Oceania | Society | Oceania

How Australia’s Family Courts Are Failing Children

A recent study peels back the veil on Australia’s family courts.

How Australia’s Family Courts Are Failing Children
Credit: Depositphotos

It has become apparent in recent years that the family court in Australia suffers from a number of serious failings that often endanger the lives of children. This should be considered a crucial issue for the Australian government as it speaks to the state’s ability to protect its most vulnerable citizens. If, as is occurring far too often, the system fails children, it demonstrates a decay in governance on what should be considered a first order issue for the state. The state should recognize its own self-interest in protecting both its next generation and its own public trust. 

A recently published study of family court cases involving allegations of sexual abuse of children in Australia between 2012 and 2019 gives a statistical indication of how these courts are failing to protect the safety and well-being of children. Despite demonstrating the sexual abuse of children is far more widespread than reported, the authors found that in only 14 percent of cases judges expressed a belief that the allegations of sexual assault were true. Due to this, in almost two-thirds of these cases the alleged unsafe parents had their legally mandated time with their children increased by the court, and in 17 percent of cases the custody of the children was changed to the alleged unsafe parent. Most allegations of abuse are brought forward by mothers. 

The study’s findings are consistent with global trends in custody proceedings where mothers — and children — are being punished for bringing child abuse to the court’s attention. This is driven by a considerable ideological shift in family courts over the past few decades that has made it far more difficult for mothers to protect children from abusive fathers. 

Family courts have been overwhelmed by a “pro-contact” culture that leads them to believe that it is in the child’s best interests to maintain contact with a father even if he has been abusive toward that child, and even if he continues to pose a threat. Furthermore, the priority given to contact over safety means that courts are motivated to disbelieve allegations of abuse, and ignore or excuse them when the evidence is substantial.

This pro-contact culture has been advanced into family courts by “fathers’ rights” and other male supremacist groups as not only a way to avoid consequences for abusive behaviors, but in order to reassert male household dominance due to a belief that this is a natural order that is being undermined by social advancements in women’s rights and capabilities. 

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Through obsessive barking that family courts are riven with “false allegations,” and through the use of the nefarious counterclaim of “parental alienation,” these groups have constructed a narrative that women are driven by spite and are actively seeking to remove fathers from their children’s lives without merit. The goal has been to misdirect the sympathies of courts toward abusive men, and direct the suspicion of courts toward protective mothers. 

Yet their assertions that false allegations are rife in family courts cannot be substantiated. A recent study from the United States concluded that women (and children) rarely fabricate stories. An extensive Canadian study found that alongside the rarity of these fabrications by women and children, it was men who were far more likely to make intentionally false reports in custody proceedings.  

Yet the narrative of “false allegations” carries weight because parental child sexual abuse is a problem that the state simply does not want to know about. The psychology of denialism that prevents men from acknowledging their own behavior is mirrored by the justice system. The state in general is guided by a fear of upending the traditional two-parent social structure, and so child safety and well-being is often subordinated to this ideal.  

This is further compounded by a perception that family courts are not actually adjudicating on child welfare, but are instead adjudicating on a dispute between former partners. This leads judges to believe their role is to try and balance the interests of parents, not approach child welfare as an absolute that has no counterweight. Often it is the welfare of adult male egos that the family court has the most concern for. 

The study’s focus on the sexual abuse of children is important because it highlights just how poorly children can be treated by the family court system. Although criminal courts regularly mistreat women who have been sexually assaulted, no court would ever order a woman to live with, or have mandated contact with, the man who has abused her. Yet family courts do this to children all the time. It is a stark reality that parental authority carries greater weight than child welfare. 

Yet these recent findings also point to the way women are being treated with suspicion and often hostility by the family court. The disbelief in mothers, and the desire to punish them for raising allegations of child abuse, demonstrates a brutality from the Australian state that is at odds with the country’s values. The state is playing a very dangerous game with our humanity when it seeks to undermine maternal instincts about the welfare of children. There are natural laws here that the state should have a far greater respect for. 

More broadly, if we identify current strains of global instability as being driven by various forms of male resentment, the family court offers a prime example of how male supremacist groups are able to alter the culture of public institutions to the detriment of our collective social health. The family court is the canary in the coal mine. Without urgent reform its failings will metastasize.