Posts Tagged ‘ICL’

Australian Family Courts are still alienating Children.

April 18, 2013


If you think the Australian Family Court isn’t capable of being abusive to children, think again. The most important part of ‘what is best for children’ is often overlooked by the keenness of ‘experts and Independent Children’s Lawyers’ (I.C.L) to engage in their often biased and latest sociological quackery. At no stage do the wishes of the children come directly before the Courts. Experts and ICL take over and give their opinion of what should happen to children.

The area of making errors is huge, not least by expensive lawyers whipping up discords and marital whiplash between the warring parties. Often it is a fight to the bitter end with children coming in last instead of first.

The inherited adversarial British form of Justice is the ideal vehicle to make a bad situation even worse. Lately the term ‘less adversarial’ is bandied about in Family Court as if it is spared from some of the worst excesses of Criminal Courts. It is not. It still pits one party against the other. Just spend a day in Sydney’s Goulburn Street Family Court and  ‘the less adversarial’ soon oozes out into the grim faces of the warring couples with the swishing of jovial barristers gowns about the only ‘less adversarial’ item on display. At five thousand dollars a day, who would not be boisterous, smiling and engage in a bit of swirling about like insane dervishes on a shish kebab bender?

The outcome of a family Court case by and large is in the hands of barristers and Court appointed Experts. If one partner doesn’t have the funds, legal aid might be provided. The legal aid will not pay for barristers. If the other partner has money and employs a barrister, chances are he/she will win. If both employ a barrister, the more expensive one, ‘by and large’ will probably win, if not by tactics, then by exhausting the finances of the other.

But, going back to actual cases, it is the aim of the Court to always determine an outcome based on ‘what is best for the children’. This sound reasonable but in the hands of lawyers, ‘experts psychiatrists’ and Court appointed counselors; this concern for those children does not include being heard directly. Children do rarely, if ever, appear in Australian Courts. Yet, they are often fought over tooth and nail.

One of the most contentious areas being used in Australian Family Courts is Parental Alienation with at times terrifying results. While many marriages and relationships seem to end on what could be described as for superficial reasons, there are others that have genuine impossible situation where the harm to children is foremost on the mind of the parent wishing to end the relationship. Very logically, children of an abusive relationship then often choose the non-abusive parent to live with. If a couple cannot amicably end the relationship and decide on a Family Court to resolve the issues; let there be a loud warning.

While many countries have disbanded and disallow Parental Alienation syndrome from being used, Australian Family Courts still persist in this very controversial unproven practice to be used extensively.

The main theory behind Parental Alienation is that instead of accepting , first and foremost, the logical explanation given by parents and their children wanting to live with one parent more than the other or not all because of having suffered abuse (psychological or physical). The Court uses the appointed ‘expert’ to determine the bone fide of the children’s wishes. The ‘expert’, often a psychiatrist, then uses this unproven Parental alienation theory to turn around the children’s concern by blaming the preferred parent of ‘somehow’ having turned (alienated) the other parent against the child or children.  In their keenness to have the children be looked after by both parents, they run the chance of overlooking the issue of the ‘habitual abusive parent’.

They use techniques in asking loaded questions; do you love mummy, do you love daddy etc?  Answer: Children love daddy and mummy, even bad ones. While physical abuse can be more easily detected, it is the well hidden emotional abuse that children have great difficulty in articulating. This is the contentious side of ‘experts’ to indulge in at best, a very controversial side of psychology. It remains unrecognized, unproven and certainly far from being allowed by most countries in Family Courts.

Young children might say; my daddy or mummy is ‘mean’ to me, or, they ‘make me cry’ etc. A bruised eye or broken arm is easily shown up, but a bruised soul or broken spirit is far more difficult for children to express. Certainly, it is the short time or so by the expert psychiatrist or therapist with a seven year old child that their bruised psyche or soul could easily slip by unnoticed, let alone give proof of that in Court. This is especially so, when the ‘experts’ are disciples of The Parental Alienation credo.

It is at that point where  logic and directness is at greatest risk of becoming corrupted by the adult ‘expert’, a complete stranger, that the child runs the most risk of being handed to the abusive parent. While there are of course couples so warped in hatred to win at all cost they might indeed alienate their partner from children. But, there are also, perhaps the majority, who have genuine reasons to break up because of an abusive partner. Children of course should then not be forced by a Court against their wishes to live mainly with the abusive parent. Yet in Australian Family Courts it happens often.

The balance of probability in the Court should indeed be weighted in favour of the child’s welfare and wellbeing, ALWAYS.

