NAFCC is a national (and international) coalition of organisations who have formed to advocate on behalf of women and children going through the Family Court system with concerns about domestic violence and child abuse.
Prepared and Presented by Marie Hume.
The National Abuse Free Contact Campaign was initiated because of concerns relating to the exposure of children to abuse and domestic violence following separation as a result of unsafe contact arrangements, usually ordered by the Family Court. Concerns about the safety of children and women are well founded, and are supported by a number of reports and research projects. For some years now many groups and individuals across Australia have tried to make the government take notice of these concerns, but their voices have not been heeded. The National Abuse Free Contact Campaign aims to make the government listen, and to prioritise the safety of victims of violence.
The Family Violence and Family Court Research Program conducted by Monash University and the Australian Catholic University Canberra also highlighted significant concerns about child protection and the Family Court. This research demonstrated that:
· Child abuse cases comprise the core business of the Family Court;· Cases most likely to stay within the Family Court system were those with serious and multiple forms of family violence;· at the mid point of Family Court proceedings (ie the pre-hearing conference) they were one-half of the residence and contact cases;· In at least half of the cases there were no formal investigations into the allegations of child abuse by the State Child Protection services. This is despite the requirement that in cases of child abuse allegations made in Family Court proceedings, the matter be referred to the state child protection services;· The Family Court itself has no investigatory function. This results in the Family Court basing its decisions on residential and contact arrangements on inadequate and poorly investigated evidence.
The Family Law Council's report on Family Law and Child Protection (2002) has recommended the establishment of a national child protection system within the Family Court.
The University of Sydney and the Family Court also conducted research into the Family Law Reform Act of 1995. The research conducted over 1997 and 1998 found that the ‘right to contact principle’ had been given greater emphasis than the domestic violence aspects of the reform and that this right to contact principle is not necessarily subject to the best interests of the child. Their research suggests that an interim order refusing contact has become more difficult to obtain since the Family Law Reform Act came into operation, despite allegations of domestic violence. The ‘right to contact’ principle has taken precedence over concerns about children’s exposure to domestic violence and child abuse.
We recommend that an inquiry be established into the viability of a national child protection unit.
The New Zealand Guardianship Act has adopted the principle of safety of children as being the paramount consideration in determining residence and contact arrangements following separation. It establishes that where there has been domestic violence, the court cannot make an order for custody or unsupervised access to the violent party unless the court is satisfied that the children will be safe.
We recommend for the introduction of a rebuttable presumption of no contact where there are allegations of violence established on the balance probabilities (similar to the NZ Guardianship Act). Persons found on the basis of civil proof to have used violence would have to show why they were safe before contact was allowed.
Our concerns about joint custody:
The National Abuse Free Contact campaign has particular concern about the parliamentary inquiry into joint custody. Whilst we applaud the committee for rejecting a presumption of joint custody, there continues to be strong lobbying from right wing, conservative groups whose focus is on parental rights rather than safety of children. We are particularly concerned about the Federal Government’s possible responses to such lobbying and that it will fail to consider the substantial research, which shows that our current system of family law fails to adequately protect women, and children from abuse and violence.
It is our stance that a rebuttable presumption of joint custody: