Monday 4 July 2011

14. LAWRIE MOLONEY PHD, 2008; Violence allegations in parenting disputes: Reflections on court-based decision making before and after the 2006 Australian family law reforms

A feminist view: (Bailey 2007: 27)
"....DVIRC [Domestic Violence and Incest Resource Centre] strongly supports the need for different paths through the legal system for families where violence is alleged ... Behrens (2006: 233) argues that we need separate pathways for cases involving what she calls 'controlling domestic violence'. A separate pathway should be one where the 'pro contact ethos has no place ... and where women's and children's safety is given the highest priority'."

The Professor's rational view: 
The conflation of alleged violence and controlling (usually male) violence presumably reflects Bailey's desire to protect the most vulnerable, including many of those who seek the services of organisations such as DVIRC. Despite its good intentions, however, I want to argue that statements such as this are more likely to inhibit those who wish to provide more nuanced information to a court. They are more likely to add confusion to the field and, in the long run, are less likely to serve women and children well.

A 2003:5 random investigation of 300 family law cases in two Australian states found that:

• Allegations of violence and/or child abuse were made in the majority of cases.
• The majority of the allegations were of a serious nature.
• Most allegations:
- had little evidentiary material in support.
- were coupled with high rates of non-response.
• Both the allegations and responses (when responses were provided) generally had                low levels of detail.
• Very few files contained independent forensic evidence or any independently derived child focused information.

Additional info:

(1) a 1999 NSW magistrate's survey found that 90 per cent of male and female magistrates believed false AVOs were used as a tactic in family law cases "to deprive partner’s access to children" with a number maintaining that many women were improperly advised by their solicitors to apply for orders.

(2) Ann Lewis in her 2000 M.A. thesis submitted to the University of Western Sydney wrote---“From several sources I heard that there were a number of practitioners, known to lawyers, who could always be relied upon to supply whatever evidence was needed to support a woman's claims of violence against her or of sexual molestation of her children. The Court rarely imposes penalties on a woman who makes false allegations, even when she does this repeatedly. Each time a sexual allegation against children is made, the man is usually denied access until such time as the Court resolves the matter.” 

(3) Anecdotal reports internationally from criminal defence lawyers refer to interference in child contact as one of the most common triggers in domestic assault cases.