Why is there Gender Bias in the Family Courts?

I’ve searched high and low, and a lot of the articles I’ve come across seem to evade fully answering the question. Some believe the bias doesn’t exist. For those in the midst of a court battle, you’re more than likely aware of the discrimination. Perceptions aren’t concrete, but numbers are. I’ve already talked about how mothers are the sole custodial parent in more than 70% of cases settled in court. Only about 7% of cases conclude with the father having sole custody, leaving roughly only 20% of cases ending in shared custody. If both parents are capable, why is the lattermost number so low?

The most common reason I’ve come across is that the courts perpetuate the social construct of gender roles. Ie, men are breadwinners, women are caregivers. Most of us know this is an outdated and limited concept, however, there are those among us who haven’t come to terms with this – either consciously or subconsciously.

This seems to be the most likely explanation for the bias, but I still don’t think that’s the whole picture. Throughout my research, I’ve come across unsubstantiated claims as to why the court is in the woman’s favour: the law favours women, men have fewer rights, etc etc. Seeing as I’m not an expert in law and none of those articles cites reputable sources, I’m not going to indulge in those theories (yes – I realise the perpetuation of gender roles in family court is just a theory as well, but it seems to be the best fit thus far).

Another theory I have is that any allegations of drug use or domestic violence are extremely damaging towards innocent fathers. Whilst I concede that family violence is a major problem and that all claims should be taken seriously, false accusations can diminish the chances of shared custody being granted.


Still, I feel something is missing – something that gives a better explanation on why there is such a skew towards mothers receiving sole custody. What do you think?


The Problem with Men’s Rights Groups

Throughout my research, I’ve come to realise there’s not much in the way of information regarding bias in Family Courts. News articles are few and far between, and support/advocacy groups are even rarer. We all know the problem is out there, though: we’ve heard the stories, we might know people who have fought for – and lost – their children and some of us may have experienced it first hand.

I have absolutely no doubt that it is an extremely emotional and exhausting ordeal for those involved – especially for the fathers who are downgraded to visitors. Those involved know that gaining shared custody is an uphill battle, despite the law reforms from 2006 and 2012. Various forms of sites and bodies exist to respond to this issue. Information hubs/advocacy groups are all support networks that are essential during divorce and custody battles. They provide extremely beneficial services to those in need – resources on how to get the best possible outcome and information on what to expect. The give the much-needed evidence that those suffering are not alone.

What isn’t helpful, however, are those support groups and information hubs that resort to biased and/or inflammatory comments. The people who host these communities have a moral obligation to moderate the conversation and condemn those who are out of line. Many sites I have visited have not upheld this responsibility. While I do not wish to name and shame, a simple Google search will give examples of what I am talking about. These groups talk about men’s rights and father’s rights; the conversation should instead focus on the child’s rights.

Support sites are not the place to highlight the faults of women, or to give sweeping comments such as “she’s a bitch/crazy/psycho”. Whilst many cases do include women (and men) who vindictively use the Family Court to further their personal agenda, these sweeping statements do little to fix the situation. In fact, it can be more of a hindrance to justice than anything else.

Shared parenting works best under particular circumstances, especially when both parents are cooperative and are able to properly handle the emotions commonplace in divorce (see AIFS’s Prof Moloney’s report here and here). Defamatory comments on the Internet can very well be used in court to prove that one parent will cause conflict and disruption should parenting be shared.

Outside of court, misogynistic comments alienate the women – such as myself – who wish to support those felt by the injustice. The problem extends beyond the gender lines and into the judgments made by the court; it should not be about man versus woman, father versus mother. Pointing the finger will get us nowhere.

Shared parenting: What are the facts?

Experiences of child custody and the family court vary case by case. The Australian Institute of Family Studies states that most disputes as a result of divorce are settled out of court – either privately or from using some form of mediation. For a minority, however, unresolved conflict leads to a lengthy and costly court battle.

For those who use the latter-most option, they will be greeted with presumed shared custody – which means both parents automatically share the responsibility of their offspring. This is thanks to a change in legislation by the Howard government in 2006. Factors such as income stability, housing, and the ability to raise a child are considered to then sway responsibility either way.

The problem, however, is that “shared responsibility” does not equal shared time. Whilst the quality of time is certainly more important than quantity of time, you can argue that you have to have quantity in order to ensure quality.

A 2014 report of all custody cases in Australia found that more than 73% of children spend most or all of their time with their mother. Shared custody – which is defined as 35% to 65% of time with either parent – stands at 20%. That leaves under 7% of all children spending most or all of their time with their father. You can read the (very lengthy) report here.

The argument against shared parenting has its logical points – constantly moving between parents can have an adverse effect on very young children. However, studies have shown that the gender of the custodial parent does not affect the child and some overnight stays are not harmful (more information here). Further, the study does not take into account older minors. Surely teenagers should have some say on where and whom they live with. Unfortunately, it is hard to quantify that kind of information.

Child custody battles can range from petty to abusive. There are instances where a parent will go so far as to vilify the other parent in front of their child, not allowing the child to spend time with or even lying about the non-custodial parent. There are cases where parents try to undermine each other – arguing that the father or mother is incapable of raising children.

Then there are biases within the courtroom itself, where traditional gender roles come into play, and fathers are seen to be less equipped than mothers (even though there is no data to fully support this). Issues can lie outside the courtroom too – some advocacy groups can be sexist or state unsupported facts, or skew existing data.

Over the next few weeks, this campaign will address some of the key issues surrounding shared parenting and what ‘shared parenting’ actually means. I will look at the issues causing and affecting this very real bias in Australia. The aim, as always, is to encourage and facilitate engagement. Above all, the goal is to educate.