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EVERY PICTURE HIDES A STORY

I worked in the family law system for more than two decades. During my time at the courts, I gained many insights into the day-to-day workings of the law governing relationship break-down, and into the tensions and conflicts that surround it.

The Family Court at the time was still reeling from the shooting of Judge David Opas, who was murdered in 1980 by an unknown assailant. In 1984, Pearl Watson, the wife of another Family Court judge in NSW, died after she opened her front door and triggered an explosive device. Her husband was injured but survived. No charges have been laid in either case. The court was put on notice – not everyone was going to abide by the law.

For twelve years I worked directly with the public on the counter in the busy Family Court registry, and it was a privilege to serve those going through our legal system. I discovered that public service was an honourable profession, even a noble one. Dealing with the public on a daily basis certainly gave me an insight into human relations. Out of necessity, people often shared with me intimate details of their private relationships and told me about their marriages’ ultimate breakdown. Having been through a divorce myself, I understood the pain etched into the brows of ordinary mothers and fathers whose dreams had come asunder.

The Newcastle registry was small, with a single judge, David Tonge. The staff and judiciary showed respect to all parties before the court. Fairness and impartiality were the goals we strived for.

In practice, more often than not it was the mother who applied for custody of the children, but it was by no means unknown for fathers to apply successfully. Mothers and fathers also shared parenting responsibility after separation. As the Act described it, both parents had responsibility for the long-term care, welfare and development of their children, regardless of who the children lived with. The paramount consideration was the children’s welfare and safety.

On divorce hearing days, the court offered counselling services to help couples find amicable arrangements for their children and settle their disputes. This kind of assistance is sadly absent from the Family Law Court today. The court’s role wasn’t to repair relationships. By the time parties reached the court, their relationships had well and truly broken down or were in need of urgent orders.

Every case before the court was unique and complex, and each was judged on its merits, not on some ideological or political view of the time. In the majority of cases, both parties accepted the need for children to enjoy the stability of living mostly with one parent and seeing the other each weekend and during school holidays. They accepted the end of the marriage and the importance of maintaining a relationship with their children without hostility toward the court or the other parent. They also recognised that mothers were entitled to spend some time with their children at weekends, not just during the school week.

There was, however, a small but vocal minority that did not accept anything, including the breakdown of their relationships and the interference of the Family Court. Most of those who held these attitudes were men. They tended to view their wives and children as property and wanted to keep them that way. As a consequence, in their eyes the court became public enemy number one.

This minority didn’t respond to the help the court provided. For example, it was the court’s policy to offer all possible assistance to clients who didn’t have legal representation. We were trained and very clear about the difference between legal advice and procedural advice. But those who objected to the court often wouldn’t file documents, even though we provided facilities to help them prepare their material for submission.

If parties to the hearings complained that their access to children was being denied or obstructed, we facilitated the lodgement of contravention applications, which didn’t attract filing fees. More often than not, the complainants didn’t follow these through. It puzzled me that so many did not take advantage of this recourse to achieve justice.

In many cases, it was difficult to get clients to attend the court for hearings. They’d offer various excuses, and often their matters would be adjourned to give them more time to appear, but they still wouldn’t turn up. Staff would call them on the phone and give them the benefit of the doubt, or write to them with clear instructions about what they needed to do next. In spite of their tardiness, still they complained when a court finally had to make an order in their absence.

For the opponents of family law, counsellors became a target. The critics said too many counsellors were women and accused them of siding with Mum over Dad. Legal practitioners were also criticised for deliberately prolonging matters to make money out of the ‘divorce industry’. But everyone involved with the courts knows that it takes a very committed lawyer to practise family law. It’s a frustrating and sometimes dangerous field to practise in, not something people do simply for the money.

Sometimes parents would apply for custody of children as a way of getting back at their partners, without considering whether the arrangements were workable. A case in point was that of a father who staged a one-man vigil outside the court building in the lead-up to his case, wearing a sandwich board with messages attacking bias in the court. When his case was heard, the judgment was handed down in his favour. He immediately expressed concern about whether the arrangement would be practicable given his work commitments. As the judge commented at the time, the complaint was inappropriate – the court had found in his favour.

