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Family law judges’ training questioned
Family law judges need training in child psychology so they can better protect children from abusive parents, lobby groups say.
Family Law Act reforms, to take effect on Thursday, have been welcomed by the National Council for Children Post Separation and the National Child Protection Alliance as a step in the right direction.
But both groups say the reforms, which broaden the definitions of “family violence” and “abuse”, do not do enough for a system that does not put child safety as its top priority.
University of South Australia senior lecturer Elspeth McInnes, an expert adviser to both groups, says Australia’s family law system focuses on resolving family disputes between private citizens.
But the focus should be first and foremost on child protection, she says.
Dr McInnes says a major systemic flaw is the fact independent family lawyers who submit reports to the courts are not trained to deal with child abuse, child development or the dynamics of family violence.
Judges may be experts in law, but they are also inexperienced when it comes to how abuse and violence affect children on a psychological level, she says.
“Everybody who makes decisions about children’s lives needs to have a thorough and academic grounding in child development and trauma and abuse in families,” she told AAP.
One mother, who can’t be identified, said her daughter, now nine, has been left with severe learning difficulties after the court system refused to revoke her abusive father’s contact rights.
She said he had been convicted of child pornography possession and later jailed for indecent treatment of another child.
But despite evidence from doctors that her daughter was also being abused, the courts had still allowed her ex-partner visitation rights.
“They privilege contact over safety,” she told AAP.
“So where is it at now? Me trying to fix my child.”
The kids are not all right
Andrea Petrie and Michelle Griffin
August 17, 2011
Dr Caroline Counsel: “Any sort of caution that is taken by the courts to minimise harm to children has to be a good thing”.
Too often, children are the victims of warring parents. Now the federal government wants to expand the definition of child abuse to give them more protection.
A LITTLE boy is forced to visit a doctor and endure an anal examination for signs of sexual abuse. The humiliating ritual continues for months. He is just five years old, and is caught in the middle of his parents’ bitter custody battle over him.
His father insists the boy’s mother is abusing him, although there appears to be no basis for the accusation. A police report even suggests the claim is most likely fabricated to help the father’s bid for full custody.
In another family, two boys aged three and four are placed in their father’s care, despite the fact they try to masturbate, anally penetrate and have oral sex with one another, which they explain to their mother is a ”game we play with daddy”. A court later rules that she is discouraging their father from having a relationship with them, so they are placed in his custody.
Elsewhere, a desperate father exhausts most of his options to keep custody of his three young children from their mother, even though she is in jail for trying to kill him.
These are snapshots of the thousands of cases dealt with by family law courts in Australia. When a relationship breaks down, children can become the victims of warring parents preoccupied with their own welfare and desire to win custody. Cases like these have prompted widespread concerns that the safety of children is not always assured.
Now, Federal Parliament is considering a controversial proposal to make major changes to family law legislation that aim to create a fairer system and give priority to the safety of children.
If passed, the Family Law Legislation (Family Violence and Other Measures) Bill 2011 will expand the definition of family violence beyond violent behaviour. It will also take in threatening or other behaviour that ”coerces or controls” and causes children – or former partners – to be fearful. The new definition will include physical and sexual assault, stalking, repeated derogatory taunts, intentionally damaging property, deliberately causing death or injury to an animal, and unreasonably denying the family member the financial autonomy he or she would otherwise have.
The definition of child abuse will also be changed to include psychological damage caused by exposure to family violence. This includes a child seeing or hearing violence, or being present when police or paramedics attend an incident involving the assault of one family member by another.
The Senate standing committee on legal and constitutional affairs has conducted an inquiry into the proposed changes, and will present its report to the Senate tomorrow. The inquiry has received hundreds of submissions, many questioning whether the reforms go far enough.
Significantly, the difficulties created by the nation’s intersecting state and federal legal systems that deal with family violence have also been raised.
Child protection concerns, such as abuse and neglect, are dealt with by state and territory systems authorised to intervene when children are at risk of harm in their family’s care. But it is the federal family law system that determines which parent has custody.
