The child safety dilemma confronting Australia’s family courts

The study, published in JAMA Network Open, found that police-recorded sexual assault rates increased by 60 per cent for boys aged 10 to 17 and 51 per cent for girls in the same age group between 2014 and 2024.

Rates of family and domestic violence-related assault also rose by 57 per cent among boys aged under 10.

Yet hospitalisations for assault-related injuries remained broadly stable, while overall child protection substantiation rates did not show a corresponding increase.

The findings raise questions about how Australia’s police, health and child protection systems identify, record and respond to violence against children – and what happens when allegations of abuse emerge in parenting disputes.

For family courts, that creates a difficult task: making decisions about a child’s safety before the full circumstances have been established.

Gabriella Pomare, family law partner at Norton Law Group, said the critical issue was what happened after an allegation was raised.

VIEW ALL

“For me, the important question is what happens after a concern is raised. How quickly can we understand what’s happening, and what does protection actually look like for that child in the meantime?” she told Lawyers Weekly.

Different systems, different pictures

The University of Sydney research examined national police-recorded victimisation, hospitalisation, and child protection data to identify trends in children’s exposure to violence between 2014 and 2024.

Lead author Dr Lucy Grummitt, from the university’s Matilda Centre, said the findings demanded urgent attention.

“We are at a crisis point. Sexual assault and family and domestic violence have increased over the decade, but what’s particularly concerning is that the steepest increases were in the last three to five years,” she said in the university’s announcement accompanying the study.

The researchers identified several possible contributors to the recorded increases, including economic pressures, the effects of the COVID-19 pandemic, changing social attitudes, gaps in support services and a greater willingness to report violence.

But the contrasting trends across police, hospital and child protection records complicate the picture.

Police data capture offences reported to law enforcement, while hospital records reflect injuries serious enough to require admission. Child protection substantiations concern matters investigated and determined by the relevant authorities.

The datasets, therefore, measure different events and outcomes. An increase in police-recorded incidents cannot, on its own, establish an equivalent increase in the underlying prevalence of violence.

The researchers also raised concerns about the capacity of child protection agencies to investigate reports of abuse, citing Productivity Commission data indicating that the proportion of cases investigated had declined from around half to one-third over the decade.

They called for better integration of information across police, health, and child protection systems to improve understanding of children’s exposure to violence and ensure support reaches those who need it.

The study did not examine family court proceedings. However, its findings highlight a challenge with implications for parenting disputes involving allegations of abuse: different agencies may hold different information about a child’s circumstances, and an outcome in one system may not resolve the safety questions confronting another.

For Pomare, the central difficulty is that decisions about a child’s immediate welfare cannot always wait for a complete evidentiary picture.

“The hardest part is that decisions about a child’s immediate safety may need to be made before there is a complete picture of what has happened. The court has to consider protective arrangements and obtain evidence promptly, but the child still needs somewhere safe on an interim basis,” she said.

“That’s what makes these matters so difficult: the need for a careful process doesn’t remove the need for an immediate response.”

Protection before proof

Allegations of violence or sexual abuse can create particularly difficult circumstances in parenting proceedings, where courts may need to determine whether and how a child should spend time with a parent while disputed allegations are examined.

Unlike criminal proceedings, where the prosecution must establish guilt beyond reasonable doubt, family law proceedings involve a separate assessment of the child’s best interests and any risks to their safety.

The family court’s responsibility to assess risk is separate from the question of whether criminal charges have been laid or an offence proved.

Pomare said understanding that distinction was essential, particularly where allegations had not resulted in criminal charges.

“The distinction I’d really want readers to understand is that the family court does not have to wait for a criminal conviction before making protective parenting orders. It has its own obligation to respond to allegations and consider what protection is needed,” she said.

“Depending on the evidence and circumstances, safeguards can include supervised time, protective conditions or orders that a child spend no time with a parent.”

The absence of criminal charges, she argued, should not automatically be interpreted as an absence of risk.

“So ‘no charges’ should not be treated as shorthand for ‘no risk’. At the same time, the court must assess the evidence rather than assume an allegation is either true or false,” she said.

The challenge is balancing the need to respond to potentially serious risks with the obligation to properly examine allegations and afford parents procedural fairness.

It is further complicated by the way children may communicate experiences of abuse.

