A study of child abuse allegations in custody and access disputes before the Family Court of Australia

Criminology Research Council grant ; (32/94-5)

Over the last decade family courts, worldwide, have become concerned about their difficulties in resolving child abuse issues in custody and access disputes. Research about these problems has been sparse. On the one hand, research in child abuse and child protection has rarely included family courts and, on the other, family court and marital and partnership breakdown research has rarely touched on child abuse.

Family Courts have found these issues contentious and intrinsically difficult, with many serious human problems involved. Achieving secure family relationships for these children has not proved easy. Thus, when approached, the Family Court of Australia was prepared to support this study into child abuse allegations and the Family Court.

The study sought to answer three questions:

  • Who were the families involved and what problems did they bring to the Court?
  • How did the Court deal with these problems?
  • What was the outcome for the children?

To answer the questions the study reviewed 188 custody and access dispute cases with child abuse allegations and 100 custody and access dispute cases without child abuse allegations in two States. In addition, staff in the court and in the state child protection services were interviewed.

The study found that child abuse cases had become core business for the Family Court, comprising 50% of its work in children's matters. Thus, without being aware, the Family Court had become an unacknowledged part of Australia's child protection services. Many beliefs surrounding child abuse and family courts were found to be inaccurate. Allegations were no more likely to be false than in other settings; the abuse was not mild abuse, exaggerated as part of the dispute, but severe abuse, mostly physical and sexual abuse with other violence; most families were not previously known to State child protection services and were not taking issues to another arena.

While the families were similar to others in their region, in terms of ethnicity, race, socioeconomic status, and physical and mental health, they did have indications of some very serious problems. Partner to partner violence was high and was the most common cause of separation, male unemployment rates were high, the incidence of criminal convictions, especially for males, was high, and the incidence of substance abuse, especially for males, was high too.

Very many problems were found in the way the court dealt with the allegations. Some of the causes for the lengthy delays, large number of hearings and costs lay with the poor coordination between the two very different types of services, the State child protection services and the Family Court. The State services investigations were slow and the reporting back to the Court was ineffectual. Other causes lay with the Court and the adversarial nature of the process.

The outcome for the children was poor; the lengthy time taken was serious because the children were so young, the incidence of custody changes was high, and emotional distress was very common and severe. Consequently, a new specialised case management system was proposed to provide better outcomes for children, based in part on the most successful of the court interventions.