Safety first in family law is long overdue

Do you remember what you were doing when you heard the news that a man had thrown his four year old daughter , Darcey Freeman, off Westgate Bridge in Melbourne on January 30 2009? It was a shocking event which brought to a close a protracted custody dispute between the separated parents.

A week or two ago I attended a Family Relationships Services conference in Melbourne and had a chat with a Family Relationships Centre worker who commented that the death of Darcey Freeman in January 2009 had really shaken people up because "there was nothing to indicate it would happen".

I responded that the mother and her parents complained they had repeatedly raised concerns about violence before the killing but no-one in the system had taken notice.  The worker gently shook her head at me "Nearly all the mothers complain about violence and abuse and we normally discount them. This case was no different."

This brief conversation again highlighted the difficulties which face mothers and children leaving violent and abusive men.  Many are advised by state child protection workers that they will have their children taken into care if they stay living in a domestically violent relationship.  Once they leave, the current family law system normally ensures that the children will have time in the care of the violent or abusive parent.  The task of Family Relationship Centre workers and legal system professionals has been to get mothers to co-operate in handing their children into the care of abusive parents. 

In our research into family violence and family law (Bagshaw, Brown, Wendt, Campbell, McInnes, Tinning, Batagol, Tyson, Baker and Fernandez-Arias 2010)   many mothers  reported they were advised not to raise allegations of violence in case they are seen as an "unfriendly" parent who would not foster a relationship between the child and the other parent.  Mothers also reported being required to mediate with the other parent despite disclosing violence. 

Mothers who refuse to comply with court orders  are required to attend education programmes to make them comply, or face imprisonment and loss of care of the children.  A small number of mothers with abusive ex-partners are imprisoned, some flee the country with their children and go into hiding, but most witness their children's injuries, hear their children's disclosures of abuse and hand their children over for more abuse by order of the court.

The Federal Attorney General, Robert McClelland has announced planned changes to Australia's Family Law Act to better support children's safety in family law.  The key proposed changes include

• prioritising the safety of children ahead of a relationship with both parents;
• widening the definition of "family violence" and "abuse" to include a wider range of harmful conduct
• increasing the obligations of lawyers, family dispute resolution practitioners, family consultants and family counsellors to support children's safety in making parenting arrangements;
• improving courts' access to evidence of family violence and abuse; and
• making it easier for state and territory child protection authorities to participate in family law proceedings where appropriate.

These changes are significant improvements, but there is still more to be done.  The current laws provide that children be protected from exposure to violence and abuse but research reveals that these measures are not effective because of the way the law is being implemented in Family Relationship Centres, in the Federal Magistrates Court and in the Family Court. 

The presumption of equal shared parental responsibility remains in the Act and presents its own hurdle in determining risks to children's safety arising from violence and abuse.  A safer option for children would be to adopt the New Zealand model of a rebuttable presumption of no contact where allegations of violence and abuse have been raised and substantiated on the balance of probabilities. Persons found to have used violence would have to show they were considered safe before contact was allowed.

Another problem is that whilst family law system professionals routinely discount disclosures of violence and abuse and construct children's best interests as a relationship with both parents, there will be continued judicial and practitioner resistance to prioritising safety from violence and abuse.

There needs to be compulsory training in family violence and child development for all family law system professionals making decisions or agreements involving children.  There needs to be accountability for decisions which put parents and children in harm's way and statutory compensation available to those who are killed or injured as a result of family law rulings.  There is an urgent need to prevent lawyers being able to select specific providers of family reports to support an outcome for their client. 

There is now ample research to show that many Australian children have been seriously harmed and, in some cases killed, by a family law system that has prioritised children's relationship with dangerous parents ahead of their safety.  Damage to infants' development and well-being has been established in research as a consequence of exposure to family violence and abuse, yet there remains an apparently enormous gap between court judgements and scientific knowledge that has somehow to be closed.

In a recent case a Family Court in Tasmania ruled that two primary school age children be in the unsupervised care of a domestically violent convicted child sex offender every second weekend and half the school holidays (Robins & Ruddock [2010] FamCA 35 (22 January 2010) .The court said the father had to have someone else stay over at night and put a lock on the children's bedroom door to keep them safe from the threat of his sexual activity. 

Whilst Australian family law is capable of producing judgements where primary school age children are made to continually manage the threat of incestuous sexual abuse, a problem remains. The test of the changes to the law will be whether more children can grow up in safety from abusive parents.