by Jess Hill
That figure – 90 per cent – sounded eerily familiar. A few days later, I met another single expert, child psychiatrist Carolyn Quadrio, who has spent much of her four decades in psychiatry working with survivors of child abuse and family violence. When I put Rikard-Bell’s estimate to her, she was astonished. ‘Gardner … also suggested it was 90 per cent false allegations,’ she replied. ‘He produced no data at all, no facts; he just said this was what he believed.’ Conversely, she added, the research shows that ‘something like 80 to 90 per cent [of allegations] have a reasonable foundation to them when they’re investigated’.36
Given Rikard-Bell’s alarming and unorthodox view on the rate of false allegations, how did he go about assessing claims of abuse? ‘One cannot just depend on what the child’s statements are,’ he explained. ‘Often this is seen as the gold standard for trying to decide whether abuse has occurred [in other courts], whereas in the Family Court, one has to be cautious about just accepting at face value a child’s statements.’ This was, he said, because often children are interrogated by the anxious parent, and are at an age where they are not aware of what facts are, and will say whatever is necessary to please their parent. So how reliable are children’s disclosures, I asked; are they more easily led or suggestible than adults? ‘Very easily,’ he said. Children up to the age of seven or eight are at a ‘magical stage of thinking’, he said; they believe in Santa Claus and fantasy, and their main aim is to please the parent. Then, up to the age of thirteen, children are able to report fact better, but are still ‘very much under the influence of their parents’.
Sitting with Quadrio in her Randwick practice, I asked whether anxious questioning could lead a child to a false belief that they’d been abused. It was possible to implant false memories, she said, but the likely success of that would depend on what kind of memory you were trying to implant. In one famous experiment, participants were given – and wound up believing – a false memory that as a child they got lost in a shopping mall and were crying for Mum.37 But, said Quadrio, implanting a false memory about getting lost in a shopping mall wasn’t the same as fooling a child into believing they had been abused. ‘Compare that with persuading a child that when you were in the bath last Saturday, Daddy put his finger inside your vagina,’ she said. ‘If you’re going to implant a false memory, I don’t think they’re equally easy to implant.’
So if a child’s disclosure wasn’t enough on its own, how did Rikard-Bell test the allegation? ‘There is no particular test that says a child has been abused or not. So one has to look at a situation [including reports from authorities like police and child protection], form a view, and then develop on balance of probabilities is it likely that abuse has occurred or not.’ One way to do this, he said, was to interview the child and the alleged abuser together, and, after a few broad questions about whether anything ‘uncomfortable’ has occurred, raise the allegations to see how they both react. ‘If abuse has occurred, generally there’s an awkwardness, and some representation of that difficulty … between the child and the parent,’ he said. ‘If there is no substantial sign of abuse … generally one can tell if a child and a parent has a good rapport, and the child’s relaxed. Or if the child’s frightened, it gives you strong information. Often parents are confused about what’s been alleged against them. It’s important to allow that conversation to occur between the child and the parent, so there can be some clarification for them, and that’s often helpful during the assessment.’ I asked Rikard-Bell if this could be traumatic for a child, especially if the allegations were true. ‘That’s always a concern,’ he said, ‘and in other jurisdictions it’s probably not always wise to interview a perpetrator and a victim … However, allegations of abuse [are] a big problem in the Family Court, but the actual rate of abuse is far different from [that in] the Children’s Court, so one cannot presume that abuse has occurred. Just as much damage can occur to children by denying a relationship with a healthy parent as it can be by perhaps exposing a child to a parent who may have victimised them.’
When I related this method to Quadrio, she was taken aback. ‘No, I don’t think that’s appropriate,’ she said, screwing up her face. ‘I think that has to be done by forensic interviewers. That has to be properly recorded. It would be hopeless for me to ask those questions and then write the report saying this, that and the other happened. I’d have to have a video of it, preferably have somebody else around.’ The Family Court does not require or advise expert report writers to record their sessions, and interviewees are forbidden from taping them. The only proof of what occurs in these interviews is what’s in the report writer’s notes, and the report itself.
In assessing whether a parent was likely to have perpetrated abuse, Rikard-Bell explained, one could look for certain traits. ‘People who are more likely to abuse children are people who have substantial personality disturbance. So often you get a history where a person has had a very traumatised childhood themselves, and often they’ve had a very troubled youth, and then they’ve had a lot of problems with the law, and often they have significant antisocial or behavioural problems.’‡
After these interviews went to air on the ABC’s Background Briefing in 2015,38 I received dozens of emails, including one from a man who identified himself as a police officer and psychologist working in child protection, who asked not to be named. ‘This is a very important story,’ he wrote, ‘one that deeply troubles many practitioners working on the ground in child protection. All too often we see very sophisticated manipulation skills being employed by child sex offenders [CSOs]. This is reflected in the scholarship indicating that less than 1 per cent of CSOs are convicted of their crimes.’ In future stories, he wrote, ‘it may be instructive to speak with practitioners who have extensive experience assessing and treating child sex offenders’.
