A paper presented by Professor Thea Brown, on behalf of the Family Violence and Family Court Research Team of Professor Thea Brown, Margarita Frederico, Lesley Hewitt, Dr. Rosemary Sheehan, Monash and Latrobe Universities, Melbourne.

Although Family Courts are well aware of the vexed problems confronting them when child abuse allegations are made in residence and contact disputes, those outside Family Court circles have paid little attention to this issue. Even within court circles, both in Australia and internationally, little research has been undertaken in relation to these problems. For, those researching in family courts and partnership breakdown have ignored child abuse and those researching in child abuse have ignored family courts, (Brown, Frederico, Hewitt, Sheehan, 1998)

The reasons for this are many and complex and their history is unclear. Perhaps the major reason lies in the so called conspiracy of silence surrounding partner to partner violence. For example, the pioneers of research into marital partnership breakdown, the US team of Wallerstein and Kelly, while noting the existence of partner to partner violence from the outset of their work, would not accept it as a significant family problem. They regarded it as an unusual and temporary state of affairs, arising usually during periods of deteriorating family relationships. In effect, they dismissed it, believing it would disappear once the partnership finally died, (Wallerstein, J., and Kelly, J., 1996).

Eventually, the conspiracy of silence was challenged internationally, through the work of those researching and reforming in the domestic violence area in the USA, the UK and in Australia, (Gayford, 1975, Roy, 1977, Healy, 1984, Stark, E., and Flitcraft, A., 1985, Queensland Domestic Violence Taskforce, 1988, Women’s Coalition Against Family Violence, 1994). Partner to partner violence was acknowledged as a major family problem and studied in its own right. But the links between domestic violence and child abuse, obvious to us now, through children witnessing their parents’ violence, or by children being more vulnerable to direct parental, sibling or other relative’s violence in a family weakened by parent to parent violence, have taken a long time to emerge. For example, even to-day, Janet Johnston, one of the foremost researchers internationally on partner to partner violence and marital breakdown, barely acknowledges the relationship between partner to partner violence and child abuse, thereby maintaining the denial of child abuse within partnership breakdown and subsequent court proceedings, (Johnston, J., and Campbell, L., 1993).

While those active in marital partnership breakdown research have ignored child abuse, one might have imagined that those active years in research on child abuse internationally would have turned their attention to it within the context of marital and partnership breakdown sometime over the last thirty years. However, this has not been so. Perhaps their reason was a tacit acceptance of the widespread community belief, canvassed and even promoted by many, (Schudson, 1992, Toth, 1992), especially fathers’ rights groups, (Kaye and Tolmie, 1998 ), that child abuse allegations in family court disputes are not allegations about real abuse. On the contrary, they are merely weapons fashioned to gain an advantage in the gender war being waged in family courts world wide.

However, in the last decade, in the US and Australia, (but not in the UK), increasing concern about child abuse allegations in residence and contact disputes has grown in Family Court circles. For example, in the US in 1998 a large study covering a number of states was undertaken by Thoennes and Pearson on child sexual abuse allegations in residence and contact disputes. The study concluded that all the concerns previously documented, such as poor coordination between family courts, child protection services and other courts, the inability of family courts to deal with interrelated family violence, case drift and other poor outcomes for the children, were justified. In summary, the study argued, the children were being very poorly served by the court and associated systems, (Thoennes and Pearson, 1988). Then and now, the US family court system like the Australian system was plagued by jurisdictional problems arising from different jurisdictions for criminal, for matrimonial and for child welfare matters. In addition, there were jurisdictional problems arising from the different jurisdictions of each state. Subsequently, in Australia, the Family Law Council investigated issues of child sexual abuse and formed similar conclusions, (Family Law Council, 1988, Harrison, 1989).

It was against this background of court concern that a Monash/ACU research team developed a proposal to investigate child abuse allegations in residence and contact disputes, then known as custody and access disputes, and brought it to the Chief Justice. He, too, was concerned about these issues and graciously agreed to support the work. The study began under the guidance of Judge Administrator of the Southern Region of the court, the Honourable Justice Frederico, in the Melbourne and Canberra Registries in 1995.

The team wished to pursue four questions: who were the families who brought such problems to the court, what was the precise nature of the problems, what did the court do with these problems and what impact did this have on the children involved?

The team decided to answer the questions by analysing the case records of identified child abuse cases during the period 1994 - 5 at both registries and by interviewing court staff, staff at state child protection services and related agencies. Ultimately one third of all child abuse cases in Melbourne were analysed, 150 cases, and the entire number of such cases in Canberra, 38 in all. We also reviewed a selection of residence and contact dispute cases without child abuse allegations in the Melbourne Registry.

