Domestic Violence Statistics & Family Law ~ By Mishka Hudson

Tuesday , 9, January 2018 Leave a comment


Domestic Violence Statistics & Family Law ~ By Mishka Hudson

Mishka Hudson – The Legend.

As the recent chief justice Bryant stated in the Australian published Oct, 2017, I agree the Family Court should be scrapped[1], but despite her reasoning being delays, my views are that the system is simply not fit for purpose as the majority of Australian cases (72%), involve some level of family violence[2]. This court is not equipped to adequately investigate complex matters involving family violence[3].

 

Issues and Statistics re women losing custody after raising family violence and abuse

In the Leadership Council’s report[4];

Mothers alleging domestic violence only received primary physical custody 35% of the time[5] as detailed in Saccuzzo, D. P., & Johnson, N. E. (2004). The leadership Council also agreed that this research supported that lawyers may well be justified in informing victims not to disclose abuse to mediators or they are more likely to receive less favourable custody arrangements.

The leadership council also referenced Chesler, P. ,(1991, 1986)[6], involving a study of 60 cases where fathers were more likely to gain custody, (p.65) and more than 59% of these fathers were found to have abused their ex-patners.

Faller & DeVoe, (1995), conducted research at a uni-based clinic where they analysed 214 cases where sexual assault was alleged. They found that the more substantiated the claims were, the more likely negative sanctions, ( such as jail, loss of custody to the alleged offender, ‘gag orders’,  and prohibitions against taking the child to an external specialist, because of concerns about sexual abuse), were applied by the court on the protective parent[7], Faller, K. C., & DeVoe, E. (1995).

Polikoff, (1992), Found that judges evidence a strong “paternal preference” in contested custody cases. Sole custody was awarded to the father in 50-63% of cases.

The American Psychological Association. (1996), found that fathers are often awarded sole custody even when their sexual and physical abuse of the children is substantiated. The American Judges Association, state that 70% of the time the abuser convinces the court to give him custody[8].

………………………………………………………………………………………………………………………………..

As the AIFS noted in their July 2013 report “Violence, abuse & the limits of shared parental responsibility”, the adversarial approach has “too much policy-based evidence and too little evidence-based policy”… and the most pertinent issue is neatly summed up through their observation of the advocate stance; A major argument has been that the involvement of both parents in children’s lives increases the risk of violence against women. That is an issue of great importance. But the middle ground is to be found in articulating more clearly the circumstances when parenthood ought to be dissoluble, rather than resisting the historic transformation in the law of parenting after separation”.

Let us remember that the 2006 amendments creating a presumption of equal shared parental responsibility, does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in abuse of the child or family violence (Family Law Act 1975, s 61DA). The family court appears to disregard or at least inadequately attend to this potentially protective piece of legislation.

Primary considerations

The benefit of meaningful contact with both parents should be consistent with the need to protect from harm, (s.60B (1)(b)). Greater weight should be given to protecting children over contact.

In addition 60CG provides that:

In considering what order to make, the court must, to the extent that it is possible to do so consistently with the child’s best interests being the paramount consideration, ensure that the order … does not expose a person to an unacceptable risk of family violence[9].

Despite the above, the history of violence and child’s fears, views, voice and risk are consistently, not adequately recognised or managed. My view is this is largely due to the lack of impartial, empathetic and adequately qualified family violence and abuse experts. It is poor practice to assume that legal professionals have a clue about how to manage these issues. Court report writers have similar issues and the need for improved training and expertise has been noted in the recent parliamentary final report into a better family law system to support and protect victims of family violence[10] However, let’s not kid ourselves with any improvement in this area, this inquiries verbal submissions exposed that out of the 10.7 million allocated to introduce more report writers to the family court this year, a pathetic 180K has been set aside for training.

