No Escape from Violence: The Silencing of Women and Children

1
No Escape from Violence The Silencing of Women
and Children

• Marie Hume
• National Abuse Free Contact Campaign

2
Violence following separation

• The time of separation can be the most dangerous
  time for women and children experiencing domestic
  violence and child abuse (Jaffe et al 2003, Kaye
  et al 2003).
• In Australia, women are more likely to be killed
  by a male partner or ex-partner than by any other
  person (Mouzos 1999) and it is estimated that
  25-50 percent of women killed by intimate
  partners are killed in these circumstances (Polk
  1994 Mouzos Rushford 2003).
• Australian homicide data indicates around 75
  mothers and children are killed by husbands and
  fathers each year in the context of domestic
  violence and family breakdown (Mouzos and
  Rushforth 2003).

3
Violence following separation

• A study by the Australian Institute of Family
  Studies found that 66 percent of separating
  couples pointed to partnership violence as a
  cause of relationship breakdown, with 33 per cent
  describing the violence as serious (cited in
  Brown et al 2001).

4
Culture of contact

• Despite significant research showing that
  domestic violence and child abuse are a major
  problem within the separating family, the most
  recent changes to the Family Law Act have done
  little to address gendered violence against women
  and children. My thesis in this article is that
  not only are our current child protection and
  legal systems failing to protect women and
  children at this time, the current culture within
  these systems is such that they contribute to
  ongoing abuse and violence.

5
Fatherhood ideology Good fathers/Bad mothers

• Perusing the parliamentary reports and
  government responses make it clear that the
  problem representation was constructed to be
  absent fathers in the lives of children post
  separation. The concern was expressed in the
  form of a childs right to a meaningful
  relationship with both parents underpinned by the
  belief that fatherlessness impacted negatively on
  children (Samson, 2004, p. 33). (J. Taylor,
  2007)

6
Gendered division of labour

• Within the intact family it is still true that
  there is a gendered division of labour, with
  mothers continuing to carry out the main
  responsibility for children, sacrificing things
  such as their position in the labour market. Not
  only are mothers obliged to provide the majority
  of the physical responsibilities of parenthood
  but also the emotional relationships within the
  family.
• This gendered division of labour only becomes a
  problem for fathers on divorce" (Smart p. ix).

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Power and Control

• the essence of most fathers rights arguments
  that mothers should continue to do the work of
  primary parenting and fathers should continue to
  have control over the form that maternal
  parenting takes. (Boyd p.3)

8
Bad Mothers

• Mothers, in the fatherhood discourse have been
  constructed as self-interested and the cause of
  father-absence in childrens lives.
• Rhoades describes the paradigm of the bad mother
  in Australian family law as the no-contact
  mother (Rhoades 2002, p.4).
• Thus a story has developed where denial of
  contact by mothers is the major reason fathers
  do not spend more time with their children after
  separation.

9
Opt in/Opt out Parenting

• Rhoades points out how non-resident fathers can
  breach the terms of contact orders with impunity.
• A non-resident fathers failure to maintain
  contact with his children attracts no legal
  sanction while the mothers failure to encourage
  contact attracts penalties (Rhoades 2002, p.8)

10
Maintenance of relationships

• So, as in the intact family, separated and
  divorced mothers continue to be held responsible
  for the maintenance of relationships within the
  family and are penalized by the family law system
  if they fail in this task.

11
Mothers promote contact

• This is despite empirical studies showing that
  the majority of mothers promote the idea of
  children spending more time with their fathers
  (M. Maclean and J. Eekelaar 1997, as cited in
  Collier and Sheldon, 2006 (p.9) McInnes 2007)
• The survey date identified that separated
  resident mothers were generally strongly
  supportive of fathers maintaining contact with
  their children after separation. (McInnes 2007,
  p.32)

12
Womens autonomy restrained

• In the same way that womens autonomy and self
  determination is deliberately impeded in domestic
  violence, the new legislation also constrain
  women from self determination.

