Families, policy and the law
- 1. Weaving a common narrative: An introduction to essays on families, policy and the law in Australia
- 2. Trends in family transitions, forms and functioning: Essential issues for policy development and legislation
- 3. Ancestry, identity and meaning: The importance of biological ties in contemporary society
- 4. Past adoption practices: Key messages for service delivery responses and current policies
- 5. The forced adoption apology: Righting wrongs of a dark past
- 6. Current open adoptions: Mothers' perspectives
- 7. Perfecting adoption? Reflections on the rise of commercial offshore surrogacy and family formation in Australia
- 8. Use of surrogacy by Australians: Implications for policy and law reform
- 9. Secrecy, family relationships and the welfare of children born with the assistance of donor sperm: Developments in research, law and practice
- 10. Gay and lesbian parenting: The legislative response
- 11. Step-parenting
- 12. Grandparents as primary carers of their grandchildren: Policy and practice insights from research
- 13. Contemporary issues in child protection intake, referral and family support
- 14. Mandatory reporting laws
- 15. Children in the out-of-home care system
- 16. Justice and the protection of children
- 17. Children, families and the law: A view of the past with an eye to the future
- 18. The ties that bind: Separation, divorce and the indissolubility of parenthood
- 19. Confidentiality and "family counselling" under the Family Law Act 1975
- 20. Has confidentiality in family dispute resolution reached its use-by date?
- 21. Family law: Challenges for responding to family violence in a federal system
- 22. Families with complex needs: Meeting the challenges of separation
- 23. Post-separation parenting arrangements involving minimal time with one parent
- 24. Family violence and financial outcomes after parental separation
- 25. Lionel Murphy and the dignified divorce: Of dreams and data
- 26. Prosecuting child sexual abuse: The role of social science evidence
- 27. The scientists are coming: What are the courts to do with social science research?
- 28. Social science and family law: From fallacies and fads to the facts of the matter
- 29. Complex family issues: Collective awareness, common narratives and coordinated approaches to promoting resilience
- About the authors
16. Justice and the protection of children
By John Faulks
This chapter is about how the Family Court of Australia deals with matters involving children where there are allegations of abuse.
The balancing of the interests of the children and the parents, and frequently of other people associated with the children, is at the centre of what is just in the family law system. This issue is examined here, together with the differences in the roles of judges and experts in child development and abuse, and child psychology and psychiatry, and how each has a part to play in the system of justice. Also of concern is how the voices of children are being heard in the system. Critics of the Family Court have suggested using a tribunal or a court of experts to deal with child abuse cases. This chapter analyses such systems and suggests that even if the current legal system is not ideal (and no one would suggest that it is), it is preferable to the alternatives.
Child abuse cases in the Family Court of Australia
Under the Family Law Act 1975, there are two courts in Australia with jurisdiction to hear parenting disputes in family law matters - the Federal Circuit Court of Australia1 and the Family Court. Only the Family Court and how it deals with child abuse cases will be discussed here.
The Family Court deals with the most complex family law disputes. In relation to child abuse cases, the Family Court hears matters involving serious allegations of sexual abuse of a child warranting transfer to the Magellan case management system (see details below), and serious allegations of physical abuse of a child or serious controlling family violence warranting the attention of a superior court.
From 2007 to 2011, the number of notices of risk of child abuse or family violence (Form 4) filed in the Family Court decreased from 460 to 334.2 However, the percentage of parenting applications that contain a Form 4 has remained about the same over that period (about 5%). This is in part a statistical rather than a substantive change because the work of the Family Court has become more concentrated in the most complex end of the spectrum of disputes and, at the same time, the court is handling a smaller number of applications overall.
Child abuse and evidence in the Family Court
Before the Family Court of Australia can do anything about questions of violence or child abuse it must be made aware that allegations exist.
The Family Law Act 1975 (Cth) has recently been amended (s 69ZQ(1)) so that the Family Court is required to:
(aa) ask each party to the proceedings:
(i) whether the party considers that the child concerned has been, or is at risk of being, subjected to, or exposed to, abuse, neglect or family violence; and
(ii) whether the party considers that he or she, or another party to the proceedings, has been, or is at risk of being, subjected to family violence.
This provision was introduced because it was thought that:
Victims of family violence are often reluctant to share their experiences but are more likely to do so if directly asked. Courts can play an active role in drawing out family violence and abuse concerns, and ensuring that child welfare authorities receive early notice of allegations of child abuse. (Attorney-General's Department, 2010, p. 18)
It does not, however, provide any guidance as to what the Family Court should do in response to a party's answer that he or she does have concerns about child abuse or family violence. The Family Court cannot determine whether there has been child abuse or family violence without details of the allegations being put as evidence before the court, and it depends on a variety of sources to provide that evidence.
