John Hirst’s essay, though flawed by errors and by ill-concealed bias, raises some important issues about family law. There are three main components of Hirst’s essay: the invective, the case summaries and the proposals for law reform.
By invective, the sort of thing we have in mind is the use of “kangaroo court”, references to judges not caring about injustice, the court abusing children, and – most memorably – the suggestion that judges are like Nazis (because they followed the High Court’s ruling about the approach to be taken in child abuse cases – more of this later). While such comments may grab headline attention, they do little to advance debate on serious issues.
The second component is the case summaries, mainly the stories of three fathers, called in the essay Paul Walton, Graham Sweetland and Julian Aston. These histories form a considerable part of the basis for the discussion and proposals, so they need consideration.
Graham Sweetland failed in his attempt to gain residence of a baby boy: the outcome of the case was that he had contact every second weekend and half school holidays. John Hirst seems to agree with Graham’s view that the Family Court will “treat him for a time as a pariah” and with his bitterness over the money he spent and “what happened to his reputation”. He refers to “the static of false allegations” and asks, “Who knows how much notice the court takes of allegations?” Certainly Hirst’s readers don’t, because we do not know what allegations were made at the trial, or whose evidence the Court accepted, or about either party’s ability to care for the child. It is not clear whether Hirst even asked Graham to see a copy of the judgment.
The chapter ends with Hirst saying how much better it will all be when the adversary system is replaced by the inquisitorial method, referring with approval to the Family Court’s Children’s Cases Project. We agree that these initiatives are promising. But even if they succeed in eliminating irrelevant material and streamlining the proceedings, the Court (or any decision-making body) will still have to deal with allegations relevant to children’s safety and wellbeing in the care of those competing to have the children live with them.
After separation, Paul had an “argument” with one of his two daughters, after which his contact tailed off. Paul’s wife accused him of being “verbally abusive and physically intimidating”; and the children themselves wrote to say, “You are not our Dad and we don’t want anything to do with you.” After attempts to reestablish contact with the children Paul decided not to make an application to the courts. The only involvement of the Family Court is at the end when a counsellor helps the parties resolve a question about supplying school reports to Paul (who was “highly complimentary” about the Court’s counsellor).
Hirst seems to accept Paul’s view that this is an example of the “Parent Alienation Syndrome”. The reader cannot possibly know whether to agree, since we only have Paul’s side of the story, and much is omitted. We are told something about Paul’s feelings of impotence and distress at having the children “stolen” from him. But we never learn why, if Paul was the “primary parent”, the parties agreed that the children would live mostly with their mother. We are not told the nature of the “argument” that led to the visits tailing off. We never learn how Paul’s bipolar disorder affected his behaviour, or what was the “disturbing history about the difficulties over the years relevant to contact” that the wife’s solicitor wrote about.
Hirst seems content to rely on what others told Paul about the Family Court. For example, Paul’s doctor told him that medical records could be used selectively against him, and that legal aid would not assist. In fact, it is not possible for one side to put before the Court only restricted parts of medical reports: the Court would want to see the whole of each relevant report. As for legal aid, there seems no reason to think that if Paul passed the needs test he would not have got legal aid for a contact application, and in a case like this there would almost certainly be a separate legal representative for the children.
There are many cases where parents give up in the face of opposition to contact, and we could learn a lot from them and perhaps find ways of helping to maintain positive relationships between the parents themselves and the parents and their children. Unfortunately, Hirst’s account is too partisan to be a useful contribution on this subject. He can only see Paul’s point of view: not that of the wife, not that of the children.
The denigration of the Court becomes farcical at the end of this chapter, where Hirst says that this is “a standard Family Court procedure: the excluded parent indicates that they will abandon attempts to see the child in return for receiving news of them.” There is of course no such procedure. The court does not choose the terms on which parties negotiate, or the outcome of the negotiations. Here, the Court did the only thing it was asked, namely to help the parties resolve a question about school reports, the only issue they chose to raise. Paul’s story does not in any way support Hirst’s denigration of the Family Court or his proposals for law reform.
