The data from ICL interviews permit a deeper examination of the challenges ICLs experience when acting in matters involving family violence and child abuse. Most ICLs indicated that they sought to manage risks in relation to violence or abuse of children by making an assessment of the child’s/young person’s safety based on evidence. However, in almost all interviews, ICLs identified the problem of sourcing evidence in order to make that assessment and either support or dispel an allegation, as a significant challenge.
The ICL role: “Honest broker” and evidence gatherer
One of the greatest difficulties is assessing how real that risk is, because very often you’re faced with countering allegations of risk; both parents alleging there’s risk to the child from the other. Very often, though, in those sorts of cases there’s been a report to the welfare authorities and there’s been some assessment, and our judicial officers here, both Family Court and Federal Magistrates Court are very open to and find very useful having a report from the welfare authorities where there have been reports or allegations made to those authorities. [ICL, private practice, interview]
Unfortunately—it’s an allegation often made, and it’s often difficult to obtain evidence one way or the other. [ICL, private practice, interview]
You just don’t know whether you’ve got real abuse occurring or whether you’ve got made-up allegations because someone doesn’t want the children to spend time with someone else. [ICL, private practice, interview]
A number of ICLs suggested that they felt significant responsibility in making decisions about risks to children/young people and on occasion found that balancing the right of the child/ young person to have a relationship with their parents with ensuring the child/young person was safe was a difficult task:
The main challenge is to ensure that there is a person who can adequately parent the child. That is a big problem for me. When there’s questions of risk, be it violence or sexual abuse, whatever, sometimes there’s just not enough “good enough” parents. And I’ve got a number of those cases at the moment where I’m between a rock and a hard place, yes. Kids are with mum, questionable. She’s in a violent relationship, but if dad was violent with her as well, and is dad really a good enough parent? I currently have a case that is like that. Sexual abuse, family violence, drugs and this question of “good enough” parent. And I’m just like, Oh my God, what do I do? What recommendations do I make? [ICL, LAC, interview]
The main challenge is trying to get the information for the judge to make the decision. A Magellan matter, frequently they’re either easy or they’re very hard in that if you’ve got abuse confirmed and you’ve got kids that are old enough to convince child protection and/or police that … there’s been either sexual assault or physical assault, then they’re relatively easy. What you’re looking at then is trying to—if the perpetrator is wanting to resume a relationship with the child—whether it’s appropriate to do that and, if so, how best to do that with counsellors or whatever for the child and to ensure that it’s in a safe environment for the child. The more difficult ones are the ones where you’ve got a suspicion that there may have been abuse but nothing’s been confirmed. Then you’re looking at the issue of unacceptable risk and what can be done in those matters. They’re the very hard matters and, thankfully, as ICL, I don’t have to make that decision, that’s up to the judge. [ICL, LAC, interview]
A real risk assessment on both sides. What is the risk to the child, having a relationship with this parent, and what is the risk for the child in not having the relationship with the parent. I think that only comes with experience, but it needs experience of particular cases where—jumping to mind—where a parent is in gaol for an abusive crime and acknowledging that’s not necessarily a bar to a relationship with the child. But it has to be unpinned and looked at and examined in heavy detail. [ICL, private practice, interview]
I think the highly conflicting nature of evidence; I think my biggest challenge … is balancing—coming back to the legislation—balancing the right for a child to have a meaningful relationship with one parent versus protecting them from harm. I think finding that balance, and finding the appropriate orders in cases where there’s risk, I find that very challenging, because it’s all about weighing up the evidence. It’s very rarely a clear-cut answer. There’s usually a lot of conflicting evidence, and I find that quite difficult in cases particularly where it’s a matter of a no contact case, for example. [ICL, LAC, interview]
Many ICLs also suggested that in addition to the challenges of gathering the evidence, there could be difficulties associated with having that evidence admitted to the court, particularly
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when it is drawn from a number of different sources. This difficulty is reflected in the following comment:
The trick is to line all the evidence up and then to clearly be able to point out the strengths and the weaknesses in all of them and the conclusions that the court should draw from that. It is quite tricky because police will work, conduct investigations in their own way, to a different standard of proof. Child protection will do it in a different way as well, and they are acting in their own little silos, I suppose, in terms of how they are conducting investigations. But if you have had all the agency involvements and they could make various conclusions, in a family law jurisdiction you will have, I suppose, the whole picture before you. So it’s actually making some sort of sense out of all the involvement of all those agencies and investigations that have been carried out to assist the court in finally forming its own view. [ICL, LAC, interview]