False Allegations of Sexual Abuse
Family law judges need training in child psychology so they can better protect children from abusive parents, lobby groups say.
Family Law Act reforms, to take effect on Thursday, have been welcomed by the National Council for Children Post Separation and the National Child Protection Alliance as a step in the right direction.
But both groups say the reforms, which broaden the definitions of ”family violence” and “abuse”, do not do enough for a system that does not put child safety as its top priority.
University of South Australia senior lecturer Elspeth McInnes, an expert adviser to both groups, says Australia’s family law system focuses on resolving family disputes between private citizens.
But the focus should be first and foremost on child protection, she says.
To the average viewer, this video testimony (and others like it) on how the Family Court decided to take a young boy away from his loving mother sounds all too familiar. Even worse and as the mother states, the Family Court placed the child in the sole custody of his sexually abusive father.
Now this sounds like a loving, decent and honest mother’s worst nightmare, doesn’t it?
We have all heard countless such stories in the media leading up to the repealing of Australia’s 2006 Shared Parenting laws by the the Gillard Labor government. These stories have become the foundation that many mothers’ groups have relied upon to create the necessary momentum to change Australia’s Shared Parenting laws into a set of laws that on any fair description are ‘shared parenting’ in name alone. I should emphasise that the current family law act is in many ways far worse than the legislation that was replaced back in 2006.
For many Australians, you would perhaps believe that such abuses did previously occur, not simply as a one-off aberration, not even on rare occasions, but all too often within the Family Court. I mean these were the stories that we have kept hearing from the likes of Adele Horin from the Sydney Morning Herald and Caroline Overington from the Australian. So they must be true, right?
Editor: One can only wonder why she made these false allegations, but I would add that if it had something to do with her pursuing a sexual encounter behind her boyfriend’s back, then she would neither be the first nor last to have sought to hide her clandestine activity by falsely accusing an innocent third party.
A 21-year-old Sydney woman has been sentenced to 15 days jail in Phuket for falsely accusing a local taxi driver of assaulting her.
The woman, whose name has not been released, told Thai police she was the victim of an assault early on Sunday on the resort island and that two other Thai men restrained her during the attack.
The report, confirmed by Phuket Provincial Court sources, said the woman initially told the officers she become separated from her boyfriend in a nightclub area of Patong early on Sunday morning.
She said she was taking a taxi back to her resort when the driver picked up two other men.
She alleged he then drove to a secluded area and assaulted her while the other men held her down. Afterwards, they took her passport and cash.
THE extraordinary case of the Federal Court magistrate reduced to writing a letter to two children, explaining why he had cut them off from their father, is part of a painful pendulum shift in Australian family law.
The shared parenting reforms of the Howard era are giving way to a new paradigm in which fathers fear they are being excluded.
Magistrate Tom Altobelli’s letter to the boy, 11, and girl, 6, was nicely written. But it is no substitute for the love of a father whose contact has been reduced to letters, birthday cards and gifts.
The mother had accused the father of sexually abusing their daughter. The court heard her belief was based on the predictions of a clairvoyant.
Magistrate Altobelli, who heard all the evidence, concluded the father had not done it. Yet the father was still punished by losing his children.
“I decided that you had not been hurt by your dad,” Altobelli wrote in the letter, to be opened by the children when they turn 14.
“Even after I told your mum what I decided, I think she still believed in her heart that your dad had hurt you.”
A former US high school football star has said he holds no grudges against the woman who falsely accused him of rape 10 years ago.
Brian Banks spent five years in prison after he was convicted in 2002 for the rape of his Californian high school classmate Wanetta Gibson when he was 15 and she was 16 years old, the US Today Show reports.
Ms Gibson has since stepped forward, first admitting to Mr Banks over Facebook and then to a private investigator that she made up the story of him dragging her into a stairwell and raping her.
Yesterday Mr Banks walked from a Los Angeles courtroom a free man after his conviction was overturned.A registered sex offender still on probation, Mr Banks was still wearing a court-ordered tracking device on his ankle.
