Why Don’t We Believe Women? Family Court Cases and the Importance of Judicial Knowledge
Toxic Family Court Decisions Continue To Inflict Trauma on victims of Family Violence and Abuse
I recently read a heartbreaking New Zealand family court judgement involving a child taken from the care of their primary attachment figure — their mother — after she raised allegations of child sexual abuse involving the child’s father.
In the decision, the judge quoted a witness who saw the mum and her child daily and who described mum as devoted to her child.
When the child began telling mum things no little one should have knowledge of (articulated in the language that only small children have), mum rightly became concerned.
As all caring mothers in her situation would, she recognised the fear and hurt her child was experiencing and naturally began to take steps to protect them. Unfortunately for this protective mum, she was also in the middle of a family court case.
As anyone with familiarity with the family court system knows, raising an allegation of this nature, in the midst of an already adversarial process, is a fast ticket to zero credibility, no matter how true such allegations may be.
Mum knew she would need to collect evidence in the hope that her child might be protected though. Bearing in mind, mum is not a lawyer and has not worked as a social worker or policeman, she did not know about the protocols around such things.
Consequently, when videoing herself asking her son questions (based on what he had already told her), she did not know that she was in fact breaking a set of “rules”, which make it clear that the proper course was in fact for her to say nothing to this small person she had spent their entire life protecting, and to hand the whole matter over to “professionals”.
Put another way: she was expected to hand the matter over to strangers concerned perhaps more about evidential matters, than the well-being of her child.
The circumstances of mum’s life were already fraught with the ongoing stress of a family court case. Then came the frightening disclosures from her child, regarding a man who has previously also abused her. She didn’t know she wasn’t allowed to ask questions; that questions needed to be asked in a particular way (or risk tainting the “evidence”); or that she would actually be doing the opposite of protecting her son.
A simple rational explanation for her actions, is that she was a mum afraid of harm being done to her child, who thought she was doing the right thing by getting him to repeat what he had told her, on camera, so that the authorities would have something to work with when they began investigating (as she assumed they would).
The fact that mum did not follow this unknown protocol, later came to haunt her though, as police determined that an evidential interview with a little boy, who had already talked to his mum about the abuse, was likely to be “tainted” and therefore of little value should any further action need to be taken.
Unfortunately, failure to prosecute such cases is an all too common occurrence, even where no such video as been made, but where the victim is very young and the chances of a successful prosecution are low.
This is not how the family court judge interpreted mum’s actions, the consequent failure to interview and the failure to prosecute though.
In this case, what it meant is that when mum came before the family court, she was left with no corroborating evidence to support her allegations.
She had just her word about what her child had told her.
She had her instincts as their mum — nobody knows her child better than her.
And she had her knowledge of her child’s father — an abusive man, that she herself had left when their child was still an infant, because of his abusive behaviour towards her.
In the family court decision though, none of these things are referenced, with the judge instead, quickly honing in on mum’s purported lack of credibility and veracity. She is accused of putting words into her child’s mouth, that make absolutely no sense coming from the mother.
That myth of female vindictiveness, instead continues to rule the day.
Lawyers hat on
For those who have read my other articles, you’ll know that I was a lawyer for the better part of a decade, with a first class honours masters in law. In the years since I quit law, I’ve returned to university, to study both sociology and psychology.
Reading this case, I determined I was going to begin my analysis of it, with my lawyers hat on though.
My intention: to understand how the judge came to the conclusion that mum should not be believed and how interference with the primary attachment relationship could be “in the best interests” of the child, in light of mum’s purported lack of veracity.
What I found was a familiar structure in terms of the judicial decision: the building up of a set of facts to support a particular narrative, where a mum alleging abuse is shown to lack in credibility and with the final few pages hammering home the decision, so that mum is left with nothing to play down the track; thus tainting any future potential appearances before the family court as well.
In this case, the judge also over plays a few earlier referenced details, with reliance on broad brush statements to finish a damning picture of mum; the same mum, earlier described as devoted to her child, by the educator who saw them both daily.
Forgive my cynicism, but it is a pattern I’ve seen across hundreds of cases now; both here in New Zealand, as well as in other similar jurisdictions.
Where higher courts tend to be significantly cleverer (the assumptions and prejudices of the presiding judge better hidden), lower courts (including the family court) tend to be less so. In this case, those biases and prejudices I was so familiar with in practice (a key factor in why I left the profession), were on full display.
