ŠĻą”±į>ž’ ˜–ž’’’Ž‘’™’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’’ģ„Į7 ųæ½dbjbjUU .7|7|H[T’’’’’’l¼¼¼(ä xxxŒL“L“L“8„“Œ”üŒøŃĪ–2J˜"l˜l˜l˜"š<š Hš7Ń9Ń9Ń9Ń9Ń9Ń9Ń$†Ō ¦ÖH]ŃxPšü™š"PšPš]Ńܤl˜l˜rŃܤܤܤPš"l˜Rl˜7ŃܤPš7Ńܤ>ܤ­nóĶV"ėŠl˜ – ąŌGÕčēÄŒĄ‹L“rš"ūĪ ėŠLˆŃ0øŃĻŠī֔šH īÖėŠÜ¤ŒŒŁ NCSMC National Council of Single Mothers and their ŗŚĮĻĒé±ØÕ¾ Inc. 220 Victoria Square Tarndanyangga Adelaide SA 5000 Ph: 0882262505 Fax: 0882262509  HYPERLINK "mailto:ncsmc@ncsmc.org.au" ncsmc@ncsmc.org.au http://www.ncsmc.org.au Consultation Secretariat Family Law and Legal Assistance Division Attorney-General’s Department Robert Garran Offices National Circuit Barton ACT 2600 consultation@ag.gov.au 22 December 2004 Dear Secretariat, Please find attached the submission of the National Council of Single Mothers and their ŗŚĮĻĒé±ØÕ¾ to the Discussion Paper, ‘A New Approach to the Family Law System, Implementation of Reforms’, released by the Attorney General on November 10 2004. This submission addresses the specific questions within the Discussion Paper as well as providing information about NCSMC and the needs of children and parents after separation with a particular focus on single mothers and their children. NCSMC would welcome the opportunity to make oral submissions to the Secretariat in support of this submission. If you have any need for further information with respect to the issues raised, please contact myself or the Executive Officer, Jac Taylor. Yours sincerely, Dr Elspeth McInnes Convenor ŗŚĮĻĒé±ØÕ¾ NCSMC The National Council of Single Mothers and their ŗŚĮĻĒé±ØÕ¾ Incorporated was formed in 1973 to advocate for the rights and interests of single mothers and their children to the benefit of all sole parent families, including single father families. NCSMC formed to focus on single mothers’ interests at a time when women who were pregnant outside marriage were expected to give up their children for adoption by couple families and there was no income support for parents raising children alone. Today most single mothers are women who have separated from a partner. Issues of income support, child support, paid work, housing, parenting, child-care, family law, violence and abuse continue as concerns to the present day. NCSMC has member organisations in states and territories around Australia, many of which also provide services and support to families after parental separation. Response to the Discussion Paper NCSMC supports the rights of children to have continuing contact with both parents (and other family members) where this is a mutually chosen, safe arrangement for all parties. NCSMC acknowledges the valuable role and contribution of both mothers and fathers and wider family members to children’s lives. NCSMC acknowledges that shared parenting after separation can have positive outcomes for children when the arrangement is chosen by the parties who can work together and who actively seek to co-operate around a shared understanding of their children’s best interests. NCSMC’s central concern in relation to family law is to firstly ensure that the basic human right to safety of adults and children is upheld in all cases in the family law system. Unfortunately there is a continuing devastating list of deaths of mothers and children who have been failed by the child protection, domestic violence, police, criminal courts systems at a state level and by the family law system at a federal level. Here are some incidents to consider. Aaron DeBaugy 5, Ashlee 17 months and David 7 were poisoned by carbon monoxide in their fathers’ car on a contact visit in Perth in October 1998 after Ronald Jonkers lost custody. August 1999 WA four young children were gassed along with their father Mark Heath after a family court dispute. Rhonda Bartley was shot dead by her ex-partner in Berri in 2000 while attending a court ordered contact handover of their baby daughter. September 2001 Mikaylah Green 11weeks, Taylah Pringle 11 months and Jackson Merrott 6, were smothered by their father on a contact visit in Sydney. August 6 2002 Melbourne a 41 year old mother her 16 year old son and 10 year old daughter were killed in a burning house and the father then crashed his car and killed himself. November 2002, Caringbah, Debbie Dickson Fuller is beaten to death and her 7 year old son Jake is drowned. Her husband Keith was found dead from an overdose. Canberra 2002 Ana Hardwick 35 is strangled allegedly by her former partner after the family court granted her custody of their 11 and 8 year old children. Loretta Lameko, 2 and Faanuu Lameko 5 were stabbed to death by their separated father in September 2003. Jessie Dalton 19 months and Patrick Dalton 13 weeks were smothered by their separated father at Nerang after a family court order in April 2004. April 2004 in North Queensland, Janelle Frazer, Sarah 18 and Julia 9 were killed along with their father in a house fire after he had earlier made threats of violence against them. July 2004, Melbourne, the bodies of Anna Kemp and 2 year old Gracie are found in a dump – killed by their husband and father in April. July 12 2004 Hunter Valley NSW, 30 year old Roxanne Richardson was shot and her 3 year old boy Luke and 20 month old girl Grace were strangled by their 32 year old husband and father who then shot himself. November 21 2004 Eagleby Queensland, 23 year old Jeremy Clark gassed himself and Cameron Olsen aged 2 and Warren Olsen-Clark seven months. He was Warren’s father but estranged from the mother. Cameron was not his child. This list of dead children and adults represents only a proportion of the Australian death toll arising from family violence yet the Discussion Paper does not address this issue. 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). The proposed ‘New Approach to the Family Law System’ is largely ignoring the problem of violence against mothers and children. The proposition that referring cases involving violence and abuse to the Family Court or Federal Magistrates Court will adequately deal with violence avoids acknowledging the identified incapacity of the family law system to deal appropriately with supporting human rights to safety (Brown et al 2001; Family Law Council 2002). This has to change. Australian Institute of Family Studies research (Wolcott & Hughes 1999) indicates that communication breakdown, followed by violence and abuse issues – including substance abuse – are the main reasons for divorce. There is also evidence that people with mental health problems face a higher risk of relationship breakdown (Rodgers, Smyth and Robinson 2004) and conversely that divorce and separation can have adverse consequences for mental health and substance abuse – particularly alcohol abuse amongst men (ABS 1998; Rodgers et al 2004). Lone mothers living on income support have also been identified as having a higher incidence of physical and mental illness or disability, and experiences of violence and abuse (Butterworth 2003). The experience of being a target of family violence or abuse has also been identified as a cause of mental illness – particularly for women (Taft 2003). The ABS (1996) Women’s Safety Survey identified that single previously partnered women experienced the highest incidence of violence, with 42% reporting experiencing violence, mainly from former partners. The Family Law Pathways Report identified that two-thirds of separations involving children feature issues of violence and abuse (FLPR 2001). Although domestic violence IS child abuse, as children experience harms through witnessing violence against their mother and the impact of the violence on their mother’s parenting, there is also empirical evidence that men who use violence against women, often also use violence against their children (Hume 2003; James 1994; Bowker, Arbitell, and McFerron 1988; Brown, Frederico, Sheehan & Hewitt 1998, 2001, 2001a). Around one in four Australian children experience violence and abuse through witnessing violence against their mother or stepmother by a father or step-father (Indermaur 2001). Australian data also indicates that around one in four girls and one in six boys is a victim of child sexual assault - 98% of abusers were male, and 48% were family members (Fleming 1997). The data highlights that domestic violence is a mainstream problem which affects a large proportion of separating families, and that it is a fundamentally gendered crime which cannot be regarded as an isolated individual pathology or rebadged as ‘conflict’ between people. A woman holding a baby who is having her head slammed into a wall by an enraged man is not in ‘conflict’. She is just trying to survive the attack. Having followed many such cases over time, this organisation reluctantly recognises that if the baby’s mother tries to stop the baby being given into the ‘care’ of the man who attacked them, she will most likely lose residence of the child and be placed on supervised contact because the family law system will have constructed her as a ‘danger’ to the child for believing that the father is not safe. If she co-operates and agrees to give the child to the father for injury and abuse, she will be a ‘good’ mother. If he kills the baby and himself she will be a ‘bad’ mother again for frustrating the poor man to the point where he had to kill the child and himself. The key continuing feature will be that the man’s violent conduct will be minimised or denied or attributed to her conduct as provocation.  The lack of data routinely collected on cases involving allegations of violence or abuse limit the understanding of individuals who are involved in the family law system at all levels. The Family Court has just launched a Family Violence policy but it has no outcomes or indicators which would be able to demonstrate the dimensions of the issue and the adequacy of the responses. NCSMC considers that there is an urgent need to systematically collect data on cases involving violence and abuse in order to better comprehend the need for safety reforms and the efficacy of current practices. Some indicators might be: The number of adult users of the court reporting family violence as an issue. The number of adult users of the court reporting family violence who feel safer as a result of the court's response. The number of abuse or violence events which are reported as occurring in court premises or court vicinity or during proceedings. The number of abuse or violence events resulting in criminal prosecution of the offender. The number of family homicides involving parties who have had proceedings in the court. The number of applications for remote access to court due to threat of violence. The number of cases where remote access to court is used due to threat of violence. The number of mandatory child abuse notifications made to state departments. The number of child abuse notifications which result in an active investigation by the state department. The number of interim and final no contact orders in cases involving allegations of child abuse. The number of cases alleging child abuse where the final orders give residency to the parent who was alleged to have abused the child. The number of violent offenders who have been refused access to the court as a consequence of their violent actions. NCSMC recommends that the Relationship Centres proposed in the Discussion Paper operate from a primary safety first principle for children and adults which is enshrined as the threshold condition of determining a ‘child’s best interests’. NCSMC recommends that the ‘best interests of the child’ principle continues to be assessed with regard to each child’s unique situation. NCSMC recommends that the family law system be expanded to include a statutory family homicide review board which investigates and makes recommendations on changes to reduce the risks to safety identified as a result of the investigations and is linked to similar investigative bodies at a state and territory level. NCSMC recommends that the Family Court collect data on the following measures to track and identify the dimensions and responses to violence and abuse within the framework of the Family Violence Policy: The number of adult users of the court reporting family violence as an issue. The number of adult users of the court reporting family violence who feel safer as a result of the court's response. The number of abuse or violence events which are reported as occurring in court premises or court vicinity or during proceedings. The number of abuse or violence events resulting in criminal prosecution of the offender. The number of family homicides involving parties who have had proceedings in the court. The number of applications for remote access to court due to threat of violence. The number of cases where remote access to court is used due to threat of violence. The number of mandatory child abuse notifications made to state departments. The number of child abuse notifications which result in an active investigation by the state department. The number of interim and final no contact orders in cases involving allegations of child abuse. The number of cases alleging child abuse where the final orders give residency to the parent who was alleged to have abused the child. The number of violent offenders who have been refused access to the court as a consequence of their violent actions. NCSMC recommends that the Family Law Act be changed to reflect a primary ‘safety first’ principle which is enshrined as the threshold condition of determining a ‘child’s best interests’. NCSMC recommends that the Family Law Act be changed to require judges to use a structured risk assessment process based on social research into family homicides and family violence and abuse to guide orders which should privilege the safety of all parties in cases where there is a risk to safety established with reference to evidence on the balance of probabilities of previous acts of violence/abuse and or threats of violence. NCSMC recommends that, pursuant to the recommendations of the Family Law Council 2002 report into Family Law and Child Protection, the co-ordination of evidence for family law proceedings with respect to family violence or abuse should be conducted by a national family safety unit attached to the Family Court and investigative powers to pursue information held by police, correctional services, children’s services and education, child protection and health services and family support services with respect to violence or abuse allegations. NCSMC recommends that, Statutory Compensation in Family Law should be available to children who experience further violence or abuse arising after allegations of abuse were made but not investigated/believed, leading to federal court decisions or agreements which enabled further abuse to occur. Compensation should also be available to any immediate family survivors of domestic homicides arising after allegations of violence/abuse/threats were made but not investigated/believed or acted upon in the family law system. What are the support services needed by families going through separation? After separation some parents may need assistance in working out arrangements for children and NCSMC welcomes the proposal to provide free information and mediation and counselling support for parents. The exclusion of lawyers from working with centres will potentially disrupt dispute resolution as matters involving division of property – specifically the matrimonial home – cannot be included. A co-operative working environment which includes family lawyers is likely to be more workable and less contradictory in its outcomes. For example, if the parenting agreement provides that the child shall mainly reside with one parent, yet the property division, which excludes consideration of children’s matters, prevents the residence parent and child living in the family home, the outcome may be homelessness for the child and parent. Information about income support, child support, family payments and housing support is needed. Information about child development, parenting behaviours and their impacts on children’s well-being is needed. Information about the family law system, legal aid and processes to follow when adults or children have been abused or are at risk of future abuse is needed. There is considerable research evidence that providers will also need to link to a range of services including: Conflict resolution and communication programs to assist parents to develop positive strategies to assist their ongoing post-separation relationship; Parenting skills programs to assist carers who have poor or no parenting skills; Drug and alcohol services, Mental health services, Services for parents recovering from living with violence and abuse; Services for parents who use violence and abuse in their family relationships; Services for children recovering from living with violence and abuse; Services for parents and children who are living with continuing post-separation violence and abuse due to inappropriate court orders or agreements. Given that loss of communication, violence, substance abuse and mental illness feature prominently in the circumstances of separation and divorce it is important that support services are able to identify these issues if family members are to receive help rather than unwitting harm due to the service inability to properly recognise what is happening for the family. NCSMC recommends that the Relationship Centres are subject to strict Quality Assurance and Accreditation linked to specialised training in family violence and abuse; child development & child maltreatment; and screening for, and responding to violence and abuse. NCSMC recommends that the Relationship Centres are answerable to a client charter developed in consultation with client representative peak bodies. NCSMC recommends that the Relationship Centres are subject to an Independent Complaints body able to investigate received complaints and report to professional bodies responsible for practice regulation. NCSMC recommends that lawyers are not prevented from working with their clients attending parent advisory sessions. Legal aid and community legal services will need to be adequately funded to ensure such legal representation is available. NCSMC recommends that the Relationship Centres proposed in the Discussion Paper are linked to family homicide review processes where they exist in state and territory jurisdictions. Family homicides involving families who have used the services should automatically be classified as a ‘complaint’ requiring investigation. NCSMC recommends that Relationship Centres link with: Conflict resolution and communication programs to assist parents to develop positive strategies to assist their ongoing post-separation relationship; Parenting skills programs to assist carers who have poor or no parenting skills; Drug and alcohol services; Mental health services; Services for parents recovering from living with violence and abuse; Services for parents who use violence and abuse in their family relationships; Services for children recovering from living with violence and abuse; Services for parents and children who are living with continuing post-separation violence and abuse due to unsafe court orders or agreements. Apart from doctors, child care centres, lawyers and schools, who else in the community can help refer separating parents to Family Relationship Centres? Family Relationships Centres need to develop a presence and safe reputation in the community if they are to be positively regarded and clients can be ethically referred to them. The Discussion Paper’s declared orientation to the needs and interests of men highlights that the centres have been designed to be anti-mothers and children in practice, particularly women and children who have been living with violence and abuse. If practitioners in these centres are to direct parents to particular models of child division, as the Discussion Paper suggests, they cannot simultaneously be free to facilitate the best arrangement for the child’s needs. Instead they are to be constrained to pursue the fathers’ rights ideology and agenda in men’s interests and become another place of fear, persecution and control for separated mothers and children. NCSMC recommends that Relationship Centres support parents to make safe workable arrangements for their children rather than participate in promoting particular models of child division. What other ways could be used to encourage parents to develop parenting plans as the basis for their parenting arrangements after separation? The Discussion Paper assumes that all cases involving domestic violence and child abuse will be screened out. However, it is well established, nationally and internationally, that screening can never identify all cases. For example, Australian research of people attending mediation services has demonstrated that, despite screening and assessment tools used, domestic violence is often not identified (Keys Young 1996, Astor 1991). In addition, the penalties proposed regarding “false allegations” and contraventions of court orders, will act as a deterrent to disclosure. NCSMC is concerned about the Discussion Paper’s emphasis for parents to agree as soon as possible to a parenting plan as the period directly following separation is the most dangerous time for women and children experiencing domestic violence and child abuse (Jaffe et al 2003, Kaye et al 2003). As victims of violence will be attending these Centres, it is likely that they will feel under duress to agree to plans that jeopardise their own and their children’s safety. They will be forced to mediate with a person they are afraid of. Due to the power imbalance between victim and abuser, most will not be able to negotiate an optimum outcome for themselves, without the presence of a lawyer. In fact, Australian Government reports recommend that victims of violence have legal representation before, during and after mediation (Keys Young 1996, Astor 1991). NCSMC endorses the recommendation of the National Network of Women’s Legal Services (NNWLS) that the Family Relationship Centres allow for the provision of early information and assistance but only require dispute resolution sessions to prepare parenting plans to occur anytime within the first 12months after separation. NCSMC further endorses the Domestic Violence and Incest Resource Centre’s (DVIRC) recommendation that parents are able to review these plans after a period of implementation, to assess their suitability and practicability. Family Relationship Centres should provide free follow up sessions to adjust or rework plans. Have you any comments on the proposed information, advice and dispute resolution services to be provided by the Family Relationship Centres? The Discussion Paper suggests the centres will be explicitly pro-father and anti-mother and pursue a predetermined ideology that children should be divided between parents as much as possible. Experience of similar initiatives in the United States and Canada has been documented as structurally mother-blaming in their approach and practices (Fineman 1988; Goundry et al 1999). Mothers who have experienced abuse of themselves and their children but are unable to satisfy the evidence basis that enables them to be believed will be pathologised unless they happily agree to their children seeing their abuser and tolerating continuing abuse. The Relationship Centres should not adhere to any preconceived outcome of child division as each child’s circumstances will be unique. Centres should place ‘the best interests of the child’ at the centre of their practices and design those practices in a ‘child-safe’ model which orients all decision-making to protect children and their family members from abuse or violence. The current biased anti-mother stance outlined in the Discussion Paper limits the credibility and professionalism of the proposed system. Forced mediation has a history of disadvantaging women (Astor 1994). Contact centres have been developed as a service response to assist parents to hand over children to parents who use violence. This is an improvement on police stations for the handover of children to abusive parents however it is also a place where children who are terrified of violent parents are made to go with them. There is a fundamental contradiction occurring between the current provisions of the Family Law Act which indicate that children should be protected from violence yet services are provided to force children’s exposure to violent parents. The routine failure of the family law system to protect children from violent parents ensures the transmission of intergenerational risks of domestic violence and vulnerabilities to mental health and behavioural problems for the children as they grow up (Mullen & Fleming 1998; Mullen, Martin, Anderson, Romans, & Herbison 1993; Mertin 1995; Tomison 1996). As noted earlier, children who have been abused as a result of court decisions or mediated agreements which did not take proper account of disclosures of violence or abuse, should have access to statutory compensation or the capacity to sue the individuals who destroyed their lives by failing in their professional responsibilities to protect them. NCSMC recommends that Relationship Centres support parents to make safe workable arrangements for their children rather than participate in promoting particular models of child division. NCSMC recommends that Contact Centres should have a role in protecting children who do not want to see parents who injure and abuse them. What are the priority services they should be providing? A safety first approach would require a safety audit of each case to examine whether there are any allegations of abuse or violence against any party. Identification of specific child needs – health, education, social. Identification of parents’ circumstances and exploration of the capacity of parents to meet proposed terms of agreements – for example if a parent lives 50km from a child’s school but wants regular contact during the school week, the service should examine how the parent intends to make this work and the impact on the child of such arrangements. NCSMC argues that the child’s interests and needs should be privileged ahead of arbitrary division of the child between parents. NCSMC recommends that Relationship Centres should prioritise information with respect to income support, child support, legal help, housing, health support, parenting support, recovery from violence/abuse, stopping violent/abusive behaviour. What training needs to be provided to help parenting advisers identify violence or child abuse? The prominence and significance of violence and abuse issues in the reasons for relationship breakdown, the short and long term impact on the mental and