Guardian’s Hill Gets it Wrong on Australian Family Courts

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October 15, 2019 by Robert Franklin, JD, Member, National Board of Directors

We’re back to Jess Hill’s thoroughly scurrilous article in The Guardian, about which I wrote last time.  Now, in my last piece, I tried to hit the high (or low) points of Hill’s article, but there was no way I could cover all its many defects.

Like other articles we’ve seen, Hill’s main point is that family courts routinely hand custody to abusive fathers.  Given that, fathers should have even less contact with their kids than they now do.  Indeed, that seems to have become the excuse du jour of those who would deny children healthy relationships with their fathers.  And as ever, lacking any facts to support that excuse, people like Hill resort to simply making some things up and ignoring the many facts that contradict their thesis.

So, for example, Hill makes the remarkable assertion that those of us who advocate for family court reform are actually demanding “laws mandating equal shared parenting.”  That of course is entirely untrue.  I’ve been going to bat every day for the last 11 years for equal parenting and never seen a single bill in any state or nation that “mandated equal shared parenting.”  Not one.  At most, those bills would have established a rebuttable presumption that equal parenting is in children’s best interests, assuming fit, non-abusive parents.

Most of Hill’s piece is her recounting of what she says is the history of shared parenting advocates to influence the Australian Parliament.  Some of that, like the short-lived requirement that parents promote the child’s relationship with the other parent (a.k.a. the “friendly parent” provision), she actually gets right. But, in tracing the history of the reform movement, Hill leaves out a fact that many would consider germane to the issue, i.e. that none of the efforts by reform advocates actually improved fathers’ chances of either getting custody or enforcing their “right” of access to their kids.  Yes, the law changed somewhat over the years, but there’s absolutely no indication that any of it helped.  To admit such a fact would obviously undermine Hill’s sense of grievance, so she leaves it out.

Further, she claims that, during part of that history, there’s been an emphasis in the law on parents having contact with their kids.  What she means is that judges often issue orders saying that Dad gets to seen his son or daughter on such-and-such a schedule.  But orders aren’t contact and, as I’ve often said, case law in Australia prohibits family court judges from enforcing their orders of contact via their contempt power. 

The “reasoning” for that is that children suffer when their custodial parent (almost all of whom are mothers) is taken from them, even if only for a few days.  But, when it comes to non-custodial parents’ (almost all of whom are fathers) “right” of access, the exact opposite reasoning is used.  If Dad takes his child on an unscheduled vacation, in violation of the court’s order, then it’s jail and fines for him.  If you don’t believe me, read Australian historian John Hirst’s long essay entitled “Kangaroo Court: Family Law in Australia.”  Needless to say, the reality that courts refuse to enforce access rights goes unmentioned by Hill.

Against that backdrop, Hill complains that, although allegations of DV are made by mothers against fathers in 50% of custody cases, courts only denied 3% of those fathers all contact with their children.  To her, that’s evidence that courts don’t much care about mothers’ claims of violence or abuse.  Of course it’s also susceptible of other interpretations.  One of those is that a huge number of those allegations are false or at least unproved.  Another is that, given the broad definition of DV in the law, many of those claims aren’t sufficient to deny a child all contact with its father as Hill would prefer. As the Australian barrister I mentioned yesterday pointed out, when slamming a door and criticizing a mother’s cooking are sufficient to get a father removed from his child’s life for up to a year, the only surprise is that more mothers don’t claim abuse.

Then there are Hill’s naked assertions with no factual support.  So for example, she claims that Australian courts have “come to see mothers as the problem.”  Citation?  If courts see mothers as the problem why do they still grant them custody to the almost complete exclusion of fathers? 

As I mentioned last time, Hill claims that the science on parental alienation is “junk science.”  It’s anything but of course, but she goes on to rue the fact that, in some cases in which a mother has alienated the child, judges actually transfer custody to Dad.  A judge doing so is right in line with best practices when the alienation is severe, but Hill is so miffed at the idea that she considers doing so to be per se wrong.  Does she consult the science on parental alienation and the success some programs have when custody is removed from the alienating parent?  She does not.

No, Hill only cites the case of “Sandra” to demonstrate her point that seems to be that no mother, regardless of how alienating she is, should ever lose custody, even for a short time.  But “Sandra’s” case in no way supports Hill’s claim.

[T]he family court judge in her case agreed with the family report writer’s analysis that the allegations likely stemmed from the “anxiety of the mother”.

In a secret hearing, the judge ordered that custody be switched to the father, despite the kids having only ever had limited contact with him. Sandra was prohibited from seeing or even speaking to her children for two weeks. Following that, she could only see her children a couple of hours every fortnight, monitored by a supervisor at $65 an hour. Aside from her allegations, the family report writer found no other problems with Sandra’s parenting.

Was there a problem with what the court did that was, in any case, quite unobtrusive?  The mother was found to have alienated the children and the judge placed them in the father’s care for two weeks.  Did anything amiss happen during those two weeks?  Or did the children’s relationship with Dad improve?  Hill doesn’t say, apparently assuming that the mere recitation of facts should be sufficient to make her point.  What point that is is anyone’s guess, but when a writer uses precious words to cite a case that doesn’t support her claims, it begins to look like she had nothing better to offer.

Hill’s article is almost uniformly bad, by turns dishonest, misleading and certainly anti-father.  But, as it turns out, The Guardian’s just getting started.  More on that next time.

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