1 INQUIRY INTO THE AUSTRALIAN SYSTEM 2019

2020

SUBMISSION RESPONDING TO THE TERMS OF REFERENCE OF THE INQUIRY

DOMESTIC VIOLENCE AND FAMILY LAW

Domestic violence has become a prominent issue both in Australian society and Family Law and it is important to understand why this has occurred and what are the real reasons and statistics behind it.

The debate and controversy has clearly become polarized along gender lines and highly politicized in the media and family law. Women’s groups and Women’s political lobby organizations have been claiming that there is an epidemic of domestic violence and that the victims are almost exclusively women and that the perpetrators are almost exclusively male. Consequently they have lobbied media organizations and governments to such a level over an extended period that any alternative viewpoints are deemed objectionable and police procedures and laws, including Family Laws, have as a result reflected these polarized views and now become highly questionable.

Many researchers, social commentators and political observers are now questioning domestic violence research and statistics as well as media campaigns and laws that have been demanded by women’s organizations and aren’t solving the claimed problems.

Swedish politician and leading Swedish feminist, Eva Solberg, believes that domestic violence is not a gender issue and disagrees with the Swedish government’s policies on domestic violence which are very similar to those in Australia. Eva expresses her serious concerns in the following report, first published on Nyheter 24 website, July 2015, reproduced in full below :-

“Intimate partner violence (IPV) is not a gender issue – its time for family peace.

In the last few days the results of the government investigation of IPV have been presented to me by the responsible minister. After reading them I am compelled by reality to present a disapproving note to both the investigators and the government who still seem to be of the view that sexism is the solution to the problem of domestic violence.

The tone and the division was already defined right from the title – “The National Strategy to Combat Men’s Violence Against Women” – inferring that we have a guilty sex and an innocent sex. But thanks to extensive research in the field, both at the national and international level, we now know with great certainty that this breakdown 2 by sex is simply not true. We also know through extensive practice and experience that the attempts to solve the issue through this kind of analysis have failed. And they failed precisely because violence is not, and never has been a gender issue.

In Sweden, however, even the slightest questioning of the current model has been regarded as swearing in an otherwise quiet and echoing church. Few are those who have dared to openly question the current model, but it is about time to start doing so. Sweden is, or in any case should strive to be, a knowledgeable society. This society is characterized above all by its willingness to be guided by free and politically independent research when it comes to making decisions affecting all of us. As such, careful analysis and lessons of accumulated experience ought to be an important criterion in decision making.

The efforts conducted so far aiming to end IPV have not been working. This is acknowledged by the government . The reason for this should obviously be analyzed carefully. And, whatever the reasons for analyzing, we can be sure of one thing. The road for a solution for this problem is hardly to stubbornly continue to feed the patient with more of the same medicine that has already been tried unsuccessfully for decades. It is time to raise the bar.

The available knowledge out there is not lacking in substance. In what has become to be known as the Partner Abuse State of Knowledge Project (PASK), which is the world’s largest research database on IPV. No less than 1700 scientific papers on the topic are summarized. Virtually all differ in their conclusions from the tired gender analysis that the government has once again introduced.

When such a considerable amount of research is evaluated, some clear and interesting patterns emerge. One such pattern is that violence in the family, rather than being gender-bound, appears to rather be an inherited generational problem. To know this and then continue to ignore the damage done to the children who are today subjected to violence is a huge social betrayal. We condemn these children thus to repeat the patterns they have learned from their parents and by doing so we ultimately condemn our society to continue to perpetuate the problem with enormous costs in both money and personal suffering.

Enskede Arsta Moderates, where I am the chairwoman of the opposition alliance in the district, has taken a clear and continuing responsibility to prioritize the work on domestic violence in the direction of prevention. In our efforts, we prioritize the efforts to be more legally secure. We are also the first district of Stockholm to have introduced the anti-DV program FRISDAM combined with treating both men and women. By doing so, we have demonstrated the importance of seeing the big picture when violence occurs in families without prejudices and preconceptions. We had hoped that our unique approach would be spread to more locations but unfortunately this has not yet been the case.

