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Call to boost ties with Family Court

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family-court-of-australiaREFORM is needed to end the “disconnected” relationship between the Family Court and state child welfare agencies, support groups say. 

Child and family support groups yesterday called for either a single court to deal with at-risk children or co-ordinated roles shared between the Family Court and state courts.

And they urged state welfare agencies, which use criminal courts to seek child protection orders, to work more closely with the Family Court.

The Australian yesterday revealed a legal stoush between the commonwealth and Tasmania over a Family Court ruling that its judges have the power to compel state agencies to take parental responsibility for children.

In a case subject to an appeal by the Tasmanian authorities, judge Robert Benjamin ruled that the court had the power to impose parenting orders on the state in cases where no adequate alternative was practical.

Justice Benjamin said it would “beggar belief” for him to be unable to impose such an order in cases where there was no one else suitable to care for a child at risk of abuse.

The Tasmanian authorities have appealed, claiming the court has no such power and must rely on the state agencies to act as a “safety net”.

Federal Attorney-General Robert McClelland revealed yesterday he had written to the state and territory child protection ministers seeking their views on improving collaboration between the family courts and state authorities.

Mr McClelland acknowledged inconsistencies between the two, and said the government hoped a review by the Australian and NSW law reform commissions would lead to improvements.

Family Relationships Services Australia, which represents more than 400 family and relationship services across the country, said the case reflected “systemic gaps” between state child protection systems and federal-based family law.

“This case highlights the disconnection between the two legal systems,” said the group’s executive director, Samantha Page. “Family relationship services are increasingly concerned about children’s matters proceeding through family law courts when child protection agencies should be involved.”

The group urged the federal government to integrate the two systems and improve the sharing of information between them.

Ms Page said the Family Court should be given powers to make child welfare orders, and children’s courts the jurisdiction to make parenting orders.

And there needed to be more resources for risk-assessment and family support.

At-risk kids spark stoush over welfare and parenting

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Judge-Robert-BenjaminA CONSTITUTIONAL stoush has been sparked by a Family Court ruling that it can compel state welfare agencies to take a role in the parenting of at-risk children. 

Judge Robert Benjamin ruled that he had the power to impose a parental responsibility order on a state agency when there were “no other alternatives” for at-risk children.

The Tasmanian government has appealed against the judgment, which legal sources say could end up in the High Court, with the commonwealth backing the ruling and other states taking a keen interest.

Tasmanian Solicitor-General Leigh Sealy SC told a full bench of the Family Court yesterday that Justice Benjamin’s ruling was “as startling as it is erroneous” and tantamount to “civil conscription”.

Justice Benjamin’s landmark ruling came in a case involving two children — aged 15 and nine — whom he was concerned, after hearing evidence, were at risk of “emotional, physical and sexual abuse”.

The judge concluded that “it is possible, if not likely, that either one or both of the children . . . will be left in a position where none of the parties to the proceedings or available family members are suitable to have parental responsibility”.

He directed that a copy of a court order related to the case be forwarded to the secretary of the Tasmanian Department of Health and Human Services, David Roberts.

However, counsel for Mr Roberts told the court he was unwilling to intervene or accept any parental responsibility order.

Further, the state said it believed any such order without consent would be outside the court’s powers.

On March 31 last year, Justice Benjamin ruled otherwise. He noted that: “If the secretary (Mr Roberts) was not a party to these proceedings the children or child would be left in impossible situations.

“This court has . . . a duty to protect children from physical and/or psychological harm and from being subjected to or exposed to abuse, neglect or family violence.

“In essence, the state government argues that it has the power to protect children, but not the responsibility. The state says in cases such as this that a child is to be left without someone exercising parental responsibility for it.”

Justice Benjamin said such a situation “cannot be the law in Australia in the 21st century”.

“If the state chooses not to become involved in the responsibility for a child when there are no other options, then it would beggar belief that a court does not have power to impose that obligation upon the state,” he ruled.

“I determine that I do have the power to impose an obligation of parental responsibility upon the state, when there are no other alternatives.”

Mr Sealy told the court yesterday that Justice Benjamin’s comments may be “laudable” but his ruling was inconsistent with the law and “overreached” his jurisdiction. The court reserved its decision.

