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Why are family courts out of step?

By Charles Pragnell - posted Thursday, 28 February 2013


Every year in Australia, billions of dollars are spent by Federal and State governments on seeking to prevent child abuse and maltreatment and to protect children from harm and exploitation. Millions more are spent supporting non-government organisations in supporting government efforts. Billions more dollars are spent on mental health and hospital services to provide treatment for the victims of child abuse and to treat drug, alcohol, and gambling addictions, and many people in prisons and rehabilitation centres have similarly been abused during their childhood.

Yet the Family Courts of Australia go in the completely opposite direction. Every week there are cases in the Family Courts where decisions are taken to order children into contact with and even into the custody of parents, who the Court has found to have abused them. In the case of Garning (2011) for example a judicial finding was made that the father had "physically, emotionally, and verbally" assaulted the mother (and inherently the children). Other findings were that the father suffered a serious mental disorder and that he lied on oath to the Court on two occasions and equivocated on others which should have immediately led to serious doubts being placed on all other aspects of his testimony. Yet the Court found in his favour and ordered the children to return to his custody and was supported by the Appeal Courts. There was no evidence of child abuse submitted against the mother and the four children (between the ages of 9 and 15 years) vehemently protested verbally and in writing that they wishes to remain in their mother's care.

Unforgettably shameful scenes were seen by the whole world on television of the four children being dragged from their mother's care and taken to their father, where further scenes were witnessed of the children trying to escape from him, only for him to violently assault them to ensure they did not escape.

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A typical scenario in the Family Courts is for evidence to be submitted by one parent (usually the mother) that the other parent has been violent towards them during the relationship and towards the children. Such allegations are often supported by Domestic Violence Orders, and Apprehended Violence Orders. Sometimes by findings of` substantiation' of the child abuse by the police and child protection authorities.

Such evidence is however frequently disregarded or ignored in the Family Courts, which consider that the right of a parent, no matter how toxic, violent, or dangerous that parent may be, to have contact and even custody of their child is the paramount and supreme consideration. The occurrence of past harm to the children and the extremely high risk of future harm to the children is often apparent for any `reasonable man' to see, yet not to the judiciary of the Family Courts. This is justified by the Family Court under the provision of the Family Law Act 2006 that the primary consideration in the `Best interests of the Child' that the child should have a "Meaningful relationship with both parents after separation". If such evidence were to be presented to a State Children's Court by State Authorities, there is little doubt in most cases that the threshold of significant harm would be satisfied to a `Balance of Probabilities' standard of proof, and the children would be ordered into State Out-of-Home Care.

The minimum award of time the children must spend with such toxic and dangerous parents is frequently "significant and substantial time" at the Courts discretion and equal time if "reasonably practicable".

But inevitably further events take place. Children disclose and complain of being abused again during such contact/visitations – often to teachers, doctors, and the police and child protection agencies. Not unnaturally, the protective parent takes the matter back to the Family Court to seek cancellation of the Contact Orders with the abusive parent.

It is at this point that matters take an extremely bizarre twist as Independent Children Lawyers, Psychologists, and Psychiatrists are introduced into the fray of the adversarial arena of the Family Court. Such professionals, whilst expert in their own field, have not the powers, expertise, nor the resources to investigate allegations of child abuse (Chief Justice Bryant 2009 and confirmed by Deputy Chief Justice John Faulks 2010). Allegations of child abuse cannot be investigated during a mere few hours of office interviews, but require a detailed investigation involving paediatricians, forensic psychologists, social workers to examine home circumstances, and the police to obtain witness testimony and forensic evidence in cases of physical and sexual abuses.

In the absence of such forensically and comprehensively conducted investigations of child abuse, the professionals involved perversely turn matters against the protective parent making the allegations. Without any evidence to support their opinions, they allege that the protective parent (and the children) are lying about the abuse allegations; and/or that the protective parent has `coached' the children in making the allegations; and/or that the protective parent is "Deluded" in believing the abuse has occurred or has a non-specific `Personality Disorder", and it is suggested that this has been done by the protective parent in order to "alienate" the children from the other parent. Again this is always based solely on opinion with no corroborative or supportive evidence, simply the distorted interpretations of what is said in office interviews.

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When the matter again reaches the Family Court, it is then the protective parent who is placed on trial but unlike the abusive parent, does not have the defence of the `Gravity' of the allegations against them (Briginshaw Principle).

The usual outcome is then a perverse reversal of child custody. The children are ordered into the custody of the allegedly abusive parent, and the the protective parent and the children are punished by not being allowed any contact with each other for at least six months, and then when contact is finally allowed it is under strictly supervised conditions in case the protective parent should again raise the issues of abuse with the children. It is also frequently ordered that the children must not receive any form of counselling if they again disclose abuse without the permission of the resident (abusive) parent, and their disclosures/ reports, complaints of further abuse must not be reported to the statutory child protection authorities or to the police. These latter two provisions are of course clear violations of children's rights under the International Convention.

This type of scenario is enacted every week in the Family Courts around Australia whereby children are ordered into the custody of parents proven to be violent and abusive towards them or who are serious risk of doing so.

How can the Family Courts be brought into working with Federal and State authorities to prevent child abuse and to protect children and not to be working counter to those goals.?. That is the task which lies ahead.

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About the Author

Charles Pragnell is Specialist Adviser on Child Protection and Children’s Rights to the National Council for Children Post Separation

Other articles by this Author

All articles by Charles Pragnell

Creative Commons LicenseThis work is licensed under a Creative Commons License.

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