Family Law and Homelessness
Dr Elspeth McInnes AM
Homelessness Conference Brisbane
September 3 2010
Overview
• This paper examines the nexus between family law and
homelessness in Australia. It makes the following
argument:
• Domestic violence is a driver of relationship
breakdown, particularly when there are young
children.
• Relationship breakdown and domestic violence are
significant drivers of homelessness.
• Family law reforms in 2006 emphasising shared
parenting have resulted in increased continuing contact
between domestic violence perpetrators and their expartners and children.
Housing and Homelessness Problems
The continuing risk of violence for victims caught up in the family law system
contributes to homelessness outcomes in a number of ways including:
• Repeated forced moves to escape stalking behaviour and abuse by expartner
• Having to live in supported accommodation to escape continuing abuse
• Living in hiding to prevent further abuse
• Prevention by courts of relocation to better circumstances elsewhere
• Courts requiring victims who have relocated to return and live in proximity
• Perpetrators using DV laws to present as victims of the victim and have
the victim excluded from the home
• Property theft and damage
• Perpetrators controlling the terms of property settlement
Domestic Violence in Australia
• One in four Australian women report
experiencing domestic violence and expartners are the group identified as the most
common perpetrators of violence against
women (ABS 1996 2006; Mouzos & Makkai
2004).
• One in four Australian children has witnessed
violence against their mother by a fatherfigure (Indermaur 2001).
Children’s Experience
Children who have become homeless due to domestic violence and
relationship breakdown have to deal with:
• Their history of exposure to violence against their mother and
themselves and other family members
• Loss of home, possessions, pets
• Loss of routines and contact with known people and services such
as school, childcare, neighbours, family GP
• The demands and distractions on their protective parents and its
impact on their parenting
• The likelihood of continuing contact with the perpetrator and
consequent lack of safety under family law shared parenting rules
• Children’s development does not wait while their lives are made
safe and re-established.
Statistics of Risk to Children
Melbourne Age July 30 2010 :
• Of 16 deaths reviewed by the Victorian Child
Death Review Committee, April 2009 -March
2010, 11 (69%) involved children under 3. The
Committee reviews deaths of children known to
child protection services.
• Parental substance abuse and domestic violence
were risk factors in 62 per cent of cases, and
family mental illness and homelessness
presented in almost half of the deaths
(Willingham 2010).
Demand for government-funded specialist homelessness
accommodation 2008-09: a report from the SAAP National Data
Collection (AIHW 2010).
• The most likely group to be turned away from
accommodation services were family groups.
• An average of 80% of couples with children, 75%
of couples without children and 69% of
individuals with children who requested new and
immediate accommodation were turned away
each day, compared with 50% of individuals
without children.
• People aged 20 or less comprised 56% of valid
requests for immediate accommodation.
2004 AIHW report
‘Children accompanying homeless adults 2002-03’
• 88% of accompanying children were aged under 12.
• ‘Children accompanying clients who presented due to
domestic violence had the majority of accompanying
child support periods (39,700, or 67%).
• ‘The proportion of support periods where clients were
living alone with their children increased from 32%
before support to 50% after support. This change was
influenced by the high proportion of female clients
with children who presented due to domestic violence.
Links
• These data show that domestic violence,
parental separation and homelessness are
strongly linked.
• Next section reports on data from a study into
family violence and family law experiences of
families who separated post 1995 and post
2006 with a particular focus on housing and
homelessness outcomes.
Research Report
• Bagshaw, D., Brown, T. , Wendt, S., Campbell, A.,
McInnes, E., Tinning, B., Batagol, B., Sifris, A., Tyson, D.,
Baker, J., Fernandez Arias, P. 2010 Family Violence and
Family Law in Australia: The Experiences and Views of
Children and Adults from Families who Separated Post1995 and Post-2006, Attorney-General’s Department,
Canberra.