It is understood the two children involved in the case have been taken into state care since Justice Benjamin’s judgment.

Surrogacy Debates Rage In QLD

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surrogacyAltruistic surrogacy – when a woman has another couple’s child without payment – is currently being debated MPs in Queensland. The practice is currently illegal in the sunshine state, punishable by a $10,000 fine or three years’ imprisonment.

Premier Anna Bligh is pushing to legalise the practice. The proposed bill would mean that the birth mother could legally transfer parental responsibilities of a child born through surrogacy to the parents who organised the arrangement.

The issue of single mothers and gay parents has been raised as part of the debate, with the Liberal National Party firmly stating that these people must be excluded from the provisions. They have put forward an an alternative Bill that excludes these groups.

“When (Premier) Anna Bligh set up the surrogacy committee, there was no mention whatsoever of same-sex and single surrogacy,” Deputy Opposition Leader Lawrence Springborg told the ABC.

“It was framed around men and women who were having trouble having children.”

The Family Council of Queensland have called the bill a “trojan horse”, pushing for normalisation of same-sex parenting, and the Australian Christian Lobby have also stated that altruistic surrogacy should only be used for infertile married couples, not gays or singles.

Under the bill, commercial surrogacy will remain illegal.

“The Queensland Government is firm in its resolve to ensure that all Queensland children are treated equally,” Attorney-General Cameron Dick told ABC. “That we do not discriminate against children and make some children in Queensland second-class citizens, which is what the LNP seeks to do.”

The Australian Christian Lobby has issued a statement saying that it is not in the child’s best interests to be born to same-sex or single parents, and that the proposed law treats children as pets.

Debate on the law went late into last night, with a vote on the controversial bill expected later today. According to The Australian, Stephen Page, a family law specialist, said that if the opposition’s bill goes through, then QLD will fall further behind the majority of other states’ and territories’ laws which allowed singles and gays and lesbians access to surrogacy.

PM flags child support changes

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kevin-ruddPRIME minister Kevin Rudd has flagged year-end changes to Australia’s child-support system, saying the present arrangements are causing many families angst.

Mr Rudd today acknowledged that the system, which requires a non-custodial parent to make a financial contribution to the other parent for the care of their children, was a matter of “huge controversy”.

“A whole lot of families are going through a whole lot of angst on this,” Mr Rudd told Channel 7’s Sunrise in answer to a question from Emily Turner, of Sydney.

The Government was working on a “whole series” of long-term reform proposals.

It was important to ensure the reforms were “absolutely right” because any changes would affect many families, Mr Rudd said.

“Our anticipation is the changes to the system will be made by year’s end.”

Shared parenting law brings little change

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both parentsTHE shared parenting law introduced by the Howard government has resulted in more children spending time with both parents after divorce, but the numbers who do so are minuscule and most children still spend the majority of time with their mothers. 

A survey of 10,000 parents who have separated since the shared parenting law came into effect in 2006 found that one in 10 of their children now never saw their father, and one in five never stayed with him overnight.

By contrast, just 2 per cent of children never stayed overnight with their mother, and only 1 per cent did not see their mother at all.

There has been a small increase in the number of children who spend substantial periods of time with both parents, but a shared parenting arrangement is currently in place for just 16 per cent of families.

Prior to the introduction of the law, 12 per cent of families undertook a shared parenting arrangement.

The slow pace of change in this area may be explained by the sheer complexity of the shared parenting law, which judges have described as “extremely complicated” for even lawyers to understand. As part of a report for the Rudd government on how the shared parenting law is working, the Australian Institute of Family Studies interviewed not only separating parents, but judges and lawyers, most of whom said the law was too complicated.

One judge said: “In its current form, it is undoubtedly extremely complex.”

One barrister said: “The best interests of the child tends to get lost in amongst all the loops and hoops and criteria that one must rather artificially go through.” Another judge said: “I think very few average people can understand it . . . they cannot go to the internet, look up the Family Law Act, and get the guts of it.”

The sheer complexity meant many people settled on a custody deal “by consent” — meaning they did not fight it out in court but had the court approve their own arrangement.

But as one lawyer said: “You’ve got a real tension because those who settle by consent feel as if they’ve been bullied into it.”

The report says the emphasis on shared parenting in law hasn’t much changed what happens in practice.

