System Failure and Children at Risk:

1
System Failure and Children at Risk When Family
Law, Mental Illness and Family Violence Come
Together

• By Dr Elspeth McInnes
• School of Education, Magill Campus
• Shared Parental Responsibility in Australian
  Family Law the Impact on Children Seminar,
  Adelaide 13-14 April 2008.

2
Family Law - Equal Shared Parental Responsibility

• From July 1 2006
• equal shared parental responsibility under
  which decision makers must consider children
  spending the maximum time possible (50/50) with
  each parent after separation, or substantial or
  significant time.
• The presumption of equal shared parental
  responsibility can be rebutted where there is a
  risk of violence

3
Family Laws Ideal Separated Families

• parents should agree and co-operate in the best
  interests of their children, and
• children do best when they have a meaningful
  relationship with both parents. 
• Previously Each childs best interests were
  uniquely examined.
• Now The content of best interests is
  re-defined as regular contact with each parent
  after separation.

4
Whats the Problem?

• TWO serious implications for adverse mental
  health outcomes.
• the mental health and developmental needs of
  children are subordinated to spending maximum
  time with each parent.
• victims of violence and abuse face greatly
  increased risks of continuing exposure to abuse
  when they are required to share care with an
  abusing parent.

5
Drawing on Distress
6
Separation, mental illness and child homicide
2 case studies

• 10 year old raped/killed by father in Queensland
  on December 31 2007.
• One of 4 children in fathers care after mother
  relinquished care in 2004 after lengthy family
  court proceedings.
• Father arrested and hospitalised involuntary
  treatment order December 8, discharged December
  22 no monitoring, no check re child protection.
• Mother never informed of fathers
  hospitalisation. Said her children always cried
  when they left her to return to father. Last
  contact with them December 23.
• Eldest daughter and neighbours had previously
  made child abuse reports about father to child
  safety dept with no response.
• Surviving children placed with killers parents
  and mother to seek residence in family court.
• (Sources various press reports see reference
  list)

7
2004 Dalton (ABC 4 Corners)

• April 25 2004 Jayson Dalton killed Jessie(20
  months) and Patrick (3 months) then himself
  rather than return them to the care of their
  mother, Dionne.
• Dalton had a DVO before separation, twice
  breached it and had been imprisoned for the
  breach.
• March 11 Dionne hospitalised with psychosis after
  Daltons breach, leaving children with her
  mother.
• March 16 Family Court awards Dalton care of the
  children after 14 minute hearing. Judge tells
  Dionnes mother he was violent to wife, but not
  really to his children. No assessment of care
  capacity of Dalton or Dionnes mother was made.
• Family Court ordered the children to be returned
  to Dionne after 5 weeks when she was released
  from hospital, but Dalton killed the children and
  himself on the day they were to go back to their
  mothers care.
• Chief Justice Bryant quotedThere was nothing to
  indicate this would happen.
• BUT If nobody looks then nobody can find risk
  indicators.
• Air safety crashes investigations aim to discover
  what happened with a view to crash prevention and
  reduction.
• Victims of family homicide need a family homicide
  review process to learn from tragedies across
  both state and federal systems when parents have
  separated.

8
Common Problems in both Cases

• Family law delivered children to parents who
  killed them.
• Family law inability to properly assess parents
  capacity to provide safe and suitable care
  (despite a legal responsibility to do so).
• Mothers concerns of child abuse were
  disregarded/ mothers not informed of problems
  with fathers care.
• Police involvement with killers prior to deaths
  and their evidence of violence not available to
  decision-makers re children.
• Parents with mental illness not linked with child
  protection plans.
• Child protection system ineffective.

9
Homicide and Family Breakdown

• Separation is a high risk context for family
  homicide.
• Strang (1996) 43 of 88 killings of children by
  parents/step-parent in context of parental
  separation. Biological fathers most common
  killers (46 deaths).
• Mouzos Rushforth (2003) over 13 years, men kill
  average of 58 women partners and 16 children per
  annum with family breakdown common context.
• Johnson (2005) researched 7 cases of
  post-separation murder-suicide in WA. Common
  factors DV history, high jealousy and ownership,
  frequent threats to harm self and others,
  deteriorating mental state prior to murders.

10
The Significance of Violence

• Violence and abuse have been identified as strong
  predictors and contributors to mental illness
  risk (Taft 2003 Itzin 2006).
• Risk and severity of illness is linked to the age
  of onset, the severity, duration and number of
  episodes of violence and abuse as well as the
  presence or absence of supportive responses and
  safety.
• Children who experience violence and abuse are
  additionally developmentally vulnerable.
• The prevention and reduction and treatment of
  violence and abuse must become central to mental
  health strategies.