• http://www.ag.gov.au/www/agd/agd.nsf/Page/Familie
s_FamilyRelationshipServicesOverviewofPrograms_Res
earchProjectsonSharedCareParentingandFamilyViolenc
e
Research Question
What was the impact of a presence or history of
family violence on decisions separating people
make when
(1) Accessing Dispute Resolution Services and
Courts?
(2) While using Dispute Resolutions Services and
Courts?
(3) The impact of a presence/history of family
violence on post separation parenting from an
adult and a child’s perspective
Data Collection
• Data was collected from on-line national
surveys of adults and of children
• A telephone call back to a small sample of
those adults
• A phone in for adults and children based in
South Australia and another based in
Queensland
Respondents
• Total 1136: 913 adults + 105 children on line
surveys, 106 adults + 12 children from phone ins
(1,019 adults/117 children)
• Respondents came from all states, with diverse
ethnicity and Australian and overseas places of
birth
• approx 3 Women : 1 Man gender ratio
• 85% of women reported family violence,
compared to 56% of men
Data from adult online survey
• Survey Question: Has violence had an impact on your postseparation parenting arrangements?
• 902 responses -232 (25.7%) men and 670 from women.
• Of men’s responses 121 (52.2%) said violence had an
impact on their post-separation parenting arrangements
• Of women’s responses (68.7%) said violence had an impact
on their post-separation parenting arrangements.
• 588 respondents provided further detail about the impact.
The selected responses focus on housing impacts of
violence. Primarily women reported housing problems.
Stalking making housing unsafe
• He stalks, harasses, assaults and has sexually assaulted myself. We
(mother & child)have received no help from Police. We are both in fear of
this man but police keep informing him of our location. F
• He was raping the children. The Family Court gave him my address on the
divorce papers and he found us and harassed us. F
• Arrangements were made for him to collect my son from my parents’
house but he would still drive past my house with my son in his car and
make a big joke of it despite having a protection order. A Relationships
Australia counsellor told me this was emotional grounding for him.F
• His violence has affected where I live - not near him – and who I live with for security I cannot live alone.F
• Ex has physically assaulted me on one occasion & also made threats to
stop me seeing our child, both witnessed by our young child. I don't park
in her driveway anymore and don't allow her in my home. M
Prevention of Relocation
• The violence has been worse since I left and he
has used the family court orders to keep me
close to where he lives. When I did move, both
to get away from his harassments and so I
could give my youngest child a home and
family like my other 4 children, the family
court disregarded the violence and granted my
remaining children to my ex and his wife. F
Forced Return
• We escaped domestic violence whereby my ex told my children that
he was going to hang their mother (me) if I left him. ... After we
escaped I took the children home. They were both born in NZ. I had
an agreement with the father that we could return home to NZ if
the marriage didn’t work out. We were married less than a
year...But the father claimed I had abducted his child (the other child
was from a NZ father) so after ten months of living at home in
Auckland the father won the right to have us forced to Brisbane (he
lives in Melbourne) onto the street, with no money and nowhere to
live in Brisbane. We arrived here with $100. The Australian
Government brought us here and did not assist us in any way. They
did not get us a house and the only help Centrelink gave us was
$120 that had to last me 2 weeks. F
Using Exclusion Orders
• I took my children on a holiday in January 2004. When I
returned, I was served with an AVO by police. I had
never been in trouble with the law, went & saw the
police, they offered me no support. I had no knowledge
of AVOs or what to do. A few days later, he breached
me when he pulled a knife on me and staged that I was
trying to stab him. The police threw me out of my own
home. My ex rushed through an urgent interim custody
case. I lost custody of my children until June 2005 when
shared parenting settlement was reached. F
• My ex made false allegations and an AVO was taken
out by my ex to separate myself and my young boys
and remove me from the house. M
Emergency Accommodation
• Because of fear of continuing violence, I fled with
children to a refuge and was able "at that time" to
refuse access of the children to their father until there
was something legal in writing to ensure custody and
access issues reflected safety for the children.F
• I did not see my children (daughter was 14 & son was
12 ) when I left the marital home and went to a
women's shelter. I didn't see them for 3 years until my
daughter contacted me. My Ex is highly manipulative
and made it impossible for me to have contact with the
children until he re-married. F
Running and Hiding
•
I have had to keep moving. I have been threatened that he would take the children
on an access visit if I don't see him. Every time I moved he found us again due to
the law saying I had to allow visits
•
Since 2000 and since final orders giving me sole long term care and welfare rights
of my child there have been incidents of violence and refusal to pay child support...
in effect will not let go so I live in hiding.
