Friday, March 26, 2010

Fathers and bias in the Family Court (Australia)

Excellent post by Patricia Merkin on fathers and bias in the Family Courts of Australia.

Fathers and bias in the Family Court
By Patricia Merkin - posted Friday, 26 March 2010

A recent decision by the Family Court of Australia suggests that it is out of touch with general community standards and reveals that the law needs further amendments.

A father who was charged and convicted of downloading child pornography has been granted weekend overnight access to his two young daughters. He was previously found guilty in a criminal court of downloading internet material that by its nature is produced from the actual abuse of children. Furthermore, he was found guilty of “reproducing” child exploitation material.

The judge ordered that during the weekend overnight contact, he must have a friend present in the house and that the children’s bedroom door needs to be locked at night. In the comments section to the news article about this decision, comment number 69 asks, “What is it about the Family Court that keeps doing this? This is NOT the first time it has happened. Why is the court giving sex offenders access to children?”

One answer may be because there has been a long-standing vociferous accusation against the Family Court by campaigners of fathers’ rights that there is a “bias” against fathers. Indeed, one of these father’s rights groups has defended the decision.

In an interesting and novel approach, the Chief Justice of the Family Court has taken steps to publically post statistics on the rates that Shared Parenting orders have been made. Making the rate of custody decisions between mothers and fathers public could be viewed as an effort by the Family Court to address this perceived “bias” against fathers. But is this an appropriate reaction to these accusations? I believe it is not because the Family Court in reality does not have a bias against “fathers”.

Father’s rights campaigners also claim that allegations are raised by women in the Family Court simply because they want to deny separated fathers access to their children. They allege that women routinely make “false allegations” of domestic violence, that accusations of child abuse are in “epidemic” proportions, and that women are just as violent as men.

They assert that when children disclose sexual abuse against fathers, it is because mothers have coached them to do so and these mothers do this because they have a mental disorder. The Family Court is accused of being “anti-father” when child abuse and domestic violence allegations are taken seriously and the men’s rights activists stress that this victimises “innocent” fathers by the Family Court through accusations by “malicious mothers”. The evidence just does not support their contentions.

One indicator that their contentions are not true and that the Family Court does not have a bias against “fathers” is revealed by the simple fact that despite the use of the word “fathers” by the fathers’ rights campaigners, most separated fathers in Australia do not end in the Family Court. Their repeated use of the plural word “fathers” gives the false impression that they represent a great number of separated fathers in Australia. However, the Family Court statistics indicate that the number of cases that proceed to trial is about 5-6 per cent of the cases that actually present to the Family Court. That means that of all the couples that separate in Australia, 95-96 per cent do not end up in the Family Court. That also means that the accusations that the Family Court is biased against “fathers” in general cannot be accurate, especially when the claim is couched in terms that give the impression that the problem of fatherlessness in Australia is due to the Family Court.

Moreover, the research into the types of cases that end up in Family Court litigation indicate that the Family Court’s time is mostly consumed up by cases where child abuse is an issue in contention. In fact, child abuse has become a “core” element of the load of the Family Court and the Family Court had become a significant part of the child protection system. Professor Brown went on to research these child abuse cases and concluded these cases included child abuse that was “real, that it was severe and serious”.

When confronted by this type of empirical evidence, father’s rights campaigners claim that the academics who produce these findings lack “impartiality”. Barry Williams from the Lone Fathers Association has stated that “official statistics on family violence ... used by the Family Court, academia, law societies and other professional bodies, are incorrect”.

So do father’s rights campaigners’ claims tally up with the evidence? Apparently not. Dr Michael Flood is a leading expert who concludes that:

Public claims [i.e. by fathers rights campaigner] that fatherlessness causes a host of social problems have sometimes been based on a confusion of correlation and causation, the selective use of research evidence, and even the repetition of fictional statistics.

For this he is called “the patron saint of fatherless families”. It is not meant to be a compliment. Obviously, the experts are not producing the results that the father’s rights campaigners want to see, and their results are not correlating with the claims that the reason that children are without their fathers after separation is because the Family Court is guilty of anti-father bias.

It would seem that if the core business of the Family Court is child protection, and the cases involve child abuse that is “real, serious and severe”, then the Family Law Act should be amended to respond to this type of evidence, not the rhetoric of father’s rights. The impact that father’s rights campaigners have had in law “reform” in the court, where the core business is child abuse, is devastating given the types of amendments that have instead created barriers to parents, mostly mothers, who fear for their children’s safety when with the other parent.

So what would one expect of any person who is accused of child abuse and domestic violence to their own family members? Would one expect them to admit that they did these things? Or would the person perhaps claim that they hadn’t done these things and that their former partner is a liar who has “coached” the child to make up allegations?

