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.

Child sexual abuse is defined as criminal, but it is harder to identify, substantiate and prosecute, as children under 7 are not accepted as witnesses in the criminal justice system, the offences typically take place in secret and are not revealed until later.

Without adult witnesses or forensic evidence, children’s accounts of sexual assault are easily disregarded by investigators. Even when the investigators believe the child, and report to the court that abuse is substantiated and contact is not recommended, judges can and do, reject the report and recommendations.

Allegations of child sexual abuse in family law are subjected to a higher standard of scrutiny, known as the Briginshaw test, which actively directs judicial decision-makers away from making “positive findings”. In a recent full court decision of the Family Court Re W, the judgment read in part:

A false negative finding accompanied by appropriate safeguards as to the future relationship between parent and child, such as adequate supervision to guard against possible abuse, may be far less disastrous for the child than an erroneous positive finding that leads to a cessation of the parent-child relationship (Monahan 2005, 67).

Rephrased, the judgment is in fact speculating that a child who is being sexually abused by a parent will be better off seeing that parent under supervision, than risking a child being prevented from a relationship with a non-offending parent who has been falsely accused.

Given that international and Australian research into child sexual abuse allegations has identified that nine out of ten allegations have substance, regardless of the context of allegation (Brown et al 2001; Parkinson 1998), it is evident that many sexually abused children are being required by the courts to have regular visits with their abuser.

The court’s judgment is speculative that this is best for children and presents no evidence of any positive developmental and emotional impacts on children of regular visits with their incestuous sex offender. Research into the short (Beitchman et al 1991) and longer-term effects of child sexual assault (Mullen et al 1993; Mullen and Fleming 1998; Muller et al 2000) clearly identifies potentially lifelong catastrophic consequences for abused children.

As to the use of supervised contact as a means of preventing further abuse, supervised contact is scarce and expensive and typically short-term. As a risk-management strategy, orders for supervised contact ignore children’s distress at being forced to be in the company of a person who has frightened or assaulted them. An evaluation of children’s contact services found that most users had multiple complex problems, but the most violent offenders were in fact excluded from using the centres, leaving mothers and children to cope with contact without professional support (Sheehan et al 2005).

Changes to the Family Law Act from July 1, 2006 make it even harder for mothers and children to achieve safety. Mothers fleeing domestic violence are now required to attend mediation or gain a certificate allowing them to apply to the Family Court for a hearing.

New provisions allow penalties for “false allegations” of violence and consideration of which parent would most likely facilitate a relationship with the other parent. Such provisions make it difficult for mothers to disclose violence as they may be penalised and lose residence if the court does not accept their evidence of violence against them. State restraining orders are not recognised by the Family Law System as reliable evidence of violence and child protection investigations, when they actually occur, have similarly been dismissed as not having been properly tested at law.

The law states that individuals have a right to protection from violence without any effective mechanisms to recognise evidence of violence or implement protections. Meanwhile Australian homicide data indicates an average of 23 children and 76 women are killed by fathers and partners in the context of relationship breakdown each year in Australia (Mouzos and Rushforth 2003).

Their bodies are evidence that access to safety and protection from violence is still not accessible for too many women and children in Australian families.