Flawed Family Law: Failing
Sexually Abused Children
Dr Elspeth McInnes AM, Em. Prof. Freda
Briggs AO University of South Australia
& Charles Pragnell
AIFS 2012 July
Overview
• Draws on persistent complaints by parents
who have been unable to protect their
children from CSA using the family law system
• Identifies systemic issues in responding to CSA
• Legal difficulties in dealing with CSA
• Patterns of legal responses in CSA cases
sampled from Austlii.edu.au
• Myths about CSA underpinning poor
responses
A Failing System
• The Australian Family Law system lacks the
infrastructure and jurisdiction to directly investigate
and respond to child abuse cases(FLC 2002).
• State child protection services are overloaded & often
do not investigate referrals from the Family Courts
(Brown et al. 2001).
• Adelaide Advertiser 17/2/2007 reported that only two
of 30 FCA referrals were investigated by child
protection services due to resource pressures.
• Adelaide Advertiser 6/7/2011 Families SA had refused
more than 40 court requests to urgently intervene in
child protection cases.
Australia’s family law system
 Private adversarial system
 2 courts – Federal Magistrates Court (FMC) – default
stream: and Family Court of Australia (FCA) – complex
cases: Magellan = serious abuse cases:
 Abuse claims are present in cases across the system.
 Children’s Matters 2 primary principles: 1.right to
meaningful relationship with both parents and 2. the
right to be protected from abuse.
 June 7 2012 amendments clarify priority of safety (Not
examined here).
Child Sexual Abuse & Legal Systems
• Australian population study - Non-penetrative CSA was
twice as common among women (33.6%) than men
(15.9%). Approximately 12% of women ( 956,600) and
4% of men (337,400) reported unwanted penetrative
experiences before age 15 (Dunne et al 2003; ABS
2006).
• In both criminal and civil law child sexual abuse is
difficult to ‘prove’ because child victims’ testimony is
legally problematized (Cossins 2010).
• ‘Briginshaw’ test of evidence (highest end of balance of
probabilities) is routinely applied to CSA allegations in
the family law system.
High Court decision in Briginshaw v Briginshaw
(1938) 60 CLR 336, where Justice Dixon said:
 “The seriousness of an allegation made, the inherent unlikelihood of an
occurrence of a given description, or the gravity of the consequences flowing
from a particular finding are considerations which must affect the answer to
the question whether the issue has been proved to the reasonable
satisfaction of the tribunal. In such matters ‘reasonable satisfaction’ should
not be produced by inexact proofs, indefinite testimony, or indirect
references” (p. 332).
 The ‘Briginshaw standard’ has been incorporated into the Evidence Act 1995
(Cth). It provides that in determining whether the evidence satisfies the
balance of probabilities test, that “the gravity of the matters alleged” be
taken into consideration (section 142) and that evidence not be admitted “if
its probative value is substantially outweighed by the danger that the
evidence might: (a) be unfairly prejudicial to a party; or (b) be misleading or
confusing; or (c) cause or result in undue waste of time” (section 135). In
other words, the evidence needs to have higher probative value if the
consequences to a party of a particular finding are grave.
Most CSA Allegations Are Rejected
Evidence difficulties =
• lack of state child protection investigation of family law referrals;
• judicial rejection of child protection substantiations on the basis
that the accused has no access to ‘natural justice’ in such
investigations;
• age & language of child;
• lack of forensic expertise in identifying CSA indicators;
• secrecy of offending;
• denials by alleged perpetrator;
• Briginshaw & rules of evidence;
• cultural beliefs in the family law system that mothers routinely
falsely allege abuse for ‘advantage’.
M and M (1988) 166 CLR 69.
 “In M and M, the High Court held that when dealing with
allegations (of abuse) the FCA is not required to make a
finding of whether particular individuals have inflicted abuse
or neglect- role of the criminal courts.
 FCA to determine whether orders for residence or for contact
create an ‘unacceptable risk’ for the child. It is required to
assess the facts before it can consider any risk to the child
when making orders for residence and contact, and these
risks must be balanced against the desirability of a child
maintaining contact with both parents. Throughout this
process, the Court depends on appropriate and accurate
reports, to assist in it determining what is in the best
interests of the child” (Harrison 2007 p. 22).
Family Law Pattern in CSA Cases
 Allegations are unlikely to be investigated by
state child protection services or thus
‘substantiated’ – unless the alleged perpetrator
makes admissions or is criminally convicted of
them (Brown et al 2001).