physical health of family members and the risks to children, demand that services be highly skilled in identifying and responding appropriately to violence and abuse including physical, emotional, social, sexual and financial dimensions of these in both adult and child relationships. Staff will need training in the gender dynamics of domestic violence as women’s and men’s experiences of domestic violence are distinctly different. Women are much more likely to be killed or seriously injured and to develop health problems from living with men’s violence. A recent Victorian study found that intimate partner violence accounted for 9% of the public health burden for Victorian women aged 15-44 (Heenan, Astbury, Vos, Magnus, and Piers 2004). Men’s claims that women are equally violent to them are not supported by any data anywhere and mainly rely on classifying verbal arguments and self-defence actions as ‘violence’(Bagshaw & Chung 1995). Staff will need training to understand the impact of violence and abuse on children’s development . There is also a need to address false beliefs that a parent who is violent and abusive to the other parent can be a safe and functional parent to the children. Research in the United Kingdom examining whether violent fathers’ conduct became less abusive as they increased the duration of time spent parenting their children, found that the violence did not stop or reduce with exposure to parenting, but rather increased the trauma, suffering and abuse of the children (Harne 2003 – see attached at Appendix 2). Partnerships Against Domestic Violence (PADV) projects have identified best practice standards within domestic violence and sexual assault services. Training needs to include understandings of gender and family dynamics of violence and abuse, knowledge of normal child development and the impact of trauma on children at various developmental stages. Parenting advisers need also to have a knowledge of the impacts of trauma and living in fear on adult mental health, as well as the common mental health disorders which are linked to irritable and violent conduct. Financial and other penalties arising from allegations of violence which are asserted as being false will serve to silence victims and provide perpetrators with another tool of control to prevent targets speaking out about their experiences. The Family Court has no investigative capacity to determine whether or not violence or abuse has occurred and relies on the evidence put to it by the parties. Targets of violence are normally (a) traumatised by the abuse (b) impoverished by the abuse and the separation (c) able to get little or no legal help due to legal aid caps and compliance requirements while the perpetrator has no health effects arising from his abuse of other people, is able to maintain employment and afford a lawyer. This means that targets of violence are structurally and systemically inhibited in their capacity to present their case, adding the threat of costs to their cumulative disadvantage is a systems abuse of abused people. It is disturbing that the Discussion Paper appears to focus on this notion of ‘false allegations’ despite research showing consistently and clearly that women and children rarely make false allegations of abuse (Parkinson 1990; Brown et al 2001; Kaye, Stubbs and Tolmie 2003). The prominence of this idea is a clear indicator that men’s rights ideology and not evidence based research is driving the Discussion Paper. The real question is how can we more effectively protect people from violence and abuse – given that violent men produce 75 corpses of women and children each year on average – yet the Discussion Paper wants to promote punitive responses to ‘false allegations’ as another way to prevent victims speaking out. This is a sickening travesty of public policy. NCSMC recommends that best practice standards identified in PADV form the basis of training in responding to domestic violence and further that child development, and the impact of trauma/abuse on children form part of the training. NCSMC recommends that the proposal to award costs against parties ‘falsely alleging’ violence or abuse be abandoned because it will deter victims of violence from seeking protection and used by the perpetrator to further threaten and control them. Are there other things the parenting adviser could do when agreements break down? Life circumstances change over time and this is likely to affect the durability of parenting agreements. Workable agreements should include a process for negotiating change. Research into contravention orders (Rhoades 2002) identifies that concerns about safety and changes in life circumstances which make it harder to meet the terms of the orders/agreement are the most common reasons for contravention proceedings. This suggests that careful review of the safety of all parties and the capacity of parties to meet the terms of the agreement are likely to be the best initial responses when agreements break down. Parenting advisers should not persist with agreements which require adults or children to be exposed to violence or abuse or to otherwise place their safety at risk. All agreements should be reasonable and practically workable in terms of the child’s safety, health, education and social needs and the established capacity of each parent to meet the agreement. NCSMC recommends that agreements include arrangements to make changes to the agreement. NCSMC recommends that services audit agreements for workability and safety. What is the most effective way of supporting pre-marriage education? Participation in pre-marriage education could be promoted through schools relationships education. Assistance with the preparation of pre-nuptial agreements would prompt engaged couples to consider how they plan to manage earning and finances, child bearing and rearing, and other key relationship issues. This would, in practice involve pre-marriage education. NCSMC recommends that services provide assistance to couples to develop a pre-nuptial agreement as part of a pre-marriage education process. What services are needed to help prevent family separation? Given that communication breakdown and violence and abuse, including substance abuse, are the most common reasons given for divorce (Wolcott & Hughes 1999), services should focus on building relationship skills, changing violent behaviour and reducing substance abuse and addictive behaviours (eg alcoholism, internet pornography, gambling). NCSMC recommends that services focus on building relationship skills, changing abusive behaviour and reducing substance abuse and addictive behaviours (eg alcoholism, internet pornography, gambling). How can the Family Relationship Centres best meet the needs of families across Australia? NCSMC recommends that services support the safety of adults and children as a first priority and enact a ‘zero tolerance’ approach to the use of violence. What methods of outreach would be most effective for these sorts of services? NCSMC recommends that services should employ people from culturally and linguistically diverse backgrounds and provide diverse methods of access. What more can be done to make it easier for grandparents to have an on-going relationship with their grandchildren after separation? The actions needed to make it easier for grandparents to maintain contact will depend on each family’s unique circumstances and whether this would involve any increased risk to the child or any of the child’s family. The existing legislation provides for grandparents to have an on-going relationship with their grandchildren after separation. NCSMC is concerned that the potential exists for children to be made accessible to an abusive parent via grandparents. NCSMC supports the recommendations of the National Abuse Free Contact Campaign (NAFCC) that consideration be given to the following questions: Will grandparents be assessed for their suitability/safety for contact? Will grandparents’ court ordered access mean the parent will get less time with their child? (more people to share child’s time)? Will the grandparents’ time need the approval of both parents for the court to order contact time? Will the child be consulted to see if they want to spend time with grandparents? If, for example, paternal grandparents gain court ordered contact and the child’s father has no contact or supervised contact ordered due to abuse of the child, what safety measures/restraints will be in place for the child to ensure grandparents/child maintain no contact with child’s father? NCSMC questions the government’s priorities in being prepared to fund additional legal aid to grandparents but not for women and children escaping domestic violence and child abuse. NCSMC recommends additional legal aid funding be made available to women and children escaping domestic violence and child abuse. Entrenched conflict will be difficult to define. What factors should be used to identify entrenched conflict? NCSMC is concerned that the use of the term “entrenched conflict” renders the dynamics of abuse and/or power invisible. ‘Entrenched conflict’ will have many similar features to cases involving violence or abuse. The following are some likely indicators: Hostility between the parties; Allegations of violence or abuse against a parent; The existence of an AVO; The existence of police records of charges or convictions involving interpersonal violence or property damage; The existence of GP or hospital or other health records documenting injuries to a parent or child arising from the actions of the other parent; Attendance at a women’s shelter services; Child protection reports against a parent; A history of litigation between the parties; A history of mendacity by one or both parties; The existence of a continuing and substantial child support debt (evidence of unwillingness to financially support the child); Verbal abuse about the other parent expressed to a third party (name-calling, threats of violence, false statements); The expression of fear by a parent about the other parent’s actual or potential actions; The expression of fear by a child about a parent. If this term is to be used, any of these indicators should be viewed as ‘entrenched conflict’. NCSMC recommends that the forgoing list of indicators be taken as ‘entrenched conflict’. Should there be other exceptions to the requirement to attend a dispute resolution before filing a parenting dispute in the courts? No. The courts direct parties to pre-hearing alternative dispute resolution anyway so the requirement replicates what is already required. How can we ensure that people in rural and remote parts of Australia are best able to meet the proposed requirement? Is the goal to help people to reach workable agreements or the machinery of compliance and punishment? What would be best for children? Why is the question not about getting appropriate high quality culturally sensitive child-focused safe services everywhere? Should there be other exceptions, such as where there is significant urgency involved in getting the order enforced? An evidence based approach using research would already have identified that abuse and changed circumstances are the most common factors in contravention of contact orders (Rhoades 2002). The single biggest change which would reduce non-compliance with contact orders is to stop forcing children to spend time with people who hurt and abuse them. Research clearly indicates that this is already happening (Kaye et al, 2003) and these proposals will increase this likelihood. NCSMC recommends that the government act to reduce contravention of contact orders by effectively supporting children’s human rights to safety in cases involving violence and abuse and not forcing them to be with people who hurt them, frighten them or kill them. In Appendix 3 the account of the Bristol case in New Zealand provides an example of why contraventions occur and the consequences of court orders which do not support children’s rights to safety. Should the Government amend the Family Law to include these two provisions as factors that a court would need to consider when deciding what is in the best interests of the child? The proposal to reverse residence where there have been breaches of orders would be a statutory form of child abuse and make a mockery of the ‘child’s best interests’ principle. Noting that concerns about safety account for most breaches of orders (Rhoades 2002) reversing residence would not normally be in the interests of a child as it would be an expression of punishment and discipline to the parent and would disregard the parent’s concerns for the child’s safety. The co-operative parent provision has been identified in jurisdictions where it operates as a means to ensure that children end up with abusive and controlling parents (Fineman 1988; Goundry 1999). Perpetrators of violence have no reason to oppose regular contact with their targets, it provides an opportunity for new, fresh sport. Targets of violence, on the other hand have every reason to resist continuing exposure to cruelty, control and violence. The suggestion of both of these provisions is again an indicator of the profound misogyny and misinformation which is driving policy in family law at present. NCSMC opposes a presumptive reversal of residence when contact orders are contravened and supports a comprehensive funded investigation of the child’s safety and well-being if issues of violence or abuse are raised in proceedings. NCSMC opposes the ‘co-operative parent’ provision as a systemic inducement to ensure that children reside with perpetrators of violence and abuse. What other useful provisions from overseas jurisdictions should be considered? NCSMC considers that provisions from two overseas jurisdictions should be considered by the Australian Government; namely from New Zealand and California, US. Arising out of the Bristol Inquiry into the murder by a father of his three children, the New Zealand Government introduced Section 16B into the Guardianship Act 1968. This section requires a court to determine ‘as soon as practicable’ whether an allegation of violence is proven. Where it is, the court must not order residence or unsupervised contact to the violent parent unless satisfied that the child will be safe using a range of factors articulated in the legislation. An evaluation of the impact of this amendment has found that the safety of children has improved (Chetwin et al, 1999). NCSMC recommends that Australian law adopt the presumption of no contact in cases involving violence or abuse where a party is found to have used violence on the balance of probabilities. This is an adaptation of the provisions in New Zealand’s Guardianship Act 1968. Californian law provides for no contact or limited parenting plans in cases involving family violence. Section 3044 of its Family Code states: There is a rebuttable presumption that an award of sole or joint physical or legal custody of a child to a person who has perpetrated domestic violence is detrimental to the best interest of the child (Judicial Council of California). Six factors must be considered when assessing if this presumption is rebuttable: The perpetrator has demonstrated that giving sole or joint physical or legal custody of a child to him/her is in the best interest of the child; The perpetrator has satisfactorily completed a batterer’s treatment program that meets the criteria outlined in Subsection (c) of Section 1203.097 of the Penal Code; The perpetrator has successfully completed a program of alcohol or drug abuse counselling, if the court determines that counselling is appropriate; The perpetrator has successfully completed a parenting class, if the court determines the class to be appropriate; The perpetrator is on probation or parole, whether he or she is restrained by a protective order granted after a hearing, and whether he or she has complied with its terms and conditions; and The perpetrator has committed any further acts of domestic violence. NCSMC also endorses the recommendation of DVIRC that the Australian Government consider the Californian Family Code. Are there other options for creating a less adversarial approach to resolving disputes in the courts? NCSMC recommends that parties who use court proceedings as part of a course of conduct of domestic violence or abuse should be prevented from filing applications in the courts. Are there other messages that need to be included? There is a clear climate of misogyny in the framing of the Discussion Paper and its provisions. It would be helpful if the knowledge base and understandings were more informed by research and less biased against women. NCSMC recommends that all staff participants in the family law system receive training in child development and well-being and in family violence and abuse, its dynamics and consequences. Staff need to be constantly reminded that they hold the lives of parents and children in balance. Family law system staff support perpetrators of violence and abuse when they: deny, minimise or trivialise violence or abuse against adults and/or children; collude with perpetrators; have relationships with perpetrators; use personal contacts and/or bribery to secure outcomes which support perpetrators; prevent evidence of abuse or violence from being presented to the court; require young children to repeatedly provide details of abuse and then reject their evidence; enact recommend or support orders or agreements which require victims to be continually re-exposed to abuse; require victims to attend interviews/meetings/court dates with their terrorist. It would be wonderful if human rights to safety could be protected and valued ahead of the political demands of warring fathers. NCSMC recommends that the misogyny evident in the Discussion Paper and its proposals be reviewed and excised. References: Astor, H., (1991) Position Paper on Mediation, National Committee on Violence Against Women, Canberra. Astor, H., (1994) ‘Swimming Against the Tide: Keeping Violent Men out of Mediation’, in J. Stubbs, (ed.) Women, Male Violence and the Law, Sydney, Federation Press. Australian Bureau of Statistics, (1996) Women’s Safety Australia, Catalogue Number 4128.0, Canberra, AGPS. Australian Bureau of Statistics, (1998) Mental Health and Well-being Profile of Adults South Australia Catalogue Number 4326.4.40.001 Canberra, AGPS. Bagshaw, D. and Chung, D., (2000) ‘Gender Politics and Research: Male and Female Violence in Intimate Relationships’, Women against Violence, 8: 4-23. Bowker, L., Arbitell, M., and McFerron, J., (1988) ‘On the relationship between Wife Beating and Child Abuse’ in K. Yllo and M. Bograd, (eds) Feminist Perspectives on Wife Abuse, California, Sage. Brown, T., Frederico, M., Hewitt, L., and Sheehan, R., (1998) Violence in Families Report Number One: The Management of Child Abuse Allegations in Custody and Access Disputes before the Family Court of Australia, Monash University Clayton, The Family Violence and Family Court Research Program Monash University Clayton and the Australian Catholic University, Canberra. Brown, T., Frederico, M., Hewitt, L. and Sheehan, R., (2001) ‘The Child Abuse and Divorce Myth’ Child Abuse Review, 10: 113-124. Brown, T., Sheehan, R., Frederico, M., and Hewitt, L., (2001) Resolving Family Violence to ŗŚĮĻĒé±ØÕ¾: The Evaluation of Project Magellan, a pilot project for managing Family Court residence and contact disputes when allegations of child abuse have been made. Monash University Clayton, The Family Violence and Family Court Research Program. Butterworth, P. (2003) ‘Multiple and Severe Disadvantage Among Lone Mothers Receiving Income Support’, Family Matters No. 64, Autumn pp. 22-29. Chetwin, A., Knaggs, T. & Te Wairere Ahiahi Young, P., (1999) The Domestic Violence Legislation and Child Access in New Zealand, Ministry of Justice, Wellington. Easteal, P., (1993) Killing the Beloved, Canberra, Australian Institute of Criminology. Family Law Pathways Advisory Group (2001) Out of the Maze, Canberra, Attorney Generals Department.  HYPERLINK "http://www.ag.gov.au" www.ag.gov.au. Fineman, M., (1988) ‘Dominant Discourse, Professional Language and Legal Change in Child Custody Decision Making’, Harvard Law Review, 101 (4): 727-774. Fleming, J., (1997) ‘Prevalence of Childhood Sexual Abuse in a community sample of Australian women’, Medical Journal of Australia, 166: 65-68. Goundry, S., Peters, Y., Currie, R. and Equality Matters! Counselling (1999) Family Mediation in Canada: Implications for Women’s Equality, Status of Women, Canada. Heenan, M., Astbury, J. Vos, T., Magnus, A. and Piers, L. (2004), The Health Costs of Violence: Measuring the Burden if disease caused by Intimate Partner Violence, VicHealth, Victoria Department of Human Services, Melbourne. Harne, L. (2003) ‘Childcare, violence and fathering – Are violent fathers who look after their children, likely to be less abusive?’ in Klein R and Waller B (eds) Gender, Conflict and Violence. Vienna, Studien Verlag Wien. Hume, M., (2003) The Relationship between child sexual Abuse, Domestic Violence and Separating Families, Child Sexual Abuse: Justice Response or Alternative Resolution Australian Institute of Criminology, Adelaide May 1-2. Indermaur, D., (2001) Young Australians and Domestic Violence, Trends and Issues Paper No. 195, Canberra, Australian Institute of Criminology. Jaffe, P., Lemon, N. & Poisson, S., (2003) Child Custody and Domestic Violence, Sage, Thousand Oaks. James, M., (1994) Domestic Violence as a form of Child Abuse: Identification and Prevention, Issues in Child Abuse Prevention Number 2. National Child Protection Clearinghouse, AIFS Melbourne. Kaye, M., Stubbs, J. and Tolmie, J. (2003) Negotiating Child Residence and Contact Arrangements against a Background of Domestic Violence, Families, Law and Social Policy Research Unit, Griffith University, Queensland. Kelly, J. (2003) Parents with Enduring Child Disputes: Multiple Pathways to Enduring Disputes, Journal of Family Studies, Vol. 9, No. 1, pp. 37-50. Keys Young, (1996) Research/Evaluation of Family Mediation Practice and the Issue of Violence, Final Report, Attorney General’s Department, Canberra. Mertin, P., (1995) ‘A Follow Up Study of ŗŚĮĻĒé±ØÕ¾ from Domestic Violence’, Australian Journal of Family Law, 9 (1):76-85. Mouzos, J. and Rushforth , C., (2003) ‘Family Homicide in Australia’, Trends and Issues Paper Number 255, Australian Institute of Criminology, Canberra. Mullen P. and Fleming J., (1998) Long -Term Effects of Child Sexual Abuse, Issues in Child Abuse Prevention Number 9, National Child Protection Clearing House, Melbourne. Mullen, P., Martin, J., Anderson, J., Romans, S. and Herbison, P., (1993) ‘Childhood Sexual Abuse and Mental Health in Adult Life’, British Journal of Psychiatry. 