title_pages.indd 1 14/7/06 10:59:16 AM Thea Brown is Professor of Social Work and Director of the Family Violence and Family Court Research Program at Monash University. She has served on Family Court committees and on the Commonwealth Family Law Pathways Advisory Group. Dr Renata Alexander is Senior Lecturer in Law at Monash University and a member of the Victorian Bar. She was Deputy Registrar in the Family Court and is the author of Domestic Violence in Australia, 3rd edition. Child abuse PAGES 31/8/06 1:58 PM Page i Child abuse PAGES 31/8/06 1:58 PM Page ii Understanding the issues facing human service and legal professionals THEA BROWN RENATA ALEXANDER title_pages.indd 2 14/7/06 10:59:17 AM Child abuse PAGES 31/8/06 1:58 PM Page iii The authors wish to dedicate the book to their families.Thea Brown wishes to dedicate it to Robert, her husband, and Victoria, her daughter. Renata Alexan- der wishes to dedicate it to her mother, her late father, and her sister Inka.They both wish to dedicate the book to those at its heart—the children entangled in the web of family law socio-legal services as a result of allegations of child abuse made in the context of parental separation and divorce. First published in 2007 Copyright © Thea Brown and Renata Alexander 2007 All rights reserved. No part of this book may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying, recording or by any information storage and retrieval system, without prior permission in writing from the publisher.The Australian Copyright Act 1968 (the Act) allows a maximum of one chapter or 10% of this book, whichever is the greater, to be photocopied by any educational institution for its educational purposes provided that the educational institution (or body that administers it) has given a remuneration notice to Copyright Agency Limited (CAL) under the Act. Allen & Unwin 83 Alexander Street Crows Nest NSW 2065 Australia Phone: (61 2) 8425 0100 Fax: (61 2) 9906 2218 Email: info@allenandunwin.com Web: www.allenandunwin.com National Library of Australia Cataloguing-in-Publication entry: Brown,Thea. Child abuse and family law : understanding the issues facing human service and legal professionals. Bibliography. Includes index. ISBN 978 1 86508 731 3. 1. Child abuse - Law and legislation - Australia. 2. Family law - Australia. 3.Abused children - Services for - Australia. 4. Problem families - Services for - Australia. I. Alexander, Renata. II.Title. Index by Nancy Sibtain Set in 10.5/13 pt Bembo by Midland Typesetters,Australia Printed by CMO Image Printing, Singapore 10987654321 Child abuse PAGES 31/8/06 1:58 PM Page iv Foreword by The Honourable Alistair Nicholson ix Acknowledgments xiv Introduction: A new problem 1 Current knowledge 2 The family law socio-legal service system 3 Navigating the book 6 Future directions 7 1. A new understanding of child abuse in the context of parental separation 8 The relationship between child abuse, parental separation and divorce 9 The history of understanding of child abuse in the context of parental separation and divorce 10 The distinctive nature of child abuse in this context 17 The families 19 Alleged and actual perpetrators 20 Conclusion 23 2. Child abuse, family violence and family law legislation 24 Background to the Family Law Act 1975 (Cth) 25 CONTENTS Child abuse PAGES 31/8/06 1:58 PM Page v The Family Law Reform Act 1995 26 Changes in 2006 to the Family Law Act 1975 29 Case law under the Family Law Act 1975 32 Family violence between parents 33 Child abuse where children are direct or primary victims 40 Child sexual abuse 42 Australian research 46 Conclusion 48 3. Family law legislation and the protection of children 50 Best interests of the child 51 Myths 52 Let’s blame Freud 53 Wishes of the child and separate representation of children 55 How the Family Court deals with child abuse cases 59 Protocols and legislation affecting state and territory agencies 59 The Magellan list 61 Children’s Cases program 62 Conclusion 63 4. Child sexual abuse 65 Community attitudes to child sexual abuse 66 The discovery/rediscovery cycle in child sexual abuse 67 Reported incidence of child sexual abuse 68 Actual prevalence of child sexual abuse 70 Children’s reporting of sexual abuse 71 Definition of sexual abuse 72 Evidence of abuse 73 Interviewing strategies 75 Delays and changes in telling of the abuse 76 Causes of child abuse 77 Marital partnership and partnership breakdown and divorce as risk factors 79 Perpetrators 80 Victims 81 Residence and contact arrangements for victims of child sexual abuse 82 The attitudes of socio-legal professionals to child sexual abuse 83 Conclusion 84 vi CHILD ABUSE AND FAMILY LAW Child abuse PAGES 31/8/06 1:58 PM Page vi 5. Other forms of child abuse 86 Community attitudes to other forms of child abuse 87 The puzzle of reported incidence 89 Patterns in reported incidence of other forms of child abuse 90 Patterns of abuse in the context of parental separation and divorce 91 Reported incidence of abduction 93 Reported attempted and actual homicide 93 Severity of abuse 94 Definition of physical abuse 94 Definition of neglect 96 Definition of emotional abuse 97 Forms of child abuse specific to parental separation and divorce 98 Causes of the other forms of child abuse 99 Parental separation