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NOTE: Let me be clear. I hold no gender bias in these matters. I have seen mothers and fathers devastated by the family-law system, and both men and women responsible for appalling decisions in child protection and the courts. Both can be perpetrators of abuse. This is about recognizing cruelty, regardless of who inflicts it.
by Dee McLachlan
I think I made a grave mistake visiting the Family Court in October.
I spent a morning in Justice Johns’ courtroom and was reminded of the Court of Oyer and Terminer in Salem, Massachusetts, in 1692. The infamous witch trials – where accusations became evidence, denials became proof of guilt, and those in authority were utterly convinced of their own righteousness.
More than 300 years later, we have computers, expensive lawyers, highly paid experts, Independent Children’s Lawyers, and judges armed with legislation. We even have a Family Law Act declaring children’s best interests paramount.
What a pity the children themselves can seem almost incidental.
In my 2018 Family Court survey, of 71 respondents answering a question about children’s disclosures of abuse or sexual abuse, only two reported that a judge had believed their child. Forty-nine reported that the judge had not. It was a self-selected survey, not a scientific study. But the accounts were deeply troubling.
So, when does protecting children becomes the problem?
I’ve heard countless similar accounts, but here I was again.
A mother was attempting to explain to the court the escalating distress of her two daughters, their fear of returning to their father and their deteriorating psychological wellbeing. Three years of litigation. Repeated professional assessments. One child reportedly experiencing passive suicidal thoughts. From the gallery, the focus seemed less on understanding the children’s distress but rather on the mother’s persistence.
Was I watching a court protecting children — or a court process contributing to their psychological harm?
Gaslighting and the Modern Witch Trial
The parents separated some years ago. The mother agreed to the father’s requested time – 4 nights per fortnight – with the children. Then he wanted one more night. Back to court as he refused mediation.
Over time, the daughters became increasingly resistant to seeing him. They reportedly made disclosures, and their mother sought professional help. According to her, over ten reports and assessments have addressed the children’s circumstances. Yet she says crucial professional evidence is not been entertained by the court.
At the October hearing I attended, she sought supervised contact until the matter could be properly addressed at the next hearing in December. Another family assessment was ordered. How many assessments must children endure before somebody listens? It seems her privately commissioned reports were sidelined mostly because she paid for them. Yet the newly ordered assessment was to be paid for by the father – and the chosen report writer was aware of that.
And here is the circular dilemma: If the children become resistant and distressed, she is accused of influencing them. Their resistance risks becoming further evidence against her.
Heads, the mother is wrong. Tails, the mother is wrong.
But what if the children are genuinely frightened?
Children as Pawns
Both girls – young teens – have repeatedly expressed concerns to teachers, psychologists and other adults. I won’t report what they have said or speculate about what they may have experienced. Their overriding complaint has become tragically simple.
Nobody is listening to them.
The older daughter fled school one day rather than attend a handover with her father (as her younger sister was away). A friend took her to a police station, where she waited about three hours without her concerns being formally recorded in an interview.
Their mother describes a progression over the years from reluctance to anxiety, to anger, then open defiance and now a determination to sever their relationship with their father. One even threatened violence to him and to self if contact is forced. Worse, the girls have begun losing trust in ALL adults.
The Court as a Weapon
Three years of litigation has devastated the mother’s finances. She says the father has refused repeated mediation proposals and rejected a gradual, therapeutically supported approach to rebuilding his relationship with his daughters.
Instead, the litigation continues. In 2018 and 2019 I heard about 30 plus similar accounts. In the survey some parents lost $500,000 in court expenses and still lost their children. When does the court become a weapon for one side?
The Science and a Disturbing Pattern
Australian researchers Sage Wilde, Nicola Sheeran and Heather Douglas reviewed 25 studies involving mothers who had experienced domestic and family violence while navigating family courts. Their review, published in Psychiatry, Psychology and Law, identified recurring patterns of legal-system abuse, financial pressure, secondary victimisation and psychological harm.
The troubling finding? Legal professionals may fail to recognise coercive behaviour operating through the very processes they administer.
An ANROWS research project published in 2022 examined parenting-order enforcement, including 300 court files and 147 judgments. It raised concerns about enforcement where family violence, children’s resistance and unresolved safety issues intersect.
Researchers Emma Katz, Anna Nikupeteri and Merja Laitinen have also examined children’s experiences of coercive control after separation.
You Cannot Court-order Love
The father knows the girls adore their mother. He knows they have expressed intense resistance and have told him they never wanted to see him again. That should devastate any loving parent. It should also prompt some serious reflection.
But the father has applied for custody – primary care – of both daughters. He proposes limiting the mother to two hours of professionally supervised contact each week, at her own expense, with extensive restrictions on communication.
So what exactly does he expect will happen if they are ordered to live with him? And perhaps the most important question: what sort of parental judgment is this?
I believe the father’s apparent determination to seek primary care in this instance warrants serious examination of his parental insight and judgment. And if the Independent Children’s Lawyer supports such a drastic change, I would expect an exceptionally compelling explanation.
I feel sorry for a father whose daughters want nothing to do with him. But forcing children into a home they desperately fear could subject them to a torturous existence. If such an arrangement were imposed, I believe it would be in violation of the existing law and treaties.
I can only hope sanity prevails and the Court remembers that the children’s best interests are paramount. On the evidence presented, the father’s demand for custody appears so detached from the children’s expressed fears, wishes and psychological wellbeing that one wonders why it should even be entertained.
The 45-minute Test – WWCC
I recently renewed my Victorian Working with Children Check for my work with a university. Victoria has introduced mandatory child-safety training for applicants and people renewing their clearance. It takes approximately 45 minutes.
The course uses videos and questions to teach adults how to recognise child abuse, understand children’s behaviour and respond to warning signs. I found the videos of survivor accounts particularly powerful. The message was simple.
Listen to children. Recognise distress. Take their fears seriously. And act.
Children may communicate danger through withdrawal, anger, anxiety, avoidance, a change in behaviour, or flight. These are not inconveniences to be managed. They are warning signs to be investigated.
I thought about the two girls and the case before the court. Wouldn’t it be interesting if everyone exercising such extraordinary power over children had to complete the same basic child-safety course – now? Would the judge and the ICL pass the WWCC? In my humble opinion – no. Not because I know every fact in the case, but because the children’s escalating distress did not appear to be the central concern. And that is the bitterest irony.
A system established to protect children must not become the very thing they need protection from.