Suffer the children
Trouble in the Family Court
When Erin saw the police lights flashing, she knew it was over. She steered the car to the side of the road, and turned to her two children. “OK guys, this is it,” she said. “We’ve done our best.”
Her teenaged daughter started to panic. “Fuck! Oh my god!” she cried. “I can’t do this. You can’t leave us!” She grabbed for the bottle of Panadol in the centre console, insisting she wanted to die. “No!” Erin said firmly. “Settle, just settle.”
As the police officer approached with a warrant, Erin got out of her car. She asked for time to talk to her two children, and promised she’d follow him to the station. Back in the car, Erin tried to remain calm. “I am so sorry I have put you through all of this. This is not the life I wanted for you. Always remember how much I love you.”
“What’s going to happen to us?” her 10-year-old son cried. “I don’t know,” Erin replied. “You just need to tell the truth.”
By the time the police caught up with them, Erin had been on the run with her children for nine months. She was now confronting a reality she’d been avoiding for years.
Since their children were born, and ever since he’d first held a knife to her throat, Erin had tried to manage her husband’s abuse. In 2012, however, a warning from her GP had broken through her denial. In front of their screaming kids, John had throttled Erin until her eyes rolled back in her head. “If you don’t leave,” her GP warned, “you’re as bad as he is.”
Erin did leave, and took the children to live with her parents interstate. Soon after, the Family Court granted John regular access to his kids. For the next year, Erin weighed her responsibility to her children, who were terrified of their father, against the risks of disobeying Family Court orders. There was a further complication: Erin had consented to the orders granting John fortnightly access – under pressure from her lawyer, she says, who advised that if she didn’t compromise, John could end up with sole custody.
When the children refused to see or even speak to their father, however, Erin felt she had no choice but to breach the orders. When John applied for full custody, both children refused to be assessed in the same room with him, and their counsellor wrote to the Family Court, advising that such a meeting would be traumatising for them. But when they presented their fears to a court-appointed social worker, whose job it was to assess the family, it was Erin’s motivations that were questioned, and her parenting criticised.
In 2014, two months before the full custody hearing was due to be heard, the Family Court suddenly made interim orders for John to have sole custody. Police were directed to enforce the orders, and both children were prohibited from having contact with their mother.
“So we fled,” says Erin. After they were stopped at the airport trying to leave the country, Erin slipped the authorities, drove the children down south, and disappeared. John went to the media, appealing for information about his missing children. He said he loved them very much, and couldn’t understand why, after their amicable separation, his ex-wife had disappeared with them.
Now under arrest, Erin sat with her children in the police station, and tried to explain to the officers why they had run. By chance, her daughter had just finished writing a protest letter. Erin handed the letter to police, and asked them to read it.
“My name is […], and I am scared of my dad,” it began. “I have seen him in a rage throw my brother across the room. He has held a knife to my mother’s throat telling her how easy it would be to cut it … and the court has given me to him. I have tried to tell all the legal people involved how scared he makes me but I am too young for anyone to listen …”
In a recording of the letter, her unsteady voice becomes indignant. “At what point do I become old enough? I want to … think that somewhere in the cosmos is a place where I am valued and safe. I don’t want to be the next Luke Batty … Please, please help.”
That afternoon, the police drove Erin and her kids to a nearby town, so Erin could front a magistrate on criminal charges of abduction. There was one last chance to say goodbye, and then the children, distraught, were taken away.
That was earlier this year. Neither Erin nor anyone she knows has been allowed to contact her children. The next Family Court hearing isn’t far away. Erin’s legal advice is that, because she ran, she doesn’t stand a chance.
Even its most ardent critics wouldn’t claim the family law courts have an easy task. Child custody cases can be wickedly complex, especially when one or both parents are alleging abuse. Making the wrong decision can be devastating; children may be ordered into the care of an abusive parent, or prohibited from seeing a safe and loving one. They are not easy decisions, and they require great skill and understanding to get right.
Such skill and understanding, however, is dangerously inconsistent across the family law system. This has long been the case – for 15 years, studies have revealed the courts’ failure to reliably detect and comprehend abuse. In these studies, countless victims (mostly mothers and children) recall being disbelieved by judges, court staff, family assessors – even by their own lawyers.
Mothers who seek no-contact orders (known as “no-contact mums”) are warned that they risk being viewed as a hostile parent, which could lead to them losing care of their child altogether. A parent’s record of violent offending may persuade the court to prohibit contact, but perpetrators aren’t always so obvious: they often look like decent, high-functioning people.
In an alarming number of cases, no-contact mums who’ve raised allegations of child abuse have had their child removed and placed with the alleged abuser. Court orders have restricted these mothers to a few hours per week with their child at a family centre, where they must pay a stranger to supervise them.
