Published: 10 March 2017
Author: Stringer Clark

Is Moama tragedy symptomatic of a failed justice system?

We joined the rest of Australia in mourning the tragic loss of the little boy who drowned in Moama last weekend. Meanwhile, Australians are questioning if the justice and/or family law systems are broken.

When I started out in law more than a decade ago, I had a very different perspective on both human nature and justice. Once immersed in the family law system, it becomes clear that every case is unique and individual and blanket rules and approaches often don’t apply. In addition, complex cases involve three systems – the police, The Department of Human Services (DHS) and the family courts and it is no easy feat to align all substantial and elaborate systems in the interests of a child.

When reading about this recent case, it seems the grandparents of these boys had turned to the law and justice system for help. Newspapers claim “The two boys had lived with their grandparents in Deniliquin for more than 18 months, and were only reunited with their mother in the past few weeks. The grandparents are understood to have been forced to take out an apprehended violence order against their daughter last May and had recently alerted NSW Police, the Department of Family and Community Services in NSW and Corrective Services about her deteriorating mental state.”

Family courts are seeing more cases of drug and alcohol abuse

The grandparents in this case are based in rural NSW and they are not alone.

At Stringer Clark, we are seeing more cases of family members seeking assistance on behalf of children in their family or extended family than ever before. Often this is a result of drug abuse, alcohol abuse and/or any mental health issues. We do not know the circumstances surrounding the recent tragedy.

It’s not uncommon to see people in court so numbed by alcohol that they cannot recognise the danger of drink driving with their children in the car. We see tormented husbands, wives, partners and parents of drug and alcohol addicts pushed to the limits. They turn to us as an ally to protect themselves and their children from the perils of substance abuse and consequent domestic violence.

Fifteen years ago there were plenty of family law cases but the violence was not as prominent. The ice epidemic and its associated aggressive and violent tendencies has resulted in the processing of so many intervention orders that it’s questionable how they can all physically be enforced en masse.

Every day we are witness to the children who are bearing the brunt of their parent’s mental health or addictions and only time will tell the toll it has on them. Before entering the legal profession, I was unaware of the battle people in my small rural town are fighting daily against drugs. I was also blissfully naïve about the unimaginable domestic violence local children were experiencing as a result of family substance abuse.

The following statistics highlight the problems we are increasingly seeing reflected in the family courts.

• Warrnambool police responded to 40 methamphetamine-related offences in 2015. In 2006, it was zero. 
• In November 2015, The Crimes Statistics Agency reported drug use and possession had more than doubled in regional Victoria in the past five years.
• In 2014, 80,000 Victorians were reported to be using ice.

What do innocent Australian carers need to know about substance abuse and the child protection systems?

There is a saying ‘you don’t know what you don’t know.’ In law, we see innocent Australians enter our offices with great expectations in solving family problems. 

However, in time these are the things they learn that often have great impact on their daily lives.

• Unless providing proof of rehabilitation, a drug addict is exactly that, and is a potential risk to the well being of the children.
• While families can apply for intervention orders, they are very difficult to enforce. The DHS is under resourced and can make only one home visit and therefore they are reliant on the police for related emergency services. Meanwhile, the family history and intelligence at the DHS is not shared with the police, so often the police do not have the history related to a child’s imminent risk of danger. To technologically link these systems is estimated to costs hundred of millions of dollars. In addition, unlike doctors, lawyers are not required to mandatorily report child abuse.
• While the professionals involved do their best, the DHS, police and family court systems were not initially designed to work together. The Family Court is a Federal system while the DHS is a state based system, which means reporting systems are not synchronised.
• Family members can be bound by family court orders and if breached, the situation can deteriorate with little room for recourse and we often see family members having to act against their own instincts for this reason.
• While the DHS often focuses on reuniting parents and children, on some occasions the consequent trauma can be to the detriment of the children.
• Government funding to the family courts has been cut and is under financial stress. For this reason, families can often wait one year for a trial while attending court appearances and preparing family court reports in the interim. This is a long time to wait for a family dealing with drug and alcohol abuse.

The best way to navigate family law

Upon meeting my clients for the first time, I always encourage them to try and settle matters between them and outside of court.

Surely, if the systems are designed to protect the interests of the children, we need to ask if we, and these systems, can work better together?

Meanwhile, we return to our work in family law and join our clients in sharing concerns and deepest sympathies for this Deniliquin family.