your Own: A Survey of Domestic Violence Victims within the Vietnamese, Khmer and Lao Communities, Vietnamese Women’s Association.

Davidson, Howard H (1994) A Report to the President of the American Bar Association: The impact of Domestic Violence on Children, American Bar Association.

Davies, Jill, Eleanor Lyon and Dianne Monti-Catania (1998). Safety Planning with Battered Women: Complex Lives/Difficult Choices, Sage.

Davis, Gwynn (1988) Partisans and Mediators, Oxford University Press.

Davison, Ronald (1994) Report of Inquiry into Family Court Proceedings Involving Christine Madeline Bristol and Alan Robert Bristol, Report of the New Zealand Minister of Justice.

De Vaus, David A. (1985) Surveys in social research, Allen & Unwin.

Denzin, Norman (1998) ‘Introduction’ in N Denzin and Y Lincoln (eds) Strategies of Qualitative Inquiry, Sage.

Department of Justice, Victoria (1996) Crimes (Family Violence) Act Monitoring Report 1995/1996, Department of Justice (Vic).

Department of Justice, Victoria (1997) Crimes Family Violence Act 1996/97 Monitoring Report, Department of Justice (Vic).

Dessau, Linda Hon. J. (1998) A Unified Family Court, http://www.familycourt.gov.au/papers/html/dessau2.html, last accessed 22 October 2002.

Dewar, John and Stephen Parker (1999) Parenting, planning and partnership: The Impact of the New Part VII of the Family Law Act 1975, Family Law Research Unit Working Paper No 3, Faculty of Law, Griffith University.

Dewar, John, Barry W. Smith and Cate Banks (2000) Litigants in Person in the Family Court of Australia, Family Court of Australia.

Dobash, Russell P, R Emerson Dobash, Margo Wilson and Martin Daly (1992) ‘The myth of sexual symmetry in marital violence’ 39 Social Problems 71.

Dobash, Russell, R Emerson Dobash, Kate Cavanagh and Ruth Lewis (1998) ‘Separate and intersecting realities: A comparison of men’s and women’s accounts of violence against women’ 4 Violence Against Women 382.

Domestic Violence Legislation Working Group (1997) Model Domestic Violence Laws Discussion Paper, The Domestic Violence Legislation Working Group.

Domestic Violence Legislation Working Group (1999) Model Domestic Violence Laws Report, The Domestic Violence Legislation Working Group.

Doyle, Stephen E., Janet M Bowermaster, JR Meloy, Donald Dutton, Peter Jaffe, Stephen Temko and Paul Mones (1994) ‘Custody Disputes Involving Domestic Violence: Making Children's Needs a Priority’ 50 Juvenile and Family Court Journal 1.

Easteal, Patricia (1993) Killing the Beloved: Homicide Between Adult Sexual Intimates, Australian Institute of Criminology.

Echevarria, Anita and Anoop Johar (1996) Beyond Bitter Moments: Non-English Speaking Background Women’s Access to Support Services for Survivors of Domestic Violence, Ettinger House.

Edleson, Jeffrey L (1999) ‘Children’s Witnessing of Adult Domestic Violence’ 14 Journal of Interpersonal Violence 839.

Egger, Sandra and Julie Stubbs (1993) The Effectiveness of Protection Orders in Australian Jurisdictions, Australian Government Publishing Service.

Ellis, Desmond and Walter DeKeseredy (1989) ‘Marital status and woman abuse: The DAD model’ 19 Int J of Sociology of the Family 67.

Eriksson, Maria and Marianne Hester (2001) ‘Violent men as good enough fathers? A look at England and Sweden’ 7 Violence Against Women 779.

Family Court of Australia, Case Management Guidelines, http://www.familycourt.gov.au/html/

Family Law Council (2000) The Best Interests of the Child? The interaction of public and private law in Australia, Discussion Paper No 2, Commonwealth of Australia.

Family Law Pathways Advisory Group (2001) Out of the Maze: Pathways to the Future for Families Experiencing Separation, Commonwealth of Australia.

Felhberg, Belinda and Fiona Kelly (2000) ‘Jurisdictional overlaps between the Family division of the Children’s court of Victoria and the Family Court of Australia’ 14 (3) Australian Journal of Family Law 211.