Another aim of ours was to provide better care for children and increase the quality of the social services. This, however, never got fully implemented.

Very often I, as a politician, talk with parents who don’t get to meet their children. I have also heard many children talking about how they witnessed major vulnerabilities in the processes that are intended to protect them. This is, of course, completely unacceptable. I am also deeply concerned with the one-sided focus on men being 3 seen only as perpetrators in cases involving domestic abuse. I have met and spoken with many fathers and children who have witnessed and experienced very different reality. The research also provides evidence to their stories that, yes, women also use violence within families. Both the partners and the children can be victims. If we view women only as victims, doesn’t this set up these men and their children to be in a disadvantaged position? If we as women do not stand up for these men, who then will do it? Any form of violence is illegal and must be combated.

Therefore as the chairwoman of the Women of the moderate party in Stockholm, I intend to initiate a process where we meet with and listen to all of those who in any way have experience with domestic violence. I also welcome the representatives of the authorities, such as social workers, police officers and others to contact us and bring their experiences into the discussion as well. And above all I want to see those exposed to or subjected to unjust legal sanctions that hit the children due to misuse of authority, prejudice, ideological tunnel vision or whatever the cause might be. This of course applies to both men and women.

Without more transparency and openness regarding the vulnerability of those who are otherwise entitled to a protective family life which has been threatened or destroyed, we will never manage to create a better society. We now learn from the National Public Health Institute that the risk of suffering from mental illness, substance abuse and other conditions that lead to social vulnerability is twice as high for children who are deprived of one or both of their parents. We also know that every day children are being taken away by one of their parents, both within Sweden and from Sweden to abroad, and the distrust of the parents towards the responsible authorities is growing at an alarming rate.

We have started daring to see and talk about this difficult and complicated problem. And we must begin to recognize the fact that domestic violence, in at least half of its occurrence is carried out by female perpetrators. Otherwise, our efforts to protect the most vulnerable among us, the children, will never become more than just an aspiration. We will continue to fail in the attempt to help families break the destructive pattern.

Let us now stand together, not divided by sex, once and for all, commence to break the destructive patterns wherever they occur. Do you want to help us with that? “

DOMESTIC VIOLENCE STATISTICS - PASK STUDY

The Partner Abuse State of Knowledge Project (PASK) is the most comprehensive in the world, detailing and examining results of 1700 research studies on inter personal violence (IPV) from a range of countries around the world.

A summary of some of the findings of this project are detailed below :- (https://domesticviolenceresearch.org/domestic-violence-facts-and-stastics-at-a- glance)

Victimization Overall 22% of individuals assaulted by a partner at least once in their lifetime (23% females, 19.3% males) 4

Perpetration * Overall 25.3% of individuals perpetrated IPV * Rates of female perpetrated violence higher than male perpetrated violence (28.3% vs 21.6%) * Wide range in perpetration rates : 1.0% to 61.6% for males, 2.4% to 68.9% for females

Emotional Abuse and Control * 80% of individuals have perpetrated emotional abuse * Across studies 40% of women and 32% of men reported excessive abuse, while 41% of women and 43% of men reported coercive abuse

Context – Bidirectional vs Unidirectional * Among large population samples 57.9% of IPV reported was bidirectional, 42% unidirectional : 13.8% of the unidirectional violence was male to female (MFPV), 28.3% was female to male (FMPV)

Effects of Partner Violence and Conflict on Children * Significant correlation between witnessing mutual PV and both internalizing (eg anxiety, depression) and externalizing outcomes (eg school problems, aggression) * Children and teens exposed to female perpetrated PV significantly more likely to aggression against peers, family members and dating partners

Results of the PASK study clearly show that violence in domestic relationships is definitely not gendered but perpetrated by both males and females approximately equally. In fact, with many parameters IPV is somewhat greater by females against males.

Also of significant interest and concern is that a majority of IPV reported was bidirectional, where both partners are involved in a two way exchange of violence against each other. Unidirectional violence was lower for both sexes but twice as high by females against males than by males against females.

