Children and family law: 'How can you share parenting with an abusive parent?'
The family law system is supposed to put children’s safety first, but in many ways they become further endangered when they enter it.
Investigative journalist Jess Hill interviewed dozens of abused women, domestic abuse-sector workers, male perpetrators, children’s advocates and system experts over five years in order to write her award-winning book See What You Made Me Do.
Here she answers some questions about child protection arising from the murders in Brisbane of Hannah Clarke and her three children, Aaliyah, 6, Laianah, 4 and Trey, 3.
How does domestic abuse impact children?
It’s common knowledge that one woman a week is killed by a current or former partner in Australia, but not so common that a child is murdered by a parent every fortnight. While not all of these are a result of domestic abuse situations, most are, and it’s shocking. Why isn’t the child homicide stat commonly known? Because even in these enlightened times, we still can’t see children as individuals. In the public mind, children are subsidiaries of their parents.
Despite the voluminous research on children’s development, we still can’t seem to conceive that kids experiencing domestic abuse have unique wants and needs that not only differ from their parents but from their siblings, too. One child may be acutely aware of the abuse and may take on the role of family protector. Their sibling may refuse to acknowledge it at all, even when physical violence occurs right in front of them. Another sibling may identify strongly with the abusive parent and start imitating their behaviours. This is a particularly tragic scenario that we see play out so often: the victim parent leaves the abusive parent, only to have their child replace the perpetrator as the violent oppressor in the family. Truly one of the saddest places I’ve ever visited was a room in the children’s court at Parramatta where parents were applying for intervention orders against their own children.
What about kids that grow up with coercive control?
The critical thing for people (and particularly our justice system) to understand is that children don’t just witness incidents of domestic abuse. Their development is shaped by the abusive dynamic. That’s why exposure to domestic abuse is increasingly being recognised as child abuse. Critically, there doesn’t need to be any physical violence present for kids to be deeply affected. We now understand, thanks to recent research from Dr Emma Katz in the UK, that children are harmed by coercive control in similar ways to their victim parent: they may be isolated from extended family, forced to obey trivial demands, degraded and threatened.
Just as it is for their victim parent, it can be the little things that are the most frightening: one teenage girl told me that one of the worst things her father did was make this particular creepy smile. These are the kinds of things that haunt children, the signals that remind them that danger is ever-present and the threat is something they must continually manage. Their perspective, like that of their victim parent, is being virtually colonised by the perpetrator parent. They have to develop ways to resist that, to hold on to their own sense of self, and to develop independence and competence. Coercive control is as much a trap for children as it is for their victim parent.
What are some of the long-term psychological impacts for children?
The answer to this question, like all of these, could fill a book! But to tackle just one aspect of this, let’s talk about complex trauma. Children who grow up with prolonged abuse may develop what’s known as “complex trauma”, or C-PTSD. As Dr Bessel can der Kolk describes it, kids with complex trauma “develop a view of the world that incorporates their betrayal and hurt. They anticipate and expect the trauma to recur and respond with hyperactivity, aggression, defeat or freeze responses to minor stresses.” This conditioning can start in infancy. Babies are not oblivious to abuse; they are acutely aware of their surroundings – particularly the emotional state of their primary caregiver.
Children (and later, adults) with complex trauma can harbour deep distrust for others, or may find that their “trust” is commonly betrayed, which can lead to major problems with intimacy and friendship. Other common symptoms of complex trauma include suicidal thoughts, feelings of detachment from one’s own body and mind, shame and guilt, the feeling of being like an alien, helplessness and hopelessness, self-harm and substance abuse. The thing is, their view of the world is not disordered – it is a product of the incredible strategies they developed (like dissociation, for example) to physically and psychologically survive their childhood. These strategies may have worked for them in the abusive environment, but they are maladaptive to life outside of that environment. The problem is, many in the psychiatric world don’t acknowledge complex trauma, and thus misdiagnose children and adults with bipolar disorder, ADD, borderline personality disorder or oppositional defiant disorder.
Why is family law reform such a priority when it comes to protecting children?
I don’t think people fully understand how dangerous the family law system can be for children.
In previous centuries, judges could order an abused woman to return to her husband. The idea that a court would make such an order seems unthinkable now – but that is exactly what the family law system still does to children. Even when kids openly disclose abuse – and have their testimony corroborated by police, social workers, teachers and doctors – a family law judge may still order them to see or live part-time with their abusive parent. Worse still, they may even be ordered into the full-time custody of a parent they have openly pleaded to be protected from.
