How the Family Court puts children at risk

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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.