In Family Law around the world, the ‘best interests of the child’ are the ultimate determinant of judicial decision-making where the future care and welfare of children is being considered. However, what the best interests of a child are in any Family Law case are largely a highly subjective judgement based solely on the beliefs, values, and attitudes of the individual making such decisions and not on any objective and impartial criteria or with reference to over a century of psychological and sociological research into the emotional, physical, and social needs of children and young people.
In Australian Family Law such ‘best interests’ are contained in a single sentence – “the child should have a ‘meaningful relationship’ with both parents”. Such a ‘meaningful relationship’ is not defined, nor can it be shown how a law can create, maintain, and enforce such a relationship, especially if one of the parties (usually the child) does not wish to have such a ‘meaningful relationship’. The Family Courts do, however, manage to enforce such relationships by ordering children and young people into contact with, and even the custody of, parents with whom they do not wish to have such a ‘meaningful relationship’. In some circumstances the parent suddenly appears and wants to engage in such a ‘meaningful relationship’ with the child, though the child may be five or six years of age and has never known that parent.
An even greater flaw occurs in the Australian Family Law and its administration when allegations are made of domestic violence (with the inherent abuse of children) and/or the direct abuse of children.
When evidence is submitted of a parent having prior convictions for paedophilia or child sexual abuse or for violent offences, and the accusing parent has taken out Apprehended Violence Orders or Domestic Violence Orders by other Courts, such evidence can be, and frequently is, disregarded or dismissed and the right of the accused parent to a ‘meaningful relationship’ with the child is held to be the paramount consideration.
But there are even greater obstacles in law to a parent who presents to the Court evidence that the other parent has abused the child or has been violent toward the presenting parent. This is because the Family Court takes on a role of a quasi-criminal Court, although the role and purpose of the Court is to determine the future care and welfare of children and is not a trial of anyone on criminal charges, as occurs in similar circumstances in a Children’s Court.
This is done by the Family Court disregarding the common law standard of proof of a ‘balance of probabilities’ and applying a near standard of proof of a criminal Court. Judges are applying the Evidence Act 1995 Section 140 and the Briginshaw Principle (1938) which require that the ‘gravity’ of the alleged offence has to be a major consideration requiring a standard of evidential proof towards the ‘extreme end of the scale’. Yet there is no scale of proof between the civil standard and the criminal standard and this is therefore creating a ‘third’ standard of proof applicable only in Family Law proceedings.
This was best explained by Deputy Chief Justice John Faulks in a speech in Canberra in October 2010 when he stated:
Allegations of family violence and abuse in the context of family law litigation need to be established in accordance with two seemingly contradictory constructs. The first is that whether or not family violence or abuse has occurred needs to be made out on the civil evidentiary standard on the balance of probabilities, not beyond reasonable doubt. In a judgment I recently gave (Kings & Murray) I identified the difficulty inherent in navigating the evidentiary standard of proof (at paragraphs  & ):
Proof on the balance of probabilities involves, among other things, a consideration of what is more likely to have occurred than not. However, it has been well known for some time (and the Evidence Act 1995 (Cth) provides for this) that where what is being sought to be proved is a grave and serious matter, or put in more blunt terms, if what is sought to be proved might be a criminal action, then the Court must apply what has been loosely described in the past as the Briginshaw v Briginshaw standard of proof. In that decision, their Honours (Latham CJ, Rich, Starke, Dixon and McTiernan JJ) considered whether the matter required to be proved (which related to whether adultery on the part of one of the parties had occurred or not) was to be proved on the civil standard of proof or some other standard.
Chief Justice Faulkes is therefore stating that in all such cases of child abuse and domestic violence, which are also criminal offences, that Judges are setting a third standard of proof which is not the generally accepted standard in civil Courts and is a serious departure from a fundamental principle of justice which has been in place for centuries. i.e. that civil Courts make determinations on an evidential standard of a balance of probabilities.
