Why Did Australia’s High Court Sell Out on the Child Abuse Issue? The Case of M and M

by Mary W Maxwell LLB

On February 21, 2019, the Irish High Court awarded over 2 million euros to a woman whose father abused her from age 4 to 6. I bring this case in, so we can once again discuss a matter that is causing havoc in Australia.

“The woman, now in her 30s, also said her father, who said the abuse never happened, facilitated similar abuse by neighbours and others both in the family home and in other houses in their area.

“She claimed that, as a result, she suffered serious psychological and emotional damage throughout her life.

“After a six day trial, the jury of 10 men and two women took around six hours to reach the verdict that her father did commit an act or acts of sexual abuse resulting in injury and damage to the woman.

“The court heard that two years after they left the family home, when she was eight, she gave a statement to gardai outlining the alleged abuse. The court heard a file was sent to the Director of Public Prosecutions, who decided not to prosecute because the children were too young.” [Emphasis added]

Think about it! Think about that remark!

A DPP seems to be the boss. In other words, we citizens do not have a police force that will protect us.  The cops may well refuse to arrest a parent for abusing a child sexually — but even of they do, the DPP can squelch it.  Is this how we want Australia to be?  Isn’t it crazy?

The Irish Times continues the above story:

“After seeing her father by chance in 2009, she decided to go to the gardai and make a complaint herself as an adult. But again the DPP decided there would be no prosecution.

“At that stage, she decided the only way to make her father responsible was to bring the High Court civil proceedings.”

A point of interest here is that it was a criminal trial and that a jury rendered the verdict. Keep that in mind for later. By the way, do you recall that Senator Nancy Schaefer in the US recommended that no child be taken from a parent without a jury trial?

Next thing you know, Nancy was pushing up daisies, but we won’t go into that now.  I am eager, nearly desperate, to broadcast the following opinion:

The Australian High Court has got to go.

For 10 months, GumshoeNews has been trying to figure out what the hell is going on. Why are so many mums – and a few dads, too – being treated cruelly?  Why are so many children – in the very country that had a splendid Royal Commission – being ignored as to their ongoing plight?

First, let me say something about the Irish payout and the various church and government payouts to victims. I think it’s all a bad joke on us. One has to be glad that the victims received some kind of relief, it’s better than not showing them a smidge of justice, but it may have been done to fool the public to think the child-abuse is now a thing of the past.

The Royal Commissioner, Justice Peter McClellan, has said his RC only touched 10% of the problem (institutional child abuse e.g., in the Boy Scouts or the Navy) – but 90% of it goes on in the home. Keep that statistic in mind.

Precedent Is Not from God, OK?

Gosh. I sure blustered my way into this study without looking at “precedent.”  Serious legal scholars love precedent. Indeed when you write up a case, you’re supposed to make a list at the beginning called “authorities.”  The precedents are the authorities.

Naturally that only means that the five or seven or nine members of a High Court reached such-and-such a conclusion about the matter before them. It does not mean a divine light shone upon them.

Finally today, after 10 months of dealing with many aspects of the Protective parent affair, I visited austlii.edu.au to track down the relevant precedents. Sure enough, there it was, the case of M and M.

(A lot of the cases with children in them have got annoying names like B v R  or J v JK and BL. That is good protection for the child’s privacy when he grows up, but it’s a bit off-putting.)

The family problem we have been screaming about can be reduced to 5 parts:

1. Mum discovers Dad has sexual attraction to their kid.

2. She reports it to some authority – could be a doctor, a policeperson, or one of the advertised helplines such as “Child Safety.”

3. The minute she opens her mouth she is in trouble. She, not he, will be blamed. He, not she, will get sole custody of the child(ren). The poor kids will more or less lose their mum. (This is not an accident, Folks, it is well planned.)

4. 4. She will also be vilified, such as by social workers and court reporters. Either they will concentrate on the “fact” that she is a nut job (delusional, out of her mind, etc) or the “fact” that she has harmed the child by persuading him or her that abuse has taken place. She is bad, bad, bad.

5. Nowhere can she go for relief. Despite shelves of books in the library about a child’s need for its mother – which is about as non-controversial as “grass is green” – and despite the aforementioned Royal Commission that proved that kids who disclose abuse are almost always telling the truth, there is no set-up to help her!

Sure there are groups of similarly situated parents who can validate her and comfort her, but they can’t help her get her kid back.

