Legal experts have raised concerns abused children could be slipping through the cracks of Family Court proceedings, after the release of new data.
In only 14 per cent of contested cases, judicial officers expressed a direct belief that allegations of child abuse were true, according to a study of published cases
Experts say more resources are required to determine if abuse has occurred
In a statement, the Family Court says its role is different to that of criminal courts
A group of researchers reviewed seven years’ worth of relevant cases — from 2012 to 2019 — and found that in only 14 per cent of contested cases, judicial officers expressed a direct belief that allegations of child abuse were true.
Researchers have released the findings in a bid to prompt a discussion around whether or not Australia’s legal system is equipped to deal with these types of allegations.
Co-author of the report, Lawrence Moloney, said on the surface of it, the data looked counterintuitive.
“The key finding is really, that on any kind of normal expectation, it is a very low level of findings of child sexual abuse,” Dr Moloney said.
The study also found that risk of sexual harm to a child was found in just 12 per cent of the 521 cases published in the Australasian Legal Information Institute’s Australian database.
Dr Moloney, a clinical psychologist who is an adjunct professor with the School of Psychology and Public Health at La Trobe University, said roughly two-thirds of people who could be referred to as allegedly unsafe parents had the time they spent with their children increased by the court.
Authors say court needs more resources
The report authors also acknowledged that allegations of child sexual abuse posed agonisingly difficult issues for families, family law professionals and the courts.
Law professor Patrick Parkinson said the new data highlighted the challenges facing Family Court judicial officers and underlined the need for more resources to be made available to the courts to investigate these types of cases.
“The cases which go to trial in a family court are in the too-hard basket for the child protection system, they are the cases where the police don’t feel they are able to prosecute,” he said.
“The child protection authority hasn’t reached a clear view of whether abuse has occurred, the alleged perpetrator hasn’t just accepted he won’t be seeing his kids and dropped out of the process.”
The University of Queensland legal expert explained the evidence could be very ambiguous, often due to the children’s young age, and he believed more resources were required to determine if abuse had occurred.
“At the moment, people are very heavily reliant on independent experts, mostly child psychiatrists who are extraordinarily expensive, so it can be very, very costly to pursue an allegation in the family court — not just because of the legal costs, but because of the cost of the expert witnesses as well,” he said.
“What the government could do to improve this greatly is to have a system where the government pays for the investigation just as the states pay for child protection investigations in the state system.”
Lisa Young, a professor of law at the Murdoch School of Law and Criminology in Perth, said in cases involving allegations of sexual abuse it was typical for a single expert to be appointed to assist in determining the outcome of the matter.
The expert is usually appointed on the recommendation and agreement of the parties and the Independent Children’s Lawyer.
Professor Young explained there were cases on one end of the scale where allegations looked to be false, but on the other end there were cases with clear evidence.
She said the issue was there was a large grey area in the middle where it was uncertain what had taken place and there was no finding of abuse.
“What this paper shows us is that it’s very likely in those cases the contact with the alleged abuser will in fact increase,” Professor Young said.
“It seems unlikely that there aren’t children in that grey area in the middle who are being abused, who aren’t being protected. That concern seems very, very, likely from the research I’ve seen.”
What could be done to provide protection?
Author of See What You Made Me Do, Jess Hill, said she received a lot of correspondence from parents, victims and survivors of abuse who pleaded with her as a journalist to help them navigate the family law system.
Ms Hill agreed with Professor Parkinson and Professor Young there needed to be more resources available for judicial officers to investigate the claims before them.
“I’ve heard really great suggestions around how these allegations can be better assessed in a triage process where you have two or three experts assessing this and discussing their conclusions rather than it just hinging on one person,” she said.
“It’s just not good enough, with just one person who has a psychiatric degree or a psychology degree. It does not qualify you to assess whether child sexual abuse or domestic abuse is likely to have occurred.”
According to the report, just under half of sexual abuse allegations were regarded by judges to be genuinely believed by the parent alleging abuse but were believed to be mistaken by the court.
While 25 per cent of allegations in contested hearings were found to be deliberately misleading by the accuser.
Professor Young said the system dealt adequately with what she called the small number of false allegations of sexual abuse. She said that very often the person making the allegation was at grave risk of losing care of the child.
“But I think what we need to be really clear about is that the false allegations are not the problem. The question is dealing with false denials and dealing with protection of children.”
Lack of data prompted research
Nola Webb, a barrister and legal researcher, approached her report co-authors, Bruce Smyth, Dr Moloney and Robyn Murphy after coming across a substantial number of mothers who told her their court cases were being dismissed.
“This appeared to fly in the face of the best research we had available, which has consistently found that a majority of these allegations are likely to be true,” Dr Moloney said.
Not all decisions or outcomes of court proceedings are published so the sample does not include the unpublished cases.
In response to the report, the Family Court issued a statement that said it was important to emphasise the legislative parameters the court operated under.
“The role and requirements of the Family Court are distinctly different to the state and territory criminal and children’s courts, which makes it very difficult to compare,” a spokesperson said.
“Allegations of family violence, including child sexual abuse, are frequently raised but also denied in family law proceedings.
“Crucial to any decision is the need for the judge to make findings of fact (based on evidence presented in each case) as to whether or not alleged events occurred or whether there is an unacceptable risk.”
The federal Attorney-General’s Office said in its statement that under Australia’s federal system of government, the states and territories had primary responsibility for child protection and criminal matters such as child sexual abuse broadly.
“The investigation of child abuse claims are therefore appropriately matters for state and territory child protection and policing bodies,” a spokesperson said.
While the Family Court can take into consideration allegations and substantiating evidence when determining matters before them, they have no independent investigatory capacity.
However, family law professionals including court staff, are required to notify the respective child welfare authority of any suspected child abuse, or risks of child abuse, for potential investigations.