The information provided in the media release by Bravehearts, titled “Kids remain at risk if Royal Commission omits Family Law Court from inquiry” is a misunderstanding of what an “institution” is in the context of the Royal Commission. The abuse being investigated by the Royal Commission specifically "does not include the family."
But there are other obvious reasons why courts do not fall within the remit of the Royal Commission and to suggest they do is to fundamentally misunderstand the role of courts.
In the case of the Family Court and Federal Circuit Court in particular, they are under a statutory responsibility to hear and determine cases which come before them and decide what parenting arrangements are best for the child in the context of the individual dispute. That involves conducting hearings, listening to the evidence, making findings on relevant facts and then coming to a decision which, having regard to various factors in the Family Law Act, is in the best interests of the child.
Cases are conducted in open court, the process is transparent and there are written reasons given for the decision explaining how the decision was reached. The decision is open to scrutiny by the Appeal Court.
Every case is different and is decided according to the facts and evidence in that case.
The issue of child sexual assault and the contact children should have with parents arises not only in family law proceedings. There are many courts that make decisions about where children should be placed or who they should have contact with. The Family Court and Federal Circuit Court are only two. Other courts that also have to deal with similar issues include the Children's Courts in each state who place children with parents or other parties on a daily basis, criminal courts setting bail conditions, Magistrates Courts making orders for contact under relevant family violence legislation and courts and tribunals with authority to adjudicate on administrative arrangements for contact by state welfare departments.
To the extent that there is an implied or express assertion that any courts should be included because they make erroneous decisions and place children with abusive parents, two things need to be stated:
- Each case is decided on the facts of that case. The fact that one side does not agree with the decision does not make it erroneous of itself. Sometimes information later becomes available which might mean a decision should be changed - but each case is different.
- There are published reasons for every decision made and thus the reasons behind every decision are open to scrutiny.