Twenty years ago, it was “extremely rare” for a mother to lose care of her children for alleging child abuse, says Professor Patrick Parkinson, former chair of the Family Law Council (an advisory body to the federal attorney-general). Today, he says, it is all too common. “I’m seriously worried about this trend. They are based on a certainty about what has occurred which is not [always] justified by a serious examination of the facts.” This dynamic is so entrenched, that “some lawyers now tell their clients, ‘If you make these allegations, you risk losing the care of your child.’”
This doesn’t marry with public perception. Stories about distressed fathers who’ve lost access to their children are legion, like the aggrieved father who protested atop the Sydney Harbour Bridge, or the fathers who’ve ended up killing themselves – or their own kids. Typically, these stories have two villains: the Family Court, which is in the thrall of the feminist lobby, and the vindictive mothers who will do anything to prevent a dad from seeing his children.
Fathers’ rights groups have been cultivating this narrative for decades. They’ve been very effective: a 2013 VicHealth survey found 53% of Australians believe women in custody battles often make up or exaggerate claims of domestic violence to improve their case. Before I began researching this story, I did too.
Forensic psychiatrist Carolyn Quadrio, a medico-legal expert on domestic violence and child abuse, says this popular belief is a myth: studies commonly show false abuse allegations comprise only 10% of the total. Furthermore, fathers are just as likely to make them.
Within Australia’s Family Court, opinions on false allegations differ significantly. In 2013, retiring Justice David Collier said mothers were increasingly fabricating child sexual-abuse allegations to stop fathers seeing their children. “I’m satisfied,” he told Fairfax, “that a number of people who have appeared before me have known that is one of the ways of completely shutting husbands out of the child’s life.” Privately, a retired Family Court justice said Collier’s comments were “unfortunate”, and another said that in his experience it was “uncommon” for parents to raise false abuse allegations.
There’s no doubt that some good fathers have been falsely accused of abuse, and dealt with unfairly by the family law courts. But the concerted campaign by fathers’ rights groups to convert these exceptions into the rule has been so successful, it may now be undermining the Family Court’s ability to keep children safe.
Family violence experts say the situation is so dire they want the entire system investigated. The Australian of the Year, Rosie Batty, told the recent Senate inquiry into domestic violence that the Family Court is her “biggest area of concern”. Speaking to the Monthly, Batty said she and other domestic violence advocates are “swamped” with calls for help from victims who say they’re met with suspicion and even derision when they bring concerns about their children’s safety to the courts. “If we were to properly investigate what is happening in the family courts,” she says, “we would be horrified.”
It wasn’t always this way. In 1975, the new Family Court was a big win for the nascent women’s liberation movement, which had just celebrated the opening of Elsie’s, Australia’s first domestic violence refuge. The Family Law Act 1975 enabled victims to divorce their husbands affordably and quickly. Demand for women’s shelters spiked: by 1979, there were more than 100 government-funded refuges in Australia.
From the beginning, men’s rights groups decried the Family Law Act for emboldening spiteful wives, and accused the Family Court of being biased against men. Despite research showing that the involvement of a judge in a custody case increased the likelihood of a favourable outcome for a man, the claim stuck.
Tensions literally exploded in the early 1980s, when the Family Court was rocked by a shocking series of bombings and assassinations. The blame, according to some in the media, lay at the feet of the court, not the assassin. After the killing of Justice Ray Watson’s wife, Pearl, the Sydney Morning Herald editorialised that some would feel “there must be something seriously wrong with the Family Court system for such an outrage to occur”. The Bulletin, under the headline ‘Family courts – too much of a revolution?’ wrote that the attacks “exposed serious flaws in our divorce machinery”. In the months following, the then attorney-general, Gareth Evans, wrote to several fathers’ rights groups, saying he would welcome their suggestions for change.
In its waning days, the Keating government did make major changes to the Family Law Act. Where previously it was considered in the child’s best interests to live with their primary caregiver, in 1995 the Family Court was assigned a new guiding principle: children now had a right to regular contact with both parents. To counterbalance what one researcher termed “equality with a vengeance”, another principle was introduced: the need to ensure the child’s safety from family violence.
By 2000, these reforms had in effect “turned back the clock” on Family Court responses to domestic violence, according to legal practitioners quoted in an extensive study by the Family Court of Australia and the University of Sydney. This study found that the “safety from family violence” provision had done nothing to dissuade abusive fathers from believing they now had a right to their kids; fathers who would never have even tried to get access before were now being encouraged to fight tooth and nail.
This study was also one of the first to report that domestic violence victims were being pressured by their lawyers to sign consent orders, despite fearing for their children’s safety.
