an ncylc e-bulletin

Issue #2: May 2004

THE FAMILY COURT AND
ALLEGATIONS OF CHILD
SEXUAL ABUSE

Allegations of the sexual abuse of children are usually handled by the State Child Protection Authorities and the Children’s Court. However, when they are raised in the context of a custody battle in the Family Court, they are dealt with by the Family Court. This raises problems on many levels.

Firstly, the Family Court is neither funded nor designed to deal with the investigation and determination of these sorts of allegations. Secondly there is the perception that, allegations by one partner against another under these circumstances, are malicious or tactical, rather than a genuine concern for the child’s safety. This is known as Parental Alienation Syndrome ("PAS"). PAS has been widely discredited in research and study across the board, but continues to enter into the determination of such allegations.

The adversarial nature of the Family Court, combined with PAS, means that significant emphasis is placed on the credibility of the parent alleging the abuse. As a result, many children are slipping through the cracks as their voices go unheard in a process that determines the threat to their safety through an assessment of the credibility of the presentation of their disclosures by someone else.

There have been many reports written and many suggestions made to remedy the complex problems that arise from the handling of what would normally be a State child protection matter in a Commonwealth court. Funding would appear to be a key issue, along with significant cultural change in the openness of our courts to acknowledging the child voice in proceedings affecting their rights. Both of these things are ongoing lobby issues, but significant impact can be achieved in the short term by the adoption of a program similar to the Magellan Project piloted in Victoria between 1998 and 2000.

Analysis of the problems associated with the handling of child protection matters in the Family Court and the solutions offered by various pilot projects, such as the Magellan Project in Victoria, the Columbus Project in WA and the Children’s Cases Program in NSW, has led us to conclude that there are simple, inexpensive, immediate effect, proven solutions already out there. The Magellan Project is a prime example and the NCYLC believes that it should be piloted in other States as soon as possible. The obstacles that are inhibiting its implementation should be addressed as a priority, so that the remarkable protections the project has been shown to provide are available to kids all over the country.

Emma Bayley