Mischief in the Family Law Act

Writing for Online Opinion, Patricia Merkin (see below) reports on the unacceptable consequences of the current Family Law Act, which have been a force in moving the current government to making amendments.

On January 29 2009, an unimaginable act took place on the West Gate Bridge in Melbourne. Horrified motorists reported seeing a man throw a little girl from the bridge into the river below like a piece of unwanted garbage. The latest family law inquiry was generated by this crime because this little girl was killed by her own father after the Family Court made an order that led to the opportunity for him to commit this crime. This event revealed an unintended consequence or "mischief" in family law processes may be that a parent who is a risk to their children is not being adequately identified during family law processes.

The information generated by the inquiry into this event identified that a broadening of the definition of domestic or family violence in the Family Law Act is one way that a parent who is a risk to their child may be better recognised during the family law processes and this sort of event may be avoided. It has been well established that where domestic violence is extant in a family, it is a 'red flag' to the safety and well being of children. The amendments to the Family Law Act are now before the Senate Committee.

It has since emerged that the mother in this case tried to raise her fears about the safety of the children with the father at various points along the process, but it is apparent her fears were not heeded. Instead, for reasons outside the scope of this article, she consented to an agreement with the father for time with the children in the Family Court. The proposed broadening of the definition of domestic violence aims to improve the Court's ability to recognise cases where children are at risk with a parent of either gender by 'flagging' those risks.

There are those who would point out that the Family Court's involvement in this case was merely coincidental to the circumstances of the child's murder because the orders were made "by consent". This means that the parents came to an agreement between themselves without resorting to a trial where a judge would make the final order. In other words, since the orders were made by consent between the parents, then the Family Court had nothing to do with the circumstances that led to the child's death. After all, the parents were capable of making an agreement.

However, the Family Law Rules have stated for some time that when dealing with consent orders, the Court can require additional information or even dismiss the application, in other words, it has wide discretion and has power to do much more. The proposed family law changes before parliament that require the Court to ask about any parents' fears may go some way towards addressing the obstacles that prevent protective parents of either gender from raising their fears, a feature revealed by the inquiry.

In contrast to the findings and proposals generated by the inquiry, campaigners for 'father's rights' are promoting the case instead that 'good fathers' are being wrongly accused of violence and children are being denied seeing these fathers. Nothing could be further from the evidence, that is, evidence generated by objective research and the present and past inquires.

Quality information by properly trained researchers has not revealed the case by the campaigners that there are numerous "innocent" fathers being denied contact with their children due to 'false' allegations of abuse. Quite the opposite, since the reforms to the Act in 1996, it has been shown that there has been an increase in contact orders for fathers accused of violence before any investigations of violence were ever made. Instead, we have a number of cases of children being killed after they have been made available to fathers and after the Court has made what was later realised was an unsafe order. The latter is the 'mischief'- not the former.

By opposing the broadening of the definition of domestic violence, the father's rights campaigners are revealing their preference for a precautionary principle to be applied towards fathers accused of violence to their family, but this does not operate from a position devoid of an agenda and does not differentiate between those who may be dangerous to their own children and those who are not. Their wholesale approach does not focus on the number of cases where children have died at the hands of a parent of either gender after a failure to recognise the risks when the case went through the Court processes.

The father's rights campaigners instead are raising alarm that the broadening of the definition of domestic violence will 'capture' innocent fathers 'falsely accused' of violence, and children will be prevented from seeing 'non-violent' fathers. The question is though, given the gendered nature of domestic violence and given their preferences, who do these campaigners represent?

If their preferences are prioritised, the definition of domestic violence will be kept narrowly defined. However, then it will not properly identify domestic violence. This is because domestic violence is the use of a variety of tactics over time in the history of a relationship, long before it arrives at the court. Domestic violence does not occur as a "one-off" and so men and women accused of domestic violence that have not been violent over the history of the relationship will have nothing to fear.