In this short period, the “family law ‘system’ tilted more and more against women, either by accident or design”, according to family law academics Stephen Parker and John Dewar. The success of a mother’s case, they wrote, now depended on whether she was willing to support ongoing paternal involvement. In 2007, Rae Kaspiew (now at the Australian Institute of Family Studies) found the same: there were very limited circumstances in which a mother could challenge ongoing paternal involvement, “except in cases where the evidence of severe violence was clear-cut”.
Evidence of child abuse is rarely clear-cut. When a parent molests a child they go to great pains to keep it secret, and often the only mark they leave is on the child’s psyche. The child’s disclosure is often the only available evidence, but that can be hard for authorities to verify: it’s common for a child to disclose abuse to someone they trust, and then deny it when they’re questioned by strangers.
Such was the case with Emily and her son, Alex. When Alex was three, Emily began to suspect her husband, who’d been violent towards her for years, was also sexually molesting their son. Her suspicion was triggered by several incidents, like the time Alex tried to kiss her “like a man”, because that’s the way his dad kissed him. As her suspicion gradually firmed into conviction, she left, taking Alex away to live with her mother. One night several months later, in 2006, Alex curled up in a ball one night and repeated in a singsong voice, “Daddy, you can’t rip my bottom or take me away anymore.” When Emily took Alex to the police station, he said his dad hadn’t touched him on the bottom. But two months later, Alex told staff at his school that he wanted his father dead or in jail, that he hated it “when he kisses me or hugs me or licks me”, and that he was “special” because of what his daddy did to him. In an interview with child protection, Alex didn’t disclose sexual abuse, but said he didn’t want to see his father because he was a “bad man”.
When Emily filed abuse allegations with the Family Court, Alex’s father denied them, and counter-alleged that her discipline was too strict. To assess both parents’ allegations and their relationship with Alex, a judge requested they find a “single expert” to prepare a report for the court.
Single experts are used routinely in custody cases where abuse is alleged. They are generally child psychiatrists or psychologists who specialise in medico-legal work, and are regarded by judges to be honest, independent witnesses, particularly because they’re usually selected – and paid for – by both parents. (Where parents can’t agree, the court will choose the single expert for them.) When preparing a report, the single expert will consider evidence from sources like child protection and police, and may interview friends and relatives. They then interview each immediate family member, and observe how the parents and children interact with each other, typically in a single session. The single expert will then provide an opinion on parenting arrangements, and may even make recommendations on how the court should order the parents to behave.
Single experts are not easy to come by – it’s difficult work, and few are willing to do it. “In any given city there may be only five or six experts prepared to do these reports at all,” says Patrick Parkinson. “They are cross-examined – sometimes fiercely – by lawyers. That’s not a pleasant experience for any doctor to go through.” Parkinson says this small group of professionals carries a huge amount of influence, due to the “hierarchy” of expertise in the Family Court. “At the bottom there are social workers, who I’m afraid are not often given the credence their expertise deserves. Police officers have slightly more credibility; psychologists, more credibility again; but the gods of the Family Court are psychiatrists,” he says. “Enormous weight is put upon their recommendations because of their long years of training, even though it may not be specific [to] discerning whether a child has been abused.” As expert witnesses, single experts operate under immunity, which means they can’t be identified for their work on any particular case.
The single expert assigned to Emily’s case wrote that she presented in a “self-absorbed manner” and had an “over-valued idea” that Alex had been abused. He noted that the father’s two former wives had also separately accused him of sexually abusing their young children, both under five. This was “hard to dismiss”, but he could see nothing in his assessment of the father or his relationship with Alex that confirmed sexual abuse. Alex’s “features of trauma”, he believed, were instead caused by a “toxic relationship” with his mother, who overloaded Alex “with anxiety and the demands of the parental conflict”. If Alex continued to live with his mother, the single expert observed, it was unlikely he would have a relationship with his father. In a separate investigation instigated through the Family Court, child protection also concluded there was no risk of Alex being harmed by his father.
In 2006, as Emily’s case was waiting to be heard, the Howard government introduced further controversial reforms to the Family Law Act. Among them was the new “friendly parent” provision, which mandated judges to consider the willingness of each parent to encourage a close relationship between the child and the other parent. Parents hoping to raise abuse allegations in the family law courts now faced what former Family Court judge Richard Chisholm termed “the victim’s dilemma”: abuse allegations could be viewed as vindictive or punitive, and consequently, a judge may order that the child be placed with the perpetrator for longer periods, to protect them from the other parent’s “alienating” behaviour.
In 2007, just after Alex turned six, a Family Court judge made just such an order. Emily can still remember the last thing she said in court. “I could see I was being painted as this terrible mother. In my last statement to the judge, I said, ‘If you have to take Alex away from me, please don’t give him to his father.’ My lawyer told me later that was the moment I lost my son.” The Family Court ordered Alex to be removed from his mother’s care, and placed with his father. Emily was prohibited from seeing Alex for three months; for the next year, she was allowed to see him for one hour a week at a supervised contact centre, and wasn’t able to care for him at weekends until Alex turned ten.