163:721-732. Parkinson, P., (1990) ‘Child Sexual Abuse Allegations in the Family Court’, Australian Journal of Family Law, 4 (1): 60-84. Perry, B. (2001) ‘The neurodevelopmental impact of violence in childhood’, in D. Schetky and E. Benedek, Textbook of Child and Adolescent Forensic Psychiatry, American Psychiatric Press, Washington, pp. 221-238. Rendell, K., Rathus, Z. and Lynch, A., (2000) An unacceptable risk: A Report on child contact arrangements where there is violence in the family, Brisbane, Women’s Legal Service. Rhoades, H., (2002) ‘The ‘No Contact’ Mother: Reconstructions of Motherhood in the era of the ‘New Father’, International Journal of Law, Policy and the Family, 16 (1): 71-94. Rodgers, B., Smyth, B. and Robinson, E. (2004) Mental Health and the Family Law System, Journal of Family Studies, Vol. 10, No. 1 April, pp. 50-70. Smart, C., (2001) ‘ŗŚĮĻĒé±ØÕ¾’s Voices’ Paper presented at the 25th Anniversary Conference of the Family Court of Australia, July,  HYPERLINK "http://familycourt.gov.au/papers/html/smart.html" http://familycourt.gov.au/papers/html/smart.html Taft, A. (2003) Promoting Women’s Mental Health: The Challenges of Intimate/Domestic Violence Against Women, Issues Paper No. 8, Australian Domestic and Family Violence Clearinghouse, Sydney, UNSW. Tomison, A., (1996) ‘Intergenerational Transmission of Maltreatment’, Issues in Child Abuse Prevention, 6: Winter. National Child Protection Clearinghouse, Melbourne, Australian Institute of Family Studies. Wolcott, I. and Hughes, J., (1999) Towards Understanding the Reasons for Divorce, Working Paper 20, Melbourne, Australian Institute of Family Studies. APPENDIX 1 The Challenges of Securing Human Rights to Safety in Australian Family Law Frameworks By Elspeth McInnes Paper presented at the Home Truths Conference Melbourne September 15-17 2004. In this paper I argue that human rights to safety for women and children are currently in jeopardy in the Australian family law system and that there is an urgent need for system reform to address the current failures. Article 3 of the Universal Declaration of Human Rights states that ‘Everyone has the right to life, liberty and security of person. Despite the almost obvious necessity of safety to the conduct of day to day family life, Australian homicide data clearly indicates that women and children are being killed by violent male family members whether they stay or try to leave. Australian 13-year homicide data (Mouzos and Rushforth 2003) identifies that there are an average 129 family homicides per year. Sixty percent of these are partners or ex-partner homicides and in 3 out of every four such cases women have been killed. One in four of these homicides occurred after separation. A further 19% of family homicides are parent/child homicides with fathers as perpetrators in 63% of cases. Domestic violence, mental illness and separation were the most commonly identified contexts of parent/child homicides data (Mouzos and Rushforth 2003). The homicide data underscores the reality that mothers and children experience significant harms, injuries and deaths from violent partners and fathers. Although women living with violence are socially expected to leave, separation is a period of escalated risk for many mothers and children. Women’s Shelters, police and the family law system are common features of separation disputes. Australian Family law frameworks currently routinely re-expose children and mothers to continuing abuse, sometimes with fatal results. Some may recall the Four Corners program ‘Losing the ŗŚĮĻĒé±ØÕ¾’ which documents the events leading up to the homicides of Jessie and baby Patrick Dalton (Four Corners 16/8/04). The long history of domestic violence was never heard in court. The capacity of violent men to be safe fathers was never questioned. The probable mental instability of the father was never identified. The children died. The Family Law System contains a number of elements which extend beyond the actual courts. The report ‘An Unacceptable Risk’ (2000) provides a useful overview of the various aspects of the system which women and children have to successfully negotiate to achieve safety from violence. Access to legal aid is a major hurdle as few self-represented litigants are able to cope with the demands of a court hearing without legal help, yet legal aid funding is capped and declining and women have to agree to do as they are told, rather than instruct their lawyer. Mothers are often directed by the system into mediation before their legal aid applications will even be considered – leaving them open to pressure to agree to unsafe arrangements. Lawyers reportedly advise mothers notifying child abuse that they should not seek to pursue the issue but focus on contact arrangements. The Courts themselves have proven physically unsafe for many women and there have been a number of cases of women attacked and murdered near the courts. Many judicial officers hold views on domestic violence and child abuse which are common to the wider community – that women must have provoked the violence or invented abuse for strategic purposes. Family Report writers provide reports to the court recommending outcomes for children however these are often subjective, arbitrary and written without any access to any previous information on the family other than a brief visit with each parent with the child. Histories of domestic violence and child abuse are actively omitted and suppressed. ŗŚĮĻĒé±ØÕ¾’s Representatives present recommendations to the courts often without even meeting the child. Mothers increasingly report that children’s representatives mimic the roles of criminal defence lawyers for sex offenders in offering the courts extensive speculation on alternative explanations for children’s disclosures of abuse other than that the abuse has occurred. Relationships services provide courses to parents who do not comply with court orders to send children to contact with abusive fathers, but these seem ineffective to deal with helping mothers and children to cope with regular continuing abuse. Child Contact Centres are the service solution to force children to see unsafe parents, however once again they do not deal with the continuing problem of children being forced to have regular contact with their abuser. Together these professionals, programs and services sustain a complex system which enables children’s disclosures of abuse to be excised, explained and excluded from relevance. Changing this situation to better protect victims of violence is blocked by a number of challenges. These include Constitutional divisions, state responses to domestic violence and child protection, lack of legal aid and the family law pro-contact culture. The Constitutional problems arise because the protection of children and adults from violence and abuse is divided across state and federal governments (Kelly & Fehlberg 2002). The federal government has jurisdiction over marriage and relevant issues such as divorce, and child and property arrangements. The eight state and territory governments have jurisdiction over criminal conduct and responses to domestic violence and child abuse. Some outcomes of these divisions are that state child protection authorities are not funded or mandated to provide support to the Family Court’s information and investigation needs. State variations in definition, intake processes and prioritisation lead to fragmented national responses to child protection. Further there are key differences in role and orientation between the state legislation and the federal courts. State services are oriented to short term intervention based on investigated past events. Family law is oriented to future best interests with reference to current and predicted future needs (Kelly and Fehlberg 2002). A further issue is the identification and response to domestic violence by state jurisdictions. Violence and abuse in family relationships is commonly treated as a civil matter rather than a criminal offence (Scutt 1995). 42% of single women who had ever been partnered reported experiencing violence, usually from an ex-partner (ABS 1996). Hurdles to safety for targets of family violence include being able to contact police and then for Police to actually attend and to support the target to get a restraining order. When orders are breached, another problem is to get police to prosecute the breach. Problems in achieving adequate policing of domestic violence include the lack of available police - particularly in country areas – and the need for universal police training in responding to domestic violence and in taking out restraining orders to support the victim (Katzen 2000). Many police and magistrates are confused about the interface with family law, wrongly believing that they cannot or should not issue restraining orders which may interfere with family court orders. An irony here is that family law is supposed to make orders which are not inconsistent with state domestic violence orders. There is an evident need for training of police, magistrates and family law officials around the interface of state and federal laws. There is also a need to universal training to recognise that domestic violence where children are present is also a child protection issue. Domestic violence is under-recognised by professionals, perpetrators and victims as a form of child abuse. Professional interventions for domestic violence are adult oriented and often ignore children. Parents are often unaware that children have witnessed or heard the violence and/or its aftermath. Yet a national study of young people found one in four had witnessed domestic violence against their mother or stepmother (Indermaur 2001). ŗŚĮĻĒé±ØÕ¾ experience domestic violence as traumatic. They may be directly attacked, injured in an assault on their mother, injured while trying to protect their mother, or injured as a means of terrorising the mother. They experience the impact of the abuse on the parenting by their mother – mental health problems, physical injuries and death (James 1994). Child protection responses to domestic violence have usually focused on the mother and relied on her to protect the children from a violent partner. Violent men are either absent and thus invisible or deter child protection workers through intimidation, threats and assaults (Stanley and Goddard 2002). In the Family Law ‘No Fault’ framework, domestic violence is not seen as particularly relevant to decisions about children beyond preventing them from witnessing violence. Contact handovers at Police stations and contact centres are thus seen as a ‘solution’. Child protection services are another key avenue to support the safety of victims of family violence. Child protection frameworks have been exposed as being under serious stress in recent years as the numbers of abuse reports outstrips that capacity of departments to adequately respond. In consequence, making a notification of suspected child abuse often does not result in an investigation. In New South Wales, Victoria and South Australia less than 50% of reports were investigated in 2002-03. Of those cases which were investigated, less than half were substantiated in Western Australia, South Australia, Tasmania, ACT and the Northern Territory (AIHW 2004). Substantiation means positive evidence supporting abuse was found. Lack of substantiation does not mean abuse did not occur. The types of abuse most likely to be substantiated by state services were emotional abuse (34%); physical abuse (28%) and neglect (28%). Sexual abuse (10%) was the least likely to be substantiated (AIHW 2004). Research into child abuse allegations in the context of family law proceedings has identified that the ‘false report’ rate is around 1 in 10, consistent with the rate in other contexts (Brown et al 2001). Factors inhibiting substantiation include: The age of the child - very young children are less able to speak about their experiences Current living circumstances of the child – children living with their perpetrators or seeing them regularly risk further abuse if they disclose and the perpetrator is told of the allegations – as they routinely are. Suitability of the investigation process – disclosures by children are often not regarded as sufficient to substantiation. Sometimes the alleged perpetrator drives the child to and from the investigation. Timeliness of the investigation – there can be long delays between disclosures and investigation. Lack of skilled staff – Not all staff who interview children are trained in child development and forensic interviewing of children. Fear of the alleged perpetrator – ŗŚĮĻĒé±ØÕ¾ are often threatened by the offender and told that they or loved ones will be hurt if they tell. Context of family court proceedings – there is a widespread myth that child abuse allegations in the context of divorce proceedings are false and strategic Even when a case of child sexual abuse has been reported, investigated and substantiated, a prosecution normally will not proceed when the victim is 7 years or under without conclusive corroborating evidence. The tests for prosecution include a ‘reasonable prospect of success’ yet there is little chance of success when a pre-schooler accuses an adult of sex abuse and the adult denies it and there are no witnesses. Of those cases which are prosecuted, the majority will fail to achieve a conviction (Eastwood & Patton 2002). The outcome is that the criminal justice system is unable to effectively prosecute offenders against very young children – particularly when the offender is a family member (Cossins 2003). The Family Court has a key role in determining a child’s best interests but it does not have jurisdiction to determine whether child abuse has occurred. It relies on state criminal justice systems to determine whether or not a parent is guilty of criminal child abuse such as sexual assault. As noted earlier, state services often discount reports of child abuse as an adversarial strategy when there are family court proceedings and leave such cases to the family court (Brown et al 2000; Hume 1996; Humphreys 1999). The Family Court has no investigative capacity when allegations of abuse are made and relies on the evidence of the parties to decide the best interests of the child. Restrictions on legal aid mean that many parents dealing with child abuse will run out of legal aid before the case is finalised and have to prepare and present complex evidence and legal argument (FLC 2002). Mothers who persistently attempt to protect their children from abuse during contact by defying court orders face jail sentences and/or reversal of residence. The Family Court’s Magellan Project and the Columbus Project in WA provide frameworks to link state child protection investigation and reports to the Family Court in selected cases. Although these programs are an improvement for some children, identified problems include: tight screening criteria, variable implementation across states and locations, and cross-institutional constraints. The Family Law Council has proposed a national child protection unit attached to the Family Court to inform decision making in cases of alleged child abuse (FLC 2002). Nothing has happened. The 1996 changes to family law emphasised continuing parental responsibility and children’s rights to contact with their parents but evaluation studies (Rhoades et al 2001, Dewar & Parker 1999) have identified that parent-child contact is being privileged ahead of safety. Several Australian studies have detailed mothers’ difficulties in protecting their children from violent fathers during contact (Rendell et al 2000; Kaye et al 2003). Securing human rights to safety in family law depends in part on legislative changes to require judicial decision-makers to privilege safety as a threshold issue for defining a child’s best interests. Where violence or abuse has been found on the balance of probabilities to have been present there should be a presumption of no contact unless safety can be protected and the child in fact benefits from contact, as assessed by trained professionals skilled in family violence and child abuse. Following the Family Law Council 2002 recommendation, a multidisciplinary national family violence unit should be established as part of the family law system to gather evidence from relevant police, health, education and child welfare records and the parties in cases of alleged abuse to provide expert advice to inform court decision making. Legal aid should be extended to all cases involving abuse and violence to ensure vulnerable parties have access to their legal rights. Where children are ordered to have contact with a violent parent, such contact should have been professionally assessed as being in the child’s best interests and have ongoing monitoring, supervision and evaluation. Where children are found to be adversely affected by contact, contact should cease. All parties in the family law system should have training in domestic violence and child abuse – dynamics, indicators, consequences and appropriate responses to support victim safety. All parties in the family law system should have formal accreditation reliant on such training. The problems for victims of family violence have been documented and recognised at the highest level. Solutions have been proposed. The fact that nothing has happened to support positive change highlights a willingness by state and federal governments to tolerate, if not support, the current continuing lack of safety for targets of family violence after separation. References Australian Bureau of Statistics, (1996) Women’s Safety Australia, Catalogue Number 4128.0, Canberra, AGPS. Australian Institute of Health and Welfare (2004) Child Protection Australia 2002-2003, Child Welfare Series No. 34, Canberra, AIHW. Australian Law Reform Commission, (1995) For the Sake of the Kids: Complex Contact Cases and the Family Court, Report Number 73, Canberra, AGPS. Brown, T., Frederico, M., Hewitt, L. and Sheehan, R., (2001) ‘The Child Abuse and Divorce Myth’ Child Abuse Review, 10: 113-124. Cossins, A. , (2003) The National Child Sexual Assault Reform Committee, Child Sexual Abuse: Justice Response or Alternative Resolution Australian Institute of Criminology, Adelaide May 1-2. Eastwood, C. and Patton, W. (2002) The Experiences of Child Complainants of Sexual Abuse in the Criminal Justice System, Brisbane, QUT. Family Law Council (2002) Family Law and Child Protection, Canberra, AGPS. Four Corners (2004) Losing the ŗŚĮĻĒé±ØÕ¾, ABC TV, Sydney. Hume, M., (1996) Child Sexual Abuse Allegations and the Family Court of South Australia, Masters Thesis: University of South Australia. Humphreys C., (1999) ‘Walking on eggshells: Child sexual abuse allegations in the Context of Divorce’, in J. Breckenridge and L. Laing, (eds) Challenging Silence: Innovative Responses to Sexual and Domestic Violence, Sydney, Allen and Unwin. Indermaur, D., (2001) Young Australians and Domestic Violence, Trends and Issues Paper No. 195, Canberra, Australian Institute of Criminology. James, M., (1994) Domestic Violence as a form of Child Abuse: Identification and Prevention, Issues in Child Abuse Prevention Number 2. National Child Protection Clearinghouse, AIFS Melbourne. Katzen, H., (2000) ‘It’s a Family Matter, not a Police Matter: The Enforcement of Protection Orders’, Australian Journal of Family Law, 14 (2):119-141. Kaye, M., Stubbs, J. and Tolmie, J. (2003) Negotiating Child Residence and Contact Arrangements against a Background of Domestic Violence, Families, Law and Social Policy Research Unit, Griffith University, Queensland. Kelly, F. and Fehlberg, B., (2002) ‘Australia’s Fragmented Family Law System: Jurisdictional Overlap in Child Protection, International Journal of Law, Policy and the Family, 16: 38-70. McInnes, E., (2002) Single Mothers, Social Policy and Gendered Violence, Women against Violence, Issue 13, pp. 18-24. Mouzos, J. and Rushforth, C., (2003) ‘Family Homicide in Australia’, Trends and Issues Paper Number 255, Australian Institute of Criminology, Canberra. Rendell, K., Rathus, Z. and Lynch, A., (2000) An unacceptable risk: A Report on child contact arrangements where there is violence in the family, Brisbane, Women’s Legal Service. Rhoades, H., Graycar, R., and Harrison, M., (2001) The Family Law Reform Act 1995: The First Three Years, Final Report, Sydney, University of Sydney and the Family Court of Australia. Scutt, J., (1995) ‘Criminal Assault at Home: Policy Directions and Implications for the Future’, in W. Weeks and J. Wilson, (eds) Issues Facing Australian Families, Melbourne, Longman. Stanley, J., and Goddard, C., (2002) In the Firing Line: Violence and Power in Child Protection Work, Wiley, Chichester. APPENDIX 2 Lynne Harne Research Associate. International Centre for the Study of Violence and Abuse. University of Sunderland Contact: home email lynneharne@waitrose.com Childcare, violence and fathering – Are violent fathers who look after their children, likely to be less abusive? ( now to be published as an article in Klein R and Waller B (eds) (2003) Gender, Conflict and Violence. Vienna, Studien Verlag Wien.) Introduction This paper is based on exploratory qualitative research with 20 fathers who had been identified as domestically violent and were separated or divorced from their partners. Most of these fathers had contact with their children in the post-separation context. This is the first UK study with violent men specifically focusing on their fathering practices. The sample was drawn from men who volunteered to be interviewed and were attending perpetrator programmes in different geographical areas of England. The main method used was semi-structured depth interviews and these were supplemented with violence and abuse indexes to assess the extent of the men’s violence .ii Almost half of those interviewed identified themselves as `serial` abusers in that they had also been violent towards partners and children in second families. All the interviews took place between the years l998-2000. A separate sample of ten mothers who had experienced domestic violence from partners and whose children were having ongoing contact post-separation were also interviewed about their ex-partner’s fathering practices to provide comparative perspectives. Background The policy context The research has taken place in a family law policy context, where there is the general legal presumption that children will benefit from having contact with fathers post-divorce or separation, even where they have been domestically violent and/or have directly abused the children. In these cases the courts have assumed that children will suffer greater harm in the long term if they do not have an ‘enduring relationship’ with both natural parents (Re:M [l995} 1FLR 274). A defining judgement in the mid-l990s, where there had been severe domestic violence towards the mother, stated that contact is almost always in the best interests of children,” and argued that even though the two year old child in question, was “distressed” by having to have contact with the violent father, “the court should take the long term view of the child’s development and not accord too much weight to what appear to be short term and transitory problems.” (Re O (Contact: Imposition of Conditions)[l995] 2 FLR 124). This policy also needs to be seen in the context of general social policy in the UK where as Williams (l998) has pointed out, lone motherhood and father absence from families has come to be seen as the cause of all problematic masculinities and where it is argued fathers have been deprived of their role as providers for families (see for example, Murray, l990; Dennis and Erdos, l992). However as Scourfield and Drakeford (2001) have noted there has been a shift in New Labour policy which has stressed the importance of involving fathers in the care of their children (see for example Home Office) l998a,b) and the removal of perceived “institutional barriers to men spending more time with children,” as a “solution to social problems.” (Scourfield and Drakeford, 2001: 4-5) They indicate that there has been an increasing emphasis in policy rhetoric on the notion of the `unequal` treatment of fathers by mothers who are viewed as blocking fathers’ access to participating in children’s care (see for example Burgess and Ruxton, l996; Burgess, l997) and an ignoring of the ‘dangers some men can pose in families,’ (Scourfield and Drakeford, 2001:5 see also Featherstone, 2000). Within such discourses, biological fathers have come to be constructed as the ‘prime victims of the gender order,’ and this is a perspective that has also been taken up by some New Labour feminists (Scourfield and Drakeford, 2001:4, see also Williams, l998). Such ideas have also been promoted by the increasingly militant Fathers Rights Movement in family law policy (see for example, Parton, l998; Guardian, 30.10.01) and have influenced practice in this area (ŗŚĮĻĒé±ØÕ¾ Act Sub-Committee, 2001,2002). Thus in family law practice, mothers who have blocked a father’s contact with his children post-separation in order to protect children’s safety in the context of domestic violence, have come to be defined as `irrationally` hostile (Smart and Neale, l997) and are regarded as being unable to separate their own needs from those of the child (ŗŚĮĻĒé±ØÕ¾ Act Sub-Committee 2001, 2002). In this context, mothers`concerns about child abuse, are frequently viewed as false allegations by the family courts and mothers can be viewed as having `parentally alienated` children who are reluctant to have contact with violent and abusive fathers (Humphreys, l997; Radford et al; l999; Brown et al; 2000). Moreover there has been an increasing emphasis on using punitive powers against mothers to enforce such contact, which include the threat of imprisonment to ensure compliance (Radford et al; l999). By the end of the l990s English family law policy recognised that very severe domestic violence could be a `cogent` factor where the courts could deny or limit contact and that some attention needed to be paid to a father’s conduct in relation to this (ŗŚĮĻĒé±ØÕ¾ Act Sub-Committee, 2000; Re:L,V,M,H [2000] 2 FLR: 334) However the main concern about a father’s parenting in the context of domestic violence has been in recognising that such behaviour can have a negative impact on children witnessing it and fears that some children might imitate such behaviour as adults (see for example, Re M [l999] 2FCR:56) and there has been little questioning of violent fathers’ `fitness` to look after children, per se (see also Smart and Neale, l997) The limited recognition given to domestic violence has usually meant that the courts may order some form of supported or supervised contact rather than deny such fathers’ direct contact altogether. iv In addition some research has indicated that such arrangements may progress to `unsupervised` contact within six months for over half the children concerned (Radford et al: l999). Some fathers may also be directed by the courts to attend a perpetrator programme or anger management course to address their domestic violence (ŗŚĮĻĒé±ØÕ¾ Act Subcommittee, 2000, 2001). In general however there has been far less attention paid to violent men’s fathering practices and how they look after children in their care, and in this respect it is assumed that they are `good enough` fathers, despite their domestic violence. The aims of the research One of the aims of this research was to explore the way violent fathers conceptualised their relationships with their children when they were still living with them and their experiences and views about contact in the post separation context. Moreover, since there is now substantial feminist research that indicates inter-connections between physical child abuse and domestic violence from the same perpetrator (Stark and Flitcraft, l988; Bowker et al; l988; O’Hara, l994; Farmer and Owen, l995) fathers were also questioned about their understandings of child abuse and whether they perceived these relationships as abusive. For example, whilst recognising that mothers may also physically abuse children, Stark and Flitcraft (l988) have indicated that men are three times more likely to be the prime offenders in the context of domestic violence. Other research with children and mothers, as well as studies of child protection case records has suggested that a majority of children living with a domestically violent father experience multiple forms of abuse which includes, not only physical abuse but direct emotional abuse and psychological terrorisation from their fathers, in addition to the negative impact of witnessing violence towards their mothers and that a substantial minority also experience sexual abuse ( see for example, Abrahams, l994; Farmer and Owen, l995; Hester and Radford, l996;Hester and Pearson, l998; McGee, 2000; Brown et al; 2000). Research with mothers post-separation also indicates that such children continue to be abused in the post-separation context (Hilton, l992; Abrahams, l994; Forman, l995; Hester and Radford, l996; Hester and Pearson, l998; Radford et al: l999). Another salient area in the interviews was to explore men’s perceptions of their roles and responsibilities as fathers and to find out how much they were involved in childcare when living with partners. This was significant because of some earlier US research with mothers which had indicated that domestically violent fathers were less involved in child rearing than non-violent men in a comparison group (Holden and Ritchie, l991). Some later UK survey research on domestic violence and child contact focusing on mothers’ perceptions of violent fathers’ childcaring activities before separation has also suggested that,‘a low level of involvement in childcare appeared to be matched by a low level of emotional commitment to children and a high level of abuse and neglect which persisted in many cases on contact visits.’ (Radford et al; l999: 22). In addition, some psychological perspectives, drawing on psycho-analytic arguments (see for example, Chodorow, l978) have argued that men’s familial abuse of children is directly related to the sexual division of labour in heterosexual nuclear families and that if fathers are more involved in the care of children, abuse is less likely to occur ( Sternberg, l996). Burgess, arguing from a New Labour policy perspective of increasing fathers’ involvement in the care of their children, has suggested in relation to physical abuse, ‘it may be that increased time with the children would lead to reduced violence in some cases,’(Burgess, l997: 213). Anti-sexist approaches to fatherhood have also suggested that men’s greater participation in childcare can serve as a means of recreating more positive and `nurturant` masculinities (see for example, Segal, l990; Campbell,l993; Pringle, l995; l998). However Pringle has also highlighted how the anti-sexist approach has failed to sufficiently take account of the ‘down-side of men’s presence in childcare,’ (Pringle, l998: 319) and suggested that men’s involvement can ‘bring into stark personal relief the destructive potential of dominant forms of masculinity,’ (Pringle, l998: 325). The findings The findings in this study, although exploratory, suggest that the relationship between violent fathers’ participation in childcare and their direct abuse of children were far more complex and contradictory than indicated in the previous research highlighted above. Moreover they suggest that there was no simple relation between the level of men’s involvement in childcare activities and less abusive practices towards children. There were also indications that such assumptions could be dangerous when considering questions of risk to children in relation to issues of contact post-separation. Alternately they raise issues about the meaning of men’s parenting in the context of domestic violence and the need to recognise that where such parenting is based on assumptions and practices of power and dominance, abuse can continue to occur. In discussing some of these findings, I have focused mainly on fathers’ accounts of physical and emotional abuse when they had specific responsibility for caring for children; although they also described situations where children were clearly being abused when they were `caught up with` or being deliberately used in the abuse of their mothers, and when children’s own safety and the impact of such abuse was disregarded by these fathers. Fathers’ involvement in childcare when still living with families Although most of the fathers in this study did not have the main responsibility for looking after the children when still living with families, their level of involvement was greater than has been indicated from previous research and frequently occurred on a regular basis when mothers were working either full-time or part-time. These circumstances may to some extent, reflect general economic shifts in women’s participation in the labour market, even where they have very young children (see for example, Walby, l997) Two thirds of the fathers from this sample described themselves as having been regularly involved in looking after young children (under six) on their own for a few hours a day whilst mothers worked part-time and in two cases, fathers described themselves as having been more involved in childcaring activities and tasks associated with childcare than partners, because of partners’ work commitments. In addition most fathers described having some regular involvement in childcare at meal-times and bedtimes and only three men in this sample subscribed to the view of the `traditional` father, who regards childcare as totally the mothers’ responsibility. Moreover whilst some of these fathers may have exaggerated their childcaring involvement, almost half of the women from the smaller mothers’ sample, described partners undertaking some regular childcare, and in three cases this was where mothers were out at work. In another case the father had prevented the mother from participating at all in the care of their baby, because, according to this mother’s account, he wanted total control over the child. Childcare and household tasks associated with childcare could however be a source of contradiction, conflict and resentment for some fathers and used as a form of violent and abusive control over the whole family (see also Dobash and Dobash, l998). For example, whilst some fathers stated that they believed in equality in childcaring roles they could also be resentful if they felt they were doing too much and this itself could lead to more violence towards mothers. Other fathers stated that they had chosen to do childcare whilst mothers worked, but they could also use violence against mothers if they were not getting what they wanted from the childcare context. For example, one father in `explaining` some of his controlling violence towards his partner who worked part-time, stated, “I’ve always felt that my wife, didn’t help on the household chores that needed to be done, like dishes, washing – things like that. I did it all - so I didn’t have a lot of time to play with my son – I would be cooking tea, bathing X, or getting him ready for bed, so I didn’t have a lot of time for the love side of things.” This example highlights the discursive strategies that violent men may employ to account for their domestic violence which frequently draw on socially acceptable discourses of woman-blame to shift responsibility for their violence onto their victims (see for example Ptaceck, l998; Hearn, l998: Cavanagh et al; 2001). What is interesting here is that this father is drawing on family policy discourses of woman blame to deny his own responsibility for the violence and justify it by arguing that his partner is preventing him spending more quality time with his son and implying that she was not a good parent. Abusive child caring practices Of considerable concern was the kind of care that most fathers described as giving to young children when they were responsible for looking after them on their own and the rationalisations they used to justify any physically and emotionally abusive behaviour towards them. In this context several violent fathers described children as `provoking` their `bad tempers`, or `short fuses` when they were looking after them, including the two fathers who indicated that they were the main carers of children. For example, one father in describing looking after his two young daughters, aged three and four whilst his partner worked part-time, argued that these two children could provoke his violent temper by their own behaviour. “Basically what it is I’m frightened of my temper – the two of them are little sods together and I’m frightened of doing damage to them when I’m on my own with them and they are misbehaving and I can feel my temper and it does frighten me in case I hit them.” Interestingly, there were parallels in this father’s justifications for the abuse of his children with his explanations for abuse towards his partner, since he described her as provoking his physical violence towards her because she would not ‘shut up,’ when he was in a bad mood. This father also described how he frequently smashed objects in the home which included the children’s toys and cups. Moreover although he recognised some of the negative impacts of this violence he appeared to believe that if he played with them this would cancel out its effects. For example he said, “ the youngest seems to cry all the time which I think is through the violence and eldest will just cry when I tell her to do anything which I think is due to all the shouting and violence and I'll say I’m not telling you off, I’m not saying you can’t do it – wait until tomorrow – we’ll play a game of when the police were chasing me – Oh I love them to bits.” Thus, although this father gave indications that he sometimes he played with the children and that he had affection for them, the childcaring context itself could be a means of providing opportunities for his abuse. This issue was also raised by the mothers who were interviewed about their ex-partners’ fathering practices particularly in relation to violent fathers `play`. For example one mother described how at times her ex-partner would play with her two young daughters but then would just stop and lose his temper and shout and swear at them. Another mother described how her ex-partner ‘would play and cuddle’ her four year old son and six year old daughter, ‘when he felt like it,’ but at other times would ‘kick and throw things at them.’ Both these mothers felt that such behaviour made the children more fearful of their fathers because they could never be sure how they were going to behave towards them. These mothers’ views about the negative impact of such behaviour have been supported by McGee in her research with 54 children living with domestic violence. For example McGee has indicated that such unpredictability can result in extreme anxiety in children and can control children’s behaviour to such an extent when they are with their fathers, that they are frightened to show any reaction in case it provokes an outburst of violence or hostility. Fathers also talked about being provoked into abusive behaviour when children failed to conform to their own expectations in the childcare context and this kind of explanation similarly paralleled some rationalisations for abusive control of mothers when they failed to live up to their partners’ expectations of being good wives and mothers (see also Hearn, l998). For example, one father talked about being regularly involved in looking after his three children after school and `helping` them with their homework, because he was concerned about their educational achievement. However at the same time he described how he would shout and hit them if they did not do it properly, as is illustrated in the following extract where he is talking about a five year old girl. “If they came home late from school… and I’d get a bit annoyed if they wouldn’t sit and concentrate on their homework, because I thought this was important – and if I actually sat say with P and she was trying to read to me and sometimes I would get a bit annoyed if I thought she wasn’t trying – Q. So you would hit her? A. Yes but it was also more shouting Q. So what effect do think that had on her A. She would just get terrified and curl up in a corner and wouldn’t sit on my knee anymore.” It should be noted that this father had a number of convictions against him for child abuse and was registered as a Schedule One Offender under the ŗŚĮĻĒé±ØÕ¾ and Young Persons Act (l933) for cruelty to children. In addition, two other fathers who had convictions for assault on their children, described these as being related to hitting them ‘too hard,’ when they were responsible for putting them to bed, ‘because they would not go to sleep.’ . Abuse could also occur when children were perceived as making unreasonable demands and where these conflicted with fathers’ own interests. This was illustrated by another father who was responsible for looking after two young daughters (both under five) fulltime when his partner had to go into hospital for two weeks, although the children went to a nursery during the day. He stated, “ I would be getting frustrated with them – they wanted to talk to dad and they were continually badgering me for attention. There was awful shouting and verbal and aggressive abuse to get them to do what I wanted them to do – if they dropped their spoon that would be enough for me to slam my fist down on the table and that would shock them rigid.” Deliberate cruelty Some fathers talked about being deliberately cruel to children when they failed to meet their own expectations in various childcare contexts, as is illustrated in the following extract, “ Just being in the same room was enough in the end – it was mental abuse – they were terrified of me – all I had to do was look – I was quite cruel to be honest with you, for example at meal-times I used to sit there and make them eat things they really did not like and they used to cry. I wanted to make them too perfect – I wanted to make them what I should be like.” This deliberate cruelty to children was also illustrated in the mothers’ accounts of their ex-partners’ fathering practices, although mothers indicated that they were not always aware that such abuse was occurring at the time. For example one mother described how her partner was regularly emotionally and physically abusing one of her three children, a boy, when he was looking after the children after school, before she came home from work. She said, “It started when X was about four – his father would get angry at him and call him thick and stupid and hit him around the head and degrade him and when he got glasses he called him four eyes. When he was about six or seven years old he was still wetting himself at school, so I took him to the doctor and I got some medication to stop it. It was only by sheer chance that X let something slip and I realised why he was wetting himself, because his father was hitting him and shouting at him when he was looking after him.” These accounts contradict previous understandings of domestically violent fathers as having little involvement in childcare and point to the need to recognise that some violent fathers at least can be the prime abusers of children in child care contexts. Moreover, although several fathers who participated in this study described regularly undertaking child caring activities, this was not an indication that they were prepared to prioritise the needs of children or understand the child’s point of view. For example, only one out of the twenty fathers interviewed, indicated that children’s own needs should be addressed when he was looking after the children. In addition most fathers accounts illustrated that they regarded very young children as being responsible at least in part, for provoking the abuse through their own behaviour. Thus far from becoming more `nurturing` or `caring` these fathers appeared to carry their own assumptions and practices of dominant and violent masculinity which they used to oppress and control women, into the parenting context. Of considerable concern in this research was that fathers were frequently describing ongoing abuse when looking after very young children. Yet it is these children who are regarded within family law policy as `needing` fathers most and whose own feelings and views may be disregarded in decisions made by professionals about contact, particularly where such children are fearful of their fathers and reluctant to go on contact visits (see for example Hester et al: l994; Smart and Neale, l999: Radford et al: l999) Violent fathers’ `emotional commitment` and care of children in the context of child contact Views on contact – in the name of love One of the arguments for children’s continuing contact with fathers in psychological discourses is the idea that children need a father’s love and that this is important to children’s emotional development (see for example Sturge and Glaser, 2000)v. Yet as has been seen in some of the accounts above, whilst these violent fathers often expressed their love for the children , it was apparent that such discourses of `love` had very different meanings from what might be conventionally understood as an unselfish emotional commitment to children’s wellbeing. For instance, whilst such fathers stated that they wanted contact because of their love for children, or, more frequently, because of children’s love for them, it did not seem to occur to them that children might be reluctant to see them because of their violence and abuse. Several fathers stated that they wanted contact because children could provide them with ‘unconditional love.’ As one father put it, ‘its about love – you can’t get love like that from anyone else.’ Another father stated, ‘Its because of the unconditional love they give you – its one of the most important things in life.’ This also meant that within these constructs, children were viewed in a highly romanticised way, where they would always be the providers of unconditional love whatever happened in their lives and whatever fathers did. There was also implicit within these portrayals, a sense that as permanent providers of love, children would give the men the emotional support which they had expected from women as their partners, but which they could no longer be relied upon to provide. For some fathers it was also because ‘they loved the children,’ or as has been seen in one of the accounts of above, because he ‘loved them to bits.’ But in both these kinds of discourse there was a sense that children were perceived as some kind of `emotional property` or `investment` where they existed only for the benefit of fathers’ own emotional `needs` and where their love was a form of power over the children. Their perceptions of child’s love, could also be used as a form of power against mothers and several fathers suggested in their accounts that their children loved them more than their mothers and implied that they were in competition for children’s love. Fathers’ rights and the possession of children Fathers’ love could also be invested with rights of possession over children and in two cases was used to justify, the forcible abduction of children from mothers, when they had left because the family home because of a partner’s violence. Most men viewed contact as their inviolable right as fathers which could not be interfered with, whatever the children’s views and despite having at times acknowledged that their children were often terrified of them and that there had been other harmful impacts as a consequence of their abuse. This was typically expressed by one father who had been convicted for assaulting his disabled child, when he stated ‘no one is going to come between me and my children, because they are mine.’ Another father acknowledged that both his children were frightened of him when they came for contact, and that his son, aged eight, would ‘shout and scream,’ when he was picked up for contact visits. But he explained this in terms of ‘the insecurity,’ of his wife and ‘her jealousy,’ and drawing on arguments that are frequently used in family law discourses, suggested that his ex-partner had manipulated the children into being fearful of him. Fathers’ abusive care of children in the contact context Contact arrangements At the time of interview, the fathers in this study had various forms of contact. Some fathers stated that because the children were at an age when they could choose whether they wanted to have contact (usually 11 or older) they now saw the children infrequently. For fathers of much younger children it was clear that initial contact had been limited to a few hours a week particularly where they had convictions for child abuse, and or there had been some involvement from child protection agencies; although only one of these fathers described having contact that was supervised by a social worker. Some of these fathers were still having limited contact which often took place either in the mother’s home or at the home of paternal grandparents, at the time of interview, although this did not necessarily mean that they were safe from abuse (see Forman, l995). For a few of these fathers however, contact had progressed to having children to visit one day a week or to overnight staying contact and in these situations contact continued to be a context where children could be perceived as provoking the father’s abuse. For example one father who was just beginning to have weekly overnight staying contact, and who had earlier stated that he had been abusive towards the children, because they were constantly ‘badgering him for attention,’ when looking after them full time, described how he still found himself ‘losing patience,’ and ‘the same patterns of abuse coming back,’ when the children woke up to early and made demands on him. This father’s ongoing contact was of also particular concern, because he recognised that he had caused some considerable harm to one of his children. He said, “M’s four and she’s not talking well compared with children half her age. She has these catatonic states – it alarms me – I’ve seen that when I’ve been aggressive and smacked her – that’s one major effect that I’ve had on her.” Despite recognising these extreme impacts however, he still went on to suggest that it was his right to have ongoing contact. In addition three other fathers whose contact had been extended to weekend overnight visits, indicated that they continued to use physical abuse and threats in order to control the children. Emotional abuse Several fathers indicated that they were emotionally abusing the children during contact visits, through insulting their mothers or through making threats against them, although there was not necessarily any acknowledgement that they were harming the children in this process. For example, one father who had contact for a few hours a week, described how he had told the children that he would have their mother sent to prison unless she agreed to overnight staying visits. In relating this, this father seemed totally unconcerned how such a threat might be perceived by the children and how anxious they might be for their own and their mother’s safety. Another father dismissed any thought that his abusive comments about their mother could have any negative impact on the children, as is illustrated in the following extract. Q. “Have you said things to the children about their mother?” A. “Yeh – I’ve said she was no good – that she’s got other boyfriends?” Q. “ How do you think they feel about that?” A. “ They don’t know the truth do they? They’re just listening to me spouting rubbish from their point of view – they’re just thinking I’m not a nice person saying things about their mum – you see I’ll say anything because I know I can get back at her.” Numerous examples of this kind of abuse during contact visits were also highlighted in the mothers’ accounts (see also Hester and Radford, l996). For example one mother stated that her five year old son had been diagnosed by a child psychologist as depressed and as having various behavioural and stress related problems including; constant bedwetting; attention deficit disorder and the daily kicking and hurting other children at school, as a direct consequence of what his father was telling him. She said, “ He was telling him, mummy’s a liar and don’t believe a thing she says – she’s a thief and she stole your Christmas stocking and daddy’s house is better than mummy’s and you’re going to live at daddy’s soon anyway …because when you lose a mummy its not so bad – because sometimes mummies die. And you can misbehave here and what you do here you can do at your mum’s house and kick your friends.” Conclusion This research has indicated that despite being regularly involved in childcare activities, violent fathers can continue to physically and emotionally abuse children. There were also indications that increased childcaring responsibilities could provide more opportunities for fathers to abuse and this was indicated both prior to separation and when such fathers gained more contact in the post-separation context. In this context, fathers’ deflection of responsibility onto very young children themselves for provoking the abuse and their inconsistent parenting behaviour was of considerable concern and could have grave implications of harm for the children themselves. In addition in the post-separation context, their motivations for wanting such contact and their parenting practices suggest that whilst they may express some `emotional commitment` to children, this is bound up with self-interested motivations, and that they are rarely able to prioritise children’s interests above their own (see also Sturge and Glaser, 2000) Whilst these findings are exploratory and further research is required in this area, they indicate a need for an assessment of risk of domestically violent fathers’ parenting, particularly in relation to considering their contact post-separation, which goes beyond looking at how much involvement they have had in `caring` for the children or the different activities of childcare, since this is not necessarily an indication that children will not be harmed. They also suggest that the problem is not merely one of poor parenting `skills`, but that violent fathers’ practices in relation to children are bound up with constructions of dominant masculinity that are integrally connected to their violence and control of women in familial relationships. Endnotes i These were programmes where fathers had either been court-mandated to attend as part of a probation order, or had volunteered to attend in order to address their domestic violence. ii Such indexes or checklists are used in perpetrator programmes as means of eliciting violent and abusive behaviours that men are not willing to disclose verbally. They have also been used in previous research with violent men (see for example Dobash et al; l996) iii The mothers’ sample was found through two support groups for mothers who had experienced domestic violence and problems over their children’s contact. iv Most contact centres do not offer direct supervision of the father’s contact; rather they provide facilities where contact can take place in a neutral environment. The term supervised contact can cover a range of arrangements, but may mean the contact is overseen by social workers, although this does not mean that children are completely safe from abuse (Hester and Pearson, l998) v Sturge and Glaser were called upon by the appeal court to provide an expert’s opinion on children’s contact in the context of domestic violence. Although they outlined a number of benefits to children in having contact, they also outlined several situations where children could be put at risk from a domestically violent father. 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Stark E and Flitcraft A (l988) Women and ŗŚĮĻĒé±ØÕ¾ at Risk: A Feminist Perspective on Child Abuse. International Journal of Health Services. 