Australia's family law system placing children in unsafe situations, ALRC finds

Updated

Australian children are being placed in harm's way by the legal structure designed to determine their best interests — the family law system.

James* says the earliest memories of his childhood involve being sexually and physically abused by his father.

Also etched into his memory are the occasions he tried to tell someone what was going on and the system that didn't believe him.

James told his mother about the alleged abuse and it was reported to the New South Wales Department of Family and Community Services (FACS) and police, but in Family Court the allegations were found to be malicious and his father was awarded sole custody.

From the age of four to 13, James was the subject of proceedings in the Family Court as his mother fought to get her son back.

Now 19, James can speak for himself about how decisions made in his best interest impacted his life.

'It was very hard there'

"I never in my entire life ever said I would like to live with my dad. I've always been against that," he said.

"I was so scared back then to even talk about the sexual abuse with the counsellor in court. I don't trust that person."

When he was six years old, a Family Court judge ordered James to live with his father. He was allowed to see his mother for contact visits every second weekend.

When in his mother's care, James said he spent the time checking the clock, watching the hours tick away.

Soon he would be taken back to his father's — a place he described as "hell on Earth".

"It was very hard there. He was physically abusing, verbally abusing, emotionally abusing. I lived there for seven years," James said.

"There were many times when he was abusing me physically and sexually of course. That was my very, very earliest memories.

"I walked out of the bathroom and he slammed my head into the corner of a wall for absolutely no reason. There was no reason behind it, he just wanted to let his anger out on me."

James says by the time he turned 12, he was regularly running away to police with scratches and bruises.

"I became suicidal. I just thought 'if I'm unable to live with my mum, there's nothing'. I'm not going to live here and there's nowhere else to go," James said.

Eventually, police took out an Apprehended Violence Order (AVO) against James' father on his behalf.

James says he begged authorities to let him live with his mother, but Family Court orders forbade it and instead he was placed in a refuge.

"That was very tough. It was better than being at my dad's, but it was also very hard because I had no contact with my mum whatsoever, no phone calls, no messaging, nothing."

Child protective services are state-based. The Family Court is federal and there are fears children are being lost in the gaps.

The ABC has seen an affidavit filed by FACS in James' case that states it received 24 risk of harm reports from a number of sources in relation to James during the first six years he lived with his father.

It states:

"A small number of these reports were assessed as raising concerns of serious harm. "These reports were often unable to be actioned due to competing priorities."

The affidavit also notes FACS intervened in an earlier Family Court matter between the father and a different former partner after having substantiated he sexually abused a child from that relationship.

"Substantiated" is a term used in child protection to refer to allegations or disclosures where investigators "conclude there was reasonable cause to believe the child had been, was being, or was likely to be, abused, neglected or otherwise harmed", according to the Australian Institute of Health and Welfare.

A disturbing failure in James' case was the inability of staff at FACS to immediately connect the historical case of substantiated sexual abuse from a previous relationship, to James' file.

In court documents, it was revealed the change in systems at FACS meant staff only checked computer records and did not check the physical file that contained "much more detail and information".

In total, three former partners had alleged child sexual assault against James' father, but only one of those cases was substantiated by state authorities.

'Numerous examples'

The Australian Law Reform Commission (ALRC) recently conducted a wide-ranging review of the federal family court system and found it posed an "unacceptable risk to children".

In its first recommendation, delivered in March, the ALRC said the family law courts should be moved to the states and territories — the same jurisdiction as child protective services.

The ALRC says the radical recommendation responded to "arguably the most pressing concern":

"That children are falling into harm because of gaps between the federal family court and state and territory courts, child protection services and police."

These gaps exist because federal family courts often hear allegations of family violence and child abuse, but they have limited powers to investigate them. They rely on state and territory courts and agencies to do that work and to share information about the risks to families and children, according to the ALRC report.

"There are, however, significant barriers to information sharing between the systems at present," the report read.

In its recommendation, the ALRC noted the risk to children was "more than a hypothetical".

"During this inquiry, the ALRC's attention was drawn to numerous examples of the family law system placing children in unsafe situations," the recommendation read.

