Law reform is the process of reviewing current laws and proposing and introducing reforms in the legal system in order to promote justice or efficiency. The law reform bodies or law commissions are closely linked and are entities formed to promote legislative reforms. The Family Court was created by the legislation on Family Law Act 1975 (Cth) which aims to help decide complicated family law issues. This law regulates the competence and functions of the Family Court. The Federal Circuit Court aims to help determine much fewer complex matters and to determine matters of general law in federal jurisdiction. It is bound by family law and is regulated by the Federal Circuit Court of Australia Act 1999 (Cth). In order to determine family law issues, both the Australian Family Court and the Federal Circuit Court use the Family Law Act 1975 (Cth). However, issues have formed due to the questions regarding children ‘best interest’, the court systems structure and the qualifications and training of counsellors and child representatives this essay will examine these issues to identify how the Courts are lacking in effectiveness and why they need a new law reform.
Kids have been put into harm’s way because of the legal structure of ‘best interest of the child’ causing very high risks for children. For instance, in one case reported in the media, James was allegedly abused by his father from the age of four to thirteen. James and his mother reported to the New South Wales Department of Family and Community Services (FACS) as well as the police. The Family Court found the allegations to be malicious. At the age of six, James father was awarded sole custody and ordered him to live with his father due to ‘best interest of the child’ which derives from Article 3 of the UN Convention of the Rights of the Child (CROC) which says that “in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration”. James was mentally and sexually abused by his father. Even with physical evidence of James being injured reported to police, despite this the family court still took no action. It wasn’t until the police took out an Apprehended Violence Order (AVO) against James dad when he was 12. Under the Protection of Children Against Sexual Offences Act, 2012 as well as the Family Law Act 1975 Act (Cth), James should be protected, but the Family Court overlooked the substantial and physical evidence of what his father had done to him and let James live in the same facility as him for multiple years. In the Family Court System children need to be heard and have their own say under the Family Law Act 1975 this again shows the Court systems failing as James should have been heard but wasn’t which left him to suffer. Shown in James case, children are not heard which puts them into harm’s way. This affect’s the child mentally, psychologically, spiritually and physically. This will have long run implications for society if children are heard therefore making the Courts more effective.
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Kids are lost in the gaps due to fundamental structural difficulties of the Family Court System. In James' case, 24 risks of harm were reported during the first six years he had lived with his father by New South Wales Department of Family and Community Services (FACS). The Family Court left a disturbing failure in James’ case where FACS intervened due to the father and a former partner having substantiated after he sexually abused a child from that relationship where in total, three former partners had alleged child sexual assault against James’ father, but only one of those cases was substantiated by state authorities. All these gaps exist as the Federal Circuit Court often hear allegations of family violence and child abuse, but they have limited powers to investigate them. They rely on state and territory courts and agencies to do that work and to share information about the risks to families and children. This places children into harm because the gaps between the Federal Circuit Court, Family Court, Child Protection Services and Police are due to barriers. All the fundamental structural difficulties of the system could be remedied by allowing family law, family violence and child abuse matters to be dealt with in the same place at the same time minimising gaps and protecting more children. This reform could help fix the shortcomings of the existing system by making it more effective as more children become protected through less gaps in the system.
The lack of training counsellors and child representatives in the Family Law System result in children at risk. Starting from 8-years-old Sarah was physically abused by her dad, having bruises and scars or red marks where her dad would push or hit her. Neglected by her father, she was never encouraged to wash, change clothes or brush her teeth and she says that she would usually smell. She spoke to counsellors “dad hits me” or “I don’t have food”, it would be reported and ignored with no one coming to Sarah’s aid. More training for counsellors and child representatives needs to be put in place to allow the Family Law Act 1975 (Cth) to be more effective. The Family Court of Australia and the Federal Circuit Court of Australia must consider the child’s safety, but in this instance it went unnoticed with Sarah dealing with neglect due to the insufficient training of counsellors and child representatives. If more training was obtained for counsellors and child representatives it would make the systems more effective in keeping children safe and minimise the risk of neglect and abuse that Sarah received because she wasn’t heard. This law reform is needed to improve these issues as the existing system leaves children at risk due to lack of training for counsellors and child representatives.
Overall, the Family Court of Australia and the Federal Circuit Court of Australia are ineffective in issues such as the decisions that are made in the ‘best interest of the child’ which is a risk, the lack of gaps due to the barriers between all facilities and the lack of training in counsellors and child representative. Both courts in James and Sarah's cases were ineffective in keeping these children safe and putting them in harm's way. The courts need to merge to create a new law reform for a more effective and efficient system.
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