Precedent, Richard Gardner, etc

The precedent for family law was set in 1988. That’s when CIA slave Richard Gardner, MD, was spewing forth his theory that a Parental Alienation Syndrome actually exists.   Females, being what they are, want to turn their child against the father – hell hath no fury sort of thing – and so they coach him or her to believe that dad has been up their bum, vagina, or whatever.

Note: in my little treatise here I am going to use the masculine pronoun he when referring to the judge, to save the ink of saying “he” or “she” every time. It is evident, however, that women form a majority of recent appointments to the bench in Australia, and Family Court in particular.

As we know, the 1975 Family Law Act set up a special court to deal with marriage, divorce, child custody, and property settlement when couples break up. Section 60CC of the family Law Act  guides a judge as to how to award residence (formerly known as custody) to one parent or the other or perhaps to both.

I realize there are many couples that have no issue of child sexual abuse and I’ll simply assume that our courts are in the habit of acting in a decent matter for those couples.  BUT THEY ARE NOT ACTING IN A DECENT MANNER IN CASES LIKE THE ONE for which I drew a 5-PART SKETCH above.

The High Court Case of M and M

Please know that what I am about to say comes only from my reading of the precedent case, the authority, and my knowledge of how precedent rules the roost.  I have NOT researched to see if any 2019 cases have deviated from M and M.

I am merely assuming that judges today are doing the wrong thing, the cruel thing.  That is what I have been finding when talking to mums in SA, Qld, and NSW. It’s not the best way, but it’s my widow’s mite for the moment.

Start with this quote from M and M, 1988:

But it is a mistake to think that the Family Court is under the same duty to resolve in a definitive way the disputed allegation of sexual abuse as a court exercising criminal jurisdiction would be if it were trying the party for a criminal offence.

Proceedings for custody or access are not disputes inter partes in the ordinary sense of that expression: Reynolds v. Reynolds; McKee v. McKee. [the authorities for that point]

In proceedings of that kind the court is not enforcing a parental right of custody or right to access. The court is concerned to make such an order for custody or access which will in the opinion of the court best promote and protect the interests of the child.

What you are reading, dear Aussies is just the beginning of the word-twisting game. Granted it is reasonable to say that a Family Court, with its limited bailiwick, cannot act as a criminal court. The Famcourt correctly demurs from trying to reach a conclusion about someone’s guilt. After all you can’t do the impossible and it is only supposed to handle marriage, divorce, blah blah.

But how can that carry over to “letting the crim off scot free and give him a medal for it as well”?

I exaggerate: there is no medal, but there is a trophy – the child.

If the bench in M and M had left it at that, people would, I hope, move logically to the next thought:  “Since the family court can’t deal with allegations of crime (child sexual abuse is a crime, isn’t it?), the court needs a mechanism to get that matter sorted out per all the excellent apparatus a judiciary has in criminal matters.”

For example, it could shut off its decision-making about residence until the allegations are proven or disproven. And here would the truly slandered father have his day in court.  Instead of tossing a coin as to the man’s guilt, he could defend himself with all due process protections.

As for the kids whose testimony (known as “disclosures”) need to be checked, there are ways to do it. Interviewers can be trained to recognize when a kid has been coached. And many of the abused kids have been recorded in informal settings and many have disclosed to a doctor or a teacher.

Plus there is photographic evidence, blood tests, etc. There is no more risk than in any trial that a wrong verdict will come about. If I am wrong, and I may be, please explain.

Here Comes the High Falutin’ Talk in M and M

(Note: in these passages all bolding is mine.)

“In deciding what order it should make the court will give very great weight to the importance of maintaining parental ties, not so much because parents have a right to custody or access, but because it is prima facie in a child’s interests to maintain the filial relationship with both parents: cf. J v. Lieschke.”

(I can’t wait to show that passage to Andrew McIntryre or his sister Rachel Vaughan. They had to fear their Dad right up until he died in November 2017 when they were middle age!)

“Viewed in this setting, the resolution of an allegation of sexual abuse against a parent is subservient and ancillary to the court’s determination of what is in the best interests of the child.”

Absolute pure unadulterated bullshit.

“The Family Court’s consideration of the paramount issue which it is enjoined to decide cannot be diverted by the supposed need to arrive at a definitive conclusion on the allegation of sexual abuse. “

Supposed need?  It’s a real need.  No mother should allow her 4-year-old boy to go to the home of a pedophile.

“The Family Court’s wide-ranging discretion to decide what is in the child’s best interests cannot be qualified by requiring the court to try the case as if it were no more than a contest between the parents to be decided solely by reference to the acceptance or rejection of the allegation of sexual abuse on the balance of probabilities.”

