Interesting and well-constructed article Elspeth, and essentially I agree with your conclusion that despite the potential of this new structure of laws to promote a better focus on children’s welfare, the capacity of the Family Court to manage family violence is lacking.

However I’d like to suggest that the way you characterise family violence and the “false beliefs” associated with it, is a little simplistic, as it denies the possibility that the ambiguities and flexibilities in the conventions surrounding court process have arisen for very good reasons – ie the ubiquitously high level of doubt surrounding what is actually going on… which in part is a result of the Court’s lack of capacity!

As you rightly point out, family violence is often conducted behind closed doors, victims are reluctant to disclose, and systems designed to prevent family violence often unintentionally give rise to new opportunities for it to occur.

However despite this noted difficulty in understanding the dynamics underlying family violence, you appear to be steamrolling over the questions that this difficulty raises, and advocating for solutions that systematically deny any representation of the complexities that exist. That is, you are jumping the gun: you are saying that there is a false belief that “parents who abuse the other parent can be a safe parent to their child”, while at the same time affirming that the systems in place for substantiating that family violence has occurred, and what the nature of that violence is, are insufficient for the purposes of establishing whether any or both of the parents are abusive or not

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Family violence is a self-fulfilling prophecy. If an accusation is made, then if true it is family violence, but if it is false then the act of making the accusation is also family violence. That is to say, if an accusation is made, then this is sufficient to establish that family violence has occurred whether or not there is any evidence to suggest whether the actual perpetrator is the accused or the accuser. However unless there is clear evidence that violence has occurred and who is responsible for it, in the form of physical harm or documented evidence of emotional abuse and the harm it has caused, there will always be enough doubt to ensure that an absolute judgement is impossible. The perspectives of outsiders to family violence simply cannot be taken to be complete or infalliable… and yet if they get it wrong, it will ultimately result in a miscarriage of justice, lives made miserable, and kids being placed in a dysfunctional situation.

So before making the claims you do about what “false beliefs” exist, I think you should be asking yourself why you believe these to be true, and what the consequences of acting on these beliefs might be. And I should note that I do agree that in the majority of cases these “false beliefs” don’t hold up, however the reasons for this simply don’t follow from your argument – and this renders what you’re saying political, divisive, and nothing but an example of bad faith which does your perspective no credit

Sam Janwich asks on what basis does the author believe the court has false beliefs. I can't answer for the author but have read many cases where judges have stated that a father has been violent to a mother but is nevertheless a suitable parent to care for the child. Go to Austlii.ed.au and read and you will find. Try Ganley v Ganley. With regard to children's disclosures being viewed as coaching - this is the discredited theory of Richard Gardiner, child sex offender supporter and self-published founder of PAS. Actual research into forensic child abuse investigation identifies that children lack the sophistication and necessary knowledge to reproduce false claims coherently and best practice is to ensure the child is safe. The 'coaching' story is a lawyer's story of plausible alternative explanations for children's disclosures rather than any exhaustive test of truth. The coaching claims are speculated but never proved. The third cited false belief that supervision is an effective solution is manifest in the number of orders for supervised time when a parent is identified as an 'unacceptable risk'. See for example Robins & Ruddock, where father is a convicted user of child pornography and on the sex offender register and the children have to stay awake and together to be safe. The case notes read the child saying she is afraid of her father which the judge translates into 'a loving relationship'. Claims of violence and abuse need to be properly investigated but the outcomes need to unequivocally support children's safety ahead of parent's rights.

Thanks for that elaboration and references mog. Again, I don’t dispute that these “beliefs” are false in probably a large majority of cases; I just don’t think it’s sound to assert that courts are somehow beholden to their “dominance” to the exclusion of the contrary-wise positions ie that parents who abuse other parents can *never* provide adequate care, that coaching never occurs, and that abusive parents can never be managed through supervision.

Or to put it another way, I don’t think it’s correct to characterise these things as “beliefs”. I would say rather that they are “unknowns” or as you put it, “plausible alternative explanations”.

It goes back to the question of whether the family court has the ability to fully test these “false beliefs” during the formulation of a judgement… From reading through Ganley v Ganley for example I think you’d have to conclude that it does not - and on the strength of Dr McInnes’ article I think you’d have to say that she is of a similar view. However until such time as the court does have that ability, then it is bound to consider the possibility that alternative interpretations exist – hence the non-sequitur in characterising such alternatives a “false beliefs”, as to do so effectively means asking the court to make judgements on these issues before even having the chance to consider them.

The author mentioned child protection services a being an influence… and I suppose that I should declare here that this is the perspective I’m coming from, because that’s the field I work in. I’ll be the first to admit that this is still a relatively new field and we are still a long way from having all the answers, or even solid ideas on “what works”, and “what doesn’t”. What I will say is that child protection services do have slightly less exclusionary views on what the “best interests of the child” consist of. Dr McInnes points out that under the new framework “child safety is to be prioritised ahead of a ‘meaningful relationship with both parents’”…

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however the conventional wisdom in the child protection field, partly arrived at through the investigations into the Stolen Generations and the Forgotten Australians, is that the two aren’t mutually exclusive, and when a long-term, whole-of-life view is taken, it is arguable that the maintenance of a properly-supervised relationship with a potentially abusive parent can often be preferable to estrangement. And it’s a wildly inexact science, so we’ll never know for sure, but by the same token it’s disingenuous to discount the possibility.

And here we go, this is my contribution to figuring out what’s really going on: Reading between the lines both of Ganley v Ganley, as well as Dr McInnes’s article, I think that one, if not “false” then certainly unspoken belief at work within the courts is a tendency to imagine that there are often, shall we say, alternative thinking styles being employed by the party making the accusations. The claim that the child has an “enmeshed” relationship with the mother sounds to me very much as though the judge believes the mother to be borderline personality disordered, but without stating us much explicitly. This is another highly problematic conceptualisation, given a) the psychiatry profession still hasn’t really settled on the validity of this diagnosis and b) there are good arguments to suggest that the so-called “borderline” approach to life is a perfectly natural, even rational reaction to the experience of chronic, repeated trauma, and that “sufferers’” perspectives are just as valid as anyone else’s. Nonetheless it seems to me that a major, un-acknowledged factor here is that in their semi-ignorant, semi-enlightened state (viz the court’s “limits of professionally qualified expertise in family violence dynamics, trauma and child development”), judges and courts face great difficulty when presented with an idea of “truth” which is different from their own, and so they err on the side of convention. I stand to be corrected on this, but I think it’s a possible avenue for analysing these issues further and I somewhat suspect it might shed some light on Dr Mcinnes’ concerns.