Family Law Reforms - Will the new law stop systems abuse?

Mother and child sitting on the floor: Adobe Stock

While the draft family law amendment bill is quietly being massaged in the Senate, many families in the trenches of the Australian family law system are screaming for immediate changes. And for many whose cases have already been finalised - they are left to live the reality of the injustices dealt with under the old and archaic law. The draft family law amendment bill 2023 aims to put children first, but when will it come into effect, and will the amendments have the oomph needed to undo years of systems abuse?

As applicant fathers who have perpetrated family violence clog the court and justice system with false allegations of child abuse, neglect, substance abuse and mental health conditions, the mothers and children suffer. Jessica*, whose name has been changed, says that her experience as a respondent mother in the Federal Circuit Family Court was harrowing and has left her with a new layer of trauma upon what already existed from surviving strangulation by her ex-partner and father of her child. 

"Every family service I had ever used had been subpoenaed whilst the father's information had not been as thoroughly checked. This was in response to the family report suggestions about my mental health. Pulling up my counselling records dating back many years was a total invasion of privacy as I sought help to heal extreme personal traumatic events." 

Responding to system abuse

During the 4-year court proceeding, Jessica* entered a new relationship and went on to give birth to a daughter. "I was a breastfeeding mother to an infant during the build-up to a final trial; I called and emailed the family court to try and access information regarding breastfeeding during the trial. In response, my lawyer advised me to give my newborn formula. I was sent round and round to many different phone numbers, and no one could help answer my questions."

Jessica* was encouraged by her legal team to allow her daughter to spend weekends with the father to reach an out-of-court settlement. It was argued that her mental health would be used against her, and she would be better off settling for what was on offer.

"He (ex-partner) used this process of family law as a form of abuse for many years after we had separated," said Jessica*.

Concerns for her daughter have escalated since the final orders. Jessica* will likely have to endure another round of legal proceedings to protect her child from alleged sexual and phycological abuse. 

Sadly, Jessica and her daughter's story is one of thousands in the family court. Anne Hollands, Australia's National Children's Commissioner, said during the Australian Institute of Family Studies Conference in 2022 - "We now know, of course, that family and domestic violence is not just something that affects adults, and we also know that it often doesn't stop when the adults are no longer living in the same house. There are complex reasons why the well-being of children is not a national priority." Ms Hollands says that the presumption of shared parental responsibility was leading to unjust outcomes and compromising the safety of children, mainly where there is evidence of family violence. 

Is the lighthouse program working?

The Federal Circuit and Family Court of Australia data shows that 80% of cases in the family court have family violence, including child abuse and the risk of child abuse. In response to the data and demand, the court launched a family violence and safety initiative known as Lighthouse - an approach the Courts took to screen for and manage risk, primarily focusing on improving outcomes for families involved in the family law system. Lady News has been told by a known source who went through the Lighthouse program that it is not effective and felt "They are just ticking boxes to appear to be proactive and solutions driven. Even in the Light House program, my children's experience of family violence was not taken seriously. The court still forces them to spend unsupervised time with their violent father."

Abuse is cheap

At a glance, the gaps in the system have begun to be filled, but what is happening to stop perpetrators of family violence from using the system to continue the abuse? For under $1000, a self-representing litigant can initiate an abusive process. If the applicant has a concession, it's free. Filing a contravention is also free. It's a small price to pay for a father to continue to abuse his victims through the almighty family court. Imagine the power and control he must feel when he receives sealed documents stamped by the court and a date for his abuse to be heard and validated. At the same time, the mother has to respond in a way that maintains her mental integrity while being tormented. 

Dr Rae Kaspiew is the Research Director of The Australian Institute of Family Studies, where most of her research centres on family violence, parenting and Family law. "In some instances, the family law system is used to perpetuate a dynamic of coercive control, and you see that through repeated litigation in the course of those very intensive litigation histories. One of the ways the bill addresses that is through the introduction of a harmful proceedings order. It's a new power that would be introduced through the bill, and it allows the court to make an order that a party can only apply to the court with leave of the court where proceeding may be harmful. Either for the caregiver or the child." 

Vexatious applications are not limited to the family court - perpetrators of family violence will continue to torment victims through the child support program, engagement with family dispute resolution and complaints to child protection.

"One of the issues is there's not a systematic way to identify when litigation is being used vexatiously," says Dr Kaspiew. 

National Counselling Service, 1800RESPECT, refers to systems abuse as domestic or family violence, describing when someone uses the law or legal threats to scare and control you. A 1800RESPECT spokesperson describes systems abuse as traumatic for people affected by domestic and family violence "It can include making false reports to courts or police, destroying legal documents belonging to you, causing delays to court cases, and stopping you from getting legal advice." 

Removing history of violence reference

Victim-survivors' allegations of family violence in the family court are too often not believed and minimised to comply with the current law of presumed shared parental responsibility. Although the removal of assumed sole parental responsibility addresses this, it doesn't allow for histories of violence. The proposal to remove a reference in the current law to a history of violence in considering the children's best interest will not maintain what the bill intends to do, putting children first. 

Change can't come soon enough for mothers currently in the trenches of the family court. A spokesperson from the Attorney General's Office confirms, "There will be a 6-month lead time before most of the changes come into effect to allow family law professionals and the courts time to familiarise themselves with the changes." This bill has addressed many issues; however, it needs to further recognise systems abuse as a form of family violence. This bill has the potential to positively impact the lives of victim-survivor mothers and children - it needs to be powerful enough to create a ripple effect through future generations. As for the damage already done, calls for a senate inquiry into the family law procedures to date will hopefully be answered - giving mothers like Jessica* a safe place to share her story and children the opportunity to voice their experiences and heal. 

Lady News is a non for profit initiative founded by a victim-survivor of gender based violence, journalist, photographer and mother.