FAMILY LAW

Australia’s Children are suffering abuse and neglect because of conflicts and confusions between Federal law and State laws and the failings in their implementation by the respective Family Courts, Child Protection agencies, and Court officers.

This is an Open Letter to the Police Ministers of Australia’s States and Territories, the Attorneys General of those States and Territories, the Federal Attorney General, and Australia’s Chief Justice Diane Bryant on behalf of the many hundreds of children who are suffering continuing abuse, and even death as a consequence of this national scandal.

Dear Sir/Madam,

CHILD PROTECTION SERVICES IN AUSTRALIA’S STATES and TERRITORIES)

We are writing to you to express our deep concern regarding the numbers of children who are being abused, and some even killed, as a direct consequence of determinations in the Family Courts and the failings of Child Protection Services concerning their care after parental separation. Determinations are being made in the Family Courts regarding the care and custody of children where there are allegations of domestic violence (inherently involving child abuse) and direct abuse of children. When such allegations are made, the following is occurring;

a) They are not being reported to the Statutory Authorities by professionals engaged in the Family Law system (Court Reporters/ Independent Children’s Lawyers/ Court Experts such as psychiatrists and psychologists etc) although it is their MANDATORY duty to do so under State laws. In many cases such professionals are contaminating and corrupting the evidence which would be necessary if the police and statutory agencies were to investigate the allegations. Such professionals, e.g. lawyers, psychiatrists, psychologists, Court Reporters etc, do not have the expertise from experience, study and knowledge of child protection investigations (as is required in Expert Testimony to Courts) nor the legal authority to investigate reports of child abuse. Yet such professionals and Court officials are giving opinions to Courts regarding allegations of domestic violence and child abuse and are making recommendations to Family Courts regarding the subsequent determinations in respect of the care and custody of children ; and

b) In the exceptional instances that such abuses are reported to the Statutory authorities, they are refusing to undertake investigations into the allegations of child abuse as they claim it is a matter for the Family Courts and the Family Law supercedes the State laws on child abuse. Yet the Family Courts do not have the resources nor the expertise to investigate such allegations of child abuse.

Chief Justice Diane Bryant has stated (Brisbane June 2006) that :

“Australian] family courts are not forensic bodies. They do not have an independent investigatory capacity or role when violence or abuse is alleged … Family courts are reliant upon other agencies, particularly child welfare departments and police, to undertake investigations into matters that may be relevant to the proceedings before it. And although the Court can make directions as to the filing of material and can issue subpoenas compelling the production of documents, it cannot order state agencies to undertake inquiries into particular matters. It is hardly an ideal situation but in the absence of the Commonwealth assuming responsibility for child protection from the states, that will continue to be the reality.”

c) Where custody and contact decisions are made by Family Courts there are many instances where child abuse is continuing during custody or contact arrangements. Children frequently disclose and complain that they are being abused during such custody or contact. On such occasions this is reported to the statutory authorities by a protective parent, by school teachers, doctors etc. As a consequence the statutory agencies sometimes investigate and then advise the protective parent to stop any further contact of the child with the abusive parent or they will be charged with failing to protect the child. This places the protective parent in an invidious position, and when the protective parent stops contact the matter is then taken back to the Family Court and the children are invariably placed in the custody of the alleged abuser;

d) There are an increasing number of cases where children are complaining that they have been sexually abused and there have rectal injuries, indicating anal penetration, yet such complaints are being dealt with by police officers examining the injuries and interviewing the child in an inappropriate manner (e.g. in the back of a police car) and with no regard for the investigative procedures within the State laws and regulations governing such investigations;

e) Where mothers report their children’s disclosures and complaints of abuse to Family Courts, it is becoming common practice for them to be labelled as `Mentally Ill and Delusory’ (one-third of mothers putting forward such evidence have been labelled as such) by Court officials who are not rained nor qualified to make such medical diagnoses, yet this is being permitted as part of the proceedings. Even where mothers are ordered to have a psychiatric assessment this is often conducted in a cursory manner often on the basis of a one-hour clinical interview. It is highly alarming that any individual in our society can be declared as mentally ill in such a manner with all the stigma and discriminations attached to such a label.

In short, the failings of the Family Law (Shared Parenting) Act 2006 and the respective State Child Protection legislation to act in concert with each other, and the failings of the Family Court administrators and judicial officers to work together with the State Child Protection authorities are proving to be a major contributor to the continuing physical, emotional, and sexual abuse and the neglect of children, and the deaths of some children. We have several examples of case histories of children and parents where the above situations have occurred and would be pleased to place these as evidence. The identities of the parties cannot of course be disclosed because of the secrecy under which Family Courts operate under Section 121 of the Family Law Act, but individual children and parents would be prepared to give direct evidence providing their identities were preserved. We ask you Minister to appoint a Full Formal Inquiry into these matters at the earliest possible opportunity, so that the children of this Australia and this State can be afforded the safety and protection of the law and its servants, as is their right under International Convention, State laws, and moral adult responsibility

Yours sincerely,

On behalf of the National Council for Children Post Separation
Charles Pragnell – Child Protection systems adviser and Advocate for Children

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