Paper presented at the
Child Sexual Abuse: Justice Response or Alternative Resolution Conference
convened by the Australian Institute of Criminology
From a Mother:
Chief Justice Alistair Nicholson is on record as saying that child abuse cases should
not be heard in the Family Court.
I have to agree.
The Court is ill equipped to make decisions about children's safety. Judges are experts
in law: not in child abuse or child psychology. Lawyers likewise.
It is laid down that the primary concern of the Family Court Judge has to be the best
interests of the child. From the dozens of cases I have seen while waiting in the
Family Court, I can tell you that they've lost the plot. Child protection isn't happening.
Unfortunately, I can't identify myself or my child because of the secrecy surrounding
Family Court cases … secrecy that can hide bizarre decisions from the public. Secrecy
that enables Judges to hand children to their abusers knowing that they can't be sued
for their mistakes or the damage they might cause. If they had to be accountable, how
different things might be!
I was a very vulnerable divorcee with two children ... when I met the father of my
youngest child. We lived together for only six months because of domestic violence.
My partner was sick but he refused to follow doctor's advice to have blood tests.
Later, I discovered that his refusal related to the fact that he was concealing
HIV/AIDS.
My partner was irresponsible with his disease, proof of which lies in the fact that I
became pregnant and gave birth to our daughter in 1995. I subsequently learned that
my partner had 26 criminal convictions, 2 of which were for sexual assault –
commuted from rape.
He also admitted to his doctor that he was bi-sexual and in 1997, when he seroconverted
to AIDS, it was estimated that he had been positive for up to 10 years and
had a life expectancy of only 7 years.
Although my partner had not lived with us and had little contact with our baby
daughter, he applied to the Family Court for supervised access. He gained sympathy
and I was perceived as the bad person who was discriminating against an AIDS
victim.
Concerned about the safety of my child, I moved away, taking her with me.
Three months later, I was tracked down by Federal Police who literally snatched my
young daughter from me and took her into foster care. I had no idea where she was.
Police notified her father of her whereabouts. He collected her and took her to his
home where she's been ever since.
The father was granted continuous access and, subsequently custody of the child.
Given his medical and criminal history, one can only assume that I was being
punished for trying to protect my daughter by removing her without the permission of
the Court. Interestingly, the Trial Judge described his sex offending as "trivial" and
irrelevant.
The abduction of my daughter was the most horrendous experience of my life. She
was only three years old, had neve r lived with her dad or anyone else but me.
It's widely known that trauma of this kind can cause brain damage to children of this
age. What could be more traumatic than being physically torn from your mother,
delivered into the hands of strangers, put into a strange bed in a strange house then
handed to a very sick man you scarcely know. She never knew whether she would see
me again and feared I was gone forever. In other words, my child was psychologically
abused by the very system designed to protect her.
Police told me that I would get my daughter back within a month if I returned to the
Adelaide Family Court. Four years later, at the age of seven, she is the primary
caregiver to a man dying of AIDS.
This is with the full knowledge and approval of Family Court Judges and Family and
Youth Services.
Her education is disrupted. She exhibits severe behaviour problems at school. She
can't socialise as other children socialise.
In the interim period, there have been numerous reports to the Child Abuse Helpline
that my daughter has been physically, sexually and emotionally abused and neglected
by her father and sexually abused by her half-brother.
FAYS will not act to protect my child because the case is in the Family Court. My
child is one of the many who have fallen into the gap between Federal and State
Govemments.
My contact with my daughter is restricted to three six-hour sessions a month or 9 days
a year.
International research shows that children lose their relationship with their parent if
they don't see them for 50% of the year.
Because I took my child away four years ago, I am considered to be the dangerous
parent and our meetings have to be supervised.
Each Christmas, I have to apply to the Family Court for her to spend time with her
maternal relatives and siblings. In 2001 I was granted from 9am-12 noon. I have to
travel 75 kilometres to my ex partner's home, have no car and, of course, on Christmas
Day there is no rural public transport.
Last year, I again applied for Christmas access and was told that my application would
be heard on January 6th … ensuring that no Christmas contact took place.
People ask, "Why is your child living with her father? You must have done something
wrong"
My crime was to try to protect my child from a man whose criminal history would
preclude him from working in any service with children.
My crime was to return to the Family Court again and again without legal aid while
my partner was almost always represented.
On one occasion recently, the Judge said I needed to get professional help to deal with
my inability to accept that the Family Court is fulfilling its duty to act in my child's
best interests.
Time after time, when I go to Court, the discussion revolves around the system:
completing appropriate forms, having permission to make an application. … lots of
legal jargon which has nothing to do with the dangers to, or the needs of the child.
Often, she isn't even mentioned.
The focus is on the rights of adults, not the safety of children.
One Family Court Judge banned me from making applications without her permission
… and she refused permission.
Recently, the Judge told the father to put it in his will that I do not get my child back
when he dies of AIDS!
Why didn't I appeal against the Court's final decision?
The child's father was legally represented; I was not.
Had I lost the case, I would have had to pay his costs ... about 20 thousand dollars. I
would have had to pay for copies of the court transcript ... costing over $7000.
My concern right now is that my child lives with a dying man and nobody gives a
damn. There are no plans for her protection when he is too sick to care for her. And I
am assured by FAYS that when he dies, there is no guarantee that the Family Court
will return her to me … her mother.
She could go into foster care causing further psychological damage.
It seems that, for having the effrontery to challenge the system, the Family Court can
and may punish me for the duration of my daughter's childhood and adolescence.
And by that time it may be too late.
If this is the best that Australia can do to protect our children ... may God help them ...
because no one else will.
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