Megan Gorrey Reporter at The Canberra Times
January 4, 2016
Domestic violence victims have been frustrated by federal laws that enabled their abusive ex-partners to get away with continued harassment and intimidation when they arranged custody of their children.
A gap between legal jurisdictions means offenders can call and text message their ex-partner to discuss custody of their children under federal Family Court provisions, even if they have a domestic violence order from the Magistrates Court that otherwise prevents contact.
It has also created a grey area for police, who victims say have been reluctant to record a domestic violence order breach because that order was outweighed by the Family Court joint custody arrangements.
ACT Victims of Crime Commissioner John Hinchey warned perpetrators used the federal laws as “another weapon in the armoury of their control” over ex-partners and urged police to crack down on those who manipulated the system.
“It causes problems,” he said. “It’s a fraught area but one we need to pay closer attention to.
“Men who manipulate the system and abuse their partners, particularly in the context of family law proceedings, can use the family law protocols to continue their control over their partners.
“It’s not uncommon for them to use their rights to access their children to continue their abuse and use points of contact, such as a handover, to remind their partners they are in control of the victim.”
Mr Hinchey called for swift and forceful action from police if there was enough evidence a perpetrator was breaching an order.
An ACT Policing spokeswoman said court orders made under the federal Family Law Act that allowed parents or carers to contact each other to organise custody were common and would always override a family violence order.
The police spokeswoman said officers investigated any conduct that could constitute a breach of domestic violence order conditions and took a pro-arrest and pro-charge approach to family violence matters.
“ACT Policing members view each case on its own merits taking into account the circumstances of the alleged contact and most importantly the safety issues surrounding the victim and family,” she said.
“[Police] must consider the context and circumstances of the contact including any family law court provisions and orders when establishing if an offence has occurred.”
The problem was highlighted in the Australian Law Reform Commission’s report on a national legal response to domestic violence, which the ACT government committed to formally addressing as part of ongoing anti-domestic violence law reform.
The report pinpointed tensions between the federal family law court and state and territory courts and made a series of recommendations to help improve the way protection and parenting orders worked.
Domestic Violence Crisis Service ACT executive director Mirjana Wilson said clients had raised concerns over Family Court directives overriding domestic violence orders and the problem highlighted inconsistencies between the different court jurisdictions.
“A lot of the changes to the Family Court haven’t put victims at the centre, they’ve put children at the centre and the domestic violence and family violence issues come second to that.”
Ms Wilson said federal laws often assumed domestic violence was a one-off incident, rather than long-term abuse that could continue after a separation, and favoured a parent’s right to see their child.
“Should that always be the case when there are allegations of domestic and family violence? I’m not so sure,” she said.
“Also policing is based on incidents and our structures and systems are based on incidents, usually an incident of physical harm, and if that’s not there the systems often don’t know how to deal with it.”
‘A woman has to be dead before they’ll do anything’
It wasn’t unusual for Canberra mother Hannah* to have more than a dozen text messages or missed calls from her ex-partner on her phone.
The messages were often peppered with derogatory language and abuse, but would always include a reference to seeing the pair’s children.
That was despite the fact Hannah had taken out a domestic violence order against the man that prevented him from contacting her or being within 100 metres of her – except in line with any Family Court orders.
“He would contact me and say ‘I want to see my kids’ but he would also call me or harass me or send me 20 messages a day saying, ‘Can I see the kids’,” she said.
“As long as he said he wanted to see the kids he knew he could get away with it.
“He’s a master manipulator and he knows how to get away with things.”
She said there was a “massive grey area” between the domestic violence order and existing child custody arrangements issued by the Family Court.
Hannah was angered by ACT Policing’s failure to respond consistently and said officers had warned the man over the phone but failed to record a breach when she reported his behaviour.
“The police would say that he was going a bit overboard, but that he was asking to see the kids.
“Every officer you speak to has a different opinion. One said there’s nothing you can do because it’s not a breach, another said it was a minor breach.
“Someone like him with a long history of abuse doesn’t deserve to be given second chances.
“A woman’s got to be dead before they’ll do anything.”
She believed custody arrangements like hers, which were put in place several years ago, should be void if a victim later had to take out a domestic violence order against their former partner.
“I know fathers have a right to see their kids, but if they’re abusing their mother they should lose those rights,” she said.
“It just worries me if he keeps getting away with it we’re never going to get a peaceful life.”
*Name has been changed to protect the individual