UNIFEM Informs seminar
Short fuse: Realities and solutions in family violence
Marking White Ribbon Day: the International Day for the Elimination of Violence Against Women (IDEVAW) 2005
Co-presented by UNIFEM Australia and The Bob Hawke Prime Ministerial Centre at UniSA
Thursday 24 November 2005
3rd in the Adelaide series of seminars on social issues
Speakers
- Dr Elspeth McInnes, National Council of Single Mothers and their Children
- Mr Rob Hall, Nada Consultancy and Training
- Ms Dallas Colley, Domestic Violence Training and Consulting
Speakers
Dr Elspeth McInnes – National Council of Single Mothers and their Children
The following is a quote by the Chief Justice of the Family Court, Diana Bryant, published in the Sydney Morning Herald on September 19 2005.
“In my experience there is some mythology about the sorts of [domestic violence] allegations the court will act on,” … “By the time a matter came to court it would be most unusual for it just to be one’s word against the other. …you would almost never see a case in which a mother, for example, simply made an allegation that the father was abusing the child. You would almost never see that. I suspect that if you did you would not be acting on it.”
As this quote makes clear, it would be highly unusual for the Family
Court to take any kind of protective action towards a child based on an
allegation by a mother.
At this point I would ask you to think about who a young child experiencing
abuse from their father would be most likely to confide in – would it be
mum? A policeman? A lawyer? A child protection officer?
Perhaps while you ponder this, consider how you would go at describing
your last sexual activity in detail to a complete stranger. Think about how
you would do this if you were four years old and the person you had sex with
was your dad. Now think how it would be if you had been told by dad that you
would never be believed and get into big trouble if you did tell. Now
imagine that you have told, and the person you told tells your dad and sends
you to live with your dad. This is what happens to children who experience
incest and whose mothers try to protect their children from this experience
using the family court system.
An allegation of child abuse made to Family Court officers is supposed to be
reported to state child protection departments in the same way as any other
allegation. Like any other report, it will be classified using a Tier system
to prioritise response. The highest priority responses are given to reports
of children in immediate danger.
As the reasoning goes, a child who is resident with a non-abusing parent is
not in immediate danger, and there is a whole federal family law court
system to make decisions about that child. The state legislation, budgeted
resources and mandate is to investigate and substantiate reports of child
abuse and intervene under state legislation if needed to protect the child
from continuing harm in the short-term. The outcome is that at least half of
all reports arising from the family law system are never even investigated
(Hume 1996; Brown et al 2001). Even when an investigation does take place,
and if the young child does manage to talk about abuse during the
investigation, young children’s statements of abuse are typically challenged
in the adversarial court system as being potentially coached by the mother.
Further, the conclusions of child protection workers may be accepted or
ignored depending on the judge’s disposition towards such issues. With no
workable system for investigating allegations of violence or abuse,
allegations will inevitably be construed as false, given that they cannot be
proved to be true.
As Bryant’s quote makes clear, violence or abuse of mothers is also not
given weight by the family courts. State restraining orders are seen as
unreliable indicators of violence as they may be issued ex parte – or
without contested hearing. Men’s violent conduct in court and towards their
ex-partner is often construed as a justifiable and understandable product of
their frustration with her. Further, there is a dislocation between the
violent partner and the ‘good father’. A man who has hospitalised a child’s
mother can still be described as a ‘good father’ to the child. In the Dalton
case in Queensland in 2004, the father went on to kill the children and
himself after being given care of the children by the Family Court, despite
the desperate warnings of the children’s grandmother about his violence. His
violence towards the mother was not seen as relevant to his treatment of the
children. Such views inevitably come back to notions that adult women
provoke good men to violence, but such men nevertheless remain suitable
carers for children – displacing the reality that men who use violence in
family relationships have already clearly demonstrated an acceptance of the
use of violence as a legitimate means of control of others. Hospitalising a
child’s mother is hardly acting in a child’s best interests
Australia has a serious problem with domestic terrorism. A study by Vic
Health identified that violence against women was the biggest contributor to
the public health burden for women aged 15-44 (Heenan et al 2004). The
Australian homicide data shows that 76 women and 23 children were killed by
partners or ex-partners and fathers in 2002-2003 (Mouzos and Rushforth
2003). In Sydney in October Police Commissioner Ken Moroney revealed that
Police received an estimated 58 reports of offences against children in New
South Wales every day (Glendinning 2005).
