Listen: Family violence in separation

Jack Whelan:

Good morning friends, it’s Jack Whelan here, barrister, mediator family dispute resolution practitioner and co-founder of The Separation Guide. And today’s podcast is about the very, very dark side of the human condition and that is where people in families are experiencing violence. And we’re going to have a chat today with some experts in the field who will be able to assist those who are listening to navigate their way through this very, very difficult part of life.

Jack Whelan:

I’m joined by Heidi Rogers from Moving Mindsets. Heidi is a psychotherapist and counsellor with 18 years of experience in mental health counselling and trauma therapy. And Heidi has worked in the United States and in Australia and has extensive experience delivering therapeutic services to children and families. And Heidi works in private practice in Melbourne and tours with tailored talks, specializing in children’s issues and their solutions.

Jack Whelan:

I’m also joined by Tanya Hibberd. Tanya is a family law specialist from Aubrey Brown on the New South Wales Central Coast. Tanya is committed to helping people navigate one of life’s toughest challenges, she’s an active listener, she’s known for her empathetic and compassionate approach coupled with professional advice tailored for every person’s individual needs.

Jack Whelan:

And also barrister Andrew Wilson. Andrew is a barrister at State Chambers, he’s a mediator and a family dispute resolution practitioner. And Andrew is passionate about helping people resolve their differences without lengthy and expensive legal battles, he has 15 years of experience in law and a range of qualifications, none of which are more important than his experience in literally hundreds of mediations and negotiations. Andrew is also a mediator with the Separation Guide.

Jack Whelan:

Friends, good morning. Good morning. To you first, Heidi. Heidi, if someone is experiencing family violence, what sorts of behaviours are they being exposed to?

Heidi Rogers:

I think there’s always the common ones that people think of and know, whenever you hear the term family violence, I think most people first jump to thinking about hitting or punching or choking or things like that. And yep, that definitely is considered violent obviously, but beyond that, there are other things that I don’t think people realize, so I just wanted to run through what we sort of refer to as the nine types of violence and abuse that usually exist.

Heidi Rogers:

So we have physical violence, sexual violence, which a lot of times people don’t realize is a thing, because they’re like, oh, well, we’re married or it’s a committed relationship, but marital rape is definitely a thing and force is definitely a way that family violence can manifest in sexual abuse. Emotional violence, so saying things, being unkind, yelling, that sort of thing, making someone feel stupid and worthless, gaslighting would probably also go under that umbrella of emotional violence, which is basically where the person who’s abusive always has to be right, there’s no way you could ever win.

Heidi Rogers:

And the way I always describe it to clients is when you have that moment where you think you’re taking crazy pills and you’re like, wait, I thought this was their fault? How is this, what … Those kinds of moments when you feel like you’re just, how is this my fault? That is then usually how you know you’re being gaslit. Psychological violence, so that’s using threats or fear that’s probably one of the most common that I would hear and see, spiritual violence or religious violence.

Heidi Rogers:

So that might be using someone’s individual, an individual’s religious beliefs or spiritual beliefs to manipulate or dominate, like, oh, if you leave me God will punish you, that sort of thing. cultural violence, so that could be that parts of your culture or people within your cultural community will reject you if you leave me, that sort of thing. Visa abuse is also another common one in family violence, where if you leave me, I will take your visa, you’ll be sent back to where we’re from or you’re going to lose your job or that sort of threatening kind of stuff.

Heidi Rogers:

Verbal abuse, obviously. Financial abuse I think is another one that people don’t realize they’re actually being financially abused, I’ve had a lot of women, clients of mine who said things like, oh no, we have an allowance because the allowance keeps us to budget. And then when I dig a little deeper I find out that it’s actually if you spend more than your allowance you get in trouble or the allowance is only for specific things like groceries or things for the kids, but if you were to buy say mail Polish for yourself or something that’s not a necessity and maybe $4, you could get yourself into serious trouble.

Heidi Rogers:

And then neglect where basic needs aren’t looked after. And isolation is also another common one where people are kind of, that’s a form of abuse where people are removed from their family and friends, moved interstate, isolated and just not having any financial independence.

Jack Whelan:

That is a long list, Heidi. And just it’s so apparent, isn’t it? That many people do associate family violence with only being the physical act of violence. But plainly it can be expressed in different ways. And does that mean that family violence can be simultaneously experienced, but not recognized, because people don’t really understand what it is because they do tend to associate it purely with the physical?