What is of greatest concern is that mutual violence between parents in a relationship is having a very significant negative effect on children who are witnessing that violence, with children suffering anxiety, depression, aggression and school problems.

OTHER DOMESTIC VIOLENCE STUDIES

Many other domestic violence studies report very similar findings to those of the PASK Project.

Dr Warren Farrell, author and academic of both women’s and men’s studies, in “Women Can’t Hear What Men Don’t Say” ( page 129) reports that :-

“…….despite their assumptions that men were the abusers, every domestic violence survey done of both sexes over the next quarter century in the United States, Canada, England, New Zealand and Australia – more than 50 of which are annotated in the Appendix – found one of two things : women and men batter each other about equally, or women batter men more. In addition, almost all studies found women were more 5 likely to initiate violence and much more likely to inflict the severe violence. Women themselves acknowledged they are more likely to be violent and to be the initiators of violence. Finally, women were more likely to engage in severe violence that was not reciprocated. The larger and better designed the study, the more likely the finding that women were significantly more violent.” It is often claimed that women only respond to violence after it is initiated by men, however Warren Farrell (Women Can’t Hear What Men Don’t Say page 139) cites evidence to the contrary, suggesting that women are about twice as likely to initiate violence than men in relationship disagreements.

“ One of the valid objections to the initial domestic violence surveys was that perhaps women were violent only in self-defence. Interestingly, when Straus and Gelles checked this out, they asked only women their opinion as to who had struck the first blow. Their findings? Even 53 percent of the women acknowledged they had struck the first blow.

Other researchers asked both sexes. And asked not only who struck the first blow, but who did so without retaliation. Here is what they found:

Who struck the first blow in year prior to marriage? Men 13 percent Women 26 percent

Who struck the first blow 6 to 18 months after marriage? Men 8 percent Women 17 percent

Who struck the first blow 18 to 30 months after marriage? Men 9 percent Women 16 percent

Many studies now confirm women being more likely to strike the first blow, or to be severely violent without the husband reciprocating.”

FALSE ALLEGATIONS OF DOMESTIC VIOLENCE

It is widely believed across Australia that AVO and DVO orders are very regularly misused as tactical weapons in separation and Family Law disputes between partners with issues of and property settlement.

Men’s Rights Agency reports that estimates provided to the Agency by Court Staff and Prosecutors suggested that only 5% of applications for domestic violence orders were legitimate in their claims.

In 1999, a survey conducted with 60 serving NSW magistrates, conducted by the Judicial Commission of NSW found that 90 percent believed domestic violence orders (AVO’s) were used by applicants – often on the advice of a solicitor – as a tactic in Family Court Proceedings to deprive their partners of access to their children.

A further study of Magistrates found that three out of four who responded believed parents use domestic violence protection orders as a tactic in and 6 custody battles. Like their counterparts in NSW several Queensland Magistrates believed many women applied for domestic violence orders on the advice of their solicitors.

To address these very serious problems, urgent reform is needed with police domestic violence procedures, Local Court AVO and DVO laws and processes, as well as Family Court Laws and processes. Strict evidence based standards with proof beyond reasonable doubt, are urgently required for the granting of AVO’s or DVO’s in Local Courts or for their use in the Family Court.

VIOLENCE, GENDER AND SUPPORT SERVICES IN THE AUSTRALIAN FAMILY COURT

Just as it has been very eloquently argued by Swedish feminist Eva Solberg that domestic violence is not a gender issue, likewise Family Law should not be a gendered jurisdiction nor should the Family Court be a gendered place, however, this is unfortunately not the case. The experience of the majority of fathers going through the Australian Family Law System is generally extremely negative, and justice, particularly for children, is almost impossible to achieve. Fathers find that not only are laws, particularly relating to issues such as domestic violence unjust, but so also are legal processes such as rules of evidence and decision-making. Applicants who have made domestic violence applications receive legal aid while respondents do not and must represent themselves if on low income, as legal aid is denied on grounds of merit. These experiences are unjust and discriminatory for fathers in the Family Court and should be addressed in the context of this Family Law Inquiry. In addition, the Family Court should provide much greater services and legal assistance for self represented litigants including duty solicitors, advocacy support, meeting rooms and computer support.

