The Family Court’s emphasis on shared custody has left children vulnerable to abusive fathers, but changes are coming that should put the child’s interests first.
By Jane Caro.
Jen’s daughter was five years old when she told her mother she had given up. “I won’t tell anybody anymore,” the child said, “because nobody believes me.”
At the time, Jen was in the middle of fighting for custody. Her ex-partner had been sexually abusing their small child. Jen did what any parent would do when her daughter told her what had occurred: she sought help.
“I naively thought the police and the family law court would help,” she says. “I got a lawyer and spoke to the department of community services.”
Unfortunately, while Jen’s statements were accepted by the child protection services, they were treated with suspicion by the Family Court. Despite her daughter’s allegations, despite the department having been sufficiently convinced to provide access to a sexual assault counsellor, Jen was forced to share custody. That meant her five-year-old had to spend every second weekend and half of the school holidays with the man she had accused of sexual abuse.
Jen now works as a nurse helping women suffering with post-traumatic stress disorder (PTSD), most often because of sexual assault and family violence.
“If I had had access to trauma-informed therapy back then,” she says, “I would have felt supported and believed … instead of the constant testing of the veracity of what you’re saying.”
Anita has a similar story of trying to protect her daughter from an abusive partner. She had apprehended violence orders (AVOs) against her partner, and her daughter ran away and refused to return to the father she feared, yet Anita lost custody.
“She still was not allowed to come to me but went to another family member who was also her godfather … the single (psychological) ‘expert’ wrote a report that tried to make out I was nuts. He claimed I was inhibiting a meaningful relationship with her father. A man who had held a knife to my throat.” Anita’s experiences inspired her to a life of advocacy.
This is a familiar story with the Family Court. Women repeatedly told me that their history of experiencing domestic violence, even when reported to police, even when it resulted in AVOs, even when there were witnesses, was not just disregarded by the court but caused the women to be regarded with suspicion.
Pip Rae, who worked as a New South Wales police officer for 20 years, dealing primarily with domestic violence, points her finger at systemic issues. Now a private investigator, she says that child protection services and police work at cross-purposes. “Child protection services have three criteria: no risk, significant risk and high risk. Police have innocent or guilty.”
Despite increased social awareness and understanding of the complexities and dangers of family violence, Rae says, the system has deteriorated. “In 2002, due to cost blowouts, the requirement for prosecution shifted from ‘beyond all reasonable doubt’ or prima facie to ‘likelihood of getting a conviction’, and this led to sexual assault and DV charges being less likely to get up, because they are more difficult to prove.”
Angela Lynch, advocacy manager for domestic violence service provider Full Stop Australia, agrees. “Since 2006, in response to lobbying by men’s rights groups, the Family Court must start from a presumption of equal, shared parental responsibility. This works fine in most divorces but those that come before the court are the most complex: 80 per cent of matters in the Family Court have a background of family violence and 70 per cent a background of child abuse.”
Like many similar services, Full Stop has made a submission to the federal government in response to proposed new legislation that would reverse changes made to the Family Court in 2006. The proposals are to place the interest of the child at the centre of the court’s responsibilities when it comes to custody and access arrangements. The consultation period ended this week and Attorney-General Mark Dreyfus has promised to legislate this year.
“The presumption of shared parental responsibility has contributed to a demonisation of mothers, especially if they allege family violence or child abuse,” Lynch says. “They are immediately seen as hostile to the system norm of shared parenting.”The consequence of this shared-parenting emphasis in complex Family Court battles has been decades of devastated mothers and children sent back into high-risk situations.
Duncan Holmes, a specialist in family law and director of Holmes, Donnelly & Co Solicitors, disagrees with this assessment. “Domestic violence has been at the uppermost of the mind of every judge I’ve appeared before, so it’s distressing to hear these stories. Even since 2006 and, indeed, before then, the best interests of the child have always been paramount,” he says.
Lynch says the system should put the emphasis in such complex cases on the people with the least power – the children and the victims of violence and abuse.
I speak to another woman, Nina, who now works in child protection herself. When she was separating from her partner, she was powerless to help her own daughter. This was despite her partner’s extensive criminal record, including the kidnapping of their four-week-old daughter. It was despite video footage of him threatening to punch Nina in the face while she was holding the baby and the fact he had been to jail for kidnapping an older child from a previous relationship. Nina blames what she calls the male-centric nature of the court. “Despite his criminal record and my lack of one,” she tells me, “they do not believe a word I say.”
Like Anita, Nina is scathing about court-appointed “experts” and the reports they write. She also points to the fact that men often have greater financial resources than women when it comes to fighting legal battles.
Nina has been self-represented since 2020. “My daughter is a mess,” she says. “She is broken. She is self-harming. She is suicidal.” But Nina has been silenced. She is under a court order not to report any abuse that her daughter might disclose.
Another woman I speak with, Sarah, is in the same terrible position. There are more than 20 reports of sexual abuse by her ex-partner regarding her three daughters, two of which are substantiated, but the girls are all now in the custody of that same man. Having been described by the court-appointed report writer as “too calm”, while her daughter who disclosed was described as “too exaggerated”, Sarah has been fighting for custody since 2015. She has only just been awarded access.
Her daughters keep asking when they can come home but, like Nina, Sarah is also under a court order not to talk to her children about legal proceedings and, worse, if they disclose further abuse, she cannot report it to either the police or child protection.
Psychiatrist Dr Karen Williams, who specialises in treating PTSD, says 53 per cent of women who have experienced domestic violence are given a mental health diagnosis.
Laura, a lawyer, says she was so traumatised by the violence she experienced at the hands of her ex-partner, which included rape, strangulations and attempts to run her over, she was unable to cope with shared access. She collapsed at handovers and later in the court, where she was accused of “faking”.
Misdiagnosed by a court-appointed expert as suffering from borderline personality disorder – she has since been re-diagnosed with PTSD – she lost custody of her son to the man who had terrorised her.
Laura says many lawyers explicitly warn their clients against alleging family violence or child abuse, even if, as in Laura’s case, their partner was charged by police and convicted.
The consequence of this shared-parenting emphasis in complex Family Court battles has been decades of devastated mothers and children sent back into high-risk situations. Jen’s daughter is an adult now, but no longer has any relationship with either of her parents. As Laura says, “You can leave the violent relationship, but the Family Court won’t let you escape it. Not with your child.”