For years, fathers’ groups have complained that restraining orders, intended as a shield against domestic violence, are often misused by unscrupulous pseudo-victims and over-zealous courts.[1] However, whenever these groups request that fathers should have more time to spend with their children after divorce, feminist groups argue that those children will be exposed to more violence.[2]

Contrary to common perception (and the wild claims of the influential feminist lobby), the most likely abuser of a young child is certainly not her biological father.[3] In the United States, for instance, statistics reveal that mothers are almost twice as likely as fathers to abuse their children.[4] According to U.S. sociologists Murray Straus and Jan Stets, “Women not only engage in physical violence as often as men, but they also initiate violence about as often as men.”[5] Indeed, mothers account for no less than 55 per cent of all child murders in the United States, says an official report released by the U.S. Department of Justice.[6]

The information has been confirmed by a comprehensive report by the U.S. Department of Health and Human Services, entitled Child Mistreatment (2006). The document reveals that, while fathers (including stepfathers) were involved in 36 per cent of all mistreatment cases, mothers were involved in 64 per cent of these cases. Further, while the biological father was the sole perpetrator in 18 per cent of the cases, in 40 per cent of them the mother was the sole perpetrator, with the mother acting with anybody else besides the father in 6.2 per cent of those cases.[7]

Hence the U.S. Health Department concludes: “On average, fathers who live in a married household with their children are better able to create a family environment that is more conductive to the safety and necessary care of their children. Consequently, children who live with their biological father in a married household are significantly less likely to be physically abused, sexually abused, or neglected than children who do not live with their married biological parents.”[8]

Although child abuse occurs disproportionately in non-traditional families, the subject of family breakdown has failed to receive the political, media and academic attention this major social issue warrants.[9]

While it is widely recognised that a positive relationship between a child and her father “contributes to the child’s development and may lessen the risk of abuse”,[10] children living in single-parent units have a far greater lifetime exposure to sexual assault, child mistreatment, assault by siblings and witnessing violence, than those living with their biological parents.[11]

In this sense, a comprehensive analysis of child abuse cases across 42 countries has found that children from single-parent families are considerably more likely to be victims of physical and sexual abuse than children who live with both biological parents. Further, a father’s involvement in the life of a family was directly associated with lower levels of child neglect, even in families that may be facing other factors, such as unemployment and poverty, which could place the family at risk for maltreatment.

Compared to their peers living with both of their biological parents, children in single-parent homes have:[12]

• 77 per cent greater risk of being physical abused;

• 87 per cent greater risk of being harmed by physical neglect;

• 165 per cent greater risk of experiencing notable physical neglect;

• 74 per cent greater risk of suffering from emotional neglect;

• 80 per cent greater risk of suffering serious injury as a result of abuse; and

• 120 per cent greater risk of experiencing some type of maltreatment overall.

Above all, decades of research reveal that children who do not live with both their biological parents are at significantly higher risk of being sexually abused, especially by men living in their homes who are not their biological fathers.

According to Dr Jeremy Sammut, of the Sydney-based Centre for Independent Studies (CIS), “Girls living in non-traditional families have been found to be sexually abused by their ‘stepfathers’, either the married, cohabiting or casual partner of a divorced or single mother, at six to seven times the rate girls are sexually abused by their natural fathers in intact families.”[13]

The same conclusion was reached by law professor Robin Fretwell Wilson.[14] After reading more than 70 representative research papers on the subject, she concluded: “There is little doubt that the risk is indeed real. As difficult as it is to accept, a girl’s sexual vulnerability skyrockets after divorce, with no indication that this risk will subside. As marriages continue to collapse at an extraordinary rate and the number of single-parent and remarried households soars, the number of girls put at risk can only increase.”

Professor Wilson has questioned the abject failure of the current legal system to acknowledge the extent to which children of divorced parents, particularly girls, are at the risk of sexual abuse.

She writes: “The law has failed to grasp the extent to which girls in disrupted families are at risk of sexual abuse. In the custody arena, judges base their decisions primarily on the past and present conduct of each parent. Consequently, courts examine whether a parent has molested, or is molesting, his or her daughter before awarding custody to that parent.

