A fraction of fathers lose access to their kids: why the Family Court isn't anti-men
- Category: Family Law Courts
- Created: Friday, 20 September 2019 03:05
- Written by Bianca Hall - Sydney Morning Herald
Just 3 per cent of fathers who go before the Family Court are refused access to their children, casting doubt on One Nation senator Pauline Hanson's claims that mothers are using the court to deny their ex-partners time with their kids.
Senator Hanson made waves on Wednesday when she gave a radio interview after being named a co-chair of the federal government's controversial new inquiry into Australia's family law system.
"I'm saying to those women out there, don't throw domestic violence orders against your ex-partners just to further your case or get control of the children," Senator Hanson said.
"That's not fair or right. There are people out there who are nothing but liars and will use that in the court system. You can't defend these people and I will not defend them."
She said she was hearing of "too many cases" where "parents are using domestic violence to stop the other parent from seeing their children".
According to the Australian Institute of Family Studies, regardless of allegations made in the Family Court, fathers retained visiting or parenting rights in 97 per cent of cases.
Asked what evidence she had that women were lying to game the system, Senator Hanson replied: "From my own personal experience, seeing what happened with my son."
In 2016, it was reported Senator Hanson’s son, Adam Hanson, pleaded guilty in a Cairns court to breaching a Domestic Violence Order.
In July 2019, Senator Hanson spoke in Parliament about her son’s case and accused her former daughter-in-law of perjury.
Women's legal groups and family violence advocacy groups have rejected Senator Hanson's characterisation of the Family Court as discriminating against fathers and rewarding mothers for lying about sexual and physical abuse.
They say the court system actually gives the benefit of the doubt to men, and too often courts make orders that force children to spend time with abusive dads.
A 2015 analysis by the Australian Institute of Family Studies showed that when the Family Court makes orders about child custody arrangements, it overwhelmingly makes orders for children to spend time with both parents. It found:
- When parents consent to court orders, 93 per cent of former partners will equally share parental responsibility, meaning both parents must be consulted on major parenting decisions.
- When judges make orders, parents will equally share parenting responsibility about 40 per cent of the time, but the other parent will have access to their child in almost every case.
- Just 3 per cent of fathers will lose all access to their children.
Reforms introduced by the Howard government in 2006 gave both parents the presumption of shared care of children after separation.
In 2012, then-attorney general Nicola Roxon introduced further reforms that broadened the definition of child abuse to include exposure to domestic violence.
Since then, battles in the Family Court have become more fraught, with more reports of abuse being heard by the court, and a presumption that both parents will have access to their children after separation.
The new inquiry into the family law system, to be chaired by Coalition MP Kevin Andrews and co-chaired by Senator Hanson, follows repeated government inquiries and reports by non-government organisations into the efficacy of Australia's family law system – including an Australian Law Reform Commission report, handed down in April this year.
Those inquiries found the system was under-funded, overburdened, and too focused on the rights of parents rather than the needs of children.
Women's groups have long argued the Family Court needs to be better equipped to deal with the trauma and family violence that brings many families before its judges.
The Australian Institute of Family Studies estimated in 2015 that in 11 per cent of cases in which Family Court ordered parents share care of their children after separation, allegations of both family violence or child safety had been raised.
Retired Federal Circuit Court judge Robyn Sexton said this phenomenon was well-known on the bench.
Ms Sexton said that in her 13 years on the bench, it was extremely rare for a parent to be denied contact with their child.
"There are many cases where there is family violence and the court still makes orders for contact of that parent with the child."
As for Senator Hanson's claim that women construct sexual abuse allegations against ex-partners?
The limited research available shows this does happen, although rarely.
Research cited in a 2007 Australian Institute of Family Studies report suggests between 1 and 5 per cent of child sexual abuse claims are "malicious".
A Canadian study suggested false reports children were being abused or neglected could be as high as 12 per cent in custody disputes, but said non-custodial parents (mostly fathers) were more likely than custodial parents (mostly mothers) to make false reports.
Most research about false reports in the context of custody disputes centred on allegations of child sex abuse, but the Australian Institute of Family Studies said false allegations of domestic violence were also rare.
The report noted that research claiming that "vindictive parents (mainly mothers) commonly pressure their children to make false claims of mistreatment, especially of sexual abuse in child custody cases" had been "largely debunked by the research community".
However, the institute added, some of the thinking behind the debunked research continued to strike a popular chord.
"In Australia, for example, a recent telephone survey of 2000 people in Victoria (VicHealth, 2006) found that 46 per cent of respondents agreed with the statement that 'women going through custody battles often make up claims of domestic violence to improve their case'."
Research identified by author Jess Hill in her recent book on family violence and the family law system, See What You Made Me Do, suggests that mothers are less likely to make false claims in separation disputes, than fathers.
According to a 1998 review of thousands of child protection cases in Canada, false allegations were made in 12 per cent of custody disputes. Of those, 43 per cent of false allegations were made by non-custodial parents - usually fathers, while mothers represented 14 per cent of false allegations.
Another criticism of the system is that mothers overwhelmingly "win" in the Family Court.
The Family Law Act stresses that both parents should have equal access to children in the event of a separation, unless it is not in the best interests of the child, or there has been abuse.
According to the Australian Law Reform Commission report, the majority of separated parents split care of the children down gender lines.
"The most common patterns in parenting arrangements among separated families [about 64 per cent] involve the children spending most time with their mother and seeing their father, including spending overnight time, on a regular basis," it said.
"The maintenance of patterns involving majority time with mothers in post-separation contexts is consistent with evidence of the continuing persistence of a gendered pattern in work and parenting patterns in the population at large."
with Jacqueline Maley