"The fundamental structural difficulties of the family law system can be remedied only by enabling family law, family violence and child abuse matters to be dealt with in the same place at the same time. One court considering the best interests of the child in totality."

The ABC has approached FACS for comment and was directed to the NSW Attorney-General, who said they would "consider" the ALRC's recommendations.

James, and others like him, believe children should have a bigger voice in proceedings before their best interests are determined.

Sarah* was a child in the system who says she was never heard. Now, she's 23 and wants to tell her story.

'You can still love someone who hurts you'

"It's difficult to put into words what it's like for a four-year-old to be taken from their mother full-time to a father who has no experience in raising a child on their own, especially a female child," she said.

A Family Court judge removed Sarah from her mother's care and ordered her to live with her father. She had never before been alone with him.

"It was probably the biggest impact of my life. It changed everything," she said.

Sarah says she endured extreme neglect and abuse throughout her childhood.

"I was very withdrawn, very antisocial. I had problems making friends and I distrusted adults so I was very isolated," she said.

"I struggled doing group things or team stuff or schooling.

"I grew up on my own."

Sarah's mother Jackie* and her father never married and were parenting under agreed terms, or consent orders, until he sought more contact with his daughter.

Sarah's father had HIV and Jackie believed he was irresponsible with his disease. She knew one of his older daughters had a restraining order against him so she subpoenaed his criminal record.

That record included convictions for assault and indecent assault from the 1960s as well as "an extensive petty criminal record" with periods of incarceration.

"I have to really worry about the person that made the decision to put a child in my father's care," Sarah said.

A major complicating factor in this case was her mother's decision to flee to another state with Sarah during proceedings.

Absconding with the child and failing to follow court orders were viewed harshly by the court and contributed to Sarah's mother losing custody.

For Sarah, the proceedings were never about her.

"It was essentially my mum against my dad in court. It was never about what I wanted or what I needed," she said.

"I believe that I became an object and not a human being.

"I cannot even comprehend what goes through a judge's mind when they decide what is in the best interest of someone they've never met or even spoken to."

During the court process, Sarah's court-assigned representative asked if she loved her mother and father.

"I answered 'yes'. And of course I did, they're my parents. That's the part they don't understand, you can still love someone who hurts you," she said.

The judge in Sarah's matter made orders based on the information and evidence before him at the time. Sarah has reflected on that judgement with the hindsight of knowing how things played out.

Judgement:

"Both parents are capable of looking after the child."

Sarah: "I was never really encouraged to shower or brush my teeth or change my clothes and in turn I got bullied at school.

"I usually had headlice and would smell.

"Even when I told a friend or my mum or something 'dad hits me' or 'I don't have food' or whatever, it would either be reported and ignored or I was just never heard."

Judgement:

"The mother made allegations of violence against the father but I'm not persuaded that's important."

Sarah: "Dad, he was very abusive; always very angry. I'd physically get hit or pushed around or had things thrown at me or whatever.

"I'd quite often have bruises or scars or red marks where he'd push me or hit me."

Judgement:

"The father is able to protect the child from physical or psychological harm."

Sarah: "When I was in my younger years, so I think about eight or nine or 10, I used to get abused sexually by [a family member]."

"[My father] caught him once and denied it in court when he was asked because I told my mum, who brought it up, and he lied."

Judgement:

"The mother continues her allegations of paedophilia and child abuse against the father. The mother brings no evidence in support of her allegations and I have found they are baseless."

Sarah: "I think in some cases they have a relevant theory, for example, a loving father is being accused of something they're not doing, which is fair enough, but there are other cases where it's true and I think there need to be more processes in place and more people involved to pick up on the signs of the child and of parents."

At 13, Sarah ran away. She made it to her adult sister's place and her sibling fought to legally keep her. Eventually, her father agreed she could live there and her mother was satisfied she was safe.

Sarah wants more training for counsellors and child representatives in the family law system, so, unlike in her experience, cries for help can be heard.

James says he cannot forgive the court system: "That's completely unfair what they've done to me."

