05 May 2009 MEDIA RELEASE
Family Law Court Soft on Justice
Recent media reports that the Chief Justice of the Family Court, Diana Bryant, has called upon the Attorney-General to give urgent consideration to repealing one of the most fundamental protections in the recent Family Law Act amendments is almost without precedent and a recipe for wholesale failure in the integrity and operation of the Family Court System.
The Shared Parenting Council of Australia maintains that such a retrograde step would encourage a wholesale rise in mischievous allegations made in Court and to Child Protective Services. It would increase the frequency and severity of false statements including false allegations of abuse and violence against parents and grandparents simply seeking to continue parenting their children after separation and divorce.
Ed Dabrowski, Federal Director of the Shared Parenting Council saidThe Chief Justice's call to repeal amendments to the Family Law Act in relation to awarding of costs against the party that maliciously raises untrue allegations of violence or makes untrue denials, will re-open the floodgates to increased perjury, false allegations and flies in the face of findings by two parliamentary enquiries, and natural justice with an end result diametrically opposed to a child's best interest.
Without any supporting evidence, that there is in fact any harm at all being created by these reasonable and well accepted amendments in the 2006 legislation, the Chief Justice has engaged in a media campaign to undo one of the fundamental protections available to any litigant, anywhere in any other law jurisdiction in the world
It is even more curious that notwithstanding that these amendments had been foreshadowed since 2003 and enacted in 2006, the Chief Justice herself has only just released guidelines for Judges, 'The Family Violence Best Practice Principles' to guide the judiciary in this regard.
It would appear that any deficiency in the lodging of 'Notification of Abuse' forms should rest with a failure to educate lawyers and those members of Family Relationship Centres.
If such education is required, then the education of practitioners in the correct use of these forms should be enacted, not the wholesale repeal of this fundamental protection in law
Surely, the Chief Justice couldn't be condoning the re-establishment of a 'penalty free' process for one parent to make false and malicious allegations against the other this defies every process of law in the Westminster system. If any amendment would be required, it should be to ensure that perjury is punished by criminal sanction, not the repealing of research based amendments made just some three years ago
Allegations are routinely reported to the courts in case documents and it is for a Judicial Officer to determine the basis of these allegations.
According to Mr Dabrowski, the Family Court had proven reluctant to sanction or fine parents in apparent defiance of the new laws, yet had shown no hesitation in segregating accused parents from their children and making no-contact orders on hearing untested allegations or removing one parent when entrenched conflict was a case factor.
The Shared Parenting Council of Australia receives many complaints from parents where the Court?s cautionary? approach to allegations resulted in impaired or total loss of contact without the allegations ever being proved or even investigated.
The new legislation in 2006 was designed specifically to ensure that children did not lose all contact with one parent and to ensure both parents understood their responsibilities in parenting after separation. Any watering down of the section relating to a "willingness of each child's parents to facilitate and encourage a close and continuing relationship between the child and the other parent, will be vigorously opposed.
Mr Dabrowski lamented and saidlegally unimpeachable parents were being treated like criminals and easily lose their children, without due process, at the discretion of judges. He said, Diana Bryant is in effect saying that the most hostile parent ought to have the power to veto the other parent's involvement, no matter what. She is advocating the law change to grant permission for one of the litigants to come in with fabricated or at best flimsy allegations which would veto the child?s best interest, to veto shared parenting, a remedy that fosters the best interests of children and is otherwise encouraged by the law.
The Shared Parenting Council has been at the forefront of much legislative change and suggests that early intervention measures should be mandatory for separating parents where escalating conflict is often caused by one partner withholding contact from the other.
For interviews phone: Edward Dabrowski Federal Director Shared Parenting Council of Australia Tel. 0409 917 345
Email : The Director SPCA
Email : The Executive Secretary SPCA
PO Box 330, Gosford NSW 2250
The Shared Parenting Council of Australia strongly supports all reasonable initiatives designed to protect women and children from violence.Reference material The Problem with Caution
At the same time the Council points out that the recent "exposure" of this subject in the SMH seriously understates the full extent of the problem of family violence. The Sydney Morning Herald articles in question limited the discussion to battering of wives by husbands this type of violence is indeed a serious matter, deserves condemnation and merits protective programs.
However, family violence is a more complex issue and includes also serious instances of female violence towards men, women and children. The incidence of maternal violence to children, both physical and emotional, is especially worrying yet attracts no media attention. The media have a duty of care to report accurately and the public have a right to know who are the real perpetrators and the real victims. The narrow focus of the SMH in reporting only mens violence against women ensures that the other groups affected by violence remain hidden from public view and leaves the vast majority of victims of violence without a voice and a campaign that speaks for them.
The claims by SMH journalist Ruth Pollard (Courts put kids at risk, 25/11/08), that changes to the Family Law Act are compelling courts to hand children over to violent fathers are false and scurrilous.
These claims are an insult to judges and magistrates who apply the law and deal daily with serious relationship issues.
There are precise safeguards in the Act to exclude shared parenting and joint parental responsibility in cases where there are real issues of violence, conflict or abuse. The allegation that women are being "forced" into mediation with violent ex-partners is particularly mischievous. The Act does nothing of the kind, and mediators and community agencies have screening strategies to identify cases in which mediation is inappropriate.
We welcome the Federal Attorney General's statement that he is consulting with all stakeholders in examining the real effect of the shared parenting legislation. We urge him to reject the arguments of biased advocates, more concerned with advancing their own agendas than with the real interests of children and women. Reducing mothers to victim" status is a favoured strategy of radical feminists opposed to men and does nothing for the protection and welfare of women and children.
The SPCA will suggest to the Attorney General that he consults widely with the judges, magistrates, lawyers, mediators and counsellors who deal regularly with separated families in and outside the courts. Reports that have come to our attention speak favourably of the application of the shared parenting legislation and the new collaborative approach to sound parenting post divorce.
The Executive Secretary of the SPCA, Wayne Butler saidRecent judgements show clearly that it is a complete nonsense to suggest that the Family Law Act has in any way softened the approach of the judicial officers to cases of family violence and alleged violence. In particular I refer to Miller & Brass 2008 FamCA 944 (30 September 2008) and Short & Trevilian (No. 2) 2008 FamCA 215 (25 March 2008).
In both judgements, reference is made to the new Act, particularly with regard to the impacts of s60cc in these cases. The court acted to prevent exposure of the children to potential violence even though it was considered improbable that any violence would occur. The judgements in those cases make it crystal clear that safety and the interests of the child continue to be paramount.
We strongly suggest that nothing less than five years would provide adequate time, experience and material for a full and careful review of the effects of the reformed Family Law legislation.
We trust that the Attorney General will not be persuaded by anything less.