13
Degendering of Violence

• mens abuse of women is historically,
  statistically and globally the predominant
  pattern and the one that causes the most fear and
  physical harm (p.56)(Mirrlees-Black 1999).
  (Humphreys and Stanley)

14
Silencing Womens Voices

• These zones of uncertainty create sufficient
  ambiguity to silence talk of the violence, and
  this is why mutual responsibility and gender
  neutrality is so insidiously dangerous for women.
  They effectively fudge the effect on women of
  mens violence against them. (Towns )

15
Power and Control Strategies

• It is the psychological violence that we find
  the foundation of mens violence against women
  the power and control strategies that keep her in
  a subordinate position in order to support a
  mans perception of manhood, womanhood, and
  intimacy. In this context, psychological violence
  can be seen as the basis for all other forms of
  violence. (Humphreys and Stanley)

16
Interpersonal Conflict Paradigm

• Safety issues become invisible as concerns about
  violence and abuse are subsumed under the
  interpersonal conflict paradigm.
• Where violence in interpersonal relationships is
  seen as occurring on basis of equality, the
  violence is reduced to interpersonal relationship
  problems and disputes, and renders women and men
  as equally complicit.

17
Interpersonal Conflict Paradigm

• The fathers movements have taken their
  experiences of these interpersonal conflicts and
  reframed them as issues of justice and
  inequality. In doing so they have obscured the
  structural basis of the gendered division of
  labour that supports and sustains womens greater
  role in child care, and have turned mothers
  objections into an apparently self-interested,
  child harming defence of the status quo. Smart
  2006

18
Best interests of the child

• In determining this, there will be two primary
  criteria
• meaningful relationship with both parents
• protection of the child from physical and
  psychological harm
• The drafting of the legislation emphasizes the
  parents right to meaningful involvement at the
  expense of child/rens right to safety

19
Fulfilling Responsibilities/ Facilitating
Relationships

• Section 60CC (3) and (4) outline the friendly
  parent or facilitating parent provision in the
  Act which may also deter women from disclosing
  the existence of male violence against women and
  children.

20
Family violence/child abuse

• Change to the definition of family violence
• to include an objective assessment as to
  whether the victims fear is reasonable (despite
  research evidence that only the victim knows the
  signs that are likely to lead to violence)
• Flood (2005) and Young (1998) have argued that
  the standard of proof demanded by Family Court is
  higher than for the formal civil standard of a
  balance of probabilities. (Braaf and Sneddon,
  2007, p.7)

21
Family violence/child abuse

• Cost orders for false allegations
• Where the court is satisfied that a party to
  proceedings knowingly made a false
  allegation/statement, the court must order that
  party to pay some or all of the costs of the
  other party
• Protective parents risk losing residency
• No such equivalent penalty exists for false
  denials

22
Family violence/child abuse

• The most carefully conducted research (such as
  Johnston et al.,2005) suggests that the majority
  of allegations of family violence are
  fundamentally valid. (AIFS,p.166)

23
Barriers in family law

• The combination of
• Stricter definition of family violence
• Penalties for false accusations
• Friendly parent consideration.
• Likely to act as a significant deterrent to
  women disclosing the existence of male violence
  during divorce or separation proceedings.

24
Fragmented systems

• Domestic Violence System - feminist,
  women-centred approach
• Child Protection System - coercive and
  authoritative history
• Family Law System

25
The operation of child protection systems in the
context of family law?

• In fact child protection systems have actively
  sought distance from the family law arena for a
  number of reasons, not restricted to a lack of
  resources to respond adequately to child abuse
  notifications.

26
Child Protection Responses

• All child protection research on domestic
  violence, both in Australia and elsewhere,
  mentions the way in which child protection
  workers focus on women as mothers and their
  failure to protect their children from domestic
  abuse, rather than on the perpetrator of
  violence.
• This focus prevents services from adequately
  responding to the dangers of separation and too
  often construing separation as the only possible
  safety strategy. (Humphreys 2007, p.8)

27
Failure to investigate allegations

• There is also a view within child protection
  systems that once a woman has separated from an
  abusive partner that it is the responsibility of
  the family law to investigate and make
  determinations around the safety of women and
  children.
• Family Court has no jurisdiction in care and
  protection cases (which are the responsibility of
  State and Territory law) (Harrison, 2007) neither
  does it have the capacity to conduct
  investigations. Without an investigation and
  supporting evidence of abuse, the family court
  proceeds on the basis that the allegations being
  made are false.

