By Dr Elspeth McInnes
School of Education, Magill Campus
Shared Parental Responsibility in Australian Family Law & the
Impact on Children Seminar, Adelaide 13-14 April 2008.



From July 1 2006
‘equal shared parental responsibility’ under
which decision makers must consider
children spending the maximum time
possible (50/50) with each parent after
separation, or substantial or significant time.
The presumption of ‘equal shared parental
responsibility’ can be rebutted where there is
a risk of violence




parents should agree and co-operate in the
best interests of their children, and
children do best when they have a meaningful
relationship with both parents.
Previously: Each child’s ‘best interests’ were
uniquely examined.
Now: The content of ‘best interests’ is redefined as regular contact with each parent
after separation.
TWO serious implications for adverse mental
health outcomes.
1. the mental health and developmental
needs of children are subordinated to
spending maximum time with each parent.
2. victims of violence and abuse face greatly
increased risks of continuing exposure to
abuse when they are required to share care
with an abusing parent.







10 year old raped/killed by father in Queensland on December
31 2007.
One of 4 children in father’s care after mother relinquished care
in 2004 after lengthy family court proceedings.
Father arrested and hospitalised – involuntary treatment order
December 8, discharged December 22 – no monitoring, no check
re child protection.
Mother never informed of father’s hospitalisation. Said her
children always cried when they left her to return to father. Last
contact with them December 23.
Eldest daughter and neighbours had previously made child abuse
reports about father to child safety dept with no response.
Surviving children placed with killer’s parents and mother to
seek residence in family court.
(Sources: various press reports – see reference list)









April 25 2004 Jayson Dalton killed Jessie(20 months) and Patrick (3 months) then
himself rather than return them to the care of their mother, Dionne.
Dalton had a DVO before separation, twice breached it and had been imprisoned
for the breach.
March 11 Dionne hospitalised with psychosis after Dalton’s breach, leaving
children with her mother.
March 16 Family Court awards Dalton care of the children after 14 minute hearing.
Judge tells Dionne’s mother he was violent to wife, but not really to his children.
No assessment of care capacity of Dalton or Dionne’s mother was made.
Family Court ordered the children to be returned to Dionne after 5 weeks when
she was released from hospital, but Dalton killed the children and himself on the
day they were to go back to their mother’s care.
Chief Justice Bryant quoted‘There was nothing to indicate this would happen’.
BUT If nobody looks then nobody can find risk indicators.
Air safety crashes investigations aim to discover what happened with a view to
crash prevention and reduction.
Victims of family homicide need a family homicide review process to learn from
tragedies across both state and federal systems when parents have separated.






Family law delivered children to parents who killed
them.
Family law inability to properly assess parents’
capacity to provide safe and suitable care (despite a
legal responsibility to do so).
Mothers’ concerns of child abuse were disregarded/
mothers not informed of problems with father’s care.
Police involvement with killers prior to deaths and
their evidence of violence not available to decisionmakers re children.
Parents with mental illness not linked with child
protection plans.
Child protection system ineffective.




Separation is a high risk context for family homicide.
Strang (1996) 43 of 88 killings of children by
parents/step-parent in context of parental
separation. Biological fathers most common killers
(46 deaths).
Mouzos & Rushforth (2003) over 13 years, men kill
average of 58 women partners and 16 children per
annum with family breakdown common context.
Johnson (2005) researched 7 cases of postseparation murder-suicide in WA. Common factors
DV history, high jealousy and ownership, frequent
threats to harm self and others, deteriorating mental
state prior to murders.




Violence and abuse have been identified as strong
predictors and contributors to mental illness risk
(Taft 2003; Itzin 2006).
Risk and severity of illness is linked to the age of
onset, the severity, duration and number of
episodes of violence and abuse as well as the
presence or absence of supportive responses and
safety.
Children who experience violence and abuse are
additionally developmentally vulnerable.
The prevention and reduction and treatment of
violence and abuse must become central to mental
health strategies.