Evidence from children
In almost all cases of child sexual abuse, there are only two witnesses - the child and the alleged perpetrator. In criminal cases, children may become witnesses in court, which can become fraught with difficulties. The courts dealing with those matters often provide “safeguards" to try to protect the child witness; for example, erecting curtains between the child and the accused, arranging for the child to give evidence by remote video conferencing and the like.
Rarely will the Family Court countenance the direct involvement of children as witnesses in court, especially on questions of fact like abuse. Instead, children's views are expressed by the family consultants and single experts who interview them, and their best interests are represented by an independent children's lawyer (ICL).
Evidence from the person to whom a child reports abuse
If a child suffers abuse, there may or may not be physical manifestations of it. Physical marks may, in themselves, be consistent with some assault or may be equivocal. There may be DNA evidence, but rarely.
More often than not, the assault comes to light because the child says something about it to someone. Usually, although not universally, that someone is one of the parents of the child. Upon being made aware of any disclosures of child abuse, the parent may either bring proceedings in the Family Court or, if proceedings are already afoot, file a Form 4.
There may be numerous issues with the reporting parent's evidence about the allegations to the Family Court. To hear that their child has been abused is most parents' worst nightmare; they may, understandably, become emotional, worried or anxious and stressed about the safety of their child. This means that frequently the parent to whom the report is made is not ideally prepared or equipped to “record" (in whatever way) what is being said.
At the same time, the child, depending on his or her age, probably does not have the context or maybe even the language to effectively report what took place. In addition, abuse, particularly sexual abuse, by a parent of a child is an extremely difficult thing for the child to disclose and discuss with another parent. This situation is complicated by the sort of response the child receives from the parent. In many cases, especially with young children, the child is dependent on the parent for his or her emotional security, and expressions of alarm, horror, disgust or anger from that parent are likely to confuse the child and the process of reporting.
No parent wants to believe that abuse could have happened. This can lead to the child's being asked what lawyers call leading questions - questions that suggest the answer the questioner wants - and the process of the metamorphosis or transmogrification of the evidence begins. These issues arise not only in relation to a parent's questioning of the child, but also in relation to other interviewers, including police, child protection officers, health professionals and counsellors.
Typically, and reasonably, the parent seeks assistance or reassurance from another or others. Those persons may be the parent's own parent(s), a doctor, the police, a priest or a minister, a counsellor, a psychologist, a child protection agency, or all of these.
The police, for example, will be concerned among other things to assess that there will be evidence that will, or may, be sufficient to establish the guilt of the alleged perpetrator beyond reasonable doubt. On the other hand, child protection agencies are concerned (properly within their remit) with the safety of the child/victim, and determining the truth or otherwise of any allegation is, to some extent, secondary. Accordingly, the evidence of the child is filtered through different persons who may have different objectives for interviewing the child.
This is not to suggest that any of the factors affecting the accuracy or veracity of a child's evidence are necessarily carried out consciously, maliciously or malevolently by the parent or other interviewer. The process of reporting things from one person to another is a very human process that requires consideration in a context of human nature and an appreciation of the way people record and recall things.
Evidence from the alleged abusive parent
The other witness to the alleged incident, the alleged perpetrator, may indeed concede that something like the alleged event occurred. He or she may assert that although an event occurred, it did not occur as was reported by the child, the police, the other parent, the counsellor, child protection agencies - whomever - but was rather an innocent act misconstrued.
For example, a child may report to her mother that the father put his finger in her bottom. The father admits that he put his finger around the child's bottom, but denies that this was sexual abuse. He puts forward the explanation that the child had nappy rash and he was applying soothing cream to the affected genital areas. If the accused father puts this forward as an explanation, he or she can be cross-examined about this evidence and to that extent his evidence can be “tested", subjected to scrutiny and compared with the “evidence" of the child and, importantly, any corroborative evidence.
If the alleged perpetrator denies that anything of the sort suggested happened (and this is frequently the case in matters before the Family Court) what can be done? It is impossible to prove something did not happen, except by demonstrating that the alleged perpetrator was not there at the time, or that the event asserted to have occurred could not have occurred as the child has reported (or as the child is reported to have reported) because there were others present, or other physical circumstances were such that it could not possibly have happened.
This brings us back to the starting point - this is the dilemma. How do society and the parent(s) ensure the safety of the child and the child's physical integrity, while at the same time providing the person who is accused of the abuse with an opportunity to have his or her situation fairly judged.
The short answer is that there is no complete answer to these questions. Because of the difficulties associated with the collection and presentation of evidence referred to above, any person, whether a judge, a tribunal, an expert, a parent, a king, a president or a dictator, will have difficulty in coming to an absolute conclusion about whether the abuse occurred.
Evidence from an expert
In cases of child abuse and to some extent in cases where violence is asserted, it is common for a suitable expert - normally a psychiatrist, psychologist or social worker with expertise in dealing with children - to be appointed to provide assistance to the court.
