Eleanor* tried to breathe normally. In. Out. In. Out. It was the second time in a month she had walked up the stone staircase and grand arches at the entrance of the Bendigo Magistrates' Court. The first time Eleanor had come to apply for an intervention order. Her violent partner of more than a decade was furious that she had left, and continued to make her feel unsafe. His anger was fickle, corrosive. In their years together he had raped Eleanor and choked her, she said. His last words when she left? "I'm going to take you for everything you've got."
And today Eleanor was back in the same courtroom for a family law hearing because he had applied for full-time custody of their two children.
So Eleanor felt breathless, sick to her stomach when she discovered he would be representing himself.
Her alleged rapist would cross-examine her, sit only metres away from her. "I had flashbacks of him kicking me and of the rape. Of him screaming at me that he could not stand the smell of my c---. How could this happen?"
Did you know that in Australia's family courts, those accused of family violence or sexual assault are allowed to cross examine their alleged victims? Eleanor's experience is not unique.
Women's Legal Services Australia lawyer Emma Smallwood says it happens all the time. Judges can intervene when offensive questions are asked, or allow victims to give evidence via video. But there is no automatic protection to prevent the practice, says Smallwood.
It might also surprise you to discover that even if an alleged family violence victim has been issued with an intervention order in a state-based Magistrates' Court, a judge in the family courts can make parenting orders that go against it.
Chief Justice Diana Bryant. Photo: Justin McManus
Legal reformers say these issues are symptomatic of wider problems within Australia's family law system. The Family Court and Federal Circuit Court are used to resolve complex legal family disputes relating to parenting and finances. But these courts are swamped and matters move at glacial pace; the average wait for trial has ballooned to two years. So legal costs can be astronomically high. And despite lobbying, federal funds to hire more judges are not forthcoming.
The matters coming before judges are more complex than ever: a 2014 survey found about a third of cases involved at least three risk factors like family violence, serious mental illness and drug or alcohol dependency. More than 80 per cent of those surveyed had experienced family violence. But not all professionals who work in the family law system are trained in domestic violence or trauma.
Family violence campaigner Rosie Batty has launched a high-profile push with Women's Legal Services Australia to reform the family courts and make them a safer place for those affected by family violence.
But Batty and lawyers are not the only groups with the family law system in their sights.
Pauline Hanson wants the Family Court to be abolished. Photo: Facebook
Pauline Hanson's One Nation party went to the election with an explosive policy of abolishing the Family Court and replacing it with a tribunal of "mainstream Australians".
Commentators say Hanson has tapped decades-old grievances among a cohort of disenchanted men, particularly those in regional areas faced with growing unemployment. After meeting Prime Minister Malcolm Turnbull this week, Hanson described the family law courts as "huge on my agenda".
Newly-elected "anti-paedophile" Senator Derryn Hinch wants a senate inquiry into the family courts and child welfare organisations. With so many voices calling for change it is clear that somewhere, somehow, something has to give.
Rosie Batty with the Minister for Women Michaelia Cash (right), Shadow Minister for Women Clare Moore and Greens leader Richard Di Natale with the petition. Photo: Justin McManus
On a bleak morning in June this year, southerly winds sent squalls of rain down William Street, the heart of Melbourne's court precinct. In a function room in a hotel near the courts, Rosie Batty stood alongside Australia's Minister for Women, Michaelia Cash, and Greens leader, Senator Richard Di Natale, on what would have been the 14th birthday of her murdered son, Luke.
Wiping tears from her cheeks, Batty launched a five-point plan, and 20,000-strong petition, with Women's Legal Services Australia, to reform the family courts. "Today is a hard day for me ... but I decided to use today to talk about the No.1 issue raised with me wherever I go: problems with the family law system that put our children in danger," she said.
Also present was Chief Justice Bryant. "Whilst it may seem a little unusual for the Chief Justice to be here given the petition ... we are in agreement about the need for improved services," she told the gathering. Bryant spoke about the need for further funding to remove the pressure on the courts.
The reforms include new laws to stop victims being cross-examined by abusers, putting specialist family violence services into family courts and more legal funding for disadvantaged, high-risk families. The current language of "equal shared time" and "equal shared parental responsibility" would be removed from the legislation, in preference of a focus on safety and risk to children.
Batty's reforms are at odds with controversial policies Hanson took to the election. In the world of One Nation, joint custody is the option of choice and "strong, functional family units" the guiding principle. The Family Court should be abolished and the tribunal that replaces it will consist of people from "mainstream" Australia. Tribunal members will be drawn from local community, health and social interest groups. Australia's "punitive" child maintenance regime should be overhauled, with recognition a child's standard of living following divorce "cannot be maintained at pre-divorce levels".
Critics say One Nation's policies are laughable, a rehash of the language and agenda of men's rights groups. Supporters say they have finally given a voice to disenfranchised men. Legal experts say abolishing the family courts would be unconstitutional. The Age contacted One Nation for comment, with no response.
Recent matters in the Family Court shows the dysfunctional nature of relationships before judges. Untangling them requires great skill and experience. A vexatious litigant asks for permission to write a 200-word letter to his child every six weeks, and send birthday and Christmas cards. A grandmother wants to temporarily take two children from a mother with severe mental illness who attempted suicide while the children were in her care. And a mother from a fundamentalist church wants to use a "rod or tool" to physically discipline her children. Her ex-husband is appalled.
"The Family Law arena is complex and parties are often characterised by intense hurt, massive disappointment and anger. The competing narratives of warring parents are often difficult to decipher, and children can become weapons in their arguments," say the authors of Abbey's Project, a report on the family law system for child protection advocates Bravehearts.
