After a childhood where his father would repeatedly attack him with a belt for no reason and would spit on, punch and ridicule him, it was unsurprising that Cameron* had no desire to spend time with the man.
But the then-10-year-old – who now lives in Tasmania – was forced to endure hours of questioning in a Family Court counselling session to convince the court that he wished to live with his mother.
“Most importantly, I repeatedly expressed a desire to choose. To choose when and if I would have to spend time at my father’s house,” Cameron said.
“I can’t remember exactly what the counsellor said but it was along the lines of, ‘you’re a kid, you won’t get to choose’. That sentiment was expressed several times throughout the session and each time it was, I became more confused.
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“By the end of the session I was left feeling like what I was experiencing was normal and that I had exaggerated the whole thing.”
The presumption of shared custody in the Family Law Act – or “equal shared parental responsibility” – has been a concern of family violence services for years, further highlighted this week during the inquest into the deaths of two teenagers in Sydney, shot dead by their father John Edwards in 2018.
The inquest heard that an independent children’s lawyer in the Family Court allegedly argued the children should see their dad, despite the children being terrified of him. The son was also compelled to attend psychologist appointments with the father, with the lawyer saying the mother could lose custody if the son did not attend.
Burnie family violence survivor Deborah Thomson faced a similar situation during her six-year Family Court proceedings, in which she believed her evidence of alleged family violence was given little weight.
“The parent that does raise domestic violence – as I did – was seen as a problem parent, as hysterical, as trying to alienate the children from the other parent. I was just trying to protect the children,” she said.
“The presumption for shared custody also paves the way for the abusive parent to use the children as a weapon. Even if my abuse was believed, court personnel seems of the view that ‘it was in the past’, ‘let’s focus on the future’.”
Labor MHR Graham Perrett has sought to raise this issue via a private members bill in June, seeking to remove the presumption of equal or shared custody from the Act. This presumption was included in former prime minister John Howard’s 2006 reforms.
Mr Perrett’s overview stated the presumption was “putting families at risk by incentivising violent parents to litigate their parenting disputes”. His bill has been referred for debate.
Tasmanian family law practitioner Trevor McKenna said the presumption is practiced in two ways: first, whether equal time with parents is in the child’s best interests, and second, whether it is reasonably practical.
This was determined through analysing risks and evidence, including the views of the child via interviews with a consultant, although children themselves do not determine the outcome of a case – they are just one part of the evidence.
Mr McKenna said the presumption could be argued against if family violence was evident – including demeaning or belittling the other parent in front of the children – however if this risk was seen to be diminished when the parents were not together, then the presumption for shared custody could apply.
“The court just needs to be satisfied that there are reasonable grounds that a parent is engaged in family violence,” he said.
Like the vast majority of family law practitioners, Mr McKenna advocated for the implementation of recommendations from the Australian Law Reform Commission’s 2017 review.
*name changed to protect child’s identity