Dismissal of family violence reports as reported in the parliamentary inquiry final report[11]

The parliamentary inquiry final report noted that reports are either dismissed or viewed with suspicion and quoted the DV crisis service, (Submission. 29, p. 3);

“We are still being told by women that their lawyers warn them about raising

abuse allegations and are pressured to sign consent orders they fear will

endanger their children. Victims are still finding that both their disclosures

and those of their children are diminished or disbelieved”.

 

Jannawi Family Centre were quite insightful in the same report in their submission, (no.51, p.4-5), and highlighted that the family law system ‘fails to listen’ to reports of family violence, especially by children, and most significantly fails to identify how trauma impacts this disclosure…”The lack of recognition of the way complex trauma impacts on brain functioning, particularly memory and the ability to provide significant recall is a barrier to disclosing. This is then further exacerbated by a system which may not believe, or discredits disclosures. It appears that disclosures are viewed as a tactic to prevent contact

or that children have been coached and this is a dangerous starting point”.

The neuropsychological and verification process required to identify this was highlighted thorough the Australian Paralegal Foundation’s submission (no. 8).

 

Professor Rachael Field, Ms Zoe Rathus AM, Dr Samantha Jefferies, and Dr Helena Menih presented research to this inquiry which concluded that family reports can re-frame and re-name family violence and perpetrator coercive control as inconsequential to contact, and attack the credibility of protective women labelling them as manipulators. They also noted the selective silencing and reconstruction of the child’s views. I strongly state that his false paradigm obviously has repercussions on how the court views parental capacity and harms a protective parents request for contact. This was also noted by the National Child Protection Alliance, (Sub.5, pg 4), the Women’s Legal Service Queensland, (Sub. 81, p. 19).

 

Victim respondents to this inquiry included observations that their claims were ‘dismissed’, ‘ignored’, minimised without due consideration to risk, deemed to have no bearing on the outcome, and were managed without empathy or due consideration.

 

Do stakeholders seriously believe that protective parents would endure the emotional and financial cost of family court just to vexatiously make up claims against their ex for no valid reason? Parents are losing thousands, their homes, often experiencing ptsd due to secondary system abuse. Some are put in prison or psych wards for their convictions. Children in Australia and abroad have been put in psych care and medicated, rather than consent to unacceptable risk. This is not okay. It is absurd to consider that a significant proportion of protective parents are anything but seriously concerned about the risk presented to their children.

 

The small minority that do waste the courts time with fabrications should feel the force of contempt laws which are apparently, in my view, currently reserved for protective parents. Any parent that denies their child the benefit of a meaningful relationship with the other parent, for reasons other than genuine protection, needs to understand that they are harming their child’s development and sense of self to their core, and the impact of this will be lifelong. This is absolutely not acceptable; the child deserves the best of both parents, in a safe, nurturing environment.

 

That said, for those that still feel ALL protective parents manipulate for contact consider this…

Opinions such as Judge Colliers minimising the claims made by protective parents are part of the reason many violent parents are able to commit further family violence through access. His view is not aligned to research done by the Leadership Council in the USA which has consistently shown that false allegations of sexual abuse are rare and that children tend to understate rather than overstate the extent of any abuse experienced.
Gardner’s (1999) theory of ‘parental alienation syndrome’ , is not supported by  sound research and has been used to support the concept that this type of alienation is used through methods such as fabricating allegations for advantage in disputes. This is NOT supported by the reality in most cases.
The Australian Institute of Family Studies highlights an analysis of 10 years of reports of sexual assault, (Lisak et al)., and found the actual figure of false reports to be around 2%-10%. The higher percentage included inconsistencies in data collection, including police reports where crime was detected but not proceeded with.
Current practice in the Family Court which does not adequately identify or protectively manage family violence and abuse, often encourages the SILENCING of GENUINE PROTECTIVE PARENTS. This puts the safety of children at risk by promoting access arrangements which favour an abuser.