Heidi Rogers:

Oh yeah, hundred per cent. I think that’s probably the biggest misconception that I have with families that I work with is they actually don’t realize what I’m going through is considered family violence, huh? They genuinely can’t fathom because he’s never hit me, she’s never beat me. They have these very, I guess just old school kind of beliefs that family violence only equates to physical punishment which it did back in the day before we did research and before we knew more about what was actually going on, but there’s a whole world out there. And I think the biggest one I would say that I see in the clinic is coercive control.

Heidi Rogers:

And coercive control is basically all that stuff that doesn’t leave a physical mark, things like checking your phone, saying, when you pick up the kids from school, you need to come home immediately. If you don’t, I call you 20 times, what happens? And this is often a question I will ask people is, what happens if you don’t answer the phone when they call. What happens, if you don’t follow, whatever the rules are, I want to check your phone, no, you can’t check my phone, then what happens?

Heidi Rogers:

And it’s often in a sort of exploring the consequence that I can help clients sort of start to see what’s actually going on, or are you allowed to see your family whenever you want? Phone usage, right? Emails, texts. Do you have a timeframe where you have to be home from errands or a school pickup? A lot of people will sort of believe that it has to do with oh no, but they love me, they care about me so much and I’m sitting there going, oh man, whew, you’re so deep in it when you are believing that, that they care about me, or your body, your clothing, do you decide what your body looks like or what you wear or does your partner decide that?

Heidi Rogers:

There’s yeah. So, coercive control I would say is probably the biggest thing that I think falls under family violence, but a lot of people don’t realize, oh, wow, that’s actually not love that is abusive and controlling and violent.

Jack Whelan:

And Heidi, how does someone who for the first time actually recognizes that they are say a victim of coercive control? How does someone tend to react to that when the lie actually goes on?

Heidi Rogers:

It’s a slow process and I often will say that to clients that I’m working with, that sometimes they’ll immediately jump to saying something like, but I can’t leave them. And I’m like, whoa, whoa, whoa, whoa, that’s not what I’m saying, that’s not what I’m saying. I have to kind of go really slow and kind of gently with people. And this is always my advice to … Whenever I have clients who have a friend that’s in a situation like this says, whoa, whoa, whoa, you can’t jump in there and just be like, get out of there, get out of there, because that often isn’t an option.

Heidi Rogers:

But I would say the first thing is to just plant the seed in your friend’s mind of, Hey, I don’t know if that’s really quite okay the way that they’re speaking to you or that you have all those rules around what you wear. And then if someone who’s listening to this is having a light bulb moment going, oh wow, I’m that person, I thought that they were just really caring. Is to just process in your mind either with a friend or call a support agency, there are a million amazing support agencies all over the world specifically in Victoria, Safe Steps is probably the one that I would recommend the most because they’re so equipped to help support people, but you can sort of just start unpacking it.

Heidi Rogers:

And when you start unpacking it with someone, a trusted person or support service, you’ll find that there’s often a lot of other areas that you didn’t realize that this was sort of impacting. So say with the, oh, I thought they were just checking my phone and what I was wearing because they love me, then you start to explore, oh, and there’s also the bank account stuff that I don’t really have a lot of control over or I’m not allowed to drive or whatever.

Then when you start digging deeper you can store sort of pace yourself, because the other thing is, if you are going to get out of a situation like this, there needs to be some planning, especially if we’re talking about safety and risk, right? You can’t just up and go, you can’t just grab the kids and walk out the door, it doesn’t work like that. And that’s often not what we would advise, it’s often not safe, it’s a process, right? We have to plan, where are we going? What are we bringing? Who’s going to know, do we tell the kid’s school? Right? And that’s what support agencies are awesome at, that’s what they do every day, all day long.

So you can know that if you call one of those support agencies like safe steps, that they literally do this all day long and they will have a total plan, we will get the police to come, the one the partner is out of the home, we will come in, we will get you to a safe motel on the other side of town, we will have food and nappies and groceries, there’s a whole bunch of stuff they can do.

But basically, the short answer of, if you’re listening to this and going, oh wow, this sounds like me, is to just explore it, I’m not saying run out the door tomorrow, but just get curious about that, wait for a second, how long has this been going on? Wait a second, what other ways are things kind of happening where I don’t feel like I have a lot of control and autonomy or choice? Who can I talk to that I trust that I know has my back, that maybe is not also in a similar situation, right? Because if you go to someone who’s in a similar situation, they might look at you and say, well, yeah, that’s just normal, that’s how relationships are.