This annual death and injury toll far exceeds the death toll to Australians
from global terrorism, and the dead, like the victims of global terror, are
innocent non-combatants – they are mothers and children – ordinary mums, and
mainly pre-school aged children. Like global terrorists, the perpetrators
are not enemy aliens, but local husbands and fathers from the neighbourhood.
Laws restricting the civil freedoms of Australians are to protect citizens
from global terror, but on the home front the Government is considering
family law changes to increase the difficulty of successfully securing
safety from violence under family law. When politicians are asked about why
there are plans to increase the difficulties for separated mothers with
violent ex--partners, the near universal response is to talk earnestly about
the risk of women making false allegations. The tragic irony of course, is
that, as Chief Justice Bryant points out, it would be very rare for the
court to actually change any outcome as a result of allegations of violence.
This is the fatal flaw in the argument that women falsely allege violence to
gain advantage - the awful truth is that the court is unlikely to take any
notice let alone provide any ‘advantage’. She would win the ‘advantage’ of
more hearings, meetings and reports and risk jail, fines and loss of care of
the children. Indeed the family law reforms have flagged a ‘friendly-parent’
provision where children will reside with the parent most likely to
facilitate contact with the other parent. Mothers trying to protect their
children will quickly be labelled ‘unfriendly parents’ while perpetrators
will be increasingly likely to be given residential care of the children.
In 2002 the Family Law Council provided a report to the Federal Attorney
General identifying how and why the system was failing to protect children.
The Family Law Council (2004) has also detailed to the Attorney General the
failure to support safety from violence. Their letter identifies the problem
with the part of the Family Law Act which requires contact orders not to
contradict domestic violence orders. State courts have responded by making
orders which restrict contact except for the purposes of child-parent
contact. This means in turn that Police will often not intervene in
instances of violence or abuse occurring in the context of father-child
contact (Katzen 2000) and this means that children and mothers face
continuing violence and abuse through contact orders.
In contrast to the Commonwealth’s willingness to take over state’s
jurisdiction over industrial relations in the name of a strong economy, the
Attorney General has rejected the Family Law Council call for a national
child protection unit to better protect children in the family law system.
The Council recommended an investigative unit attached to the family law
system, but the Government wants the states and territories to continue to
hold responsibility for child protection in family law, despite the absence
of a jurisdictional mandate or training or funding to provide such services.
What is at stake in this elegant game of inter-governmental ‘chicken’ is the
lives and well-being of a generation of children affected by family
violence, but they don’t seem to count in the same way as industrial
relations, for example.
We know that the most dangerous place for mothers and children is in their
own home, yet when they try to achieve safety through separation, the system
will deliver them straight back to their abuser. In Adelaide a mother
without a lawyer has been repeatedly jailed by the court for believing her
child’s disclosures of child sexual abuse. The junior primary school child
now lives with the alleged perpetrator and sees the mother on supervised
contact where the child shows mother new bruises and asks when they can come
home. This is sadly not an isolated case, just another tragic example of the
horrifying failures of the family law system to deliver safety. But
ultimately, what is more horrifying, is that those with the power to make
change have been repeatedly informed of the problem and choose to do
nothing. In this sense they are complicit in every homicide of children and
mothers that the family law system delivers.
References:
Brown, T., Frederico, M., Hewitt, L. and Sheehan, R., (2001) ‘The Child
Abuse and Divorce Myth’ Child Abuse Review, 10: 113-124.
Family Law Council (2002) Family Law and Child Protection, Canberra, AGPS.
Family Law Council (2004) Family Law Council: Review of Division 11 – Family
Violence, Letter of Advice to the Attorney General, Canberra.
Glendinning L., 2005 ‘Horrific Figures Spur Child Abuse Crusade’, Sydney
Morning Herald, October 24.
Heenan, M., Astbury, J. Vos, T., Magnus, A. and Piers, L. (2004), The Health
Costs of Violence: Measuring the Burden if disease caused by Intimate
Partner Violence, VicHealth, Victoria Department of Human Services,
Melbourne.
Hume, M., (1996) Child Sexual Abuse Allegations and the Family Court of
South Australia, Masters Thesis: University of South Australia.
Katzen, H., (2000) ‘It’s a Family Matter, not a Police Matter: The
Enforcement of Protection Orders’, Australian Journal of Family Law, 14
(2):119-141.
Mouzos, J. and Rushforth , C., (2003) ‘Family Homicide in Australia’, Trends
and Issues Paper Number 255, Australian Institute of Criminology, Canberra.
Sydney Morning Herald, 2005, ‘Custody Wars: Put Kids First’, Sydney Morning
Herald, September 19.