WHAT IS WRONG WITH THE FAMILY COURT?

Background

In 1975 the no fault divorce rules came into force. This meant that the normal tests of morality and behavior such as drug addiction, infidelity, gambling, and violence were irrelevant to a divorce. Irretrievable breakdown of marriage was the only criteria. However, in child custody issues an adversarial system exists where allegations of fault must be fought with admissible evidence.

It is unusual to collect this type of evidence throughout the course of a relationship that will hold up to the requirements of the court system. For example, domestic violence is often hidden from the public eye and child abuse is secretive and signs are not easily identifiable.

Who does the secrecy of the Family Court protect?

The Family Court has strict mandates against publication of any material that identifies litigants and only a small percentage of judgments, are reported. These do not include all that went on in the court room and beyond, and much of this is the cause for contention and distress. You may wonder "what else went on, what other evidence was or was not presented, why are people so unhappy with the Family Court system and why is the media prevented from openly discussing issues like practice, accountability and outcomes?"

But it stands to reason that something is wrong if:

* There is no one set of child protection standards that are nationally consistent for all Courts.

* There is no clear national set of procedures a parent should follow if a child discloses intra familial abuse.

* Government bodies, private associations and individuals are concerned that the 'best interests' of children are not being properly catered for, especially in regard to 'unacceptable risk' of harm;

* Interest groups often have only a 'parent's' agenda, rather than a child protection focus.

* There is little focus on how to solve the problem of substantiating abuse or the dilemma of false allegations. Both can result in unsafe decisions being made in the Family Court.

* The Family Court has no investigatory powers to determine whether or not a child has been abused and is dependent for information as to the veracity of allegations on the evidence adduced by the private parties;

* While violence and abuse is often the reason a relationship fails, these actions are often misunderstood to be only a feature of the separation rather than the underlying cause. The Family Court repeatedly under assesses the nature of the conflict stating that there are parties, not victims and offenders;

* Under an adversarial legal a very high level of proof regarding abuse against a child is required. The parent, who cannot provide that proof, faces the prospect of penalties which may include losing access and residency of the child. For the parent falsely accused, the stigma of the accusation must be borne. The child is left in a vulnerable position. There is no penalty for false denials.

* A child's statements of being hurt or interfered with, may be given little, if any weight in decision making.

* The Family Court places children in situations that are clearly disadvantageous for their development, such as with a parent who has numerous convictions for sex offences and violence, even when the child clearly expresses their fear and unwillingness for contact;

* A child is returned from contact with physical trauma, signs of distress and adverse behavior changes; yet on-going contact is enforced or residence reversed, while the protective parent may be limited to occasional supervised contact, to prevent abuse being mentioned;

* Intervention by State Government agencies is limited to immanent threat of danger.  When the parent takes the child from the abusive situation, the child is not regarded as being at risk and the abuse will not be investigated. 

* State agencies are influenced by a matter being in the Family Court and are directed to view allegations with extra caution.  This hinders the collection and presentation of evidence to support abuse allegations.

* Parents are often accused of trying to alienate the child from its other parent.  

* The ability to protect children is too often proportionately dependent on the financial resources of each parent.

* A parent who seeks support or uses child protection services may be deemed 'emotionally abusive', but the Family Court can order a child to have numerous psychiatric examinations.

* Children's separate legal representatives, may not have any professional training relating to interviewing children, the norms of child development or how children perceive abuse, yet advise judges on what is the children's best interests without even meeting their ‘clients'.

* Child 'experts' are asked to give opinions on affidavits only, never meeting with any of the participants, or children in the proceedings.

* There is no practice of penalizing perjury, so affidavits of litigants and others while potentially subject to cross examination are open to falsification and uninformed or self serving opinion.

* Members of the judiciary are not required to undergo any training relating to child development, domestic violence, the effects of abuse, or the psychology of an abusive person and are at liberty to retrospectively impose their own narrow, privileged belief system on people coming before them without accountability or exposure.

* An abused child is often denied counseling by Family Court order.

*  Parents, grand parents or others, who believe children are at risk, often find they have no avenues for redress.