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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