It seems not only are politicians listening to these men and their supporters, but the Family Court appears to be bending over backwards to try and “look” more pro-father in response to their claims. The fact that the Family Court statistics reveal a very high rate of mental illness of mothers (31 per cent) compared to fathers (2 per cent) in a jurisdiction where child abuse is “real … severe and serious”, in the context of the suspect paradigms that are being invoked (PDF 63KB) is gravely concerning.

The role of the Family Relationship Centres further undermines the argument by fathers’ rights advocates that they represent unimpeachable fathers within the jurisdiction of the Family Court. This is because under law, separating couples must attempt mediation before they can file in the Family Court. The screening process for domestic violence and child protection issues in couples before they can file means that it is more likely (PDF 2.07MB) that those issues will be extant in the cases coming before the Family Court.

This latest decision may reveal that in the effort to present the Family Court as not being “anti-father” what is really happening is that children are not being protected even where there is good evidence that they should be.

This notion is further strengthened by the resignation of a Family Court Judge, Tim Carmody in 2009. The Courier-Mail reported that:

… the onus to apply equal shared parenting orders was part of the reason he resigned from the bench in July. "It created a real crisis for me," Mr Carmody said. "I just couldn't keep doing it." The orders appear to fly in the face of exceptions to the legislation, such as family violence or when equal time with parents is not "reasonably practicable".

A pertinent question could be why did he feel a “crisis”? Aren’t judges supposed to be impartial? Don’t they decide on the evidence and merits of each case? Why resign? Could it be that the Family Court culture is so “father- focused” that there is a strong signal within its judiciary to prioritise decisions in favour of the fathers in these cases? How else can this be explained in a Court that now wants to publish its statistics in an effort, perhaps, to counter “anti-father” bias accusations? How else can these results be occurring in a court that deals heavily in cases of child abuse by a parent, usually a father, that is “real, severe and serious”?

How else can this decision in this latest story be explained? Interestingly, it could be inferred that in its efforts to appear non-biased against fathers, the Family Court has become a dangerous place for the most vulnerable of children - those where child abuse has been perpetrated by their parent, be it father or mother.

The tally in the comments section of the report that a judge on the Family Court has ordered two sisters to have overnight contact with their father indicates that the majority of the general public did not agree with this decision. Of the 186 comments made, 165 did not agree with the decision, ten were in favour, nine did not decide either way, and one stated she just hated humans. This may be good evidence that the decision in this case does not reflect the values and expectations of the Australian general public but the rhetoric of men who want to be seen and have a stake in claiming that they are innocent and “good” but are merely victimised fathers.

On Monday, February 23, 2009, I wrote and warned the Federal Attorney-General that if the Family Law Act was not amended to better respond to this serious problem, there would be more deaths of children when they were forced to see a parent under the order of the Family Court.

On Sunday, August 30, 2009, a man drove his car into a tree killing his two children. It was reported that there were no skid marks on the road, indicting that this was possibly a murder-suicide. The most disturbing aspect of this case is that the mother said that:

I, as well as others, had ongoing concerns - expressed to the Family Court - about my ex-husband's mental stability and the children's safety when in his car because of his history of psychiatric illness.

The fact that the Court had ordered “supervised” contact meant that there was strong evidence that the father was a risk to the children, hence the supervision requirement. However, the Court ordered that the supervision was to be done by “a responsible adult” not necessarily a “professional” adult. It could be surmised that the Family Court did not take the risks to those children seriously enough. Otherwise, the Court may have quite easily made an order that a professional was to supervise the father with his children. Questions remain as to who was supervising these children with their father that day and how it was that he was permitted to take them to later die in his car. Yet again, it seems that the Court did not prioritise the safety of these children over the father’s “right” to contact.

These were the findings by the experts is Family Law Council back in 2002:

There is no greater problem in family law today than the problems of adequately addressing child protection concerns in proceedings under the Family Law Act. Council’s research and consultations on this issue indicate that the problems in the present system are very serious indeed. Reform is urgently needed …

The Dillon children are two more to add to those who have died when under the orders of the Family Court of Australia. Will these two latest little girls also suffer abuse when having contact with their father as ordered by the Family Court? Given this latest decision and despite the Dillon children’s mother wishing that her tragedy will produce “lessons” for the Court, apparently it has not.

About the Author

Patricia Merkin writes on behalf of the National Coalition of Mothers Against Child Abuse. She is a third year Law and Bachelor of Arts student.

Other articles by this Author
» Protecting children from parents - July 15, 2008
» 'Reasonable fear of violence' unreasonable - March 30, 2006