NEGATIVE EFFECTS OF DOMESTIC VIOLENCE LAWS

Family Laws, Local Court Laws and Police Laws/Procedures regarding violence and domestic violence are now largely based on allegations requiring little or no levels of proof or evidence. Thousands and thousands of fathers who have had allegations of violence falsely made against them or that have not been proven beyond doubt in court, have been removed from their children’s lives. Even where allegations of violence are admitted, research shows that their female partners are likely to have been equally violent during the relationship at least 50% as often or more, with equal levels of violence. Many children have already learnt behaviors from their parents before they separated, and are now placed in sole custody of the mother who is at least 50% statistically likely to be domestically violent based on irrefutable international and national research. Additionally, many fathers who have been removed, have been falsely accused and not been violent, and are now not with the children to provide beneficial fathering and non-violent parenting.

The result is that there is an ever growing number of children in society that have been removed from their fathers and have learnt violence and many other negative social behaviors during their parents relationship, from their mothers, each other and by not having their own good fathers in their lives. Consequently, domestic violence laws and government policies on domestic violence are a very large part of the 7 problem and are now compounding and accelerating the domestic violence problem over time. The domestic violence problem will never therefore be solved with the current laws and Government policies in Australia.

SHARED PARENTING AND EQUAL CUSTODY

Family Law reform groups in Australia have been advocating the introduction of an equal custody presumption into Australian Family Law for at least 20 years. In 2006 Family Law reforms introduced a presumption of equal parental responsibility into Australian Family Law, which was very progressive and began a process of very positive change in Australia. However, this was eroded by changes in 2007 and further seriously damaged by retrogressive changes in 2011.

The concept of shared parenting through equal custody laws, provides the fairest and most equitable outcome for separating families and keeps both children and parents in significant or maximum contact with each other post separation.

Shared parenting laws were introduced in Kentucky, USA in 2017 with the main legislation coming into effect in 2018 and are proving to be vey successful and popular as indicated in the following report by Matt Hale (courier-journal.com August 30, 2019)

“Kentucky’s popular joint-custody law shows why it’s the most effective at helping families

Last year, Kentucky passed the nation’s first complete ‘shared parenting law’ which was called the state’s most popular law of the year. The law created a starting point that both parents have equal child custody time if the parents are fit caregivers. The Bluegrass State’s citizens voiced their support by a whopping factor of 6 to 1.Now the Administrative Office of the Courts has issued a report that the law is as effective as it is popular.

Quite simply, the new law’s results are spectacular. Kentucky’s family court caseload and domestic violence cases had been rising, which is expected because our state’s population is increasing. But, in early July 2017, that trend abruptly stopped and family court cases and domestic violence filings began declining. Why? July 17 is when Kentucky implemented a partial version of the shared parenting law. The next July, Kentucky’s full-blown shared parenting law took effect and the family court caseload and domestic violence filings dropped further.

The state’s population continued to grow, and there were no other changes to family court law. The shared parenting law is the ONLY explanation for the improvement and is benefits were even expected. Primary sponsor Rep. Jason Petrie, R-Elkton, said, “The decrease in family court filings is consistent with the anticipated effects of the shared parenting law.”

8 The year before Kentucky had any shared parenting laws, beginning July14, 2016, and lasting 365 days, there wee 22,512 family court cases filed. They declined to 21,847 the year the partial shared parenting law began. When the complete shared parenting law took effect in the last 12 months, new cases plummeted to 19,991. In other words, Kentucky’s families filed to sue each other in family court more than 11% less despite the state’s population growth.

The highest conflict cases, those with domestic violence claims, showed a similar decline. Domestic violence violence claims declined by 248 in 2017 when the partial shared parenting law was enacted. Further, the decline of domestic violence accelerated by dropping an additional 445 cases as the complete shared parenting law took effect in 2018 versus the prior year. In comparison, family court adoption filings were up by almost 10% in the three year timeframe.

