They are future and we need to do better by them
The underlying foundation of the Family Law Act is to act in the best interests of the child.
Can that realistically be achieved without the voice of the child?
Family violence is a particular situation in which the voice of the child tends to be absent from decisions that are made on their behalf. A violent parent may be fined, made to pay court costs, and made to pay for the damage done to property.
I wonder about the damage done to the child's brain though. Who pays for that?
Research shows that exposure to familiar violence interferes with the receptors of the brain, which can be particularly damaging in children. Wouldn't it be a powerful message if perpetrators of family violence were made to pay for the child's therapy needed as a consequence of being exposed to family violence.
Therapy, if needed and wanted by a child who has been exposed to family violence, could be needed for years - perhaps even the rest of the child's life. Children who have witnessed or experienced traumatic violent episodes sadly often relive them in their minds.
For some children, the episodes replay in their minds in their dreams; or something triggers their mind to go back to that episode. Even writing the surname that belongs to the abusive parent can trigger the flashbacks.
Not enough is known about this, and sadly, there is inadequate flow of this knowledge into the legal system where decisions get made about penalties, intervention orders, and parenting order matters.
On Thursday 23 July 2020 I attended a meeting with other representatives from Victoria's universities and peak organisations that work in the family violence space. There was strong acknowledgement that the voice of the children is largely missing. Practitioners are greatly aware of the issues; university researchers are limited in their research in this space due to strong ethics boundaries and limitations. It makes it harder to have this information available.
Courts do not make it easy for children's voices to be heard. Children are not allowed in court and their affidavits are likely to be struck out. Older children can hold down jobs, drive a car, have full control over their bank account and be responsible for their health record and have a Medicare card. But they are not permitted to tell a judge that they do not want to spend time with a parent who they are fearful of and who they do not trust their behaviour. In Victoria, children as young as 10 can be arrested and charged for criminal matters. Yet older teenagers cannot attend court to state whether they want contact with an abusive parent.
Imagine being regularly verbally or physically abused by a colleague and then told you should share an office with them. It would never happen.
So why would we have a child who has been tormented by a parent told they have to communicate or spend time with them? What does that do to their brain? Where is the voice of the children in court? An independent children's lawyer is not the answer in all cases. Not all matters have lawyers. Not all parents can afford them. Some family law matters involved self-represented litigants. And a children's lawyer is still not the voice of the child.
Sadly parents sometimes get lost in a focus of their rights and children can be a type of commodity that can be used as a tool for vindictive measures aimed at the other parent. Children get caught in between; and may be quite lost inside as they are compelled to communicate with a parent they cannot trust the behaviour of and who does not take responsibility for their abusive and controlling behaviour. This is not healthy for children.
Arguments between parents about their own rights are missing the point completely about parenting. They do not have rights. They have responsibilities. And the underlying foundation of the Family Law Act is to act in the best interests of the child. Whilst time with both parents should be regarded as best in normal situations, there is enough evidence to show the trauma to a child's brain from being exposed to family violence.
Being forced to spend time with or communicate with an abusive and controlling person may in some cases not be in the best interests of the child. Just as being forced to share an office with a colleague who is abusive would hardly be expected to maximise productivity.
Research has shown that witnessing family violence is a significant predictor of post-traumatic stress disorder in children.
Imagine being in the wilderness in a flimsy 2-man tent with a large grizzly bear circling the tent. You do not know what the bear will do. It may do nothing. But it may hurt you. You do not know what the bear will do next. That is what living with an abusive and controlling person is like. You are forever on edge. As a society, we need to understand the impact better - in our schools, in our workplaces, and in our court systems.
Those children are part of society's future and we need to do better by them.
Associate Professor Elisa Zentveld, Federation University
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