This chapter sets out the evaluation findings on whether the 2012 family violence amendments have supported increased disclosure of family violence and child abuse concerns to family law system professionals (Research Question 2). In addition, it examines the related question of how screening and identification are approached in various parts of the system.

The elements of the reforms intended to support more disclosure and better identification and assessment are those that:

repealed provisions that might have discouraged disclosure of concerns about child abuse and family violence;

imposed obligations on parties to proceedings to inform the courts about whether the child in the matter or another child in the family has been the subject of the attention of child protection authorities (s 60CI); and

imposed a duty on the court to actively enquire about the existence of risk of family violence, child abuse or neglect (s 69ZQ(1)(aa)).

Other elements of the reforms, including the provision in s 60CC(2A) requiring greater weight to be placed on protection from harm when it conflicts with a child's right to a meaningful relationship with both parents, are also likely to have supported these measures through focusing the attention of professionals on the need to consider whether these issues are relevant in any particular case. The widened definitions of family violence (s 4AB and s 4) may also mean that a greater range of behaviours are canvased in professionals' questioning and parents' disclosures. Also of relevance to the findings discussed are the DOORS family violence screening and assessment tool and AVERT family violence training package.

The most important points evidenced in this chapter are:

Across the family law system, there has been a heightened emphasis on identifying concerns about family violence and safety concerns since the reforms, particularly among lawyers and in courts.

Parents self-select into disclosing family violence based on their view of the behaviour, the consequences of disclosure and its implications for parenting arrangements.

Very modest increases in the proportions of parents disclosing family violence and/or safety concerns to professionals have occurred since the reforms. The most notable increases in disclosure are evident among fathers using lawyers.

Overall, there has been no indication of an increase since the reforms in the extent to which parents are satisfied with professionals' responses to disclosure of concerns about family violence and safety concerns.

Professionals indicated that the screening and assessment of family violence and safety concerns remains challenging, particularly from the perspective of assessing how such concerns are pertinent to ongoing parenting arrangements.

The number of Form 4 Notices/Notices of Risk filed more than doubled in the post-reform period, and family law system professionals are concerned about the pressure placed on state/territory child protection systems as a result, as well as delays in the resolution of matters where such notices are filed.

4.1 Complex families, pathways and practice models

In the context of this discussion of screening, assessment and disclosure, the findings on the issues associated with the parents who use FDR/mediation, lawyers and courts as their main pathway for resolving parenting disputes (set out in section 2.3.3) have particular significance, since they highlight the extent to which families with complex features, including features that may be associated with risk, are present in the caseloads of each pathway. The extent to which effective screening and assessment processes are applied in each pathway is therefore of considerable significance, as the evidence shows that the client base of lawyers and particularly courts are more likely to have greater levels of complexity (such as having multiple problems) than those who resolve parenting arrangements in other ways.

As a result of the necessity to conduct assessments in relation to whether FDR is appropriate (FLA s 60(I)(8)(aa)), screening and assessment should be an inherent part of the FDR process. Where parenting matters are resolved through the use of lawyers, screening and assessment processes depend on the practices of the particular practitioners involved. In addition, these are applied in a practice context where parties' instructions bind the approaches of practitioners (except in certain narrow circumstances) in an environment shaped by client-solicitor privilege. Where parenting matters are resolved in courts (prior to, during or after trial), screening depends not only on the approaches of lawyers (apart from those parents who are self-represented), but also on the screening approaches and assessment methods adopted by other practitioners, including ICLs, family consultants and single expert witnesses.

4.2 Parents' experiences

The ESPS examined the core reform aim of supporting disclosure at a number of levels. Most broadly, parents who reported a history of family violence in the survey were asked whether they had disclosed this history to a range of services and professionals. Reasons for not disclosing were also examined. More specifically, the survey examined whether parents had been asked about a history of family violence or the presence of child safety concerns during their engagement with family law services specifically.

4.2.1 Reporting family violence

In order to gain insight into the extent to which experiences of family violence may have been discussed with services and professionals, ESPS participants who reported an experience of family violence (physical violence or emotional abuse, before/during or since separation) were asked whether they had disclosed the experience to 14 different services and professionals. Overall, 53% of parents in 2012 and 56% in 2014 reported disclosing family violence to at least one service, and this increased slightly in the 2014 survey. Mothers were more likely to report violence than fathers (2014 - mothers: 63% cf. fathers: 49%) and the relative proportions of men and women reporting disclosure remained similar. Notably, just over four in ten parents had not disclosed family violence to any service in 2014. Physical violence was more likely to be reported than emotional abuse alone, and the most common service reported to was police (25% in 2014) (ESPS report, Figure 5.1, Table 5.1).

Data on the reasons parents did not disclose family violence to any service demonstrate that a considerable minority (2012: 43% and 2014: 38%) did not feel it was serious enough to report (ESPS report, Table 5.2). Almost another quarter indicated they felt they could deal with the issue themselves. These findings suggest that parents self-select into disclosing, and that this is not an inevitable response where family violence is experienced. It also means that a history of family violence is not documented or corroborated for a substantial number of people who experience it. This may or may not have implications for the parents who self-select into not disclosing for reasons that may be regarded as relatively benign, bearing in mind that even these reasons can't necessarily be taken to imply that the family violence is at the lower end of the spectrum of severity (see Chapter 2). For parents who do not report for reasons suggestive of very difficult circumstances, such as fear of the focus parent (2014 - mothers: 5% cf. fathers: 2%), the implications are even more concerning, since the difficulty of establishing a relevant history for the purposes of engagement with the family law system after separation may mean that experiences in this range are not given the attention that they warrant. It also means that people who need help and assistance may not get it.