•
I felt I had to remove my children from this situation. He has not seen the children
since we moved -nor has he sought court intervention to do so.
•
I had to sell my home and move to a new location to escape continued harassment
by friend of the EX and the EX that continued after the separation was finalised.
•
I spent 12 months fighting custody in court. Decision ruled in my favour with no
access orders. Since then, the ex has not seen his daughter and I have spent over a
decade hiding.
Property Theft and Damage
• Threats were made to take the children out of country, turn them
against me, and injure me and damage my property if I continued
with my fulltime caring role with children and if I pursued child
support. Damage was done to my car when I challenged this. F
• ex- stealing my car and personal belongings by using children to
open garage, and entering my property without my knowledge; not
returning children after the school holidays. F
• Financial and personal records stolen, assaulted without witness,
property vandalised, personal property stolen whilst at work,
collusion on AVO against me and livestock stolen. M
• My ex came around damaging my property and threatening to kill
me after I got custody of our daughter, and continued to abuse our
daughter on access visits. As a result I was forced back into court to
vary the access orders so she was only allowed supervised access.
M
Control of Property & Finances
•
•
•
EX financially holds the mortgage over the house my child and I live in and is now
refusing our agreed settlement to sell our other property to pay off our mortgage
debts. Child and I now face homelessness due to EX controlling our financial and
child custody situation 4yrs after separation. F
After our son died, he cheated and ended our marriage and forced us from our new
home. He always threatens to take the kids for 50-50 when I don't give him his own
way. F
I was stalked at night, yelled and screamed at as he drove by, intimidated when he
demanded to come and go to the family property at his leisure. Our final property
settlement and child access issues have taken a long time to sort, due to me feeling
threatened that in his emotive state he also would do something, either suicide
(which he had threatened), harm the children and/or myself. ......He holds the
property settlement over my head as a leverage, saying he won't have the children
more often or let me know what his intentions are for school holidays, etc., or
assist with their school fees, until I sort the property settlement out. It is about to
be finalized at last.F
Hostage to Property
• Fear of mental violence has kept me from making a property
settlement. F
• Ex used settlement of property issues as a manipulation/blackmail
tool to force me to give him more time with our daughter. F
• My ex would not agree to me leaving the former matrimonial home
with the children unless I agreed to a 50/50 property settlement
(and I have 5 children living with me). F
• Property settlement looks like it will be a sham - as he re-drew the
cost of the house on the mortgage, and has no thoughts on paying
it back, and I cannot afford to pay for legal assistance. F
Gender Differences
• Men were much less likely than women to report physical
assaults against them.
• Men were more likely to report effective action to protect
themselves – “ I don't allow her in my home.” “I was forced
back into court to vary the access orders so she was only
allowed supervised access. “
• Unlike women, men were not restricted in their
movements and choice of housing location as non-resident
parents.
• Unlike women, men did not report having to go into hiding
or seek emergency accommodation.
• Unlike women, men did not report their ex controlling
partnership finances and using them to extract leverage.
Concluding Points
The current family law system contributes to homelessness outcomes
amongst separating parents – particularly mothers with violent and
abusive ex-partners. The push for increased shared parenting
arrangements has the following impacts:
• Restricts mothers’ capacity to move away from stalking and harassment;
• Prevents mothers from moving to better living locations and housing;
• Forces mothers who move to be near supports to go back;
• Forces mothers into emergency accommodation for safety;
• Induces mothers to escape into hiding and constant moves;
• Exposes them to property theft and damage;
• Allows abusive partners to control mortgage and property and spend
partnership funds and use financial control as leverage against mothers