The sake of the children

May 2, 2009

Divorced and separated fathers get a greater share of child care, but this has not always benefited offspring, writes Adele Horin.

The young man, mingling with family and friends at his 19th birthday party, is so confident and happy it is hard to imagine the frightened, clingy child he once was. It is clear people adore him. His mother had fought like a tigress to see him like this: well-adjusted and well-liked. The father who had sexually abused the boy from a young age had been an antagonist - but not the main one. Her true adversary had been the Family Court, which had ordered the boy to visit the abuser for years after the parents separated. It had decided the mother was a liar and manipulator, and it was only when irrefutable corroborative evidence of the abuse finally came to light that the court did a U-turn and ordered all contact between the boy and his father cease.

"Whatever abuse happened to my son, I knew with a supportive mother and counselling he would have gotten over it," says Katrina*, who is a veterinarian, articulate and measured. "What was really difficult was the court process that turned our life into a nightmare."

It is one of the hardest jobs in Australia to be a Family Court judge trying to determine who is a liar in custody battles that involve allegations of child abuse or domestic violence.

But it is harder to be a parent that has failed to convince a court of the veracity of a child's accusations and be forced by court orders to send him or her, kicking and screaming, on regular visits to the abuser - or else be in contempt.

Critics of the Family Law Act say the ideological pendulum has swung so decisively in favour of children having contact with both parents after divorce that children's safety and psychological wellbeing are compromised. Changes to the law in 1995 and in 2006 have put greater emphasis on the importance of - in effect - the father's presence in children's lives.

But critics say the changes created a catch-22 for many mothers. If they raise issues of domestic violence or child abuse, mothers run the risk of being viewed as an "unfriendly" parent, likely to thwart contact, and inimical to the philosophy that guides the court. Children lose if mothers stay silent about violence or abuse, and may lose if their mothers speak up.

Whatever words are written in law to protect children from harm, too many children end up spending time with violent or abusive fathers, the critics claim.

Dr Lesley Laing, a senior lecturer in the faculty of education and social work at the University of Sydney, recently interviewed 25 women who have tried to protect their children in the family court system. "Police will tell a woman to leave a violent husband. The Department of Community Services says leave him or you lose your kids," Laing says. "But if she does leave and ends up in the Family Court, she's told to get on with him. If she tries to be protective of her children, she puts herself immediately outside the ideology of the court. Our policies are crazy."

For a decade, anecdotes about the plight of these women and children have circulated through women's refuges, women's legal services, and domestic violence and sexual assault counselling services. And a small group of academics including Laing, Professor Freda Briggs, associate professor Dale Bagshaw and Dr Amanda Shea Hart, have continued to collate family law cases, involving abuse or violence, that ended with questionable outcomes for children.

Having examined 20 family court judgments made in the five years after the 1995 amendments, Hart concluded that "dominant and repeated statements [by judges] reflected an assumption that fathers' presence was required for children's future wellbeing and development, in spite of evidence that the fathers had been violent toward the other parent and that some children repeatedly stated that they did not want contact with them".

But, in the absence of large studies, mothers' versions remain contentious. It is never easy to dispute a judge's findings.

Governments have heeded men's voices, complaining of Family Court bias, and the large well-funded research projects that showed a staggering one-third of children never saw their fathers after divorce and many wanted more contact.

But since four-year-old Darcey Freeman's father allegedly threw her from Melbourne's West Gate Bridge in January, to the horror of morning peak-hour crowds, critics of the system have seized the day. The alleged actions of the father, who is due to appear on murder charges this month, sparked a call from the federal Attorney-General, Robert McClelland, that there be a review into how the family was treated by the judicial system.

A national campaign to highlight the dangers children face under the family law will culminate tomorrow in rallies across the nation. The Sydney gathering is planned for 11am at Cook and Phillip Park. The Safer Family Law campaign is led by Sydney journalist Barbara Biggs, the author of In Moral Danger, which is about her experience of child sexual abuse.

