26

JUDGEMENTS

One reason for the establishment of the Federal Magistrates Court was that it could hear less complex matters than the Family Court, but in my experience all family law hearings are complex. There is rarely a simple application that comes to court. The difference between ‘simpler’ and ‘more complex’ cases becomes a matter of the length of time allocated for a hearing. The assumption is that if there are more parties or more issues, the trial will take longer. For many years, any trial longer than two days was allocated to the Family Court. This limit was recently extended to more than three days.

This didn’t mean a case in the Federal Magistrates Court was less complex, just shorter in duration. Both courts’ core work involves violence and child abuse, which in the end can’t be dealt with effectively by either court because they don’t have the time to investigate a crime properly. Both are civil courts with limited resources to determine the truth about violence and abuse. State government departments assume the family law system will protect children, while the courts assume the states have child protection under control. Because of the confusion of roles, neither ends up addressing child protection or violence adequately.

I’ve tracked judgments involving violence and child abuse closely over the years. The judgments I’ve looked at are from all over Australia. It was important to me to do this, because it helped me keep a perspective on my own history with domestic violence and my struggle to protect Sarah and Brendan. At the same time, I knew it would be easy for people to accuse me of projecting, so I had to be as objective as possible. Very few people in the court knew about my past. I had the unfortunate advantage of having personally experienced a situation where every aspect of my life was controlled by a powerful, articulate and intelligent husband. I’d seen the looks on my children’s faces when they were afraid. I knew how important it was for me to protect them, and I understood their need for stability, trust and love. Unless you’ve lived this, it’s extremely hard to stand in the shoes of a mother who has been systematically abused. Many who sit in judgment have little com-prehension of how it feels to have a small, frightened child looking up at you, trusting you to make everything better.

I found many of the courts’ earlier judgments were fair, balanced and impartial, based on case law and good empirical research, but towards the end of my time in the court, there were many decisions I found disturbing. Some seemed to be influenced by value judgments and overstated criticisms, mostly of mothers. Others downplayed the harm associated with violence. Many seemed to be based on opinion pieces that suited the prevailing view.

In court, mothers were challenged in a way that fathers never were. The vitriol heaped upon some women was breathtaking. They were especially placed at a disadvantage if they fought back. Apparently it was not viewed as good parenting to defend yourself or your children. To quote a judgment handed down in 2007, the mother was ‘verbally aggressive’ and the father ‘physically aggressive’. When the father became physically violent, the court judged that ‘the mother’s actions probably precipitated this escalation’. The implication was that the mother was to blame for the father’s violence.

Mothers, it seems, are supposed to be angels of forgiveness and mercy, though fathers aren’t held to the same standard. In 2008 a mother with diagnosed post-traumatic stress disorder admitted having seen a look of fear on her son’s face after she shouted at him. At the time, she was running late for a set of appointments involving her three children.

The federal magistrate found that this occasion fell within the definition of family violence. He said that in his view the incident volunteered by the mother gave him reasonable grounds to believe that she had perpetrated family violence.

A mother simply raises her voice to her child and a judicial officer makes a finding of family violence.

There was no finding of family violence against the father, who had repeatedly harassed the mother, disagreed with all her decisions, denigrated her parenting and questioned doctors’ opinions.

The Federal Magistrates Court was established to overcome the perceived culture of ‘bias’ entrenched in the Family Court. If I had one wish, it would be to have printed at the beginning of every judgment template: ‘Reverse the gender before handing down.’ This would provide an elementary check for bias, because bias is what is happening now.

Would findings and conclusions be the same with this reversal of gender? In many cases the answer would be yes, but for others the answer would be a clear ‘no’.

In many judgments, relationships between violent fathers and their children are described as ‘strained’. Counselling is recommended to mothers who live in fear to assist them to ‘strengthen emotionally’ and ‘better protect their children from their own distress’. The emphasis isn’t on the cause of the mothers’ fear, but on ‘allowing the children to leave and see their father without too much anxiety’.

Another judgment states: ‘I am satisfied that she has survived years of family violence. The husband is correct, however, in submitting that the mother could, and should, try harder to facilitate this ongoing relationship, at least for the sake of the children.’ Isn’t it a father’s responsibility to foster a loving relationship with his children by not creating fear?

During my own divorce hearing back in 1978, I undertook to encourage the children to see their father. He was going to be their dad forever, after all. I acknowledged that Sarah and Brendan needed to love and be loved by him, and did my best. At the same time, my main concern was their safety. It was hard to be positive about a father who terrorised us.