and divorce as a cause 102 Perpetrators and victims 103 Effects of abuse 103 Arrangements for residence and contact 104 Attitudes of socio-legal professionals to the other forms of child abuse 105 Conclusion 106 6. Managing families and their problems 108 The impact of divorce on families and family members 109 Immediate impact on family members 109 The impact of the child abuse allegations 111 Impact of the allegations on the substantiated perpetrator of the child abuse 112 Working with substantiated perpetrators 113 Impact of the client and their violence on the professional 115 Impact of unsubstantiated allegations on the alleged perpetrators 116 Working with alleged perpetrators where the allegations are not substantiated 117 Impact on the partner making the allegations 118 Working with the parent making the allegations 119 Impact of the allegations and the process of investigation on the children 120 Contents vii Child abuse PAGES 31/8/06 1:58 PM Page vii Working with children who are the alleged victims of family abuse 121 Other factors 121 Conclusion 127 7. Managing the family law service system 128 The family law socio-legal service system as a maze 128 The core of the system 129 The Commonwealth financial benefits agencies 131 Counselling agencies 132 Services for children 133 State child protection services 134 Lobby groups 135 Funding 137 Problems of a service system that has become a maze 138 No specialised services for child abuse allegations 139 New specialised services and pathways 141 The Magellan program 141 The Columbus program 143 Other programs 144 Strategies for managing the maze 145 Conclusion 147 8. Case presentations: The professionals’ contributions 148 The use of a common framework 148 Case presentation and discussion 150 The first family 150 The second family 162 Conclusion 175 Notes 177 References 180 Index 194 viii CHILD ABUSE AND FAMILY LAW Child abuse PAGES 31/8/06 1:58 PM Page viii This book is courageous, ground breaking and extremely comprehensive. The authors have extensive experience with the subject matter and have brought that experience to bear in a very effective way. It is courageous first, because it swims against the current tide of an assumption that a relationship with both natural parents is invariably in the best interests of a child. This is not an assumption based upon established research, but rather an emotional assumption that has been assiduously fed by lobby groups to the point where the Federal Parliament has amended the Family Law Act in such a way as to give legislative force to it and, I believe, has therefore placed many of our children in much greater danger than was the case previously. In the context of what might be described as ‘normal’ families, such an assumption may have some validity. However, many families who reach the point of litigation in the courts as to the disposition of their children are not normal in this sense.As the authors indicate, approximately 30 per cent of marriages break up because of domestic violence and they document the close link between domestic violence and child abuse. Further they make the point that approximately 90 per cent of abusers are male and approximately 73 per cent are fathers of the child/children in question, who is/are normally female. Many people in this category are litigants in the courts. ix FOREWORD Child abuse PAGES 31/8/06 1:58 PM Page ix Unfortunately, the assumption is effectively applied to them by the legis- lation, with potentially disastrous results. It is true that the legislation provides that the protection of children from harm caused by abuse and family violence is an object of the Act and a primary consideration for a court in determining issues relating to children, but it is an inconsistent one with the Act’s other emphasis on shared parenting. The expectations that the latter concept creates are such that courts are much more likely to make contact orders and particularly interim contact orders, even when faced with such allegations or finding them proved.As the authors say, child abuse is hard to detect or understand, the perpetrators usually deny it, the victims may either deny it or are too young to disclose it and the community also denies it. The authors have therefore made the point that the new legislation endangers many vulnerable children by promoting the desirability of shared parenting as a concept for all families, by creating a climate where contact is the norm almost regardless of the behaviour of the parents and by forcing parents into mediation at the new family relationship centres. As the authors comment, and about which they are rightly critical, the only exception to this last requirement is if a parent can first prove to a court that there are reasonable grounds to believe that abuse or family violence has occurred or may occur (see s 60I (7) Family Law Act). One needs only to ask how many parents, usually mothers, are prepared or finan- cially or otherwise able to go to these lengths on the off chance that a court may relieve them of the necessity to attend a family relationship centre. Once there they are subjected to mediation in circumstances where there is general acceptance that such a procedure is inappropriate in cases of family violence and child abuse.This