FAMILY LAW: by John HirstNews Weekly
Divorcing dads let down again
, April 15, 2006
Men's groups are disappointed that the Government's amendments to family law don't go far enough, writes John Hirst
.In June 2003, Prime Minister John Howard declared family law was not working well because too many children were growing up without contact with their fathers. The various men's groups around the country hoped that finally they had an influential friend.
Last week, after three years of deliberations, the Government's amendments to family law quietly passed through the Senate. For some changes there was bipartisan support; to carry others the Government's new majority in the upper house had to be called on. The men's groups are disappointed, claiming the changes do not go far enough.Men's groups
Whenever men's groups demand fathers should have more time with their children after divorce, women's groups complain children will be exposed to more violence.
The Government has attempted to solve this dilemma in gender politics by declaring that there shall be two prime considerations in divorce settlements: children should have meaningful contact with both parents and children must be protected from physical and psychological harm. Where these principles conflict, the court will decide.
Meaningful contact is not to mean seeing the children every second weekend, which is the standard allowance to fathers at present. It may mean equal time where that is feasible but at least it must include a mix of weekends and weekdays so the parent can be involved in the child's regular routine and parent and child can be together for significant events in both their lives.
This seems like a great advance, but men's groups are worried because these stipulations are recommendations only: in every case the settlement has to be determined according to the best interests of the child. And who decides that? - the Family Court and the new family relationships centres created by this legislation. These are to be the first port of call when relationships break down, and which are to assist parties wherever possible to reach a settlement without recourse to the court.
Men's groups are right to be suspicious about the Family Court. The last great change to the law in 1995 was designed to involve both parents in the lives of their children, but Chief Justice Alastair Nicholson, who always resented the interference of parliament, declared that nothing had changed. The court would consider anything that parliament proffered but it would decide matters according to its own view.
Despite all the changes to the law, if the court's view remains that, in a standard case, a child is better off seeing dad only every second weekend, it can still so rule. And once that is plain, mothers who want to marginalise a child's father will refuse to be co-operative during their obligatory stint at the relationship centres, knowing their intransigence will be upheld when their case has to be resolved by the court.
I don't believe the court under its new chief Diana Bryant will be as contemptuous of a clear message from the parliament as was her predecessor. The court was itself very nearly marginalised in favour of a new family tribunal during the Government's deliberations on changing family law. If there is no substantial change, the court will come under renewed attack.
The Government is investing large sums and high expectations in the new family relationship centres. Their staff are meant to urge parents to make settlements that will provide children with equal, or at least substantial, time with both parents.
The men's groups fear the groups likely to staff the new centres will be unsympathetic to fathers. One of their spokespersons (a woman) speaks of the anti-male, lesbian element that is strong in the social-work world and which may well colonise the new centres. The composition and outlook of the centres need close attention from the Government if it does not wish to see undone its efforts to bring fathers back into children's lives.
Men's groups have been agitating for the law to remove from the court the discretion to decide cases according to its view of the best interests of the child. They want a presumption in favour of both parents having the maximum time possible with the child, unless a case can be made out against this arrangement.Joint custody
This is the so-called rebuttable presumption in favour of joint custody. Neither the Government nor the Opposition will support it. The argument against it is that it is a "one-size-fits-all" solution, which patently it is not, since the presumption in every case could be rebutted to varying degrees. It is a mechanism to force the court to a different starting point in its deliberations.
In the Senate, only Senator Steve Fielding of Family First was prepared to support it. If the Government's new measures don't make an appreciable difference, the demand will continue to be pushed.
That some men are violent to their ex-partners is accepted by all those involved in the debate about family law. That some women are vengeful towards their ex-partners is still not a truth universally acknowledged. In the Senate, the Democrats, the Greens and the Labor Party opposed the Government's plans to curb false allegations in divorce proceedings.
The Government had to use its numbers to pass measures that require claims of apprehended violence to be reasonably based and for the court to exact costs from those who knowingly make false allegations. The ordinary bloke with few resources, who finds himself falsely accused of violence or worse by his ex-wife, has the sympathy of only the Coalition parties.
There was no dispute in parliament over what may be the most profound changes in family law. The court is now free to set aside the rules of evidence and act in an inquisitorial way, where judges take charge of cases and stop them once they have a clear view of the problem on which they are to adjudicate.
If the judges rise to this opportunity, they may change their court into a brisk, no-nonsense, cheap tribunal, which is what it was originally meant to be.
- John Hirst, a historian at La Trobe University in Melbourne, is author of Quarterly Essay No.17, Kangaroo Court: Family Law in Australia and, most recently, Sense and Nonsense in Australian History (both Black Inc. Books). This article is reproduced from The Australian, April 3, 2006.