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Does the family law system fail children? There are growing calls for an overhaul to the family law system to ensure that children are better protected from violence, abuse and neglect.

Imagine a situation in where you have recently divorced from your partner and have shared custody over your children. However, you have suspicions that your child or children are being abused by their parent – your previous partner. You may decide that you want to remove your children from the threat of harm from their other parent.

However, to remove your children from that scenario, you must undergo multiple steps. First, you must return to court to change your parenting plan as you currently have shared custody. Yet you may not be granted a changed parenting plan and therefore, no help is shown to your children and they remain in circumstances which may be dangerous.

family law system, family law, domestic violence, divorce, shared parenting, shared custodyDue to this scenario, recent inquiries have been made into the family law system by three organisations: Bravehearts, Australian Institute of Family Studies, and the Family Law Council. Family law professor Richard Chisholm also conducted an independent inquiry. 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.

Bravehearts’ research specifically focused on the accounts of victims of the family law system and how they felt unprotected. Together, the findings of these independent inquires led to proposed amendments to the current legislation (the Family Law Act). A new Bill was proposed in 2011 and passed by Parliament, yet the legislative effects of this Bill is still to be seen in today’s family law system.

The Act aims to address child abuse in updated terms, assist courts in finding evidence and for child protection authorities to be involved with cases in courts. The Court still applies the child’s best interests principle – in which children have a right to a relationship with both parents, and where shared parenting is encouraged. While this works well for most families and is preferable to denying children a relationship with one of their parents, in some special cases this is not relevant. Some families have experienced abuse within the family structure and therefore shared parenting continues to expose the children to an unsafe environment. However, due to the lack of protection in courts, some parents and children never raise their concerns.

Court cases are by their nature adversarial, which can be confronting for families who have experienced domestic abuse. It can also be very difficult for children to speak up about the abuse they’ve experienced, feeling like they’re betraying a parent. The best way to ensure all voices are heard, suggest organisations like Bravehearts, is mediation. If mediation ultimately fails, often the case in families experiencing domestic violence, the court is required to make orders for the care of the children. It’s at this point that many parents are fearful that the courts will grant shared parenting to an abusive ex-partner.

How Should The Family Law System Protect Children?

family legal system, family law, domestic violence, divorce, shared parenting, shared custodyOf course it is beneficial for a child to know and have a relationship with both parents, and shared custody allows that. However, if one parent is hurting their child or exposing them to neglect, then having a relationship with both parents is not the answer. The child’s safety and well-being should come first – and this may mean removing them from the care of an abusive parent. While the issue of lack of evidence remains, a child’s voice is important. Personal interviews by trusted individuals with the children should be allowed and that should stand as evidence alone.

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. 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.

Our Watch is an Australian group that has been established to “drive nationwide change in the culture, behaviours and power imbalances that lead to violence against women and their children.” They have collated key facts from different sources regarding the fight against domestic violence. All are confronting and here are just the first five statistics :

  • On average, at least one woman a week is killed by a partner or former partner in Australia.
  • One in three Australian women has experienced physical violence, since the age of 15.
  • One in five Australian women has experienced sexual violence.
  • One in four Australian women has experienced physical or sexual violence by an intimate partner.
  • One in four Australian women has experienced emotional abuse by a current or former partner.

Violence against children must continue to be regarded as unacceptable, including within the family law system. While shared parenting is the ideal, it must be recognised that this is not always possible or beneficial for the well-being of the children. The child’s safety should become the legal priority.

If you’re in a situation involving family violence, and you’re wondering what to do, we want to help you. If you have experienced physical and sexual abuse, emotional and/or verbal abuse or threatening behaviour we can assist you in making an urgent Application for a Protection Order. Our family lawyers are experienced and friendly, and will fight for you. Contact us today for your free, 10-minute phone consultation.