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.