Monday, August 17, 2015

Family Court in crisis: Children need more say in custody disputes (Australia)

This and similar articles have been published for decades now. Yet very little changes.

Family Court in crisis: Child protection advocates call for children to have more say in custody disputes

August 8, 2015 10:00am 

LIA HARRIS The Sunday Telegraph

IT IS the claims by a teenage girl that highlights the dilemma faced by the Family Court when deciding who should get custody of the children: “Why am I not allowed to help ­decide what happens to me?”

The heartbreaking allegations contained in a letter from the 14-year-old who has been on the run with her brother and mother for the past nine months after her parents were awarded joint custody, tells how she is terrified of her allegedly abusive father and fears she might be “the next Luke Batty”.

After alleging how her father assaulted her brother and held a knife to her mother’s throat, she begs: “At what point do I become old enough to have a voice? At what point will those with the power choose to let me be heard? The courts won’t hear me. How is this fair? I want to be heard, to be understood and acknowledged.”

Just hours after the letter was written last week, police finally caught up with the trio and the mother was arrested only days before they planned to flee the country.

The letter comes as leading child protection and domestic violence advocates call for Family Court procedures to be overhauled to allow children caught up in family disputes to have more of a say in what happens to them.

They claim that in most cases the wishes of the children are not being taken into account by judges.

Instead, children are only ­appointed an independent children’s lawyer by Legal Aid when the case is considered to ­involve a high amount of conflict, or are interviewed by a court reporter who presents a family report to the court.

Victims of Crime Assistance League chief executive Robyn Cotterell-Jones said the children were often misrepresented or not heard at all during custody battles.

Robyn Cotterell-Jones, of Victims of Crime Assistance League of NSW, said children don’t get a big say when it comes to custody issues.

Although many children were appointed an independent children’s lawyer, she said they often spent very little time with the child and did not reflect their views in court.

“They don’t get much of a say at all and when they do say something, they don’t get heard,” Ms Cotterell-Jones said.

“There are all these kids out there being put at risk because the courts believe the mother is just being vindictive. The independent children’s lawyers often don’t even speak to the children or don’t represent their views accurately.

“They’re prioritising access to the father over the safety of the children and the system needs to change.”

Bravehearts founder and CEO Hetty Johnston said her not-for-profit child protection organisation was “aware of many instances where deficiencies in the Family Court practices, policies and procedures have resulted in children being assaulted and placed at serious risk of sexual harm”.

As a result, Bravehearts recently funded an inquiry called Abbey’s Project to uncover and reflect the experiences, testimony and outcomes for families and other stakeholders in their dealings with the Family Court.

“Every week in Australia, the Family Court orders children into contact with, and even into the custody of, parents who are dangerous, toxic and abusive because the Family Court does not have the powers, expertise and resources to competently investigate allegations of child abuse,” Ms Johnston said.

“Whether it’s child sexual assault, domestic violence, or both, the fact is there is no public accountability or transparency around matters dealt with by the Family Court. That is a combination that is always dangerous in any situation and in any organisation, including our judicial system.

“We are seeing far too many poor outcomes due to a combination of failures that culminate at the exit door of the Family Court.

“Too often children are not being heard and their testimonies disregarded or disbelieved.”

Domestic Violence NSW CEO Moo Baulch agreed children were not being heard in the Family Court.

“Children’s voices are not being heard and mothers are being portrayed as coercing children into making statements or victim blaming,” Ms Baulch said.

“It puts children at risk and it puts women at risk.

“If children are saying ‘I don’t want to spend time with him’, surely we should be listening to that.” Sydney University Law School professor Judith Cashmore, who in 2009 researched and wrote a paper about children’s involvement in the Family Court, said most children wanted more of a say in custody matters.

Of the 47 children involved in Family Court matters interviewed for the study, 90 per cent stated they “should be involved” in the case and “most of the children who ­expressed strong and unqualified views were involved in contested matters”.

Prof Cashmore said the Family Court often took the view that children could be coerced by one parent and therefore their opinions could not be taken seriously.

“That’s a strong perception of the process ... But being able to see through that and understand if children are making those strong statements, then I think they should be taken very seriously,” Prof Cashmore said.

“We do need to listen more carefully and provide better mechanisms for kids who’ve been through it all and are not being heard (by the court).”

A Family Court spokeswoman said children were appointed independent lawyers in disputes involving a high level of conflict, ­including allegations of abuse, but were rarely allowed to address the court directly.

“(The lawyer) represents a child’s best interests and ensures that that is the focus of any decisions about parenting arrangements,” she said.


The teenage girl wrote a letter to The Sunday Telegraph detailing the horrific abuse the family allegedly suffered at the hands of her father and her fear of being forced to live with him.

My name is X,

And I am scared of my dad. I have seen him in a rage throw my brother across the room. He has held a knife to my mother’s throat telling her how easy it would be to cut it … and the court has given me to him.

I explained to the court ordered evaluation all the things he has done that scare me and how he told us he killed the family animals after we asked for them back. He has done some things that are like Luke Batty’s dad which have been reported to DoCs… And still the court has given me to him.

I have tried to tell all the legal people involved how scared he makes me but I am too young for anyone to listen yet I am 14. Why am I not allowed to help decide what happens to me? I feel like I am screaming in a sound proof room because my voice has been stolen from me.

I feel like a refugee in my own country because the courts and the government have given me to him. Am I a slave? The court say my dad now owns me and the Police can drag me wherever they want.

At what point do I become old enough to have a voice? At what point will those with the power choose to let me be heard? The courts won’t hear me. How is this fair? I want to be heard, to be understood and acknowledged.

I hope that somewhere in the cosmos is a place where I am valued and safe. I don’t want to be the next Luke Batty.

I want to be protected from my dad. I need someone to hear my voice and understand that all I want is a life without fear. The only person to listen to me is my mum. She believes me when I tell her I am scared and keeps me safe but they will jail her for listening to me.

The only people who can hear me are you as you read this appeal. The only way you can help me is to share this with your friends and sign the petition for action — so please share this, print the poster and stick it up everywhere to create awareness.

Post it on Facebook, Instagram and Twitter. It’s time for awareness and change. Attach it to emails and send it to anyone you think of who can help … to help me and my brother find a voice, the voice that has been stolen from us.

We were not asked to be part of any hearing or give our opinions and concerns to any lawyer. Help me have a voice to have my views and issues recognised by the courts, the Police and my dad.

Encourage all those with big voices to look at what the court have stopped being entered as evidence by my dad and his team of barristers as he tries to take possession of me. Please help me to get as many signatures as possible.

I am scared and I need your help.