Proof of Violence "Will be heard in Court"

This phrase appeared in the national media this morning, in a quote from Law Society of SA [South Australia] president Richard Mellows. The article is another wrap-up of the research recently presented to the Australian Attorney General. Mellows' claim is disingenuous.

'Proof of violence' in the context of family law in Australia, is hard to collect and present. Unless there is blood on the court room floor, unless a mother has taken children to the Dr. with injuries etc. (and many mothers won't do this because they are threatened with harm if they talk to anyone about the abuse), unless violence took place in public (and abusers tend to avoid abusing in public) in front of witnesses (many abusers put on a show of 'happy families' for witnesses), there is taken to be no 'proof'. If witnesses to family violence are family members that evidence will be given less weight. These things appear to be the case (and the research refers to this problem also) at every level of the family law system, where it collides with claims of abuse.

For the full report click on this link.

Family Court Judge and bias

Story below: I've looked to the media for reports on problematic police responses to claims of domestic violence and danger to women and children. Below is a report that takes us to the other end of the family law system, the 'high' end, and shows the possibility of bias that exists in the Family Court, in cases were there are serious allegations against a parent.

Brisbane Family Court trial halted over claims of secret talks with social worker

• by Matthew Fynes-Clinton
• From: The Courier-Mail
• July 11, 2010 5:11PM

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A CHILD custody trial was aborted when a Brisbane Family Court judge disqualified himself after being accused of holding secret talks with a case social worker.

The week-long trial – which involved an allegation of sexual abuse against a young girl – ended abruptly on April 28 following an application to Justice James Barry from the child's representatives for him to stand aside on the grounds of "apprehended bias".

Family Court Chief Justice Diana Bryant has summoned Justice Barry to a formal interview in Melbourne this week and alerted Federal Attorney-General Robert McClelland to the issues.

Justice Bryant told The Courier-Mail that while she had no specific disciplinary powers, she would be spelling out to Justice Barry the "gravity of the situation for the Court and the serious inappropriateness of the conduct".

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"Whilst not entirely agreeing with all that was asserted . . . to have been said between him and the (social worker), (Justice Barry) accepted that he had inappropriately discussed the contents of the family report with the (social worker)," Justice Bryant said. "The report was evidence in the proceedings."

Applying for the disqualification, barrister Jacoba Brasch – counsel in the trial for the court-appointed Independent Children's Lawyer – told Justice Barry that the social worker had informed her of the private talks which took place in the judge's chambers.

"It is . . . reported that Your Honour has said in this discussion, 'These men' – a reference to (the relative accused of sexual abuse in the case) – 'they go off half-cocked, you don't know if they are innocent or . . .'." Ms Brasch told the court.

Ms Brasch submitted that she had been told the judge had, in the conversation, said he liked the social worker's independent family report as well as commented on the mother in the dispute and her "overvaluing".

"(The social worker) . . . says Your Honour indicated you liked the report and it appears that there were various aspects of the report . . . discussed, including what was called the mother's overvaluing," Ms Brasch told the court.

"(The social worker) indicated that Your Honour had said, 'What is it with some mothers and their overvalued . . .' and I didn't catch . . . the next word."

The judge had advised the social worker "to expect to be challenged about the father's family issues" during cross-examination, Ms Brasch told the court.

She said the judge also had remarked to the social worker, regarding the child's paternal grandparents: "I've got a picture of this family. They are Presbyterian. The mother can't stand up to the father."

The trial, part-heard last October, had resumed on April 22.

Ms Brasch outlined to the court that she "ran into" the social worker near a court elevator on April 23.

"(The social worker) said to me, "The judge had spoken to me," Ms Brasch said. "His Honour (had) asked, 'You can tell by someone's reaction whether they're innocent . . .'. (The social worker) said he said, 'I'm not judge'."

On April 27, Ms Brasch told the court, she took advice from Bar Association of Queensland ethics' counsellors and then further clarified with the social worker the nature of his discussion in Justice Barry's chambers.

"(The social worker) indicated . . . he thought this discussion was in March," Ms Brasch told the court. "But it may be there was (another) discussion prior to the trial in October." Ms Brasch told the court that the social worker said he had initially "gone to Your Honour's chambers to discuss another matter".

The social worker was an in-house "family consultant" assigned by the court to impartially help resolve high-conflict custody cases. Family consultants, who may also be psychologists, are effectively witnesses.

Their written reports – which make recommendations about parenting arrangements – often play a pivotal role in evidence.

The Family Law Act grants no authority to family consultants to interact with a judge beyond providing the reports and giving oral evidence in an open court.

Ms Brasch's application was supported by the mother's barrister Jenny Hogan.

In court, Ms Hogan asked Justice Barry to disqualify himself due to a reasonable apprehension that he would not decide the case in an "impartial and unprejudiced" way.

In responding to the application and aborting the trial, Justice Barry told the court: "I am tempted to make a number of observations but have concluded so far as the discussions with (the social worker) are concerned, discretion is the better part of valour.

