The Family Law System

Posted on July 15, 2010


I want to create a space where parents who’ve been through the Family Law System can express their experiences.

Have you been involved with the Family Law System?

What has your experience been?

I’d like to be able to give parents support in the way that they navigate the Family Law System and to have a voice in relation to how they’ve been treated.

There have been two reports published recently in relation to situations of domestic violence. The Federal Attorney-General, Justice Robert McClelland’s Department commissioned the reports as part of a review of the 2006 changes to the Family Law Act.

These reports both say that in matters of family violence, the 50:50 shared parenting arrangement is detrimental to children.

The No Way To Live report by senior lecturer in the Faculty of Education and Social Science at the University of Sydney, Dr Lesley Laing, looks at how Australia’s Family Law System responds to survivors of domestic violence. The report is based on interviews with 22 survivors of domestic violence, about their first-hand experiences of the way they were treated through the Family Law System.

“Anything that you do to try and advocate for your children is somehow twisted into being high conflict and parental alienation,” one woman said. “So you are basically silenced. And the children are silenced.”

Dr Laing said some women felt guilty they had escaped violent men but their children had not. “Forty years ago some women could only escape domestic violence by leaving the children behind, and they were pilloried,” she said. “Now there is a new form of child abandonment, at least part-time. It’s a terrible thing we are asking women to do.”

In a report by the University of South Australia (UniSA) and interstate, researchers spoke to more than 1000 adults and more than 100 children.

UniSA adjunct professor Dale Bagshaw, who co-led the team of academics, said the system needed a complete overhaul to make child safety the highest priority.

“We are arguing that … the safety of the child should be given the highest priority and any accusation of violence should be investigated before the child is sent to stay with the abusive parent.”

Professor Bagshaw said that throughout the separation process, children felt powerless because they were not given a say about parenting arrangements or their wishes were ignored.

Children are fearful to express their opinions about the abusive parent because of consequences when they are in the care of the abusive parent.

The report’s recommendations include that children’s welfare needs be paramount, that victims’ rights be given priority over children’s contact with the perpetrator, and that all family law professionals should have more education on family violence.

The investigation found that, “Professionals in the family law system often do not believe allegations of domestic violence or counsel the innocent parent not to mention it for fear of sounding vindictive and of risking contact with their children.”

Some mediation services, such as the Attorney General’s Department’s Community Justice Centres, refuse to mediate where there is a history of domestic violence. It is assumed that there is an unequal balance of power. Parents can ask the Family Court for an Independent Children’s Lawyer (ICL) to advocate on behalf of the child or children. A Family Consultant can interview the parents and look at evidence of violence. They can recommend an ICL and a Family Report. This is an expensive process. Some parents are granted Legal Aid if they pass a means test.

Clinical experience reveals that women are traumatised by exposure to violent men.

The effect of their traumatisation is that in recounting their experiences they become emotionally aroused, which is often interpreted as being anxious, with fragmentation of their thinking, at worst psychically numb, giving the impression that they are not a reliable witness and that their evidence is not credible. They can’t think straight, their mental processes are impaired, so their story comes out in a fragmented way. A lawyer opposing her could ‘stick the knife in’ and focus on an area where she’s going numb and then the court can conclude that she’s not a reliable witness. Her credibility is shattered, she is discredited. There seems to be the attitude that “Kids must spend time with their fathers at all costs.”

In one instance, a woman wanted the floor to open up and swallow her. In another, she wet herself. Their ability to care for their kids is questioned, as they are considered to be “too anxious.” “The mother’s anxiety is affecting her children,” and this is used by the court to imply that she may not be able to adequately parent them. They have been traumatised (by exposure to an abusive man). Now they are being re-traumatised (by their experience in the court system). So she ends up being in a lose-lose situation.

The legal system makes it difficult for a woman to accurately represent herself. Should she seek the need for professional assistance, this can be held against her in court. She’s considered to be mentally unstable and her mental instability is held up as impairing her ability to cope with her children. They lose sight of the fact that she has become symptomatic because of years of exposure to the trauma of living with an abusive man.  In this way, capable, strong women are being stigmatised.

