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Submission From Dr Elspeth McInnes AM University of South Australia
1. What are the experiences of children & families who are involved in both child protection and family law proceedings? How might these experiences be improved?
In most states of Australia, the law requires police attending domestic violence incidents when children are present, to make a report to state child protection services. Unlike the vast majority of reports received by state agencies, police reports of children’s domestic violence exposure are treated as substantiated reports which do not require a further substantiation process due to the source of the report. The victim of the domestic violence, the mother and primary carer, will be recorded in child protection records as emotionally abusing her child/ren by ‘choosing’ to expose them to violence in the home.
Child protection statistics reported by the Australian Institute of Health and Welfare consistently show that emotional abuse is the most prevalent form of substantiated child abuse. Prior to the link between domestic violence exposure and police reporting, emotional abuse was much less commonly substantiated, as it was previously defined as persistent rejection and verbal humiliation of the child and thus difficult to establish to a satisfactory standard for substantiation. Having come to the attention of the child protection system, mothers living with an abuser are confronted with the child protection demand that they act protectively and leave the abuser, or face loss of care of their children. When they leave the abusive relationship, the child protection case closes as the child is deemed to be safe.
Homicide data clearly indicates that the period of separation and its aftermath are the times of highest risk for mothers and children leaving an abusive partner and father as the control of the perpetrator is threatened.[1] Despite this, the common experiences for mothers who have left an abusive partner are to be required to engage with the perpetrator to make arrangements for the care of children, which in turn informs their access to income support, child support and family tax benefit payments. There is a lack of safety for targets of family violence before, during and after family law proceedings.
The family law system requires victims to either obtain a certificate of exemption from mediation or attend mediation at a Family Relationship Service. Many victims complained that services refused to give them exemptions and insisted on mediation. In research in 2010, only 10.5% of separating parents who reported violence to an FDR service were given an exemption from using the service.[2]
Being required to attempt to reach agreement with a perpetrator of violence is traumatising for victims. Many victims report being pressured into arrangements which they see as unsafe and against the best interests of their children. If they do agree to unsafe arrangements, they can later be attacked in court proceedings by the other party for doing so, as a strategy to undermine the veracity of their claims of violence.
If the matter proceeds to a court hearing, the dominant concern has been to ensure the involvement of the father in the children’s lives, even when there is a clear history of domestic violence and abuse. In his submission to the Senate Legal and Constitutional Affairs Committee in relation to the Family Law Legislation Amendment (Family Violence) Bill 2011, former Family Law Council Chair, Patrick Parkinson is emphatic that such orders are disregarded by the family courts (p.6).
Family law practices have focused scrutiny on mothers who allege child abuse rather than the alleged perpetrators or the victims. The courts have demonstrated a willingness to terminate children’s contact with mothers alleging abuse. This circumstance has acquired a history of practice in which the child’s right to a continuing relationship with both parents is subordinated to imposing the court’s version of reality that there has been no abuse. Common myths of the court include:
· that abusive husbands can be loving fathers
· that child sex offenders can be loving fathers
· that mothers invent abuse for revenge
· that mothers have psychotic delusions of child abuse
· that mothers project their own experiences of abuse onto their children
· that children are coached into false allegations,
Despite the child abuse statistics in Australia the Family Court reflects a view that it is more probable that the mother has psychotic delusions than allegations of child sexual abuse being true.
When children disclose abuse by their father during contact they usually disclose to people they trust at times when they feel safe to speak – typically they confide in their mothers, but also commonly to other trusted carers including grandparents, teachers and child carers. These people can be mandated notifiers in many states and parties make reports to child protection services. All states have a triage process in response to child abuse reports which prioritise cases of risk of immediate and serious harm. When reports are made when the child is in the care of the protective parent (and this is normal because they cannot communicate when the child is with the abuser), the case does not meet the criterion for immediate investigative action. Due to the numbers of reports, many state child protection systems take no further action when there is family court involvement for the following reasons:
· A federal court is dealing with the matter and its findings would trump any state orders so it would duplicate processes for no good reason.
· Claims of child abuse may be seen as a tactic in the family law system and therefore are practically ignored. [3]
The Family Court has no investigative powers and relies on state child protection services to provide evidence of substantiated child abuse. When child protection services do not investigate a report or a Form 4 referral from a family law litigant, the response is that the abuse is not substantiated, because nothing has been done to substantiate it. When children are less than 7 years of age Police will not prosecute child sexual abuse cases without corroborating witness or forensic evidence. This means that incest cases involving young children will not usually result in any effective child safety outcome. Even in cases of criminally prosecuted child sexual abuse, Family Courts have not prevented contact with the perpetrator.
The attached article ‘Madness in Family Law’ compares the court’s responses to cases where mental illness is a primary issue of consideration and where mental illness is invoked as an explanation for mothers’ belief of their children’s experiences of abuse. The assumption that child sexual abuse allegations are false and that they are the products of coaching, directs scrutiny and judgement against the person raising the allegations and raises the risk that the mother will lose residency of the child/ren if she persists with those beliefs. The outcome for mothers and children is that they will have to survive continuing abuse. This situation is the most common background to mothers ‘disappearing’ with their children in despair at their inability to keep their children safe from continuing abuse within the current systems.