Fehlberg, Belinda and Fiona Kelly (2002) ‘Australia’s Fragmented Family Law System: Jurisdictional Overlap in the Area of Child Protection’ 16 International Journal of Law, Policy and the Family 38.

Fergusson, David, and Horwood, John (1998) ‘Exposure to Interparental Violence in Childhood and Psychosocial Adjustment in Young Adulthood’ 22 Child Abuse and Neglect 339.

Fineman, Martha (1988) ‘Dominant Discourse, Professional Language and Legal Change in Child Custody Decision making’ 101 Harvard LR 727.

Fischer, Karla and Mary Rose (1995) ‘When enough is enough: Battered women’s decision making around court orders of protection’ 41 Crime & Delinquency 414.

Foster, D (1998) ‘Process and Procedures in Counselling at the Family Court of Australia’ a paper presented at the Ethnic Family Values and The Family Law Reform Act 1995 Conference, University of Sydney, August.

Furniss, Claire (2000) ‘The process of referral to a family contact centre: policies and practices’ 12 Child and Family Law Quarterly 255.

Goundry, Sandra, Yvonne Peters, Rosalind Currie and Equality Matters! in association with National Association of Women and the Law (1998) Family Mediation in Canada: Implications for Women’s Equality: A Review of the Literature and Analysis of Data from Four Publicly Funded Canadian Mediation Programs, The Status of Women Canada’s Policy Research Fund.

Halliday, Eunice and Margaret Briant (1998) ‘Supervised or Supported Contact – Indications’ presented at the First International Conference on Child Access Services, Paris.

Harne, Lynne and Jill Radford (1994) ‘Reinstating Patriarchy: The Politics of the Family and the New Legislation’ in A Mullender and R Morley (eds) Children Living with Domestic Violence: Putting Men’s Abuse of Women on the Child Care Agenda, Whiting & Birch Ltd.

Harrison, Judy, and Juliet Behrens (1993) Inequality, Power and Control: Relevance to Domestic Violence Responses in the ACT and to the Family Law Reform Bill, paper presented at the First Annual Forum on Justice for Women, organised by the National Women’s Justice Coalition, Canberra, March.

Harrison, Margaret (2002) ‘Australia’s Family Law Act: The First Twenty-Five Years’ 16 International Journal of Law, Policy and the Family 1.

Hart, Barbara (1988) Safety for women: Monitoring batterers programs, Pennsylvania Coalition Against Domestic Violence Harrisburg Pa.

Hester, Marianne and Lorraine Radford (1996) Domestic Violence and Child Contact Arrangements in England and Denmark, The Policy Press.

Hester, Marianne, Chris Pearson and Lorraine Radford (1997) Domestic violence, A national survey of court welfare and voluntary sector mediation practice, The Policy Press.

Hetherington, E Mavis (1999) Coping with divorce, single parenting, and remarriage, Lawrence Erlbaum Associates.

Hickey, Jennifer and Stephen Cumines (1999) Apprehended violence orders: a survey of magistrates, Judicial Commission of New South Wales.

Hooper, Carol-Ann (1992) Mothers Surviving Sexual Abuse, Routledge.

Hore, Elizabeth, Jane Gibson and Sophy Bordow (1996) Domestic Homicide, Research Report 13, Family Court of Australia.

Hughes, Honore M., Sandra A. Graham-Bermann and Gabrielle Bruber (2001) ‘Resilience in Children Exposed to Domestic Violence’ in SA Graham-Bermann and JL Edleson (eds) Domestic Violence in the Lives of Children: The Future of Research, Intervention, and Social Policy, American Psychological Association.

Human Rights and Equal Opportunity Commission (1997) Bringing Them Home: Report of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from their Families, Human Rights and Equal Opportunity Commission.

Humphreys, Catherine (1997) ‘Child Sexual Abuse Allegations in the Context of Divorce: Issues for Mothers’ 27 British J of Social Work 529.

Hunter, Rosemary (2002) "Through the looking glass: Client’s perceptions and experiences of Family law litigation" (2002) 16 AJFL 7.

Hunter, Rosemary (2000) Legal Services In Family Law, Justice Research Centre.

