August 16, 2015 by Robert Franklin, Esq, Member, National Board of Directors, National Parents Organization
This article gives a good idea of just how far from basic reason and common sense the law has strayed when it comes to allegations of domestic violence (The Age, 8/11/15). It also tells us how far the law has strayed from what once was the law.
The writer is a barrister in Australia and knows whereof he speaks. Put simply, allegations of domestic violence, whether fact-based or entirely fictional, have profound and long-lasting effects on their targets. And that, of course, is the point.
It’s no secret that allegations of domestic violence are used routinely in divorce and child custody cases, solely to gain an advantage over the other party. High-profile family lawyers have been shouting that to the heavens for decades now. Nor is it news that many of those allegations are either completely made up or refer to behavior that is altogether common in most relationships and in no way threatening to anyone.
Much like in the U.S., Australian courts routinely remove the targeted parent from his home, separate him from his kids and often from the tools of his trade. And, just like in the U.S., that’s all done without his knowledge, presence in court or ability to respond. That is, it’s done ex parte and the only evidence is the claimant’s say-so.
My client Tom* was at work when the police turned up. They served him with an intervention order, took him home and told him to pack a suitcase. If he returned home, or contacted his wife or children, he'd be facing two years' jail. He'd had no inkling this was coming.
The order was an interim one, granted ex parte. That means the court issued it in his absence, having heard only his wife's side of the story.
But in most jurisdictions in the United States, there’s at least some effort to afford the target of a DV claim a hearing within a reasonable period of time. Often that’s little more than the pretense of due process of law; once there’s a fait accompli — his separation from his children with no possibility of contact - his fate as a father is sealed. From then on, he’ll see his kids for a couple of weekends a month and perhaps a few weeks during the summer if he’s lucky. But there have been plenty of cases in which judges have dissolved the temporary order fairly quickly and the father returned to the status quo ante.
Not so in Australia.
In theory, Tom could go to court and argue his case, but a hearing date was months away...
Another client of mine, for example, was subject to an interim order for a year before the application against him was dismissed. And that took nine separate court appearances.
When it takes months or years for a court to get around to hearing the targeted parent’s side of the story, there’s little purpose in even holding a hearing, practically speaking. Once a parent has been out of his kids’ lives for a year and restrained from entering his own house, the damage has been done. Whatever case he may have had for custody long ago vanished into thin air.
Meanwhile, notice what is and what isn’t an “emergency.” The court had no difficulty granting the complainant a hearing immediately. That hearing and the resulting order were done in the blink of an eye. The target was barred from his home and from seeing or communicating with his kids, but when he wants to tell his side of the story, well, that can wait. That he might be innocent is of little importance. That his kids might need him and suffer from his absence is likewise nothing the court concerns itself with. The contrast between complainants’ rights and those of their targets — fathers and children alike — fairly screams the message Australian fathers hear every day — “you’re not important.”
Just in case that wasn’t already clear, the system makes it more so. It does that by charging targets of DV claims hefty sums to defend the allegations while making them is free to the claimant.
Indeed, the ease of applying for an order itself creates problems. Most litigation incurs some cost in getting the ball rolling. Not so for an intervention order, where there's no stamp duty or filing fee…
Another client of mine, for example, was subject to an interim order for a year before the application against him was dismissed. And that took nine separate court appearances. Although he won, the client had to bear all his legal costs himself.
In intervention order cases, costs are awarded only for "frivolous" applications, or those brought in bad faith. In practice, this means almost never.
Most men simply can't afford to keep paying out indefinitely for lawyers. They can't keep taking days off work.
Unsurprisingly, lawyers use the system to browbeat fathers into giving up what might otherwise be called their “rights” — to due process of law, to their children.
They can't stand not seeing their children for months on end, so they come to terms with the applicants. They consent to orders without admitting the allegations and then try to negotiate some child access.
Those who dig their heels in and contest the applications don't fare much better. Often, the paperwork doesn't even particularise the case they have to meet. Tom's application claimed he was "abusive and controlling". How? When? In what way? He'd find that out in court.
That brings us to yet another outrageous aspect of the DV system. Practically anything can qualify as “violence” sufficient to get a dad thrown out of his house and his kids’ lives. Indeed, “domestic violence” is “defined” so broadly that making an actually false claim is all but impossible. Virtually any behavior can suffice to have a parent thrown out of his house and his children’s lives.
In any event, the act defines family violence so widely, it includes the sort of friction that occurs occasionally in even the happiest family: heated argument, raised voices, the silent treatment. I've seen an application succeed where the husband criticised his wife's cooking and (on a separate occasion) slammed a door. You can always find something a man's done wrong.
Cases often come down to one person's word against another's, where the absence of corroboration is explained away as the "dynamics of family violence". The victim never complained of family violence before? Never confided in a friend? Never visited a doctor or called the police? That just proves how disempowered she was.
Is it any wonder that fathers seldom fight DV allegations?
Let’s be clear. This is not a system that is aimed at preventing real domestic violence, i.e. the kind that does physical harm. Like much of the rest of the system of divorce and child custody, its purpose is to ensure that mothers don’t lose custody of children. As Brinig and Allen found when they investigated custody cases in Oregon, claims of DV are usually levelled by women and they’re far more successful with those claims than are men. In that way, divorce courts mirror the police who seldom can be convinced to arrest a woman for domestic violence regardless of the objective facts of the case.
When a man can be tossed out of his home and his children’s lives because he slammed a door and criticized his wife’s cooking, no argument can seriously be made that the system has much to do with real domestic violence, much less the best interests of children. Yes, the same system probably prevents incidents of real, dangerous violence. But by casting its net so much wider, it becomes clear that something else is at least as important.
That’s corroborated when we recall Australian historian John Hirst’s long essay entitled “Kangaroo Court: Family Law in Australia” in which he revealed that, long ago, family courts simply stopped enforcing fathers’ rights to visitation. That’s not a quirk of a few judges, it’s binding precedent established by family courts way back in the 1970s.
Like every other court in the land, Australia’s family courts have inherent power to enforce their own orders via contempt. No court would have much power if it couldn’t do that. And family courts in the land down under do so routinely. Whatever orders they issue, they stand ready to enforce via contempt. The only exception is for orders of visitation; those and those alone go unenforced by the courts that issue them.
Given that some 90% of custodial parents in Australia are mothers, the above refusal to enforce visitation orders is necessarily a refusal to enforce the “rights” of fathers. Unsurprisingly, as Hirst said, “Just as the Court had there imagined, leniency had disastrous consequences for children. Since access orders were defied with impunity, thousands of children were kept from their fathers, though the Court had ruled that their best interests required that they see them.”
Given the background that (a) fathers rarely receive primary custody of their children, (b) fathers’ child support obligations are enforced via every power at the court’s disposal, including jail and (c) fathers’ access “rights” are routinely ignored by mothers with (d) no consequences, it’s simple to conclude that fathers’ treatment by those same courts when faced with DV allegations is more of the same.
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