The Family Court pioneered in Australia the concept of a single expert in court proceedings. This was designed to avoid what were referred to (unkindly) as “hired gun" experts for each of the parties. The single expert is jointly appointed by agreement between the parties.
Under Family Law Rules 2004 r 15.59 (which any expert is obliged to certify that he or she has read and understood), the expert must approach the matter impartially and present his or her opinion to the court together with any other matters that the expert considers to be appropriate.
Once a suitable expert is appointed, he or she is provided with terms of reference. In cases where a child has made allegations of abuse, the following matters are often included:
- Is the language used by the child in reporting the incident consistent with the development of the child at that age?
- Does the child show responses consistent with the alleged acts or not?
- What is the nature of the relationship between each parent and the child? (And, in some cases, what is the relationship between the parents themselves?)
- What is the psychological profile of each parent (including the personality traits and psychological or psychiatric health of the parties that may have influenced either making the allegations or the possible perpetration of the acts asserted)?
- Does the child show signs of being influenced or coached, either consciously or unconsciously, by the reporting parent?
The function of an expert in this regard is not to be a finder of fact nor to make a determination about whether abuse has happened or not. The expert may or may not interview the child about any abuse that is alleged. What the child says may be crucial to the determination of proceedings before the court in due course; however, essentially the role of the expert is to provide a frameworkfor the fact-finder who, in this instance, is the judge. Nevertheless, there may be cases in which the expert does form an opinion about whether abuse has occurred, either negatively or positively, and the expert is always free to express that opinion.3
It is also helpful if the expert makes recommendations about what should happen if abuse has or has not occurred. This will involve drawing on the expert's experience and knowledge about the sort of assistance that might be needed to restore a highly fractured relationship between the parents, between the child and a parent, or possibly between the child and both parents.
There are practical limitations on the use and availability of expert evidence. The first of these is an increasingly difficult issue of cost. It is not uncommon now for a report from a highly qualified expert to cost the parties in the order of $12,000. If the parties are meeting this from their own resources, and many are, this may put a very substantial drain on the parents. It is a factor that cannot be disregarded when considering whether an expert report is required.
In addition, there are, by every measure, too few experts in what is regarded by many as a field that is both fraught with difficulty and, to some extent, unrewarding. Their opinions may be called into question. They may be criticised and cross-examined. It might be thought, understandably, that there are easier ways to earn a living.
In addition, the constraints of cost and the limited number of experts available also affect the time that an expert might have available to provide for the consultation, observation of the parties, and subsequent preparation and writing of the report. An expert in this context may see the parties and the children for quite a limited time and be obliged to make a decision or recommendation or to give an opinion based on that relatively limited exposure.
Expert evidence is not blindly accepted in court, but is subject to what might be regarded as fairly common-sense principles. These principles are set out in Makita (Australia) Pty Ltd v Sprowles  NSWCA 305 (Makita) and Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd  FCAFC 157 (Red Bull).
In Makita, Heydon JA (as his Honour then was) set out the principles to which expert evidence must adhere to be admissible:
- The expert must have appropriate or demonstrated expertise in the particular area referred to by reason of his or her training, study or experience.
- The expert must identify the facts, information and data that he or she is relying upon.
- The expert must identify and evaluate any research that the expert is relying upon.
- The expert must demonstrate the pathway of the expert's reasoning in coming to a particular opinion, including identifying any presumptions.
- The expert's opinion must be wholly or substantially based on his or her expert knowledge.
When interviewing the parties and the children, and viewing affidavit material or subpoenaed material, the expert should be aware that some of the “facts" obtained from those sources may not subsequently be proved as facts in the proceedings before the Family Court. A careful identification of the material that the expert has relied upon in forming his or her opinion enables the expert to adjust that opinion if required during the course of the proceedings, with proper dignity and professionalism. This process is not about catching an expert out. It is about ensuring that the expert's opinion is presented in an open and transparent way and that the application of expertise is where it should be - on facts properly proved in court.
Strict adherents of the Makita principle would argue that a failure to satisfy the criteria set out above should make the evidence of the expert inadmissible. However, in the Family Court - where the issues between the parties and the issues of fact are multi-faceted and many - it would be a rare case in which the expert's opinion is disregarded altogether (that is, inadmissible). Generally, the Family Court adopts the approach of the High Court in Red Bull  FCAFC 157. In that case, the High Court said:
It may well be correct to say that such evidence is not strictly admissible unless it is shown to have all of the qualities discussed by Heydon JA [in Makita]. However many of those qualities involve questions of degree, requiring the exercise of judgment … The various qualities described by Heydon JA are then assessed in the course of determining the weight to be given to the evidence. [emphasis added] 
Thus, in the Family Court, if an expert has failed properly to fulfil the criteria enunciated by Heydon JA in Makita, then his or her opinion may be given less weight in the overall determination by the fact finder rather than being deemed inadmissible.
