Court to investigate custody 'bias'

The Australian - October 1 1998, by Janet Fife-Yeomans

The Australian Family Court's reaction to the emergence, during the recent Federal election, of the Abolish Family Court/Child Support Party.

The Chief Justice of the Family Court, Alastair Nicholson takes his usual stance dismissing the critics as all being, silly men who won't look at the evidence that he runs a fair court.

In keeping with the raised level of awareness created by the minor political parties the second story defends teenage mothers against criticism levelled by Pauline Hanson, One Nation Party.

And finally, Barry Williams, Lone Fathers' Association is given the opportunity to have his say, ..... in the interests of presenting a balanced story , of course! - Ed.

Surprisingly, the Australian ran three response letters in support of the complaint of bias against the Family Court.


Court to investigate custody 'bias'

By legal writer JANET FIFE-YEOMANS

THE Family Court was to investigate whether mothers or fathers were more likely to win custody of their children as its Chief Justice, Alastair Nicholson, yesterday defended his court against unprecedented criticism of bias from men that the court was biased against them.

Justice Nicholson said the court was also considering a study of property settlements and rejected claims that men were being "taken to the cleaners" in decisions by the court.

Justice Nicholson said he was concerned that there was a perception of bias, but when the court produced figures to counter that perception "some people don't want to believe them".

The court, which now deals with 24,930 custody applications a year compared with 9286 in 1977, has come under attack from large numbers of men and men's groups lining up as candidates in the federal election with the Family Court as their target.

One candidate in John Howard's seat of Bennelong has called himself Prime Minister John Piss The Family Court and Legal Aid.

Another candidate is facing contempt proceedings in the Family Court in Melbourne after using a loud hailer and handing out allegedly offensive leaflets outside court.

"One of the problems about it is that making a lot of noise often gives people the impression there is a problem where there isn't," Justice Nicholson said.

"I reject the claim that people are biased against men in this court.

"It is a fairly extraordinary proposition when you look at the gender make-up of the court where two-thirds of the judges are men. Why a male-dominated judiciary would either collectively or individually set off on a campaign of bias against men is hard to understand."

Studies done by the court into defended custody cases have revealed "remarkably consistent" figures with fathers retaining either full or shared custody into up to 41 per cent of those cases, said Justice Nicholson.

In 1980, fathers were successful in 31 per cent of defended custody cases and mothers in 54 per cent, while in 10 per cent the custody was shared. In the rest, custody went to other family members or institutions.

In 1990, fathers were again successful in 31 per cent of cases, mothers in 60 per cent, there was shared custody in 8 per cent of cases and 1 per cent of cases where custody went to family members or institutions.

Justice Nicholson said it was telling that when both parents agreed on custody, the latest figures available, from 1980, showed that in 79 per cent of cases, mothers got consent.

(What the Judge is not telling the readers is that only 5% of cases are ever decided by the Court. 95% of decisions are reached by consent, [18% result in father custody]. Some of these consent orders would have been reached under the duress of not having enough money to proceed to final hearing or withdrawing from the application to protect the children from further distress. An unknown number of separated couples may never approach the Family Court to even have Consent Orders registered. - Ed)

The judge said similar figures were seen in the UK and US.

"To me it shows that, whether one likes it or not, there is a general community view that tends to support the mother being the care giver, particularly for young children," said Justice Nicholson.

(The researcher who produced the figures used by Nicholson, Sophy Bordow commented when the research was published in the Australian Journal of Family Law 1994 that "While the current legal statutes instruct the courts to award custody in the best interests of the child, many litigants and social observers believe that the maternal preference presumption continues to have an influence even though it is no longer explicitly mentioned in judgments. Furthermore, the 'primary caretaker' concept which took precedence over parental gender, continues to be seen by many as merely being the old maternal preference in gender neutral terms" - Ed)

He said the court was ready for a new study but he doubted the figures would have changed significantly.

Justice Nicholson said it was more difficult to do a study of property settlements – last year the court dealt with 13,527 property cases.

"There are still a lot of men who cannot accept that someone's contribution as a home-maker or a parent ought to be equated with what they see as their superior financial contribution," he said.

"But I don't believe there is any bias. It is not a process that lends itself to gender bias. It tends to be a part arithmetical and part the contributions people have made.

"It's better to do studies than rely on assertions, but when we do the studies some people don't want to believe them."


Teen mothers bear their own burden
Megan Saunders

Teenage mothers were most likely to come from Catholic backgrounds, be raised in a large country town and have mothers with limited education, according to an Australian National University analysis.

But contrary to the beliefs of politicians such as Pauline Hanson, teenage parents were not a heavy burden on taxpayers - making up 3 per cent of supporting parents benefit recipients.

(Teenage mothers may not be a huge burden during their teenage years, but how many adult sole parent recipient's began their life on welfare as a teenage single mother? That's the question we want answered! Ed)

The analysis by ANU PhD student Ann Evans found 71 per cent of teenage mothers were married when they gave birth, while 15 per cent were single. The rest were in de facto relationships.

And the analysis of more than 1247 cases nationwide found that while teenage mothers eventually had more children, they tended to put off having their second child for about five years - three years longer than older women.

