SUBMISSION BY THE WOMEN'S LEGAL SERVICE, BRISBANETO THE ALRC - ISSUES PAPER 22 REVIEW OF THE ADVERSARIAL SYSTEM OF LITIGATION
RETHINKING FAMILY LAW
Annexure 1 to the submission - September '98
ANNEXURE 1 TO SUBMISSION TO FAMILY LAW COUNCIL
INTERIM REPORT ON PENALTIES AND SENTENCES
WOMEN'S EXPERIENCES WITH THE FAMILY COURT AND LEGAL AID
Soprani * Maria * Kim *Jan *Patricia *Monica *Carmel *Doris *April
Soprani was told by her Husband to leave the matrimonial home with her daughter who was five months old at the time. She had suffered domestic violence in the relationship including physical, emotional and verbal abuse by the husband. Soprani sought assistance from the police after receiving death threats from the husband's adult son (from a previous marriage). After separation Soprani felt very isolated in the community and lived in fear of being found by the Husband or the son. She took out a domestic violence order against the husband and a Peace and Good Behaviour order against the son. In the court hearing the Magistrate stated in his findings that Soprani was the only one telling the truth to the Court.
The husband sought contact in the Family Court and because of the child's young age the Court granted him supervised contact. This graduated to unsupervised after a period of time. When the child was about three years old she was sexually abused by an unknown person while in the husband's care the child. He denied that the abuse occurred. Further proceedings were instituted and again supervised contact was ordered by the Court graduating, over a period of time, to unsupervised. There are ongoing difficulties with contact. The child is subject to psychological abuse by the husband. He tells the child things to undermine Soprani's authority with the child. Over the last few weeks the child has been returned with unexplained discharge from her vagina. Soprani has applied for Legal Aid but at this stage it has been rejected. Soprani still allows the child to visit the father pursuant to the orders because of the fear of repercussions from the Family Court if she does not comply with the order. In particular she is frightened of losing residency.
Maria, who is of non-English speaking background, and her two year old child escaped to a shelter from a very controlling and physically violent relationship. Her partner had kept her isolated and she lived in fear that if she did not obey he would take the child and have her deported.
A week later the partner approached the Family Law Court seeking immediate access. Court counsellors said to Maria that it would be in her best interests to agree to the counselling. She agreed to attend as long as she did not have to speak directly to her partner. When she arrived at the court she had to share the waiting room with her partner.
The matter came before the court and she was given contact four days a week and her partner three days a week. The Circuit Family Court judge said that women's shelters were subversive to the cause of justice and the shelter was not a stable environment for her to maintain the child so she had better get out of the shelter as soon as possible if she wanted to maintain the four days contact that she was given.
As a consequence of that statement Maria felt that it was in her best interest to move out of shelter long before she was ready or felt safe. The child is now shunted from parent to parent. There have been no enforcement problems as Maria is fearful that if she does not comply she may lose access altogether. Marie's husband has continued to menace and violate her.
The Judge and Family Court Counsellors showed a marked lack of understanding of the dynamics of domestic violence. The refuge staff who worked with Maria have observed that the judges put contact above women's safety.
Kim and her three children aged between three and nine years came into the refuge from a very violent relationship. Her partner had taken a loaded gun and held it to Kim's head and told her he would kill them all. On the day she escaped Police and a neighbour had to both try and pull her partner off her as he was trying to strangle her. He used physical, financial and psychological abuse to control the family. The nine year old girl said she would hide in the cupboard when he started.
Just days after she came into the refuge the husband approached the Family Court wanting court counselling. The court phoned the shelter and told Kim it would be in her best interest to agree to the counselling. At this time Kim did not feel safe enough to leave the shelter.
Kim's partner repeatedly phoned the Police, Family Court Counsellors and any other service he could find in the book making threats about what he would do if he did not have immediate access with his children.
Kim's partner was granted access however on three occasions he failed to return the children. After the third time he was breached but was only given a warning by the Family Court. He has continually breached the Domestic Violence Order also but the court has ordered counselling instead of jail for these breaches.
Jan left her husband after fourteen years of marriage in a very abusive relationship. On the last occasion her husband held a knife to her throat and threatened to kill her. Her thirteen year old son called the Police as he feared for his mother's life. Jan came into a refuge and her son begged her not to resume the relationship. Jan stayed in the refuge until she got on her feet and found her own accommodation with her two children.
After some time her former husband applied for access visits. Her son was adamant that he did not want to see his father as he was so scared of him. The court granted access visits on week-ends and on each occasion the son refused to go. Jan was breached but even after further consultation with the son the court still enforced the access order. It was decided that the children were to be taken to a contact handover centre. The closest centre in Brisbane was a 45 minute drive each way. Jan was ordered to drive the distance three times per week. Not only is the drive time consuming it is also costly and she is on a benefit.