The judge's particular ability is notto be the expert in the proceedings but rather to be the person to analyse and evaluate the evidence, including the evidence of experts before him or her.
The independent children's lawyer
The child's voice is presented in a number of ways to the Family Court. The child's views are heard by the Family Court's family consultants and/or by the single expert appointed. The child's best interests are frequently represented by the ICL (Family Law Act 1975 s 68L).
The court may appoint an ICL “if it appears to the court that the child's interests in the proceedings ought to be independently represented by a lawyer" (s 68L(2)(a)). This often occurs in cases where there is intractable conflict between the parents, the child is apparently alienated from one or both parents, there are allegations of child abuse that have not been reported to the welfare authorities or the police, or there are issues of significant psychological illness in relation to the mother, the father or another person spending significant time with the child. These are examples of situations where an ICL might be appointed and are by no means an exhaustive list.
The ICL does not represent the child, but rather the child's best interests; is not the child's legal representative; and is not obliged to act on the child's instructions in relation to the proceedings (s 68LA(4)). The ICL's specific duties are given in s 68LA(5).
Evidence from child protection agencies
There is a division between federal and state governments of responsibility for children. The Family Law Act is federal legislation that deals with children from a family law perspective, the states have jurisdiction in and are responsible for legislation relating to child welfare. The Family Law Act provides that state child welfare orders are not affected by the Family Court's jurisdiction (s 69ZK(1)).
While the Family Court does not have any investigative powers, it can make an order “requiring a prescribed State or Territory agency to provide the court with the documents or information" relating to any notifications to the agency of suspected abuse of a child or of suspected family violence affecting the child, any assessments by the agency of investigations into a notification of that kind or the findings or outcomes of those investigations, and any reports commissioned by the agency in the course of investigating a notification (s 69ZW(1)-(2)).
This division of responsibility means that parties involved in cases before the Family Court concerning child abuse may also be involved in child protection proceedings under state or territory child welfare laws. This often involves duplication of information and evidence in each set of proceedings.
The Family Court has developed memorandums of understanding with state child protection agencies to ensure that the children and young people who are the subject of proceedings are protected, to clarify procedures, and to establish protocols to facilitate exchanging information and cooperating with each other.
The Family Court has also developed the Magellan program, a case management system designed to ensure that the cases that are the most resource-intensive, involving the most vulnerable children, are dealt with as effectively and efficiently as possible. The key strengths of the Magellan program are:
- there is early intervention;
- there is a singularity of judicial, registrar and family consultant involvement in the matter to avoid the parties having to tell their story to numerous people repeatedly;
- there is cooperation between all the agencies involved with families, including courts, police, legal aid, private lawyers, statutory child protection departments, hospitals and other counselling agencies; and
- an ICL is appointed.
These things mean that all the relevant evidence can be gathered at an early stage and a determination can be made as to how the matter should proceed and what additional expert evidence may be required to enable the matter to be finalised satisfactorily.
How does the Family Court deal with evidence of child abuse?
The legislative pathway
When determining disputes, a judge, under the oath of office, must apply the law “without fear or favour, affection or ill-will". When hearing parenting disputes in a family law context, the Family Court must apply the law as set out in Part VII of the Family Law Act.
Under the Family Law Act, the Family Court is required to “apply a presumption that it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child" (s 61DA(1)). Parental responsibility means “all the duties, powers, responsibilities and authority which, by law, parents have in relation to children" (s 61B). Therefore, a presumption of equal shared parental responsibility is concerned with the “duties, powers, responsibilities and authority" that a parent has in relation to children and does not impose a presumption that it is in a child's best interests to spend equal time with each parent.
The presumption of equal shared parental responsibility is not applied in all cases. The presumption is rebutted if:
there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a) abuse of the child or another child who, at the time, was a member of the parent's family (or that other person's family); or
(b) family violence. (s 61DA(2))
The presumption may also be rebutted “by evidence that satisfies the court that it would not be in the best interests of the child for the child's parents to have equal shared parental responsibility for the child" (s 61DA(4)).
Some provisions of the Family Law Act relating to family violence and child abuse were recently amended by the Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 (Cth). Of particular relevance to this chapter is the broadening of the definition of abuse to include acts that cause the child to suffer serious psychological harm, and serious neglect of the child.
The definition of family violence was also amended. The new definition of family violence includes conduct such as assault, sexual assault or other sexually abusive behaviour, stalking, repeated derogatory taunts, and intentionally damaging or destroying property. Importantly, the definition of family violence was broadened to include behaviour such as intentionally causing death or injury to an animal, unreasonably denying a family member the financial autonomy that he or she would otherwise have had, unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, preventing the family member from making or keeping connections with his or her family, friends or culture, or unlawfully depriving the family member of his or her liberty (s 4AB(2)).