Almost 80 per cent of children spend most or all nights with their mother, and just 5 per cent of children spent most or all nights with their father.

However, the older the children, the more likely they are to spend nights with their father, while the proportion of children who spent most or all nights with their father increases with the child’s age — from 3 per cent of those aged under three years, to 17 per cent of those aged between 15 and 17 years.

Two-thirds of children under the age of two are either always with their mother, or with her more than 80 per cent of the time.

Parents urged to put kids first

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kidsfirstTHINK about the children.

That’s the message from personnel at Relationships Australia Mackay following a report which found that separated parents were wrongly expecting to get 50-50 share time.

An Australian Institute of Family Studies (AIFS) report, commissioned by the government, established that while the principle of shared parental responsibility was widely supported, it was often misconstrued as requiring 50-50 share time.

Shared parenting laws, introduced by the Howard Government, had led to unrealistic expectations among some parents.

But Relationships Australia Mackay men and family relationships counsellor Mike Fry said whatever the time split, parents needed to think of more than themselves.

“From our perspective it’s not so much about parent’s rights. It’s about children’s rights to have a relationship with each parent… unless there are strong reasons not to,” he said.

Relationships Australia Mackay Parenting Orders Program (POP) co-ordinator Carolyn Schultz said separation was often traumatic for the parents – and the children – involved.

Ms Schultz, who runs eight-week ‘Focus on kids’ courses for those going through child custody issues, said parents usually had good intentions.

“The group is about opening their eyes to how they could be hurting their child,” she said. “It’s about trying to improve the situation for the whole family… it’s not about winning.”

Lone Fathers Association Mackay branch president Mark Young feared that fathers would lose out if custody laws changed.

Mr Young said the report angered men’s groups who had fought hard to get the Howard Government to change the legislation.

“Now the Rudd Government is trying to roll back family law,” he said.

The government is yet to outline its response.

Seeing both sides of family law

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family-lawLaws, by and large, are great levellers: whether your annual salary is $1 million or $30,000, drink driving, assault, murder and a statue book of other crimes are all punishable.

In an irony evident this week, family law was shown to be very different: it’s almost impossible to make one law fit all, or to prescribe the same legislative treatment to one family as the next.

And therein lies a serious problem for the Rudd Government with the release of the review into family law changes introduced in 2006.

The review and its recommendations are at least as controversial as the four-year-old law, finding that shared parenting laws had been misinterpreted, and were never meant to give a 50-50 custody split to each parent.

The Rudd Government, in an election year, now has to decide whether to address those recommendations legislatively, and raise the ire of one set of parents, particularly fathers, or let it slide, with the promise of something less than legislation, and increase the frustration of another set of parents, often mothers.

Either way, the Prime Minister and his team will face a sustained lobby effort that began this week, with a campaign by fathers’ groups to fight any suggestion shared-care provisions would be wound back.

The problem is that the law is only one of the pillars of a system that just isn’t working.

Listen to talkback, and hear the hurt and pain as individual parents tell their story about custody battles, false allegations of violence, real violence that is not acted upon, lengthy delays in hearings, and family wars that know no bounds.

And both sides of this debate have strong ammunition, which is at the crux of the problem now faced by Kevin Rudd.

Take Dionne Fehring as an example. The hurt in her voice is palpable. And she blames the idea of shared parenting for the deaths of her little treasures.

It’s been a few years now, but it’s so raw, it could have been yesterday that her former partner suffocated her 17-month-old daughter Jessie and baby Patrick, who was only 12 weeks old, with plastic bags, before killing himself.

He had been a violent man for a long time, including during her pregnancy with Patrick, and leaving the house one morning, her husband Jayson Dalton warned her that it was when he returned that she would really pay.

Dionne told me that she knew what that meant. She had long copped beatings until she was black and blue, had been used as a punching bag, and choked at her husband’s whim.

She escaped, her husband chasing her in his car. She survived that, broke down, and ended up in hospital suffering a breakdown.

Dalton saw that as an opportunity for revenge, went to court, and was awarded interim custody – despite his abuse history and police knowledge of that.

A few weeks later and released from hospital, Dionne went back to court, where the domestic violence issues were heard more substantially, and she won back custody of her children.

