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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.

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About the Author

Patricia Merkin writes on behalf of the National Coalition of Mothers Against Child Abuse.

Other articles by this Author

All articles by Patricia Merkin

Creative Commons LicenseThis work is licensed under a Creative Commons License.

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