Jan finds it heart wrenching every contact as she continually has to have an argument with her son and force him to go to contact visits to prevent herself from being breached.
Patricia moved several times with her child to escape a violent and controlling partner who abused drugs and alcohol. She also suspected he was sexually abusing their daughter.
For the first two years she ignored her feelings about the abuse and bowed to his pressure to have as much access as he wanted. He was at all times unreliable, failed to keep appointments and provided little support for the child.
For five years she maintained a Protection Order which was breached many times however she only reported it on two occasions.
Patricia was told by the magistrate that Domestic Violence between parents is not taken into account where child access is concerned, because the law is concerned with the relationship of the child with the parents and not the former relationship of the parents.
It was clear that her partner was being sexual with the child by the time she was three and he seemed unable to care for her adequately. She was unable to negotiate supervised access with her partner so she terminated the access arrangement. As a result of a court case a formal order was made which enabled her partner to have supervised access at an Access Centre. The centre's staff bonded so well with her former partner that they began to denigrate Patricia.
For three years she was threatened by solicitors and court counsellors at "mediation sessions". Her child's exact statement about the abuse was given to her partner verbatim via her Solicitor. Despite the behavioural and verbal evidence given by the child, Patricia was told that unless there was gross physical evidence there was nothing she could do.
At court the husband was present with a solicitor and a barrister, funded by Legal Aid and she was unrepresented. The separate representative was also negotiating in his favour to push the orders for unsupervised overnight and holiday access though they refused to obtain confirmation of his address.
Consent orders were ultimately entered into which provided unsupervised access every second week-end and half the school holidays. The following undertakings were given by the husband:-
1. That he not denigrate her in front of the child.
2. Notify her within seven days of a change of address or phone number.
3. He not consume alcohol during contact visits.
4. He not consume drugs during contact visits.
5. Provides a telephone number for contact if he is taking the child out of the Brisbane area.
6. He does not contact her other than for the purpose of child contact.
He has breached the orders on every contact visit in some way or another. He refuses to comply with any agreement including phone contacts, is constantly reinventing the past and seeks mediation only in order to help formulate his defence. Patricia has no way of contacting him when he has their child for contact visits. The child is currently undergoing counselling as she continues to exhibit sexual behaviour.
Monica had survived an extremely violent relationship with her Husband where she had suffered beatings on an almost daily basis, verbal abuse, rape and phsycological torture. Monica was an aboriginal women and the Husband was white. A number of the verbal attacks on Monica were racial. He would often refer to her publicly and in front of the children as a "fucking black bitch".
Monica had four children, two children of the marriage and two children from a previous relationship. The violence commenced on the parties' wedding night when Monica's Husband raped her. At the time she was four months pregnant. The youngest child was conceived through rape. The violence frequently occurred in front of the children.
A few years before the final separation Monica begged her Husband to stop attacking her in front of the children. He began to attack her in private but Monica was certain that the children could still hear the abuse. In one incident, the Husband woke the two younger children up from their sleep and made them watch whilst he kicked into Monica. He then took two days off work to try to stop her from seeking medical attention. The children sometimes suffered physical injuries by either becoming directly involved in the abuse by the Husband or as bystanders to the Husband's abuse of Monica. On one occasion the Husband threw a bike at one of the younger children and they required stiches as a result. On another occasion the another child required stiches in his head and suffered bruises and cuts to his lip after the Husband threw a baseball bat at him.
Monica obtained numerous domestic violence orders over a number of years. In 1996 after many attempts at separation, she finally separated from her Husband and escaped to a shelter. The abuse continued. It involved stalking, harassing telephone calls and threats to kill Monica. On six occasions the Husband was found guilty of breaching the domestic violence order.
Proceedings were instituted for residence and contact with the children. Consent orders were entered into in relation to these issues. A few months later Monica applied for a suspension of contact because the children were extremely scared of the Husband and did not want to go on contact because they were not being fed whilst in the husband's care and because of his continued abuse of Monica. At a meeting between the Separate Representative, the husband and Monica an agreement was reached whereby the husband would have contact "at such times as was agreed between the parties".
When the contact arrangements again broke down the Husband started proceedings himself in the Family Court for a more defined contact regime. Monica was unable to obtain legal aid for legal representation. She responded to the applications herself and because she was exhausted and frightened of continuing litigation consent orders were again entered into in the Court. Shortly after entering into these consent orders, Monica was served with contempt proceedings by the Husband. He alleged non-compliance with the contact. Some pro-bono representation was organised for Monica and the Court found the contempt application to have no basis and it was dismissed at first instance.