"You are unable to talk about this, but even if you do no-one believes you," he said.

"I don't want anyone to go through what I did. Everything I have told [you] about myself is only one tear in the whole ocean."

How could this happen?

Under the Family Law Act 1975, the court must consider the child's safety, but also their right to a meaningful relationship with both parents.

The courts rely on consultants such as family report writers to make recommendations about what is in the child's best interest. These report writers are often psychologists, psychiatrists or social workers, but they are not required to have specific training or expertise in family violence or child sexual assault.

Last year, the ABC revealed a family report writer in NSW had been referred to the Medical Council for investigation after a series of complaints from parents.

University of Queensland professor Patrick Parkinson has been heavily involved in family law reform for decades and said family report writers were often left to fill the gaps in the system.

"Family law proceedings are private proceedings so from a legal point of view, the applicant makes his or her case, the other side responds with his or her case and the judge is the neutral arbitrator," he said.

"So that model where the judge is a sphinx-like decision-maker doesn't actually give you any scope for an independent investigatory capacity ... which is why the system relies upon independent family report writers, certainly for child sexual abuse.

"And they do their best, but what we really need in these cases in terms of the welfare of children is an independent investigatory capacity.

"There's been this problem for years. All the investigatory capacity is in the states, it's the police, the child protection services.

"We have a huge problem. Often the children are too young for it to go to criminal justice, child protection department may or may not take it on, and it's left to the family law system."

The ABC has spoken to both mothers and fathers who report problems with family report writers, particularly in cases that involve allegations of family violence or child abuse.

Professor Parkinson says an independent investigatory body would benefit all parties.

"It's that assessment, not only whether it happened or not, but the significance of those events — that's what we need an independent person often to be able to advise the court about," he said.

"It's very important in child sexual abuse cases, and others, that where the allegation is unfounded, someone says so."

Changes to the system

Federal Attorney-General Christian Porter announced sweeping changes to Australia's family law system last year.

The Family Court and the Federal Circuit Court currently hear family law matters, but under the Attorney-General's plan, those courts would merge.

That plan is at odds with the ALRC's recommendation to move the family courts to the states and territories, but a re-elected Coalition Government intends to press ahead with it.

Mr Porter says he is also "fully committed to considering and developing individual responses to the complex issues raised in each of the 60 recommendations made in the final ALRC report".

The Attorney-General's Department says it is working with stakeholders to "develop options for reform" to ensure families "resolve their disputes as safely" as possible.

In March, Mr Porter announced $11 million in funding over three years to place state and territory child protection officials in family law courts across Australia and the family courts in Victoria have launched an information-sharing protocol with the state health service — initiatives that go some way to bridge the jurisdictional gap.

The Family Court of Australia has directed the ABC to its submission to the ALRC inquiry, noting "the family courts have no power to compel the intervention of child protection authorities in family law proceedings to assist families with complex needs".

In James's case, FACS did eventually intervene and he was returned to his mother's full-time care at the age of 13.

Both James and Sarah, along with other adult survivors, are part of a growing movement of Australians coming together to demand change in the family law system.

Parents have formed self-described victims' groups and they're associating across the country, joining forces to educate themselves and highlight the alleged failures.

James says the ALRC recommendation to move cases of child abuse and family violence into one jurisdiction handled by the state authorities is "a good thing".

"The judge made a decision that wasn't in my best interest. Judges and report writers need to have an open mind that abuse can be invisible," he said.

"I never went inside the court and all those decisions were made without me. Children need a voice."

*The ABC has changed the names and hidden the identity of the subjects as required by the Family Law Act 1975. The interviewees wanted to speak openly, but Section 121 of the Act prohibits them from doing so. According to an ALRC recommendation, "privacy provisions that restrict publication of family law proceedings to the public ... should be redrafted".

Credits:

Reporting and digital production: The Specialist Reporting Team's Emily Clark and Heidi Davoren

Artwork: Tim Madden

Topics: law-crime-and-justice, family-law, family-and-children, community-and-society, child-abuse, australia

First posted