The system needs to be overhauled, but not by Pauline Hanson who seems to be driven by vengeance on behalf of her son
I’ve spent almost five years investigating domestic abuse in Australia. Nothing has left me more shocked – or more disturbed – than seeing the harm done to victims by the family law system.
I’ll never forget sitting across from Lucy, an 18-year-old who, aged eight, had the courage to tell her school counsellor she was being sexually molested by her father. When her mother, Tina, applied to stop contact, a family report writer dismissed Lucy’s allegations, described Tina as “psychotic” and wrote in his report to the court that if the allegations should be raised again, Lucy should be ordered to live full-time with her father.
Tina wanted to keep fighting, but with this strong report against her, she was terrified that she would lose Lucy altogether, so she consented to one overnight stay per week. “I will never forget the first time we had to drop her back to him. I felt physically sick, watching how distressed she was. I didn’t know if she was going to vomit or wet her pants,” Tina told me.
For five years, Lucy had to spend one night a week with her father. Over time, his molestation escalated to full-blown rape. “It became very violent,” Lucy told me, “and if I wouldn’t comply, it was brought up that I wasn’t allowed to speak about it [by the court], so maybe I should just shut up and let it happen, and no one would believe me anyway”. Lucy’s father suddenly relinquished custody when she was 13. Lucy thinks that’s because she was old enough for people to believe her.
Such stories are legion across Australia. I’ve lost count of the number of victimised parents, usually mothers, who’ve told me they are terrified to leave their violent relationships because they know that if they get drawn into the family law system, they cannot guarantee their children’s safety. They’re afraid their children will be at greater risk if they leave than if they stay.
I've lost count of the mothers who are afraid their children will be at greater risk if they leave than if they stay
A couple of years ago a barrister, now a magistrate, told me she stayed in her controlling and abusive marriage for 10 years after she first wanted to leave. If her husband applied for custody, she knew it was highly likely he would be granted unsupervised access. “I stayed in that marriage to supervise him with my son.”
When I first started hearing these stories I didn’t believe they were part of a pattern. Everyone knows someone who’s had a shitty time in the family law system. Besides, I knew that this system was actually biased against fathers, not mothers. I believed then, like 43% of Australians, that vindictive mothers routinely lobbed abuse allegations at their ex-husbands to stop them seeing their children.
But then I started reading their court documents and the research.
In 2001, a joint study by the family court and the University of Sydney found that the family law system had “tilted more and more against women, either by accident or design”. Even where serious violence had been proven, it found, supervised contact with abusive fathers was becoming much more common.
In 2006, despite this noted tilt against women, and after three years of what then-legal associate Waleed Aly described as “an incessant and often intimidatory campaign by father’s rights groups”, the Howard government introduced new reforms to the Family Law Act. They were, on the face of it, reasonable – judges should apply a presumption of shared parental responsibility unless violence or abuse was an issue. But there was a catch: if a parent alleged abuse, they could be labelled a “hostile parent”, unwilling to support shared parenting.
The punishment for hostile parents could be extreme: they not only ran the risk of losing custody of their children, they could be blocked from seeing or even speaking to them for months.
In 2007, Rae Kaspiew (now at the Australian Institute of Family Studies) found there were very limited circumstances in which a mother could challenge ongoing paternal involvement, “except in cases where the evidence of severe violence was clear-cut”. In his report, former family court judge Richard Chisholm called this trap “the victim’s dilemma”, a position later articulated by former attorney general Robert McLelland: “Do I report family violence to the court and risk losing my children, or should I stay silent?”
This change in attitude was made explicit in a 2007 judgment from Justice Tim Carmody (who was, for a brief and controversial period, Queensland’s chief justice). It read: “The consequences of denying contact between the abusive parent, usually the father, and the child may well be as serious as the risk of harm from abuse ... There is no presumption or a priori rule that even gross misbehaviour such as child sexual abuse ... puts up an insurmountable barrier in the way of having contact with a child victim.”
How does this attitude influence the outcome of a custody dispute? Take this case, for example, from 2010. A father already on the sex offenders register for possessing child abuse images was fighting for equal care of his daughters, aged eight and 10. The mother was requesting he have supervised daytime contact only. Their eldest daughter had told child-protection workers that she loved her father and didn’t want to upset him, but wasn’t comfortable staying over at his house, particularly on her own. When asked why, she referred them back to what she’d told the police, but became “extremely distressed” when pressed to elaborate. She repeatedly pleaded with child-protection workers not to repeat what she’d said to her father.
In his judgment, Justice Robert Benjamin of the Hobart family court accepted that the father had demonstrated “inappropriate” affection towards his daughter. He also believed the mother’s allegation that several years earlier she had seen the father with an erection, leaning over and touching his five-year-old stepdaughter while her pyjama pants were down, and he accepted that the mother delayed reporting it for years because she was afraid of the father.
