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Insight
Tuesday 15 November 2005
Family ties: changes to the Family Court and the establishment of mediation centres
Early next year the Government is planning the biggest
shake-up to family law in 30 years. The idea is to keep people out of
the Family Courts by insisting divorcing couples go through mediation
first. There's also a plan to give both parents equal rights about key
decisions concerning their children regardless of which parent the child
lives with. The changes have been welcomed by men's groups who claim
the Federal Court has been biased against fathers but others claim the
proposals are unfair and put some children at risk of having to deal
with abusive or violent fathers. Tonight Insight will talk about the
changes with representatives of men's and women's groups, mums and dads,
and their sons and daughters.
JENNY BROCKIE: Welcome all of you to Insight tonight. Philip
Ruddock, I'd like to start with you, why is there any need for change
to our family laws?
PHILIP RUDDOCK, ATTORNEY-GENERAL: Well, we had some very significant changes back in 1975 when the Family Law Act came in and it was designed then to make the system less adversarial. We had no-fault divorce and so people were meant to put aside the issues that might have led to a breakdown where one blamed the other and resolved the issues in a less adversarial way. It hasn't worked out that way.
JENNY BROCKIE: Why hasn't it worked out?
PHILIP RUDDOCK: Well in part I think because people still want to have a go at each other. They feel very aggrieved and they think the process might achieve that and sometimes they're encouraged to think that. Sometimes members of my own profession, the legal profession, see themselves as having a role in an adversarial system.
JENNY BROCKIE: They're very good at that, lawyers.
PHILIP RUDDOCK: They see themselves as having a role. I think the role has to change and part of what we're seeking to do is to encourage people to work these issues through if they can. Now I want to make it very clear I am not about, in any way, exposing children to danger. If violence is involved, that is a difficult issue it has to be clearly identified and dealt with. But children do have a right to know both of their parents and I come across many adults who, because of the way in which family breakdown has been worked through, have never been able to know one of their parents and feel very aggrieved at that in the same way that separated children, indigenous children felt aggrieved that they'd not been able to know their parents, the same way that people who have been the subject of adoption feel they have never been able to know their parent and it is something we have to grapple with and recognise that children have an entitlement to know both parents, all other things being equal.
JENNY BROCKIE: Dianne Gibson, you're chief mediator with the Family Court, do you think change is needed?
DIANNE GIBSON, PRINCIPAL MEDIATOR FAMILY COURT: The Family Court welcomes the change with the family relationship centres because we welcome any opportunity for parents to be able to sit down and try and sort this out before they get to the Family Court.
JENNY BROCKIE: So these are the mediation centres the Government's setting up across the country, 65 of them I think.
DIANNE GIBSON: Yes, that's right. So, we're really looking forward to being able to work more with them because the Family Court has a very long-standing history, the 30 years history of working with families in a privileged confidential mediation setting and we know that's very successful and we're hoping it will be even more successful away from the court.
JENNY BROCKIE: So you're happy with all the changes?
DIANNE GIBSON: I think we still have to see how some of those changes will impact on families, but we are taking it as an opportunity to rethink what we're doing in the Family Court with child dispute services, focusing more on children and taking a less adversarial approach right through to trial process.
JENNY BROCKIE: We’ll get back to some of those things that you were a little tentative about a bit later on. But Tanya Plibersek, you're not happy with a lot of these changes, why?
TANYA PLIBERSEK, SHADOW MINISTER, CHILDCARE YOUTH AND WOMEN: Well, we have concerns about some of the changes. I think the underlying theme of this legislation is the thing that prevents children from having relationships with non-custodial parents, you know, wicked custodial parents who are trying, you know, to wreck their ex-partner's lives and in many cases the reality is quite different. I hear story after story of the custodial parent getting the kids ready for the next access visit and two hours later they're still waiting for the non-custodial parent to turn up. There are sanctions in this legislation against custodial parents who don't meet their end of the bargain, but there's nothing in this legislation that holds non-custodial parents to account.
JENNY BROCKIE: What do you think is driving the changes?
TANYA PLIBERSEK: Oh, I think it's pretty clear that there's been a very well organised and effective lobbying exercise by aggrieved non-custodial parents groups that are driving these changes and the reality is that custodial parents don't have that sort of time. They're picking the kids...
JENNY BROCKIE: So men, is that code for men, men's groups?
TANYA PLIBERSEK: No, it's not. I think there are men and women in both groups but what we see are parents who have responsibility for kids, taking them to school, picking them up from school, getting the dinner ready, getting them into the bath, getting them into bed, supervising homework, at the end of the day they're not sitting on their home computer writing emails to Philip Ruddock. They're actually looking after their kids.
JENNY BROCKIE: Ed, what do you think, are you happy with what the Government's doing and what do you think of what Tanya was saying?
EDWARD DABROWSKI, SHARED PARENTING COUNCIL: I think it's a courageous move on behalf of this Government and it started with John Howard's initiative. We haven't had that before. We haven't had such a concerted effort to reform family law. So we take our hats off to the Government for doing that. I think you have to look at children and their relationship with their parents. Children love their mother and father equally and they deserve a relationship that is equal or substantially equal with both their mother and their father.
JENNY BROCKIE: So you think it's been biased too much against men?
