IS OUR family law system unfair to men? Queensland family law expert Michael Kilmartin thinks it is, and that there should be an urgent re-think of proceedings.
MEN GETTING A BAD DEAL: A prominent Family law expert believes men are not getting a fair hearing in divorce matters. Picture: Candyboximages
IS OUR family law system unfair to men?
Queensland family law expert Michael Kilmartin thinks it is, and he believes there should be an urgent re-think of a mindset weighted against men in family law proceedings.
Mr Kilmartin says many male clients voice the concern that they are always painted as the villain in divorce and parenting custody matters and women wanting to score easy points over their ex will cite violence or other intimidatory claims to win in court, with “the system” tending to side with them.
Mr Kilmartin, a family lawyer with Gold Coast and Sydney firm Adams Wilson Lawyers, said he expects to draw flak for his views but it’s time someone spoke up.
“This is not and should not be a male versus female thing, it’s not gender-bashing but the reality is despite an official equality, our family law system is very female-focussed and, frankly, unbalanced,” Mr Kilmartin said.
“I have had countless male clients say they feel they are unfairly painted as the bad guy in every step of the separation or shared parenting process. They certainly feel there’s a lack of balance in family law proceedings.
“From my perspective as a family lawyer I am very aware of a perceived attitude against men during divorce and custody negotiations which manifests in every step of the process, even in the Family Court.
“There’s an obsession with the “child attachment theory” which holds that children prefer to be with their mums as the primary carer and the courts tend to agree with this view.
“Half of the people in a heterosexual relationship undergoing a divorce/ separation process are men, yet our popular culture focuses only on the woman’s issues. We need to get back to a fair balance.
“Male clients feel they are regarded as the bad guy and someone who should pay for whatever caused the relationship to break down, no matter whose fault it may be.
“The mindset they encounter is across the board.
“Fathers of children aged under three find it very difficult to be awarded overnight care of their children even though many right-thinking couples do this in the best interests of the children.
“If the court has to make a decision on care of a child, the father is behind the eight ball from the outset. The court subscribes to the theory that the primary carer should be in the family home and that’s usually the mother.”
A generation of fathers victimised by a biased family law system were now embittered and resentful and above all, distrusting of the family law system.
“Sadly there are people willing to play the system to win against their ex partners and too often they are empowered in a gender bias way. I’m aware of numerous spurious claims of domestic violence against men because immediately the system presumes he is guilty,” he said.
“I am a strong advocate of defeating domestic violence and the need to protect women and children, but it annoys me when some women use it to play the system and push the anti-male stereotype,” he added.
Sometimes the allegations against men were driven by pure spite and other times for tactical reasons such as winning custody of a child and thus ensuring regular welfare benefits and child support.
Solicitor supported on claims of bias in Family Law Court
ON WEDNESDAY we featured a story from a family law expert and his belief that men were not getting a fair shake in the Family Law Court.
ON WEDNESDAY we featured a story from Gold Coast family law expert Michael Kilmartin and his belief that men were not getting a fair shake in the Family Law Court. While he expected backlash for his comments he in fact received support and praise for his stand. Some of the many responses we received are featured here.
Thank you for shining a light on this topic
My separation from my ex wife was in June 2013. My son was 15 months old at the time.
He is almost 3.5 years old at present and I am still fighting through the family court to have him over night.
His mother currently allows me 18 hours a week with my son. I have spent over $110,000 in legal fees which has taken me to the brink of bankruptcy.
I have had every trick in the legal hand book thrown at me simply because of my gender.
I had a false allegation of domestic violence made against me in September 2014 which the magistrate with no evidence at all using her discretion put a temporary order in place until I defend myself in trial.
Because of court delays the trial will not be held till October 2015 which is more than a year after the false allegation was made.
This temporary protection order is mentioned in every single document the mother’s legal team submit to the family courts to try and discredit me and stop my time with my son increasing.
I had a three day trial starting on March 16 this year in the family court and because of deliberate delays by the mother’s legal team and delays in the court I am still waiting for a final decision to be made.