The broadening of these definitions means that the scope for rebutting the presumption of equal shared parental responsibility in circumstances of child abuse or family violence may also be broader. If, after considering the evidence, the Family Court is satisfied “on the balance of probabilities" that child abuse has occurred, then the presumption of equal shared parental responsibility is rebutted.
The presumption may also be rebutted if the Family Court determines that it is not in the best interests of the child for the presumption to apply. The Family Law Act sets out factors that the Family Court must consider in determining what is in a child's best interests. The primary considerations that must be taken into account are:
(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. (s 60CC(2))
Before the recent family violence amendments, the court was at large in determining how much weight to give to each of these factors. However, the amendments have now changed that position.
The primary considerations set out in s 60CC(2) represent competing interests. On the one hand, the Family Court must consider the benefit to the child of having a meaningful relationship with both parents (s 60CC(2)(a)). On the other hand, the Family Court must take account of the need to protect the child from harm, as set out in s 60CC(2)(b). However, the legislation now makes it clear that the Family Court is to give greater weight to the need to protect the child from harm. Depending on the case, this may well mean that the presumption of equal shared parental responsibility is rebutted and the Family Court is at large in determining the time a child spends with each parent.
The debate leading up to the introduction of the recent family violence amendments highlighted that there were still difficulties in persuading (particularly) women who had been the victims of violence to raise such allegations in cases before the Family Court. This was asserted, in part, because of the (so-called) “friendly parent" provisions. These provisions meant that “the willingness and extent to which one parent has facilitated the child having a relationship with the other parent is taken into account in determining the best interests of the child and, ultimately, orders dealing with parenting arrangements and parental responsibility" (Neilsen, 2011, p. 21). It was thought that this provision dissuaded some from raising allegations that might be argued to show that they were in some way not prepared to support the children's relationship with the other person. Chisholm (2009) stated:
It is appropriate, therefore, to consider whether some amendment would remove this undesirable consequence while retaining the value of the provision in encouraging parents in ordinary circumstances to facilitate the child's relationship with the other parent. (p. 103)
The “friendly parent" provisions have now been repealed.4
It was also said that the previous cost provision, s 117AB, militated against the raising of allegations. Section 117AB provided that if the Family Court is satisfied that a party knowingly made a false allegation or statement in the proceedings, then the Family Court must order that party to pay some or all of the costs of another party to the proceedings.
Three reports, by Chisholm (2009), the Family Law Council (2009) and Kaspiew et al. (2009), argued that there was no evidence that s 117AB had achieved its purpose in relation to false allegations of family violence. And all three reports:
indicate[d] that provisions that direct the court to order a party to pay the costs of another party to the proceedings in certain circumstances have operated as a disincentive to disclosing family violence, with vulnerable parents deciding not to raise legitimate safety concerns for fear they would be subject to a costs order if their claims cannot be substantiated. (Neilsen, 2011, p. 29)
So far as matters that actually came before the court, these concerns were more perception than reality and very few matters appear to have been dealt with in a way that obviously some litigants and their lawyers feared they might be. However, it is impossible to know how many people might have been dissuaded from raising issues with the court as a result of their perceptions. In any event, s 117AB has now been repealed.5
To the extent the “friendly parent provisions" and s 117AB impeded a proper disclosure by parents to the court of all the relevant information relating to best interests of children, including allegations of child abuse, the amendments may contribute to a more complete picture.
The standard of proof
When trying to determine whether or not there has been child abuse, a judge must listen to the evidence impartially, allow the evidence to be tested by cross-examination and weigh the evidence. The judge may only make a finding that a parent abused a child if satisfied on the balance of probabilities that child abuse did occur. The rules of evidence in civil proceedings, and hence in proceedings under the Family Law Act (s 69ZT(1)), require that the proof of something must be in accordance with the balance of probabilities (Evidence Act 1995 (Cth), s 140(1)).
When the phrase “balance of probabilities" is used, most people mentally envisage a set of imaginary scales where evidence is put on either side until some sort of balance or imbalance is achieved and a determination is made. However, the High Court said in Briginshaw v Briginshaw (1938) 60 CLR 337that the court must feel an “actual persuasion" that something has happened:
The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of mere mechanical comparison of probabilities independently of any belief in its reality. [emphasis added] (per Dixon J)
The process is not just mechanical because all the weights in the scales are not of equal value. Legitimately, there may be differences of opinion about the weight to be attributed to any particular piece of evidence in the scales. Overall, there must be in the mind of the determiner, some satisfaction that the event that is alleged to have occurred has in fact occurred. The High Court said in Briginshaw, that the court may have regard to a number of things:
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 inferences. (per Dixon J)
These principles are now set out in the Evidence Act:
Without limiting the matters that the court may take into account in deciding whether it is so satisfied [on the balance of probabilities], it is to take into account:
- the nature of the cause of action or defence; and
- the nature of the subject-matter of the proceeding; and
- the gravity of the matters alleged. (s 140(2))
A decision must not to be made from a position of prejudice that something has or has not occurred, but must rather be a careful, dispassionate, impartial weighing of the relevant information to come to a conclusion.