Jerusalem — January 20, 2012 …. For many divorced fathers in Israel, the declaration yesterday by Israel Justice Minister Yaakov Neeman that divorced parents must now share custody of children, may have come too late. Neeman has accepted recommendations by the Schnit Committee that joint parental custody be ordered in divorce cases involving young children, which the law defines as those up to age 6. Until now, most divorced fathers became visitors, being limited to seeing their children only a few hours a week.
As the new law comes into affect, thousands of dads in Israel would have lost any opportunity of fatherhood due to the fact that their children have already grown up or that their children suffer from PAS – Parental Alienation Syndrome. With PAS the children become alienated against the father as the mother has pushed him away and brainwashed the children that he is of no worth, or perhaps even bad for whatever reason she creates.
The 2009 Australian project a ‘Time for Action: The National Council’s Plan for Australia to Reduce Violence against Women and their Children, 2009-2021′, was approved for implementation by the Council of Australian Governments (COAG). The Plan, which is split into several parts, puts forth recommendations for new legislation, changes to judicial processes, requests for funding and ideas for domestic programs targeted at reducing domestic and sexual violence against women. The advisory council has some powers to implement programs through the Office of Women among other agencies, but much of what the government funded program calls for requires approval by Parliament.
The entire premise of the National Plan was underpinned by the belief in this statement:“While a small proportion of men are victims of domestic violence and sexual assault, the majority of people who experience this kind of violence are women in a home, at the hands of men they know.”[27-pg1] But a quick examination of the statistics and data shows a much different picture to the rather sweeping indictment of Australian men the National Council paints.
Hmm, a US website that publishes the identities of false accusers, for all to see.
This idea may end up being a great, albeit only deterrent to the epidemic of false allegations in the Family Courts.
Given that the Gillard government will soon be encouraging even more false allegations in the Australian Family Court by removing any penalty for perjury, then maybe using the internet to expose the truth may become the only option available to bring some common sense to this rampant crime against innocent parents and children.
I would go one further and ensure that both male and female false accusers to be published, as long as the weight of evidence concludes that they have knowingly made a false allegation.
I see the publication of these moral criminals and child abusers by any other name, as no different to the publication of deadbeat dads that have proliferated across the web, although one would have to consider the necessary safeguards in order to protect minors when child abuse is alleged. This part would have to be thought out carefully.
In any case, if it is good enough to out one form of abuse, then surely it is good enough to out another form.
Perhaps this is an idea that should be explored further for Australia.
NON-CUSTODIAL PARENTS PARTY (EQUAL PARENTING)
Deputy Registered Officer,
Non-Custodial Parents Party (Equal Parenting),
28 March 2011.
Senate Legal and Constitutional Committees,
PO Box 6100,
CANBERRA. ACT. 2600.
Re. Family Law Legislation Amendment (Family Violence and Other Measures) Bill 2011
We thank the Senate Legal and Constitutional Committees for providing us with the opportunity to make a submission with regard to the Family Law Legislation Amendment (Family Violence and Other Measures) Bill 2011
Our submission is identical to the combined media release issued by the Family Law Reform Association and other similar organizations such as our political party.
The Family Law Legislation Amendment (Family Violence and Other Measures) Bill 2011 was introduced by the Attorney-General Robert McClelland into the House of Representatives on 24 March 2011. If passed by Parliament, the resulting legislation will significantly adversely amend the Family Law Act 1975.
The proposed amendments to the Family Law Act are a source of deep concern and dismay to our members and to the many thousands who have sought greater equity and justice in parenting orders made by The Family Court.
Since the introduction of the 2006 reforms giving greater emphasis on shared parental responsibility, doctrinaire feminists, academic ideologues and others with entrenched positions associated with the Family Law system, have been working to overturn them. Now, under the guise of dealing with family violence, the current government’s proposed amendments will effectively sabotage the success of shared parenting responsibility under Family Law.
