• McKenzie Friend Australia

Taking a stand to Dissolve Parenthood in the Family Court

Updated: Jun 27, 2019

It is my opinion that protecting all victims from not only domestic violence, but mental health disorders, should trump the indissolubility of parenthood in family court matters. Unfortunately, the current absolute priority where the law is concerned is to promote the indissolubility of parenthood after separation.

I have always thought if parents are in court over their children, then there is something underlyingly wrong going on in the family unit. Afterall, if nothing was wrong, there is nothing to fight so ferociously about. The majority of parents in this situation work things out amicably at the start and have a healthy co-parenting relationship with flexibility as the children grow up. If you are in court, there is no healthy co-parenting relationship and the likelihood that there will be in the future is bleak as one is being legally forced upon you. I believe it feels a bit like a jail sentence with various litigants commenting in forums and to me of ‘living a hell on earth existence’ and ‘ruining their lives’ with stories of devastation and a sense of inhumanity and crisis. Can this be happening in Australia in 2019? Why is this allowed?

These are very real extremely negative human impacts resulting from family court decisions for these people. And who takes the responsibility for this damage? Not the Judges, lawyers, court system, politicians or an insurance company. There is no recourse, no-one to sue or accept the blame for unforeseen terrible outcomes of insufficient parenting court orders.

Family Law legislation also prevents the vulnerable from speaking out censoring public broadcast of cases involving children. In essence, protecting perpetrators and giving amnesty to the individuals involved in helping and making the determinations which are sometimes

leading to parents and children being placed at risk by the very court they sought refuge.

It is inconceivable to me, that the vulnerable just have to continue to live with it!

Finally, 732 litigants have been able to speak out with their own personal family court experiences. The majority opting to remain anonymous probably due to their fear of breaking the law and the consequences of speaking out about the system who they feel didn’t protect some of their basic human rights to keep the indissolubility of parenthood alive. Refer to the United Nation’s Universal Declaration of Human Rights at https://www.un.org/en/universal-declaration-human-rights/index.html if you have been let down and apply them to your situation.

The Australian Law Reform Commission’s (ALRC) Report dated 20 June 2019 outlines a high-level summary of data collected from the ’Tell Us Your Story’ project. This report identifies several common threads of complaints giving “rise to serious concerns regarding the conduct of various actors in the family law system” on page 2. Most complaints focused on the systems and procedures, lawyers and Judges particularly around vulnerable participants. Go to https://www.alrc.gov.au/news-media/alrc-news/family-law-summary-tell-us-your-story-responses for the report.

Eleven glaring themes I saw in this report:

  1. The ruining of lives because of inadequacies in the legislation and the actors within;

  2. Bias or prejudice by the key individuals applying the law - Judges, Family Report Experts, ICL’s, Lawyers and the system itself;

  3. Lack of awareness, education, experience and ability in identifying violence, mental disorders, child abuse, trauma, disability and addiction by the actors within the court who are making the decisions;

  4. Victims being placed at risk by the final determinations;

  5. Lack of support and access to information for the less salubrious self-represented litigant;

  6. Legal representatives, Judges and Experts being aggressive, abusive, berating parties, acting unethically and showing favouritism;

  7. Lack of time – Judges not having enough time to read all Affidavits and documents, experts not applying enough time to understand the complexities of each family and the issues before making assessments and recommendations;

  8. Perceived notion applied by lawyers and Child Protection that parents will be punished in family court proceedings for reporting family violence by having their children removed from them;

  9. Lack of an independent complaints system for investigating the legal fraternity’s actions and behaviour;

  10. Inadequate or no consequences for perjury and breaching orders; and

  11. The Family Court system is fuelled by a legal industry with a financial imperative towards conflict so is adversarial by nature bring families to the brink of financial ruin.

It is obvious to me going by the seriousness of these complaints and the realisation that people are in the family court over parenting because there is a serious problem, that these problems are being exasperated by the system and beyond it, post orders. Trusting the family courts with domestic violence, addiction, mental illness, trauma, abuse, disabilities, and child abuse cases puts the victims at risk of being vulnerable forever without the proper prosecuting team and a knowledgeable, trained Judge, Court Experts and ICL in the realms of all these issues. I am aware that to even get an Expert into the court proceedings for example on addiction or mental health or alcoholism is hard to achieve, and they can be an extremely costly report, some $2,500 - $10,000+). Also, the other party can get to choose the Expert you pay for, for your own case to protect your vulnerability! Is this justice or does it result in bias due to being ill-informed?

Unfortunately, it is the way of the western world that the person with the most money and the most creative lawyers to slant the interpretation of evidence undermines the long-term safety of the vulnerable to the perpetrators who are harnessing the legal system to regain control over their victim(s). The system even allows for using the threat of indemnity costs to have a vulnerable, in fear of financial ruin and possibly homelessness, consent to parenting orders before a Judge can consider the evidence at Trial. I vote to banish indemnity cost entirely within parenting matters. No-one should be put under duress or threat within the family court system over money.

Let’s look into the Law and relate it back to the ALRC’s report findings. In 2006, amendments to the law created a presumption of equal shared parental responsibility, but the presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in abuse of the child or family violence (Family Law Act 1975, s 61DA). Is this being applied?

One of the objectives of the Family Law Act, as amended by the Family Law Amendment (Shared Parental Responsibility) Act 2006, is to ensure that "children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child" (s 60B(1)(a)). This is, importantly, balanced by another object of the legislation, the need to protect children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence which may necessitate restraints on contact by one parent (s 60B(1)(b)). These are supposed to be translated into primary considerations in determining what is in the best interests of children. Have these been applied? Doesn’t sound like it.