The AIFS evaluation of the Family Violence provisions which came into effect in 2012 is, as yet, not available, however continuing calls for help from mothers suggest the family law system, the criminal law system and the child protection system are continuing to support outcomes of continuing incest involving young children.
2. What problems do practitioners and services face in supporting clients who are involved in both child protection and family law proceedings? How might these problems be addressed?
Practitioners and services include police and magistrates courts, child protection services, FDA services and the family court services. The professional mix includes police, lawyers, mediators, social workers, psychologists and psychiatrists. Most will not have any formal education in child development, or the dynamics and impacts of trauma. They will therefore be poorly equipped to appropriately identify and respond to children who are experiencing abuse.
Police often adopt adversarial interrogatory styles to test the capacity and veracity of victims as potential witnesses. Such practices are inimical to eliciting disclosures of abuse from children. There is persistent evidence that state magistrates do not place children on protective violence orders because they believe that is the province of the Family Courts (See link to submission pars 35-38).[4]
Recommendation 1: Police and magistrates require further training to ensure children are included in violence intervention orders.
Recommendation 2: Police need accountable supervision with guidelines and training in interacting with child victim/witnesses.
The recent inquest into Chloe Valentine’s death [5] identified the problematic child protection system practice of closing a case if a child was safe at a given point in time. The child protection services’ practice of withdrawing from cases where there is a family law issue mean that the needed evidence is not available to the family law system. The Family Courts have no powers to compel a state child protection service to investigate a report of abuse. Therefore abuse reports go un-investigated and the allegations are labelled unsubstantiated. The alleger becomes discredited and the likelihood that the child will be placed with the alleged perpetrator increases.
Recommendation 3: State and Federal jurisdictions need to reach an agreement in relation to the provision of child protection services when allegations of child abuse are raised by family law proceedings. Family law proceedings should not in themselves create a context where a child in danger is not offered help.
Recommendation 4: FDR services should be required to grant certificates of exemption from mediation to victims who request such exemptions.
The family law system uses Independent Children’s Lawyers in cases of alleged child abuse. The ICL will arrange a family report from a court -approved family report writer. They will observe the child in company with each parent and interview parents separately. It is deeply concerning that most report writers have no formal knowledge of child development or the impacts and dynamics of family violence. When children disclose abuse to the report writer, the most common formula is to state the disclosure and to go on to say that the statement may be because the abuse happened or because someone induced them to make such statements. This abrogates the expert’s supposed capacity to make an assessment. When mothers reveal they themselves have previously been sexually abused, the most common characterisation is that mothers are projecting their own experience onto their children. Another common speculation to account for the mother’s belief in the child’s experience of abuse is that the mother is psychotic and delusional. Such ‘diagnoses’ amount to speculation by a person who is not trained to make a mental health assessment. Family report writers commonly undertake the minimum process of assessment and avoid seeking information from other sources such as child care, schools, family GPs and hospital records.
Recommendation 5: Family report writers should have formal knowledge of child development and the dynamics of domestic and family violence. They should be required to accept all information relating to the child’s circumstance in making an assessment. Reports containing speculation should be given less weight than those which are grounded in evidence.
Recommendation 6: There should be blind allocations to cases of ICLs and of family report writers to reduce opportunities for collusion and corruption in referrals and outcomes.
3. What are the possible benefits for families of enabling Children's Courts to make parenting orders under Part VII of the Family Law Act? In what circumstances would this power be useful? What would be the likely challenges for practice that might be created by this change?
Ideally the Family court should hand over its jurisdiction in children’s matters to state Children’s courts. The family law system is a dispute resolution service for private citizens managing divorce and separation. It is not a child welfare service but it makes decisions daily with profound impacts on children’s welfare.
4. What are the possible benefits for families of enabling the family courts to make Children's Court orders? In what circumstances would this power be useful? What challenges for practice might be created by this change?
The family court is so singularly ill equipped in protecting children’s safety, its powers in relation to children should not be expanded in any way. Family Court judges have no training in child development or childhood trauma. Neither do Independent Children’s Lawyers, or Family Report writers. Family Report writers are often non-clinical psychologists, or social workers. These professions do not train graduates in child development or child protection. There is a culture in Family Law of protecting child sex offenders and ensuring their victims continue to be available for their use.
5. Are there any legislative or practice changes that would help to minimise the duplication of reports involved when families move between the family courts and Children's Courts?
Ensure that all family records are available in each jurisdiction AND ensure that the Commonwealth cannot make decisions which are incompatible with state child protection provisions. For example, the Family Court orders children into the care of people who would not qualify to work or volunteer with children under state law because of their criminal histories. The Family Court has a history of placing children with paedophiles and men who have used violence, in contradiction of state child safety laws.
6. How could the sharing of information and collaborative relationships between the family courts and child protection agencies be improved?
By Memoranda of Understanding between the parties, and individual accountability for professionals, including judges, for ensuring that all information is available, properly considered and does not expose children to further harm.
[1] Easteal, P., (1993) Killing the Beloved, Canberra, Australian Institute of Criminology.
[2] Bagshaw, D., Brown, T. , Wendt, S., Campbell, A., McInnes, E., Tinning, B., Batagol, B., Sifris, A., Tyson, D., Baker, J., Fernandez Arias, P. 2010 Family Violence and Family Law in Australia: The Experiences and Views of Children and Adults from Families who Separated Post-1995 and Post-2006, Attorney-General’s Department, Canberra, p.98.