Dalton was to hand them to her two days later. And it was on that day, after researching suicide on the internet, that he stole the futures of his children, broke their mother’s heart, and took his own life.

Dionne doesn’t try to prosecute a political argument. She just believes that shared parenting can’t always work, and the assumption that has existed since the 2006 law changes, that 50:50 custody is a right, needs to be wound back.

Tragically, her story is not an isolated one, and you wonder, after hearing the pain in her voice, how shared parenting, and the assumption of shared custody, can be prescribed in law.

But then, as the Men’s Rights Agency which is signalling a massive nationwide campaign if the laws are wound back points out, there are two sides to every argument.

Take the case of the father who came to the organisation seeing custody of his three-year-old son, against his mother’s wishes.

She shopped around at doctors, lodging numerous allegations against the father, who persisted in his attempts to be part of his son’s life. He just wanted to be there for his son. He wanted to know him; to be part of his life.

Madonna presents Mornings from 8.30am each weekday on 612 ABC Brisbane and abc.net.au/Brisbane.

Law system reports are all in the family

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Pre-47s-Website-12Three reports evaluating aspects of Australia’s family law system have been released by the Attorney-General, Robert McClelland.

Mr McClelland said the reports focus on how the Family Law Courts deal with family violence cases and found that further progress was needed to ensure the cases were responded to effectively.

“The reports provide a comprehensive and objective analysis of the family law system against the aim of providing fair and sustainable solutions for families, while ensuring the safety and wellbeing of children,” Mr McClelland said.

He said the Evaluation of the 2006 Family Law Reforms by the Australian Institute of Family Studies (AIFS) examined the impacts of changes to family law.

Mr McClelland said some of the changes included introducing shared parenting; requiring separating parents to attend family dispute resolution before Court; and establishing Family Relationship Centres to provide information, advice and assistance to families.

He said the AIFS report found the idea of shared parental responsibility was widely supported but was often misunderstood to mean equal shared care time and had led to unrealistic expectations among some parents.

The AIFS reported that the majority of parents in shared care arrangements believed they were working well but identified concerns where an ongoing fear of violence existed.

The report also found there had been a shift away from using the Family Law Courts and that more separated parents were using dispute resolution services.

Mr McClelland said two reviews, Family Courts Violence Review, conducted by Professor Richard Chisholm and Improving Responses to Family Violence in the Family Law System, conducted by the Family Law Council, addressed the effectiveness of legislation and Court practices involving cases of family violence.

“The Government is committed to improving the family law system so that separated families can effectively access the help they need and disputes can be resolved in the best interests of children,” he said.

Mr McClelland said the Government would consider the findings and recommendations of the reports before responding.

Copies of the reports were available from www.ag.gov.au

Australia Releases Family Law Reforms Evaluation

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family-law-in-australiaThe most comprehensive evaluation of Australia’s family law system – drawing on the experience of 28,000 Australians – has found that overall the recent reforms are working well for the majority of children and their parents.

Source: Government of Australia Posted on: 28th January 2010

“There’s more use of family relationship services, a decline in court filings and some evidence of a shift away from people going straight to court to resolve post-separation relationship difficulties,” said Australian Institute of Family Studies Director Professor Alan Hayes.

However the Institute, which conducted the evaluation of the 2006 family law changes, found significant concerns about the reforms’ impact on families and children who are exposed to abuse and violence.

The three year long evaluation is the largest examination of the family law and service system yet undertaken, and shines a light on how families and children fare through the system when families break-up.

“More than a million Australian children currently live in separated families,” Professor Hayes said.

“The way in which separated couples resolve parenting arrangements, make decisions about their children and conduct their relationships all have significant and lasting impacts on their children’s lives for better or worse depending on how well they manage post-separation parenting.

“The message out of this evaluation is clear – ongoing conflict between separated parents leads to worse outcomes for children.”

Professor Hayes said that overall, the reform goal of getting separated parents to work things out for themselves is being achieved, with most separated parents resolving their parenting arrangements within one year and without the use of the legal system.

“This is evidenced in a reduction in child-related parenting matters reaching court, with a fall in applications for court orders and a greater proportion of parents reporting they were able to resolve their issues themselves, supported by the new family relationship services,” he said.

