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The Family Court has a serious attitude problem when it comes to domestic violence

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Category: Battered Mothers

Created: Wednesday, 04 May 2016 22:58

Written by Alecomm2

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Stepping into the Family Court can be like entering a parallel universe, where time has stood still for the past 15 years, writes Jess Hill. Photo: Stocksy

• Domestic violence a factor in majority of family law legal aid cases
• Family court ruling: violent father given sole custody of child

Until recently, victims of domestic violence almost expected to be blamed or ignored by police and the courts. Thankfully, that's beginning to change, in line with a seismic shift in community attitudes. They may be far from perfect, but police and local courts now do a much better job at protecting victims. 

There is, however, one judicial institution that hasn't changed with the times.

Stepping into the Family Court can be like entering a parallel universe, where time has stood still for the past 15 years. Here, it's all too common to hear domestic violence being dismissed as 'ancient history', to see the impact of that violence on children minimised or ignored, and for custody to be stripped from one parent for attempting to protect their children from their abusive other parent. 

This is not a matter of opinion. It's been documented in report after report for the past 16 years, since the Keating government issued the Family Court with a new guiding principle: that children had a right to regular contact with both parents. Subsequent reforms have failed to undo the damage done.

When I first started investigating the Family Court last year, I found it hard to believe the stories I was hearing. Women who cited their children's abuse allegations in Family Court hearings, and who sought limited or no contact with the alleged abuser, said the court was taking the children out of their care and handing them to their alleged abuser, limiting them to either no contact whatsoever, or a few hours a week in paid supervision centres. These orders were not made because they were found to be bad parents, they said, but because   they were unwilling to support their child's relationship with the other parent. 

Everyone feels hard done by in the Family Court, so I took each of these stories with a grain of salt. Until I saw their court files. I have personally reviewed hundreds of pages of evidence and judgments in around 15 Family Court cases, and the conclusion is unavoidable. The Family Court does not know how to adequately deal with domestic violence.

Twenty years ago, it was "extremely rare" for a mother to lose care of her children for alleging child abuse, Professor Patrick Parkinson, former chair of the Family Law Council (an advisory body to the federal attorney-general), told The Monthly last year. Today, he says, it's so common that lawyers now tell their clients, "If you make these allegations, you risk losing the care of your child." That leaves the child in the sole care of the alleged abuser - someone the child may themselves have made allegations against.

The Family Law Act requires judges to make custody decisions in the child's best interests. But, as Griffith University criminologist Samantha Jeffries notes, judges are overwhelmingly determining a child's best interests in a way that is "weighted more toward the parental rights of abusers than the safety of children."

Jeffries notes also domestic violence is "ignored or minimised, re-constructed as inconsequential" or passed off as mutual violence, where both parents are equally at fault. She also points to gendered narratives in Family Court judgments, which "call into question women's credibility but not men's (e.g., women manipulate and lie, men are to be taken at face value)... Maintaining abusive fathers' relationships with their children are the primary consideration in determinations of a child's best interests," writes Jeffries. "Achieving this often in the face of overwhelming evidence to the contrary, the judiciary... need to make coercively controlling abuse and intimidation 'disappear'."

Family Court judges often have little to no expertise in the dynamics of domestic violence or child abuse. They rely on the evidence put before them to make their decisions, and few pieces of evidence are as crucial - or as influential - as the family report.

In many cases, a family report is written by an employee of the court, often a social worker or a counsellor. It may assess the dynamics of the family, the veracity of the abuse allegations, and the likely impact of certain custody arrangements on the children.

In more complex cases, however, the family report is contracted out to a 'single expert', often a psychologist or psychiatrist in private practice. This single expert will interview the parents and children, typically spending as little as one hour with each, and may interview other family members or friends, and review other written evidence. Their reports are not cheap - they can cost tens of thousands, depending on the expert.

Single experts, particularly psychiatrists, are "the gods of the Family Court", says Professor Patrick Parkinson. Their evidence, he adds, is often considered more reliable than that of child protection workers, and even police. In fact, their influence is considered so great, Legal Aid will often withdraw free representation for clients who receive a negative report.

Chris Rikard-Bell, a psychiatrist in private practice in Sydney, is one of the Family Court's most prolific single experts. He says he's written roughly 2,000 reports in just 25 years, which amounts to 80 reports per year - an impressive feat, given they are often 30-40 pages long.

When I interviewed him last year for Radio National's Background Briefing, he was candid about his attitude towards child abuse allegations in the Family Court. "I think in the Family Court, there are a lot of false allegations," he said. "In my experience, about 90 per cent are unfounded."

When I put this figure to another single expert report writer, Carolyn Quadrio, she shook her head, and said the research showed exactly the opposite. "Something like 80–90 per cent (of allegations) have a reasonable foundation to them when they're investigated," she said. 


When I asked Rikard-Bell to explain how he made his assessments, he described his preference for interviewing the child and the alleged abuser together, and asking them to talk about the allegations. None of this is recorded - no single expert interviews are. The only record of what occurs in these interviews is what ends up in the single expert's report. The judge has no way to independently verify what transpired in these interviews.

And yet, there are no minimum standards for a single expert. They are not required to have clinical expertise or training in domestic violence, child abuse, or forensic interviewing. Matthew Myers, now a judge on the Federal Circuit Court (where the vast majority of family law cases are heard), has been explicit about the deficiency of report writers: "Those delivering 'expert evidence' in Australian Family and Federal Magistrates courts," he wrote in a recent paper, "rarely have the training, knowledge and skills needed to do this type of work adequately."

They are also largely unaccountable. Their reports are highly confidential and, as expert witnesses, they are protected by anonymity, so I can't link them to what's written in their reports.

This breathtaking lack of oversight has led us to where we are now - repeated calls for urgent review and reform of Family Court practices.

The Family Court's Chief Justice, Diana Bryant, insists the court has a resourcing problem, and that is true. She has called on the government to focus as much on preventing domestic violence as it does on anti-terrorism.

But in blaming a lack of resources, the Chief Justice is ignoring a far uglier truth: the Family Court has a serious - and dangerous - attitude problem.

Jess Hill is a freelance investigative journalist currently writing a book on domestic violence in Australia. 

If you or someone you know is impacted by sexual assault, domestic or family violence, call 1800RESPECT on 1800 737 732 or visit 1800RESPECT.org.au