Outcomes such as this were soon considered not only possible but likely: one fifth of all women who accessed the Family Court between 2006 and 2010 reported feeling “forced” or “bullied” by their lawyers into agreeing to equal-time parenting arrangements, out of fear they could lose their children.
That’s what happened to Tina. She had left her abusive husband, Peter, 15 years ago, when their daughter, Lucy, was two, and was granted a three-year apprehended violence order (AVO) against him. When Peter took Tina to the Family Court, the sharp-eyed presiding judge warned that Lucy was in danger of becoming his next victim. He ordered that Peter’s access be supervised and, if his behaviour didn’t improve within a year, access should cease altogether. When that year was up, however, Tina’s lawyer advised her to consent to unsupervised access; if she didn’t, the father would take it back to the Family Court and, depending on the judge they got, he could end up with more contact than she’d want. Tina, agreeing it probably was best for Lucy to have a relationship with her father, relented.
Five years later, at a personal-development class, Lucy learned for the first time about her “no-no zones”. “It suddenly clicked with me at eight years old that the things that were happening in my household shouldn’t be happening,” says Lucy, now 18. That day, she told a school counsellor her father touched her in ways she didn’t like. She’d never thought to say anything before, because she thought it was part of a “special father–daughter bond”. “I wasn’t supposed to speak about it,” says Lucy, “because it would ruin the secret.”
When Tina applied to the Family Court for a no-contact order, the judge requested an assessment from a single expert. When the expert interviewed Lucy alone, she told him that her father used to touch her in her “private parts”, would often sleep next to her, and that she remembered waking up feeling “all sticky”. When the single expert interviewed Lucy and her father together, he asked if she was worried about her father touching her “in a bad way”. Lucy avoided the question. He asked again. “It’s unnerving – you don’t want to tell, because he’s the one who’s doing it!” Lucy explains. “And he’s sitting there staring at you the whole time.”
In his report, the single expert observed that Lucy appeared “very guarded” with her father, but decided this was because she felt pressured by her mother to reject him. This same pressure, he concluded, had led Lucy to allege abuse in the first place. The expert portrayed Tina as “anxious”, “over-protective” and “possibly suffering from psychosis”, and reframed the history of domestic violence between her and Peter to a “convoluted and strained” relationship.
In his recommendations to the judge, the single expert advised that Lucy should continue spending regular weekends and half the school holidays with her father, and that Tina should get counselling to help her support the father–daughter relationship. The final recommendation doubled as a warning: “Should the mother not be able to support a relationship between the child and the father or if further spurious allegations of sexual abuse arise, then I would recommend that the mother have a close psychological assessment and that the child be placed in residence with the father.”
Tina was mortified. “This report writer shook our hands, looked my daughter in the eyes, and said, ‘We will help you.’” Her lawyer said that, in the face of such a definitive report, persisting with the allegations could mean losing custody of Lucy altogether. “I considered running away with her, but I had another young child at the time,” says Tina. On her lawyer’s advice, Tina signed consent orders granting Peter unsupervised overnight access.
Lucy was scared into silence for years. “The abuse obviously got worse. It went from being daddy’s little secret, to just full on … just awful abuse,” she says, tripping over her words. “It became very violent, and if I wouldn’t comply, it was brought up that I wasn’t allowed to speak about it, so maybe I should just shut up and let it happen, and no one would believe me anyway.
“It did come to the stage where he was in fact having sex with me, and I got my period quite young, so it was scary to the point where I didn’t even know if I’d come home pregnant.”
When Lucy was 13, Tina received a letter from Lucy’s father, relinquishing custody. He didn’t give any reasons. “I think it was because I was old enough to be believed,” says Lucy. Even though her case didn’t end up going to trial, she feels like the whole system betrayed her. “I’ve been asked, now that I’m 18, if I want to go back and finish the report with the police,” she says. “I’m like, what’s the point? Are they going to believe me? I still don’t have any more evidence than I did back then.”
Reading court decisions from this period, it seems some judges believed an abusive father was better than no father at all. One 2007 Family Court judgement stated that “The consequences of denying contact between the abusive parent, usually the father, and the child may well be as serious as the risk of harm from abuse … There is no presumption or a priori rule that even gross misbehaviour such as child sexual abuse … puts up an insurmountable barrier in the way of having contact with a child victim.”