18 (1) 97-118. Sturge C and Glaser D (2000) Contact and Domestic Violence – The Experts Court Report. Family Law:615-629. Williams F (l998) Troubled masculinities in social policy discourses: Fatherhood, in Popay J, Hearn J, Edwards J (eds) Men, Gender Divisions and Welfare. London, Routledge. APPENDIX 3  I DIDN'T KNOW JUST HOW FAR YOU COULD FIGHT: CONTEXTUALISING THE BRISTOL INQUIRY BY RUTH BUSCH AND NEVILLE ROBERTSON HYPERLINK "http://www.waikato.ac.nz/law/wlr/1994/article3-busch_fn.html" \l "fn0" [*]  I. INTRODUCTION On 5 February 1994, Alan Bristol and his three children, Tiffany (7), Holly (3) and Claudia (18 months), were found dead in Alan Bristol's car parked in the garage of their Wanganui home. It was established that death had been caused by Alan Bristol connecting the exhaust system to the interior of the car. HYPERLINK "http://www.waikato.ac.nz/law/wlr/1994/article3-busch_fn.html" \l "fn1" [1] This was the final act of a sustained campaign of violence and intimidation by Alan Bristol against his estranged wife, Christine. At the time of their deaths, the Bristol children were in their father's custody, pursuant to an interim custody order made three months earlier. After public outcry about the killings, the Minister of Justice appointed retired Chief Justice Sir Ronald Davison to conduct an inquiry into the way the Family Court had handled the proceedings between Christine Bristol and Alan Bristol and to consider "the need for any change in the law or in Family Court practice". HYPERLINK "http://www.waikato.ac.nz/law/wlr/1994/article3-busch_fn.html" \l "fn2" [2] In his report, Sir Ronald Davison recommended an amendment to section 23 of the Guardianship Act to the effect that: once a person has been shown to have used violence in a domestic situation either to his/her spouse or to a child or to both, then such person should be presumed (unless exceptional circumstances are shown to exist for deciding to the contrary) to be unsuitable either to have custody or unsupervised access to the child until such time as such [a] person can establish that it is safe for the child to be given into his/her custody or for him/her to have unsupervised access to that child. HYPERLINK "http://www.waikato.ac.nz/law/wlr/1994/article3-busch_fn.html" \l "fn3" [3] Other recommendations called on the court, where proceedings relating to custody and access involved allegations of violence, to satisfy itself whether they are true or not. HYPERLINK "http://www.waikato.ac.nz/law/wlr/1994/article3-busch_fn.html" \l "fn4" [4] A third recommendation suggested that where violence by one party has been established, the court should not make "consent" orders until it is "satisfied that such consent was freely and willingly given". HYPERLINK "http://www.waikato.ac.nz/law/wlr/1994/article3-busch_fn.html" \l "fn5" [5] The above recommendations have been the subject of some criticism. Certain government members and legal academics have expressed reservations; one view is that there were not enough factual details set out in the inquiry to justify the form and scope of the recommendations made. HYPERLINK "http://www.waikato.ac.nz/law/wlr/1994/article3-busch_fn.html" \l "fn6" [6] The main aim of this article is to supply these details: to fill in gaps about the violence in the Bristol relationship, the children's exposure to such violence and the circumstances under which Christine Bristol entered into consent orders with her husband. With this material fully available, it is the authors' belief that the recommendations made by Sir Ronald Davison will be seen as entirely justified by the facts of the Bristol case. A second aim of this article involves the authors' on- going attempt to analyse and redefine paradigms about domestic violence shared by some judges, police, psychologists and members of society at large. At the time of this triple murder, for instance, newspaper accounts of Alan Bristol described him as a "devoted father". HYPERLINK "http://www.waikato.ac.nz/law/wlr/1994/article3-busch_fn.html" \l "fn7" [7] Police stated that the children's deaths had not entailed violence. HYPERLINK "http://www.waikato.ac.nz/law/wlr/1994/article3-busch_fn.html" \l "fn8" [8] The coroner's report stated that the laying of an indecent assault charge by Christine Bristol against her husband had somehow "triggered" their deaths. HYPERLINK "http://www.waikato.ac.nz/law/wlr/1994/article3-busch_fn.html" \l "fn9" [9] These statements highlighted issues that we encountered in our previous research. HYPERLINK "http://www.waikato.ac.nz/law/wlr/1994/article3-busch_fn.html" \l "fn10" [10] First there is the view that one can be a killer - a wife killer or a child killer - and still be a good father. HYPERLINK "http://www.waikato.ac.nz/law/wlr/1994/article3-busch_fn.html" \l "fn11" [11] Next is the view that the victim "provokes" further - understandable - violence by seeking protection from the justice system. HYPERLINK "http://www.waikato.ac.nz/law/wlr/1994/article3-busch_fn.html" \l "fn12" [12] Finally, it is held that one is less of a murderer if one limits one's homicides to family members. HYPERLINK "http://www.waikato.ac.nz/law/wlr/1994/article3-busch_fn.html" \l "fn13" [13] A conclusion we had come to when working on the Protection From Family Violence report was that, if the justice system utilised a more lenient approach toward domestic violence than toward stranger violence, then the system itself pointed to women and children as appropriate and less consequential victims of homicide - and indeed colluded in the violence against them. Over the past several years, there have been several highly publicised murders of children in New Zealand: Delcelia Witika, the Poli children, the Ratima children, Craig Manukau, and Tiffany, Holly, and Claudia Bristol. Each of these murders has resulted in a degree of soul-searching about the nature of our society. In each of these cases a conclusion drawn has been that the murders were unpredictable and therefore unpreventable. In all of these murder cases, the children's mothers had been the victims of domestic violence. In some cases, the children had also been the object of their killer's violence. In the Bristol case there was no evidence that Alan Bristol had ever previously been violent toward his daughters. However, as is evident from Sir Ronald Davison's report, there was no suggestion that Alan Bristol's violence toward his wife was seen as legally relevant in assessing his parenting abilities. Indeed, at the time of their deaths, Alan Bristol had custody of his children. Immediately after their deaths, Christine Bristol stated in a press release that she hoped that the results of a Ministerial Inquiry might bring some meaning to the manner in which her children died. In telling Christine Bristol's story we share some of her hope - while acknowledging that the price of such knowledge is too high. Yet we know from our previous work of the terrible continuing price when these stories remain untold. II. A FOREWORD TO CHRISTINE'S STORY This article is essentially Christine Bristol's story. Where ever possible, we have used her words, recorded during a protracted interview and a follow-up discussion. She has reviewed our draft and commented on it (and some changes were made as a result of this process). In adopting this collaborative approach, we have deliberately tried to "minimise the tendency in all research to transform those researched into objects of scrutiny and manipulation". HYPERLINK "http://www.waikato.ac.nz/law/wlr/1994/article3-busch_fn.html" \l "fn14" [14] We have also attempted to be explicit about our role in the research process, rejecting claims of "objectivity" and "detachment" which have come under increasing attack in critiques of both legal scholarship and social science research. HYPERLINK "http://www.waikato.ac.nz/law/wlr/1994/article3-busch_fn.html" \l "fn15" [15] As part of being explicit about the research relationship, one of us (the senior author, Ruth Busch) has prepared the following statement about the origins of this article. This article arises out of a telephone call made to the Waikato Law School early in July 1994. The caller was a woman with a quiet, hesitant voice: "You don't know who I am but I've been wanting to talk to you for a while now". Working on issues of domestic violence, I knew that this sort of initial connection is commonplace. She went on: "You've done a lot for me recently; I just wanted to contact you". "So", my response was almost light-hearted, "tell me, who are you? What's your name?" "Christine Bristol". I was immediately alert. "I know exactly who you are. I've wanted to talk to you too, but I didn't want to intrude". We set up a meeting. I spent the rest of the week feeling that this was the interview I really wanted for our project. HYPERLINK "http://www.waikato.ac.nz/law/wlr/1994/article3-busch_fn.html" \l "fn16" [16] At the same time, I dreaded the actual time we would spend together. After all, I have three children and my own fears of losing them. And for Christine there is no longer the possibility of a happy ending. So I set up a supervision session with a counsellor friend for late in the afternoon, after the interview would be over. In all the work I have done with battered women - even during our research on homicides - I had never felt the need for space to talk about the feelings that would come up for me. But I knew that this interview would be different. I knew intuitively that she would talk about her hopes and dreams for the children. I knew that she would bring her album of photographs - and that too had to be endured. I was also aware that Christine Bristol was more than just a victim and the subject of a Ministerial Inquiry. This interview needed to work for her too. Part of my job as a researcher was to ensure that she would leave with something more than what she arrived with - more clarity or strength. I had to deal with her as a real person, not as someone important only for her tragedy, nor with fear that her fate could become mine, by osmosis. She had already told me that she had changed her name and tried to start a new life; certain friends and acquaintances had felt the need to distance themselves, to "pariah-ise" her. She arrived at my office at the set time, a very attractive young woman. She could have been one of our "thirty something" students, eager to learn and please, one for whom over the years I've helped to obtain non- molestation and custody orders. She was shy about feeling over- dressed. Everyone else was in jeans; her unfamiliarity with universities had led her to "dress up" that day, and "make up" also. Later in the day, a law secretary asked me who the attractive woman visitor was. More than anything, the first sight of her underscored the cliche "There but for the grace of ..."  She had become a household name now only because of the murders of her children. I was reminded that when our report on domestic violence HYPERLINK "http://www.waikato.ac.nz/law/wlr/1994/article3-busch_fn.html" \l "fn17" [17] was first published we were criticised for dwelling on "the worst cases". But a Family Court Counselling Co- ordinator told me at the time that in our homicide case studies nothing had singled out those women - before their deaths. They were not the worst cases; there were fifty other potential "worst cases" in her court files, each of which might still result in tragedy. At the onset of an interview there were the inevitable politenesses. "Did Christine mind that a man participated in the interview? Would it be too hard to describe instances of battering and sexual abuse?" She was surprised and said "Why not?" She seemed wary of a hidden agenda in the question. "Did she want a cuppa first? Should we stop for lunch?" Almost irrelevant issues postponed our start. But even this stalling could not go on and in the end her story had to be faced. In this type of work, you hope that you can survive the knowledge that is shared with you. You are given stories by women who have sought you out for a purpose. Your job is to relate their stories with integrity - with the glimpses of their strength and courage and resilience in the face of previously untold horror. As the child of holocaust survivor parents, it is a role I have been prepared to assume since childhood. III. VIOLENCE IN THE RELATIONSHIP Christine Bristol related that Alan Bristol's violence to her began even before they were married. They lived together for about eighteen months prior to their engagement and from about six months into their relationship he was physically abusive to her. On numerous occasions he punched and kicked her and "threw [her] around". She said that the violence would occur every week, sometimes several times a week, and that she had black eyes and other forms of bruising. As well, she said that he often belittled her. He had to dominate every situation. He just had to have the upper hand. And he used the children, you know - to bargain for time, to bargain for property, to bargain for money. As a result of Alan's violence towards her, Christine broke off her engagement in December of 1985 and obtained an interim non- molestation order. But she soon discovered that she was pregnant with Tiffany and "because I've always wanted to do the right thing" she reconciled with him. When describing the physical abuse, she recalled: He was worse to start off with. There were more external injuries, if you know what I mean. Once Tiffany came along he tried to control himself more, to the extent that the injuries couldn't be seen. He'd sort of get into a rage and then it would intensify to the stage where physically, he would just go white in the face and he'd be heaving. And his eyes would dilate. You know, it was just so fearful; it makes you back into a corner, just to get away from it. And then he would explode. And that was when the physical and mental abuse would come - and the rapings. And yet he would wake up in the morning and it was as if it had never happened. And once he'd done it, he'd always give me a bunch of flowers or something, as if to say, well I'm not really this bad person. I didn't really mean to do it. I'm sorry. Christine stated that her husband knew exactly where to hit her so that the bruises would not show and told her that it would be useless to tell anyone. He would say: "It's my word against yours, and who's going to believe you. I'm a business man and I'm from this important family. Just who do you think you are?" When we asked why she put up with the abuse, Christine said: He had this sort of force about him that just kept you there, you know. Maybe it was my insecurity. Christine did separate from Alan several times during their marriage but he kept pursuing her and she returned to the relationship. She described her husband as an extremely jealous and possessive person and said that at times she felt that she was "a caged animal". He wouldn't let me out. When the phone rang, he would answer the phone. When the mail would come, he checked the mail to see who I was getting correspondence from. In the finish, about the last month before our marriage broke up, I didn't keep in contact with any of my friends, because it wasn't worth the emotional strain. If I was going to walk out the door to go somewhere, he would say "Who? What? How? When? Where?" And this was every time. Like one particular instance I went to a friend's place for a cup of coffee, you know, after I'd picked Tiffany up from school, just to get the children out of the house for a few hours. And within five minutes of being there Alan rang. "What time are you coming home? When's dinner going to be ready?" Any excuse to draw me back home again. It wasn't worth it. Alan's intimidatory and violent behaviour was reported to the police "about a dozen times". Sometimes she called the police: on some occasions, her brothers did. Christine felt that the police "weren't really interested", despite seeing, in some instances, bruises and strangle marks. One time when I was strangled - Alan was strangling me in Puriri Street - the police said, "Just get your things and leave. Just take the child and take her things, your things and just leave. Just don't provoke the situation any more". In 1989, during one of the periods of separation, Alan was arrested for being unlawfully in an enclosed yard. "He was knocking at my doors and windows". Another time during that year, there was a barrage of anonymous telephone calls and a mysterious arson attack on her new home. There were no other suspects. And of course (the police) knew it was Alan ... The detective who was in charge ... he was on to him. He actually had Alan under surveillance every Friday and Saturday night because it seemed like he was always doing something then. The fire was definitely arson. Someone had used petrol and newspapers out of the letter box to start it. I stayed in that place for about two weeks but the phone calls were getting too much. They would start just as soon as I'd arrive home. I knew Alan was following me around town. It was like everywhere I looked the van was there. Or my friends were saying, "Oh Alan was just in here". Christine told us that generally Alan was a very good father. But she added: There were some times when I felt frightened for the children - like they would push him too far and I could see him getting in a state. But he seemed to be able to control that better with the children than with me. The pattern of physical abuse, intimidation and belittling continued until 1993 when she resolved to change it. When asked why she decided finally to split up with him, she replied very quietly: It was the abuse, and I couldn't stand the pain, the mental torture any more. I wanted to stand my ground. I'd had enough. It was just eating away and I felt, as a mother, it was reflecting on my capabilities with the children. I'd lost all my respect and also I felt Alan just didn't have any respect for me. I was taken for granted and I was constantly manoeuvred like a toy. It was like "do this, do that". Oh, I can't explain it. And when I did what he wanted, he would reward me materially. But to me - I said to him, I don't want that. I just want to be loved. I just want to be treated with respect. But at the end of the day, he thought that he was going to win me over materially. IV. THE MARRIAGE IS OVER Christine described the night before they separated for the last time on 4 July 1993. It started at 7 o'clock at night and we blew right through the night. He was beating my head up against the wall. But it was in the places that can't be seen. I had bruises at the back of my head and chronic headaches. And for some hours we were sitting there in silence and I was too frightened to move. And then he would go to sleep and I didn't know whether to pack my bags and go, or whatever. I was frightened for the children too. Because he still wanted to have this controlling lever that he could separate me from the children every time. You know we both loved our children dearly. But that was his control over me. He would use them to manipulate me. The morning we separated he said, "Right, are we staying in this marriage or not?" And I said, "No, I can't handle it any more". He said, "Right, get your bag". And he threw all my clothes around and he ripped off my wedding rings and things and he flushed my contact lenses down the toilet. And I don't know what the wedding rings signified - he had to keep them. He had to - you know - dominate. And that morning the children of course woke with all this going on. And he put a video on and put them in the lounge. And I said, "I'm not going without the children". He said, "Oh yes, you are. Get in the car now". And of course I had this all night, I was emotionally exhausted, physically drained. And I said, "What are you going to do?" And he said, "Well just get in the car. I'm going to drop you off at your father's; you can think about it for a few days". So we went. He locked the children in the house - this was at 7 o'clock in the morning and drove me round to Dad's place, threw my bag on the ground - Dad and my stepmother were standing at the kitchen absolutely astounded with what was going on - and Alan just drove off. And that was it. And I didn't hear anything at all through that day. All I wanted was to be with my children. My youngest child was only 10 months old. And Alan didn't know how to make up milk formula. He didn't know what foods to prepare. Because I was the wife; I took care of the home, the children, everything. It was mid- term break and they had had house guests whom Alan had thrown out at about 11 o'clock the previous night. "My best friend was staying with us with her son, who's my godson. He's 13 and he was petrified". And Brenda HYPERLINK "http://www.waikato.ac.nz/law/wlr/1994/article3-busch_fn.html" \l "fn18" [18] didn't know whether to ring the police or what. Instead she got in touch with my father. She was very fearful for herself. She had heard all the goings on. And a lot of it had happened down the passage way. And Tiffany and Holly were just standing there watching. They were shocked, absolutely shocked. The look on their faces ... and Tiffany was crying. Holly didn't really understand. Well, she was beginning to understand. And Brenda obviously realised all this, and shuttled them away. But she didn't really know what to do herself. Even after describing this scene, Christine minimised the degree to which her children had witnessed spousal violence: They were just typical, happy- go- lucky, very loving children, you know. We usually kept our differences behind closed doors. They never usually saw it. If we had something that we really had to fight about, we went to the bedroom or we just went where the children weren't. Given that we had just completed an article on the effects of spousal violence on children, entitled "Not In Front of the ŗŚĮĻĒé±ØÕ¾", her statement hung chillingly in the air. V. APPLYING FOR PROTECTION ORDERS Christine said that she applied for protection orders "off and on" for years. Sometimes Alan would convince her not to proceed. He'd say, "I'm not really this bad person. What's the point of going ahead with it? I haven't hit you for a while". And I'd be questioning myself. You know, like I knew it happened but I'd give him the benefit of the doubt. He won't do it again. He's learnt. If I don't provoke him, then he won't do it. He'd say, "Why proceed with it? I'm not going to touch you again". At other times, she obtained a non- violence order, but the non- molestation order application never seemed to be dealt with. My lawyer HYPERLINK "http://www.waikato.ac.nz/law/wlr/1994/article3-busch_fn.html" \l "fn19" [19] and counsel for the children seemed to reckon that a non- molestation order would interfere with the custody arrangements. And I would say, "I'm getting these phone calls, he's following me around". But they felt that the children were the key issue. My lawyer would sort of smooth the whole thing over, like "We've got to deal with access and custody first". But I needed the protection in place straight away and I was the children's mother and indirectly - you know - it all ties in with the children. But they couldn't see that. And the non- molestation order thing just seemed to be put on the back burner. "It's not as crucial as sorting out the children, you know". Which I agree - but if I'd had that protection right in the beginning, I don't think it would have got so out of hand ... Christine's lawyer also suggested that they hold off on negotiating a matrimonial property settlement "until the children were sorted out". It was only after I saw (the new lawyer) and she said, "You could have done that right from day one". But I thought that you had a process that you had to go through first. I didn't realise you could get the property issues on the go. And it would have helped the children settle with me, you know. Because I was in this strange house and nothing was familiar to them. And Alan had that advantage of the family home where all the surroundings were familiar, their own beds, and toys and whatever. And I had to start from scratch. I think it was one of his tactics - to squeeze me so tight that I would go back. If life was just too difficult financially or materially on my own, I'd have to go back. Christine's perception that her non- molestation order applications "seemed to get lost" is substantiated by court documents. On 11 August 1993, Christine had applied ex parte for non-violence and non-molestation orders. While she was granted a non- violence order that day, the judge directed that the non- molestation application "proceed on notice to Alan Bristol at a date to be fixed after counselling of the parties has been completed". It should be noted that the provisions of the non- violence order offered her no protection from Alan's repeated telephone calls and his stalking of her. On 13 September 1993, at a conference of counsel convened by the judge, counsel for the children filed a memorandum which urged placing the non- molestation order application in limbo until a resolution of the custody issues was achieved. This proposal was adopted by the judge on 24 September; he ordered that the hearing of the non- molestation order application "be deferred pending hearing of the Guardianship Act proceedings". A perusal of counsel for the children's memorandum of 20 September 1993 offers insights into the paradigms about domestic violence which all too often have been accepted by our courts. Christine's need for protection from Alan's intimidatory behaviour was deferred indefinitely. Moreover, Alan's abusive conduct was seen as irrelevant to the issue of custody, both in terms of the deleterious effects on the children of witnessing such behaviour and also in terms of his undermining of her parenting abilities through his actions. What was prioritised was the minimisation of "parental hostility". Counsel for the children's memorandum stated, in part: 2. I submit that any public hearing would only exacerbate their [the parties'] polarisation and such would be of no assistance in their common dealing with the children. It is obvious that the children are going to be shared above the norm, and an atmosphere embittered by parental hostility will not be in the best interests of the children. 3. Mr and Mrs Bristol separated previously. They have previously filed papers and allege the same faults this time as they did last time. Without making any attempt to comment on the veracity of those allegations, I can only submit, that without the matter being contested in Court, the parties reconciled and appear to have lived happily together for the intervening years. Two more children have been added in that time to the family. 