4.2.2 Being asked about family violence and child safety by FDR services, lawyers and courts

Parents' reports on whether they were asked by family law system professionals about family violence and/or child safety indicate an increased emphasis on screening, in keeping with the intent of the 2012 family violence amendments. Statistically significant increases were evident in the proportions of parents (all parents, not just those who reported a history of family violence or child safety concerns in the survey) who reported using a formal pathway to resolve their parenting arrangements and being asked about family violence and safety concerns, particularly for those using lawyers and courts. In relation to courts, for example, the proportion of parents reporting that they were asked about both family violence and child safety rose from 50% in 2012 to 61% in 2014 (ESPS report, Figure 5.2). Nevertheless, a substantial minority of court users (2012: 33% and 2014: 31%) reported that they had not been asked about either concern, indicating that the implementation of consistent screening approaches has some way to go. The implications of this finding are particularly concerning in light of the findings discussed in Chapter 2 in relation to the complex characteristics (including experiencing family violence and safety concerns) of the parents who use FDR, lawyers and courts. Parents with multiple and complex issues were concentrated in the lawyer and courts pathways, particularly the latter. These findings suggest a need for further improvement in screening across the board, but particularly for lawyers and courts.

4.2.3 Disclosing family violence and child safety to FDR services, lawyers and courts

Moving from the question of being asked (the focus being on professional behaviour) to the issue of disclosing (the focus being on the parents' behaviours), the ESPS findings demonstrate a small increase in the number of parents who reported disclosing each type of concern across each pathway from 2012 to 2014 (ESPS report, Table 5.5). Further specific discussion of the extent to which family violence and child safety concerns are raised in court proceedings, based on the File Analysis in the CO Project, is set out in section 4.4.3.

Increases in disclosure rates between the two cohorts were generally evident (ESPS report, Figure 5.3), but there were some differences according to pathway, gender and whether family violence or safety concerns were disclosed (ESPS report, Tables 5.5-5.9). The ESPS asked all parents who had used one of the three formal pathways for making parenting arrangements about disclosure (not just those who had reported family violence and/or child safety concerns) in order to capture whether parents were aware of any disclosures made by the other parent. Overall, the findings show a statistically significant increase from 2012 to 2014 in disclosure by participants in relation to both family violence and safety concerns (by 3 percentage points to 38% for each) (ESPS report, Table 5.5). Disclosure of family violence was up 4 percentage points to 32% in 2014 where the main pathway was FDR/mediation, and it was up 6 percentage points to 49% when the pathway was lawyers (ESPS report, Table 5.6). This was largely accounted for by increases in disclosures by fathers (ESPS report, Table 5.7). Compared to the 2012 cohort, greater proportions of fathers in 2014 reported disclosing safety concerns in FDR/mediation (up by 5 percentage points to 25%), and a significantly greater proportion of fathers disclosed these concerns to lawyers (up 13 percentage points to 45%) (ESPS report Table 5.9). The increases in the proportions of mothers reporting disclosing safety concerns were greatest where lawyers were the main pathway (up by 8 percentage points to 61% not significant, ESPS report, Table 5.9). The data for mothers disclosing safety concerns when courts were the main pathway show an increase of 6 percentage points (to 71%), whereas for fathers there was a decrease of 5 percentage points (down to 51%), but these changes are not statistically significant.

Notably, parents did not commonly report that the other parent disclosed either of these concerns, and reports of disclosure by both parents were also rare.

Analysis focusing more specifically on parents who experienced family violence or held safety concerns, and who had contact with family law professionals shows small overall increases in the proportions of parents indicating they had disclosed these concerns to professionals (ESPS report, Figures 5.3 and 5.4). In each of these areas, the increases in disclosure were very modest overall: around 3 percentage points for each type of concern, with 45% of parents in 2014 saying they had disclosed family violence and 74% safety concerns. For both types of concerns, mothers were more likely to disclose than fathers to a statistically significant extent. With regard to safety concerns, the proportion of mothers who reported these concerns to professionals increased significantly between 2012 (73%) and 2014 (79%).

Non-disclosure

For parents who held either or both family violence/safety concerns, non-disclosure overall dropped by a statistically significant three percentage points between the surveys. In 2014, 38% of parents reported holding either or both of these concerns and not disclosing them to professionals (ESPS report, Table 5.10). The pathway with the highest level of non-disclosure was FDR, with 46% of parents in both periods indicating that they had a history of family violence and/or safety concerns and did not reveal them. Lawyers were the pathway with the greatest degree of change (but not to a statistically significant extent) (2012: 34% cf. 2014: 28%). Findings were largely stable for courts, with about 22% of parents not disclosing concerns in both periods.

The findings set out in this section indicate that there has been an increased emphasis on screening in the family law system since the 2012 reforms, but that substantial minorities of parents reported not being asked about family violence and/or child safety concerns, and a smaller but still significant minority held concerns but did not disclose them. The most change in relation to increased screening processes was evident among lawyers. Concerns were most likely to be held and not disclosed by parents who used FDR, suggesting that to some extent, these concerns may have been less significant, given the earlier discussion on parents who self-select into reporting and the reasons they do not report. It cannot be assumed that this is uniformly the case, however, as it is also clear that concerns remain unreported for reasons that cannot necessarily be assumed to be benign, and in some cases are clearly of concern, particularly where fear motivates non-disclosure.

A notable aspect of these findings is the fact that greater proportions of parents reported disclosing safety concerns compared with family violence (ESPS report, Figures 5.3 and 5.4). This suggests that concerns of this nature, which reflect parents' current circumstances, are of more concern to them than a history of family violence.

4.2.4 Consequences of disclosing family violence and safety concerns

This section sets out findings from the ESPS on the consequences that follow from parents reporting family violence and safety concerns. They suggest that in this area, there has been little change; if anything, the evidence is suggestive of a move in a negative rather than positive direction. It is important to emphasise the tentative the nature of any conclusions that may be drawn, given the absence of statistically significant changes and small sample sizes in some areas, especially groups who used courts.

One way in which responses to disclosures of family violence and/or safety concerns were assessed was through a series of questions on disclosure asking parents to nominate how the professional or service responded in relation to each of their issues. The possible response options were: the concerns were taken seriously and dealt with appropriately, the concerns were acknowledged but not considered relevant, the concerns were ignored or not taken seriously at all, and "something else".

