Unacceptable Risk
What is "unacceptable risk"? Has anyone come up with a definitive answer? How is it assessed in Australian Family Law Courts? Risk factors such as violence, drug abuse and psychotic behaviours are seemingly diminished in favour of 'meaningful relationships' with children. In these cases should we ask for a ruling on what is an "acceptable risk" for children to be exposed to?
Just when I thought it was safe
They told me
Go, go, just leave
(I ache)
It took my breath away
That they would think I could just turn the other cheek
Without good reason.
(I ache, I ache)
I knew
More than they
Softly, softly, creeping certainty
That he would never be safe, this little child
The universe entrusted to me
If I could not be there to watch over, to stay awake, to
Softly softly creep around
The house, ensuring He
(not the child)
…..doesn’t guess
I’m watching him
(or else… I ache, I ache)
The thud of anger, the green-grey bruise, the black of old blood again…
But I would take it all again
To have not left
Left Him
(not the child)
Run with him
(the precious gift)
And be forced to return
(no evidence of violence you see)
(and regardless, madam, it’s you he hurts, not the child.)
Irrelevant.
Your deep slashing scar, your wounds we cannot see
They are irrelevant in the Best Interests of the Child.
So bring him back, Hand him over
For unsupervised contact, week after week.
(he aches, he aches, my precious, precious one…)
And there is nothing I can do.
Our souls, your souls will ache and ache
Because his pain, your spirit, our lives are entwined
Remember this
When we ache….
(that’s why I couldn’t leave, you fool…………..)
Anon. 2005
The Murder of Jamie Bulger
Who can forget the murder of the little 3 year old in England by two ten year old boys? We believe they have been released and granted new lives, in Australia, or perhaps another country. And the saddest thing of all about the Jamie Bulger story is that it is not finished yet. Not by a long shot..And what does Jamie Bulger have to do with Family Law? Everything!!
Because the terribly sad thing is that two young men, so horrifically sadistic as boys, will be entitled to form relationships and have children. Their chosen partners/wives will not be entitled to know anything of their past, unless they disclose voluntarily to them.
UN Special Session on Children:Freda Briggs
The Australian Government agreed to protect all children: it did not say that it would discriminate against the young. It did not say that it would discriminate against children with disabilities and yet child sex offenders can abuse these children with little fear of apprehension and, not surprisingly, children with disabilities are the ones most likely to be targeted for sexual abuse. It is a concern that they are also the ones least likely to be informed about their rights and the least likely to receive support and protection when abuse is disclosed .Given that child sexual abuse is about power and control, it is not surprising that, once they realise they are safe from prosecution, sex offenders are turning to the Family Court to seek full control of their victims. Unfortunately, all too frequently, they succeed on grounds that can only be described as bizarre.
Child Sexual Abuse Allegations in the Family Court - Wendy Lee Foote
This research is concerned with decision-making in judgments made in the Family Court of Australia where there are allegations of child sexual abuse. This research was undertaken against a historical and current backdrop of scepticism about the veracity of child sexual abuse allegations in family law disputes, despite the heightened risk to children, after their parents separate and/or divorce.This research found that ... the separation and divorce and the legal/psychiatric paradigms, resulted in a reticence to test out the allegations of child sexual abuse made against fathers....court-ordered assessors ...represented the sceptical conceptualisation of allegations of child sexual abuse as the product of the parental conflict, associated maternal anxiety and mental illness. In contrast, fathers were not scrutinised as closely against criteria for sex offending even when they made admissions relating to the allegations. Evidence from and about children was not central to the hearings and professionals who were in a position to present assessments of the child sexual abuse allegations to the court were discredited as a result of concerns about ‘contamination’ relating to criticisms of investigation and other methodological errors.
