Australian Paralegal Association on Family Law and Child Protection
- Details
- Category: Australian Paralegal Association
- Created: Thursday, 16 November 2017 22:22
- Written by Alecomm2
(Sent to Your Honour Judy Small),
I viewed your engaging speech on accountability, engagement and activism. In your Talking Justice presentation you discussed how the State ‘remains’ accountable and responsive in achieving justice. This was presented at the Loddon Campaspe Community Legal Centre, published on 02/06/2016. I hope you may find my reflection valuable.
My lived experience and academic background in behavioural neuroscience, education, analysis of legislation and research, and work through the Australian Paralegal Foundation, has informed me to fiercely advocate for protective parents through the family court and the child protection system for the last 5 years.
I have insight into the gaps in the system which have elevated risk, and consequently, have often facilitated unacceptable harm to the demographic you and I hope to empower. I have shared this insight with ministers, stakeholders and media at the National Family Violence Summit in Canberra this year, and consistently liaise with many victims groups and stakeholders to promote protective system reform.
I respectfully disagree with your contention that children’s voices get heard via an ICL or report writer, in practice. This is a rarely used option, and if used at all is inadequately presented due to the lack of expertise and often empathy. My submission to the current parliamentary inquiry into a better family law system for victims of violence, (submission 8a/8b), expands on this in detail. I will forward this separately.
It was interesting that you presented at the Loddon Campaspe Legal Centre, (CLC). Your shared a public platform with the CLC, which presented a further video published on 20/08/17. Yours words spoken there, just over a year earlier, have clearly fallen on deaf ears.
This video includes Nickie King, a senior lawyer at the CLC, family dispute resolution practioner, and participant in their child protection pilot. Unfortunately, in my view, many of your legally minded cohorts do not share your paradigm on the imbalance of power, safety, equality and justice for women in particular, and their families.
Ms King claimed that the CLC is funded for court based litigation work and reactive programs by Victorian Legal Aid. She stated that their generalist service involves; family violence duty lawyer services, a health-justice partnership, the child protection program, and a community partnership involving a lawyer and project worker. She is involved in a pilot that delivers child protection legal services and information. Ms King then stated that child protection services are aimed to prevent issues by targeting policies and interventions, such as the Victorian Child’s First programs, that look at known risk indicators to reduce the impact of social harm. Funding for these services is dependent on demand, largely after removal. Ms King’s language alone underpins the systems incentive for reactive protocols after removal.
Ms King discussed opportunities for advocacy. She inferred that they were not supportive of external advocates outside of court. This is a missed opportunity for oversight and accountability. You have stated that advocacy works ‘enough’ times for it not to be heartbreaking.
The child protection system does not support this contention. Independent reports and advocates are often disregarded. The in-house inadequate investigatory process, lack of expertise, transparency, accountability and oversight, is adversarial to the parent and child’s voice.
Similar patterns and silencing has been observed by thousands of families encountering the family court. Protective parents and victims of abuse are often not heard, in preference of perpetrators manipulating report writers and ICL’s, with shady alienation/mental health accusations. Have you ever questioned the validity of a report writer who opined that a mother has a newly diagnosed ‘mental health issue’? Have you considered that a mother has withheld the child for his/her safety? Many of your colleagues do not. They quietly support Gardner’s scientifically unsound rants, call past violence ‘historic’, and fail to recognise patterns of behaviour or risk.
Are you aware that many mothers are being told by their lawyers not to raise issues of abuse? It is widely understood that even the strongest verified reports are dismissed when the perpetrator claims alienation. The alienation counter-response is a powerful tool for perpetrators. This has resulted in high risk determinations and many protective parents losing custody of their children. This obviously exposes the victims to further court facilitated abuse.
In mainstream media the alienation argument is fuelled by extremist father's rights groups and uninformed biased ministers such as Pauline Hanson. Incidentally, her lack of insight into child safety extends to endorsing characters such as Jayson Dalton in 1988, a Queensland candidate, who contested the seat of Kennedy in 1988. This man was involved in a custody dispute and was reported to have murdered his two young children, as detailed in the Sydney Morning Herald on 26/04/2004. Her recent endorsement of Mark Thornton’s dv ‘joke’ sets a concerning tone if she to be taken seriously in any conversation involving protective family law reform. The voice of the victim is minimised through the bias and ego of similar stakeholders who promote high risk contact.
You may find of interest my response to a man attempting to support Justice Collier’s shady PAS paradigm. There's some research in my response that your cohorts may find useful to know...
J.D your article from 2013 propagates misinformation. Justice Colliers uneducated opinion is part of the reason many violent parents are able to commit further family violence through access. His view is not aligned to research done by the Leadership Council in the USA which has consistently shown that false allegations of sexual abuse are rare and that children tend to understate rather than overstate the extent of any abuse experienced.
Gardner's (1999) theory of 'parental alienation syndrome', which is not supported by research, has been used to support the concept that this type of alienation is used through methods such as fabricating allegations for advantage in disputes. This is NOT supported by the reality in most cases.
The Australian Institute of Family Studies highlights an analysis of 10 years of reports of sexual assault (Lisak et al)., and found the actual figure of false reports to be around 2%-10%. The higher percentage included inconsistencies in data collection, including police reports where crime was detected but not proceeded with.
Your article encourages SILENCING GENUINE PROTECTIVE PARENTS which puts the safety of children at risk by promoting access arrangements which favour an abuser.
The standard family court and child protection investigatory processes often results in inaccurate reports which do not adequately consider risk factors. This general practice, protocol and paradigm, certainly conflicts with your oath inclusive of; “… I will do right to all manner of people according to law, without fear or favour affection or ill-will”.
