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February 17th, 2009
The Hon. Robert McClelland
Attorney-General's Department
Central Office
Robert Garran Offices
National Circuit
BARTON ACT 2600
PO Box 861
HURSTVILLE NSW 2061
16th, feb 2009
Dear Sir,
According to press reports, the death of Darcey Freeman has warranted an inquiry by your department into the handling of this case by the Family Court.
As an advocate for stakeholders in the Family Court system, I felt it necessary to raise some very important matters to your attention in regards to this inquiry. I would like to point out that back in 2006 I wrote,
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.1
Darcey Freeman's parents had come to consent orders for the father to have 50/50 shared care. In saying this I must report that in my experience and from information relayed by Family Law stakeholders the facts remain that:
I contend that the role of the 'father's rights' groups agenda and discourse need to be examined as to the contribution that they have made to these conditions. This is pertinent because many of these groups are federally funded.
It is regularly reported to me and I have also experienced first-hand the pressure that legal practitioners will exert on their clients not to bring allegations and evidence of domestic violence and child abuse to the attention of the courts. It is difficult to ascertain the reasons why this happens but it could be viewed as their lack of awareness of the empirical date that indicates that for example;
Results of this analysis show that neglect is the most common form of intentionally fabricated maltreatment, while anonymous reporters and non-custodial parents (usually fathers) most frequently prompt intentionally false reports. Of the intentionally false allegations of maltreatment tracked by the CIS-98,2 custodial parents (usually mothers) and victimized children were least likely to fabricate reports of abuse or neglect.3
It appears that generally legal professionals erroneously believe, as do some sectors of the public, that 'allegations' are raised purely as tools mostly by mothers to gain an advantage in the courts. This then translates into pressure on parents agree to consent orders. It is reported that for example, in one case in the Brisbane registry, the mother was pressured for seven hours by her own counsel to come to consent orders.
This is despite her voicing her concerns for the safety of the children due to her own experiences of the father's violence during the marriage. This was in spite of independent documentation of the father's violence to her.
Legal practitioners may be taking this approach in part due to the legislated penalties for false allegations and also due their personal beliefs to the notion promoted by the father's rights campaigners that allegations are raised by mothers for strategic purposes. The penalties against "false allegations" can be traced directly to the father's rights campaigners who continue to insist that women routinely fabricate the accusations in efforts to sever the contact between non-custodial fathers and their children.4 This notion has consistently been refuted by empirical studies both in Australia and overseas as referred to above.5 The notion is also the basis for the blame attributed to custodial mothers and the Family Court for the problem of 'fatherlessness' in Australian families after separation and divorce. Again, this has been addressed by amendments to the legislation- Family Law Act 1975 (Cth) s60B(1)(a).
The changes to the Family Law legislation initiated in 1996 and then 2006 under the Howard government were premised on the notion that fatherlessness was a serious social issue in contemporary Australian society. However, Dr. Michael Flood has pointed out that,
Public claims that fatherlessness causes a host of social problems have sometimes been based on a confusion of correlation and causation, the selective use of research evidence, and even the repetition of fictional statistics.6
I would venture to state that fatherlessness is not an issue that can be adequately addressed by ensuring that fathers in family litigation are more often successful in contact (formally 'access'), residency (formally known as custody) and shared parental residency orders. This is because according to Family Court statistics, only 5% of all divorcing couples continue on to litigation. This would indicate that the solution to the national absence of fathers is being relegated to only the 5% of families that divorce. Nevertheless, the father's rights campaigners and the media persist in erroneously attributing the national solution of fatherlessness to these 5 % of cases that resort to litigation.7
Instead, attempting to address the perceived issue of fatherlessness through the courts and in endeavoring to appear egalitarian,8 the Family Court has developed into a system whereby families which are by the nature of their separation problems "totally at odds with the types of parents"9 which are suitable for share parenting, are forced to do so. The 'friendly parent' principle, the application of the criminal onus of proof into the civil child safety matters, (the Briginshaw principle) and the almost absent application of the sound and reputable social sciences knowledge 10 has now resulted in another child's death. It is unquestionable in my mind that presently, children continue to be placed with dangerous parents through Family Court orders by consent or otherwise.11
It is pertinent to note the remarks by Tim Carmody regarding his reasons for resigning from the Family Court bench.
