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Silenced by the system

Date

Fathers have a right to see their children. Children have a right to be protected. Everyone has a right to be heard.

Actually – no they don’t.

And this is the key point a much talked-about international custody battle, being played out in the courts and in the media, is about to contest.

The children’s great aunt has challenged the High Court in a bid to overturn a section of the Family Law Act that prevents children receiving independent legal representation unless there are "exceptional circumstances".

Tony Morris QC is supporting the move which will finally give children caught up in complicated custody battles a voice.

"This decision, when the High Court hands it down, will set in stone for all time the rights of children to be treated as human beings, and not just the goods and chattels of their parents," Mr Morris said last week.

In the face of the media attention the case has generated, Attorney General Nicola Roxon has announced a $500,000 study into the effectiveness of appointing independent children's lawyers.

The case has resulted in the children’s father releasing a letter that has tugged at the heartstrings. The pleading of the children, who allegedly want to stay with their mother, has sparked an outcry.

The allegations of lies, deception, abuse and violence have confused the matter further. The only obvious truth is that no one knows the truth. At least not any parties aside from those at the centre of it.

In Queensland our courts offer mediation and in difficult, messy, somewhat hopeless custody disputes a Family Report is intended to provide an impartial, professional dissection of family dynamics, dysfunctionality (if it exists), ulterior motives, and family politics.

This concept goes half way to offering a voice to the children, in so much as the report is presented to the court outlining what is best for the children, how their time should be divided between parents and how they are coping emotionally and psychologically with separation.

What this report negates is the need for children to speak in person, face to face to a magistrate or in the presence of the court. This process is considered too traumatic and unnecessary.

However, it also leaves some children feeling helpless, unheard and powerless in the decision making process that shapes their very future.

There is a gaping silence that exists in our family law courts and it must be addressed.

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32 comments so far

  • You do realise that giving a "voice" to children would make them the ultimate legal weapon in a custody dispute? Essentially they could be coached to say whatever the current custodial parent wants and there is no ability to aggressively challenge testimony or hold anyone accountable for falsehood. It would also probably poison any possible further relationship with a non-custodial parent and force a child to essentiall "take sides". This is a bad, bad idea...

    Commenter
    Deedee
    Date and time
    May 29, 2012, 8:52AM
    • Unfortunately this is exactly what would happen. My son's father is already working on him to this end - has told him when he is 12 he can tell the court he wants to live with dad. And it wouldn't be in my son's best interests as he has a disability that his father refuses to recognise. Children can be easily manipulated by adults.

      Commenter
      Lotus
      Location
      Sydney
      Date and time
      May 29, 2012, 9:52AM
  • Now there i was thinking that kids are treated differently before the courts due to the fact they are... umm.. whats the word for it... Children. How silly of me.

    So when they all want to live with Santa Claus, eat fairy floss for breakfast and wear nothing to school, its all ok because we are "listening to the children"?

    This case is a joke. They go to court to seek assistance and protection in the law and then when found against, they complain to the media? Who, in turn, then regurgitate silliness like this article, ignoring, or simply not comprehending the extensively founded legal reasonings for why children treated differently in the eyes of the law?

    What utter nonsense.

    Commenter
    darryltj
    Date and time
    May 29, 2012, 9:11AM
    • Scary, scary.

      Children should be at the centre of the making of any decision, yes.

      Making them think they might be responsible for the decision, it putting them in harm's way. How many sleepless nights wondering? Parent's trying to influence.

      We can't allow parents to go jurisdiction shopping for their family court cases.

      Can't help to think there is gender/nationalistic prejudice going on in this case. I'm sure if an Italian father had taken children from an Australian mother to have the case heard in an Italian court, we'd be screaming from the rooftops.

      Commenter
      Ian
      Date and time
      May 29, 2012, 9:42AM
      • The media seem to think its ok for Australians to breach the Hague Convention on child abduction. This woman is subject to an international treaty that Australia is a signatory to. She has most definately not acted in the best interests of her children, especially by dragging them into the court system. The Australian Family Court must honor the Italian court orders. The children can then make a case to the Italian Family Court.

        Commenter
        Lotus
        Location
        Sydney
        Date and time
        May 29, 2012, 11:02AM
      • I agree with Lotus wholeheartedly on this point. I was in the same when my kids went overseas to see their Mothers side of the family. Knowing that the Hague Convention was in place (and mentioned in our court orders) was a major factor in allowing them to travel. I would like to think if I was in the same position as the Italian Father of this case that I would be able to return the children to Australia if need be.