The parliamentary report discussed highlighted, (pg 90/91), that a number of submissions noted that families are frequently advised by lawyers and barristers, not to raise issues involving family violence, as it may harm their case. This is common knowledge among many in the legal profession[12] and is often noted by victims and reported to many advocates[13].

The Safe Steps Family Violence Response Centre, (sub. 34, p.8)., quoted Emeritus Professor Rosalind Croucher AM[14], who described the legal, ethical and risk issues involved with disclosure involving the interconnected systems of child protection and family court. She explained how child protection services required the mother to act protectively, or risk losing custody/parental authority of the child. Family law proceedings conflict with this paradigm in practice, when the mother is not viewed as a friendly co-parent where she makes claims of abuse, withholds protectively or attempts to have supportive independent reports admitted to file.

(This is often despite providing evidence meeting the balance of probabilities supporting past abuse, current and future risk, or even a historic criminal standard of evidence, contrary to the FLA, principles which actually don’t hold this minimal probabilities standard).

The consequence of this is often coerced consent. The mum is forced to support a ‘meaningful relationship’ with the perpetrator of abuse, or risk losing custody. The Australia’s National Research Organisation for Women’s Safety, (ANROWS), (Sub.73, p.11)., informed that many women are coerced onto high risk ‘consent’ orders to minimise the risk of full residency with the unsafe parent. The concession is that at least the protective mum may prevent risk for ‘some’ of the time as opposed to not at all.

It is therefore not surprising that sexual assault is rarely raised in Family Court, as noted by the Sexual Assault Support Service, (Sub. 32, p. 5) who referenced the Australian Law Reform Commission, (ALRC), finding that legal representatives may be ‘reluctant’ to inform the Court of sexual assault[15].

 

If there is any doubt re the credibility of the family court’s investigative process , I invite you to read the following article showing strong views from a paediatrician and psychologist;

`Never again’: Paediatrician David Wood and psychologist Susan Aydon, in Brisbane yesterday, discuss problems with the Family Court

The Australian, Edition 1 –

All-round Country MON 29 AUG 2005, Page 001

Family Court `Putting Children Last’  By: Tony Koch

Some of Queensland’s most respected medical experts have joined the growing list of specialists refusing to become involved in Family Court litigation, warning that their evidence is being ignored. They have written to Family Court of Australia Chief Justice Diana Bryant, saying they will no longer be involved in an adversarial system that they say fails to have the best interests of children at heart.

Last April, David Wood, chairman of the College of Physicians in Queensland, wrote to Justice Bryant detailing his long held concerns about the Family Court. Those concerns were confirmed by the court’s treatment of him and other specialists at a custody hearing where an eight-year old girl alleged sexual abuse by her father, before he successfully obtained custody of her and her 12 year old brother.

The case was also a defining moment for Sue Aydon, a clinical psychologist with 29 years’ experience working with children, and child psychiatrist Brian Ross, both of whom were involved as experts. Dr Wood, who is also chairman of the Abused Child Trust in Queensland and chairman of its national body, Kids First Foundation, said the bullying he received at the hearing had left him refusing to see patients whose case could end up in the Family Court. He also refused requests by lawyers to provide second opinions for the court. “I know a number of medical experts who have adopted this approach –that they are not prepared to be part of an adversarial game that seeks just to discredit them so the parent with the most aggressive and expensive lawyer wins,” said Dr Wood, who is also director of paediatric health services at Brisbane’s Mater Hospital. This is a Family Court that should be looking at the best things for children. This is not about the parents. It is about children, and I do not believe the current system cares about, or seeks, that outcome.” Dr Wood also questioned lawyers’ aggression and tactics in the court. “In a recent matter in which I was involved I actually fainted in the witness box and they had to call an ambulance,” he said. Dr Wood also said that copies of file notes he had taken concerning two children “were destroyed by the solicitors acting for the father the day after I handed them over to them, so they were never presented to the court and the judge had no idea what was contained in them”. Ms Aydon said she would “never again” appear in the Family Court. “I have actually said I would not see any child patients anymore because so many of those cases end up in the Family Court,” Ms Aydon said. “We get totally vilified in court, get no chance to explain why we have used certain techniques with the kids, and there is no understanding in the court of what we are trying to do.’