Heidi Rogers:

So going to someone maybe outside of your circle a little bit is the place to start and just explore and just see what else you kind of find. And I guess too, the other thing is to know that you have worth and value and to know that your experience matters and so if what you’re experiencing right now doesn’t feel right, listen to that and trust that gut instinct that, mmh, I feel unsafe a lot or I feel anxious a lot or as soon as my partner gets home, I start to worry that it’s very volatile, I don’t know what’s going to happen next. I don’t know if I’m going to get in trouble for something, just notice that, just kind of collecting information in your mind, making a case in your mind of, this is not okay and often talking to someone helps validate that.

Jack Whelan:

For people who are experiencing this and the light bulb goes on and they do commence that process of exploration which is a great way to put it, presumably a lot of people, because they are conditioned to being in the environment that they are in. For a lot of people there’s a bit of skills-building that they’ll have to actually go through as well, is that correct? And if that is correct, what sort of skills do people need to try and build to help them in that process of exploration?

Heidi Rogers:

I think the first thing is you got to understand two parts, one is your brain is doing its job, which is to keep you safe. The brain is super-duper smart, right? If it has a whiff that you are in an environment that’s dangerous, because either the person is volatile or unpredictable or whatever. Your brain will play small, your brain will do everything it can to kind of go undetected and fly under the radar to not upset the other person, right? So there’s a lot of body awareness, self-awareness, checking in kind of with your body and your mind of what are the thoughts I’m having? What are the sensations I’m having in my body? And if I’m noticing that there’s a lot of play small, lay low, keep quiet, shut up, don’t advocate for yourself, that’s a great place to start.

Heidi Rogers:

So sometimes where we start in building our self-esteem is just looking at me and myself and my relationship to myself. So if I have a thought meeting that thought with compassion and empathy, meeting myself, so no one else it’s just all happening in my own mind, I start to listen to the thoughts and the feelings that I have or the sensations I notice in my body, my heart is beating really fast, I feel a pit in my tummy and I will start by going. Hmm, wow, I feel that, I wonder what that’s about, get curious, wonder that pit in my stomach is about, I wonder what my brain and my body are trying to alert me to that I’m feeling nervous about.

So body awareness is where we would sort of start and just sort of paying attention to what’s my body telling me, the other skill in that sort of same vein is what are the thoughts that I’m having? Am I often having thoughts about how stupid I am or how could I be such an idiot? Why did I do that? Or why did the kids do that? That was so dumb. If you have those kinds of thoughts, where we would start with skills is just being aware, just observing. And awareness is like, we have to start somewhere, right? With anything. If you want to change your fitness routine or you want to be able to run a marathon, you first have to start with the awareness of like, how much exercise am I doing? What am I eating? Right.

So where we start with the skill of kind of getting to the point where I feel like I can actually leave this relationship is I first have to start bringing it into my awareness, stop ignoring, stop avoiding, stop pushing it down, plugging your ears LA LA LA LA, pretending it’s not happening. And look at whoa, okay, I feel sick in my body a lot, my heart races a lot, that’s interesting every time they come home from work, I find a wave of kind of fear comes over my body. Or every time I go to say something, I notice I’m filtering and I’m being really, really mindful of every word that comes out of my mouth, but when I’m with my friends, I can be more free.

So the first step is just building your awareness skills and just noticing. And then the second part I would say is shame and understanding shame, because a huge part, the legacy of abuse and violence is shame. And we all have shame stories that come from experiences where we were treated unkindly on a spectrum of being treated unkindly to being abused or being treated with violence, right?

And the shame piece is really tricky because what shame does is shame says I’m bad, I’m unlovable, I’m unworthy, I’m not okay. And if you think about that, if you’re experiencing violence or abuse, you have a lot of shame going on, right? Because a lot of times the abusive person will make you think it’s your fault and you will think you deserve it. And all the stuff they say, no one is going to believe you and no one else would want you or you’re lucky you have me, I’m better than nothing, that kind of thing. What gets really tricky about that is, I then lose myself and I lose my self esteem, right? And I go down, down, down, down, down, and then I get to a point where I think, I don’t matter, just like they said, I have no worth, I have no value.

So the concept of change, the concept of me having a different life is unfathomable because my shame is so big, my shame is saying, you can’t Heidi, you’re incapable of change, you’re incapable, you’re unworthy, you’re unlovable. So that’s often why people stay stuck, that annoying line that people say, why didn’t they leave? That’s why the shame, the shame is what makes you stay small, the shame is what keeps you quiet. And then the fear, I mean, they’re going to kill me, I’m not going to have any money or I’m going to lose the lifestyle or what’s going to be like for my kids? You know what I mean?