Once a family law order is made, it is virtually impossible for children to resist. If they run away, their custodial parent can apply for a recovery order, and the court can then order federal police to track them down and return them to their custodial parent. One teenager I interviewed, “Carly”, was pursued by federal police when she ran away from her father, who was controlling and intimidating towards her and had been violent to her mother and brother. She had to threaten suicide before the police would relent, on the proviso she was taken to hospital. After she was released she stayed for four months in a refuge, where despite asking for schoolwork, she received no schooling. Eventually, she was allowed to return to her mother – but only because the court decided she was old enough to make her own decision.
Another teenager, “Alex”, also became suicidal after years of routine physical abuse from his father, whose sole custody he was ordered into when he was a toddler, after the mother’s allegations against the father were disbelieved by the court. Alex ran away to his mother, with whom he was allowed only limited contact. When the family court requested he see another family report writer (to assess his claims and his mental state for the court), that writer concluded he didn’t really want to die and that his threats were “stress related”. They recommended he be returned to his father, that contact be cut off with the mother, and that if he ran away again to his mother, she should be incarcerated. After he was ordered by the court to return to his father, Alex had to run away to police three times before he was taken seriously. Alex fought hard to be returned to his mother when he was 14. Now as a young adult he’s been diagnosed with PTSD; he can’t work, he can’t study. He’s now on the disability support pension.
The threat to children is not just anecdotal. The Australian Law Reform Commission review found that one in five parents reported safety concerns for their children and/or themselves as a result of court-ordered contact with the other parent.
When family law orders are made, children are ordered to comply – even when they are openly terrified. So they kick and scream at handovers. They plead with their protective parent not to hand them over. They hide under the bed at handover time. They call police. They self-harm. They may even be prevented by the court from accessing medical care and counselling. This is how weird – and destructive – parts of the family law system has become.
Protective parents spend several years – and sometimes hundreds of thousands of dollars – trying to protect them. Sometimes it’s to no avail – they watch helplessly as their children develop medical conditions and regress into traumatised states, with no power to intervene. When an abused parent leaves, they do so to protect themselves and their children. But in the end, because the family law system is so dangerously inconsistent, they can’t guarantee that they will be able to protect their children. That’s why so many abused parents stay long past the time they would like to have left.
Why are children being ordered into the care of abusive parents?
So much of this comes back to the pro-contact ideology of the court. The Family Law Act states that when the court is considering how to allocate parenting, they must apply the presumption that the best interests of the child are served by both parents having equal-shared parental responsibility. That might be the case for regular families, but in the family law system, the vast majority of families are not regular. Up to 85% of families going through the family law system report histories of family violence, including emotional abuse, and half report physical violence. Despite this, only 3% of cases result in no contact with one parent, and around 79% end up with orders to share parental responsibility. But how can you share parental responsibility with an abusive parent?
This presumption of equal-shared parental responsibility is, in theory, not supposed to apply where the child’s safety is at risk. But in reality, we see allegations (and even proven histories) of domestic/child abuse being minimised, dismissed and disbelieved. They are seen as inconvenient, a barrier to making orders for shared parenting.
I have to add here that within the family law system, there are judges that prioritise child safety, and family report writers who provided nuanced assessments of families. If you’re leaving domestic abuse and entering the family law court, you may be lucky enough to get a judge and a report writer who believe you, and act to protect your children. But for too many families, that is not the case.
The standard operating procedure in so many of these cases can beggar belief. It is truly bizarre, for example, to see judges reject evidence from counsellors and doctors that corroborates the disclosure of a child or the testimony of their parents. Parents who apply for a no-contact order – even when they can prove a history of domestic abuse – are routinely warned by their own lawyers that unless they allow some contact, they may lose custody altogether. As Zita Adut Deng Ngor, CEO of Women’s Legal Services South Australia, says: “It is always a delicate balancing act in terms of how far you push the issue of domestic and family violence. It can actually harm your client, if you push too hard with the wrong judicial officer.” What does that say about how the system responds to the parenting risks associated with domestic abuse?
What would be the most effective result of the family law inquiry to ensure the safety of children?
Honestly, I don’t know what it would take to reform the family law system. Policy changes alone won’t fix it – this is a cultural problem that is throughout the family law system. Even if the government follows the Australian Law Reform Commission recommendation to revoke the presumption of shared parental responsibility, that in itself won’t change the minds of experts and judges who routinely minimise the impact of domestic abuse and disbelieve victims and their children. The Gillard government made significant changes to the Family Law Act in an attempt to reprioritise children’s safety, but we keep seeing the same old stories repeating. Child makes disclosure, child is disbelieved, protective parent fights to limit the abusive parent’s access, and they either end up losing custody altogether or being coerced to agree to shared parenting arrangements that are unsafe for them and their children.