AUSTRALIA’S FAMILY COURTS – WHAT WORKS WHAT DOESN’T

The courts and how they affect children are increasingly of concern. Catharine Lumby – Professor of Media, University of Sydney – and Camilla Nelson – Associate Professor in Media, Notre Dame University – have now co-authored Broken Children, Parents, and Family Courts. Their work explores the complexities and failures of Australia’s family courts through the stories of children and parents whose lives have been shattered by them. On Tuesday 16 November 2021, Catharine Lumby and Camilla Nelson addressed The Sydney Institute to discuss some of the issues their book raises.

AUSTRALIA’S FAMILY COURTS – WHAT WORKS WHAT DOESN’T

CATHARINE LUMBY & CAMILLA NELSON

In cases before the Federal Circuit and Family Court of Australia, children are often victims of domestic abuse and are directly affected by the separation of their parents. Yet children report their encounters with the family law system can be intimidating, insensitive, age-inappropriate, and hostile. The adult-centric culture of the law works to marginalise them – and can profoundly silence them – including when children express safety concerns.

In its original incarnation, the Family Court, governed by the revolutionary Family Law Act of 1975, was intended as a forum that not only operated to facilitate no-fault divorce but equally to ensure that parenting arrangements were made in the “best interests” of any children involved. But who we think children are and how we understand their needs, rights and “best interests” is not as simple as it sounds.

How we understand childhood, as historian Philip Aries wrote in his iconic book Centuries of Childhood, is social, cultural and political. It varies between cultures and historical periods. It is influenced by class and gender. We tend to see childhood and adolescence as fixed states – as periods of life where there are necessary limits on rights, agency, and access to knowledge. Our book challenges that idea and asks us to question when and how children can be heard in the court systems that determine their safety and wellbeing.

In Australia, the twentieth century saw an increase in the age at which we understand childhood to end. At the beginning of that century the age of consent was still, in some jurisdictions, as young as 12 years old. It’s a fact which is utterly shocking to contemporary Australian minds. Today we have extended the notion of childhood, or at least the protections afforded most children, well into adolescence. But when does the importance of protecting children become equally bound up with an unconscious and anxious desire to silence them?

History tells us that discourses of protection are often exactly that: an excuse for controlling the voices of those the powerful do not want to hear from or recognise. Or particularly those that challenge their authority. This may account for why – even as the age of consent went up – the government has refused to raise the age of criminal liability from 10. At age 10, police have the power to arrest, strip-search and imprison children.

Children are the last disenfranchised group.

Corporal punishment was still used in some Australian primary schools in the 1960s in the form of the cane. Many middle-class, twenty-first century parents would be ringing a lawyer if any teacher so much as yelled at their child and yet it was totally acceptable to many parents in the 1960s and even 1970s that children could be caned by a teacher. It is a fact that puts the way we see childhood and children’s agency into historical perspective.

It also helps to explain why children’s views are inadequately taken into account and their voices not taken seriously in the family law system. If you read the case law and speak to parents and children who have been dragged through what lawyers routinely call “The Chamber of Horrors” (aka the Federal Circuit and Family Court) one thing emerges again and again: children are trapped.

Not simply in the middle of their parent’s divorce, but in the middle of a political and discursive minefield that increases parental acrimony and silences children.

Understanding how and why children are still silenced, disbelieved, or ignored in society matters because it affects how they are understood by and in the justice system. And, despite the fiction that judicial officers stand outside politics, it is simply not true. The family law is political. It was born out of and tempered in the crucible of 1970s social and political activism. And it remains highly politicised today.

Judges are no doubt trying to act in the “best interests” of children as defined by the legislation. However, we do want to raise this question. When adults think we are protecting children are we sometimes protecting ourselves? Or to put it better: are we protecting the idea of adults protecting children? More radically, could it be that the “best interests” of children, defined by law, are really just a proxy for the “best interests” of adults?

One of the biggest obstacles to confronting domestic abuse and child sexual abuse is the stereotypical notion that children are fantasists who make things up, or are prone to manipulation by a parent who plants ideas in their heads. Words such as “brainwashed” are regularly used to describe children in family court judgments, even though such terms are not regarded as rigorous, scientific or clinically accurate outside the closed confines of family court culture. Indeed, the rhetoric deployed in the family courtroom frequently extends well beyond the idea of children as malleable and susceptible (or, in the terminology favoured by family lawyers, “schooled”, “coached”, “influenced”, “aligned”, “enmeshed”, and – notoriously – “alienated”) to exhibit an uncanny preoccupation with the idea of children as duplicitous, children as fantasists, and children as liars. But if you ask any survivor of abuse – male or female – they will likely tell you how specifically and traumatically they recall their experiences.

