“THE IMPOSSIBLE DREAM‐FAMILY INTEGRITY, COURTS, WELFARE AND ALLEGATIONS OF CHILD SEXUAL ABUSE.”

• DOI: http://doi.org/10.1111/j.174-1617.1988.tb01031.x
• Date: 01 December 1988
• Author: Honorable Justice Murray
• Published date: 01 December 1988

“THE IMPOSSIBLE DREAM-FAMILY INTEGRITY,

COURTS, WELFARE AND ALLEGATIONS OF CHILD SEXUAL ABUSE.”

Honorable

Justice

Murray*

This is an A4ustralian judge’s point of view on

a

particular aspect of family problems which has greatly

escalated in

our

country over the past three years. It

presages to

a

certain extent the topics of tomorrow

afternoon, namely sexual abuse allegations in contested

custody and access cases and the management of such

cases in the Australian Family Court. One common

thread that runs through this morning’s session is that

of the preservation of family integrity when this prob-

lem arises. Perhaps my view that family integrity is

impossible once an allegation of child abuse is made, is

a pessimistic one, but you must keep in mind that fami-

lies only get before the Family Court in Australia once

the marriage has broken down. The family is already

fragmented by the time

a

dispute involving children of

the marriage comes before the court. Prior to the case

coming to trial, the conciliation procedures have already

taken place, and although they may continue, an allega-

tion of child sexual abuse (which in our court only rears

its head in custody and access disputes) usually makes

any question of restoring

or

strengthening family integ-

rity impossible. Rehabilitation of the offender, if find-

ings are made against him, is another matter, but

I

do

not see that as

a

matter for the court.

Role

of

the Court

in

Divorce

Holding the family together therefore, is not the task

of the Family Court-it is the role of the court to put

asunder in as decent

a

manner as possible the marriage

of the couple and to make such orders as may best

protect the interests of the children. It is not even neces-

sarily the role of our court to determine in child sexual

abuse cases the innocence or guilt of the alleged

of-

fender. We have no criminal jurisdiction. It

is

the judge’s

duty to make such findings on the evidence as will

enable him to order such custody and/or access as will

best serve the welfare of the child. Those findings are

made on the balance of probabilities. Although the

experience in the Family Court

of

Australia has been of

an escalating number

of

custody and access cases in-

volving allegations of child sexual abuse over the past

two to three years, the number of such allegations differ

markedly from state to state. A recent survey showed

very few such cases in Queensland, but a much higher

*Honorable Justice Kemeri Murray is a Family Law Judge,

of

the Australian

Family

Court. Paper presented at the 24th

Annual AFCC conference,

May,

1987,

Honolulu, Hawaii.

number in my own state of South Australia.

In

New

South Wales, the Child Protection Unit at the Prince

Henry Hospital in Sydney reported a 65% increase in

child cases in 1986 compared to 1985.

In Australia, problems raised by allegations of child

abuse have been exacerbated by what might

be

described

as occasionally overlapping federal and state jurisdic-

tion. Child delinquency, neglect and abuse have always

been dealt with by state agencies and state courts. Since

1976 however all family non-criminal disputes relating

to marital breakdown and therefore involving only mar-

ried couples, have been the exclusive jurisdiction of the

Family Court of Australia which is

a

federal court set up

under the Family Law Act 1975. Ex-nuptial children

and disputes involving their maintenance, custody and

access have always been and are still being dealt with by

a state court although there is legislation proposed to

come into effect in July 1987 enabling the national

Family Court to deal with these.

State-Federal Relationship;

No

federal agency exists to deal with child abuse.

Each state has its own welfare agency and there

is

no

formal coordination at the national level. If the state

has to intervene to protect

a

child, it does

so

through the

medium of

a

state court. Once

a

state court has made an

order placing the child under the guardianship or care

and control

of

the Welfare Minister of the state, the

jurisdiction of the Family Court is, for all practical

purposes, ousted.

Let me outline the legislative provisions relevant to

this paper. The Family Court

of

Australia derives its

jurisdiction to deal with custody and access matter relat-

ing to couples who are married from Part VII of the

Family Law Act 1975. This embraces ss.60 to 70B inclu-

sive. Under s.64 which defines the court’s powers in

respect of custodial proceedings, the court is bound to

regard the welfare of the child as the paramount consid-

eration. The section then sets out a number of condi-

tions which must be taken into account, such as the

nature of the relationship of the child with each

of

the

parents

of

the child and with other persons, the effect

on the child

of

any separation from either parent

of

the

child or any or other person with whom the child has

been living, the attitude to the child and

to

the responsi-

bilities and duties of parenthood demonstrated by each

parent of the child, the capacity of each parent or of any

other person to provide adequately for the intellectual

and emotional needs of the child, and any other fact or

1

CONCILIATION COURTS REVIEW/VOLUME

26,

NUMBER 2/DECEMBER 1988