is inherently wrong. Secondly, the authors are courageous in the way that they have roundly criticised the family law system, including the courts, and have suggested the need for a unified family court system in Australia combining child protection and traditional family law jurisdiction. Coupled with this they say that there should be a unified law as to child protection.This is a view that I have long advocated and it is the only way that real progress is likely to be achieved in reforming the family law and child protection system in this country. They have also drawn attention to the extraordinary maze that operates in the area of family law and child protection, which seems to be exacer- bated every time the legislature looks for another ‘quick fix’ to a difficult x CHILD ABUSE AND FAMILY LAW Child abuse PAGES 31/8/06 1:58 PM Page x [...]... of abuse which occur, victims, families, and alleged and actual perpetrators Detailed consideration of each type of abuse is undertaken in Chapters 4 and 5 8 Child abuse PAGES 31/8/06 1:58 PM Page 9 A new understanding of child abuse in the context of parental separation 9 THE RELATIONSHIP BETWEEN CHILD ABUSE, PARENTAL SEPARATION AND DIVORCE The relationship between child abuse, parental separation and. .. the law framing problems of family violence after parental separation as set out initially in the Family Law Act of 1975 and subsequently amended as socio-legal understanding of family relationships and family violence has changed, culminating in the proposals for change enacted in the Family Law Amendment (Shared Parental Responsibility) Act 2006 The chapter considers case law under the Family Law. .. position Child abuse PAGES 31/8/06 1:58 PM Page 8 1 A NEW UNDERSTANDING OF CHILD ABUSE IN THE CONTEXT OF PARENTAL SEPARATION Our understanding of child abuse in the context of parental separation and divorce has changed recently In the past, allegations of child abuse given as a reason for parental separation, and/ or for restricted or no contact with a parent or other relative in family law proceedings... book has been built from the cutting-edge research the authors have undertaken in the fields of child 1 Child abuse PAGES 2 31/8/06 1:58 PM Page 2 CHILD ABUSE AND FAMILY LAW abuse and domestic violence, from the research of others, and from the authors’ professional experiences in social work and family law. The knowledge presented has been developed for the Australian environment, but most of it is... flexibility, patience and understanding—even to be beyond help THE DISTINCTIVE NATURE OF CHILD ABUSE IN THIS CONTEXT The abuse inflicted on children in the context of parental separation is different from other forms of child abuse It’s a bit like being Alice in Wonderland: what has been learned about child abuse generally does not hold true in this context Traditionally, child abuse reported to the child protection... defined by the child welfare legislation in the particular jurisdiction.The four categories are neglect, physical abuse, sexual abuse and emotional or psychological abuse Detailed definitions, description and discussion of each type of abuse are presented in Chapters 4 and 5 Chapter 4 focuses on child sexual abuse and Chapter 5 on the other types of abuse In other contexts, neglect and physical abuse are... professionals working with child abuse in the context of parental separation, divorce and family law proceedings It is aimed at those professionals working in the world of the family law service system: legal practitioners—especially family law practitioners; the judiciary, judicial officers and administrators; social workers and psychologists—many of whom will be child protection workers; and medical practitioners—... of residence and contact disputes were presented to family and divorce courts, as well as to family law professionals, legal practitioners, social workers, psychologists, psychiatrists, paediatricians, the judiciary and other court staff Soon family law professionals began to ask why there was such a marked increase in child abuse allegations in residence and contact disputes in family law proceedings... parents and their coping ability (Rodgers and Prior, 1998) We know now that child abuse in this context has distinctive features, including the way the abuse presents, the types of abuse that the victim suffers, the types of victims, the types of families in which it happens, and the types of alleged and actual perpetrators The allegations of child abuse in the context of parental separation and Child abuse. .. Family Law Act in relation to abuse suffered directly and indirectly by children Chapter 3 considers the protection offered to children and their parents by the legislation and its implementation where abuse has been alleged Child abuse is then discussed in considerable detail in Chapters 4 and 5 Chapter 4 discusses child sexual abuse, as this is a particularly common form of abuse in this context, despite . professionals to child sexual abuse 83 Conclusion 84 vi CHILD ABUSE AND FAMILY LAW Child abuse PAGES 31/8/06 1:58 PM Page vi 5. Other forms of child abuse 86 Community. cases of child abuse and further endangering the children. It Foreword xi Child abuse PAGES 31/8/06 1:58 PM Page xi xii CHILD ABUSE AND FAMILY LAW undoubtedly