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'Reasonable fear of violence' unreasonable

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Category: Court Ordered Abuse
Created: Thursday, 30 March 2006 22:39
Written by Patricia Merkin, Barrister

In the classic To Kill a Mockingbird, Scout recounts how her father explained, “… you never really know a man until you stand in his shoes and walk around in them”. In the politics of divorce and the government’s response, a masculine perspective drives reforms. These reflect a persistent attitude by a federal government that refuses to “walk in the shoes of victims of family violence”. Overwhelmingly, these are women and their children.

This is exposed in the new family law amendment by changes to the definition of family violence. It is proposed that the wording will be changed from the victim’s “fear” of violence to a “reasonable fear” of violence when considering evidence presented to the court.

The current climate in family court is fraught with disturbing cases where children have paid a gut-wrenching price when judges have overlooked or trivialised violence and abuse to mothers. The deaths of three brothers last September during a court ordered access visit, and the deaths of Jesse and Patrick Dalton at the hands of their father, placed in his care by the family court are forgotten, swept under the carpet and ignored. Instead, the government continues to bend to the pressure by father’s rights advocates.

Other articles by Barrister Patricia Merkin;

Father’s rights campaigners have driven the most dangerous aspects of family law reforms since 1995. Their success can be traced to the ability for the attorneys-general, all male, to better relate with the male’s side of the story. This has been identified by researchers including Regina Graycar. She says:

There is considerable theoretical research on how the voices of the powerful drown out the voices of the powerless: in the context of divorce law reform, men have the ears of the politicians, the women and children simply do not (Law Reform by Frozen Chook, Melbourne Law Review, 2000 p. 9,).

It is clear that they also have the ears of the present federal attorney-general. How else can this little word, “reasonable”, be otherwise explained?

What is disturbing about this extra word is that it is used to rationalise abuse at the hands of men, in family and magistrate court hearings. That their actions did not really frighten the victim is now echoed in this definition: a definition headed for the family court, where cases of family violence have become the main business.

In contrast, the Victorian Law Reform Commission is broadening the definition of family violence. It states that:

Many people still consider family violence to be confined to physical assault, such as hitting, punching and pushing. A new Act should make it clear that family violence includes:

  • assault and physical injury;
  • sexual assault and other sexually coercive behaviour;
  • damage to a person’s property;
  • emotional, psychological and verbal abuse;
  • economic abuse.

There is no use of the word, “reasonable” here. Perhaps this is because at the state level - and in this report - definitions of family violence are made by those closer to the experiences of the victims. In other words, it’s the next best thing to “walking in their shoes”.

At the federal level however, key persuaders for the “father’s rights” are situated in the capital, are well funded, enjoy peak consulting status and are intimately connected with strategic politicians, yet they are not representative of the average Australian separated father. We know this because only 5 per cent of all divorces come before a family court judge. Most divorcing couples arrange matters for themselves. It disturbs workers and professionals who deal directly with the victims of violence that couples coming before the court are among the ones generally involved in the worst aspects of violence.

The word “reasonable” is a contradiction to the federal government’s “Violence Against Women, AUSTRALIA SAYS NO” campaign. For the sake of consistency it should be renamed, “Violence Against Women, AUSTRALIA SAYS AS LONG AS IT’S REASONABLE”.

This family law reform is creating an environment where evidence of violence will potentially be minimised, ignored and go unacknowledged. Its subjective insidiousness is to the detriment of the victims: women and their children.

Justice Warnick highlights problems inherent in the current use of the Family Law Court to hear cases on family violence and child abuse. Commenting on cases that proceed to trial in a submission to the Australian Law Reform Commission’s Review of the federal civil justice system (DP 62 at para. 11.11), he said (pdf file 623KB): “I often feel that the Court these days in child matters is acting almost as an arm of the public child welfare system.”

The reality is that the family court is an arm of the child welfare system by default. Justice Warnick’s observation that the court is often, unwittingly, an arm of the child welfare system, highlights the quandary and deficiency of the court’s basis for the cases: where the separated parents are in court over child contact and residency issues. Therefore, child abuse cases should not be heard in the Family Court at all.

Alistair Nicholson, former head of the family court, highlighted this years ago. The court was designed for divorce and property settlements. Evidence of child abuse and family violence are being heard by judges who have little or no professional knowledge relating to abuse and its effects on children's development.

This use of the word, “reasonable” demonstrates that the federal government is also ill equipped to deal with the problem of child abuse and family violence. That they continue to ignore the recommendations of their own experts in the area, The Family Law Council, is incomprehensible.

The new family law regime will create additional difficulties for victims of violence to defend their case. In an arena not designed for this purpose and not learning from its mistakes, further abuse and deaths of children on court ordered contact is predicted

Source : https://www.onlineopinion.com.au/view.asp?article=4296&page=0

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