In a 2010 case, a father already on the sex offenders register for possessing child pornography was fighting for equal care of his daughters, aged eight and ten. The mother was requesting he have supervised daytime contact only. Their eldest daughter had told child-protection workers that she loved her father and didn’t want to upset him, but wasn’t comfortable staying over at his house, particularly on her own. When asked why, she referred them back to what she’d told the police, but became “extremely distressed” when pressed to elaborate. She repeatedly pleaded with child-protection workers not to repeat what she’d said to her father.
In his judgement, the Family Court justice accepted that the father had demonstrated “inappropriate” affection towards his daughter. He also believed the mother’s allegation that several years earlier she had seen the father with an erection, leaning over and touching his five-year-old stepdaughter while her pyjama pants were down, and he accepted that the mother delayed reporting it for years because she was afraid of the father. The justice also found the father had been intimidating during the marriage, and “manipulative and disingenuous” in his evidence.
Despite all this, the justice ordered that the daughters spend alternate weekends and half the school holidays with their father. Overnight stays were to be supervised by an “adult friend” of the father, to “address” the elder daughter’s nervousness, and the daughters should share a room for “mutual support”.
These cases reflect a bizarre paradigm that was emerging in the Family Court: a parent perceived to be alienating their child against the other parent was in some cases being treated as a greater threat than a parent with a record of abusive behaviour and child sex offences.
By 2012, three more inquiries had found that the Family Law Act wasn’t protecting victims of family violence. The then attorney-general, Nicola Roxon, said the research clearly showed that parents were afraid of reporting abuse, and announced another set of reforms to the Act. The Gillard government removed the “friendly parent” provision, expanded the definition of domestic violence, and broadened child abuse to include exposure to domestic violence, on advice from the Australian Law Reform Commission. On paper, the Family Court now had a clear mandate to prioritise a child’s safety over their right to a meaningful relationship with both parents. The changes had an immediate impact: in the Family Court, 470 parents filed allegations of child abuse or family violence in 2014–15, compared with 334 in 2011–12 – a 41% increase.
Yet despite these positive changes to the Act, the same stories persist. Parents are still warned against raising abuse allegations, and pressured by their lawyers to sign consent orders they fear will endanger their children. Victims are still finding that both their disclosures and those of their children are diminished or disbelieved. In research for this story, the same themes were repeated time and again: domestic violence victims being admonished by judges for bringing up “ancient history”, and urged to forget their grievances and “think about their children”, as though domestic violence ends when the relationship does.
When domestic violence victims present at the Family Court, they are already at a significant disadvantage. Leaving an abusive relationship can be like escaping from captivity – victims emerge disoriented and afraid, and have often been reduced to a state of helplessness. Recalling details of abuse – even years later – can trigger post-traumatic stress, and render them anxious and emotional. Tragically, this can undermine their credibility as witnesses.
It’s even worse if they believe their abuser is also a threat to their children. As Professor Kelsey Hegarty told the Victorian Royal Commission into Family Violence this year, victims in these circumstances can look “mentally unwell”, which can then be used against them. “In contrast,” she said, “the perpetrator can often look very calm and rational.” The perpetrator – if unrepresented, as are so many litigants – is also allowed to cross-examine their victim.
Even if victims present well, their evidence can sound implausible. Some of the signature traits of domestic violence and child abuse are inherently counterintuitive. It doesn’t make sense that a hard-working family man could go home and do such things. It doesn’t make sense that a victim will return to their abuser again and again (seven times on average). It doesn’t make sense that, having escaped, a victim may go out of their way to encourage the abuser’s relationship with their child, only to change their mind (after discovering the abuser is also a danger to their child). Nor is it logical that child sexual-abuse victims may still love their abuser, and show no fear in their presence. Or that a child may disclose abuse to one person, then deny it to another.
Domestic violence is core business for the Family Court, and yet there’s little to no mandated training on it for judges, lawyers or judicial staff. There’s not even a required level of expertise in it for the single experts and in-house family report writers who assess allegations of abuse. This alarming deficit was highlighted in a recent paper by Matthew Myers, now a judge on the Federal Circuit Court (where the majority of family law cases are heard): “Those delivering ‘expert evidence’ in Australian Family and Federal Magistrates courts,” he wrote, “rarely have the training, knowledge and skills needed to do this type of work adequately.”
Court experts’ opinions are enormously influential. If they decide the allegations aren’t true, the alleging parent’s case is considered so damaged that Legal Aid will often withdraw their legal representation, because such support is predicated on the case’s potential for success. If that parent wants to challenge an expert’s findings, they have to find another lawyer or cross-examine the expert themselves. Many parents end up simply consenting to an expert’s recommended parenting orders, as happened with Tina and her daughter, Lucy.
