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RUBY:

From Schwartz Media I’m Ruby Jones, this is 7am.

The family court is a place of last resort for spouses and parents, to settle the legal, financial and parenting disputes that can sometimes arise.

But lawyers and mothers have been warning that when abuse or violence is part of the equation, the court is failing to protect children.

Today - author and contributor to the Saturday Paper Jane Caro on the women who feel silenced by the family court, and the changes the Federal government now wants to make.

It’s Thursday March 9.

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RUBY:

Jane, you've recently been talking to people about their experiences in the family court, which is the place that people who are at the very end of separation or divorce proceedings go to when things kind of haven't been able to be resolved in any other way. Tell me about why it is that you started looking into what's happening there.

Jane:

Well, I was kind of guided to it by Dr. Karen Williams, who is a psychiatrist that specialises in treating post-traumatic stress disorder.

And she, over the last few years, has become very exercised about how little we give to women who are suffering from complex post-traumatic stress disorder, which is often as the result of having been in a violent long term relationship. I spoke to her. I spoke to some of the women she's been working with. I also spoke to other women who were eager to tell me their stories. Some of them were historical, the trauma and the difficulty in the struggle over custody had gone on for a very long time.

But there were a couple who were currently in front of cases.

So they felt that they weren't being listened to, that they weren't being heard even when they felt they had evidence and substantiation for accusations of violence or abuse. They were treated with suspicion, they also felt quite strongly that their children weren’t listened to either.

You know, 70% of the cases that come before the Family Court, the most complex cases have a background of abuse and 80% of violence. So that is always going to make the idea of sharing custody between two people who have gotten to that point in terms of their inability to get along together. It's always going to be incredibly difficult.

It was that kind of thing, that sensing in which they were being disbelieved, that they had to keep repeating their story and that even when they did, there was a suspicion around what they were saying.

RUBY:

Okay. And so I think to kind of understand the way that the family court system works for these women or I suppose doesn't work is what you're saying, you kind of have to go back to some changes that were made to the system back in 2006 under John Howard. Can you tell me about that?

Jane:

Yeah. Under pressure from all sorts of groups, including men's rights activists, they changed a kind of central presumption of how to approach these cases, which was that shared equal parental responsibility should be the presumption, the sort of ideal to aim for at the end of these very complex cases.

Archival tape -- Reporter:

“In 2006, the Howard Government introduced major changes to Australia's family law system, putting an emphasis on shared responsibility for separating parents.”

Archival tape -- Reporter:

“It promotes the idea of shared parenting responsibility by both parents and a hope that if possible, kids should spend equal time with both mom and dad. It also encourages parents to draw up a parenting plan at one of the 65 family relationship centres, which are being set up around the country and soon parties won’t be able to commence an action in the family court unless they‘ve attempted dispute resolution at one of these centres.”

Jane:

And there was a sense from the women I was speaking to, but also from Angela Lynch, who works with a domestic violence support service, Full Stop that this had changed the situation for women, particularly if they made allegations of violence or abuse much harder, because then it was seen as, oh, well, we can't you know, this makes it difficult for us to do the presumption which has been now placed at the centre of what we need to do now. I spoke to a solicitor who has worked with the Family Court for decades and he was adamant that the best interests of the child were always central. Before 2006 and even after 2006, and that he never sat before a judge where child safety wasn't the central issue. I'm not doubting him for a minute, but at the same time, one can't ignore all these stories from women who did not feel that was what was happening for them.

RUBY:

So one of those stories - is the story of a woman, Jen - although that isn’t her real name you’ve given them a pseudonym. Can you tell me about what she said to you about her experience in the family court?

Jane:

Well, Jen's story is from a long time ago, and she actually now works as a nurse working with traumatised women. She lost custody of her child even though she had credible evidence. And she in fact, when you know, her daughter first disclosed at the age of five, she said herself, naively went to the police and to child protection because, you know, she thought that's what you do. And child protection responded by believing what she said and certainly believing it enough to assign a sexual assault counsellor to her daughter. But when she came to make these allegations, the courts, as part of her custody dispute, the child actually said to her, I'm not going to tell anybody any more because nobody believes me. So the child basically was silenced and ended up. They ended up with shared custody. And the daughter, the five year old, is now a young adult. And Jen told me she has no relationship with either parent. So, in fact, the shared custody ended up having the exact opposite of the desired outcome. And the child feels that neither parent was able to believe her, protect her and keep her safe.

Jen, I think certainly as she talked to me, felt that she'd done everything she knew how to do to protect her child, but that she was prevented from protecting her. And I think this is one of the things that really those women I spoke to felt most aggrieved about, that they were trying to do what every good mother thinks she ought to do.

And I think they feel to some extent that their abusers have been able to manipulate the court into continuing the abuse. So there's a sense in which they feel there's nowhere to turn.

RUBY:

We’ll be back in a moment.

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RUBY:

Jane, the federal government is now proposing new legislation that would change the way all of this works. And in particular, it would repeal this presumption of equal shared parental responsibility. Can you tell me a bit more about the bill and what the government says its intention is here?

