by Jess Hill
FIONA McCORMACK, CEO OF DOMESTIC VIOLENCE VICTORIA
‘Harry’ is nine years old. If you were to ask him what he likes, he’d probably tell you his favourite drink is milk (through a flavoured straw) and that he loves to sing songs from his favourite movies. If you were to ask him what he’s afraid of, he might tell you he’s scared of his dad. He’s not shy about it: he’s told doctors and police and psychologists that his dad has punched and slapped him, and gets really angry and swears at him, and that he never wants to see his dad again. His younger sister has said she doesn’t want to see her dad either.
Harry knows a court has ordered him to see his dad every second weekend. He feels sick every time he has to go and often tries to hide. Once he hid under his bed with his sword and shield and ‘built forts with escape routes and everything’ so his dad couldn’t get him. Another time he saw his dad coming to get him after school, and he ran, past the McDonald’s and into a stranger’s front garden, where he hid behind the flowers and used the mobile phone his mum gave him to called Triple Zero. He whispered to the operator that he was being ‘chased down’ by his dad, and that he was scared of him because he’d hurt him before. Harry did his best to remember what street he was on and how it was spelt. When a kindly policeman came on the line, Harry said he was hiding in front of a red brick house with a chimney and lots of flowers and trees in the garden. He’d come out for police, but nobody else. The policeman asked if he could see a police car on the street. Harry’s voice brightened. ‘I can hear them!’
The next time Harry saw the police was four months later, and they were chasing him down a busy Melbourne street. Amateur video shows Harry running jaggedly, the fluoro yellow soles of his sneakers slapping the wet pavement as he dodges passers-by. He’s fast and light, with the stop-and-go footwork of a midfielder. He makes a sharp right-hand turn towards a building, runs up a set of steps and slows, seeming unsure. He yanks himself away from a man who’s grabbed his arm; Harry’s uncle, running alongside the pursuing police, tells the man to leave his nephew alone. Harry runs through the sliding doors of the entranceway and over the gleaming tiles, weaving deftly around a courier before darting past the lifts to the end of the foyer, where he hits a dead end. He turns, clutching his arm and breathing heavily, and stares defiantly at his uncle and a policewoman as they stride towards him. Then the video cuts out.
Police were chasing Harry on that cold Melbourne morning in 2016 because a judge had told them to. When Harry had stubbornly refused to enter the courthouse with his mother and sister, Harry’s mother says the judge announced he was not about to be held to ransom by a child and ordered the police to deliver Harry by force.
Harry was afraid because he suspected the judge would order him and his sister to live with his father, ‘Justin’, who had applied for custody. According to his father’s affidavit, Harry’s mother, ‘Ginger’, was the one making Harry afraid of him. In his application for sole custody, he added a striking request: that the kids have no contact whatsoever with their mother for six months. After that, he’d be prepared to let them spend limited time with her – as long as it was professionally supervised.
Harry’s mother was also fighting for sole custody. Both kids had consistently said – to her, to family and friends, to doctors, the police and mental health professionals – that they were afraid of their father and they did not want to see him.
There had been fear in the marriage, too – that’s why Ginger left. ‘It was all about control,’ she says. Justin’s abuse bore many of the hallmarks of coercive control: he controlled the finances and made her ask for money; he made her give up her job to support his business; he created an atmosphere of constant name-calling, in private and in public; he was aggressive towards her dog; and he made terrifying asides, like ‘in my job I could hide a dead body’. Ginger stayed in this atmosphere of fear and threat because, after Harry was born, Justin agreed to take anger management classes. But when, during her second pregnancy, he viciously abused her in front of Harry, she decided to leave. ‘I was sick of being controlled, but also, I didn’t know where it was going to go. Was he going to snap one day?’ After she left, Ginger was horrified to find her ex-husband treating Harry the same way he used to treat her.