So I decided to run Rikard-Bell’s theories and methods by one of Australia’s leading experts on child sexual abuse, Emeritus Professor Kim Oates. ‘It would be really good if there was a sort of abuser test, wouldn’t it?’ said Dr Oates, when I asked him if it was possible to profile a perpetrator. ‘The public stereotype of the sexual abuser is sometimes an unsavoury-looking character in a corner in a raincoat. He’s nothing like that. People who sexually abuse can be model citizens. They can be highly respected in their communities, in their profession, in their jobs, within their families. It’s a very hidden thing. There’s certainly no clear type.’ Some perpetrators do exhibit other criminal behaviour – ‘violence, robberies, that sort of thing’ – but the majority are just ‘ordinary, respectable people’. ‘That’s why people have such difficulty believing children. “How could that person possibly be [an abuser]? He’s a really nice guy.”’ Oates also rubbished the idea that you could identify abuse by observing how a child behaves with the accused parent. ‘A sexually abused child may relate well to the parent or the person who’s done it. Some might avoid them. Some might enjoy being with them at times – they can get pleasure from being made to feel really important. They’ll often get presents and bribes.’ Children who were less self-assured were particularly vulnerable, he said, because their abusers made them feel valued. ‘That’s terrible for the child, because the child grows up feeling they’re of value in a sexual way.’
During our interview, I asked Rikard-Bell whether he had specific expertise in child sexual abuse. ‘As part of training as a child psychiatrist, one is exposed to all forms of potential adversity that could influence a child’s development,’ he said, ‘and sexual abuse is one of those. So I guess the training that I would have had is exposure [through clinical work] to the various ranges of trauma that children can experience, not specifically sexual abuse, but sexual abuse is one of those areas of abuse.’
In the judgments I had read, I said, there were references to terms like ‘parentification’ and ‘brainwashing’. Where did these theories come from? And which child sexual-abuse experts did he refer to when he was forming an opinion on a case? ‘It’s a
very difficult area to get objective information and to carry out controlled trials,’ he replied, ‘so the scientific literature is really a combination of looking at very experienced, well-regarded people in the field, and looking at their opinions and their experience. Often it’s really looking at eminent people,’ he said. Anyone in particular? ‘Well, there are various people who’ve looked at various syndromes, so Gardner, for example, looked at Parental Alienation Syndrome, and there’s been a lot of debate about the use and misuse of Parental Alienation Syndrome. 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 that’s a useful concept in some circumstances, but it’s sometimes overused and misused. The term “parentification” originally came from one of the earliest children’s therapists, Salvador Minuchin, who talked about seeing children being parentified and taking care of the parent, rather than parents taking care of the child, and that’s often a dynamic you see in particularly older … children who are worried about their parent – they start to become parentified.’
I asked him if he thought that Gardner’s theories had been unfairly maligned. ‘I think he’s very relevant,’ Rikard-Bell replied, ‘but I think that one needs to specifically not just throw out that term “parental alienation syndrome”, one needs to actually describe what one is seeing clinically, and then talk about the degrees of alienation which Richard Gardner talked about; I think that that’s useful, where there’s mild, moderate or severe, and that may lead to an appropriate response from the court.’
When I later emailed Rikard-Bell to ask if he ever referred to parental alienation syndrome by name in his reports, he replied, ‘I refer to alienation if it specifically occurs and describe it but I avoid using [the] PAS label even though it is often useful as it has now come under such scrutiny that it often creates more debate than is helpful … Richard Gardiner’s suggestions are useful as a guide [and] PAS is useful to have [as] some background literature to refer to. [However], it is worth noting that PAS is not a diagnosis; that has been one of the major criticisms, as it is sometimes used in a way that infers it is a diagnosis, which it is not.’
When I asked the Family Court’s deputy chief, Justice John Faulks, if the court had minimum standards for single experts, he scoffed and said my question was ‘misconceived’. ‘It isn’t a question of minimum standards. If you’re getting a crown on your teeth you wouldn’t go to a carpenter.’ Justice Faulks said all experts had to demonstrate their relative expertise to give an opinion.
But if a psychiatrist has no formal training in the dynamics of child sexual abuse or family violence, isn’t that exactly like getting a carpenter to do your dental work? If you haven’t specifically studied the counterintuitive traits of family violence and child sexual abuse, how can you claim expertise on that subject – such that you can provide expert evidence in court?
I put this to Justice Faulks. In cases specifically involving allegations of sexual abuse, for example, would there be minimum standards of training or specialist expertise? Justice Faulks was irate. ‘Weren’t you listening when I spoke, ma’am?’ After some confusion and back and forth, Faulks said, ‘You might say that the minimum qualification would be that the person is qualified as a psychologist or a psychiatrist. Or in some cases … as a social worker.’