The pattern of responses of fathers and mothers in relation to responses to disclosures about family violence and safety concerns in 2012 and 2014 suggest little improvement as a result of the 2012 family violence reforms in relation to parents' perceptions of professionals' responses to their disclosures (ESPS report, Table 5.11). Notably, around half of the parents reported that their disclosures of both family violence and safety concerns were taken seriously in both time frames. Mothers were more likely to consider this was the case compared with fathers, to a statistically significant extent (e.g., in 2014, family violence - mothers: 58% cf. fathers: 41%; safety concerns - mothers: 55% cf. fathers: 38%), while fathers were around twice as likely as mothers to indicate their concerns were ignored or not taken seriously (e.g., in 2014, family violence - mothers: 7% cf. fathers: 17%; safety concerns - mothers: 10% cf. fathers: 19%).

Parent views of professionals' responses to disclosures of family violence, by main pathway

An analysis of parents' accounts of professionals' responses to disclosures of family violence (ESPS report, Figure 5.5), broken down according to the main pathways used shows parents using FDR and courts were most likely to indicate a decrease in the extent to which concerns "were taken seriously and dealt with appropriately" (FDR/mediation - 2012: 58% to 2014: 50%; courts - 2012: 40% to 2014: 30%), with the decrease for courts being statistically significant (ESPS report, Figure 5.5).

Considering patterns of positive responses from professionals in each pathway according to parent gender, the data show statistically differences between mothers and fathers in both cohorts, but no significant changes between time frames. There were also significant differences between mothers and fathers who used FDR/mediation and lawyers. Mothers were significantly more likely than fathers to report that FDR professionals (2012 - mothers: 65% cf. fathers: 44%) and lawyers (2012 - mothers: 61% cf. fathers: 29%; 2014 - mothers: 61% cf. 37%) took their disclosures seriously (ESPS report, Table 5.12).

Parent views of professionals' responses to disclosures of safety concerns, by main pathway

Disclosure of safety concerns was associated with non-significant decreases between 2012 and 2014 in parents considering that professional responses were positive across all three pathways, particularly in relation to lawyers (2012: 54% cf. 2014: 45%) (ESPS report, Figure 5.6). Proportions nominating positive responses from FDR/mediation and courts also fell (FDR/mediation - 2012: 48% to 2014: 45%; courts - 2012: 37% to 2014: 32%). These changes are mostly accounted for by increases in the "acknowledged but not considered relevant" response option rather than the "ignored or not taken seriously" response option.

Positive responses among both fathers and mothers dropped between cohorts across all three pathways (ESPS report, Table 5.13), though not to a significant extent. Decreases among fathers were particularly marked for FDR/mediation (from 39% to 33%) and lawyers (from 44% to 33%). Among mothers, the biggest drop in positive responses was for courts (from 41% to 33%) and lawyers (from 61% to 56%). Significantly more mothers than fathers reported positive responses from lawyers in the 2014 cohort (mothers: 56% cf. fathers: 33%).

Outcomes from disclosure of family violence and safety concerns

The findings on disclosures and satisfaction with professionals' responses to them raise questions about differences in the way in which family violence and safety concerns are regarded by both parents and professionals. Where parents experienced these issues, they were significantly more likely to report safety concerns than family violence, yet professionals were generally less likely to respond in ways that parents considered appropriate.

Findings on the actions taken as a result of disclosure of family violence concerns were largely stable between the two cohorts, though there was a statistically significant increase in the number of parents reporting referrals to relevant support services (up to 36%), and this overtook "nothing happened" as the most common response in 2014 (ESPS report, Table 5.14). There were also small, non-significant increases in the proportions of parents reporting responses that support safety, such as obtaining personal protection orders and implementing safety plans.

Examination of the dynamics concerning parenting arrangements where family violence or safety concerns are disclosed suggest limited change in this area, with similar response patterns evident among both cohorts of fathers and mothers (ESPS report, Figures 5.7 and 5.8).

Professional practices and children's exposure to family violence Insight into professionals' identification of and response to children's exposure to family violence emerged in the RFV study, with participants asked to reflect on their own current practices as family law system professionals in areas including the exposure of children to family violence. All professional participants (judicial officers, lawyers and non-legal professionals) were asked to consider whether, they had changed their approach to seeking information from parties on issues including children's exposure to family violence since the 2012 family violence amendments, and lawyers and non-legal participants were asked whether they had changed their approach to providing advice on these issues (RFV report, Table 4.7). Non-legal professionals had the highest level of affirmative responses (45%), followed by judicial officers and registrars (44%) and lawyers (42%). Majorities of non-legal professionals (90%) and lawyers (76%), lawyers reported that they "almost always" specifically asked their clients about the exposure of children to family violence (RFV report, Table 4.8). A majority (57%) of the aggregate sample of judicial and legal professionals participating in the RFV study also indicated that there was "almost always" or "often" more detail on the exposure of children to family violence issues in affidavit material since the family violence reforms (RFV report, Figure 6.4). A further 30% of the aggregate sample reported that this was "sometimes" their experience. This finding is consistent with some commentators' expectations that a positive outcome of the family violence reforms would be greater attention to detail in evidence provided to the court of children's exposure to family violence (e.g., Parkinson, 2012). A greater proportion of lawyers (24%) selected "almost always", compared to 17% of judicial officers/registrars, and 39% of the judicial sample chose "often", as opposed to 33% of the lawyer sample (data not shown). Data from the Court Files Study component of the Court Outcomes Project suggests that the concerns about children being exposed to family violence were raised more frequently after the reforms though not to a statistically significant extent (CO report, Table 3.12) . Consistent with the response patterns identified in the RFV regarding affidavit material, the Court Files Study data indicate that the proportion of matters where concerns about children witnessing family violence were raised increased from 48% pre-reform to 58% post-reform.

4.3 Identification and assessment: Practitioner views

Consistent with the parent data discussed in the preceding sections, professionals' views gathered in the 2014 RFV study generally suggest that improvement in the screening and assessment of family violence and child abuse has occurred since the 2012 family violence reforms, but the approaches require further refinement (RFV report, Chapter 4). The RFV study examined professionals' views of their own practices and those of other professionals in the family law system. Experiences with the DOORs screening tool were also examined. Overall, differences in views between professional groups were particularly apparent in relation to identification and assessment, with legal and non-legal professionals each more confident in their own abilities in this regard and less confident in the abilities of professionals in the other disciplines. However, some findings suggest that there is currently less polarisation in attitudes in this area than there was after the 2006 reforms, indicating inter-professional confidence has risen to a limited extent.