Population data estimates 27,000 children affected by parental mental illness – most
dangerous disorders for risks to children are depression and substance abuse (Tomison 1996).
Only 1 in 6 sufferers get appropriate help – women more likely to access help – men more
likely to be undiagnosed and untreated (Rodgers et al 2004).
Most common diagnosed context of mental illness child deaths is mothers killing newborns
(Strang 1996).
Major problem that health systems treat adult patients and ignore their children and the
parenting context. COPMI project aims to assist http://www.copmi.net.au/
The Qld death prompted the state government to institute new rules requiring mental health
workers to assess and provide a child care plan before discharging patients under Involuntary
Treatment Orders where the patients have responsibilities for, or are involved in, the care of
children. The assessment is to include the patient's ability to parent the children and any
foreseeable risk of harm to the children, but most state and territory mental health services do
not have protocols with child protection departments and the need for parenting plans on
patient discharge.
Where parents have separated children are less supported and exposed to system gaps.
Parents with shared responsibility and continuing time with children do not receive information
about the hospitalised parent’s capacity to provide care and are thus unable to seek a change
in care arrangements to ensure their children are cared for (The 2007 case).
Where parents have been made incapable of providing care due to the violent or abusive
actions of the other parent (The Dalton case), child protection, police and domestic violence
reports need to be part of the evidence available to decision-makers in the family law system.




ABS data (2002) indicates that one in five
Australians have had a mental illness in the
past 12 months – mostly depressive and
anxiety disorders.
Mental health problems can contribute to
difficulties in relationship formation and are a
commonly nominated cause of relationship
breakdown (Wolcott & Hughes 1999).
Violent and abusive relationship are a key risk
to women’s mental health (Taft 2003).
Relationship breakdown is a ‘crisis’ period
which can itself precipitate mental illness
(Rodgers et al 2004).





State police, health, children’s services, emergency
accommodation, child protection, and corrections hold important
evidence on risks to children’s safety where family violence,
mental illness and parental separation come together, but do not
have ready interface with each other or the family law system.
Ex Parte DV orders routinely not accepted by family court as
evidence of violence. No ready timely pathways for state held
evidence (eg police /mental health service info) to be available to
family law decision makers responsible for determining
children’s best interests.
Family law decisions on child allocation over-ride state laws and
are not monitored for their impact on the child’s safety or best
interests.
Child contact services are short-term and the most dangerous
parents are excluded for staff safety (Sheehan et al 2005).
Magellan program of state child protection/family law interface
is highly restricted – majority of violence and abuse cases
outside the program.




SA Family Safety Framework has developed a shared risk
assessment, information sharing and referral process
across police, health , education and children’s services,
emergency accommodation services and child protection.
Model should be extended to include family law services
(including FRCs) responding to identified high risk
separated parents.
Need for learning approach via interagency family
homicide review process including family law system
services when parents are separated.
The alternative is to continue to complacently accept
children’s current levels of exposure to abuse and violence
after parental separation and claim ‘There was nothing to
indicate this would happen’ as the death and injury toll
mounts.




Human right to survival and safety has to be
recognised as the threshold condition of a child’s
best interests and the possibility of a meaningful
relationship with anybody.
Need to have a robust investigatory, risk
assessment and decision-making processes to
protect children from parents with a history of
violent or abusive conduct.
Need resources and concerted continuing effort.
Therefore need leaderships committed to ‘safety
first’ driving interagency reform across the statefederal divide.


