 Allegations will commonly be explained as a
product of maternal coaching driven by her
‘delusion’, ‘enmeshment’ or ‘vengeance’.
 Mothers who are seen to refuse to accept
judicial decisions face loss of residence and
contact with their children. Two recent examples:
Morcombe & Preston FamCA 165 (5 March 2010)
http://www.austlii.edu.au/au/cases/cth/FamCA/2010/165.html
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Two children, 9 and 10, and a child of the mother’s previous relationship have alleged the
father has sexually abused them . The mother has alleged she has seen the father in bed with
the children. She has also alleged the father & his mother have assaulted her. The father has
denied this. Both parents admitted using speed.
Child protection reports detailed the children’s allegations and the younger child’s anal
scarring and then concluded in identical terms:
Par 119 Possible explanations for A’s disclosures of genital touching by her father could
include that she was describing actual events that she had witnesses and/or experienced, or
that she was influenced directly or inadvertently to provide the information. ..A’s initial and
subsequent disclosures may have been the result of inadvertent suggestive questioning by her
mother and sister.
Possible explanations for [C’s] disclosures of genital touching by his father could include that
he was describing actual events that he had witnessed and/or experienced, or that he was
influenced directly or inadvertently to provide the information.
The CPS report concludes that it cannot confirm sexual abuse. Note the formulaic wording of
each report and the absence of explanation for the younger child’s anal injury.
Scrutiny of Mother
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CPS Report: Numerous concerns regarding [the mother’s] parenting ability were raised during the
current assessment. Child protection notification indicated that [the mother] suffered from chronic
fatigue, numerous mental health diagnoses, including Schizophrenia and Bipolar disorder, and also
referred to her drug use in 2005 and 2007.
Families SA has not implemented the parenting assessment recommended by CPS as some of the
concerns regarding the mother’s mental health were apparent and concerning when workers had
contact with the family. There has not been any Families SA assessment of the father’s parenting
capacity as he had not been involved in the day to day care of the children. There is no
information that Families SA are aware of that would preclude him from caring for the children.”
Par 221 The mother confirmed that she had been diagnosed in the past with depression and had
suffered from panic attacks. Par 223 The mother admitted being hospitalised briefly in August
2003 as a result of anxiety problems. She also confirmed the evidence that she had taken an
overdose of Valium in March 2004.
Par 314 Mother’s expert - Dr B is a consultant psychiatrist. The mother] does not have a severe
psychiatric disorder. In the interviews she didn’t present as severely affected, and, you know, I had
to struggle to make a determination whether I felt this was just totally normal behaviour and ideas
or whether there was a psychiatric illness present. I was swayed by the information I was provided
that it was having an effect on the children, I was swayed by information received that there had
been a number of CPS investigations that had not substantiated the allegations, and consequently
I came to the viewpoint that there was a delusional disorder present, but wasn’t able to come to a
strong viewpoint about the impact of that on the children.”
Judgement of Mother
 Par 547 Currently the mother’s promotion of the allegations that
the children have been sexually and physically abused by the father
and her opposition to any role played by the paternal grandmother,
establishes that the mother’s psychological and emotional influence
upon the children would be negative if she were to spend time with
the children. ...
 The Court is satisfied that the possibility of the mother suffering
from a delusional disorder and her strong negative attitude
towards the father, her promotion in the children of a belief that
they have been sexually and physically abused by the father and
that she has been physically abused by the paternal grandmother,
strongly support the conclusion that there would be an
unacceptable risk to the emotional and psychological welfare of the
children if they were to come under her influence or be in her
company at their current vulnerable stage of development and
ages.
Scrutiny of Father
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Par 145 The father admitted in his evidence that there had been “plenty of
heated arguments” between himself and the mother during their relationship,
but denied threatening or assaulting her.
Par 163: asked why he would require any time the mother spent with the children
to be supervised, the father said that he was concerned that the children were
being “told stuff”. He referred to delusional thoughts of the mother being passed
on to the children
Par 551 ‘The children have recently expressed views to the supervisors of contact
at the Children’s Contact Centre which indicate that they did not want to spend
time with the father, even under supervision. These views would therefore
suggest that the children did not want to live with the father. However, the views
expressed by the children need to be seen in the context of the strong opposition
by the mother to the father spending time with the children and the belief that she
promotes that they have been sexually and physically abused by the father.’
Outcome: the father’s 2 children are placed in the sole care of their father with no
contact with the mother except as recommended by the children’s therapist and
with father’s agreement.
