1. No Escape from Violence: The Silencing of Women and Children Marie Hume National Abuse Free Contact Campaign

2. Violence following separation  The time of separation can be the most dangerous time for women and children experiencing domestic violence and child abuse (Jaffe et al 2003, Kaye et al 2003).  In Australia, women are more likely to be killed by a male partner or ex-partner than by any other person (Mouzos 1999) and it is estimated that 25-50 percent of women killed by intimate partners are killed in these circumstances (Polk 1994; Mouzos & Rushford 2003).  Australian homicide data indicates around 75 mothers and children are killed by husbands and fathers each year in the context of domestic violence and family breakdown (Mouzos and Rushforth 2003).

3. Violence following separation  A study by the Australian Institute of Family Studies found that 66 percent of separating couples pointed to partnership violence as a cause of relationship breakdown, with 33 per cent describing the violence as serious (cited in Brown et al 2001).

4. “Culture of contact”  Despite significant research showing that domestic violence and child abuse are a major problem within the separating family, the most recent changes to the Family Law Act have done little to address gendered violence against women and children. My thesis in this article is that not only are our current child protection and legal systems failing to protect women and children at this time, the current culture within these systems is such that they contribute to ongoing abuse and violence.

5. Fatherhood ideology “Good fathers/Bad mothers”  “Perusing the parliamentary reports and government responses make it clear that the problem representation was constructed to be absent fathers in the lives of children post separation. The concern was expressed in the form of a child’s right to a meaningful relationship with both parents underpinned by the belief that fatherlessness impacted negatively on children (Samson, 2004, p. 33).” (J. Taylor, 2007)

6. Gendered division of labour  Within the intact family it is still true that there is a gendered division of labour, with mothers continuing to carry out the main responsibility for children, sacrificing things such as their position in the labour market. Not only are mothers obliged to provide the majority of the physical responsibilities of parenthood but also the emotional relationships within the family.  “This gendered division of labour only becomes a problem for fathers on divorce" (Smart p. ix).

7. Power and Control  “…the essence of most fathers’ rights arguments… that mothers should continue to do the work of primary parenting and fathers should continue to have control over the form that maternal parenting takes.” (Boyd p.3)

8. Bad Mothers  Mothers, in the fatherhood discourse have been constructed as self-interested and the cause of father-absence in children’s lives.  Rhoades describes the paradigm of the bad mother in Australian family law as the ‘no- contact’ mother (Rhoades 2002, p.4).  Thus a story has developed where denial of contact by mothers is the major reason fathers do not spend more time with their children after separation.

9. Opt in/Opt out Parenting  Rhoades points out how non-resident fathers can breach the terms of contact orders with impunity.  “A non-resident father’s failure to maintain contact with his children attracts no legal sanction while the mother’s failure to encourage contact attracts penalties…” (Rhoades 2002, p.8)

10. Maintenance of relationships  So, as in the intact family, separated and divorced mothers continue to be held responsible for the maintenance of relationships within the family and are penalized by the family law system if they fail in this task.

11. Mothers promote contact  This is despite empirical studies showing that the majority of mothers promote the idea of children spending more time with their fathers (M. Maclean and J. Eekelaar 1997, as cited in Collier and Sheldon, 2006 (p.9); McInnes 2007)  “The survey date identified that separated resident mothers were generally strongly supportive of fathers maintaining contact with their children after separation.” (McInnes 2007, p.32)

12. Women’s autonomy restrained  In the same way that women’s autonomy and self determination is deliberately impeded in domestic violence, the new legislation also constrain women from self determination.

13. Degendering of Violence  “…men’s abuse of women is historically, statistically and globally the predominant pattern and the one that causes the most fear and physical harm” (p.56)(Mirrlees- Black 1999). (Humphreys and Stanley)

14. Silencing Women’s Voices  These zones of uncertainty create sufficient ambiguity to silence talk of the violence, and this is why mutual responsibility and gender neutrality is so insidiously dangerous for women. They effectively fudge the effect on women of men’s violence against them.” (Towns )

15. Power and Control Strategies  “ It is the psychological violence that we find the foundation of men’s violence against women: the power and control strategies that keep her in a subordinate position in order to support a man’s perception of manhood, womanhood, and intimacy. In this context, psychological violence can be seen as the basis for all other forms of violence.” (Humphreys and Stanley)

16. Interpersonal Conflict Paradigm  Safety issues become invisible as concerns about violence and abuse are subsumed under the interpersonal conflict paradigm.  Where violence in interpersonal relationships is seen as occurring on basis of equality, the violence is reduced to interpersonal relationship problems and disputes, and renders women and men as equally complicit.

17. Interpersonal Conflict Paradigm  “The fathers’ movements have taken their experiences of these interpersonal conflicts and reframed them as issues of justice and inequality. In doing so they have obscured the structural basis of the gendered division of labour that supports and sustains women’s greater role in child care, and have turned mothers’ objections into an apparently self- interested, child harming defence of the status quo.” Smart 2006

18. Best interests of the child  In determining this, there will be two primary criteria:  meaningful relationship with both parents  protection of the child from physical and psychological harm  The drafting of the legislation emphasizes the parents’ right to “meaningful involvement” at the expense of child/ren’s right to safety

19. Fulfilling Responsibilities/ Facilitating Relationships  Section 60CC (3) and (4) outline the ‘friendly parent’ or ‘facilitating parent’ provision in the Act which may also deter women from disclosing the existence of male violence against women and children.