4.3.1 Assessments of efficacy in screening and assessments

The RFV study findings demonstrated a divergence between the reflections of judicial participants and other groups on the capacity of the legal system, lawyers and FRCs to screen adequately for family violence and child abuse since the introduction of the family violence reforms.

In order to gain an overall assessment, all professional participant groups were asked to reflect on the period of time since the introduction of the 2012 reforms and to indicate their level of agreement with the statement that "the legal system has been able to screen adequately for family violence and child abuse" (RFV report, Table 4.1). The responses indicate that while a substantial proportion (43%) of the aggregate sample of professional participants provided affirmative responses to the proposition, 46% mostly or strongly disagreed. The vast majority (65%) of participating judicial officers and registrars mostly or strongly agreed with the proposition, compared with substantially smaller proportions of lawyers (46%) and non-legal professionals (38%). In fact, non-legal professionals reported the highest level of disagreement, with 48% of professionals in this category strongly (16%) or mostly disagreeing (32%). While a smaller proportion of lawyers strongly disagreed (13%), a slightly greater proportion mostly disagreed with the proposition (34%).

More specifically, questions inviting professionals' reflections on the capacities of lawyers and FRCs to screen adequately for family violence and child abuse generally showed, on an aggregate basis, stronger confidence in FRCs (agree: 43% cf. disagree: 27%) than lawyers (agree: 33% cf. disagree: 42%) (RFV report, Tables 4.3 and 4.4). Lawyers and non-legal professionals were more confident in their own abilities and less confident in each others' abilities. However, non-legal professionals were significantly less confident in lawyers' abilities (agree: 14% cf. disagree: 53%) than lawyers were in FRC abilities (agree: 28% cf. disagree 37%). A majority of judicial officers and registrars also reflected positively on improvements in their own capacity to assess allegations of family violence and abuse (RFV report, Figure 4.3).

The RFV study also set out participants' observations of changes to professional screening and assessment practices since the inception of the family violence reforms. Consistent with the findings on parents' experiences in relation to changes to court practices (section 4.2.2), judicial and legal participants were in strong agreement that courts had more actively enquired about the existence of child abuse and family violence since the family violence reforms (RFV report, Table 4.6). A greater proportion of non-legal professionals than lawyers regularly asked their clients directly about family violence, risk of family violence, child abuse or child safety concerns.

4.3.2 Screening and assessment tools

Family Law Detection of Overall Risk Screen (DOORS)

Findings from the RFV study highlight considerable complexity in relation to the use of screening and assessment tools, including DOORS, which was made available to family law practitioners at around the same time as the legislative changes were being implemented. This complexity is reflected in the literature on screening and assessment, which acknowledges the challenges that arise in applying measures and definitions in the context of legal and non-legal practice models. Robinson and Moloney (2010, p. 2) observed that the differing definitions of family violence employed by professionals in the legal and non-legal spheres, together with the differing assumptions about and emphases on violence, present a complex backdrop to the screening and assessment practices of family support services. This variability, together with the variety of available screening tools and the differing ways in which they may be applied, have led some commentators to call for the focus to be on the "development of tools that are useful for the expressed purposes" rather than engaging in the illusive "search for abstract and perfect measures of things well defined" (Rodgers, 2011, p. 6.). While screening and assessment tools have been identified as one of several instruments in the armoury of professionals working in the field (Breckenridge & Ralfs, 2006), the guidance provided by these tools and by the statutory definitions of family violence and abuse reflect an attempt to address the complications arising in the screening and assessment process.

It was against this backdrop that lawyers and non-legal professionals were asked about their use of tools aimed at assisting practitioners to identify/screen for and assess risks and harm factors. Particular focus was directed at examining their use of the DOORS tool, developed specifically for professionals working in the family law sector.

The data from participants in the RFV study suggest that DOORS had a mixed reception and limited influence. A substantial proportion of professionals, particularly lawyers, had not had exposure to DOORS, and among those who had, most lawyers (51%) and non-legal professionals (69%) indicated that they rarely or never used it (RFV report, Table 4.9).

These findings indicate that the training provided to familiarise professionals with DOORS has had limited reach. Further, participants expressed mixed views on the screening and assessment approach that DOORS represents (RFV report, 4.3). There were a number of positive responses, particularly from non-legal professionals, suggesting that the availability of this tool reflected an advance for the family law system's ability to respond to family violence, child safety and other issues related to risk. However, some professionals in this group also expressed concerns about the tool.

A fundamental aspect of the concerns raised by each of the professional groups in the RFV study related to the proceduralised nature of the DOORS approach, with many expressing the view that this kind of approach was no substitute for practice-based wisdom, careful questioning and personal engagement with clients, informed by highly developed professional judgement. Underlying this view was a concern that the application of the DOORS approach in the absence of carefully honed professional judgement would be inadequate.

Other concerns raised by professional participants in the RFV study related to the workability of the approach in day-to-day practice. The amount of time required to administer the two parts of DOORS was nominated as a concern, as was the way in which these were administered. An approach based on the completion of a questionnaire was seen by some participants as problematic for a number of reasons. These included the impersonal nature of the engagement with clients over difficult issues that this approach entails. There were also concerns raised by participants that this approach was not appropriate for clients with limited or no literacy in English, including clients from Aboriginal and Torres Strait Islander backgrounds and culturally and linguistically diverse communities. The comments from some participating family consultants indicated that it was not considered appropriate for practice in these contexts. It is important to acknowledge, however, that DOOR2 of the DOORS tool enables the DOOR1 questions to be administered by a practitioner. It should also be noted that in 2015, family consultants started trialling a family violence screening questionnaire that is an adaption of the Mediators' Assessment of Safety Issues and Concerns, Practitioner Version 2 (Beck, Holtzworth-Munroe & Applegate, 2012, as cited in FCoA & FCC 2015).

