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 Most of us know this is an outdated and limited concept, however, there are those among us who haven’t come to terms with this – either consciously or subconsciously.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?


Profile #2 – The Extended Family

Phil* and his family welcomed his daughter Josephine* in to the world two years ago. Premature, the small human was the apple of everyone’s eye, especially her great-grandfather. The family doted on the little girl every Sunday, when everyone would come together to have lunch.

Father’s Day 2016 marked four months since Josephine had seen her father or his family. Her mother accused Phil of “family violence”, but no evidence had been brought forward. He went from being Josephine’s full-time carer for 18 months, to not seeing her at all. His family was as involved as you would expect. Phil’s mother babysat Josephine when needed, and always ensured she was clean, fed, and happy. Phil’s family went from being an integral part of the child’s life to an absent space without rhyme or reason.

Phil and his family have become collateral damage to a system that favours winning over the humans involved. Josephine has been removed from her father’s care until further notice, without any evidence against him. This doesn’t just affect Phil; it affects his mother, grandfather, and the rest of the family that showed nothing but love and care for their newest member. Josephine is two now; I wonder if Phil will be able to see her before she starts primary school.

*Names have been changed to protect the identity of those involved.

Profile #1 – Anonymous

Over the next few weeks, we will be hearing the stories of those affected by unfair parental arrangements from the Family Court. These stories are from partners, children, and parents. Emotions are always high, and it is important to remember these represent just a few sides of a many-faceted issue. The purpose of these profiles is to showcase the reality of the problem and to give a platform for those whose stories would have otherwise gone unheard.


Liz* and Mark* have spent the last five years fighting for custody over Mark’s two young sons. His ex-wife, Fiona*, was found having an affair and they separated in 2011. What followed was a two-year-long court battle to finalise the divorce; whilst assets were split 60/40 in Fiona’s advantage, Mark now only sees his sons around 80 days in a year – approximately 22% of the time. The current court order was settled after the 2012 change in the law, which presumed equal parenting.

Liz and Mark have been married for two years, have stable jobs, and pay child support on time. They have an infant son together, but Liz fears her son will never have a relationship with his half-brothers. Having spent tens of thousands of dollars on lawyers and mediation, they are ready to give up.

Every aspect of gaining responsibility for Mark’s children has been met with rebuttal. Even picking up and dropping off the boys required mediation and resulted in the couple having to travel to Fiona’s place half an hour away, should they wish to spend time with the children. “Over the years I have realised that she doesn’t want my husband,” Liz says, “but she doesn’t want him to be happy either.”

Allegations of abuse and drug use against Liz and Mark lead to the pair not being able to see the boys for six months. After these claims went unsubstantiated, Mark was entitled to just one day per week of visitation in a public space. Over time, Liz and Mark have fought to increase their contact with the boys to the current court-ordered agreement – every second weekend and half of school holidays. They said they have always pushed for 50/50 custody, but this has become more unlikely as time has passed.

Apart from having minimal contact hours, Mark’s relationship with his sons has continually suffered. Liz says, “The relationship has deteriorated substantially since [Fiona’s] current partner came about just over 12 months ago.” The two boys have been especially hostile to Liz, telling her they hated her then-unborn child. Liz and Mark believe the children have been brainwashed by their mother, which has led to parental alienation against their father and stepmother.

Their greatest worry is that their sons are in an unsafe environment. Liz believes the boys have been exposed to drugs and violence, with Fiona herself a victim at times One particularly bad bout of domestic violence led to Fiona miscarrying the child of the partner she is still with today. Liz and Mark have tried to contact child services but were unable to make progress. “His kids are exposed to horrible things and there’s not a damn thing that can be done about it,” Liz says.

The ongoing stress and struggle have taken its toll on the couple. “My husband suffers [severe] depression. At times he’s been suicidal.” Liz says, adding that Mark feels as if he’s lost his sons. “And he’s right. Visitation is merely a formality at this stage.” The couple receives counselling individually and together, but the hopelessness is still very much present. They have exhausted all avenues to be active parents for the two young boys.

“I have always supported my husband in his fight but there is no point anymore. I have no more comforting words; I have no more hope to give him.”


*names and details have been omitted to protect the identity of the people involved.


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.