Andrew Murray (WA, Australian Democrats) Share this | Link to this | Hansard source

Before I commence my own adjournment speech, I want to congratulate Senator Hogg on raising in his adjounment speech the issue of identity for donor-inseminated children. I am unusual in having met large numbers of people who do not know their identity. The vast majority of Australians who know their identity cannot understand what trauma it is for a person to not know their origin, where they come from and what their biological and genetic origin is. So I congratulate Senator Hogg for drawing attention to this very big, difficult and important issue.

For my adjournment speech today, I turn to the troublesome problem of child sexual assault in the context of the family and the Family Court. The reason for doing so is that for some years now activists against child abuse have contacted my office complaining of how ill equipped the Family Court is when assessing child abuse cases. The essence of the concern relayed to my office is that the Family Court—as protector of ‘last resort’ for many abused children—is failing to consistently act ‘in the best interests of the child’.

Some trial documents are shocking to read because of judgements that have ignored the expert evidence of doctors and specialists in the field of child abuse and that have delivered children into the hands of apparently abusive fathers. They are also shocking to read because of the continued behaviour of defence lawyers who think that earning a dollar and getting someone off is more important than what they have done to that child and the future of that child.

Tony Koch reported this reality in an article titled ‘Family Court “putting children last”’, published in the Australian on 29 August 2005. He wrote of how a growing list of medical experts and specialists refuse to become involved in Family Court litigation because they feel that their evidence is basically ignored. He cited the respected chairman of the national body Kids First Foundation, Dr David Wood, who stated:

I know a number of medical experts who ... are not prepared to be part of an adversarial game that seeks just to discredit them so the parent with the most aggressive and expensive lawyer wins. This is a Family Court that should be looking at the best things for children. This is not about the parents. It is about children, and I do not believe the current system cares about, or seeks, that outcome.

To understand this state of affairs requires an understanding of a set of circumstances that lead defence lawyers to use many stratagems, one of which I want to comment on—and that is the stratagem termed the parental alienation syndrome.

The circumstances are these. Every parent’s worst nightmare is the discovery that their child has been abused, especially if that abuse is sexual assault. This nightmare gets even worse if the perpetrator happens to be the other parent. Inevitably, separation follows, with custody battles often being played out in the Family Court. And, inevitably, the allegations of abuse are made against the father.

It is against this background that the theory of parental alienation syndrome emerges. The brainchild of American psychiatrist Dr Richard Gardner, it is used to gain advantage in child custody litigation. The theory goes like this. To gain advantage, mothers will do everything in their power to alienate the children from the father. An apparently protective parent, the mother will make false and malicious allegations of sexual assault against the father. This is, Gardner argues, achieved by mothers coaching children to say they have been abused by their fathers.

The legal use of parental alienation syndrome has been effectively promoted and flourishes as a defence in the Family Court of Australia, I am advised. However, its use has never been matched by acceptance within the international scientific community. In fact, Dr Gardner’s work has been widely discredited on a number of grounds. Dr Gardner has been criticised for taking the exception and making it the rule. He has been criticised for being sympathetic to abusers. For instance, in his 1991 self-published book titled Sex abuse hysteria: Salem witch trials revisited, he writes at page 118:

... there is a bit of paedophilia in every one of us.

Well, excuse me, there is none in me! This quote and the title of the book indicate a lack of balance when it comes to child sexual assault. I have been told his work is self-published. If that is true, it has not been subject to the peer review that comes from publishing in respected and relevant journals.

Most significantly though, the fundamental assumption that children frequently lie about being sexually assaulted is contradicted by all the major research in this area. However, as the Family Court lacks powers to investigate child sexual assault claims, the reports are that skilful defence lawyers are able to use the pseudoscientific parental alienation syndrome most effectively.

There is also the underlying problem of a deep reluctance to make findings of fact in the Family Court that one of the parties has committed what amounts to a criminal offence. A specialist in family law and child protection, Professor Patrick Parkinson of Sydney University, stated in his address to the 1998 National Conference of the Family Court that this reticence is not found in civil courts overseas. Nor is it a feature of adjudication in the care and protection work of children’s or youth courts around Australia.

However, it is reflected in the High Court’s judgement in M v M that the Family Court should not be distracted from its primary task by feeling a need to reach a conclusion about whether child sexual abuse had occurred. That is all very well, unless you are the child! Granted, this judgement also said the court should not grant custody or contact to a parent if the child would be exposed to an unacceptable risk of sexual abuse. But adept defence lawyers, armed with the pseudoscientific symptoms of the parental alienation syndrome skilfully argue there is no acceptable risk. Additionally, with the policy and cultural shift in favour of equal parenting rights in custody issues, dangerous decisions all too often fail to protect children.

The point is that, if the government has moved to balance the law with respect to both parents in Family Court custody battles and to provide better for fathers than was formerly the case, it also has the obligation to pay attention to any dangers that exist in the present system.

This state of affairs has been recognised by the Family Law Council, and in 2002 it called for the establishment of a national protection unit to investigate child abuse allegations made in the Family Court. Reporting on this recommendation, Adele Horin stated in the Sydney Morning Herald on 3 May 2003:

Unless the Federal Government acts on the recommendations of its key family law body, the Family Court will blunder in the dark, mothers will be treated as liars, and children will continue to pay a high price to satisfy a father’s “right to contact”.

Of course, what she should have said is that ‘some children will continue,’ because, for most, having a father’s right to contact is vital.

Former chief justice of the Family Court, Alastair Nicholson, also recognises the need for changing the Family Court’s adversarial system. On his retirement in 2004, and as reported in theAge’s editorial on 24 September 2006, he suggested that a single court to preside over all matters concerning children is worth considering. The same editorial also points out that, back in 1998, retiring Family Court Justice John Fogarty claimed that the Children’s Court and the Family Court should be amalgamated because they work in virtual ignorance of each other.

These are but two of the many people calling for the removal of child sexual assault cases from the Family Court. It is said that unless this occurs its credibility will continue to diminish among child related professionals. A good start would be for the government to revisit recommendation 17 of the 2005 Senate Community Affairs Committee report, Protecting vulnerable children: A national challenge. This called for the establishment of a national commissioner for children and young people that would drive a national reform agenda for child protection.

The government, however, in its lack of wisdom in this case, would not support this recommendation. A change of heart and a display of political will to tackle child abuse at a national level would be welcomed. The government consistently says that it is a states’ issue, but it is everyone’s issue. We are not seeking for the federal government to take over state rights but to coordinate and lead in this area—and that is a different matter. Should a national commission for children be established, its reform agenda could examine ways to address the allegations of dangerous decisions emanating from the Family Court in child abuse cases. I would even predict that such an announcement would do the government a deal of good in the coming election. It would indicate a more caring, more committed government, leading in an area where fundamental leadership is needed to address those issues which negatively affect children at risk.