During separation and divorce, the rights of children remains one of the most important considerations.
In February 2014, Luke Batty was killed by his father in front of horrified spectators at a cricket training session. The coronial inquest into his death wrapped up, with the coroner finding that the welfare of children must be taken more seriously, and that the rights of children become a primary consideration.
In family law, lawyers and judges are guided by a set of principles set out by the law to help families come to arrangements during separation and divorce. The Family Law Act 1975 makes these guidelines clear:
- both parents are responsible for the care and welfare of their children until the children reach 18, and
- there is a presumption that arrangements which involve shared responsibilities and cooperation between the parents are in the best interests of the child.
Additionally, there are primary considerations when deciding what’s in the best interests of the child/ren:
- The benefit to children of having a meaningful relationship with both parents.
- The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
- The Court is required to give greater weight to the consideration of the need to protect children from harm.
Rosie Batty, Australian of the Year and domestic violence campaigner, was not in a relationship with the father of her child, Luke, when he was born. But she was told that it would be in her son’s best interests for him to have a meaningful relationship with his father.
But custody visits with his volatile father took an emotional toll on the boy, who started attending counselling to deal with the distress of the visits with his dad. Rosie suggests that a myth persists that men who abuse, assault, blackmail, stalk or terrorise their ex-partners can still be “good dads”.
“This notion you can be a great father and an abusive partner – it’s not possible,” says Professor Cathy Humphries, one of a handful of family violence experts who have supported Ms Batty through the harrowing coronial process.
The inquest into Luke’s eventual death at the hands of his father published similar findings. In his report, Coroner Ian Gray recommends an approach that puts the welfare and rights of children – and that of their mothers – first. Where one parent is assessed as “protective”, they should be given support by the Department of Human Services to manage the risk posed by the other parent, he writes. Similarly, the department should end its practice of asking women to supervise or manage the behaviour of the other parent.
The existing intervention order system that purports to protect women and children from their abuser is inadequate. Because intervention orders can be varied to allow for custody arrangements, there continue to be many women who have to negotiate with their former abuser, including – as Ms Batty noted yesterday – arranging for their children to visit the perpetrator in prison.
How can this system truly be considered to be in the best interests of the child or protect the rights of children?
Rosie Batty suggests that the desires of the parents must not be placed above the well-being of the child. In her own tragic case, the rights of Luke’s father to be involved in his son’s life, detrimentally up until his death, seemed to trump the rights of Luke to be protected from his abusive father.
While the courts wish to recognise that having a relationship with both parents is important, it should be kept in mind that not all relationships are beneficial within the family. What the courts currently do not do well is ensure they are listening to the rights of children.
The Family Court of Australia has the power (under Section 65 of the Family Law Act) to order that a child who is the subject of any proceeding before it be separately represented. This has been usually organised by Legal Aid Commissions which, while not obliged to do so, almost invariably fund such a representative.
The Family Law Council (Commonwealth of Australia 1989) made certain recommendations about separate representatives for children, which were adopted and adapted by the Family Court in Re K (1994) FLC 192-461. In particular, the Court set out extensive (but not exhaustive) criteria for matters requiring the child to be represented separately from its parents.
Whether the findings of the coronial inquest into Luke’s death will be enshrined in law is another matter, but it seems clear that Rosie Batty will not stop her tireless campaign to raise awareness of the ugliness of domestic violence and its impact on families.
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