No Escape from Violence:
The Silencing of Women
and Children
Marie Hume
National Abuse Free Contact
Campaign
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).
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).
“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.
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 child’s 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)
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).
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)
Bad Mothers
 Mothers, in the fatherhood discourse have been
constructed as self-interested and the cause of
father-absence in children’s lives.
 Rhoades describes the paradigm of the bad
mother in Australian family law as the ‘nocontact’ 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.
Opt in/Opt out Parenting
 Rhoades points out how non-resident
fathers can breach the terms of contact
orders with impunity.
 “A non-resident father’s failure to maintain
contact with his children attracts no legal
sanction while the mother’s failure to
encourage contact attracts penalties…”
(Rhoades 2002, p.8)
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.
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)
Women’s autonomy restrained
 In the same way that women’s
autonomy and self determination is
deliberately impeded in domestic
violence, the new legislation also
constrain women from self
determination.
Degendering of Violence
 “…men’s abuse of women is historically,
statistically and globally the predominant
pattern and the one that causes the most
fear and physical harm” (p.56)(MirrleesBlack 1999). (Humphreys and Stanley)
Silencing Women’s 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
men’s violence against them.” (Towns )
Power and Control Strategies
 “ It is the psychological violence that we
find the foundation of men’s violence
against women: the power and control
strategies that keep her in a subordinate
position in order to support a man’s
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)
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.
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 women’s
greater role in child care, and have turned
mothers’ objections into an apparently selfinterested, child harming defence of the status
quo.” Smart 2006
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/ren’s right to safety
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.
Family violence/child abuse
 Change to the definition of family violence:
 to include an “objective” assessment as to whether
the victim’s 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)
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
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)
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.
Fragmented systems
 Domestic Violence System - feminist,
women-centred approach
 Child Protection System - coercive and
authoritative history
 Family Law System
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.
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)
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.
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.
Family Relationship Centres
 “Family relationship centres will play a
critical role in shaping (or perhaps reshaping) 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)
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)
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)
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 person’s 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.
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)
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.
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 children’s 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
children’s 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)
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)
 “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)
 “…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)