by Jess Hill
This was a concerted campaign of political terror unlike anything Australia had ever seen, and yet the blame for these attacks, according to some in the media, lay not with the assassins, but with the Family Court itself. After Pearl Watson was killed, 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’.12 Over at The Bulletin, the sentiment was similar: under the headline ‘Family courts – too much of a revolution?’ it opined that the attacks ‘exposed serious flaws in our divorce machinery’.13 Even the Anglican Dean of Sydney hoped that ‘good could come out of the evil bomb blasts … A review of the Family Law Act is urgent.’14
In its waning days, the Keating government made major changes to the Family Law Act, giving it a new guiding principle: unless it was contrary to the child’s best interests, children now had a ‘right’ to be cared for by both parents, regardless of how involved a parent had been before separation.
To counterbalance what one prominent academic dubbed ‘equality with a vengeance’, the reforms included another amendment:15 judges must consider making an order that does not expose a person to an unacceptable risk of family violence.16 By 2001, however, an extensive study by the Family Court of Australia and the University of Sydney17 found that the ‘safety from family violence’ provision had done nothing to dissuade abusive fathers from believing they had a right to their kids. They had good reason to be confident: even in cases featuring serious levels of violence, orders of supervised contact were becoming far more common, and in cases where family violence was alleged but not proven, unsupervised contact was granted far more readily. As a result, fathers who would not have even tried for access before were being encouraged by their lawyers to fight tooth and nail. And they were winning.
There is a sense in Australia that the Family Court has become another battleground for culture wars between progressives and conservatives. As with most culture wars, participants know which side they are on without having to look at the research. But – again – the research is clear. The Family Court–Sydney University study revealed that the system had ‘tilted more and more against women, either by accident or design’. The success of a mother’s case, it said, depended on her supporting the children’s relationship with the father.
The case of ‘Angela’ shows us what this meant for victims of domestic abuse. ‘I left the house under police protection and went to a refuge and then I moved away,’ she said. ‘But he found me through a Centrelink payment into our old joint account, and he got a court order to have me move back near him.’ Angela said she agreed to unsupervised daytime contact because her Legal Aid solicitor threatened, ‘If you don’t sign the orders, you could lose the kids.’
The Family Court has since made it clear that only exceptional circumstances should prevent an abusive father having contact with his children. In a 2007 judgement, Justice Tim Carmody (who, controversially, went on to become Queensland’s Chief Justice) 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.’18 This is a staggering comment from someone who was, for a time, one of the most powerful judges in the country.
Conclusive evidence of severe violence is rarely clear-cut, especially when a child is alleging sexual abuse. When I began investigating the Family Court, one of the first families I interviewed was a mother, ‘Tina’, and her now adult daughter, whom I’ve called ‘Lucy’. When Lucy was eight, she learned about her ‘no-no zones’ in a personal development class, and then told her school counsellor that her father was touching her in ways she didn’t like. ‘It suddenly clicked with me at eight years old that the things that were happening in my household shouldn’t be happening,’ said Lucy. 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 because it would ruin the secret.’
Tina had left Lucy’s father when Lucy was a baby, after enduring severe abuse. ‘It was very violent,’ Tina says. ‘He’d lay into me while I was holding my daughter, he’d force himself on me constantly, and I didn’t have any access to money – he had control over all cards, all money, all finances.’ When she left, Lucy’s father vowed revenge. ‘He told me that if I left him, he would make my life miserable in any way, shape or form … And he did. He did that and more.’ When the school told her of her daughter’s disclosure, Tina went back to the Family Court to stop contact with the father altogether. To get an independent assessment of the allegations, the judge requested a ‘single expert’ report.
Single experts are used routinely in complex custody cases where abuse is alleged, and their opinions are hugely influential. They are usually child psychiatrists or psychologists who are regarded by judges as honest, independent witnesses, particularly because they’re usually selected and paid for by both parents. (When parents can’t agree, the expert is appointed by the court.) At the judge’s request, the single expert is contracted to write a family report, – which will likely become the most important piece of evidence in the case. To give you an idea of just how influential these reports are: if the family report recommends against the alleging parent, that parent’s case is considered so damaged that Legal Aid may refuse to keep representing them, as their support is generally predicated on a case having a reasonable chance of success.19
To prepare their report, a single expert (or family report writer) will consider evidence from child protection, police and schools, and may interview friends and relatives. They then interview each immediate family member, usually for around an hour, and observe how the parents and children interact. Their report describes the family dynamic and the psychology, background and behaviour of each family member; it assesses any allegations that have been made, and finishes with recommendations for the judge to consider on how best to allocate custody. It’s in these reports that children can have their concerns put before the court. There is little other way for them to be heard – children do not get to testify.
