Family Law in the Context of Violence and Abuse
Family Law in Australia
What about the Children?
The Protective Parents
Presumption of Joint Parental Responsibility
The Fiction of Parental Alienation Syndrome

Family Law in the Context of Violence and Abuse
VOCAL is aware that many relationships end because of violence and abuse.  Both men and women can be violent, abusive, use drugs, and may make poor parents. Both men and women can abuse and harm children.
Our emphasis here is not about male-female dominance, but safety and mental and physical health for men and women, especially children. 
People in relationships where there is violence often stay with the abuser 'for the sake of the children'. Relationships may not end until they realise the child is being harmed. When the child becomes a target, or the child discloses abuse - especially sexual abuse, the relationship often ends.  
Women who allege the father has perpetrated against his children are often disbelieved in the absence of 'proof'. Abuser's rarely abuse in public. And you have already read how stacked against the victim the criminal court is - haven't you?

Family Law in Australia
Australian cases are often very difficult because of the provisions of Section 121 of the Family Law Act, which makes disclosure an offence. Further silencing of victims!
No one, particularly VOCAL, would disagree with the view that the Family Court is broken and needs fixing. It needs open - not biased - understanding of what is really going on.
Our clients and court support workers consistently report the ignorance and apparent bias often shown by so called ‘experts’ in cases where domestic violence and child abuse feature. 
Women, who make allegations of violence or abuse towards themselves or their children, are often accused of “Parental Alienation”, mental health problems, or outright deceit. Judges are prone to say, with an air of genuine mystery ‘Why would he give such evidence if it were not true?’  I’d say two reasons – first, to win, and second because there is no penalty for lying. If I can figure it out, why can’t they?
Family  Law has shown itself to be less than accurate, and probably negligent when it comes to failing to protect the safety of children, often even giving access or custody to people the children say have harmed them. Governments of all persuasions 'leave it to someone else' - even as recently as August 2005 the federal government is refusing to read the research with an open mind, and saying ridiculous things like 'we rely on the state child protection agencies' when surely they realise that a child has to be in imminent danger of life threatening abuse to get intervention.
We have noticed that where the children are made to live with the abusive parent by court order, the pain of the non-abusive parent and family can be unbearable – basically because we believed, somewhat naively, that a child has the right to live without abuse and that Australian State and Federal Governments have strategies that support that view both here and overseas. 
But we have found out, by experience, that we were quite wrong
In the future, these damaged children may sue. It is also too commonly found that state based processes and services are ignored, trivialised and discounted by practitioners associated and in the Family court system. 

What about the Children?
In 2006 we continue to generally ignore the high cost and importance of child rearing in this country (and of Australian children living overseas) and that translates into the mess society has become and the constant validation of the abusers in the family by many societal systems, especially our courts.  
We have to start listening to the children. Consider this example:
'With all the Fatherhood debate raging at the moment, I want to say, as a child of a violent relationship, it’s not contact that makes a father.  It’s the ability to look at what is good for the child, what nurtures it.  It’s not saying things that are meant to hurt, and it’s not being blaming, disloyal and cruel about the child’s mother.  It’s realising that children grow and change and taking part in assisting the best outcome for the child, not insisting on ‘my turn’. It is not about punishing the child as the only way left to harm the mother. We just want to be loved and accepted by our own parents - is that so hard?
I never had to undergo physical or sexual abuse from my father.  God help the children who do. I nearly killed myself because I wasn’t good enough for my own father. I hope this helps explain what it’s like to be a child where an abuser is a parent.  Courts are all that kids have to protect them.  Where there is violence by one of the parents, there’s a very good chance the children will live in fear, and, like me, struggle to be ‘a good enough person’.  Many don't make it.  There are many drugs, alcohol, bad relationships because of bad fathers.’
Thanks, Kate 2004

The Protective Parents
Few protective parents have any idea what awaits them if they pursue their naïve ideological position of an expectation of society’s support for safety  – the ‘systems’, the exorbitant costs; the derision, the punishment, the accusations, the lack of real concern for them and their children.
These people I call ‘protective parents’ are the parents at risk – the ones Family Report Writers might call ‘obsessive’ rather than committed,  alienating rather than protective. They are the safe parent who tells the truth and is genuinely afraid for their child’s wellbeing and safety, and yet are regarded as manipulative and malicious. The child, who speaks of violence or abuse, is assessed as having been ‘manipulated and taught to lie’ by the ‘alienating’ parent. Such parents are labelled as difficult or paranoid because they can’t in any conscience let their child be harmed again.  
At VOCAL, female protective parents in this position outweigh male protective parents a hundred fold. I think that probably reflects the way things are in society. In terms of female to male violence in relationships, there are very few men who come to us with broken bones and faces, (but were nevertheless subject to control and manipulation by women) but the stream of seriously damaged women and children never ceases.

