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Family Law

False allegations of domestic violence in the Family Court: who’s telling the truth?

By June 23, 2016July 5th, 2016No Comments

By Gianna Huesch

Do women make “frivolous” allegations of domestic violence in the family court, resulting in a system skewed against men?

In the lead up to the election, seeking attention on the campaign trail, Pauline Hanson declared that women make “frivolous” complaints about domestic violence, as she vowed to stand beside the men’s rights’ groups who routinely make the claim that Australia’s family courts are biased against fathers. While her claim is clearly designed to be inflammatory, her resultant call for an “overview” of the family court system is one that has been increasingly heard across the community, for more credible reasons.

The crisis in the family court system has been blamed by practitioners on specific issues which are actually not intractable. The problems of unacceptable delays and overworked judges could be remedied by greater investment of resources in the system. The fact that judges are overburdened and unable to hear matters within reasonable timeframes is a known problem that is not simply going to go away. But blaming judges for being “biased” is a red herring, when our judges are obviously battling to deliver justice in an overcrowded system with increasingly complex cases.

It would be naïve to think that every single claim of family violence is true. Common sense dictates that only a fraction of claims will be false but rather than make sweeping claims that “women lie”, or that “judges are biased”, we should be aiming at further empowering our court system to seek the truth in these matters.  We need to rebuild trust in our justice system, and confidence in the community that our judges are unbiased and are able to decide each case on its merits.

Two trial judgments delivered last month with contrasting outcomes show how attuned the judges of the Family Courts are to the nuances of each case.  Rather than demonstrate a supposed default acceptance of a mother’s allegations against a father, Justice Berman in Kapicic & Bakal found the mother’s allegations meritless, made with “malicious intent” and “scandalous”. He ordered the children to live with their father and granted him sole parental responsibility.  In Persall & Lenahan, on the other hand, in line with community expectations about perpetrators of family violence, Justice Foster determined that the circumstances of that case did warrant removing a violent father from his children’s lives completely.

In the first case, rather than take on face value the truth of the mother’s allegations (as Pauline Hanson would seem to be arguing), the court assessed information from a variety of sources to establish that the mother held irrational beliefs about the father.  The court found there was absolutely no evidence to support her claims her child had been sexually abused by the father: “Her view was not supported by child protection authorities, police or any other health or social welfare professional that had been engaged with the child”. And yet the otherwise “high functioning” mother remained convinced the father was a paedophile, and had gone as far as sending correspondence to all school staff alleging the same. The mother’s views were seen as so irrational and extreme that the ICL in the case argued it was she who presented a risk to her child and should require psychiatric treatment before contact with the child be resumed.

Our justice system has the power to tease out the truth when it comes to allegations of abuse. Judges in fact have a great deal of fact-finding ability. They draw on not only information from authorities regarding crimes and allegations of crimes, but information from other spheres: social workers, schools, significant figures in a child’s life, and experts and professionals, such as family consultants and independent children’s lawyers.

The courts are well aware of the need to balance a child’s need for meaningful parental relationships with the need to protect that child from risk of harm. In the contrasting case of Persall & Lenahan, the court ordered that the children should live with the mother and spend no time with the father, who was also restrained from contacting or approaching the mother or the children for their personal protection. The father had been convicted of various drug supply and property offences, as well as of assaulting, stalking and intimidating the mother; there had also been a number of AVOs and ADVOs issued. The relationship with the children’s mother had been conducted under the “overshadowing spectre of the father’s aberrant conduct and extreme violence”, but the court noted the father’s denial of the extent and seriousness of his violence, which the children had also repeatedly observed. In this case there is no sense of the making of false allegations in an attempt to alienate a parent. Based on a thorough assessment of the facts, the judge made the tough call to terminate the father’s presence in the children’s lives (notably, in spite of the wishes of the children).  By comparison, the father in the first case was seen as being in danger of being alienated from his child due to the mother’s false allegations.

The courts are aware of the danger of false allegations being made and the resultant damage done to children and alienated parents.  While “parental alienation syndrome” is not recognised by the World Health Organisation, nor used in the psychiatric field’s diagnostic manual, practitioners are well aware of the making of false allegations by parents who wish to exile the other parent from their children’s lives. The critical need is for the courts to be able to determine when allegations are false, and remedy the damage done.

In an interesting article summarising the current approach to the issue of parental alienation in the UK, it is reported that courts there are becoming more accepting of the phrase, and the writer notes the proactive approach of some countries, including the US and Canada, whose courts now order and supervise the intervention of “parenting coordinators” and “bridging programmes”, ie professionals who help restore relationships between alienated parents and children. (The article also notes that in Mexico and Brazil, “alienating a child from a parent is a criminal act”.)

The article makes a number of suggestions on how the UK court system can be better empowered to deal with matters involving issues of false allegations and parental alienation. Some of the suggestions would be useful to take on board in Australia.  The article advocates for a high level of judicial control of such cases: Courts should conduct detailed fact-finding investigations and “order detailed and effective disclosure”, courts should hear evidence early on and not await outcomes of police investigations; and judges must be “dissuaded from the hijacking of proceedings by the expressed wishes and feelings of subject children”. Courts should be made aware of the full context in which allegations were made, including an appreciation of the “level of acrimony and discord that may have existed between the parents”; the writer argues that “the attitude and approach of the resident parent to contact with the non-resident parent can be pivotal”.  There also needs to be an increase in the presence of expert professionals versed in “alienation and recruitment of children” to assess and assist judges.

Meanwhile here in Australia, anti-family violence campaigner Rosie Batty argues further practical changes to the family court system are required, including the creation of a new domestic violence test “to determine if it’s appropriate for children to spend time with either parent”, introduction of legislative protections preventing victims from being directly cross-examined by their abuser, and implementing domestic violence training for judges and magistrates.

We should accept that false allegations will occur in the family court system as they do in any other sphere of the justice system.  In response what is required is a robust system that has the power and ability to establish when allegations are false or maliciously made. When parental alienation occurs as a consequence of the making of false allegations, courts must be able to make orders that aim to repair damaged parent/child relationships.

To strengthen the delivery of just outcomes in these complex matters, the court system needs cases to be heard quickly, with adequate resources, and by judges who are not struggling under caseloads.  Complaining that “judges are biased” and “women are liars “, on the other hand, will do nothing to improve outcomes for families going through the court system.

Sources:

The court judgments mentioned above: http://www.austlii.edu.au/au/cases/cth/FamCA/2016/410.html, http://www.austlii.edu.au/au/cases/cth/FamCA/2016/413.html

Pauline Hanson’s remarks: http://www.sunshinecoastdaily.com.au/news/pauline-hanson-claims-women-make-frivolous-dv-comp/3043038/

Rosie Batty’s call for change: http://www.9news.com.au/national/2016/06/15/12/33/batty-savages-family-law-courts-culture

Parental alienation in the UK courts: http://www.familylawweek.co.uk/site.aspx?i=ed161124

Do you need assistance with a parenting or other family law matter? Please contact Cristina Huesch or one of our solicitors here at Alliance Family Law on (02) 6223 2400 for compassionate, expert advice.

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