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The Family Court’s dilemma in cases of child sexual abuse

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Category: Court Ordered Abuse

Created: Monday, 11 July 2016 14:39

Written by Nicola Berkovic - The Australian

Richard Chisholm, a former Family Court judge, says the consequences are tragic when the court gets it wrong.

The secret was that her father had begun raping Lucy in his bed when she went on Family Court-ordered access visits to his house in a regional Australian town.

Revelations about Lucy’s ordeal have raised questions about the Family Court’s heavy reliance on expert reports to determine the veracity of sexual abuse ­allegations.

Social workers, psychologists and psychiatrists are an integral part of the family law system, helping judges to decide what to do in the most diabolical cases.

But some worry that too much faith is placed in their findings, particularly in cases involving bitterly contested sexual abuse allegations.

Lucy says her abuse escalated to rape only after an independent child psychiatrist dismissed as “lud­icrous” some of the disclosures she had made to a school counsellor. The abuse continued for another three years, until the access visits finally stopped.

Former Family Law Council chairman Patrick Parkinson believes an inquiry is warranted into the way sexual abuse allegations are handled by the Family Court.

“It’s not about condemning existing practices,” Parkinson says. “These are incredibly difficult issues and we need to find the best way of dealing with them. But there is an over-reliance on a very small number of experts in each city.”

He says psychiatrists can be extremely helpful in cases where there may be mental illness but they are not necessarily the most qualified professionals to assess abuse allegations. “I think it would be a lot better to have child protection services with experienced psychologists or social workers with expertise in this field who are regularly dealing with these cases who can give the court the benefit of their expertise,” he says.

One eminent Sydney psychiatrist, Chris Rikard-Bell, recently told the ABC he believed about 90 per cent of sexual abuse allegations made during highly conflicted Family Court proceedings were false.

The claim has alarmed several who work in the family law system, especially because Rikard-Bell says he has written up to 2000 medico-legal reports.

University of Sydney socio-legal research and policy professor Judy Cashmore says the available studies suggest the level of false allegations is nowhere near 90 per cent, and probably closer to 10 per cent to 15 per cent. This is a view backed by another eminent child psychiatrist, Carolyn Quadrio.

“The real problem is that we don’t have any reliable information, so therefore we have to rely on what we know from overseas research,” Cashmore says. “But it certainly doesn’t support anything like 90 per cent.”

A Family Court spokeswoman says the court “does not accept the suggestion that 90 per cent of sexual abuse allegations in contested Family Court proceedings are false”.

“The statement comes from comments made by one expert witness about cases he sees and does not speak of the overall experience in cases before the court,” she says.

There were more than 5000 substantiated cases of child sexual abuse in Australia in 2013-14, according to the Australian Institute of Health and Welfare.

Family law barrister Martin Bartfeld QC says he has been involved in cases that “would make your hair stand on end”.

“The fact of the matter is there are people out there who have an almost religious belief that sexual abuse is a fantasy that children make up,” he says. “But the forensic evidence and the royal commission into child sexual abuse doesn’t bear that out.”

Cashmore says the difficulty is that many of the children involved in family law disputes are very young and it is hard to obtain from them a reliable account of what has happened. False allegations may not be malicious, but in a setting where all trust has broken down mothers can misinterpret what may be innocent behaviours.

“It’s possible that a parent who already has no faith in the other parent could misconstrue what has happened,” she says.

Once a child has been repeatedly questioned about suspected abuse, the truth can become even murkier.

Now 18, Lucy says her abuse began when she was just three. At first the court-ordered access visits with her father were supervised but after several years the visits were not supervised and included a weekly overnight stay and half the school holidays at his house.

Lucy recalls early visits when she was made to bathe herself, including opening her genitals with her father watching, being made to look at adult pornography and to sleep in her father’s bed beside him. Sometimes she was taken to a house where another man and her father took photographs of Lucy naked and of the other man’s children, also naked.

Lucy’s mother, Tina, recalls her daughter returning from access visits with rashes between her legs and being diagnosed with multiple urinary tract infections.

It was not until the little girl was eight that she and her classmates were given child protection classes at school.

Lucy says she clearly recalls the shocked faces of her classmates after being told that some adults touched children’s bodies in private places. “I had always been told it was a special thing and it meant that Daddy really loved me.”

