The mediation myth

Family Court counselors and mediators try to resolve matters out of court. But at whose expense? Here's Norm's story. (Norm is not his real name, but it's appropriate because his story is fairly normal).

I'd like to talk just a little bit about what has been and continues to be the worst period of my life.

I arrived home after a particularly bad day at the office, to find a note saying "I've gone, and I've taken Susan and Michael and I won't be back, P.S. Don't try and find us or the Police will deal with you".

I was horrified.

Notes such as this are given to wild, drunken, violent men. I know that if I was listening to someone telling me that story I would probably be thinking "yeah sure, she probably left for good reasons, you're probably a wild drunk or someone who belts his wife up". The bit that hurt the most was not that she had left. It was that my children were gone too, and there were a few assumptions and rules to this game that I didn't understand. The first thing was how come the Police would get involved? Was she suggesting that I would stalk her? Go after her to do her harm? Why would I? On the other hand, who gave her the right to forcibly remove the children? And why would the Police see this automatically as O.K.?

I was shattered, I was closer to being a criminal than ever before in my life. I knew that any attempt to see my children would be seen as an act of aggression towards my ex partner. I was being reconstructed into a potentially violent man, despite never having ever threatened either physically, verbally or otherwise, any member of my family.

I was emotionally abused, as were my children. They were now in a situation of "hiding" of mock dramatised fear, that positioned me as the monster. A bad Daddy.

Not realising the most crucial time of my life had just been determined, I went about filing for access and joint custody. It was then I learnt that whoever has the child at the point of departure has an almost watertight case for permanent custody. This meant that the "demonising" of me was a crucial factor in enabling the police to ensure the status quo remains as is until court, which is at least six months away. Courts are very reluctant to change any living arrangements after 6 months.

She was allowed to remove the children and that was not kidnapping; however if I took the children off her, that is kidnapping. I went to the police telling them she kidnapped my children; they laughed and told me to go away.

So I went about organising counseling and mediation sessions. We had a legal aid conference. I said that I would like 50% access and custody of our children, as I felt I was a good father and had a lot to offer.

"NO" replied the mother. "He's trying to control me and use the children to have power over my life".

My attempts to convince the allfemale panel that I was only interested in the best interests of my children fell on deaf ears, as I shrunk under the accusing glare of those around me.

"Legal aid will not fund both sides, we will choose, and I'm afraid that your partner has possession of the children, so we would have to take this into consideration".

"Why can't you compromise, I believe Mrs D is willing to allow access every second fortnight."

"How magnanimous" I thought. I was nearly in tears at this point.

"The court will not give you any more than this, and it would be a lengthy and expensive exercise" was my advice from the panel.

"We try and resolve these issues without having to go to court, please try and be reasonable".

At this point my ex had decided I couldn't be trusted and wanted written assurances that I would return the children after weekend visits, which it now seemed were in force. She said that I would probably try to keep the children, to abduct them! This suggestion was received with shock by the panel. What a heinous crime, they glared at me again - as if looking at some lowlife. The sub-text seemed to indicate that I was less than low if I were to try to interfere with the sacred mother-child bond. As it happened I had no such thoughts, as I still had a naive belief that justice for our children would prevail, whereby we could both continue to see our children.

Next came the mandatory conference required before a Family Court hearing. My first shock was hearing that my ex was in a women's refuge! I could hardly believe what I was hearing! She described how there were drunken mothers in there and she was worried about our children's safety. I expressed concern as to our children's welfare being in such a place and asked why she was there.

She said she feared for her safety. I suddenly realised what was going on. "Me, you're concerned about me?" I was unable to contain my disbelief. "When have I ever threatened or done anything even remotely violent to you or anyone?" I protested.

"Never" came the reply from her. I looked at the counselor with a puzzled look.

"Who, has threatened to punch me in the face three times?" I asked .

"I have" she replied.

"Well I think I should be the one in the refuge, don't you?", I asked.

At the end of the counseling session, the ex-partner said she had to leave. I was in a hurry and naturally assumed this signaled the end of the meeting.

"Please wait" said the counselor, "I'd like to talk with you".

I was quickly getting the idea of what was going on, and asked:

"She has told you I'm violent, and she wants protection, so she has requested to leave early while you detain me, that's what's happening isn't it?"

I discussed how this was painting me out to be a monster and I resented the props being supplied by every one, even after hearing her testimonial about my passivity and her self confessed violence.

The ex dropped the children off next Saturday and I was reconciling myself with the fact that maybe she did feel scared of me because of some brain damage, and that in line with feminist theory and the evils of patriarchal rule, that I may have presented as having some dominating or intimidating power that I was not aware of because I was the one who was socialised as the oppressor. I tried hard to accept she wasn't just being bloody minded and prepared to lie for a custody case. She invited herself in for coffee when she dropped the kids off, and was mumbling something about "bloody male magistrates". She then recounted the story of how she had gone to court last Wednesday and had been laughed out of court and reduced to tears. She had gone for an interim domestic violence order against me, and how they had asked her if I had ever done anything violent, to which she had answered, NO. They asked on what grounds she had sought the order, to which she replied that because I was a man I had the potential to become violent. That was not sufficient grounds for issuing an order, which had left her distraught.