DISCUSSION EXTRACT FROM INTERNET CHAT ROOM
Central to understanding is understanding how formulae for unacceptable risk works. Positive finding of abuse at State level, weighed against benefit gained from child knowing other parent, - always results in right to access prevailing of late
Family Law and Parent-Child Contact:
Assessing the Risk of Sexual Abuse
Child sexual abuse allegations cause great difficulties for the Family Court, not only because so often there is no corroborative evidence, but because of the way that lawyers approach the notion of proof, and restrict the evidence which may be used to support a finding that a parent has sexually abused the child. The High Court held in M v M (1988) that the Family Court could restrict or deny contact where there is an unacceptable risk of abuse. However, there are differences between judges of the court on the application of the test and, in particular, whether the assessment of risk needs to be based upon findings of fact from which that risk may be inferred. In assessing the risk to the child of abuse in the future, more attention needs to be paid to risk factors other than the contested accounts of past abuse, based upon what is known in the social science literature about intrafamilial child sexual abuse and, in particular, what is known about the way offenders ‘groom’ their child victims. This article proposes a four stage process for decision-making in the Family Court which will require the court to examine a range of possible risk factors, and also factors which may reduce the risk of abuse in the future. In this way, courts may be able to make findings based upon facts, even though the facts relied upon may not involve findings about past abuse.
ABSTRACT OF FAMILY COURT AND CHILD ABUSE
The Family Court deals with sexual abuse allegations on a daily basis. This article explores the cascading test employed by the Family Court in dealing with sexual abuse allegations, including dealing with a number of case examples.In terms of a legal response, child abuse, especially sexual child abuse, can be a very difficult matter for the Family Court of Australia or the Federal Magistrates Service to determine. Typically the alleged perpetrator will deny the allegations of sexual abuse and domestic violence and the other abuses. Sometimes the alleged perpetrator will admit but in a minimal form that domestic violence has occurred and usually deny abuse allegations relating to the children.
THE SINS OF THE FATHERS
Young children dragged kicking and screaming to visit their abusive fathers and mothers threatened with prison if they don't comply ... It's a world away from the image of wronged dads that the campaign group Fathers4Justice implanted in the public mind. Yet, as Decca Aitkenhead discovers, it's the harrowing reality for many families driven by violence or sexual abuse.
Myths That Place Children At Risk During Custody Litigation
Unfortunately custody litigation can become a vehicle whereby batterers and child abusers attempt to extend or maintain their control and authority over their victims after the marriage dissolves. Although, research has not found a higher incidence of false allegations of child abuse and domestic violence in the context of custody/visitation disputes, officers of the court tend to be unreasonably suspicious of claims raised during time. As a result, abused parents and their children may find themselves re-victimized by the justice system after separation
Removing Obstructions to Justice in Family Court Sexual Abuse Cases
Community confidence in the Family justice system is reportedly at an all time low in Australia. This is due in part to its perceived inadequacies in dealing with the growing number of sexual abuse allegations made....in the Family Court.
This paper looks at public expectations in this area and considers the challenges ...These include the fragmentation of the child welfare system, procedural and forensic limitations, the child sexual abuse phenomenon, the statutory role and functions of the court, the tension between a pro contact philosophy and judicial risk assessment and finally the implications of excluding alleged child victims from the hearing process.
CHILD ABUSE IN THE CONTEXT OF PARENTAL SEPARATION AND DIVORCE: NEW REALITY AND A NEW INTERVENTION MODEL
Child abuse in the context of parental separation has been seen as a weapon manufactured by parents to gain a tactical advantage in their private divorce war. Thus, it has long been regarded as fictitious and unreal.... It represented only the fight between two adults breaking up a high conflict partnership.
A number of Australian studies have now shown that child abuse causes parents to separate. If partnership violence is included in the definition of child abuse, and it should be noted that the Family Court of Australia regards the existence of partnership violence whether witnessed by the child or not as child abuse, then some 43% of parents leave their spouse for reasons of child abuse or serious partnership violence.
Case update: Contact and unacceptable risk
In a recent judgment, the full court confirmed the principles to be applied with respect to contact where there are child abuse allegations, but a positive finding of abuse cannot be made. The full court confirmed the circumstances in which a discretionary decision may be overruled, and also confirmed a number of established principles including: .... a finding of sexual abuse should not be made unless a judge is satisfied to the highest standard on the balance of probabilities that abuse has occurred ..... the question of "unacceptable risk" is not dependent on a finding of sexual abuse. Where a positive finding of sexual abuse may decisively constitute unacceptable risk, the converse is not necessarily true.
