Are fathers at a disadvantage in parenting proceedings at the Family Court?
Submitted by suetmei, Saturday, 12 July 2008
Legal Studies Civic Participation Task 2008
Reported by Thoo Suet Mei
Taylor's University College
South Australian Matriculation
March Intake 2008, Class E5.
*Report will be removed within days as date posted to avoid plagiarism! (:
1.0 Introduction
1.1 Contemporary Issue
On the 26th of April 2008, The Australian has reported a father from Adelaide who wants to take custody of his 10 children from a mother who was charged with child neglect. The relationship of this couple ended in October 2005 but they did not battle for custody through the courts. However, he arrived in Adelaide after 3 years to visit his children and found that the conditions in which they lived in were unacceptable. This shows that mothers are not necessarily the best parent for children. This issue makes me interested in doing a research on parenting disputes.
1.2 Aim of Research
Child custody battles are never fair to either parent and it is often seen that mothers are always the one who is eligible to receive child support and get hold of the child’s custody. The aim of my research is to find out whether fathers are at a disadvantage in parenting proceedings at the Family Court.
1.3 Family Court of Australia
The Family Court of Australia is a federal Australian court, created by the Family Law Act 1975 as a specialist court dealing with divorce, parenting arrangements between separated parents, property separation, and financial maintenance involving children or divorced spouses. On the other hand, the Child Support Agency Australia (CSA) is a Government of Australia agency established in conjunction with the Family Court, to administer the assessment and collection of child support.
1.4 Background
Child custody usually becomes the most controversial issue during a divorce and it is never fair to either parent. However, judges prefer that parents decide on a custody arrangement that will work best for their family. If parents cannot agree, a judge may order a custody valuation.
Figure 1 : Current Population Survey on Parents Obtained Child Custodies
Figure 1 shows the percentage of either parent obtaining child’s custody in Australia. It shows a huge percentage of population that obtained child custodies are mostly the mothers from various marital status. In contrast, the fathers gain an extreme low percentage of child custodies.
2.0 Fathers are at a disadvantage in parenting proceedings at the Family Court
2.1 Gender bias in Family Court
Gender bias runs rampant in the Family Court system. The courts almost always believe a woman over a man today and they are being treated differently during child custody court cases (Harbour, 1998; Bricklin & Elliot, 2008; Tan, 2008). Fathers are automatically presumed capable of child abuse before any mothers would. However, recent statistics have shown women are becoming the primary child abusers (Harbour, 1998). According to the current DHHS statistical report on nationwide Child Abuse, 61% of all child abuse cases are committed by the children's biological mothers (Harbour, 1998; Separated Parenting Access & Resource Center, n.d).
However, there are some who argued that the laws are set up to award custody to parents who has had the most involvement so far raising the child (Alexander, 2006; Larson, 2003). Besides, a man’s failure to learn what he can carry out to win his case will result in defeat. He can be his own worst foe in a custody battle (Family Law Secrets Revealed, 2006).
Despite the arguments provided, I still strongly believe that gender bias exist in Family Courts. This is because biological mothers are known to becoming the primary child abusers, yet the courts still insisted mothers are the best parent. According to the Family Law Act 1975 Section 60CG, the child's ‘best interest’ must be ensured and not exposed to any family violence of the custodial parent.
2.2 Rigid formula for Child Support
The Child Support Enforcement System is said to be rigid and unfair to the absent parent, which are mostly the children’s fathers. Private information will be in the hands of the Child Support Agency to easily allocate the fathers, preventing them from avoid paying child support. The courts will order absent father to pay about 22-24% of his net income to support one child, 33-35% for two, and 40-42% for three (Legal Assistance Resource Center of CT, 2004). Being unemployed is not an excuse for not paying child support. Fathers either pay with money or his freedom, which is putting him to jail. To avoid missing payments and going to jail, some fathers would engage in illegal activities (Harbour, 1999; Breit, 2006).
Nevertheless, the Child Support Scheme is said to be no longer rigid. A major review and research was done towards the Child Support Scheme in Australia on the costs of children and other household factors which include the income levels, different age and numbers of children (Bourke, 2008; Child Support Agency, 2008; Dads in Distress Inc., 2008). The Australian government has reformed the Child Support Scheme by introducing six new formulas to assess child support calculations and shared parenting, commencing 1st July 2008. All parents will be affected despite private arrangements made (Dads in Distress Inc., 2008).