The justice also found the father had been intimidating during the marriage, and “manipulative and disingenuous” in his evidence. Despite all this, the justice ordered that the daughters spend alternate weekends and half the school holidays with their father. Overnight stays were to be supervised by an “adult friend” of the father, to “address” the elder daughter’s nervousness, and the daughters should share a room for “mutual support”.
Everyone knows someone who’s had a shitty time in the family law system
In 2012, after three research studies found that victims of abuse were not being protected in the family law system, then-attorney general Nicola Roxon announced another set of reforms to the Family Law Act – essentially, attempting to undo the harm done by the Howard reforms. Under the current Family Law Act, judges are to prioritise the protection of children “from physical or psychological harm and from being subjected to, or exposed to, abuse, neglect or family violence”. This is to be a higher priority than the “benefit to the child of having a meaningful relationship with both parents”.
But even with this substantial change to the legislation, the same stories persist. They land in my inbox every week. The anti-violence campaigner Rosie Batty even told me that were it not for the family law system, she would hardly have any victims contacting her. Prominent doctors have confided in me their horror at what they see happening to their patients in the system – especially to the children.
In 2016, in the peer-reviewed legal journal, Laws, Griffith University criminologist Samantha Jeffries wrote that in family court judgments, domestic violence was “ignored or minimised, reconstructed as inconsequential” or passed off as mutual violence, where both parents are equally at fault.
More chilling, however, were findings Jeffries (and others) published in the UNSW Law Journal that same year.
This was a study on family reports – one of the most important pieces of evidence in a family law hearing – written by psychiatrists, social workers and psychologists, assessing the family dynamic and, commonly, evaluating allegations of abuse.
Legal practitioners openly stated that they knew which family report writers to go to if they were representing a perpetrator. Said one: “When I worked in private practice we would look for report writers who don’t do that level of investigation, who don’t report on the violence because that was in our client’s [the perpetrator’s] interest.”
This is the evidence. This is the rot at the core of our family law system. Yes, many fathers have a terrible time in the family law system. There is no excuse for an innocent man being deprived access to his children. But there is a pyramid of harm.
First and foremost, we need to make this a system that is safe for children. An inquiry deputy-chaired by Pauline Hanson – who seems driven by a personal need for vengeance on behalf of her son – is almost certainly not going to achieve the changes children so urgently need.
(Source: The Guardian)
I’ve spent almost five years investigating domestic abuse in Australia. Nothing has left me more shocked – or more disturbed – than seeing the harm done to victims by the family law system.
I’ll never forget sitting across from Lucy, an 18-year-old who, aged eight, had the courage to tell her school counsellor she was being sexually molested by her father. When her mother, Tina, applied to stop contact, a family report writer dismissed Lucy’s allegations, described Tina as “psychotic” and wrote in his report to the court that if the allegations should be raised again, Lucy should be ordered to live full-time with her father.
Tina wanted to keep fighting, but with this strong report against her, she was terrified that she would lose Lucy altogether, so she consented to one overnight stay per week. “I will never forget the first time we had to drop her back to him. I felt physically sick, watching how distressed she was. I didn’t know if she was going to vomit or wet her pants,” Tina told me.
For five years, Lucy had to spend one night a week with her father. Over time, his molestation escalated to full-blown rape. “It became very violent,” Lucy told me, “and if I wouldn’t comply, it was brought up that I wasn’t allowed to speak about it [by the court], so maybe I should just shut up and let it happen, and no one would believe me anyway”. Lucy’s father suddenly relinquished custody when she was 13. Lucy thinks that’s because she was old enough for people to believe her.
Such stories are legion across Australia. I’ve lost count of the number of victimised parents, usually mothers, who’ve told me they are terrified to leave their violent relationships because they know that if they get drawn into the family law system, they cannot guarantee their children’s safety. They’re afraid their children will be at greater risk if they leave than if they stay.
I've lost count of the mothers who are afraid their children will be at greater risk if they leave than if they stay
A couple of years ago a barrister, now a magistrate, told me she stayed in her controlling and abusive marriage for 10 years after she first wanted to leave. If her husband applied for custody, she knew it was highly likely he would be granted unsupervised access. “I stayed in that marriage to supervise him with my son.”
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| ‘Yes, many fathers have a terrible time in the family law system. There is no excuse for an innocent man being deprived access to his children. But there is a pyramid of harm.’ Photograph: Jonathan Brady/PA |
When I first started hearing these stories I didn’t believe they were part of a pattern. Everyone knows someone who’s had a shitty time in the family law system. Besides, I knew that this system was actually biased against fathers, not mothers. I believed then, like 43% of Australians, that vindictive mothers routinely lobbed abuse allegations at their ex-husbands to stop them seeing their children.
But then I started reading their court documents and the research.