The campaign involves 14 videos on YouTube that use actors to portray six parents unable to tell their stories because of Family Court confidentiality provisions. Another video uses young actors to tell the stories of two children sent on court-ordered access visits to abusive parents; 10 professionals appear in other videos; and three journalists speak about the problems of the court's secrecy provisions.

An online petition calling on the Federal Government to amend the law to better protect children has garnered about 3000 names. It calls on Australia to follow New Zealand where the onus has been shifted to violent parents having to prove they are safe before custody or access is considered. "Since my book was published in 2003, I've had 2000 emails, some of them harrowing Family Court stories of how children were taken from mothers who were trying to protect them," Biggs says. "They thought I could help."

She says many mothers are in a bind - either lacking corroborating evidence of the violence or sexual abuse, or liable to be labelled "alienating, hysterical or neurotic" if they take their children to psychologists or sexual assault counsellors.

That is what happened to Katrina. When her four-year relationship broke up, she was supportive of her two-year-old son having regular contact with his father. But that changed when her son started to come back "crying and distressed" from visits, and told her, in the vernacular of a preschooler, what had happened to him in his father's house. Then he started to refuse to go on visits. "We as women find it hard to believe, and good men, too - we don't like to think our fathers, brothers, uncles are doing these things," she says. "But I believed my son from the beginning."

Her former partner launched a series of punishing court actions to have contact enforced and then to have full custody. And while Katrina retained custody after a long trial, the court insisted the boy go on contact visits. "My son was told if he didn't go, it would be his fault if I went to jail."

The court experts concluded the boy had concocted the allegations and that Katrina was alienating him from his father. When the boy, at 10, was still refusing to go on visits, police were twice sent to enforce access. On one occasion two police officers met the boy at school and dragged him screaming from his mother's car.

The breakthrough came in the middle of a second trial initiated by the father when the boy was 11. The father, remarried and with a stepdaughter, had been accused by the girl of having sexually abused her. The stepdaughter complained to the police and her complaint, along with affidavits from other relatives, were provided to Katrina and then to the Family Court.

The court imposed a no-contact order, except through emails and letters, and the son has not seen the father since. "But there was no apology," Katrina says.

Since her experience, the 2006 reforms to the Family Court Act have included a number of provisions to protect women and children. The presumptions of shared parental responsibility and consideration of children having to spend equal or substantial time with both parents do not apply in cases where there is reasonable grounds to believe family violence has occurred.

However, a widespread perception remains in the community, including among lawyers, that the shared parenting ideology trumps other considerations.

Vera* says her husband was in jail for attempted murder after having stabbed her 31 times when she left him. She has been advised recently by two separate solicitors not to approach the Family Court for an order to prohibit contact between the father and her children till they are 18.

From jail the father had launched a court action to force the children to visit him. The mother had won a temporary no-contact order that has lapsed and she wanted to make it permanent. "But I was advised it could backfire on me if I went back to court and he challenged me," she says. "Both lawyers said it would be like opening a Pandora's box."

The Chief Justice of the Family Court, Diana Bryant, denied provisions in the act on family violence were not effective. She said in every case in which violence is alleged the court must weigh up the benefit to the child of having a meaningful relationship with both parents and the need to protect the child. Neither principle was more important. "It is a matter of the evidence and facts in each case."

As well, the standard of evidence required to prove allegations of violence was less than in other jurisdictions. Hearsay and opinion were allowed. "Even so, the violence must be proven to some extent, and at least to the extent that the court can find that there is an unacceptable risk" to the child, she says. "Courts are not entirely evidence-free zones."

Justice Bryant, however, admits many "shibboleths" and "myths" remain in the community about the act. She has urged the Federal Government to consider amendments to sections of the act that have led to misunderstandings and may dissuade women from raising issues of violence and abuse. Among them are sections that have led people to believe costs will be awarded against them if they raise allegations of violence that are later not proven; and that a party will be branded "unfriendly" if they raise allegations of violence.

"I do not fully understand how some of these shibboleths have come about," she says. "However, the fact they have is concerning and, in my view, makes it essential for the Attorney-General to have a close look at whether there should be some amendments to overcome these problems."

*Real names changed as required by the Family Law Act