John Stapleton

Christmas Day: The Nightmare of Australian Family Law.

The Family Court of Australia is finally being abolished, dissolved Into the Federal Court. There Are Very Good Reasons. The misuse of expert witnesses is a problem throughout Australia’s judicial system, but no more so than in family law. Here, in a piece originally published in the 1990s, we look at a past which should never be forgotten for the systemic abuse it unleashed on an entire sub-class of the population, separated dads; a precursor to the authoritarian derangement we are now all experiencing at the hands of Australian authorities.

Illustrations are by the much loved genius Maurice Sendak from his darkest ever children’s book, We Are All in the Dumps with Jack and Guy.

CHRISTMAS DAY. A POLICE STATION CAR PARK. Malcolm has not seen his nine year old son and six year old daughter for more than a month.

The children don’t get out of the car. Their father pushes presents at them through the car window, tries to talk to them. After five minutes, the children are driven off. Malcolm has only seen his son in sessions with a Family Court appointed psychologist since. Malcolm is one of an estimated 326 Australians, primarily fathers, accused of sexually abusing their children each week – the atomic bomb of custody disputes. Like thousands of other fathers; his life has imploded into an expensive nightmare of litigation and conflicting experts.

A senior public servant with special security clearance, he can be trusted with the country’s secrets, but not with his own children. While a female child protection worker found no evidence of abuse and condemned the mother’s behaviour; it is the crucial family report by the court appointed psychologist, who recommended the father have minimum contact, that Malcolm will have most difficulty overcoming. Despite their notoriety amongst father’s groups for their bias, inaccuracy and unchanging nature over a quarter of a century the Federal government has refused to acknowledge any community concern over their veracity.

These reports, the evidentiary bedrock of Australian family law, are written by court counsellors or court appointed psychiatrists and psychologists, who normally interview each of the parties for an hour each. Research shows judges rely almost totally on them to make their judgements. Many of these “experts” spend longer in the witness box than they ever do interviewing the families involved, yet there is no scientific evidence to suggest that interviewing people is the best way to determine a custody issue.

The widespread hopes held by many community groups that the Liberal government would move promptly to reform family law, and the family reports on which it is based, have been dashed. The divorce industry is now worth an estimated $5 billion a year, an industry as big as beef, sheep or horse racing. That the present Attorney General has no intention of seriously tackling this cash cow for his fellow lawyers is evidenced by his choosing personnel from deep within the industry for his new Federal Magistracy and for the so-called Family Pathways Advisory Group. The dirty little secret, the secret that these lawyers have no intention of blowing the whistle on, is that this industry rests on spurious, often blatantly dishonest reports from Family Court Counsellors, psychiatrists and psychologists. This is perjury on a grand scale – and the legal profession is entirely complicit in it.

The newly created $26 million Federal Magistrates Service, up and running around the country since July, has shown no signs of differentiating itself from the Family Court. It has turned for magistrates to people who have a long professional association with the much reviled family reports and who’s biases are for the main part well known. The government has refused to deny that the magistrates have all received the approval of the Family Court. One newly appointed magistrate, Judith Ryan, former head of the Family Law unit of Legal Aid, was responsible for the repeated use of Sydney’s “big three” Drs Peter Champion, Brent Waters and Rikard-Bell, all favourites of DOCS as well as the Family Court. Ms Ryan took it upon herself to seek the silencing of National President of Dads Peter Vlug after he appeared on a radio show Life Matters on Radio National.

She requested one of her employees listen to a tape of Radio National in which National President of Dads Against Discrimination Peter Vlug highlighted the issue of false sexual abuse allegations in the Family Court. That Legal Aid employee was then requested to write an affidavit claiming she recognised the voice of Mr Vlug. He regards the actions taken against him by Legal Aid as blatant abuse of public funds.

