Sunday, February 25, 2007

Residency outcomes following separation in Australia

1. Residency outcomes following separation in Australia

We seek to identify statistics which document

1. Number of incidences of separation in Australia for each year
2. Of these, (1.) the number of incidences of separation involving children
3. Of these, (2.) the percentage resolved without need to go to the Family Court system in
4. Of these, (3.) the percentage with an Equal Residency outcome.
5. Of those that go to the Family Court system in Australia, the percentage where both parents
seek Equal Residency (or more).
6. Of those that go to the Family Court system in Australia, the percentage which result in
6.1 Equal Residency 182/3 nights
6.2 Shared Residency 146-219 nights but excluding Equal Residency 182/3
6.3 Major Residency 220-255 nights for the father
6.4 Sole Residency 256+ nights for the father
6.5 Substantial Residency 110-145 nights for the father
6.6 Less Residency 0-109 nights for the father
7. Of those that go to the Family Court system in Australia, the percentage involving chronic domestic violence [and citing gender(s) of the perpetrator(s) ]
8. Of those that go to the Family Court system in Australia, the percentage involving physical or sexual abuse toward the child(ren) [and citing gender(s) of the perpetrator(s) ]

We have contacted both the Family Court of Australia and the Attorney General’s Dept. and neither has been able to provide these statistics. Considering that the Federal Government has promised better outcomes for children and fathers in the new system of Family Relationship Centres (FRCs), one would expect that such statistics would be fundamental in assessing one aspect of the success of the FRCs.

Trend away from ‘Joint Residence’ ?

Of all Family Court system cases which reach the stage of a Final Hearing and Final Orders, the frequency of handing down 'Joint Residence' had dropped from 5.1% in 1994-95 to 2.5% in 2000-01.

"Family Court of Australia, Residence and Contact orders - Any Application, For children by outcome 1994-95 to 2000-01"

Here, 'Joint Residence' includes Equal Parenting but also all other variations of Joint Residence - and it offers no precise definition for this (presumably anything greater than every second weekend contact). The frequency of handing down Equal Parenting, or Equal Residency is likely to be a small fraction of 2.5% !

We have not been able to obtain any more recent statistics.

Family Court outcomes.

In FY2002-03
number of consent applications 11,607
number of applications for Final Orders 16,695
number of parenting and other matters 1,115

Applications for Final Orders by Primary Issue FY 2002-03
Children and financial issues 12.2%
Children's issues 53.6%
Financial issues 28.5%
Procedural issues 1.0%

Survival Pattern of Applications FY 2000-01
Applications initiated 100%
Case conference / directions hearing 90%
Mediation / conciliation events 58%
Pre-hearing conference 36%
Trial preparation 21%
Trial hearing commenced 13%
Case heard to judgment 6%

"Submission of Family Court of Australia, Part B Statistical Analysis and Part C Full Court Analysis, Standing Committee on Family and Community Affairs, Inquiry Into Joint Custody Arrangements in the Event of Separation." Family Court of Australia, 16 Oct 2003

We presume the Family Court is suggesting that only 6% of all applications for Final Orders - eg approx 16,695 - went to a Final Hearing where Final Orders were handed down. That is, about 1000 cases a year go to the Final Hearing where Final Orders were handed down.

The argument that only 6% go to a Final Hearing is used frequently by opponents of Presumption of Equal Parenting Time, suggesting that these are mostly the hardcore cases involving violent and abusive men.

But this report states that "Family Violence Events" were a ‘moderate’ or ‘high importance’ factor taken into consideration in only 24.2% of Final Hearing cases.

The report concludes:

"Despite criticisms that the Court is biased towards mothers and against fathers when residence of children is an issue, that data show that parents themselves are more likely to agree that the primary carer after separation should be the mother than is the Court to order such an outcome. This suggests that the reasons for the so-called 'mother preference' is societal rather than specific to the Court - or the Family Law Act.

The frequency with which allegations of child abuse are not only alleged but are considered by judges to be relevant to children's best interests also indicate how perilous are the lives of many parents whose parenting arrangements come before the Court".

The logic of the author is flawed because they apparently have not considered such factors as:

1. fathers may surrender to unfair access terms because they are advised or otherwise know their chances of achieving a better outcome in the Family Court are minimal, and cannot justify or afford to spend more on legal fees.
2. cases that are not voluntarily agreed on are more likely to be cases where fathers want Equal Residency and so we should expect a far higher incidence of Equal Residency outcomes in the Family Court if it were not biased.

The implication of the last paragraph is that all the perpetrators of child abuse are male (because of its juxtaposition with criticism of bias against fathers). Of the cases where family violence events where of moderate or high importance (24.2% of Final Hearings) it is not specified how many involve violence or sexual abuse against the children, (and of these, what percentage was perpetrated by mothers and what percentage by fathers), and how many related to violence between the parents, and of these, perpetrated by the man, the woman or both.

Incidence of separation (marriage and de facto)

Divorces involving children
Of the total number of divorces each year, the number of divorces involving children under the age of 18 has decreased slightly from 52.4% in 1994 to 49.8% in 2004.

No. of divorces No. of children
involving children involved in these divorces.
1984 26,274 50,713
1994 25,316 47,537
1999 28,331 53,444
2000 26,295 49,612
2001 28,345 53,396
2002 26,820 50,509
2003 26,637 49,850
2004 26,289 46,260

Australian Bureau of Statistics
“Divorces, Australia” (cat. no. 3307.0.55.001)

The divorce rate obviously does not include the rate of separation of de facto couples.

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