Child Welfare & Family Law: Worlds Apart

Dr Elspeth McInnes AMUniversity of South Australia

Children’s Law Conference 18.6.11

What about DV?• Domestic or family violence is the most common context of child

abuse – long history of difference between child welfare and domestic violence services.

• Domestic violence services:-• Believe and support women and their children.• Recognise that the perpetrator is ALWAYS responsible for their

conduct.• Recognise that supporting mothers to be safe and recover is the best

way to assist child victims.• Understand domestic violence is used to exert control over women

and children.• Increasingly, violence against mothers is being systemically recognised

as a child protection issue.

What question are you asking? (Higgins & Kaspiew 2011)

Where parents who are separating raise allegations of child abuse, the five key bodies with a role to play have a different focus, with their actions and investigations addressing different questions or issues:

• Statutory child protection departments: Are you a protective parent? Is the child currently safe? Does the situation meet the threshold for statutory intervention?

• Children’s Court: Are you an adequate parent? What actions need to be taken to improve the parent’s capacity and ensure the child’s safety?

• Family courts: What pattern of time spent with you and the child’s other parent (and under what circumstances) is in the child’s best interest? Is the child protected from harm under these arrangements? Are you a “friendly parent” (facilitating the child’s relationship with the other parent)?

• Police: Is there sufficient evidence of a crime for a conviction to be likely? • Criminal courts: Has the alleged crime been proved beyond reasonable doubt? • None of these systems is focused specifically or exclusively on whether abuse occurred, or is it likely

to occur (or recur). • In family law disputes, the following questions are central, yet are not necessarily directly covered by

any of the relevant investigative agencies: • ..Is the child at risk of harm in the household of either parent (or other caregiver)? • ..Would the child be safe if he/she was to spend time unsupervised with the parent against whom

allegations of abuse have been raised?

Looking Backwards

State & territory child protection law is • Retrospective and focused on past events of alleged child

abuse.• Adversarial – workers to support families may need to

remove children into care, or threaten to do so if conditions are not met.

• Forensic – Child removal to care requires evidence which can be presented to a court.

• Short-term – interventions are aimed at restoring family function as quickly as possible with intervention orders only lasting for 6 or 12 months.

Looking Forwards

Family law is • Prospective – what future arrangements will be in the child’s

best interests?• Civil & private – the parties in dispute seek court determination

of their dispute and provide the evidence in support of their case without involvement by the Crown or any other external investigator.

• Past conduct is not seen as indicative or determinant of future conduct.

• Long-term – Final orders are aimed at long term arrangements where the parties will not need to return to the court unless there is a substantial change of circumstances.

Contradictions for Protective Parents

• In Tasmania and NSW Police are required to report to child protection when they attend a domestic violence incident with children present.

• Exposure to domestic violence is typically recorded as ‘emotional abuse’ and mothers, who are victims of the violence, are primarily recorded as the perpetrators of ‘emotional abuse’ because they are held responsible for choosing to stay in the violent relationship.

• In all jurisdictions except Western Australia and the Northern Territory, the most common type of substantiated abuse was emotional, ranging from 34% in New South Wales to 50% in Tasmania. The relatively high proportion of substantiations of emotional abuse may be partially attributed to the broadening legislative definition of emotional abuse. In Western Australia and the Northern Territory, the most common type of substantiated abuse was neglect (39% and 51%, respectively) (Child Protection Australia 2009-10 AIHW).

Protect Children or Lose Them

• The outcome for mothers living with family violence and/or child abuse is that state child protection agencies threaten to remove children if they do not end the relationship.

• Under the Family Law Act 1975 Shared Parental Responsibility changes of July 2006 decision makers must apply a rebuttable presumption of equal shared parental responsibility (S 61 DA, under which they MUST consider the maximum time possible with each parent, or substantial or significant time (S65DAA).

Family Court and Federal Magistrates Court

• Division 12 A – A Less adversarial approach –– unless Form 4 filed – notice of risk of abuse.

• Form 4 is sent to state CP: central intake assessment means that many referrals do not meet threshold for investigation – returned ‘unsubstantiated’.

• If Form 4, will invoke a Section 60CC consideration – 8 week period to hearing. Section 69ZW allows court to order relevant state agency data from health, child protection and police.

• Magellan Court to deal with ‘serious’ child abuse cases – judge led process with agree timelines for providing reports to inform the court.

• WA Family court has ‘Columbus’ and an integrated family and children’s court system.

• Shea –Hart (2006) study of 20 Magellan judgments concluded the following:• ‘The dominant discourses, which were predominantly, but not exclusively relied on by

judges and social scientists who provided evidence to the Court, served to justify a number of failures in the decisions said to be made in children’s ‘best interests’. In the majority of cases these included a failure to centralise children’s exposure to domestic violence, to identify child victim’s special needs, and to question the fathering capacity of violent men.’

‘Unacceptable Risk’

• Family law judges are directed to avoid making findings of a criminal nature as they are not criminal courts.

• Family law does not take account of uncontested DV orders as they have not been tested in court.

• Violence and abuse towards the other parent is not ordinarily recognised as relating to capacity and safety as a parent.