“I was asked to go on the program,” he said. “False allegations occupy a considerable amount of the court’s time and therefore taxpayers money. It was a matter of public interest.” The Liberal government’s move to consult “key stakeholders”, the Family Pathways Advisory Group, submissions for which close this month, has become the Royal Commission that never was. The Group does not have a single father’s group on it despite ample representation from heftily funded feminist advocacy groups, academics and institutional heavyweights. The “Group”, set up in the wake of an Australian Law Reform Commission report which found overwhelming disquiet with the Family Court and its processes, comes at a time when there are mounting questions over the level of public confidence in the court.

One of its founders, Gogh Whitlam, has declined the opportunity to defend the contemporary court. Yet virtually no one on the group is even remotely critical of the Family Court; one of its members, Cathy Argall, has been publicly denying the Child Support Agency’s role in the 20 suicides a week committed by men after separation and another academic, John Dewar, who’s faculty has just received $500,000 in funding, has suggested the broad push to shared parenting is detrimental to women’s interests. Despite their importance and the millions of dollars of funding flowing to groups such as the Australian Institute of Family Studies and the Family Law Council, there has never been an audit or academic study of family reports. Both the government and the AIFS have refused to offer an explanation.

National President of Whistle Blowers Australia Dr Jean Lennane says the same misuse of psychiatry occurs in the Family Court as other courts, but its secrecy means it is less well documented and it leads to “some very bad miscarriages of justice towards children who are deprived of access to one or other parent on the basis of … very dubious psychiatric evidence. They are relying on spurious reports and misinformation. The secrecy has allowed enormous abuses of process to develop.”

President of Lone Father’s Barry Williams says the failure to include fathers on the Family Pathways group is blatant discrimination. “If this government was listening to the people who are hurting they would abolish the Family Court,” he said. “It hasn’t changed in a quarter of a century, it seems to be a protected species. It has to be replaced by a Tribunal.

“The court is bringing the entire legal profession into disrepute. We get 22,000 calls a year. People are committing suicide as a result of court decisions.”

Mr Williams said father’s can lose any relationship with their children based on “very biased” reports by court counsellors made up of “inuendo or make believe” which they may not even be permitted to see.

“When a man wants to see his children they say he is trying to control the woman. It is not true at all. They want to see their kids because they are part of their life.”

“The reports are ill written, foolish and irresponsible.” Malcolm’s case comes at a time when there is scathing media attention on family courts throughout the English speaking world. Prominent feminists in the US have come out recently supporting father’s groups position that shared parenting liberates everyone involved, adding a twist to the ideologically driven vortex. The quarter of a century since the establishment of the Family Court of Australia has been characterised by a potent mix of feminism, psychology, psychiatry and the law, but it may well be money and the law which ultimately unravel the system.

The European Human Rights Court recently awarded a father $40,000 in compensation for breach of his human rights after the father was denied access to his child in the German courts. Equally in Australia there are signs of an impending wave of litigation. Fathers for Family Equity have commenced a project to initiate a wide-ranging class action against the government and the Family Court over bias, discrimination, injustice, abuse of power and damage to children. With more than 20 men a week killing themselves post-separation, simple arithmetic shows such an action could cost taxpayers tens of billions of dollars.

In a landmark case, Blue Mountains solicitor Hal Ginges was recently awarded an undisclosed sum and a public apology from the Department of Community Services over false allegations of sexual abuse of his children involving DOCS officers. Illustrating their close connections, the investigation by DOCS led to orders in the Family Court that the father’s contact with his children be restricted and supervised. “Ultimately the children found their own way back,” Mr Ginges said, who practices in the Children’s Court and the Family Court. “Things haven’t changed. Fathers are still being falsely accused and undertrained officers of DOCS are still taking children away and relying on untested allegations.”

Former President of the NSW Family Law Reform Association Max King has recently began a $1.4 million dollar compensation test case which in the NSW Supreme Court, naming Chief Justice of the Family Court Alistair Nicholson as a defendant in his role as administrator of the Court. He hopes the case will expose the practices of the Family Court and the nature of the family reports to public scrutiny. Any discussion of the role of psychiatric evidence in the Family Court leads straight to the question of false sexual abuse allegations. For Malcolm, he is caught up in a maze of conflicting affidavits and legalistic complexities. An affidavit from a baby sitter, who notified the police, reports the mother dropping off the children, claiming they had been sexually abused, and then promptly going out on a date.

