"Joint" or "shared" custody as mandatory social policy has been around in Australia for four years now--and the results have been disastrous. It's time we learned from the mistakes of others, instead of repeating the same errors again and again. Great post by Charles Pragnell at Australia's On Line Opinion.
Towards Better Outcomes for Children
By Charles Pragnell - posted Thursday, 2 December 2010
The Family Law (Shared Parenting) Act 2006 was a retrograde and regressive step back in the history of family law as it returned to Victorian attitudes that children were mere "Goods and Chattels" of parents and they were possessions to be divided up along with the other parental assets such as house, cars, furnishings, monies etc when a couple separated.
Children were to be "shared out" either by parental agreement or by a Court on an equal or on a percentage time basis and which took no account of children's physical, emotional, educational, or social needs.
Children were given little, if any, say in decision-making processes affecting their lives. Although they are ostensibly represented in the proceedings by an Independent Children's Lawyer [ICL], anecdotal evidence demonstrates that children have sometimes not been seen and talked to by the ICL, or if they did, that their views were simply dismissed and not presented to the Courts.
Rarely are children's wishes and feelings presented directly to the Family Courts. In such circumstances, some children have gone as far as to prepare their own affidavits representing their own views directly to the Court, only to have such affidavits summarily dismissed by Judges as irrelevant to proceedings. Other children have sought to instruct a lawyer of their own choosing but such moves have been quickly negated by the interventions of the ICLs.
If children have protested that they had been abused by a parent they have not been believed as a counter claim is made by the accused parent that the other parent has "coached" them into such allegations, or has otherwise "alienated" them against the accused parent.
For many years a fake theory of Parental Alienation Syndrome was used in Family Courts to support such an assertion but eventually this has been exposed as having no basis in scientifically conducted research and was in fact a promotion by a psychologist with sympathies towards paedophile behaviours.
The question of self-induced alienation by parents has never been explored by Family Courts, where children have well-founded reasons for not liking a parent because of that parent's behaviours and attitudes towards them and therefore the children opposed living with or having contact with that parent and were forced into such arrangements against their will.
If they have refused or protested, they have been manhandled by police and forced into returning to the parent they detest and the other parent blamed for inciting them to resist returning to the other parent.
Yes children can lie on occasions to get the best outcomes for themselves, just as adults do and some adults have been prepared to perjure themselves to Family Reporters and ICLs and even to Courts, to obtain the most favourable outcomes for themselves. Children are not as easy to manipulate as some parental rights enthusiasts claim, as any parent who has argued with a determined three year old whether to buy a bar of chocolate in a supermarket, would testify.
Clearly the Family Law (Shared Parenting) Act has not been in the interests of children either in its content or its interpretations by Family Courts and in many instances there has been evidence of adultism (the failure to respect and uphold children's rights) and in some occasions there have been clear violations of children's rights under International Conventions to which this country is a signatory.
There is now a great deal of research evidence that children suffer abuse during instances of domestic violence and it is very welcome to see in the proposed legislative amendments that this is recognised and that much greater attention will be given to taking into account such instances in future Family Law proceedings.
However, there have been clear statements by the Chief Justice Diane Bryant in the recent past that Family Courts do not have the expertise nor the resources to thoroughly and competently investigate allegations of domestic violence and child abuse, and State child protection authorities with the necessary expertise and resources have been extremely reluctant to engage in investigating such allegations when they are made to Family Courts.
In consequence, Family Courts have therefore frequently disregarded such allegations and have even punished the parents making such allegations by claiming they were "unfriendly" toward shared care or "implacably hostile" to any contact of the other parent with the child.
On some occasions when this has happened, the protective parent has absconded interstate or even overseas, to protect their child from what they reasonably believe is an abusive parent, but have been severely punished for doing so by the Courts with draconian measures such as heavy fines, orders to pay full Court costs, and even imprisonment. In effect the protective parents have been punished for the inadequacies of the law and the Family Courts.
Too little attention has been given in the existing Family Law and by the Courts in establishing whether a parent has an existing "meaningful relationship" with a child and whether a parent has actively engaged in the child's emotional, physical, social, and educational development prior to the parental separation which are the core elements of good parenting, and merely the participation of an adult in the conception of a child has been accepted and upheld by Courts as qualifying an adult as a "parent".
By placing the safety and protection of children as of paramount importance in matters of the custody and contact of those children with parents, it is to be hoped that the proposed amendments to the Family Law Act will close this gap between the Federal Law and State duties to protect children from harm and exploitation. It is also to be hoped that children's rights to have their views taken seriously into account in decisions affecting their lives is given a high priority by the Courts and become accepted good practice by Courts.