The only people that can gain an advantage in keeping the definition of domestic violence narrowly defined, that is, reducing the number of 'red flags', are those that can gain a benefit from having less 'red flags' that may help identify them. That accused fathers deny that they have engaged in domestic violence is not a new or unexpected assertion, but these denials should not be the basis of legislative changes anymore.

A proper basis for evidence that accusations of domestic violence are false cannot be properly taken from those fathers that claim they didn't do it. Further, it is no surprise and only to be expected that second wives, new girlfriends or other people close to an accused father will naturally adopt the best possible construction to the accusations of violence by their previous partners. But the growing number of children killed after fathers were given access to them after a failure to identify their predilection for violence is the real 'mischief'. The broadening of the definition can go some way to addressing that mischief.

Domestic violence is a behaviour whereby abusers use a variety of strategies to control and dominate their victims. The broadening of the definition of domestic violence will not identify it where it does not exist any more than a cancer can be diagnosed merely by one or two symptoms such as a decrease in body weight and a loss of appetite. The expanded definition includes circumstances where a child has been exposed to domestic violence and a range of behaviours such as financial abuse or social isolation.

The broadening of the definition will instead alert the Court to the 'red flags' that will indicate the need to examine the history of the family more closely much like the cumulative increase in various atypical symptoms may alert the doctor to cancer. No reasonable person would insist that doctors are not in a position to properly or adequately interpret the nature and extent of the symptoms to a possible disease. In the same way, judges are not so naive, unintelligent, bereft of life experience or ignorant of legal evidence principles that a finding of violence will occur where there is no corroborating history of its tactics.

Domestic violence in cases before the Family Court is the tip of the proverbial iceberg in Australia today. The recent murders in the family of Kayla Rogers are cases in point and exemplary of the fallout when abusers kill because they will not release their control over their "loved ones." Family law must be better placed to respond to the needs of victims of family violence by expanding the definition to better identify not only abusers, but more importantly- the victims.

As these families approach the court, the law must be better placed to identify the potential risks that at best affects the psychological, social and financial well being of the victims, but at worst can be lethal. Having children thrown off bridges, suffocated with pillows, driven into trees, or raped and killed must not be allowed to happen when the court has made an order, by consent or otherwise, that results in the opportunity for any parent to kill the children and or the other parent. Victims like Kayla and her mother, who attempted to escape domestic violence from the person who was obligated to protect not kill them, must not fall through the law's gaps if they appear at the Family Court.

In 2003 Australia's leading experts in family law, the Family Law Council stated that, "There is no greater problem in family law today than the problems of adequately addressing child protection concerns in proceedings under the Family Law Act". The policies and legislative changes in response to the child protection concerns must be formulated by the evidence from the sources without a private agenda, not those who claim to speak for those that claim they "didn't do it." The fact that children are being killed by a parent in Australia is bad enough. That this happens after a child has been made available to the parent under a Family Court order is unacceptable.

Another dead child, investigation far too late

http://www.theage.com.au/victoria/girlfriend-of-dead-toddlers-father-now-a-suspect-20110628-1gpfk.html

Adrian Lowe (June 29) reports in this case. Here we have the story of a little girl who experienced extreme violence in her father's home. It is unclear just who delivered the killing blow to the child. It is painfully clear that she experienced ongoing, punitive violence at the hands (and feet) of her father and perhaps people visiting him. It is clear that this child lived a horrible life, in her father's home. Why was she there? Who decided that it would be in her best interest to experience the violence that led to her death? Who, perhaps, decided that signs of neglect/abuse were not sufficient, to warrant investigation?

And when will we insist upon safety for the children of our nation? When will we insist upon supporting parents who beg for help (as Channel 9 reports that the mother of this child did), only to be informed that their evidence is 'not bad enough' and 'the child would have to be in hospital before anyone was interested'? That 'contact with the other parent is in the bests interests of the child."?


Daniel Fogarty reports as follows:

The mother of a Victorian toddler who died from a suspected bashing had pleaded with a government caseworker to remove the girl from her father's house just weeks before her death.

The two-year-old, who can be identified only as Hayley, died two months after her mother's plea was rejected by the Department of Human Services (DHS) caseworker, a court heard.