Julian Aston’s story is a desperate saga involving a mother who persistently made false allegations of sexual abuse, avoided court orders and poisoned the child against the father over a six-year period of investigations and hearings by a range of courts and child welfare authorities. The courts consistently accepted the truth of the father’s evidence, and consistently disbelieved the mother, and found that the father had not abused the child and that there was no risk of abuse. Nevertheless, at the end of it all the father had lost contact with the daughter, and can only hope she seeks him out in years to come. It must have been a devastating and destructive experience for both father and daughter: a tragic outcome, and a horrible process.
Hirst’s conclusion is that the Family Court is “a child abuser”. A more accepted term for Hirst’s point is “systems abuse”, on which there is a large international literature. It is well known that tragically in some situations the interventions of child protection agencies, and various courts, can themselves make things worse for the child.
Identifying occurrences of systems abuse is important, and this case might well merit a thorough examination. Identifying the problem, of course, is easier than solving it. Nobody would say that all child abuse allegations should be disregarded; but as soon as one starts to investigate, there is the potential for the investigative processes to have an adverse impact. Hirst, with the benefit of hindsight, is critical of a number of decisions made in the course of this saga. He may be right. But his account underplays some of the difficulties.
For example, he seems to argue that after the first court finding favouring the father, all further allegations should have been dismissed “as coming from a totally unreliable source”. He is referring here to the mother. But it seems from his account that the child herself was making the allegations. By the end of the dreadful period, it had become apparent that there was no truth in them; but this may not have been so obvious in the earlier stages. Hirst seems to argue that any fresh allegation of sexual assault by the young child should have been disregarded, and not investigated at all. But that conclusion could only be responsibly reached by carefully considering the evidence that was available at the time.
Penalising breach of contact orders
Hirst correctly identifies an imbalance between enforcing child support and contact: those seeking to enforce child-support orders (mainly mothers) have the benefit of a public agency, while those seeking to enforce contact orders (mainly fathers) have to bring proceedings themselves. As legal aid is often not available for these cases, bringing numerous applications to deal with successive incidents can easily run up legal bills that the fathers cannot meet, and indeed may lead them to give up in despair, as it is difficult to succeed in these proceedings without legal representation. Courts cannot assist here: they can only adjudicate on applications, in this case applications by the contact parent to penalise the other parent for breach of the order. There may well be a need to allocate additional resources for the specific task of dealing with problems of non-compliance constructively at an early stage, treating the implementation of the Court’s orders as requiring a public response, rather than being a burden on the other parent.
In other respects, however, the discussion is less helpful. The argument seems to be that the Family Court should enforce its orders more vigorously. Hirst refers to the Court’s “poor record”, says the Court has not been concerned about upholding its authority, says that its orders are “a joke”, and so on. But despite the vehemence of these comments, it is difficult to identify just what Hirst proposes. He notes, without apparently disagreeing, that none of the various bodies that have conducted inquiries into the problem favoured “sharp punitive methods, that is, to lock up a few offenders in the hope that the rest would fall into line”.
Part of the difficulty may be that Hirst seems to believe, wrongly, that the courts treat the child’s best interests as paramount in these cases; in fact, the well-known “paramount consideration” principle has never applied to proceedings for penalties.1 The law requires the Court to weigh up in each case the often-competing considerations of upholding the court’s authority (by penalising breaches) and having regard to the child’s interests. If Hirst concedes that some such balancing process is appropriate, then his criticism would require him to show that the Court has got the balance wrong in particular cases, a task that would require a more thorough analysis than could be attempted in an essay of this kind.
Hirst’s colourfully expressed conclusion, that the Court does not care about maintaining the relationship between fathers and children, no doubt reflects the views of the men he spoke to, who were understandably frustrated at being separated from their children notwithstanding court orders for contact. But we think it is mistaken, because it underestimates the difficulties of fostering these relationships in the midst of family conflict, difficulties which have been the reason why the series of reviews and inquiries Hirst refers to have not led to recommendations, or legislation, creating a more punitive system.