4. With respect, I doubt that the veracity of the allegations made will affect the decisions on the day- to- day care of the children. I note that Mrs Bristol makes no allegations against her husband in his role as a parent, in fact the reverse. The priority in this memorandum appears to be achieving agreement above all else, principally by avoiding anything which might upset Alan (for example, by not making protection orders against him). By using such terms as "polarisation", "parental hostility", and (non-specific) "allegations", counsel's memorandum effectively minimises, trivialises and renders invisible Alan's violence. At the very least, the violence is reduced to the level of bickering in a dysfunctional relationship. The memorandum also appears to attribute equal responsibility to the parties for the difficulties in reaching a negotiated settlement. On the other hand, if an alternative paradigm was adopted which placed priority on safety and which focussed on the controlling nature of Alan's abusive behaviour, his violence would be recognised as the principal difficulty in achieving a safe and freely negotiated agreement on custody and access. Seen from this perspective, effective advocacy on behalf of children requires confronting the violence and ensuring that the victims of violence are afforded protection. VI. ACCESS CHANGEOVER TIMES AND A FLIGHT TO WHAKATANE By the end of September 1993 Christine said that something always happened on access changeover times, "and it just seemed to get worse and worse and worse". He would do things like park up the road on a rainy day, so I couldn't tell whether they were there or not. And he wouldn't let the children out of the car until I came. And I would be going backwards and forwards up the driveway. And I felt threatened about that, because those were the times he got threatening, but not to the stage where he was physical. Just threatening words. And I thought I don't need that because it's too enclosed. I need to be where it's more public - out. It was like he was trying to control me in my own place. She then described a scene that occurred during one access changeover time where there was a "tussle" over Tiffany, "like he was pulling her in one direction and I was pulling her in the other". And I thought, "I'm not going to put this child through this". Because you could see it on her face. ... And you know, I just felt so bad for her. I wanted her, as a Mum, I really wanted my child. But it wasn't worth putting her through this really explosive situation. You know, you could see it destroying her. It was bad enough the separation, yet the access time just seemed to be more intensified. So, of course, I gave in every time, because it was Tiffany I didn't want to suffer at the end of the day. It was Tiffany he seemed to have control over. And he didn't want to lose that control. And he was trying to squeeze me out of her life virtually in the finish. I saw very little of her, right from November onwards, which was the most distressing thing about this whole thing. And yet the law didn't help me. Deep down I thought, well why provoke the poor child? She's only seven, and I'm going to screw her up by keeping this to- ing and fro- ing. And it seemed like the more I fought for her the more Alan was keying in on her mind. So I thought, well, give her a chance. Let her breathe ... but the law wasn't helping me. The lawyers weren't helping me. Christine's relationship with Tiffany had really begun to deteriorate by this point. Tiffany and I had some terrible fights. She would go quiet and then she would say, "I hate you, Mum. Dad says that you have another man. Dad says this, Dad says that". And I said, "Tiffany look, do you see another man here? Have you seen me with another man?" Somehow or other Alan convinced her that there was a man out there, that there was another person that was taking her mother away from the family. On 1 November 1993, consent orders were made in respect of custody. The orders provided for a shared custody regime with Tiffany being in Alan's care (except from 9 am Sunday to 9 am Monday each week). Claudia was to be primarily in Christine's care (except from 9 am Saturday to 9 am Sunday when she was to be with Alan) and Holly was to be with each parent on a week about basis. School holidays, birthdays, and Christmases were to be shared between the parties. At the same time, the protection order applications pending before the court were withdrawn. The orders were to be reviewable on 14 February 1994, ten days after the children's deaths. Christine noted that Alan suggested this custody arrangement and she recalled why she consented to it. He had told her: "If I keep Tiffany with me then that will curb the problem with her". "But," I said, "You've turned her against me". And he said, "Well, why provoke it any more, just let it be. She wants to be with me". And I thought, well, I don't really want to stir her up and screw this poor little seven-year-old up again. Anyway, he said, "'Well, you can have Claudia and we'll have Holly go week about. But I will agree to that only if you uplift these protection orders. And I'll give you some money". I was on the bones of my backside and I desperately had to pay off these bills. And I agreed because I wanted to see the children. I needed to see them week about and I was feeling like I was losing my motherhood, you know. But if Christine hoped that consenting to Alan's proposal would guarantee her at least some contact with her children and a chance to rebuild her relationship with them, that hope was soon shattered. We signed the consent order on Friday, the 1st of November I think it was. And on Saturday he had the children and he said, "I'm not happy with this". And of course immediately I felt threatened. I'm not going to get the children back again, you know. And on the Sunday morning we were supposed to have the changeover time, that's right, at 9 o'clock on the Sunday morning, and he came up the driveway and he wanted to come into my house to get one of the children a drink. But I wouldn't let him inside the house. You know, I just feel like as soon as Alan's inside the door he sort of thinks he can come and go whenever he likes. He's done this in the past. And I thought, no, I'm having control here. And anyway, one of the children said, "I'm thirsty" and I said, "Oh, just a minute". And they were all playing around on the balcony area there. And I went and got a drink and came back out and he said, "Well, why won't you let me in? Are you hiding something?" You know, he kept pushing, pushing, pushing. Christine said that she had just obtained a job waitressing and she felt that Alan was threatened by that as he thought that she was going to meet somebody else. "I think he still had it geared up that I was just going to come back because I had done it in the past". And he was especially pushing this bit about the job. "You're going to meet somebody. Are you wearing a mini skirt? And are you doing this?" And you know, "You're going to look a real tart" and whatever. And I really felt quite horrible about it. He was standing on the balcony and there are two big high fences along the side, so people couldn't really see us. And this is where I felt threatened. Because it wasn't public enough. Anyway, we were on this balcony by the front door and he slammed me up against the wall. And he said, "You're just a big tart". And that's when I got a big bruise on my arm and I got another one on my leg. And he just sort of threw me round in the doorway. I made out it didn't hurt. I didn't want to give him the satisfaction. Because once he knows he's got into your mind or physically dominated you, he seems to just run away with the whole situation. And I thought, no, I'm going to stand my ground. Christine then picked up Holly and Claudia and Alan said, "Tiffany's coming with me". And before I knew it, you know because I had my arms full, he'd driven off with her. So I just went inside with the younger two. Christine considered laying a charge against Alan for the assault but decided against it. I was hoping that Tiffany was going to be returned and I would have time with her but she never was. If I laid a charge, that would get Alan's back up again. And he seemed to be winning every situation and I thought, well, he's definitely going to dominate if I give him ammunition. So I thought, well, I'll hold off this time and maybe he'll come to his senses and give me Tiffany again. And I didn't want him to manipulate the situation to make me out to be the big evil. And that's what he did. So instead of laying a charge, on 8 November 1993 Christine left Wanganui with the two younger children and went to Whakatane. I thought, I can't handle this any more. Nobody's going to listen to me. And I rang the children's counsel, and I explained what was going on and that I needed, you know, this protection. It wasn't good for the children to see this type of thing. And it wasn't good with Tiffany coming and going. One minute thinking she was coming with me and the next minute being pulled away. And probably to hear criticism of me as well, you know. Christine hoped that her move to Whakatane would be a permanent one. "I was suffocating in Wanganui". She went to the home of Brenda's parents, people who had looked after her after a bad beating years before. But, three days later, on 11 November, Alan applied for an ex parte interim custody order in respect of all three children as well as a warrant to enforce that order. Though the applications were made ex parte, copies of the documents were served that day on Christine's lawyer in Wanganui who contacted her immediately. With the help of a Whakatane lawyer, Christine prepared an affidavit in reply to Alan's application. It included a medical certificate prepared by a Whakatane doctor describing her bruising. The affidavit was faxed to the Wanganui Family Court on 12 November but arrived after a judge had granted the ex parte custody order to Alan. Christine returned Holly and Claudia to Alan the next day. HYPERLINK "http://www.waikato.ac.nz/law/wlr/1994/article3-busch_fn.html" \l "fn20" [20] On the advice of a police officer friend, Christine arranged the changeover to occur at the Wanganui Police Station. It was probably a wise precaution: despite the presence of a senior officer Christine felt intimidated by Alan's shouting and abusive behaviour. And, as she noted, that was the last time she had any of the children in her care. It should be noted that, at the time of the granting of the ex parte order, Christine was not actually in breach of the consent orders made on 1 November. Although she applied for interim custody on 24 November, the children remained in Alan's custody until their deaths. In Christine's view, the making of the interim custody order in Alan's favour substantially altered the dynamics of the family situation in that he was largely able to dictate the terms and conditions under which she had access to or contact with the children. On 1 December, Christine began to flat with Ian, an old school friend who was also a policeman. She felt that she would be safer there. As she was strapped financially, she could also share house expenses with him. Ian had children of his own and a girlfriend but Alan obviously felt threatened by the new arrangement. Christine didn't see the children again at all until Holly's birthday on 11 December. "I was desperate to see them". And I said to my lawyer, "If Alan can get an ex parte custody order and get the children, why the hell can't I?" And he said, "It's crazy, you know. You're just tussling against one another". But I said, "I want to get my children back". And it seemed like all this time went by, and he said, "I'll get it worked out. I'll do this, I'll do that". But nothing was happening. So then I switched lawyers. And when I signed the paper to get my file released, I had this horrendous bill. And there was a time delay in that. So everything was delay, delay. And I said, "Look, Holly's birthday's coming up. I desperately need to have time with the children, to celebrate her third birthday with them, without Alan". So we went to court and I was to have all three children for the afternoon of Holly's birthday and that's when Alan held Tiffany back again and said, "She doesn't want to see you". So I just took the two children. I didn't want a fight. I didn't want to provoke anything. I just desperately wanted those three children. I hadn't seen them since mid November and it was now mid December, a month. So we had a lovely afternoon and I only had them for the afternoon and I took them back at 5 o'clock. There was no court time available prior to the Christmas recess but, on 10 December, a conference of counsel with the judge was held to attempt to resolve the issue of access over the holiday. At the request of Christine's counsel, counsel for the children also attended. HYPERLINK "http://www.waikato.ac.nz/law/wlr/1994/article3-busch_fn.html" \l "fn21" [21] It was decided by counsel at the conference that both parties should urgently be referred to counselling so that an access schedule could be agreed to. One of the issues in dispute concerned the arrangements for access changeovers. Christine and her counsel repeatedly sought arrangements which would have afforded her some protection. One suggestion was for a neutral access change-over place. Another was for Christine to have someone accompany her if she was to go to the relatively isolated family home to collect the children. A third was for someone other than Christine or Alan to transport the children. Alan strongly resisted each of these suggestions, despite the argument that having a neutral person involved would provide a measure of protection to him by reducing the chances of Christine making "false" allegations against him. HYPERLINK "http://www.waikato.ac.nz/law/wlr/1994/article3-busch_fn.html" \l "fn22" [22] As Tiffany's birthday was on 18 December, Christine wanted to work something out that day. We were negotiating in a little lawyer's room at the courthouse. We were actually going to go into court but the judge's time ran out. So we had my lawyer, Alan's lawyer and the children's counsel and we only had so much time, so we had to make a decision. And it felt like Alan's lawyer and the children's counsel were saying, "Right, we've got so much time, take what you can get". And Alan was dominating the whole argument. "You can only have them for the afternoon. You're not having them overnight. And you're only going there when Ian hasn't got his children there, and Ian's not allowed to be there, and you're not going to go anywhere else, and you're not to ...". He just controlled the whole thing. And I tried to stand my ground and I said, "What's one night? Just let them stay the night". I tried to get more time. As it turned out, I only had them from midday till about six o'clock, I think it was. In the finish, even my lawyer thought, "Well, you better take what you can get". Christine remembers Tiffany's birthday as "a great afternoon". Tiffany was a little bit strained to start with but then she came back to her old self. And then as time went on she started closing up again. It was like she was switching off and on. I felt so helpless then. I feel that she would have needed serious help to overcome the psychological damage she had suffered. I could see her taking on a lot of Alan's character actually, being able to switch on and off and adapt to certain situations. Like she put up a front in front of her friends as if nothing was wrong and that she didn't care about her parents being separated. And that she was fine. "And look what new toy I've got. Whatever I want I can get". On 22 December, a further consent order was filed covering access over Christmas and the school holidays. Christine consented to both she and Alan sharing Christmas Day with the children together at the family home. I was expecting us to come to an arrangement where one had them in the morning and one in the afternoon but he wouldn't agree to anything. And then I just thought, "Oh, what have I got to lose?" And I said, "Why don't we all share the day together in our family home?" That's the only way I thought I'd get Christmas with the kids. And he said, "Yes". So we did. And we had an absolutely beautiful day. VII. CHRISTMAS 1993 I got there about 9 am and I was to go at 5 pm but in the finish he said, "Why don't you stay for dinner?" So I stayed for dinner. And then we got talking about things. And then the reconciliation issue came up. And I was looking at the children all night. We had such a beautiful day together. And I said, "I need a couple of days to think about it, a couple of weeks. Just don't push". But I knew that I couldn't handle Alan any more. I just couldn't live with him again. I just didn't have what it takes to carry on with the marriage. I loved him but he'd broken me completely. I'd just had too much upheaval over too long a period of time. Christine, Alan and the children also shared Boxing Day together "but a little bit more tension crept in". He kept the pressure up, you know. Consider it; look at the children. And I could feel it. I was getting tense with the whole thing. And he was gaining control again. Alan asked her to stay over again. "What's one more night and the kids like it so much". She agreed and went up to the second bed in Tiffany's room "but five minutes later he came up and sat beside my bed and I knew I wasn't going to get any sleep and I could feel the tension". The two went downstairs and when Alan went to answer the phone ("It was obviously one of the women that he'd been seeing"), she got her things together. When he hung up, she told him "My answer's, No". For the next two days, Alan rang Christine repeatedly. On 28 December, she went alone to collect the children. When she arrived Tiffany was at a girlfriend's house and the two younger ones were asleep although Claudia woke up when Christine arrived. She decided to come back later to get the children. And as I was walking out he put Claudia down on the floor and grabbed me from behind and dragged me up to the bedroom were he tried to rape me. He had his knee up here against my neck and he had me pinned down on my head. And the verbal abuse was flying. And I was just struggling, trying to get free. I just didn't want him to do it. And of course with the struggle, that obviously woke up Holly and she came in and, well, she really didn't understand what was going on. At first she was laughing. She thought we were playing I think. But then she realised because I was crying and he was knocking my head into the side drawer of the bed, the corner of the drawer. And then Holly was hitting Alan. I said to him, "Look what you're doing. Don't do this in front of the children". And it didn't register with him straight away. But within, I would say about 30 seconds, which seemed liked an awfully long time with what he was doing, he must have realised what he was doing. Holly was standing there staring at him. I can't really remember what Claudia - the baby - was doing and he loosened his grip, and I just ran out of that house as fast as I could. I didn't even bother looking back. And of course I missed out that access time. Christine said that the first access time in January went well but the second one involved Alan holding a knife to her throat. I went out to the house to pick the children up, and it was like nobody was there, you know. And the door was open, so I walked in. And then he just jumped, sort of out from the kitchen into the hallway and just pulled me in and said, "I want to talk to you". He was angry right from the first minute and it just seemed to grow worse and worse and worse. After the previous assault, Christine had gone to the police and laid a complaint. Alan had been away with the children but, by the time of this access visit, he had been interviewed by the police. And he was furious about that and obviously the first changeover time he didn't know that I'd been to the police. And he gibbered on a fair bit and he had this knife. And he actually had me round the throat. But we calmed it down through conversation. And I left with the two younger ones. The three children were watching television in the lounge during this scene. When asked how she was able to "neutralise the situation", Christine said "by making promises". He kept saying that we should spend more time as a family together. More time for the sake of the children. And I said, "Yes, we'll talk about it, but not just now". He wanted the ideal family. Perfection. He always said to me, "We've got a successful business. We've got a beautiful house. We've got three beautiful children. What more do you want". You know. And I said to him, "It's not what money can buy". Christine did not report the January incident to the police. They had not proceeded with the complaint concerning the December assault because Alan had denied it "and I had nothing to back up my accusation". After the January incident, she recalled, "I thought now who are they going to believe? It's his word against mine again". The psychological pressure on Christine from July 1993 onwards took its toll. She became quite sick. "So thin, and all my hair fell out". She lost about two stone "and then I lost more weight after they passed away". VIII. 2 FEBRUARY 1994: THE LAST ACCESS CHANGEOVER TIME With pain and tears and many silences, Christine began to describe the events of 2 February 1994, the last time she saw her children alive. The room became even more silent and we no longer made any eye contact with each other. Each person seemed to focus fixedly on the floor. Well generally Alan was trying to squeeze me out of the access time. And I was supposed to have the children two days and two nights a week. But we didn't have them as fixed days. So he used that to his advantage. And generally one week started flowing into the next week, and I didn't have the children. And I was ringing the lawyer every day. And she was trying to arrange times. Well, it all just mounted up to what happened in February, the indecent assault. It was only after that happened - you know, when I complained about it to the police - that we (my lawyer and I) decided, "Right, that's enough ... no more access without supervision". We were going to make fixed days ... And Alan's mother was going to pick the children up and drop them off. Before 2 February, Alan had insisted that Christine come to the former matrimonial home to pick up and drop off the children. Because she was afraid ("the house was down a long road and very isolated"), she tried to have someone else accompany her in the car. But Alan would ring me up and say, "Don't bring anybody out again, or you're not having the children". He jumped up and down about it so much that my lawyer said, "Look, let's just keep the peace here". Around this time she got to the point where I didn't care in the finish what happened to me. It was worth taking the risk every time, just to see the children. In fact, I got sick of going to the police. But he was getting worse. When asked what did she mean by "worse", she said: He seemed to be taking out more sexual frustrations on me as well. And it was more malicious. He was pinning me down more and just very ... it started getting more sexual ... I think he felt he was losing control of me. And in the finish, he could see that I had let Tiffany go. And even though he did have total control over her, it wasn't enough. So he was trying it on Holly, trying to do it with Holly. But obviously he was getting frustrated with her, because of her age. And because I was starting to get stronger within myself. I had a job and I had new friends. And I was starting to expand myself; I think he felt threatened with that. So he was getting frustrated, to the extent that it was like he was getting physical every two weeks - whenever he had an opportunity when nobody else was around. Which seemed to be when I was to go to the house, a very isolated house, to pick the children up. I was returning the younger two children to the house. Alan wouldn't let me have Tiffany during that access time. He claimed she didn't want to be with me. I had to start work at 5.30 and I had to drop the children off at 5.00. So I was up at the house right on 5 o'clock. I remember just driving up to the top of the drive. And Alan was shutting the garage door. And Tiffany was inside and her friend was in there as well. I took Claudia's car seat out and Alan took out Holly. As he was taking Holly's car seat out, my driver's window was down. And he put his hand in and grabbed the keys out of the ignition. And he held them in his hand. And I said, "What are you doing?" And he said, "Who's this lawyer friend?" There was a friend that was taking me out and he was a lawyer. But there was no relationship, no involvement. He was just a friend. And anyway, I did't know what Alan had heard. Christine broke off her story, looked around and said: "This is pretty horrible". And then he pushed me up against the wall and then he said, "Who's this lawyer friend?" And I said, "I don't know what you're talking about". And he said, "Stan". And I said, "Oh, you've got it wrong. He's just a friend". And then he lifted up my skirt. And he said, "Has he been here?" And he ripped my underclothes and said, "Has he been here?" And he grabbed my breast and twisted it. And so of course I struggled with him and tried to get my keys back. The whole time I was trying to peel his fingers back and get the keys, and he was just pushing me up against this wall, and kept knocking my head against it. And that's how I whacked my elbow and it came up pretty sore and it was bleeding. And I kneed him. And punched him in the nose. And gouged him in the eyes - I did everything I possibly could. And the hand that he had my keys in - I actually got him round the wrist with both my hands and slammed it into the wall. Which is a roughcast wall, and it made all his knuckles bleed. And that's the blood I had on my shirt, along with what was on my elbow, and my nose was bleeding. And I was crying, and Holly was beating Alan. And Tiffany was in the kitchen. It's like a glass house kitchen with tinted windows and Claudia was crawling along the bench. She was half out the window. And Tiffany was just staring out with this glazed look, in disbelief really, I think, but she had a funny grin on her face like I'd never seen before. Her friend Lisa was absolutely horrified. And Alan just kept going and going and going. And he said,"Well, why don't you step inside and we'll talk about it?" And I said, "I'm not going in. Just give me my bloody keys". And he said, "Well, say please". And I said, "Please" and he just held his hand out like that. So I grabbed my keys and hopped in the car, wound the windows up and locked the doors. And Tiffany came running out and stood by Alan's side and Holly was crying. I don't know where Claudia was. And all I could hear him saying to Tiffany was, "See what I mean about your mother. See how crazy your Mum is". It was just incredible. She was just standing right next to him. And he said, "Look at her!" And Tiffany was watching the whole thing that was going on. She didn't say anything. She just had this peculiar look on her face. But her best friend was standing next to her absolutely horrified. And Tiffany - like emotionally she was torn. And she didn't really know who to go to. But Alan just kept talking, talking, talking. And it seemed to - you know - encourage her more to his direction. And I said to Tiffany, before I went down the driveway, "Tiffany, one day you're going to find out the truth, and I'm always going to be there for you". And that was the last time I saw them all alive. I went home. And I didn't really know what to do. My mind was all over the place. And I knew I looked a mess and I didn't want to be seen like that, with the blood and everything on my shirt. Ian, my flat mate, was there with his children and luckily they were down in the kitchen. And I said, "I need to speak to you" and