However for a substantial proportion of separated parents, there is evidence of significant family dysfunction: violence issues, safety concerns, mental health and substance misuse.

And for children whose parents have concerns about the safety of their child or themselves from ongoing contact with the other parent, shared care-time arrangements exacerbate the negative impacts on children.

“The evaluation provides clear evidence that while there have been some positive developments, the family law system has some way to go in effectively responding to family violence and child abuse, mental health and substance misuse.

“Where there were safety concerns reported by parents, these were linked to poorer outcomes for their children in all types of care relationships, but for those in shared care time, it was even worse. This is a small but extremely significant minority.

“All professionals should exercise great care in considering shared care where violence and safety concerns for the child exists,” Professor Hayes said.

There is a need for professionals right across the system to have greater levels of access to finely tuned assessment and screening mechanisms by highly trained and experienced professionals.

And important information about child safety and family violence needs to be more effectively shared between professionals including those in family relationship services, lawyers and the courts.

“But it’s worth remembering that while the evaluation found that for an important minority equal care time was a serious concern, for children where there’s no violence or abuse, equal care time was found to work well.”

The evaluation found evidence that many parents misunderstand the changes to the family law system, believing that equal shared parental responsibility (shared decision making and financial support) allows for equal shared care – or 50/50 time. This can make it more difficult for parents, relationship services professionals, lawyers and the courts to get parents to focus on the best interests of the child.

“This misunderstanding is due in part to the way the notion of shared parental responsibility is expressed in the legislation. It has led to disillusionment among some fathers who find that it doesn’t automatically mean 50/50 care time. And indeed, the law was never intended to provide for shared care time in cases where there are safety concerns.

“Lawyers in particular have indicated that the 2006 reforms have promoted a focus on parents’ rights rather than children’s needs and that the family law system doesn’t do enough to support arrangements that are suitable for a child’s particular level of development.

“The evaluation has highlighted the complex and varied issues faced by separating parents and their children and the diverse range of services required in order to ensure the best possible outcomes for children. While there are many perspectives within the family law system, and conflicting needs, it’s important to maintain the primacy of focussing on the best interests of children,” he said.

Key findings from the evaluation include:

  • 71 per cent of fathers and 73 per cent of mothers say they’ve sorted out their care arrangements
  • 39 per cent of parents who used family dispute resolution reported reaching an agreement
  • 78 per cent of Family Relationship Centre staff and 86 per cent of family dispute resolution staff say that family dispute resolution is inappropriate due to family violence for up to a quarter of parents they see
  • 16 per cent of children are in shared care-time arrangements (i.e., where 35-65 per cent of time is spent with both parents)
  • More fathers than mothers propose equal time arrangements when going to court – 10 per cent of mothers and 27 per cent of fathers
  • A majority of separated parents were in friendly or cooperative relationships (just over 60 per cent)
  • Just under one fifth of separated parents reported their relationship to be full of conflict or fearful, with mothers twice as likely as fathers to report a fearful relationship
  • Around one in five parents reported safety concerns with ongoing contact with the child’s other parent
  • 26 per cent of mothers and 17 per cent of fathers reported their partner had physically hurt them before or during separation.

Removals of children on the rise

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child-removalsThe number of Canberra children who have been removed from abusive or neglectful parents is increasing, a new report says.

According to the Australian Institute of Health and Welfare, 494 children were in the custody of relatives, foster carers or residential institutions last financial year, up 16 per cent on the year before. Of those, one in five was indigenous. Nationally, the number of children in out-of-home care increased 44 per cent over the past five years to 34,069.

The co-author of the report Child Protection Australia, Kate Valentine, said there were a number of reasons for the increase.

”Although there appears to have been a real rise in children needing protection, other factors may have contributed, including greater community awareness, a broadening of what governments regard as child abuse or neglect, and changes in child protection policies and practices,” she said.

Aboriginal and Torres Strait Islander children were over-represented in the child protection system, and in out-of-home care at just over nine times the rate of non-indigenous children.

”The reasons for the over-representation of Aboriginal and Torres Strait Islander children in the child protection system are complex and can involve factors such as the intergenerational effects of previous separations from family and culture and poor socioeconomic status,” Ms Valentine said.

For more on this story, including details of a Federal Government initiative to address the problem, see today’s Canberra Times.