However the practical application of the balance of probabilities was discussed in a different way by Lord Nicholls in Re: H & Ors. His Lordship stated:
Despite their special features, family proceedings remain essentially a form of civil proceedings. Family proceedings often raise various serious issues, but so do other forms of civil proceedings.
The balance of probability standard means that a Court is satisfied an event occurred if the Court considers that, on the evidence, the occurrence of the event is more likely than not. When assessing the probabilities the Court will have in mind as a factor, to whatever extent is appropriate in the particular case, that the more serious the allegation the less likely it is that the event occurred and, hence, the stronger should be the evidence before the Court concludes that the allegation is established on the balance of probability. Fraud is usually less likely than negligence. Deliberate physical injury is usually less likely than accidental physical injury … Built into the preponderance of probability standard is a generous degree of flexibility in respect of the seriousness of the allegation.
Although the result is much the same, this does not mean that where a serious allegation is in issue the standard of proof required is higher. It means only that the inherent probability or improbability of an event is itself a matter to be taken into account when weighing the probabilities and deciding whether, on balance, the event occurred. The more improbable the event, the stronger must be the evidence that it did occur before, on the balance of probability, its occurrence will be established.
Even to the most casual observer, the comments of Lord Nicholls appear to be double-speak and the result is the same, an application of a higher standard of proof. It has therefore to be considered whether judges are being just and reasonable in applying such a third standard of proof in circumstances which determine whether or not a child has suffered abuse, and not to hold trial as to who the alleged abuser may be. That is a matter for the criminal Courts if there is evidence sufficient to satisfy the need to bring criminal proceedings.
However the greater barrier to proving domestic violence and child abuse in an Australian Family Court lies in the Courts’ inability to have such allegations competently investigated. Although it is a legal requirement under the Family Law Act (Section 67Z), that when a parent submits a Form 4 setting out the allegations of domestic violence such matters must be referred to the appropriate State authorities. This rarely occurs so that the investigation of such allegations are at best haphazard and at worst non-existent.
This situation was best summarised by Chief Justice Diane Bryant in a speech in Brisbane in June 2009 when she stated:
[Australian] Family Courts are not forensic bodies. They do not have an independent investigatory capacity or role when violence or abuse is alleged … Family Courts are reliant upon other agencies, particularly child welfare departments and police, to undertake investigations into matters that may be relevant to the proceedings before it. And although the Court can make directions as to the filing of material and can issue subpoenas compelling the production of documents, it cannot order state agencies to undertake inquiries into particular matters. It is hardly an ideal situation but in the absence of the Commonwealth assuming responsibility for child protection from the states, that will continue to be the reality.”
In effect Chief Justice Diane Bryant was stating that Family Courts do not have the powers, expertise, and resources to competently investigate domestic violence and child abuse, nor do they have the powers to order the State Child Protection authorities to investigate such allegations.
Even in the rare instances where the police and/or the State child protection authorities become involved, they are seeking evidence to bring criminal charges or to satisfy the requirements of Children’s Courts, rather than to provide evidence of the child abuse and domestic violence for the Family Court purposes. There have been instances where the State child protection authorities have found child abuse allegations to be ‘substantiated’ yet such findings have been dismissed or disregarded by the Family Courts in favour of ensuring that the offending parent has a ‘meaningful relationship’ with the child and that the other parent will facilitate and encourage such a relationship. If that parent does not do so, then there is an almost certainty that the child will be removed from that parent’s care and given into the sole custody of the allegedly abusive parent.
In conclusion, it is small wonder that allegations of domestic violence and child abuse have such a small chance of being proven and why such allegations are frequently claimed to be false, when in fact they are unproven because of the barriers set by the Family Law and the legal system. The consequences for many hundreds of children and young people have been catastrophic.
Charles Pragnell is Chairman of the Australian National Child Protection Alliance
PO Box 345, Mornington Victoria 3931.