"I will be acceding to the application for me to step aside."

One Brisbane barrister told The Courier-Mail that any closed conference between a judge and a family consultant raised the possibility of one party influencing the other – unbeknown to the litigants and their counsel.

"How a trial should be conducted is not a matter of private briefings and discussions," the barrister said.

"It's got to be clear (to the court) what the judge is making his mind up on. The process of evidence has got to be transparent."

A top divorce lawyer said the events had rocked Queensland's family law fraternity and reflected a "mickey mouse" court.

"It's a disgrace," said the lawyer.

The abandoned trial, which entailed substantial court and legal costs, will be re-heard before another judge.

Go here

Reports ordered by the Federal Attorney General

Last week, reports ordered by the federal Attorney General the Hon. Robert McClelland MP were received. These are further to the reports made to the Attorney General's department last year. The gist of the new reports was made public on July 12 in the Sydney Morning Herald here . This article refers to the anxiety young children experience when removed from the care of their 'primary care giver' (in Australia that is usually their mother.) It appears that this problem exists where there is cooperation between parents, as well as where there are high levels of conflict. And in reference to the way the system affects people dealing with domestic violence (including the views of children) here.

The reports may be viewed and/or accessed in full at this link

Remember, this is an election year. Make your views known to all levels of government and to the media. Tell you stories. Make your vote count.

Nothing ever changes, everything stays the Same

Law fails children exposed to harm

ADELE HORIN June 24, 2010

THE Family Law Act is failing to protect children from ongoing trauma at the hands of abusive and violent fathers, a new study has found.

The act's aims of protecting children from violence and giving them ''meaningful involvement'' with both parents was being resolved in favour of contact even in cases of severe domestic violence, the study reveals.

Lesley Laing, senior lecturer in the faculty of education and social work at the University of Sydney, and author of the report, said more thought needed to be given to what formed a ''meaningful relationship'' when a parent had traumatised a child through exposure to domestic violence.

''At the present there is no requirement that a parent who has harmed a child in this way must demonstrate they can offer a safe and meaningful relationship,'' she said.

The report is based on interviews with 22 women, contacted through domestic violence services, who were negotiating parenting arrangements in the family law system. It is the first study that has allowed women experiencing domestic violence to speak about the impact of the 2006 legal changes that put greater emphasis on shared parenting while still maintaining protection in cases of violence.

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While the sample is small, Dr Laing said the women were those whose children were supposed to be protected by the law.

The women describe a situation where they are discouraged by legal advisers and others from raising issues of violence in the Family Court for fear of being labelled as an ''unfriendly'' or ''alienating'' parent unwilling to support contact with the father.

''Anything that you do to try and advocate for your children is somehow twisted into being high conflict and parental alienation,'' one woman said. ''So you are basically silenced. And the children are silenced.''

Another said she had agreed to the children having sleepovers at their father's place because she felt she had no choice. Her lawyer had convinced her that if she objected the judge would give him even more contact.

Dr Laing said some women felt guilty they had escaped violent men but their children had not. ''Forty years ago some women could only escape domestic violence by leaving the children behind, and they were pilloried,'' she said. ''Now there is a new form of child abandonment, at least part-time. It's a terrible thing we are asking women to do.''

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The report shows the women are battling a complex and unco-ordinated system that often saw state child protection services shunting matters to the Family Court but the court having no powers of investigation.

As well, the women battled community attitudes that regarded them as liars who misused the system. Professionals stressed the importance of fathering, without regard to its quality, while mothering was taken for granted. And it was commonly assumed that at least some contact was inevitable, no matter what violence had occurred, and that supervised contact would eventually move to unsupervised contact.

The study, No Way to Live, will add pressure to the federal Attorney-General, Robert McClelland, to amend the Family Law Act. An earlier review he commissioned from the former Family Court judge, Richard Chisholm, recommended amendments to provide greater protection. A much larger study he also commissioned on violence and family law is due to be released soon.

Dr Laing said the emphasis on children's contact with abusive fathers, even if supervised, showed an ''unsophisticated'' understanding of ongoing trauma. ''Spending time with the person who is the cause of the trauma will not fix things,'' she said. ''The men need to acknowledge and take responsibility for the harm and get help.''

Australian Police fail women again

Story Here

In another amazing blunder, Australian police failed to follow up a complaint made by a woman who was frightened for her own life. Days later, without attendance by the police, the woman was killed by her husband.
Again we see that the Australian Police are inclined to take a dismissive approach to domestic violence. This leaves women and children unprotected, and sometimes costs lives.

How the Family Court puts children at risk

Follow the link to OnlineOpinion for the article and discussion

How and Why Australian Legal Systems continue to Abuse Women

Reading through Australian websites devoted to dealing with the issue of domestic violence, talking about the issue with various professionals (people we expect would be practised in dealing with violence against women) one is left with the inescapable impression that, one way or another, women are going to be neither supported nor protected, as they seek to leave abusive relationships. This initially becomes apparent in the distancing 'objectivity' professionals use to maintain a proper perspective and response to women's claims of violence. It appears in the tendency to re-label the violence as something else, something less than or different to violence. For example, violent outbursts might be labeled 'anger management issues'. I recently had a lawyer jovially tell me; “We all do a bit of that, don't we?” or words to that effect. Clearly, he wanted to put the abuser onto the page of life the rest of us are on. But his question evades the point. We don't all 'do a bit of that', and we expect our social, legal and policing systems to protect us from 'that'. Don't we?

