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How the Federal Family Court is failing

By Tracie Aylmer

I have no need for the family court. I have never used it, myself, nor will I see any need to use it in the future. I have, however, heard many horror stories relating to it.

The main thread of each and every story I have heard is how the family court perceives domestic violence (DV). While it’s understandable that DV is a very complex topic, it appears that the court has not been trained in what DV ‘looks like’ and as such the court has at times decided inadvertently in favour of perpetrators, or has no idea how to enforce any type of violence order so simply ‘lets them go’. In some cases I have heard of perpetrators of DV being given custody of children, even though the warning signs were there.

This article is not a blame game. If it was, then it would be too easy to stop here, and not see the whole picture.

Many of the stories relate to how women flee DV, then have to fight for custody of their children. This is particularly so in Western Australia, where by some peculiar quirk of fate the government has decided to create its own Family Court laws, rather than be covered by the Federal act. The state Family Court legislation is identical to the federal legislation, but funnily enough interpretation is vastly different. I have actually heard of several stories where the child was unfortunately left behind in the ‘matrimonial’ home as the victim was too terrified to stay and couldn’t find any other way but to leave. The ex spouse kept telling the victim that they would be killed if they victim took the child. For some reason, the court hasn’t believed these victim, and instead believed the perpetrator, and custody was given to the perpetrator instead of the victim. This isn’t a lone story. I have heard these types of stories several times while living in Western Australia.

Another story I have heard is where, after the victim left the family home barefoot and with the children half asleep, found there were no available facilities and the victim became homeless.

Typically, a person fleeing domestic violence may do so with no money, or any access to it. The perpetrator has taken care of that, along with many other minute details. Perpetrators of DV at times plan every part of the victim’s life, so of course they would plan ways for the victim not to survive if they left. Then there are the death threats, which are – as history has shown to be very real. These brave survivors of DV more often than not become part of the homeless statistics, which is yet another failure of the family court and the welfare system. Both make life nearly impossible for victims of DV, as in these instances the more money the perpetrator has, the more successful they are in family court. Children are then awarded to the perpetrator, who wins because they see the children as a possession to harm whoever leaves their grasp.

I have also heard stories of where the perpetrator mother kept making out within the court that the father demonstrated DV, which of course was fabricated. And there stories of children desperate to be with their fathers, begging independent lawyers and courts for time with their fathers, yet because of a few nasty women the courts decided otherwise.

One particular story I have recently heard shows how a father and daughter have sent copious amounts of text messages to each other. The communication was reciprocal, at all times. The daughter kept begging the father for Skype communication. It was quite obvious that the father wanted to be involved in the daughter’s life. He even kept calling her school, being concerned for her grades. There are, unfortunately, many fathers (or mothers) that don’t bother, but this one has. The reason why the mother and father divorced is because the father caught the mother cheating on him. They separated, leading the daughter to live with the mother and the boyfriend that the mother had been seeing since before the separation. This would obviously cause friction, and the mother’s affidavit clearly showed this. The affidavit showed the mother’s frustration with the father’s desperation to keep their daughter in his life. Unfortunately, the court could not see this, and his only communication with the daughter now is by text messages. The father was actually given no standard custody arrangements whatsoever, even though legislation should be dictating that arrangements should be made.

In addition to this, the mother then dictated that the daughter should attend boarding school as far away from the father as possible, claiming that it was the father’s wishes. The father was not asked where he wanted his daughter to be educated, which was actually in a public school near his residence in the city. It was assumed by the court that he would find whatever the mother had stated in her affidavit as acceptable.

Considering the daughter had stated to the independent child lawyer that there was no DV on her from the father, and legislation had stated that the best interests of the child should be noted at all times, how the court could decide to not give any partial custody to the father is quite confusing. I read the transcripts of this particular case. I saw how the independent child lawyer was treated by the court, compared to the mother’s lawyer. The father’s lawyer was given even less consideration.

The one thing that perplexes me is how inadequately DV is treated in courts. Obviously, the system has failed spectacularly. Courts muddle along, thinking they know what’s best for families torn apart from divorce, yet they aren’t willing to learn or become educated in something that is so crucially important.

This can lead at times to the perpetrators being given custody of their children, to the concern of the victims and to communities. The best interests of the child are not entirely known or understood in courts. Children are treated like commodities, sometimes by courts, but more often by perpetrators.

Domestic violence is complex enough, without perpetrators treating the whole system as a total joke and their own children as possessions to be bartered. The perpetrators aren’t just men. Women can have a knack of using and abusing their children to show superiority against fathers for no reason other than to hurt them.

In all of this mess it is obvious that the arrogance and ignorance of family court needs to be addressed, desperately. This court has not just failed, it needs a complete overhaul, and the whole court system needs to start learning from DV experts – including those with lived experience.

This is not a job to be done in the future. It should have been done quite some time ago. It’s better late than never, but now is not the time to talk about it. Now is the time to take action, before more children’s lives are lost or shattered due to DV.

 

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9 comments

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  1. Florence nee Fedup

    Sadly it seems it depends on whoever can afford the best lawyer.

  2. Deanna Jones

    As someone with current professional and academic expertise around this issue, I find this highly problematic. What sources have you used for this? Much of it appears to be based on hearsay. Trying to frame domestic and family violence as a gender neutral issue that ‘goes both ways’ is very harmful to our efforts to eradicate it.

