Tag Archives: Family Court

Family Court excludes Children. Where are their voices?

01 Saturday Sep 2012

Posted by in Gerard Oosterman

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Family Court excludes Children. Where are their voices?

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.

http://www.familylawwebguide.com.au/library/spca/docs/Childrens%20participation%20in%20family%20court.pdf

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.

http://healthyparent.com/Parentification%20Web%20Preview.pdf

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?

The Slow Train to Sydney

17 Thursday Feb 2011

Posted by in Gerard Oosterman

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We took the train from Bowral to Sydney yesterday, as a kind of test run for the future. Living just 100 kms from Sydney we thought we might reduce driving and use public transport.

We had enquired the day before and were told by the Station Master time of departure and cost which for us seniors was a mere $2.50 return. Wacko, who could refuse an adventure of this nature? Next day we got up early, all excited about the coming day. Arrived a bit early at the station and bought our tickets. When the train arrived we were surpised how new it was and spacious.  Many people hopped on-board incuding an elderly couple. The husband had a brand new dark blue checkered shirt with razor sharp pleats still visible on the sleeves. One almost expected the white collar bit of stiff carton to still be peeking from the back of his shirt.

The train took off on a rather somber and overcast day. We weren’t going very fast but time wasn’t important and we settled nicely. It took us past many stations including the one of killer Milat notoriety. The houses there were somewhat dilapidated looking with yards full of junk and cars propped on bricks with large dogs barking at the train. Bargo, Tahmoor, Dapto, Yerrinbool and many others we passed by. This was the train with only 4 stops between Bowral and Central, Sydney.

At one stage I noticed a very optimistic notice board on a terracotta roof. Painted on a large sign in bright blue was written; FUNERAL DIRECTOR and telephone number. The sign faced the train so it was clearly designed for the traveler but I wonder how many would get their address book out and scribble down the phone number. Who on earth would have that kind of foresight?

We arrived after almost 2 hrs (This is the fast Country Link) and sauntered down the platform but no ticket inspection. We walked up towards the Town-Hall soaking in all the changes since the last time we were there. As usual, there were huge cranes and dog-men directing great concrete panels hovering above building sites.  In all sorts of nooks and crannies were available coffees and cakes. Backpackers were spilling over the footpaths busily sending texts and pictures of exotic Australia back to Japan or Sweden. Many were  with those towering backpacks and some, which is’ par for course’ in going overseas, squatting down on the pavement cross legged.

Also, a disturbing increase in homeless, some with cardboard notices explaining their plight, others just oblivious to it all and seemed sound asleep. At the entrance to Myers was a small colony of homeless with mattresses and blankets, shopping trolleys, empty big M bags and a profusion of polystyrene containers. One desperate homeless and bearded man held up very bravely: FAMILY COURT VICTIM!

We were getting hungry and noticed a pub advertising food. It might have been called the King George but Helvi just now assures me it was The Edinburgh Castle. All patrons were seated. This is one of the most baffling cultural changes in Australia, where not that long ago, everyone in pubs would always be standing, except for some blue hair coloured patrons in the “Ladies Lounge”.

Not only were all seated they were also enjoying their beverage with food. We ordered two Heinekens with one Rump steak and one Chicken snitzel, both with chips and salad. This was about 1pm and the hotel was chockers, so were all other eating and drinking venues. What a buzz.

We decided to head home after this excellent lunch and slowly sauntered back to Central station where a sign told us to go to platform 23 for Bowral. Train after train did arrive but not a sign of anything going towards Bowral. We walked back to the entrance and a Rail Information Lady took it upon herself to guide us towards a train. Platform 23 is where you go to Cambelltown and then change over, she said. Oh, we did not know that nor was this indicated on the electronic sign or loudspeaker. She then went out of her way to say why you don’t get on the Country Link at 3.48PM. This leaves at platform 3.

There is a huge distance between both platforms, so we decided we needed another schooner to remain hydrated. This was lovely, seated away from the humidity of the Sydney Station in a air conditioned and licensed premise next to a McDonalds. I had the courage and gall to brazenly also ask for two fifty cent smooth-ice cream cones. Helvi declined, how can you drink beer and lick ice-cream?  I gave hers to a homeless looking man who also did not lick it. We finally walked to the platform and this smooth ice cream in its cone was still un-licked and might still be sitting on the table as far as I know.

After seeing a young man with both legs cut off below the knee and heavily bandaged attended to by an ambulance officer on a mobile phone, we decided to hop on the train. That same couple, with the husband’s sharply creased shirt were also in our wagon. Perhaps they were doing the same as us. Perhaps they might even have taken down the number of the Funeral Director? Who knows?

The return was just as good but we were feeling pretty shagged by the time we arrived back, which was at 6pm. I noticed that in the morning the train came from Canberra and the afternoon train was also destined for Canberra. There wasn’t a buffet or possibility for any water or a coffee on board, which is a bit rich if you are going Sydney-Canberra. It could be that after Bowral a buffet car would be linked to the train.

Who knows?