So it’s like the shame is a huge piece, so as far as the skill, building your shame awareness, building your shame resilience, understanding that that’s what’s actually happening, in psych we call shame the master emotion, it’s the most powerful feeling that there is, because you can control people with shame, you can do horrific things to people. And the shame is what will keep them quiet, I mean, shame is powerful.

Jack Whelan:

Sure is, now, Heidi, you spoken about the impacts upon people who are experiencing violence, what about those who are witnessing it? In particular children who are perhaps in violent environments of family violence?

Heidi Rogers:

That obviously is a big problem, it’s a big issue, especially because kids can’t advocate for themselves, the younger they are, the harder it is to go tell your kindergarten teacher, this is what’s happening at home, it’s not really a fair expectation to expect kids to really be disclosing what’s going on. And again, the shame thing. And then also the fear, who knows what they’ve been told about, if you tell anyone about this, that sort of stuff. The shame thing would probably be the biggest thing of why they stay quiet, but the other part of it is the way that it manifests for kids is different, so a lot of times teachers in schools aren’t … They don’t fully understand trauma and they don’t understand the impacts of stuff like this and what a kid in their classroom would look like. And often it’s misbehavior, it’s the kid who’s drawing on the walls and punching other kids and kicking other kids and pulling people’s hair. It’s the kind of naughty kid a lot of times.

Heidi Rogers:

And the technical term of what we would use in psych land is dysregulated … Regulated meaning safe and balanced and stable. Disregulated, meaning all over the shop and just not balanced, not stable, not calm. And dysregulated kids are usually dysregulated because their nervous system is stuck in an environment at home that’s volatile, unpredictable and unsafe. So you can see how the way that the sort of the wires are set up within the body would be on high alert and kind of very sensitive and just sort of looking, because what’s going to … That real hypervigilance of not knowing what’s going to happen next, right?

And so that hypervigilance and that tension is high energy, right? You need to have a lot of cortisol, a lot of adrenaline to remain vigilant, but what do you do with all of that adrenaline when there is no tiger to fight? Then you go off to school you’re out of your unsafe environment and then you’re in a more safer environment at school depending on if there’s bullying or whatever. And you have all this energy that you just got sort of riled up and ready to step into the ring, your brain was ready to step into the ring to keep you safe, right? And then you shove this kid in the classroom and say, you have to sit still, that’s ridiculous, you can’t make a kid like that sits still … So kids who are fidgeting around and bouncing all over the place, it’s because they have energy trapped in their body. Why do they have energy trapped in their body? Because there’s something going on at home or in their nervous system that is saying, no, no, I need to be bouncing off the walls, because I need to be ready for fight, or I need to be ready for flight.

So oftentimes it looks, sort of the witnesses of it will impact them in their behaviour and that’s usually picked up at school, but really the long-term impact of trauma, the legacy is long. The shadow that it casts is very, very, very long, which is why I’m with the families that I work with, I encourage the parents to leave, if you don’t want to leave for you, okay, but you can give your children the future that they deserve by giving them a fresh start, recovery is possible if you leave. If the child is stuck in an unsafe environment, the trauma just goes on and on and on and on and on, they’re in what we would call chronic or active trauma. So it’s unlikely for the child to have the opportunities that you want for them or for them to do well at school, you can’t learn at school, you can’t take in new information if your brain is fixated on fighting off the tiger.

I mean, if you and I were in the front lines of a battlefield and we were in the front trench, and there’s bullets whizzing past and we’re just fixated on dodging bullets and staying alive and then I look over at you and I go, so Jack, tell me what are your hopes and dreams? He’d be like, what? Heidi, why are you asking me about my hopes and dreams? Or if I go, Hey, let me teach you some guitar, let’s get out our guitars and play the guitar. You would be like, Heidi, that’s so dumb, I don’t have time for that. And also, I don’t have the capacity to do that right now, because I’m trying not to die, Heidi, I’m trying to fight off these bullets. What?

And that’s what happens to kids who are experiencing trauma at home is they can’t think, they can’t learn new stuff, their brains not open for retaining new information, they’re not thinking about their hopes and dreams, they’re not daydreaming about their future career, that’s not where their head is at, why? Because they’re trying to survive.

So when you frame it more in your mind is like, oh wow, my kid’s brain is in survival mode. Whoa, I didn’t realize that or I thought they were so little, but it was all going over their head. No, the younger they are, actually, the more vulnerable their nervous system is, because their nervous system is laying down foundational principles for life. A lot of people will say, oh yeah, but, I was a baby when my parents were fighting the most. And so I don’t remember any of it and I’m like, Hmm, you don’t remember it consciously, but your nervous system does. So when you were a baby, those first three months of life, that first year of life, that really it’s the first year of life that we look at a lot in research is where your nervous system is being built. So stuff that rattles you, stuff that worries you, your experience of the world, all those quote-unquote truths are being built in your first year of life.