Eventually, I came to believe there was another agenda. There was an element among the court’s clients that didn’t want justice – they wanted a return of the status quo. They wanted the court to put things back as they were when they controlled their families’ lives, and when conflicts in their marriages took place behind closed doors.

The one constant in the Family Court was change. I think it was partly why I stayed so long. The legislative change from the term ‘custody’ to ‘residence’ seemed sensible when it was introduced in 1996. Children weren’t prizes to be won in court battles. Usually, they resided with both parents, regardless of which parent had the most time, and non-resident parents were still involved in making important decisions about their children’s lives. As part of the same round of changes, the word ‘access’ was replaced by ‘contact’, which had fewer connotations of requiring permission to see your children. Parental ‘responsibility’ also replaced parental ‘rights’.

It’s proved difficult to educate the community about these changes. It isn’t the role of a court to educate the public, but better public relations would have helped. Even today, parents hang on to the old terms ‘custody’ and ‘access’ and refer to their ‘rights’ or, worse still, ‘visitation rights’. In 2006, the federal government again changed the terminology used in the legislation: children today ‘live’ with a parent and ‘spend time with’ or ‘communicate with’ the other. There’s a move away from either parent having a ‘primary’ role.

The 2006 legislation represented the most radical change of emphasis in family law since the original Act was passed in 1975. It was strongly influenced by the results of an extended House of Representatives committee inquiry, published in 2003 under the title Every Picture Tells a Story. The new Act introduced a presump-tion of shared parental responsibility for children of separated parents, which has widely been interpreted as meaning that each parent has equal time with the child. Even if there wasn’t an order for shared parenting responsibility, the judicial officer had to consider giving the non-resident parent substantial and significant time with the child.

I never understood the logic behind this. It gave the worst parents rights to maximum contact, which is seldom in a child’s best interests and worse still for a very young infant. The presumption of shared responsibility also made it practically impossible for a mother to relocate away from conflict. I realised in the early days of this new legislation that under its provisions, Sarah, Brendan and I would have been compelled to stay in Gloucester, in which case we probably would not have survived.

The 2006 legislation placed great emphasis on encouraging parents to resolve their differences by negotiation rather than taking disputes to court. The government created new Family Relationship Centres as well as putting money into the existing network of ‘relationship services’. This outsourcing puzzled me, because the court already had the most qualified of counselling services within its system and didn’t impose financial hardship on parties needing assistance.

In theory, the requirement for partners to negotiate with each other didn’t apply in cases where there was a history of violence, but in practice many parents were reluctant even to raise the spectre of violence in a relationship for fear of being branded ‘unfriendly’ or ‘uncooperative’. An uncooperative parent was one who, often with good reason, resisted the shared parenting regime. This attitude ran counter to the prevailing mantra, which gave contact precedence over safety. Mothers needing to protect children from violent and abusive environments suffered most in this tangle.

Today, many parties are ordered back to mediation for a second time after negotiation has failed and when a judicial decision is urgently required. Legal Aid solicitors often find themselves out of pocket when the court insists the parties go through the whole fruitless process for a second time.

When the new Act was introduced, those of us working in family law understood that governments were attempting valiantly to make bad parents good. They never succeeded. Changing legislation doesn’t change people. As the former Family Court judge Tim Carmody said, ‘You cannot legislate for goodwill.’

Tim Carmody announced his resignation as a judge in 2008, saying that the presumption of shared responsibility and equal parenting time had created a crisis for him. ‘Stop signs don’t actually stop cars – people do,’ he said. ‘Likewise, family laws with good sentiments don’t make people do the right thing.’ He pointed out that only 5 per cent of separating parents landed up in the Family Court, and these were invariably the most conflict-ridden family break-ups in which shared parenting was least likely to succeed. Yet the legislation required the court to presume that even then shared responsibility was in the best interests of the child. He believed the legislation was a failure.