In my opinion, fathers are at a disadvantage because despite the reformation of the Child Support Scheme, fathers are still facing a high rate of failure in parenting disputes. In accordance to the legal principle of parenting responsibilities, both parents have equal financial responsibilities to the child’s growth and development. New formulas will only benefit parents who have already gained the child’s custody and not during a parenting dispute in the Family Court.
2.3 Mothers use the Law to “punish” fathers
Female gender abuse the legal system these days to bring men to their knees, erasing fathers from the lives of the children (Harbour, 1998). Mothers intend to get the child’s custody and a large portion of the father’s income in terms of child support (Baskerville, 2001; Tan, 2008). Some mothers refuse to work and punish their ex-husbands by using the children as income producers or second income, whereby some of them are already earning more than the fathers (Perkins, 1987; Harbour, 1998). Women feel justified and learned that misuse of the law will make them a winner (Harbour, 1998). Above and beyond, some mothers thought making fathers to serve jail terms would appropriately punish them (Stacey, Danielle & Sipe, 2002). In addition, some mothers abuse the courts order towards fathers doing child visitations. According to a recent study by American Journal of Orthopsychiatry, 40% of custodial mothers have admitted to interfering with the visitation (Harbour, 1998).
On the other hand, few researchers argued that mothers do not take court ordered support as luxury and punish fathers to gain child support (Gardner, 2008; Harbour, 1998). Custodial mothers do require child support and the amount received is just enough to meet the requirements to bare all expenses to raise the child. Today, education is not entirely free and regular supply of food and clothing is needed as the child constantly growth. In fact, a researcher has mentioned that more funds should be allocated to the mothers (Gardner, 2008).
I certainly agree that mothers do abuse the law to "punish" the fathers and this makes fathers being in a disadvantage position during parenting proceedings in the courts. Independence of Judiciary has illustrated that judges shall be free from external influences in making decisions during a parenting dispute and the child’s ‘best interest’ should be emphasized as the child may suffer psychological and emotional harm as a consequence of the custody given to an irresponsible parent.
2.4 The amount paid for Child Support is not proportionate to the time spent with the children
Visitation of the child often becomes an issue when paternity is established. Mothers intentionally denied visitation to child support paying fathers despite the visitation schedule was established in the court (Sherwood, 2001; Stacey, Danielle & Sipe, 2002). The fathers will then spend money and time in the court, trying to get visitation enforced (Perkins 1987; Harbour, 1998). According to Yip (2008), the schedule of child visitation is being controlled by his ex-wife. He has mentioned that it is not right for a father to continue providing for the child support if he is restricted from visiting his own children. “Why give money for them if we can’t see them?” he said.
However, the visitation schedule is subject to mutual agreement between both parents as the child support payment has no ties with visitation rights. A person who pays child support does not automatically entitled to visiting rights (Massachusetts Law Reform Institute, 2006). Regardless the minimal number of visiting the child, fathers will still need to fulfill child support obligations as it is necessary to the growth and development of the child. In accordance to the principle of parenting responsibilities, both parents have equal financial responsibilities to the child, in spite of seeing the child for just once or twice.
In my opinion, I believe fathers are in a disadvantage because most of the mothers intentionally denying fathers from visiting the child. It is against to one of the elements of Rule of Law. Equality before Law supports that everyone has equal rights and parents should enjoy equal rights to the time spent with children too. Hence, fathers should not be restricted from visiting their child.
2.5 The amount paid for child support is not proportionate to the father’s income and personal expenses
Judges viewed the man in a divorce proceeding as nothing more than a ‘walking checkbook’ due to the large amount of child support to be paid (Richey, 2007). The current lack of income is one of the utmost reasons why the non-custodial fathers are not fulfilling their child support obligations (Sherwood, 2001; Stacey, Danielle & Sipe, 2002). Yip (2008) has admitted that compensating and paying child support to his ex-wife is a burden to his current life and personal expenses. Some fathers suggested that they are willing to continue paying child support if mothers are forced to work, as it is also part of their duty to share financial responsibility for the child (Stacey, Danielle & Sipe, 2002).
However, the Child Support Scheme with a major review and new implementations done has declined paying parents from avoid fulfilling child support obligations due to a large amount of money to be compensated. A new formula of calculating child support has been introduced whereby the income levels of both custodial and non-custodial parents are taken into account to be assessed (Bourke, 2008; Child Support Agency, 2008; Dads in Distress Inc., 2008). This has reduced the burden of most paying parents and one shall give no excuses to refuse paying child support.
Regardless of the arguments made, I still strongly believe that the amount of child support a father should pay is not proportionate to his income and personal expenses. The legal principle of parenting responsibilities by the Family Law Reform Act 1995 stated that both parents have equal financial responsibilities to the child. In my opinion, the amount of child support should be shared between both parents.
