Monthly Archives: February 2010

Protect children and the mediation process

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childrenTo limit harm, family law reform must proceed carefully.

SUCH are the sensitivities of family law that when the Howard government amended the Family Law Act in 2006 it provided for a review after two years. The Rudd government has its own concerns; even before the Institute of Family Studies finished the review, Attorney-General Robert McClelland asked former family court judge Richard Chisholm to look at whether the law offers adequate protection from family violence. These reviews, and a third by the Family Law Council, reported last month. This week, the head of the Family Court made a strong call for change.

Chief Justice Diana Bryant told The Age that family law courts could not be adequately informed of risks of harm. She wants information from mediation between separating couples to be made available to courts if there is evidence, for example, of violence or abuse, or issues of mental health or drug and alcohol abuse. ”Every decision that is ever made by a judge is only as good as the information and the evidence you can make it on,” she said.

The Law Institute of Victoria agrees that courts, which are meant to act in the best interests of children, are ”blind-sided” by insufficient information. All separating couples are required to go to a family relationship centre or mediation service. Only if that fails do they go to court. If mediators believe violence or abuse is an issue, they can inform child protection authorities or the police, but not the court in a subsequent hearing, because mediation discussions are privileged. Justice Bryant says most information would be confidential, but wants courts alerted to risks ”that need to be dealt with as a matter of urgency”.

The problem is that neutrality is vital for mediators’ work. And without guaranteed confidentiality, mediation becomes a less attractive option. Mr McClelland has asked the National Alternative Dispute Resolution Advisory Council for advice on how to protect the integrity of mediation.

The Institute of Family Studies report offers a valuable reminder that the majority benefits from mediation. Its review involved more than 28,000 people, including 15,000 parents. Family relationship centres had been a success, its report found, and a clear majority of parents said mediation worked well. Only about 1000 contested cases proceeded to the Family Court.

The review did find about one in five parents had safety concerns, especially about shared care with violent partners. The Family Law Council report said the 2006 laws narrowed the definition of violence and recommended changes to include economically or psychologically abusive behaviour.

Professor Chisholm found women and children had been put at greater risk and recommended the scrapping of two provisions. First, under the so-called ”friendly parent” provision, a person who is hostile to a former partner and resists handing over children can be deemed ”unfriendly” and risk getting less care time. Second, a parent who makes unproven allegations of violence can be ordered to pay some or all of the other party’s costs. Justice Bryant shares the view that this can dissuade parents from raising issues of violence or abuse.

Mr McClelland indicated last July where he stood when he said ”too many families … slip through the safety net”. He asked the Chisholm review to take particular note of the case of a four-year-old who died after a fall off West Gate Bridge. ”It is imperative that all legitimate concerns about family violence are raised so that the courts can make informed decisions,” he said.

The Age has always insisted that the law must protect the child above all else. When even the Chief Justice says that the Family Court lacks the information it needs to achieve that, reform is required. Yet it should not be forgotten that a greater legal emphasis on shared care arrangements reached through mediation has generally worked well. Any changes have to preserve the trust on which mediation depends. An area of reform that affects the personal lives of so many people must be handled with kid gloves.

Attorney-General acts to stem revolt on legal industry reform

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Robert_McClellandFEDERAL Attorney-General Robert McClelland will today outline changes to the planned national regulation of the legal profession in order to address concerns from key stakeholders which threatened to derail the project. 

In a major concession to demands from the judiciary and the legal profession, Mr McClelland will ditch one of the core elements of the plan drawn up by a federal-state taskforce.

Membership of the proposed national legal services board, the peak regulator, will be expanded to seven to create guaranteed positions for nominees of the Council of Chief Justices and the Law Council of Australia.

The regulatory taskforce, headed by Attorney-General Department secretary Roger Wilkins, had originally wanted to preserve the inherent role of the courts in admitting and disciplining the profession but would have limited their role on the legal services board to membership of an advisory committee.

Legal professional associations would have had a similar advisory role.

The new plan meets one part of the demands of nation’s top judges, who have made it clear that they retain the power to establish a rival regulatory system if they consider the independence of the profession to be at risk.

The Council of Chief Justices told the regulatory taskforce in November they wanted lawyers to form the majority of the board, they should be appointed independently of government, and the board should be chaired by the nominee of the Council of Chief Justices.

The taskforce had originally sought a board of about five who would be appointed by the standing committee of attorneys-general based on their expertise in either the practise of law, consumer protection or the regulation of the profession.

Mr McClelland will outline the revamped structure of the proposed system in Perth today during an address to Law Society of Western Australia.

