Opinion

Rosie Batty
Keeping children safe in the family law system

When I heard there was going to be another family law inquiry, I couldn’t believe it. After so much loss, so many hearings and so many experts warning, again and again, that the family law system is not safe for children. Instead of urgent action, we have yet another inquiry.

We have come so far. As a nation we are more able to listen to what victim-survivors of family violence are saying – but, it seems, we are also more able to forget. In one sense, we must be making progress if we are getting such pushback from the political margins. It’s hard to say though, while men continue to kill their partners in Australia at a rate of one woman a week, on average.

Progress has been slow, but I know things are moving in the right direction. The Royal Commission into Family Violence in Victoria and the record-breaking allocation of federal funding to address family violence are talked about around the world with approval.

In the private sector, many banks, insurance and utilities companies are implementing policies regarding family violence – not only for the care of their staff, but also for their customers. The superannuation industry is also trying to address problems in the system that prevent women experiencing family violence from being able to claim their fair share of superannuation entitlements after a separation.

I have worked with many of these organisations and can tell you they are determined to support victim-survivors and develop a real understanding of the dynamics of family violence and the financial stress and trauma it causes. Governments at all levels now acknowledge that we need to address family violence in its many guises. So there are challenges, but overall we are seeing a genuine commitment to making life safer for women experiencing family violence. Women are telling their stories, often at great personal risk, and they are being heard. I have a voice, I can talk about what happened to me, and to Luke – perhaps just 10 years ago that would not have been the case.

Since I started campaigning for family law reform in 2015, after Luke was killed by his own father, I have carried the burden – and privilege – of listening to many stories. The inability of the family law system to deal with family violence is a theme that has come up time and again. Were it not for the family law system, I would have hardly any victims contacting me.

Women battle a prevailing myth – which the research has proved to be false – that they lie about family violence to stop men seeing their children. This dangerous illusion serves only to push women underground as they struggle to be believed in a system that is meant to protect them and their children. It means family violence is not fully disclosed early enough in the courts. We know the courts have the power to test evidence of family violence to ensure everything is on the table, but rarely do they have the time and the resources to do this. Women are having to manage the safety risks on their own with little or no court oversight, which can mean dangerous consequences for children.

Court statistics show most fathers who have used violence are still getting time with their kids. There are exceptions, of course, but the family law system takes very seriously the rights of children to have a relationship with both parents.

A recent report from the Australian Institute of Family Studies showed only 3 per cent of court-ordered arrangements involve no contact between children and their father. In the family arrangements of the general separated population, it’s 9 per cent. But this is despite family violence being an issue in about 70 per cent of cases going through the family law courts.

Community understanding about family law – or misunderstanding – embraces the idea of a child having a right to a relationship with both parents and the parents having an entitlement to a child. This is reinforced in the language of the law about equal shared parental responsibility.

But no parent should be entitled to their child if they abandon their responsibility to keep that child safe. A parent who is violent or abusive does not make a good parent. And, ultimately, family law should be about the children. I think it’s time for a different conversation – one that is focused on the safety of children.

The failure of the system to bring perpetrators of family violence to account can lead to a misplaced sense of entitlement and often comes at the expense of children’s safety. I hear stories of fathers – imprisoned for violence against their families – who apply to have their children live with them as soon as they are released from prison. I have heard of children who were required by the court to visit their father while he was still in prison for crimes related to family violence.

We know from established research that the emotional development of children is affected by violence in the home, even if the violence is not directed towards them. We know that violence and control can continue well beyond parental separation.

Children continue to be dragged through the system while waiting for the court to make a final decision, for up to three years in some cases. During this crucial time of development, their voices are often not heard at all. We need to seriously question whether we are protecting these children. When in a child’s life do we put a stop to the harm being caused by a system that is not adequately set up to properly deal with family violence?

I know from personal experience, and from the research, that there are things that can be done now to increase the safety of children through the family law process. This is why I chose to stand with Women’s Legal Services Australia to launch their five-step Safety First in Family Law plan this week.

The reform plan has been guided by all the research and inquiries conducted over the past decade and by experts who have worked in the family law system. These experts heard from women, and from men, and, importantly, they have also taken into account the experiences of children who talked about their experiences in the system.

Without urgently needed reforms, the safety of children is still at risk and is taken for granted. This week we were reminded of what can happen to children and their mothers when unsafe contact orders are made by the court. Women such as Michelle Dorendahl, a victim-survivor, have spoken out about the devastating consequences of the system not being equipped to deal with family violence properly. Michelle’s daughter was murdered by her father on a contact visit that had been sanctioned by the court.

The Morrison government can do something now to ensure that children travelling through the family law system do not become its victims. We need to build on everything we have achieved since Luke’s death and ensure that family law does not become the turf on which petty political battles are fought. 

National Sexual Assault, Domestic and Family Violence Counselling Service 1800 737 732

This article was first published in the print edition of The Saturday Paper on Oct 26, 2019 as "Family law needs reform, not inquiry". Subscribe here.

Rosie Batty
is an anti-domestic violence campaigner and the 2015 Australian of the Year.