National Council for Children Post-Separation
Family Law Amendments Welcomed by Children’s Rights Group
26 March 2011
The National Council for Children Post-Separation (NCCPS) has welcomed Family Law Reform announcement by the Attorney-General which will see new family law legislation that will give higher priority to children’s safety over their involvement with both parents after separation.
Hundreds of children have been subjected to all forms of abuse and even death as a direct consequence of the Family Law (Shared Parenting) Act 2006. The tragic death of Darcey Freeman was one such case where, despite death threats involving all three children, the mother was persuaded to agree to shared parenting because of the risk that she would be labelled as bad or mad by the Family Court and lose residence of her children.
Researcher Dr Elspeth McInnes, an expert on child abuse states, “I have personal knowledge of cases where children have been placed in the custody of convicted paedophiles and child sex abusers by court decisions in the Family Law system their sufferings in such circumstances are unimaginable. The emotional traumas they suffer will be severe and damaging to their lives for many years to come.”
The amendments to the Family Law Act 1975 can greatly benefit many thousands of children in Australia, whose care is determined by family law courts after parents separate. The amendments will fully recognise the Rights of Children under the United Nations Convention which was ratified by the Australian government in 1991.
In particular, the new law will establish the rights of children to be protected from abuse and exploitation, and to have a say in decisions affecting their lives.
Child Protection Specialist Adviser Charles Pragnell states, “Under the current Shared Parenting law children are treated as little more than parental possessions as they were under 19th Century laws, whereby parents have absolute right over their children regardless of whether a parent is toxic and dangerous to the welfare of their children It is inhumane, uncivilised, and unconscionable that so many children are being ordered into contact with and even the custody of abusive parents and de facto parents under the Shared Parenting law. To add the appendage that such decisions are `In the Best Interests of the Child’ is completely lacking in credibility and, at best, suggests very serious ignorance of child development and child abuse.”
The 2006 Shared Parenting changes to the law placed parental rights as paramount and determines that children should be shared between the parents ‘where practicable.’ Children’s opposition to such arrangements is frequently ignored and disregarded. This law has been greatly to the disadvantage of children and the most recent research shows that 50% of children are unhappy with such arrangements and do not feel safe.
Sharing children in this way has also meant that children have been shuttled between homes on a week-about basis living out of suitcases, and becoming little more than time-Share children and `Ping-Pongs’ with no stable life, and living out of suitcases. Others have been forced to be uprooted and to relocate many thousands of miles from their familiar schools and neighbourhoods and extended families, because a parent has chosen to move interstate for work and has insisted on the right to have regular contact with the child. A pre-school child was forced to fly to the Middle East from Sydney every month although the judge readily acknowledged the considerable distress that would be caused to this child.
Although the presumption of Shared Parenting is rebuttable if domestic violence and child abuse can be proved, in practice it has been virtually impossible for such allegations to be proved in family law courts. Chief Justice Diane Bryant has declared that the Family Court does not have a role or investigatory powers where allegations of child abuse and domestic violence are made to the Court. State child protection authorities have refused to be involved in such cases, despite their duties to protect children under State laws. The test of evidence (Briginshaw & Briginshaw) in matters of child abuse and domestic violence in family law has placed the standard of proof at the extreme end of the scale of balance of probabilities. Family Consultants appointed by Courts to give opinions on domestic violence and child abuse, have not had the necessary training, study, knowledge, and experience in such fields.
One of the most serious consequences of this failure of the Family Courts to investigate allegations of child abuse and domestic violence has been that some parents have been forced to flee interstate and abroad in order to protect their children from what they believe to be an abusive parent. When they have been discovered several parents have been imprisoned, heavily fined, and their children removed into the custody of the alleged abuser. One such mother has been held in prison now for 197 days and faces a 13 year prison sentence, solely for leaving the Court’s jurisdiction to protect her child.
The Howard amendment of 2006 made it difficult for women to make allegations of domestic violence in custody disputes because they could be branded an unfriendly parent, increasing the chances of shared care being ordered and even for her children to be taken from her. The changes will make it easier for parents to produce evidence of violence in cases where parents are in dispute over contact arrangements.
The NCCPS believes these amendments will hopefully do a great deal to improve the situation for many hundreds of children and protect them from abuse and exploitation, as is their right.