Any suggested lack of expertise in this area greatly concerns Magistrate Anne Goldsbrough who, as Australian Law Reform Commissioner, oversaw recommendations that every Australian judicial officer have ongoing family violence education. Goldsbrough was the only official to identify that Greg Anderson posed a deadly threat to Luke Batty and his mother, Rosie, after Rosie testified in Goldsbrough’s court that Anderson had held up a knife and said, “This could be the one that ends it all.” Goldsbrough was so concerned by Rosie’s testimony, she ordered there be no father–son contact, and suspended the existing family law contact orders. That intervention order was later relaxed by another court, after Anderson reapplied for contact. The tragedy of Luke Batty’s case is that a succession of police, magistrates, counsellors and child-protection workers failed to recognise the risk factors that had so alerted Goldsbrough. Ten months after Goldsbrough’s original order, Anderson murdered Luke with a cricket bat and a knife after cricket practice in Tyabb, south-east of Melbourne.
Goldsbrough, a former family lawyer, says that without education on the dynamics of family violence, myths can calcify into accepted wisdom. “It’s a common misunderstanding among many – including some in the family law system – that mothers use intervention orders as swords, not shields,” says Goldsbrough. “Anybody in this job will tell you false allegations are incredibly rare … Intervention orders are made based on evidence. Is there evidence that family violence has occurred, and that it’s likely to occur again? Yes there is? Then we can make an order.”
If you’re a parent making a genuine allegation of abuse in the Family Court, you could be fortunate: your judge may understand family violence, your family report writer may be trained to recognise it, and your lawyer might believe you. Many court decisions reflect this. But too often these parents are instead accused of overloading their child with anxiety, and destroying their relationship with the other parent. The most recognised (and controversial) term for this is “parental alienation”, though it’s not always referred to so explicitly, due to its inflammatory nature. Accusations of parental alienation in its various guises, however, have become a common counter-allegation made by parents accused of abuse – especially when the accusations have been made by a child.
The notion of parental alienation first gained currency in the 1980s, and was the brainchild of American child psychiatrist Richard Gardner. He wrote extensively on Parental Alienation Syndrome (PAS), which supposedly affected children who’d been “brainwashed” by one parent to denigrate or allege abuse against the other. Gardner identified several symptoms in children suffering from PAS: using foul language against the rejected parent, insisting that they alone came up with the allegations, and supporting and protecting the non-accused parent. Gardner claimed that PAS was found especially in custody cases involving child sexual abuse, in which, he said, the vast majority of allegations were fabricated.
The cure Gardner proposed for PAS was radical: force the child away from the alienating parent (most often the mother) and have the child placed with the alleged abuser (most often the father). He also recommended severing contact between mother and child for months at a time, and even encouraged jail time for mothers who persisted with abuse allegations.
Despite publishing no statistical evidence to prove his theory, Gardner became known as the “guru” of child-custody evaluations in the United States. He testified in more than 400 court cases, and PAS became popular with family lawyers across the UK, Canada and Australia. Though he believed most sexual abuse allegations in custody cases to be false, Gardner did believe child sexual abuse occurred, and self-published several books on the subject. In his 1992 book True and False Allegations of Child Sex Abuse, he condemned what he called “sex-abuse hysteria”, and outlined his staunch opposition to society’s “overly moralistic” and punitive approach to paedophilia: “It is because our society overreacts to it that children suffer.”
In this book, Gardner advised therapists treating child sexual-abuse victims to work with the whole family. “Older children may be helped to appreciate that sexual encounters between an adult and a child are not universally considered to be reprehensible acts,” Gardner wrote. “The child might [also] be helped to appreciate the wisdom of Shakespeare’s Hamlet, who said, ‘Nothing’s either good or bad, but thinking makes it so.’” If the mother is reacting to the abuse in a hysterical fashion, or is using it as an excuse for a campaign of denigration, then the therapist should help her appreciate that such behaviour is “ubiquitous”, and assist her in becoming more sexually responsive. This “may lessen the need for her husband to return to their daughter for sexual gratification”, Gardner advised. The father, on the other hand, should be reassured that “there is a certain amount of paedophilia in all of us”, and it “has been considered the norm by the vast majority of individuals in the history of the world”. The father, however, “must learn to control himself if he is to protect himself from the Draconian punishments meted out to those in our society who act out their paedophilic impulses”.
Gardner stood by his theories until his suicide in 2003. By then, PAS had been discredited as a “syndrome”, and disavowed by the Family Court of Australia. Although Gardner’s syndrome is not referred to directly, there have long been concerns that it is being used in substance. Child psychiatrist Chris Rikard-Bell is one of the most prolific single experts consulting for the Family Court. In his 25-year career, he’s evaluated around 2000 families, and is regularly called on in cases featuring “highly conflicted” allegations of physical and sexual abuse. Like Gardner, Rikard-Bell says that “about 90%” of child sexual-abuse allegations he assesses are false.