There’s a similar lack of understanding about the complexities of raising children. The courts ignore children’s need for stability when they make orders requiring small children to live in two separate homes with different rules, resources and lifestyles. In some cases, the courts have persisted with shared-time arrangements when the parents can’t even agree on the choice of childcare centre, so that the children are shuttled from one place to the other and never make close friends. Rulings such as these show an appalling lack of understanding of what young, vulnerable children need. On the other hand, many separated couples come to excellent living arrangements regarding their children without recourse to the court system.

When courts make orders returning children to violent fathers, judges and federal magistrates seem to forget that they live and work inside a cocoon of protection from these same violent men. In their daily lives, they are guarded by the most sophisticated security systems available. I fail to comprehend how they can understand the complexity of children’s safety needs at all.

Fathers who’ve been found to engage in inappropriate behaviour are ordered to wear underpants while bathing with their children, or to refrain from changing their nappies. Commonly, paternal grandmothers are ordered to supervise their sons when their grandchildren come to visit. In a 2010 judgment, it was found that two girls aged five and seven couldn’t be left alone with their father because the risk of sexual abuse was too high. Though a psychologist described the man as a paedophile, he was given regular access to his daughters, provided that his mother didn’t leave the children alone with him at any time. When did policing become part of a grandmother’s role?

We’re constantly told that the shared parenting law seeks to ensure that children have the benefit of both their parents in their lives and enjoy ‘the right to know and be cared for by both parents’. Yes, I want to plead – in a normal, loving, functional family, parents should do all sorts of good things, but in a fractured family where there’s a history of abuse, this isn’t real. What the authorities would like to say is that people should just stay together and be happy, with Dad in charge. The bias comes through loud and clear.

Today, I’d be expected to extend understanding to Stuart for his loss of time with Sarah and Brendan, regardless of the violence. I’d also score a black mark for unilaterally leaving the relationship, and it would be entirely up to me to explain why. If I couldn’t bring myself to explain, I’d be judged harshly. I’d be the unfriendly parent if I voiced fears for my children or myself, but the odds are that Stuart wouldn’t even be asked whether he had insight into why I’d left.

There are many examples of the hostility mothers encounter in court, where a contravention application can be much like a criminal trial. One such hearing began when the father of a two-year-old boy made a contravention application against the child’s mother. The child lived with his mother but saw his father regularly under a consent order that ran to almost 1500 words and included a requirement that the father undertake an anger management course. On two separate occasions, the boy returned from visiting his father with injuries and said his father had hit him. The second time, the bruising was such that the mother took her son to a doctor, then to the police, who recommended that she contact the Family Court. Three days later, fearing for her child’s safety if he stayed overnight with his father, she picked the boy up from childcare before her ex-husband had arrived. This was the action for which he lodged the contravention application.

When she came before the court and her lawyer raised her fears about the child’s safety, the federal magistrate said her concerns were ‘totally unreasonable’ and questioned the seriousness of the child’s injuries before hearing any evidence about them. The mother was placed on a bond, and the federal magistrate informed her that she was in danger of being imprisoned or losing custody of her child. He told her that his court often sentenced custodial parents to prison. The breach was serious, he said, and her arguments had the hallmarks of a ‘no access mum’.

The mother appealed the judgment to the Family Court, which allowed her appeal. The judge said it was inappropriate for the federal magistrate to describe her in this way. He also expressed the opinion that even before the father began his case, ‘the Federal Magistrate had formed a view about whether or not the mother would be able to establish a reasonable excuse’.

In this case, the mother refused to accept a judgment in which she was convinced justice had been denied, and the appeal judge eventually agreed. Too often, though, mothers are criticised when they speak up for themselves and their children.

A case in point in the Federal Magistrates Court involved a mother who requested sole parental responsibility for her two daughters. The court heard that the father had periodically spent weeks without contacting his children, one of whom had cerebral palsy. He was ‘inflexible’ in his view that he had a right to spend time with the children, but when parenting conflicted with his work commitments, he’d repeatedly put his work first and failed to turn up at the scheduled times. There was much hostility between the parents, with verbal arguments and text-messaging wars, and the mother wished to relocate to a different town where the father would only visit the children during holidays.

In the judgment, which ran to more than 27,000 words, the federal magistrate eventually granted the mother sole responsibility for the children, allowing her to relocate. At the same time, he described her unfavourably no less than six times, using the same description on each occasion. He said she ‘was an active contributor to, as well as a participant in, the conflict’ with her former husband. It seems her main sin was to argue back.

