Courts must put Children's Safety First

In welcoming last week's announcement by the Attorney-General regarding reforms to the Family Law Act, The National Council for Children Post-Separation (NCCPS) is seeking dramatic changes to the current Family Law Act in order to overcome serious defects in the law which are putting children's safety and wellbeing at risk and that the safety of children should become of paramount importance in the Family Law and its application in the Family Courts.

Currently Family Courts are giving precedence to the principle of shared parental care and that a parent must have a meaningful relationship with each parent and contact with a non-resident parent, despite evidence of family violence, criminal records, drug or alcohol addiction or mental health issues, and this has placed many children in danger of abuse and in some instances, death. The Family Court of Australia's own Best Practice Principles where Family Violence or Abuse is alleged, provides direction to a decision maker about strategies to adopt when ordering a child to spend time with a parent when "findings have been made that the parent presents an unacceptable risk of behaving violently or abusively" (page 11).

The NCCPS believes the safety of children should be given absolute primacy over considerations of contact with a violent parent and where time with such a parent presents such an unacceptable risk that safety procedures and strategies have to be put in place, such as strictly supervised contact. This is particularly so where the child has limited language skills as is the case with infants.

Child Protection Systems Expert, Charles Pragnell, said, "In view of the numbers of deaths of children and large numbers of reported abuse to voluntary agencies which are occurring after Court decisions regarding parental contact, then the right of each child to be sage and protected from such events, must be the paramount consideration by Courts. As a civilised society we must no longer tolerate such a loss of the lives of small children".

The NCCPS also believe that decision makers are not giving sufficient weight to existing state welfare and/or family violence orders related to children in FCA matters. Where existing family violence orders are in place to protect parties, the FCA should be prevented expressly by the legislation from making orders for parents to spend time with children that are not consistent with the operation of those orders. The NCCPS believes orders made by courts in state jurisdictions have been made based on sound evidence and the FCA should be required to accept this and incorporate it into their own practices and orders.

NCCPS goes one step further and proposes that where it is reported to a state agency that there are child welfare concerns in matters before a Family Court, that state should be compelled by the legislation to become a party to such FCA proceedings rather exercising a discretion of whether or not to become involved. It is imperative that complaints and disclosures by children of abuse during parental contact should be competently and thoroughly investigated by child protection agencies, and not simply dismissed by courts when allegation are made of false accusations by the child or that the resident parent is `alienating' the child, a psychological theory that has long been discredited and ridiculed among the relevant professional communities.

It is also contended by NCCPS that it is essential that judges, independent child lawyers and court appointed reporters are required to undertake training in child safety and protective measures as this will be crucial in ensuring a stronger understanding of the impact of FCA rulings on children's lives. Placing children in the hands of a known violent and abusive parent and failing to recognise that domestic violence to the other parent is abuse to a child, are just areas which need to be given particularly urgent attention.

Spokesperson for the NCCPS, Barbara Biggs says, "Children have been forced into distressing and dangerous situations for too long. The reforms to the current legislation are long overdue. If children's rights had been of paramount concern previously, lives could have been saved".

The NCCPS understands that the final report on the reforms may not be available until December, but strongly encourages the Attorney-General's Department to recognise the desperate urgency of the need for these changes to the Family Law to provide safety and protection for children in post-separation arrangements before more children are brutally abused or killed.


The National Council for Children Post-Separation is seeking the following changes to the Family Law Act and the Family Court of Australia system:

Primary considerations
(1) the term `the best interests of the child' is replaced with 'the measurable and demonstrative benefit of the child, taking into account a wide range of considerations including status quo, established primary care-giver, breastfeeding considerations and benefits, family and friendship connections, schooling, special needs and safe, secure and loving care";

(2) primary focus on safe outcomes for children takes precedence over 'time spent' principles, especially in cases where family violence (FV) and/or child abuse is raised; and such matters being raised must be investigated;


Investigating family violence and child abuse
(3) there is recognition that violence to a parent is also abusive to the dependant child of that parent;

(4) as in New Zealand, the prima facie stance is that where allegations of abuse are raised, contact is disallowed until they are disproved, and the onus is on the alleged perpetrator to prove themselves safe;

(5) a new, discrete unit is formed within the family law system to carefully manage investigation of such cases;

(6) family (including children) or contributing professionals' concerns suggesting FV and child abuse require that all evidence held by any governmental, police, law, medical and/or other agencies pertaining to the parties' and children's well-being must be sought out and included for review by this new special unit; and

(7) that these records be connected on central police and court systems at local, state and federal levels, and;

(8) if, on the balance of probabilities, FV/abuse patterns are found to exist, or to be likely to exist, then any contact orders/agreements with the perpetrator may be suspended, and if such FV/abuse patterns are considered on expert opinion to be likely to strongly endanger children's physical security or psychological health, then even occasional contact with the offending parent or parents may be disallowed as unsafe; and any allowed contact orders must be freely agreed to by the child, and must detail how the child's safety is to be supported, this not being left up to the protective parent, and;

(9) in such cases the primary focus on safe outcomes for children must include plans for recovery from such trauma in parenting agreements or orders, and merely the passage of time should not be taken to suggest such FV/abuse patterns will be reduced or stop causing harm to the child, and;

(10) no order for court costs or court punishment such as the reduction in custodial care orders of a child shall be made against a parent who raises concerns about family violence or child abuse, even if the evidence presented to the Court at that time fails to satisfy the Standard of Proof required by that Court. i.e. a balance of probabilities. Clear guidance is needed for Judges regarding the evidence which would satisfy a finding of proven. e.g. previous AVOs, criminal records of violence, mental health findings, police interventions in FV, investigations by Child Protection authorities or temporary refuge sought by assaulted parent and children, (as reports indicate there is no uniformity of decision-making or standard of practice applied countrywide regarding the finding of proven or unproven in such matters);


The child's voice
(11) all children who have speech (or sign language or writing if old enough but speech impaired) involved in family law disputes are consulted (without parental interference) by specialist child counselors/psychologists, during a relaxed setting such as art play therapy, as to their own feelings and wishes regarding future residence and parent contact decisions; and that each child's opinion is tape recorded, transcribed and taken into account in any court decision; and that such questions must be designed so as to not be leading, or fail the test of evidence;

A family's right to medical care of choice
(12) concerned parties must at all times be free to seek counseling and medical help for themselves and their families, including mental health care, from professionals of their own choice as well as those suggested by the Family Court of Australia, and they must be free to nominate the gender of any health professionals who deal with themselves or their children either privately or in the family law system. Evidence from such personally-chosen experts must be admissible evidence alongside any offered by other experts;


Training
(13) all professionals responding to family separation in the Australian legal system including mental health professionals, mediators, judges and legal experts in the field advising/representing clients, must receive continuing, accredited training in child development, FV and child abuse. This should include past and recent research findings, contemporary legal definitions and best practice recovery;


Review
(14) checks and balances are put in place to review all court-registered child custody and contact orders remain safe over time; and


Freedom of movement
(15) that principal care-givers should have first right of choice as to their place of residence, especially where family or special support, improved employment prospects and/or family violence and/or child abuse are factors; and that where residence is shared 50/50, then weight should be given to the support structures beyond employment offered by different locations, and to the equal rights of each parent to freedom of movement, and the option of the child travelling between parental homes within Australia should also be considered; and


Freedom of speech
(16) that 'blanket secrecy' laws be altered to allow more free speech and media and academic review regarding the Family Law Act, the Australian court system dealing with family law and police, DHS and DOCS practice and culture regarding care and custody of children.