In 2001, a joint study by the family court and the University of Sydney found that the family law system had “tilted more and more against women, either by accident or design”. Even where serious violence had been proven, it found, supervised contact with abusive fathers was becoming much more common.
In 2006, despite this noted tilt against women, and after three years of what then-legal associate Waleed Aly described as “an incessant and often intimidatory campaign by father’s rights groups”, the Howard government introduced new reforms to the Family Law Act. They were, on the face of it, reasonable – judges should apply a presumption of shared parental responsibility unless violence or abuse was an issue. But there was a catch: if a parent alleged abuse, they could be labelled a “hostile parent”, unwilling to support shared parenting.
The punishment for hostile parents could be extreme: they not only ran the risk of losing custody of their children, they could be blocked from seeing or even speaking to them for months.
In 2007, Rae Kaspiew (now at the Australian Institute of Family Studies) found there were very limited circumstances in which a mother could challenge ongoing paternal involvement, “except in cases where the evidence of severe violence was clear-cut”. In his report, former family court judge Richard Chisholm called this trap “the victim’s dilemma”, a position later articulated by former attorney general Robert McLelland: “Do I report family violence to the court and risk losing my children, or should I stay silent?”
This change in attitude was made explicit in a 2007 judgment from Justice Tim Carmody (who was, for a brief and controversial period, Queensland’s chief justice). It read: “The consequences of denying contact between the abusive parent, usually the father, and the child may well be as serious as the risk of harm from abuse ... There is no presumption or a priori rule that even gross misbehaviour such as child sexual abuse ... puts up an insurmountable barrier in the way of having contact with a child victim.”
How does this attitude influence the outcome of a custody dispute? Take this case, for example, from 2010. A father already on the sex offenders register for possessing child abuse images was fighting for equal care of his daughters, aged eight and 10. The mother was requesting he have supervised daytime contact only. Their eldest daughter had told child-protection workers that she loved her father and didn’t want to upset him, but wasn’t comfortable staying over at his house, particularly on her own. When asked why, she referred them back to what she’d told the police, but became “extremely distressed” when pressed to elaborate. She repeatedly pleaded with child-protection workers not to repeat what she’d said to her father.
In his judgment, Justice Robert Benjamin of the Hobart family court accepted that the father had demonstrated “inappropriate” affection towards his daughter. He also believed the mother’s allegation that several years earlier she had seen the father with an erection, leaning over and touching his five-year-old stepdaughter while her pyjama pants were down, and he accepted that the mother delayed reporting it for years because she was afraid of the father.
The justice also found the father had been intimidating during the marriage, and “manipulative and disingenuous” in his evidence. Despite all this, the justice ordered that the daughters spend alternate weekends and half the school holidays with their father. Overnight stays were to be supervised by an “adult friend” of the father, to “address” the elder daughter’s nervousness, and the daughters should share a room for “mutual support”.
Everyone knows someone who’s had a shitty time in the family law system
In 2012, after three research studies found that victims of abuse were not being protected in the family law system, then-attorney general Nicola Roxon announced another set of reforms to the Family Law Act – essentially, attempting to undo the harm done by the Howard reforms. Under the current Family Law Act, judges are to prioritise the protection of children “from physical or psychological harm and from being subjected to, or exposed to, abuse, neglect or family violence”. This is to be a higher priority than the “benefit to the child of having a meaningful relationship with both parents”.
But even with this substantial change to the legislation, the same stories persist. They land in my inbox every week. The anti-violence campaigner Rosie Batty even told me that were it not for the family law system, she would hardly have any victims contacting her. Prominent doctors have confided in me their horror at what they see happening to their patients in the system – especially to the children.
In 2016, in the peer-reviewed legal journal, Laws, Griffith University criminologist Samantha Jeffries wrote that in family court judgments, domestic violence was “ignored or minimised, reconstructed as inconsequential” or passed off as mutual violence, where both parents are equally at fault.
More chilling, however, were findings Jeffries (and others) published in the UNSW Law Journal that same year.
This was a study on family reports – one of the most important pieces of evidence in a family law hearing – written by psychiatrists, social workers and psychologists, assessing the family dynamic and, commonly, evaluating allegations of abuse.
Legal practitioners openly stated that they knew which family report writers to go to if they were representing a perpetrator. Said one: “When I worked in private practice we would look for report writers who don’t do that level of investigation, who don’t report on the violence because that was in our client’s [the perpetrator’s] interest.”
This is the evidence. This is the rot at the core of our family law system. Yes, many fathers have a terrible time in the family law system. There is no excuse for an innocent man being deprived access to his children. But there is a pyramid of harm.
First and foremost, we need to make this a system that is safe for children. An inquiry deputy-chaired by Pauline Hanson – who seems driven by a personal need for vengeance on behalf of her son – is almost certainly not going to achieve the changes children so urgently need.
(Source: The Guardian)
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