Family law inquiry to hear push for children to have more influence in custody cases

WARNING: The story contains content that may be distressing to some readers

Key points:

  • Few children currently give evidence in family court hearings about them
  • Advocates are calling for amendments to the Family Law Act
  • The changes would require children to be offered the chance to speak

"Jane" is 24, but often wonders what it would be like to have had a childhood.

Between the ages of four and 13 she lived with her father, a man she believed had more than 29 criminal convictions, including two for child sex offences.

Her father had AIDS and from the age of seven she was his sole carer, dressing his lesions.

"I didn't get much of a childhood," she said.

"I felt like I grew up and matured dramatically.

"It was up to me to find things to do and [find] food and stuff like that."

Jane's real name cannot be revealed because it is against the law to publish information that may identify people who have been involved in Family Court proceedings.

She said she was telling her story because she wanted children like her to be formally given the opportunity to speak in the Family Court.

It is something National Children's Commissioner Megan Mitchell will be advocating for in a parliamentary hearing in Canberra today.


A foiled bid to escape

When Jane was four the Family Court awarded her father sole custody of her.

According to Jane, it was because her mother had fled with her from South Australia to Western Australia after learning of her father's AIDS and criminal past.

"It feels like for my whole life I've been punished for something I've never done," she said.

Jane said her father, who has since died, neglected her.

"In primary school, I almost always had head lice, was very unclean, wouldn't have food," she said.

"My clothes would either be dirty or old.

"My shoes would either not fit or be too big for me because he didn't want to buy shoes all the time.

"I was bullied a lot because of it."


She said her father did not buy her deodorant when she went through puberty.

"It was actually one of my friends [that bought it]," she said.

"It became very difficult when I got my period as well, his girlfriend had to teach me about that."

As well as neglect, Jane said she suffered physical abuse.

"My dad got very cunning and he would start hitting me in places where I wouldn't bruise," she said.

"I remember particularly one night I was hiding under the kitchen table trying not to get hit because he had a pool cue and he was going to kill me."

The sound of people yelling is one of her post-traumatic stress disorder triggers.

From photos to her half-brother's 'games'

Jane said she did not recall her father sexually abusing her but remembered being made to pose for nude photographs.

"He would leave the washing basket, like the clean clothes out in the hallway so I would have to come out naked to pick them up and he would take a photo … just weird things like that," she said.

"Then he would show his friends."


Jane said she did suffer sexual abuse at the hands of her half-brother.

"We were living in Dad's place for a while and he was slowly maturing into a young adult — he would have been about 13 or 14 and I would have been about six or seven — he started showing signs that he wanted to do sexual things," she said.

Jane said she thought it was a game.

"Then it progressed to foreplay and touching and cuddling and that sort of thing."

By the time she was nine and her brother was 16 or 17, Jane said he had had non-penetrative sex with her.

"I thought that my brother just loved me," she said.

"He used to bribe me and tell me that this is what families do and if I told anyone he threatened to kill me."

Later that year, Jane said her half-brother let his teenage friend molest her.

"First, it was him just watching and he was playing with himself and then my brother said, 'why don't you just have a try, see if you like it'," she said.

When Jane ran away from home at 13, she disclosed the alleged abuse by her half-brother to police but said he was never prosecuted.

"Because he and my father denied the offences and it was my word against theirs," she said.

Jane said her half-brother eventually went to jail for attempted murder after shooting his drug dealer.


These days Jane lives alone in a modest one-bedroom unit on the outskirts of Perth.

Among her treasured possessions are a piano her mother gave her as a gift before she died and a teddy bear.

"I sort of feel through music, if I'm feeling down, I listen to some down music or if I want to bring my mood up, I'll listen to some happy music," she said.

Fighting to be heard

Jane believed she would have had a much happier childhood if she had been allowed to speak directly to the Family Court.

"I felt like someone else that had never met me was able to control my life without even having met me or heard what I wanted or how I felt," Jane said.

"I was never allowed to see the documentation, in fact I used to get in trouble for prying into it, like beaten.

"I remember when I was like 10 or 11, I wrote a letter to the judge … saying something similar to like, 'How would you feel if you were a child placed in someone's care that you barely knew?'

"I barely knew my father at the time."


Asked if she would have disclosed the abuse to a judge, Jane said she would have reported the physical abuse inflicted by her father but maybe not the alleged sexual abuse by her half-brother.

"I was very reserved about the sexual stuff because I was also very confused myself and not just that … I was afraid of my father and my brother," she said.

"I would have said, things have been going on, but I can't tell you why because otherwise they'll kill me."

Hopes inquiry can spark change

Some anti-domestic violence groups have voiced concern about the hearings into Australia's Family Law System because the inquiry had been pushed by Pauline Hanson's One Nation.

But Ms Mitchell still hoped the inquiry could lead to change.

"I think anything that does shine a light on what's happening in the family law system, and in particular how it often fails children and puts children sometimes in harm's way, is an opportunity to make it better," she said.

At the moment few children give evidence in the Family Court despite being legally allowed to do so.


Ms Mitchell wanted it to be a legal requirement for children to be offered the opportunity to give evidence.

"The Family Law Act doesn't require a judge to provide an opportunity for children to express their views and so we're asking that the Family Law Act be amended to actually require that to happen," she said.

"We're not saying a child should be compelled to express a view, but they should be provided with the opportunity to do so."

The chairwoman of non-profit advocacy group the National Child Protection Alliance of Australia, Niki Norris, said if children were to give evidence in the Family Court they should be able to do so safely and via video link or from behind a screen, if necessary.

"They should be given the same privileges [as minors in other courts] to explain what happened to them, and most children will do that if they're not scared by a whole courtroom full of people," she said.


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