I have attended Dads in Distress in Palm Beach on the Gold Coast meetings where I have witnessed other good fathers crying and sobbing uncontrollably because they have been removed from their kid’s lives.
The CSA are ruthless in their demands for money and base the amount to be paid on overnights which gives encouragement for mothers to make it as hard as possible for dads to get overnight care of their kids.
Your comment about “attachment” is perfectly accurate. That is the exact phrase used against me by ‘family report writers’ to take away my bond with my son.
After more than two years being dragged through the family law system I can see very clearly why up to 21 fathers a week commit suicide due to child access issues.
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This problem is not just in Australia
We have the same problems in Canada. The federal divorce act and the provincial family relations acts are severely flawed.
I have experienced too much of it myself and have heard way too many similar stories.
I try to view the system as being biased against the higher income earner in an effort to present this solely as an equality issue.
There are flaws in the system that impacts the low income earner as well.
Unfortunately, the man is typically still the higher income earner in the majority of situations.
It appears that those that can make changes to this legislation do not have much desire to make change as long as it does not create a burden for the governing body.
I believe that family court should be treated with more significance, particularly when children are involved.
They are the countries future after all! I would like to see a small jury system be implemented in family courts so a more diverse review would be conducted.
Judges are very educated people, but they are still human and they make errors. Making the wrong decision in family court systems have “long” term impacts on families.
I also believe judges are given too much discretion and far too often the term “in the best interests of the child” is abused.
Issues that would never be considered as being a matter of a “child’s best interests” outside of the court system are making their way into our system and actually being debated rather than being thrown out.
Claims of abuse need to be factual
I have heard of women reporting abuse to win dollars in “compensation” in Family Law Court cases. Abuse of any type is not acceptable and, unfortunately for women, being the weaker gender physically, they cop the majority of actual physical abuse.
I am a man who has been in two relationships in my life that have been abusive.
One long-term, passive aggressive abuse situation that took years to recover from, as I reclaimed my own identity.
A second, shorter and more volatile relationship, in which I was again psychologically attacked and even physically abused by my fiancé.
Both relationships cost me and both taught me, once I was clear of them, about the profound power emotional and psychological abuse and character bullying.
They will either bury who you are, if you are easily manipulated, or drive you crazy to the point that you will leave.
A man facing that choice of leaving, with the loss of access to children, etc would be hard pressed to keep his cool under those kinds of circumstances.
I wonder how the court factors these abstract things into their reckoning, if indeed they even can, since none of it can been seen in evidence.
Cutting to the point, everyone stares aghast the moment someone says “I was abused” and turns on the water works.
Nobody seems to questions the veracity of the claim.
Especially when it’s a damsel making the claim.
I don’t believe that anyone should be able to make a claim in court of abuse unless there is a record of abuse documented and backed by relevant authorities and/or health professionals or actual physical evidence that can be seen by the court.
To take it a degree further, I would (had I the opportunity) challenge the Family Court to warn those who so claim without proper evidence, that such claims are mere hearsay, defamatory and if pursued without evidence may lead to a charge of contempt of court, and strike the claim from the record of court proceedings.
Facts back up claims of bias
I worked in capacity of a Family Law Court transcriber for numerous years and I would have to definitely say that yes the courts are on some levels.
The difficulty though is that women know how to use the system and are encouraged to.
Many women use the court, child support (my employer), domestic violence services to get their own way.
The court is regularly used to hang men out to dry and to obtain the wants and needs in particular, financially to get ahead where they are the primary care giver.
This can often be the case especially if there has been infidelity or choices made by a man to leave the relationship in circumstances that the females disagree or have to then be forced to work, move house, or are thrown into a role of having to take more responsibility than what they are used to.
There are lots of situations in the Family Law Court that are perceived as unfair though. There are no consequences for women who choose to take off with their children and allow no contact for their children with their fathers.
Women know they can receive more child support if they do this and there is no recourse or repercussions.
Women can apply for an AVO to better their case or raise allegation of sexual abuse to drag court proceedings out to name but a few…..
Men treated badly by court staff
I have recently separated from my wife and have seen a piece of this bias firsthand.
