Friday, May 27, 2011

Family law is failing kids (Sydney, Australia)

Great piece by Catherine Gander.

26 May 2011

Family law is failing kids

Catherine Gander

Imagine for a moment that you are going through divorce or separation and you fear that your ex-partner is harming your children.

You seek help from community services who advise you to remove your children from harm’s way, but you are prevented from doing so because your ex-partner has shared custody ordered by the Family Court. You go back to court to review shared parenting, but a lack of evidence results in your ex-partner retaining unsupervised access. Your children remain at risk of ongoing harm. Unfortunately, this scenario is not an isolated case.

That’s why three major inquiries into the ability of the family law system to respond to family violence were conducted by the Australian Institute of Family Studies, Family Law Council and Family Law Reform Professor Richard Chisholm. They concluded that the Family Law Act and its principle of equal shared parenting were unintentionally undermining the legislation’s clear aim to protect children from child abuse, neglect and exposure to domestic violence.

The result of these inquiries is the proposed Family Law Legislation Amendment (Family Violence and Other Measures) Bill 2011 currently before parliament with Senate hearings set for 9 June.

In a bid to better protect children and other victims of domestic violence, the Bill rightly seeks to define child abuse more broadly to

include exposure to violence, remove disincentives to victims of violence reporting abuse, improve courts’ access to evidence of family violence, and make it easier for state and territory child protection authorities to participate in family law proceedings.

Divorce is common in Australia, affecting about 55,000 couples and about the same number of children. In most cases where parents are separating the family law principle of equal shared parenting is desirable and works in the interests of both parents and children.

But in some families, where there is a history of domestic violence or abuse, or a threat of violence, the family law principle of co-parenting is unintentionally dangerous if parents are not helped to raise their fears, claims of violence or abuse are not taken seriously, or the court process struggles to identify risks to children.

Our 56 women’s refuges across NSW often see women who are directed to remove their children from violent partners, but when they prepare their case for the Family Court they are counselled not to raise allegations about domestic violence for fear of being seen as unfriendly to shared parenting and risking a negative custody outcome.

For the most part, our family law system’s Family Relationship Centres help thousands of couples every year to successfully negotiate post-separation parenting arrangements through mediation. It is only when there is violence or other abuse that parents are referred to the Family Court.

Our own Women’s Family Law Support Service that operates from the Sydney Family Law registry supported more than 200 women in 2010, 81% of whom identified family violence as an issue. In one case a young boy ended up in hospital after an assault against him by his father during contact. The father was charged and police took a Protection Order out on behalf of the child. The mother went back to court to seek a review of parenting orders, but the judge said the Protection Order would improve safety and ordered the mother to continue to facilitate unsupervised contact.

Why does this happen? In part because we have a Family Law Act that now puts the ‘rights of the child to have a meaningful relationship with both parents’ at the forefront of decisions about custody to the detriment of the safety of children. The 2006 amendments to the Act strengthened the principle of equal shared parental responsibility. This has put judges under pressure to make orders that, in some cases, give children unsupervised contact with abusive parents.

The Family Court’s difficulties in raising, identifying or recognising risks to children arises in part from a lack of coordination between the State legal and child protection systems and the family courts.

As a society we like to think that we have no tolerance for domestic violence at any level. Yet we endure a family law system that has serious systemic gaps obstructing parents – mostly mothers, but not always – from raising fears for their children.

It’s time we recognised that we are all part of a culture that struggles with and habitually denies the extent of domestic violence and abuse in family life. The Australian Institute of Family Studies’ Evaluation of the 2006 Family Law Reforms that surveyed 10,000 couples who had separated after 2006 found that one in five parents reported concerns for their children’s safety during contact with the other parent.

Our culture of denial also contributes to a family law system that struggles to recognise abuse owing to a limited definition of family violence. That’s why the changes before parliament have expanded the definition of family violence to include children’s exposure to violence and a range of behaviours, including coercion, torment and financial abuse.

It defies logic that in legal practice a parent who is violent to their partner can be considered a bad partner but a good parent.

It is time to make children’s safety a priority in family law.

Catherine Gander is the Executive Officer of the NSW Women’s Refuge Movement (NSW WRM).