As followers of this site know, four years ago Australia enacted amendments to the Family Law Act of 1975. Those were aimed in part at giving fathers a greater role in their children’s lives post-divorce. They were also aimed at reducing conflict between divorcing and divorced parents, so the amendments channel parents into mediation. As I’ve reported before, here and here, the new law, particularly the parts aimed at reducing conflict, met with general approval by divorcing parents. But the anti-father crowd was having none of it. They claimed that the new law forced judges to hand over children to abusive fathers. Now, there were always a number of problems with those claims. The first is that mothers do far more abuse and neglect than do fathers.
In the U.S., annual government figures by the Administration for Children and Families show mothers committing twice the abuse and neglect of children that fathers do. Similar figures obtain in Australia. Second, the new law only went into effect in 2006, so there hasn’t been time for a change toward fathers in the balance of custody. That means that any evidence of an increase in violence toward children is purely anecdotal, which is to say nothing on which to base public policy. Third, although the new law encourages greater parental rights for dads, they’ve had an insignificant effect on family court practices in custody matters. The simple fact remains that, whatever the law may be, judges still prefer mothers to fathers as child custodians. So the idea that there’s been a shift toward fathers at all is dubious at best. And fourth, the idea that judges are handing children over to abusive fathers is even more dubious. As I’ve said before and as common sense should dictate, the Family Law Act as it exists contains multiple safeguards against parental abuse of children. Is it possible that children end up in the care of an abusive parent? Of course it is, but again, the large majority of those abusers are mothers, not fathers. The point is that courts don’t always get custody decisions right, but that’s not the fault of what’s written in the law. The law as it is safeguards children. There’s no need to change that. And last February, it seemed that Attorney General Robert McClelland agreed when he said the government favored “education, not legislation” in the matter of family law. That suggested to me and many others that he thought that the law as written should remain unchanged. But that was then and this is now. This article tells us that McClelland has made recommendations for family law changes that are nakedly anti-father (Herald Sun, 11/11/10). If there’s such a thing as The Katharine MacKinnon Handbook, McClelland seems to have been reading directly from it. To no one’s surprise, his recommendations come wrapped in a pretty package with a card attached that reads “child safety,” just as the anti-father crowd said they should. But “my what big teeth you have, Grandmother!” The recommendations have far less to do with protecting children than they do with separating children from their fathers. Three factors leap off the page. First, child safety would trump all other factors in custody decisions.
Whenever a court considers that this goal is in conflict with the right of a child to have a relationship with both parents, it will be required to give greater weight to child safety.
That’s not unreasonable, but it’s also adequately guaranteed by existing law. Second, evidentiary standards for proving child endangerment will be relaxed.
Under the planned changes to the Family Law Act, the government proposes to ease the evidentiary burden on those seeking to show that a child faces a risk of violence.
That’s code for “mere allegations will suffice to remove a father from his child’s life.” It’s not like there are now rigorous evidentiary standards that have to be met to prove domestic violence. It’s become a truism that naked allegations are sufficient to separate a father from his children. And, given that, it’s no surprise that those allegations are commonly used to do just that. So relaxing the standards still further bodes ill indeed. Third and worst is the recommendation that just about anything qualifies as abuse.
Family violence will be redefined to recognise that it can take the form of physical assaults, harassment, emotional manipulation, financial abuse and threatening behaviour…
The new definition includes a long list of matters including behaviour that torments, intimidates, or harasses a family member. That effect could be caused by repeated derogatory taunts or racial taunts, or intentionally causing death or injury to an animal or damaging property.
Family violence will also include unreasonably controlling, dominating or deceiving a family member. This could be brought about by denying a family member financial autonomy or preventing a family member from making or keeping connections with family, friends or culture.
This comes directly from the radical feminist playbook. Never mind that most of the terms used can include virtually any behavior. Emotional manipulation? Denying a family member financial autonomy? Repeated derogatory taunts? I defy anyone to define those terms in ways that don’t include behavior that any reasonable person would find perfectly appropriate. (By the way, when my wife and I had our old dog euthanized due to complete organ failure several years ago, we were both very sad. We weren’t aware however, that our behavior would be called domestic violence by the Australian government a short time later. Who would guess that a parent could lose a child for such a thing? But there it is in black and white “intentionally causing death to an animal.” Do fathers who hunt deer lose their children because of it?) The redefinition of violence McClelland recommends is worse than that, though. Yes it plainly includes behavior like asking your wife to stop buying so many expensive shoes since she lost her job. Yes, it calls violent a husband’s attempts to get his wife to stop associating with crack cocaine addicts. Those are bad enough, but at least as bad is the fact that for much of what it “defines” as violent behavior, there need be no objective evidence. One of the features of much law on domestic violence is the ability of a defendant to demand some form of actual proof. Is there a cut or bruise? Are there medical records? If so, that’s still not absolute proof, but at least it’s something. What McClelland has recommended removes any requirement of verifiable proof. If she says he called her fat on more than one occasion, according to the recommendations, he can be removed from his child’s life or had his access limited. Again, it’s hard to avoid the conclusion that these recommendations are more about separating fathers from their children than about child protection. The recommendations make a bad situation incalculably worse. Mothers control fathers’ parental rights to far too great a degree now; these recommendations would bring that control all the closer to absolute. Now, there will be some who say “These recommendations are gender-neutral; mothers and fathers will both be subject to them. Therefore, they’re not anti-father.” The problem with that apology is that it ignores both the reality of family courts and that of intimate relations between men and women. As we’ve long observed, family courts demonstrate a remarkable ability to ignore the law and mountains of social science when awarding custody of children. The anti-father bias of family courts is there for all to see, particularly in the radically-skewed data on primary custody which, in all English-speaking countries hovers around 90% in favor of mothers. It matters not at all that that bias doesn’t promote the best interests of children, courts do it anyway. The same is evidenced by family courts’ broad refusal to enforce fathers’ visitation rights. That refusal by Australian courts has been shown and excoriated by academic John Hirst in his essay “Kangaroo Court: Family Law in Australia.” So the notion that family courts will deal even-handedly with the new recommendations is contradicted by essentially the entire history of family courts in Australia since 1975. Second, we also know that men are far less likely than women to deem a particular action to be violent or criminal. The study done by the Scottish government last year shows this clearly. In it, men were only one-sixth as likely as women to consider a particular act of domestic violence as criminal. And, in a separate finding, they were six times as likely as women to call such an action “just something that happens.” And those were incidents in which the behavior was some form of physical violence, albeit minor in most cases. Given that, how likely is it that fathers will be the ones going into family court demanding custody because their partner called them unattractive or criticized their spending habits. Make no mistake, these recommendations are all about giving ever greater power to mothers at the expense of fathers and children. As such, they constitute a day of reckoning for the Australian fathers’ rights movement. There is a time for public comment on the recommendations that ends next January. During that time, the fathers’ rights movement must stop these absurd, unworkable, anti-father, anti-child, anti-due process recommendations dead in their tracks. Stay tuned.