28
Link between domestic violence and child abuse

• A failure, in both child protection fields and
  the family law system to acknowledge and confront
  the link between domestic violence and child
  abuse.
• This failure makes invisible domestic violence,
  or is treated as different from the child abuse.

29
Family Relationship Centres

• Family relationship centres will play a
  critical role in shaping (or perhaps re-shaping)
  the family law system as a whole but, because
  they are fundamentally outside legal discourse
  and conventions, they may develop a practice
  framework in which key concepts behind the
  legislation and government rhetoric receive more
  attention than the 2006 Act itself. (Rathus,
  2007, p13)

30
Family Relationship Centres

• the provisions about shared parenting and the
  strong philosophical positioning of family
  relationship centres as so compelling that
  agreements reached by parents will be bargained
  in the shadow of shared parenting and equal time
  type notions which are
• deeply embedded in the scripts, promotional
  material and training that are integral part of
  this reform package (Rathus, 2007 p. 74)

31
Dispute resolution?

• I recall a domestic violence worker saying at a
  meeting I went to that one of the most
  disempowering things that you can do to a victim
  of domestic violence is to describe her
  experience as a dispute. (Behrens, J (2005)
  (p.8)

32
Certificate for Family Dispute Resolution
Practitioners

• A family dispute resolution practitioner may give
  one of these certificates to a person in the
  following circumstances
• A certificate to the effect that the person did
  not attend family dispute resolution with the
  practitioner and the other party, but the
  persons failure to do so was due to the refusal,
  or the failure, of the other party to attend
• A certificate to the effect that the person did
  attend family dispute resolution with the
  practitioner and the other party, and that all
  attendees made a genuine effort to resolve the
  issue(s)
• A certificate to the effect that the person did
  attend family dispute resolution with the
  practitioner and the other party, but that the
  person or other party did not make a genuine
  effort to resolve the issues.

33
Certificate for Family Dispute Resolution
Practitioners

• Those parents whose attitude offends the culture
  of cooperation may find themselves with a
  certificate that they did not make a genuine
  effort to resolve the issues. These may label
  future litigants as uncooperative in the court
  system before they have even filed. (Rathus,
  2007, p. 58)

34
Problems with Mediation and Dispute Resolution

• Screening and assessment tools not foolproof
• Focus only on physical violence
• Disclosure of violence often difficult for women
  and children
• Failure of mediators to recognize male violence
• Neutrality of mediators power imbalance
• Women pressured into agreements, particularly
  given paradigm of shared parenting.

35
Looking forwards violence made invisible

• The family law system is not interested, either
  in Australia or in Britain, in examining past
  conduct except where a clear link can be drawn to
  childrens bests interests (Smart and May, 2005,
  p. 9), and even then in a way which looks
  forward, rather than backwards. While domestic
  violence is clearly fundamentally linked to
  childrens best interests, this link is not
  always readily drawn, and where it is drawn it is
  often with some considerable degree of
  ambivalence. (Behrens, 2005, p.7)

36
Relevance of violence to parenting

• the family law system, pre-occupied with no
  fault rhetoric, simply is not concerned with
  acknowledging wrongdoing. Even where a victim is
  able to establish that such violence has occurred
  (an extremely difficult task), the focus will be
  upon the future parenting of children, and in
  ways which fail to acknowledge or make reparation
  for the effects of the violence on mother and
  children and generally fail to see the relevance
  of that conduct to future parenting.(Behrens,
  2005, p.12)

37

• If we were to really take into account the roles
  sexual coercion and violence play in shaping
  human culture and personal identity, fundamental
  structures of thought could well be shaken and
  changed. Such great shifts in world view unsettle
  even those whose privileges and self-images are
  not directly threatened by them (Olafsen et al,
  1993)

38

• it will not happen because child sexual abuse
  (read male violence) is peripheral to major
  social interests but because it is so central
  that as a society we chose to reject our
  knowledge of it rather than make the changes in
  our thinking, our institutions, and our daily
  lives that sustained awareness of child sexual
  victimisation (read victimisation of women and
  children) demands (Olafsen, et al, 1993, p.19)