The latest Australian Institute of Family Studies research (AIFS) has been released, just in time to add to the debate on whether the family court system really is biased against fathers, as has been claimed by certain politicians again lately (spoiler: it’s not).
The new AIFS analyses were performed after conducting multiple, large-scale studies of post-separation parenting outcomes, looking at court outcomes and responses to survey data.
With all the focus lately on the family court system being broken and in dire need of reform—which it is–one could be forgiven in thinking that most of Australia’s separating and divorcing parents undertake litigation in order to work out their parenting arrangements after separation or divorce.
But in fact, as the AIFS research demonstrates, only about 3% of separated parents actually proceed through the family court system, and it’s usually in situations where issues of family violence, child safety concerns or other complexities, are involved.
The other 97% of separated parents work out their parenting arrangements privately, or with the assistance of family dispute resolution services, or lawyers.
“The courts removed me from my child’s life!”
Courts need to consider a range of factors, including the child’s right to a meaningful relationship with both parents, as well as the child’s needs to be protected from harm. When evidence indicates that a child needs to be protected from harm, the courts prioritise this above the child’s right to have a meaningful relationship with each parent.
But although the propaganda and rhetoric from interest groups often claims that the courts routinely make orders for no contact between a child and its father, the AIFS research shows that it’s actually “very uncommon” for such orders to be made, representing only 3% of all cases where children have no contact with their father. An even smaller percentage of cases (0.2%) provide for children to have no contact with their mother. In another 4% of cases the courts intervene to try to keep the child safe, while maintaining the parental relationship, by ordering supervised contact.
Two more facts that may surprise Pauline Hanson
Courts are actually less likely to order no contact between children and their father (3% of court orders, compared to 9% in the general separated population).
Orders made via litigation are more likely to result in children spending most of their time with their father (10-19%), compared to the general separated population (2%).
How are orders made?
Orders are either made in adjudicated matters (where a judge hears evidence and hands down a decision), consent after litigation (where a case starts but the parents make an agreement before a full trial), or pure consent (the most common route to a court order is when the parents make an agreement between themselves through a family dispute resolution practitioner or through lawyers, and then formalise the agreement by applying for consent orders). Here is more detail on what was found in relation to parental responsibility and custody arrangements through the three methods.
Adjudicated matters
Orders for parental responsibility:
Judges in 40% of cases made orders for shared parental responsibility, while mothers of 45% of children and fathers of 11% of children were given sole parental responsibility.
Care-time arrangements:
While the public perception is that judges order less children to reside with their fathers than parents do when reaching agreement on their own, the reality is that 19% of children were ordered to live with their dads, compared to the figure of 4% of children who live with their dads in consent situations.
“It is notable that these sort of arrangements are far more likely to occur when there is a court intervention than when parents sort things out themselves,” states the AIFS.
Most children (64%) subject to orders were living mainly with their mother and orders for shared care were made for 17% of children.
The situation for those 3% of parents who do go through litigation is that half have reported concerns for their safety (or that of their children), and family violence was often said to be a factor (physical violence 54%, emotional abuse 85%). Many parents in this category also experienced mental health problems (59%) or substance misuse issues (42%).
Consent after litigation
Orders for parental responsibility:
Even when parents start by proceeding down a litigation route, but resolve their issues before any judgment, orders for shared parental responsibility are very common, seen in 94% of cases. Here, orders for sole parental responsibility are uncommon (4% of mothers obtain sole parental responsibility, 2% for fathers).
Care-time arrangements:
When parents had started off via litigation but then agreed their matters without a judge’s involvement, for 75% of children orders were made to live with their mother and spend less than 35% of nights with their father.
A further 15% of children had shared care-time arrangements and 10% had arrangements where they lived with their father and spent less than 35% of nights with their mother.
Pure consent
Orders for parental responsibility:
When parenting arrangements are agreed by the parents themselves, they’ll decide on shared parental responsibility in 92% of cases. Again, orders for sole parental responsibility are uncommon (mothers of 4% of children obtain these orders, compared with fathers of 3% of children).
Care-time arrangements:
Where litigation has been avoided entirely, and the parenting arrangements have been agreed by the parents, children were enabled to live mostly with their mothers in 64% of cases. There were more orders for shared care time (33%) than when parents had initially started litigation, or when litigation has proceeded. Orders for children to live mainly with their father and spend less than 35% of their nights with their mother applied to 4% of children.
You can read the AIFS research here.
Do you need assistance with parenting arrangements? Please contact Canberra family lawyer Cristina Huesch or one of our other experienced solicitors here at Alliance Legal Services on (02) 6223 2400.
Please note our blogs are not legal advice. For information on how to obtain the correct legal advice, please contact Alliance Legal Services. You may also like to read our blog on how to appeal against an order made by consent.