EDWARD DABROWSKI: Well, we've had a bottom-up approach in the family law system where the court has set in place this template of 80/20 residency and the custodial parent, the non-custodial parent. I mean isn't the language awful to be labelling parents as non-custodial parents or non-contact parents, and that's been the template and that was recognised and we tried to remove - reduce that 80/20 tension and bring things more to the middle, towards the 50/50 ground where both parents can play an equal part in their child's lives.
JENNY BROCKIE: Michael Flood, what do you think?
DR MICHAEL FLOOD, LA TROBE UNIVERSITY: Look, I suppose, I think it's more complicated than that, that certainly everyone agrees. I think that, parents should have shared responsibility for children but beyond that, there's certainly been a push for a kind of 50/50 presumption, that children should spend one week with their mother, one week with their father, that should be the starting point of any decision about children's residence. We in fact know from the research and from listening to children that that doesn't work for all families. It may not be in children's best interests and certainly where there's violence or abuse that's a very dangerous place to start. So it seems to me that in fact recent government policies in these proposals in fact have embodied some of the dangerous assumptions offered by some fathers' rights groups, that a violent father is better than no father at all, that children's and fathers' interests are necessarily the same and it seems to me, we all support fathers' positive involvement in children's lives but if we are serious about tackling fathers' lack of involvement in children's lives we actually shouldn't be talking about family law at all. We should be talking about industrial relations, we should be talking about the very serious practical and cultural obstacles to fathers' involvement with children before separation because that, above all, not family law, not malicious mothers is what keeps fathers out of children's lives after separation.
JENNY BROCKIE: Philip Ruddock, the proposed legislation gives non-residential parents, which is often men, a much bigger say in their children's lives, things like where they go to school, what religion they're taught, what name they go by and importantly where they live. Why that change? And why are you giving the non-residential parents those rights, more rights to have a say in those decisions?
PHILIP RUDDOCK: Well, it seems to me the starting point is that children come out of a relationship and there are two parties to the relationship and parents are expected to make decisions about a child's future and they do in a family situation. Well it seems to me when a family is separating, the starting point ought to be that both parents are going to continue to have that level of engagement in making important decisions.
JENNY BROCKIE: And how will that work in practical terms? How will that be implemented in a legislative way?
PHILIP RUDDOCK: Well, the legislation is designed to ensure that the way in which these matters are resolved, if there has to be an adjudication, will reflect that. But in terms of where it will work out practically for most people is when they sit down together, hopefully in a family relationship centre or in a like environment, and come to a sensible agreement which meets both their interests. I don't disagree with some of the points that have been made that family situations will often dictate that 50/50 direct sharing of time between a father and a mother is not the best outcome and people will recognise that themselves. I mean, I sat down and watched a mediation in WA where a lady, who had the children with her, had a husband who was in fact a seafarer and he was spending very large periods of his time away. Well, you know, 50/50 sharing wasn't going to be possible but when he's back from the sea a larger level of engagement ought to be possible and that was something they were being encouraged to work through.
JENNY BROCKIE: Tanya what's wrong with that?
TANYA PLIBERSEK: Well, look, 50/50 may work in some families, there's nothing wrong with people sharing time equally where it works and I've got to say that the research I've shown says that 40% of mothers want fathers to spend more time with their children. So I think that there is a desire in most families where, you know, relationships are relatively good for parents to have that degree of involvement with their kids' lives. I think what this doesn't recognise is that in a lot of cases society has been set up so that fathers are excluded from children's lives until the day of the divorce, and to say that suddenly from the day of the divorce they're going to do 50% of the parenting is unreasonable.
JENNY BROCKIE: What do other people think about this idea of putting more of an em phasis on this idea of 50/50? Is it a good idea? Joanna?
JOANNA FLETCHER, WOMEN’S LEGAL SERVICE AUSTRALIA: The law already supports shared parenting as things stand now and it would be more often reflected in decisions after families have separated if it occurred beforehand in the way that Tanya and Michael have both highlighted.
JENNY BROCKIE: Do other people have a view on this question? Yes.
DEBBIE MORTON, LAWYER: What Ed had to say about this supposed 80/20 arrangement is just wrong. I mean the Family Court doesn't have a view as to how that should be. And in your ordinary average house-and-garden marriage where mum, dad, couple of kids, dad's gone to work and maybe even worked two jobs to earn a living, which has meant he's spent less time with the kids, mum's been the one at home, done the hard yards, ferried the kids around to and from school, when the parties separate, it's just a natural progression that the kids will stay with mum during that same type of situation so that she'll continue to do the hard yards and all we're left with in terms of quality time are weekends. So they give one to mum, one to dad. It's not about saying to dads, you only get 20% of time, and in my experience where dads have pre-separation had a larger involvement with their children, then the court will encourage that post separation.
JENNY BROCKIE: And what's your experience?
DEBBIE MORTON: I am a family lawyer, I'm an accredited specialist in family law, this is all I do. And, you know, that's just not the way that Ed said. It's just not the way the court deals with it.
JENNY BROCKI E: Bruce at the moment, what's the most common scenario with sharing children, after a split? What happens?