“We also have to understand that children don’t necessarily disclose abuse in a neat, chronological account. They might say something small, disclose more later, or struggle to explain what happened, particularly where the person involved is someone they know and depend on,” Pomare said.

“That’s why the way adults respond matters so much. We need to take disclosures seriously without repeatedly questioning a child or trying to turn them into the person responsible for proving the case.”

Pomare’s comments point to a challenge shared by family and criminal lawyers: obtaining and testing evidence involving children while recognising the vulnerabilities that may affect how their experiences are communicated.

The challenge of testing children’s evidence

The difficulties associated with questioning children have also attracted scrutiny within the criminal justice system.

A study published in the Journal of Criminology examined how 337 Australian criminal justice practitioners, including judges, prosecutors and defence lawyers, perceived the cross-examination of children in sexual abuse trials.

First published online in March 2025, the research asked participants to assess simulated cross-examination scenarios involving child and adolescent complainants, different questioning approaches and the presence or absence of judicial intervention.

Practitioners generally perceived questioning of younger children as less fair to both complainants and defendants, while the absence of judicial intervention was associated with greater perceived reductions in complainants’ credibility and reliability.

The researchers also identified differences between professional groups, with defence lawyers less likely than other participants to regard the simulated questioning as unfair to complainants.

The researchers called for more proactive judicial intervention and further training in developmentally appropriate questioning.

Although the research concerned criminal trials rather than family law proceedings, it illustrates the evidentiary difficulties that can arise when serious allegations depend on children’s accounts.

The need to test allegations rigorously does not eliminate the importance of how questions are asked, particularly where a child’s age or communication needs may affect the evidence obtained.

For Pomare, the same principle extends to specialist assessments in family law matters: the professional examining a concern must have the expertise appropriate to the question being asked.

The gap between identifying risk and protecting children

The family law system has introduced mechanisms intended to identify safety concerns earlier and direct higher-risk parenting matters towards specialist management.

The Federal Circuit and Family Court of Australia’s Lighthouse process provides confidential risk screening and triage for eligible parenting matters.

The Evatt List provides specialist case management for eligible high-risk matters, while the Magellan List deals with eligible proceedings involving serious allegations of child abuse.

Pomare acknowledged the importance of those safeguards but cautioned against confusing the identification of a concern with establishing what occurred.

“There are important safeguards. Lighthouse provides early risk screening and triage, the Evatt List provides specialist management for eligible high-risk cases, and the Magellan List deals with eligible matters involving serious child-abuse allegations,” she said.

“But identifying a concern and establishing what happened are different tasks. Lighthouse screening is confidential and isn’t evidence that proves or disproves an allegation.”

The effectiveness of screening, she argued, ultimately depends on whether relevant information is obtained, evidence is properly assessed, and protective arrangements address the risks identified.

“A screening process is an important beginning, not the whole answer,” Pomare said.

Identifying a potential risk is one thing; obtaining the specialist evidence needed to assess it is another. When assessments are delayed or unaffordable, courts may have to make interim decisions about a child’s living arrangements while significant questions about their safety remain unresolved.

Pomare distinguished between court-provided family reports, which are available without charge to the parties, and private reports or additional specialist assessments, which are generally paid for by families.

The cost and availability of those assessments can become significant where a matter requires expertise beyond what a general family assessment can provide.

“I’d also be careful about assuming that a general family assessment can answer every specialist question. The court itself recognises that some matters require expertise beyond what a family consultant can provide,” she said.

“We need the right professional answering the right question, rather than expecting one report to resolve every concern.”

For families facing delays or unable to afford further assessments, the immediate concern is what happens while the necessary evidence remains unavailable.

“Where an assessment cannot be obtained promptly, or its cost is beyond a family’s means, my concern is what happens in the gap. What information is available for the next decision? Are the interim arrangements appropriate? What would trigger an earlier review?” Pomare said.

Interim parenting arrangements can have significant consequences long before a final determination is reached.

“I don’t think we should become so focused on getting to the final hearing that we lose sight of the arrangements a child is living with along the way,” Pomare said.

“For me, the principle is straightforward: a child’s access to a proper assessment of serious safety concerns should not depend on which parent can afford the next report.”

When different systems hold different answers

The University of Sydney researchers’ call for better integration of information across police, health and child protection agencies has particular relevance where multiple legal and administrative processes involve the same family.

An allegation of abuse may be reported to police, assessed by child protection authorities and raised in family law proceedings.