He said the onus to apply equal shared parenting orders was part of the reason he resigned from the bench in July. "It created a real crisis for me," Mr Carmody said. "I just couldn't keep doing it." The orders appear to fly in the face of exceptions to the legislation, such as family violence or when equal time with parents is not "reasonably practicable".12
It is now common knowledge that even where solid evidence for the indices of domestic violence and child abuse are made known to the bench, the 'right to contact' is privileged. This is also well documented in the literature13 and explains why the Freeman family insists that their fears were not heeded in the Family Law system.14
Since the reforms of 1996 and 2006, there is a palpable reluctance by the courts to reduce contact between parents and children, even when there is ample evidence that one parent has engaged in behaviours congruent with domestic violence or 'intimate terrorism' as described by the AIFS study where category C is ascribed to the most severe form of interpersonal violence.15 This is also in spite of The Family Law Act 1975, (Cth) s60B, (b) and (c). Justice Wall from the UK has stated that,
I was concerned to read in a number of places in the files that reliance was placed on the proposition that it may be safe to order contact where domestic violence had been perpetrated on the mother, but not on the child. In my judgment it needs to be recalled that Drs Sturge and Glaser pointed out that domestic violence involved "a very serious and significant failure in parenting- failure to protect the child and failure to protect the child emotionally (and in some cases physically) - which meets the definition of child abuse. It is, in my view, high time that the Family Justice System abandoned any reliance on the proposition that a man can have a history of violence to the mother of his children but, nonetheless, be a good father.16
However, in Australia the reasoning seems to indicate that the judiciary continues to believe that a parent who has been physically violent to the other does not indicate that they are a danger to the children of the marriage. For example;
However, on the father's own admission, he has acted in ways that would bear the description of "domestic violence". This includes putting his hands around the neck of the mother. It may be also that other conduct, though falling short of physical assault, but which was aggressive and angry, would also fit that description. He was probably controlling and dominant in the relationship with the mother. This might also fit the description of domestic violence. As well, he was a times physically domineering in applying physical discipline to [the 18 month old child], such as straddling her on the bed and holding her head or face to ensure her attention. All of these behaviours are indications of an approach to relationships and parenting, less than optimal, in times past. As well, it is clear enough that he has not been alert to crossing personal boundaries.17
This father continues to have unsupervised contact with this child.
The causal factors between the dynamic of domestic violence, its range of indicators and the dangers this behaviour poses to the children of the marriage continue to be ignored by the judiciary, report writers, the legal practitioners and even the police department.18 This has resulted in the growing list of deaths of children from a family of origin where domestic violence can be ascribed as the feature of the breakdown in the relationship. In relation to the death of Darcey Freeman, fears are ignored. Consider the following sample:
It appears that in attempts to address the perception that absent fathers are due to Family Law failures to 'reign in' custodial mothers and their 'false allegations', instead there has emerged a 'mischief' that presents itself at best as flawed thinking that forcing contact will result in 'meaningful' relationships between absent father and their children, and at the worst in the results that have occurred in the families above.
In regards to 'meaningful relationships' and forcing children and fathers into higher levels of contact and shared parenting, the literature is consistent that more contact time does not necessarily indicate that there would be benefits to children. Gilmore, who has done a "Quantity and Quality of Contact" survey of the literature, states that:
The research evidence as a whole, therefore, appears to suggest what one might expect as a matter of common sense, namely that contact is a necessary but not sufficient condition for a beneficial relationship to develop.20
and,
The research evidence suggests, therefore, that each case requires a careful assessment of the particular factors impacting on it, preferably assessed with judicial awareness of the research evidence.21
Dr. Michael Flood has also stated that,
The most important obstacle to father's parenting after separation is not the Family Court, nor selfish mothers, but many father's own lack of involvement in parenting before divorce. When couples separate, most fathers have not been involved with mothers in shared parenting, and mothers continue to be the primary carers after separation.22
What has emerged is that the response to fatherlessness in Family Law has actually exposed vulnerable children to harm23 and even death. In my letter with Kids in Distress to the Hon. Kevin Rudd on Monday 22nd February 2007, I outlined the way that the discredited "Parental Alienation Syndrome" (PAS) has been exploited in Family Law to the benefit of parents who may have abused their children.
To my knowledge, nothing has been done to address this injustice as children continue to be handed over to parents who have been independently accused of sexual abuse, in a jurisdiction where it has become impossible to prove to the satisfaction of the court that the abuse has occurred.24 For example, in case of J v B (2008), the orders made for contact between the mother and children are textbook PAS recommendations.