There are, perhaps, three main problems. The first is that in many cases the fathers have been unable to establish that there has been a breach (perhaps a Contact Compliance Service would ease this problem). The second is that in some situations the penalty may cause the child to suffer: financial penalties may have an adverse impact on a low-income household, and imprisoning the mother might harm the child, especially if there are no other suitable people to care for the child while the mother is in prison. There is no doubt room for argument about how these factors should be balanced in each case: but to reach a conclusion, we would need to know all the facts.
The third problem is perhaps the most important of all. A breakdown in the children’s relationship with the father in these cases is a tragic outcome for the children, as well as deeply distressing for the fathers. But because of the complex dynamics of the relationships, penalties, even if initially successful in having the child physically transferred to the father for contact, may escalate the level of conflict and bitterness, and bring about a situation which damages, rather than improves, the father–child relationship, to the detriment of both. It is naive to suggest that taking a tougher line on defaulting mothers will necessarily have the desired result, as Hirst appears to do when he says that by not pressuring a mother who is uncooperative about contact, the Court “has left large numbers of children without an effective father”.
Hirst does not identify precisely what he would like the law to say, but it seems that he would want the Court to emphasise punishment of those who breach orders, if necessary at the expense of the children. But it is by no means clear that this approach would usually lead to better outcomes, either for the fathers or the children. The Court cannot transform people who are unreasonable and vindictive into responsible and reasonable adults. Its power to punish is a blunt weapon, which could do as much or more damage than it cures. Any chance there may have been of gradually building working relationships between the parents may well be shattered, and children caught up in the parental conflict may suffer great distress. Often a “least worst” solution is all that can be offered.
Obstructing contact ordered by the Court without a reasonable excuse is wrong, and it is easy to say that punishment is warranted. But preserving and enhancing a positive relationship between the father and the child in these situations can be acutely difficult, and often requires a far more subtle and understanding response. Enforcing contact in a situation where the parent or children suffer severe stress and anxiety is of little benefit to anyone. That is why the effort is made, through counselling, to help the parties to deal with each other civilly at the earliest possible opportunity, and to work out a solution to meet their needs. The best way to ensure effective involvement of both parents in the ongoing care of their children is to foster a working relationship between those parents (excluding cases where violence or other danger is involved).
When Hirst says it would be better for the Court to “work for a settlement which as far as possible kept both parents involved in the lives of their children”, he is echoing the Act, which gives parents the obligation to agree about the future parenting of their children after separation. The Act aims to encourage parents to take responsibility for parenting arrangements, to use the legal system as a last resort and to regard the best interests of their children as the paramount consideration. That is why counselling services are provided as part of the family law system.
One feature of the law, particularly in the recent reforms to which Hirst refers, is to ensure that the contact orders themselves can be re-examined. Perhaps there has developed an arbitrary formula of alternate weekends and half the holidays, and it can be very helpful to explore alternatives, especially if the parents and those advising them are able to think creatively about an arrangement that will help each parent in their future parenting roles. We are increasingly realising that in some situations, especially with skilled and sensitive assistance, the children themselves can contribute to finding a solution. The Court knows that it is far better for a solution to be worked out by the parties than to be dictated by a court order prescribing the times, places and dates for delivery and collection of children. Such orders impose a rigid legal framework on the pattern of family life, remote from the realities of unexpected change, and adjusted timetables which are the common experience of us all. Many responsible parents make flexible arrangements for sharing the future care of their children, arrangements which suit their particular needs and which can be varied readily as the situation changes.
Child sexual abuse
Another concern of Hirst is the denial or restriction of contact by a parent against whom allegations of sexual abuse have been made. He argues that the Family Court should make a definitive finding one way or the other about the allegations of abuse – the person accused must be judged guilty or innocent.
Even if this were a good idea, the Family Court could not do it. Its present approach is required by law: the Family Law Act, as interpreted by the High Court in the M and M case, which he discusses. If there is to be a change, it is necessary for parliament to amend the Act.
Should there be a change? Opinions will no doubt differ, and the High Court ruling has its critics. But we think Hirst underestimates the difficulties with his proposal. The High Court pointed out that there will be very many cases where the court cannot confidently make a finding that sexual abuse has taken place. “And there are strong practical family reasons why the court should refrain from making a positive finding that sexual abuse has taken place unless it is impelled by the particular circumstances to do so.” The Court’s task, it held, is to determine the magnitude of the risk: “the test is best expressed by saying that a court will not grant custody or contact to a parent if that custody or contact would expose the child to an unacceptable risk of sexual abuse.” The Family Court is bound by this High Court decision.