BRUCE SMYTH, AUSTRALIAN INSTITUTE OF FAMILY STUDIES: The latest data suggests that one in three children, there's 1.1 million children under 18 with a parent living elsewhere because of separation or divorce typically. But one in three, stay with their dad every second weekend or each Friday and Saturday night. One in four, have little or no contact with their dad. Around 10% to 15% have holiday only contact. 16% day time only contact, and the small select group, 6%, who have shared care or near equal care of children.
JENNY BROCKIE: And do you think equal care's desirable, more desirable?
BRUCE SMYTH: Well the thing about equal care is that you're focusing or parents are being focused on time as a number and what the latest data suggest is what's important is the fluid meaningful experience with children rather than time as a number, so time as an experience that helps for a meaningful quality relationship.
JENNY BROCKIE: So it's the relationship that matters regardless of the amount of time.
BRUCE SMYTH: Absolutely.
JENNY BROCKIE: What do some of the young people here think about that? I'm interested in what people think about 50/50. Alexandra, what would you think about that, the idea of shared parenting?
ALEXANDRA ROSE: Well I'm one of the children they were talking about before where my mum decided to move country and my father didn't have much choice in it at all. And at the time growing up it wasn't a big deal for any of us, who quite enjoyed the excitement of coming to Australia and living here, and we had access - four times a year we had to fly back to New Zealand. So, you know, that was an adventure, we enjoyed it. But now the older I get I can really see how hard that was on my dad. He had no choice, there were four of us taken away to another country. I can really appreciate - he didn't get angry about it at all, I never felt that growing up as a child. But I can I feel some sympathy towards him for that.
JENNY BROCKIE: Do you feel you missed out by not seeing more of him?
ALEXANDRA ROSE: No, because the quality, as you just said that then, it's not about time, it's the about the relationship we had. And we came up with really inventive ways of keeping in contact, you know, sending tapes of our own voices over and now we know the Internet and it's really about the quality, not the quantity, I think.
JENNY BROCKIE: Laura, what about you, what do you think?
LAURA GRANT: Well, I've lived with my dad since my mum left and didn't really know him before mum left, just due to the family dynamic and the quality of our relationship is just amazing now, both of us know our father so much better than we did and, you know, we don't spend as much time with mum anymore but still the quality of that relationship's there. It's about time, definitely.
JENNY BROCKIE: It's about time. So you think the fact that you spent...
LAURA GRANT: It's about time with dad, it's been about time with mum, it's been about quality, I think, since the situation started.
JENNY BROCKIE: So how do you think you would have felt if an arrangement that necessitated you spending more time with your mum had happened?
LAURA GRANT: It wouldn't have worked, I think. I think both of us could have ended up being quite bitter about having to be at one house one week and then having to be at another house another week, because you know, we were teenagers when it happened and could sort of see the situation from a different perspective rather than being, you know, 6 and 7 when it happened. We were teenagers.
JENNY BROCKIE: Tatyana, what about you, what do you think?
TATYANA BERNARD: Well ideally I think it would be nice to share your time with your dad and - your mother and your father, but the fact is you want to be at one home for the percentage of your time, and if you're always travelling about you don't feel grounded or rooted in your community and I think that's the main problem. Like I don't mind spending equal time with both my parents, but I'd like to be in one place, I don't like having half a room here and half a room there and every time I go to one parent's house I have to pack a suitcase kind of thing. It's disturbing. Not disturbing personally but...
JENNY BROCKIE: Ed, yes.
EDWARD DABROWSKI: Jenny, one of sad losses of divorce is that it creates inconvenience. So it is inconvenient to travel to mum's house, back to dad's house and back and forth. But it's far less inconvenience than the loss of a pare nt.
JENNY BROCKIE: But some of these kids are saying that they know what they want. That might be what you want as a dad, but they're saying...
TATYANA BERNARD: I wasn't the one that experienced emotional hurt during it. It was my parents, not me. I dealt with it fine. So when people saying that kids don't handle it well, I don't know anyone my age who hasn't handled it well. I handled it well, everyone else my age has. It's the parents who have the most trouble dealing with each other.
JENNY BROCKIE: So what do you think of the discussion, Tatyana, and the focus of it being on -
TATYANA BERNARD: It's interesting hearing everyone else's opinions because they talk about children and what they want and how, you know, got to think they're going to be hurt about it, but they're not.
JENNY BROCKIE: The children?
TATYANA BERNARD: I'm sure there are cases out there but the percentage of the time it really doesn't bother them because it's probably better when the parents are divorced and they're not seeing that argument in front of them all the time.
JENNY BROCKIE: Jennie, yes.
JENNIE HANNAN, ANGLICARE, WESTERN AUSTRALIA: From our experience, and we run a contact orders program in WA, and we see separated parents and children all the time, it's actually the amount of conflict between the parents that is damaging to the children and if we can focus on reducing that amount of conflict and getting people to come to agreements about what's in their children's best interest, then the children and the parents are better off.
JENNY BROCKIE: One thing that worries critics of the new laws is the question of violence. They say it will be harder to protect children from violent and abusive parents. Here's the story of one woman who sees the new legislation as a threat to the safety of her children. We've disguised her identity in this story recorded by Amanda Collinge.
FIONA'S STORY:
REPORTER: Amanda Collinge
Fiona had only been married for eight months when her husband became violent. She was pregnant at the time.
