This policy applies to all family consultant interventions within the Family Court of Australia (FCoA) and the Federal Circuit Court of Australia (FCC).
- The safety and on-going protection of parties and children is of paramount importance. Parties and children should be safe while on Court premises or in the consulting rooms of Regulation 7 family consultants.
- There is considerable research evidence that children who have been subjected to violence, and / or who have witnessed family violence, are significantly adversely affected by such an experience.
- Parties who have been subjected to family violence and who have been unable to exercise control over their lives often lack confidence to represent their own interests.
- Prime consideration is the alleged victim's safety. Those who have been subjected to family violence have the right to make their own choices about what is tolerable for them (including not being in the presence of the alleged perpetrator), and their choices should be respected.
- Where any client expresses concerns for their safety, or about potential family violence, a safety plan will be devised and implemented without the need to determine or assess the accuracy or validity of the client's expressed concerns.
- Particular cultural groups may have special needs. While family consultants must be sensitive to these special needs, safety concerns must not be overridden.
- Family consultants operate within the Family Law Act, which, at s4AB(1), defines family violence as
"… violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member), or causes the family member to be fearful".
- The legislative definition is primarily directed at coercive controlling family violence. In this regard the use of the verbs 'coerces' and 'controls' is central to the definition.
- It is important to note that the above definition at section 4AB(1) is the effective definition of family violence. What follows at section 4AB(2) is a non-exhaustive list of behaviours which may constitute family violence. These include
- an assault; or
- a sexual assault or other sexually abusive behaviour; or
- stalking; or
- repeated derogatory taunts; or
- intentionally damaging or destroying property; or
- intentionally causing death or injury to an animal; or
- unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
- unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
- preventing the family member from making or keeping connections with his or her family, friends or culture; or
- unlawfully depriving the family member, or any member of the family member's family, of his or her liberty".
Role of the family consultant
- Family consultants are bound to place the best interests of the child as the paramount consideration. The family consultant's role is to identify and address with the parties all issues which impact on the well being of the children, including those issues relating to family violence.
- It is the responsibility of family consultants to encourage parties to address issues relating to violence if concerns are raised or allegations are made, and to inform them of the research information on the adverse effects on children of exposure to family violence.
- It is appropriate for family consultants to engage perpetrators or alleged perpetrators in an exploration of their behaviour and its impact on themselves and their relationships with others, and to provide appropriate referral information.
- It is appropriate for family consultants to assist those who have experienced family violence to explore the impact of family violence on them and their children, and provide appropriate referral information.
- Following a Child Dispute Services intervention, it is the responsibility of the family consultant to advise the court, via written and/or oral advice, about any family violence which has been noted or alleged, potential implications for orders, and the ongoing consequences this might have for the children.
Family violence and child abuse
- Family consultants have a mandatory role in reporting child abuse to the appropriate authorities.
- S4(1) FLA, includes a child being 'subjected to, or exposed to, family violence' as a form of psychological harm. Many researchers similarly regard exposure to family violence as a form of psychological harm. Other researchers regard witnessing violence as a specific form of abuse in its own right. Exposure to family violence can include hearing or seeing a parent or sibling being subjected to a range of forms of abuse, as well as exposure to the effects of a family member's violent behaviour.
- Exposure of a child to family violence can therefore constitute grounds for a notification of risk of abuse.
Screening and risk assessment
- All staff must be alert to safety issues when setting up or conducting all family consultant interventions. Where safety issues have been identified appropriate arrangements must be made to minimise risk of physical or psychological danger to all participants and others on the premises.
- Every effort will be made, through routine screening and risk assessment, to ensure that a party's (or child's) right to, and need for, protection is not compromised by the child dispute intervention process.
- Family consultants will routinely inform the Court as to whether or not family violence risk issues have been identified.
- Family consultant interventions commence with separate interviews. From time to time a joint interview may be proposed if it appears that it may help to progress the matter without posing a risk to any participant.
- Parties have the right to decline to be interviewed jointly. Any subsequent joint interview agreed to by parties will be terminated by the family consultant if concerns arise regarding safety or intimidation.
- In matters in which there is a family violence order, sessions can be held with both parties jointly (in person or by phone) only if there is an exclusionary clause in the family violence order in relation to dispute resolution or orders of the Family Court of Australia or the Federal Circuit Court of Australia. If there is no such clause then no joint interviews can be undertaken without the family violence order being amended.
Training and development
- To provide quality services aimed at ensuring that the child's interests remain paramount, it is essential that family consultants have a sound understanding of the issues for families in which family violence is a feature.
- It is the responsibility of Child Dispute Services management to ensure that adequate and regular training of family consultants occurs in relation to family violence, and that newly appointed staff are familiarised with all relevant policy, any practice guidelines and the current literature.
CDS Policy – Family violence
Approved By: Principal Child Dispute Services
Last Revised: 31/03/2013