As we currently allow the Family Court system to function, as a society, we are failing the children of this country and it makes me angry.

 

It hasn’t been a great week so far.

I’m supporting several families struggling with complex issues around post-separation arrangements for their children.  I’m not a family lawyer or a psychologist and frankly, I just do not know how to help these frustrated and worried parents.

In each instance, I have referred them to the experts with the Divorce Resource seal of approval whom I feel are most able to assist or refer onwards. Still, I know that they have a long, drawn out and painful process ahead of them.  And, I am not confident at the end of it all the results will be in the best interests of the children. So many cases beforehand have proven that a negative outcome for the child is a definite possibility.

 

Arrangements for children is the most contentious area of family law.

It is raw, emotional and intensely personal.

Families come in all forms and there is no one-size-fits-all solution.  Every case must be considered independently. It's a complex and labour intensive process.

Much of the decision making is based on subjective information. The Courts are backlogged causing long delays, which leave children at risk. The judiciary is overloaded with cases and working under extreme pressure. The decisions they’re responsible for handing down have a massive impact on the lives of children and parents. They can't be expected to rush them.

 

10 Years in the Family Court and still no result

One case that came to me this week has been going on for almost 10 years. That’s ridiculous, isn’t it? 

TEN YEARS! Those poor children! 

There are three children in this family approaching their teens. For practically their entire life they have been at the centre of a battle dragged out in the Family Court, and still, they have no stability in their family situation. 

All three are lagging behind in school, through non-attendance and lack of continuous parental support - add to that an array of psychological and behavioural problems. These children are being harmed. The Court system is too slow and disjointed; in this case, to the point of being dysfunctional and broken. It is prolonging the suffering of both the parents and the children. It is setting these children up to fail in achieving their full potential.

Over the years, all three have run away several times from the homes of both parents – often, but not always, straight to the other parent's home.  My best guess is that there may be an element of playing their own frustrations out by pitting their parents against each other for attention. And, its attention they certainly get – from the police, child protection, family report writers, independent children’s lawyers and of course, both parents.

Earlier this year, they were removed from their mother due to neglect and her substance abuse. They were placed with their father and his wife (who has been a constant and well-regarded fixture in the children’s lives for many years). There are Orders in place around this arrangement.

Understandably, the kids love, missed and worried about their Mum and so the father allowed them to visit with her. During that time, allegedly, she told the kids it was the father’s fault the Child Protection people had removed them from her.  When the children returned to the father’s home, they acted out, he scolded them for their bad behaviour, they threw the accusations at him and ran away to hide. 

The situation was serious enough to call the police in to help find the children and now there is a criminal case in relation to having the care and control of a child and engaging in conduct knowing that conduct may result in harm to the child. 

The result of the bail conditions for the father is no contact with the children and the children have been returned to live with their mother, despite orders in place saying she is unfit to care for them on a permanent basis.  Apparently, the bail conditions were standard and could be lifted easily at a court appearance to allow contact.  The incident was several months ago, the first hearing was under-prepared and postponed and the father still has no contact with the children. 

The case managers have changed repeatedly over the years and there is currently no case manager assigned.  Submissions have been made to the court by the reporting psychologist after interviewing only one parent and not observing the children in both environments. The father and his wife, after spending over $70,000 in the first few years, have been self-representing.  Now, I know I am only getting one side of the story and there are always three sides to any family law story, but really? Ten years, tens of thousands of dollars and still no resolution? It’s just not right!

 

Abuse - another layer of complexity

And then there are cases where violence is at play. Women fleeing abusive relationships are torn between their responsibilities to their children, who are often terrified of a father they have seen beat their mother senseless, and the risks of breaching Family Court Orders.

To add to the complications and the guilt of the mothers, often, the mothers themselves have consented to the orders. Terri* says, ‘I consented to the orders granting their father fortnightly access because my lawyer advised that if I didn’t compromise, I would be seen to be alienating the children and he could end up with sole custody.’ Keep this point in mind as you read on.