FIONA: The threats started coming, "I can take you and the baby out," which he meant, "I could kill both of you," and he would do his martial arts in front of me and miss my stomach by maybe an inch and tell me with one kick he could kill both of us.
Once the baby was born, the violence escalated.
FIONA: A lot of stuff was sexual. We had to have sex every single night. If we didn't, I was playing up. So it was whether I liked it or I didn't or just it had to happen. He would also stand over me and head butt me on top of my head so my knees would go weak.
Fiona said her husband raped her repeatedly, once in front of her small son.
FIONA: The times when he raped me he would say, "If you don't, I will wake the children up and make them watch." Now he'd already raped me in front of my son one night so I had no doubt in my mind the threats he was saying he would follow through.
Fiona's son quickly became an aggressive, unhappy 2-year-old.
FIONA: My son would pull knives on me at two years old, he would kick me and hit me and speak to me like rubbish.
Initially Fiona was terrified to leave her husband, believing he would win access to the children and kill them.
FIONA: He would threaten me constantly that he would kill my children. For me to leave I knew he wou ld go to Family Law Courts, he would ask to see them and once he had them on his own, he would kill them.
But eventually she did leave. Fiona divorced her husband and for three years he showed no interest in seeing the children. Just recently, however, he successfully obtained limited access through the courts. It's only two hours a fortnight in a supervised centre, but Fiona says her children dread every visit.
FIONA: What do I tell my children who have been scared of this person, they still are in fear of him and I've protected them for this long and now I have to tell them, "I'm sorry but I'm going to have to put you in a room with him."
Like many women in her situation, Fiona has been unable to prove her ex-husband's violence to the police and the courts.
FIONA: They tell you it has to be an independent witness that's seen something, that you need to call the police while he's there. In the past my husband had cut the phone lines, so while you're being attacked or something's going on, it's really hard to ring 000. Nobody tends to believe you unless you're black and blue. I don't know how you're going to prove it to the court.
Some reports suggest that only a minority of women fabricate allegations of violence. Many, like Fiona, struggle to protect themselves and their children.
FIONA: To go and get a divorce he was able to sit at the same table as me in the courtroom. There are no security guards, there's nothing. This man had done some terrible things to me and I still had to go and sit beside him. So there's no protection for myself as such in the system, let alone for my children.
In response to the Government's proposed mediation centres, Fiona says she would have been too afraid to sit in the same room as her husband.
FIONA: I would go like a little girl, if that describes it, it's like you sink inside, your head bows, you think, "Oh my God, I'm in for it now." If I had of gone to mediation, I would have done the same thing, agreed with whatever he said because I would have been too scared.
Fiona's ex-husband is now applying for increased access to his son through the Family Court.
FIONA: I have done a lot in the last 3.5 years to protect my children, not only to protect them but to bring them up in a better environment that my son understands that violence is not acceptable in any measure. I'm sad my son doesn't have a normal father, I am very sad and I wish that he did have but the reality of it is he doesn't. He has a terrible father who does wicked things. And if they behave that way, why should they have access?
JENNY BROCKIE: Well Joanna, I wonder what you think listening to that story. Are you concerned about the situation of someone like Fiona under these proposed changes?
JOANNA FLETCHER, WOMEN’S LEGAL SERVICES AUSTRALIA: Absolutely I am. I think the risk for someone like Fiona is that with the changes she would be pressured into attending mediation and she described how she thought she might feel if she was in that sort of situation, that she might agree to anything that was asked of her and that in fact is what we know about compulsory mediation models, that it tends to push people into them even when those models really aren't appropriate for them, particularly in cases of violence. And that's even where there is stated exceptions sort of excluding violence. The tendency is to push cases through, not leave them out. And the risk in cases where there's violence and they're the sort of imbalances of power that Fiona's described are that people do agree to unsafe arrangements because they just want to get out of that room and get on with something else.
JENNY BROCKIE: Ed, isn't it true that some women like Fiona fear handing their children over for contact visits?
EDWARD DABROWSKI: Well, Jenny, I'd say that that's a really sad, extreme case and it really is an extreme case. I mean, it's a super-sensitivity to assume that just because people are going through separation or divorce that all males fit the profile of a batterer. I mean that's just not true.
JENNY BROCKIE: I don't think anybody's saying all males do. We're just talking about violence isn't that uncommon though in the community.
EDWARD DABROWSKI: Sure, but in her situation maybe the legislation will never truly suit her situation entirely. But let's not say that all cases will go down that road. We're legislating for the great majority of Australians who don't have these problems.
JENNY BROCKIE: Donna, what did you want to say?
DONNA ZANDER, DOMESTIC VIOLENCE CONSULTANT: I think the situation's very sad and unfortunately it's all too common and when you look at the statistics around women and around domestic violence and its impact on women and children, it is horrendous.
JENNY BROCKIE: But is that a problem with the system now anyway? How are these changes going to make any difference?
DONNA ZANDER: Unfortunately it's going to make it worse because women will not disclose violence in a family relationship centre unless...
JENNY BROCKIE: These new mediation centres.
DONNA ZANDER: Absolutely, unless they're asked. The research, even now in mediation, proves that even with skilled mediators they're not asking the questions. In 50% of cases women who have experienced violence are saying when they're asked in studies that they're actually not being asked about violence, not being asked questions and to think that you could sit in a room - I mean what Fiona talks about, about the fear of actually not being able to sit in the same room and feel safe and feel comfortable, to be able to effectively and equally mediate, is very real.