The current family law system in Australia presents a tangle of problems for abused women. Based on the premise that people do better in life if they know both parents, and on the now recognised as questionable theory of 'Parental Alienation Syndrome' ( series of articles at http://www.kidsindistress.org.au/parental-alienation.php), the law in Australia requires that abused parents appear (as already mentioned on this Blog) 'friendly' toward their children's relationships with their, and their children's abusers. This happens because family law in Australia is linked to a set of institutions and practises designed to make it possible for separating parents to resolve their differences without the need for litigation. The law may say that where there is abuse, these may not be appropriate. However in many cases, abused parents are ordered by the Family Court to participate anyway. This seems particularly cruel, given the trauma that victims of domestic violence often experience. It places victims of domestic violence in the unenviable category of being the only victims of violent crime in Australia, required to make themselves seem comfortable, even positive, about having to not only relate with violent ex-partners, but about being required to hand their children over to these people. It places abused women in a position that will lead to their continuing to be abused, and continuing to be traumatised.

How do these practises benefit Australian children? The current state of family law requires that our judges make decisions that are weighted toward 'the best interests of the child'. Sadly, although it sounds reasonable (and who can argue with something that is said to be in the best interests of a child?), the legislation doesn't stop at that. The 'best interests of the child' are defined as residing, as a primary consideration, in the child's having of a 'meaningful relationship' with both of its parents. The Family Court of Australia has tended toward decisions that give the impression that 'having a meaningful relationship' will require significant time living with each parent. Thus it orders that children spend time living with parents, even where abuse of children can be, or has been proved. Most recently the Australian media reported upon a case in which two children have been ordered, by the Family Court of Tasmania, to spend weekends with an abusive parent (article) And again in NSW; (article)

At present, a burgeoning men's/father's movement makes great noise about 'lies' being told by women in the family court. Their women, they say, are vindictively refusing them contact with their children. The Australian Institute of Family Studies has reported that claims of abuse don't tend to affect children's contact with alleged abusers (article). Although this finding was made in 2007, the Family Court of Australia continues to ignore women's claims of abuse and/or place children with abusive fathers anyway. However, even if it were the case that some women fib about abuse, it does not serve the best interests of children, to be placed in the care of abusive parents just in case the other parent is not being truthful. A growing abuse survivors movement in the USA (where similar legal policies have been practiced in some states) is taking the consequences of the assumption that women's abuse claims should be viewed cautiously, to the public. These children's stories are awful, the anger they express is palpable and powerful.

The question is this. Will Australia draggle in the coat tails of the colonies, clinging to loud but tired claims that 'we were one of the first to give women the vote, so don't say we're patriarchal'? Or will we take the kinds of courageous steps that our abused women and children need us to take? Time, and the coming federal election, may answer some of these questions.

Three hour wait for bashed woman and son

• By Greg Stolz

• From: The Courier-Mail

• February 09, 2010 12:16AM

GOLD Coast police took up to 3 1/2 hours to respond to a violent domestic dispute in which a woman was brutally bashed in front of her nine-year-old son and ended up on life support.

The boy told police his mother resembled "a rag doll" after a sustained attack lasting up to 90 minutes.

It was so violent that her blood was found splattered on the ceiling.

Police received a 000 call to a Burleigh Waters unit but the officers were diverted to another disturbance.

By the time they arrived at the unit, they found the woman unconscious in a pool of blood.

Last night she remained in intensive care.

Witnesses reported hearing the attack start about 12.30am on Saturday but police did not arrive at the scene until 4am.

An internal investigation has been launched.

The police media office announced an Ethical Standards investigation would be held as the bashed woman's partner faced Southport Magistrates Court yesterday charged with grievous bodily harm.

This horrifying report reflects something a local Police Prosecutor told me in a recent phone conversation. Sometimes the Australian Police are hesitant to rush to a domestic violence incident, because when they arrive the parties involved pretend that nothing happened. The woman involved has decided that 'she's still in love' with her abuser. Or she still wants to be with him. Surely this is not the point. The point is that when the police receive a report of violence, it should be investigated, just in case. Just in case someone is hurt. Just in case someone has died. Just in case children are at risk.

Of course we may not have a police force properly resourced to take timely action, and an Ethical Standards investigation might demonstrate that this was the case in this instance. Regardless of explanations offered for inaction, where there has been violence, we must consider the purpose of law enforcement in any Liberal Democracy (Australia is a Liberal Democracy). The law should tend to protect the citizen against the action of the strong and powerful, where that action is unacceptable. Where the law fails to do this, we should be clear that it is failing.