There is a certain irony in the advent of recent changes to the Family Law Act 1975 (Cth) incorporating provisions on cruelty to animals as an element in child residence and visitation determinations. This somewhat late, though welcome, statutory acknowledgement is the reverse of the original situation vis-à-vis violence against children and violence against animals.
Cruelty to animals predates cruelty to children as a phenomenon perceived to require action. The evidence so often cited is the founding of organisations such as the National Society for the Prevention of Cruelty to Animals (NSPCA) before ‘child protection’ associations came into being. Particularly, the United States case of Mary Ellen Wilson documents the failure of the law and the authorities to take child abuse seriously – or to denounce it at all – until activists from the New York Society for the Prevention of Cruelty to Animals) and the PCA (Prevention of Cruelty to Animals (SPCC) took up the case.
In April 1974 Mary Ellen Wilson was 10 years old. A former neighbour, concerned about her welfare, told New York authorities of the violence to which she believed the child was subjected. One neighbour heard thumps and screams through common walls and on one occasion observed the girl’s physical appearance and demeanour, by gaining access to the next-door apartment where the child lived. Eventually Etta Wheeler went to the founder of the American Society for the Prevention of Cruelty to Animals (ASPCA), Henry Bergh, who took up the matter.
Bergh acted in his own capacity – as a ‘concerned citizen’ – not as president of the NYSPCA. Effectively, habeas corpus was used to bring the child to court so that the judge hearing the case could observe her condition for himself. Bergh’s involvement was crucial: it is said that once he pursued the case, Mary Ellen’s rescue was effected in forty-eight hours.
In the trial, Mary Ellen gave evidence, including the observation that she could not recall ever having been allowed out onto the street, leading to a conclusion that she had been held captive: a precursor to more recent cases in Belgium and Austria (amongst others) which have stirred present-day media attention. On 21 April 1874 Mrs Connolly, the ‘carer’ prosecuted for the abuse, was found guilty of felonious assault. She was sentenced to hard labour for one year.
For the first time in Australia, animal cruelty was raised as a factor in criminal assault at home and other forms of domestic violence in the appeal in Osland v. The Queen. Crucially, as with violence against children, violence against animals is important in and for itself and action to end it must be taken. Yet as studies show, frequently cruelty to animals predates or is associated with cruelty to children and adult family members. This was the point made in Osland.
The ASPCA lists a number of studies linking animal cruelty and criminal assault at home and other forms of domestic violence. Crucially, twelve independent studies ‘reported that between eighteen and forty-eight percent of battered women and their children delay leaving abusive situations’ fearing ‘what might happen to their animals’. A Wisconsin study reported ‘sixty-eight percent of battered women reveal[ing] that abusive partners had also been violent toward pets or livestock’. Further, ‘more than three-quarters of these cases occurred in the presence of the women and/or children to intimidate and control them’.
The exercise of power and control, isolation of family members through abuse to animals or the fear of this abuse, using fear for pets’ welfare as a means of enforcing submission and to prevent family members from leaving, or exercising duress by reference to pets so that family members will return are commonly recognised features of animal cruelty in the domestic setting. These are listed by the ASPCA in response to the question ‘why’ abusers ‘batter animals’.
Perceptive lawyers working in this field recognise these features, yet too often animal abuse has been left out of the equation when cases are pursued in court. There is no reason why the issue could not have been raised prior to the Family Law Act amendments as, indeed, Osland v. The Queen confirms. Better to raise the issue when those being abused have a chance of escape than to ignore it, so that it can be raised only in the context of a criminal case, as was Osland.
In the U.S., shelters and women’s refuges are being encouraged to establish animal shelters or refuges as a part of their emergency housing arrangements for family members – usually women and children – fleeing criminal assault at home and other forms of domestic violence. This effort acknowledges the power residing in abusers where animals are a part of the family constellation. An alternative is for the refuge or shelter to build relationships with existing animal refuges, so that family members are not inhibited from leaving. Both important initiatives, they cannot, however, solve the circumstance where farms and small-holdings of farm animals are concerned, or larger numbers of domestic birds such as flocks of chickens, ducks and geese.
Abuse to animals includes a refusal to feed pets and/or disallowing children from doing so, so that children are forced to stand by whilst the animals starve. This occurs with (amongst others) dogs and puppies, cats and kittens, rabbits and guinea pigs. The animals which could run away to forage for food are tied up or kept indoors with threats of violence to family members if they unleash dogs or allow cats to escape. Threats of whipping animals, or actually doing so in front of family members, are common. So, too, the battering of mother and children where pets are fed against the abuser’s wishes.
Changes to the Family Law Act by the Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 (Cth) are designed to ensure that abuse of animals is not overlooked, ignored, or not seen as a part of civil law determinations on residence and visitation. Yet the fact that this problem has been well-known to workers in the field, some researchers and lawyers, for many years, while only now does the Family Law Act give it legislative recognition, means that more than a change to the law is necessary.