Heidi Rogers:

So even though you don’t consciously cognitively go, oh yeah and then this one time, they screamed so much, they threw something against the wall and it shattered into a million pieces, Mm-mm (negative), you don’t remember that from babyhood, but you know who remembers your body, your nervous system remembers and your nervous system has been trained to roll at a heightened level basically. And what does that look like ongoing? Higher levels of anxiety, higher levels of depression, eating disorders, addiction issues, all of that stuff, basically because your nervous system was taught at a really little age to be on high alert and to be very sensitive, because think about it from a survival point of view, if I’m paying attention, if I’m super sensitive to that facial expression, the tone that he just used when he told me to go to my room, if my brain gets really sophisticated and smart to pay attention to all those tiny little nuances, I’ll stay safe.

Heidi Rogers:

So it’s genius, right? It’s a genius way of coping, it’s a genius way of adapting for a kid to be hyper-aware of other people’s body language and tone, empaths we say a lot like, oh, that’s such a beautiful trait to be empathic, but in my experience, most empaths that I’ve met and worked with come from a home where there was maybe the feeling of you’re responsible for your parents’ emotions or it was an unsafe environment or a lot of yelling and stuff like that. And so the kid grows up being hyper attuned to the grownups around them. And that is actually what makes them quite empathic is because they had to survive. And so, yeah, does that make sense?

Jack Whelan:

Oh, absolutely does and it just speaks to the importance for people when they are going through this and going through this exploration to reach out to expertise so they can make really informed decisions. And one of the biggest decisions that someone might make and I’ll say tenure and Andrew’s input on this is a decision to separate. So if they wanted to engage in that exploration and part of that exploration is considering a separation. So to Tanya, if someone says to you, look, Tanya, ongoing through a separation. I’m a victim of family violence, what actually happens next, in your experience what happens next? What do you say to people as an expert in family law, who put this question to you? Tanya.

Tanya Hibberd:

It’s a really good question and I guess every case is a little bit different, but the first consideration when someone comes to me is are they in any immediate danger? Now that could be because of their current living circumstances, so they could be not yet separated, they could be separated under one roof. And we have to have a discussion about whether their living arrangements are safe and appropriate in the circumstances, whether there are children involved, if they are still living together, it could be because they just don’t have the financial resources to leave at this point.

And so before we even really get into the legal side of it and what we’re going to do into property settlement or a parenting matter, it may be that we need to pop that on hold and look at getting emergency housing for somebody or referral to support services like counsellors or financial counsellors, depending on what’s going on. There are also domestic violence liaison offices at the police stations that people can talk to. So I feel like there are a few steps that we would normally discuss depending on what the violence is before we would even get into the legal side of things. And once we ascertain that someone is safe, then we start talking about the process for going to the reception. What they can expect from a property settlement in terms of what they’re required to do, what kind of engagement they’re required to have with the other party.

And in terms of parenting, whether it’s safe for the children to have a relationship with the other party and how we can facilitate that relationship if it is safe. So there are lots of things that we need to do in that initial part. And also, I guess the other thing is, does that person have a good support network that they can lean on in terms of family or friends, because the reality is as sad as it is, a lot of people have been so isolated because of their circumstances because they are ashamed like Heidi mentioned before that they no longer have a good support network there, so they’re really on their own. And so sometimes it’s about building them up a little bit in confidence that they can do this and that we can get through it before we even battle from a legal perspective.

But I think also as a practitioner I just try to remember that people in these circumstances are often being controlled for a very, very long time. So I think it’s my role to provide them with information and empower them to make decisions, but let them make those decisions and respect the decisions that have been made. So it may be that somebody comes to me, I guess, on a fact-finding mission, so they can find out about how the process works, what they can expect, the likely outcomes should the matter need to go to court, et cetera. And then, unfortunately, I may not hear from them for six months or so until they’re actually ready to take action. And it’s just about respecting those types of boundaries and just making sure that people are as informed as possible in those initial stages.

Jack Whelan:

It’s an important first meeting, isn’t it? And that the responsibility on you is huge in the sense that you have to make assessments around really the hierarchy if needed and establishing that hopefully, someone is safe and that they won’t require those emergency services. And certainly, if they do require those emergency services, being able to make referrals for them. In circumstances where someone says to you, look, it’s actually not safe, how can the law protect people who are in those circumstances?