For two years, Ms Aydon treated the two children involved in the case about which Dr Wood wrote to Justice Bryant, and she said she was astounded that nobody involved spoke to the children -not the court -appointed children’s representative, nor counsel for either parent, and they were not called to give evidence. ` `Children have no rights in the Family Court despite the rhetoric that they operate in the interests of the child,” Ms Aydon said. Dr Ross said the legal system sought to “dismantle any kind of medical credibility”. “The result is that sometimes kids end up in places where they should not. I deliberately avoid and do not see cases I think will end up in the judicial system because I don’t trust it,” he said. In the case in question, the mother involved in the litigation spent nearly $600,000 in her unsuccessful attempt to keep custody of her two children and restrict her former husband’s unsupervised access. She gave evidence for three days, and on the morning of the second day of her testimony was approached by her solicitor who demanded she sign a document mortgaging her home to the legal firm or they would withdraw from the case. The Child Support Agency has since notified the mother, a dentist, that she must pay her former husband $1700 a month in child maintenance. However, when she had the children until last June, the husband, who told the court his computer business earned more than $2 million a year, paid $20 a month to her for child support. On June 27, Justice Bryant’s chief of staff responded to Dr Wood’s letter, saying the Family court was ` `working towards developing new policies and programs to give children a greater voice in family law processes and to reduce the impact of disputation on children”. A spokeswoman for the Family Court said last night the Chief Justice was not in a position to comment.

http://www.kidsindistress.org.au/never%20again.pdf

So in 2005, the now retired Justice Bryant’s chief of staff said they were going to give children a greater voice….the final inquiry report, discussed through this paper supports that they are still waiting.

Further media response;

Paper: Weekend Australian (Australia), page 10

Title: Doctors’ anger at Family Court. Author: Tony Koch

Date: September 10, 2005

MEDICAL experts who accused the Family Court last week of not caring about children yesterday blasted Chief Justice Diana Bryant for releasing a judgment critical of their evidence. Brisbane psychiatrist Brian Ross said the court’s reaction “highlighted the perversity of a system that didn’t get the truth”. Dr Ross said the mother involved in a custody battle over two young children had been a patient of his for three years, and for the court to accuse her of being vindictive against her former husband was “a blatant misrepresentation of the truth”. “She had no agenda. Her issue was to be protective of her children,” Dr Ross said. “She would not have risked the care of her children to get back at her husband, and to alienate her is an abuse.” Justice Bryant made the unusual order to allow publication of the judgment, with the names of the parties excised, but the expert witnesses -three of whom criticised the Family Court –named “to enable some sense to be made of the judgment as a whole”. Justice Bryant said an article quoting the medical experts, published in The Australian last week, allowed readers to form the view that the Family Court failed to have regard for the best interests of children and allowed medical witnesses to be bullied and discredited by aggressive lawyers. In an 81-page judgment on June 10, judge Neil Buckley decided that a girl,8, and a boy, 12, should be taken from their mother and live with their father .Justice Buckley was not satisfied that allegations the father had sexually abused his daughter were proven, or that there was an unacceptable risk for the children in living with or having unsupervised contact with the father ,Justice Bryant said. “He rejected the opinions of these issues expressed by Dr Wood and Ms Aydon. On this issue, it is fair to say, however, that his honour’s rejection of their evidence had more to do with the rejection of the mother’s evidence and its underpinning of the experts’ views than the expertise of the expert witnesses themselves,” she said. Justice Bryant said public confidence in the Family Court, as in all courts, was vital. “It is in the interests of public confidence in the court for the public to be made aware, if that is possible, of the judgment, and in response to the main thrust of the article, namely that the Family Court puts children last.” The witnesses included David Wood, Queensland chairman of the Australian College of Paediatrics and the Abused Child Trust, and clinical psychologist Sue Aydon. Dr Wood said assertions by the court that he and other medical experts were biased in favour of the mother were absurd. “Our role and whole history of our careers is to represent the children, our patients,” Dr Wood said. “The court was not interested in getting information on the children. They were interested in discrediting me, and there was no attempt to right the balance by counsel including the children’s representative, the mother’s or father’s lawyer or the judge. “This treatment is precisely the reason why so many medical experts refuse to have anything to do with the Family Court.”