Myth: False allegations of child abuse
A related myth is that women routinely make false accusations of child abuse in family law proceedings. In fact, allegations of child abuse are rare. For example, they represented five to seven per cent of all disputes in children’s matters before the Family Court of Australia, according to a study in 1995-96. In any case, given the prevalence of child abuse in the general population, one should not be surprised that a proportion of family court cases involve allegations of abuse.….. allegations rarely are made for tactical advantage, false allegations are rare, the child abuse often takes place in families where there is also domestic violence, and in any case, such allegations rarely result in the denial of parental contact.
False Allegations of Abuse and Neglect When Parents Separate
The 1998 Canadian Incidence Study of Reported Child Abuse and Neglect (CIS-98) is the first national study to document the rate of intentionally false allegations of abuse and neglect investigated by child welfare services in Canada. This paper provides a detailed summary of the characteristics associated with intentionally false reports of child abuse and neglect within the context of parental separation.
Laws that treat children as chattels do lifelong harm
WHEN young children report sexual abuse by a parent, the other parent is placed at a disadvantage. Unless there is a prosecution and conviction (and statistics published in The Advertiser show how rare convictions are), the protective parent may have to turn to the Family Court to vary or stop contact between the victim and the abuser. This is risky, given that some judges ignore medical evidence of abuse and determine that parenting must be shared or, worse, that the child should be handed to the accused sex offender. In some cases, the protective parent may choose to flee the country
Better Letter, Little Girl
My name is Bonnie Russell, and normally I'm in media relations for attorneys. However, as founder of www.FamilyLawcourts.com I'm responding to media's ongoing hand-wring for additional security for judges, which underscores the time-honored pattern of judicial concern at the expense of victims.
Most recently, Chief Justice Ronald George awarded the Benjamin Arana Access to Justice award to LA Judge Aviva Bobb. I wondered why. Bobb refused to allow a little girl access to her courtroom when the little girl wanted to communicate her fears of her father. Her mother suggested she write a letter to the Judge Bobb instead, which she did. After the father killed the little girl, the court spokesperson angrily responded to reporter's questions with a statement that the letter seemed "contrived." Yes the blame was placed squarely on the now dead little girl for not writing a better letter.
The Relationship Between Child Sexual Abuse, Domestic Violence and Separating Families
This paper examines the relationship between child sexual abuse and domestic violence and highlights the research that indicates the coexistence of these two forms of violence in families. Much of the research into both domestic violence and child sexual abuse has historically been conducted in different spheres and they have largely been treated as unrelated phenomenon. This article will analyse how and why both forms of violence exist in families.
Consider the child before the stripper
JUDGES in the Family Court need the wisdom of Solomon. Judge Tim Carmody recently had to choose between leaving an eight-year-old boy with his paternal grandparents, or transferring him to his mother..No one argues that she has been a poor mother. The case had arisen because the grandparents were worried about the mother's partner. He has recently come out of jail where he was serving three years for possessing child pornography…. The judge considered he posed no danger to the boy, but to make doubly sure the mother was not to live with him and when they were together the boy was never to be left alone with him…. At first sight this seems an ultra-careful judgment until you learn that the Family Court has no agency to monitor and enforce its rulings……If the mother… leaves the boy with her partner, no one will know.
POST SCRIPT: 07.06.2007 The boy from Tasmania, whom the FCA sent to live with mum who works as a stripper and her boyfriend a convicted child porn viewer has been ordered to return to live with his grandparents with mum having contact.
Sons to see father accused of child abuse
The jailed father of a baby who was taken to hospital just minutes from death has won access to his other two children.
The three-month-old girl's horrific injuries included old and recent broken ribs, a torn tongue, a bruised head and a broken collarbone. It is also suspected the father held the baby's head under water in the bath for up to a minute. She almost drowned after inhaling enough water to fill a liquid-paper bottle.
The lawyer … said that child abusers commonly inflicted their abuse discretely, making it unlikely the boys had seen anything.
The magistrate said it was preferable for children to have access to their parents where there was no risk of harm.
Responding to allegations of harm to a child by a parent with a Family Court of Australia parenting order
When information is received that a child is suspected of being harmed or at risk of harm by a parent, where there are Family Court parenting orders in place, the information is assessed in accordance with usual departmental intake procedures. If the caller is the other parent, it should not be assumed that the allegations are malicious or vexatious.
OTHER SUBJECT HEADINGS:
Fatherlessness
Unacceptable Risk
Shared Parenting
Child Support
Child Development
Contravention