|
|
Allegations
of Sexual Abuse in NZ |
|
High Court judgment has
exposed a bitter custody battle in which a woman's false allegations of sex
abuse took two years to disprove because of incompetence on the part of
social services. The injustice -suffered by the father was compounded when a
costs award in his favour was reduced by the High Court following an omission
in a Family Court judge's ruling. The woman – who accused
her ex-husband of sexually abusing their daughter and a son from a previous
relationship – concealed from specialists details of child abuse by a
previous partner and the fact that her own children had told her that her
present partner was abusing them. She had been ordered to
pay 75 percent of her ex-husband's legal expenses, though she still has
custody of their daughter. The court took the view that, after the two years
it took to unravel the false abuse allegations against him, the father needed
to be gradually reintroduced to his daughter's life. But the High Court
slashed the costs award by more than two-thirds to a mere $5000 after Family
Court Judge Patrick Grace inadvertently omitted to specify what he would have
awarded had the mother not been legally aided. Family law specialist
Stuart Cummings said the errors described by Justice John Wild's judgment
were "massively important" and the two-year delay was the primary
cause of the injustice. "You can take this all the way back to the Magna
Carta," he says. "Justice delayed is justice denied." The High Court judgment
sends a clear warning to Family Court litigants about abuse allegations, says
Cumming, and is an indictment of the system charged with protecting children.
Long delays and their disastrous consequences constitute a miscarriage of
justice: "The children and the father have been victimised." The fraught matter of custody
decisions is in the public eye after Stephen Jelicich abducted his baby
Caitlin because of what he saw as an unfair court ruling. The father's
experience in this latest case is likely to lead to renewed allegations of
bias against men in the Family Court system. Cummings, who has been a vocal
defender of the Family Court against those allegations, says the order of
costs in Family Court proceedings is rare, and a clear indication the court
takes the issue of false allegations seriously: "The judge is saying
that initiating an inquiry into child welfare [requires the accuser] to be
completely co-operative and forthcoming … and that's what she has been pinged
for." Cummings has some sympathy
for the woman: her children had been sexually abused and it was entirely
human to suspect the ex rather than the present partner. But he says her
behaviour and errors by social services and the court have had
"catastrophic consequences for the -children and their father". The couple separated in
1998, agreeing on both matrimonial property and access; the children spent
four nights a week with the father and three nights with the mother. But, in
1999, the mother refused to return the children and sought exclusive custody.
She told her ex she had concerns about the children's behaviour, but did not
mention her suspicions of abuse, though she had divulged them to officials. The father had no more
contact with his daughter and stepson as the case dragged on. The High Court
heard that "one of the health professionals [was] overseas for some
months" after accepting the case – a fact Cummings describes as
beggaring belief. The birth of another child further stalled the case, while
welfare professionals involved, none of whom contacted the father, could not
agree on what to do. Although the Family
Court dismissed the mother's allegations of sexual abuse, the father failed
to gain custody of his daughter. Judge Grace "expressly made the point
that declining [his] application for custody … was not a reflection on his
fitness to care for her [but] a decision made in [the daughter's] best
interests, primarily to ensure continuity in terms of where and with whom she
was living". The judge awarded costs
because of the exceptional circumstances. The mother did not tell counsellors
and other experts her son had been abused by her previous partner. That
omission was compounded by the fact that it was "highly likely" her
son was abusing his sister, a probability the mother refused to entertain.
She also "failed to disclose to counsellors the -children's comments to
her to the effect that they were being sexually abused by [her] new
partner". The facts do not, the
judge notes, "reflect well on her; [she put] her own interests ahead of
those of the children". However, in his costs
decision, Grace's "failure" in the wording of his judgment caused
Justice Wild to refer the matter back, asking the judge to recall, amend and
reissue his decision. His two referrals, or "minutes", dated August
4 and September 8, received no response. Because of the judge's
omission, the Legal Services Agency, which paid most of the mother's lawyer's
fees, refused to pay the costs, and the mother faced the prospect of selling
her home. Justice Wild reduced the costs order. Judge Grace said through a spokesman that he attended to Justice Wild's request but there is no reference to this in his judgment and he infers from this that it may not have been brought to Justice Wild's attention. |
