Alleged DV victim labelled ‘difficult witness’, family court permanently removes children – ABC News

Rebecca* was given just over four hours to hand her two children, aged 4 and 7, to her ex-husband John* and was forbidden under court order from seeing them again until they were 18.

She said she almost collapsed from shock when she read the Family Court orders giving John full custody, despite serious domestic violence allegations against him and her being the children’s primary carer since birth.

“I couldn’t actually process it. I had [my youngest] with me. I was in shock. I was literally driving around law firms going, ‘Help. I need help. I need a lawyer’,” Rebecca told the ABC.

But in an extraordinary turn of events, John returned the children to their mother, saying the judge got it wrong.

He said his legal counsel did not adequately represent him and he never wanted to remove the children from their mother.

Rebecca alleged her ex-husband had raped her on multiple occasions, leading to a charge by police.

In a letter to Rebecca, John wrote: “I took you for granted that you are my wife and you would oblige for whatever the husband says.”

She also alleged John was sexually inappropriate with their son, claiming she walked in on an incident that led to a “screaming” dispute between them.

Her application to the court sought full custody of the children and no contact with John.

John denied all the allegations against him, the rape charge was later dropped and the court determined, on the balance of probabilities, there was insufficient evidence to support any of Rebecca’s claims.

John made no claims Rebecca was a risk to the children.

“As a mother, I can vouch for her,” he said.

New research released in conjunction with the National Centre for Action on Child Sexual Abuse found the Family Court does not have the capabilities to make findings on cases that involved allegations of child sexual abuse or family violence.

“It was never intended to be a specialist family violence court. It was never intended to be a child abuse court, let alone a child sexual abuse court,” lead researcher Morag MacSween said.

She cited a 2021 report, which found Family Court judges believed child sex abuse had occurred in just 14 per cent of cases, with the remainder found to be either a mistaken belief or a false allegation.

“That’s the reverse of what the evidence tells us,” Dr MacSween said.

“Our view is, from having done the research, if [the court] had access to and engaged with the realities of child sexual abuse, their view on the balance of probabilities is likely to change.”

Rebecca and John agreed the failings in their case were not limited to the judge’s findings but were a whole-of-system issue.

They said inadequacies with their legal representation prolonged the court case, skyrocketed their legal fees and fuelled the tensions between them, ensnaring them in a system they could not extract themselves from.

“The reason that matters were struck out in your trial affidavit was that they were inadmissible, irrelevant, scandalous, vexatious, a range of other factors,” the judge said to Rebecca during the trial.

He criticised her court manner in his judgment.

“The mother was a difficult witness and prone to frequent and unrelenting interjections and spontaneous statements that at times were unrelated to the question asked,” he said.

Dr MacSween said it was not uncommon for victims of abuse to be considered unreliable witnesses.

“The smooth, calm, assertive, confident perpetrator is, on the face of it, easier to believe than the highly traumatised, vulnerable mother or child. 

Switching custody can cause “multiple layers of trauma”, even in cases where it might be necessary, according to Dr MacSween.

“It’s very hard to understand how a view could be taken that a child who has been living with a parent for most of their life is suddenly so unsafe with that parent that they can have no contact with them,” she said.

Rebecca lost her appeal.

Ultimately, it took 10 months of John and Rebecca working together to have the final court orders withdrawn, a new parenting plan drawn up and a domestic violence order altered so that neither parent would be found in breach.

For Rebecca, the outcome resulted in her being forced to co-parent with her alleged abuser.

“I no longer trust the police and I no longer trust the courts, and I no longer trust any of these professionals or safety nets. They’re not an option for me.”

[Ed: In our experience this case is only unusual in that the father ultimately chose to give the mother contact despite the orders.]

Source: Alleged DV victim labelled ‘difficult witness’, family court permanently removes children – ABC News