If a judge is able to find, on the balance of probabilities, that child abuse has occurred, it is often the case that the Family Court would not order the child to spend time with the parent found to have abused the child. However, this is not necessarily always the case. The best interests of the child may in some circumstances mean that the child should spend time or communicate with that parent where the child's safety is ensured. This might be in circumstances where there is no direct communication or, alternatively, where the time the child spends with the parent is supervised.
On the other hand, if a judge determines that the abuse has not happened, it is sometimes nevertheless very difficult to repair a seriously fractured relationship between the child and the parent who is accused. The child is almost certainly likely to be confused and resentful about the processes and possibly about the parent who brought the matter to court as well as the other parent. In an extreme case, even if no abuse is found to have occurred, a judge may nevertheless consider that it is inappropriate for that child to spend time with or live with the parent who had been accused, because to do so would cause serious emotional damage to the child, who may genuinely believe that he or she has been abused.
It is in that context that the advice of the experts is crucial to a proper consideration of what is in the best interests of the children. But there are cases in which the court is unable to come to a conclusion about whether the events happened or not. The reported allegations might be believable. The denial of the allegations might be equally believable. There may be no corroborating circumstances and no physical effects of the alleged abuse that would assist a determination one way or the other. In such circumstances, the court is obliged, in accordance with the High Court's determination in M v M (1988) 16 CLR 69 and B v B (1988) FLC 91-978 to make orders about the children that would not impose an unacceptable risk on the child (lawyers love double negatives).
Here is a conundrum. If the court were satisfied that the events alleged had occurred, then there must necessarily be some risk for the child in spending time with that parent, at least unsupervised. If the court is satisfied that the events alleged had not occurred, is it not reasonable that the parent and the child should have the opportunity to develop a proper relationship?
If the court is unable to decide properly whether the event has happened or has not happened, then how is risk in these circumstances to be determined and what constitutes, in the words of the High Court, an “unacceptable risk"?
In some ways, it is easier to approach the matter indirectly rather than as a direct philosophical or jurisprudential question. If a court has made no determination about whether the alleged abuse has occurred or has not occurred, at one extreme there would be no risk to the child if the child never saw the alleged abuser again. The child would then be preserved from any risk of further abuse but would be subject to difficulties in the development of his or her relationship with that parent (obviously), and possibly with other people in later life. These are matters upon which experts can be asked for an opinion.
At the other end of the scale, if the child were to spend unsupervised, unqualified time with the parent who was alleged to have carried out the abuse and that person had abused the child in the past (even though the court was not able to make a finding that he or she had), that child is at risk for the future.
If the parent only ever sees the child with his or her partner, with someone from his or her family, with a person who is a friend, or a professional supervisor, or the other parent, then the level of risk is diminished.
In the end, in abuse cases it can be seen that it will not be only about whether or not the alleged abuse occurred, but also about a detailed examination of all of the relevant information arising in a controlled environment.
This is not to say that judges are the only people who can make decisions about these sorts of things. However, in circumstances where we are talking about one of the most serious allegations anyone can make about another adult, and about the safety and protection of our children, it is crucial that the processes are the product of what has been found to work over a long and critical period and that we are not experimenting with the lives, or at least the safety, of our children. Judges are qualified and have expertise in making findings of fact in a legal system that was developed to provide a procedurally fair manner in which evidence can be presented and decisions made.
An alternative way?
It has been suggested by some that children's cases, especially those involving allegations of abuse:
should be heard in a special court staffed by experts in child development as well as child abuse [because] Family Court Judges are trained in family law and I suggest it is difficult for them to decide what is in the best interests of the child if they do not fully understand the effects of trauma and abuse and they rely on others who may also be inadequately educated. (Briggs, 2011)6
It has also been suggested that:
Family Court judges and magistrates [are] experts in law but unqualified to rule on abuse cases and should be replaced with a tribunal of experts on child abuse and child development. A legal adviser should be employed to advise the tribunal on issues of law. (Briggs as cited in McGregor, 2012, p. 3)
While these suggestions sound reasonable, it is difficult to know, given these generalised statements, how exactly such a specialist tribunal or court of experts would operate. As the Chief Justice of the Family Court said:
there has not been any discussion in a public or informed way about the efficacy of a tribunal, how it would operate, its strengths or weaknesses, and how it would compare with our existing system. (Bryant, 2009, p. 3)
The suggestions by Briggs are similar in their opinion that judges of the Family Court and the Federal Circuit Court are not suitably qualified to make decisions in child abuse cases because they are experts on family law, but not experts in child development and child abuse. However, there are two different proposals put forward about how child abuse cases should be dealt with. One is a “special court staffed by experts in child development as well as child abuse", the other is a “tribunal of experts on child abuse and child development."