Following the classes, Lucy found the courage to approach a school counsellor and to tell her that she didn’t like sleeping in her father’s bed and that when she woke up she felt sticky. The counsellor’s face seemed very shocked.

Unbeknown to Lucy, the counsellor told the school principal, who told the NSW Department of Community Services. The department spoke to Lucy’s mother and told her it believed her daughter was telling the truth. Tina says she stopped the access visits immediately. She subsequently asked the Family Court to award her sole parental responsibility, although her ex vehemently denied the abuse. The Family Court asked for a family report to be prepared, and the parties agreed to the Sydney-based psychiatrist.

Lucy says she remembers being taken into a room with her father and a man asking her questions. “I remember being absolutely petrified,” she says. She says she could not tell the doctor what had been happening to her.

She was also observed separately with her mother and stepfather. In his report to the judge in 2007, the psychiatrist wrote that the girl was “very guarded” when she was observed with the father and that she “appeared a little ­reserved”.

When Lucy spoke, however, she managed to tell the psychiatrist she “didn’t want to see the father any more and that she didn’t want to go to contact”.

The psychiatrist reported that the allegations “seemed rather extraordinary”. He said the mother appeared “to have allowed herself to accept ludicrous stories about the child being drugged, bound with duct tape and ejaculated over by the father and for the smell to be on her pyjamas for an extended period of time”.

The report contained only fleeting references to the alleged violence perpetrated by the father against the mother.

Earlier, when Lucy was three, Family Court judge Graham Mullane was so concerned about the father’s “abusive and controlling” behaviour, he had ruled that any contact between him and Lucy should be supervised.

That judgment, from April 2000, described the father’s history of drug use and violence, including an incident in which the father had attempted to choke the mother while she was driving, with Lucy in the car.

However, the psychiatric report seven years later did not analyse the risk of violence and said the father had “attempted to ­become rehabilitated”. It recorded comments made about an incident involving the father killing Lucy’s cat.

Rather than focusing on whether the father posed an unacceptable risk to Lucy, the psychiatrist warned in his report of the risk that supervised access might cause the father-daughter relationship to “deteriorate and eventually break down”.

He therefore told the court his recommendation was for weekly unsupervised access, which he believed would “quickly” restore the relationship between Lucy and her father and help it to grow.

The psychiatrist prescribed counselling for Tina to help her “manage her anxiety” but warned that “if further spurious allegations of sexual abuse arise”, the woman should be given a psychiatric assessment and that “the child be placed in residence with the father”.

The report was so damning that Tina says she was advised by her lawyers not to go back to court for fear of losing custody of her daughter.

“I wanted to contest it but I was bullied into signing that I would send my daughter for weekly contact visits and half of the school holidays,” she says. “I was petrified and vomiting when I had to send her, knowing what was going to happen. I reported it to police and my member of parliament but they told me they could not do anything to help.”

She says the DOCS investigation was also closed for reasons that were not clear.

Inquirer cannot name the psychiatrist involved in Lucy’s case, because the Family Law Act prevents the naming of any witness — even an independent expert — in a case. The law also makes it difficult to examine other cases in which the psychiatrist has been involved because names in reported judgments are anonymised.

However, Inquirer has uncovered another recent case, in which Family Court judge Margaret Cleary ordered two young children to be removed immediately from their mother’s care on the strength of a report by the same psychiatrist. Last October, Cleary took the unusual step of ordering the father to collect the children from school and to suspend all contact with the mother after a hearing in her chambers with only the independent children’s lawyer present.

The mother had not been notified of the hearing and had not been given a copy of the report.

The report, marked “the judge’s eyes alone”, recommended “an urgent change of residence for the children”.

In it, the psychiatrist said he did not believe alleged sexual abuse by the father “on balance is likely to have occurred”, and that this was “more the anxiety of the mother which has been projected onto the children”.

“I believe the only alternative now is for the children to be placed with the father,” he wrote. “I recommend that this happen immediately and without notice.”

The psychiatrist warned that if there was a delay and the children were exposed to their mother or grandparents’ distress, this would have an “extremely detrimental impact on the children’s ­emotions”.

“Specifically I conclude that there were signs that (the son) is already demonstrating signs of parentification in support of the mother and he would feel obliged to stand by his mother to protect her,” he wrote.

“The pressure on the children would be so intense that they would, I believe, refuse to leave the mother and that the likelihood of lasting damage to future contact with the father would be high.”

