The Impact of Family Court Decisions on the Christmas Holidays

by Sonia Hickey
Sad man on Christmas

Christmas is a time when families are meant to be together, sharing each others’ company and reflecting on the things in life that really matter.

And despite travel restrictions, most families will be able to spend time with one another on this important day.

But spare a thought for those for whom today is an incredibly difficult time – whether due to travel restrictions, the loss of a loved-one, a court decision or any of a number of other reasons.

Family court

Sadly, many parents won’t be able to spend Christmas with their children this year, as a result of decisions made by the Family Court of Australia.

The Family Court and its counterpart, the Federal Circuit Court, have been heavily criticised for a range of reasons. Many believe its judicial officers are far from impartial, and do not act ‘in the best interest of the child’, as they are supposed to.

The court has also come under fire in recent years for the weight it gives to reports by ‘court experts’, some of whom are seen as far from impartial.

Court experts

Court experts in family law cases are court appointed psychologists who act as single expert witnesses, and who can wield an enormous amount of sway when it comes to Family Court decisions.

Families divided

There have been accounts for many years about Mums and Dads being completely shut out of their children’s lives, based on reports written by these practitioners. 

And it is important to note that these reports are not peer-reviewed, which means a single person can, for all intents and purposes, decide the fate of an entire family.

This presents a great risk not just for parents, but for children too. 

Case in point 

Two fathers recently contacted us following formal complaints made against a psychologist they assert completely ‘destroyed’ their personal characters in reports to the court, which they say were founded on inaccurate information.

Both of the people who reached out to us assert that, a result, they have lost all contact with their children – not even permitted to make phone calls to them.

The fathers’ complaints include a number of serious allegations, including misdiagnosis of a psychological condition, failure to provide evidence to support the reports presented to court, as well as the failure to declare a conflict of interest.

The dangers of getting it wrong 

This is not the first time complaints have been made about a court-approved experts.

In 2018, a Sydney-based expert was referred for investigation over allegations he prepared “grossly inaccurate” reports as evidence to support claims of child abuse and family violence.

A group of parents accused the expert of “inaccurate and incomplete” recording of interviews, “misdiagnosis”, and the application of “unscientific theory” in reaching his opinions. 

The Medical Council was called in to investigate, although as many have pointed out, while the Medical Council has power to suspend or discontinue a practitioner’s registration if it believes there are reasonable grounds to do so, there is little other accountability for the damage already inflicted upon families. 

It should be pointed out that, although the consultant’s opinion is not binding on the court, it does have significant influence. 

Family Law Act 

Section 62G(2) of the Family Law Act 1975 (Cth) empowers the court to direct a family consultant (court counsellor) to make a report. 

In making a report, the consultant will commonly interview each parent and the child individually, unless the child is too young for this to be appropriate. The report is then prepared for the court and served on all the parties involved. 

The Family Law Act 1975 stipulates that court decisions involving children must be in the best interests of the child. But the way a court proceeds will depend heavily on the information before it, including that which is contained in reports.

False child sexual abuse allegations

A recently published survey “Allegations of child sexual abuse: An empirical analysis of published judgements from the Family Court of Australia 2012–2019” found that where sexual abuse allegations were made against a parent, only 14 per cent of the allegations were substantiated. 

After fourteen years in the Family Court of Australia, one judge, Justice David Collier asserted that he has witnessed an increase in false allegations of child sexual abuse being made by women against their male former partners with a view to blocking contact with children.

”When you have heard the evidence, you realise that this is a person who’s so determined to win that he or she will say anything. I’m satisfied that a number of people who have appeared before me have known that it is one of the ways of completely shutting husbands out of the child’s life”, the judge stated.

False complaints can be made for any one or more of many reasons – out of anger or vengeance, for financial interests, to bolster family law claims, to seek attention, as a cry for help, due to mental health issues (including Munchausen’s syndrome) – the list is endless.

But where these allegations are believe by a court expert and contained in his or her report, the consequences for the falsely accused can be devastating.

Change is slow in coming 

While initiatives for change are said to be underway, such as specific training to better help judges to understand the dynamics of family abuse, and child sexual abuse, and to assist them to more accurately identify vexatious claims of abuse, there is still the issue of cases that have already been decided.

There are also a significant number of complaints from women too, who speak up about real instances of violence, only to have court experts write reports which state that the children have been ‘coached’ into supporting vexatious complaints resulting in decisions which give the perpetrator access to the children.  

While the courts are stretched to capacity, and under-resourced, it’s clear that the current system is failing our families. 

Earlier this year, the Federal Government passed legislation to enable the merger of the Federal Circuit Court and the Family Court to create the Federal Circuit and Family Court of Australia (FCFC). Many have argued that the creation of a larger ‘non-specialist’ court will be to the detriment of justice served, especially in the case of children and adult victim-survivors of family violence.

What can families do? 

There is no doubt that separation and divorce are an emotionally fraught, tense and difficult time. However, experts say it really is best to avoid having a judge determine the future living and custody arrangements of children where possible. 

Parents should aim to be reasonable with each other and access all the resources available, such as help from Relationships Australia to work out parenting plans.

Rather than focus on litigation, many would be well-advised to take the opportunity to work through various scenarios at the negotiating table prior to going to court. 

Where there is abuse, parents are encourage to collect substantial proof, including any contact with police, or domestic violence assistance services or Apprehended Domestic Violence Orders (ADVOs) previously or currently in force. 

And those who make false child abuse allegations should be prosecuted, with a view to bringing them to account and deterring others from doing the same.

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Author

Sonia Hickey

Sonia Hickey is a freelance writer, magazine journalist, and owner of 'Woman with Words'. She has a strong interest in social justice and is a member of the Sydney Criminal Lawyers® content team. Sonia is the winner of the Mondaq Thought Leadership Awards, Autumn 2021.

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