Why does the family court still believe that sole mother custody is always in the best interests of our children?

While families are intact, fathers are encouraged to be fully involved parents. Once the relationship ends, mothers frequently want fathers out of their children's lives, and the family court provides the muscle to enforce their removal. The sexist assumption that the best interests of the mother equate to the best interest of the child, which is rife throughout the Family Court, has lead to a strong prejudice against shared parenting, in favour of mother custody.

Family Court judges attend gender courses which focus ONLY on validating the subjective experiences of females, only dealing with the fears of women, the subjugation of women, theoretical power differences; they draw from statistics that rely on male activities alone being defined as forms of abuse.

The psychological, emotional and financial abuse perpetrated on men by the mothers who stop access/contact is not seen as abuse. Men who commit suicide because they can no longer stand the emotional torment of constant refusal to allow access to their children are seen as unstable. They are not seen as suffering under enormous emotional and psychological abuse at the hands of vindictive mothers, hell-bent on stopping contact and ruining the relationship between father and children regardless of the damage to the children.

Society does accept that fathers have some form of emotional attachment to their children. When a child dies, it is recognised then that the father experiences some loss, as when the father dies, it is also accepted that the child experiences some loss. In divorce though, when the father is made a criminal if he sees his children more than the usual every second fortnight, AND he subsequently gets upset, he is seen as maladjusted.

This is deeply rooted in sexist assumptions about men. First, men are supposed to be made of strong stuff, they are not supposed to be emotional. So we have fathers excluded from their children's lives on the basis that they have cried in court, when describing how they miss their children. Other fathers who have retained composure lose out because they are "emotionally cold".

Mothers on the other hand are expected to cry and become hysterical. In fact the more unstable the mother can present, the better off she will be in the Family court. In fact the main deciding factor in favour of the mother in the recent test-case on relocation was her emotional instability. If she did not get her way, she would get upset and this would then affect the children.

Family Court counsellors generally explain the father's behaviour using feminist ideology. The male is seen as acting-out in a patriarchal society where fathers are the "head of the house" and are in a privileged power and control position. This image usually depicts the father as the holder of the purse strings and potentially violent (if not a full-blown sociopath), ruling the household with an iron fist. This theory, very popular at the moment, then declares that the father is upset at the loss of this privileged position as head of the family. The male is therefore not upset with the loss of the children, he is in fact upset with the loss of domination, and then uses all of his power (physical violence, money, prestige, etc) to re-establish his position.

The Court often accepts that the father only wants custody so he can control the mother's life and have power over her. Besides being terribly egocentric and conceited, this statement could be rephrased: "If he has joint custody, I will have to make allowances in my life, which will demand changes for the children to know their father, and I don't want to do that because it will inconvenience me". The Court does not recognise that every day the mother stops the father seeing the child, she is controlling him. Her obsession with power and control over the male is not addressed, as the court accepts that a mother loves her children, and primarily acts from that perspective.

This theory then totally invalidates the male's perspective or the father's subjective reality and denies any real love the father has for his children.

Reducing violence

Feminist policy-makers oppose joint custody, on the grounds that it compromises women's safety. The sad truth is that awarding sole custody and denial of access is responsible for much of the violence against women following separation. Many of the 90-95% of fathers who are non-custodial parents fathers have been brutalised by legal aid, the police, false allegations of domestic violence and biased courts. In the worst cases the ex partner has stooped so low as to accuse them of sexual abuse. All of the 3,000 non-custodial parents I have spoken to have commented that they understand, but do not condone, the feelings of people who murder their ex partner because of frustrated access. With so many people being made so angry, it is no wonder that one person does eventually snap.

I am surrounded by men who pace halls daily, turn to drugs alcohol, suicide, speak of murder, go literally crazy, because they are not heard, AND THEY ARE NOT VALIDATED by any of the current systems. Let us look at what society is doing: they are saying you cannot see your children again, if you don't agree with what the mother wants we will arrest you. This is too big a pill for human consumption. Yes, you will get people killing other people in these circumstances.

Domestic violence is a sensitive issue. On one hand reasonable steps need to be taken to protect children and parents that are actually at risk, and on the other hand innocent parents need to be similarly protected from false and malicious accusations and their consequences.

To achieve this important balance, all cases where domestic violence has been alleged should need to be proven beyond reasonable doubt by a jury or a judge in the first instance.

As it stands, children are frequently prevented from seeing an innocent parent because of a perceived threat expressed or believed to exist by the other parent. This is not in the best interests of the child.

In recent times many politicians, media commentators and Judges have commented on the vexatious use of domestic violence orders in family law cases. While we support any initiative that will provide protection from genuine cases of abuse, domestic violence legislation should not be permitted to be used as a weapon in the family court as a reason to exclude a perfectly good parent from a child's life or to obtain some other advantage.

If joint custody were the "norm" following separation and there were no adversarial system, neither party would have anything to gain from false allegations.


Another popular theory used to exclude fathers is the "dependency theory" used extensively in Australian family courts. Here a rather unique double standard applies. If a male takes his children to a restaurant, for example, this is often seen as the father replacing the loss of the spouse with that of the child, who is now fulfilling an inappropriate role. In other words the father is looking at his daughter to take the place of the wife. This is not only a very sick interpretation, but highlights the kind of disdain the counsellors have for fathers. Mothers on the other hand are supposed to be interdependent upon their children. In a court case last week in Canberra, the Judge said he "was further satisfied that the mother and the child enjoyed a mutual dependence upon each other". The child was four years of age. No sick interpretation was overlaid on their relationship with each other.

The fact is that sole custody has never worked, the 18th century saw fathers getting sole custody automatically, which meant women stayed in untenable and often abusive relationships, for fear of losing their children. Today men stay in untenable abusive relationships, because they know they will not see their children; this is why so few separations are instigated by the male. Wherever there is this power imbalance their will be aggression and hostility.

Bruce Young is the President of the Society for the Best Interests of the Child

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