Courts have special difficulties accepting that older children might resist contact with violent parents. This was obvious in a case that came before the Federal Magistrate’s Court. An eleven-year-old girl refused to have anything to do with her father, who hadn’t seen her at all for several years. The father was accused of violence against his former wife and her older daughter. He’d been convicted of assault and had stabbed the mother’s current husband. Still, the federal magistrate put the view that it wasn’t ‘necessary or indeed appropriate’ for him to make findings about these violent acts.

For his part, the father claimed that his daughter had been ‘brainwashed’ into refusing to see him. He didn’t seem to accept that her reluctance might have to do with the fact that she’d seen him throw a brick through the window of her mother’s car.

In spite of all the evidence that the father was violent, the federal magistrate reserved some of his harshest words for the mother. He described her as going to ‘almost any lengths to calumny’ the father and said she was being ‘spiteful and vindictive’ in trying to change the daughter’s family name to that of her current husband. He discounted the mother’s and elder daughter’s evidence as being prone to ‘hyperbole’ and ‘heavily influenced by their hatred of the father’.

In the end, though, the federal magistrate accepted that it was ‘clear beyond any possible doubt’ that the father had engaged in violence, and that being forced to see him would cause the daughter severe distress. Contact would have to be ‘sundered’ – as if it existed in the first place. As for the father, whose actions had left him estranged from all four of his children, the federal magistrate said, ‘It is not possible not to feel sympathy for him.’

Why not? Is it so hard to see why they’re estranged? Perhaps you have to feel the fear to understand.

‘Family violence’ is a term I refuse to use. For me, ‘family’ means togetherness and acceptance – family gatherings, family reunions, and family photos. It doesn’t mean Mum and Dad and the kids having a jolly good time bashing each other up.

The same goes for the term ‘conflict’, which has become misleading through overuse. How can one word describe anything from a minor disagreement to a serious assault? When the courts use such terms, everyone is implicated and the party who stands up against abuse is penalised.

The courts today would probably describe my marriage to Stuart as being marked by intractable conflict, but the problem was violence, not conflict. I went to great lengths to remove any possible cause for his anger. I did everything quietly and was careful to avoid whatever it was that had produced his previous outbursts, but it made no difference. The goalposts were constantly shifted out of my reach. There were rules, his rules, and I had to obey them even when I had no idea what they were. That isn’t conflict.

Violence too often remains unspoken and unrecognised. I’ve read many judgments where the court didn’t find violence in spite of subpoenaed evidence. If a mother removed her children from the area where the father lived, the court would often discount evidence of violence and return them. If a father removed his children, he’d often get to keep them for the sake of their ‘stability’.

Mothers can justifiably be afraid – very afraid.

It’s often said that law has little to do with justice. Law is about evidence and justice is justice. There’s really no connection. Judicial officers can come to different conclusions about the same cases, depending on the weight they give the evidence or the party’s word they prefer to trust. Here, I believe, mothers are being placed under especially heavy scrutiny, in a way that fathers aren’t. For example, the present legislation is designed to punish people who make false allegations by awarding costs against them. Such a provision would probably have deterred me from mentioning the violence at all. If Stuart had simply denied it, I’d have had little chance of convincing the court.

You can see the inequalities at work in the courts themselves. In Sydney, fathers’ groups sit in court day after day, monitoring orders that go against their philosophy, and then using internet forums to criticise judgments they disagree with. The fathers’ rights organisations also have support networks in place to coach fathers in what to tell the court.

The publication of court proceedings is restricted, making it virtually impossible for injured parties to expose unfairness. Court report writers and ‘expert’ witnesses can destroy a mother’s character, but these documents are hidden from public scrutiny. Parents can’t even rebut unjustified criticism by expert witnesses in their own family reports. In Newcastle, Robyn Cotterell-Jones, an advocate for victims of crime, has been discouraged from helping people going through the court. Many of her clients are so fearful that they call her from public phones.

Most parents go to great lengths to continue to share the joys and burdens of raising children with their spouses before and after a breakdown. The trust and love built up between children and parents while the family is intact continues after separation. The court system, however, gives the vocal minority a chance to reassert control, simply because they have the law on their side.

One big question remains unanswered – why is it that a court must consider granting substantial and significant time with child-ren when violence has been found? This was never previously the case, and it doesn’t make sense. The word ‘must’ gives the judicial officer no discretion. Again, why? Is the law trying to give bad parents the chance to rectify their past misbehaviour? What happens if they don’t? There’s a huge risk being taken, and it isn’t our judges or federal magistrates who are in danger but our nation’s vulnerable children.