Failure in Protection — The Ten Breaks In The Family Court System

Dr Amanda Gearing

THE INK is well dry now on the recommendations of the Royal Commission that pave the way for improved child protection in institutions in Australia.

One of the first systemic reforms that needs to be addressed now is to apply the recommendations as far as is possible to children who are under the control of the “institutions” involved in the Family Law system. Failures of the past, of disbelieving children until there was a criminal conviction cannot be allowed to continue.

To cite just one example: a girl of 8, who described being bound and sexually assaulted was found by a court-appointed psychiatrist, with no expertise in child sexual abuse, to have fabricated the claims. The mother, who believed the child ‘s disclosures was found by the psychiatrist to be ‘too anxious’. The child was ordered to visit the father. Years later when the child turned 18 she disclosed that she had been sexually assaulted during court-ordered access visits.

The Royal Commission

The Royal Commission has found, as have previous research studies, that children who disclose sexual abuse are almost always telling the truth [refer to research by Oatley below]. If this research finding is carried across to the Family Court system, we would expect to see 97.5% of children who disclose sexual abuse being protected from the alleged offender.

This is simply not happening. Try calling a family lawyer and they will say ‘don’t report the abuse or you risk losing your child to the ex’.

Most children do not report abuse but those who do should be immediately protected by the Family Law system including state and federal agencies including police, child safety departments, independent children’s lawyers and family report writers whose role is to protect children as their first priority.

The Institution that Is the Family Court

At present, domestic violence orders issued in state jurisdictions are routinely over-ruled by Family Law orders and judgements and order children into contact with people whom the state child protection system deem a danger to them. There are reported cases where judges make findings that sexual abuse has mostly likely occurred and yet they still provide the offender with access to the child, judging the child’s relationship with the offender of more importance than the betrayal of that same relationship by the offender.

One Sydney psychiatrist, for example, has publicly stated his view that most children who allege abuse are not telling the truth and that his statistics are reversed.

Idanov and Dunstable (2016) is a rare case where the judge found that

“the potential benefit to the children of spending unsupervised time with the father was outweighed by the risk of the serious consequences and detriment that would arise as a result of the type of sexual abuse alleged.”

Any failing in the system is a break in the chain of child protection. The system is only as strong as its weakest link – and there are TEN WEAK LINKS that need attention:

1. Silence in the Court

There is a lot of confusion about the meaning of Section 121 of the Family Law Act. This confusion effectively silences abuse victims, protective parents and journalists who are cautious about breaking a law that is not clear in its meaning.

Protective parents who flee into hiding with their children after exhausting all other avenues of protection, remain silenced. However the abusive former partners can be empowered and emboldened with the imprimatur of the Court to continue attacking the credibility of the protective parent in the public arena via the media.

The judicial power of courts to determine with whom a child may or may not associate, is leading to harm and sometimes deadly outcomes for children.

For example, some children who are forced to visit a parent of whom they are terrified, have become actively suicidal.

2. Disclosures of abuse

Children usually don’t verbally disclose sexual abuse, even when it is occurring and even when the abuse amounts to serious violent offences. Those who do report may take years or decades to do so.

Some do not intend to disclose but their behavioural changes are symptoms that their protective parent identifies, for example being withdrawn, regressing with toilet training, having nightmares, dissociating from their surroundings etc. Children who disclose abuse may do so slowly and gradually. Protective parents frequently report being unsure what was happening to their child despite seeing symptoms. In the context of family court cases, a parent may agree to consent orders to share care with the other parent, only to discover the abuse later and being unable to overturn the consent orders.

Protective parents who have signed consent orders for contact of the children with the alleged abuser can be served with a contravention order for not complying with orders. Some protective parents sign consent orders only because they have no money to fight an application for contact. In these cases the protective parent may know their child is disclosing alleged criminal offences but is required by law to provide the child for contact. Section 286 of the Criminal Code may provide a defence of reasonable excuse.

Parents can find themselves in a very uncomfortable Catch-22 situation. If a parent withholds a child from contact they breach court orders but if they hand the child over to an allegedly abusive parent the child may be removed from their care by Child Safety for failing to protect the child.

3. Reporting abuse

When children do report sexual abuse, they are most likely to be telling the truth. (Research by Oatley found 97.5 per cent of reports to be substantiated.)

Reports of abuse made to police are often disregarded by police simply because there is a Family Court case on foot. In several cases, alleged offenders have filed a Family Court action within days or even hours of police seeking to arrest them for crimes against a child. Reports to Child Safety departments are frequently poorly handled. For example, in Queensland each single notification is assessed in isolation without all the evidence being collated to determine whether a child is at risk.

In addition, child safety only steps in to protect if a child has no protective parent. If there is one protective parent, the department takes no action to support the child or the protective parent. This leaves the protective parent to try to mount a de facto criminal case that is frequently costly and ineffective and results in the protective parent losing custody of the child and the child being placed in the custody of the offender.

