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November 17, 2013 by Robert Franklin, Esq.

Occasionally we run across a jewel like this (Sydney Morning Herald, 7/6/13). A family court judge in Parramatta, Australia is about to retire and he took the opportunity to inform the public of just what is going on in child custody cases there. Justice David Collier did not mince words.

Allegations of child sexual abuse are being increasingly invented by mothers to stop fathers from seeing their children, says a retiring Family Court judge.

Justice David Collier, retiring from Parramatta Family Court at the end of the month after 14 years on the bench, sees unprecedented hostility infiltrating the Family Court, and a willingness by parents to use their children to damage one another.

''If a husband and wife really get down to it in this day and age, dirt flies,'' Justice Collier said.

The worst are those mothers who direct false allegations of abuse against former partners.

''When you have heard the evidence, you realise that this is a person who's so determined to win that he or she will say anything. I'm satisfied that a number of people who have appeared before me have known that it is one of the ways of completely shutting husbands out of the child's life.

''It's a horrible weapon.''

Collier is under no allusions about who it is who’s levelling the false allegations. He’s careful to say that it’s “husbands” who are targeted for “shutting out of the child’s life.” The Sydney Morning Herald writer, Harriet Alexander, picked up on that in her lead paragraph saying false allegations of sexual abuse are being “invented by mothers to stop fathers from seeing their children.” In other words, both speaker and writer have dispensed with the phony gender-neutral language that would have us believe either that we don’t know who’s making the false allegations or that there’s rough parity between the sexes.

There’s not, and thanks to both Collier and Alexander for not pretending there is.

Into the bargain, look at the unspoken assumptions.

Such cases are fraught for Family Court judges. Once an allegation has been made it is impossible to ignore. The court must deem whether there is an ''unacceptable risk'' of abuse occurring in the father's care.

Yep. In family courts, there’s not a hint that a mother might abuse a child even though mothers are on the order of twice as likely to abuse or neglect a child in their care than are fathers.

Then there’s this from Collier:

Sometimes the allegations are obviously fabricated, other times they are probably true.

''It's that grey area in the middle that you lose sleep over at night, and you do lose sleep,'' Justice Collier said.

''They're difficult to disprove. The allegation lingers there.''

Difficult to disprove? I don’t know if Australian law requires a father to disprove a mere allegation, but whether it does or whether it’s just Collier’s Freudian slip, the fact remains – fathers who are accused of abuse must find a way to prove a negative, i.e. that they didn’t do it. As the judge points out, that’s not easy to do. Often it’s impossible.

And then along came “balance.” Alexander obviously didn’t feel she could let such words stand naked for all to see, so she went in search of a fig leaf.

Barrister Esther Lawson, who sits on the family law committee at the NSW Bar Association, said anecdotally there appeared to be an increase in allegations of sexual abuse coming before the court, but the reasons were unclear.

It’s a really small fig leaf. For one thing, in the United States at least, the increase in claims of abuse is anything but anecdotal and the reasons have long been known, a fact Alexander eventually gets around to hinting at.

Back in the late 1990s, the State of Oregon changed its statute on child custody. The express purpose of the change was to get away from sole-parenting custody orders and move toward shared parenting. That’s what the legislature said it wanted the effect of the law to be, but mothers and judges had other ideas. When researchers Margaret Brinig and Douglas Allen studied the state of custody orders in Oregon before and after the legislative changes, they found that there was essentially no change in the rate of sole-custody awarded, although fathers were slightly more often the ones given sole custody.

The prime reason for that non-change was what the researchers termed a “spike” in claims of abuse. Claims by both mothers and fathers went up, but those by mothers went through the roof. Interestingly, Brinig and Allen strongly suggested that fathers’ claims that mothers were abusive or engaged in domestic violence were required to meet a higher standard of evidence than were claims by mothers against fathers.

The unsurprising result of all that was not much different from the status quo ante. Judges’ pro-mother bias and mothers’ willingness to use it to their benefit thwarted the clearly-stated desires of the state legislature.

But why would mothers all of a sudden start making drastically more claims of abuse just because the law had changed? The answer seems obvious. The legislature passed a law that sought to cut down on maternal custody, so mothers fought back using the most obvious weapon left them – claims of abuse. Judges were happy to oblige and didn’t look too closely at those claims. Fathers, knowing about the change in the law and thinking it actually meant what it said, increased their demands for custody, which likewise triggered mothers’ claims of abuse.

That’s what happened in the U.S., and I don’t doubt for an instant that something similar happened in the Land Down Under. After all, just four years ago, the Howard government enacted a statute that most people thought should give fathers greater rights of access to - and custody of - their children. They accordingly went to court to try to assert some of those rights and – lo and behold! – mothers started on exactly the campaign of false claims of abuse Justice Collier bemoans.

Collier suggests that precisely that happened.

He puts much of the venom down to a generation of people more assertive of their rights, and now entering relationships.

Those “people” who are “more assertive of their rights” are almost certainly dads. After all, how much more assertive of custodial rights can mothers in Australia be? They’re already 90% of custodial parents, so it’s a little hard to see how they could actually be demanding more. No, what it looks like from here is that, for a wide variety of reasons, it’s fathers who are demanding real equality in family courts. Predictably, that’s resulted in a backlash by mothers who, as we see time and again, tend to see the children as “theirs,” and stoop to pretty much any depth to maintain their control over them.

In some ways of course, little of this is new. In the U.S. family lawyers have complained for years about the use of false claims of abuse just to gain an advantage in custody disputes. If lawyers know that’s going on, surely judges do too. So Justice Collier’s “revelations” may be old hat.

On the other hand, he’s seeing dramatically increased numbers of these false claims and that is new. My guess is it’ll continue. For certain, fathers aren’t going to suddenly accept their sad lot, hang their heads and go home. No, the movement for fathers and children is only expanding and will continue to do so. That means more assertion of rights by fathers. And when that happens, mothers cry “abuse!” It’s predictable as the sunrise.

What remains to be seen is how politicians and judges like Collier deal with the problem. The ways are many and obvious despite the fact that courts, legislatures, etc. resolutely refuse to utilize them. One primary way would be to punish those who falsely claim abuse. Once courts start doing that, we’ll see the use of that particular tactic drop off sharply. If that happens, we’ll see greater parity in custody cases.

Another obvious approach would be to pass laws mandating the rebuttable presumption of equal custody. Significant research shows that shared parenting laws tend to reduce conflict between the parents and conflict of course is what false claims are all about.

Yet another helpful step would be to train judges to understand that, in most cases, a child’s best interests are best served by maintaining a meaningful relationship with both parents post-divorce. We can’t expect judges to make sensible custody orders if they don’t know the sociology on family structure and child well-being.

And of course the communications media could start calling radical feminists on their many patently false claims about men, women and abuse. Those feminists are happy to pretend that only men abuse and only women are abused. That patent nonsense should have been laughed out of public discourse decades ago, but a quiescent press and spineless political class cower in fear that a feminist might call them nasty names.

Justice Collier at least is not so fearful. To his credit, he’s said what’s true and what is in fact commonly understood. There can’t be too many like him.

Thanks to Kevin for the heads-up.

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