You may think that the Family Court is supposed to protect children. The Family Court is supposed to rule in favour of victims and help keep them from continued harm, but there is a disturbing trend where the court sees a parent who is supposedly alienating the other parent as worse than an abusive parent.
Recently, a violent man was granted sole custody of his son because he was deemed to be more capable than the boy’s mother. The mother was rebuked for allegedly trying to turn the child against his father. Reasons the Family Court gave for choosing the father to be sole carer included that his unemployment meant that he could “devote all his time to the care of the child”, compared with his part-time working mother.
In this very unusual case, Judge Stewart Austin found the parents were so toxic towards each other that it was in the child’s best interests to remove one from his life entirely. Despite the man having many domestic violence convictions, the judge chose to rule in favour of the father. Judge Austin said the mother’s relationship with the then 10 year old boy could be “revived” later in life.
The father was on an apprehended violence order and a good behaviour bond for domestic violence offences in 2011, the year the court ordered the boy live with his father and have supervised visits with his mother. The boy became severely disturbed and was self-harming, running away from school and hurting other children. Judge Austin said violence at the hands of the father, was “in the past” and, therefore, was not a “pre-eminent issue”.
In the more recent 2014 judgement, Judge Austin decided to cut all the boy’s contact with his mother. This included any kind of written or spoken communication.
The chief executive of the Victims of Crime Assistance League, Robyn Cotterell-Jones, said the Family Court was so out of touch with the effects of domestic violence that a royal commission was needed. “It makes a farce out of all things supportive if the Family Court sides with the perpetrator and awards the children one tried to protect to the perpetrator,” she said.
The Family Court Must Make Difficult Decisions
Dr. Paul Fink, President of the Leadership Council on Child Abuse and Interpersonal Violence, and a former President of the American Psychiatric Association states, “Science tells us that the most likely reason that a child becomes estranged from a parent is that parent’s own behavior. Labels, such as PAS, serve to deflect attention away from those behaviors.”
Parental alienation (PA, or PAS for Parental Alienation Syndrome) alleges a parent poisons the mind of a child to fear or hate the other parent. Estrangement or fractured relationships between parent and child can result. Those against parental alienation admit parents can be disparaging of the other parent either purposefully or inadvertently. Other factors can also cause alienating behaviours such as personality, underdeveloped parenting skills, just as part of the normal response to divorce by the child or at various stages of typical development.
Much more troubling though, is that parental alienation can mask domestic violence or child abuse – sexual or other. What is the difference between fearful or uncooperative battered women and alienating,” vindictive” mothers? Are parents alienators or protectors if they try to keep their children from the other partner? If they try to provide evidence of abuse – from various qualified professionals – are they gathering proof or further alienating the other? The behaviors can sometimes be indistinguishable between alienated and abused children. There are cases that clearly demonstrate one issue women in particular have in courts: credibility. It’s simpler to believe a woman is lying than to believe a man can abuse a woman or child. Inventing stories of abuse is much less common than denying abuse in the reality of family court.
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Even its most impassioned critics wouldn’t claim the family law courts have an easy task. Child custody cases can be atrociously complex, especially when one or both parents are alleging abuse. Decisions are not easy and need great care and wisdom to try and get things right. A decision made badly can mean that a child ends up with an abusive parent, restricted from seeing the ones who can care better for them. Devastation is never far away.
In such a bleak situation, family violence experts are calling for an investigation of the whole system. Rosie Batty said that the Family Court is her “biggest area of concern”. Batty said she and other domestic violence advocates are “swamped” with calls for help from victims who say they’re met with suspicion and even derision when they bring concerns about their children’s safety to the courts.
An extraordinary paradigm is emerging in the Family Court: a parent perceived to be alienating their child against the other parent can in some cases be treated as a greater threat than a parent with a record of abusive behaviour. A parent who makes a genuine allegation of abuse in the Family Court could be fortunate, or not. Your judge, family report writer and your lawyer might believe you and recognise a legitimate situation. Many court decisions reflect this. All too often though, these parents are disregarded and accused of being manipulative and creators of angst in their children.
What is even more diabolical is that there is no formal process in place to review a child’s welfare once the parenting orders are made. There is little choice for parents but to comply with court orders when they have exhausted their resources and energy in fighting their case.
Domestic violence is essential business for the Family Court, and yet there’s little to no mandated training on it for judges, lawyers or judicial staff. In a recent paper by Matthew Myers, now a judge on the Federal Circuit Court (where the majority of family law cases are heard) this disturbing oversight was raised: “Those delivering ‘expert evidence’ in Australian Family and Federal Magistrates courts,” he wrote, “rarely have the training, knowledge and skills needed to do this type of work adequately.” Domestic violence education is urgently needed. Our children depend on it.
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