Some participants in the RFV study raised more substantive concerns about the nature of legal practice and the ways in which a social-science-based screening approach fits within it. These comments go to the tension between the obligation as a legal practitioner to take client information at face value and follow client instructions, and the adoption of a method based on social science knowledge and practice. This was seen to raise a conflict with the lawyer's obligations in their "fiduciary relationship of trust and confidence" that necessitates acting on the basis that clients are telling the truth, because of the possibility that conflicting views could be formed when using the DOORS tool. A further emerging issue flagged by some participants was the admissibility of the results of the DOORS screening process in litigation, and the possibility that arguments could be successfully raised that this form of lawyer-client communication did not attract legal professional privilege. Related points that some participants raised were the extent to which the application or non-application of DOORS could have implications for claims about professional negligence against legal practitioners.

Consistent with the observation of Breckenridge and Ralfs (2006) noted earlier, a key theme emerging from the comments of participants in the RFV study was that screening and assessment tools should be but one of a range of strategies available to the family law professional. These data also emphasised that competent professionals with well-honed skills and experience in interviewing clients are central to the screening and assessment process. Similarly, Robinson and Moloney (2010; referring to Kropp, 2008) indicated that, as well as accepted screening and assessment tools or guidelines, professionals require expertise and experience in interviewing clients who have experienced or perpetrated family violence, together with a knowledge base of the dynamics associated with family violence. Indeed Robinson and Moloney warned of the "considerable dangers associated with the use of a screening instrument in isolation from empathic engagement" between the professional and client (p. 5).

The variety of screening and assessment tools, skills and practices identified in this discussion of the qualitative data, reflect that risk assessment is an ongoing process, and a multifaceted interaction that does not end with the completion of a screening form (Laing, Humphreys, & Cavanagh, 2013, p. 49). Reliance on a screening tool alone may also lead to a failure to identify and assess risks or forms of harm falling outside the indicators of a specific screening tool (Humphreys, 2014), with too great a focus on formal tools or procedures potentially leading to complacency about false negative findings (Robinson & Moloney, 2010, p. 6). The influence of typological understandings of family violence as a framework for screening and assessment have also been the subject of criticism for their lack of clarity and exclusionary effects (e.g., Rathus, 2013; Wangman, 2011; Boxall, Rosevear, & Payne, 2015).

Robinson and Moloney (2010) nominated key dilemmas arising from evaluating screening and assessment tools that relate to how to determine whether the screening or assessment tool is "measuring what it is supposed to measure", how to ensure consistent use and application of the tools, and how to measure their effectiveness (pp. 13-14). Although these uncertainties remain, ongoing training and, where possible, supervision of staff applying these tools, in conjunction with a broader range of screening and assessment practices, emerges as being indispensible from the perspective of many of the open-ended comments of professional participants in this study (see also Robinson & Moloney, 2010, p. 15).

4.4 Identification and assessment: Legal and court pathways

This section focuses specifically on matters that are resolved or determined using legal and court pathways. As noted in the preceding chapter, a substantial number of matters (n = 6,549 in 2013-14 of a total of 14,826 applications for final orders, amounting to 44%) that proceed to court involve parents who have attended FDR and been issued with a certificate. The issue of a certificate reflects the application of screening and intake processes in relationship support and FDR services, and clinical judgement exercised by the professional, where both parties are willing to engage in FDR. Certificates may also be issued when one party refuses to engage with an FDR process instigated by the other party. However, there are currently no formal mechanisms that support the sharing of any of the information and assessment insights developed in these FDR processes when parents also engage with lawyers, legal services or courts. Information obtained in FDR-related services is subject to the confidentiality provisions of the FLA that prohibit information sharing except in certain circumstances involving risk (see FLA Part II, Division 3). This situation is currently the subject of significant analysis (ALRC & NSWLRC 2010, Chapter 22) and debate (Altobelli & Bryant, 2014) and case law is developing on the boundaries of confidentiality in intake and assessment processes, as distinct from family dispute resolution processes themselves (e.g., Rastall v Ball [2010] FMCA Fam 1290).

Where parents seek legal assistance (either without, before, after or in parallel with engagement with relationship support services), the legal practitioner may or may not, as discussed above, engage in their own process of identification and assessment of concerns related to family violence. This assessment may be informed by any screening process applied by the lawyer (see above), the conclusions the lawyer draws from that process, and the instructions obtained from the client. As the preceding discussion demonstrates, these processes raise complex issues in a legal practice model. Lawyers are bound to act on their clients' instructions, both as to the facts of a matter and as to the position they wish to pursue in negotiation or litigation. The process of lawyers giving legal advice and clients receiving it is interactive and may be quite complex. In family law children's matters, this process is dependent on the instructions the client provides as to the relevant factual issues in their case, the extent to which evidence is available to support those instructions should litigation be instigated, and the lawyers' conclusions about their client's position based on their assessment of the facts and their view of the law. The client's response to the lawyer's assessment of the situation is a further dimension of this interactive process, and depending on the extent to which the lawyer's advice corresponds with their desired outcome, a client may accept a lawyer's advice, seek further advice or decide to represent themselves.

When an application for final orders is lodged and a matter commences a litigation pathway, the presence or absence of family violence and child safety issues become questions of fact to be considered in the context of an adversarial trial process. In addition to the evidence generated by the parties in support of their respective positions, there are two further main points in court processes where issues related to family violence and child safety concerns may be identified: in Notices of Risk (Form 4s in the FCoA), which the three courts require to be filed where allegations about these are raised and if a family consultant prepares a brief (under FLA s 11F) or full report (under FLA s 62G). In WA, family consultants are also able to obtain information from child protection and criminal justice systems about the engagement of parties and children with these systems so that the court is aware of these matters the first time an application is considered. This does not occur anywhere else in Australia as arrangements for access to such information is not in place, although there are pilot programs in NSW and Victoria supporting the provision of child protection information to family law courts (see Wall et al., 2015). A further way such information may be obtained by family law courts is through s 67ZW orders directed to child protection departments that request information about a family's engagement with child protection, or through subpoena, which may be directed to a range of agencies, including police and child protection. Where ICLs are involved in matter, they may also have a role in bringing such evidence before the court, independent of the parties to the case. This section sets out findings on Notices of Risk, family consultant reports and ICL involvement in children's matters to support an assessment of the extent and effect to which these other mechanisms for identifying and assessing family violence and safety concerns are applied in children's matters.