I met Ginger at the National Press Club in 2016, where Rosie Batty was calling for urgent reforms to the family law system. She looked drawn and pale, as though every last tear had been wrung out of her. Her final orders would be handed down that Friday, and she was terrified of what might happen. As we were leaving, Ginger handed me a stack of documents and asked me to ‘please read them’. On top of the pile was a letter in a child’s handwriting. ‘Dear the corte,’ it read, ‘I do not want to go to dads place why are you not doing anything I DONT WANT TO GO TO DAD!!! He swears at me he hit me he yells at me like I am going to explod. I have told lots of people why are they not listening I am not happy at dads I am scared at dads I get torchered at dad I do not want to go. Why are you making me go? Wold you like to live there?’ It was signed ‘Harry’.
That Friday outside the Federal Circuit Court in Melbourne, nine-year-old Harry was brought into the court by four police officers. He was persuaded to go with them when they promised they were there to help. When they got inside, Harry realised the help they’d promised was not for him – it was for the court. To get him into the childcare room, police had to pick him up kicking and screaming and carry him in by force.
A family report writer for the court had interviewed the family and assessed the allegations. Though she described the father as a ‘physically imposing’ figure, she believed his story: that Harry had been taught to fear him by his mother.
Upstairs, Judge Riethmuller handed down his final orders. He dismissed Harry’s disclosures of physical and verbal abuse – despite the evidence provided by police, Harry’s doctor, his school counsellor, and two Triple Zero calls Harry had made about his father. The matter was ‘plainly urgent’, said Riethmuller: though the children might be ‘devastated’ by a move to their father, whom they barely knew, leaving them with their mother ‘would effectively remove the father from their lives’.1 He granted sole custody to the father and, as Justin requested, prohibited Ginger from communicating in any way with her children for six months (aside from some supervised time on her daughter’s birthday and on Christmas Day). After that, she could see them for two hours every weekend, which would have to be professionally supervised for six weeks, at her expense.
Ginger called me from the court that morning. ‘They’ve taken the children,’ she said, sobbing. ‘I never believed this could actually happen … We’re going up in the lift to say goodbye to them now.’
When Ginger and her parents approached the childcare room, they were intercepted by the family report writer and the Independent Children’s Lawyer (ICL) – the person appointed by the court to represent the best interests of the children. Both had argued in favour of the father’s application for sole custody. Blocking Ginger and her parents from entering the room, they said Harry was still very distressed and it wasn’t in his best interest for them to say goodbye. All Ginger could think to say was, ‘You people are evil, plain evil.’ When they were instructed to leave, Ginger walked around the waiting room in disbelief, yelling out, ‘Goodbye, Harry, goodbye, Mia!’
*
When women leave the underground, they choose to leave an abusive relationship. But the choice to end the abuse is not in their hands. If the perpetrator is hellbent on maintaining control, they don’t need the victim in physical proximity: they can control them through the system. The courts, child support, Centrelink, a rental tribunal – these can all become another weapon in their armory. For women with children, however, no system is as punishing – or as dangerous – as the family law system.
In the years I’ve spent investigating family law, I’ve heard countless stories like Harry and Ginger’s. Mother alleges abuse, father claims she’s alienated the children, court believes the father: mother l
oses the children. Survivors say that entering the family law system is like walking ‘through the looking glass’ and entering an alternate reality where everything is upside down. In this parallel universe, the survivor is no longer a victim who needs help to protect her children; she is the one her children need to be protected from. When I first started hearing these stories, it took me a long time – and a lot of research – to accept that they were part of a pattern. But it soon became clear that these weren’t just the experiences of an unlucky few. Reports dating back almost twenty years2 show that the family law system has repeatedly failed to detect and comprehend domestic abuse and the impact it has on children. In these studies, countless victims (mostly mothers and children) speak of being disbelieved and belittled in the family law system – even by their own lawyers. Time and again, the same narrative repeats: despite repeated disclosures of abuse, children are ordered to have contact or even live with their alleged abuser.
How can this be happening?
