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<\/p>\nRebecca* 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.<\/p>\n
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.<\/p>\n
“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.<\/p>\n
But in an extraordinary turn of events, John returned the children to their mother, saying the judge got it wrong.<\/p>\n
He said his legal counsel did not adequately represent him and he never wanted to remove the children from their mother.<\/p>\n
“When I saw the judgement, all I knew was that’s not right for her \u2026 there were two things I really cried for,” John told the ABC.<\/p>\n
“One is joy that I can see the children, but there was no happiness at the same time that the kids are taken away just like that.<\/p>\n
“Never in my dreams would I have imagined this is how it’s going to be.”<\/p>\n
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Both parents say the family court did not act in the best interests of their children. (ABC News: Widia Jalal)<\/p>\n
During more than four years of litigation the couple estimate they spent hundreds of thousands of dollars in legal fees between them, including the sale of Rebecca’s family home to pay for an appeal.<\/p>\n
Rebecca alleged her ex-husband had raped her on multiple occasions, leading to a charge by police.<\/p>\n
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”.<\/p>\n
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.<\/p>\n
Her application to the court sought full custody of the children, and no contact with John.<\/p>\n
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.<\/p>\n
John made no claims Rebecca was a risk to the children.<\/p>\n
“As a mother, I can vouch for her,” he said.<\/p>\n
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John said he never wanted to remove the children from their mother. (ABC News: Widia Jalal)<\/p>\n
However, in his affidavit to the court he raised concerns about her reliance on mental health professionals.<\/p>\n
John said he was adamant he wanted shared parenting but “panicked” during the trial when he was asked if he could care for the children on his own.<\/p>\n
The counsel for the independent children’s lawyer asked John: “If the children were placed in your care, full-time care, do you anticipate some discomfort and distress on the part of the children and are you prepared to deal with that?”<\/p>\n
“Yes. I have confidence in that,” he responded.<\/p>\n
However, both parents say the family court did not act in the best interests of their children, handing down a judgement with “traumatic” consequences.<\/p>\n
‘The reverse of what the evidence tells us’<\/p>\n
New research released in conjunction with the National Centre for Action on Child Sexual Abuse<\/a> found the family court does not have the capabilities to make findings on cases that involved allegations of child sexual abuse or family violence.<\/p>\n Joan told her manager at a child contact centre she was worried 4yo Sally might be being abused. She was later fired<\/a><\/p>\n A social worker at a child contact centre has alleged key players in a family court case ignored her concerns about the possible abuse of a four-year-old girl.<\/p>\n “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.<\/p>\n Dr MacSween’s report examined three cases where child abuse was alleged, conducting extensive interviews with the now-adult victims.<\/p>\n “For our three victim-survivors \u2026 their mothers believed them, but the court didn’t.”<\/p>\n Dr MacSween is calling on the court to improve its understanding of perpetrator tactics, grooming and the dynamics of child sexual abuse.<\/p>\n She cited a 2021 report<\/a> 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.<\/p>\n Dr Morag McSween says it is not uncommon for victims of abuse to be considered unreliable witnesses. (ABC News: Morgan Timms)<\/p>\n “That’s the reverse of what the evidence tells us,” Dr MacSween said.<\/p>\n “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.”<\/p>\n However, Dr MacSween said it was “heartening” the court had made positive changes in recent years to elevate the voice of the child and provide more extensive family violence training for court staff.<\/p>\n Loading…’A difficult witness’ \u00a0<\/p>\n Rebecca and John agreed the failings in their case were not limited to the judge’s findings, but was a whole-of-system issue.<\/p>\n 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.<\/p>\n Rebecca’s affidavit included evidence from psychologists and counsellors concerned about domestic violence.<\/p>\n The judge found Rebecca held a “false belief” about John which would be harmful to the children and removed them from her custody. (ABC News: Widia Jalal)<\/p>\n One counsellor said: “In my professional opinion, [Rebecca] was without a doubt in a domestically violent relationship, including financial, physical, psychological and sexual abuse”.<\/p>\n Rebecca, who has been diagnosed with PTSD, also received compensation from the state government, acknowledging her allegations of rape.<\/p>\n Family and domestic violence support services:<\/p>\n But large parts of Rebecca’s evidence were struck out on the grounds it was “of limited or no probative value”.<\/p>\n “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.<\/p>\n He criticised her court manner in his judgement.<\/p>\n “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.<\/p>\n Dr Morag MacSween is calling on the family court to improve its understanding of perpetrator tactics and grooming.\u00a0 (ABC News: Morgan Timms)<\/p>\n Dr MacSween said it was not uncommon for victims of abuse to be considered unreliable witnesses.<\/p>\n “The smooth, calm, assertive, confident perpetrator is, on the face of it, easier to believe than the highly traumatised, vulnerable mother or child.\u00a0<\/p>\n “All of us who work with people with lived and living experience of complex trauma\u2026 don’t think smooth narration means truth and fragmented narration means lies.”