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Family law is failing kids - ABC News (Australian Broadcasting Corporation) 21/7/17, 2'02 pm

Family law is failing kids

By Catherine Gander
Posted Thu 26 May 2011, 3:28pm

Imagine for a moment that you are going through divorce or separation
and you fear that your ex-partner is harming your children.

You seek help from community services who advise you to remove your
children from harms way, but you are prevented from doing so because
your ex-partner has shared custody ordered by the Family Court. You go
back to court to review shared parenting, but a lack of evidence results
in your ex-partner retaining unsupervised access. Your children remain
at risk of ongoing harm. Unfortunately, this scenario is not an isolated
PHOTO: (File image: Kat Jackson

Thats why three major inquiries into the ability of the family law system
to respond to family violence were conducted by the Australian Institute of Family Studies, Family Law Council and
Family Law Reform Professor Richard Chisholm. They concluded that the Family Law Act and its principle of equal
shared parenting were unintentionally undermining the legislations clear aim to protect children from child abuse,
neglect and exposure to domestic violence.

The result of these inquiries is the proposed Family Law Legislation Amendment (Family Violence and Other
Measures) Bill 2011 currently before parliament with Senate hearings set for 9 June.

In a bid to better protect children and other victims of domestic violence, the Bill rightly seeks to define child abuse
more broadly to

include exposure to violence, remove disincentives to victims of violence reporting abuse, improve courts access to
evidence of family violence, and make it easier for state and territory child protection authorities to participate in family
law proceedings.

Divorce is common in Australia, affecting about 55,000 couples and about the same number of children. In most
cases where parents are separating the family law principle of equal shared parenting is desirable and works in the
interests of both parents and children.

But in some families, where there is a history of domestic violence or abuse, or a threat of violence, the family law
principle of co-parenting is unintentionally dangerous if parents are not helped to raise their fears, claims of violence
or abuse are not taken seriously, or the court process struggles to identify risks to children.

Our 56 womens refuges across NSW often see women who are directed to remove their children from violent
partners, but when they prepare their case for the Family Court they are counselled not to raise allegations about
domestic violence for fear of being seen as unfriendly to shared parenting and risking a negative custody outcome.

For the most part, our family law systems Family Relationship Centres help thousands of couples every year to
successfully negotiate post-separation parenting arrangements through mediation. It is only when there is violence or
other abuse that parents are referred to the Family Court. Page 1 of 2
Family law is failing kids - ABC News (Australian Broadcasting Corporation) 21/7/17, 2'02 pm

Our own Womens Family Law Support Service that operates from the Sydney Family Law registry supported more
than 200 women in 2010, 81% of whom identified family violence as an issue. In one case a young boy ended up in
hospital after an assault against him by his father during contact. The father was charged and police took a Protection
Order out on behalf of the child. The mother went back to court to seek a review of parenting orders, but the judge
said the Protection Order would improve safety and ordered the mother to continue to facilitate unsupervised contact.

Why does this happen? In part because we have a Family Law Act that now puts the rights of the child to have a
meaningful relationship with both parents at the forefront of decisions about custody to the detriment of the safety of
children. The 2006 amendments to the Act strengthened the principle of equal shared parental responsibility. This has
put judges under pressure to make orders that, in some cases, give children unsupervised contact with abusive

The Family Courts difficulties in raising, identifying or recognising risks to children arises in part from a lack of
coordination between the State legal and child protection systems and the family courts.

As a society we like to think that we have no tolerance for domestic violence at any level. Yet we endure a family law
system that has serious systemic gaps obstructing parents mostly mothers, but not always from raising fears for
their children.

Its time we recognised that we are all part of a culture that struggles with and habitually denies the extent of domestic
violence and abuse in family life. The Australian Institute of Family Studies Evaluation of the 2006 Family Law
Reforms that surveyed 10,000 couples who had separated after 2006 found that one in five parents reported concerns
for their childrens safety during contact with the other parent.

Our culture of denial also contributes to a family law system that struggles to recognise abuse owing to a limited
definition of family violence. Thats why the changes before parliament have expanded the definition of family violence
to include childrens exposure to violence and a range of behaviours, including coercion, torment and financial abuse.

It defies logic that in legal practice a parent who is violent to their partner can be considered a bad partner but a good

It is time to make childrens safety a priority in family law.

Catherine Gander is the Executive Officer of the NSW Womens Refuge Movement (NSW WRM).

Topics: family-law, law-crime-and-justice, family, family-and-children, community-and-society Page 2 of 2