4.4.1 Notices of Risk filed

As noted in Chapter 1, all three courts require forms to be completed in circumstances where allegations that raise concerns about risks in relation to family violence and child abuse (although from January 2015, the FCC requires these notices to be filed in all matters). Since the 2012 family violence amendments, the previous gradual upward trend in the number of Notices of Risk being filed has increased markedly. Excluding the Adelaide FCC registry (due to the effect of an Adelaide pilot initiative), 4,437 Notices of Risk were filed in 2013-14, an increase from 4,064 in 2012-13, following a marked jump from 2,229 in 2011-12 (CO report, Figure 2.9). Most of these changes occurred in the FCC, with the FCoA and FCoWA having much smaller increases.

Data collected since the implementation of the 2012 family violence amendments also indicate an increase in the proportion of Notices of Risk being referred to prescribed child welfare authorities. In the FCoA, 90% of notices filed were referred in 2013-14 (cf. 76% in 2012-13) (CO report, Figure 2.10). In the FCC (excluding Adelaide), 88% of notices filed were referred in 2013-14 (cf. 74% in 2012-13). These data do not shed light on action taken by child protection departments as a result of the notifications.

Given that the Notice of Risk is critical to the discharge of courts' obligations to inquire about family violence and child abuse and to parties' obligations to disclose these issues, the RFV study examined views on the notices in closed-response question format and also through open-ended questions. In broad terms, the legal and judicial survey data together suggest that the Notice of Risk was regarded as simple and easy to use, and effective in its capacity to facilitate assessments, although judicial officers were more positive about these questions than lawyers. Half the participating lawyers (50%) agreed that the Notice of Risk was simple and easy to use, though a substantial proportion disagreed (41%). A further 8% of legal participants were unable to express a view on this proposition (RFV report, data not shown). In terms of the capacity of the Notice of Risk to facilitate assessments, a majority of judicial officers mostly or strongly agreed (73%) that when the Notice of Risk was filed by a solicitor, the information included in the form assisted them to understand whether there were risks to parents or children in that case (RFV report, Table 4.11). This contrasted with their reported experiences with the Notices of Risk filed by self-represented litigants, with the majority of participating judicial officers and registrars mostly or strongly disagreeing (59%) that the information provided in these Notices helped them to understand whether there were risks to parents or children. Nevertheless, a substantial proportion (38%) did indicate that they mostly or strongly agreed with the proposition.

Judicial officer participants made a range of comments in open-ended text boxes about the efficacy of the Notice of Risk. The comments indicate the Notice is seen as useful from the courts' perspective as a flag to draw attention to concerns that would be more fully detailed in affidavit material in the file. There were also concerns about the implications of circumstances in which they were not filed but should have been. In general, there was a view that processes are required to support the earlier identification of risks (not only in relation to family violence but also to issues such as mental health and substance abuse) rather than just relying on a Notice of Risk, given the unreliability and lack of timeliness with which they may be completed in some circumstances. As a mechanism to draw investigatory attention to a matter, Notices of Risk were seen as a necessary step, but there were also concerns about overloading child protection agencies. Some judges endorsed the strategy of requiring all matters to be filed with a Notice of Risk, as trialled in the Adelaide pilot, and the shorter form of the Notice involved in the pilot was seen as more usable. Despite the perceived advantages of the process pilot in Adelaide, there remained concerns that the existing processes for identifying and assessing risks remained insufficient due to lack of family consultant resources and lack of access to early information from child protection agencies.

In contrast to the positive views of judges, more lawyers were negative than positive about the question of whether the Notice of Risk supports the development of safer parenting arrangements for parents and children. A majority of lawyers (51%) disagreed that filing a Notice of Risk resulted in safer parenting arrangements for parents and children (RFV report Table 6.8). Over one-quarter of lawyers (29%) agreed with this proposition, with about one in five participants in the sample being unable to express a view in this regard.

Lawyers were also asked whether they perceived that courts take into account Notices of Risk (RFV report, Table 6.9). A slight majority of participating lawyers (51%) indicated that they did, but a substantial minority (36%) reported that they did not, with a further 13% of the sample being unable to express a view on this question

The open-ended responses of most lawyers reflecting on the Notice of Risk as it stood at the time of the survey were negative in nature. Concerns were raised about the costs to clients of legal fees for completing the form, and the extent to which the Notice of Risk and consequent referral process are effective means of dealing with concerns about family violence and child safety. Lawyers also noted that:

the Notice of Risk may duplicate evidence in affidavits, the cost of which is charged to clients; and

Notices of Risk are complex (as noted above; however, the FCC introduced a simplified version in January 2015).

4.4.2 Family consultants

As noted earlier, family consultants potentially play a critical role in assessing family dynamics, including the presence of factors that raise concerns about risk. This section examines family consultants involvement in litigated parenting matters (through provision of a brief memoranda under s 11F or a longer Family Reports under s 62G). It then presents findings on family violence identification and assessment by family consultants in litigated matters.

Brief s 11F memoranda

In relation to s 11F memoranda, the number of these ordered decreased slightly following the implementation of the 2012 family violence amendments. Following a low of 3,367 in 2009-10 in the FCC and the FCoA, there was a consistent increase in family consultant memoranda ordered until 2012-13, when the number peaked at 4,618. For the most recent period, 2013-14, there was a small decline of 138 to 4,480 (CO report, Figure 2.12).

Insight into judicial practices relating to requests for memoranda of advice pursuant to FLA s 11E or s 11F or requests for s 62G family reports is provided in the RFV report. Almost half (44%) of responding judicial officers and registrars indicated that they did not seek s 11E advice as to the services (and service providers) appropriate to the needs of a relevant person in a family law matter. Of the remaining proportion of the sample, 22% indicated that they requested advice pursuant to s 11E in "less than a quarter" of the children's matters before them, and a further 9% indicated that they did so in "about a quarter" of children's matters (RFV report, Table 4.12).

