Flawed Family Law: Failing Sexually Abused Children

1. 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

2. 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

3. 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.

4. 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).

5. 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.

6. 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.

7. 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’.

8. 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).

9. 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:

10. Morcombe & Preston FamCA 165 (5 March 2010) http://www.austlii.edu.au/au/cases/cth/FamCA/2010/165.html • 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.

11. Scrutiny of Mother • 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.”

12. 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.

13. Scrutiny of Father • 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.

14. Ganley & GanleyFamCA 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.”

15. 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’.

16. 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.)

17. Enmeshed & Frustrating Mother • 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.

18. 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]

19. 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."

20. 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.

21. 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.

22. 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.

23. 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.

24. 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.

25. 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.

26. No Happy Endings The failure of the family law system to respond effectively to child abuse is a long-standing 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.

27. References • 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.