This lack of specific expertise is a concern for at least one judge working in the family law system. In his 2013 paper on assessing allegations of child sexual abuse, federal magistrate Matthew Myers wrote, ‘Those delivering “expert evidence” in Australian Family and Federal Magistrates Courts rarely have the training, knowledge and skills needed to do this type of work adequately.’39
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Disputes that reach the Family Court can seriously test participants’ capacity to fight for their children. It can be physically and emotionally exhausting, it can be expensive, and it can require a massive amount of case building and documentation – assessments and reports that can themselves cost thousands of dollars. For some parents, the ability to protect their children will depend on whether they can afford to. If resources run dry, or when avenues for appeal are blocked, children have virtually no choice but to obey court orders. There is no formal process to review a child’s wellbeing after parenting orders are made; there is no process that assesses whether that child is safe with the parent they’ve been ordered to visit or live with. For a child ordered into the care of an abusive parent, this lack of oversight can be diabolical.
‘Alex’ was six when he was removed from the care of his mother, ‘Emily’, and ordered to live with his father, after she raised sexual abuse allegations in the Family Court. This order was made despite the judge’s own acknowledgement that the father’s two former wives had also accused him of sexually abusing their young children. ‘That one decision the judge made ruined my whole childhood,’ says Alex, who was fourteen when we spoke in 2015. For as long as he could remember, Alex’s father subjected him to regular physical and emotional abuse. It happened so often, he said, it was hard to single out individual memories. ‘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 said he tried ‘again and again’ to tell people what was happening, but nobody would believe him. ‘I was too small.’
In 2013, 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 another single expert assess Alex’s allegations. The single expert was Dr X, the same expert chosen to assess the cases for Sandra and Tina. Dr X concluded that Alex’s ‘suicidal feelings’ were stress-related and that he didn’t believe Alex really wanted to die. He recommended the judge return Alex to his father and that, to help father and son reconnect emotionally, Alex should not contact his mother for a month. If Alex fled again, ‘the mother should be held responsible and incarcerated’. On Dr X’s advice, the judge issued a recovery order mandating the police to return Alex to his father and suspending contact between Alex and his mother for a month. ‘I wondered, how could this even happen to me?’ said Alex. ‘No-one was listening to me – at school or anywhere – so you get this really bad feeling, that no-one can help you except yourself.’
The next morning, instead of going to school, Alex rode the train to his older brother’s house. 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,’ said 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 Court, they overrule everyone,’ he said. ‘Even the police – the police! – couldn’t protect me.’
Two weeks later, Alex fled again to the police, and made allegations of physical abuse. This time, they applied for a provisional AVO to protect Alex from his father. 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 had sole parental responsibility, refused. When Alex rejected his father’s suggestion to stay with a family friend, the father said Alex, then thirteen, could stay 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,’ said Alex. Back in the Family Court, child protection filed an intervention, seeking orders for Alex to live with his mother. ‘Finally … there was another court order made that I get to live with my mum,’ said Alex, ‘and I’ve been living with my mum happily ever
since.’
It’s been four years since I interviewed Alex. He’s since turned eighteen, and tragically, his story has not kept its happy ending. He has been diagnosed with PTSD, a condition his psychiatrist says stems from the ‘harrowing and protracted’ abuse from his father, and from being separated from his mother when he was six years old. Alex suffers ‘traumatic flashbacks, anxiety attacks, difficulties with memory and concentration and dissociative episodes where he loses time’. So severe are these symptoms, Alex is unable to study, let alone work, and likely won’t be able to do either for several years. Instead of looking forward to being an independent adult, Alex is now applying for the disability support pension.
In 2015, then fourteen-year-old Alex told me he had started a support group for other children who were being forced to live with parents they feared. He was determined to campaign 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 said. ‘I’m doing this so their childhood doesn’t get destroyed like mine did.’
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When domestic abuse victims say going through Family Court is like walking through the looking glass, I believe them. In all my time as a reporter, I have never felt so disturbed and disoriented as I did investigating the family law system. It’s like parts of this system exist in a parallel universe – one in which we don’t understand domestic abuse and the impact it has on children.
No amount of tinkering with the Family Law Act is going to change this. The problems are cultural, and they are embedded throughout the family law system: from judges through to single experts and lawyers. There has already been an attempt to fix these problems with legislation: in a move to undo the damage of the 2006 Howard reforms, the Gillard government in 2012 introduced a number of changes to the Act. ‘The research clearly showed that parents were afraid of reporting family violence to the court,’ said then attorney-general Nicola Roxon. The government removed Howard’s ‘friendly parent’ provision, and expanded the definition of family violence to include tactics of coercive control, like stalking, ‘preventing someone having contact with family and friends’, ‘repeated derogatory taunts’ and intentional damage to property. It also broadened the term ‘child abuse’ to include exposure to domestic violence, and made it compulsory for the Family Court to ask parents if there was abuse, or the threat of abuse, in the relationship. On paper, the family law courts now had a clear mandate to prioritise children’s safety.