Three months later the Husband filed another contempt application regarding alleged non-compliance. After long negotiations Monica was granted legal aid to respond to the application. She was refused legal aid to cross apply for a suspension of the access. The husband's application was settled by new consent orders which continue to give the husband contact with the children although the nature of the contact has been changed because the husband has moved to town in north Queensland.
Monica asked for one issue to be resolved at the court hearing. The husband had refused to give the children some sporting Christmas presents he had bought them - including a surf ski. He said that they should stay at his mother's place which deprives the children of the use of them except when the husband is in town. Monica's solicitor and the child representative both said this issue should be worked out with the social worker who has been involved with the case. The husband agreed to abide by what emerged from those discussions. None of these agreements were recorded in the consent order or in any other way.
At a subsequent meeting with the social worker the children asked their father for the presents but he refused. The children were angry and distressed by his attitude. He has now asked for access over June, except the dates he has specified do not correspond with the actual school holidays. The principal of the school has indicated to Monica that it is not a good idea for the children to miss so much school time.
The children's distress at the husband's on-going abuse of their mother and themselves and the timing specified for this latest request suggest that there will be non-compliance with the husband's request. This undoubtedly means another contempt application is brewing.
Carmel has two children aged 5 years and 3 years. She had lived with the father for approximately 2 years 'off and on'. Carmel separated from the father because of his violence when the children were aged 3 years and 1 year respectively. The violence continued after separation.
Carmel applied for residence of the children because he had made threats to kidnap the children. Consent orders were entered granting Carmel residence and the father contact with the children each second week-end. After one of the contact visits the older child complained to the mother that she had been sexually abused by the father and that he had also abused the youngest child. Contact was stopped. Medical evidence was obtained that confirmed the older child had been sexually penetrated. Proceedings were started in the Family Court and the father was denied contact with the children for a period of approximately 18 months.
When the matter was approaching final hearing the court ordered a family report. The report writer did not believe that the children had been sexually abused. Instead she stated that Carmel was a liar and devious and had basically made up all the allegations to deny the father contact with his children. At the final hearing the Judge placed a lot of weight on the report (despite there being medical evidence of abuse) and ordered that it would be in Carmel's best interest to enter into consent orders about contact with the father, which she did.
Approximately two months later both children complained again about sexual abuse after a contact visit. Contact was suspended again and the children were medically examined. Again the medical evidence indicated that at least one of the children had been subjected to ongoing instances of sexual penetration. The police became involved. Subsequently the father contacted the report writer and admitted to her that he had abused the children.
Following a number of years of domestic violence, Doris escaped to a refuge. There were no children of the marriage. Property proceedings were instituted in the Family Court and consent orders were eventually agreed to whereby Doris received an amount of money, the return of various personal items and the transfer and return of her car.
In relation to the car, it took 3 years and 2 months to be returned and Doris believes that it was eventually only returned because her Husband had died. The value of the vehicle at settlement was $14 500 and the value when it was actually transferred to Doris, was $ 4000.
Numerous attempts to collect personal items through the police and refuge workers were all unsuccessful. After the husband's death Doris discovered that he had destroyed most of the items.
In relation to the monetary settlement, payment was to be made by two installments. The first installment was 4 months late and only half of the agreed payment was ever made. Doris was too exhausted and distressed by the legal process and her husband's ongoing abuse that she just "walked away" and did not pursue the further payments.
The parties separated after 18 years. April escaped to a refuge with the parties three children. The marriage was characterised by extreme levels of domestic violence. The children were also extremely traumatised by the violence and April believed they had been sexually abused by their father, as they were all exhibiting unusual sexual behaviours. The father contested residence and the matters went to final hearing in the Family Court. April was awarded residence and the father was awarded contact. He never exercised contact with the children after the trial date.
The parties had quite substantial assets including a number of properties and a business. The husband was also employed in a quite well paying and respected job. April was in receipt of the supporting parent's pension. All the properties were in the husband's name. Issues in relation to property were taken to final hearing in the Family Court. Although April was awarded nearly 70% of the existing assets, she has received nothing.
After the trial the Husband did not pay the mortgages on a number of the properties and they were re-possessed by the bank. Other properties were sold at suspicious under values to entities in which the husband appears to have an interest or connection. At one time the Husband did allow April and the children to move back into one of the properties but he stripped the property bare of all items including door knobs and light fittings. The house was basically a 'shell' and unliveable.
Pursuant to the judgement the husband was to pay out a mortgage on one of the houses. This never occurred. April and her children have received nothing out of the property settlement. She is now bankrupt and has a large, outstanding legal bill. She is not able to pay a solicitor to act for her to enforce the orders or to make application to the court for a review of the orders. The husband now has a new family and is living in a house that was purchased in the name of the new wife shortly after the final hearing of the matter.
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