Divorce: Battle-scarred judges granting custody to abusive parents

A failed Family Court is creating a generation of psychologically damaged children as “battle-scarred judges” fly blind and grant custody to abusive parents, a top law adviser has warned.

A FAILED Family Court is creating a generation of psychologically damaged children as “battle-scarred judges” fly blind and grant custody to abusive parents, the Federal Government’s top law adviser has warned.

Australian Law Reform Commission president Sarah Derrington raised concerns about the mental health of family law judges – confessing that some of the traumatic cases she considered while chairing the Government’s inquiry into family law had left her in tears.

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In an explosive interview with The Sunday Mail, she warned that children could die as a result of custody rulings made by judges oblivious to child safety and domestic violence rulings in state-based courts.

She said 50-50 custody was not always best for children, and declared it would be ideal for parents to take turns living with their kids in the marital home.

Justice Derrington chaired the 18-month ALRC inquiry, which recommended the Family Court be abolished so that local magistrates or state-based judges can rule on child protection as well as divorce, custody and property matters.

Child protection should take priority over keeping both parents involved in their children’s lives, she said.

“I’m now at the point where I really do think that children are at serious risk because of this jurisdictional divide that we’ve known about for 20 years and we don’t seem brave enough to fix,’’ the Brisbane-based Federal Court judge told The Sunday Mail in an exclusive interview.

“The cost (of not taking action) is we will continue to see psychological damage being done to children and in the worst case scenarios we will see children dying.

“If the Government is serious about wanting to fix family violence and child abuse, then I don’t see they’ve got much option.’’

Justice Sarah Derrington has raised concerns about the state of the family law system. Picture: Josh Woning/AAP

Justice Derrington said she was concerned about family law judges’ mental health.

“The things (judges) see and hear are truly horrendous,’’ she said.

“I think there’s a lot of vicarious trauma suffered by Family Court judges – I think their mental health is something that hasn’t had sufficient attention.

“I have had nothing to do with family law before this report, and there were nights when I just lost it.

“It was very traumatic.’’

Justice Derrington said some judges deciding on custody matters were flying blind, because they were not aware of child safety or family violence orders made by magistrates and judges in state-based courts.

“A child died in Queensland early this year, the baby,’’ she said.

“There had been family violence orders made in the Magistrate’s Court and it appears that the evidence supporting those orders was not available to the (Federal) Circuit Court judges.”

A six-month-old baby and his father were found dead in a car north of Brisbane in February after the man failed to return his son to the mother after an access visit.

The Courier-Mail revealed both parents had consented to the custody agreement, approved by a Federal Circuit Court judge.

Justice Derrington said some family law judges had told parents to go outside and discuss their parenting arrangements – despite domestic violence orders in place to keep them apart.

She said that in Victoria, a Family Court judge had given custody of four children to a mother – but Victoria’s Child Protection Service took action against the mother the same day, and a state judge awarded custody to the father. She said the case had dragged on for more than four years.

“People become more emotive the longer that proceedings drag on,’’ she said.

Families are more dysfunctional now than they were in the Kramer v Kramer era.

“And the children do suffer enormous psychological and psychiatric damage.

So we’ve got another generation of children who are going to be damaged because their parents couldn’t resolve the matter quickly and efficiently.

“The quicker you can get people in and out of the system, the better for everyone.’’

Justice Derrington said she was “quite shocked’’ to see the extent of perjury and a failure to disclose documents in family court cases.

She called for the use of a “statement of claim’’ used in other areas of the law, where each party sets out what they want from the judge, instead of filing grievances in an ­affidavit.

“The mud-slinging doesn’t help. We have, in theory, no fault divorce, so the mud should be wholly irrelevant.’’

She said some judges dealt with 80 matters a day, and suspected they “get a little battle-scarred about who is telling lies and perhaps you don’t believe anybody any more’’.

She said setting up the Family Court 40 years ago had been a mistake.

“I think it was done with the best of intentions but it was done in an era where families had not become, at least to the public eye, as dysfunctional as they are today,” Justice Derrington said.

“Family violence and child abuse – which has come to be in this country a complete scourge and an embarrassment to our society, quite frankly – just wasn’t contemplated at the time.’’

Australia has 37 Family Court judges and 68 Federal Circuit Court judges dealing with a backlog of 21,000 cases, with an average wait of 15.6 months to go to trial.

Federal Circuit Court Chief Judge Will Alstergren warned last year that the courts were suffering from unrelenting workloads and significant backlogs.

Federal Attorney-General Christian Porter is on leave and was unavailable for comment. Queensland Attorney-General Yvette D’Ath said the family law system would work properly under the Federal Government if it funded it properly.