Ms Evans blamed the high level of media attention and One Nation's proposal to restrict government assistance to single mothers for the ongoing myths and stigma attached to single, teenage mothers.

She particularly criticised Ms Hanson's comment that some teenage mothers often "start young with children out of wedlock ... go on to have more children from different fathers and then finish up in a de facto relationship with a man not related to any of them".

"While analysis of human relationships (particularly over time) can be messy, it is clear that Ms Hanson's concerns are only valid for a tiny proportion of teenage mothers and an even smaller proportion of the total Australian population," she told and Australian Population Association conference in Brisbane.

Brisbane mother Michelle Jones, 21 - who fell pregnant with her first son, Mark at 16 and her second, Kaleb at 19 - said she was often frustrated by society's disapproval of young, unmarried mothers.

"They just treat you like your trash and it's just not true," she said.

"I went to nursing mothers, I got involved in support groups, I breast feed my kids, I did everything that 30 year old mothers do."

The ANU analysis, which defines teenage mothers as under -21s, found young mothers were most likely to be Catholic (31 per cent) or have no religion (29 per cent).

Sins of the fathers' rejection
Cathy Prior

As national president of the Australian Lone Fathers' Association, Barry Williams believes the Family Court just can't get it right.

Mr Williams argues the court fails to enforce its own access orders, despite the fact contempt-of-court penalties are in place to deal with parents who refuse to let their estranged partner visit their children.

And the cost of that, he says, is all too human. "I am dreading Christmas time again if it is anything like last Christmas," he said.

"We had attempted suicides and everything because people couldn't see their kids."

Between December 23 and 27 last year, Mr. Williams received 25 phone calls from fathers, some of whom had sent plane tickets interstate for their children to visit them over the holiday period. When it came to arrival day, however, the kids failed to appear.

When it comes to custody disputes, Mr. Williams argues judges are biased against men.

The association's figures show about 70 per cent of fathers who apply for custody through the Family Court fail.

Mr. Williams wants the Family court abolished and replaced with a tribunal. If access orders were denied, police should have the power to visit the offending parent and find out why, he said.


Letters to the Editor

Australian Thursday October 8 1998

The cost of separating fathers from their children

With reference to your article Court to Investigate Custody Bias (1/10), the figures quoted are quite correct. What they do not reflect is that with consent orders, non-custodial parents, in the majority, males are told by their solicitors at compulsory legal aid conferences that this is as good as it gets .

In effect, roll over, shut up and accept the status quo. Women are the better care-givers for children, they will limit your access to your children and it does not matter how committed a father you are, this is the best you can hope for.

The highest death rate by suicide in Australia is for males between 25 and 44 years. The most significant pointer is non-custodial parental status, yet this tragic waste of males when they should be most productive is ignored by the incumbent Government of the day, the bureaucrats and the Family Court.

There may be a hidden agenda here, though. These men may have been financially crippled through child support, have gone on the dole, then killed themselves and this lessens the employment figures. Food for thought.

There is a syndrome called involuntary child absence which I am researching for my honours thesis in psychology and this is the greatest pointer towards male suicides aided and abetted by the practices of this travesty of justice called the Family Court.

You can take the children away from the father, but you cannot take the father away from the children. Reflect on this point, Justice Nicholson. The reason to have children is to perpetuate your existence, to have an input into the adults you wish them to be. To take this away from men is to deny them their total reason for existence. You are killing their souls.

Sylvia Smith, Gladstone, Qld


Despite Justice Nicholson s assurances of family law fairness I ll never marry and place myself under the Family Law Act again. Funny thing that, it seems to be a very common male response. Isn t 70 per cent conceding custody to women not indicative of bias? Pull the other one. What makes you think men are fool enough to swallow this sort of rubbish? Why would anyone want to spend $17,000 on a custody battle with less than 30 per cent chance of success? And in actuality a 0 per cent chance of success unless the former wife is a demonstrable monster.

Ross M. Daly, Salisbury Heights, SA


Why is the Family court going to investigate possible custody bias instead of the Attorney General or an independent body?

Justice Nicholson also wonders why people are making a lot of noise . What else when the proceedings of the court are not reported because of alleged concern for the children - who in many cases are considered adult enough to be wrenched away from one parent?

He also wonders why a male-dominated judiciary would ... set off a campaign of bias against men . Was the campaign not set-off by the women s lobby with support of politicians who could see savings - from automatic payments of husbands child support and large property wins to women - as a way of chopping welfare?

Does Justice Nicholson include in shared custody the usual one weekend every fortnight and half of school holidays formula?

It might well be that parents would agree more on the mother having the main custodial role if the route of apprehended violence orders and lawyer-backed adversarial campaigns were replaced by legal advice when marriages falter.

Justice Nicholson also makes no mention of the Child Support Agency which, without consultation, automatically bills fathers for one-quarter of take-home pay for the first child, rising for each extra child. This is separate from property settlements, which firmly favour the woman.

More men might agree, with support and custody arrangements if they were not forced upon them, like sentences on criminals.

Name Withheld, Sydney