It looks like the Family Court has finally decided to drag itself out of the Dark Ages after a report recommending that the presumption of contact ‘at all costs’ be reversed so that victims of domestic violence are not exposed to more harm.
The news that families will no longer have to suffer the indignity, and ongoing damage, of prolonged abuse through child contact is a very welcome development. The recommendations are set to become revisions within Practice Direction 12J, which addresses contact issues in the context of domestic violence and harm.
A report written by Justice Cobb recommends making several changes to the way the family courts deals with child contact where there is evidence of domestic abuse which could place children and partners at risk. At the moment, the burden of proving contact would be unsafe is placed on the alleged victim.
Whilst it has been suggested that the presumption of contact at all costs will be scrapped, a conflicting view also put forward is that the presumption will still operate but would be excluded where risk of harm could be shown.
In reality it’s not yet clear how the new presumption will work, however it may be that experts will be brought in to decide whether contact could lead to harm. This will also open up debate over the controversial ‘risk of future harm’ threshold the Family Court currently uses, especially where abuse has either not been formally documented or evidenced. The recommendations to revise Practice Direction 12J have not yet been approved by government.
Allowing violent and allegedly violent or abusive partners to personally cross examine their victims in court is also being addressed. Currently the criminal courts do not allow this to happen, but our Family Court does (this was our topic for the Huff Post this month). Justice Cobb also recommends that this practice is stopped, however a lack of funds means that separate waiting areas in court houses have disappeared – an important aspect of reducing the trauma of a court hearing with a violent or abusive partner and ensuring victims feel they can attend court. Perhaps it’s time to rethink courts as venues for family matters? In any event, the government has agreed to implement legislation to ban this kind of cross examination. In the meantime, we hope judges get fully briefed on 12J as it stands, as it gives family judges the power to prevent personal questioning and assume the cross examination on behalf of the abuser, or alleged abuser.
Some articles and posts on contact, domestic violence and gender inequality in parenting:
- Domestic Violence And Contact Orders In The Australian Family Courts – Too Close To Home? (2015)
- Judge Forces Mother Whose Throat Was Slit By Partner To Write To Him Whilst In Prison (2015)
- Mother Who Tries To Kill Her Baby Allowed Contact, Whilst Thousands of Competent Mothers Are Denied The Same Right (2013)
- Maypole Women: Barriers To Sharing Care (2015)