As I’ve previously demonstrated in my earlier articles, lawyers and judges are wholly ignorant of what they do not know and doggedly determined in their ignorance, that there is little to nothing further to know or fix. For that reason, engagement in discussion on sociological or psychological theories and research in the areas upon which the family court touches, is all too often, all but impossible.
With my lawyers hat still on though, a key issue jumps out to me that I feel even lawyers and judges should be able to engage on: if there is any chance that mum is telling the truth, how would the paramountcy “best interests of the child” provision best be served by handing the child over to a potential abuser?
In this case, there had not even been a psych report ordered: how could the family court judge be so certain that she is not putting this child at serious risk of harm? At bare minimum, a psych report would at least have provided some fuller contextual understanding as to where these allegations might be coming from, before such a damning decision was made on so little information.
What there had been instead, was a short hearing, with mum self representing and where mum’s clear misapprehension of court process (as unsympathetically demonstrated in the judges decision), led to her vilification when she failed to understand what evidence would or would not be allowed and / or given weight by the court.
(For the record: allowable evidence changes depending on the presiding family court judge on any given day, so that even the lawyers don’t always have sure footing on that front either. Unlike most other courts, where the Evidence Act is supreme, the reality in family court is much more fluid and flexible).
What this meant in the present case, was the judge was able to rely on shoddy “truths” (dad’s story), which, in the context of a short hearing only, the judge “accepted”, without appropriate recourse to a full and proper investigation that could have provided assurance (one way or the other), that further irreparable harm was not going to be inflicted.
Instead, the judge ordered a change of care, on the basis of what I can only describe as wholly insufficient information.
A Repeating Pattern
This is a pattern I have seen repeatedly in the family court, with the judge blaming insufficient evidence on a self litigant’s (and sometimes lawyers) failure to understand court evidentiary processes.
Judge’s claim “no evidence” is filed on certain topics, while also often shutting down exploration of earlier evidence of abuse (as the judge noted they did early in mum’s decision, before contradicting themselves later in the piece) that means women are often not allowed to put forward the full contextual reality of their situations.
It’s then an easy out for a judge to say “I was just doing my job”, by making a decision wholly within the confines of what was (or was not) presented to them in court, according to often contradictory and unjust rules, that they themselves have dictated, which means a severely shortened (and often highly erroneous) version of the “truth” ends up before the judge.
Judge’s do this predominantly because of time constraints and the complexity of matters that come before them.
In cases involving violence or abuse, I would submit it is wholly inappropriate to approach their fact finding missions in this casual way though; there are real world implications that can result from a failure to protect, including serious psychological or physical injury and even death.
Its also a positioning that fails to account for the myriad of ways in which the stress and trauma of violent and abusive relationships, can make it all but impossible for victims or survivors to engage in family court processes as judges and lawyers would expect or wish.
I’ve previously talked about issues in relation to accountability in the family court too and this strategy of undermining the introduction of evidence a judge does not wish to hear, or the failure to provide understanding or support for a self litigant and/or an abusive victim to navigate these extremely complicated and difficult waters, is a toxic part of what family court litigants can expect when alleging any kind of abuse, particularly where victims do not meet the (all too often) prejudiced expectations of the presiding judge.
Really, it’s amounts to a form of gaslighting; commiserate with the kind of abuse men like mum’s ex partner inflict.
I would also suggest it’s a cop out, particularly when one is dealing with the potential future sexual abuse (or otherwise) of a child and the potential loss of an obviously strong and otherwise healthy attachment relationship between a mother and child, which is likely to have untold future impacts on that child.
Cross Examining an Abuser
Perhaps most egregiously in the present case, is that mum was also vilified for her failure to cross examine the man who had previously abused her, on the sexual abuse allegations involving their child.
Putting aside how disgusting such a situation is, that our adversarial process would require such from the victim of violence or abuse (in circumstances where mum could not afford a lawyer), apparently mum was also meant to know that her affidavit’s and own evidence in the witness box were not sufficient to establish her allegations; that for her evidence to be meaningful, she also had to raise the same allegations in cross examination of her abuser.
Of course a lawyer knows that this is the expected process. But speaking as a lawyer who has also been in much the same situation as mum in this case, with the stress of confronting ones abuser and having failed to raise all that was necessary under such awful circumstances: what is expected is not easy, even for someone who knows the system as I do.
This mum did not know this system like a lawyer does though. The judge’s failure to account for her vulnerability, should be scandalous, but unfortunately in my experience, is all too routine.
Apparently this judge also does not recognise that you can be a strong, capable and intelligent woman and a victim of domestic violence or abuse too. Never-mind that there is a recent Court of Appeal decision that says exactly that. Or the wealth of literature that also demonstrates such.