In her judgment, Cleary acknowledged it was a “drastic step” to act on the evidence of the single expert without hearing from the mother and “not consistent” with procedural fairness.

Nevertheless, she made the orders, adding that she might have been unwilling to do so but for observations by the psychiatrist that the children had been “thrilled” to see their father.

The full Family Court on appeal said the circumstances of the case had not justified such a drastic step without first hearing from the mother.

“Moreover, there were apparently unresolved concerns about the risk of abuse of the children by the father,” the judges wrote.

However, ultimately, after they sent the case back for hearing by a different judge, the court found the abuse allegations had not been substantiated and there was “no unacceptable risk to the children in the care of the father”. After an eight-day hearing, judge Judith Rees made orders in March for the six-year-old girl and nine-year-old boy to live with their father. The evidence included the expert report and other testimony.

Former Family Court judge, and now Australian National University adjunct professor Richard Chisholm says cases such as these are agonising for judges because the consequences are so tragic when the court gets it wrong. He says often the evidence is ambiguous and uncertain.

“It is a terrible thing if a child who is brave enough to disclose abuse is disbelieved and has to endure further abuse,” he says.

“It is also a tragic outcome if an innocent person is wrongly treated as a child abuser.”

He warns that lawyers and judges cannot relax just because the only expert takes a particular view. “They have a duty to the families, and to the children, to carefully examine the basis for expert opinions,” he says.

The head of the Law Council’s family law section, Perth-based lawyer Rick O’Brien, says judges in the Family Court and the Federal Circuit Court, which handles the bulk of family law cases, are “acutely aware that experts are only witnesses; no more, no less”.

“It’s the judge’s job to assess the risk based on all of the evidence that’s before the court,” he says. “The assumption that judges simply go along with a single expert underestimates the ability of ­judges to examine all the evidence and in my experience is wrong.”

He says family lawyers are being offered training about what to do when a single expert witness and an independent children’s lawyer is “against them”. “The whole emphasis is reminding family lawyers to examine this evidence critically and make sure that all the evidence that the court needs is in front of it,” he says.

But O’Brien says the ability of the system to deal with these cases is undermined by chronic underfunding. He says not only do the courts not have enough judges but there are not enough resources to pay for independent children’s lawyers and expert reports.

National Children’s Commissioner Megan Mitchell says one potential safeguard is to allow children more of a say during family law battles.

The Family Court is examining ways in which children’s views can be heard by the court. Although some worry this could place children in the middle of their parents’ disputes, Mitchell says she speaks to many children who feel “incredibly disempowered” by the legal process.

“I don’t concur with the view that hearing from children puts them at risk. Hearing from them is a safeguarding measure,” she says.

However, she says the professionals handling such cases would need to understand child development and trauma, and these are not always skills that those in the court system have.

Lucy says she was confused after she was sent back for access visits to her father. The police officers and DOCS workers had asked her to trust them but she was forced to continue seeing him.

At her father’s house, Lucy noticed her father’s demeanour change. Instead of being gentle, caring and patient with her in bed, he became threatening and coercive and the abuse escalated to rape.

Her father threatened that if she told anyone what was happening, he would kill Lucy’s mother, her grandparents and her new stepfather. Lucy believed his threats because she had seen her father’s violence towards her cat, which had died after he threw it against a wall.

Even though her father found a new partner, she says the abuse continued. It was the new partner who finally rescued Lucy by warning Lucy’s mother that her daughter was in danger.

Lucy’s mother refused to send her daughter for any further contact, and this time, the father relinquished his right to access. The abuse finally ended.

Even though the abuse was over and Lucy was returned to her mother’s care, the teenager struggled with terrifying nightmares and memories of the trauma. She still could not tell her mother the severity of the crimes committed against her, and she has self-harmed and attempted suicide.

Five years after the abuse ended, Lucy still suffers frightening flashbacks that can be triggered at any time by a word, an aroma or even the sight of a type of food. At night she doesn’t sleep well. When she does sleep she has nightmares.

Despite her fears, Lucy says she has broken her silence publicly because she discovered that the psychiatrist who disbelieved her is still in practice and still assessing these types of cases for the courts.

She is terrified that other children can be sent to abusive parents because their disclosures are not being believed.

“These cases need to be reviewed,” she says. “Hundreds of children could be at risk.”

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