        Commenter
        3Gorgeouskids
        Location
        Perth
        Date and time
        May 29, 2012, 3:35PM
    • I have no doubt, Heidi, that you'll get a neatly polarised raft of comments here today. The one thing I imagine I will wonder about many of them is the commentator's frame of reference and first-hand experience in matters such as these.

      How many, for instance, will have (or be) right there in the very heart of proceedings before the Court as (as in my case) the Applicant in matters, where the central thrust is the minimisation of harm being inflicted upon a child by his mother? How many will have seen or experienced the stupifying disconnect between a Family Consultant's report (that has 'mysteriously' avoided a whole exchange offered to that Consultant by the subject child) and the child's declared wishes, fears and concerns? How many will have experienced the torment of watching their child physically seek to hide from the other parent, in a distressed state, in their car at time of 'handover'? Or had the need to 'manage' the hours up to handover so that the child views the occasion as a remotely positive event?

      That children see things as they really are -- unvarnished -- is something that simply isn't tapped into by the 'system'. Rather, it's a patronising, "Tsk, Tsk . . . only a child . . . the don't understand the complexities involved."

      My son, Darryl, doesn't want to live with Santa, or eat fairy floss for breakfast. He simply wants to live with someone mentally and emotionally stable, sober, and who won't deride him and / or smack him around. He wants to feel safe and loved. But, since he's only 6, his voice won't count or be heard before the Court. And the Family Consultant who was made aware of all this -- by him -- has failed him.

      Commenter
      Xercius
      Location
      Watching with interest
      Date and time
      May 29, 2012, 10:06AM
      • Young children can be coached by a vindictive parent into saying all sorts of things. In fact young children do say all sorts of things. My 8 year old son mischievously insinuated his father was a pedophile (not true at all) - it could have dramatic consequences for his teaching career.

        The Court Family Consultants have enough experience and expertise to work these things out. Both my sons have done the big emotional scene when seperating from their dads after an access weekend. This doesn't mean they were / get beaten or neglected in my care, it just means they are sad and distressed at leaving the other parent. Either that or the handovers are emotionally charged and extremely unpleasant for the child.

        Commenter
        Lotus
        Location
        Sydney
        Date and time
        May 29, 2012, 10:43AM
    • The first thing to do is for children in these situations is the get a professional pyschiartrist to assess the kids over a number of sessions to evaluate how they are coping and to try to get some assessment of the 'family dynamic' that exists or used to exist (especially in this case where Dad has been unable to make contact with his children for nearly 2 yrs....

      I got my own assessment from my almost six year old on Monday morning when I dropped her at school. At my ex's suggestion (who I still have a strained relationship with) I go into the classroom and look at the work she has done so far this year. I looked at her drawings of her family, no Dad.... Her house, No Dad.... I gotta say that did hurt but what can you say to a six year old? You just smile and tell her it's a beautiful drawing and watch her smile back at the recognition. In her eyes I'm just the Daddy she stays with every second week. Although I have 'shared care' of my kids I get no say at the moment as to where they're schooled, how they're vaccinated (or not in this case) and I have no idea who their regular doctor is....

      Hopefully one day soon I can go for proper shared care, a week with me a week with their Mum but I know that's when things will probably get bitter again and we'll end up back in court because my Child Support would drop drastically and she'd have to get a job...

      The system needs help but I'm not sure a magistrate directly involving the kids is the answer when they often don't listen to fathers to begin with.....

      Commenter
      3Gorgeouskids
      Location
      Perth
      Date and time
      May 29, 2012, 10:21AM
      • In my own case, my "councelling" by the court social worker consisted of being berated for 20 minutes for being a greedy dropkick who only wanted custody to avoid paying child support.

        At the end he (yes he was male) finished with a comment to the effect of "The court would only intervene if there was an immediate and compelling reason to for the welfare of the children and that is not the case here. I am recommending that your application for a family report be dismissed".

        Between gritted teeth, barely holding my temper in check I replied "Would the fact that my two year old daughter was found walking alone on a major road just 3 days ago by a passing motorist who thankfully stopped and finding no adult anywhere around took her with her to the school. That the school recognised her but was unable to contact her mother and was forced to have the principal deliver her to the emergency contact in his private car, that when the mother was eventually finally contacted she was still not aware that she was missing, would THAT be a welfare issue?
        He replied that my wife had not mentioned any of this. I replied, "like she would".

        When we fronted the Registrar he oredered the report at the end of the hearing. When it was tabled, he ordered the children moved to my custody by 4pm of the same day.

        The sad thing is, had it not been for this one foruitous event, my application to get the report written would have been dismissed out of hand for the simple and only reason that I was male.

        Commenter
        Goresh
        Location
        Brisbane
        Date and time
        May 29, 2012, 1:43PM

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