Risk of Harm to Children from Exposure to Family Violence: Looking at How it is Understood and Considered by the Judiciary

Abstract

To date, there is a paucity of research that focuses on the extent to which witnessing or exposure to family violence is considered and weighted by the judiciary compared to other forms of violence, such as the direct abuse of a child. Children exposed to violence have similar long-term negative health and social outcomes to children who are a direct target of abuse. We look at how specifically the Family Law Act 1995, 2005 and 2012 amendments have defined and included exposure as a harm. We examine 60 judgments made since the 2006 amendments came into force in which the facts included alleged family violence, and exposure and/or child abuse. We find that unsupervised time with the alleged perpetrator is most commonly ordered if the allegation related to children witnessing violence, witnessing family violence and being abused, or if the children were not exposed to violence (violence between adults only) as compared with child abuse alone. Having identified the complexities of the unacceptable risk test, judicial indeterminacy and a legislative emphasis on maintaining a meaningful relationship with both parents, we look at whether and how exposure to violence has been understood, considered and weighted and how judicial officers attempt to minimise potential risk of harm to the child. For a number of reasons - including the importance of corroborating expert evidence that we found in our analysis - we recommend that the Magellan List be expanded to include family violence matters in which there is the risk of exposure harms.

Keywords: Witnessing, Family Violence, Family Law Act (Cth), Exposure

JEL Classification: K10