Mothers on Trial: The Family Court’s Harsh Double Standard

For many mothers, stepping into the Family Court is less about finding justice and more about bracing for battle. Mothers describe being brutally targeted by Independent Children’s Lawyers (ICLs) and expert report writers, subjected to harsher cross-examination than fathers — even when they have already lost custody.

Lost in the System: A Family Court Journey in Australia

“Walking into the Family Court of Australia for the first time was like stepping into a maze with no map.” From the moment of submitting an affidavit — a sworn statement detailing personal life and fears — until the final hearing, the process feels both emotionally draining and bewilderingly procedural.

The Initial Shock: Court as Intimidating Terrain

Unlike courtroom depictions on television, the real Family Court is imposing and clinical. Affidavits pile up, legal jargon dominates, and the expectation is to present your entire life story with precision. Many unrepresented parents describe feeling overwhelmed, wondering if they can even speak clearly, let alone advocate for their families.

Hearing Day: Formality Meets Emotional Strain

On court day, parents stand before a judge, sometimes speaking directly in less adversarial trial models. Cross-examination can follow — a bruising process that reminds parents they are not there to perform but to present. The emotional strain is enormous. Many describe the hearing as one of the most difficult days of their lives, balancing hope for fairness with fear of the unknown outcome.

When Children’s Voices Go Unheard

For children, the Family Court can feel like a place where everyone speaks on their behalf but almost no one listens to them directly. Their experiences and fears are filtered through layers of affidavits, reports, and legal arguments until their own words are barely visible.

Many young people describe feeling invisible in proceedings that decide where they live, who they spend time with, and whether they feel safe. Without proper support or opportunities to be genuinely heard, their sense of agency disappears, and so too does the promise that the system acts in their “best interests.”

In cases involving family violence, this silence is even more damaging. Children who try to disclose abuse often find their voices downplayed or reframed by professionals, sometimes even disbelieved altogether.

An anonymous young person told a family violence inquiry:

“I told the counsellor I didn’t feel safe, but what ended up in the report was nothing like what I said. They made it sound like I just missed my dad. That wasn’t true.”

Parents echo these concerns, saying Independent Children’s Lawyers (ICLs) and expert report writers often alter facts to fit their own agenda. Some children are even said to have had words “put in their mouths,” with their true concerns reshaped to suit a narrative that supports one parent’s case over the other.

Instead of being seen as vital witnesses to their own lives, children are too often treated as problems to be managed, their testimonies rewritten to fit the system’s expectations.

The result is a court that claims to put children first, but frequently leaves them last — caught in the crossfire of adult conflict, professional agendas, and a culture that privileges paperwork over lived experience.

Calls for Reform: A System in Need of Empathy

There have been reforms — such as family violence amendments prioritising children’s safety, and trial models designed to reduce conflict. But many families say the system remains slow, bureaucratic, and often dismissive of lived experience, especially in domestic violence cases. What was meant to heal often retraumatises.

When Mothers Are Held to a Harsher Standard

Research into family law proceedings shows that in the majority of cases involving family violence and self-represented parents, it is fathers cross-examining mothers, not the other way around. That imbalance means women are disproportionately exposed to aggressive questioning.

One mother recalled:

“By the time I stepped into the witness box, I had already lost custody. Yet the cross-examination dragged on for hours. Every detail of my parenting was ripped apart, while his time on the stand was barely half that. I left feeling like I had been put on trial — not him.”

These patterns reflect what many mothers have long felt: the system does not measure parents against the same standard.

When Violence Is Treated as a “Nuisance”

An anonymous witness to multiple proceedings told Lady News that a history of family violence is often treated as a nuisance by judges, Independent Children’s Lawyers (ICLs), and expert report writers. Instead of being taken seriously, disclosures can be reframed as obstacles — or worse, as signs of poor parenting.

In one case, a mother who brought her child to a police station after the child disclosed abuse that had occurred at the other parent’s home was accused of being a “bad mother.” Rather than being recognised as protective, her actions were used against her — a decision that ultimately shaped the outcome of the case.

At the centre of many hearings is what one witness called the “courtroom spectacular”: a performance in which one parent’s worldview dominates. Too often, it is the father’s misogynistic perspectives that are catered to, while mothers are left to defend themselves against disbelief and blame.

The bottom line is stark: patriarchal structures are not just damaging families emotionally — they are costing millions of dollars in prolonged Family Court cases.

The Hidden Public Price Tag

While families shoulder the crushing cost of lawyers, experts, and drawn-out hearings, the system itself also comes with a hefty price tag for taxpayers. In 2023–24, the Family Court and Federal Circuit Court divisions operated on a combined budget of around $125 million. With an estimated 30,000 family law cases filed each year, that equates to roughly $4,000–$5,000 in government spending per matter — before factoring in appeals, enforcement, and support services. Each case that drags on doesn’t just drain families emotionally and financially, it steadily consumes millions in public funds across judges, staff, infrastructure, and administration.

The Case for Abolition

The Family Court was designed to protect children and deliver justice in the most sensitive of disputes. Instead, it has become a place where mothers are retraumatised, family violence is sidelined, and patriarchal bias too often dictates outcomes. Efforts at reform have tinkered at the edges but left the culture intact.

The reality is this: the Family Court in its current form is beyond repair. Its structures perpetuate harm, exhaust families, and drain public resources without delivering safety or justice. For change to be real, the court as it exists today must be abolished — and replaced with a system that truly protects children, values lived experience, and treats parents with fairness and dignity.