Ganley & Ganley FamCA 641(22 July 2009)
http://www.austlii.edu.au/au/cases/cth/FamCA/2009/641.html
• The 5 year old child has made disclosures of sexual & physical abuse by
the paternal grandfather and father, who have denied this.
• Par 76 Thus, the possibility arises that the mother, by fear relating to her
own sexual abuse as a child by a relative has acted upon some innocent
remark by the child concerning “the grandfather, a toilet and a smell” ...
and then possibly questioned the child as to whether he saw the
grandfather’s penis or semen, or whether there was anything “wet or
warm” or interference with his anus by fingers being placed in it, so that,
as put by Mr D (ICL), the matter then “spiralled out of control” with the
child then, on cue, by deliberate or unwitting prompting or coaching
subsequently has made rote disclosures whenever asked, but at times in
nonsensical terms, such as the child disclosing that he had been “flushed
down the toilet” or that the paternal grandfather’s penis had been “put in
a cup.”
Judicial View of Father
 Par 101 ‘The father, in all outward respects, impresses
as a very decent young man with whom there would
be benefit for the child in having a meaningful
relationship.
 Par 102 ‘However, Ms M (family report writer)
observed that the father appears to have “another
side” as the perpetrator of family violence disguised as
or minimised by him as being “playful”. There is
reference, in particular, to evidence that before the
separation the father sat on the mother and “farted”
on her. The father described the incident as innocent
but the mother as violent. In fact, the mother suffered
two broken ribs’.
Child’s relationship to father
 Par 103 ‘The circumstances of the child’s estranged
relationship with the father since the parties’
separation are difficult. However Mr H (family
consultant) said..that in his observation the child did
not appear to be fearful of the father and in his
assessment did not appear to be traumatised
emotionally by seeing the father.
 A little later the judge notes ‘ The child repeatedly and
consistently in recent times has said that he does not
want to see the father nor have anything to do with
him. However, the nature of the issues in the case, its
history, and the child’s age has effect that little weight
should be given to his views (Par 111-112.)
Enmeshed & Frustrating Mother
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Par 104 ‘The child presently has a close relationship with the mother. However,
family report writer, Ms M in several parts of her reports described it
as enmeshed .. Ms M described the mother as over-protective of the child and
that she smothers him.
Par 109 ‘It would appear on the evidence that before the separation the father
subjected the child to disciplinary measures which, if their description be accurate,
amount to child abuse. However, I accept the father’s evidence that his life with
the mother was difficult and frustrating...On the present state of the evidence
there is no reason to think however that the father’s inappropriate discipline of
the child would be likely to recur or that otherwise he would physically abuse him.
Par 117 ‘I have no confidence in her ability to be persuaded by my findings that
her beliefs are wrong and that in consequence she would value and promote a
relationship between the child and the father, particularly because of her
enmeshed relationship with the child.
The outcome is that the parents have equal shared parental responsibility. The 5
year old child is ordered to live with the father and have no contact with the
mother for a month, after which she can spend time with the child for four nights
every fortnight and half the school holidays.
Managing Child Contact with Known
Child Sex Offenders
• Australia’s Family Law has supported children’s relationships with
admitted/convicted child sex offender parents. See for example
http://www.austlii.edu.au/au/cases/cth/FamCA/2007/795.html
 Murphy & Murphy [2007] FamCA 795 Justice Carmody
 84. The consequences of denying contact between the abusive
parent, usually the father, and the child may well be as serious as
the risk of harm from abuse. 85. Thus, in D’Agostino[46] a father
who was convicted of sexually interfering with his 11 year old
daughter was not denied contact either with her or her two
younger sisters but was allowed contact on condition that all three
children were together at the same time and another adult was
also present.[47]
15 March 2012 Herald Sun
THE Family Court has ordered an 11-year-old girl to spend time with her sex offender father
even though she is at risk of being abused by him. The father's victims includes a person with
an intellectual disability and several members of his own family.
…Justice Anne Rees ordered the father be allowed to spend alternate Sundays, Father's Day and
Christmas Day with his youngest daughter, dubbed "K", as long as the visits are supervised by his
partner and his mother. "I am satisfied that there is a risk that K will be sexually abused by her
father if she is in his care," Justice Rees said.
