The distinction between high conflict and family violence (“FV”) is important as where professionals working in the family law system including Family Dispute Resolution Practitioners (“FDRP”) fail to correctly identify family dynamics, they then fail to implement appropriate strategies and the legal and judicial decisions stemming from said incorrect assessments have long term impacts on the safety of women and children, and on community standards in relation to domestic violence.

It is an accepted Australian community standard that FV is criminal, and a breach of human rights and as such Australian states have all agreed on the “National Plan to reduce Violence Against Women and Children” (1.) . Notwithstanding, in an FDR context, a 2009 survey of 2,335 FDR clients reported 29% felt afraid of the other party attending, 23% felt afraid during sessions at the FDR service, and 24% experienced threats or abuse while attending the FDR service (2.). Despite best intentions then, professional practice has been inconsistent in its response to FV, arguably in part due to the treatment of FV as “isolated, uncharacteristic incident[s] caused by the distress of a separation” rather than as perpetrator behaviour stemming from historical abuse, posing the risk of future violence (3.). This failure to recognise conflict from FV arguably stems from various compounding factors including: misunderstanding the nature and impact of family violence (4.), not obtaining sufficient client information about FV, and a general lack of faith in the family law system’s capacity to manage FV, even when identified (5.), with the latter two factors being explained by the first.

Differentiating FV from high conflict dynamics can arguably be made easier by identifying the power and control involved in a FV relationship and outlining the difference to clients can offer them with some insights regarding their relationship. In FV, the perpetrator uses “repetitive oppression” including violence, threats, coercion and controlling behaviour (“CC”) to overcome a victim’s resistance and exercise power and control over a victim for personal gain, leaving the victim feeling afraid and intimidated (6.). The use of CC by a perpetrator can take many forms including non-physical behaviours (some of which the perpetrator may openly admit to at FDR intake), including:

“intentional actions which are used to limit the liberty of the victim… they can be sexual, economic, psychological, legal, institutional, or all of these” (7.).

The tactics listed above are common methods of CC (8.9.)and importantly, CC without physical abuse is still FV, and client’s alleging such tactics may be victims of FV and require support.

The use of CC results in the victim feeling that their every move is being monitored, checked and criticized (10.) by the perpetrator, and the pervasive nature of such control over the victim leads a severe power imbalance between the parties during the relationship, and post-separation in mediation. Significantly, victims of CC including physical abuse routinely state that the emotional forms of FV cause the most lasting damage (11.). The nature and impact of non-physical FV is elucidates clearly in the extract below:

…[He] controlled her every move, humiliated her at every opportunity, controlled the money and gave her a carefully monitored allowance, intimidated her with fierce outbursts of anger, and quite explicitly threatened her, including telling her in detail what he would do to her and her father if she ever tried to leave him. She said she knew what he was capable of and she lived her life in a state of constant terror (12.).

By comparison a high conflict relationship does not usually involve a power imbalance or fear by one party of another (although both parties can fear each other), but rather involves ongoing disagreement, the making of demands, intractable positions, mutual distrust and blaming, high hostility, verbal abuse, occasional physical altercation and a refusal to compromise (13.).

Understanding the difference between high conflict and FV requires consideration at the point of intake and assessment, in developing intervention strategies, and when developing research-based policy and community standards. Unfortunately, despite a marked distinction, the term “high conflict” is often used interchangeably with “domestic violence” or “family violence” by family law professionals, and the same interventions are often used (14.). As early as 1994 the language used to describe relationships involving family violence commonly included the term “high-conflict” (15.) and the confusion this has caused is significant given as of 2015 family violence and child abuse allegations were involved in at least 22% and 36% of court matters respectively (16.). The use of the concept of FV as “high conflict” in Family Law has, at best- enabled abusive men to use their positions of power (often including greater financial resources )(17.) to threaten women with proceedings (an ongoing “battlefield” tactic ) (18.), and at worst, failed to put safety protocols in place and endangered women and children (19.).

From an FDR perspective, the first problem arguably arises at the intake stage when a client makes an unsubstantiated allegation of FV and the FDRP attempts to determine whether the allegation is “genuine” per the evidence at hand, so as to implement safety protocols. Setting a high evidentiary threshold in order to take FV allegations seriously is impractical as often perpetrator, victim and/or children are the only witnesses to FV, and even when reported, the Police and FACS may not file charges/investigate due to lack of resources (20.). Significantly also, literature suggests most allegations of FV are not invented and are well-founded (21.) so that treating FV as ‘high conflict’ due to a lack of evidence puts women and children at risk in relation to attendance and outcomes of FDR.

In summary, an overreliance on “proof” of physical violence when assessing whether a dynamic is “high hostility” or involves FV ignores client indicators of CC during a relationship. It is arguably important then for an FDRP to assume all FV allegations may be legitimate and to recognise all forms of FV including CC and power imbalances so that matters are correctly identified and parties supported throughout the FDR process.

1. Lynch, A., ‘Family violence and high conflict: What’s the difference and does it really matter? Child Aware 2017’, Women’s Legal Services, [Power Point Slides], November 2012, https://childaware.org.au/wp-content/uploads/sites/3/2017/06/03-Angela-Lynch.pdf.
2. Kaspiew, R, Gray, M, Weston, R et al, ‘Family violence: Key findings from the Evaluation of the 2006 Family Law Reforms’, (2010) 85(85), Family Matters, 38-48.
3. Lynch (n 1).
4. Kaspiew et al (n 2).
5. Kaspiew R, Rachel C, Dunstan J, Qu L, Horsfall B, Maio J E, Moore S, Moloney L, Coulson M & Tayton S, ‘Evaluation of the 2012 Family Violence Amendments: Synthesis Report’ (2015), Australian Institute of Family Studies, Commonwealth of Australia, 51.
6. Lynch (n 1).
7. McLeod D & Flood S. (2018). ‘Coercive control: Impacts on children and young people in the family environment’ Literature Review, Darlington: Research in Practice, 6.
8. Ibid at 8-10.
9. Lynch (n 1).
10. McLeod et al (n 7).
11. Lynch (n 1).
12. Wangmann, J, ‘Different Types of Intimate Partner Violence: An Exploration of The Literature’ (2011) Issue Paper 22, Australian Domestic and Family Violence Clearing House, 14.
13. Lynch (n 1).
14. Lynch (n 1).
15. Johnston, J. R. (1994). ‘High-conflict divorce. The Future of Children’ (1994) Spring, The Future of Children, 165–182.
16. Kaspiew et al (n 5), 43-44.
17. Bruch, C ‘Parental Alienation Syndrome and Parental Alienation: Getting It Wrong in Child Custody Cases’ (2001) 35, Family Law Quarterly, 540.
18. Jaffe, P. G., Lemon, N. K. D., & Poisson, S. E. ‘Child custody & domestic violence: A call for safety and accountability’ (2003). Thousand Oaks, Calif: Sage Publications.
19. Ibid.
20. Lynch (n 1).
21. Bruch, C (n 17) at 531.