The pool of single experts is shallow. ‘In any given city there may be only five or six experts prepared to do these reports at all,’ says Professor 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 exerts huge influence over custody decisions, mainly due to the ‘hierarchy’ of expertise in the Family Court. ‘The gods of the Family Court are psychiatrists,’ he says. ‘At the bottom [of the hierarchy] there are social workers … Police officers have slightly more credibility, and psychologists more credibility again.’ But nothing matches the power of the psychiatrists.
The family law system doesn’t require single experts to do specific family violence training – being a psychiatrist is considered expertise enough. The problem is, psychiatrists in Australia are, by and large, poorly trained on family violence: a 2018 study – the first of its kind – found that almost half had received less than two hours training.20
Single experts are granted witness anonymity, so they can’t be named for their work on a particular case. After Tina was interviewed by the single expert – we’ll call him Dr X – she felt sure that he would convey her daughter’s allegations and concerns to the court. ‘This report writer shook our hands, looked my daughter and myself in the eyes, and he said, “We will help you.”’ But when Tina received the report, she could barely believe what she was reading. ‘They painted him as gold, and made me look crazy, psychotic.’ In his report, Dr X observed that when Lucy was interviewed alone, she became tearful talking about her father touching her private parts, reported that her father often slept next to her, and that she had woken up one morning feeling ‘a
ll sticky’. To test Lucy’s allegations, Dr X interviewed her with her father present. Without warning, he asked her point-blank whether she was worried about him touching her in a bad way. When Lucy refused to answer, Dr X asked the question again. Lucy avoided the question and instead became angry at her father for ‘letting her cat die’. Dr X concluded that although Lucy’s defiance was a very difficult situation for the father, he ‘appeared to have managed the situation extremely well’.
Lucy, then eighteen, recalled this interview as she sat across from me at her mother’s table. ‘It’s unnerving,’ she said, with an edge of indignation. ‘Like, when Dad’s sitting in the room, you don’t want to tell, because he’s the one who’s doing it! And he’s sitting there staring at you the whole time, monitoring what you’re saying.’
Although Lucy had told Dr X the same things she told her school counsellor, Dr X concluded it was highly unlikely Lucy had been a victim of abuse. Instead, she’d made allegations against her father because she’d felt pressured to reject him by her ‘anxious’ and ‘over-protective’ mother, who was possibly suffering from psychosis – an assessment he made with no psychometric testing or evaluation. In the final section of his report, Dr X made recommendations to the judge. Despite Lucy requesting no contact with her father, he concluded that she had a ‘close, loving relationship with him’. This, wrote Dr X, was the view of her father, who said she enjoyed her time with him, and it had also been confirmed by a church elder. Given that Lucy was ‘benefiting greatly’ from their relationship, Dr X recommended she continue to spend regular weekends and half the school holidays with her father. Tina’s attitude towards the father was ‘unhelpful’, however, and she should get counselling to help her support Lucy’s relationship with him. If Tina continued to press these ‘spurious’ abuse allegations, Lucy should be ordered to live full-time with her father, and Tina should receive close psychological assessment.
Dr X’s assessment was diametrically opposed to the Family Court judgement handed down seven years earlier. In 2000, Justice Graham Mullane had found that Lucy’s father had used her as a ‘hostage in a power play with the mother’ and she needed to be ‘protected from exposure to [his] controlling and abusive behavior’. Several pages of his judgement detail the history of physical, emotional and psychological violence perpetrated against Tina, and he noted a ‘whole pattern of factual material that leads the Court to conclude that the father is a controlling and abusive man’. (In Dr X’s report, the history of domestic abuse was all but eliminated; a passing reference was made to a relationship that was ‘long, convoluted and strained’.) With grim prescience, Justice Mullane had said Lucy herself was in danger of falling victim to her father’s abuse. He ordered the father’s access to be supervised and that, if his behaviour didn’t improve within twelve months, access should cease altogether.
When that year was up, however, Tina’s lawyer strongly advised her to consent to unsupervised access. If she didn’t, the father could take it back to the Family Court and, depending on the judge they got, might end up with more contact than she’d want. Back then, in 2001, Tina was told it was probably best for Lucy to have a relationship with her father, and relented. ‘I carried that guilt for a long time, knowing that I could have stopped contact right there and then,’ Tina recalls, on the verge of tears. ‘I carried the guilt that I was the cause of her being abused. I couldn’t forgive myself.’
Now, with Dr X’s definitive report against her, Tina was panicked. She thought about running, or hiding Lucy with relatives – but in the end felt cornered. Feeling she had no choice – that she may lose custody altogether if she fought it – Tina consented to Lucy staying overnight at her father’s house once a week. ‘I will never forget the first time we had to drop her back to him. I felt physically sick, watching how distressed she was. I didn’t know if she was going to vomit or wet her pants,’ says Tina. ‘She was terrified – absolute, sheer terror.’