These cases are highlighted to inform the department and the minister of the necessity not only to amend the legislation, but also to seek changes in policies. In order to protect vulnerable children in family court proceedings it is strenuously argued that:
Given that the Family Court has become a de-facto arm of child protection, these recommendations are entirely warranted. As Brown has stated,
Thus, without public or professional awareness, child abuse had become the core element of the load of the Family Court and the Family Court had become a significant part of the child protection system, almost as significant as the State Children's Court.25
Furthermore, it is highly recommended that:
It is the conviction of this writer attained through information from stakeholders that a handful of these report writers are employed by word of mouth through Family Law practitioners, not due to their education, training and expertise with domestic violence and child abuse, but because where these issues have been raised, their reaction has been to disbelieve the alleging parent.
One barrister informed his client, who had a long history of domestic violence and child abuse against her and her children by the father that, the report writer was recommended because she was "sensible" about such issues.
This same report writer has conducted "training" for separate child representatives in Brisbane despite having minimal training, expertise or experience for domestic violence and child abuse, evident from her curriculum vitae
. It is no coincidence that in cases involving domestic violence and child abuse, this report writer has a reputation for recommending orders against protective mothers in inverse proportion to the empirical research indicators of substantiated allegations of child abuse in the family courts. This report writer has been involved in tragic cases in the Family Court but continues to write reports un-confronted.26
In the same vein, the allegations by the family of Darcey Freeman27 have raised some disturbing aspects regarding the Family Court's Chief Justice Dianna Bryant. In light of the assertion by the Chief Justice that the Freeman family did not raise safety fears during court proceedings, the theft of these documents is at best gross negligence, at worst obstruction of justice. Her dismissal under these circumstances is warranted. It is recommended that the family and the pertinent legal practitioners be approached so as to recover copies of the missing documents. All documents in the Family Court are reproduced at least in triplicate.
The Chief Justice has also much to answer to in regards to her own approach and decisions in Family Law proceedings. It has come to the attention of this writer that in 2000, she presided over a case where the father was a substantiated perpetrator of domestic violence with a documented psychiatric history. Despite the mother's ability to produce documentation for this, Justice Bryant, magistrate at that time, ordered supervised contact with the children that not much later was ordered as unsupervised. Two main outcomes resulted from her orders-
This father has since filed for contact orders for the children from jail as he serves his time. To date the mother has been assisted by pro bono counsel as they have fought to prevent the mother and children having to drive two hours each way in the event that contact with the father was ordered. The mother has informed me that preventing the contact has not been an easy task.
The question then arises that given this parent's violent and psychiatric history, why was the mother's no contact request not heeded? Is the pro-contact approach in the Family Court so entrenched that protecting children from well-documented violent and psychiatrically ill parents an impossibility? It appears from this case that these children have been exposed to this father's violence when on court mandated orders. As such, this indicates that children have not only been killed by parents when on court ordered contact, as per this list above, but also children are being harmed when on court ordered contact. This is a 'mischief' that must be addressed by parliament.
Darcey Freeman remains in this writer's mind, an avoidable death resulting because of the political and legal environment that lead to the conditions that did not afford her protection from her father. This environment did not recognize the dangers her father posed because originally, it was not intended to do so. Nevertheless, it is high time that the Family Law Act, the Family Court, the legal profession and the political servants respond to yet another child's unnecessary murder. The fears of her family were not properly given the weight that should be in the court because in their haste to appear 'father friendly' and 'socially responsive', families are pressured not to disclose their fears of domestic violence and child abuse. Instead, women are coerced by the legislation, the legal practitioners, and the court itself, to come to consent orders.
It is past time that Australia adopt the approach taken in New Zealand after the death of the Bristol children.29 By comparison, Australia's Family Law Act is poor compared to New Zealand's Care of Children's Act 2004 No 90 (as at 24 January 2009) in its recognition and precautionary approach to child protection in Family Law matters. It is of no surprise that father's rights advocates in New Zealand protest the Family Court's decisions by employing questionably abusive and at times criminal behaviour.30
If the Family Law Act, its principles and accompanying policies are not changed to meet the needs of victims of domestic violence and child abuse, it is without doubt that I will be required to continue to write after more deaths and harms to children after their parents have attended the Family Law jurisdiction. I sincerely prefer not to have to do so.31
As I have iterated in the past, children who are killed by a parent is a horrific crime- that it occurs on court orders, by consent or otherwise, it utterly unacceptable. Judges should be required to be on the cutting edge of the child protection literature to better recognize the indices of violent parents; not be in the rhetorical pockets of father's rights activists.
If the minister is mandated to make an inventory of threatened species in the environment,32 does not an inventory of threats to children in Family Law proceedings warrant legislative attention?
Yours Sincerely,
Patricia Merkin,
On behalf of National Coalition of Mothers Against CHild abuse- Nat MACH.
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Justice Must Be Seen, To Be Done.
Posted to API by catherine Mills