Australian Broadcasting Corporation (2004) Losing the Children Four Corners, August 16.
Australian Bureau of Statistics, (1998) Mental Health and Well-being Profile of Adults South Australia Catalogue Number 4326.4.40.001
Canberra, AGPS.
Australian Bureau of Statistics (2000) Australian Social Trends, AGPS, Canberra.
Australian Bureau of Statistics, (2006) Mental Health in Australia: A Snapshot, 2004-05 Catalogue Number 4824.0.55.001, Canberra,
AGPS.
Bancroft, L. and Silverman J. (2002) ‘The Batterer as Parent: Addressing the Impact of Domestic Violence on Family Dynamics’ London,
Sage.
Brown, T., Frederico, M., Hewitt, L. and Sheehan, R., (2001) ‘The Child Abuse and Divorce Myth,’ Child Abuse Review, 10: 113-124.
Coalition of Domestic Violence Action Groups S.A (1999), Domestic Violence Hurts Kids Too: Silent Witnesses, Domestic Violence Unit,
Dept. of Human Services, Adelaide.
Courier Mail (2008) DEATH HOUSE - Children left with body of dead sister after father flees. Brisbane, January 2.
Easteal, P., (1993) Killing the Beloved, Canberra, Australian Institute of Criminology.
Edelson, J., (1999) ‘Children’s Witnessing of Adult Domestic Violence’ Journal of Interpersonal Violence, Vol. 14, No. 8, August pp. 839870.
Family Law Council (2002) Family Law and Child Protection, Canberra, AGPS.
Gold Coast Bulletin (2008) Girl's death prompts new rules. Gold Coast January 7.
Gold Coast Bulletin (2008) Mental watch plea. Gold Coast January 4.
Itzin C. 2006 Tackling the Health and Mental Health Effects of Domestic and Sexual Violence and Abuse, UK Home Office.
James, M., (1994) Domestic Violence as a form of Child Abuse: Identification and Prevention , Issues in Child Abuse Prevention Number 2.
National Child Protection Clearinghouse, AIFS Melbourne.
Fehlberg, B., and Kelly, F., (2000) Jurisdictional Overlaps: Division of the Children’s Court of Victoria and the Family Court of Australia,
Australian Journal of Family Law, 14 (3): 211-233.
Heenan, M., Astbury, J. Vos, T., Magnus, A. and Piers, L. (2004), The Health Costs of Violence: Measuring the Burden if disease caused by
Intimate Partner Violence, VicHealth, Victoria Department of Human Services, Melbourne.
Hotton, T. (2001) ‘Spousal Violence after Separation,’ Juristat Vol. 21, No. 7,pp. 1-9.













Humphreys C., (1999) ‘Walking on eggshells: Child sexual abuse allegations in the Context of Divorce’, in J.
Breckenridge and L. Laing, (eds) Challenging Silence: Innovative Responses to Sexual and Domestic Violence,
Sydney, Allen and Unwin.
Johnson, C. (2005), Come with Daddy: Child murder-suicide after family breakdown, Crawley WA, University of
Western Australia.
Johnson, H. and Hotton, T., (2003) ‘Losing Control: Homicide Risk in estranged and intact intimate relationships’
Homicide Studies, Vol. 7, No. 1, pp. 58-84.
Kaspiew, R. (2007) Empirical Insights into Parental Attitudes and Children’s Interests in Family Court Litigation.
Sydney Law Review, 29(1), 131-161.
Kelly, F. and Fehlberg, B., (2002) ‘Australia’s Fragmented Family Law System: Jurisdictional Overlap in Child
Protection, International Journal of Law, Policy and the Family, 16: 38-70.
Kilpatrick, K., and Williams, L., (1997) ‘Post Traumatic Stress Disorder in Child Witnesses to Domestic
Violence’, American Journal of Orthopsychiatry, 67 (4): 639-644.
Laing, L., (2000) Children, Young People and Domestic Violence, Australian Domestic and Family Violence
Clearinghouse Issues Paper 2, Sydney, Partnerships against Domestic Violence, University of New South Wales.
Mahoney, M., (1991) ‘Legal Images of Battered Women: Redefining the Issue of Separation’, Michigan Law
Review, 90 (1): 1- 95.
Mathias, J., Mertin, P., and Murray, A. (1995), ‘The Psychological Functioning of Children from Backgrounds of
Domestic Violence,’ Australian Psychologist, Vol. 30, No.1, March, pp. 47-56.
McInnes, E. (2003) Parental Alienation Syndrome: A Paradigm for Child Abuse in Australian Family Law , Child
Sexual Abuse: Justice Response or Alternative Resolution Australian Institute of Criminology, Adelaide May 1-2.
McMurray A., Froyland, I., Bell, D. and Curnow D. (2000) ‘Post Separation Violence: The Male Perspective’,
Journal of Family Studies, 6 (1): 89-105.
Mertin, P., (1995) ‘A Follow Up Study of Children from Domestic Violence’, Australian Journal of Family Law, 9
(1): 76-85.
Middlebrooks J, Audage N. (2008) The Effects of Childhood Stress on Health Across the Lifespan. Atlanta (GA):
Centres for Disease Control and Prevention, National Centre for Injury Prevention and Control.

