4. Failure to investigate or charge

Police are usually very reluctant to investigate or charge a parent with a criminal offence while there is a Family Court case in progress, although there have been some cases. Evidence is a major stumbling block. Protective parents who believe their child frequently assume that if they video a disclosure by the child that that will be ‘evidence’. Sadly, it is not enough for police to base a prosecution. Police require evidence such as a video of the actual abuse or DNA of the alleged offender somewhere on the child that it shouldn’t be. Police might be very sympathetic and believe the child and believe the parent but that is different from having the evidence to run a criminal prosecution to the required standard of ‘beyond reasonable doubt’. In addition, police can only lay charges if they believe there is a  ‘reasonable prospect of conviction’. This is unlikely in a case where there is also a Family Law case on foot.

5. Lack of investigative power

The Family Court lacks any resources or power to investigate crime. Their role is to facilitate contact between the child and both of the parents. The Family Law Act states that the court must presume it is in the best interests of the child to have a meaningful relationship with both parents. Although legislation has been changed, the precedents already set mean that maintaining relationships can be unreasonably prioritised over safety.

An inquisitorial system might offer more promise in cases where abuse is alleged.

6. Safety v Relationship

The balance between child safety and relationship with both parents is frequently tipped in favour of relationship even when child safety departments have substantiated a risk of harm from one of the parents.

Section 60CC of the Family Law Act sets out how a court determines what is in a child’s best interest. The primary considerations are:

(a)  the benefit to the child of having a meaningful relationship with both of the child’s parents; and

(b)  the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

Additional considerations include any views expressed by the child (depending upon their maturity, the nature of the relationship of the child with each of the parents, and other peoples such as grandparents; participation in long-term issues in relation to the child; time spent with the child; the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child; the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents; or any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living. Practical arrangements such as where the parents live and the expense of travel; the capacity of each of the child’s parents; and any other person (including any grandparent or other relative of the child) to provide for the needs of the child, including emotional and intellectual needs.

In multicultural families, additional considerations include the maturity, sex, lifestyle and background of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant.

If the child has Aboriginal or Torres Strait Islander heritage, the court also considers the child’s right to enjoy his or her culture.

The court also considers any family violence involving the child or a member of the child’s family; if a family violence order applies, or any findings made by the court in, or in proceedings for, the order.

7. Disbelief

Treating doctors and psychologists may believe the child’s disclosures of sexual assault but Family Court ‘expert witnesses’ who are often less qualified or unqualified may disbelieve the available evidence and perceive the protective parent as ‘emotionally abusive’. The protective parent is then accused of emotional harm for taking their child for medical care to cope with symptoms of the abuse such as sleep problems, toilet training regression, unexplained violent behaviour, dissociative episodes etc.

As in the case of the 8 year-old girl I described at the beginning of this article, a failure like this is a monumental disaster for the child. The protective parent is placed in the invidious position of being ordered to send a child for contact with someone they know to be violent and/or sexually abusive of themselves and/or the child.

Protective parents who seek legal advice are frequently warned not to raise their concerns about sexual abuse because they risk losing custody of the child to the other parent. This scenario has been validated by Lesley Laing at the Uni of Sydney whose research shows lawyers often telling clients not to tell the court when there’s been abuse, because the courts are likely to see this as ‘alienation’ and send the child to live or spend time with the abuser. Protective parents who believe their child’s disclosures are placed in the invidious position of either withholding the child from contact and risking being fined or jailed for contravening a court order; or handing over the child for access and risking the child will be abused. This is a disastrous position for protective parents.

8. Cost

The costs to protective parents are multi-faceted. Their sense of trust in authorities is undermined at a time when they need and deserve support and protection for themselves and their child. Protective parents may struggle to support a distressed child who is unwilling to see the other parent despite court orders that they must. The financial costs can be crippling. Some protective parents have paid over $500,000 in legal fees trying to protect their child. There is frequently a cost also to relationships in the extended family. There is also a significant cost in time spent researching the law, seeking medical help, attending medical appointments and accompanying children to appointments.

9. Final orders – not so final

Even after years of fighting in the Family Court – and maybe winning a custody battle – state child protection authorities may step in and ‘cold switch’ the child or children from one house to another against Family Court orders. The long years of sacrifice, stress, cost and effort can be summarily nullified.

10. Dying for change – and reformative legislation

Sadly, several children who have reported abuse, who were not adequately protected by family report writers or expert witnesses, and who have been placed in the care of offenders, have been killed by their abuser. The death of innocent children is a totally unacceptable outcome for children who have had the courage to report abuse and to seek help from adults and authorities.

Note: If you have documentary evidence that disclosures of abuse by a child were disregarded, you can contact me by email here.

Conclusion

In the shadow of the Royal Commission, these failures in our Family Law system need to be addressed. Evidence-based research findings are available which have the potential to repair the broken links in the child protection chain that are failing Australian children.

Listening, believing and protecting children should not need a Royal Commission. But since we’d had to have one, let’s make full use of the findings for the benefit of children who deserve the best we can offer them to ensure they experience a safe and happy childhood.

Institutional failures must be addressed. Protection of innocent children should be our top priority.