The Gillard government introduced the amendment bill, believing sweeping changes were necessary to strengthen the current laws, and to rectify some of the deficiencies of the 2006 Howard government family law reforms of which the centrepiece was, where possible, shared parental responsibility.
The Family Law Amendment (Shared Parental Responsibility) Act 2006 specifies shared care as a minimum of 35 per cent of overnight time with each parent, or five nights or more per fortnight, or equivalent. Yet research by clinical child psychologist Dr Jennifer McIntosh and other experts now suggests that constant disruption and lack of stability for children younger than four – regardless of socio-economic background, parenting or inter-parental co-operation – may be causing them psychological harm.
Charles Pragnell, from the National Council for Children Post-Separation, describes the 2006 Howard reforms as ”seriously flawed”. He believes they are solely concerned with parents’ rights and give no consideration to the needs, wishes and rights of the children caught in the middle.
Pragnell says it is ”virtually impossible” to prove family violence and child abuse. ”Firstly, because domestic violence is given a very narrow definition within the family law compared to what research has now shown to involve a variety of forms of abuse, such as emotional abuse, financial abuse, psychological abuse,” he says.
Second, federal family courts do not have the powers, expertise and resources to investigate allegations of domestic violence and child abuse, nor do they have the power to order state and territory child protection authorities to carry out such investigations.
”Even so, there are a small number of occasions where the state child protection authorities have intervened and have found the allegations substantiated, but such substantiations have frequently been disregarded by Family Court judges, who see the right to shared care as the principle overriding consideration.”
Pragnell says in allegations of child sexual abuse, the federal courts that deal with family matters use what is termed the Briginshaw principle to determine the standard of proof. The principle dates back to a case in England in 1938 in which the allegation of sexual abuse of an adult was viewed as being of such gravity that the usual standard of proof of a ”balance of probabilities” should be at the extreme end of the scale.
”This means Family Court judges are giving contact with and even custody of children to convicted paedophiles, child sex abusers, and violent offenders,” he says.
This also means that often parents who raised allegations against another have been viewed by the Family Court as being ”implacably hostile” towards the other parent or alienating them. In many circumstances, children have been removed from the parent trying to protect them, and placed in the sole care of the alleged but unproven abuser.
”Often the protective parent is given no contact. When protective parents raise allegations of abuse, the counter-claim is that they are deluded and certain psychiatrists or psychologists are prepared to support such counter-allegations in the courts. So the whole scenario turns against the parent making the allegations, which they have no hope of proving.”
Pragnell, who has almost 40 years’ experience working as a social worker with children and young people, says one only has to consider the highly publicised murders of children involved in custody disputes in Victoria in recent years to know that more far-reaching reforms are urgently needed to protect those caught in the middle.
Jai, Tyler and Bailey Farquharson – aged 10, 7 and 2 – were murdered by their father Robert on Father’s Day in 2005 when he drove his car into a seven-metre-deep dam near Winchelsea to get back at their mother, who had formed a relationship with another man. Robert Farquharson is serving a life sentence with a minimum of 33 years.
In another tragic case, Darcey Freeman was four when her father Arthur Phillip Freeman threw her 58 metres to her death from Melbourne’s West Gate Bridge in 2009. It was supposed to be her first day of school. He was sentenced to life with a 32-year minimum for a crime the sentencing judge said was aimed at hurting his former wife ”as profoundly as possible”.
And last November, Ramazan Acar fatally stabbed his two-year-old daughter, Yazmina Micheline Acar, after an intervention order was put in place to protect her mother, which prevented him from seeing Yazmina for several months. He is serving life with a 33-year minimum.
But Caroline Counsel, a family law expert and president of the Law Institute of Victoria, says ”you can’t legislate lunacy out of the picture”.
”If people are going to act badly, impulsively and out of anger, no legislation is going to stop them. We as a society raise people and educate people about what we find acceptable and unacceptable behaviour, so I think it’s ill-conceived to think you can come up with legislation that will stop all bad behaviours forever,” she says.