His speech will make clear that the regulatory taskforce is still considering the composition of the board “and further views will be specifically sought on this issue”.

He will also give the profession an assurance that he believes the independence of the justice system is fundamental to access to justice and the rule of law.

He will describe the proposed regulatory system as a “co-regulation” and will point out that the regulatory taskforce believes “it may be appropriate to delegate some powers of the board and the ombudsman to the profession”.

But he will say that consumer representation in the regulatory system “will enrich deliberations”.

The revamped plan states that the board and the proposed national legal ombudsman “would be accountable to the states and territories through the standing committee of attorneys-general”.

“It is anticipated that the board will collectively hold a range of stakeholder expertise, with members fulfilling the functions of the board rather than representing any one interest or constituent,” Mr McClelland will say.

He will reassure states and territories, giving them an undertaking they will not lose revenue from the interest on clients’ money while it is held in solicitors’ trust accounts.

His speech will recognise that the reform project will bring considerable benefits to large national law firms.

“However all practitioners will undoubtedly benefit from the many proposed improvements to the regulatory system,” he will say.

His speech will indicate that the regulatory reform project is on schedule and a draft bill and proposed national rules will be presented to the April meeting of the Council of Australian Governments.

At that meeting he plans to seek agreement in general terms to the legislative package and to a further consultation period in which the details of the scheme will be made public and debated.

He will say that the bill is still being refined but is expected to be less than 200 pages.

Judge seeks revamp of family law

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chief-justice-diana-bryantTHE Chief Justice of the Family Court has called for a radical change to the law to provide more protection to family members at risk of violence.

In what could be a contentious proposal, Chief Justice Diana Bryant wants information from confidential mediation sessions between separating couples to be given to family law courts if there is believed to be a risk to a child or a parent’s safety.

The types of information provided would include evidence of violence or mental health and drug and alcohol issues. Judges would use the information to help with decisions about parental access and where children live.

Under existing law, any information that emerges in a mediation session is confidential. But mediators can make reports, usually verbal, to child protection authorities and police.

In an interview with The Age, Justice Bryant said she had recently raised her concerns with the federal Attorney-General’s Department.

She said there might be cases where risk factors could be missed if full information was not given to the court in the early stages of a case. ”You might have a mediator … who has formed a view that mental health issues are a serious problem. They can’t provide that information,” she said.

”All of the information that is conveyed to mediators in family relationship centres is privileged. They might have quite a lot of information about family violence from their screening tool which can’t be shared with courts. So when people come to court they just start off fresh with an application.

”I do think we ought to look at whether we can get something more from those organisations … something more that informs the courts when an application is filed to alert them to issues that need to be dealt with as a matter of urgency.”

The government is exploring the issue. Attorney-General Robert McClelland last year asked the National Alternative Dispute Resolution Advisory Council for advice on changes required to protect the integrity of the mediation process, including confidentiality. It will report later this year.

A spokesman for Mr McClelland said it was important to balance the need for courts to have access to the best evidence they can obtain to deal effectively with serious matters such as family violence, and the need to protect family dispute resolution and ensure it is a place where parents can speak frankly to reach agreement.

Under existing law, separating couples who want to settle disputes in the Family Court or Federal Magistrates Court must first go to a family relationship centre or other mediation service, except in cases of violence. If that session breaks down, they can then go to court.

Justice Bryant said most of the information would still remain confidential; only information concerning risks to children and parents would be given to the court. Parents would be warned that information they provided regarding risk could be given to the court.

”It’s really in the early stages when you don’t have a lot of evidence that it’s important for these issues to be raised,” she said. ”Every decision that is ever made by a judge is only as good as the information and the evidence you can make it on.

The idea has been backed by the Law Institute of Victoria. President-elect Caroline Counsel said courts should not be ”blind-sided” by insufficient information.

”It is ultimately charged with the duty of making orders in the best interests of children. If there is information that is made available to them that is pertinent to those issues, surely a better decision can be made if the court is apprised,” she said.

But Samantha Page, executive director of Family Relationship Services Australia, said mediators should be able to alert courts to families at risk without divulging confidential information.

”We would be concerned that removing those confidentiality provisions would discourage people from being open and honest about things that have happened in the past, things they’re worried about, if they knew that was no longer confidential,” she said.

No 50-50 split on time with parents

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50-50THE Full Court of the Family Court has clarified what it means by “shared care” for children after divorce, and it isn’t a 50-50 time split between parents. 

On the contrary, fathers who win “shared parental responsibility” of their children may find they still see them only on alternate weekends, for two hours after school on Wednesdays, and half the school holidays.

