I think this issue is relevant to Tasmanians, particularly since the Family Court and the Federal Circuit court have recently merged, the first major reform since 2006.
Although I went through the Family Law Court system over a decade ago, it appears that little has changed. Therefore my experiences are currently relevant and of interest to parents battling in court today.
The longer you are with an abuser, the more destructive he/she becomes and the harder it is to extricate yourself. Don’t make the mistake of thinking that the arrival of a child in the family can cause an abuser to change his behaviours – it can’t. It won’t make him more responsible or abuse less. As many victims discover after leaving, having children with an abusive partner makes their life more stressful than before as they worry about the effects his/her abusive behaviour is still having on the children as he/she fights for access and custody. To begin with, having children will make leaving more difficult and certainly raises the possibility that the other parent will threaten to seek custody of them.
A parent, usually the mother – and I make no apologies for my use of gender – faces dangerous bias against her when family violence is raised. The court has expectations that she will provide reams of material supporting her claims of abuse even as that material is discounted as fabrication or a likely product of a vindictive female’s imagination.
If the man presents in court as friendly, truthful, calm etc, the court will have trouble believing that he could be capable of abuse, and so disbelieve the accusations of the abused woman. Even if accusations are considered, many court officials will think that both partners are equally culpable. The court may believe that if the mother is no longer living with the partner, then his abuse will stop, so the children will be safe with him, and that all is rosy now the “cause” of his abuse is no longer present.
The father may act in a conciliatory and amenable manner regarding court processes commonly making such statements as, “We need to put all our differences behind us for the good of our children,” and, “She is so focused on getting revenge against me that she is forgetting about the children’s needs. That’s why I’m asking for joint custody while she’s asking for restricted and supervised access only and there is no need for this. I’m a wonderful father and have never, and would never, hurt my children or their mother.”
This piece of acting buys into the court’s thinking: that women tend to be more vindictive than men when relationships end so that men are too frequently victims of false accusations of abuse by women who want to keep them away from their children. The abuser’s aim is to get court personnel to disbelieve his ex-partner and ignore any evidence she gives. Unfortunately, in my case and with many others who battle in Family Court for their children, the father is believed over the mother.
Another tactic an abuser uses in court is to claim that the mother is trying to turn the children against him. Psychologists have contributed to the court’s bias toward fathers having access by saying that it is unhealthy for children to distance themselves from even an abusive father and that the mother is the main cause of the children’s desire to distance themselves. Family courts tend to be unaware of how important it is for children not to be exposed to the negative and damaging role modelling of their abusive father and, to his hostility and contempt toward their mother. Regrettably too many abusive men succeed in using the claim of “parental alienation” to win custody or unsupervised visitation even where there is extensive evidence that the man has abused not only the mother but the children as well.
The reality is that victims attempt to restrict contact with the abusive parent because they are being an appropriately protective parent, not a vindictive one. It is now well known that children who are not supported to protect themselves from exposure to abuse will be at a greater risk for accommodating abuse by others as they go through life. (Bancroft, L. 2002 ibid)
Abusers use misleading arguments in family court litigation such as the myth that fathers are widely discriminated against by family courts in custody disputes – research actually shows the opposite, that it is the mothers who aren’t believed – and that they are creating unnecessary disputation by their continuous allegations of abuse by the father and that decisions are inevitably made in the father’s favour.
Other beliefs of the court are:
- that men are abused in relationships as much as women
- that the children fare better in joint custody, where research shows overwhelmingly that they do worse, especially in cases of reputed family abuse·
- that domestic abuse, especially emotional abuse and coercive control in the relationship is irrelevant to custody decision
- agreement with abusers who incorrectly assert that there is a rampant problem of women’s false allegations of abuse is problematic
- A number of judges and custody evaluators consider the father’s abuse of the mother irrelevant to custody and visitation decisions. These incorrect assumptions can damage mother-child relationships and pave the way for the abusive father to use the children as weapons against the mother. Even if abuse is believed, many court personnel say, “Let’s leave all that in the past and concentrate on the future of the family where both parents should have access to the children.”
Too often parents are given equal custodial rights despite the family history of abuse. An abuser’s attitude toward authority, social services and family support of a victim is couched in thoughts such as, “She’s got mental problems and wants to get back at me,” “She really exaggerated what I did,” or, “I can lie and the court will believe me,” and “I can get away with anything without having to suffer consequences”. (Bancroft, L. 2002)
Unfortunately, these misinformed attitudes are reinforced in the current family court system and in the actions of family close to an abuser.
Psychologists have contributed to the court’s bias toward fathers having access by saying that is unhealthy for children to distance themselves from an abusive father and that the mother is the main cause of the children’s desire to distance themselves. Family courts tend to be unaware of how important it is to children not to be exposed to the negative and damaging role-modelling of their abusive father and to his hostility and contempt toward their mother.
