Background and Context

Over the past seven years in my role with Anglicare WA, I have had the privilege of listening to many separated parents share their concerns about their children's safety when spending time with the other parent who has been violent towards them. These concerns include, but are not limited to, trying to prove to the court that their children have been victims of family violence and that this risk will continue and possibly escalate during contact visits. The protective parent often reports that the children continue to be sent on contact visits, even when the children experience a significant degree of trauma over their time in the care of the offending parent. In some cases, the offending parent has a new partner who is also a victim of family violence and the children are exposed to this violence while on contact visits. In my experience, despite direct disclosures to the practitioners from children and efforts to keep them safe by reporting to the statutory agencies, I find that many of these children continue to be sent on contact visits.

I am frequently told by the protective parent that when they are in court, they are informed that there is insufficient evidence to warrant the court preventing the child from spending time with the other (violent) parent. Frequently, I have witnessed the distress of the parent when trying to find evidence to substantiate their claim when the very nature of family violence has kept the victim quiet (Richards, Reference Richards2011). The tensions posed by the father's right to a meaningful relationship with his child and the right for the child to be kept safe from harm all too often are played out in reality in the contact centres. Frequently it seems that priority is given to the parent's right to spend time with the child at the expense of the child's need, and right, to be safe.

This article therefore explores some of the key issues facing children and their parents as they navigate post-separation contact arrangements when family violence has occurred. I firstly discuss family violence and its impact on victims and then draw on current research to explore the rationale(s) underpinning contact decisions within the Family Court. Finally, the article considers the use of supervised contact centres in maintaining contact for children exposed to family violence and explores some of the issues faced by both children and parents during supervised contact visits.

Family violence

Family violence is defined as a complex concept covering a broad range of controlling behaviours and different patterns of violence. It is not limited to physical assaults but also includes a range of both physical and psychological behaviours that typically involve fear, harm and intimidation tactics to dominate and control the victim (Braaf & Sneddon, Reference Braaf and Sneddon2007).

The Family Law Act definition is contained in section (s 4AB). This definition came into effect on 7 June 2012 and is broader than the definition that formerly appeared in the Act. This definition defines family violence as violent, threatening or other behaviour by a person that coerces or controls a family member and causes them to be fearful (Family Violence Committee, 2012).

The effect of family violence on children

Family violence is widely recognised as a serious social problem with a significant body of research demonstrating its adverse effects on children (Richards, Reference Richards2011; Shea-Hart, Reference Shea-Hart2009). Family violence can have both immediate and long-term effects on children, resulting in developmental trauma (Richards, Reference Richards2011). There is an extensive body of knowledge validating the impact family violence has on the developing child. This includes, but is not limited to: sadness, fear, anxiety, loyalty conflicts, sleeping difficulties, loss of friends and problems at school (Richards, Reference Richards2011). Children can externalise or internalise the behaviours and show signs of post-traumatic stress disorder (Richards, Reference Richards2011). They can be indirect victims from hearing or witnessing the violence, or direct victims who have been subjected to a direct assault by the perpetrator or injured when they try to help the abused parent and get in the way of the attack (Laing, Reference Laing2010). Children are often known as the silent victims due to their invisibility in such situations. Family violence often goes unreported and children are told not to tell anyone (Edleson, 1999; Kovacs & Tominson, 2003; Tominson, 2000, all as cited in Richards, Reference Richards2011). Family violence increases the likelihood that children will be victims of direct abuse and some studies have reported that this risk can be as high as 30% to 60% (Edleson, 2001; Hester & Pearson, 1998; Strauaa, 1983, all as cited in Laing, Reference Laing2010).

Family Court

When parents separate and want to make arrangements for their children's care, they are required by the Family Law Act to attempt family dispute resolution (Kaspiew, Gray, Weston, Moloney, Hand, Qu, & the Family Law Evaluation Team, 2009). This process may not be suitable for families with a history of family violence and they may be advised by the practitioner that they are exempt from attending (Kaspiew et al., Reference Kaspiew, Gray, Weston, Moloney, Hand and Qu2009). The parents are then able to lodge an application for Parenting Orders with the Family Court. Mothers who access post-separation services and are victims of family violence often find that navigating the Family Court system can be extremely stressful as they attempt to prove that the abuse occurred (Laing, Reference Laing2010; Ravi & Gill, Reference Ravi and Gill2012). They report that it is even more stressful trying to prove the impact that living with family violence has had on their children, especially if they have no “credible evidence” like medical records or police reports. This can mean that the impact of family violence, and the risk this poses to children, is minimised or ignored completely. Mothers frequently report that during the legal proceedings they have been subjected to character assassination by the other parent, accused of being an unfit parent, and accorded mental health issues or drug and alcohol addictions (Laing, Reference Laing2010; Ravi & Gill, Reference Ravi and Gill2012; Shea-Hart, Reference Shea-Hart2009). Sometimes a mother's attempt to protect her child is construed as restrictive gate-keeping by the mother to avoid the child spending time with the father. Mothers report to programme staff that they are accused of being “vengeful mothers” and of making false allegations of family violence to prevent the father from seeing his child (Laing, Reference Laing2010; Ravi & Gill, Reference Ravi and Gill2012; Shea-Hart, Reference Shea-Hart2009). However, research findings have shown that such false allegations are rare and that victims need to be believed if we are to keep them and their children safe (McInnes, Reference McInnes2003). Mothers also report that when they are in the court and forced to face their ex-partner who has perpetrated the violence towards them, they become re-traumatised and present as incoherent and chaotic due to their level of stress. This presentation can be in stark contrast to their ex-partner, who may appear calm and in control of the situation. Beeble, Bybee and Sullivan (Reference Beeble, Bybee and Sullivan2007) argue that the ability to remain calm is a characteristic of the power and control dynamic that the perpetrator has over the victim.