Within the law, any incident that can be characterised as family violence - however far in the past - is supposed to be sufficient to rebut the presumption of equal shared parental responsibility (s 61DA); any history of family violence is sufficient to provide grounds for exemption from the requirement to produce a Section 60i certificate before filing an application for parenting orders in court; any history of family violence triggers a requirement on the court to take certain steps promptly, irrespective of whether there are any current safety concerns (s 67ZBB), as long as the person alleging the violence sees it as an issue for the court's decision-making. The legislation also requires consideration of family violence orders that are no longer current in determining what is in the best interests of the child, as a factor separate to a history of family violence (s 60CC(3)).

From the results of this report, none of the legalisation is being applied satisfactorily. I ask why? And has anyone ever had a Judge acknowledge the fact that there is a Notice Of Risk in front of them on the first day in court?

Anyone who has followed Australian family law over the last few years will be acutely aware of the level of conflict there is over the text of the Family Law Act 1975, especially in relation to parenting after separation. No-one is taking responsibility and changing these outcomes. How many times does one have to go back to court and mediation to meet the conflict threshold?

Over the years, various arguments have been made against laws that encourage joint custody and shared parenting time. The main argument has been the more legislation encourages the involvement of non-resident parent, the more it is exposing women in particular, and the children to the risk of violence or abuse. In support of these scholars, the problem of domestic violence has without a doubt taken centre stage recently with the number of children and women being killed at the hands of ex-partners over custody disputes in court over the last decade. It’s fair enough to presume there was something wrong and the courts didn’t listen.

The problem is that the Act doesn’t give clarity about why a history of violence or even a history of mental illness is important, or how it should be weighed against all the other family factors. A history of violence and mental health issues should be an important issue in terms of the children's attitudes towards living with, or going on visits to, a violent or volatile parent. A child's fear of the volatile parent, or concern about the parent's unpredictability are relevant matters. As are the ways in which witnessing violence of any kind whether it be physical or verbal or neglect can affect the children's love for, trust in, and attachment to the unstable parent. This kind of stress can lead to mental health issues for the children such as RAD, PTSD, depression, self harm and other symptoms that mirror ADHD and Autism. The system and law needs this kind of knowledge to change outcomes for these children and their parents. These are long term, life long health issues.

A history of coercive controlling violence is particularly relevant in determining parenting arrangements after separation. It is important, in assessing the mother's capacity for parenting and her attitude towards contact between the child and the controlling ex-spouse. For many women who experience this kind of subjugation, the psychological effects may have a greater lasting impact than the physical abuse. These effects include fear and anxiety, loss of self-esteem, depression and post-traumatic stress and other health issues. They may significantly affect a mother's capacity to parent, particularly in the context of coping with the stresses of the relationship breakup, the parenting litigation and the parent’s resistance to regular contact as she knows what the controlling partner does. The concerned party knows past behaviour to be indicative of future behaviour. That is to dominate, abuse and control the children and use them as pawns to inflict mental pain rather than to nurture and empower them. The court does not have to live with this ever-present mental control. This is a form of violence.

Mothers in particular are facing allegations from lawyers and ex-partners as suffering from various psychopathologies as a way of suggesting they are not fit mothers. But their problems are completely situational and reactive to the experience of abuse being driven by the perpetrator, enabled by legal representation of the ex-partner, the court and post court with the release of inadequate parenting court orders.

Maybe, recognition within the law of the notion right from the very start that beyond the separation of parents, it does not necessarily have to involve the assumption that all families can or should endure. The vast number of families within the family court system need a sole parental custody platform to remove risks and the courts need to listen to these issues and take them seriously, not fob them off like the report seems to suggest. Past behaviour cannot and should not be ignored. Any sign of risky behaviour around the children or towards the other parent is unacceptable and should qualify for a sole custody as the starting position. The goal of interventions by the family court then ought to be not to try to build a cooperative co-parenting relationship, but to make 2 decisions only, which parent the children live with and what, if any time is spent with the non-custodial parent. Dispense with the numerous mentions which are attempting to force the weaker litigant to agree to consent orders that they don’t want to agree to. Go straight to a Reconciliation Conference which tells the litigants what their positions really are, if no agreement, then off to Trial. Shortening the time, resources and expenses of lengthy disputes and the welfare of the children is sorted faster. This type of hard line puts parents on notice too. Importantly we should not dismiss the fact that as children get older, they make their own minds up about what type of relationship they want with each parent anyway. Under the present system they are really not allowed to. So, some children are committing suicide.

This could be a path some litigants in the family court want the Judge to take from the beginning and they shouldn’t be berated or disadvantaged for their position. The outcome of this approach, if applied would have to be completely different parenting orders dissolving the notion of co-parenting at each crucial order description. I am not advocating in this notion that children do not have a relationship with each parent if it is 100% safe from all aspects within the definitions of family/domestic violence and mental health disorders. This approach removes the vulnerable individuals being forced to interact with their stressor giving them the possibility of a longer, healthier, safer live.

A great initiative for the family court would be to issue guidelines for drafting parenting orders by consent for parents who could co-parent with what subjects need to be covered and the reasons why to assist to de-escalate conflict and dramatically reduce legal expenses. Or after separation, parents could attend a presentation on how to construct parenting orders. After all, people who separate for the first time do not have any knowledge of what parenting orders are. They seek help from a lawyer which immediately sparks litigation, undue stress and unnecessary expenses.

I would like readers of this article to know that I am not a lawyer. I am a McKenzie Friend helping people who can't afford a lawyer.

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