20. Family violence/child abuse  Change to the definition of family violence:  to include an “objective” assessment as to whether the victim’s fear is reasonable (despite research evidence that only the victim knows the signs that are likely to lead to violence)  “Flood (2005) and Young (1998) have argued that the standard of proof demanded by Family Court is higher than for the formal civil standard of a ‘balance of probabilities’”. (Braaf and Sneddon, 2007, p.7)

21. Family violence/child abuse  Cost orders for “false allegations”:  Where the court is satisfied that a party to proceedings knowingly made a false allegation/statement, the court must order that party to pay some or all of the costs of the other party  Protective parents risk losing residency  No such equivalent penalty exists for false denials

22. Family violence/child abuse “The most carefully conducted research (such as Johnston et al.,2005) suggests that the majority of allegations of family violence are fundamentally valid.” (AIFS,p.166)

23. Barriers in family law  The combination of:  Stricter definition of family violence;  Penalties for false accusations;  ‘Friendly parent’ consideration. Likely to act as a significant deterrent to women disclosing the existence of male violence during divorce or separation proceedings.

24. Fragmented systems  Domestic Violence System - feminist, women-centred approach  Child Protection System - coercive and authoritative history  Family Law System

25. The operation of child protection systems in the context of family law?  In fact child protection systems have actively sought distance from the family law arena for a number of reasons, not restricted to a lack of resources to respond adequately to child abuse notifications.

26. Child Protection Responses  “All child protection research on domestic violence, both in Australia and elsewhere, mentions the way in which child protection workers focus on women as mothers and their failure to protect their children from domestic abuse, rather than on the perpetrator of violence.  This focus prevents services from adequately responding to the dangers of separation and too often construing separation as the only possible safety strategy.” (Humphreys 2007, p.8)

27. Failure to investigate allegations  There is also a view within child protection systems that once a woman has separated from an abusive partner that it is the responsibility of the family law to investigate and make determinations around the safety of women and children.  Family Court has no jurisdiction in care and protection cases (which are the responsibility of State and Territory law) (Harrison, 2007) neither does it have the capacity to conduct investigations. Without an investigation and supporting evidence of abuse, the family court proceeds on the basis that the allegations being made are false.

28. Link between domestic violence and child abuse  A failure, in both child protection fields and the family law system to acknowledge and confront the link between domestic violence and child abuse.  This failure makes invisible domestic violence, or is treated as different from the child abuse.

29. Family Relationship Centres  “Family relationship centres will play a critical role in shaping (or perhaps re- shaping) the family law system as a whole but, because they are fundamentally outside legal discourse and conventions, they may develop a practice framework in which key concepts behind the legislation and government rhetoric receive more attention than the 2006 Act itself.” (Rathus, 2007, p13)

30. Family Relationship Centres  the provisions about shared parenting and the strong philosophical positioning of family relationship centres as so compelling that agreements reached by parents will be bargained in the shadow of shared parenting and equal time type notions which are:  “deeply embedded in the scripts, promotional material and training that are integral part of this reform package” (Rathus, 2007 p. 74)

31. Dispute resolution?  “I recall a domestic violence worker saying at a meeting I went to that one of the most disempowering things that you can do to a victim of domestic violence is to describe her experience as a ‘dispute’.” (Behrens, J (2005) (p.8)

32. Certificate for Family Dispute Resolution Practitioners  A family dispute resolution practitioner may give one of these certificates to a person in the following circumstances:  A certificate to the effect that the person did not attend family dispute resolution with the practitioner and the other party, but the person’s failure to do so was due to the refusal, or the failure, of the other party to attend;  A certificate to the effect that the person did attend family dispute resolution with the practitioner and the other party, and that all attendees made a genuine effort to resolve the issue(s);  A certificate to the effect that the person did attend family dispute resolution with the practitioner and the other party, but that the person or other party did not make a genuine effort to resolve the issues.

33. Certificate for Family Dispute Resolution Practitioners  “Those parents whose attitude offends the culture of cooperation may find themselves with a certificate that they “did not make a genuine effort to resolve the issues’. These may label future litigants as uncooperative in the court system before they have even filed.” (Rathus, 2007, p. 58)

34. Problems with Mediation and Dispute Resolution  Screening and assessment tools not foolproof;  Focus only on physical violence;  Disclosure of violence often difficult for women and children;  Failure of mediators to recognize male violence;  Neutrality of mediators – power imbalance;  Women pressured into agreements, particularly given paradigm of shared parenting.

35. Looking forwards – violence made invisible  “The family law system’ is not interested, either in Australia or in Britain, in examining past conduct except where a clear link can be drawn to children’s bests interests (Smart and May, 2005, p. 9), and even then in a way which looks forward, rather than backwards. While domestic violence is clearly fundamentally linked to children’s best interests, this link is not always readily drawn, and where it is drawn it is often with some considerable degree of ambivalence. (Behrens, 2005, p.7)

36. Relevance of violence to parenting  “… the family law system, pre-occupied with ‘no fault’ rhetoric, simply is not concerned with acknowledging wrongdoing. Even where a victim is able to establish that such violence has occurred (an extremely difficult task), the focus will be upon the future parenting of children, and in ways which fail to acknowledge or make reparation for the effects of the violence on mother and children and generally fail to see the relevance of that conduct to future parenting.”(Behrens, 2005, p.12)

37.  “If we were to really take into account the roles sexual coercion and violence play in shaping human culture and personal identity, fundamental structures of thought could well be shaken and changed. Such great shifts in world view unsettle even those whose privileges and self-images are not directly threatened by them” (Olafsen et al, 1993)

38.  “…it will not happen because child sexual abuse (read male violence) is peripheral to major social interests but because it is so central that as a society we chose to reject our knowledge of it rather than make the changes in our thinking, our institutions, and our daily lives that sustained awareness of child sexual victimisation (read victimisation of women and children) demands” (Olafsen, et al, 1993, p.19)