Family Reports and Independent Court Expert Reports

In the case of highly contested custody battles, it can be difficult for a judicial officer to identify the extent of risk to the child both in the past and present, and into the future. To assist with this task, the court may order a family report conducted by a family consultant or a report by an independent court expert (Haselschwerdt, Hardesty, & Hans, Reference Haselschwerdt, Hardesty and Hans2010). The family consultant will meet with the parents, and in some cases the children, to assess what will be in the child's best interest and provide these recommendations back to the court via the family report (Campbell, Reference Campbell2004). Independent Court Expert Reports are undertaken by a mental health professional, such as a psychologist or social worker, and involve a psychological assessment of the whole family (Campbell, Reference Campbell2004). Critics of court experts suggest that the courts tend to use experts that arrive at assessments that fit with the common discourse of the court and that these expert contributions drown out the voice of the victim and the child (Blank & Ney, Reference Blank and Ney2006).

Independent children's lawyer

The court may also decide to appoint an independent children's lawyer whose role is to talk to all the parties involved in the case and provide information and recommendations to the court based on the child's best interest (Blackman, Reference Blackman2002).

Pro-contact culture

Some researchers suggest that there is a pro-contact culture in the Family Court and the current emphasis on maintaining the parent-child relationship overrides the safety of the child (Laing, Reference Laing2010; Ravi & Gill, Reference Ravi and Gill2012). It is argued that many professionals who work at the court, and within the family law system, believe that parent-child contact should be maintained at all costs (Laing, Reference Laing2010; Ravi & Gill, Reference Ravi and Gill2012). This position is based on the presumption that having a relationship with a parent, even an abusive one, is in the child's best interest. This presumption does not, however, acknowledge the risks involved for women and children post-separation where family violence has been a prevalent intra-familial issue (Hardesty & Chung, Reference Hardesty and Chung2006; Haselschwerdt et al., Reference Haselschwerdt, Hardesty and Hans2010; Laing, Reference Laing2010; McInnes, Reference McInnes2003; Shea-Hart, Reference Shea-Hart2009).

It is argued that the judiciary and associated professionals have a strong belief that fathers have a right to have a meaningful relationship with their child despite their history of perpetrating violence. Thus, there appears to be a disconnection between how the court views the father in light of the abuse allegations and how he would respond as a parent (Hardesty & Chung, Reference Hardesty and Chung2006; Haselschwerdt et al., Reference Haselschwerdt, Hardesty and Hans2010; Laing, Reference Laing2010; McInnes, Reference McInnes2003; Shea-Hart, Reference Shea-Hart2009). Yet the literature is clear about the impact of family violence on the developing child and the damage this can do physically, emotionally and psychologically (Holt, Reference Holt2011; Richards, Reference Richards2011). Mothers report that while their reports of the existence of family violence are believed, what is contested is whether this means the father will be a bad parent. Some mothers say they have been directly asked by judicial officers “Does assaulting, controlling or intimidating behaviour towards them (the mother) mean he is a bad father?” Gathering information during intake and assessment regarding parenting roles and responsibilities prior to the separation gives programme staff a better understanding of the family dynamics. Frequently, mothers report to staff that the father had little to do with the children prior to the separation, yet after this their ex-partner is relentless in pursuing contact with the child. Research findings have shown that it is common for perpetrators of family violence to be disengaged parents prior to the separation and then following separation to pursue contact with the child vigorously through the court system, resulting in long, protracted court battles (Hardesty & Chung, Reference Hardesty and Chung2006; Haselschwerdt et al., Reference Haselschwerdt, Hardesty and Hans2010; Laing, Reference Laing2010; McInnes, Reference McInnes2003; Shea-Hart, Reference Shea-Hart2009). It is suggested that this is because they want to regain control of the mother and the child— seemingly, it has little to do with a parent-child bond (Van Horn & Groves, Reference Van Horn and Groves2006).

