No Proof of Abuse Can Still Mean Loss of Contact with Child

I’ve written recently about the proposed amendments to Australia’s Family Law Act of 1975.  Those are the amendments that seek to reverse the very modest gains fathers made by the presumption of shared custody in the amendments of 2006.

The 2006 amendments were met with an immediate firestorm of protest by anti-father forces across the country.  They claimed that children were being handed over to abusive fathers and courts were ignoring mothers’ claims of domestic violence or abuse.  They’ve been asked to produce evidence for their claims, but nothing at all convincing has been forthcoming.

But, as I’ve pointed out before, Australian family law has long bent over backwards to avoid allowing contact between children and abusive parents.  Even a cursory glance at the existing statute makes it clear that judges are to pay attention to claims of abuse and tailor contact orders accordingly.  That means, among other things, that they can deny contact entirely if the situation warrants.  Indeed, the very idea that courts would not have or use that power is absurd.

Still, that’s what we’ve been told by those for whom any contact between a father and a child is too much.  Of course those are the same folks who’d rather walk on hot coals than admit what all reputable data show – that it’s mothers, not fathers, who are the primary abusers of children.  So when they tell you they’re all about protecting children from abuse, take it with truckload of salt.

Meanwhile, this article adds a lot to what I’ve been saying all along – that family courts already have all the power they need to protect children from abusive parents (The Age, 8/23/11).  In fact, having read the piece by none other than the Chief Justice of all Australia’s Family Courts, Diana Bryant, it’s easy to conclude that they have too much.

Since the 1988 decision of the High Court in M v M, even if a judge cannot find an allegation proved on the balance of probabilities, having regard to its seriousness, the court may still refuse to make an order for contact between a child and a parent if that order would expose the child to an unacceptable risk of abuse. That is because the court is ultimately deciding what is in the best interests of the child, not whether abuse can be proved to have occurred.

Read that carefully, and understand that it’s existing law in Australia and has been at least since 1988.  Understand too that it is that law that the anti-dad crowd deems insufficient to accomplishing their aim of cutting fathers out of children’s lives.

Justice Bryant tells us some noteworthy things.  First, when a family court judge hears evidence regarding domestic violence or child abuse, he/she does so under the evidentiary standard “the balance of the probabilities,” which we in the U.S. would call “preponderance of the evidence.”  That is, a litigant must prove her case by producing merely a smidgen more than 50% of the evidence in favor of her claim.  That done, she wins the case.  It’s the lowest standard anywhere in law.

Second, notice that even if she fails to prove her case by the lowest possible standard, she can still win.  That is, the court can “still refuse to make an order for contact between a child and a parent if that order would expose the child to an unacceptable risk of abuse.”

In other words, a mother can allege child abuse by the father, fail to prove her case and still have the judge exclude the father from the child’s life.

“Based on what?” you ask.  Well, based on the judge’s theory that the father poses “an unacceptable risk of abuse.”  But if the “balance of the probabilities” tip against his ever having done so (as they must, since the case wasn’t proven), on what would the judge rest his/her decision that the father posed an unacceptable risk?

That’s hard to know, but Justice Bryant teases us with this hint: “having regard to [the allegation’s] seriousness.”  That is, the more serious the allegation, irrespective of proof, the more likely a judge should, under applicable precedent, refuse contact between the father and the child.  The lesson?  The more serious the allegation, the more likely a mother is to prevail, even if she has no proof.

That’s the law in Australia as explained by the Family Court’s Chief Justice.

Moreover, it’s the law that the anti-dad crowd has managed to convince all and sundry is too lenient on fathers, too likely to lead to contact between abusive fathers and children.  It’s hard for me to imagine a law more likely to come between fit fathers and their children than this one.  It plainly violates the most basic notions of fair play between spouses.

For a father to be denied access to his children despite having found not to be abusive by the court that heard the evidence is outrageous.  For the law that allows that to be considered insufficiently abusive of fathers’ rights to children and children’s rights to their fathers would be beyond belief if we didn’t read about it so often in the news.

Leave a Reply

Your email address will not be published. Required fields are marked *