A greater proportion of judicial participants (21%) reported that they ordered parties to attend a child-inclusive conference, child dispute resolution conference or child-responsive program under s 11F (and therefore received s 11F memoranda of advice) in "more than three-quarters" or "about three-quarters" of children's matters (RFV report, Table 4.12). A further 15% reported that they did so in "about a half" of children's matters and 12% reported that this was the case in "about a quarter" of children's matters. A substantial proportion of judicial participants (39%) reported that they made these orders pursuant to s 11F in "less than a quarter" (36%) or in "none" (3%) of children's matters before them.

Qualitative comments indicate judges are careful to ensure that the type of report (brief or full) they order is suited to the type of assessment they need access in any particular case, in light of limited resources.

Family Reports

Family Reports are more commonly used than the briefer family consultant memoranda. The number of family consultant reports ordered across all three courts has been relatively steady since 2011-12, when 4,683 Family Reports were ordered (CO report, Figure 2.13). There was a slight increase in the most recent period (2013-14), to 4,661, arresting a small decline to 4,563 in 2012-13.

Survey data confirm a greater reliance on s 62G Family Reports and suggest variations in practices in this area among judicial officers. About 30% of judicial participants indicated that they requested s 62G family reports in "more than three-quarters" or in "about three-quarters" of children's matters (RFV report, Table 4.12). A further 18% of the sample indicated that they requested s 62G family reports in "about a half" of children's matters and 27% indicated that they did so in "about one-quarter" of these matters. Only 3% of the sample indicated that they had not made any such requests in their children's cases, with a further 18% indicating that they requested a s 62G family report in "less than one-quarter" of their children's matters.

The extent to which risk assessment practices are evident in Family Reports was examined in the Court Files Study of the CO Project. The analysis focused on three related issues. First, the extent to which Family Reports were present in files for matters in which allegations of family violence and/or child abuse were made. Second, the extent to which the Family Report explicitly indicated a risk assessment process had been undertaken. Third, the results of that risk assessment where this is explicitly referred to in the report on the file. In considering these data, it is important to bear in mind that practices in communicating the results of risk assessment may vary and may need to be handled very carefully, as Family Reports are documents that are made available to the parties.

The Court Files Study findings demonstrate that the extent to which Family Reports were available for matters involving family violence and/or child abuse allegations increased substantially after the reforms, rising from one-third to just over one-half of matters where these issues were raised (CO report, Table 3.16). An explicit indication that a risk assessment had been conducted was evident in the Family Reports in three in ten cases after the reforms, representing an increase of about 9 percentage points on the pre-reform position. About the same proportions of Family Reports contained conclusions reflecting a presence of risk (28%) or absence of risk (29%). For a substantial proportion (43%), the Family Report writer was unable to form a view. The number of cases in which a risk assessment was conducted and information about the outcome of the assessment was included in the report was too small to sustain reliable analysis (n = 27) in the pre-reform sample of files.

Data from RFV study also sheds light on the practices of family consultants and single expert witnesses (35 participants were from either of these groups). Responses to a question asking whether they had changed their approach to making assessments since the family violence reforms, indicate a mixed picture, with 57% of the group responding in the negative, and nearly one-third (31%) answering in the affirmative (RFV report, Table 4.17).

The open-ended survey responses of family consultants and single expert witnesses also provided further insight into this issue, indicating that a greater focus on family violence, including non-physical types, has been occurring since the reforms in some family consultants approaches.

Data from lawyers and judicial officers from the RFV study confirm a shift in practice among family consultants in this respect since the 2012 family violence reforms, though they also suggest that practice in this respect remains uneven. Lawyer participants in the survey were asked for their views on changes in the content of Family Reports and memoranda from family consultants and single expert witnesses in the period since the family violence reforms. Two-fifths of the aggregate sample (40%) thought that there were almost always or often changes to the content of reports and memoranda (RFV report, Figure 6.5). A further 36% reported that this was sometimes their experience. Judicial officers and registrars were more emphatic than lawyers in their affirmative responses, with 33% of the judicial sample reporting that more information was almost always included, and a further 17% reporting that this was often the case (data not shown).

Considering the more specific question of whether the long or short reports by family consultants had provided recommendations that addressed the implications of information about family violence, child abuse and child safety concerns since the family violence reforms, responses from judicial officers and lawyers indicate some unevenness in practice in this regard, consistent with the insights already referred to. Two-fifths of the aggregate sample of lawyers and judicial officers agreed that Family Reports or memoranda almost always or often provided such recommendations (RFV report, Figure 6.5). A further 34% reported that this was sometimes their experience, with 16% reporting that this was rarely or never the case. Once again, judicial officers and registrars were more emphatic than lawyers that since the reforms, family reports or memoranda almost always (36%) or often (25%) provided recommendations that addressed the implications of information about family violence, child abuse and child safety concerns. Nevertheless, 25% of lawyers answered often and 13% answered almost always in this regard (data not shown).

Some of the participating family consultants and single expert witnesses reported that since the family violence reforms, they considered that they had become more cautious in terms of the parenting orders that they recommended, and that there was a greater likelihood of recommending parenting arrangements that involved sole parental responsibility and no time or limited time with the other parent. Some comments indicated there was a greater emphasis on recommendations that emphasised the safety of children.

4.4.3 Family violence and child abuse evidence in court files

Findings from the File Analysis in the CO Project show that in keeping with the aim of encouraging parents to make concerns about family violence and child abuse known to professionals in the family law system, the extent to which these issues were raised in court matters increased, with the proportion of matters without such allegations falling from 71% to 59% (CO report, Table 3.10). The proportion of matters where child abuse concerns were raised increased from 11% to 22%, and the number of cases in which family violence allegations were raised increased from 26% to 36% for the total sample. For matters where litigation was commenced, the proportion of files not including any allegations of family violence or child abuse fell from 37% to 31% (judicial determination) and 46% to 39% (consent after proceedings) (CO report, Table 3.13). In both these areas, the data suggest a slight increase in mutual allegations (i.e., where each party raises allegations against the other), but the dynamics behind this are unclear (CO report, Tables 3.11 and 3.12).

In relation to family violence, an increase in emotional and physical abuse allegations was evident, but the increase was greater for physical abuse (up 12 percentage points to 28%) than emotional abuse (up by 9 percentage points to 28%) (CO report, Table 3.12). This would tend to suggest that the measures supporting disclosure are the greater driver of this increase than the wider definition (s 4AB), which could be expected to support greater disclosure of emotional abuse than the previous definition.

