Child abuse has eluded family law reform
Sydney Morning Herald
31 July 2004
By Adele Horin
It's the family law problem the Federal Government won't tackle: one quarter of the cases that go before the Family Court involve claims of child abuse. In fights over children such allegations are dynamite.
But how to get to the truth? For years men's groups have claimed women concoct child abuse allegations as a weapon in the divorce wars. And women with genuine fears about their child's safety claim they are depicted as vindictive and manipulative.
During the 1990s the much-maligned Family Court saw the nature of its work change dramatically. It went from being a forum which resolved property disputes and children's matters into one called upon to resolve serious issues of family violence and child abuse.
But the Family Court lacks the independent power and resources to investigate allegations of abuse. This deficiency is putting Australian children at risk. Wrong decisions in this area can have tragic long-term consequences - whether children are required to spend time with an abusive parent, or whether they are denied contact with a parent who was wrongly accused.
As a Family Court judge, Linda Dessau, once told me, "The stakes are so high. The child's safety is involved, and the child's relationship with a parent. The wisdom of Solomon doesn't help."
Unfortunately, the Federal Government's shake-up of the family law system, announced by the Prime Minister, John Howard, this week, will do nothing to change the situation. For two years it has ignored a major report on the issue by the Family Law Council, which advises the Attorney-General on family law matters. That report appears to have been put in the too-hard basket, even though child safety lies at its heart - and what can be more critical than that?
A lot of men and women are disgruntled or downright angry with the family law system: the delays, the cost, its adversarial nature. But there is little doubt the "massive cultural shift in favour of fathers", as Australia's pre-eminent family law expert, Professor Patrick Parkinson, has described it, was a major factor in the establishment of the parliamentary inquiry into custody. It held hearings all around the country and received 1700 submissions, many from fathers who were grieving over being cut out of their children's lives. Its bipartisan report, tabled last December, had a strong focus on separated fathers having greater involvement with their children.
The Prime Minister drew heavily on its recommendations. He responded to the angst of fathers - and some would say none too soon - by signalling changes to the Family Law Act to favour them. Mooted amendments will ensure children have a "right to spend time on a regular basis with both parents" and will make "equal shared parental responsibility" on major issues a starting point.
These are not radical departures. The act already speaks of a right to "contact" with both parents and joint parental responsibility. But amendments are expected to give substance to these principles and to spell them out.
(Note that "joint responsibility" does not mean children will have to spend equal time with both parents, as was demanded by some men's groups and originally supported by the PM. In the end the parliamentary committee saw sense.)
For many children, what is good for the father will be good for them. Research by Parkinson and Dr Judy Cashmore shows many children want to spend more time with their non-resident parents, although they would like more say and more flexibility in the arrangement.
But what of cases where the greater involvement of fathers - or non-resident mothers - is inimical to the child's best interests? What of cases where allegations of child abuse are involved?
Naturally the Prime Minister makes exceptions for these children. But he has failed to give his assurances any teeth. Given the new emphasis on children spending more time with both parents, it is vital Howard rereads the dusty report of the Family Law Council. He will find it urges the Government to set up a national child protection agency which would investigate abuse allegations made in Family Court battles.
As it points out, children are often caught in a dangerous catch-22 situation under the current system. The primary job for child protection investigations lies with state welfare departments. But if overworked state agencies know a matter is before the Family Court, they often put it to the bottom of their in-tray - particularly if the child is living with the non-abusive parent.
State child protection departments expect the Family Court to make the right custody or access decision. But the Family Court, without independent evidence and only the parents' conflicting stories to go by, is in the dark.
At least two children, subjects of Family Court battles, have died in recent years in NSW because no one investigated the allegations of abuse properly. Their tragic cases were detailed in a confidential NSW Ombudsman report.
Who will agitate to ensure this vulnerable minority of children in the Family Court maelstrom are kept safe above all else? Family Court judges need the help of a national child protection agency, charged with investigating abuse claims made in Family Court disputes.
The Government shows no signs of moving on this recommendation.