Sometimes it has to do with how some survivors present in court. When survivors are fighting for custody of their children, they are already at a significant disadvantage. After enduring years of trauma and abuse, they may be disoriented and anxious. They are terrified that their children will be ordered to see or live with someone they regard as dangerous. When they’re asked to recall details of the abuse – sometimes years after it happened – their telling of it may sound chaotic, because trauma typically disrupts the way we process memory. Tragically, this can undermine their credibility as witnesses and even make them look like unfit parents. As Professor Kelsey Hegarty explains, in contrast to victims, ‘the father [perpetrator] may present as calm and rational … in these cases the father’s version of events is more likely to be believed, and he will likely present as the better parent’.3 Even if a survivor presents well, their evidence can sound implausible because, as we’ve seen, many of the signature traits of domestic abuse and child abuse are counterintuitive. It doesn’t make sense that someone who seems like a hard-working family man could go home and play sadistic mind games with his wife and children. It doesn’t make sense that a victim may return to her abuser again and again. It doesn’t make sense that, having escaped, a victim may go out of their way to encourage the abuser’s relationship with their child, only to change their mind about this contact later. Nor is it ‘logical’ that child victims may still love their abuser and show no fear in their presence. Or that a child may disclose abuse to one person, then deny it to another. None of this makes sense – unless you understand the dynamics of domestic abuse.
Of course, even its most ardent critics don’t think the family law system has it easy. Custody cases can be wickedly complex, especially when one or both parents is alleging abuse. These are not straightforward decisions, and they require great skill and understanding to get right.
Such skill and understanding, however, is dangerously inconsistent across Australia’s family law system. Domestic abuse is core business for the family law courts – 54 per cent of cases involve allegations of physical violence, and 85 per cent allege emotional abuse.4 And yet, there’s little to no mandated training on domestic abuse for family law judges, lawyers or judicial staff.5 Today, despite numerous attempts to improve the system, mothers who seek no-contact orders on the grounds of abuse (known as ‘no-contact mums’) are still routinely warned by their lawyers that they risk being viewed as a hostile parent, which could lead to them losing care of their child altogether. If the perpetrator has a record of violent offending, that may persuade the court to prohibit contact. But perpetrators aren’t usually that obvious: as we’ve seen, they often present as decent, high-functioning people.
Until the mid-1990s, it was ‘extremely rare’ for a mother to lose care of her children for alleging child sexual abuse, for example, says Professor Patrick Parkinson, former chair of the Family Law Council, an advisory body to the federal attorney-general. When I interviewed him in 2015, he told me that this result was becoming more common. ‘I’ve noticed more and more cases where the court’s been persuaded, usually by an expert report writer, that the abuse hasn’t happened, they’ve switched the care from the mother to the father, and have cut off all contact with the mother, which is the most draconian remedy imaginable,’ he said. ‘I’m seriously worried about this trend … I think it is based on a certainty about what has occurred which is not [always] justified by a serious examination of the facts.’ This dynamic is so entrenched, said Parkinson, that ‘some lawyers now tell their clients, “If you make these allegations, you risk losing the care of your child.”’
All of this runs counter to the popular belief that it is fathers who are hard done by in the family law system, not mothers. This is a powerful narrative that fathers’ rights groups have been cultivating for decades.* Stories about distressed fathers who’ve lost access to their children are legion, like that of the aggrieved dad who used ropes to scale the Sydney Harbour Bridge before dawn, and unfurled two pink-and-white banners that read ‘plz help my kids’ and ‘kids first’. Typically, stories like this have two villains: the Family Court, supposedly in the thrall of the feminist lobby, and vindictive mothers, who will apparently do and say anything to stop a father seeing his children. So persuasive is this narrative that, according to a nationwide survey in 2017, 43 per cent of Australians agreed that women going through custody battles ‘often make up or exaggerate claims of domestic abuse in order to improve their case’.6 Before I started researching the family law system, I thought that too.