Malcolm has never been charged or found guilty of anything, but like many many thousands of other fathers, if the matter ever goes to trial the war of contradictory experts, many of whom may spend more time in the witness box than they ever did interviewing the family, may well be enough, despite the lack of medical evidence, for a judge to entertain “lingering doubts” sufficient to deny him any contact at all with his children until they turn 18. Very few of those accused of sexual abuse of children are ever convicted; but the allegations prompt a cascade of events from The Child Abuse Industry, to quote the title of a 1980s American book warning that the self referencing and ideologically driven child protection bureaucracy was out of control.

As forensic psychologist Yolande Lucinde wrote in a recent paper presented to the Australian Academy of Forensic Sciences, the child abuse epidemic “has all the characteristics of mass hysteria, now called moral panic…driven by hysterical beliefs, unvalidated and untrue.”

Dr Lucire says that in terms of the numbers of people and resources involved we are in the greatest moral panic since the Salem witch-hunts.

She regards the “so-called substantiation” recorded by welfare departments as nothing more than assertions and notes that in reality child sexual abuse is “very very rare”, and only found amongst “very disordered people in disordered families.” “It is quite improbable,” she says. “The allegations arise in the context of custody battles. Some studies indicate 80% of the accusing parents have massive personality disorders… probability analysis indicates that any one report is many times more likely to be false than true. “The terror that an innocent person might be found guilty, which has traditionally and rightly been the foundation of our justice system, has been replaced by the terror that a guilty man might go free. “In a moral panic, hysterical beliefs short-circuit reasoning and an illusory paradigm governs perception. Judges, juries, social workers and doctors fear offending against the newly imposed values, and suppress their own common sense.”

With the most draconian secrecy legislation in the country centred on The Family Court and closely linked welfare departments, the richest sources of information on the operation of the court and the nature of the reports is coming from whistleblowers. One former Family Court officer, who worked in the Sydney Registry for 14 years, Bill Sheridan, says: “Whoever pays the piper calls the tune. Some of these reports are almost in the word processor, it is a matter of changing the names around.

“One will describe every parent that comes before them as a ‘dysfunctional personality’, others will have different quirks. If you went to six different psychiatrists or psychologists you would get six different views.

“By the time they get over their lengthy CVs you will probably find the reports are all on the same lines. From my personal experience watching the ‘experts’ being cross-examined, I did not think these reports were a good method of determining custody issues. “The report writers can’t help themselves but to twist things, and they get the information supplied to them wrong. They will misinterpret.

“It is verballing. They do it for the money. There are great financial rewards for their behaviour, in the millions of dollars per year.

“Any false allegation by either parent can be reported as fact. Without any testing at all to gather the truth they will embark on some campaign, such as that the father is oppressive or abusive. “They will twist and manipulate the facts. They embellish the evidence. “The family reports are not expert evidence, simply opinion. They are doing nothing to assist anyone in any shape or form.” Another retired court officer, so distressed by what he witnessed, wrote a book, “Child Sexual Abuse Allegations in Australia”, which has been placed on an international web site outside Australian jurisdictions.

He notes the death of the premise of “innocent until proven guilty” to be replaced by “groundless suspicion, ad hoc accusations, arbitrary judgements and premature condemnation”. “It is my opinion that, in the past 15 years, the insidious invasion of a child’s suggestibility by inept child sexual abuse interviewers has been instrumental in more children becoming victims of manufactured ‘sexual abuse’ than actual instances of this abuse,” he writes. “A witch-hunt mentality emerged in earnest during the mid-80s as Australia literally became a Little America overnight – a nation of accusers and litigants – adding to the coffers of the legal profession, while depleting the self esteem of thousands of innocent children and adults.