http://www.cdc.gov/ncipc/pub-res/effects_of_childhood_stress.htm
Moloney, L, Smyth, B, Weston, R, Richardson, N, Qu, L & Gray, M (2007) Allegations of Family Violence and Child Abuse in Family Law
Children’s Proceedings: A Pre-reform Exploratory Study, Research Report No. 15, Australian Institute of Family Studies, Melbourne
(available at: www.aifs.gov.au).
Mouzos, J. and Rushforth , C., (2003) ‘Family Homicide in Australia’, Trends and Issues Paper Number 255, Canberra, Australian Institute
of Criminology.
Perry, B., (1997) ‘Incubated in Terror: Neurodevelopmental factors in the ‘cycle of violence’’, in J. Osofsky, (ed.) Children in a Violent
Society, New York, Guildford.
Perry, B. (2001) ‘The neurodevelopmental impact of violence in childhood’, in D. Schetky and E. Benedek, Textbook of Child and
Adolescent Forensic Psychiatry, American Psychiatric Press, Washington, pp. 221-238.
Radford, L. and Hester M. (2006) Mothering Through Domestic Violence, London Philadelphia PA, Jessica Kingsley Publishers.
Rodgers, B., Smyth, B. and Robinson, E. (2004) Mental Health and the Family Law System, Journal of Family Studies, Vol. 10, No. 1 April,
pp. 50-70.
Saunders, A., Epstein, C., Keep, G. and Pahl, J., (1995) It hurts me too: Children’s experiences of domestic violence and refuge life ,
England, Women’s Aid Federation, National Institute of Social Work, Childline.
Sheehan, G., Carson, R., Fehlberg, B., Hunter, R., Tomison, A., Ip, R., Dewar, J., (2005) Children’s Contact Services: Expectations and
Experiences, Brisbane, Griffith University Socio-Legal Research Centre.
Strang, H., (1996) ‘Children as Victims of Homicide’, Trends and Issues in Crime and Criminal Justice, 53, Canberra, Australian Institute
of Criminology.
Sunday Mail (2008) Anguish for mum - 'Could have saved' murdered girl, 10. Brisbane. January 13.
Taft, A. (2003) Promoting Women’s Mental Health: The Challenges of Intimate/Domestic Violence Against Women, Issues Paper No. 8,
Australian Domestic and Family Violence Clearinghouse, Sydney, UNSW.
Tomison, A., (1996) ‘Child Maltreatment and Mental Disorder, Discussion Paper Number 3: Summer, National Child Protection
Clearinghouse, Melbourne, Australian Institute of Family Studies.
Tomison, A., (2000) ‘Exploring family violence: Links between child maltreatment and domestic violence’ , Issues in Child Abuse
Prevention, 13: Winter, National Child Protection Clearinghouse, Melbourne, Australian Institute of Family Studies.
Wallace, A., (1986) Homicide: The Social Reality, Sydney, NSW Bureau of Crime Statistics and Research.
Wilson, M. and Daly, M. (1993) ’Spousal homicide risk and estrangement,’ Violence and Victims, Vol. 8pp. 3-16.
Wolcott, I. and Hughes, J., (1999) Towards Understanding the Reasons for Divorce, Working Paper 20, Melbourne, Australian Institute of
Family Studies.