…Justice Rees rejected the father's application for equal shared parenting of K, ordering limited
supervised contact. "Having determined that there is a risk to K in the care of her father, I must
determine whether that risk is unacceptable," the judge said. "That involves the exercise of
balancing the benefits to K of having an ongoing loving relationship with her father and the
paternal family against the risk that she will be sexually abused by her father.
"The balance is fine but it is the comfortable certainty of vigilant supervision by (his current
partner) and the paternal grandmother which persuades me that the balance tips in favour of
supervised time for K with her father."
Robins & Ruddock [2010] FamCA 35 (22 January 2010);
http://www.austlii.edu.au/au/cases/cth/FamCA/2010/35.html
• The father had been convicted of possessing child pornography and
placed on the child sex offender register. He had been restrained
previously from sharing his bed with his own daughters (10 & 8)
and had been seen standing over a step- child with her pants down
and with an erection, masturbating .
• The family report writer, Dr R -neither child should have
unsupervised overnight time with the father, although there is no
reason why they ought not to have unsupervised day time with the
father. When questioned about this Dr R said:• that the children are at an age and maturity where when awake,
dressed and together it would be unlikely that the father would act
inappropriately towards them. However, at night when they were
perhaps asleep or partly asleep and not aware of each other’s
whereabouts they would be less secure.
Child’s views
• The child protection worker, Ms SA provided the following
statement:
• A indicated that she did not want to spend time alone with
her father. We asked her why she didn’t and she said
“because of what I told the police”. “I do not like it. It makes
me feel weird”. “I don’t want to be alone with him”. She
kept repeating “please don’t tell Dad”.
• PAR 89:Before the interview Ms SA had concerns about the
mother’s bona fides with regard to A’s alleged disclosure.
After the interview Ms SA formed a professional view that
something had happened to the child. It was Ms SA’s
professional opinion was that there were no signs that A
had been coached.
Contact Orders
•
Par 117I am satisfied that there needs to be supervision at the home when the
children sleep over. I am satisfied that there needs to be a door on the
children’s bedroom which is capable of being shut at the request of the
children. They should at least, until the youngest is 14, share the same room so
that they can have the mutual support of one another. Such a finding
predicates against equal time and against equal shared parental responsibility.
• Par 168: Because of the close bond between the children and their father I
have reached the conclusion that the best interest of A and M are most
likely to be served by an order that the father spend time with the children,
but that any overnight time be supervised by another adult. This will
address A’s nervousness in relation to spending unsupervised overnight
time with the father.
• Par 175 I propose to order the children spend each alternate weekend with
the father from after school Friday until the commencement of school
Monday (or Tuesday if Monday is a pupil free day). I will provide that the
children spend half their school holidays with the father. However, there
will need to be someone supervising the father when the time is to be
overnight. That can be an adult friend, it just needs someone else in the
home of whom the children have some knowledge of and regard to. The
mother should know who that person is.
CSA Myths Underpinning Judgements
• CSA Myth 1: The consequences of child sex abuse ‘may well be as serious’
as disruption of a relationship with a parent.
• CSA Reality 1: There is a strong body of research evidence of severe
deleterious effects of parental child sex abuse including developmental
PTSD (Zlotnick et al 1996) & suicide (Beckinsale et al 1999) which is not
matched in evidence regarding loss of a relationship with a parent (Amato
1993).
• CSA Myth 2: Children are safe from child sex offenders if there is more
than one child present.
• CSA Reality 2: Offenders can exploit the presence of other children to
obtain co-operation in offending activities eg. by ‘normalizing’ the
behaviour; inducing children to abuse each other for the gratification of
the offender or as a means of enforcing silence by manipulating children
to believe that they are ‘as guilty as’ the offender.
More CSA Myths
•
CSA Myth 3: The presence of a supervising adult prevents the risk of sex abuse.
•
CSA Reality 3: Many victims report being abused in the presence of others.
Queensland teacher Bill D’Arcy fondled children in class behind his desk. Offenders
reported that sitting with a child watching television was a common offending
opportunity. Swimming and car-rides also offered opportunities to have
concealed physical contact with the child (Smallbone & Wortley 2001).
•
CSA Myth 4: A child sex target can have a loving positive relationship with the
perpetrator parent.
•
CSA Reality 4: ‘Grooming’ is a key element of offending behaviour which enables
the offender to (1) gain access to the target (2) induce the target to accept and
keep silent about the offending behaviour(Smallbone & Wortley 2001). This
commonly includes lavishing positive attention on the child whilst gradually
pressing sexual boundaries. Victims report being made to feel ‘special’ by their
perpetrators (Briggs 1995). Perpetrator parents exploit the child’s need for
parental love and betray the parental relationship for personal gratification.