• Judicial decision makers may find an ‘unacceptable risk’ is present where they have evidence that a parent has behaved in ways that could present a risk of harm to the child/ren.

Robins  & Ruddock [2010] FamCA 35 (22 January 2010); 

• 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.

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.

Assessing Evidence• Par 100:Ms ML’s affidavit[10] was admitted into

evidence without controversy. It was indicative of the father being aggressive and violent up to 2007. The evidence is of little value

• Par 115: However, I am satisfied that the father invited A into his bed and that A felt uncomfortable and that the father demonstrated affection towards her, in a way which was in all the circumstances inappropriate for a child of that age and in those circumstances. Accordingly I am satisfied there needs to be a measure of protection put in place for these children in terms of their time with the father.

Need for Protection• PAR 117:The father has extensive experience in dealing

with children at risk bearing in mind the family’s involvement with foster care over a significant period of time.

• I 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.

Findings• PAR 122 :I accept that the father is a forceful, dominant person who is

keen to argue his case and has a very powerful personality. The mother on the other hand seems somewhat timid and self effacing. She is not a forceful person.

• Par 151 I am satisfied that it is important that the children have a meaningful relationship with both parents. The children have a close bond with their parents and love them and enjoy their time with them.

• Par 165 The mother obtained a family violence order against the father in 2007. While I am critical of the mother in relation to using that application instead of an application to the Federal Magistrates Court or the Family Court, I accept her evidence as to her sense of frustration and concern for her children arising out of the events over the preceding year.

• Par 167: As discussed earlier the mother obtained a family violence order against the father in 2007. The order was in force for a period of twelve months and has expired. I give it little weight in the circumstances of this case.

Result• 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.

What we know

• The father is a convicted child sex offender with queries about sexual activity with his children and step-children.

• He is a foster care provider• He is forceful and controlling and previously

subject to an AVO• His daughter doesn’t want to be alone with

him and is frightened of him.

The Consequences of the Judgement

• The 10 and 8 year old have to regularly spend time with the abusive controlling child sex offender.

• The children are responsible for staying awake and together to prevent their molestation by their father.

• The father is supposed to provide the means for the children to secure their bedroom – which could lock them in.

• The adult supervisor who is an adult friend of the father could be a child sex offender.

• The issue of the children’s subjection to the manipulative attention of the offender is invisible.

What is Revealed• Illustrates the ‘risk management’ approach to children’s

safety.• Reveals the reality that even where child sex offending is

proved, children are ordered into paedophile ‘care’.• Shows assumption that children’s disclosures are coached.• Reveals judicial disregard of AVOs and violence against

women.• Reveals how children’s fear of the father becomes a ‘close

bond’ in judgement.• Reveals the absence of any consideration of the

psychological impact of the girls’ exposure to the manipulative attention of the child sex offender.

What needs to change?

• Structured decision making needs to force judges to screen and assess for violence and abuse and prioritise safety.

• When an abusive parent uses physical or sexual abuse, safety must mean no face to face contact.

Family Violence and Family Law Services Research

• 1100 adults (90%) and children (10%) answered a survey and phone in to identify how family violence impacts on access to the family law system, the decisions they make and shared parenting arrangements.

• 913 adult survey responses: 236 men 677 women• The study identified that family violence affected parents’ decisions

about accessing the family law system, their decisions within the system and their post-separation parenting arrangements.

• 85% of women and 56% of men said there was violence or child abuse during their former partnership but women were much more likely than men to report serious physical sexual psychological and controlling violence and abuse, men were more likely to report verbal emotional and psychological abuse.

Gender differences in Violence

• Women were more likely than men to be afraid for themselves and their children due to ongoing physical sexual psychological and emotional violence against them.

• Men were most concerned about obstructions to seeing their children and false allegations of violence against them and saw these as expressions of violence against them.

• 34% of women and 19% of men felt that their reports of violence were believed.

Children’s Experiences

• Most child respondents said violence experiences had reduced for them after separation, especially when only one parent was violent.

• 39% of surveyed children said they did not feel safe with their father after separation and just under 10% did not feel safe with their mother.

Use of Services

• 3.5% of respondents, mostly women, avoided all services due to fear.

• 82% voluntarily used services after separation and began with services outside the family law system.

• 78% used family and friends• 58% used GPs• Mothers mainly had contact with Centrelink for

financial support• Fathers mainly had contact with the Child Support

Agency.

Legal System Use

• 74%of survey respondents went to a lawyer.• 50% of survey respondents had been to court• After the 2006 changes lawyers gave advice that raising

unproven allegations of violence could cause them to be poorly regarded in court.

• Lawyers also gave advice of equal time with each parent being considered and the penalties for falsely alleging violence.

• Only 10% of post-2006 separated parents surveyed who disclosed family violence said they were exempted from mediation.

FRC Critiques

• 40% of surveyed parents with a history of FV did not disclose.

• Parents said FRC staff did not understand the nature and effects of FV

• Parents said FRC staff were unable to counter the dominant use of power by violent ex-partners.