As recently as 1984, former High Court Chief Justice, Dyson Heydon, felt comfortable writing in an edition of his widely used and highly cited legal textbook, Evidence: Cases and Materials, the following about children’s reliability as witnesses: “Children sometimes behave in a way evil beyond their years. They may consent to sexual offences against themselves and then deny consent. They may completely invent sexual offences.”

Why the persistent narrative suggesting children are likely to make things up for no reason when, as most parents know well, children are often the most inconveniently bluntest people on the planet? And what is at stake in our refusal to take children at their word?

One of the vexed issues confronting the family law system is how to deal with allegations of child sexual assault. Intra-familial sexual assault of children is an area where it is notoriously difficult to gather meaningful data because of long acknowledged underreporting of abuse, although most studies place the figures at with an average of 7.6 per cent for sexual abuse among boys and 18 per cent for sexual abuse among girls. But when these allegations come before the family courts, they do so in the teeth of a persistent narrative that children make up stories and do this because they have been coached by a mother who is portrayed as vengeful, deceitful and manipulative. These narratives come together because the court has, in many ways, functioned as a de-facto forum for highly politicised debates about the institution of the family and the role of children and women in maintaining or disrupting it.

The important point here is that the ideological battles played out in family courts and in its history concern not only gender roles but equally how we understand the role of children and their “proper” place in society. The backlash against feminist attempts to expose child sexual abuse, primarily of girls in the first instance, is equally a series of battles over who controls the right of children to be heard and acknowledged as fully human.

The Royal Commission into Institutional Responses to Child Sexual Abuse was a turning point in the social and legal recognition of child sexual abuse – including its extent and prevalence – and the failure of institutions to respond appropriately to children’s reports of abuse, although it did not investigate the family courts. What is less discussed about the Royal Commission’s findings is that society was only prepared to listen to the testimony of child abuse victims once they became adult survivors.

The issue of the way the Family Law Act disrupted traditional notions of the family and in particular the rights of men to their wives and children – and let’s not forget that women were regarded as the property of men (fathers and husbands) not so long ago – goes to the heart of another persistent narrative. That the Family Court consistently wrongs men, allows women to steal their children and force men to pay for the privilege.

Many of you here will remember when, in the early 1980s, the Family Court and its judges were subject to violent attacks. A judge was shot dead and a string of lethal bombings followed. A judge’s wife was killed when she opened the front door, a judge and two children were injured in their home, a bomb exploded outside the court in Parramatta and a fourth bomb killed a person and injured 13 others in a church hall.

It was only recently that Leonard Warwick was tried and convicted of these attacks and given a life sentence. His murderous acts were triggered by a dispute with his ex-wife over care of their daughter. But commentary at the time suggested that the fault did not lie with the perpetrator, but with the Family Court instead. After the murder of the judge’s wife, the Dean of St Andrew’s Cathedral went so far as to claim in a sermon that her death had been necessary to draw attention to the court’s deficiencies, so that “good” could “come out of evil”.

This narrative that portrays men who are violent – usually to their wives and often their children, too – as ‘driven to breaking point’ remains far too common. It is a powerful narrative, actively cultivated by men’s rights activist groups, about men driven “over the edge” by a family law system in the thrall of the feminist lobby and/or by vindictive mothers who will do anything to prevent a former partner from seeing his children.

In a recent Joint Select Committee on Australia’s Family Law system, Deputy Chair Pauline Hanson repeatedly claimed that women make allegations of domestic violence to gain advantage in the family courts and expressed fervent sympathy for men’s rights groups.

It is telling that the language of the men’s rights movement focuses on their right to their children and not on their responsibilities as fathers.

The men’s rights activists lobby needs to be differentiated from men who, like many people who have been through the Family Court system, walk away feeling they have not found justice. Men’s rights activists in their most toxic form fundamentally believe they have ownership rights to women and children and will prosecute their case at any cost to all involved. If they have money, they use repeated litigation as a form of abuse.

The men’s rights activist movement can be fairly simply distinguished from movements and organisations that genuinely focus on issues affecting men such as mental and physical health. The movement’s unfailing focus on denouncing women is something of a clue. Despite this, the movement has had an enormous impact on broader social perception of divorce, how men are treated by the court, on public policy and legal reforms and ultimately on the court itself.

In the wake of a series of reforms instituted since the mid-1990s the guiding principle for judges is this: that children have a right to regular contact with both parents. On the face of it, this a reasonable and progressive assumption and one that should indeed operate in normal circumstances where a marriage breaks down and both parents are responsible and loving and capable of sharing care.

But the cases that come before the court are mostly cases involving domestic abuse, with complicating risk factors, including criminal conduct. At least one parent will not be reasonable. At least one parent will be fearful. And that is where the problems begin in an adversarial system that turns out to be the worst possible forum to hear the complex stories of families and children.