I ran into my room. And he came in and he said, "Oh my God". He said, "You know what to do". And we actually had a blazing argument. And I said, "Look, it's not worth losing a friend over". I said, "I'm sorry, I'm going to go over to the police station now". And he said, "Do you want me to ring them?" And I said, "No, I'm going in there now". So I changed my skirt, my underclothes, and put them all in a bag and went into the police station. When asked whether she reported the incident to the police to placate Ian, Christine replied: No. It was somebody saying to me, "Well, you know what to do". Because I had so many things going on in my head, and I was fretting for the children, and I was really upset that they'd seen what had happened because that was the very, very worst that they'd ever seen. And all three of them witnessed it. Well I know Tiffany and Holly did. And I was very upset about Tiffany's friend too. Yes, the look on their faces and what Alan had said to Tiffany as I was driving away. The next morning Christine was examined by the police doctor and photographs of the bruises were taken. The police went and spoke to Tiffany's friend who corroborated Christine's story. Her bloody shirt had Alan's blood on it. He was charged with indecent assault. IX. THE DEATHS Christine stated that she had always had a worry that Alan might turn on the children. I didn't think he would. I trusted him because I'd never seen him do it. I'd seen him come close but I thought, "No, he won't. He wants to fight for custody. He wants to be seen as equal to me as a parent". Because I'd had more involvement with them. And I didn't think he would do this. Especially to himself. You know, he had such high regard for himself. He had a big ego, full of confidence, knew he was successful. He had this striving personality to win, win, win. He never lost. He wanted always to have the upper hand. But then, like I said to Sir Ronald Davison, if he couldn't have the children, then nobody was going to. Because Alan had repeatedly made the threat about her ("If I can't have you, nobody will"), Christine had become quite fatalistic. In fact with the violence increasing with him - towards the latter part of last year and the beginning of this year [1993/1994] - I felt that I was accepting it. That it was going to be me. Something was going to happen to me. And if he had come into my work with a gun or something, I couldn't be bothered fighting it. You know, because of the children, I thought, well, I'll never be rid of him, never - not for years and years and years. She recalled that when she first saw Alan in the funeral home: The first thing I did was look at his face and his hands and feel that he was cold. I was adamant that he was going to sit up and get me still. Every day I went to see them - sometimes several times a day - and I went to him first to make sure he was cold. As sick as it sounds. And his hands were clenched and I knew he was tense ... yes, fighting. This is him. His fighting spirit. And that's the way he was found, fighting to the bitter end. And yet I didn't believe he was dead. Alan Bristol left no notes explaining his actions. They say that the children never knew what happened. It took them three minutes, maximum. The back of the car was made like a big bed. I can't understand that because the children were light sleepers. But they looked so peaceful, so ... but Alan, he obviously realised what he had done and realised the consequences and turned the ignition off. And they reckon it took him fifteen minutes, maximum. But he struggled ... and was found in a position where he'd just turned the ignition off. But it was all pretty much premeditated. Because he'd taken the hose off the pool and used that. In response to the inevitable question of why she feels that he killed the children and himself, she answers quietly, "To get at me. It's my punishment". I think he knew that he was going to be revealed for the person he was. And because of that he was definitely going to lose custody and he couldn't handle that. And he couldn't handle the fact that he lost, I think. It was like a win/lose thing with him. And if he lost he had to play again, double or quits. X. REFLECTIONS There was very little to say once the story of the children's deaths had been told. Christine spoke with anger about Alan's lawyer's description of Alan as a devoted father, made during a press conference. I couldn't believe it. I have it on video what he said, that Alan was a devoted father and had a good chance of getting custody of the children. And I thought, for goodness sake, you're losing sight of the fact that he murdered his children. How can he be a devoted father when he's a murderer? He put himself first. His own wants and needs over and above his own flesh and blood. Oh I don't know, I get so bitter at times. We asked her to think about how the legal system could have worked better for her and her children. She responded by describing how worn down she had become by the constant negotiations about custody and access. I got so tired and exhausted with it, I was bordering on giving up. I was about to give up Tiffany. I felt like it was torturing her. And I thought, well, as long as one of us bowed down and left the poor child some sanity, at the end of the day maybe she will come right. She will - sort of further down the track when she's older - understand what's gone on and that I'm still her mother. And then the words tumbled out: I needed protection against Alan. And I wish I'd been told by my solicitor what I could and what I couldn't do, what options were open. I really didn't have a clue. What I could fight for. What rights I had. What supports there were. I just needed advice really. And what course of actions I could take. And the attitudes. Like counsel for the children's attitude. I was very disappointed there. And I just thought, well Alan got away with a lot more, being a stronger person than me. He stood his ground. He obviously knew what guidelines he could go to. I didn't have a clue. You know, I didn't know just how far you could fight. And just what you could ask for. Like I had no idea about this ex parte thing. And just what was involved with non- molestation orders. And what the difference was between a non- molestation and a non- violence order. I just thought, right, he's not going to touch me again or he'll be prosecuted for it. But then there's all the other complications like the phone calls and the following around and, you know, all the intimidating stuff. And when I came back from Whakatane, I basically felt like I'd run off with the children. I had to return them and I was getting this big slap over the hand: "Naughty girl, don't try anything else". Really that's what I felt like. I was always on the back foot. I was constantly trying to prove myself. Alan seemed to be on this pillar and he was running sweet, and I had to prove myself. It was only during the interview that Christine learnt that there is such a thing as an occupation order and that she might have been able to live in the family home with the children. And in response to whether a supervised access centre might have helped her situation, she replied, "Yes, I think they're brilliant because I think it's important for a child to still keep in contact with the other parent". As a father he was good. But as a husband to me he wasn't. And I was totally disgusted that he let the children see what he did. And it was changing my point of view about him. I thought, well, what sort of a conscience has he got? What sort of a person is he really? He's obviously putting himself over and above the children. And as time went by ... would have gone by ... I think, you know, those children would have been an absolute mess if I didn't get any more protection. My self esteem, everything, it just went through the window. But it was the children that kept me going. I didn't know how much longer I could take it. But, you know, my children were my children and I can't have any more. And I didn't want to lose them forever. I just felt like I was being cheated out of being a mother. I really wanted to stand my ground. And killing them was a last desperate dig at me. He knew I couldn't have any more children and he knew that I adored them as much as him. So what would be the way to hurt me but to take what was most precious. But he's cheated them out of life ... out of having their own children, getting married ... just life. XI. THE ENQUIRY Christine is pleased with the recommendations of the Davison Report. She believes that her children might still be alive if the changes recommended by Sir Ronald Davison had been in place. It is her hope that the recommendations will be implemented for the benefit of other children who might be saved. On 16 September 1994, the Minister of Justice announced proposed new domestic protection legislation. This included a new protection order covering a wider range of behaviour than covered by the existing non-molestation and non-violence orders; increased penalties for breaching protection orders; and a presumption that "anyone who has been violent will not obtain custody or unsupervised access unless that person can satisfy the court that the child will be safe". HYPERLINK "http://www.waikato.ac.nz/law/wlr/1994/article3-busch_fn.html" \l "fn23" [23] There was no mention in the Minister's statement about another important Davison recommendation: that the court should not make "consent" orders in cases of violence until it is satisfied that such consent was freely and willingly given. HYPERLINK "http://www.waikato.ac.nz/law/wlr/1994/article3-busch_fn.html" \l "fn24" [24] Like Christine, we support the recommendations made by Sir Ronald Davison. It is our conclusion that the court dealt with the "public" Alan Bristol: the successful, rational, decent businessman. His violent and other abusive, controlling behaviour within the privacy of the home was either hidden or considered irrelevant to his fitness as a custodial parent. It is true that, under the present legislation, the court can consider spousal violence as relevant to the best interests of the child in determining custody and access arrangements, as certain recent judgements have shown. HYPERLINK "http://www.waikato.ac.nz/law/wlr/1994/article3-busch_fn.html" \l "fn25" [25] However, our earlier work HYPERLINK "http://www.waikato.ac.nz/law/wlr/1994/article3-busch_fn.html" \l "fn26" [26] suggests that what happened in the Bristol case exemplifies a contrasting, predominant paradigm that minimises, trivialises and makes invisible spousal violence. As Sir Ronald Davison said: The present laws and practices dealing with domestic cases where violence and abuse are not factors to be considered, seem to me to be quite adequate. In order to deal with cases involving domestic violence however, a completely new social philosophy is needed. HYPERLINK "http://www.waikato.ac.nz/law/wlr/1994/article3-busch_fn.html" \l "fn27" [27] XII. AFTERWORD Like Christine, we are encouraged by the recommendations of the Davison report and hope to see them fully implemented. But, in the meantime, the survivors of violence continue to do what they have always done: they carry on, they minimise their own suffering, they employ a myriad of survival tactics. As Christine told us, what had been happening to her seemed like "just everyday life": It's like everything that I've come up against with him. It's just been an obstacle and it's like a hurdle race. You know, you jump over it and you pick up the pieces and you move on and although what has happened in February ... is the biggest hurdle, still I had this inner instinct to just pick up the pieces and move on ... [*] Ruth Busch, BA (Wisconsin), JD (Hons) (Connecticut), Senior Lecturer in Law, University of Waikato; Neville Robertson, BA (Canterbury), M Soc Sc, Dip Psych (Com) (Waikato), Lecturer in Psychology, University of Waikato. [1] Davison, R Report of Inquiry into Family Court proceedings involving Christine Madeline Bristol and Alan Robert Bristol (1994) 16. [2] Ibid, 2. [3] Ibid, 42. [4] Ibid, 45. [5] Ibid, 46. [6] See, eg, Stewart, G "Domestic violence: The Bristol case and the Davison report" (1994)1 Butterworths Family Law Journal 116-121. [7] New Zealand Herald, February 8, 1993. [8] New Zealand Herald, February 7, 1993 [9] Davison, supra note 2, at 17. [10] Busch, R, Robertson, NR & Lapsley, H Protection from Family Violence: A Study of Protection Orders under the Domestic Protection Act (1992). See Chapter 11. [11] We had also seen this suggestion in discussion of the deaths of the Ratima children. Raymond Ratima, who was convicted of the murder of his 3 children and 4 other relatives, was described as "very caring to his children" (The Dominion, July 9, 1992, 8). [12] Alan Bristol was described by his lawyer as being under pressure of "the custodial situation and his ongoing relationship with his wife" (New Zealand Herald, 8 February, 1994). Raymond Ratima was described as having "a need to see his son" (The Dominion, July 9, 1992). [13] The sympathetic comments made about the perpetrators of the Bristol, Ratima and Schlaepfer killings contrast sharply with the almost universal condemnation of the man responsible for another mass killing, David Gray. Gray shot 13 people at Aramoana, none of whom was related to him. [14] Acker, J, Barry, K & Esseveld, J "Objectivity and truth: Problems in doing feminist research" in Fonow, M & Cook, J (eds) Beyond methodology: Feminist scholarship as lived research (1991) 136. [15] For a legal perspective on these issues, see Seuffert, N "Lawyering and domestic violence: Feminist integration of experiences, theories and practice" in Stubbs, J (ed) Women, Male Violence and the Law (1994). A similar analysis from a social science perspective can be found in Hoff, LA "Collaborative feminist research and the myth of objectivity" in Yllī, K & Bograd, M (eds) Feminist perspectives on wife abuse (1988). [16] This project, supported by the University of Waikato Research Committee, aims to evaluate Family Court practices in determining custody and access arrangements in relationships characterised by spousal violence. In particular, we are investigating the impact of these practices and resulting outcomes on victims of spousal violence and their children. [17] Busch, Robertson & Lapsley, supra note 11. [18] Pseudonyms have been used for all people mentioned outside the immediate family. [19] Christine changed lawyers in November 1993. These comments refer to the earlier lawyer. [20] In fact, under the Care Order made by consent on 1 November, only Claudia was due to be returned that day: Holly was not due to be returned to her father until two days later. [21] Counsel for the children was actually unsure whether he had jurisdiction to attend under the brief he had been given. [22] Using the children is a common tactic employed by abusers to maintain power and control over their partners or ex-partners. This is recognised in the "power and control wheel" developed in the women's education programme of the Duluth Abuse Intervention Project (Minnesota Program Development Project, In our best interests: A process for personal and institutional change). [23] Minister of Justice, "Domestic Protection Legislation" (press statement issued by the Minister's Office, 15 September 1994). [24] Davison, supra note 2, at 46. [25] See, eg, V v T, Family Court, North Shore, 18 April 1994 (FP 33/93) per Green DCJ. This and related cases are briefly reviewed in Robertson, NR & Busch, R "Not in front of the children: The literature on spousal violence and its effects on children" (1994) 1 Butterworths Family Law Journal 107-115. [26] Busch, Robertson and Lapsley, supra note 11. [27] Davison, supra note 2, at 41. APPENDIX 4 Four Corners - 16/08/2004: Losing the ŗŚĮĻĒé±ØÕ¾Australian Broadcasting Corporation FOUR CORNERS Investigative TV journalism at its best. Home | Archive | Opinion | Forums | Web Specials | ŗŚĮĻĒé±ØÕ¾ Us | Subscribe TRANSCRIPT Losing the ŗŚĮĻĒé±ØÕ¾ Liz Jackson tells a compelling and intimate story of a family's tragic breakdown. Date: 16/08/2004 LIZ JACKSON, REPORTER: It was a shocking and seemingly incomprehensible act, but one that is far from unique. In the small, bleak hours before dawn on Anzac Day morning three months ago, a Brisbane man took the lives of his two small children. Jessie was 20 months, Patrick was 12 weeks. Their father, Jayson Dalton, took this footage of the children the night before, after what he told them was a bad day for Daddy in the Family Court. JAYSON DALTON (ON HOME VIDEO FOOTAGE): We had a bad news today about the courts. Yeah, you're going to miss Daddy, aren't you? LIZ JACKSON: It appears it was some hours after he had drugged the children that Jayson Dalton wrote a suicide email to his estranged wife Dionne and then took his own life. OWEN PERSHOUSE, FOUNDER, MENDS: What he did was monstrous. What he did was crazy. What he did was evil. But it's too easy to just say the person's bad or mad and leave it at that. DIANA BRYANT, CHIEF JUSTICE, FAMILY COURT: If it happens, you go over the case and think, "I did what I could. There was nothing to indicate this would happen." But emotionally, of course it affects us. We're all human. I think it affects everybody. We all live in the shadow of this happening to us, unquestionably. LIZ JACKSON: And what's it saying to us, that phenomenon? OWEN PERSHOUSE: "Do something. Do not ignore this." LIZ JACKSON: Jayson Dalton appeared to be a father who doted on his children, especially his little girl. As the Government declares the need for major reform of the family law system, Four Corners tells the intimate story of what led to this tragedy. It's a story that confronts the issues of family violence, and the bitter battles for custody in the wake of family breakdown. (HOME VIDEO FOOTAGE OF DIONNE GETTING READY FOR HER WEDDING PLAYS) LIZ JACKSON: Dionne Dalton likes to be organised, and wanted everything on this day to be just right. In a few hours time, she would be marrying Jayson Luke Dalton. Her husband-to-be's stepmother, Evelyn Dalton, is a hairdresser, and she'd flown over from Western Australia to help prepare for the big day. Jayson and Dionne picked her up from the airport. EVELYN DALTON, JAYSON DALTON'S STEPMOTHER: He gave the impression then of...very caring, very tender. He was proud of her. You could see it. Like I said to him after I met her, "You've hit the jackpot, mate. Good on you." LIZ JACKSON: Dionne had met Jayson after he'd contacted her through an Internet chatroom site. Eight weeks after their first date, they were living together. Six months later they were engaged. DIONNE DALTON: I was just so ecstatic that he'd proposed to me. I thought, "This is the man I'll spend the rest of my life with and have children with." LIZ JACKSON: Dionne had been married before, but this was not going to stop her getting married in white. (FOOTAGE OF DIONNE PREPARING FOR HER WEDDING CONTINUES) WOMAN 1: Do you want any more gold to wear? Got enough? DIONNE DALTON: Should I take my watch off? WOMAN 1: Yes. WOMAN 2: Yes. WOMAN 1: Brides don't wear watches. DIONNE DALTON: How will I tell the time? WOMAN 1: Don't worry about it. WOMAN 2: That's what Jayson's for. DIONNE DALTON: Oh, mate. WOMAN 2: That, and he looks decent in a black suit. (Chuckles) The only reason. He's just there for colour. DIONNE DALTON: We're not relying on Jayson this week. LIZ JACKSON: There'd been a small incident with Jayson a few days before which no-one really wanted to talk about. EVELYN DALTON: Jayson and Dionne came to pick us up from the motel. Dionne was driving and Jayson was a passenger, and I looked at the windscreen and I said, "Did someone throw a rock at the screen?" And he never lied to me, he was always honest, and he said, "No, I put my fist in it." And I just said, "Oh," and I said no more. DIONNE DALTON: I can't remember what it was over, but he...he just punched the windscreen and the windscreen shattered. It was the first time I'd really, really seen him get really aggressive. The alarm bells were ringing in my head, but I just thought, "No, I can't pull out of this wedding three days before we're due to get married." LIZ JACKSON: Dionne was Jayson Dalton's first serious girlfriend, and he held the view that marriage was for life. EVELYN DALTON: It was always in his mind, and he used to voice it, that he was only going to get married once. He didn't want to be divorced like his dad, and he wanted children. That was the whole package. LIZ JACKSON: Everything went smoothly as the two families were joined together, but not everyone was happy. Dionne's mother, Julie Wherritt, hadn't liked Jayson from the day that she'd met him, and found herself sidelined at her own daughter's wedding. JULIE WHERRITT, DIONNE DALTON'S MOTHER: I knew from the first time I met Jayson that Jayson was a control freak. Jayson had to have control. He was a perfectionist and he had to have everything going the way he wanted it. LIZ JACKSON: Dionne's bridesmaid increasingly shared Dionne's mother's doubts - a groom who chose the bridesmaid's dress? SHARYN WRIGLEY: Jayson came with me to choose the bridesmaid's dress. He chose the colour and he chose the dress. I had no say, and on the day of the wedding, he decided the hairstyles, and, uh...he was a very... Then the true colours just started coming out. He was a controller. LIZ JACKSON: But who could really care, as long as the couple were happy? After the honeymoon, they moved into the house that Dionne had bought before they were married - a weatherboard in the Brisbane suburb of Kelvin Grove. Dionne remained estranged from her mother and began to see less of her friends. DIONNE DALTON: I'd been so close to my mother and my family, but I took his side, and that's basically when the rot set in. From that time, we just didn't have any contact, really, with Mum. SHARYN WRIGLEY: All of a sudden, Dionne wasn't allowed to have her friends. Dionne wasn't allowed to go out. Jayson made sure that I wasn't going to be someone who was taking Dionne out Saturday night and Friday night. LIZ JACKSON: After the wedding, they saw very little of Jayson's immediate family as well - his father and stepmother lived in Western Australia. He was an only child, and his parents separated when he was eight. He started off living with his mother, but it didn't work out. Val Dalton is Jayson's father's cousin. VAL DALTON: He, uh...would go into rages and so on. He, um...he did that with his mother when he was living here at the coast, and he was expelled from a school. I believe he threatened a teacher and, um, so he went back with his father. LIZ JACKSON: When his father enrolled him at Mount Isa High School, he specifically asked that Jayson not be taught by women, to avoid the problems he'd had at his last two high schools. Mollie Dalton is Val Dalton's sister. MOLLIE DALTON: From accounts by his father, there does seem to have been a problem. There seems to have been a kind of anger that often surfaced in him and sometimes led to, um, you know, violent actions or speech against... particularly against women. LIZ JACKSON: Four months into the marriage, Dionne was pregnant. DIONNE DALTON: We were both just so elated and so, just, shocked and surprised because we had been trying for about four months and when it did actually happen, we just ecstatic at the thought that we were going to have a baby. MOLLIE DALTON: They seemed to, uh, talk together a lot about what was to be done, though we wouldn't have always spoken to Dionne in the way that Jayson sometimes did. He had a rather abrupt way of speech sometimes. DIONNE DALTON: We were still going along quite well, but he was just verbally abusing me. LIZ JACKSON: What sort of things? DIONNE DALTON: Oh... Words I don't want to repeat. A lot of swearing, using the F word, using the C word and every second word was "F this, F that, F this, F that." And it just demoralised me totally when he would speak to me that way because I decided that I was doing everything in my power that I could to do what he wanted. LIZ JACKSON: While Dionne was pregnant, Jayson decided that they would start a business - a shop that would boast the largest collection of door handles in Australia. Up until the day she went into labour, Dionne ran the shop, while Jayson continued his job with a mining company. DIONNE DALTON: It was really hard on me and he was hard on me as well, just making sure that we met figures and he got the achievement...he achieved the goals he wanted to achieve. LIZ JACKSON: On September 12, 2002, Jessie Caitlin Dalton was born. DIONNE DALTON: The day before, he'd had a huge argument with me and it put me into stress and the next day they induced me. But he was very apologetic to me that night. LIZ JACKSON: From the moment she was born, Jayson was besotted. She was a delightful baby, but business was business. DIONNE DALTON: He just kept on at me the whole time, trying to pressure me and get me to go back to the business and leave hospital. LIZ JACKSON: When Jessie was one week old, Dionne was back at work three days a week, taking Jessie with her. DIONNE DALTON: It was like I was on autopilot. I did that for six months until Jessie got to the stage where she was crawling around and needed some stimulation. So we put her into day care two days a week. LIZ JACKSON: By this time, Dionne says that Jayson had started to hit her. DIONNE DALTON: The first time he did it to me I was just absolutely terrified. I said, "Why did you hit me? What did I do to deserve that?" He said, "You didn't do as you were told. If you had done as you were told, it wouldn't have happened." I said to him, "But I didn't do anything wrong. I just did what I was supposed to." "You didn't do it the way I wanted it done." LIZ JACKSON: His temper was increasingly bad. Here Jayson is getting Dionne to video a car he believes has cut him off. (HOME VIDEO FOOTAGE PLAYS) JAYSON DALTON: Zoom in on the bloody thing there. DIONNE DALTON: I'm just nervous, OK? JAYSON DALTON: Just zoom in! DIONNE DALTON: Alright. LIZ JACKSON: But she was not thinking of leaving. DIONNE DALTON: I'd always said that if anyone hit me I'd leave a relationship straightaway. But at that stage, because I had Jessie, I was too scared to go anywhere else. I thought, "I've frozen my family out of the picture." So they weren't there for me anymore and I had no one else to trust. LIZ JACKSON: In April 2003, Jessie was christened. Jayson's stepmother, Evelyn Dalton, came over from WA for the service. EVELYN DALTON: That was all very nice. We had a nice time. Uh, we came home and Dionne changed clothes and I noticed some bruises on her arms. And I said to her, "What happened here?" DIONNE DALTON: And I just broke down