1. INTRODUCTION

What are children’s experiences of home and homemaking after parental separation? How is home experienced when children spend time with a father who has perpetrated domestic and family violence? How might those experiences inform our understanding of the operation of the ‘best interests’ principle – that is, the principle that courts must regard the best interests of the child as the paramount consideration – in that context? This chapter draws on the responses of 68 Australian children and young people participating in the first major study of the meaning of ‘home’ after relationship separation to explore these questions, focusing on four case studies from the project.

In doing so, we acknowledge John Eekelaar’s profound contribution to understanding, critique and support of the ‘best interests’ principle. Eekelaar’s focus is fundamentally child-centric in a family law context where this is much-needed and often lacking. In Australia, this has been particularly evident following legislative amendment in 2006, which, while retaining the best interests principle, established shared time post-separation parenting arrangements as the preferred outcome. In contexts of domestic and family violence, the amendments increased ongoing tension between the benefits of a continuing relationship with both parents and the need to protect children, and have intensified concern that Australian family law system processes for reaching post-separation parenting arrangements often do not adequately attend to children’s right to safety, and their desire to limit their time with an abusive parent (typically their father). This is so even following further amendment, in 2012, to make clear that children’s safety is to be prioritised over ‘the benefit to the child of having a meaningful relationship with both of the child’s parents’.

The project discussed in this chapter was informed by previous research finding that Australian post-separation parenting laws and processes respond to parents’ rather than children’s interests, and do not adequately engage with children’s views on decisions affecting them, with children often suffering as a result.