When considering the reality of domestic and family violence, women and children are most likely to be harmed or die when they leave their abusers. At this fraught time, they are then required to front courts, arrange domestic violence orders and work out parenting plans with their and their children’s abusers. The legal systems women interact with are poles apart and they are required to engage with these processes at a time when they are most vulnerable and afraid whilst needing to put their best foot forward in fighting for the safety of their children. Taking any stand against a person who has perpetrated violence isn’t for the feint hearted; yet any stance is compounded in complexity by the fact that the systems of support legally available don’t communicate and are operated by different jurisdictions. Often, they leave women and their children bereft of the support and safety they need.
This was the foundational conversation of experts who spoke at a forum outlining the Australian Law Reform Commission’s (ALRC) Report on the Family Law System: Implications for Domestic Violence, held on Wednesday, 15th May. This forum was hosted by the Brisbane Domestic Violence Service (BDVS) in partnership with QUT Law.
The interactive discussion focused on the Australian Law Reform Commission’s Report and explored the implications of changes to Australian family law for domestic violence with a focus on women and children’s safety and well-being. The ALRC Review of the Family Law System is the first comprehensive review of Australia’s family law system since its commencement more than 40 years ago. The findings and recommendations of the report have serious implications for domestic violence and the impacts for women and children who will be significantly affected by how the recommendations are implemented.
Forum MC, Belinda Cox of Micah Projects’ Brisbane Domestic Violence Service (BDVS) introduced the Keynote Speaker, Jo. Jo is an anti-domestic violence advocate and representative for BDVS Resound Voices of Experience group.
In telling her personal experience of domestic violence Jo noted that 1 in 3 women have experienced or are going to experience domestic violence in their lifetime. “Domestic violence has no boundaries. Domestic violence spans all of society, it’s just more hidden in well to do locations. In 2010 I was a Senior Marketing Executive. I met my partner on the internet and he was tall, handsome and charming. He had 2 children and a successful career. The relationship progressed quickly, I thought due to how much he was in love with me but later realised that there was a time limit to how long he could keep up the façade.” Jo noted that her first experience of his violence was such a departure from how he usually behaved that she saw it as an anomaly and made excuses for him. Within months her friends were no longer welcome and her confidence was quickly eroding.
They married and had a child. “Over time the violence broadened to mental and physical abuse, eventually more erosive and violent. I knew I had to leave. That meant leaving the family home and disconnecting from my step children and leaving my executive position.”
In seeking advice and support, she found that advice was at times conflicting. As such, it was a confusing time. Then she found the BDVS and that referral was a turning point in terms of safety for her child and in understanding the needs of her child. She noted that without the specific training any well intended person can do more harm than good. “This team understood what was needed. Domestic violence is such an insidious and complex beast.”
She notes when she looks back now, she was so naive about the legal process. Her son was part of the domestic violence order placed on her former partner. Yet the family law advice she received treated domestic violence as largely irrelevant. There was no cognisance of the issues she and her son faced. “The disconnect between family and DV courts needs to be bridged urgently. I and every woman I’ve met in the same situation had the experience that domestic violence and the legal system is phenomenally traumatic. I’d never experienced a court process before this.”
Jo highlighted that the safety of women and children needs to be paramount at all times. She said that it is a privilege to now work in an organisation that recognised the needs of women and children. In terms of the ALRC recommendations she noted that there are no lived experiences of women or children of domestic and family violence. “The legal system can be part of the safety of a child or place a child at risk. When I went through DV I felt like every aspect of my life was under threat and I’d implode.” She urged for additional training, empathy and insight across the sector. Jo now runs the Free from Domestic Violence program as an accredited coach. She has been an ambassador with the Resound Voices of Experience group with BDVS for over 2 years.
Panel Discussion
MC Belinda Cox introduced the panel conversation aimed to unpack some of the key elements of the recommendations from the ALRC Report. Associate Professor Molly Dragiewicz, School of Justice, Faculty of Law, Queensland University of Technology facilitated the discussion.
Panellists discussing the report:
Jo, Anti-domestic violence advocate and representative of Micah Projects’ BDVS Resound Voices of Experience group
Magistrate Linda Bradford-Morgan, Specialist Domestic Violence Court Magistrate
April O’Mara, Manager – Practice, Governance, and Research, Centacare Family & Relationship Services
Angela Lynch, CEO, Women’s Legal Service Queensland
Zoe Rathus, Senior Lecturer, Griffith University Law School
Family Law for the Future ALRC Summary Recommendations:
- Closing the jurisdictional gap – Stop children falling through the gaps between the federal family law courts, the state and territory child protection systems and the state and territory responses to family violence. Family law disputes returned to the states and territories and the federal family courts eventually abolished.
- Children’s orders – Simplify the factors to be considered when determining living arrangements that promote a child’s best interests. Remove mandatory consideration of particular living arrangements.