11
Parental Mental Illness Risks to Children

• Population data estimates 27,000 children
  affected by parental mental illness most
  dangerous disorders for risks to children are
  depression and substance abuse (Tomison 1996).
• Only 1 in 6 sufferers get appropriate help
  women more likely to access help men more
  likely to be undiagnosed and untreated (Rodgers
  et al 2004).
• Most common diagnosed context of mental illness
  child deaths is mothers killing newborns (Strang
  1996).
• Major problem that health systems treat adult
  patients and ignore their children and the
  parenting context. COPMI project aims to assist
  http//www.copmi.net.au/
• The Qld death prompted the state government to
  institute new rules requiring mental health
  workers to assess and provide a child care plan
  before discharging patients under Involuntary
  Treatment Orders where the patients have
  responsibilities for, or are involved in, the
  care of children. The assessment is to include
  the patient's ability to parent the children and
  any foreseeable risk of harm to the children, but
  most state and territory mental health services
  do not have protocols with child protection
  departments and the need for parenting plans on
  patient discharge.
• Where parents have separated children are less
  supported and exposed to system gaps.
• Parents with shared responsibility and continuing
  time with children do not receive information
  about the hospitalised parents capacity to
  provide care and are thus unable to seek a
  change in care arrangements to ensure their
  children are cared for (The 2007 case).
• Where parents have been made incapable of
  providing care due to the violent or abusive
  actions of the other parent (The Dalton case),
  child protection, police and domestic violence
  reports need to be part of the evidence available
  to decision-makers in the family law system.

12
child in dangerous contact - drawing
13
Mental Illness and Parental Separation

• ABS data (2002) indicates that one in five
  Australians have had a mental illness in the past
  12 months mostly depressive and anxiety
  disorders.
• Mental health problems can contribute to
  difficulties in relationship formation and are a
  commonly nominated cause of relationship
  breakdown (Wolcott Hughes 1999).
• Violent and abusive relationship are a key risk
  to womens mental health (Taft 2003).
• Relationship breakdown is a crisis period which
  can itself precipitate mental illness (Rodgers et
  al 2004).

14
Family Law and state systems

• State police, health, childrens services,
  emergency accommodation, child protection, and
  corrections hold important evidence on risks to
  childrens safety where family violence, mental
  illness and parental separation come together,
  but do not have ready interface with each other
  or the family law system.
• Ex Parte DV orders routinely not accepted by
  family court as evidence of violence. No ready
  timely pathways for state held evidence (eg
  police /mental health service info) to be
  available to family law decision makers
  responsible for determining childrens best
  interests.
• Family law decisions on child allocation
  over-ride state laws and are not monitored for
  their impact on the childs safety or best
  interests.
• Child contact services are short-term and the
  most dangerous parents are excluded for staff
  safety (Sheehan et al 2005).
• Magellan program of state child protection/family
  law interface is highly restricted majority of
  violence and abuse cases outside the program.

15
Pathways for Positive Change

• SA Family Safety Framework has developed a shared
  risk assessment, information sharing and referral
  process across police, health , education and
  childrens services, emergency accommodation
  services and child protection.
• Model should be extended to include family law
  services (including FRCs) responding to
  identified high risk separated parents.
• Need for learning approach via interagency family
  homicide review process including family law
  system services when parents are separated.
• The alternative is to continue to complacently
  accept childrens current levels of exposure to
  abuse and violence after parental separation and
  claim There was nothing to indicate this would
  happen as the death and injury toll mounts.

16
Pre-conditions for change

• Human right to survival and safety has to be
  recognised as the threshold condition of a
  childs best interests and the possibility of a
  meaningful relationship with anybody.
• Need to have a robust investigatory, risk
  assessment and decision-making processes to
  protect children from parents with a history of
  violent or abusive conduct.
• Need resources and concerted continuing effort.
• Therefore need leaderships committed to safety
  first driving interagency reform across the
  state-federal divide.

17
References

• Australian Broadcasting Corporation (2004) Losing
  the Children Four Corners, August 16.
• Australian Bureau of Statistics, (1998) Mental
  Health and Well-being Profile of Adults South
  Australia Catalogue Number 4326.4.40.001
  Canberra, AGPS.
• Australian Bureau of Statistics (2000) Australian
  Social Trends, AGPS, Canberra.
• Australian Bureau of Statistics, (2006) Mental
  Health in Australia A Snapshot,
  2004-05 Catalogue Number 4824.0.55.001, Canberra,
  AGPS.
• Bancroft, L. and Silverman J.  (2002) The
  Batterer as Parent Addressing the Impact of
  Domestic Violence on Family Dynamics London,
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• Brown, T., Frederico, M., Hewitt, L. and Sheehan,
  R., (2001) The Child Abuse and Divorce Myth,
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• Coalition of Domestic Violence Action Groups S.A
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  Witnesses, Domestic Violence Unit, Dept. of Human
  Services, Adelaide.
• Courier Mail (2008) DEATH HOUSE - Children left
  with body of dead sister after father flees.
  Brisbane, January 2.
• Easteal, P., (1993) Killing the Beloved,
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• Edelson, J., (1999) Childrens Witnessing of
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• Family Law Council (2002) Family Law and Child
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• Gold Coast Bulletin (2008) Girl's death prompts
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• Itzin C. 2006 Tackling the Health and Mental
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• James, M., (1994) Domestic Violence as a form of
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• Fehlberg, B., and Kelly, F., (2000)
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• Heenan, M., Astbury, J. Vos, T., Magnus, A. and
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• Hotton, T. (2001) Spousal Violence after
  Separation, Juristat Vol. 21, No. 7,pp. 1-9.

18
References

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19
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