JENNY BROCKIE: Philip Ruddock, Fiona explains how hard it is to prove violence and there is a requirement under these new laws that it has to be proven in order for people to go to the Family Court rather than the mediation centre, might this emphasis on access unintentionally endanger children?
PHILIP RUDDOCK: Well, there are several aspects of the presentation you've just given that I would like to comment on. The first is if the circumstances are as they were portrayed, true, in every respect, but that was not a presentation where you heard both sides. I don't know what the other side would be but I do take strongly the view that children should not be exposed to violence, should not be exposed to family violence which can leave them abused and these measures that we are putting in place make it very clear that nobody will be compelled to negotiate in a situation where those allegations have been made.
WOMAN IN AUDIENCE: But you still don't know, you're saying that someone in mediation - you will not force someone to be allowed to have children if there is a threat of violence. The very fact that they're able to conceal the violent behaviour is proven. So why do you think going to a mediation centre is going to stop that problem? And quite often it's not just fear of being in the room with the offending partner, it's also fear that if you don't comply with the system then you're again going to be victimised, that your rights are going to be threatened because your fear - you're already in a position, the wrong position of power relationship. You feel disempowered. You're put into a situation -
PHILIP RUDDOCK: Let me finish what I was going to say because I think the interruption makes it - makes an argument that you will not be able to deal with these situations whereas the case that's been put to us indicated that within the existing system there was a complaint that it wasn't dealing with these issues appropriately or adequately. Now what we will be seeking to do in the new system is to ensure that the first issue that has to be dealt with and it is a matter of determining not only in terms of what people tell you, but also in terms of what those who are engaged in the process have been trained to identify and that is whether there is - whether there are allegations of that sort and those sorts of issues that have to be dealt with. And that is a primary factor and we're not - we are in fact funding these arrangements in the expectation that these matters will still be raised in a significant proportion of cases.
JENNY BROCKIE: What standard proof will you require though? What is the standard of proof that is required for -
PHILIP RUDDOCK: It's not a question of standard of proof because this isn't a matter that has to be proven. The people who are working in a mediation situation will have to identify whether it exists. Once it exists then it has to go back into the legal system and it is a system in which we need to recognise first that it is the - that if you have serious allegations of violence against children, that is an issue that the community believes ought to be dealt with and the States have a responsibility in relation to that and they have the trained personnel who are required to work on these issues and where these questions are identified under the arrangements that the Family Court has put in place, the Magellan program, those matters are referred to the State officials who deal with these issues all the time to establish what the facts are.
JENNY BROCKIE: OK, Tanya, yes.
TANYA PLIBERSEK: A few things I want to say about this, right. The first thing to say is in the new family relationship centres of course we welcome any extra money spent helping people come to voluntary arrangements. But th e new family relationship centres don't identify how people will be expected to recognise violence when it's occurring. There's nothing in the guidelines that says you need workers who are trained to recognise domestic violence when it's in a relationship. However they do have in the guidelines you need to have bright colours and dim lighting. I mean it is absurd to be setting up a family relationship centre that does not describe how staff should be trained to recognise violence. The second thing I want to say is there is already massive underreporting of violence against women in this country. We know that domestic violence, the estimates that it costs Australia $8 billion a year. We know from the most recent United Nations report that it is the single biggest health risk factor for Australian women. It is hugely underreported.
JENNY BROCKIE: And are you saying mediation - it's harder in a mediation situation to deal with that than in a court?
TANYA PLIBERSEK: I tell you something, Jenny, the most dangerous time for a woman in a relationship is just after she's left the relationship. That's when most domestic murders occur. It is a very dangerous thing to put someone in a room with someone who has been violent to them. You, yourself, saw the story of this woman. I have heard this story so many times in my life. I used to work in the area of domestic violence before I went into the Parliament and I have seen so many women who will tell you the same story - I would have agreed to anything.
JENNY BROCKIE: Tony, yes.
TONY GEE, MEDIATOR, RELATIONSHIPS AUSTRALIA: I think that's a really valid point but I think we're really talking about the quality of mediation practice and some of the research that you talk about actually talks about good quality mediation practice is actually beneficial for women and -
WOMAN: But there are no guidelines in the new centres.
TONY GEE: I accept that and I think it's a real issue that there will be - it's the quality of the practice that will occur.
DEBBIE MORTON: The Family Court had good quality mediation services available up until - I think it was about the middle of 2001. The Family Court counsellors or mediators, as they're now called, offered pre-filing counselling, so you didn't have to have an application before the court, you could utilise the services of the counselling in the Family Court and most clients, and certainly clients that I've dealt with, felt much more comfortable in that environment and there are safeguards in place and you don't have to be in the same room if you don't want to, you've got Federal Police in the same building and it's all very secure. But they outsourced that and they're continually outsourcing things and taking them away from the Family Court.
TONY GEE: Could I just say something?
JENNY BROCKIE: Quickly, yes.
TONY GEE: It's a key issue too and with the outsourcing but the quality community organisations have actually developed guidelines with domestic violence, you know, women's domestic violence groups and so on so that the question of people always being in the one room with one another simply doesn't exist in the quality services.