Too ready access to Legal Aid and the lure of victim’s compensation further smoothed the way for this litigious onslaught, aimed mainly against males, as the spectre of child sexual abuse appeared ad nauseum in the media. The dissemination of child protection misinformation by misguided child protection zealots resulted in chaos and confusion, as parents started notifying thousands of alleged cases of child sexual abuse in all States. The reluctance of courts to enforce harsher disciplinary action against inept welfare workers is unconscionable…”

The former court officer, who spent much of his final months as a court employee at the photocopy machine, in his chapter Child Sexual Abuse and the Family Court, breaks down in detail the original “M&M” and “B&B” cases which led to the notion of “lingering doubt” and the “capricious” judicial reasoning that went on behind them. Under this tenet, to deny a child any contact with their father after the allegation of sexual abuse has been made, it is not necessary to prove that the child has been sexually abused or that the child may be at risk if access were granted. All that is required is for a trial judge to have “lingering doubts” as to whether access would or would not expose the child to an unacceptable risk. As the author says, in the family reports, many of which sit on the fence when such allegations are raised, it can be not what is said so much as what is not said that leaves the father damned and the children without a male parent.

Exploring the situation in NSW, he looks at the estimated 35,000 cases of allegedly “confirmed” child sexual abuse in the last decade and asks why not one investigative reporter has asked the obvious question: “Why is it that, of the thousands of alleged cases classified …”Actual – Confirmed Child Sexual Abuse”, less than 3% result in convictions”.

He says that after many years in the court room he has formed the view that the treatment of sexual abuse allegations has created a “kangaroo-court mentality” that is a blatant denial of natural justice which leaves thousands of children the subject of interrogation and unwarranted sexual abuse therapies. He is left in despair at a system which has degenerated “at the expense of vulnerable children and innocent adults”. He notes as proof that most sexual abuse allegations coming before the court are mischievous the fact that the alleged abuse is never claimed as the reason for the breakup of the marriage. Fed up with what they perceive as outrageous behaviour by the Family Court and family report writers, increasing numbers of men are posting virtually everything to the internet.

One senior academic, accused of molesting his children over a decade ago, has already been threatened with jail for publicising his case. Along with other outraged litigants he has been ordered by the Family Court not to contact the United Nations. He recently posted his entire case on the internet.

Although denied access to his three children, the academic was never found guilty of anything.

Last year’s Family Report criticises the father for becoming obsessed with clearing his name, quoting approvingly another report criticising him for his “lack of appreciation, if not disregard” of his former wife’s feelings and the emotional consequence the father’s persistent publication of his plight might have on her. As in so many other cases, the counsellor concludes that there is “considerable potential for emotional risk” if the children were to see their father and “regardless of the veracity of the sexual abuse allegations… one questions the benefit to the children of resuming any form of contact with their father…”

Transcripts of court proceedings also posted to the internet show the father struggling with “Her Honour”, finally pointing out to the judge the irony that if he had actually been found guilty of sexually abusing his children the affect would be the same: denial of any relationship with their father for more than ten years. There is no apology forthcoming from the court. Ordered to stand back from the bench, the father’s final words: “It just seems so unfair”.

Campaigner against the abuse of psychiatry in courts Stewart Dean recommends that anyone being interviewed by a court appointed expert should take a support person such as himself to act as independent witness.

“The biggest use of these reports is when the mother wants custody and she alleges paedophilia against the husband. They got away with it for a long time. The women’s groups have been coaching women in the steps to take. In that way they were more or less assured to get custody of their children. The cliches are the same. That has been the biggest misuse in the Family Court.