The proposed amendments will make it much easier to postpone, minimise or terminate parental contact by an allegation of some form of “family violence”.
It is worth noting that a major architect of the proposed reforms preferred a legal presumption that family violence existed in all cases before The Court. Whilst this extremist view has rightly been rejected, the combination of proposed provisions outlined below will come close to achieving the same effect.
In essence, the proposed amendments contain the following provisions:-
Schedule 1. Item 9, subsection 12E(3) and item 32 “Before paragraph 69ZQ(1)(a)”.
The Court, in every case before it, will be required to “proactively inquire” i.e. invite the parties to make allegations of family violence against each other. This is additional to similar obligations on the party’s legal representatives .
Schedule 1. Item 3, subsection 4(1)).
The definition of “family violence” will not be restricted to physical or mental abuse but will be completely open ended. It will include any behaviour a party claims makes them feel threatened “irrespective of whether that behaviour causes harm”, or to feel unsafe. Such fears need not be reasonable but instead are to be totally subjective, based only on the complainants claimed state of mind. The normal legal standard of the reasonable person test will not apply. Thus, it will be almost impossible for an accused to refute such claims.
Schedule 1. Item 43, Section 117AB).
The Family Court does not have criminal penalties for perjury despite false testimony having the potential to create enormous wrongs, injustice and damage. Partly because of this, the Family Court is notorious as “The Liar’s Castle”. The Court’s reputation will be further damaged by the proposed provision to dispense with the existing meager sanctions for those knowingly making false allegations or statements in proceedings. This can only give encouragement to make such allegations or statements. When added to the other proposed provisions it creates a toxic legal cocktail.
Schedule 1 Items 18,19 and 20 “Section 60CC” and Items 26 and 27 (Note 1)).
The dangers outlined above are further exacerbated by the removal of the “friendly parent provisions”. This will prohibit the Court from giving consideration to the extent the parents have fulfilled their obligation to encourage a healthy relationship between the children and the other parent. The Court should not be placed in this legislative “straightjacket”. It is vital that The Court is able to examine all the issues central to the welfare of the child rather than having to operate wearing legislative “blinkers”. Given that the parties before The Court are in dispute, standard legal principles require the Court be able to investigate all issues directly relevant to the merit or otherwise of the parties. Any attempt to fetter a Court of Law in its relevant enquiries is generally condemned by the legal fraternity. Again, this provision reveals a diminished view of the importance of maintaining a healthy relationship between both parents and the child and exposes the true intent of the amendments.
Effects of the amendments
Inevitably and predictably, the amendments will encourage a sharp increase in totally false or grossly exaggerated allegations by one parent against the other in cases before The Family Court. Far from diminishing actual family violence, the following likely outcomes will only increase the risk.
• Greatly increase the workload of The Court and other organisations as a plethora of claims are investigated and assessed.
• Greatly increase the time and cost in settling cases creating a lawyers bonanza whilst increasing stress and frustration to the parties.
• Greatly increase the cost to the taxpayer of operating the Family Court and its associated agencies and the cost to the community as a whole of increased friction and more protracted Family Court cases.
• Increase the demand on limited government funded legal aid.
• Greatly increase the demand for supervised contact centres, already overburdened, costly and unavailable to most parents desperately needing such a service.
• Greatly increase the number of children whose relationship and contact with their non resident parent is terminated, postponed, reduced or otherwise curtailed due to false or grossly exaggerated claims of “family violence”.
• Greatly increase the amount of friction between the parties as one or both take advantage of system’s multiple invitations to make allegations of “family violence” against the other.
• Hamper the Courts ability to identify real and acutely dangerous situations as it is diverted with vexatious, false or grossly exaggerated allegations.
• Greatly increase the potential for actual violence between parties where previously there would have been little or none. This will occur as non resident parents find the system has stacked all the cards against them, dramatically affecting their contact and relationship with the children and all the associated consequences.