Even more profound is that Kentucky expanded its domestic violence definition to include dating in 2016. Then, in 2018 the state began requiring a much broader form of domestic violence reporting. However, the upward domestic violence trend, state population growth, broader definition of domestic violence and stronger reporting criteria, which would all make one expect a domestic violence increase, were less powerful than the soft touch of the shared parenting law. That soft touch included conditions such as the “friendly parent factor” which allows a judge to consider which parent would be more likely to help the other have a meaningful relationship with the child.

Shared parenting supporter and the president of Parental Alienation in Kentucky, Alexandra Beckman, said “It’s common sense that shared parenting laws laws lessen parental conflict. As a domestic violence survivor who speaks with alienated mothers every day, I can personally state that Kentucky’s Shared Parenting Law is lessening domestic violence.” Family court judge and Commission Chair Lucinda Masterton stated a similar opinion about parental fighting in general. “We’ve had a lot fewer – since the (shared parenting) statute, we’ve had a lot fewer disagreements about parenting time.”

The joint-custody law is helping Kentucky in yet another way. As parents sue each other less, the state has fewer cases to process. This allows judges more time to focus on the more difficult cases to process. This allows judges time to focus on the more difficult cases including domestic violence situations. Also, taxpayers are paying for fewer cases to go to trial. Separating parents are less frequently paying large attorney fees, too. These transitioning families now will keep more of their own money during family changes. That money goes back into the state’s economy in normal productive ways instead of legal fees.

The question now is which state will pass Kentucky’s shared parenting law next. Could it be Oklahoma where state Rep. Mark Lawson introduced a similar bill while calling Kentucky’s law “a motivator” for his? How about one of our neighbors like Indiana, Missouri, Ohio or West Virginia? Our neighbors there would benefit from fewer domestic violence cases, lower costs to taxpayers, better lives for children and more money for families. With results like this, Kentucky’s shared parenting law will one day become America’s shared parenting law.”

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THE IMPORTANCE AND ROLE OF FATHERS IN CHILDREN’S LIVES

The research on fathering is indisputable : Fathers have a crucial role to play in the cognitive, social, emotional, psychological, intellectual, communicative and practical development of their children. Fathers are also extremely important for children in many other ways and provide their children with critical thinking, motivation, communication skills and independence that will benefit them throughout their lifetime.

Another very important role of fathers in child development is to facilitate the child in separating from their mother and becoming an independent person in the world, and at the same time assisting the mother in separating from the child. If this process is interfered with through unreasonable removal of the father by a flawed Family Law System, a critical child development process will be denied to the child and the relationship with the mother may become dysfunctional and damaging to the child and the child’s future.

Fathers more than mothers are able and willing to prepare their children for life in an increasingly complex and challenging world where confidence, decision-making and discipline are important life skills for survival.

Research also clearly shows that where fathers are removed or become absent from children’s lives, the children suffer significantly and are also affected negatively for the rest of their lives.

With increasing rates of family separations since Family Law changes in 1975 and escalating rates of the removal of fathers from children’s lives over that time, we now have an epidemic of social maladies affecting several generations of children, teenagers and young adults sweeping across Australia. These problems include disrespect for authority, violence and abusive behaviors, personality disorders, drug addiction, mental illness including depression, school truancy and serious educational disadvantages, homelessness, poor diets and obesity, unemployment, delinquency, crime, poor social skills and chronic relationship problems.

The personal, social and financial costs of this situation is completely unacceptable.

A critical part of the solution to these problems is the reform of Australia’s Family Law System whereby fathers are returned to children’s lives with laws that protect the rights of children to benefit from having their fathers in their lives, and laws that protect the rights of fathers to be parents to their children.

The best parent is both parents for every child in Australia.

The only way to achieve this fairly and justly in the best interests of the child, is to have the principles of equal custody and shared parenting as the fundamentals of the Australian Family Law System. We will then join the Citizens of Kentucky and many others around the world who are now recognizing that enshrined presumptions of equal custody in family law are the most important possible investment for the future of our children and our societies.