It should be noted that Mr Neville Turner, then from the Faculty of Law at Monash, assisted as legal adviser.

The study was too large to include all findings and themes here. Six areas have been chosen to be presented to explain the basis of the changes the study recommended. For the study became one which sought to convert research into action and it recommended the court adopt a specialised and child focused intervention program which is currently being trialed at two registries, Dandenong and Melbourne, at the Family Court in Victoria under the name of Project Magellan.

Although we found that the proportion of such cases within the Court’s total workload was small, some 5% of all children’s matters, it was extremely significant to the Court in terms of its workload. For while the cases started as 5% of the total, they grew, as a proportion of cases, to 50% at the possible mid point of proceedings, the Pre Hearing Conference, and then diminished somewhat to 25% at the end point, at Trial. Thus, they did not resolve in the same way that other cases did, that is without much intervention from the court. Rather the reverse, they resolved only after considerable intervention, much of which was counter productive.

Since figures as to the long term incidence of these cases were not available at the time of the study, it was difficult to determine any trends. However, the research findings indicated a likely future increase as some cases previously managed in the Children’s Court were identified and now being shepherded to the Family Court by state child protection. These were cases involving foster parents, non cohabiting couples and grandparents. Furthermore, due to a high incidence of child abuse noted in the residence and contact cases that did not involve explicit allegations of child abuse, it was thought that, as professionals became more aware of child abuse, the numbers of such cases identified would rise. And indeed that has happened. In Victoria, for example, since the introduction of mandatory reporting the numbers of cases involving child abuse allegations has doubled from 250 per year to 450 over the five year period, 1993-98.

For these two reasons, the significance of these cases in the Court’s workload and the likelihood of the Court addressing more of such cases, we argued that child protection has become core business of the court and that the court had become part of the child protection service and the wider child welfare system.

Parents in Difficulties

While it has been suggested by US research,(Johnston and Campbell, 1993), that the parents in high conflict residence and contact disputes are no different from other parents, this was not so in these cases. Certainly, the parents were similar in terms of ethnicity, race, social class and general health to the wider population of their respective regions. However, they were found to have serious social functioning difficulties which implied they needed considerable assistance to master the challenges of separation and future parenting in new circumstances.

More of these parents were unemployed or non employed than in the wider population. This was worse in Melbourne than in Canberra. The details of their unemployment is contained in the following table, Table 1.

Table 1: Percentage Unemployment and Non-Employment Among Families at the Melbourne and Canberra Registries

What the precise role unemployment played in the family’s difficulties is not clear. Some research suggests that the unemployment leads to the family breakdown and other research suggests that it is a consequence.

For example, Gregory’s recent work, (Gregory, 1997), documenting the severe losses in jobs for Australian males with dependent children over the last twenty years, suggests a substantial but unrecognised problem for male breadwinners. Much focus has been given to changes in women’s roles as they have flooded into the workforce, but little attention has been paid to men’s retreat from it and the consequent changes or breakdowns in their family life.

Several other studies suggest that whatever role employment played in leading up to the breakdown, it is a consequence afterwards. One study, (Gerson, 1993), showed that working class men loose "work attachment" as a consequence of partnership breakdown. Another, ( Jordan, 1997), showed that after divorce men from all classes suffered long periods of unemployment. Some of the father’s rights views contain echoes of this problem for men. For example, their literature speaks of their loss of motivation for work, for which they blame the unfairness of the system of child support payments and the family court, (Kaye and Tolmie, 1998).

The parents had high levels of criminal convictions, as can be seen in the following table, Table 2.

Half of the males with convictions had convictions for more than one offence; their range of convictions was wide and included property convictions, alcohol and drug offences commonly in conjunction with assault. Women had convictions for only one offence; their range of offences was narrow, drugs and social security offences. Women’s crimes against persons was limited to child abuse whereas the men’s included a variety of such offences including child abuse.

As indicated in the above results, the parents’ rates of substance abuse was high. Taking both registries, the average incidence of male substance abuse was 41.6%, with half including both drugs and alcohol. The average incidence for women was 26.4% with one third including both drugs and alcohol.

Partner to partner violence was high, as presented in the next table, Table 3.