• Greatly increase the level of suicide and deterioration of mental health for non resident parents (typically the male). Respected studies have shown that separated males are six (6) times more likely to suicide than attached males. Further, this rate was even higher amongst younger males (thus more likely to have younger children ). Moreover, the highest rates occurred during the divorce phase.
• Without the normal legal protections, the chances of success for the vexatious, manipulative, inflexible, vindictive, dishonest, or mentally unbalanced parent will be greatly increased. Parents with these and similar attributes will readily take advantage of the “free kick” being offered by the proposed amendments. This parent will then become the primary or sole parental role model for the children.
• Faced with the prohibitive cost of pursuing a right of contact, and the associated psychological stress, many non resident parents will simply withdraw, leading to a great increase in the numbers of the
“family law stolen generation” children wrongfully alienated from a non resident parent (typically the father). This will amplify the well documented higher rates of negative outcomes for children brought up in fatherless environments
Impact on legal principles
The proposed amendments have provisions which are unmatched in any other area of law. We believe they offend several basic legal principles:
a) The ambiguity and lack of certainty in the new, unlimited and subjective definition of “family violence”.
b) The presumption of guilt unless an allegation of “family violence” can be disproved which will be frustrated by the subjective test for “family violence”.
c) The proposed amendments will force the judge to ignore the standard legal test of the reasonable person.
d) The restrictions on the court’s ability to investigate the merit of the parties.
e) The lack of any real sanction from knowingly making false allegations and statements in the proceedings.
f) The court making “proactive inquiry” into the single issue of “family violence” tantamount to inviting the parties to make an allegation and additional to similar obligations on the parties legal representatives.
Lack of objective research
Although the amendments are claimed to be supported and underpinned by various academic studies etc, such studies are only valid if they are objectively conducted with an open mind and from a non ideological platform. We have seen no reliable statistics or studies which show:
a) Any significant upsurge in actual family violence, supported by police and medical records since the introduction of the 2006 Family Law reforms and which can be reasonably attributed to the 2006 reforms.
b) Any explanation of how an inevitable increase in tensions, legal costs, case time and demands on limited resources will reduce family violence.
c) Any explanation of how an inevitable increase in the number of cases where parent – child contact is unjustly affected, will reduce family violence.
d) Any studies on the affect on children of curtailing contact with a parent who has had a caring, loving relationship with the child but has been subjected to allegations by the other parent.
e) Any studies on the impact on suicide rates and other mental issues in non contact parents, unjustly denied contact with their children.
Based on our research and experience, we maintain that the 2006 reforms have worked well and sensibly in encouraging shared parental responsibility while at the same time providing appropriate protective measures for adults and children against family violence. The evil in the amendments is to encourage a presumption that family violence and abuse of children customarily exist in contested matters before the Court.
We also believe the amendments are an underhand means of sabotaging the 2006 reforms under the guise of preventing family violence. We vigorously oppose the amendments.
Deputy Registered Officer,
Non-Custodial Parents Party (Equal Parenting),
– A better solution
Family Law Amendment (Joint Residency) Bill 2002.
(This Bill was proposed by the then Senator Len Harris in 2002, but not adopted)
There is now a very widespread view in the community that some family violence orders are sought for tactical or collateral reasons to do with family law disputes. People have bcome very cynical about them. A national survey conducted in 2009, with over 12,500 respondents, found that 49% of respondents agreed with the proposition that ‘women going through custody battles often make up or exaggerate claims of domestic violence in order to improve their case’, and only 28% disagreed. While it might be expected that men would be inclined to believe this, 42% of women did so as well.
The view that some family violence order applications are unjustified appears to be shared by state magistrates in New South Wales and Queensland. Hickey and Cumines in a survey of 68 NSW magistrates concerning apprehended violence orders (AVOs) found that 90% agreed that some AVOs were sought as a tactic to aid their case in order to deprive a former partner of contact with the children. About a third of those who thought AVOs were used tactically indicated that it did not occur ‘often’, but one in six believed it occurred ‘all the time’. A similar survey of 38 Queensland magistrates found that 74% agreed with the proposition that protection orders are used in Family Court proceedings as a tactic to aid a parent’s case and to deprive their partner of contact with their children.