I have documented numerous lists of cases where custody was awarded to an undisputed violent or predator perpetrator. The family court has identified that risk factors in these cases are low enough to permit contact. This certainly is not consistent with the reasonable man test or basic community standards.

I also have lists of dozens of children murdered post proceedings after, in my view, inadequate attention to risk and safety precautions. A list the family court has not bothered to review to inform and improve practice. (I am grateful and give thanks to a brilliant barrister who has diligently provided these records).

In my view, the family court is an industry that grossly misrepresents itself, as having adequate capacity to determine and manage risk factors, post separation. Let us stop pretending that mistakes made are due to poor legal representation. It is my view that the discretion afforded to the application of law, denial of due process[16], adversarial culture, inadequate report writer expertise and ignorance of safety, which is absolutely destroying children. This I believe, festers a toxic environment of misfeasance, malfeasance and unacceptable risk. The rising calls from united advocacy groups for a Royal Commission, indicates that this is a broken system of epic proportions.

 

It may be useful to replicate the New York Chief Justice Judith S. Kaye’s 1997 announcement where he stated that; “Sunshine is good for children” when he opened the State’s court doors to scrutiny and media. This transparency facilitated much accountability, review and reform[17].

Footnotes:

[1] Outgoing family chief justice Bryant in push to reform sourced at http://www.theaustralian.com.au/business/legal-affairs/outgoing-family-court-chief-justice-bryant-in-push-to-reform/news-story/19bdab6d02808550ae3a8f4cadc6c5b1 as published on 06/10/2017, sourced online on 08/01/2017
[2] Domestic violence a factor in 72pc of family law cases, the lowest in the country, new figures reveal, ABC news Mon 18 Apr 2016, 10:47 AM AEST, sourced at http://mobile.abc.net.au/news/2016-04-18/domestic-violence-a-factor-in-72pc-of-family-law-cases/7334150 on 08/01/2017
[3] Diana Bryant’s funding plea, The Australian, on 30/03/2016 at https://www.google.com.au/url?sa=t&rct=j&q=&esrc=s&source=web&cd=2&cad=rja&uact=8&ved=0ahUKEwia_OnLssbYAhWIx7wKHcJsDDsQFggtMAE&url=http%3A%2F%2Fwww.theaustralian.com.au%2Fbusiness%2Flegal-affairs%2Ffamily-court-chief-justice-diana-bryants-funding-plea%2Fnews-story%2Fc9d5d6b8128f4e4010a12f56fd1dac85&usg=AOvVaw1n_45I9DYn46rrEFL7-4XP as sourced on 08/01/2017
[4] Are "Good Enough" Parents Losing Custody to Abusive x-Partners? By Stephanie Dallam ,for the Leadership Council on Child Abuse & Interpersonal Violence. Sourced at http://www.leadershipcouncil.org/1/pas/dv.html on 08/01/2018
[5] Saccuzzo, D. P., & Johnson, N. E. (2004). Child custody mediation’s failure to protect: Why should the criminal justice system care? National Institute of Justice Journal, 251, 21-23.
 Available at http://ncjrs.org/pdffiles1/jr000251.pdf[6] Chesler, P. ,(1991, 1986)[6]., Mothers on Trial: The Battle for Children and Custody. NY: Harcourt Brace Jovanovich, Publishers.
[7] Faller, K. C., & DeVoe, E. (1995). Allegations of sexual abuse in divorce, Journal of Child Sexual Abuse, 4(4), 1-25.
[8] Report of the American Psychological Association presidential task force on violence and the family. American Psychological Association., (1996) . Washington, DC : Author.  Available at http://www.apa.org/pi/pii/familyvio/issue5.html [9] Australian Institute of Family Studies sourced at https://aifs.gov.au/publications/family-matters/issue-92/violence-abuse-and-limits-shared-parental-responsibility on 07/01/2017