Tanya Hibberd:

Well, if someone came to me in that kind of scenario, then the first thing I’d be telling them to do would be to go to the police, contact the place immediately. As I said, there are domestic violence liaison officers at police stations, they’re there to help victims of family violence, they can help them with court processes, et cetera, explaining things. It may be that charges need to be laid against the person who is perpetrating the violence, it may be that the person, the victim needs an apprehended domestic violence order, if they genuinely are fearing for their safety. And it doesn’t have to be just because they have been the victim of physical violence, it could be because there’s been threats of physical violence, has been intimidation or harassment. It could be stalking, it could be a number of things that makes them fear for their safety or for their children’s safety.

Tanya Hibberd:

And in ADVO in those circumstances is definitely appropriate. Some people are hesitant about applying for an ADVO, but if you genuinely fear for your safety, then these are the steps that you can take and the police can help you put through that process. You can also apply for one yourself if you don’t have any luck at the police station, there are avenues that you can take. And it’s important people are just aware about these things, it’s not a criminal offense to get an ADVO placed against somebody, but a breach of an ADVO is criminal.

Jack Whelan:

Right. Okay. Yeah.

Tanya Hibberd:

So I think it’s really important that people are aware that these things are out there, that the law can help, that there are things that they can do if they’re in a dangerous situation.

Heidi Rogers:

[crosstalk 00:32:22] And yeah, could I just interrupt really quick and just ask a quick question. A lot of my clients will say to me that they don’t even know what ADVO or IVO, what any of it means. Could you just explain really quick what an IVO, just what does that even mean? Because I think a lot of people don’t even know that that’s an option. Could you just share a little bit, so I get this question all the time from clients of what does that … What are the … Protecting me, what does that mean? Could you explain that a little?

Tanya Hibberd:

Yeah, sure. So, and ADVO, an apprehended domestic violence order is an order that is, it can be an interim order can be made by the police or you can apply to the court and it protects somebody from the perpetrator of violence. So it can be as simple as saying that the perpetrator cannot store [inaudible 00:33:10], the person they need a protection, or it can go into really specific things, they can literally not communicate with them directly or via another person unless it’s through a lawyer, it can be they can’t come within a certain distance of the family home, their place of work, things like that. So depending on the circumstances, what kind of protection a person needs, the ADVO can be framed as such to provide those protections.

Tanya Hibberd:

Now, as I said before, it’s not criminal to have an ADVO placed against a person, but if a person does then breach the terms of their ADVO, then obviously that goes before the police and they can be charged for that breach.

Heidi Rogers:

Awesome. Thank you.

Jack Whelan:

Great question. Great question. And just further to it, the legal system rightly or wrongly has a reputation for having a slow reaction time to things. And that can certainly be a disincentive for people who are reaching out and need the protection of the state. Tanya, in respective or reaction time once an application for these sorts of orders is made, what could people expect?

Tanya Hibberd:

Well, if the police apply for one or make an ADVO, it can happen very quickly. If you need to apply for one, it’s a bit more of a process, I will admit you need to really go to the court’s registry. So it needs a bit more of a process, so if the place are willing to help you, then I definitely think that that’s probably the easier way to go about it. Once an interim order is placed on a person, then that person who is the defendant of the ADVO does have to come before the court and they can either consent to that ADVO being made on a final basis, or they can defend the ADVO. And then it will be listed for a hearing, so that’s a bit more of a process.

Tanya Hibberd:

But if a final ADVO is made by the court, it can stay in place for two years. And also it’s important to note that if at the end of that two year period the situation between you and this person has not resolved, and you’re still in [inaudible 00:35:24] where you are fearing for your safety, you can apply to have that ADVO extended if it’s necessary.

Jack Whelan:

I can’t think of another area of the law where the expression justice delayed is justice denied was truer that in family law, it’s really, really absolutely true. A technical question about parenting, to you Tanya, about parenting and property plans. So can a history of family violence and how can a history of family violence impact upon say property split, firstly and then say a parenting plan? Tanya.

Tanya Hibberd:

Okay. So from a property perspective, the court has actually found that violent conduct of one party to a relationship is relevant in determining a property settlement. So when we look at a property settlement and what is adjust an equitable outcome, one of the things that we consider is the contributions of each of the parties over the course of the relationship, so that’s both financial and nonfinancial. And the court has found that way of violent stuff that by one party has had an adverse impact on their ability to contribute and has made their contributions more arduous, then a court can take that into account when determining orders for the distribution of property.