When this figure was quoted to Carolyn Quadrio, who regularly gives single-expert evidence in the Family Court, she was “astonished”. “Gardner also suggested it was 90% false allegations,” she replied. “He had absolutely no data to back it up.” Conversely, says Quadrio, “something like 80–90% [of allegations] have a reasonable foundation to them when they’re investigated.”
After a wide-ranging conversation about his methods, I asked Rikard-Bell which experts on child sexual abuse he referred to when forming an opinion of a case. “It’s a very difficult area to get objective information and to carry out controlled trials,” he said, “so the scientific literature is really a combination of looking at very experienced, well-regarded people in the field.”
Is there anyone in particular? “Gardner, for example, looked at Parental Alienation Syndrome,” he replied. “There’s been a lot of debate about the use and misuse of PAS, but clinically often we see children who have become distanced from the other parent under influence, and so develop a degree of alienation. I think it’s a useful concept in some circumstances, but it’s sometimes overused and misused.”
On this point the Family Court’s deputy chief justice, John Faulks, agrees. “So far as [PAS] is concerned, I wouldn’t have thought anyone was relevantly suggesting that was still a psychologically valid concept,” he says, “but that does not in any way suggest there aren’t situations in which parents do engage in a process of trying to alienate the children from the other parent.”
Parental alienation may be a valid notion, but what of Gardner’s syndrome specifically? When I asked Rikard-Bell if he thought Gardner had been unfairly maligned, he said Gardner was still “very relevant” but PAS, “even though it is often useful”, had created “more debate than was helpful”. Rikard-Bell said he does assess “the degrees of alienation Richard Gardner talked about … mild, moderate, or severe, and that may lead to an appropriate response from the court”.
In 2008, Brisbane clinical psychologist William Wrigley was sanctioned by the Queensland Psychology Board for referencing PAS in evidence to the Family Court. On a website moderated by fathers’ rights advocates, the Family Law Web Guide, this case was presented as cautionary: “Consider carefully before you use the term PAS in an Australian family law court; especially using the word ‘syndrome’. Better perhaps to talk about ‘brainwashing’, ‘extreme alignment’ or just ‘parental alienation’.”
Advocates have for years raised concerns that PAS is influencing some single experts working in the Family Court. Whether this is widespread or not, it’s perhaps more concerning that Gardner’s “cure” – removing the child from the alleging parent and placing them with the alleged abuser – is still being prescribed by judges.
In 2014, a Family Court judge ordered that two children under eight be removed from their mother’s care, after she raised sexual abuse allegations against the father. The mother’s allegations were based on statements made by her daughter – to her, the police, the maternal grandparents, child protection and a counsellor – that she’d been asked to “rub” and “look” at her father’s “private parts”.
In an extraordinary departure from standard procedure, the judge made these orders in an ex-parte hearing (meaning the parties to the case weren’t present) in the judge’s chambers. Ex-parte hearings are reserved for situations where there’s an immediate risk of harm or flight, neither of which existed. This secret hearing was not recorded, and occurred on the recommendation of the single expert assigned to the case.
With nobody present who would contest the single expert’s findings, the judge quoted them extensively in her judgement:
I don’t believe the sexual abuse on balance is likely to have occurred … this has been 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. I recommend this happen immediately and without notice.
The single expert did not have any concerns about the mother’s parenting capacity; his major concern was that she wouldn’t be able to support her children’s relationship with their father. The judge agreed this was serious and potentially irreparable, and reason enough to remove the children without warning. Quoting the single expert again, the judge noted that if the children were removed in the presence of the mother and maternal grandparents, their “great emotional responses” could trigger child protection and police being involved, which would make it impossible to remove the children. The judgement prohibited the mother from seeing her children for two weeks after they were removed. Following that, her access was to be restricted to a couple of hours every weekend, monitored by a paid supervisor.
The following day, the two young children were fetched from class and told they were going home early. At head office, they were delivered into the custody of their father.
“The day the children were taken,” their mother recalls, “I had gone to the school and talked very briefly to the school principal to say, just as a heads up, we now have a final trial date, and this is the gist of what [child protection] has said.” Child protection had recently filed an affidavit with the Family Court, advising it believed one or both children were at risk of sexual harm in their father’s care. “Within an hour and a half of getting home, I had another phone call from the school, saying the most shocking thing has happened – almost as soon as I had left, two officers arrived and presented court orders that the children were to be immediately removed to go and live with the father.” The mother says this staff member reported that when the children realised what was happening, he saw “a look of betrayal” on their faces, and he hoped they would be able to forgive him.
The Monthly requested an interview with the school, but they declined, citing legal threats from the father’s lawyer. The children remain with their father.