90% of surveyed NSW Magistrates agreed that AVOs were sometimes or often sought as a tactic in order to deprive a former partner of contact with the children.
In research that our research team recently published on the views of 40 family lawyers in NSW, almost all solicitors thought that tactical applications for AVOs occurred, with the majority considering it happened often. In another study based upon interviews with 181 parents who have been involved in family law disputes, we found a strong perception from respondents to family violence orders (both women and men) that their former partners sought a family violence order in order to help win their family law case. This is a quote from one of the women in our study. Her former husband, who we also interviewed, sought an apprehended violence order (AVO) to keep her away from the house after she had left it.
A survey of 38 Queensland magistrates found that 74% agreed with the proposition that protection orders are used in Family Court proceedings as a tactic to aid a parent’s case and to deprive their partner of contact with their children.
She said this:
“I thought this is ridiculous. What’s he giving me an AVO for? I haven’t done anything to him. I haven’t hit him, kicked him. We never had any violence in our marriage. Why have I got an AVO? … you can put an AVO on someone and say that they’re violent, and the only way you can get a child off their mother is because they’re violent. And that’s why I think he gave me the AVO.”
The belief that family violence orders are a weapon in the war between parents is fuelled by the fact that judges are required under the Family Law Act to consider such family violence orders in determining the best interests of the child. The proposed clause in this Bill takes the law back to what it was before 2006, without any explanation for why Parliament should reverse its previous decision at least to limit the provision. It really doesn’t matter whether this belief that family violence orders are used tactically is true or not. The fact is that the perception is out there and it is held by state magistrates and family lawyers, as well as the wider community.
The retention of this provision in the Family Law Act simply fuels the suspicion that family violence orders are being misused.
This is damaging to the credibility of the family violence order system and the courts.The second reason why the requirement to consider family violence orders ought to be removed is that this serves absolutely no purpose. Yes, the court needs to know about the existence of a current family violence order in order to consider how to frame its own orders (s.60CG), but that is dealt with by requiring people to inform the court of such orders (s.60CF). Why consider them again in deciding what is in the best interests of a child (s.60CC(3))? The court is already required to consider the history of violence. What does it add to require the court also to consider a family violence order? The impression given by the legislation is that these orders are somehow evidence that there has been violence. However, that is a misunderstanding.
In research that our research team recently published on the views of 40 family lawyers in NSW, almost all solicitors thought that tactical applications for AVOs occurred, with the majority considering it happened often.
Family violence orders have absolutely no evidential value in the vast majority of cases. This is because, in the vast majority of cases, they are consented to without admissions. The hearings in these uncontested cases are very brief indeed. Prof. Rosemary Hunter, in observations in Victoria in 1996–97, found that the median hearing time for each application was only about three minutes. Applications were typically dealt with in a bureaucratic manner, with magistrates being distant and emotionally disengaged. To the extent that applicants were asked to give oral evidence, they were typically asked to confirm the content of their written application, and very little exploration of the grounds for the application took place.
Dr Jane Wangmann, in a recent analysis of court files in NSW, reached finding very similar to Hunter’s. In her observations of AVO matters in 2006–7, she found, like Hunter, that cases were dealt with in three minutes or less. She also noted that the information provided in written complaints was brief and sometimes vague. It is hardly surprising, then, that judges in family law cases draw no inferences from the mere existence of a family violence order. This has been the clear view of family lawyers for the last 15 years.
Indeed, in the research we recently published on the views of 40 family lawyers in NSW, none of the lawyers who responded to the question believed that judicial officers gave AVOs much consideration in determining parenting disputes. Judges, they indicate, want to evaluate the evidence of violence itself, not the fact that another court has made an order about it by consent and without admissions.
Family Law Legislation Amendment (Family Violence) Bill 2011
Submission to Senate Committee on Legal and Constitutional Affairs
by Prof. Patrick Parkinson, University of Sydney