Tanya Hibberd:

But also just on a more, I guess, day-to-day basis and how we conduct a matter, family violence also affects how we will exchange things such as financial disclosure, so in every property law matter, we have to exchange financial disclosure and that’s basically source documents that substantiate what the asset and liability pool is.

Tanya Hibberd:

Now, it could be that if you have moved in to alternative housing, don’t want that person, the perpetrator of the violence to know your current address, you may not want them to know where you shop, so when we’re exchanging things like bank statements, that’s obviously something that we need to consider and information needs to be redacted in order to make that person feel safe, so that we can comply with our obligations under the law to exchange full and Frank financial disclosure, but also do it with that person’s safety in mind because that person’s safety trumps everything.

Jack Whelan:

Another truth about family law is it not withstanding some of the systemic challenges and delays and so forth, which at the moment I think the system is throwing everything at, which is a welcome thing, but there are actually a lot of very good features in family law as well and you’ve just spoken to a few of them. Andrew, you’re barrister and a mediator. The question to you is in respective this issue of family laws, where does mediation sit as a process?

Andrew Wilson:

That’s a really, really good question and family violence is a really significant issue that’s really got to be considered at the front end of any mediation process. So, just as his tenure said, if there’s any hint that there could be family violence, practitioners needs to take steps to confirm that no one is in any immediate danger. And if there is a risk that play out they need to refer that person to appropriate support services. So that’s something that’s got to happen upfront.

Andrew Wilson:

But also beyond that, it’s not just an immediate risk that we need to be wary of, because family violence has got the capacity or has the effect of undermining the freedom of a person to engage in mediation properly. So mediation as a process relies upon the parties to mediation having their own agency and being able to make decisions for themselves and in many cases for their children. And patterns of family violence can seriously undermine that.

Andrew Wilson:

So what Heidi said was very pertinent, where she identified the various types of behavior that can have the effect of undermining a person’s autonomy. And any combination of the physical sexual, emotional and so forth can mean that a separating partner can’t engage properly in mediation.

Andrew Wilson:

The one thing that a mediator like myself needs to do is, if there are concerning patents, then we need to look very carefully at what those patterns are. And the term coercive control was used and that term had a lot of attention recently. Essentially it means that one party through a combination of any of those factors that highly identified the physical violence, psychological violence, cultural violence, et cetera. Imposes their will on the other person. And that’s something that just can’t occur with mediation, so if you’ve got coercive control, then a mediation can’t really be undertaken.

Jack Whelan:

Which is central, isn’t it? I mean, ultimately mediation requires in order for people to be able to access mediation, it really does require there to be a power balance.

Andrew Wilson:

It certainly does. But also we know that there are other patterns of violence or other patterns of concerning conduct that are out there as well that we need to look at. So for instance, there are some situations where there’s what we refer to as situational couple violence or separation instigated violence. So, we need to look for a very carefully at what’s going on in order to get a clear idea and to work out whether the circumstances of the separation are amenable to mediation.

Jack Whelan:

It’s fixing, isn’t it? For a lot of people who are confronted perhaps with the possibility of having a very elongated litigation. Such that they’re simply not up for that, because they have been a victim of coercive control or family violence rendering them often have to take deals in a separation, which is suboptimal. That’s a huge policy issue for government, it does again go to this question of making sure that the system is accessible and timely. Tanya, you must see some examples of that, which are heartbreaking.

Tanya Hibberd:

Yeah, definitely. But I actually think on a positive note, as of September, the court changed a lot of the rules that relate to the family law court proceedings. And the idea now is there’s a lot of pre-action procedures if they’re appropriate circumstances. And realistically in a lot of instances of family violence, the pre-action procedures would be exempt, but the courts focus is that if court proceedings are applied a commence these days, that the idea is that the matter will go to a final hearing within 12 months. Now, historically it could have been two to three years before you would see a final hearing, so families are stuck in a court system for that length of time but the court really acknowledges that that’s not healthy for anybody, even if they’re is no family violence, but certainly in circumstances where there’s violence, it’s not healthy for anybody to be in that cycle.

Tanya Hibberd:

And so the courts focus is on trying to get every matter to a final hearing within 12 months. But I do agree it’s about finding a balance when you do have a client that’s facing a family violence situation and they are in court or even if they’re just negotiating, there’s trying to find that balance between wanting this to be over for them so that they can move on with their life, so that that person doesn’t have as much control over them anymore. But also on the flip side, not wanting them to settle too quickly to their own detriment, where they are accepting an offer that’s probably not quite what they should be getting just to get it done.

