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Is a pro-contact legal culture more important than child safety?

By Elspeth McInnes - posted Monday, 6 September 2004

The title for this month's feature - Access to the Family Court and Access to Kids - is framed in terms of fathers' rights discourses. In the discourse of fathers’ rights, it is often claimed that fathers do not have access to children after separation. This is despite research evidence that 7 out of 10 children of separated parents see their non-resident parent. Indeed, the access that most fathers have to their children is a result of the father’s agreement with the mother and not a result of court orders. That is, the vast majority of fathers can see their children as often as they have agreed to do so.

Furthermore, many men who have agreed to see their children for contact choose not to keep their agreements. Some have new partners and families; some have moved to new jobs; some suffer from illness or have substance abuse issues. Their lack of contact with their children is their choice and their responsibility. The choice of fathers to not see their children is hardly ever recognised; instead mothers are vilified as “the problem”.

One of the current problems with the family law system for mothers is the lack of access to legal aid, with the result that mothers must represent themselves, even in cases involving serious abuse issues. The system suffers from the stereotyping of mothers as vindictive and seeking to prevent contact; a pro-contact legal culture which puts contact with both parents ahead of safety; and a lack of any institution or mandate for proper investigation of violence and abuse allegations.


The Family Law Council's 2002 report into child protection and family law identified these problems. However, issues of children's safety are barely whispered in comparison with the roaring of aggressive men demanding their rights to make children be with them for half their time. Paradoxically, those men most likely to be aggressively pursuing time with their children are those who use aggression to solve all their problems, and aggression probably played a large part in the breakdown of their parental relationship. Judges are faced with the question of whether a child is better off being terrified and assaulted and seeing their father, or not having an ongoing relationship with the person who terrifies and assaults them. Child development research clearly shows that exposure to trauma can devastate a child's development but the current judicial decision-making appears to be reckless of the impact of trauma and captured by the demands of angry men.

These issues can be addressed by privileging safety as the threshold determinant of a child's best interests. People living in threat, and fear of attack, are unable to do anything but try to survive. Children who are forced into continuing contact with a violent parent are hostage to the current trends to vilify mothers who are trying to protect their children. The Family Law Act needs to be amended to privilege safety and risk assessment and, where a history of violence or abuse is found to exist on the balance of probabilities, all decision making should focus on supporting safety of children and adults. All parties should be legally represented in cases involving allegations of violence and abuse. All cases of family violence should be properly investigated. This would mean that children's rights to protection from abuse would be recognised as significant and not subordinated to the demands of men's interest groups.

Parents who use violence and abuse with their ex-partner or children should be supervised and restricted in their contact with the people they wish to harm or have a history of attacking. People who assault others should face criminal prosecution. If the Australian state and federal legal systems worked to support safety, we would reduce the numbers of separated men murdering their families and reduce the numbers of children and mothers whose lives are destroyed by domestic violence and child abuse. What is more important, protecting the safety of children and their carers, or appeasing angry men on the warpath? Clearly Australian policy currently favours angry men and disregards the mute testimony on the gravestones of murdered children.

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About the Author

Dr Elspeth McInnes is a Lecturer at the University of South Australia, Convenor of the National Council of Single Mothers and their Children and a member of the ACOSS Executive. Dr McInnes' most recent research has focused on mothers' transition into lone parent family structures, exploring the impact of violence on mothers and children during separation and their subsequent adaptation and access to community resources and to both market and non-market income.

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