CAROL NADER
August 29, 2009IT READS like a script for any relationship destroyed by violence. Their time together was volatile. He was controlling and manipulative. She felt powerless to do anything whenever he exploded into an alcohol-fuelled rage. And when she finally found the strength to walk away, he breached a series of intervention orders, heightening her anxiety.
In her affidavit, the woman cites a litany of incidents, sometimes witnessed by their young children. She claims that he threw her down the stairs. That he punched her when she was pregnant. That he verbally abused her. Her former partner, in his own affidavit, does not deny that he had been violent. But he says he has never directed any aggression towards the children. He says he has tried to make improvements to his life. And all he wants now is to spend time with his kids. Their mother is terrified by the prospect of the children being with their father without the safety of supervision. So she fights it.
It is a story that can be adapted to apply to almost any family in the throes of severe conflict. In years past these battles would have gone from the family home directly to the courtroom. But since 2007, the law has required separating couples who can't agree to their own parenting arrangements to at least try mediation first. For some, the conflict is so entrenched that this proves impossible. Such as this couple, for instance, who were given a certificate declaring that they were not suitable for mediation, effectively giving them the green light to continue their argument in the Family Court.
For the vast majority of couples, it never gets to this. Most people who separate can work out their own arrangements congenially - or at least civilly. In the past, cases that ended up in court tended to grant primary care to mothers, and fathers would usually get alternate weekends. But the law now requires the court to consider shared parental responsibility, if it is appropriate. This may include some kind of shared care arrangement.
This law and the mandatory mediation requirement were introduced by former prime minister John Howard, who spoke of a generation of children being raised ''fatherless''. The changes, along with other parts of the family law system, are now under review. The Australian Institute of Family Studies is near the end of an evaluation of the Howard amendments. Attorney-General Robert McClelland recently announced two more reviews. One, being led by former Family Court judge Professor Richard Chisholm, will look at the way the court responds to allegations of family violence. And the Australian Law Reform Commission is developing a national legal framework to tackle family violence that will include how state family violence and child protection laws interact with federal family laws.
These issues are complex and emotive and never black and white. The Howard changes came after groups representing fathers fiercely lobbied his government for a better deal. At the same time, societal expectations had changed, spawned by a strong belief that fathers should be encouraged to play a significant role in their children's lives. Occasionally, tug-of-war stories emerge that have a tragic ending. When McClelland announced the reviews, he singled out the horrific case of the father accused of throwing his daughter over the West Gate Bridge in January.
There is near universal agreement, at least, that it is best for people, where possible, to stay out of the adversarial court system. And the early signs are that forced mediation might be contributing to a reduction in people going to court. The Age reported last week that the number of applications for court orders over parenting and property matters had its biggest decline in the year mediation was enforced - from 20,350 in 2006-07 to 17,265 in 2007-08. Dr Matthew Gray, deputy director of the Australian Institute of Family Studies, who is involved in the evaluation of the Howard changes, says the intention of the legislation wasn't necessarily to reduce the numbers of people going to court, but to ensure that the kinds of families ending up in court are those that really need to be there. ''The real question is, are people taking appropriate pathways through the system?''
Underpinning all of this has to be that parents are acting in the best interests of their children, instead of using their children as weapons. But much of the research suggests that where there is a high level of conflict between parents, a shared care arrangement can be damaging for children. Retired Family Court judge John Fogarty believes dividing care between parents - whether it's a 50-50 split or 60-40 - is very problematic when there is high conflict. ''It creates a totally artificial situation where children are split between two families, which can only work if those two families are very co-operative,'' he says. ''It builds up a great deal of tension and unfortunately some men respond to that by becoming violent and aggressive.''
WHERE it can work, Fogarty says, is when separated parents get along and live in reasonably close proximity so that children can go to the same school, the same doctor and have the same friends. ''Once you shift the barometer too far towards the centre, then you are going to have all these troubles unless the parents are co-operative, in which case they don't need the court and will work it out themselves.''
Part of the problem also stems from how the legislation is interpreted. When the law first came in, it raised the expectations of fathers that they were going to get equal care of their children. But, says Stephen Winspear, the chairman of the family law section of the Law Institute of Victoria, shared responsibility is about decision-making, and does not necessarily mandate shared care. If the court decides that shared responsibility is appropriate, then it can consider whether shared care is too. Family Court figures show that the court awards a 50-50 time split in just 15 per cent of contested cases, with mothers still getting most of the primary care. And Winspear says he does not know of any cases in which the court has granted equal shared care where there is a high risk of abuse. In one recent ruling, a judge gave a woman and her two young children permission to change their identities and effectively go into hiding to escape her ''violent, abusive and controlling'' former partner.
