Remember it is the mother who is most abusive. Repeat 100 times on the chalk board Overington until it sinks in.MJM
Caroline Overington | October 05, 2009
THE Family Court rarely makes orders preventing a parent from seeing their children, even in cases where there is a history of violence.
That is the conclusion of the Australian Government Solicitor's report into domestic violence law, delivered last week to federal Attorney-General Robert McClelland. The report, Domestic Violence Laws in Australia, says violent parents are getting access to their children, in part because the court doesn't regard an apprehended violence order as proof of violence, or else doesn't know one exists.
The result, says the report, is a system in which it is "relatively rare for a court to make an order ... that denies a parent contact with a child, including in cases involving allegations of family violence".
Where family violence is alleged but not supported by evidence, the court "is likely to make orders for contact between children and parents. There is some evidence that courts take a more cautious approach to contact issues when allegations of family violence are substantiated by evidence. However, it remains rare for a court to deny a parent any contact with a child."
The problem with this is that "the absence of evidence of violence cannot be assumed to mean that the allegation is unfounded or untrue". The government solicitor notes that family violence "often goes unreported at the time it is committed".
Then, too, the report says courts are busy encouraging parents to be "friendly" with each other after divorce. Those who aren't may get less time with their children. The result is that "women who cannot prove their claims of past violence may be advised not to raise the issues at all, for fear of being labelled unfriendly or hostile".
The report says the Howard government's shared parenting laws, introduced in 2006, have set up a regime where contact between children and both their parents is almost always considered to be in the child's best interests. The laws are being reviewed by the Australian Law Reform Commission, which is considering "what, if any" improvements to the law could be made "to protect the safety of women and their children" and by the Australian Institute of Family Studies, whose evaluation will include a study of whether it is more difficult for parents to relocate after divorce.
The shared parenting laws were designed to ensure that children have the benefit of both of their parents having a meaningful involvement in their lives after separation. The underlying principle is that children "have a right to know and be cared for by both their parents" while being protected from "physical or psychological harm".
The government solicitor's report says the shared parenting law "does not state clearly which of the objects and purposes should be given priority if there is a tension or conflict between them".
"The greatest potential for conflict probably arises when a parenting order under the Family Law Act and a state or territory domestic violence protection order are in force at the same time."