Court Critiques

• Felt disbelieved, ignored minimised around the issue of violence

• Lack of serious investigation of violence or abuse claims by report writers and court experts

• Judges ignoring the issue of violence as well as state DV orders and child protection orders

• Men were more likely to be satisfied by court action than were women.

Consequences

• 68.7% of women and 52.2% of men said the consequences of FV was they could not achieve suitable and safe arrangements for themselves and their children after separation.

• For those who separated after 2006, 54% of women and 47% of men said the coexistence of family violence, mental illness and substance abuse were not recognised.

• Women reported children’s increased exposures to serious violence after the 2006 changes. They were much more concerned about the developmental impacts of violence on children. Men were concerned more about the emotional impacts on children and did not have any consciousness of child development.

FAMILY LAW DISASTER CONTINUES

• Increased continuing exposures to family and domestic violence post separation.

• Increased deaths injuries and harms to children from abusive parents after separation (eg Darcey Freeman, Imran Zilic, Farquharson children).

• Developmental harms to children arising from disregard for attachment and exposures to violence.

2011 amendments

• Prioritise the safety of children in parenting matters• Broader definitions of abuse and family violence.• Strengthen obligations on family law system

professionals to prioritise children’s safety.• Give courts better access to evidence of abuse and

family violence through improved reporting requirements.

• Make it easier for participation of state/territory child protection in family law proceedings where appropriate.

Defining child abuse• abuse, in relation to a child, means:(a) an assault, including a sexual assault, of the child; or(b) a person (the first person) involving the child in a sexual activity with the

first person or another person in which the child is used, directly or indirectly, as a sexual object by the first person or the other person, and where there is unequal power in the relationship between the child and the first person; or

(c) causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence; or

(d) serious neglect of the child.

New Family Violence Definition• For the purposes of this Act, family violence means violent, threatening or other

behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful.

Examples of behaviour that may constitute family violence include (but are not limited to):

(a) an assault; or (b)a sexual assault; or (c)stalking; or (d)repeated derogatory taunts; or (e)intentionally damaging or destroying property; or (f)intentionally causing death or injury to an animal; or (g)unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or (h) unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or (i) preventing the family member from making or keeping connections with his or her family, friends or culture; or (j) unlawfully depriving the family member, or any member of the family member’s family, of his or her liberty.

How the court determines a child’s best interests S 60CC

• The primary considerations 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

2011 changes would prioritise safety where these considerations are inconsistent.

S 60 CC Other considerations• Child’s views• Each parent’s relationship with the child• the willingness and ability of each of the child's parents to facilitate, and

encourage, a close and continuing relationship between the child and the other parent (To be repealed under 2011 changes)

• The likely effect of change or separation on the child• The practical difficulty and expense of the child spending regular time with each

parent• The capacity of each parent to provide for the needs of the child, including

emotional and intellectual needs• The parents’ and child’s characteristics (age, sex, maturity, culture)• Parents’ attitudes to and fulfilment of parental responsibility – spend time,

communicate with child, and involvement in key decisions• Any family violence and any final family violence orders (delete adjective final in

2011 changes)

Requirement to Disclose Child Welfare Involvement

• New obligations on parties to inform the court about risks to the child or another child of the family: whether the child has been subject of a care order, notification or investigation under state child welfare laws.

• 2006 introduced compulsory costs orders against people knowingly making false allegations: 2011 changes this to court’s discretion.

Continuing Problems

• No capacity to properly investigate child abuse allegations.

• Spurious use of mental illness labels when mothers allege child abuse.

• Pressure on mothers to withdraw allegations or lose residence.

• Refusal of legal aid where mothers are designated ‘mentally ill’ by unqualified ‘experts.’

• Systemic risk of corruption where ICLs can select favourite report writers.

Child safe family law

• Let’s advocate for the family law system to be a system of child-safe organisations http://www.childsafe.org.au/a-childsafe-organisation/

• All professionals involved in children’s matters should be subject to a working with children check screening for charges or convictions of violence or child abuse.

• Legislation should require decision-makers to adhere to the standards of ‘working-with-children’ checks when determining arrangements for children so that children are not placed in the care of people who would be barred from working or volunteering with children.

References• Bagshaw, D., Brown, T. , Wendt, S., Campbell, A., McInnes, E., Tinning,

B., Batagol, B., Sifris, A., Tyson, D., Baker, J., Fernandez Arias, P. 2010 Family Violence and Family Law in Australia: The Experiences and Views of Children and Adults from Families who Separated Post-1995 and Post-2006, Attorney-General’s Department, Canberra. http://www.ag.gov.au/www/agd/agd.nsf/Page/Families_FamilyRelationshipServicesOverviewofPrograms_ResearchProjectsonSharedCareParentingandFamilyViolence

• Higgins, D. & Kaspiew, R. 2011 Child Protection and Family Law, Joining the Dots. National Child Protection Clearinghouse Issues Paper No. 34 Melbourne: AIFS.

• Shea-Hart, A. ( 2006) Children Exposed to Domestic Violence: Whose‘Best Interests’ in the Family Court?, Adelaide: Thesis for University of South Australia School of Social Work and Social Policy.