in tears and told her about what had been going on. EVELYN DALTON: And she said then he was very controlling. He was starting to push her around. I knew that it wouldn't stop there. It would get worse. It does. DIONNE DALTON: And, um, anyhow, that night she confronted Jayson about it, when I'd gone to bed. EVELYN DALTON: I spoke to him and said, "You know, you don't do this. This is not on." I also said to him, "If you continue in this manner, you will lose everything that's near and dear to you. The thing that you will lose will be your wife and children." And I said, "If you've got any feeling for me, you'll lose me." So we had a...not a... I probably... I said more than Jayson. Jayson didn't have a real lot to say because he knew he was wrong. LIZ JACKSON: A few weeks later it was Mother's Day and Jayson wrote Dionne a card from Jessie. (HOME VIDEO FOOTAGE PLAYS) DIONNE DALTON: Thank you, Jessie. That's really nice. JAYSON DALTON: Oh, Mummy's crying now. (Laughs) Why, what did she say, Mummy? DIONNE DALTON: I can't read it, 'cause I'll cry again. JAYSON DALTON: You'll cry again? Did it say something about that Jessie can't wait till she can say that she loves you all by herself? DIONNE DALTON: That's right. LIZ JACKSON: By now, Dionne was already pregnant with Patrick. DIONNE DALTON: I fell pregnant with Patrick on May 5, 2003. The reason I remember the date is because I hadn't wanted to have sex with Jayson. Jayson had forced himself on me. Um, I'd said to him at the time, "Jayson, you don't hit someone that you love. I don't want to have sex with you." And he was just very, very sullen and he was very, very angry. And, uh... Anyhow, he forced himself on me and, um, it was...it was a nightmare. And a couple of weeks later I found out I was pregnant. The whole time I was pregnant with Patrick, he was hitting me and it was just getting worse and worse up until that... the first time I called the police. LIZ JACKSON: On Dionne's account, it came to a head one night in November 2003 when Jayson lost his temper. DIONNE DALTON: The next thing I knew, he threw the microwave at Jessie and I as we sat on the lounge chair. And I'd had enough. I just rang the police straightaway and they came out and they took him away to the watch-house. It took eight of them to take him away. The neighbours had all come out that night because there were police cars everywhere. And, um, he just... As soon as he came back, he said to me, "Do you want to stay together?" And he was very apologetic. LIZ JACKSON: The police obtained an interim domestic violence order to protect Dionne. One month later, just before Christmas, Jayson punched a hole in the French doors of their house and threw a broom at Dionne. He later admitted that 'regrettably' the handle had caught her on the back of her head. He took off with Jessie. DIONNE DALTON: I was just out of my head with worry about where he'd taken her and what had happened. And, uh, anyhow, a police inspector came and he pulled me aside and said, "Look, this is escalating, this violence, and you've really got to do something." VAL DALTON, JAYSON DALTON'S COUSIN: I offered to go over. And Dionne said, no, the police were there with her, but... And I rang back several times. Then she said "No, he's home now. Everything's alright. We'll work it out. I'll go to my mother's." LIZ JACKSON: Val and Mollie Dalton called around in the new year. Dionne was by then over eight months pregnant. By now, both families knew that there were allegations of violence, that Jayson was subject to a domestic violence order and that he'd already breached it once. MOLLIE DALTON, JAYSON DALTON'S COUSIN: We knew that there were allegations of it and Jayson himself admitted that he had hit her. He said, "To my shame, I have hit her." And he said, "I'll never forget that. I should not have done it." And he said, "But I am trying to be better. I am turning over a new leaf." And he did try to manage his anger. VAL DALTON: Whenever I spoke to Dionne alone, she said that they had worked things out, that they would work things out. And, um, I said, "Well, you don't have to put up with violence." Um, and I believe that very strongly. LIZ JACKSON: Patrick James Dalton was born on 24 January, 2004. Dionne was back at work again within five days. The business was struggling. VAL DALTON: Dionne could barely walk to go up their tall front stairs. We said, "You shouldn't be at work." She just laughed and said it had to be done. LIZ JACKSON: But Dionne had decided she'd had enough. She wanted out from the marriage. She made plans to leave at the end of April when Jayson would be away. But after a bad row on March 4, she packed her bags and fled to her mother's. JULIE WHERRITT, DIONNE DALTON'S MOTHER: She was in tears and she said, "He's just told me that it's on tonight." And she said, "I'm just so scared, Mum." And I said to her, "Just come." DIONNE DALTON: He said, "Tonight's the night. It's on. It's going to happen tonight." So I packed up the car and I packed up Patrick. I went and picked Jessie up from day care and I took off to Mum's place. LIZ JACKSON: It took 1.5 hours to drive down to her mother's place on the Gold Coast. In that time, Jayson rang Dionne's mobile phone 76 times. DIONNE DALTON: The phone just kept ringing and ringing and ringing and ringing. And it just didn't even stop for a minute. It was just like that the whole way down until I turned it off. And at that stage, it was at 76 calls. LIZ JACKSON: Were you afraid? DIONNE DALTON: I was terrified, petrified. I didn't know what he was thinking, what he was going to do. JULIE WHERRITT: Dionne handed me Patrick and was getting the bags out and Jayson pulled up out the front. DIONNE DALTON: I was so scared because I thought he would really hit Mum. JULIE WHERRITT: I had Patrick in my arms and I just turned to say, "I've got your son here, Jayson. You don't want to hurt him." And he took a swipe at me. But he only hit my hand. DIONNE DALTON: He just wanted to get me outside and Mum wouldn't let me go outside with him on my own until the police came. But by the time the police turned up, he had gone. LIZ JACKSON: Six days later, Dionne and her mother went to see a local solicitor. Dionne wanted to add names to the domestic violence order to keep Jayson away from her family and children. Ros Byrne took her instructions. ROS BYRNE, LAWYER FOR DIONNE DALTON: She did talk about the physical violence. But to me, my recollection is it was more... The concern was the emotional abuse she was being subjected to. LIZ JACKSON: Did you get the impression she was afraid of him? ROS BYRNE: Oh, she was terrified of him. Absolutely terrified, yeah. Terrified of him and what he would do. LIZ JACKSON: Dionne had it fixed in her mind that Jayson had guns, so the police went round to Kelvin Grove to check. They searched the house thoroughly, but none were found. Jayson was, however, taken away to spend the night in police custody for having breached his domestic violence order for the second time with his threatening behaviour at Dionne's mother's house. His family were now worried about Jayson's mental state. MOLLIE DALTON, JAYSON DALTON'S COUSIN: He was very, very distressed. He was also angry. Uh, he spent a lot of time crying and saying over and over again, "I just want my wife and family back." DIONNE DALTON: I was saying to him, "No, I'm not coming back ever. This is it. It's over, Jayson. We can't get back together." And he'd say, "Oh, don't say that. Just say six months. Give me six months to prove myself. Don't say we'll never get back together." LIZ JACKSON: Jayson phoned his father in Western Australia. He was in a state. Michael Dalton is a Vietnam veteran, so he rang the Veterans Counselling Service in Brisbane. VAL DALTON, JAYSON DALTON'S COUSIN: He wanted Jayson to be put in hospital. He felt that Jayson... Jayson had evidently spoken to him on the phone and he was very upset, over the top. And he wanted Jayson to be put in hospital. LIZ JACKSON: It appears that Jayson was counselled at least three times by the Veterans Counselling Service over the following weeks. At the same time, he enrolled himself in a 12-week program for separated men. Their website reads, "Separated men needn't lose their shirt, their kids or their life." Owen Pershouse is a founder of the program. OWEN PERSHOUSE, FOUNDER, MENDS: I heard reports that he was extremely sleep-deprived, he wasn't sleeping very well, that he'd been depressed and maybe was given medication but he didn't take it - which is quite common in the clients that we deal with - but in any event, was, um...was not coping. LIZ JACKSON: When the police released Jayson from overnight custody, midday on Thursday, 11 March, Dionne and her mother jumped in the car with the children and drove away from Julie's house. JULIE WHERRITT, DIONNE DALTON'S MOTHER: The police talked to us and they said, "He's going to be so angry when he comes out of...when we let him out, that we think you need to get to a safe house. We can find you one, or if you know somewhere to go, go there." DIONNE DALTON: I knew that he'd be absolutely aggro at the fact that he'd been in jail that night and that he'd be after some type of revenge for what had happened. LIZ JACKSON: As the family headed out for a cousin's place in the country, a five-hour drive away, Dionne's own mental state collapsed. Over the next 24 hours, she became manic and delusional. She ended up in the Acute Mental Health Unit at Toowoomba Hospital with what appears to have been postnatal psychosis. Julie and Dionne's sister Tammy took over care of the children. Jayson found out what was happening. VAL DALTON, JAYSON DALTON'S COUSIN: When I spoke to him about it, he said, "The children will either be with their mother or with me." And I said, "It's very difficult for a father to look after two little children, two little babies." And, um, he said, "They will either be with their mother or with me. No-one else. Julie doesn't have the right to them." LIZ JACKSON: Dionne's solicitor received a fax late on Tuesday, 16 March, telling her that the following morning, Jayson would be applying to the Family Court to have Jessie and Patrick reside with him. ROS BYRNE, LAWYER FOR DIONNE DALTON: I was mystified to see it, because there hadn't been any suggestion up till that time that there was any issue about the children. And the children were being cared for by Dionne's mother. LIZ JACKSON: The court case the next morning lasted just 14 minutes. There was only one brief reference to Jayson's domestic violence when Dionne's solicitor informed the judge, "there are domestic violence issues". Just those five words, no further information. Jayson had made arrangements to care for the children and the judge took the view that while Dionne was unwell, "the next most logical person to care for the children...is the children's father." He ordered that the children be delivered forthwith to Jayson. ROS BYRNE: The big problem with this case was that Dionne wasn't available, wasn't able to swear an affidavit because she was in hospital. So I was going on the information that I had been given by her over the phone and in a conference which lasted about half an hour. LIZ JACKSON: Dionne's solicitor broke the news to Julie. ROS BYRNE: Oh, she was horrified. Absolutely horrified. She said, "The children should be with me. I'm able to care for them. I'm not working." JULIE WHERRITT, DIONNE DALTON'S MOTHER: I said, "What would you do, Ros, if these were your grandchildren?" And she said, "Oh, please don't ask me that question," and I said, "Well, I'm going to run." ROS BYRNE: I said to her, "As a lawyer, I can tell you what I would do in your situation, but as an individual, I don't know what I'd do. As a lawyer, my advice to you is to bring the children back, because you don't want the police to become involved." LIZ JACKSON: Julie and Dionne's sister Tammy headed back to Brisbane, taking the children with them. They stopped and called the Federal Police to confirm the advice they had from Dionne's solicitor. They were told if they could make it back before the court closed, Julie could try herself to get the judge to reconsider his order. So now they drove as fast as they dared. They made it to the Family Court with just minutes to spare. JULIE WHERRITT: I was so tired and I was so drained, and they said, "No, it's you going for the custody, you have to talk." This was just so far out of my comfort zone to even be in there. LIZ JACKSON: Julie spilled out to the judge everything Dionne had been saying to her about Jayson's anger and violence, but she had nothing on hand to prove if it was true, and there was no evidence of violence to the children. JULIE WHERRITT: He said, "You've told me that he's been violent to his wife, but you haven't really told me... He's been a hard father, OK, but he hasn't really been violent to his children." And he said, "They stay with him until she is well." ROS BYRNE: I remember her sister saying that the children would be dead in a couple of days. That's what her sister said. I remember her shouting that out. EVELYN DALTON, JAYSON DALTON'S STEPMOTHER: I sat down and wrote a fax and faxed it off to...one to the Coolangatta police, one to 'Today Tonight', one to '60 Minutes' and one to 'A Current Affair'. And in that I wrote that Jayson had just received custody of his two young children and he was on his second or possibly third domestic violence order, and I couldn't understand really why. And I felt that if something wasn't done about this, that it would just only end up in tragedy. LIZ JACKSON: Jayson looked after Jessie and Patrick for the next five weeks, until the case could be argued again, when Dionne was better. His father, Michael Dalton, had come over from WA and helped him with the job. No-one now denies that they cared for the children well. Jayson took time off work and spent lots of money on new clothes, toys and lawyers - borrowing heavily to meet the costs. But he was coming apart at the seams. VAL DALTON, JAYSON DALTON'S COUSIN: He was crying all the time, 16 hours a day. He wasn't sleeping at night. MOLLIE DALTON, JAYSON DALTON'S COUSIN: He kept a very meticulous diary. He noted down everything that happened and the order that it happened, and what people had said and if necessary, where they were standing when they said it. VAL DALTON: Everything that went on, like people's expressions, the way you might hold the baby and feed the baby, or play with Jessie, and all phone calls - he started to tape his phone calls. LIZ JACKSON: Dionne came out of hospital after 10 days, and Jayson allowed her access to Jessie and Patrick for the last two weekends before the case was listed back in the Family Court. When he handed over the children at Southport police station, Jayson had a tape recorder hidden under his shirt so he had proof if allegations or threats were made. Val Dalton went with him. VAL DALTON: He had his little tape recorder taped, and he was absolutely driven by whether Dionne had looked at him, whether, um, she... Like, handing the baby to her himself, did she look at him? And he would play that tape recorder over 20 times on the way back, and I believe he played it again 20 times in the afternoon. LIZ JACKSON: Jayson started documenting mosquito bites that Jessie got on access visits as evidence that he was the better parent. Dionne wanted the children back, but Jayson was hoping the court would order a shared care arrangement for the children to spend four days with him, then three days with Dionne, backwards and forwards every week. His family tried to tell him that shared care wasn't a realistic outcome. MOLLIE DALTON: Because it was, um... He had no communication with Dionne. He had several DV orders against him with some additions to them, and he wasn't allowed to approach her house, and he also didn't really have a lot on his side of the case, because he'd been, as you know, accused of domestic violence, and there was truth in that. So he hoped against hope, I think. LIZ JACKSON: Jayson was now missing sessions of his separated men's group, which met at this church hall on a Thursday evening. Daryl Sturgess was the group's facilitator. When Jayson did turn up, he kept himself to himself. Did you feel he was guarded? DARYL STURGESS, FACILITATOR, MENDS: Oh, yes, most certainly. Yes. LIZ JACKSON: Only a few of the men who were in Jayson's group could be filmed, as most have cases coming up in the Family Court. MAN: I knew his court case was coming up. He had high hopes for a good outcome because he had looked after the children for so much. I tried to counsel him that he might only get what everyone else gets or worse. LIZ JACKSON: Daryl Sturgess says he didn't know that Jayson had applied for shared care of the children. DARYL STURGESS: If that is what he did, it would fit my formula of wishful thinking. LIZ JACKSON: The court case was brought forward to the Friday before the Anzac Day weekend. Jayson's father had already booked to fly to Mount Isa for a veterans' reunion. Jayson went to court with just his lawyers. Dionne had her family and friends. DIONNE DALTON: I remember sitting in court, praying to God to just let me have the kids, let me have the kids. And I was... My solicitor had said, "Dionne, you'll be fine. You just sit there and smile at the judge." LIZ JACKSON: The judge adjourned the court to read Jayson's affidavit. Dionne's doctor had said she was well enough now to care for the children, but Jayson had other concerns as well. The judge described them as follows. "She's a poor mother. She doesn't look after the kids. They're filthy. They come back with dirty nappies. She doesn't care for them." Both sides, of course, made allegations about the other parent, many of which were disputed. It was hard for the judge to assess who was telling the truth, but he had this problem with Jayson's case. JULIE WHERRITT: He said, "But if you're so concerned about what a terrible mother she is, why do you want her to have them three days a week?" He said, "That doesn't follow." LIZ JACKSON: At midday on Friday, 23 April, the judge made an interim order that Jessie and Patrick would reside with Dionne and spend one weekend every fortnight with Jayson. DIONNE DALTON: We were just all so excited about the fact that we were going to get the kids back that weekend. When I did get custody, Jayson stormed out of the court and I didn't think much more about it. LIZ JACKSON: You weren't at all worried about the impact that might have on Jayson? EVELYN DALTON: No, I didn't think of that, actually. LIZ JACKSON: Anyone talk to him afterwards? OWEN PERSHOUSE, FOUNDER, MENDS: I spoke to him on Friday afternoon. LIZ JACKSON: What did he say? OWEN PERSHOUSE: I asked him how he was going, and he said, um...he said he was fine. He said that he'd lost the case - that's the way he framed it. He made some mention that his character was brought into some disrepute in some way in the court. I'm not sure of the details of that, but I mean, that's the nature of the court. LIZ JACKSON: Jayson rang his father in Mount Isa. He was reportedly extremely emotional and angry, swearing and nearly incoherent. The judge didn't understand, and Dionne was trying to destroy him. His father later told police, "He just went berserk." OWEN PERSHOUSE: Let's be real. During separation, normal people become abnormal, and people that are a little big dodgy to start with can become quite dangerous. LIZ JACKSON: Val and Mollie were at Kelvin Grove looking after the children when Jayson returned from the court case. VAL DALTON, JAYSON DALTON'S COUSIN: He was sad and flat, but he was distraught about it, and then he picked up Patrick out of my sister's arms and he said, "He's my son," he said. "He's my son. I have the right to see him grow up. If they go to their mother, I won't even see them on their birthdays and Christmas." And he said, "But they're my children." MOLLIE DALTON, JAYSON DALTON'S COUSIN: "Somebody else might be there who doesn't even know them and that they're not related to, and I'll have no say in their lives and I'll just be working." So he was very unhappy about that aspect of it, and we tried to point out to him that it wouldn't always be as bad as that, but really, I mean, we had to agree with him - it wasn't looking good at all from his point of view. This was his last failure, I guess. Um...he'd lost the business, or at least it was going down the drain, he'd lost his wife, and then with the verdict in the Family Court, he'd lost custody of the children for most of the time. LIZ JACKSON: Val and Mollie agreed that one of them would go with Jayson on Sunday afternoon when he was due to hand the children over to Dionne. And then they left him with Jessie and Patrick. That night, Friday night, he took this footage. JAYSON DALTON (ON HOME VIDEO FOOTAGE): We all love each other, don't we? We had a bad news today about the courts. Yes, you're gonna miss Daddy, aren't you? LIZ JACKSON: The following day, Saturday, Jayson was alone with the children. These are the last photos he took on that day. (JESSIE AND PATRICK SMILE AT CAMERA) On Sunday morning, Anzac Day, Val and Mollie tried to ring Jayson. There was no reply. Dionne and Julie went to the dawn service. DIONNE DALTON: We were just so elated about the fact that, you know, we were going to have the kids back, and then, um...anyhow, we were making preparations all day, vacuuming their bedroom and getting everything straightened out, and putting cots in, and change tables, and all sorts of things. LIZ JACKSON: On Sunday afternoon, Jayson failed to show at 4:00pm at Southport police station - the time the judge had ordered for the handover to occur. JULIE WHERRITT: It got to 4:05, and Dionne said, "Come on, we're going into the police station." I said, "No, no, don't panic yet. Give him a chance, give him a chance." LIZ JACKSON: By 5:30 in Brisbane, it was getting dark. Val and Mollie went around to Kelvin Grove. They still hadn't been able to raise a reply from Jayson, nor could his father, his friends, or the police. The lights were off, but Jayson's car was in the drive. They rang and told Jayson's father, who rang the police. MOLLIE DALTON: And they went into the house, and they found them all there, all on the big bed in the main bedroom, and they were all deceased. LIZ JACKSON: Dionne was still driving up from the Gold Coast. No-one wanted to break the news on a mobile phone. DIONNE DALTON: I was praying to God all the way up that they would be OK, and anyhow, as soon as we got to Kelvin Grove Road and we came down the crest of Kelvin Grove Road, I saw the, um...all the lights and everything, and I just knew in the back of my mind that the kids were gone. Anyhow, we pulled up on the other side of the road, and I ran across Kelvin Grove Road to where the police were, and I just collapsed in a heap. And, um, I said to them... I said, "Are they alive?" And they said, "No, they're both dead, and so is Jayson." And...and it just broke me up how he, um... I just couldn't believe that he'd actually done that to me, and taken the kids. He knew that the only thing I cared about were my children. My beautiful children who I'd had were just gone out of my life in that one single moment, that one simple, selfish act. LIZ JACKSON: Jayson wrote a suicide email, which was sent at 8:30 that morning. He would have the last word. Subject - "Goodbye Dionne." It reveals little more than here was a man who could not see, even in this last terrible act, that what he was doing was wrong. "I never wished we could have gone through this way. I was being fair the whole way through. I believe the children would have been truly affected, and you know Jessie adores me. I love you more than I can say, and had forgiven you up until Friday. Lots of love from us all, Jayson, Jessie and Patrick." MOLLIE DALTON: Well, we had the wake here after Jayson's funeral and cremation ceremony, and I was amazed at the number of men who were saying, you know, "This all goes back to fathers not having equal rights as far as custody of the children is concerned." They'd say, um, "You know, the fathers should have justice." LIZ JACKSON: Cases like Jayson Dalton's are used by aggrieved fathers groups to argue that the Family Court is biased. This is the agenda that greets the new Chief Justice of the Family Court, who began in the job just six weeks ago. She can't comment on particular cases, but rejects the general argument. DIANA BRYANT, CHIEF JUSTICE, FAMILY COURT: Everyone who hasn't got what they achieve on the one side is going to be critical of that decision. And that ignores the fact that there was another side that was being put to the court. And you talk about people at the wake, and all the men said this. If you had an objective observer who asked all of the women in those cases what they thought - whether they thought the decision was fair or not - I'm sure that you would get a different response. DIONNE DALTON: I don't even blame Jayson. I mean, he was a very sick man, and if I start laying blame on people, it's not going to achieve anything. It's not going to bring the kids back. Please note: This transcript is produced by an independent transcription service. The ABC does not warrant the accuracy of the transcript. Home | Archive | Opinion | Forums | Web Specials | ŗŚĮĻĒé±ØÕ¾ Us | Subscribe ©2004 ABC | Privacy Policy  A paper detailing some of the problems of securing human rights to safety in the family law system is attached in Appendix 1.  The Four Corners programme reported on this double murder-suicide, the transcript of which can be found as Appendix 4.  Rhonda Bartley was shot dead by her ex-husband at contact handover in South Australia, but he was acquitted of all charges by a jury who agreed with the defence argument that she had provoked him.  It would be unethical for a worker to refer a client to a service which was likely to harm the client. The Relationship Centre philosophy as presented in the Discussion Paper is misogynist and dangerous to women.  Experiencing violence or abuse is often psychologically traumatising – where ‘trauma’ is defined as experiencing overwhelming exposure to possibly life-threatening harm – eg. ‘Shell-shocked’ soldiers. Exposure to traumatising violence can have long-term impacts on adults, and shape a developing child’s brain. The risks of long-term effects rise exponentially with frequency, severity and duration of exposure (Perry 2001).  Note that this research relied on children already routinely being required by the courts to live with violent fathers. It would not have received ethical approval as a research project if it relied on the researcher deliberately exposing the children to abusing men.  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