But the court does grant access in some cases where allegations of violence have been made. This month, a mother who alleged that she was subjected to physical, sexual, verbal and emotional abuse by her ex-husband fought in court for him to not have any access to their son. The court found there were ''serious inconsistencies'' in her story and granted access to the father on weekends and school holidays.
Whether there is any connection between the presumption of shared parenting and family violence will be considered as part of Chisholm's review. Chisholm has previously told The Age that he will also look at whether parents are being pushed to sign consent orders. Fogarty believes that in some cases there is pressure behind the scenes to sign - pressure that judges aren't aware of. ''A major reason for it is some lawyers will say to their female client, 'If you don't agree and it goes to court, the judge may order 50-50', and that will be worse than what they're currently proposing,'' he says. ''And so they're drawn into accepting something that they know is wrong, but they're led to believe that it will be the lesser of two evils, and of course it may be.''
Which brings us back to the first woman in this story. She claims that she was pressured into signing a consent order agreeing to give the father unsupervised access and, eventually, overnight access. She says that the children's independent lawyer, and even her own barrister, led her to believe that if she did not consent the court would make her move back to the suburb from which she had fled to escape her former partner. ''I was put in a horrible position,'' she says now. Each time the father has his unsupervised time with the children, she worries that he may harm them. ''If I can take it back to court, I'll try,'' she says.
Family violence is also an issue in many of the cases that are settled outside of court, through mediation, whether at a government-funded family relationship centre or another service. But it is still possible to reach an agreement. Francesca Gerner, manager of post-separation services at Centacare, which is involved in running family relationship centres in Ballarat, Shepparton and Geelong, says ''family violence issues'' affect many of the couples seen, because the definition in Victoria of family violence is so broad, including emotional, psychological and even economic abuse. There are parents who come to mediation armed with intervention orders - sometimes against each other.
Despite this, some couples are still willing to engage in the process in good faith. Arrangements can be made for supervised access, or for the handover of children to take place at a venue where the parents don't have to see each other. But what of those who are beyond talking to each other?
Professor John Zeleznikow, from the Laboratory of Decision Support and Dispute Management at Victoria University, says forcing couples who are unwilling and unable to mediate just prolongs the agony all round. Voluntary mediation should be encouraged, he says, but there should be no compulsion. ''All they are doing is going through mediation as a sham because eventually they want their day in court,'' he says.
Those who favour mediation believe that a pilot, soon to start, that will allow lawyers to get involved in the mediation process might dissuade parents from turning to court to make a decision for them. ''There are times in mediation you get to a point where one party won't move,'' says Kath Barry, manager of the Broadmeadows family relationship centre. ''That party often thinks they're going to get a better deal in court.'' But lawyers, she says, might provide a reality check.
WITH the system under unprecedented scrutiny, there are fears from those who pushed for a better deal for fathers that the current reviews will go against them. Lindsay Jackel, from the Shared Parenting Council of Australia, was among those who lobbied the Howard government. He accepts that violence is an issue in some cases. But he believes that allegations of violence can sometimes be used as a tactic by mothers to diminish the time fathers have with their children. ''We sometimes in our group will ask not who has had an intervention order, but who hasn't?'' he says.
But the National Council for Children Post-Separation is pushing for immediate change, and says children are at risk whenever they are placed with a parent - either a mother or father - who has a history of violence or abuse.
Jackel points out that there have been cases where mothers have committed violent acts against their children. Like the case of the woman who jumped off a bridge with her child last year, because she feared she would lose custody.
Parenting battles that end in this tragic way are almost impossible to anticipate. Stephen Winspear says it is hard to predict how severely distressed people are going to behave in a stressful and emotional situation. ''These cases are all involving people who snap in a way that's completely unpredictable,'' he says. ''With the fickle nature of human nature and the sheer numbers involved, there will always be the occasional tragedy. It's absolutely impossible to guarantee protection in every case.''
UNDER REVIEW:
- The presumption of shared parental responsibility and whether shared care is appropriate.
- The requirement to mediate before going to the Family Court.
- The Family Court's response to allegations of family violence.
- The interaction of federal family laws with state child protection and family violence laws.
Carol Nader is social policy editor.
http://www.theage.com.au/national/a-caring-and-sharing-problem-20090828-f2ju.html
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Revenge not a divorce