Jane:

Well, it basically is to return to the original Family Law Act, where it's all about the best interests of the child. So bringing that back to the centre of the considerations of the court, it may be in the best interests of the child, the vast majority of the time that parents share custody and have equal responsibility for the parenting of their child. And indeed, that's what happens most of the time. And it's fine. It never goes to court. But to enforce that in relationships which have descended into allegations of abuse and violence, it's not going to work. It's never going to work. You know, and I think that's where it's all come horribly unstuck. A couple of the women, at least, were very angry about the court appointed reporters who do psychological, you know, reports to the court about the mental health of the people who are on either side and how they had felt that they were painted as crazy for making these allegations. And so I think there are other areas that perhaps need to be looked into. Who are these people? Are they trauma informed psychologists? Do they understand that a traumatised person, particularly if they're coming out of, you know, many years of abuse, you know, will not be able to cope necessarily or, you know, with even seeing the person who's abused them, which if you do shared parenting, is one of the women I spoke to said, you know, every time I had to go and hand my child over shared custody, I would literally faint and collapse because I was so, my post-traumatic stress disorder was so triggered just by seeing the person who had abused her. So that may not be well understood by some of the people who are operating in that court. I'm hoping that this is changing. What I'm hearing is that we want the courts to catch up with the way we look at women leaving abusive relationships in a different way than the way we used to.

RUBY:

And so it sounds to me like the main kind of opposition to changes like this would come, I suppose, either from people in the legal fraternity who think that the courts are working well to put the child at the centre of decision making. But also I suppose the other group would be men who maybe aren't facing allegations of abuse, who might worry that ending the presumption of shared custody would mean that they might find it harder to get access to their child. Is there merit to that concern?

Jane:

Look, I would hope not. But, you know, we all know how acrimonious and horrible some marriage break-ups can become. So I do have some sympathy for the court having to deal with that. But the thing that strikes me is that the best interests of the child actually incorporates shared parenting and equal parental responsibility. Because if that is possible and safe, then obviously that's in the best interests of the child. And indeed, that's why it happens in most, you know, divorce and separation cases that never reach the family court. Those parents managed to work it out amicably. Sometimes they might get help from mediation or, you know, relationships, counsellors or whatever it is, but they managed to work it out so that they can function reasonably well as parents, even if they can no longer function as a couple.

RUBY:

And the women who you've been speaking to, who. Some of whom were forced to kind of put their kids into the care of men who they say abused them. What did they say about the proposed changes? Would it have helped them at the time?

Jane:

They were ambivalent about it, I think. They think it's an improvement, but I think they have a wait and see attitude. I think, to be honest with you, their trust has been very badly damaged. They're no longer willing to accept on face value that some changes to the law and the emphasis will make a miraculous difference. A lot of them felt. And indeed, the police officer who now works as a private investigator who I spoke to, who worked mostly in domestic violence, said that she believes it's the male centric nature of both our police forces and the courts, that everything is looked at through a male lens, not a female lens, and that that's why the women feel so unheard, unlistened to and that they feel like they're fighting a battle where the rules aren't clear to them. And so I think there's a level of, is that going to change? And that if it's true, is probably going to take a very long time to change so that their wariness makes sense to me. You know, Elizabeth Broderick said brilliantly once that sexism is like asbestos in the walls we breathe it in. And it's in a way unrealistic to think that our court systems and our police systems and our justice systems and all of that won't also have sexism infecting how they see the people who stand up in front of them.

RUBY:

Yeah. And in terms of being sort of unheard and unlistened to is the most important thing here, really, that the family court starts to feel more like a place where these women can take these really grave concerns and feel like it's at least likely that they might get a fair outcome.

Jane:

I think that's right. I did get a sense talking to the women that one of the things they desperately want and we hear the same, too, from sexual assault survivors, that they want their pain and suffering to be acknowledged and believed.

And I think particularly being aware of trauma informed practice. Dr. Karen Williams, who is a psychiatrist who works with survivors with complex post-traumatic stress disorder, says that 53% of women who have experienced domestic violence will get a mental health diagnosis at some point. But she said 90% of those diagnoses happen after the abuse has happened. And her belief is that post-traumatic stress disorder and the way people react to years of horrible things happening to them in an abusive relationship, violent, coercive, controlling the full spectrum is not being taken into account in the way women respond, and therefore they are being judged harshly for having been abused. Which is absurd.
You know, if someone's been treated abysmally, appallingly, they're life threatened, strangled. They're entitled to be able to talk that through and for us to listen and take them seriously and believe them.

RUBY:

Yeah and in terms of the women you spoke to you - it sounds like changes to the family court couldn’t come quickly enough really - because their cases they’re ongoing - they’re happening right now, aren’t there?

Jane:

Well, Laura was going to court, I think, next week. So hers is an ongoing case. She has lost custody of her three daughters and she's also been silenced in terms of she's the woman I was talking about who said that she can't even if they disclose further abuse, she can't say anything about it.

She had a very poignant statement that she made, you can leave a violent relationship, but the family court stops you escaping it with your child.

RUBY:

Jane, thank you so much for your time.

Jane:

Thank you.

RUBY:

Also in the news today.

UK Prime Minister Rishi Sunak has vowed to quote stop the boats, with a new hardline migration policy introduced into parliament this week.

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“My policy is very simple, it is this country and your government who should decide who comes here and not criminal gangs.”

RUBY:

It proposes that people arriving in Great Britain by boat will be blocked from claiming asylum, and deported either to their home country or sent to a third country.

Human rights groups have criticised the bill, which echoes Australia’s policies towards boat arrivals.

And

RBA governor Philip Lowe has spoken in public about Tuesday’s record rate rise, as interest rates now sit at the highest level in eleven years.

At a conference speech where he answered questions from journalists, Lowe confirmed that the RBA is close to pausing interest rate rises, claiming that while inflation is still too high, the nation is in a better position than some other countries.

Lowe also acknowledged that he could be communicating better to the public, but that quote: ‘how we communicate with the market, that’s the main thing I would be looking for’

I’m Ruby Jones, this is 7am. See you tomorrow.

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