  3. King1394

    I also have seen the use of “domestic violence” to manipulate a custody situation. I’d like to see someone with the professional and academic expertise necessary to engage with this as an issue. It is broadly anecdotal because in my view, the moment there is a suggestion that there has been domestic violence, or an AVO has been applied for, many of the helping organisations shut their minds to what is really happening.
    It should be remembered that an AVO can be issued on one person’s word that they are afraid of the other person. This has been my son’s experience, and lacking the financial wherewithal to really fight this, combined with his concern about what is best for his little girls, his acceptance of an AVO “with no admissions” has put him into a very weak position when it comes to negotiating to have even supervised time with his children.

  4. 2353

    @ Deanna Jones.

    ‘Trying to frame domestic and family violence as a gender neutral issue that ‘goes both ways’ is very harmful to our efforts to eradicate it.’

    The logical failure with your argument is that both males and females are perpetrators and victims of domestic violence. Males and females also claim to have been victims of domestic violence when there has been no perpetrator. If your ‘professional and academic expertise’ has not discovered this already, your expertise is lacking real world experience.

  5. Tracie

    @Deanna Jones,

    My expertise on domestic violence goes far beyond your professional and academic expertise. The sources that I used were real world, as well as transcripts that I personally have read. I will keep my sources confidential, because to do otherwise would put them into firing lines that won’t be pretty.

    Unfortunately for me, I was nearly murdered 13 and 1/2 years ago. It gives me infinitely more experience on the matter than any book learning could possibly do. In addition to this, as a pro bono solicitor I have given legal advice on domestic violence matters – to victims who were men.

    Sometimes it’s the lived experience that is infinitely more worthwhile than book experience. DV works both ways, and to discount the many variants of DV is to discount DV itself. It’s always why I make it gender neutral when I write about it. Because, in order to change the way society interprets DV, one must never put any other label onto it, other than control and manipulation.

  6. Andrea Barber

    First rule of journalism: get the facts. This article is anecdotal and full of sweeping statements not backed up by fact. Although the writer’s motivation for writing this is likely good it seems her emotions got in the way of writing a hard hitting article that would garner mainstream attention. The courts do indeed have their weak points, perhaps in part because they are under funded and overworked. Perhaps an investigative article into what the courts perceive as domestic violence and why women are generally regarded as victims rather than men would be more valuable than a series of anonymous case histories.

  7. Nell

    I suffered domestic violence by a man who was well known and charming, a sociopath. He was controlling and violent, once leaving me so badly beaten I didn’t recognise my own face. He never showed remorse, he was always right. I was an accessory; something to make him look good. People never guessed and the ones who did know just seemed to accept it anyway so I didn’t feel I could talk to anyone. Although I may have appeared normal, I suffered from severe depression and PTSD for many years. He used the usual threats, he knew people in the police force and was a serial cheat. He came from a violent background. When our youngest child was three he bought the woman he was sleeping with into our home while I was away with our children overseas visiting my family. Our farm was worth quite a bit of money. This woman was married with a baby. My husband always tended to show his weakness to me and he communicated with me as this gold digger manipulated her way into our finances, often crying over the phone that she wouldn’t leave him alone. In the end his lies, his charm and his money got him exactly what he deserved; a heartless sociopath who left her baby in order to secure a wealthy lifestyle. He was open in the way he described her and was clearly disgusted when she left her baby in order to be with him. The following years were heartbreaking as our children were obviously inconvenient to them and their materialistic lifestyle. In spite of proof of abuse he was never curtailed in the slightest. Even though I reported the abuse, the authorities treated me very badly and this only added to my precarious state of mind. He breached contact orders continuously which had a devastating effect on our children. I was a single mother raising children who had been abused, suffering from ptsd and depression. My self worth was very low and he was able to walk all over me financially. But still people asked me “what do you have to be depressed about?”. because I didn’t look like a battered woman. Unless you have been through it no-one understands what violence does to some-one. It erodes your sense of self worth. It leaves you in a state of fear. The sociopath will generally manipulate you and tell you that he loves you. At that time this was happening, men were not made responsible. It was up to the woman to protect the kids. A bit hard when all your friends are his friends, when he is popular and wealthy, when you have no family here, when he threatens to kill you, when you are emotionally shattered. Finally while suffering from severe depression and suicidal I met a person who seemed a saviour. He wasn’t. Within the space of a couple of years this conman had left me with nothing. There are laws in the family court which are supposed to protect people. Although the judge knew I was an abuse victim and had my medical diagnosis this was completely ignored and my home was taken from us for the second time. I have no faith in the family court, or the lawyers who fed off me. I lost everything because of domestic violence and the idiots in this country who are supposed to uphold laws made to protect the abused and the vulnerable. To all those women and men affected by domestic violence I say this to you. Find a doctor who listens to you. Report the abuse to your doctor every single time and make them take photos. A psychologist to understand and help you through it, the right anti-depressant will work wonders. Stay away from “friends” who don’t listen, who call you “weak” or who are judgemental. Get a restraining order. Above all, love your children. They don’t need a lot of material things, only your love and stability. Strong women aren’t the ones splashing themselves all over the internet, or furiously networking with the “right” people. They’re just women like me, at home, helping our kids through life, cooking, quietly cleaning up the mess our ex partners have made. It takes strength to keep giving of yourself but KEEP GOING. You are the strong one. In the end, your reward is in front of you. Your children. Your sociopathic ex may put on a show in public but underneath he is weak.

  8. Matt

    King1394,

    Yes, my brother had a similar experience. It appears he was used as a sperm donor for a woman who was independently wealthy who quickly discarded him after the IVF birth and used a 5 year avo to remove access not just for him (on the basis of violence, which he has never demonstrated in his whole life) but for everyone else in his family. Her word was taken as presented, he – avoiding her and her family because of the verbal abuse and threats he experienced from her brothers – never went to court.

  9. Cam Moore

    “Oh Deanna” as the song goes, your use of the word “problematic” gives away your bias.

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