After she noticed a bruise on her daughter's cheek when she and the caseworker visited her at her father's house, the mother asked the officer to remove Hayley and her brother.

"She said 'No' and I had to leave them at the house," the mother told the Victorian Coroner's Court on the first day of the inquest into Hayley's death.

"If she had turned around and said: 'Yes', I wouldn't be here today."

The mother, identified as CG, described the DHS as a "disgrace to society" and said both they and the police had ignored her calls for help.

Hayley died in the Royal Children's Hospital in August 2009, several weeks after being admitted with severe brain injuries.

Hayley's father, identified only as Robert, was one of three people with her on the night of the alleged bashing.

He was charged with intentionally causing serious injury to the toddler, but later killed himself.

Police retain an interest in Robert's girlfriend, who was also with Hayley on the night of the suspected bashing, as a suspect, the court heard.

She was excused from giving evidence on the grounds of self incrimination.

In his opening address, counsel assisting the coroner Chris Winneke said that it was not known exactly how Hayley died, but it is probable that one of the three adults in the house on the night she died "subjected her to violent assaults and caused the injuries from which she later died".

"On any view of the facts the events which occurred in the house were appalling," he said.

"On any view of the evidence, (Robert) failed utterly in his parental duty towards her, either by harming her, or if he did not, by failing to protect her."

At least Robert and possibly all three were alcohol affected, the court heard.

In his application to have Robert's girlfriend excused from giving evidence, lawyer Tony Lavery said a senior homicide squad investigator had raised concerns about the first investigation which was conducted by country Victorian detectives, the court heard.

He said there was evidence before the inquest that the girlfriend remained a suspect.

Robert's mother, identified as SHM, told the inquest her biggest regret is that she didn't step in and do something after she noticed Hayley had black eyes about a week before she died.

She said Robert told her he had seen his girlfriend stand on Hayley's throat in the shower.

The inquest before Coroner John Olle is expected to run for three weeks.

Senate Debate May 2011

Introduction

On 26 May, 2011, the Family Law Bill 2011 was debated in the Senate. The contents of the debate gave an interesting insight into the political divide on issues relating to child safety, where there is domestic abuse. In context, the debate came following media reporting on the deaths of a number of children, who were the subjects of various formal and informal family dispute actions. In stark contrast, the following week the Australian media moved to encourage community outrage, after an ABC report on the mistreatment of cattle in Indonesian abattoirs. Sales of beef dropped and the government acted swiftly to ban the export of live cattle to the offending plants. The Family Law Bill continues to be discussed. One wonders how it can be, that, as a nation, we care to take immediate action to protect cows. In the case of child safety we require the receipt of years of research, months of debate and referral to a senate committee. We move quickly to make cows we are gong to eat, more comfortable. We defer taking action on violence against children.

Hansard
Unfortunately Hansard does not give a word for word account of what took place, Mon 26 May, in the Houses of Parliament. I walked away from the debate on Family Law Act Amendment 2011, with one word ringing in my ears; “But...”. Hansard does not record the use of the word “but”. Despite this, 'but' appears in speech after speech, where senators insist that “children have a right to be safe”, and qualify the statement with something other than safety and something that may lead to lack of safety. The argument that children have a right to be safe, appears in the United Nations Convention on the Rights of the Child. As Australia is a signatory to this convention, it would be in our interests to seem familiar and cooperative with its requirements.

Convention

]Unicef provides a fact sheet which gives an easy to read overview of the United Nations Convention on the Rights of the Child. Article 19 of the convention states that;

Children have the right to be protected from being hurt and mistreated, physically or mentally. Governments should ensure that children are properly cared for and protect them from violence, abuse and neglect by their parents, or anyone else who looks after them. In terms of discipline, the Convention does not specify what forms of punishment parents should use. However any form of discipline involving violence is unacceptable. There are ways to discipline children that are effective in helping children learn about family and social expectations for their behaviour – ones that are non-violent, are appropriate to the child's level of development and take the best interests of the child into consideration. In most countries, laws already define what sorts of punishments are considered excessive or abusive. It is up to each government to review these laws in light of the Convention.