“However, courts generally fail to consider the equally important question: could a daughter be molested after her parents part, either by them or by someone who enters her life after divorce? This failure on the part of courts highlights a glaring inadequacy in the law: a nearly universal absence of approaches designed to prevent, as opposed to remedy, a known repercussion of parental separation, sexual abuse.”[15]

These findings in no way imply that all stepfathers are potential abusers. Naturally, sexual abuse may occur in all kinds of families. They may be perpetrated by a multiplicity of offenders, including relatives, neighbours and family friends. Of course, as Jeffrey Rosenberg and W. Bradford Wilcox correctly explain, “there are … countless stepfathers who step into the role of dad with both competence and caring. And many live-in boyfriends provide both love and structure for the children in the household”.[16]

Nonetheless, the basic fact remains that only a tiny proportion of sexual abuse is committed by biological fathers, although government statistics often lump in the statistics with stepfathers so as to make it appear that incest has become widespread.[17]

For instance, statistics of the Australian Bureau of Statistics (ABS) fail to distinguish the two groups: biological fathers and non-biological fathers.[18] This is extremely unhelpful, “given the scholarly interests in the relationship between non-traditional families and child sexual abuse, and the good international evidence that family breakdown is a major risk factor (‘more than seventy social studies’)”.[19]

Fortunately the child protection data which is publicly available in the United States is far more comprehensive and, accordingly, its 2010 National Incidence Study of Abuse and Neglect (NIS-4) has established the following: “Children living with their married biological parents had the lowest rate of abuse and neglect, whereas those living with a single parent who had a partner living in the household had the highest rate. Compared to children living with married biological parents, those whose single parent had a live-in partner were at least eight times more likely to be maltreated in one way or another. They were 10 times more likely to experience abuse and eight times more likely to experience neglect.”[20]

After carefully reviewing all the relevant statistics both in Australia and overseas, family law professor Patrick Parkinson of Sydney University’s law school has concluded: “Children whose parents live apart are exposed to a greater number of risks and difficulties than children in intact families. They are significantly more likely to be subject to reports of abuse and neglect than intact families.

“Two of the most significant reasons for this are the presence of new partners who are not biologically related to the children, and the financial and other stresses of lone parenthood. Girls in particular are at much greater risk of sexual abuse from the mother’s new partner than from their own father. Single parents, and especially those who are working to support the family, also have less time to monitor and supervise their children.”[21]

Professors Bradford Wilcox and Jeffrey Dew of the University of Virginia attempt to provide some sort of sociological explanation for these empirical findings. They write: “Mothers living in a married household are less likely to be abusive or neglectful of their children because they enjoy more support from a spouse. Fathers help mothers be better parents in a variety of ways. First, fathers can directly care for their children, thereby providing mothers with a break from the challenges and stresses of parenting. Second, by engaging in housework or other tasks associated with running a household, fathers can help decrease a mother’s stress, thereby lowering the risk of child maltreatment. Third, fathers can monitor a mother’s parenting, stepping in when she could be on the verge of engaging in abusive or neglectful parenting.

“Finally, married fathers can offer emotional support and advice to their wives, and both parents can strategise together about parenting. Such support is invaluable in reducing the odds that a mother ends up abusing their children. For all these reasons, then, mothers who are married to the father of their children are less likely to neglect or abuse their children, compared to single mothers.”[22]

Whether this might be true or not, decades of research clearly indicate that, on average, family breakdown makes society much less equal in areas such as health, education, and employment. For instance, single-parent households are substantially more likely to have incomes below the poverty line. Although it should be noted that most people living in poverty certainly do not harm their children, “lower income, the increased stress associated with the sole burden of family responsibilities, and fewer supports are thought to contribute to the risk of single parents maltreating their children”.[23]

Indeed, a study carried in the U.S. about 10 years ago found that 33 per cent of all children in single-mother households had at least once lacked food or gone hungry, whereas only 11 per cent of their peers in married households had ever lacked food at home — a nearly 300 per cent difference.[24]

Above all, it is quite undeniable that child abuse and neglect overwhelmingly occur in households from which the biological father is either voluntarily absent or involuntarily removed (often as a result of involuntary divorce or restraining orders that violate the most essential elements of due process).[25]

But since the biological father is precisely that person whom the “domestic violence industry” and child support bureaucracies want to remove from the family home, countless children of divorced parents have become the primary victims of a legal system which makes them unable to develop a stronger, more positive connection with their biological fathers, in any feasible way that would typically reduce all likelihood of abuse and neglect.

Augusto Zimmermann, LLB, LLM, PhD (Monash), is a senior lecturer in constitutional law and legal theory at Murdoch University, Western Australia. He is also a Commissioner with the Law Reform Commission of WA; fellow at the International Academy for the Study of the Jurisprudence of the Family (IASJF); president of the Western Australian Legal Theory Association (WALTA); and editor of The Western Australian Jurist. Two years ago he published a widely acclaimed book, Western Legal Theory: Theory, Concepts and Perspectives (Sydney: LexisNexis Butterworths, 2013).