"He was a male Judge, who doesn't understand the fear women live with, he should undergo gender training" she said.

We finished the coffee and I told her that the kids and I were off to the park and I would return the children to her on Sunday.

I guess I should have realised that more was to come.

The next day she arrived in the car with a friend of hers, and told me "she was sick of my shit cluttering up her house (she was now out of the women's shelter) and she was going to dump it in the gutter tomorrow". I stood there dumbfounded.

I begged her not to do so, as all of my university notes would be destroyed. I told her that I didn't have a car, but that I would have access to one tonight, so could I please pick my gear up tonight ?

"Fuck off" was the reply.

I set about getting a car and trailer from friends and went to my ex's house. Another chorus of "Fuck offs". I waited outside the house on the road after calling the police. The next thing two police cars slid around the corner at high speed.

The police had responded in a microsecond to my ex's calls for help, claiming I was kicking her door in. They were not responding to my request at all. I asked the police officer to come to the front door and see if there was one scuff mark. He did so, and saw there was none.

He told the ex to give me my property, and then lectured me and told me if I caused any more troubled they would lock me up! Excuse me? I wasn't the one threatening someone's property.

Next I went to 7 different law firms and saw 7 different solicitors, all of whom told me the best I would get would be every second fortnight. They also told me that because the ex doesn't agree with joint custody, that the court wouldn't issue it, as the court action in itself would make it seem unworkable to the ignorant judges. In other words any animosity the ex could muster worked in her favour. Next I had a Domestic Violence Order for allegedly trying to slam her hand in a gate, which never happened. This was "take two" at getting a Domestic Violence Order, I couldn't prove it didn't happen, so I got a DV order against me for 2 years.

I went to the compulsory Family Court counselors, who kept trying to get me to be happy with the every second weekend deal. I was reading the mediation pamphlets where they say that "we try to keep the matters out of court and that most matters get resolved out of court". With the constant badgering they give you to conform to two days a fortnight, it's no wonder. I challenge any Family Court counselor to give a genuine case where they have encouraged joint custody, (under any circumstance) but especially where the mother doesn't want it. Settlement out of court means intimidating the father until he agrees to what the mother wants.

So we went to the preliminary trial hearing with the deputy registrar, the counselor, her solicitor, and of course that timid and oh-so-frightened violent ex partner of mine.

"What is it you are seeking in court?" asked the deputy registrar.

"A residence/residence order where the children see both parents equally as often." I said

"What does the mother think of that?" asked the deputy registrar.

"No. I believe he is trying to control me and is obsessed and is on a power trip" was her reply.

The deputy registrar spoke "The Judge won't give you joint residence"

"Why not?" I inquired.

"Because he never has", was the reply. "Are you willing to come down from 7 days a fortnight?".

This was the last ditch effort of the family court to arrive at their amicable solution they try so hard to force on fathers, where the mother has sole custody and the father has minimal access.

I said "well you tell me what Judge X would give me then".

"Oh, we can't do that"

"Alright then, how about I ask for six days a fortnight?" I asked.

"Oh he wont give you that" said the deputy registrar.

"Well how about you tell me what he will give" I asked.

"Oh I can't speak for him"."OK what about 5 days a fortnight then?":

"Oh he won't give you that"

"What about 4 days a fortnight?"

"Well that's a lot better, isn't it"

"So he'll give me that?"

"Oh there's no guarantees, but it stands a better chance. If you went into court asking for equal residence, it would be thrown out, at least this way you might get an extra day out of it".

So there we were, all the pretence of mediation exposed for what it was. We must try every available method to get the father to agree to seeing his children suffer without him in their lives, just because the mother won't give equal residence/joint custody. I'm one of the 95% who didn't go to court. I'm one of the ones the Family Court says resolved their issues amicably outside the Family Court. I was bullied, intimidated, threatened and harassed.

This Judge has never ever issued joint custody or equal residence in his life, nor will he ever. My child has been irretrievably damaged by the ignorance of this man.

If I see my children for a few minutes even after my allotted time the police can arrest me. My children are allowed to live on the streets as homeless children and get a homeless children's payment; they can live in my gutter outside my house. If I let them in my house I can go to jail. The government will fund this abuse of my children, but if I am a father to my children they will arrest me.

The children have become property for my ex to own. I have a rental slip. I get to see them 4 days a fortnight.

The Family Court is still stealing generations of children today. And the Court has made sure I get to keep 9 cents in every dollar I earn. I am in absolute poverty. Imagine if they had asked the Aborigines to pay for their children after they had taken them.

The Family Court has refused to recognise me as the father of my children in all ways except monetary. In all other ways I am to be a visitor.

Here's the greatest irony though. The men who don't give a shit about their kids just walk away happily. The really devoted fathers who would die rather than not see their children are the rare 5% who end up in court. It is these men who are callously abused and belittled. These are the men who suicide at a rate 12 times that of women.

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