If our political leaders are familiar with this article in the convention, and common sense suggests a politician or her or his staff will look at it before debating related issues in the political context, the statement that “Children have a right to be safe...” is understandable. “Children have a right to be safe” signifies the idea we are obeying the convention to which we are signatory. It signifies our familiarity with the statement and the concept. It might even signify agreement with the statement.

The debate
This debate divided members along party lines. Coalition members gave speeches in which the 'but' may not have made Hansard, but was dominant. It should be noted that he 2006 Family Law changes were the result of Coalition legislative action. The Coalition might be expected to support against change, their own law. Further, in Australia 'liberal' and 'national' politics (these are the Coalition opposition party) tend toward preferring a traditional family model. This supports male authority exercised over the adult female, expecting a male breadwinner and female home worker. Weak legal and social support for abused women and their children fits the Coalition's ideological framework. It allows a measure of male dominance to exist in marriage or marriage like relationships. It also fits the conservative position in that the conservative inclines toward the traditional. If these relationships were conducted in a certain way in the past, unless there is very good reason, the conservative will insist that they continue to be done that way. One might argue that a string of child killings should be enough to urge change upon us, unless our conservatism is of more value to us than the lives of children. In the speeches of some Coalition politicians it appears that children's lives are not.

The Australian Coalition in general presented views that are contradicted by recent research, some MPs even referring to parts of research that could be made to appear supportive of the Family Law Act 2006. Opposition Whip Ms Marino began, saying that “Shared parenting reforms did not expose children to greater risk of violence and abuse...”. However she went on to say that “...neither is it fair to pretend that people are not hurt by the court decisions or that in some cases that hurt is … to the point of being life destroying.” Let's be clear, Marino is referring to death here. She is saying that “Shared parenting … did not expose children to risk of violence … in some cases they are harmed to the point of death...” This towering contradiction was repeated by other speakers. Marino was also the first of a string of opposition speakers referring to the bogey-man of false allegations.

Mr Billson referred both to 'grave concern' about the effect on children from violence, while he asserted confidence in the law of 2006. In his view what is needed is better training for professionals attached to the family court. He is not mistaken, better training is needed. However such training should not spring from law that continues to diminish claims of abuse, just in case the claims might be false. Philip Ruddock agreed that “...not every child will be safe...” and, “Where you can work it through and where a child has a continuing relationship with a parent, it is so much more positive and so much better.” This statement lines up with the false assumption that a relationship with an abusive parent is less harmful that losing contact with that parent whilst in the formative years. Relationship with the abusive parent is also likely contained in the 'broader rights' to which Ruddock appealed when he said “... the importance of ensuring that children are safe and secure but also ensuring that children's broader rights are also recognised...” Ruddock claimed that litigation in the family court is smaller in volume than it once was, and challenges the listener as to whether he or she would “...want to change that?” In this way he places clearing the court, ahead of child safety. Ruddock refers to the danger of false allegations, appealing to us that we would surely not wish to make provisions that allow false allegations? In this he, also, gives prevention of false allegations higher priority than child safety.

False allegations

The Australian Coalition appears deeply worried about the idea that women use claims of child abuse, to gain an advantage in the Family Court. Everyone knows a parent who says that false allegations were made in the Family Court, and a parent who was separated from his or her children for a time. I know a man who experienced this, and I know two women who experienced this. Anecdotal evidence, but quite powerful. However is it the scourge our Coalition politicians seen to think it is?

Dr Michael Flood (2010) wrote a paper examining this issue. In his paper, Flood refers to the idea that women routinely make false allegations as a myth, and considers it in the light of several matters of fact. The facts he has uncovered are as follows;
That the risk of violence increases at the time of separation.
Most allegations of domestic violence made in the context of Family Law proceedings are made in good faith, and with support and evidence for their claims.
Rates of false accusations of rape are very low.
Women living with domestic violence often do not take out protection orders and do so only as a last resort.
Protection orders provide an effective means of reducing women's vulnerability to domestic violence.

