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SOLUTIONS

Can anything be done to mend the system? A lot of people have started asking this question as the effects of the 2006 ‘reforms’ become more obvious. There’s been a flurry of inquiries into issues relating to the legal treatment of domestic violence, but the strongest impression you’re left with from the inquiries so far is that the problems are spread right through the system and we’re still a long way from a general agreement on solutions. It’s also clear that the militant fathers’ rights groups will fight hard against any reforms that challenge the dogma of shared responsibility now entrenched in the law.

In May 2008, the federal government established a National Council to Reduce Violence Against Women and their Children, which identified six key areas for action. Alongside measures to promote the education of young people, especially boys, about the impact of domestic violence and sexual assault, the council called for state and territory laws to be toughened and harmonised.

As a result of the council’s review, the Australian Law Reform Commission and its counterpart in New South Wales inquired into how the Family Law Act interacted with state child protection and domestic violence laws, and reviewed the effects of inconsistencies in the interpretation and application of the laws of sexual assault. The resulting report, which was published in November 2010, called for the establishment of special Family Violence Courts, the introduction of consistent child protection laws across the nation, the boosting of Children’s Court powers and improvements to the rules of evidence to make it easier for victims’ voices to be heard.

There’s been a gathering public outcry about the law and its administration after a series of incidents in which violent parents have harmed or even killed their children. It’s clear that the present system of family law is often failing to deal with the minority of parents who are capable of such atrocities.

There was especially loud criticism after the death of Darcey Freeman, a little girl whose father allegedly threw her to her death from Melbourne’s West Gate Bridge on the day she was due to start school in January 2009. Darcey’s family released a statement claiming that for two years since her parents’ separation they’d been telling the authorities they were worried about the children’s safety, but no-one would listen to them.

The men’s rights groups have tried to turn Darcey Freeman’s death to their own ends. The website of Fathers4Justice, an organisation whose pamphlets are freely available in our courts, describes the ‘Family Court goons’ as being ‘complicit’ in the child’s death, along with ‘all those unscrupulous lawyers and psychologists who work in the courts and … profit from the breakdown of family’. As for the child’s ‘poor father’, he was in the ‘wrong place at the wrong time’ and must have been suffering from ‘horrendous’ stress to have performed such a ‘thoughtless’ act.

This time, however, the fathers’ rights groups didn’t get it all their own way. Partly in response to the Freeman controversy, in May 2009 the Attorney-General asked Professor Richard Chisholm to inquire into whether existing legal and administrative arrangements sufficiently encouraged victims of domestic violence to disclose their concerns to the courts.

Professor Chisholm’s report was released four months later. Though he didn’t comment on the Freeman case, which was now sub judice, he argued that it was vital for violence to be ‘disclosed, understood and acted upon’, and pointed to fundamental anomalies that were preventing this from happening. The fundamental problem he drew attention to was that the 2006 amendments treated situations involving violence as exceptional, although most of the cases that came before the family courts involved claims of some kind of violence.

The report was especially critical of the system of requiring parties affected by violence or abuse to raise the issue themselves by filing a ‘Notice of Abuse or Family Violence’ with the court. Professor Chisholm said this provision simply hadn’t worked. Victims rarely filed these notices, probably out of fear of retribution, and as a result the courts were making orders in ignorance of the families’ circum-stances. In any case, it shouldn’t be up to the victims to raise the issue; the court itself should conduct a risk identification and assessment.

The report described the 2006 amendments as having created a ‘tangle of legal technicality’ that led parents to confuse the issue of responsibility with that of parenting, with the result that they shifted their focus from the primary question of the child’s well-being to the matter of their own rights and entitlements.

Professor Chisholm’s report, along with the other reviews of the 2006 amendments, produced signs of official action in November 2010, when the Attorney General announced a number of proposals to remove – or at least reduce – the disincentives that have prevented issues of violence from being raised in family law proceedings.

The proposals would expand the definition of family violence to include psychological abuse such as intimidation. The definition of child abuse would also be extended to include cases where children are forced to witness violence, whether it’s physical or psychological abuse of family members or mindless damage to property.

The government has also said it will look at changing the ‘cooperative parent’ provision, which has emerged as a significant disincentive to reporting violence, and will amend the section of the Act that requires the court to award costs against parties who make unsuccessful claims of violence or abuse. The court would still have the discretion to award costs, but it wouldn’t be required to do so, as it is under the 2006 amendments.

Overall, the direction of the government’s proposals is to give greater weight to the protection of children by ensuring the court has regard for their best interest and welfare first and foremost, ahead of issues about whether parenting should be shared. It’s a step in the right direction – though it may be years before any of this passes into law. The family law system mustn’t be allowed to remain a barrier to family safety or a gateway for the most violent parents. We can only hope and pray.

As well as changing the law, there’s a lot that needs to be done to change public and professional attitudes. As Professor Chisholm argued in his report, it’s essential that family law is administered by judicial officers who are committed, skilled and trained to deal with the particular demands of the field.

We also need fairness and impartiality among the people appoin-ted to sit in judgment. This has sometimes been lacking under the present law. Too often, for example, the courts have given credence to anecdotal material and bogus claims, especially those advanced by the fathers’ rights movement, at the expense of properly researched findings. Sometimes this has led the courts to portray victims of abuse as the cause rather than the bearers of pain.

Society must respond effectively to victims and work to change the social conditions that lead to family violence in the first place. A first step in this direction is to challenge the notion that domestic violence is acceptable. Perpetrators should be held responsible for their abusive behaviour. When we excuse violence by blaming it on substance abuse, stress, pressure, unemployment or anything else, we let the perpetrator off the hook. The same thing happens when we describe a perpetrator as being ‘in the wrong place at the wrong time’.

The language we use to describe domestic violence is important too. When a young mother was murdered by her partner outside the Family Court at Parramatta, for example, there were those who said she shouldn’t have been there. She too was in the wrong place at the wrong time. This is an absurd example of blame-shifting. That young woman had every right to be where she was; it was her partner who shouldn’t have killed her.

Domestic violence is something you can’t prepare or brace yourself for. It was a long and difficult road for me to finally acknowledge that the person I fell in love with, the person I trusted to have children and share my life with, was the same person who hurt me physically, emotionally and psychologically. The moment I retreated into shock and learned to obey was the moment he had all the power over me. He took from me the freedom to cherish who I was. I couldn’t describe or explain it to anyone when I was caught in the cycle. I was physically and emotionally trapped in a nightmare.

Child sexual abuse and domestic violence are the most hideous of abuses. In my case, the domestic violence occupied my mind every second of every day. The menace of it overwhelmed me, and I had to think endlessly of how to avoid it. Living in fear robbed me of my freedom, my personality, my dignity and my sense of humour. Every aspect of my life was consumed by the threat of harm.

Many in the legal system and the general public assume you are somehow implicated in the violence. You must have provoked it, deserved it or caused it. It’s irrelevant that you suffered the indignity of the violence, the loss of the relationship and all your hopes for its future. I experienced prolonged domestic violence at close hand and lived in fear on a daily basis. I have an understanding of the grotesque nature of it. The trauma lasts years and is carried through the lives of my children. Even the gesture of forgiveness can never erase the legacy.