Is the Family Court biased against men?
Many men in the family law system think so, convinced that they are at an unfair disadvantage and cannot compete with society’s focus on a child’s maternal attachment. They hear horror stories of their friends and colleagues, painted as the “bad guy” in parenting matters by women who want to settle the post-separation score and the system enables this.
But is this accurate? Is our family law system as unbalanced as they say it is?
What the law says
Under the Family Law Act 1975 (Cth) (“the Act”), the Family Court is able to make decisions about:
- parental responsibility for children; and
- contact arrangements for children.
The “best interests of a child” must be the paramount consideration for the Family Court when making these important parenting decisions.
The Act requires the Family Court to presume that equal shared parental responsibility is in the best interests of children, unless a parent can show it should not be applied because of family violence, child abuse or should be rebutted for other persuasive reasons.
Where the Family Court orders parents to have equal shared parental responsibility for children, it must also consider whether an equal or “substantial and significant” arrangement for time with each parent is practical and, in the children’s best interests.
The Act requires primary consideration of children’s right to benefit from a meaningful relationship with both parents, so long as this right is not in conflict with their need to be protected from physical or psychological harm arising from family violence or abuse.
What the numbers say
A 2019 study by the Australian Institute of Family Studies into parenting arrangements after separation, determined that:
- in both court and non-court ordered arrangements, it is most common for children to spend the majority of their time with their mother and to see their father regularly;
- in the small proportion of cases determined by a judge, 45% of court orders provide for sole parental responsibility by the mother, and 11% for sole parental responsibility by the father;
- only 3% of court ordered arrangements involve no contact between children and their father, compared to 9% of the general separated population; and
- family dynamics where children spend most of their time with their father are more common in court ordered arrangements (10–19%) than in the general separated population (2%).
It is important to remember that most parents don’t turn to the Family Court when they separate and they sort out arrangements amongst themselves. The statistics above rely on the 3% of the population that do pursue litigation to a final hearing.
What do the numbers and the law say about dads in Family Court?
Firstly, a positive take away is that most couples separate amicably and are able to sort our parenting issues amongst themselves without the Family Court’s help. Family Court ordered arrangements are actually more favourable to role of fathers and provide for greater contact between children and their dads, than those that transpire post separation in the general public.
What’s clear is that families that do utilise the family law system seem to be troubled.
They are increasingly likely to have a history of family violence, mental health issues, substance abuse issues, concerns for children’s safety as a result of ongoing contact and problematic personal tendencies such as gambling or pornography addiction.
This leaves father’s often feeling like they must rigorously defend themselves and their integrity. Even if there is no substance to the allegations, the Family Court has an obligation to prioritise the protection of children “from physical or psychological harm and from being subjected to, or exposed to, abuse, neglect or family violence” over the “benefit to the child of having a meaningful relationship with both parents”.
Thorough investigation and independent evidence is necessary to substantiate risk or lack thereof, before the Family Court can make a finding of fact at a final hearing.