Flaws and Deficiencies in the Family Law

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Flaws and Deficiencies in the Family Law

By Charles Pragnell

A recent two-day Conference of Family Court Judges was convened in Hong Kong to address the very serious defects and deficiencies in the current Family Laws around the world and the need for fundamental changes to be made. Family Court judges from Britain, Australia, Hong Kong, and New Zealand and several other countries attended.

Chief Justice Diane Bryant attended the conference to represent Australia and took the opportunity to highlight the successes of the Australian Family Law system and especially the pilot projects allowing children to have a more direct say in Family Court Proceedings and to diminish the adversarial nature of Family Court proceedings.

Unfortunately Justice Bryant did not also highlight the very many flaws in the Australian Family Law and its implementations in the Courts.

The law in Australia gives very little regard to the rights of children under the U.N. Convention and particularly the right to be safeguarded and protected from abuse and exploitation. As a consequence children have been forced into contact with fathers who have abused and even killed them. Very often such fathers have had a history of violence towards their wives and children, a record of drug and alcohol addiction, a criminal record, a serious mental illness or even convictions for child sex abuse. In a recent case in South Australia, the father was awarded residence despite of his children having been convicted and awaiting sentence. In too many cases this has been disregarded by judges who hold paramount the father’s rights to contact and to have a `meaningful relationship’ with the child, regardless of the quality of that relationship.  One Judge stated recently that if children refuse to leave their mothers and are distressed, they should be punished and forced to go.

Many children have disclosed being abused by their fathers or mothers' new partners. during contact, even when such contact was supervised. In some cases professionals such as teachers and doctors confirmed the abuse allegations and social workers found them to be substantiated. Nevertheless some Family Court judges allowed contact to continue after the abusers' lawyers claimed that the mother had `coached’ the child into making the allegations as part of `alienating’ the child from the father. This has been supported by `Hired Gun’ psychiatrists and psychologists acting as expert witnesses, often never having met the mother or child. False allegations have been found by researchers to be extremely rare yet are still accepted by Courts with no factual evidence to support the contention and the fanciful speculations and conjectures of these psychiatrists. A counter-allegation against the mother of Parental Alienation Syndrome has been successfully made by psychiatrists although this theory was rejected by the American scientific community, having been propounded by a practitioner (Charles I think he was a psychiatrist) whose self-published articles revealed sympathies with paedophiles.

If a mother refuses to allow contact, obstructs contact in any way, or fails to encourage and facilitate contact, then she can be severely punished by the Courts. Some mothers have been imprisoned for trying to protect their children from men where there was a proven history of violence. Most usually the child is removed from the mother's care and the accused abuser is granted residence of the child. When mothers have fled abroad to protect their children, the children have been seized by police, returned to Australia with strangers and placed in state care for several years while awaiting the Court's decision. Mothers who fled interstate were forced to return to face the retribution of the same Judges who made the original orders.

The needs, wishes and feelings of children can be completely disregarded when adherence to the law takes priority. Breast-feeding mothers have been forced into day-about and week-about `Shared Care’ arrangements and have had to express their milk to provide sufficient for the week the child spends with the father. Other small children have been forced into contact and residency with fathers that they have never known or seen and who have never taken an interest in their care until they are located by the CSA and are required to make maintenance payments. Shared care allows a considerable reduction in paternal maintenance payments and no payment is required at all if it is an equal shared care arrangement. There are over 120,000 children in Australia for whom there is no financial support from an absent parent, mainly fathers, and have to be financially supported by taxpayers.

It is rarely considered by Courts that children have other supports in the area where they live. Many have extended families and friends who take them to sports and recreation activities. These are extremely important elements in a child’s life and provide the security, stability, and consistency that children need. This is often the reason why children refuse to go to contact. Attending dance classes or a `Footy’ game can have far more appeal than a day with `Dad’ in a McDonald’s café.

It is obviously not in children’s best interests to be uprooted from their homes and neighbourhoods and relatives and made to go to live in the outback of North Queensland or Dubai in order to be near a parent and their work, solely to provide an opportunity for contact.

In these ways the law and the decisions of Courts are no less than discriminatory against children and an abuse of their rights.

Chief Justice Bryant and those currently conducting the reviews into the Family Law Act and the operations of the Courts may wish to ponder on some of these issues, as part of the fundamental reforms which are needed to the Family Law Act.

If children’s needs, wishes, and rights are not given paramountcy over father’s rights as specified in current legislation, then they will be condemning another generation of children to physical, sexual, and emotional abuse and even death as has been so frequently seen in the recent past.

Charles Pragnell

Diploma in Social Work and Letter of Recognition in Child Care Expert Witness – Child Protection and Social Care Consultant and

Child/Family Advocate.