Entrapment and Contradictory Approaches in the Family Court

The Family Court was conceived as a judicial sanctuary intended to arbiter the resolution of domestic disputes.

However, in the context of cases of involving family violence, in my experience, it frequently morphs into a domain of entrapment, where the very people it seeks to protect are instead ensnared by a web of contradictory edicts and expectations.

At the heart of this conundrum lies the intersection of gendered roles, societal norms, and judicial processes that too often collectively fail to shield the most vulnerable.

Women, primarily seen as nurturers and protectors, confront a judicial paradox: the Family Court’s expectations that they facilitate contact between their children and a violent ex partner, against their pragmatic need to shield themselves and their children from such abuse and turmoil.

The Intersection of Contradictory Gendered Expectations

When mothers enter the Family Court, they carry not only the weight of their own and their children’s futures but also the burden of societal expectations.

They are expected to be infallible guardians, yet are often scrutinised for the very instincts that drive them to seek the court’s protection.

If they flee from an abusive partner to protect their children, they risk being labeled as obstructive and punitive.

Conversely, if they stay and harm befalls their children, they are branded as neglectful.

This dichotomy leaves mothers in a perpetual state of defence, navigating a labyrinthine system that often fails to appropriately account for the complexities of domestic violence and its insidious nature.

The consequences of this systemic dissonance are stark.

In their attempts to conform to the court’s expectations, mothers may inadvertently place their children in harm’s way, complying with visitation orders that expose them to the very abuse from which they are trying to shield them.

This compliance can then often also be misconstrued as complicity, further entangling mothers in a judicial snare that punishes them for actions taken, or not taken, under duress.

Then in stark contrast, the Family Court’s intervention can also result in the unwarranted removal of children from their mothers — a traumatic outcome that can sever the primary bond and exacerbate the emotional turmoil experienced by the family.

This drastic and too frequently used measure, seems a myopic solution — a judicial reflex that responds to the letter of the law (or facilitates the prejudices of the judge) without heeding the spirit of protection it is meant to embody.

The expectation for mothers to navigate these treacherous waters, armed with little more than their maternal instinct and the hope of judicial empathy, is not only unreasonable but indicative of a system in dire need of reform.

The ‘Three Planet Model’

Understanding the ‘Three Planet Model’ used by some researchers to explain these issues, elucidates the stark fragmentation of the systems designed to deal with domestic violence.

These “planets” are: the criminal justice planet, the child protection planet, and the domestic violence planet.

Each of these “planets” orbits separately, ostensibly serving the same societal body but frequently failing to align in practice or principle.

This disjointed modality, with each entity operating in its silo, often creates scenarios where the left hand is unaware of the right’s actions, leading to contradictory outcomes that often compromise the safety and well-being of mothers and their children.

The “criminal justice planet”, for example, focused on the legalities of crime and punishment, frequently overlooks the nuanced realities of domestic abuse.

The emphasis on evidence and procedure, inadvertently minimising the experiences of victims, reducing their trauma to a checklist of prosecutable offences.

On the “child protection planet”, the priority is the welfare of the child, yet this is often assessed through a myopic lens that discounts the symbiotic relationship between the well-being of the mother and that of her children.

Meanwhile, “the domestic violence planet” grapples with the cycle of abuse and its impact on families, but its efforts are often stymied by the lack of coherence and cooperation with the other two systems.

This trifurcated approach leads to a bewildering maze of policies and practices that mothers must navigate, often with little guidance or support.

The disparate strategies and objectives of these planets can result in a mother’s protective actions being misinterpreted, leading to punitive measures that do not reflect the realities of her situation.

For example, efforts to protect her children from an abusive partner might be seen as obstructionist by child protection services, or even as alienating by the Family Court, which could be influenced by the abuser’s manipulation of the criminal justice system.

Or child protection services may determine that a mother should be facilitating no contact with an abusive father, while the family court dictates otherwise.

The consequence of this disjointed approach is a legal and social environment where mothers and their children are ping-ponged between systems — their needs and voices lost in the void between planets.

Mothers are often confronted with an impossible choice: to protect their children from an abusive environment or to adhere to court mandates that may inadvertently perpetuate their children’s exposure to abuse.