3.0 Conclusion
3.1 Summary
Fathers are at a disadvantage position in parenting proceedings at the Family Court. This is due to the factors of gender bias in Family Court, a rigid formula for Child Support, mothers using the Law to ‘punish’ fathers, the amount paid for Child Support is not proportionate to the time spent with children, father’s income and personal expenses too.
3.2 Recommendation
3.2.1 Gender Bias in Family Courts
In my point of view, judges should eliminate their sympathy towards mothers by not having the impression that mothers are always the best caretaker for every child. In fact, judges should prioritize the child’s best interest when deciding which parent shall obtain the child’s custody.
3.2.2 Rigid Formula for Child Support
I propose the abolishment of serving jail terms as a result of failure to fulfill child support obligations. Jail terms will not adequately punish the fathers nor benefit the custodial parent in collecting child support or any other financial support, as no money will be collected from the absent parent while in prison. A proportionate scheme shall be proposed to fathers with low income level to avoid them from preventing paying child support.
3.2.3 Mothers use the Law to “punish” fathers
I would suggest that parents should not take personal emotions into account as a result of divorce or separation when deciding child custodies. In addition, they should not use the child as a revenging tool to punish their ex-spouse. Compulsory counseling sessions should be arranged to mediate both parents, in order to ensure them in developing a better mentality even after a divorce.
3.2.4 The amount paid for Child Support is not proportionate to the time spent with the children
I propose that both parents should come to a mutual agreement of the visitation schedule with prior to the child’s best interest despite the amount of Child Support being paid. Child Support Agency may assign a mediator to divorced parents to provide guidance and resolve conflicts between them. Mothers should be aware of the psychological harm causing to the future of the children in the absence of their fathers, by denying fathers from doing visitations.
3.2.5 The amount paid for child support is not proportionate to the father’s income and personal expenses
Instead of the non-custodial parent paying child support wholly, I would suggest that both parents to share equal financial responsibilities towards the child. A proportionate scheme shall be proposed by the Child Support Agency to non-custodial fathers in accordance to their earning capacity, income level and personal expenses.
Bibliography
Alexander, R (2006). Guide: How Fathers Can Win Child Custody.
Baskerville, S (2001). Plundering Fatherhood.
Bourke, E (2008). 'Child Support Changes Divide Parents And Experts', Australian Broadcasting Corporation, 2 June 2008, p.N/A
Breit, P (2006). 'Man Faces Prison Time For Owing Child Support', The Kansas City Channel , 19 January 2006, p.N/A.
Bricklin, B & Elliot,G (2008). Things For Men To Be Aware Of During A Child Custody Court Case.
Child Support Agency (2008). The new Child Support Scheme and changes to Family Assistance.
Commonwealth Consolidated Acts (2003). Family Law Act 1975.
Dads in Distress Inc. (2008). Information - Australian Family Law Reform and Child SupportReview.
Family Law Secrets Revealed (2006). Family Law is Biased Against Fathers
Gardner, JA (2008). Single Parenting Problems - Mothers As Single Parents In USA.
Harbour, P (1998). Feminism: Beauty Or The Beast?.
Harbour, P (1998). Gender Bias In Our Family Court System.
Harbour, P (1998). Guerilla Divorce Warfare.
Larson, A (2003). Fathers' Rights Movement: Fathers' Rights and Child Custody Law.
Legal Assistance Resource Center of CT (2004). Establishing Paternity & Support
Massachusetts Law Reform Institute (2006). Child Custody and Visitation – MassLegalHelp.
Perkins, D(1987). Child Support: An Anxiety Mill For Mothers, Fathers And The Law.
Richey, W (2007). Dad wasn't dad after all, but still owes child support.
Separated Parenting Access & Resource Center (n.d). Divorce and Fatherhood Statistics.
Sherwood, K (2001). I Would If I Could.
Sherwood, K (2001). When Money Isn't The Issue.
Stacey, R, Danielle, E & Sipe, TA (2002). Journal of Sociology & Social Welfare.
Active Participation
Muhamad, H.A (June 22, 2008). Via E-Mail, A Child of Divorced Parents.
Tan, C.Y (June 19, 2008). Personal Communication, Baharuddin, Bernatt, Tan & Ker. Kepong, Kuala Lumpur, Malaysia.
Yip, C.K (June 24, 2008). Via E-Mail, A divorcee.
http://suetmei.blogspot.com/2008/07/are-fathers-at-disadvantage-in.html