She took out a protection order on me with a lot of false allegations which thankfully was thrown out of court but I could not believe the different treatment men and women got on the day.
If a woman went to the court staff and voiced their concerns on seeing their partner they were ushered into a separate room together, I saw two men go and say that they did not want to see their partners and they were told to wait around the corner.
I saw three women complain that they had appointments and the staff put them up in the list therefore getting them through early.
I was there for four and a half hours and had to take a day off work. I saw one guy ask if he could get in earlier as he had to go to work and was straight up told that it’s not possible.
He returned half an hour later and was overheard saying “don’t bother about it anymore; I’ve just lost my job”. His boss had sacked him over the phone because they wouldn’t move him up the queue.
The favouritism is so noticeable, it’s sickening.
The man is never believed in court
I agree that the law courts are biased against men.
Many times I have seen couples break up and then the women starts bad-mouthing the man, so she can get custody of the children, and is almost always believed without any proof whatsoever.
He is never believed which is wrong, and 99% of the time the woman gets custody because of this.
Sometimes a man may have done something wrong during the relationship, but this should not be considered unless there are circumstances that could be harmful to the children.
If he has proved that he has changed, there may be a case for having supervised access, maybe under a child support agency’s rooms or police station for a period of time, so that the children do not lose contact with their father.
I think the laws should be able to be upheld regarding visits and maintenance too, even if the police have to be involved in seeing the judge’s orders are obeyed.
Things such as visiting should be adhered to, and if not the custodial parent should be able to be punished by the law in some way.
A lot of the time the custodial parent will move away, so the other parent has no access to the children.
When this happens I think the offending parent should be charged with some sort of breach, and the children should be taken by some sort of child agency to the wronged parent.
If they have moved interstate for instance, then the non-custodial parent should not have to pay maintenance until he can have access to the children.
The non-payment of child support should be taken from the taxes or dole before it is given out, especially if the non-custodial parent is always behind or not paying child support.
My son was ruined by court bias against him
I have been down both roads, where I was in an abuse situation and where I had to sit back, financially help when I could and watch my son go though a horrendous situation with an ex partner.
I would rather be hurt physically than to be financially ruined and emotionally bereft, and missing my children dreadfully, as he has been.
I think the article you have received and put out there was a long time coming.
It isn’t only women who are badly treated.
Sometimes, and I have heard of this, men have committed suicide, because the courts automatically believing the women and the men have the heartache of their children growing up without even knowing them.
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Mr Kilmartin is correct regarding the bias of the Family Law Court. I experienced this bias twice in relation to residency & contact of my daughters (different mothers). During the first occasion, the mother spewed vile untruths about me, which were proven to be vexatious. This bias is historically engendered by the thought that mum is the nurturer and butter wouldn’t melt in her mouth.
The whole process is flawed. Mediation is a waste of time if one party isn’t willing to negotiate. Child Support is a system that financially rewards someone by withholding access to children no questions asked.
Vexatious DV claims are an easy way to gain tactical advantage during separation. Senator John Madigan and George Christensen have attempted to table these issues recently in Parliament although the Governor General is doing a good job of ignoring the issues.
Statistics tell us 21 fathers a week are committing suicide due to unfair outcomes and treatment by these agencies at the expense of future Australians (our kids).
Agreed, mediation is a waste of time, unless the aggrieved parties are willing to see a best outcome, specifically in relation to the children. Interestingly, anything said at mediation cannot be used in court. The child support system also needs overhauling. I agree there are many deadbeat fathers but equally, there are many deadbeat mothers using child support for their own gain without thought of their children.
This is exactly how it is; the sooner things change the better.
The vexatious mother knows that her word/allegations will be more or less taken a gospel; the father’s word will more likely be dismissed.
Even when the mother admits that the allegations were false the children still get awarded to the mother. There is no punishment for mothers that engage in this behaviour. It is if the CSA and the family courts reward mothers for their methods.
I wouldn’t ever believe it if I wouldn’t experience it! Not just the sexist Family Court but the whole CSA agency is right out criminal!