More CSA Myths
•
CSA Myth 5: Children can be easily induced to make false allegations of sexual
abuse.
•
CSA Reality 5: Children’s disclosures of sexual abuse can take many forms including
sexualised behaviour, injuries and infections , drawings, verbal statements –
usually to a person they perceive as safe and trustworthy, such as non-offending
primary caregivers (typically mothers). Lack of knowledge about sex, fears of the
perpetrator, of not being believed, of consequences threatened by the
perpetrator, shame and guilt are common reasons for silence or retraction of
allegations. Research consistently points to over 90% of allegations having a
factual basis (Brown et al 2001).
•
CSA Myth 6: Children can benefit from a relationship with a parent who is sexually
abusing them.
•
CSA Reality 6: The parental relationship is an additional risk factor in assessing the
severity of child sex abuse sequeale for victims due to (1) the betrayal &
exploitation of the child’s trust (2) repeat opportunities for offending & lack of
safety over time (3) the dominant presence and role of a parent in a child’s life (4)
the loss or disruption of the child’s relationship with the non-offending parent
either as part of the grooming process of through court orders.
No Happy Endings
The failure of the family law system to respond effectively to child abuse is a longstanding problem created by multiple factors including:
• The state/federal jurisdictional divide (Family Law Council 2002;Fehlberg & Kelly
2000)
• Lack of forensic expertise in child sex abuse & understanding of CSA offender
behaviour & victim impacts available to family law decision makers.
• The adversarial legal systems & problems for vulnerable witnesses (Cossins 2010)
• The use of the ‘Briginshaw’ principle in CSA cases.
• Culturally accepted false beliefs about CSA in the family law system (Brown et al
2000).
• The lack of clarity of priority in the 2 primary principles of ‘right to a meaningful
relationship’ and ‘right to safety’.
The new family violence amendments attempt to address this last point but significant
barriers to positive change will remain unless the problem is acknowledged and
systemically addressed.
References
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Australian Bureau of Statistics, 2006, Mental Health in Australia, A Snapshot, 2004-2005, Cat. No. 4824.0.55.001,
http://www.abs.gov.au/ausstats/abs@.nsf/mf/4824.0.55.001
Amato, P., (1993) ‘Contact with Non-custodial Fathers and Children’s Wellbeing’, Family Matters, 36: 32-34.
Beckinsale, P., Martin, G., and Clark, S., (1999) ‘Sexual abuse and suicidal issues in Australian young people: An
interim report’, Australian Family Physician, 28 (12): 1298-1303.
Briggs, F., (1995) From Victim to Offender, Sydney, Allen and Unwin.
Brown, T., Frederico, M., Hewitt, L. and Sheehan, R., 2001 ‘The Child Abuse and Divorce Myth’ Child Abuse Review,
10: 113-124.
Cossins, A.2010 Alternative Models for Prosecuting Child Sex Offences in Australia, Report of the National Child
Sexual Abuse Reform Committee, Sydney, UNSW Law Faculty.
Dunne, MP, Purdie, DM, Cook, MD, Boyle, FM, Najman, JM 2003, ‘Is child sexual abuse declining? Evidence from a
population-based survey of men and women in Australia’, Child Abuse and Neglect, vol, 27no. 2, pp.141-152.
Family Law Council (2002) Family Law and Child Protection, Canberra, AGPS.
Fehlberg, B., and Kelly, F., (2000) Jurisdictional Overlaps: Division of the Children’s Court of Victoria and the Family
Court of Australia, Australian Journal of Family Law, 14 (3): 211-233.
Harrison, M. (2007). Finding a better way: A bold departure from the traditional common law approach to the
conduct of legal proceedings.Canberra: Family Court of Australia.
Smallbone, S. and Wortley, R., (2001) Child Sexual Abuse: Offender Characteristics and Modus Operandi, Trends
and Issues in Crime and Criminal Justice Paper No. 193, Canberra, Australian Institute of Criminology.
Zlotnick, C., Zakriski, A., Shea, M., Costello, E., Begin, A., Pearlstein, T., and Simpson, E., 1996 ‘The Long-Term
Sequelae of Sexual Abuse: Support for a Complex Post-traumatic Stress Disorder’, Journal of Traumatic Stress, 9
(2):195-213.
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Concerning Cases: Shared Parenting Trumps Child Safety