Constitutional challenge to suitability for the family court to hear cases involving child abuse and domestic violence

Patricia Flores

The article 'Child porn addict's partner wins custody' Feb 3, 2007, is no surprise to any protective parents that find themselves in the family court. It is a fact that the family court regularly makes decisions that would be considered quite ludicrous by most average, clear thinking Australians. Nowadays, the outlook by family court judges seems to be that the worst thing that could happen to a child is to not have contact with a parent, no matter what that parent has done. In this case, Justice Carmody's reasoning is that the child's mother is an appropriate parent despite her choice of an intimate relationship with convicted child pornography criminal. The fact that Justice Carmody "has a background in child protection" is cause for heightened alarm at the level of "expertise" and bare common grounded knowledge of what most Australians would consider conventional wisdom. That is why a growing number of professionals, academics and experts in child development and welfare are joining the chorus that there is something dreadfully wrong in family court. It is time to address this disaster by a constitutional challenge to the.

The constitution plainly states that:
Part V-Powers of the Parliament, 51 Legislative powers of the Parliament.

The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to:

(xxii) divorce and matrimonial causes; and in relation thereto, parental rights, and the custody and guardianship of infants;

There is a very strong argument that the family court is not interpreting the "laws for peace, order, and good government" because cases involving child abuse and violence issues cannot be tailored to "peaceful, order, good government" and more importantly "parental rights" where child protection should supplant all other considerations. It is also contented that the original legislators did not foresee that the 'core business' of the family court would one day be dealing with child protection cases. Hence, the family court was not originally designed to deal with these cases. This decision merely adds weight to the argument that it is time to take child abuse and domestic violence cases out of the jurisdiction of the federal family court.

This decision follows many others where children have died while on contact with a dangerous parent. Children have been sexually, physically and psychologically abused because they have been sent by a judge of the family court to spend time with a parent that in most average Australians mind, they would have not left their dog with.

The family court's record is abysmal. In April 2004 the Dalton children were killed by their father after Justice Jordan reasoned that the father's history of domestic violence towards the mother did not impact the contact considerations for the children. They are now dead despite Justice Jordan's 1996 presentation entitled, "Domestic Violence and the Family Court: a protective response for the child at risk." To date, no meaningful changes have been implemented to address lessons obviously highlighted by that case. That these judges apparently have "training" in child protection belies what most Australians would consider purely common sense.

With this decision, the family court continues to compromise the safety of Australian children, therefore, appeals to the High Court need to be heard for previous cases where children are presently living at risk under family court orders. The family court needs to be relieved of the responsibility. They continue to demonstrate that they cannot be trusted because despite child protection training, they just don't get it.

Patricia Flores