National Council for Children Post-Separation
Reforms Not Enough to Put Children First
8 July 2011
A recent spate of violence reported in the media where children have been harmed or murdered in a revenge killing by a parent is proof that the current Family Law legislation and processes are failing to protect children. Those who died in recent years as a result of revenge killings by fathers were killed during contact visits, many of which were Court ordered.
While, the Family Law Legislation Amendment (Family Violence and Other Measures) Bill 2011 currently before parliament recognises this inadequacy to protect victims of family violence it will not go far enough to protect children. This controlling and violent behaviour which is behind these homicides is ignored in the family law courts where violence against a spouse is not seen as a threat or violence against a child.
Studies of domestic violence such as Women’s Safety Australia 1996 have found that domestic violence has reached epidemic proportions, and is to be found countrywide in all socio-economic classes and subcultures. The study states; “59 per cent of women who experienced violence by a previous partner were pregnant at the time; 61 per cent of people who experienced violence by a previous partner cared for children at the time; and 36 per cent said the children had witnessed the violence.” There is ample research evidence that witnessing physical violence has the same damaging effects on children’s development as if they were themselves the recipients. It constitutes child abuse.
The National Council for Children Post-Separation (NCCPS) strongly supports the proposed amendments which are currently under review by a Senate Committee; however much more far-reaching reforms are urgently required to the Family Law and its administration in order to make an impact on children’s safety.
One of the proposed reforms by the NCCPS is that matters regarding the care and welfare of children (including who should be their primary caregiver) should be determined by a Tribunal of Inquiry with a panel of experts in child development and child protection, aided by legal counsel. Children should have the right of appeal to such a tribunal, appointing their own independent advocate, if they are dissatisfied with their care arrangements.
Further reforms needed include:
- The U.N. Convention on the Rights of Children and Young People and ratified by Australia in 1991, must be embodied in Federal Law. Ideally by a separate Act of Parliament of `The Human Rights of Children’ and into all other laws relating to children;
- The “Family Law’ must be completely overhauled and become `Child-Centred’ in its principles and application, giving primacy to the rights of children to be protected from harm and exploitations, and to have a direct say in matters regarding their future care and welfare;
- Whilst the ideation of `Shared Parenting’ has appeal as a right of parents, it has resulted in children being shuttled between two households on a week-about/ month about basis, living out of suitcases, and which completely undermines their basic needs for constancy and consistency of care, safety and security, and their sense of belonging, self-worth, and of self-identity. A `Shared Parenting’ arrangement must always be in consideration of the Needs, Wishes, and Rights of the Child or Young Person and should be demonstrably and measurably to their benefit;
- Child Protection laws must be amalgamated into a single Federal Law, administered and implemented by the States and Territories. Currently each State has its own laws which have notable differences of meaning and intent, and different definitions of what constitutes child abuse. Such a position is untenable whereby the investigation of child abuse is a matter of geography and with no uniformity of practices.
The Chief Justice and her predecessor have been at pains to point out that the Family Court of Australia is not equipped to handle allegations of child abuse; however, judges may only “request” and cannot order child protection services to investigate cases and in South Australia alone it has recently been reported that the Family Court sought state child protection services’ assistance no fewer than 44 times when it was refused. We do not know what happened to the children involved.
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 their alleged abuser.
In the Wood v Wood case, the children were placed in foster care and an institution for 3 years before being returned to their mother. By that time, psychiatrists confirmed that they were mentally ill and damaged, possibly for life. In the case of Winstanley v Jones, the child was forced by three female and one male Family Court judge to spend nine years as the carer of her convicted child sex offending father who had AIDS. More than forty reports of child abuse were ignored. Last week she attempted suicide and is currently in hospital.
The NCCPS believes that reforms shouldn’t stop with the current review and there’s a great deal more work to improve the situation for children and to protect them from abuse and exploitation, as is their right.