JENNY BROCKIE: Philip Ruddock, would you look at that? You've got time to tweak the legislation, would you look at some of these things before you actually ...
PHILIP RUDDOCK: Well it's not in the legislation. These are the guidelines that have been set out by part of the process by which were going to identify the organisation...
JENNY BROCKIE: OK, so changing the guidelines to include things like that.
PH ILIP RUDDOCK: Well no, the point I'd make is that in relation to those guidelines they have a number of aspects to them. A number of aspects of it deal with the bricks and mortar, others deal with the qualifications of the staff and the expectations you have in relation to training of staff in which all of these issues are clearly identified. I mean they're not new issues.
JENNY BROCKIE: Ed, the latest report on these new proposals makes reference to the problem of women making false allegations of abuse, how often does that happen?
EDWARD DABROWSKI: It is very frequent. It's not all women and it's not all men but it is fre quent, it happens. The problem you have is if someone alleges violence it's quite serious, it can mean you never see your children again. So we have to protect children in that instance.
JENNY BROCKIE: What evidence do you have that it's quite common?
EDWARD DABROWSKI: Because in our memberships through the Shared Parenting Council, in our 27 organisations, we frequently have men, mainly men, who come forward with these problems. So we do know it's happening and it's frequent enough to be concerning.
JENNY BROCKIE: Michael.
DR MICHAEL FLOOD: You have evidence from a self-selected group of fathers and mothers who when asked, "Oh, I was accused of abuse or violence," say "Well of course I didn't do it." Wouldn't we expect people to deny that they'd been involved in violence or abuse? There are four Australian studies on this issue. They find that allegations of child abuse for example are rare, 2%, 7% depending on the study. The number of false allegations is from one large Australian study 9% of those allegations of child abuse. Two more things to note. One is mothers and fathers equally are equally likely to make false allegations, not simply mothers, and in terms of substantiated allegations, allegations that have, you know, some evidence for them, mothers are four times as likely to make allegations that are substantiated but the most depressing point about all of this, is that even when there are allegations of child abuse or domestic violence on the table, family courts still award contact or even residence to the parent who's alleged to have abused the child or abused the mother of that child. It makes very little difference unless the violence is extreme and there's external corroboration for it.
JENNY BROCKIE: Tony, what do you think about this comment of Ed's that it's common, that false allegations of abuse are common?
TONY GEE: My comment is I think it's almost, to put into context, that about 50%, my understanding of the literature of separating parents, are work things out relatively cooperatively. It's about another 30% who may need court hearings and orders and so on. Then there's a significant minority, I suppose, of about 20% which are high conflict, we call them high conflict couples or entrenched conflict and it's those families, I guess, or those couples where they're just lock in conflict and my understanding of the literature is that it's in that population where there can be allegations made of abuse.
JENNY BROCKIE: Dianne Gibson, you're chief mediator with the Family Court, do you see a lot of fabricated allegations of abuse?
DIANNE GIBSON, PRINCIPAL MEDIATOR FAMILY COURT: No, I don't think we could say that. In fact we have recent studies that have been published that show that there's about - in the matters that come to the court about two-thirds of them have some allegations of abuse and of those two-thirds, two-thirds of those are substantiated in some way. So I don't really think that there are a lot of people going around making a lot of claims of abuse that's not substantiated. But I think Tony's point is really important because by the time these families arrive on the court door, they are highly conflicted and breaking that sort of conflict nexus is extremely difficult and to maintain it a lot of things will be said and a lot of things will be done. So the Family Court has a really tough job of sorting out where the reality is in all of this, all of these allegations and deciding really what impact it's having on the children and what's going to be in the children's best interests and one of perhaps my concerns is the idea of the violent husband/loving father. I think we have to really have a look at that and see what sort of impact violence against a partner might have on children and children witnessing violence.
JENNY BROCKIE: Philip Ruddock, if there is no evidence that there's a massive false allegations of abuse out there, why this new fine and awarding of costs against people making false allegations?
PHILIP RUDDOCK: I'd simply make this point - I don't prejudge these matters. I don't try to determine what is happening in a family situation. If it has to be addressed it ought to be done at arm's length from those of us involved in political life. But wh at I do know is that if you're going to have a fair system, you need to be able to ascertain what the facts are and if allegations are made that are false and it may well be that it's only in a minority of cases that that occurs, there ought to be consequences for that in the same way as if you make false allegations in other aspects of life and that's the only point I would make.
JENNY BROCKIE: Tanya, what do you think about this? What do you think about the provision?
TANYA PLIBERSEK: I think it will stop people who have been victims of domestic violence reporting it and that will make...
JENNY BROCKIE: Why?
TANYA PLIBERSEK: Because if you've been in a violent relationship there is usually not just physical abuse, there's usually emotional abuse as well. You've had someone telling you you're worthless and no-one will believe you if you report the violence anyway and on top of that I'm going to take your kids off you if you tell anyone that I'm violent. They will also fear that the court won't believe them and that they will award costs and you're talking usually about people who don't have money to spare and in many cases women actually agree to ongoing contact even though they fear for themselves because they accept that their children might want their father in their lives. I think that this actually - this new provision totally misunderstands the dynamic of a violent relationship.