In what seems like an obvious oversight, there is no formal process to review a child’s wellbeing after parenting orders are made. If a parent has run out of resources or energy to keep fighting the case, their children have little choice but to obey court orders. If they’ve been ordered into the care of an abusive parent, this can be diabolical.
Alex was seven when he was removed from the care of his mother, Emily, and ordered to live with his father. “That one decision the judge made ruined my whole childhood,” says Alex, now 14.
Alex says that for as long as he can remember, his father subjected him to regular physical and emotional abuse. “One time, I was brushing my teeth, and he just walked in the door and slapped me really hard across the face, for no reason.” Alex says he tried “again and again” to tell people what was happening, but nobody would believe him. “I was too small.”
Two years ago, Alex breached the court order and ran away to his mother, threatening to kill himself if he was forced to go back. When his father filed recovery orders, the judge requested that a single expert assess Alex’s allegations. The single expert concluded that Alex’s “suicidal feelings” were stress-related, and he didn’t believe Alex really wanted to die. He recommended the judge return Alex to his father and, to help them reconnect emotionally, Alex should not contact his mother for a month. If he fled again, “the mother should be held responsible and incarcerated”. On the single expert’s advice, the judge issued a recovery order, and suspended contact between Alex and his mother for a month.
The next morning, Alex rode the train to his older brother’s house, and they went to the police. “There was a very, very good police officer who said he would do anything he could … but he couldn’t do anything,” says Alex. Police records show that at 8.30 pm Alex’s father arrived at the station with a recovery order. “They actually dragged me to the police car, put me in and drove me back to my dad’s house,” says Alex. Every day for the next three days, Alex ran away to the police, and each time they had to return him to his dad. “The Family Courts, they overrule everyone,” he says. “Even the police – the police – couldn’t protect me!”
Two weeks later, Alex fled again to the police. This time, they applied for a provisional AVO to protect Alex from his father. In their application, the police wrote that Alex gave evidence that two nights previous his father had forced him to stay at a party until 2.30 am, and after Alex asked repeatedly to go home his father had called him “a fucking shit” and physically assaulted him. Alex’s father denied the incident, and said they were home by 11.30 pm. A child-protection report recorded Alex “shaking and crying when discussing living with his father”.
With the case set to go back to the Family Court, child-protection officers needed to find somewhere else for Alex to live in the meantime. He wanted to stay with his maternal grandmother, but his father, who still had sole parental responsibility, refused. When Alex rejected his father’s suggestion to stay with a family friend, the father consented to Alex staying in a refuge for two months, adding “that might give Alex some time to have a think about things”.
“For that whole two months, I couldn’t speak to my brother or my mum – no phone calls, no nothing,” says Alex. Back in the Family Court, child protection filed an intervention, seeking orders for Alex to live with his mother. “Finally, after all those two months, there was another court order made that I get to live with my mum,” says Alex, “and I’ve been living with my mum happily ever since.”
Alex has formed a support group for kids who’ve been through the Family Court, and he is campaigning for the rights of children to be heard in the court process. “I really, really don’t want children to get taken away from their mothers or fathers and given to the abusers,” he says. “I’m doing this so their childhood doesn’t get destroyed like mine did.”
With children as young as 14 campaigning against the family law system, and Rosie Batty framing it as her primary area of concern, it’s fair to say the Family Court has some serious issues to consider. Some people I spoke to within the system pointed to chronic under-resourcing as the court’s chief problem. The Family Court’s chief justice, Diana Bryant, declined the Monthly’s interview request, but told ABC’s Radio National last month that the family law courts are in urgent need of more funding, especially to assist judges assessing at-risk families for interim parenting orders. Interim orders can be in effect for 12 months or more, but are decided in hearings shorter than two hours, with scant evidence apart from the parents’ own submissions. Inexplicably, since the funding has already been allocated, Bryant said the federal government had also neglected to replace several retired judges across the family law courts, which is creating significant – and risky – delays in an already overburdened system.
But other observers say these problems can’t be fixed by simply injecting more resources. They say domestic violence education is urgently needed. At the very least, it’s clear that single experts – whose evidence can be so influential – should have to meet minimum standards of expertise in domestic violence and child abuse.
There are promising signs of change. Even fierce critics of the Family Court say it’s starting to recognise these shortcomings, and becoming more open to consultation. But openness alone will not change the fact that every week parents who fear for their children’s safety are being pressured into making potentially tragic compromises.
As the true extent and nature of domestic violence becomes more widely understood, pressure will mount on the justice system to improve its ability to respond. Prime Minister Malcolm Turnbull says a “big cultural shift” is required to achieve lasting change. But such change can’t be left to the citizenry alone. True cultural change must occur within the justice system itself.
* Some names and identifying details have been changed.