Finding a child's voice among the experts

A significant body of research with children and young people suggests that children are marginalised and excluded from the right to participate in decisions that affect them, especially following their parents’ separation (Bagshaw, Quinn, & Schmidt, Reference Bagshaw, Quinn and Schmidt2006; Cashmore & Parkinson, Reference Cashmore and Parkinson2009; Graham & Fitzgerald, 2011; Shea-Hart, Reference Shea-Hart2011). Tension exists between the right of the child to participate and the right of the child to be protected from harm (Graham & Fitzgerald, 2011). In the family violence context it appears that children are rarely invited to participate in discussions about their level of trauma and anxiety as a result of the abuse and violence, especially in relation to contact with the violent parent (Shea-Hart, Reference Shea-Hart2009). The tension seems to be around the fear that it may place the child at risk if they disclose something that may make the other parent angry (Fitzgerald & Graham, Reference Fitzgerald and Graham2011; Shea-Hart, Reference Shea-Hart2011). A counterargument is that if children are not listened to and invited to participate in the discussions, including their views on what a safe visit would be like, it is possible that we risk sending children to spend time with abusive parents. Smith and Taylor (2003, cited in Shea-Hart, Reference Shea-Hart2009) argue that not giving children and young people a voice where there has been family violence keeps family violence secretive, feeds into the victim's distress and can be seen as “oppression rather than protection” (Shea-Hart, Reference Shea-Hart2009). The Family Law Act provides for the ascertainment of children's views, as a secondary consideration in the two-tier approach. However, there is debate regarding the weight to be given to the voice of the child in Family Court determinations (Chisholm, Reference Chisholm2009). The literature suggests that, in some family violence cases, the child's substantiation of their mother's report of violence is dismissed on the basis that the mother allegedly coached or alienated the child (McInnes, Reference McInnes2003; Shea-Hart, Reference Shea-Hart2009).

Supervised contact centres

In highly contested cases that involve family violence and children's safety, the court may refer the family to a supervised contact centre (Birnbaum & Chipeur, Reference Birnbaum and Chipeur2010; Laing, Reference Laing2010; Ravi & Gill, Reference Ravi and Gill2012). Supervised contact centres provide a safe and neutral environment that enables the parent-child relationship to continue while supported by a third party, whose role is to supervise the visit (Birnbaum & Chipeur, Reference Birnbaum and Chipeur2010). Clearly, there is a need for such services, however, some researchers suggest a cautionary lens be applied when analysing the value of such an approach in the cases of coercive controlling violence. Morill, Dai, Dunn, Sung and Smith (Reference Morill, Dai, Dunn, Sung and Smith2005), Laing (Reference Laing2010) and Ravi and Gill (Reference Ravi and Gill2012) report that supervised contact centres can be used by perpetrators as a means to continue the power and control over the victim. These authors also suggest that contact centre staff need to be skilled in understanding the dynamics of family violence, especially in relation to power and control, and need to be vigilant with regard to these dynamics. Parker, Rogers and Collins (Reference Parker, Rogers and Collins2008) provide an insightful example from their research that depicts how subtly power and control can be exercised by a perpetrator at a contact centre. The parent brought a drink to the visit and allowed the child to keep it to take home. When the mother arrived to collect the child, she became visibly shaken and informed the worker that the drink was only given to her and the child when they had been good and complied with his wishes. This simple action was a powerful reminder that he was still in control.

Should parenthood ever be dissoluble?

Parkinson (Reference Parkinson2012) has discussed the possibility of considering no contact with the violent parent when there has been a history of controlling coercive violence. Ravi and Gill (Reference Ravi and Gill2012) and Laing (Reference Laing2010) also question the benefit to the child of a relationship with a perpetrator where there has been a history of controlling, coercive violence. One of the arguments used to support the need for children to have ongoing contact is based on studies of children in foster care. This research suggests that children need to know their parents so they develop a sense of belonging which assists in creating their identity and sense of self (Altobeli, Reference Altobelli2011; Garber, Reference Garber2007; Johnson, Reference Johnson2005). Those opposed to contact argue that the protective parent provides the child with the necessary connection to family and self and that self-identity is not assisted by involvement with a parent who is a perpetrator of violence (Laing, Reference Laing2010; Ravi & Gill, Reference Ravi and Gill2012). Furthermore, the risk to children is too high and, without the protective parent there to protect them, the child may become the primary victim of the violence (Richards, Reference Richards2011).

Perpetrators as parents

Researchers also raise concerns about the parenting capacities of perpetrators of violence. When compared with other fathers, perpetrators have poor parenting skills resulting from their sense of entitlement, self-centred attitudes and overly controlling behaviour (Hardesty & Chung, Reference Hardesty and Chung2006; Morill et al., Reference Morill, Dai, Dunn, Sung and Smith2005; Rothman, Mandel, & Silverman, Reference Rothman, Mandel and Silverman2007). These parents were also more likely to over-use physical forms of discipline and be engaged in other forms of child abuse (Hardesty & Chung, Reference Hardesty and Chung2006; Morill et al., Reference Morill, Dai, Dunn, Sung and Smith2005; Rothman et al., Reference Rothman, Mandel and Silverman2007).