The decision surprised men’s groups, who thought new laws requiring the court to consider shared care meant more than weekends, holidays and special occasions.

“That doesn’t sound like the spirit of the new law at all,” said Michael Green QC, of the Shared Parenting Council. “There’s no way in the world that that is shared parenting.”

But Elspeth McInnes of Solo Mums said the decision “reflects reality, which is that equal time, or shared time, cannot work for all couples and shouldn’t be forced on them”.

The Howard government moved in 2006 to give both parents responsibility for children after divorce. Judges must now at least consider an “equal time” arrangement, and if that is not practicable, then an arrangement in which the children spend “substantial and significant” time with both parents.

Attorney-General Robert McClelland is reviewing the law. Last month, he said fathers should never have been led to believe they were guaranteed a 50-50 time split after a divorce.

The full court weighed into the debate yesterday, releasing its decision in a case known as Whisler and Whisler (2010).

The case arose when Mr Whisler — who had been the “house-husband” and stay-at-home dad for two years before separating — appealed against a decision by a federal magistrate to scrap a “week about” arrangement for his children, aged six and four, and replace it with one in which the children lived mainly with their mother and saw their father on alternate weekends, for 2 1/2 hours on Wednesday nights, half the school holidays and on special occasions such as Fathers’ Day.

Mr Whisler complained that the orders did not amount to the children having “substantial and significant time” with him, but in a decision posted yesterday the Full Court said that it did.

“These orders are clearly for substantial and significant time between father and children,” the court said, in part because they include 2 1/2 hours on a Wednesday, meaning the children see their father both on weekends and weeknights.

Mr Whisler’s lawyer argued that the court should have considered an arrangement in which the children swapped after three or four days with one parent.

The court ruled, however, that it would not necessarily be in the children’s best interests to swap around in the middle of a school week.

Grandmother told she’s too old to care for grandchildren

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child-and-adult-handA GRANDMOTHER is fighting for the care of her two grandchildren after the Department of Child Safety told her she is too old at 68 to look after them.

As the Federal Government pushes the case for older workers to stay in the workforce longer, Marlene Baker, who lives west of Brisbane, is restricted to once-a-month weekend visits with her grandchildren who live 100km away in foster care.

The decision comes despite no age limit for carers and the shortfall of foster parents soaring to 500.

Grandparents account for one in five foster parents in Queensland but the department has ruled Mrs Baker and her 80-year-old husband Reginald are unfit to care for the children, aged 2 and 4.

The ruling follows Prime Minister Kevin Rudd’s plan to lift the retirement age to 67.

Mrs Baker admits she has some health issues but claims she is well enough to care for the children.

“I have already proven I can care for them. I do all the cooking, I drive, I clean my house,” she said.

The two children have spent most of their lives living with their grandparents and their 35-year-old aunt.

But last November the aunt, who was the legal kinship carer, told the department she could no longer cope with the responsibility.

The department immediately moved the children into foster care, 100km away, despite Mrs Baker’s willingness to continue to care for them.

Mrs Baker described the separation from her grandchildren as “heartbreaking”, compounded by the fact she is only allowed one phone call a week at 9am on Saturdays.

“This is their home. This is where they want to be,” she said. “Every time they come here, they beg me to let them stay. They have big tears running down their cheeks.
“How do you tell a four-year-old that it’s not you that doesn’t want them, it’s the department?”

The siblings have never lived with their biological parents, who were considered unfit to care for their children.

Mrs Baker first applied to become a kinship carer for her four-year-old grandson, when he was born.

“They did a house inspection, I had a medical, I got a blue card and in the end I was told I was too old – I was 64 then,” Mrs Baker said.

The boy spent a year in foster care, until the aunt became his carer and also assumed care of his sister when she was born.

For most of this time, the three lived with the Bakers, and Mrs Baker was their main carer.

The Bakers have nine children, 16 grandchildren and nine great grandchildren.

Mrs Baker described the department’s actions as “heavy handed”.

At the very least she would like more access to the children.

“If I can’t have them, why can’t I see them more often, take them on holidays, why can’t they be in foster care nearby, so I can drop in and see them often like a normal grandmother?” she asked.

Independent MP Dorothy Pratt said the Bakers were victims of time-poor social workers, and their story was not an isolated case.

“If grandparents are capable of caring for a child they should be the first choice,” she said.

“There is not enough time put in to make appropriate choices and consider what is best for the child and the family.”

A spokeswoman for Child Safety Minister Phil Reeves said the priority was to provide children with “a safe and loving home environment”.

“The department always prefers to place children with family if possible,” she said.

“But every application must be assessed with absolute rigour to ensure the child’s best interests are upheld.”

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.