Even more harrowing for a loving and naturally protective parent than physical violence is when there is sexual abuse of a child.  In his opinion piece, Mothers warned not to tell the truth in Family Court, (October 2016) retired barrister, Maurice Kriss writes, ‘when the mother reports the abuse, it is usually some time after the event that she finds out and very little or no tell-tale signs are visible. Which gives rise to the charge that the mother is lying.’

Granted, it is not always the father as the abuser.  And, it seems when the tables are turned it's just as difficult for fathers to prove a case of abuse. Brigitte* from NSW says, ‘I have seen this situation in reverse where the mother was sexually abusing the child. The father was made to appear vindictive. There was a lot of physical and supportive evidence to prove what was happening. Thrown out of court. Child lives with her abuser.’

There is no denying the courts have an extremely difficult task but sometimes serious mistakes are made and a ruling sees a child ordered into the care of their abuser and on occasion restricted or denied access to a loving and safe parent.

 

Victims present as "mentally unwell"

A judge can only base their decisions on the information presented and perpetrators aren’t always easy to pick: they often look like decent, rational, high-functioning people. A distraught parent, desperate to protect their child can look like someone suffering from mental illness, or at the very least hysterical or vindictive.  Professor Kelsey Hegarty told the Victorian Royal Commission into Family Violence this year, victims in these circumstances can look 'mentally unwell', which can then be used against them. 'In contrast,' she said, 'the perpetrator can often look very calm and rational.'

Even if victims present well under pressure, their evidence can sound implausible. Some of the signature traits of domestic violence and child abuse are inherently counterintuitive. How could a professional family man, respected, calm and friendly at work go home and do such things?  Why would a victim return to their abuser again and again (seven times on average). It doesn't sound possible that a child victim of sexual abuse still loves their abuser, and doesn't show fear in their presence. And why would a child disclose abuse to one person, then deny it to another?  They are lying in one instance or the other and it is easier to give the perpetrator the benefit of the doubt. This area of family law is extremely complex but we have to work harder for better outcomes.

 

Too little, too late for 17-year-old Abbey

Another case that springs to mind is that of a well regarded, educated, middle-aged professional in Western Australia. He went to jail for a paltry 2 years for the abuse of his daughter’s 8-year-old school friend several years earlier.  It later transpired he’d also abused his daughter.  As a 17-year-old, after her parents separated and years of mental anguish about the abuse, Abbey committed suicide. She’d written a gut-wrenching poem about her ordeal which you can read here – I warn you, only if you are feeling strong.

He was a convicted child molester and the child's mother, as well as an experienced psychologist appointed by Abbey's parents, expressed concerns for her safety and well-being.  Still, the Family Court approved orders for Abbey and her sister to spend time with him, including overnight stays. Ten days after her daughter’s death, Abbey’s mother received a letter from the Family Court that read: 'The department has assessed that [Abbey’s abuser] has harmed Abbey' and suggested a suspicion he may have harmed her sister as well.  It denied him further unsupervised contact. Too little! Too late!

I can only begin to imagine how sick to the stomach that letter might have made Abbey's mother feel. Ten days after her child's death by suicide, and not even an acknowledgement of her passing.

Abbey’s mother, Gill, has joined forces with Bravehearts and recently launched a petition to ask the Prime Minister, Malcolm Turnbull for a Royal Commission into the Australian Family Law System.

The Family Court doesn't usually comment on individual cases but in an unusual move, Judge Stephen Thackray, Chief Judge of the Family Court of WA, issued a statement to the editor at The Weekend Australian, shortly after Abbey's death, in response to an article the paper had published, “Sex abuse case reveals family court failings”: 27/9/2014.

In it, among other points, which in my opinion rather disgracefully seem to lay the blame on the mother, the experts and anyone or thing other than the Australian/(WA) Family Law system, he states (correctly) that ‘the matter was not heard in the Family Court of Australia at any time'.

In Gill’s defence, Braveheart’s responds to this point.