Hunter, Rosemary (1999a) Family Law Case Profiles, Justice Research Centre.

Hunter, Rosemary (1999b) ‘Having her day in court? Violence, Legal Remedies and Consent’ in Jan Breckenridge & Lesley Laing (eds) Challenging silence: Innovative Responses to Sexual and Domestic Violence Allen & Unwin, Sydney.

Hunter, Rosemary (1998) ‘Litigants in person’ 12 AJFL 171.

Hunter, Rosemary, Ann Genovese, April Chrzanowski and Carolyn Morris (2002) The changing face of litigation: Unrepresented litigants in the Family Court of Australia, Law & Justice Foundation, Sydney.

Hunter, Rosemary and Julie Stubbs (1999) ‘Model laws or missed opportunity? Recent Proposals Concerning Domestic Violence Law Reform’ 24 (1) Alternative Law Journal 12.

Indermaur, David (2001) ‘Young Australians and Domestic Violence’ 195 Trends and Issues in Crime and Justice, Australian Institute of Criminology.

Ingleby, Richard (1996) ‘The Family Law Reform Act - a Practitioner’s Perspective’ 10 AJFL 48.

Jaffe, Peter G., David A. Wolfe and Susan Kaye Wilson (1990) Children of Battered Women, Sage.

Jaffe, Peter G., Samantha E. Poisson and Alison Cunningham (2001) ‘Domestic Violence and High-Conflict Divorce: Developing a New Generation of Research for Children’ in SA Graham-Bermann and JL Edleson (eds) Domestic Violence in the Lives of Children: The Future of Research, Intervention, and Social Policy, American Psychological Association.

Johnson, Michael P (1995) ‘Patriarchal terrorism and common couple violence: Two forms of violence against women’ 57 Journal of Marriage & the Family 283.

Johnston, Janet R and Robert B Straus (1999) ‘Traumatised Children in Supervised Visitation’ 37(2) Family and Conciliation Courts Review 135.

Johnston, Janet R (1994) ‘High conflict divorce’ 4 The Future of Children: Children and Divorce 165.

Jones, Elizabeth and Patrick Parkinson (1995) ‘Child Sexual Abuse, Access and the Wishes of Children’ 9 International J of Law and the Family 54.

Judicial Commission of NSW (1996-97) Annual Reports, Judicial Commission of NSW.

Katzen, Hayley (2000a) ‘How Do I Prove I Saw His Shadow?’: Responses to Breaches of Apprehended Violence Orders, Northern Rivers Community Legal Centre.

Katzen, Hayley (2000b) ‘It’s a Family Matter, not a Police Matter: The Enforcement of Protection Orders’ 14 Australian Journal of Family Law 119.

Kearney McKenzie and Associates (1998) Review of Division 11: Report. (Kearney McKenzie & Associates).

Kelly, Fiona and Belinda Fehlberg (2002) ‘Australia’s fragmented family law system: Jurisdictional overlap in the area of child protection’ 16 International J of Law, Policy & the Family 38.

Kelly, Joan B (2001) ‘Legal and educational interventions for families in residence and contact disputes’ 15 Australian J of Family Law 92.

Kelly, Liz (1994) ‘The Interconnectedness of Domestic Violence and Child Abuse’ in A Mullender and R Morley (eds) Children Living with Domestic Violence: Putting Men’s Abuse of Women on the Child Care Agenda, Whiting & Birch Ltd.

Keys Young, for Legal Aid and Family Services (1996) Research/ Evaluation of Family Mediation Practice and the Issue of Violence, A-G’s Dept.

Keys Young (1998) Against the Odds: How Women Survive Domestic Violence, The Office for the Status of Women, Department of the Prime Minister and Cabinet.

Kovacs, Katie (2002) ‘Domestic violence, children and family law in Australia and New Zealand’ 10 Child Abuse Prevention Newsletter 1.

Lewis, Ruth, Russell Dobash, Rebecca Dobash, and Kate Cavanagh (2000) ‘Protection, prevention, rehabilitation or justice? Women’s use of law to challenge domestic violence’ 7(1/2/3) International Review of Victimology 179.

Maguigan, Holly (1991) ‘Battered women and self defense: Myths and misconceptions in current reform proposals’ 140 University of Pennsylvania Law Review 379.