Special court staffed by experts
The suggestion that there should be a special court “staffed by experts" is somewhat ambiguous. Does this mean that:
- the people who sit on the court - the judges - must beexperts in child abuse and child development; or
- judges will be assisted by child abuse and child development experts employed by the court?
At present, s 22(2) of the Family Law Act requires that:
A person shall not be appointed as a Judge unless:
(a) the person is or has been a Judge of another court created by the Parliament or of a court of a State or has been enrolled as a legal practitioner of the High Court or of the Supreme Court of a State or Territory for not less than 5 years; and
(b) by reason of training, experience and personality, the person is a suitable person to deal with matters of family law. (Family Law Act 1975 (Cth), s 22(2))
These requirements under the Act mean that the Judge must be qualified in law and qualified to make decisions by applying the law and by analysing the evidence, as well as being suitable to deal with family law “by reason of training, experience and personality".
If the first proposal applies - that is, judges must be experts in child development and child abuse - does this mean judges should be experts in some (or all) aspects of child development and psychology as well as meeting the requirements of s 22(2)? If so, what qualification is enough? Should judges have an undergraduate degree, a Masters, or perhaps a doctorate in the areas of child development and child abuse? If judges are qualified in both the law and in child development and abuse, should the judges make decisions as judges based on the evidence and applying the law “without fear or favour, affection or ill-will", or as experts in child abuse and child development? The roles are different.
Or perhaps the first proposal means that judges need onlybe experts in child development and child abuse, but not experts in the law. If that is the case, then how can such “judges" be qualified to analyse evidence to determine whether or not child abuse occurred and apply the law accordingly?
If the second proposal applies - that is, that judges will be assisted by child abuse and child development experts employed by the court - this also raises questions. What qualifications should these experts have? In the Family Court, the qualifications of the experts appointed (as suggested by the parties) vary from qualified psychiatrists with expertise in child psychiatry to clinical psychologists with qualifications in counselling child sex offenders and treatment of sexual abuse. Should the experts in this special court be qualified in some other way?
If the experts are to assist the judges, how will this occur? Will the experts make recommendations to the judge based on interviews with the parents and the child? If this is what is envisioned, then it begs the question how this special court “staffed by" experts will differ from the present family law system. As described above, in child abuse cases, the judge of the Family Court makes decisions based on evidence, including expert evidence, but has the skills to analyse the expert's evidence in accordance with the principles in Makita and Red Bull to come to a conclusion.
Perhaps proponents of this special court intend that judges of the court be bound by the recommendations and “findings" of the child abuse and child development experts. A judge's role is to be an impartial decision-maker, to find facts based on the evidence before him or her and to apply the law to those facts. A proposal that a judge must accept recommendations by a panel of experts raises serious questions about justice.
Tribunal of experts
The suggestion here is that a tribunal of experts in child abuse and child development be established to “rule on" child abuse cases. The words “rule on" suggest that the tribunal would act as a judicial officer does in family law and make findings of fact about whether or not child abuse occurred.
In 2003, the Standing Committee on Family and Community Affairs presented a report on the inquiry into child custody arrangements in the event of family separation entitled Every Picture Tells a Story. In that report, the Standing Committee recommended:
the Commonwealth government establish a national, statute based, Families Tribunal with power to decide disputes about shared parenting responsibility … with respect to future parenting arrangements that are in the best interests of the child/ren …
The committee recommends that after establishment of the Families Tribunal, the role for courts in disputes about parenting matters should be limited to:
Cases involving entrenched conflict, family violence, substance abuse and child abuse including sexual abuse which parties will be able to access directly once the issues have been identified. (House of Representatives Standing Committee on Family and Community Affairs, 2003, pp. 104-105)
The Families Tribunal recommended by the Standing Committee on Family and Community Affairs was intended to be a tribunal that made administrative decisions in circumstances where parents agree they should have shared parental responsibility. It is important to note that the committee recommended that cases involving family violence and child abuse remain the jurisdiction of the courts. It is also important to note that the recommendation for a Families Tribunal was not accepted by government.
There are constitutional limitations that may apply to the tribunal of experts proposed. Such a tribunal is not a court vested with federal jurisdiction and so would not have judicial power to act as the Family Court does in family law proceedings, including in child abuse cases. A tribunal of experts to “rule on" child abuse cases as a judge does may not be constitutionally valid.
