Allegations of abuse in Family Court proceedings involving children

 

Adele Horin of the Sydney Morning Herald got a front page story and an opinion piece out of a report by the Australian Institute of Family Studies. You can read that report at:

 

http://www.aifs.gov.au/institute/pubs/resreport15/main.html

(initial link and summary) and

http://www.aifs.gov.au/institute/pubs/resreport15/aifsreport15.pdf 

(full report: pdf file).

Ms H’s pieces can, for the time being, be found at:

http://www.smh.com.au/news/national/bold-new-path-on-domestic-violence/2007/05/11/1178390559609.html 

(the front-page story)

and

http://www.smh.com.au/news/opinion/odds-still-stacked-against-the-children/2007/05/11/1178390549474.html

(the opinion piece).

 

The “revolutionary” part of the report is the suggestion (to simplify) that not all abusive behaviour on the part of fathers should disqualify them from having access to their children.  However, what interests me is the way that Ms H latches on to part of the report to make an argument that, under the new regime of presumptive shared care, the courts will need to be more vigilant to protect children from “bad dads” than they have been in the past.

The bit of her reasoning which interests me starts as follows [emphasis added]:

“The study, funded by the federal Attorney-General’s Department and undertaken by researchers at the Australian Institute of Family Studies, reveals that partner violence and/or child abuse is alleged in more than half the cases; and the abuse alleged is judged “severe” in most cases. This points to a level of domestic violence and child abuse (mainly physical) in faltering Australian marriages that is even worse than previously estimated.” 

Well, my first thought was “duh!” – who would bother to make an allegation if the abuse were not severe.  Of course, I was also mindful that this statement only dealt with allegations of abuse.  A point which Ms Horin did not overlook.

But wait, I hear you say, these are allegations of violence. Don’t women in these circumstances lie to exact revenge on their ex-partner? The study, based on case files, did not have the scope to determine the veracity of the allegations. That would require cross-referencing with police files and child protection agencies.” 

 Ms Horin had an answer to this. 

But the researchers point to overseas studies that show “false denials are more common than false allegations”.

As one of the authors, Professor Lawrie Moloney, said: “If you had to put a bet on a random set of allegations, you’d put your money on them being true.”In other words, some women do lie, but most don’t. Yet most children with abusive fathers are being shipped off to them for overnight visits.”

Can anyone else see the logical slippage here?  The starting point is that more of the allegations are true than are not true, but by the third sentence, this has become “most allegations are true.” 

There is also a more subtle elision (which only becomes apparent when you dip into the literature) from the question of whether the allegations are true to the assumed converse of whether mothers are lying.  To lie is to deliberately (or possibly, at law, recklessly) tell an untruth: the literature addresses the question of whether mothers are lying and recognizes that mothers can make allegations which they believe to be true.  Those allegations when investigated can turn out to be untrue or, in a residual grey area, “unsubstantiated.”  It is not hard to imagine that this will also include cases where allegations are made which are “severe” but concerning the truth (perhaps entirely unascertainable) may be of an incidence of abuse which falls short of that.

The Institute’s report is a lengthy and nuanced document, and I haven’t the time or energy to digest it properly.  Some of the relevant passages I have found include:

(in a footnote)

the most carefully conducted research (such as Johnston et al, 2005) suggests that the majority of allegations of family violence are fundamentally valid.  Similarly, Trocmé and Bala’s (2005) extensive investigation into allegations of child abuse in separation-related parenting disputes provides strong evidence that, while false allegations are more common in family law cases than in the general population, a very large majority remain fundamentally valid.” 

and in a summary, towards the end: 

“Drawing on data taken from 10,756 useable cases in the 2003 Canadian Incidence Study (also reported on in Trocmé et al, 2005), Bala and his colleagues summarised the situation as follows: “A significant proportion of allegations of child  abuse  made in the  context  of parental separation are  true, but  this is a  context  with a  relatively high rate of unfounded  allegations. While  some cases  of untrue allegations  are  due  to fabrication, more commonly unfounded  allegations  are  made in good faith. Pre-existing distrust or hostility  may  result in misunderstandings and unfounded allegations, especially in cases where the children involved are young and the allegations are reported through a parent. Some cases of unfounded allegations may be the product of the emotional disturbance of he accusing parent ”. 