Gill did not have the financial resources to take the matter to the Court. Consent Orders are issued by the Family Court even if they are not heard by the Judge they are a process of the Family Court.  In any event, Consent Orders ought to be named ‘Concession Orders’ to reflect the ‘I give up’ or ‘I can’t fight/win this’ reality that drives them. In most cases those that enter into them either do not have other realistic choices – perhaps they do not have the resources to fight the matter ‘before the court’ which can be horrendously expensive (tens of thousands of dollars) or for most, they are advised by their lawyers to agree, because to raise matters of child abuse in the courts is fraught with danger and will probably result in losing custody.

Full response from Bravehearts to Judge Thackray's statement

 

The Family Court is biased against victims

There have been claims from numerous sources that the Family Court is biased against parents who raise these allegations and disbelieving of the children who make them.  

Professor Patrick Parkinson, former chair of the Family Law Council (an advisory body to the Federal Attorney-General), says ‘Twenty years ago, it was ‘extremely rare’ for a mother to lose care of her children for alleging child abuse.’ Today, he says, ‘it is all too common’ and, ‘I’m seriously worried about this trend. They are based on a certainty about what has occurred which is not [always] justified by a serious examination of the facts.’ This dynamic is so entrenched, that ‘some lawyers now tell their clients, ‘If you make these allegations, you risk losing the care of your child.’  

‘A family lawyer who knows from experience the dilemma the mother must face once she commences proceedings to protect her child, and his own dilemma on what to advise her, knows that the father, with a grin on his face, can say ‘Heads I win - tails you lose!’’, writes Maurice Kriss.

 

Lack of resources, expertise and consideration

Recent analysis released by the Australian Institute of Family Studies shows the 2012 reforms of family law procedures, which were designed to protect children from harm, have been a ‘step in the right direction’ but many family lawyers, judiciary, parents and affected children still feel let down by the system.  Less than half of the parents who separated after the 2012 reforms said the system met the needs of children.

AIFS research fellow, Dr Rachel Carson, said there was 'no indication children’s views were receiving any greater emphasis in litigated court matters after the amendments'.

'The research identified concerns about overlaps and inconsistencies between the family law system and state and territory child protection systems, family violence responses and the complexity of the system as a whole.

'Family law system professionals participating in our study raised concerns about the level of resources required to assess family violence, child abuse and child safety concerns and the need for improvements in education and training for family law professionals.'

An unnamed family lawyer participating in the study said, 'single expert witnesses and judicial officers still prioritise shared care above children’s safety.'

Dr Carson also said an earlier study by the Institute found that children and young people wanted a greater say in proceedings.

 

The children expect more

'The children and young people who participated in our study expected to meet with an independent children’s lawyer more than once and to be supported to understand what was going on in the proceedings,' said Dr Carson.

'A lack of meaningful contact between children and the lawyers appointed to represent their best interests caused significant disappointment among the children and young people interviewed for the study.

'It is clear that screening and assessment for—and responses to—family violence, child abuse and other safety concerns and the treatment of children’s interests are issues of central concern for the continued development of a system that meets the needs of families and children,' said Dr Carson.

Rosie Batty, former Australian of the year, whose son Luke was violently killed by his abusive father, said in her submission to senators at an inquiry into family violence, the Family Court is her ‘biggest area of concern’, and that it’s an area that is ‘beyond investigation, beyond reproach’.

‘There is a total disregard or a total ignorance of family violence being an issue,’ she said. ‘You’re viewed in court as likely to be lying to manipulate the system.’

These are claims the Family Court strongly rejects.

 

Will you add your name to support Bravehearts' call fro reform?

I am no closer to suggesting a solution to the shambolic state of affairs in the Family Court System than when I started researching this article but I have signed the Bravehearts petition and you can too.

SIGN THE PETITION

 

If you’re a child or you know a child who is suffering and needs to talk to someone who understands, please contact the Kids Help Line on 1800 55 1800 or Bravehearts on 1800 272 831.

For more resources for both children and adults, visit the Divorce Resource Crisis Support page

 

 

Written by Christine Weston
10th October 2016
www.divorceresource.com.au