Flood discusses these claims and provides references for readers who wish to check their veracity. This and other similar information has been available for some time. Therefore we can conclude either that Coalition politicians disagree with or are willing to dismiss available information. The consequences of diminishing the claims of abused women can be severe. A list of dead and injured is available at the National Council for Children Post Separation web site. They number over thirty, most of whom were children. For each of these there are numerous families and perhaps hundreds of people, who will experience long term anguish. In some cases, causing suffering was the pronounced purpose of the act of violence. Both Arthur Freeman and Ramazan Acar are fathers who stated that violence against their children was motivated by a desire to hurt ex-partners. I would argue that if there is a choice between dead children, and a woman getting away with a false claim, it would be better that we risk the possibility that some women may get away with making false claims. However in the senate debate on 26^th May, on the parts of Opposition politicians, there was little mention of the killing of children for the purpose of harming their mothers. It seems that ex-wives making false claims about abuse, is deeply worrying. Ex-husbands harming or killing children to punish or hurt their mothers, is not so worrying.

Kate Ellis, Australia's current Minister for the Status of Women, should have the final word in this case. She told the senate that the government will remove “provisions that had the perverse effect of discouraging the reporting of family violence … this bill will continue to support shared care...” and “...where family violence or abuse is a concern the courts will be required to prioritise the safety of the child...” In response to Coalition insistence that the law unchanged has been doing well and that the AIFS had said that it doesn't, as it stands, put children at risk she notes that; “The Australian Institute of Family Studies and the Family Law Council say that the Family Law Act is failing to properly protect children and other family members from family violence and abuse.” There is nothing more to say. Twenty first century Australia cannot be allowed to continue being a place where family law leaves children at the hands of abusers.

Mother bashes baby

My focus in the past has been on violence toward women. Today I am moving to cover all domestic violence. This is an awful story, a story of maternal brutality. In this case, The Australian newspaper contains a story in which a mother is alleged to have horribly battered her sixteen month old son. Read the story here.

Children are among the most vulnerable members of our society. Despite Australia's having various protection services, these services, existing at various levels of the system (state and commonwealth), sometimes fail to protect. One of the many problems we face is an unwillingness, on the part of police services and other state child protection services, to become involved where the Family Court is active. This seems to be the case regardless of law requiring parents who suspect abuse, to immediately report it. And again, where the Family Court is involved, parents sometimes avoid fulfilling the requirements of the law, lest the law consider the abuse 'not bad enough' and deem the reporting parent 'unfriendly'. This latter problem is the one that four year old Darcey Freeman died of, I refer to it as 'death by the friendly parent provision'.

Reading the material relating to proposed changes to the Family Law Act, one can see that this and other related issues are recognised as problematic. We hope to see them changed soon. In the meantime I'll watch with interest the way that the mother in the above story is dealt with. Our family law system accepts some claims of violence about male parents. Criminal law is unequivocal. Regardless of the parent, criminal assault is criminal assault. Perhaps we need family law to take the same view?

Neglected Blog

I see that I haven't written anything for this blog since last year! ... I'm very sorry for that. We are in a period of change in Australia, a time when we hope the safety of children will be made paramount before the law. A time when the concern of mothers will not be as easy to dismiss as it has been since the Howard Government's changes to the Family Law Act, in 2005. One of the unfortunate aspects of this is that the road from that time until this, is littered with the bodies of children, along with some mothers and their families. Children have been dying, because of aspects of the Australian Family Law system. Children have been drowned by fathers, stabbed by fathers, smothered by fathers, thrown from bridges by fathers, gassed by fathers. All the while father's rights activists evade father's responsibility for this saying that "the system made them do it" and pretending that 'the system' is still mother- weighted. It is not, yet the claims continue to be made. This is an aspect of the dysfunction we see in abusers, it is interesting to see it repeated by their support groups.

I will continue to write about this issue, and post information as it arises, although caring for an active little boy, a family, and study will continue to pull me away at times. Still, I'll do my best!