In these distressing cases the evidence is often ambiguous, the allegations strongly denied, and the experts divided or uncertain, both about whether the abuse has occurred and about what should be done (not all cases are like that of Julian Aston). In these proceedings, the Court is usually assisted by hearing from the child’s representative and independent experts such as child psychiatrists. In such cases judges sometimes conclude that the protection of the child against risk of abuse must prevail over the distress to the person against whom the allegations are made. Would Hirst want the courts to ignore such a risk in the many cases where the evidence does not permit a firm finding that abuse has taken place?
The distress of a father whose contact is restricted or denied in these circumstances is understandable, even tragic. But we do not think that this problem can be resolved by requiring the Court to order contact where it is satisfied that doing so would expose the child to an unacceptable risk of abuse. Such an adult-centred approach would displace proper concern for the child.
There is no space to deal with the passage at the end of this chapter, in which Hirst offers a “summary” of the Family Court’s approach. We simply note that this summary misrepresents the situation, and fails to address the crucial issue, namely what action the Court should take when the evidence leads to the conclusion that there is an unacceptable risk of abuse.
Another of Hirst’s proposals is that the law should recognise the legal right of a parent to see his or her children, unless likely to do them harm. In this, as in some other respects, he takes an adult-centred approach, whereas the Family Law Act is child-centred. It recognises not the rights of parents, but their shared duties and responsibilities, including the obligation to agree about future parenting. The Act also recognises the right of children to know and be cared for by both parents, and to have contact with both parents, unless this would be contrary to their best interests. The Family Court is required to consider the individual feelings, thoughts and wishes of the children, the nature of their relationship with each parent, and other factors, in determining their best interests. We cannot share Hirst’s desire to turn away from these matters and enforce a parental right regardless of the child’s best interests, excepting only the situation of likely harm.
Hirst would also like the law to be changed to relieve a parent of his child-support payments if court-ordered contact is denied. But this would lead to two wrongs instead of one: denial of contact ordered by the Court is wrong, and so is failure to pay child support. Withholding child support is not a valid means of enforcing contact, since children must still be fed, clothed and sheltered.
Another of Hirst’s proposals is that refusal of contact ordered by the Court should result in the transfer of custodial care, if the other parent is adequate to the task, regardless of the child’s wishes or feelings. We doubt that this formula would be likely to promote either successful contact, or stability and security in relationships, which children of broken relationships deserve. In this as in some other recommendations, Hirst argues for an adult-centred rather than a child-centred approach to family law.
Back to absolutism?
The key underlying theme of Hirst’s approach is that the “best interests of the child” principle should be replaced by a set of absolutist rules, which must be applied even if the Court believes the application of such rules would not be in the best interests of the child. For our part, we are not persuaded that Australia should abandon the principle that the best interests of children should be determined on a case-by-case basis. Children, who are too often the silent witnesses to the destructive behaviour of their parents, deserve better than a change that would take us back to the nineteenth century, and would, incidentally, be difficult to reconcile with Australia’s obligations under the international Convention on the Rights of the Child.
Elizabeth Evatt is a judge of the World Bank Administrative Tribunal and a commissioner of the International Commission of Jurists. She was chief judge of the Family Court of Australia from 1976 to 1988 and president of the Australian Law Reform Commission from 1988 to 1993.
Richard Chisholm was a judge of the Family Court of Australia between 1993 and 2004, and is now an honorary professor of law at the University of Sydney and a part-time commissioner of the NSW Law Reform Commission. He has been engaged in law reform, teaching and research, primarily in the area of family and children’s law, since the early 1970s.
1. Section 70NJ; compare s 65E, applying the “paramount consideration” principle to parenting orders (residence, contact, etc).
This correspondence featured in Quarterly Essay 18, The Worried Well.
ALSO FROM QUARTERLY ESSAY