Presumption of Joint Parental Responsibility
The amendments to the Family Law Act emphasize ‘equal shared parental responsibility’. Much should be made of the term ‘responsibility’ and heavy weight placed against the parent who harms the child through neglect, abuse of any kind, be it violence, financial and emotional deprivation, or harm or omission of any kind, including interfering with the rights of the ex partner to live without fear and interference. Things like promoting sibling rivalry, encouraging violence or criminal activity, denigrating the other parent, threatening and silencing the child are all abusive strategies and must be accountable.  
Courts need to have regard to the overall well-being of the child. Pity the child at school whose parent is violent and abusive and ask why the child is not learning or complying with standards. But do not overlook the almost perfect child, the one too scared to make a mistake, and the one who runs, smiling to sit on the supposedly violent parent’s lap. 
Children learn very easily to expect punishment for non compliance. That’s why they are often seen by psychologists to be pro a supposedly cruel parent, and often naughtier with the protective parent, because they can safely do so. Sadly, too many experts are looking for the wrong signs and miss the obvious signs and symptoms of abuse, and then denigrate the safe parent’s parenting skills because the child behaves ‘better’ with the other. 
The amendments to the Family Law Act emphasize the ‘right’ of the child to know both parents, and the ‘benefit’ to the child of a meaningful relationship with both parents. Where is the proviso that says ‘so long as it is safe for the child’? 

There is no ‘right’ for a child to decide they do not want to know one or both of their parents. It may be impossible for a child to ‘have a meaningful relationship’ with a violent, drunk, mentally ill, drug addict, criminal, terrorist, abusive or otherwise unsafe parent. 
Yet the way to ‘prove’ the unsafe nature of such a relationship reverts to the protective person, a person who will be seen to be manipulative and oppositional to the other parent, often in increased danger, no matter what the dangerous parent may have actually done and may be continuing to do. Instead, the system threatens to punish (usually) the woman who can’t prove claimed violence.  
Proof – that mysterious issue ‘evidence’ is a topic constantly being reviewed at law.  May I point out the obvious?  A slap is violence and it may leave a mark of proof, but a loaded gun held in your face, or inside your private part, does not.   The slap may well be done in public, but I’ll bet the later is not. Proof; that’s not something a victim has any control over, but an accused has plenty!
The Federal Judiciary remains apparently blindly confident that the criminal jurisdictions serve us well.  For example, Child Sex Assault cases – the hardest types of cases for the child witness, have an atrocious rate of successful prosecutions. Either judges prefer the view that fathers (and some mothers) do not sexually abuse their own, or they still believe that incest reflects ‘dysfunctional families’ rather than criminal assault, or they just can’t see what’s wrong with it (e.g. man-boy love associations). 

The Fiction of Parental Alienation Syndrome
The issue of parental alienation must be addressed. The source of the syndrome was a pro-paedophile doctor; Dr Gardner. He decided that there was a syndrome where mothers determinedly set about denigrating and falsely accusing the father of their children for the purpose of winning custody in the Family Court.    He felt that children, who report that their fathers’ sexually or otherwise abused them, should be beaten, and mothers who listen to their children should be jailed. Essentially he decided that alienating a father was such a crime that the children should go to the father and abuse allegations should be ignored. His ideas never achieved academic peer support, and have been roundly rejected by the scientific community.
And yet, the disturbing truth is that his ideas were taken up by many so called child experts, m any of whom make reports for the Family Court of Australia.

Criticisms of Parental Alienation Syndrome (PAS):
• PAS is not in the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders IV (DSM IV) or earlier versions.
• Dr Gardner’s work has never been published in a peer-reviewed journal and his books are self-published.
• Not a single study has confirmed that mental health professionals can reliably diagnose PAS.
• The Diagnostic criteria suggested by Dr Gardner are similar to those for his now widely discredited test for fabricating allegations of sexual abuse – the Sex Abuse Legitimacy Scale (SAL).
• The fundamental assumption at the heart of PAS - i.e. that children frequently lie about sexual abuse - is contradicted by all the major research in the area.
• The idea that false allegations of child sexual abuse, increase in custodial litigation has been contradicted by research conducted internationally.
• The PAS theory is blatantly sexist and targeted against mothers.
• PAS is not applicable if there has been actual abuse i.e. if the accusations are truthful (which studies suggest they generally are).
• Dr Gardner’s suggested remedy of placing the child with the alienated parent risks handing an abused child over to an abuser while removing the protection of the other parent.
• Several American Courts have rejected PAS as scientifically baseless and disallowed its admission as evidence.
The sexual abuse of children remains a crime in every state in this country.
Gardner committed suicide in a most gruesome manner, a discredited man who made a lot of money out of his anti mother strategies. Yet pro PAS Report Writers still influence Family Court decisions to this day. In fact, just last year I attended a session at the Sydney Registry. The sessions were held because, as clearly stated by Court staff session leaders ‘the Family Court of has realized it was not very good at Domestic Violence’. 
A question was asked of the Senior Mediator of the Court about PAS and its use in cases before the Family Court of Australia. This important man explained that he himself had changed his mind now, and no longer used it  but that there were still many Report Writers using PAS and he admitted ‘It would take quite a while for that influence to be completely gone!’ 
Bizarre? But true! I was the one who asked the question.
Because of PAS, when Child Representatives pursue a pro-contact agenda, they tend to offer the mother a choice between two options: allow the abuse to continue or lose the children permanently. A woman who cannot agree to the former may well lose her rights to see her children at all! I place most Children’s Representatives in the Dodgy Box – it is rare to see and hear one come out in defence of the child’s right to be safe.
If you have an interest in the well-being of children any right thinking person should write to their Federal politicians and demand three things:
• That the courts err on the side of caution and have an ABSOLUTE presumption AGAINST access to allegedly violent parents on a balance of probabilities test.
• The children's voices must be heard - not muffled or misrepresented by Separate Child's Representatives who often have not even made contact with their “client”.
• While divorce can be on a “no fault” basis, the care of children must take into account histories of violence, drug abuse, criminal activities, and issues that have contributed to the union's end.
For further information see Complaints, Lobbying, & Political Action.