However, research shows that false allegations in custody battles are at least as likely – if not more likely – to be made by fathers. One of the most thorough – and thus most cited – studies to date comes out of Canada.7 In 1998, a Canadian parliamentary committee heard testimony from men’s groups and various professionals claiming abuse allegations were the ‘weapon of choice’ for scorned mothers and that ‘only 15 per cent of allegations made in divorce cases were likely true’.8 That same year, a nationwide study told a different story. In a review of thousands of child protection cases, it was found that fabricated abuse allegations were rare (around 4 per cent). In custody disputes, that rate rose to 12 per cent (with ‘neglect’ the most common false report). But within that 12 per cent, it was non-custodial parents (typically fathers) who made them most frequently (43 per cent). Neighbours and relatives were next in line (19 per cent), and then custodial parents, who were usually mothers (14 per cent). False allegations from a child were almost unheard of (2 per cent). ‘This indicates,’ the authors concluded, ‘that the problem of deliberate fabrication by noncustodial parents (largely fathers) is more prevalent than deliberate fabrications of abuse by custodial parents (largely mothers) and their children.’
Within Australia’s Family Court, opinions on false allegations vary wildly. In 2013, retiring judge David Collier told The Sydney Morning Herald that mothers were increasingly fabricating child sexual-abuse allegations to stop fathers seeing their children. ‘I’m satisfied that a number of people who have appeared before me have known that is one of the ways of completely shutting [their husband] out of the child’s life.’9 Privately, another retired Family Court justice told me Collier’s comments were ‘unfortunate’, and another said that in his experience it was ‘uncommon’ for parents to raise false abuse allegations.
That’s not to say that some fathers aren’t done over in the courts and prevented from seeing their children unfairly. There are desperately sad stories of fathers who, in the face of a determined and manipulative partner, have had to forfeit their claim to custody. Some fathers have also tried and failed to protect their children from an abusive mother, although these stories are far less common.
When I first started investigating this in 2015, there was very little media attention on what was happening to survivors and their children in the family law system. Since then, there has been a concerted push for a royal commission. One person leading this campaign, the well-known
child advocacy campaigner Hetty Johnston, is running for the federal Senate so she can push for a royal commission from inside the parliament. She believes it is urgent: the family law system, she says, is ‘the most dangerous institution for children in this country’.
*
It wasn’t always this way. When the Family Court was established by the Whitlam government in 1975, it was seen as a big win for the women’s liberation movement (which had just celebrated the opening of Elsie’s, Australia’s first domestic violence refuge). The Family Law Act 1975 enabled victims to get a no-fault divorce from their husbands affordably and quickly, away from the glare of the tabloid press. As more women left, demand for women’s shelters spiked: by 1979, there were more than 100 government-funded refuges. For its decisions on child custody, the new family law system settled on a guiding principle: custody orders should be made with the child’s best interests at heart.
But right from the beginning, father’s rights groups – joined by men who were being left by their wives in droves – decried the Family Court for emboldening spiteful wives and being biased against men. As their claims grew louder, the new court decided to investigate them. In 1979, from a national sample of 430 cases, the Family Court found that wives had retained custody in 78 per cent of cases, but that 424 of the 430 cases were undefended, and determined by consent of both parents. In other words, fathers had willingly forfeited custody.10 Furthermore, studies conducted in Australia and overseas showed that when a custody dispute was heard by a judge, the likelihood of the father retaining custody significantly increased.11
Despite these clear facts, fathers’ groups persisted with the line that mothers always won. Tensions literally exploded in the early 1980s, when the Family Court was rocked by a shocking series of bombings and assassinations. This campaign of terror lasted five years and claimed four lives, including Justice David Opas, who was shot dead outside his Woollahra home in 1980, and Justice Ray Watson’s wife, Pearl, who died in a bomb attack on their home in 1984, which also left Justice Watson injured. Justice Richard Gee was also injured in a bomb attack on his home. Even the Parramatta Family Court was bombed – the only time a court has ever been attacked in Australia. The prime suspect was Leonard Warwick, a former soldier and fireman who had beaten his wife for years and, when she left him, turned to fighting her for custody of their daughter. Warwick would remain on the run until 2015, when police finally charged him with these attacks and several others. Each of the targets had been involved in Warwick’s failed custody attempts.