- Stricter case management – Clearer consequences for couples and their advisors if they don’t seek to resolve disputes as quickly, inexpensively, and efficiently as possible, and with the least acrimony.
- Compliance with children’s orders – Improve understanding of orders through greater engagement with family consultants and place limits on interim appeals.
- Simpler property division – Include a starting position that separated couples made equal contributions during the relationship.
- Encourage amicable dispute resolution – Increase the proportion of family law matters that are dealt with through alternatives such as FDR (Family Dispute Resolution) and LADR (Legally Assisted Dispute Resolution).
- Legislative simplification – Redraft the Family Law Act to make it easier to understand the law.
In opening statements with regard to the recommendations, one panellist noted that we can’t talk about family law reform without talking about domestic violence, yet the recommendations are largely silent on domestic violence. “At least 50% of matters before the family court deal with physical abuse and when looking at emotional abuse that includes 75% of cases. There are enormously high numbers of families presenting to the family court with domestic and family violence as an issue. Separation is the most dangerous time for women and children and that is when they are most at risk. They are relying on the courts to keep them safe. Perpetrators are highly litigious masters of image making and will use the system for their own end. When they have less control over the woman, they will pursue children. These are highly dangerous situations and there are incentives for perpetrators to pursue women through this legal process.”
“The work relies heavily on organisations. The system we have is failing women and children. The statistics of children under 5 years dying because of domestic and family violence are alarming. We need to work on ensuring that access to children occurs in a safe environment. We need an integrated model of court systems dealing with domestic violence and family law issues. The majority of domestic violence victims are tied to their abuser through children. As such, our systems need to be connected.”
Agreement between panellists that linkages between state and federal processes were essential seemed apparent. “We have to tighten the framework and manage safety. Parenting agreements so often thwart domestic violence orders.”
What is the biggest challenge for survivors of domestic violence in the family law context?
“One of the biggest challenges for women is being believed in the legal system. The woman’s story is often minimised and reconstructed into something not having relevance to the orders. The cases I work on as a researcher are the tip of the iceberg. The cases I have access to are the most serious of cases yet often the woman isn’t believed. Perpetrators are such good image makers of themselves. He looks organised, he says she is hysterical and making it all up for her own advantage. He is believed, partially because we don’t understand the impact of domestic violence on the victim and children and the woman may present as depressed and not a good witness because she’s worn down and has limited support and capacity to deal with what she and her children have been through.” This commenter noted that she started this work in law in the early 1980s. “We’ve been saying these things for a very long time and Judges and Lawyers have been told this for over 40 years. That’s the concern about training. What they miss are the subtleties in domestic violence cases.”
The bottom line for those involved in the discussion is that family law system still sees domestic violence cases as the exception when in fact they are the majority of cases before the family law court. The fact is that there are very few cases before the court that have no domestic and family violence. “We don’t seem to have got the point of understanding yet. Those involved continue to talk about high conflict relationships and mutualise abuse as though it is a relationship issue between two equal parties. Domestic violence is the abuse of power over another. It is not mutual but the family law court mutualises relationships as high conflict relationships instead of recognising an abuse of power that is inherent in any domestic violence process.”
Another panellist argued that the majority of people don’t understand behaviours that are abusive. Family dispute resolution is not appropriate for domestic violence yet so many are advised to partake in this process. This is part of the mutualising of domestic violence as though it is a high conflict situation between both parties. Often perpetrators of violence are focused on their rights and don’t see that their responsibility is to protect their children. Intervention processes aim to assist them in understanding that parenting is about responsibility and no responsible parent would allow their children to be at risk. “It is difficult in the current system to uphold these key requirements for parents who have perpetrated abuse. This is particularly so when their lawyers advise them based on their base line need to comply with court orders rather than assist them in doing what is needed for the wellbeing of their children and family. Any person perpetrating domestic violence is putting their children at risk. This is a conversation we need to have. The courts need to support that endeavour and the officers of the court need to be on board.”
Overall the panel agreed that the presumption of shared parental care and equal time was a major impediment to women and children who needed protection from domestic and family violence. Whilst this issue has been partially addressed in the recommendations, the wording suggested falls short of the mark in ensuring that children will be protected by this legislation.
Again, the conversation returned to the fact that until the family law court recognises that their core work is actually domestic and family violence, and any other cases are the minor work of the court, then no significant positive outcomes for women and children living with domestic violence can be garnished.
The panel was also adamant that children and young people are not being heard by the family law system and this needs to be addressed. Whilst noting the establishment of a panel of young people with a lived experience is a step in the right direction, so much more is needed to ensure that children and young people have a voice in the key legal processes that could be a major factor in ensuring their safety as opposed to inadvertently leaving them in harm’s way.
Any changes to the law need to be considered for the impact on victims of domestic violence and complexities inherent in each case. It also needs to be noted that very few women who need DV orders apply for them whish highlights the importance of legal education. In closing it was deemed disappointing that: “so many of the proposed changes are around economic efficiency, not justice, equity and safety.”