Considering the above, the fact that partner to partner violence was given as the most common single cause for partnership breakdown, was not surprising. The second most common single cause, arguments, fitted with this. Such reasons for partnership breakdown are not the common causes of breakdown reported in other studies, ( Wallerstein and Kelly, 1996, Relationships Australia, 1998), and reinforced the view that these partnerships had special problems. While an attempt to categorise the violence was not really successful, because most of it could not be categorised using the Johnston and Kelly typology, nevertheless, 30% of it did fit the category of episodic male battering. This suggested serious and longstanding family violence problems.

The nature of the abuse allegations were serious, more serious in some regards than the profile of abuse allegations notified to the state child protection authorities. There, the most common form of abuse alleged is neglect, whereas little neglect was alleged among the family court cases. The most common form alleged in the Family Court was multiple forms of abuse, particularly physical abuse and or sexual abuse and witnessing violence. The Family Court profile of abuse was more typical of the profile of abuse that the state child protection authorities move on to the Children’s Court. (See Sheehan, 1997, for a documentation of this profile in the Children’s Court, Melbourne.).

The following table, Table 4, details the abuse allegations.

Many problems were found with the way the court proceeded. The cases took a long time, an average of seventeen and a half months, from the time of the allegation to the time of resolution. The time taken increased as the age of the child decreased. Each case had many hearings, an average of five. The adversarial nature of the dispute resolution and the rights of the parents to bring the case back to the court repeatedly, regardless of the situation of the child, assisted in prolonging the proceedings.

Many of the delays and difficulties had their origins in the problems of coordination between the state child protection authorities and the Family Court. The problems of coordination between child protection agencies has been examined over many years, most recently and exhaustively in a recent UK study, (Hallett, 1995). The obstacles to coordination she identifies are present between the Family Court and the state child protection services, all eight of them! There are differences in legislation, organisational goals, procedures, clientele, the professional staff, their pre-job and on the job training, staff gender and the prestige accorded the two major professional groups. Justice Faulks has detailed how the differences between the two professional groups are embodied in their language, implying that all communication between them is likely to be fraught with misunderstanding, (Faulks, 1997).

The coordination problems were found to start at the beginning, at the point of notification, with the state child protection investigating only half of the notifications,

(Armytage, 1997). That information did not return to the Court, because the format of the state child protection response was very cryptic. Only four categories of responses were returned to the court. These were:

1. State services to take action themselves in the Children’s Court

2. State services to be a party to the Family Court action

3. State services to take no action but possess information available to the Court on the production of a subpoena

4. State services to take no action.

Most of the responses fell into the last category, some 77.6%. Thus no real information found its way to the Court, leaving it in the position of having to begin the investigation again.

Considering that the state did not substantiate many notifications, 22.5% in Melbourne, they took a long time to handle the matter. The shortest was one day, the longest 180 days, and the average 42 days. The delay was of concern given the fact that the children were very young, with most being four or five. Substantiation rates were found to vary a great deal between states, another matter for concern. (See Hume, 1997, for documentation of rates in South Australia.) A final issue was not just the difference in definitions of child abuse between the Family Court and the state services but the further difference in definitions between each state service. A compounding complication emerging currently with the trend to joint child protection/police investigations will be the difference in definitions between police and state child protection services.

Since the Family Court took its definitions from the description of abuse presented to it, rather than from pre-existing categories as the state child protection services do, the court’s profile of abuse may reflect more accurately the reality of the abuse presented to it than the state child protection services do. Certainly, the Family Court’s approach permitted the recognition of the interrelationship between various forms of abuse in these children’s cases.

The outcomes for the children were poor. Not only did the process take a long time, and involve many hearings. Each change would cause general tension in the family, as well a major disturbance if there was a change in residence or contact. In fact, the children did have court ordered changes in residence and contact quite frequently; residence changed in 37.2% of cases and contact in almost all.

The children were found to be suffering high levels of distress, some 29% had confirmed emotional problems. Whether this is higher or lower than the incidence of emotional problems for the children of all separating parents is not known. For, the intensity and incidence of children’s distress, post separation, remains contentious and the research findings contradictory, (Lamb, Sternberg and Thompson, 1997). Yet the descriptions of the problems of these children seemed to indicate a higher intensity of distress than noted previously. The children were not merely suffering from anxiety and depression, but from feelings of severe depression, sometimes suicidal depression, and also from feelings of great anger.

Despite the court’s difficulties, it had devised some strategies which did resolve the cases. These could best be described as the court taking the initiative in and the responsibility for problem resolution on behalf of the child, in other words as the court being proactive in a child focused way.