Jack Whelan:

It’s a balance, isn’t it? Because you want to empower people to understand their legal rights and to get the best deals that they can, but also presumably you’re having to check in with people as well to see how they’re fairing and making sure that they are actually able. And as Andrew mentioned, having the appropriate level of urgency where they’re mediating or in a litigation to be able to participate.

Jack Whelan:

[inaudible 00:44:39] we’re coming to the end of our discussions, it’s been just such a useful, useful discussion for people who will be listening to the podcast. I’d like to ask each of you by way of conclusion, just to give a final piece of advice to someone who may be listening to the podcast who is experiencing this or because of this podcast has actually learned quite a lot about some of the behaviors that they are experiencing.

Jack Whelan:

Andrew, what’s your final piece of advice that people who are going through a separation and perhaps are experiencing these sorts of behaviors? Andrew.

Andrew Wilson:

My advice is to speak to somebody, so speak to a psychologist, speak to a family lawyer, speak with somebody who works in the area who can provide you with good advice and can advise you on next steps. Because many people need the, not just support, but need good information and information delivered by people who know how the system works. So don’t be afraid to reach out and seek advice.

Jack Whelan:

Fantastic advice, Andrew. Heidi?

Heidi Rogers:

I think the two things that come to mind are, one, self-compassion that you are human, you are not a robot. So if someone is listening to everything that you heard today and is feeling guilty or feeling bad or feeling stupid or reminding yourself that your brain takes over and specifically your amygdala, which is obsessed with keeping you safe. And so as much as you think you’re trying to do the right things, your amygdala will take over and will keep you safe at all costs if that’s playing smaller, not leaving the relationship.

Heidi Rogers:

So have compassion on yourself that your brain is going to take over and try to protect you and that that’s why maybe the way that things have unfolded have unfolded the way that they have is because your brain has taken over. So if you can have compassion on yourself to say, I’m human, I’m doing my best, I made the best decisions at the time with the information that I had and not beating yourself up, because if you beat yourself up, you’re using all of your capacity, all of your energy on beating yourself up when it’s better to funnel it into other ways.

Heidi Rogers:

And then the second thing that comes up a lot whenever I work with parents who are going through separation is, or with family violence specifically is the fear that the parent who’s being violent is screwing up our kids forever and what do I do? I want to parent my kid with love and kindness, but the other parent doesn’t. Oh my God, are we ruined? And the research I always quote to that question it comes from Dr. Bruce Perry, who’s a psychiatrist and guru in Traumaland in the states. And he’s done over 500 research studies on trauma on kids who grow up in adverse situations and out of all of his research and all of his published articles, do you know what the number one thing that they found of what helps kids get through a traumatic childhood? Having one relationship with a safe and trusted adult, it only takes one. And sometimes that’s a teacher, sometimes that’s a coach and sometimes that’s just one parent, but the power of human love, the power of relationship, that is the most important thing.

Heidi Rogers:

And the greatest thing that you can remember is that a safe and stable relationship is how people change, it’s how they build resilience and how they cope with trauma. And that’s what you can remind yourself of whatever tornado is going on around you in your home, okay, I am the one, I’m the one safe, stable relationship for my child and that is enough. I know it doesn’t feel like it’s enough sometimes, but it is, it is enough.

Jack Whelan:

Thank you, Heidi, It’s just terrific advice and also subject matter for another podcast. So look out for invitation coming from me very shortly. Tanya, the final word to you.

Tanya Hibberd:

I think I agree with Andrew reaching out getting some advice off people and remembering that if you do reach, chat to us, we can tailor appointments to suit your specific circumstances, so whether that be that you need to have an appointment at a certain time of the day, because that’s when the person is out of the family home or you need to do it by telephone as opposed to coming into a law firm, all those things can be tailored to suit you and to keep you safe, but also to remember that it’s great to get advice, it’s great to speak to people, but you know your situation best. If somebody asks you something who provides advice that you’re not comfortable with, speak up and say that, that’s okay, you need to act protectively, you know your circumstances. So we need to work within what’s going to be best for you from a safety perspective, but also what you can cope with at this point in time.

Jack Whelan:

Thank you very much Tanya and thank you friends, I think if I’ve taken one message from today, I’ve taken a lot of messages from today, but one the power of exploration and reaching out and exploring to inform oneself about processes and also indeed about oneself. Heidi Rogers from Moving Mindsets, Tanya Hibberd from Aubrey Brown and Barrister and mediator, Andrew Wilson from State Chambers. Friends, thank you very much.

Heidi Rogers:

Thank you.

Tanya Hibberd:

Thank you.

Andrew Wilson:

Thanks Jack.