[10] A better family law system to support and protect those affected by family violence Recommendations for an accessible, equitable and responsive family law system which better prioritises safety of those affected by family violence, House of Representatives Standing Committee on Social Policy and Legal Affairs, © Commonwealth of Australia ISBN 978-1-74366-727-9 (Printed Version) sourced at http://parlinfo.aph.gov.au/parlInfo/download/committees/reportrep/024109/toc_pdf/Abetterfamilylawsystemtosupportandprotectthoseaffectedbyfamilyviolence.pdf;fileType=application%2Fpdf on 07/01/2017
[11] A better family law system to support and protect those affected by family violence Recommendations for an accessible, equitable and responsive family law system which better prioritises safety of those affected by family violence, pages 90-92/411, House of Representatives Standing Committee on Social Policy and Legal Affairs, © Commonwealth of Australia ISBN 978-1-74366-727-9 (Printed Version) sourced at http://parlinfo.aph.gov.au/parlInfo/download/committees/reportrep/024109/toc_pdf/Abetterfamilylawsystemtosupportandprotectthoseaffectedbyfamilyviolence.pdf;fileType=application%2Fpdf on 07/01/2017
[12] As described in the AIFS study; Bagshaw et al.,(2011), The effect of family violence on post-separation parenting arrangements. The experiences and views of children and adults from families who separated post-1995 and post-2006, Family Matters No. 86 - March subtitle; Disclosing violence, sourced at https://aifs.gov.au/publications/family-matters/issue-86/effect-family-violence-post-separation-parenting-arrangements on 08/01/2017[13] National Child Protection Alliance,Submission 5, (p. 3); Women’s Legal Services Queensland, Submission 81, (p. 19)., and victims statements in box 3.2, page 91, in the parliamentary report; A better family law system to support and protect those affected by family violence Recommendations for an accessible, equitable and responsive family law system which better prioritises safety of those affected by family violence, pages 90-92/411, House of Representatives Standing Committee on Social Policy and Legal Affairs, © Commonwealth of Australia ISBN 978-1-74366-727-9 (Printed Version) sourced at http://parlinfo.aph.gov.au/parlInfo/download/committees/reportrep/024109/toc_pdf/Abetterfamilylawsystemtosupportandprotectthoseaffectedbyfamilyviolence.pdf;fileType=application%2Fpdf on 07/01/2017
[14] Emeritus Professor Rosalind Croucher AM, ‘Family Law: Challenges for responding to family violence in a federal system’, 
Families, policy and the law: Selected essays on contemporary issues for Australia, Australian Institute of Family Studies, May 2014, <https://aifs.gov.au/publications/families-policy-and-law/21-family-law-challenges-
responding-family-violence-federal>.
[15] Sexual Assault Support Service, Submission 32, p. 4; see also Australian Law Reform Commission and New South Wales Law Reform Commission, Family violence – A national legal response, ALRC Report 114/ NSWLRC Report 128, 2010, p. 1124.
[16] Bemiller, Michelle. (2008). When Battered Mothers Lose Custody: A Qualitative Study of Abuse at Home and in the Courts. Journal of Child Custody, 5(3/4), 228-255.
[17] Women’s credibility doubted in many family courts, author; Victoria Graham, 28/10/2001, Women’s news.

Sourced at http://womensenews.org/2001/10/womens-credibility-doubted-many-family-courts/ on 08/01/2018


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