The extent to which children were alleged to have been exposed to family violence increased (from 48% to 58%), but this was not statistically significant (CO report, Table 3.12). The rate of allegations that children were victims of family violence remained stable. These findings suggest that the recognition of children's exposure to family violence in s 4AB(3) has thus far had limited effects, although professional responses in the RFV report (text box, section 4.2.4) are consistent with the emergence of a greater emphasis on this issue.

An increase in the extent to which concerns were raised about both family violence and child abuse was particularly evident in the judicial determination sample, with an increase of 18 percentage points in the proportion of matters involving these kinds of allegations (CO report, Table 3.13).

The analysis of factual issues raised - reflecting the operation of s 60CC and some other issues (including concerns about substance misuse and mental ill health) - shows that material relevant to protective concerns was present on the court files to a greater extent after than before the reforms (CO report, Table 3.14). Twenty-two per cent of the total post-reform sample included material relevant to a need to protect children from abuse, compared with 11% pre-reform. Another area that received greater emphasis post-reform was the child's right to meaningful involvement with each parent after separation, with the proportion of files with such material rising from 7% to 11%.

4.5 Summary

Overall, the evidence considered in this chapter indicates that an increased emphasis on identifying family violence and child abuse concerns was evident across the system, particularly among lawyers and courts. However, the evidence also indicates that refinements in practice in this area are required and the development of effective screening approaches has some way to go. These findings are supported by data from all components of Evaluation of the 2012 Family Violence Amendments research program. The main legislative elements of relevance in this context are threefold: the obligations of professionals to ask about family violence and child safety concerns, the legislative encouragement for parents and others to disclose them, and the removal of legislative discouragement to revealing them (including the repeal of s 117AB, which referred to courts having the power to make costs orders where a party was found to have "knowingly made a false statement" in proceedings, and the repeal of the so-called "friendly parent" provision in s 60CC(3)(c)).

Statistically significant increases occurred in the proportions of parents who reported being asked about family violence and safety concerns when using a formal pathway as the main means of resolving their parenting arrangements. Increases were evident among parents who used the three formal pathways (FDR/mediation, lawyers and courts), but particularly evident for those using lawyers and courts, with increases between the 2012 and 2014 cohorts of about 10 percentage points. However, close to three in ten parents reported never being asked about either of these issues in each pathway, indicating that the implementation of consistent screening approaches has some way to go.

The findings also suggest small, statistically significant increases in the proportions of parents who disclosed concerns to services in the family law system, as well as to other services. A small but statistically significant increase in the proportion of parents who reported experiencing family violence before/during or since separation to one of a range of possible services and organisations (not confined to the family law system) is evident. In relation to family law services, the overall increase in reporting family violence or safety concerns by only the participant after the reforms was 3%.

The reasons given as to why parents did not disclose family violence indicate that parents self-select into non-disclosure. Around four in ten parents indicated that the violence was not serious enough to report, and close to a quarter indicated they felt they could deal with the issue themselves. These findings mean that a history of family violence has not been documented or corroborated for a substantial number of people who experienced it. This may or may not have important implications for the parents who self-select into not reporting for reasons that may be regarded as relatively benign, bearing in mind that even these reasons cannot necessarily be taken to imply that the family violence was at the lower of the spectrum of severity (see Chapter 2). The implications of not reporting, and therefore not having any corroboration of the experience, are even more concerning for the parents who indicated that the reason for not reporting was fear. This reason was nominated by small minorities (2012: 2% and 2014: 3%), but by about three times as many mothers (5%) as fathers (2%) in 2014. The experiences of this group of parents are likely to be particularly severe, so the lack of access to assistance and the absence of a corroborating history suggest that some of the parents with the most serious family violence issues may also have the most difficulty having them addressed effectively.

The findings on the proportions of parents who reported disclosing family violence or safety concerns when using particular pathways demonstrates that increasing increments of parents reported disclosing each type of concern across each increasingly formal pathway in both 2012 and 2014. Thus, reports of disclosure of safety concerns or family violence were lowest for parents who used FDR and highest for parents who used courts. Consistent with this, the evidence from the File Analysis in the CO Project shows that allegations of family violence and child abuse were made in court proceedings to a greater extent after the reforms than before, with the proportions of matters without such allegations being raised falling from 71% to 59% of the total sample.

Professionals' self-assessments of their own capacity to identify and assess family violence and abuse showed that a majority of lawyers and non-legal professionals were confident in their capacity to screen for family violence, with a substantially higher proportion of positive responses from lawyers participating in the RFV survey than the lawyers participating in the 2008 Family Lawyers Survey for the Evaluation of the 2006 Family Law Reforms.

However, this confidence did not translate into high levels of confidence among professionals in relation to the system's general capacity to screen for family violence and child abuse. On an aggregate basis, more professionals in the sample disagreed (46%) than agreed (43%) with the proposition that the legal system had been able to screen adequately for family violence and child abuse. Differences among professionals were important in this context, with non-legal professionals being less confident than lawyers and judicial officers/registrars in this regard. The number of Notices of Risk being filed in court matters has increased substantially since the reforms, and family law system professionals are concerned about the burdens imposed on child protection systems as a result.

Methods and approaches used are a significant consideration when examining the issues associated with adequate screening. The data from participants in the current study suggest the DOORS screening tool - a practice strategy implemented to support better identification of family violence, child abuse and other risks - had a mixed reception and limited take-up. The evidence in this report suggests that a substantial proportion of professionals, particularly lawyers, reported that they had not had exposure to DOORS. Among those who reported that they had, only a small proportion reported using it in their day-to-day practice, with a majority of lawyers (51%) and non-legal professionals (69%) indicating that they rarely or never used it.

The discussion of screening and assessment for family violence, child abuse and other risk-related issues in Chapter 4 suggests that this is an area where improvements to practice remain a "work in progress". In addition to a need for further training and a more focused examination of the implementation of the DOORS framework across the family law system, the question of the implications of the adoption of this approach in legal practice requires further consideration. In particular, there is a need for a detailed analysis of the effects of this approach in legal practice from the perspective of clients and professionals.