Child Sexual Abuse Stats
One might think too, that the judge would at least understands the stats on child sexual abuse; this being one of the big areas she has the misfortune of making decisions in.
She must know that there is a one in seven likelihood that this child she is making decisions over, will be sexually assaulted or abused before his 18th birthday; such is the prevalence of these heinous crimes in New Zealand. Sexual assault and abuse against young people is not the rare occurrence it’s often made out to be; we have an endemic and often unrecognised issue in our society in this respect, with the perpetrators, most often, being family members.
One would expect such information to be common knowledge in a field that deals with issues like this regularly. In my experience, its not though.
Failure to Believe Women
One might also expect that the judge would know about a very important recent study that demonstrates how mothers are often (wrongly) disbelieved in cases where child sexual abuse is alleged, with care then transferred in the vast majority of cases, to the alleged abuser.
As a judge in a system now also widely criticised for its approach on family violence and abuse, one must also expect her to know about the extensive academic literature that debunks the notion of “parental alienation” theory too?
One such literature review in this area, for example, notes “parental alienation”, operates as a primary vehicle for making abuse invisible in custody litigation.
Another study, references the ‘unscientific’ foundations of ‘parental alienation’ theory (noting that it has no methodologically sound, peer-reviewed research) and notes that while lawyers and judges may not always use the term “alienating,” they still problematically base their opinions and subsequent recommendations on the concepts and ideology.
Another such study (among the dozens available on this subject), discusses the need for a greater understanding of what may appear to be counterintuitive behaviours on the part of the protective parent and notes that without a sufficient level of knowledge regarding the dynamics of abuse and the covert behaviours of abusers, it is fairly easy for the courts, who are seeking the “best interests of the child”, to follow a path of collusion with the batterer, which further victimises the partner and the children.
Apparently the judge in this case, doesn’t know about the extensive critical literature in this area though, since she has ordered that mother and child be separated on the basis of mums purported lack of “insight” (because of her repeated claims, including encouraging her child to make disclosures) and noting fears that mum may be “emotionally abusing” (read “alienating”) the child by continuing to make these claims.
It may be worth reiterating that there has been no serious investigation of mum’s allegations. Academic studies have also recorded that it is very rare for women to make up such allegations. And while the judge may not have used the word ‘alienation’, in her decision, her reasoning here, amounts to the same.
“Parental alienation”, whether referred to directly or otherwise, is now a highly outdated and criticised theory, but one that is continuing to have a toxic effect in the lives of abuse survivors, who are unfortunate enough to end up in family court.
In this case, the judge’s prejudices are putting a child at risk of sexual abuse, with care now also having been transferred, without appropriate investigation, to a potential abuser, and with this child’s prime attachment figure and protector, now largely also cut out of the picture.
Attachments in Psychology
One would hope that before a child’s attachment to his mother was torn, this judge had also appraised herself (and fully understood) the key psychological principals related to attachments too?
It is for example, well accepted by psychologists today, that insecurity caused by attachment trauma, has an ongoing and detrimental impact across a persons lifespan.
There is no hint of understanding or reference to any of the above in her “honours” decision though. No suggestion, in fact, as to how her decision here will have a fundamental impact on this child’s wellbeing through the remainder of their childhood and into adulthood.
Perhaps it’s the fault of the legislators, that there is not greater specificity within the legislation, around the need for core attachments (particularly in relation to the primary attachment figure), to be supported and maintained as a core principle in this area.
Or perhaps one might expect that the judges and lawyers working in this area, where family court decisions touch on these fundamental issue daily, would have an in-depth knowledge and understanding of them.
They don’t though.
Coercive Control
Another area of concern, was in relation to the judge’s easy dismissal of ‘coercive control’, within mum’s relationship with dad.
Deriding mum’s fear of dad and her allegations of intimidatory behaviour, the judge noted that mum interpreted small events as much more significant than they actually were (at least in her opinion).
In making such a statement, the judge (clearly unknowingly) demonstrated a fundamental lack of understanding as to how coercive control and psychological abuse operates.
Given that understanding in this area is foundational in relation to modern theories of violence, it remains astounding that our judicial figures (and lawyers) are still so ignorant on something so important.
Unfortunately the already extravagant length of this current article, prevents a fuller analysis of this issue (it is perhaps worthy of its own article?), but I would suggest that all family court judges and lawyers, take the time to read Evan Stark’s foundational text: ‘Coercive Control’.
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