Mahoney, Martha (1994) ‘Victimization or Oppression? Women’s Lives, Violence, and Agency’ in M Fineman and R Mykitiuk (eds.) The Public Nature of Private Violence: The Discovery of Domestic Abuse, Routledge.

Mahoney, Martha (1991) ‘Legal images of battered women: redefining the issue of separation’ 90 Michigan Law Review 1.

McMillan Michael (1999) ‘Should we be more apprehensive about Apprehended Violence Orders?’ 37 (11) Law Society Journal 48.

Merry, Sally Engle (1995) ‘Gender violence and legally engendered selves’ 2(1-2) Identities 49.

Mertin, Peter (1995) ‘A Follow Up Study of Children from Domestic Violence’ 9 AJFL 76.

Millbank, Jenni (2002) ‘Domestic Violence, the unrepresented litigant and access to justice’ http:www.familycourt.gov.au/papers/html/millbank2.html, 23 September 2002.

Morley, Rebecca and Mullender, Audrey (1994) ‘Domestic Violence and Children: What Do We Know From Research?’ in A Mullender and R Morley (eds) Children Living with Domestic Violence: Putting Men’s Abuse of Women on the Child Care Agenda, Whiting & Birch Ltd.

Mouzos, Jenny (2000) Homicidal Encounters: A Study of Homicide in Australia 1989-1999, Research and Public Policy Series, No 28. Australian Institute of Criminology.

Mullender, A. and R Morley (eds) (1994) Children Living with Domestic Violence. Putting Men’s Abuse of Women on the Child Care Agenda, Whiting and Birch Ltd.

National Organisation of Women Legal Defense and Education Fund (1995) Domestic Violence and the Law (US) New York, NY NOW.

Neave, Marcia (1995) ‘Private Ordering in Family Law --Will Women Benefit?’ in M Thornton (ed) Public and Private: Feminist Legal Debates, Oxford University Press.

Neilson, Linda (2001) Spousal abuse, Children and the Legal System, Final Report for Canadian Bar Association, Law for the Futures Fund, March 2001 Muriel McQueen Fergusson Centre for Family Violence Research, University of New Brunswick

http://www.unbf.ca/arts/CFVR/spousal_abuse.pdf.

Nicholson, Alistair Hon. CJ and Margaret Harrison (2000) ‘Family Law and the Family Court of Australia: Experiences of the First 25 Years’ 24 Melbourne University Law Review 756.

Nicholson, Alistair Hon. CJ (2001) ‘In the Child’s Best Interest: Inter-disciplinary approaches to child abuse and family violence’. Paper presented at the Columbus Pilot Launch and Symposium in Perth at November, and can be viewed at http://www.familycourt.gov.au/papers/html/columbus.html, last accessed 22 October 2002.

NSW Child Protection Council’s Child Death Review Committee (1995) Preventing Child Homicide, NSW Child Protection Council.

NSW Ombudsman (1999) Policing Domestic Violence in NSW, NSW Ombudsman.

Nyman, Trevor (1999) ‘Apprehended violence : industry or disease?’ 37 (11) Law Society Journal 52.

O’Hara, Maureen (1994) ‘Child Deaths in Contexts of Domestic Violence’ in A Mullender and B Morley (eds) Children Living With Domestic Violence, Birch and Whiting.

O'Brien Mary U (1996) ‘Mutual restraining orders in domestic violence civil cases’ Special issue Clearinghouse Review 231.

Office of Juvenile Justice and Delinquency Prevention (US) (2000) Safe from the start: Taking action on children exposed to violence, US Department of Justice.

Pagelow, Mildred (1990) ‘Effects of domestic violence on children and their consequences for custody and visitation agreements’ 7 Mediation Quarterly 347.

Parker, Stephen, Patrick Parkinson and Juliet Behrens (1994) Australian Family Law in Context: Commentary and Materials, The Law Book Company.

Parker, Stephen, Patrick Parkinson and Juliet Behrens (1999) Australian Family Law in Context: Commentary and Materials, 2^nd ed., LBC Information Services.

