Expert Opinion Panel
Dr Elspeth McInnes – Family violence, child abuse & child protection expert

Why are mothers & fathers treated differently by the Australian Family Court?

Opinion  |  By Dr Elspeth McInnes 

The headline in the Sydney Morning Herald of February 19 states ‘Judge Blasted for Jailing Father for 12 months in Family Law Dispute’ and reports that the Appeal Bench overturned a Judge’s decision jailing a father for failing repeatedly to present his financial records in a self-litigated property case.

The reaction by the Court to this case highlights the silence and tacit acceptance of the jailing of mothers by the Family Law court for various reasons associated with failing to comply with a parenting order. Apparently jailing dads for not obeying court orders is outrageous and jailing mums is not.

Abuse of children is a major driver of failure to comply with parenting orders which require children to spend time with parents who they have stated has abused them.  The court’s usual response to such allegations is to rule that mum has invented them and/or trained the children to make it up and to require children to spend time with their abuser.  Children in this situation are typically fearful of their abusing parent and resist spending time with them. Mothers are anxious for their children and desperate to protect them.  Some mums run and go into hiding with their children. Some mums make repeated reports of abuse when children have spent court-ordered time with their abuser and return with injuries and/or statements about being abused. Some mums fail to force their terrified screaming child to go on court-ordered visits. These behaviours have all attracted punitive responses from the Family Court of Australia, including reversal of residence, denial of child contact and imprisonment of mothers. Imprisonment of mothers has never stimulated the court’s outrage, in stark contrast to the case cited in the SMH headline.

There are many questions in relation to the way the FCA responds to child abuse. The court relies on state and territory child protection systems to investigate abuse.  Being a civil court, the FCA has no Crown funded investigative capacity. The Catch-22 is that the court can and does ignore substantiations of abuse by child protection departments referencing lack of natural justice as its justification.  Most child protection reports are not even investigated in any case due to pressures of caseload and the argument that Family Court involvement means that a court is already scrutinising the case. The abrogation of child protection department response in such cases is so reliable that separated abusing parents who are the subject of child protection reports are advised to make application for parenting orders in the Family Court to bring a stop to child protection action.

The Family Court process when abuse allegations are raised is to appoint an Independent Children’s Lawyer to provide a report to the court about the child’s best interests. The ICL then contacts a Parent Report provider to assess the case. Such reports are typically based on a single interview with each parent and the child.  On the ABC’s Background Briefing program on June 14 2015, report writer Chris Rikard-Bell stated that he had undertaken over 2,000 assessments over 25 years and that he had found 90 per cent of allegations of child sexual abuse were false. Rikard-Bell had no qualifications in the expert assessment of child sexual abuse, but his reports and those of his colleagues have underpinned court decisions where the alleging parent is labelled mad or bad and the child is required to be in the care of the alleged perpetrator. Where such mums are still allowed contact with their children, court orders commonly prohibit them from making reports of abuse or taking their child to any doctor or therapist. Children’s human rights to safety and medical care are thus over-ridden by the court’s actions to protect the alleged abuser.

Section 121 of the Family Law Act prevents publication of cases which would reveal the identity of any participant so these children and parents are gagged. If they protest publicly they can be prosecuted and face imprisonment.  Once again this is a selective process which does not apply to all people who publish identifiable details of cases. Mothers who have written evidence of such publications by their ex-partners have been repeatedly ignored by state and federal police when they complain, yet other mothers who have alerted politicians, police and child protection authorities of Family Court decisions which allow the continuing abuse of their children have been criminally prosecuted.

The sub-text of the Family Court discourse which is revealed by the SMH report is to support and protect transgressions by its male clients even as it punishes and limits protections of mothers and children. The court’s resistance to being merged with the Federal District Court may be attributable to fear that the topsy-turvy decision-making which enables abuse of children will be exposed to judicial officers who have not been inducted into its perverse and damaging culture.  The judge in the SMH headline treated the father’s repeated failure to comply with a court order in similar fashion to the application of law in other legal cases outside family law. Abused children and their protective parents look forward to a change in the paedophile supportive culture of the Family Court and greater fairness as a result of the changes.

 Dr Elspeth McInnes AM
Researcher Sociologist

Dr Elspeth McInnes AM is a researcher sociologist in the School of Education at the University of South Australia, and is also a member of the SingleMum.com.au Expert Opinion Panel. She has a long history of advocacy for single mothers through the National Council of Single Mothers and their Children (NCSMC), the Australian Council of Social Services (ACOSS) and Women Everywhere Advocating Violence Elimination (WEAVE ). In 2006 Elspeth was awarded a Member of the Order of Australia for her work on behalf of single mothers. Read more about Dr Elspeth McInnes on her bio page here…

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