JENNY BROCKIE: Philip Ruddock, I'd like to move on to one of the other areas too, the concept of the residential parents willingness to facilitate a close and continuing relationship with the non-residential parent which is very much enshrined in these changes. Can you explain that for us and how important that will be in determining the question of custody?
PHILIP RUDDOCK: Well, I mean I'm not going to determine issues of custody. At the end of the day if parties cannot agree between themselves what those arrangements should be and our view is they should use their very best endeavours to do so, in the end it will still be a matter for a court to make an adjudication.
JENNY BROCKIE: But there is a specific spelling out here of the residential parents' willingness to facilitate a close relationship being a factor in the decision, that that should be taken into account as a factor?
PHILIP RUDDOCK: It is one of a range of factors that will be taken into account and the courts will determine, if there is an adjudication, the weight that it will have. The two primary matters that they will consider are the right of a child to know both parents and whether there are any allegations of violence. They are the two primary matters.
JENNY BROCKIE: What's wrong with that, Joanne?
JOANNA FLETCHER: Well the real problem with the construction of the draft legislation at the moment is that those two primary criteria will by definition in any case where a person fears violence or abuse, seem to cancel each other out. There's a requirement that children should have a relationship with both parents, but then there's also a requirement to protect children from harm. Inevitably you can't do both of those things. That will lead the decision-makers and other people in the family law system to fall back on to those secondary considerations and a new one that is being proposed to be added is this one about the willingness and ability to facilitate a relationship with the other parent. Yet again by definition someone who fears violence isn't going to want to do that. If they do hold back on contact they then risk being penalised and the penalty is not a penalty that falls on them, it's a penalty that falls really on the children.
JENNY BROCKIE: Well underlying all these changes of course are the new family relationship centres you've heard about tonight that the Government is setting up to try to keep people out of the courts. The emphasis is on compulsory mediation, except in cases where violence is an issue. Amanda Collinge has been talking to one man whose story typifies what the Government is hoping to achieve.
ANDREW'S STORY:
REPORTER: Amanda Collinge
When Andrew first separated from his wife five years ago, he was devastated.
ANDREW: I'd have to say I coped very badly, very poorly is what comes to mind. My state of mind was particularly fragile.
A successfu l businessman Andrew was not prepared for the feelings of anger and anxiety that plagued him.
ANDREW: What I decided very quickly was that the worse thing I could do was try and find the answer in the bottom of a bottle. The first thing I bought when I separated was a new racing bike and a second-hand wetsuit. It relieved a lot of the frustration and the anger and it meant that I could take that out on the bike or the swim or the run.
Then came a real turning point. Andrew discovered the counselling service Relationships Australia.
ANDREW: Words like "personal growth" I'd never heard of prior to Relationships Australia. If they weren't in the 'Financial Review', they just didn't exist. It takes you through your emotional roller coaster. It teaches you that it is OK to be sad, and people are sad, and it then helps prepare you for a post-separation life.
At this time, Andrew was seeing his two sons every second weekend and half the school holidays. But he was missing them a lot.
ANDREW: I found it very difficult, if you like, handing them back. If you'd been away on a holiday that realisation that the holiday had come to an end and your time is now finished.
Andrew decided the boys needed a mum and a dad. He was determined to avoid a court battle and instead, engaged a mediator to sit down with himself, his ex-wife and the two boys.
ANDREW: With the mediator he was non-threatening, particularly placid and was able to write up everybody's points of view on a white board. My initial plan was to seek shared residency, which is 50/50. That proved to be difficult and I decided that the best way was just to negotiate the best possible deal that I could and I ended up with about 43%, which was acceptable and I wasn't willing to put the boys through any more trauma than was necessary.
The arrangement has worked well for everyone.
ANDREW: There are, of course, the odd frustrations when shoes or socks or parts of homework get forgotten but that goes with the territory. I live in the same suburb as my ex-wife so that means it's only a 10-minute drive away as frustrating as that can be.
Andrew thinks the Government's proposed family relationship centres are a great idea particularly if people access them at the beginning of a relationship, not just when it all breaks down.
REPORTER: So how is life now?
ANDREW: Life's very good. Life's very good. When I look back at where I was when it all happened, I never thought I'd be able to laugh again, I can't complain, I'm enjoying life. The boys are doing very well, I'm in a relationship. I've got very few complaints, very few.
JENNY BROCKIE: Well Kelly Ray and Michael Birt, you're a separated couple with one child, you've been through mediation, I wonder did it work for you, mediation in terms of solving your differences?
MICHAEL BIRT: Yes.
KELLY BIRT: In one aspect I think it did because we had a lot of conflict initially to do with the separation and it kind of left us grounded, I think, and with the perspective of focusing on the child and the child's best interest and that's where your focus should lay. But I think without the mediator the tendency is there to become emotionally attached and fights arise and you don't solve any issues that way.
JENNY BROCKIE: Michael, was there a lot of conflict between the two of you when you went to mediation?
MICHAEL BIRT: To start off with there was, yes, through working out differences together, through the mediation and keeping our daughter Madeleine in focus, it helped us get through it. And I believe without the mediation proces s we could be fighting it out in the Family Court right now.
JENNY BROCKIE: So Joanna, is compulsory mediation the way to go?
