National Council for Children Post-Separation
Friday, July 24, 2009
We applaud Attorney-General Robert McClelland and other concerned politicians for backing inquiry-based changes to the critically dangerous Family Law Act and the system surrounding it. Currently this system is a real wrecking ball for many damaged children and their protective parents, in particular, as they try to reestablish themselves after the breakdown of abusive relationships.
We hope the conductor of this review, ex-Family Court judge Richard Chisholm, recommends a thorough overhaul, and that the new approach will place the safety and wellbeing of children – based on wide-ranging expert research – as the sole first consideration.
We also definitely need an updated, broader definition of family and domestic violence, such as that used in Victoria’s excellent Family Violence Protection Act 2008, http://www.justice.vic.gov.au/wps/wcm/connect/DOJ+Internet/Home/Crime/Family+Violence , which has been lauded by child protection experts. This includes such elements as threats and harm done to extended family members, financial abuse and many other widely-recognised syndromes.
There is currently serious ineptitude in judges and court-appointed, so-called “experts” in dealing with matters of child sexual abuse, child development and the insidious, escalating nature of famsily violence. Such “experts” – often in fact specialising outside these areas – are also seriously compromised by being in the employ of an inadequate system that preferences shared care over safety, regularly failing children and ruining lives. Ongoing training for judges and court experts, plus more flexibility for families in choice of expert, can address these issues.
The waking nightmare of many children and protective parents continues to be that if that parent raises sexual abuse or violence in child custody disputes, in many cases the child is removed from its primary carer as that protective parent is either accused of raising false allegations or ‘not promoting a meaningful relationship with the other parent’. With this threat, many primary carers are forced into agreeing to dangerous contact or shared care for fear of losing residency or custody of their child. It sounds too bizarre to believe, but kids are taken off protective parents every day and have been for many years. The law is so insistent on shared care being the be-all and end-all of child welfare that it has lawyers making parents sign letters stating they know they risk losing custody if they even mention abuse. Such allegations are then comfortably (for the legal system, at least) shoveled back under the carpet.
However, studies prove that the large majority of allegations of violence and abuse are based in fact (and the majority of false allegations are made by fathers, regarding neglect). We need to recognise that and follow the New Zealand pattern where contact is not allowed until the alleged offender can prove his or her safety, and to use a more “on the balance of evidence likely to be occurring” form of acceptance of evidence in child welfare matters, as child abuse is often the child’s word against the perpetrator’s, being hard to prove in a criminal sense.
The NCCPS has set up an Expert Advisory Panel which includes child protection expert Charles Pragnell, child expert Barbara Holborow, domestic violence and child safety Expert Tracy Howe LLB, and child development expert Elspeth McInnes.