In this setting, few leave unscathed. But research shows women and their children who have experienced family violence or other trauma fare badly in this adversarial system. About 60 per cent of women suffer some form of financial hardship within 12 months of their divorce. And victims of domestic violence are three times more likely to get a minority share in the assets of the relationship. Advocates say familiarity with the dynamics of family violence remain patchy across the system.
Leonard John Warwick is awaiting trial in relation to bombings at the Family Court in the 1980s. Photo: NSW Police
Since it was established in the mid '70s, the Family Court has been a contested arena. Women's liberation groups welcomed legislation that enabled easier divorce, but men's rights groups lamented the demise of the nuclear family. In the '80s Sydney was rocked by a series of shootings and bombings at the Family Court and homes of judges. Pearl Watson, the wife of Justice Ray Watson, was killed when their home was bombed. Leonard John Warwick is awaiting trial over the Family Court bombings and alleged murders.
The Family Law Act has been overhauled several times. Controversial changes in 2006 saw the Howard government introduce a "friendly parent" provision, meaning judges had to consider if each parent was encouraging a close relationship between their child and the other parent.
Parents, usually mothers, alleging family violence ran the risk of being seen as "vindictive" and trying to "alienate" their child from their other parent. One-fifth of women who accessed services post-2006 said they felt "forced" to agree or were "bullied" into agreeing to equal time parenting arrangements.
So former Attorney-General Nicola Roxon revamped the legislation in 2012, removing the "friendly parent" provision and expanding the definition of family violence. Analysis of these reforms found they were more likely to be of benefit to most children and had the support of the majority of professionals who worked in the system.
Family Law court bombing in Parramatta. Photo: NSW Police
But identification of family violence still needs improvement: about 30 per cent of parents said they were not asked about it. "Our research showed parents actually commonly don't disclose concerns about family violence and child abuse," says report author Dr Raw Kaspiew, from the Australian Institute of Family Studies. And more fathers than mothers were likely to be dissatisfied with their experience of the family courts (35 per cent compared with 20 per cent).
New Senator Derryn Hinch wants an inquiry into the family courts and child welfare.
Derryn Hinch hasn't read One Nation's family law policy but will look at Hanson's suggestions: "You can't rule out stuff."
He wants a senate inquiry into family courts and child welfare agencies, saying children are being put into foster care who shouldn't be. Reform campaigners are hopeful Hinch's focus on victims could make him a sympathetic ear.
"There are some very strident, almost militant, father's groups out there and you can't have that," says Hinch. But he says there are genuine fears from some fathers that their children's mother will automatically get custody "because it's out of their womb".
Hanson's family law suggestions are "terrible" says Helen Matthews, the principal lawyer at the Women's Legal Service Victoria, who has more than two decades experience in family law.
"We are trying to increase specialised training and the focus on family violence. Their platform is the opposite of that: ending professionalisation."
One area Matthews says deserves greater scrutiny is family consultants.
Consultants (sometimes called reporters) are usually social workers or psychologists. They assess families on behalf of the court and are either employed directly by the courts, contracted by the court or private consultants. Those employed by the court receive family violence training but it is not mandatory for those employed privately. Family reports can cost upwards of $5000. And the quality varies, Matthews says.
Claims that Family Court staff do not have sufficient family violence training irk Chief Justice Bryant. "It's a mythology that's not accurate", she says. She outlines the comprehensive, regular training for counter staff, registrars, family consultants and judges. But the court has limited quality control over family consultants taken on as contractors, who get some training, and none over those who work privately.
Bryant acknowledges that no one wants to be cross-examined by a former partner, but says because legal assistance cannot cover every trial, self-representation is a reality. For judges, the challenge is to allow a fair hearing and for all parties to provide evidence.
In recent months Bryant has gone public with a plea for more funding to help the courts triage serious allegations of family violence or abuse. She has identified ways in which a modest sum – about $6 million – could take the pressure off courts. This money would be spent on better risk assessment tools for family consultants and expanded domestic violence training.
Bryant also believes private arbitration could play a bigger role in Australia, as it does in Britain. Arbitration – which happens directly through lawyers – has set costs and set timelines, meaning parties have their issues resolved quickly.
Former Family Law Council head Professor Patrick Parkinson has recently established a legal practice called "The Alternative Courtroom", which provides arbitration for people who have assets to be divided, but who cannot afford the money and time involved in court litigation. Arbitration is currently used for property, but could extend to straightforward parenting matters, says Bryant.
"We have to remove the cases from the system that can be dealt with in another way."
By the time Eleanor's trial began in the Federal Circuit Court, she had reported allegations of rape and assault to the police, and her ex-partner was facing 11 criminal charges. When she had to appear for the criminal matters she was allowed to do so via video link. But when – in the same courtroom – she appeared for her family court matter, the judge agreed her ex-partner could cross-examine her.
Eleanor felt so anxious it was difficult to get answers out: "The judge kept saying, 'Look at me, don't look at him, look at me'. And I thought, why can't you ask me the bloody questions? Why do I have to be in this situation?" Orders were made that gave her ex-partner regular contact with their children (Eleanor had not asked for all contact to be suspended).
Eleanor's ex-partner pleaded guilty to recklessly causing injury and she decided not to pursue other charges to trial: "I'd had enough of court rooms." Six years after their family law matters were finalised, Eleanor lives with the challenge of parenting with a man once charged with her rape. The family law matters cost her $90,000, and the trauma and shame she endured have left her unable to work in her former profession. Eleanor does not support changes Hanson is proposing because she believes they will endanger victims further.
"In a way it's good that Pauline Hanson is raising these issues because the family law courts obviously need reforming," she says. "But when they look to the cost to the community, they will see that anything they do has to make it safe for victims of violence."
*Some names and details have been changed for identity reasons.
Miki Perkins is Social Affairs Reporter. You can follow her on Facebook.
