‘Please Explain’: The Effect of Protection Orders on the Outcome of Family Law Parenting Orders in Australia
By Lucy Hannell
Earlier this year I submitted my Undergraduate Honours Thesis titled, “˜Please Explain’: The Effect of Protection Orders on the Outcome of Family Law Parenting Orders in Australia. This was a year-long project and was my first attempt at writing in a professional academic style, similar to how journal articles and reports are written.
The inspiration behind my thesis came from the current Joint Parliamentary Committee’s Inquiry into the Family Law Act. The purpose of the Inquiry was to review whether the current family law system properly supports parents and children during the end of a family relationship. During the commencement of the Inquiry, Deputy Chair of the Committee, Senator Pauline Hanson, made several statements to the effect that women often make false allegations of domestic or family violence in order to obtain a protection order. The women then allegedly use these protection orders, which have “˜legitimised’ their false claims of violence, as a tactic to gain a more favourable outcome during their family law parenting proceedings. These allegations echo what is a common and powerful argument purported by fathers’ rights groups and others throughout the history of Australian family law.
It was this controversial overlap between the legal and political environments that made me question, through my thesis, do protection orders really affect the outcome of parenting cases? The empirical research that I conducted sought to test the accuracy of the idea that protection orders are such a powerful and useful tool that can sway a parenting case in a mother’s favour. I utilised a socio-legal approach to explore the interaction of the protection orders in family court proceedings. This acknowledged the politicised and debated nature of the family law system.
I undertook an in-depth thematic analysis of ten Queensland and ten New South Wales cases, that proceeded through the Family Court of Australia and the Federal Circuit Court of Australia, where protection orders existed against at least one of the parties to the case. These cases ranged from 1 January 2018 to 4 May 2020 to provide a two-year case pool. The case sample was significant of the time period in these states and created the basis for the beginning research. Through initial data collections, two strong cross-themes emerged that formed the basis for the final case analysis. the cases were assigned to one of four groups from these two themes. The themes were whether or not the mothers’ allegations of family violence were believed by the judge during their parenting matter hearings and whether or not the protection orders were significantly discussed by the judge. The thematic analysis further employed a feminist lens to assist in explaining the behaviours of the parents in these cases and why judges may or may not have considered the existence of protection orders in their decision-making.
Groups Three (protection order discussed and mother believed) and Four (protection order discussed and mother not believed) had three cases total with judicial commentary of protection orders outside of the general relationship chronology discussion. The two Judges in Group Four did not believe the mother’s allegations. The only judicial commentary that was of significance occurred in the one case under Group Three which directly addressed the research question. My case analysis found that judges are more likely to rely on the credibility of the allegations and history of violence rather than the mere existence of protection orders when making decisions on parenting orders. Protection orders existing had little weight in the majority of cases and, when they were discussed, there was no real significance in the comments surrounding the credibility of the protection orders themselves.
My case analysis contradicted the view of fathers’ anti-feminist groups and simultaneously reinforced the existing evidence around silencing of allegations, the lack of and difficulty retrieving corroborative evidence, and entrenched parental alienation issues in family law. The majority of cases further supported the view that, whilst there are some women who may misuse the family law system, most are exercising their legal rights for themselves and their children to be protected from family violence.
I recently received the results on my thesis and I am very happy with my feedback. I hope to further improve and continue my academic writing in the future and, perhaps one day, continue on to do a PhD.