”It’s cradle-to-grave training, it’s cradle-to-grave behaviours that need to be looked at and reviewed and scrutinised by us all. But having said that, any piece of legislation and any thought process that is going to make parents think about what their children need and what their children can be exposed to, and any sort of caution that is taken by the courts to minimise harm to children, has to be a good thing.”
Dr Lesley Laing, author of No Way To Live, a 2010 report on family violence victims in the Family Court, says the proposed changes would remove some of the barriers that have stopped parents from raising concerns about their children’s safety.
”But there is still an urgent need for better resources in the family law system so that allegations of violence and abuse can be thoroughly assessed,” she says.
Laing says expanding the definition of family violence and removing the so-called ”friendly parent provision” – which requires a court to look at the willingness of each parent to encourage a close and continuing relationship between the child and the other parent after separation – will allow the extent of family violence to come to light in court proceedings.
But she says the amendment bill fails to address other key concerns with the Family Law Act, such as the contentious presumption of equal shared parental responsibility, or the requirement that courts must consider making orders for children to spend equal or substantial time with both parents.
”This means that where violence has led to the separation, and the allegations are not believed or acted upon by the Family Court, there is still a risk of ongoing exposure to domestic violence. A further amendment which would significantly reduce risks to children would be to elevate as the single primary and paramount consideration ‘the child being protected from physical or psychological harm from or being subjected to, or exposed to abuse, neglect or family violence’.”
Child protection campaigner Emeritus Professor Freda Briggs says even with the proposed reforms, judges will still take advice from lawyers about what is in a child’s best interests. ”They’re not experts in anything to do with childhood,” she says. ”It can never be in a child’s best interest to be handed over to a convicted child sex offender, but we’ve seen this happen a number of times.”
Tears stain the cheeks of a distraught mother involved in a current custody dispute, as she details the years of torment and emotional abuse she has endured at the hands of her former partner, with whom she has a child.
He has made repeated threats that she will ”regret” walking out on him and taking their child. She fears, as do those around her, that his behaviour is getting worse.
”No one can understand what it’s like to wonder whether the next time you drop off your child will be the last time you see them alive,” she says. ”I left the relationship for very good reasons but he is determined to take this as far as he can to get what he wants. If he doesn’t succeed, he will take his revenge.”
If the reforms can save another innocent life from being lost, she says they must be passed urgently.
”The nation was outraged at the way our live [cattle] exports were being treated, yet our own children are dying and being put at risk. Something more needs to be done as soon as possible.”
Family law changes to tighten child protection
Adele Horin, November 2010
CHILDREN caught in violent family break-ups would be better protected under proposed changes to the Family Law Act.
But the proposals leave in place the presumption of equal shared parenting responsibility and the obligation to consider equal time with each parent, measures some critics wanted removed.
The mooted amendments were released yesterday by the federal Attorney-General, Robert McClelland, in response to several reports commissioned by the government on aspects of family law.
”The reports illustrate that the family law system has some way to go in effectively responding to issues relating to family violence,” Mr McClelland said.
The draft Family Law Amendment (Family Violence) Bill is explained in a consultation paper that invites public submissions.
Under the proposals, family law courts would give greater weight to the protection of children from family violence above the benefit of having a meaningful relationship with both parents.
Protection from harm and a meaningful relationship with both parents are known as the twin pillars of the family law act, but the apparent equal weighting given to each consideration has attracted criticism.
Mothers’ groups have argued that children have been forced to spend time with violent fathers, or even fathers who have been jailed for sex offences, because of the emphasis on children retaining a meaningful relationship with both parents.
The draft bill proposes a new definition of family violence that includes physical assault, harassment, emotional manipulation, financial abuse and threatening behaviour.
It also proposes a wider definition of abuse of a child.
The Attorney-General did not accept the radical change proposed by a former Family Court judge, Richard Chisholm, to allow judges to consider only what was in the best interest of the child. His report said current law ”nudged” judges towards the prescribed outcomes of awarding parents shared responsibility for major decisions, and of having to consider children spending equal time with each parent.