Victims of family violence are often emotionally crippled and remain this way for a long period after leaving an abuser. Over the years of being subjected to abuse, a parent may experience emotional and physical problems from the continuous trauma. After leaving, although free from direct abuse, the victim typically has ongoing self-esteem issues, mistrust for and fear of social interactions. Despite being obviously traumatised, that person must negotiate court processes and develop a legal case often without a legal representative due to lack of available finances. The victim may have to self-litigate without prior knowledge of court processes, hoping they present as the best parent to care for the children while struggling to deal with the effects of partner abuse.
The Family Law court system often requires a traumatised victim to compose letters to relevant court officials, fill out multiple affidavits addressing their concerns for parenting of the children by the abusive parent, and reasons why the victimised parent should be considered the parent for primary care. Over years of litigation, the victim may have to become their own lawyer and hone knowledge (scant at the beginning) of Family Law basics such as:
- the step-by-step processes of Family Court; the way the court considers the best interests of the child (such considerations being the relationship of either parent to the child, the wishes of the child factoring in their age and the effect on a child of separation from a parent and siblings)
- the practical difficulty and cost of contact with a parent
- the ability of each parent to care for the child
- the age, sex and cultural background of the child·
- the attitude of the parents to the child and to their parenting responsibilities
- any violence order in the family
- whether the court order will lead to further applications.
And, most importantly, the need to protect the child from any psychological and/or physical harm caused by any abuse or violence.
. . .
It is imperative that Family Law courts progress towards recognising and responding to family violence. Other associated bodies outside of the court, such as social institutions, police and criminal courts, are making progress in this regard.
The decisions the Family Court makes have far-reaching and wide-ranging consequences for all of us regardless of whether we have experienced intimate partner abuse, have children to an abuser, have separated from that person and/or have been through custody and access matters.
Our family courts need to be acting in our children’s best interests. How can this be assured when abused parents’ disclosure of abuse by their intimate partner is discredited, dismissed or disbelieved in court and the children are court-ordered to be with the abuser through unsupervised access or custody? Is this evidence of the court acting in the best interests of the children? Something to ponder.
. . .
Update on the September 2021 merger of the Family Court of Australia and the Federal Circuit Court of Australia.
Both courts are now under the banner of the Federal Circuit and Family Court of Australia (FCFC). To keep my column piece relevant, I would like to briefly say what this merger means to victims of violence in the context of contact and custody disputes.
Journalist Madeline Hislop states, “The government has argued that creating a single-entry point through this merger would make the system easier to navigate and increase efficiencies within our court system. However, I believe that this reform, rather than strengthen a system will lead to diminution of specialisation and increase risk of harm for vulnerable groups. Increasing specialisation and making the system easier for parents to navigate could have been achieved without legislative amendment.”
Yvette Cehtel, from Hobart’s Women’s Legal Service, stated, “While the Family Law Act will still apply, federal circuit judges without experience and specialisation in family law matters will be dealing with risk, family violence and matters affecting children. I am not sure how specialisation will be retained, with this merger.”
For myself, I feel that the increasing number of cases in which family violence and child abuse are raised has led to an even greater need for family law jurisdiction to be vested exclusively in specialised, trained judges who can give their full attention to the needs of family law clients without being diverted to exercise other unrelated jurisdictions.
A merger does not serve in the best interests of children in separated families and may have the adverse effect of putting them in even greater danger.
Safety must be prioritised in family law.
Read more from Deborah Thomson's column:
Issues with Centrelink and family violence victims
Domestic violence is everday terrorism
He will forever harbour his secret
The warning signs, and what to do about them
Non-fatal strangulation: why law reform is needed in Tasmania
If you are looking for other assistance services you can go to www.findhelptas.com.au for help in Tasmania or, nationally, call 1800 RESPECT (1800 737 732).
Deborah Thomson moved to Tasmania with her daughter in 2010, and now lives with her partner of nine years and a parrot.
She moved to escape domestic violence and, inspired by her new partner, wrote her first book, Whose Life Is It Anyway? Recognising and Surviving Domestic Violence, to help others recognise abuse (and in particular coercive control), in the home, and to increase their motivation to leave earlier.
After publishing her first book, she became a trained advocate through Engender Equality, a non-government Tasmanian organisation working with people and communities impacted by family violence. Deborah Thomson advocates for survivors of family violence, speaking at domestic violence events across Tasmania, through media channels and podcasts.
She recently completed a second book, detailing lived experience with domestic violence by her then husband, spanning 17 years from 1985 to 2003. This book is now used in Tasmania as an information resource for family violence counsellors and students on practicals. Both books are available through The Hobart Book Shop.
Visit the homepage for Deborah's column, The Family Violence Epidemic here.
