No safety for family violence victims in family law

The Betrayal

The court says you have to go.
“I’m tired mummy”
Quickly, get your shoes on, he doesn’t like to have to wait
“He kicked me mummy”
The court says I can’t talk to you about that darling
Next Monday you have your appointment with the therapist
Tell him then. Let me comb your hair.
Daddy likes you to look smart
“He doesn’t like me. He hurts me with his fist”
I know darling. His fists hurt me too.
My lawyer says I can’t talk about that.
The police said I didn’t need a restraining order
And the judge said I had to have one if I wanted to say he hit me.
“I don’t want to go mummy”
I know.
I’d love to be with you on an island in a sparkling sea
With dolphins and rainbows and cream buns for tea.
But we’re not are we.
The judge said if I didn’t have you ready to go
I couldn’t be trusted to have you live with me
Quickly now get your bag. There’s daddy’s car.
“No mummy no”
You have to go.

Every week, somewhere in Australia, there are mothers and children who are frantic with dread, anxiety, grief and betrayal. They face an agonising choice.

Family Court orders require the mothers to hand their child into the care of a person that the child has told them has physically and or sexually abused the child.

The child, usually aged less than 7, believes their parent will protect them, but the Court requires that the child attend contact with the person the child has named as their offender. Any failure of the child to be happy to attend contact will be blamed on the resident parent.

The parent may also be subject to orders that the child not be taken to any medical or therapeutic care. There might also be orders that the parent does not discuss with the child any complaints or concerns the child may have while attending contact with the other parent. Failure to comply with such court orders may result in fines, community service orders, imprisonment, reversal of residence, and even cessation of contact with the child.

The problems of the intersections of child abuse and family law have been documented by the Family Law Council in its report Child Protection and Family Law.

As the report details, the fragmentation of statutory responsibility for child protection across state and federal legal frameworks provides an unwieldy array of impediments for abused children.

Allegations of child abuse in the family law system must be reported to state authorities, however there is no requirement that these reports be actively investigated. Unmet demand on child protection systems across Australia highlights the large numbers of reports which are not classified as the highest priority and effectively receive no investigative action.

When child abuse allegations arise in the midst of divorce proceedings, there is some evidence that they are treated as a revenge strategy by parents, rather than a child abuse report (Brown et al 2001). The practical outcome is that many allegations are never investigated and are thus designated as unsubstantiated, without any attempt at investigation.

When an investigation by state child protection authorities does occur, there are further hurdles. Children often find it difficult to describe and disclose abuse, particularly to strangers. The younger they are, the less they can speak of their experiences and be heard or believed. When children do disclose, protective parents are often accused of “coaching” the child to make up lies.

When children disclose physical abuse, the issue arises around the limits of parental discipline and reasonable force. Under Australian laws, parents can legally physically assault their children under the justification of discipline using reasonable force. In practical terms this makes it hard to criminally prosecute parents who physically assault their children or to prevent them being exposed to further assaults during contact.