<\/p><\/blockquote>\n Despite acknowledging the orders would create “considerable uncertainty” for the children, the judge ordered Rebecca to hand over her children, or face arrest.<\/p>\n Rebecca met police in a public park and handed over her children. (ABC News: Widia Jalal)<\/p>\n Rebecca hid with the children overnight before calling police the next day.\u00a0<\/p>\n Armed officers met her in a park where she helped strap the children into a police car and told them she would “talk to the judge” about when she could see them again.<\/p>\n “It’s been the most traumatic series of events of my life,” Rebecca said.<\/p>\n “Nothing can be worse than what’s already happened.”<\/p>\n ‘My kids are suffering’<\/p>\n In the lead up to the family court case, John had lived overseas missing the first 20 months of his son Warren’s* life, leaving Rebecca as his primary carer.<\/p>\n By the time their daughter Melanie* was born, legal proceedings had commenced and John had only met her once. Both children are neurodivergent and need extra support.<\/p>\n Warren repeatedly asked John when he would see his mother again. (ABC News: Widia Jalal)<\/p>\n When they were placed into John’s care, he said Warren was confused and Melanie woke in the night crying for her mother for weeks on end.<\/p>\n “She doesn’t even know me\u2026 she wouldn’t come to me, approach me. It took a while for her to understand this is her father,” he said.<\/p>\n “I was like, ‘my kids are suffering’. I know every single day I’m tucking them into bed.”<\/p><\/blockquote>\n An investigation by child services found “no evidence” to suggest John posed a significant risk to the children but that he “may struggle with managing parenting \u2026 particularly as he has no relationship with [Melanie], and [Warren] has high needs”.<\/p>\n Rebecca’s appeal affidavit claimed the judge had erred when he found she was a “risk of emotional and\/or psychological harm to the children” because she had fixed beliefs about the father and would impose them on the children.<\/p>\n Melanie called for her mother at night. (ABC News: Widia Jalal)<\/p>\n She also questioned the urgency of switching primary custody within hours when it took the court more than a year to make a judgement.<\/p>\n Switching custody can cause “multiple layers of trauma”, even in cases where it might be necessary, according to Dr MacSween.<\/p>\n “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.<\/p>\n Off the record<\/a><\/p>\n Obtaining court transcripts is expensive and the documents can contain errors, frustrating legal practitioners who say the flaws impede justice.\u00a0<\/p>\n Rebecca lost her appeal.<\/p>\n Ultimately it took 10 months for 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.<\/p>\n For Rebecca, the outcome resulted in her being forced to co-parent with her alleged abuser.<\/p>\n “There definitely is [a power imbalance]… I can’t stick up for myself properly because I’ve got nowhere to go,”<\/p><\/blockquote>\n she said.<\/p>\n “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.”<\/p>\n Rebecca says her children thought she was dead or had abandoned them during the 10 months she was unable to see them. (ABC News: Widia Jalal)<\/p>\n ‘A knockdown, drag out match’<\/p>\n If a judge finds that one parent is a risk of harm to the children, or that co-parenting is not possible, the Family Law Act allows them to deliver orders that effectively removes a parent.<\/p>\n The judge in Rebecca and John’s case admitted during trial that removing the children from their mother would have adverse consequences.<\/p>\n Law Professor Heather Douglas said court orders that remove children from harm should be actioned quickly. (Supplied)<\/p>\n “This is a knockdown, drag out match, and there will be a winner and a loser \u2026 there probably will be two losers. The children will probably be the loser,” he said.<\/p>\n Section 60CA of the Act states the best interests of the child or children must be given “paramount consideration” when determining living arrangements.<\/p>\n University of Melbourne law professor Heather Douglas said a child’s safety, emotional needs and, depending on their age, their own views were all things that should be considered by the court.<\/p>\n She said some children experienced “relief” when court orders removed them from harm.<\/p>\n “Once orders are made, there is an expectation they are actioned. In many cases this makes sense, if the judicial officer determines that a child is unsafe in the current care arrangement the child should be moved to safety quickly.”<\/p>\n Professor Douglas said delays in handing down judgements could also be due to the heavy workloads of judicial officers.<\/p>\n Family court expert witness investigated by AHPRA<\/a><\/p>\n Lies, threats and manipulation \u2014 how recordings exposed a rogue expert witness, in a case legal practitioners say is the tip of the iceberg.<\/p>\n A spokesperson for the Federal Circuit and Family Court said there was “no default or preferred parenting outcome” when it came to deciding a child’s living arrangements.<\/p>\n “Each matter is carefully determined on its own facts, having regard to the evidence before the court and the application of the relevant law,” they said.<\/p>\n The court spokesperson said the court recognised that parenting proceedings were stressful for children and families, particularly where there were allegations of family violence, abuse or other safety concerns.<\/p>\n “In recent years, extensive reforms have been implemented to strengthen trauma-informed practice and improve the identification and management of risk,” they said.<\/p>\n The court’s full statement can be found here, <\/a>which includes further details about how family violence and education for court staff are managed.<\/p>\n *Names of family members have been changed in line with Part XIVB of the Family Law Act.<\/strong><\/p>\n![\"Woman](\"https:\/\/www.europesays.com\/us\/wp-content\/uploads\/2026\/07\/8a78cf624582d5531e311119a61db971.jpeg\")
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