Partnerships Against Domestic Violence, What is domestic violence? website: http://www.padv.dpmc.gov.au/partdv.htm

Peled, Einat (2001) ‘Ethically Sound Research on Children’s Exposure to Domestic Violence: A Proposal’ in SA Graham-Bermann and JL Edleson (eds) Domestic Violence in the Lives of Children: The Future of Research, Intervention, and Social Policy, American Psychological Association.

Pence, Ellen (1989) The Justice System’s Response to Domestic Assault Cases: a Guide for Policy Development, Duluth, Minnesota: Minnesota Program Development Inc.

Piper, Christine (1993) The Responsible Parent, Harvester Wheatsheaf.

Pocock, Tania and Fiona Cram (1996) ‘Children of Battered Women’ 4 Waikato Law Review 76.

Ptacek, James (1999) Battered women in the courtroom: The power of judicial responses, Northeastern University Press.

Queensland Domestic Violence Taskforce (1988) Beyond These Walls, Ministry for Family Services.

Radford, Lorraine and Marianne Hester (2001) ‘Overcoming Mother Blaming? Future Directions for Research on Mothering and Domestic Violence’ in SA Graham-Bermann and JL Edleson (eds) Domestic Violence in the Lives of Children: The Future of Research, Intervention, and Social Policy, American Psychological Association.

Radford, Lorraine, Sarah Sayer and AMICA (1999) Unreasonable Fears? Child contact in the Context of Domestic Violence: A Survey of Mothers’ Perceptions of Harm, Women’s Aid Federation of England.

Rendell, Kathryn, Zoe Rathus and Angela Lynch (2000) An Unacceptable Risk: A Report on Child Contact Arrangements where there is Violence in the Family, for the Abuse Free Group auspiced by Women’s Legal Service Inc.

Rhoades, Helen (2002) ‘The ‘No Contact Mother’: Reconstructions of Motherhood in the Era of the ‘New Father’’ 16 International Journal of Law, Policy and the Family 71.

Rhoades, Helen, Reg Graycar and Margaret Harrison (2000) The Family Law Reform Act 1995 The first three years, Final Report University of Sydney and the Family Court of Australia.

Rhoades, Helen, Reg Graycar and Margaret Harrison (1999) Family Law Reform Act 1995: Can Changing Legislation Change Legal Culture, Legal Practice and Community Expectations? http://www.familycourt.gov.au/html/fla1summary.html.

Robertson, Neville, and Ruth Busch (1994) ‘Not in Front of the Children – The Literature on Spousal Violence and its Effects on the Children’ Butterworths Family Law Journal 107.

Rodgers Bryan and Jan Pryor (1998) Divorce and separation: The outcomes for children, Joseph Rowntree Foundation.

Rosie’s Place and the Women’s Legal Resources Centre (2000) Systemic Problems in Child Protection: A Community Discussion Paper^, August, on file with the authors.

Rumm, Peter D., Peter Cummings, Margot R. Krauss, Michelle A. Bell and Frederick P. Rivara (2000) ‘Identified Spouse Abuse as a Risk Factor for Child Abuse’ 24 Child Abuse and Neglect 1375.

Seaman, Nicola (1997) Fair Shares? Barriers to Equitable Property Settlements for Women, Women’s Legal Services Network.

Seuffert, Nan (1996) ‘Locating Lawyering: Power, Dialogue and Narrative’ 18 Sydney Law Review 523.

Seuffert, Nan (1995) ‘Hanging Out at the Gap: A Dialogue Reading of Experiences of Survivors of Domestic Violence with Legal Representation’ 8 Canadian Journal of Women and the Law 290.

Seuffert, Nan (1994) ‘Lawyering and Domestic Violence: A Feminist Integration of Experiences Theories and Practices’ in J Stubbs (ed) Women, Male Violence and the Law, Institute of Criminology.

Seuffert, Nan (1996) ‘Lawyering for Women Survivors of Domestic Violence’ 4 Waikato LR 1.

Shaw, Jeff (2000) ‘Apprehended Violence Orders : neither industry nor disease’ 38 (1) Law Society Journal 64.

Sheehan, Grania, and Bruce Smyth (2000) ‘Spousal Violence and Post-Separation Financial Outcomes’ 14 Australian Family Law Journal 102.