Other recommendations adopted in the draft bill include the deletion of the ”friendly” parent provision, which obliged judges to have regard to whether a parent encouraged the child’s relationship with the other parent. Some parents were afraid to raise claims of violence in case they were considered ”unfriendly” parents.
Under the draft, parents would no longer have cost orders made against them for making false allegations or statements. This provision deterred parents from raising truthful claims in case the court did not believe them.
Another significant change would be greater responsibility on lawyers and other advisers to encourage parents to prioritise protection of children.
Currently, they have an obligation to encourage shared parental responsibility.
A surprise is the mooted inclusion of the UN Convention on the Rights of the Child as a new object of the act.
Courts discourage women to speak of abuse
Lawyers Weekly Magazine
Posted Jun 24 2010, 10:40 PM by Lawyers Weekly
The report; No way to live: Women’s experiences of negotiating the family law system in the context of domestic violence, was launched yesterday at NSW Parliament House by the Minister for Women, Jodi McKay.
Dr Lesley Laing, a senior in the faculty of education and social work at Sydney University, interviewed 22 women at various stages of the family law process following a relationship separation in which they had experienced domestic violence. All but one of these women reported direct abuse of their children from ex-partners.
The report said that women “lived with fear” that they could be punished by losing the care of their children if they were seen to be challenging the inevitability of an ongoing relationship between ex-partners and children. It also found that women and their children subject to violence are often accused of fabricating their claims.
Laing concluded that the family law process was characterised by being a complex and uncoordinated system that was marked by delays and barriers to accessing accurate information.
The women who participated in the study reported that their claims of abuse were often viewed as “fabrications” within the family law system and the wider domestic violence and child protection service.
One woman reported that the Family Court had ordered the father of her children could see their children under the supervision of his parents, despite an Apprehended Violence Order [AVO] being taken out against him. That meant he was able to turn up to the house with his parents to collect his children as AVOs are lifted for Family Court orders.
Another woman said that in the Family Court, it was stressed that the father has rights to see his children, despite her telling the Court that “he’s knocked me to the ground with a baby in my arms… and he’s been charged and found guilty of assault.”
The report backed the Family Law Council’s recommendation that the definition of family violence in the legislation be amended to include a broader range of threatening and controlling behaviours. It also recommends that all professionals and services which play a role in the family law system receive ongoing and comprehensive training in understanding and responding to domestic violence.
Shared babies at risk of anxiety
July 8, 2010
Children under four in shared care arrangements with separated parents are doing less well than other children on a range of developmental measures, new research shows.
Infants under two who spend one night a week or more away from their primary carer show significantly more signs of irritability and separation anxiety, are more fretful, tearful and difficult to soothe than other babies, it also shows.
And young children aged two to three are even more profoundly affected if they spend five nights or more a fortnight away from the primary carer – the legal definition of shared care. They have higher anxiety levels than other children, more eating disturbances and aggressive behaviour.
They show less persistence in tasks, and more problematic behaviour such as crying or hanging on to the main carer.
The research, commissioned by the federal Attorney-General, Robert McClelland, is part of a series that has cast doubt on aspects of the 2006 family law changes that put greater emphasis on shared parenting.
The lead author, Jennifer McIntosh, an associate professor in psychology at La Trobe University, has called for shared care to no longer be the starting point for discussions about post-separation parenting arrangements for very young children.
”The negative impact on the emotional and behavioural functioning of this age group is significant,” she said.
The study is drawn from the Longitudinal Study of Australian Children sample with more than 10,000 children aged under four, but the numbers of pre-school children who spend some nights a fortnight away from the main carer numbered in the hundreds.
It showed that regular overnight stays were associated with developmental risks. However, children aged four to five showed no ill effects.
Dr McIntosh said: ”We don’t want to give the impression that overnight care is an absolute no-no for children under four. If an occasional overnight stay makes the primary carer a better parent it’s probably a good thing.”
But regular overnight care could interfere with infants’ attachment to the primary carer which was needed for development