By Gianna Huesch
When will the Federal Government finally respond to the ongoing calls for a Royal Commission into Australia’s family court system?
Over the past year in the media we’ve been regularly confronted by child advocacy group Bravehearts’ campaign to have the Government to expand its Royal Commission into the Institutional Responses to Child Sexual Abuse to include the family court system.
As the issue continues to proceed through the media, the danger is that confidence in Australia’s family law court system continues to be undermined, it is regularly attacked as failing families and its practitioners described as untrustworthy and misguided. For example again now, under The Australian’s headline (Bravehearts founder) “Hetty Johnston attacks Family Court judges”, it’s once again the practitioners taking the heat. So far, we have zero clarity on the issue from the Federal Government as to an outcome on a Royal Commission.
Why call for a Royal Commission? Bravehearts says it’s due to the constitutional issues involved, where “the Federal Court is a federal court, the states can’t tell the federal courts what to do and a parliamentary committee can’t tell the states what to do, not with any hope of any outcome”.
Johnson argues again that family court judges base decisions on an “archaic, dangerous and wrong presumption that allegations were false” and that parents are coaching children to obtain advantage over the other parent (which in some cases, will no doubt be true—the question is whether it is as pervasive as claimed).
Bravehearts frequently comes up against the Chief Justice of the Family Court Diana Bryant on this issue. Forced to defend the courts again, Ms Bryant says that Bravehearts’ claims are “patently untrue and anyone who looked through all of the court’s cases would find there are decisions which go each way (ie, determining whether allegations are false or not), as you would expect with an impartial judiciary.”
The advocacy group led by Johnson takes aim in particular at Independent Childrens Lawyers (ICLs), who are appointed by the Family Court to represent the child’s interests, saying ICLs are “routinely failing to meet the children or doing so only briefly…These ICLs are lawyers, they’re not child protection experts, they’re not child behavioural experts and yet they’re giving recommendations to the court that the courts are accepting.” Johnson argues that Family Court practitioners “shouldn’t be having to decide those matters, that’s not their job and the experts that they’re using are not experts”.
One solution, according to Bravehearts, is to implement “nationally consistent guidelines for child protection, how children were assessed and how courts treated those assessments”. In its other story, The Australian canvassed the views of former family court judges, among others, on the issue of children at risk. The consensus did seem to be that the problem is the ad-hoc nature of the child protection framework, and that child protection services need a national register, as with domestic violence. It does seem that other experts interviewed by the newspaper point to issues around resourcing as the major problem. There is a clear need to employ more judges and more counsellors and family consultants given the increase in the number and complexity of cases. There is also the need to maintain and increase Legal Aid budgets. The cost of experts is another problem, with a professor of law quoted as saying expert evidence has become a “major financial issue” and that “many parents in the Family Court system were unable to afford independent child psychiatrist reports”.
The issue is particularly pertinent given the newspaper reports that “one fifth of cases in which final orders were handed down last year had a notice of child abuse or family violence risk filed with the case, meaning the affected children were allegedly exposed to the traumatising effects of family violence or suffered sexual abuse”.
At Alliance, we have been closely following the debate being played out in family law in this country over the past few years. At its root it seems to be a question of trust. Australians need to be able to trust that our family law court system will get it right for children, and parents. We need to be able to trust that our courts are adequately resourced and able to cope with the demands on them.
It’s clear that Federal attention is desperately required in this area. The Government must at least make a decision on a Royal Commission one way or another, sooner rather than later, and fully explain that decision to Australians. At Alliance, we cannot really understand the delay in Malcolm Turnbull’s decision making process. A year to reflect on the issue is surely long enough?
Sources: http://www.theaustralian.com.au/business/legal-affairs/hetty-johnston-attacks-family-court-judges/news-story/2241f5f69f7f301fa12ee79e65640768 and http://www.theaustralian.com.au/business/legal-affairs/children-at-risk-falling-through-the-gaps-in-state-legal-systems/news-story/cc4c6d310408eb0d046ea87607ca40c3
Do you need assistance with a family law matter? Please contact Canberra family lawyer Cristina Huesch or one of our other solicitors on (02) 6223 2400 for expert advice.
(Please note: Our blogs are not legal advice. For details about how to obtain correct legal advice please arrange a free conference with Alliance Family Law.)
