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Family Court disagrees that court “culture” put kids at risk

By February 10, 2017No Comments

By Gianna – Blog Editor

We recently wrote an explainer on the role and provision of supervised contact services, court-ordered or otherwise.

Now, television show A Current Affair has broadcast hidden camera footage shot by a private investigator which purports to document instances where children are alleged to have not been properly supervised by staff.

The footage allegedly shows contact parents having unsupervised time with the children, or varying the location of supervised contact from supervision centres to the contact parents’ homes or elsewhere. In other footage, supervisors are filmed sleeping or simply being too distracted to provide adequate supervision of contact.

The child protection advocacy group Bravehearts is currently lobbying the Government to include the family courts in the Royal Commission into institutional responses to child sexual abuse. Anecdotal evidence such as this footage is put forth as proof that there are “serious failures” in the court system which endanger children. Bravehearts founder Hetty Johnson says of the footage: “This isn’t supervision, this is a joke.”

The television show approached Family Court Chief Justice Diana Bryant for comment, and was informed that Ms Bryant “rejects any assertion that the Court has any culture of inappropriately failing to find sexual abuse allegations proven…Every case must be decided on its own facts. In some cases judges find on the facts and evidence that sexual abuse has not occurred and there should be orders that reflect (that). In others, a finding of sexual abuse or an unacceptable risk of harm is made.”

Explaining in detail how the courts deal with allegations of child sexual abuse, Ms Bryant said:

“The public should understand that when the Family Court deals with cases involving allegations of sexual abuse which are denied – they are the most contestable cases. They are those in which the police have interviewed the children and found no evidence on which to prosecute. They are the cases in which the Department of Child Welfare have investigated and found no reason to intervene to protect the children. The allegations remain for the Family Court to consider and its task is to determine whether there is an unacceptable risk of abuse (or other harm) from a particular set of orders being sought.”

“Most of these cases are handled in the Magellan List. This means that they will be dealt with more expeditiously than other cases and will have an Independent Children’s Lawyer (ICL) appointed as a matter of course and the ICL’s costs of representation will not be capped by Legal Aid commissions.”

“The Court’s task, not an easy one, is to hear and examine the evidence, including that of the parties and to reach a finding or findings about the evidence and whether conduct complained of did or did not occur. Whether or not a finding one way or another can be made (the standard being the balance of probabilities) the Court must assess from the evidence whether there is an unacceptable risk to the child or children before making any orders.”

She further explains that judgments are published anonymously, with families given pseudonyms, so that the public can understand the way judges have decided a particular case.

“When assertions are made against the Court, if the complainant identified their pseudonym then the judgment could be made available (with anonymity protected) so that the public will have all sides of the story and understand how the judge reached the decision complained of.”

However, she notes:

“Unfortunately for reasons I do not understand, Bravehearts have consistently refused to identify the complainants (despite being assured of anonymity) so the Court is in a position where it cannot respond to individual assertions. I have no doubt the public in general would wish to be able to understand both sides of what is being asserted and to be able to read the judgment and decide for themselves whether there is any reason to be concerned about the manner in which the Court deals with these cases. That judgment cannot be made where the complaints are made under the cloak of secrecy and the Court is denied the opportunity to respond to the complaints. Connecting the cases complained of with the published judgments is part of that transparency.”

Read more:

Read the statement of Chief Justice Diana Bryant:

Do you need assistance with a family law matter? Please call Canberra family lawyer Cristina Huesch or one of our other solicitors on (02) 6223 2400 for advice.

(Please note: Our blogs are not legal advice. For details about how to obtain correct legal advice please arrange a free conference with Alliance Family Law.)


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