“Psychiatrists in general have overplayed their hand and have come in for such criticism they are not carrying the same weight. “Lawyers and psychiatrist feed off each other. The lawyers more than anyone know how crook the psychiatrists are, but they use them to win or create cases. Cases should not be judged by psychiatrists, but by evidence. “

The close if not incestuous relationship between psychiatrists, psychologists and the legal profession was clearly illustrated by the judgement of the Psychologists Registration Board of Victoria which deregistered cocaine addicted psychologist and Family Court favourite Timothy Watson-Munroe. The Board receives more complaints over Family Court reports than any other matter, and as they are largely prevented from investigation by secrecy provisions, has written to the Court over the matter.

In a sad forerunner to the 44 page judgement, newspapers reported a man’s taking the psychologist to the Board after he was denied any contact with his son as a result of orders made by the Family Court on recommendations by Watson-Munroe – who was deregistered for being of poor character.

Five QCs went as character witnesses for him. He procured his cocaine from a solicitor who gave him briefs. Some of the evidence shows him watching videos of police interviews for the purpose of writing court reports while sniffing cocaine, dealing with drug-dependent clients while under the influence. Police tapes record him, referring to lines of cocaine saying: “There’s nothing like the joy of waking up and realising that contrary to…every urge in your body not leave one, you have in fact left a small one for the morning.”

The lobby group Men’s Rights have called on the government to fund a review of all custody orders made as a result of recommendations by Watson-Munroe and urged all fathers who lost their children as a result to consider compensation actions. The Citizens Commission on Human Rights, which made its name in this country campaigning for the deep-sleep Chelmsford Inquiry, has just released a guide to dealing with psychiatric and psychological testimony in the Family Court and social welfare departments. CCHR advise that no one should submit to such an interview without an accompanying witness, without the interview being videotaped and without clear legal advice on their rights.

National President Lyn Cottee said the inaction of professional bodies, medical boards and health care complaints bodies actively protected corrupt psychiatrists and psychologists. The protection of psychiatrists in the Family Court spills over into other arenas such as DOCS in NSW, Human Services in Victoria and Family Services in Queensland.

“Psychiatrists and psychologists are employed in particular jurisdictions because they produce the answers that are desired or that fit into the prevailing ideology of the court. The have become a new power elite. Everything they say is taken as gospel no matter in some cases how preposterous.

“In the case of the Family Court, psychiatrists often become the trier of fact rather than the judge. Character flaws of the preferred parent are often overlooked in favour of magnifying and sometimes even fabricating the flaws in the other parent. These unscientific, biased, opinion-based pronouncements are often sufficient for parents to lose any contact with their children.”

One of the ironies of the nature of Family reports, and the enormous weight placed upon them, is that it is well recognised amongst social scientists that interviewing people is a most unreliable form of evaluation, and that there is no evidence that interviewing people is a good way of determining whether they are a good parent. As former academic Tom Benjamin says, behavioural science literature has shown interviewing to be an unreliable form of investigation, and there is no evidence to indicate it as an appropriate form of determining the better parent.

As Sanford Braver author of “Divorced Dads: Shattering the Myths” says: “There is no evidence that there is a scientific valid way for a custody evaluator to choose the best primary parent. Instead there is convincing evidence that their recommendations merely follow the evaluator’s own gender biases.”

There has been scathing worldwide media attention focussing on family courts throughout this year. The Observer newspaper in London just completed a three month expose into the British Family Court, concluding that the custody evaluation procedures were utterly flawed. They found “a shocking culture producing routine misery on a vast scale for both children and parents”. The paper continued: “We have found wide ranging inadequacies in the legal system, ill-trained professionals, badly prepared judges and decision making which is often a lottery.”

One recently retired family report writer declared the service he left as haphazard and “a hell of a mess”.

In the US, Margaret Hagan, author of Whores of the Court: The Fraud of Psychiatric Testimony, has embarked on a new book on custody litigation. In her chapter “In the best interests of the Child” she notes the shock that psychoexperts’ contributions often provide to parents; and notes that a psychological professional who has never met you the children or the parent can hold their future in his her hands. One mother lost custody of because she shirked her duty to have her parental fitness assessed by a psychologist. “It is no step at all to turn…personal value judgements into professional opinions to support the case of a parent making claims…” Ms Hagan writes.

The Spectator, in a cover story The Rape of Justice, describes the “spurious” if not “incomprehensible” reasons for father’s losing contact with their children: “…there was the father whose overnight contact with his five-year-old was stopped because ‘the child had many mile-stones ahead of him’; another who was denied contact because he ‘had to prove his commitment’; another because ‘this is the mother’s first child’; another because he was ‘over-enthusiastic’; yet another because ‘the child fell asleep in his car on the way home’….And so on and so, appallingly, on.”

A similar litany of disaster and denial of relationships with fathers or less commonly mothers is true of Australia. A father’s close relationship with a son is described as “unhealthy”; another parent is described as having a psychiatric condition of unknown name immutable to treatment, another as having a controlling and intensive intelligence, another as being too involved with his children’s schooling.

In one report a famous Sydney DOCS/Family Court psychiatrist Brent Waters states that the most disturbing thing is that the parents can’t see that there is anything wrong them. They lost all four of their children. In another the mother, who hated the welfare authorities was and admittedly no saint, is described by Peter Champion, another favourite of DOCS and the Family Court, as being arrogant and unable to admit that she was wrong. She lost her two children. One father, who consulted a string of psychiatrists and psychologists in his battle to rescue his kid from an allegedly abusive situation, only got one good report: from the disbarred Watson-Munroe. Another father lost any chance of custody when Watson-Munroe misinterpreted the father’s plans for accommodation of his young son. There was no retraction, no apology.

One father lost any contact with his child after a report from a women’s health centre, Gunedoo in the Blue Moutnains, suggested that the son had no worthwhile relationship with the father. He was never interviewed. Another accused the father of harrassing his son at school without any evidence at all. Another suggested the father should not be granted shared parenting because it might give him hope of reconciling with the mother. Another psychiatric report states he can’t understand why the father is putting the mother through the stress of a trial he cannot win.

One recently retired family report writer declared the service he left as haphazard and “a hell of a mess”.

In the US, Margaret Hagan, author of Whores of the Court: The Fraud of Psychiatric Testimony, has embarked on a new book on custody litigation. In her chapter “In the best interests of the Child” she notes the shock that psychoexperts’ contributions often provide to parents; and notes that a psychological professional who has never met you the children or the parent can hold their future in his her hands. One mother lost custody of because she shirked her duty to have her parently fitness assessed by a psychologist. “It is no step at all to turn…personal value judgements into professional opinions to support the case of a parent making claims…” Ms Hagan writes. The Spectator, in a cover story The Rape of Justice, describes the “spurious” if not “incomprehensible” reasons for father’s losing contact with their children: “…there was the father whose overnight contact with his five-year-old was stopped because ‘the child had many mile-stones ahead of him’; another who was denied contact because he ‘had to prove his commitment’; another because ‘this is the mother’s first child’; another because he was ‘over-enthusiastic’; yet another because ‘the child fell asleep in his car on the way home’….And so on and so, appallingly, on.”

One father lost any contact with his child after a report from a women’s health centre, Gunedoo in the Blue Mountains, suggested that the son had no worthwhile relationship with the father. He was never interviewed. Another accused the father of harassing his son at school without any evidence at all. Another suggested the father should not be granted shared parenting because it might give him hope of reconciling with the mother. Another psychiatric report states he can’t understand why the father is putting the mother through the stress of a trial he cannot win.

Along with the contradicting experts, Malcolm and his ex-wife’s affidavits also contradict each other. Amidst the sad horrific battle of contradictory experts, one of the father’s affidavits reports the child saying: “Mummy said that you touched my fanny, but you didn’t, did you Daddy?” For him and for his children, as for hundreds of thousands of others, the agony of Australian family law will never be over.

Written by John Stapleton, cofounder of the world’s longest running radio show for fathers, Dads on the Air, and available on their website.

Images are by Marice Sendak from his darkest children’s book We Are All in the Dumps with Jack and Guy. For more information go here.

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