Each system has different responsibilities, procedures and thresholds for taking action. An outcome in one may therefore provide relevant information without necessarily answering every question confronting another.

Changes to the family law information-sharing framework, which commenced in May 2024, were designed to improve access to relevant information about child abuse, neglect and family violence.

The reforms strengthened mechanisms for obtaining information from prescribed agencies, including police and child protection authorities, while incorporating safeguards for sensitive material.

Pomare welcomed the progress, including the information-sharing changes and the co-location of police and child protection officials in family law court registries.

At the same time, she warned that arrangements for sharing information did not necessarily guarantee that the full circumstances of a case would be understood.

“What worries me is the possibility that each service holds one part of the picture, but the overall pattern isn’t understood quickly enough,” she said.

“A police record, a child protection response and information about a child’s day-to-day wellbeing may each tell you something different.”

The challenge, according to Pomare, is ensuring practitioners understand not only whether another agency has been involved, but precisely what that involvement established.

“My concern would be any situation where the existence of another agency’s involvement is mistaken for reassurance that the safety question has already been dealt with,” she said.

“I’d want practitioners to ask what an agency’s response actually means. What was assessed? What information was available? Was the concern investigated, and what did the outcome establish?”

Those questions can be particularly important where a criminal investigation has not resulted in charges, a child protection agency has taken no further action, or different systems appear to have reached different conclusions.

Such outcomes may reflect differences in available evidence, statutory responsibilities, or the questions each agency was required to determine.

“I don’t think ‘another agency has looked at it’ should ever replace understanding what that agency actually found,” Pomare said.

She also cautioned that better coordination must not come at the expense of privacy or safety.

“The legal ability to share information is essential, but so is the capacity to obtain it, understand it and act on it. And that needs to happen safely,” she said.

For practitioners, the issue is therefore whether relevant information reaches the right decision-makers in time, is properly understood and informs an appropriate response.

What would meaningful reform look like?

For the University of Sydney researchers, the divergence between police, hospital, and child protection data underscores the need for a more coordinated approach to understanding violence against children.

Their recommendations include greater investment in prevention and early intervention, stronger child protection systems, and improved national monitoring.

Pomare’s priorities focus on what happens once serious concerns enter the family law system.

She called for earlier access to appropriate specialist assessments, legal assistance, and properly resourced independent children’s lawyers, alongside practical support for families during proceedings.

Her concerns about resourcing echo previous Lawyers Weekly coverage on workforce pressures affecting independent children’s lawyers, which highlighted warnings about the impact of funding and capacity constraints on vulnerable children.

“I’d put more resources at the beginning of these matters. Earlier access to appropriate specialist assessments, legal assistance and properly resourced Independent Children’s Lawyers would be high on my list,” Pomare said.

She also identified a need for sustained professional development concerning child sexual abuse, coercive control, children’s disclosures and the limitations of different forms of expert evidence.

“I’d strengthen ongoing specialist training and quality assurance, particularly around child sexual abuse, coercive control, children’s disclosures and the limits of different kinds of expert evidence,” she said.

But improving procedures should also involve examining what those procedures achieve.

Rather than relying solely on how quickly proceedings conclude, Pomare suggested assessing whether relevant evidence was obtained promptly, whether interim protections were workable, and whether new concerns were identified and addressed.

“I’d also like us to be more deliberate about evaluating outcomes. How quickly was relevant evidence available? Were protective arrangements workable? Were new concerns picked up and responded to? Did children have a safe, age-appropriate opportunity to be heard?” she said.

For Pomare, protecting children and ensuring procedural fairness should not be treated as competing objectives.

“Ultimately, I don’t see child safety and procedural fairness as competing goals. Taking an allegation seriously doesn’t mean treating it as an established fact, and giving a parent a fair opportunity to respond doesn’t mean leaving a child unprotected while the issue is examined,” she said.

“We should be aiming for prompt, proportionate protective decisions, properly tested evidence and timely review.”

For Pomare, meaningful reform requires more than identifying risk or resolving proceedings quickly. It means ensuring children are protected while evidence is gathered, their experiences are properly understood, and the adults responsible for their safety act on the information available.

“The child needs to be at the centre of that process, without being made responsible for it. They shouldn’t have to prove the adults wrong, choose between their parents or carry the burden of making everyone understand. That’s our responsibility,” she said.