Sheehan, Grania (2002) ‘Financial Aspects of the Divorce Transition in Australia: Recent Empirical Findings’ 16 International Journal of Law, Policy and the Family 95.

Sheehan, Grania, John Dewar, Rosemary Hunter and Belinda Fehlberg (forthcoming) Children’s Contact Services: Expectations and Experience.

Sieber, Joan (1992) Planning ethically responsible research, Sage.

Smart, Carol and B Neale (1997) ‘Arguments Against Virtue – Must Contact be Enforced?’ Fam Law 332.

Smart, Carol (1995) ‘Losing the Struggle for Another Voice: The Case of Family Law’ 18 Dalhousie LJ 173.

Smart, Carol (1991) ‘The Legal and Moral Ordering of Child Custody’ 18 J of Law and Society 485.

Staniforth, Chris (1995) ‘The Evolution of the Family Law Reform Bill 1994: Some Unresolved Issues’ 2 Canberra Law Review 145.

Sternberg, Kathleen J (1997) ‘Fathers, the Missing Parents in Research on Family violence’ in ME Lamb (ed) The Role of the Father in Child Development (3^rd ed.), John Wiley & Sons.

Stewart, Anna (2000) ‘Who are the respondents of Domestic Violence Protection Orders?’ 33(1) Aust. & NZ J of Criminology, 77-90.

Strategic Partners Ltd (1998) Contact Services in Australia – Research and Evaluation Project, Legal Aid and Family Services; Attorney-General’s Department.

Stubbs, Julie and Diane Powell (1989) Domestic violence: impact of legal reform in NSW, NSW Bureau of Crime Statistics and Research, Attorney General's Department.

Sturge, Claire and Danya Glaser (2000) "Contact and Domestic Violence – The Experts Court Report" Fam Law 615.

Taft, Angela (2000) ‘Violence against women in pregnancy and after childbirth: Current knowledge and issues in health care responses’ Australian Domestic and Family Violence Clearinghouse, Issues Paper No 6. p4.

Thompson, Martie, Linda Saltzman and Holly Johnson (2001) ‘Risk factors for physical injury among women assaulted by current or former spouses’ 7 Violence Against Women 886.

Thornberry, Terence (1994) Violent Families and Youth Violence FACT.SHEET no. 21, Washington D.C., Office of Juvenile Justice and Delinquency Prevention.

Tjaden, Patricia and Nancy Thoennes (2000) Full report of the prevalence, incidence and consequences of violence against women, Findings from the National Violence Against Women Survey, Washington D.C. US Department of Justice.

Todd, Sarah (1994) ‘Fears about abuse of the legislation are unjustified : the other half of the AVO story’ 32(11) Law Society Journal 38.

Trimboli, Lily and Roseanne Bonney (1997) An Evaluation of the NSW Apprehended Violence Order Scheme, NSW Bureau of Crime Statistics and Research.

Troup, Maggie (1995) ‘The Family Law Reform Bill No 2 and Its Ramifications for Women and Children’ 5 Australian Feminist Law Journal 111.

Wallace, Alison (1986) Homicide: The Social Reality, NSW Bureau of Crime Statistics and Research.

Wearing Rosemary (1992) Monitoring the Impact of the Crime (Family Violence) Act 1997, Report, La Trobe University.

Webster, Joan, Sheila Sweett and Therea A Stolz (1994) ‘Domestic Violence in Pregnancy: A Prevalence Study’ 161(8) Medical Journal of Australia 466.

Weinbush Richard, Raelene Frietag and Christopher Baird (2001) ‘Preventing delinquency through improved child protection services’ Juvenile Justice Bulletin, July, Washington, D.C. Office of Juvenile Justice and Delinquency Prevention.

Western Australian Domestic Violence Taskforce (1986) Break the Silence, WA Government Printer.

Wilson, Trish (1996) "Mothers Under Siege: Tactics of the Fathers’ Rights Movement" http://www.voice/ofwomen.com/articles/fathers.html

Women’s Coalition Against Family Violence (1994) ‘Blood on Whose Hands; the killing of women and children in domestic homicides, Women's Coalition Against Family Violence, Victoria.

Wright, Pauline (1994) ‘Should a defendant consent to an AVO?’ 32 (9) Law Society Journal 55.