A review of the Family Law system has been scathing in its criticism of court orders, finding that the Family Court is systematically failing children it’s supposed to be protecting.
When James* was just six years old, the Family Court of Australia ordered that he live with his abusive father, a man who’s documented file with the Department of Family and Community Services was extensive, and included three separate reports of child sexual abuse by three different women, all previous partners. One of those reports had been investigated and ‘substantiated’.
Despite this, James, a vulnerable, defenceless child, was taken from his mother, and placed into the care of his father. For years after that, James suffered emotional, physical and sexual abuse.
In an ideal world, James’ case would be a rare and isolated error. But unfortunately, it’s not.
James’ story is one of many harrowing examples uncovered by the recent Australian Law Reform Commission’s (ALRC) review of the federal family court system. The review has exposed one of Australia’s greatest shames – a litany of problems across the entire family court and child protection system, which has meant that children are often delivered into harm’s way, and left there, to cope on their own.While some were ultimately able to take matters into their own hands – James, who is now 19, eventually convinced police to take an Apprehended Violence Order out on his father, and another, Sarah*, ran away, to her adult step sister who fought legally to take her into care – others have suffered horrendous fates. Tiahleigh Palmer, for example, was killed at the hands of unfit adults.
The Family Court and Federal Circuit Court were recently merged in a bid to ease pressures on the system which has long been criticised as slow, confusing and prohibitively expensive – making it out of reach for those who need it most.
However, as the ALRC suggests that these issues are just the tip of the iceberg.
The ALRC inquiry has found that one of the greatest problems in the entire system is the communicative gap between the federal family court and state and territory courts, child protection services and police.
The Federal family courts often hear allegations of family violence and child abuse, but they have limited powers to investigate them, and instead rely on state and territory courts and agencies to do that work and to share information about the risks to families and children.
Another great hindrance is that information databases do not enable FACS staff to immediately connect historical information, such as the allegations of abuse against James’ father, to James’ file, to build a picture of the families they’re dealing with.
A third problem is the power afforded ‘court writers’ who are relied heavily upon to provide ‘expert testimony’ that will often impact a court’s decision about the living arrangements of a child.
Under the Family Law Act 1975, the court must consider the child’s safety, but also their right to a meaningful relationship with both parents.
In order to make such decisions, courts rely on consultants such as family report writers to make recommendations about what is in the child’s best interest. These report writers ‘fill in the gaps’ identified above. These writers are often psychologists, psychiatrists or social workers, but they are not required to have specific training or expertise in family violence or child sexual assault.
Last year, in New South Wales, a family report writer was referred to the Medical Council for investigation after a series of complaints from parents. The incident has put the role of ‘expert writers’ into the spotlight.
These individuals carry enormous responsibility and wield extraordinary power when it comes to influencing the outcome of family court cases.
Many believe the bar is set too low when it comes to the expertise of these people, and that accountability mechanisms in respect of the assertions they make are insufficient. They highlight the fact that inaccuracies can have a substantial and irreversible impact on families. While there are Australian Standards of Practice of Family Assessments and Reporting that private report writers are encouraged to comply with, they don’t necessarily have to.
Plans for reform
ALRC has made 60 recommendations for reform of the system, one of which is to take the family court system out of the federal domain and put it back into the states and territories, where it has better access to other resources.
This goes directly against the merger of the family courts and Federal Circuit court currently underway.
Despite this, Attorney General Christian Porter says he “fully committed to considering and developing individual responses to the complex issues raised in each of the recommendations made in the final ALRC report”.
Earlier this year, the Attorney-General’s Department announced $11 million in funding over three years to place state and territory child protection officials in family law courts across Australia and the family courts in Victoria have launched an information-sharing protocol with the state health service — initiatives that go some way towards bridge the jurisdictional gap.
And there is a great deal of pressure to improve the system. Not just from families currently affected by its inadequacies, but from adult survivors, such as James and Sarah, who are part of a growing movement of Australians coming together to demand change.