Children and the family court

Ariel Marguin

This article was published in Living Ethics: issue 81 spring 2010

Family disputes and custody issues involving children are some of the most difficult human interactions imaginable. Ariel Marguin questions whether the current family law system provides the best way to resolve these matters.

Is it ethical of us as society to give decisions about the future of children over to the legal profession, aided by ‘single experts’ and often operating in closed sessions, reinforced by suppression laws operating beyond the court itself?

Writing in The Sydney Morning Herald on 28-29 August 2010, journalist Adele Horin wrote:

In an election degraded by bipartisan fear-mongering on asylum seekers and climate change, we can be grateful the hot-button issue of family law remained safely off limits.

Ms Horin usually advocates for social justice, but in this piece she seemed to miss the point that if nobody ‘mentions the war’, how can voters know what family law issues are and where candidates stand in order to make a an informed decision?

Was it ethical not to mention family law in the election campaign? Politicians, candidates and the media each have voices – children (and often their parents and extended family) don’t.

Our group, Justice for Children, asked Labor, Liberals and The Greens to provide their policies on family law so that we could put them our website and let our members know where they stood.

We are still waiting for a written version of Liberal policy although a Liberal staffer did give us the verbal tip that 2006 reforms would be beefed up under a Coalition government.

Family law in Australia is not working for children at risk. In fact, it is often placing them in extremely unsafe situations. Suppression or ‘gag’ orders and the secretive nature of the Family Court mean that few cases are reported in the media. For this reason, the public does not know what’s really happening.

The ‘best interests of the child’ is supposed to be the primary consideration in family law. The reality is very different.

Family violence is not being dealt with in the right way nor jurisdiction and this may lead to Family Court decisions placing children in serious jeopardy. They may have to live in situations where they are subject to emotional, psychological and often physical and sexual abuse. After court rulings, some children are cruelly separated from their accustomed parent, home and extended family, without any preparation.

If this is not child abuse, what is?

The Family Court’s Violence Review was instigated by the Commonwealth Government after the death of yet another child involved in the severely-flawed family law process. The allegation that the family law process is not adversarial is farcical. Justice is not done – and certainly not seen to be done – if people don’t have money, good legal representation, the ability to put their case fully – that is, to state clearly where there has been violence and abuse without being told they are an ‘unfriendly parent’. Many reports – including those from leading universities – confirm that children are suffering significant and lasting damage because of questionable decisions in the Family Court.

These children need real, immediate and substantive protection. Many structures, jurisdictions, services and systems will have to be reformed to achieve such protection – that will take political will and courage.

In too many cases, the court makes decisions without heed to the realities of the child’s future. There is no follow up to ensure the child is safe in their new home. Children can be and are denied (by the court), the right to counselling after separation. Others (for example, government family welfare agencies, schools and police) often refuse to help children involved in Family Court matters.

We wrote to many candidates during the recent election and asked them to be brave enough to speak out for children. Children must be treated fairly and kept safe. It is critical that all participants in the family law process be given respect, correct and relevant information, and allowed a voice that is listened to and considered with care and compassion.