Their protective instincts may be mischaracterised as overreactions, or even malicious attempts to sever the bond between the child and the father.

This is a grave accusation in the eyes of the Family Court, where the prevailing ethos often emphasises maintaining a child’s access to both parents, sometimes at the expense of the child’s own safety.

On the other hand, when mothers comply with court orders that grant the alleged abuser access to the children, they face the risk of being deemed negligent.

Should any harm befall the child during such access, the mother’s decision to obey the court is cast in a harsh light; she is portrayed as having failed to protect her children from a known danger.

In this way, the mother’s compliance with the court’s directives becomes a weapon against her, leaving her vulnerable to criticism regardless of her actions.

This double bind is not merely a legal predicament but a psychological one as well — it places mothers in a state of constant second-guessing, eroding their confidence in their judgment and their legal standing.

The Family Court, in its failure to recognise and address this double bind, inadvertently contributes to the cycle of abuse.

To break free from this pattern, the court must recognise the double bind as a symptom of a larger systemic issue and work towards a nuanced understanding of domestic violence — one that acknowledges the complexity of a mother’s role as both protector and litigant.

Recognising Post-Separation Dynamics and Continued Abuse

Contrary to what I know many family court judges and legal professionals appear to believe, the cessation of a relationship does not invariably end the cycle of domestic abuse; rather, the dynamics often persist, morphing into new forms of manipulation and control.

Post-separation, the abusive partner may continue to exert influence through legal channels, financial pressures, or by leveraging child contact arrangements.

The Family Court, operating on the principle that both parents should be involved in a child’s life, may inadvertently facilitate this continued abuse.

In the post-separation landscape, mothers frequently face the challenge of preserving the delicate fabric of their children’s well-being while navigating the coercive control that still emanates from their abusers.

The court-mandated interactions, such as custody exchanges, become fraught battlegrounds.

These interactions not only allow the abuser to maintain a presence in the family’s life but also provide them with opportunities to continue their abusive behavior.

This includes direct aggression or subtle forms of manipulation that serve to undermine the mother’s authority and relationship with her children.

The Family Court’s failure to recognise the subtleties of ongoing abuse in post-separation scenarios can result in decisions that do not align with the best interests of the child or the safety of the mother.

By mandating continued interaction between the abuser and the family, the court may unintentionally sanction the continuation of abuse.

The abuser’s manipulation of the court system can also further damage the mother’s credibility and autonomy, leaving her disempowered and struggling to protect her children.

The entanglement of family violence within the Family Court calls for a seismic shift in perspective and policy — a reform that acknowledges the labyrinthine dynamics of domestic abuse.

Recognition of this complexity is the first step toward substantive change.

It involves an understanding that abuse is not a static phenomenon but rather a pervasive one that can adapt to the contours of the legal system, manipulating its outcomes.

The current model, which often fails to protect those it intends to, must be reformed to account for the multifaceted nature of abuse and the nuanced ways in which it affects families.

The Family Court needs to move beyond a binary view of domestic violence that simply categorises people as victims or perpetrators.

It must consider the ongoing psychological impact, the socioeconomic factors that entrench abusive situations, and the cultural contexts that shape an individual’s experience of abuse and their interactions with the legal system.

Reform must include training for all family court professionals on the dynamics of domestic abuse, focusing on the latest research and best practices for supporting survivors and their children.

Legal professionals should be equipped to identify signs of coercive control and understand the long-term strategies abusers use to maintain influence over their victims post-separation.

The court system itself should also be restructured to facilitate better communication and collaboration between criminal, civil, and family law.

This holistic approach would ensure that all facets of a survivor’s experience are considered in court proceedings and that decisions are made with a full understanding of the family’s situation.

Institutional reform also requires the establishment of clear protocols for cases involving abuse, prioritising the safety of children and the non-abusive parent.

These protocols should be informed by an empathetic approach that validates survivors’ experiences and empowers them within the legal process.

Ultimately, reform is about creating a Family Court that is not just a trier of facts, but a haven of understanding and support — a place where the complex dynamics of domestic abuse are recognised, and where survivors can find not just justice, but also the foundation for a safer, more hopeful future.