National Council for Children Post-Separation
20 September 2010
DEMAND FOR A IMPLEMENTATION OF FAMILY LAW CHANGES
The recent case of Andrew Stratton/Thompson has highlighted many of the injustices and iniquities which are occurring almost daily in the Family Courts of Australia and are resulting in severe pain, distress, and severe emotional trauma for many hundreds of Australian children and their parents. Such children will suffer lifetime damage to their mental health and wellbeing as a direct consequence.
Andrew Stratton’s mother, Melinda fled from Australia with her son because she believed he had been sexually abused by his father, Ken Thompson. Claims were denied by Thompson and he made a counterclaim that Melinda Stratton was mentally ill and dangerous. Such matters had not been thoroughly and competently investigated and examined by the Family Court, which thereby left both parties dissatisfied and Andrew at potential risk of harm from both parents.
Such situations are arising almost daily in the Family Courts of Australia because as Chief Justice Diane Bryant has admitted, the Family Courts do not have the expertise or the resources to investigate allegations of child abuse and domestic violence, and they do not have the powers to require the interventions of the State Child Protection Authorities. In effect justice is being denied to children and parents by the inadequacies and confusions of the Federal and State systems for the protection of children and determinations regarding their future care. In consideration of these deficiencies in the Family Courts, the case of Andrew Stratton should be referred to the High Court for determination, when the matter is referred back to the Australian Courts.
It is becoming increasingly alarming that over a third of mothers appearing in Family Courts are being labelled as mentally ill, although in the vast majority of cases there has been no full psychiatric assessment in accordance with professional standards of practice. Research has shown that 25% of mothers suffer physical and sexual assault by a current or former partner and this results in depressions, post traumatic stress disorder, chronic anxiety, insomnia, alcohol and substance abuse, and suicide attempts. The psychiatric model of diagnosis and treatment of such conditions is reported to be a barrier to enquiry and disclosure of the abuse. Similarly claims of child abuse are not being thoroughly and competently investigated by professionals trained and legally mandated to undertake such investigations.
In effect claims of domestic violence and child abuse and counter-claims of mental illness by parents are constant features of the legal tactics and ploys which are used when they are thrown into an adversarial contest in the Family Courts. Parents are not receiving fair and just investigation of their claims and are thereby being denied justice, with the resultant exposure of children to extreme risks of abuse and even death, as has been seen on too many occasions in the recent past.
The principle of `Shared Parenting’ on which the current law is based, has a superficial appeal, but has led to `Time-Share’ and `Ping Pong’ children and has given licence to some parents to use those provisions merely as a means of avoiding child maintenance, to continue to harass and abuse their former partner from resentment for being rejected, and to continue their abuse of their children. Parents who have never had a `meaningful relationship’ with their children and have never taken an interest in their care and welfare, are able to use the provisions to serve these ends.
With over 40% of marriages and de facto relationships ending in separation and divorce, t many thousands of children are now affected by the seriously defective provisions of the Family Law and the decisions of the Australian Family Courts, and as a direct consequence, many of these children will be exposed to and suffer abuse, exploitation, and even death.
These defects and deficiencies in the Family Law and its implementation in the Family Courts, have been brought to the attention of the Commonwealth government in a number of independent reviews commissioned by the government. The NCCPS is calling on the government to take immediate action on those reviews and their recommendations. In particular the Family Law must be re-written to be child centred and make the Needs, Wishes, and Rights of Children of paramount importance. Australia has a duty to ensure its children are protected from abuse and exploitation but the current Family Law is condoning, colluding in, and contributing to, the abuse and exploitation of its children.
Australia’s children, as highlighted in the case of Andrew Stratton, have the right to be protected from abuse and exploitation and their future health and wellbeing must be ensured. Australia can no longer tolerate the defects and deficiencies of the Family Law and the Family Courts.