Lucy was scared into silence for years. ‘I shut down and pretended nothing was happening.’ In the years that followed, the abuse escalated. ‘It went from being Daddy’s little secret, to just full-on … just awful abuse,’ she told me, 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 [by the court], so maybe I should just shut up and let it happen, and no-one would believe me anyway.’ Lucy spoke matter-of-factly, with an edge of derision. ‘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.’ In considering whether to tell someone, it wasn’t just the court’s reaction Lucy was worried about. ‘Dad threatened that if I did bring it up again, he’d start hurting members of my family. Mum had a new partner at the time who was a father figure to me,’ says Lucy. ‘Dad said he knew where he worked, and that [if I told] he wouldn’t come home one day.’ Eventually, when she was thirteen, Lucy’s father relinquished his custody claim, without warning or explanation. Lucy says she thinks it’s because she was old enough to be believed.
It’s taken years for Lucy to feel safe again. ‘It’s hard to learn how to be a normal human being after that. Coming out of such an abusive situation, being put back into a decent environment; you don’t know how to deal with it. And the trauma doesn’t stop, so you’re still having the nightmares, and reliving it daily.’ Lucy is incensed that the Family Court was able to wield so much power over her life. ‘The fact that I had to be sent back and abused … That was something that they could have stopped. Now I’ve been asked if I want to go back and finish the report with the police. I’m like, what’s the point? Are they going to listen? I still don’t have any more evidence than I did back then.’
*
By the time Tina signed those consent orders in 2007, stories like hers were becoming commonplace. Between 2006 and 2010, one-fifth of women who accessed parenting services in the family law system reported feeling ‘forced’ or ‘bullied’ by their lawyers into agreeing to equal-time parenting arrangements, out of fear they could lose primary care of their children. As one mother said: ‘I have felt pressured by the court to give the father contact even though he is unsafe; the court believes he must have access every weekend.’21
If the 1995 reforms tipped the balance to ‘equality with a vengeance’, the next set of reforms – introduced by the Howard government in 2006 – kicked the scales over entirely. Their passage into parliament was driven by three years of what Waleed Aly, then a legal associate to a Family Court judge, labelled ‘an incessant, and often intimidatory, campaign against the Family Law Act’ by fathers’ rights groups. Then attorney-general Phillip Ruddock was of another view: he lauded the reforms, describing them as the most significant since 1975.22 The Howard reforms required judges to apply a presumption of shared parental responsibility, except where violence or abuse was an issue. But if a parent alleged abuse, they faced a dangerous hurdle: the new ‘friendly parent’ provision, which mandated judges to consider the willingness of each parent to support a close relationship between the child and the other parent. This meant that parents who alleged abuse and sought no-contact orders could now be assessed as ‘hostile’ parents – a finding that could see them lose custody of their children.
Former Family Court judge Richard Chisholm called this ‘the victim’s dilemma’.23 His landmark 2009 report found that the Howard reforms had led the court to view abuse allegations as vindictive or punitive. Consequently, he said, 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.
There is a word that’s commonly used to describe so-called hostile parents: ‘alienators’, a reference to the theory of ‘parental alienation’. For parents accused of domestic abuse or child sexual abuse, parental alienation has become a go-to counterclaim: deny the abuse and instead allege that the other parent has alienated the children
against them. This is a particularly powerful defence when the children themselves have made the allegations: as the theory would have it, alienated children have been so influenced by the parent’s lies that they may even think they were abused when really they weren’t. ‘Alienation’ is a controversial term, so it’s not always referred to explicitly – the concept may be presented in sibling terms: ‘enmeshment’, ‘brainwashing’ or ‘parentification’.
The notion of parental alienation first gained currency in the 1980s, when it was put forward as a ‘syndrome’ by the American child psychiatrist Richard Gardner. His theory had a clear target: spiteful mothers who alleged child abuse in custody disputes to punish ex-husbands and ensure they got custody of the children. Gardner identified several symptoms in children suffering from Parental Alienation Syndrome: using foul language against the rejected parent, insisting that they alone came up with the allegations (a type he called ‘the independent thinker’), and supporting and protecting the ‘innocent’ parent. Gardner claimed that PAS was especially prominent in custody cases involving allegations of child sexual abuse. The vast majority of these allegations – 90 per cent – were, he said, fabricated.
Gardner’s cure for PAS was radical: force the child away from the alienating parent (usually the mother) and place them with the alleged abuser (usually the father). He also recommended severing contact between mother and child for months at a time, in order to ‘de-program’ the child; he even encouraged jail time for mothers who persisted with abuse allegations. Despite presenting no statistical evidence to prove his theory, Gardner became the ‘guru’ of child-custody evaluations in the United States. He testified in more than 400 court cases, and PAS also became popular with family lawyers across the United Kingdom, Canada and Australia.