Pause.  Big pause.  What did the High Court just say? Well for one thing, it threw in a phrase that makes all attorneys feel at home: “balance of probabilities.” Let’s hear that sentence again without that warm and cuddly phrase. I’ll reword it (but remain faithful to the message – honest):

[Reworded]: The 1975 Act gave judges a responsibility to put on the old thinking cap. It also (especially in the 2006 amendments) underscored the paramountcy – yes paramountcy no less – of the child’s best interest.  Thus no judge is free to use silly, facile formulae like “Don’t send a kid to get raped.”

And for heaven’s sake, don’t portray the dispute as a contest between parents – even though that is palpably what it is —  and don’t get yourself embarrassed at the Bar association cocktails by having been seen to focus on the allegation of child sexual abuse, even if the kid’s penis had fallen off from overuse.”

Oops I got carried away.  Anyway, what did we lose by excising the phrase “on the balance of probabilities”? Why nothing, nothing at all.  You see it had no purpose. It was filler. It was to distract and again to cover up the hole that would be left if no phrase were there. The poor old sentence would have ended blatantly with the words “to be decided solely by reference to the acceptance or rejection of the allegation of sexual abuse.”

And we can’t have that.

Zooming in on “Unacceptable Risk”

You may think 1988 is ancient history, but in the 1993 case of B and B, the Full Court of the Family Court (which is not the same as the High Court of Australia) paid homage to M and M. It said, when discussing allegations of sexual abuse, that the High Court in M an M had referred to an

“imposing array” of tests which had been formulated by the Family Court to determine whether access to a child should be denied in such cases.  The Court held that the various tests expressed endeavours by the Family Court “to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access.”

Good Christ! I mean on the face of it that’s outrageous. You don’t try to make that balance.  This is not a balancing act. The two things are separate. I love both my parents. I’m glad I was not deprived of either one.  But if one was dangerous to children I’d have wanted to be protected till adulthood and then could seek a relationship with the abandoned parent later. Now that would be a good balance!

Granted the B and B quote goes on to say:

“The test [they love tests] propounded by the High Court in M and M and which is authoritative in this jurisdiction, is: “that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse….

Where the Court makes a finding of unacceptable risk it is a finding that the risk of harm to the children in having access with a parent outweighs the possible benefits to them from that access.   Such a conclusion however may be a finding in relation to unsupervised access only.”

So I concede that the High Court noted that even a supervised contact can disturb the child – as loads of Protective parents will tell you today.  A few years ago the ABC Four Corners show broadcast a video of a boy, whose visitation took place in a public park – he spent the whole hour up a tree.

M and M: “there may be a risk of disturbance to a child who is compulsorily brought into contact with a parent who has sexually abused her or whom the child believes to have sexually abused her” (ahem, ahem).

B and B: “Therefore, if supervised access poses an ‘unacceptable risk’ of harm (or ‘disturbance’), whether physical, emotional or psychological, it should not be granted.” Thank God.

In N and S (1996) Justice Fogarty discussed the issue of unacceptable risk in sexual abuse cases. He said:

“In asking whether the facts of the case do establish an unacceptable risk the Court will often be required to ask such questions as: What is the nature of events alleged to have taken place? Who has made the allegations? To whom have the allegations been made? What level of detail do they involve? Over what period of time have the allegations been made?? ….What expert evidence has been provided? Are there satisfactory explanations of the allegations apart from sexual abuse?”

Pardon me if I read that last phrase cynically.  It means “Can we dispose of the abuse by a justification?”  In the Liberti v Livberti case in Connecticut, a dad who was always massaging his son’s thigh was said to be treating his hamstring. Sure. And today I read an Australian case, Mandel v Blum, in which the Dad satisfied the court by his explaining that he gave his child a suppository “to allay a fever.”

Back to the Article in The Irish Times

Here is the 2 million euro story again:

“She remembered [father] holding her by the hand as “he brought me to other men’s houses” where he introduced them to her as “uncle” and to women, who she said also abused her, as “aunt”.

“She later grew up in foster care including time as a teenager in a home where she witnessed young girls engaging in acts of self-harm.

“At 18, she had a son who she had to hand over to her foster parents because she was unable to cope due to her continuing trauma, including not being able to change the baby’s nappy.”

I look forward to suggestions as to how to deal with our 5-part tragedy. It cannot be allowed to continue.tragedy. It cannot be allowed to continue.