How Parenting Orders Fail Children - A Preview

A quick look at something longer I am working on

I am currently working on a deep dive into a report on contravened parenting orders, while also dealing with a serious illness in the family, so rather than just being silent for another week or so I thought I would publish a brief preview of what I am working on.

THIS report from 2022 into contravened parenting orders shows how the Family Court responds to these contraventions, and looks at several related issues. (HERE is a brief explanation of parenting orders).

With women getting the lion’s share of custody after family breakdowns (whether court mandated, negotiated through Family Dispute Resolution, because the father runs out of money fighting, or just because the father’s lawyer has a quiet word in his ear that he is not going to do better than the bare minimum being offered) parenting orders tend to be about the father having access to his children. Therefore contravention of such orders tends to more often be about the mother not following the orders, so most of the court cases are brought by fathers against mothers, as the report acknowledges on pg 15.

There are no great “gotcha” moments hidden in the report - time and again we are told of things that affect both parents roughly equally. Women claim that the father is being controlling ‘always, often or sometimes’ 95.6% of the time, but men say the same 94.1% of the time (pg. 36). Men are more likely to fund their own legal efforts, but women are more than twice as likely to get Legal Aid, and both have to self-represent about 8% of the time (pg. 38). 65.6% of applications by men were dismissed or withdrawn, and only 6.2% upheld - the numbers are similar for applications by women (table 41). 75.1% of women say a father’s non-compliance is just being vindictive - but then, 87.8% of fathers say the same about non-compliant mothers (table 7). There are certainly differences in the details - fathers are far more likely to be making an application specifically around concerns of child abuse, mothers are more likely to be concerned with broader issues of domestic violence, and mothers are certainly more likely to simply refuse to comply with orders (table A26).

Regardless of how you view the way the system treats the parents, one thing is clear: it dismally fails children.

A major problem is delay. “Analysis of the court file sample demonstrates that the mean overall duration of matters in the sample was approximately 54 months, and that litigation in a substantial proportion of cases extended beyond three years, with nearly one third of cases taking between five and nine years and a small but not insignificant proportion taking place over 12 or more years (6%)” (pg. 14).

Four and a half years to get contravention issues sorted out, on average? And during that time children affected by contraventions suffer in silence. This is simply disgraceful.

The Family Court needs to be overhauled: preferably burned to the ground and started anew. This was a conclusion of the Australian Law Reform Commission review which suggested the court be abolished. People from all sides, from Rosie Batty to Pauline Hanson, have called for major change. It is not working effectively, and this is most obvious if you take a child-centred perspective.

The table below clearly illustrates that the current narrative of the Family Court being weaponized by coercive fathers using the system to abuse and control mothers with baseless accusations of parental alienation is simply false. And yet it dominates the mainstream media: see HERE. Or HERE. Or HERE. HERE. HERE. HERE.

Now don’t get me wrong - there are no doubt many women who are victims of the weaponization of the Family Court. It is also clear that there are many men similarly victimised. But my concern is sixty THOUSAND associated substantiations of child abuse and neglect. And these are simply being ignored.

These are findings from the court based on a small sampling of judgements, where “reasons for decisions were provided by judicial decisionmakers” (pg. 109) - most court judgments do not provide such findings, which are based on the balance of probabilities - and these are after the 65% of cases that are withdrawn or dismissed have been removed from the sample.

In only 14% of situations where the parent claimed they had a “really good excuse” for contravening the orders - “it’s just not safe your Honour, he’s a bad man!!!” - was this upheld. This is not gendered; the mother is as likely to be exonerated as the father.

Only 2% of claims of family violence against a father were upheld, and as many had a finding that violence did not take place (again, most cases did not have a finding either way).

Only 2% of findings of parental alienation were upheld, again not gendered.

When there are accusations of family violence against the mother (around 58% of cases involve this) 5% were not upheld, and the footnotes tell us ZERO were upheld. So accusations against women are two-and-a-half times more likely to have a finding of ‘not upheld’ than accusations against fathers.

But there are zero upheld examples of child abuse in this small sampling. This is further evidence that the system is failing children, beyond doubt.

I repeat: the report gives the lie to the current discourse that the Family Court is stacked against women, consistently perpetrating systems abuse and trauma upon mothers stripped of their rights.

But this women-centred narrative remains dominant in the media, and is the main driver behind legislative change designed to advantage women. For example, since this 2022 report came out we saw the presumption of equal parental responsibility struck down - effectively replaced with a presumption in favour of mothers. This change has clearly been to the detriment of children, but it appears that those in power don’t see this as an issue of concern. 

It is time that such anti-male narrative is shown to not only be unjustified, but to result in a system which is anti-child.

More to follow.