In Trauma and Recovery, psychiatrist Judith Herman says that one way people can overcome trauma is to go to court to be heard, to put their abuser on the public record with the risks of retraumatisation, increasing symptoms such as arousal, hypervigilance, insomnia, anxiety and somatization. It is very interesting that in court, this is called a “hearing.” Whichever way the magistrate decides in the judicial process, for the survivor the main point may be that she has told her truth publicly and as a final vomit this puts her case as one more example which may be used to change the socio-political history of abuse in her country. This can be a great act of empowerment, despite the legal costs involved, to take back her power from her abuser. Once in the public domain, it is taken out of the domestic sphere and put under a spotlight for all to see. Hidden no longer, the survivor may then be able to walk out of her history and into her future with a sense of achievement.

“Pursuing justice is holding the perpetrator accountable not only for her well-being but for the health of the larger society. Making a public complaint or accusation, the survivor defies the perpetrator’s attempt to silence and isolate her, and she opens the possibility of finding new allies. Her actions may benefit others as well as herself.” (Herman 2001:209-10)

“There’s a sense of power in a legal battle with the perpetrator from a position of strength … She knows the truth is what the perpetrator most fears.”

“Simply through her willingness to confront the perpetrator she has overcome one of the most terrible consequences of the trauma. She has let him know he cannot rule her by fear, and she has exposed his crime to others. Evil has not entirely prevailed.” (Herman 2001:211)

The UniSA investigation found that, “After divorce or separation, four in 10 children are scared to spend time with the father and almost one in 10 does not feel safe with the mother.”

Children witnessing such abuse are similarly traumatised. A clinician’s experience in such matters is that children witnessing the abuse of the parent are themselves traumatised by that experience. That abuse of the parent modelled to the child impacts on the child’s subsequent behaviour in that it has modelled that behaviour as acceptable in interpersonal interactions. The father got away with it, now they’re copying him.

The child’s experience is that despite the abuse, they are still being encouraged to spend time with the father, so abuse becomes accepted in their lives, and they go on to repeat that pattern in their subsequent relationships. Dad got away with it, so can I. Mothers struggle with that because they’ve suffered abuse at the hands of the father and then they’re seeing that behaviour repeated in their children, directed at them.

What’s the impact of the mass migration of children between parental homes over the weekends? Does this bode well for a stable upbringing? What’s the fall-out? How does this relate to subsequent emotional problems in the children ie. anxiousness, teenage binge-drinking, substance abuse and other psychological difficulties.

Kids often don’t want to be part of this migration. Who is listening to them?

Mothers are often being threatened not to have any input into the child’s decision about whether to have contact with the non custodial parent, for fear of losing their custodial rights.

I’ve heard comments from experienced lawyers and barristers that it depends which judge you get. They know before the case begins which way it’s going to go depending on the magistrate or judge. That’s a worry. If you score a judge who’s a mysoginist, a paedophile or an alcoholic, that’s the system. It’s your bad luck.

You wonder which children may have received a different outcome if their case was heard by a different magistrate or judge. We are dealing with childrens’ lives, when their brains and their sense of themselves are developing. Judges are human and they all come with their foibles and we hear of their foibles when they’re not around any more.

Women have been killed by these violent men because their Apprehended Violence Orders (AVOs) go awry.

The courts are not going to be there when the kids go off the rails years later, unless they end up in trouble with the law.

What have been your experiences?

Related Articles:

Suffer the Children by Jess Hill

Family Law Legislation Amendment (Family Violence and Other Measures) Bill 2011

Family Violence—A National Legal Response

Courts send children to live with violent parents by Tory Shepherd, The Advertiser, July 13, 2010.

Family law puts custody above children’s safety: report by Jennifer Macey on Friday, June 25, 2010.

No Way to Live report launch, 24 June, 2010

Law fails children exposed to harm By Adele Horin, The Sydney Morning Herald, 24 June 2010.

Act aids abusive fathers, imperils children By Adele Horin, The Age Melbourne, 24 June 2010.

Malicious mothers demanding changes to Australia’s Shared Parenting laws by ADELE HORIN on June 24th, 2010.

Dr Lesley Laing;query=Id%3A%22legislation%2Fbillhome%2Fr4562%22


Evans, P. (1997) The Verbally Abusive Relationship: How to Recognise It and How to Respond. Adams Media Corp.

Gottman, J. (1998) When Men Batter Women. Simon & Schuster

The Gottman Relationship Institute

Herman, J. L. (2001) Trauma and Recovery. Pandora, London.


Behind Closed Doors by Karen Miles @real_mum


Dr Carolyn Johnson is a lecturer in social work at Curtin University who has studied crimes such as when a former jealous partner turns lethal, including murder-suicides, and written a book about it called ‘Come with Daddy’.


Posted in: Law, Trauma