The Trocme and Balla paper can be found at: 

http://www.leadershipcouncil.org/docs/Trocme.pdf  

The deeper you go down this rabbit hole, the more complex it gets.  The reason why all of this at first stirred my interest is not because I am an angry custody-deprived father (actually, the word “custody” is now passé) but because, in a related area, I have come across something in a related area which to my mind is fundamentally unfair.   

For about 5 years I attended Downing Centre Local Court as a voluntary legal aid lawyer.  That court deals, as do all Local Courts, with applications for AVOs (Apprehended Violence Orders: colloquially though not exclusively, domestic violence orders).  Women who apply for such orders against their male partners automatically, so far as I can make out, get the assistance of a dedicated (in the sense of exclusively and specifically assigned, and, indeed, full time and paid) legal representation facility, for free.  The men get no such assistance: they are often unrepresented, often ineligible for legal aid, and only sometimes will they obtain the assistance on a casual basis of pro bono legal representatives on the day.  Often they will be pressured to consent to interim orders (because they will be told: if you say you didn’t abuse or harass her, what have you to fear from an order preventing you from doing so?).  Those orders, once made, can have a prejudicial effect on subsequent disputes. 

The lopsided availability of legal assistance must also have a carry-over effect into the determination of such disputes, or even (as in the Institute’s study) the nature of the information contained on the court file on which studies and further recommendations are made.  For example, the Institute’s study does consider the question of whether parties were legally represented, but does not appear to consider the extent or nature of that support, and how it has been resourced, which would obviously have some bearing on the capacity of parties to adduce or meet evidence.    

There is a reason that the system has evolved to this point (yes: many men do abuse women and, for that matter, children, and for a long time this has been under-recognized) but, quite apart from the unfairness to individuals, I can’t help thinking that this is the beginning of a more systematic feedback loop which distorts findings of fact throughout the system.  The “more” to “most” slippage in Ms Horin’s reasoning seems to me to be both an instance and a consequence of this.  I think that similar corrective motives, as well as an understandable desire to urge on the side of caution where the protection of children is involved, lead to a willingness to find that child abuse has occurred, as well as the, to me, unbelievably high (or misleadingly, so far as they compound a very wide range of severity of conduct) figures which are sometimes trotted out in relation to the incidence of child abuse.  That is probably the subject for another post. 

Ms Horin is a journalist, and so one can expect that there will be some necessary superficiality in her approach, but I can’t help also thinking that she has also fired yet another short in the ongoing war of the sexes here.  

[Postscript: I have struggled against the automatic formatting from wordpress with the paragraph formatting for this post but for the time being have been unable to prevail against its insistence on joining my paragraphs or to work out how to correct the anomalous fonts.]

2 Responses to “Allegations of abuse in Family Court proceedings involving children”

  1. ninglun Says:

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    like that, and the gap should appear in the right place.
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    like this

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  2. Nick Langford Says:

    This is an interesting discussion. Writing from the UK, my position is influenced by the fact that I have been the victim of false allegations and am a researcher for a well-known equal parenting pressure group.

    Estimates of the proportion of allegations in the UK which are false range from zero (from certain women’s groups) to 80% or 90% from some family court judges. My inclination would be towards the upper end of this range.

    It is certainly the case here that false allegations are supremely effective at preventing contact; they are free, rarely investigated, and never result in penalties when they are found to be false. There is really no reason why a parent intent on preventing contact should NOT make a false allegation.

    It is even claimed that certain types of allegation are ONLY made in the context of contact and custody (residence) disputes. It is certainly true that false allegations differ in nature from true allegations, and a competent family court judge (how many of those are there?!) should be able to distinguish between them. In particular, false allegations tend to escalate, are difficult to repeat absolutely consistently, and don’t stand up to cross-examination.

    In the UK none of that matters, because the same judge never sits on a case twice, the court welfare reporters (CAFCASS) aren’t trained to spot inconsistencies, and cross-examination never happens.

    It might be interesting to note that in my own case, and I suspect in many others, the large number of allegations made were ALL false, while opportunities to make genuine allegations were missed or ignored. My experience of listening to hundreds, possibly thousands, of cases, is that when the false allegations escalate, they always follow the same pattern, and it is very easy to identify when they are false, and when they are not.

    When allegations are not dealt with properly in court – and I believe they should be dealt with in the criminal and not the family courts – there is no way of knowing whether they are justified or not, and so there is little potential for research in this area because of the lack of evidence. I am certainly not aware of any studies which seek to find structural differences between false and true allegations, though it should be a fascinating and fruitful area of study.

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