The law says that children should have a meaningful relationship with both parents after separation, but I’m not convinced that this is always a good thing. Sure, intact families have loving and meaningful relationships, but no-one has yet put forward a definition of what constitutes a meaningful relationship in a separated family. The courts place great emphasis on how much time each parent spends with the children, but I believe it is the quality of the time, not the amount, that is vital to children’s wellbeing.

Tim Carmody has described Australian family law as ‘unasham-edly pro-contact’, and has said the Family Court will ‘bend over backwards to establish or preserve a worthwhile relationship with the poorest of parents’, based on the assumption that ‘a father is much more than the worst thing he has ever done’. This culture of contact at any cost is fraught with danger, and I believe it shows a lack of understanding about the dynamics of domestic violence. That ‘worst thing’ often involves violence. In Stuart’s case, he had plenty left inside him after our break-up. His worst was yet to come.

Under the law now in force, Stuart’s violence would have been excused because he loved his children. His behaviour would have been justified, even rewarded with shared care or equal time with Sarah and Brendan. He wouldn’t be shamed because of his violence. Society and our courts do violent parents no favours in letting them off the hook, because it means they will never take responsibility for their violence and will continue to blame something or someone else.

All violence is unacceptable, but what concerns me most of all is violence that is frequent and prolonged to maintain power and control, as was the case in my family. The violence we experienced continued to intimidate and frighten us long after separation. The harm my children and I endured will last a lifetime. We were traumatised, but at least we managed to leave the relationship and find safety. A shared parenting arrangement would not have helped Sarah and Brendan, but today it would be expected, and could be imposed by the court if there was no agreement by consent. Like many mothers, I can well imagine opting to stay in the relationship with Stuart so that I would at least be around to protect our two children on a daily basis rather than risk leaving them unsupervised with him.

Not every family in this situation is going to end up murdered, but I am afraid many do and many more will.

There is also a dangerous trend for the courts to accept violence against mothers as a normal aspect of marital relations. It isn’t, and it should never be treated as anything other than an abominable crime. I was fortunate to have the safety of a family to return to – a family that was prepared to trust my account of events and take me in. Many people don’t; domestic violence is a major cause of homelessness in Australia.

In spite of all the additional resources poured into the system, there are often long delays, especially when the parties can’t reach agreement. It takes a year to get to a final hearing, and lawyers complain that an urgent interim application can take up to two months to be heard.

Court orders themselves are longer because the legislation is complex, and many more contraventions are filed. The courts seem to believe that long, complicated orders will ensure children’s safety. The worst litigants can use pages and pages of court orders and file countless contraventions to wear the other party down. Their former partners cave in because of the mounting cost of represent-ation in these quasi-criminal proceedings. It is often one parent’s word against the other’s. Contrary to the noise that comes from the fathers’ lobby suggesting that contravention orders are ineffective, mothers have fared worse under this system. I’ve seen a mother put on a bond for being late to deliver a child for contact because her train was delayed. I’ve also witnessed a young couple appear before the court on a minor contravention matter only to be ordered to apply for a fresh set of court orders, though both parties had been quite happy with the original ones. Ordering people to litigate seemed crazy.

There’s also a trap in the assumption that each parent has a responsibility to facilitate the children’s relationship with the other. If Sarah and Brendan had pleaded with me not to see their father, I might well be blamed. But what would have happened to their trust in me if I’d forced them to have contact against their wishes? Fortunately, in our case Stuart’s mother was sufficiently aware of the problem to make sure she was always with her grandchildren during visits to their father.

For those like me who have suffered domestic violence in silence, the situation today is intolerable. I’d be wedged in an impossible set of contradictions. On the one hand, if I took out an Apprehended Violence Order against Stuart, I could be accused of trying to gain a tactical advantage in the court (though in my experience AVOs count for little and give no tactical advantage at all). On the other hand, if I failed to take out an AVO, my credibility would be called into question: the violence would be difficult to prove, and even if the court took me at my word, I could be accused of failing to protect Sarah and Brendan. I couldn’t win.

In 1995, Hillary Clinton said ‘It is a violation of human rights when a leading cause of death worldwide among women ages 14 to 40 is the violence they are subjected to in their own homes.’ This recognition isn’t reflected in the law of Australia today.