FAMILY LAW: by John HirstNews Weekly
Dads bear the burden of proof
, August 28, 2004
I have just been through the Family Court. I was not a principal in the case; I was appointed by the court to supervise my friend Steve when he saw his children. His wife claimed he was a danger to them. My job was to watch him closely and to end the access and remove the children if danger loomed.
The visits lasted two hours on a Saturday morning and took place at an outer suburban McDonald's. The fast food restaurants are a Family Court favourite for the meeting and swapping over of children.
I got to know Steve when he was my student. I learned of the crisis in his life, as I learn of many others that threaten students' studies. Without notice, his wife had left him and taken their two boys. She and the boys could not be found. Steve missed the boys terribly and was desperate to know that they were safe and to see them again. I have tissues on hand in my office for tearful students. Steve was the first male student to use them.Poverty
Steve is a mature-age student surviving on the student benefit, Austudy, and casual work. His wife cleared out all their savings from a joint account when she left. His poverty had this one advantage - he was eligible for legal aid.
He entered the Family Court to seek an order requiring social security to reveal the whereabouts of his wife. The address was finally provided, but not to him - to his lawyer. The wife proved elusive. She changed addresses and when tracked down refused to open the door to receive an order requiring her to attend court. Legal argument then ensued on whether the order had been properly served. By then six months had passed since she had left. Though she was evading the court, the Commonwealth continued to pay her benefits.
A judge finally ruled that notice had been served and in the wife's absence awarded Steve access to his children. The judge first asked whether the wife had taken out any apprehended violence order against her husband and was told no.
I went with Steve to collect his children for his first access visit, of which his wife had been given notice. No one was at home. Next day Steve learned from his lawyer that his wife had entered the legal arena with a claim that he was violent towards her and a danger to their children.
Steve swore to me that these accusations were false. He conceded that they had had heated arguments and that he had been angry, but never violent. He had never endangered their children. He had been closely involved in their care.
Steve could contest these claims in court, but that would take time. Or he could have very limited access immediately, under supervision, and accept the demands that his wife, through her lawyer, imposed on him. These were that he be psychiatrically assessed, that he take a course in anger management and that he be regularly tested for drug use (he had been using marijuana, but had stopped). He still had not seen his boys. He would submit to anything to see them.
The process of his testing would be overseen by the Child Advocate, who would arrange as the final test for Steve and his boys to play together under the eye of a child psychologist.
Within a half-hour of our first visit at McDonald's, I knew the answer that all these inquiries would bring. Steve played exuberantly and imaginatively with his boys, who were plainly delighted to be with him. He wiped noses, changed nappies and settled disputes with a practised hand.
Steve bore his official inquisition fairly well and only occasionally fell into despair or a quiet anger. What is more likely to make a loving father angry than to be told that you must undertake an anger management course before you can see your children! How well he knows the law's delay - we were four months into our Saturday routine at McDonald's, two hours only with his boys. Steve found parting from them hard and hardest when his older boy asked why he couldn't go to his dad's house.Good father
The psychiatrist found Steve sound and said he should see his children - for which he was rebuked by the Child Advocate for exceeding his brief. The anger counsellor reported positively. The drug tests were clean. After seeing Steve play with his children, the child psychologist concluded he was a good father.
So the court finally awarded him the standard access - every other weekend. Nothing was said to the wife about her lies. Steve was simply meant to be pleased at getting this outcome, which he had been awarded six months before and which his wife's accusations had then taken from him.
I hope the new compulsory counselling the Government plans for separating couples will bring an improvement. Perhaps, face to face and without lawyers, husbands and wives won't tell outrageous lies about each other.
But if a wife chooses to make accusations of violence against her husband, the counsellors will no doubt do what the court presently does - treat the father as a pariah to ensure the safety of the children. No citizen should have this power over another. The Family Court would work better if it acted as a proper court, in which wives who were reckless with charges of violence faced perjury charges.
- John Hirst is a historian at La Trobe University in Melbourne. This article is an edited version of one which originally appeared in The Australian (August 6, 2004). To protect the identity of the author's friend, Steve's name has been changed.