It should never be weighted in favour of the parent that is abusive. While parenting is not an exact science, a parent that is abusive should not be allowed to be seen by the Court as a victim of deliberate alienation by the other parent.

It is the abuse that alienated the child from the parent and not the other way around. You can imagine how this would damage children. Yet, in Australian Family Courts it happens often that the distant abusive parent is seen as being the victim of the other parent’s attempt at alienating them from their children. What nonsense!

The Parental Alienation is a very loopy theory but it is still used in our Family Courts.

Family Court excludes Children. Where are their voices?

May 31, 2012

Fam Court excludes hearing the Children. Where are their voices?

In Australian Family Court disputes it is often the children that miss out on being heard by a Federal Judge or Magistrate. In most cases, even though the judge or magistrate has the power to hear the children, it is rarely exercised. In many cases it is the Independent Children’s Lawyer who represents the child/children/ (ICL). In Germany and many other countries, the Family Court Judges always hears the child. The argument generally holds that there is now a growing understanding of the importance of listening to the children involved in children’s cases. It is the child, more than anyone else, who will have to live with what the Court decides.

At the moment while Federal Judges and Magistrates can hear the children in Court. A survey has shown most decline the opportunity and rely on the ICL and other ‘experts’ for advice during the procedures. The cases coming before the Family Courts deal with property and access to children. The fact of Court action is generally a sign that the parents haven’t been able to amicably deal with the separation. Access rights to children are often just as heatedly fought over as the division of property.

The Family Court in all cases  decide what is ‘best for the children’; it seems therefore ironic that the children are not given the opportunity to bring their wishes in front of the Court like in many European countries that are signatories to the Convention on the Rights of the Child.(UNCRC)

While it is unsatisfactory to say that children should all have the same rights as autonomous adults, including the rights of freedom of expression and the freedom of association and all other rights that adults own, it is equally unsatisfactory and unjust to say that children have no rights of this kind and that their rights in Court matters are irrelevant to the task of adults determining and deciding what is best. It seems to ignore the claim of children to be treated with respect and dignity instead of, as is often the case in Family Court battles, fought over objects.

As Australia has been a member of the convention since 1990 it seems  to beg the question why children are not heard in front of a Court and allowed to give their choices of those matters which the Court determines is in “the best interest of the child’. Why should they not be given the right to appear in Court?

Often the reason given is ‘parentification’ of the child.  In parentification the child is choosing one parent over the other as a need to protect the one parent over or against the other. In Family Court cases it is not unusual that one or both parents are deemed to have put the child in this position to try and enhance the prospect of getting more time with the child than the other parent. The child is expected to act as the parent to their own parent and sometimes over other siblings as well. The issue is very complicated because in some cases one of the parents might indeed be totally unsuitable as parent or as the primary caretaker. This is especially when there is violence against the other parent or children alleged, or in the case of drugs and alcohol abuse. However, parentification together with alienation theories about children in relationships remains highly controversial amongst psychologists, psychiatrists and therapists, who claim they are often simplistic or erroneous.

In the Family Courts it is the job of the ICL to sort the wheat from the chaff and investigate to get to the bottom of the issue if ‘parentification’ of the child is occurring. The Court appointed lawyer acting for the child will then call in an ‘expert’ in those matters. Both parents are to meet up with the ‘expert’ who is often a qualified child psychologist or therapist. Anyone who ever had dealings with Courts knows that at every turn huge amounts of money is spent. The ICL with the help of the Expert’s report weigh heavily in the final decision making by the Judge or Magistrate.

The report by the children’s expert is drawn up as a result of a few hours or a day spent by both the parents and the children with the expert. Sometimes first in each other’s company then separately and then the children on their own. After parents as applicant and respondent  have filed into Courts numerous times for ‘mentioning’ and ‘final hearings’ the case is put and then includes the affidavits, responses and reports by all the parties’ lawyers including the ICL and ‘experts’..

But, when all the lengthy proceedings come to an end, there is this glaring omission. The fundamental rights of every person including children to be heard in Court are totally ignored.

The ICL and other child experts cannot help but put in their own submissions and even if based on the best of intentions and the best advice given, it is second hand and not direct. How is it possible that the ‘best interest of the child’ excludes this fundamental right?

One reason given is the perceived intimidation of the Court system with its tradition of the dreaded three knocks on the door and ‘all rise in Court’, the bowing of all and then the entrance of the black gowned judge or magistrate on the raised podium. The procedures are often seen as unfriendly if not silly as well. Surely the system can change when children are involved and become child friendly. I could ask, why not change it even for adults?

We love adhering to convention, but what about the children?