JOANNA FLETCHER: I don't think compulsory mediation is the way to go. I think Andrew's story really highlighted the fact that he and his ex-wife both came to that process freely. The real risks with compulsory mediation models are that you push people into them who shouldn't be there like people who have experienced domestic violence even where there are stated exceptions for that and really power and balances in violent relationships make that quite inappropriate and can lead to really unsafe arrangements for children.
JENNY BROCKIE: So what are the best interests of the child? Laura, all of these changes are supposed to be making things better for kids during a separation, does it sound that way to you tonight?
LAURA GRANT: I suppose so. The kids need freedom to choose where they want to be, I think. In the end, they're the ones that understand the relationship with the parents the best, from my perspective. I knew that I wanted to live with dad, I still see mum, I still have a great relationship with her. I've just gotten to know dad so much better and that's what it's about. It's about letting the kids decide, I think.
JENNY BROCKIE: So you want more of a voice or you think kids need more of a voice?
LAURA GRANT: Yep.
JENNY BROCKIE: Sue Aydon, you're a psychologist. This is in the final stage of a long process, the Government's been looking at this for a long time now. Have the needs of children been looked after, do you think?
SUE AYDON, CLINICAL PSYCHOLOGIST: Certainly not at present and I'm really concerned about this new legislation because these sort of situations are great. If we can do shared parenting, if we can mediate, fantastic, everybody's happy. There's definitely a section of the population that just can't do that and they're the ones who are going to go to the Family Court and they're the ones who aren't being dealt with properly in the Family Court and once again, we seem to be losing the interests, the best interests of the child again. And I think this legislation doesn't - it doesn't provide any provisions any more provisions to protect the child when we do have violence and we do have abuse.
JENNY BROCKIE: Ed.
EDWARD DABROWSKI: Jenny, I think the family relationship centres will work really well if the hard work is done in these centres, the mediation, really the nitty-gritty work on a parenting plan and if parents know that that's the end of it and they don't forecast going on to court, or they don't forecast that a false allegation will fast track them straight to court, if they know that they can get resolution at the family relationship centres and avoid court, we'll see, you know, less conflictual outcomes.
JENNY BROCKIE: Dianne, final comment from you.
DIANNE GIBSON: In terms of hearing from children more, the Family Court is now moving because we have the family relationship centres promised and they'll be taking up a particular role to a model where we'll be working with children a lot earlier and listening to them a lot more closely and what we'll be doing is inviting parents before they've gone to trial to hear what their children have to say in the hope that we can get them to refocus on what their children are saying and what's important for them as well.
JENNY BROCKIE: Tanya, just to sum up, what would you like to see, there is time now between this period and when the legislation actually goes to parliament, what would you like to see in terms of legislation?
TANYA PLIBERSEK: Well I'd like to see family relationship centres funding not dependant on the number of cases they churn through the centres. I think it's very dangerous to be focused on the number of cases. You need to look at the quality of the outcomes of mediation. You need to follow couples through so that in a year's time and two years time those agreements still work for everyone involved. And when it comes to the legislation itself, there does need to be further changes both to the current legislation but certainly to the legislation the Government has proposed. And I think that the basic assumption that the only thing stopping kids having contact with non-custodial parents are custodial parents who don't want it to happen is something we need to seriously address. We need to start equal parenting a long time before divorce and we need to make sure that always the best interests of the kids are the things that we look at first and foremost.
JENNY BROCKIE: Philip Ruddock, there's been serious concerns expressed tonight about this question of violence and how mediation will work in relation to violence, about the need to prove violence and so on, will you look at it again before you take the legislation to Parliament?
PHILIP RUDDOCK: Well I would have said there has been far less division than I might have thought and the point I would make about the measures that we are implementing was where I started. What we want is a situation where more people, before attitudes be come entrenched, provided there's not violence involved or abuse of children involved, working those things through before they believe they've got to battle it out in the court. And this is about getting the process of sitting down and talking those issues through as the first step, rather than thinking the first step is to go and get a lawyer so I can advantage my personal situation over and against my partner, whom I'm distressed has decided to leave me or I might have left. The second point I'd make in relation to the family relationship centres themselves, they are not going, as Tanya suggested, I think, to be judged only on their throughput. Obviously we're interested in throughput but there are a range - there are a range of factors that will be considered as to whether they have met appropriate performance criteria. But we believe that by putting all this additional resources and these will be very significant, we're talking about almost $400 million of public funding, into bringing about a different approach into dealing with these issues that we will have a far better family law system as a result.
JENNY BROCKIE: Alexandra, final comment from you, having listened to all of this what do you think about the idea of these changes?
ALEXANDRA ROSE: I think mediation's great, anything that keeps you out of the courts because what's ultimately going to happen is obviously the money wasted and the time wasted is going to take away from the child's best interest because that money could obviously be spent better ways. So I think mediation is a great idea. I also worried about separating the child's best interests from the mother and the father's best interests because, you know, once you become a parent you don't just become a parent, you don't stop being yourself. I think you really need to think of the best interests of the family in general and sometimes it's where the conflict arrives.
JENNY BROCKIE: I'd like to thank everybody very much for joining Insight tonight. We're out of time but thank you very mu ch for all your comments and that is Insight for this week and for this year.