Even if you did have such a tribunal, there is the question of how the tribunal's decisions will be reviewed. Decisions of the Family Court at first instance may be appealed and the appeal is heard by the Full Court of the Family Court. Thus, if a tribunal such as that suggested were to be established, its decisions may necessarily be subject to review by a higher authority, perhaps the Family Court. In that case, the person reviewing the decision of the tribunal is a judge. In these circumstances, the tribunal may only be adding another layer to the existing system and may only result in adding to the cost and time already expended by parties in the Family Court.
Even if such a tribunal was established, was constitutionally valid and was integrated into the legal system, there are other issues which arise.
Experts do not always agree. (I acknowledge judges do not always agree either.) However, when experts disagree it is the judges' judicial skills that are required to examine the basis for the expert's opinion, to listen to the expert's line of reasoning, to consider the experience and credibility of the expert and at the end to make a decision. It is not known how a tribunal of experts would make a decision if some of the experts disagree about whether child abuse happened, how the child's relationship with the alleged abusive parent should be restored and what time the child should spend with each parent.
It is also a matter of some interest to know where we would find these particular experts. It may be possible to have some form of government-accredited panel, but there may be disagreement about the appropriate criteria for expertise in this area. In any event, who would be appropriate to accredit the experts and what qualifications should such accrediting people have?
The issue of costs in relation to experts in family law proceedings is also an issue in relation to a tribunal of experts. Experts who are qualified psychiatrists or psychologists with expertise in child psychiatry or psychology may charge up to $12,000 for one report in Family Court proceedings. If there were a tribunal of such qualified experts, the cost of employing such experts may be very high and it is difficult to know where such funding of experts would come from. If the parties are the ones to bear the cost of the experts in a tribunal, it may be that the cost will be equal to if not more than the cost of paying one expert to complete a report in family law proceedings.
In the end, it is about justice. If all society wanted was a rubber stamp on a pre-determined result, the existing system is unnecessary. If, however, we wish to acknowledge children's best interests as the paramount consideration, it is still necessary to “do right to all manner of people according to law without fear or favour, affection or ill-will".7 The system is far from perfect. There must be a continual striving for improvement. But let us have a better system up and running before we abandon a process that has justice as its goal.
- Attorney-General's Department (2010). Exposure draft Family Law Amendment (Family Violence) Bill 2010: Consultation paper. Canberra: AGD. Retrieved from <www.ag.gov.au/Consultations/Pages/FamilyLawAmendmentFamilyViolenceBill2010ExposureDraft.aspx>.
- Bryant, D. (2009, 19-20 February). Speech by The Hon. Diana Bryant QC, Chief Justice of the Family Court of Australia. Paper presented at the Inaugural Family Law System Conference, Old Parliament House.
- Chisholm, R. (2009). Family courts violence review: A report. Canberra: Attorney-General's Department.
- Family Law Council. (2009). Improving responses to family violence in the family law system: An advice on the intersection of family violence and family law issues. Canberra: Family Law Council.
- House of Representatives Standing Committee on Family and Community Affairs. (2003). Every picture tells a story: Report on the Inquiry into Child Custody Arrangements in the Event of Family Separation. Canberra: Australian Parliament.
- Kaspiew, R., Gray, M., Weston, R., Moloney, L., Hand, K., Qu, L., & the Family Law Evaluation Team. (2009). Evaluation of the 2006 family law reforms. Melbourne: Australian Institute of Family Studies.
- McGregor, K. (2012, 6 February). Our courts are failing abused children. The Advertiser [Adelaide], 3.
- Neilsen, M. A. (2011, 25 May). Family Law Legislation Amendment (Family Violence and Other Measures) Bill 2011 (Bills Digest No. 126, 2010-11). Canberra: Parliament of Australia.
- Odgers, S. (2012). Uniform evidence law (10th ed.). Pyrmont, NSW: Thomson Reuters (Professional) Australia.
Acknowledgements: I acknowledge the invaluable assistance of Ms Carrie Gan (B Comm, LLB) who is responsible for many of the good things in this paper and none of its faults.
1 Formerly the Federal Magistrates Court of Australia.
2 Records of the Family Court of Australia.
3 Evidence Act 1995 (Cth), s 80. Also see Odgers (2012), who said “The term 'fact in issue' should be understood in the sense in which it is used in s 55 - a matter in issue in the trial as determined by substantive law and pleadings" (p. 385).
4 Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 (Cth), Schedule 1, Part 1, Items 18 and 20.
5 Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 (Cth), Schedule 1, Part 1, Item 43.
6 “My view is that all legal matters involving children should be heard in a special court staffed by experts in child development as well as child abuse. Family Court Judges are trained in Family Law and I suggest it is difficult for them to decide what is in the best interests of the child if they do not fully understand the effects of trauma and abuse and they rely on others who may also be inadequately educated" (paper delivered by Professor Freda Briggs in May 2011 regarding the Family Court and child protection issues).
7 Oath of office.