The strategies included the reports from the state child protection services clearly substantiating the abuse; when the state services did this some 18% of total cases were resolved. These included, also, reports from Court Counselling; when a Family Welfare Report was prepared by Court Counselling, the report resolved the dispute in 17% of the cases, immediately, and, subsequently, it was cited by the judge at trial in 25% of cases.

Furthermore, taking another approach to resolution strategies, it was noted that the multi-disciplinary Pre-hearing Conferences when combined with a Court ordered Family Welfare Report and the appointment of a separate legal representative for the child resolved 50% of the cases in the Hearing.

In summary, the study revealed a number of conclusions that pointed the way to changes in the current system.

It showed that cases involving child abuse allegations had become part of the court’s core business in children’s matters. These cases were no longer an extra or unusual part of the workload, but rather an integral part of it. Furthermore, this pattern in the workload was likely to become more firmly entrenched as trend for the numbers of these cases to increase continued over time. Therefore the court needed to confront the issues these cases presented.

The first issue the cases presented was one of possible family violence. The abuse identified was not mild abuse, but similar to the profile of abuse presented in the Children’s Court. Nor were the allegations mostly false allegations; the incidence of false allegations was found to be the same, 9%, as in notifications to other authorities, such as the state child protection services. In addition, other family violence was often present and often the cause of the partnership breakdown. It was primarily male partner to female partner violence, of which the most common type was episodic male battering, the most serious of the categories of violence in typologies of family violence, and not easily explicable as a response to provocation.

The second issue was that the families, and especially the male family members, had serious difficulties, namely unemployment, violence, substance abuse, and criminal convictions. These were not families who were likely to be able to easily resolve the problems accompanying their marriage and partnership breakdown.

The third issue was that the legal process did not explicitly focus on the child although the children were the supposed basis of the legal application. Yet, when the legal process did focus on the child, through state child protection reports, Family Welfare Reports, and the appointment of separate legal representatives for the child, the likelihood of a resolution increased.

The fourth issue was that the process took a very long time, too long when one considered the very young age of the children, who were apparently negatively affected by these experiences. Some of the delay stemmed from the problems of a system which involved separate and different state and federal legal and administrative components and the consequential coordinating problems and variable outcomes. Overcoming these would be possible with a unified family court, a truly family court, combining the present state and federal jurisdictions, but that is unfortunately not likely to take place at the moment. It remains a future dream. Nevertheless, some improvements might be possible through improved coordination mechanisms, such as Hallett maintains to be both feasible as well as desirable.

Thus the research team recommended a new specialised interventive system which was court lead and court managed and managed tightly. The system was child focused, had short time lines, and new mechanisms for coordination. It comprised originally a three hearing plan, with six weeks between each hearing, since modified to four with slightly longer time lines, a court staff person, currently a member of Counselling, as case manager for each case, a legal representative for each child, a notification to state child protection for each child, a Family Welfare Report for the children of each family where state child protection does not substantiate abuse, and a multi-disciplinary approach with Counselling staff present at Hearings.

By the time the study’s findings were presented to the Chief Justice, other developments including the Australian Law Reform Commission’s Report, Seen and Heard: Priority for Children in the Legal Process, and the court’s own Review of Pending Cases, had taken place that underlined the issues presented in the report. The Chief Justice then established a committee lead by the Honourable Justice Linda Dessau to review different case management procedures in child abuse cases. The Committee commenced a trial of a new case management system using many of the principles argued above. It is known as Project Magellan and will end some time towards the end of 1999. The present research team is evaluating this trial and hopes to complete its work at the end of 1999.

Fundamentally, the new system is hoped to be more child centred and thereby able to provide better outcomes for children. It is hoped it will also provide better outcomes for their parents as well. At the same time, problems remain. These problems centre around the fragmented system serving children and adults in situations of family violence, around the poor theoretical understanding of the nature and complexity of family violence, around the best services to overcome these problems, and around the problems of being a male adult member of families with dependant children to-day.

References

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Australian Law Reform Commission, 1997, Seen and Heard: Priority for Children in the Legal Process, Report No. 84, Commonwealth of Australia.

Brown, Thea, Frederico, Margarita, Hewitt, Lesley, Sheehan, Rosemary, 1998, Violence in Families, Report No. 1, The Management of Custody and Access Disputes Involving Child Abuse Allegations in the Family Court of Australia, Family Violence and Family Court Research Program, Monash University, Melbourne.

Faulks, John, 1997, The Language of Help and Resolution, A Paper Presented to the 25th Biennial Conference of the Australian Association of Social Workers, ANU, Canberra.

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