The National Domestic and Family Violence Benchbook does not appear to be considered in practice by many of your cohorts. It is common that complex patterns of violent and abusive behaviours are ignored and the perpetrator’s control is facilitated by the court.
The adverse consequences of re-victimisation and individual vulnerabilities are not adequately addressed by the court.
This is largely due to the family violence best practice principles which state that unresolved criminal or state proceedings, may be considered throughout the family court report writer risk assessment process. Astoundingly historic, resolved criminal proceedings do not even rate a mention in the principles, eliminating a window to analyse past behavioural patterns and risk. This terminology should be replaced with must.
It is noted that the principles state that consultants must ask each party if they view that abuse and violence as an issue in their case.
It is inadequate that the superficial checks and balances with the standard process, admits heresy as a level of acceptable probability, without corroborative, sound evidence. This enables the manipulative perpetrator to act as a biased authority on the genuine victim’s history, often manipulating facts to present as a false victim. It is unacceptable that this approach holds weight over actual criminal history, which is ignored in the principles, or current criminal proceedings which may be considered.
Judicial officers appear blind to the range of perpetrator behaviour and perceptions detailed in the Canadian Domestic Violence Bench-Book they are referred to understand through our own Bench-Book. This is not surprising as many players in the family court are experts in law, not family violence. Is it not inevitable that this flawed process will catalyse high risk determinations?
The greater weight in the family courts should be to protect the child from harm as stipulated in sec 60CC(2)/(2a)FLA and sec 66C(2)/(3a)FCA. It follows that expertise in the types of harm and adequate assessment of parental capacity should be prioritised.
Currently, in practice, many orders for contact are determined with an unacceptable risk of harm for the child. This is largely due to family consultants and reporters following inadequate risk assessment processes. Their observations which strongly inform determinations are rarely validated with sound science.
The family court and child protection systems must use experts with particular expertise for each risk issue, which affects parental capacity. An immediate remedy would for the chief executive officers of the family and federal circuit court, to appoint independent consultants with particular expertise in family violence, sexual abuse, substance abuse, mental health and child development insight, under the family law regulations, 1984-reg.7, (Acts11B).
The improvement of process and expertise can substantially facilitate more accurate assessment of risk and consequently more protective judgements. This expertise, in conjunction with substantially monitored perpetrator interventions, information sharing between states and federal, employment of 68R by State judges, (when determining protection orders), are also steps Judges and legislators should promote to minimise secondary abuse by the system.
Similar process failures are rampant within the child protection system where unsound, unverified, investigatory process and inadequate expertise, facilitate interventions, reminiscent of case law acknowledging fruit of a poisonous tree. Ms King’s focus on early legal intervention and order compliance, noted that responses are often crisis driven after removal. She used the example of a young girl who lost her daughter following the consequences of being in care herself. She ignored the obvious questions surrounding why this young mother had experienced trauma due to being in care..., and so the cycle continues.
This focus on early legal intervention, in preference of supportive interventions prior to removals, facilitates injustice and perpetrates systematic abuse. It would be much more beneficial in these cases to educate and empower families to break cycles of abuse and violence, to increase parental capacity and general well-being.
This more reasonable approach would include family violence and abuse experts and child developmental and behavioural expertise, based on sound science and good practice. This is not happening.
Issues surrounding why this mother was not offered supportive services to raise her child in the first instance were ignored. The system ignored the absolute trauma inflicted on this young mother by removing her baby. This event alone is likely to directly inflict immense trauma and facilitate mental health issues, which could reduce the parental capacity of that young mother. Why was this young woman not given the opportunity to be heard and use the power of her own language in the child protection system? This mother was not dreaming of the stars you speak of, her daisies were trampled by the system you are engaged in.
The discussions surrounding the CLC pilot highlighted that, a large focus on funding was spent on agitating for time in court fighting parents who are trying to get their children home. The lack of post-court assistance to clients was obvious yet left unanswered.
Apparent independent evaluations collated through the CLC and
Atlas, included stakeholders, a small number of clients and the prioritised cost analysis. It was stated that ‘monitoring and evaluation frameworks’ used a survey of only 30 clients which were provided to legal aid. Apparently 80% of clients felt satisfied with their services. The questions used in this ‘research’ should be independently analysed. I highly suspect that parent’s who have had their children removed, would not be so favourable to this archaic intervention. It would be interesting to consider whether these parents were independently randomly selected. Yet again the child’s voice was ignored in this ‘research’. Not surprisingly, it was then glossed over, that this data was still being evaluated. The presenters were commenting on an incomplete small survey.
Ms King highlighted that it was difficult to support a large number of clients as she was often busy in court. She inferred that the parents’ affidavits were not as weighted as the departments’ documents in court, and if presented, were a minor consideration.
Where is the parents’ voice? If the department congruently intended to present an accurate portrayal of risk wouldn’t they encourage a thorough presentation of both sides?
Respectfully, the equality, empowerment and voice you promote are often not heard in practice. The family court and child protection systems are actively re-traumatising many victims of violence and abuse. Protective mothers and children certainly have nothing to sing about, nor see the daisys you speak off, as these have withered under the toxicity of current legislation, and processes.
I hope you may consider the injustice within these systems, and unite with the growing voice, to restore protective oversight, in the family court and child protection systems for the safety of our children and family unity. I invite you to share any ideas that resonate with you at your upcoming breakfast with the Respectful Relationships team on the 24th November. As this is a forum held through the Education department and training, it may also be valuable to raise issues such as the introduction of trauma-informed teaching, to help teachers build resilience and engagement in trauma affected students. I can forward further research regarding this if you are interested.
I thank-you for your advocacy, regarding protecting children from family violence and abuse.
Regards and thankyou for your consideration
Mishka Hudson
Australian Paralegal Foundation
