Family Law is one of the most contentious and emotional issues that governments have to deal with. Everybody feels like a loser in the Family Court. Whether it’s about property, custody, or child support, nobody comes out a winner. That’s why there are so many complaints about it, and so many inquiries into it.
The government released three reports yesterday on the effect of the changes to the Family Law Act. These changes, introduced in 2006, were designed to better enable both parents to be responsible for their children following separation. Nobody was really happy with what was happening previously. Generally, you got what was called the 80/20 rule – mothers had custody of children, and fathers had ‘access’ every second weekend and maybe half of the school holidays.
This left everybody disgruntled. Dads were encouraged to be “Disney Dads” taking kids out and buying them things when they saw them. Mothers were generally left to do all the disciplining and pick up the pieces when fathers didn’t turn up. Kids were shunted back and forth every second weekend, disrupting their social networks and sporting competitions.
Nobody liked it, and everybody wanted it changed. But not the way it happened.
The 2006 changes were called the Family Law Amendment (Shared Parental Responsibility) Act 2006. Great name, great intention. But what it did was introduce a presumption of shared custody of, rather than shared responsibility for children. It did this by including in the Family Law Act a number of clauses which specifically talk about children spending substantial time with each parent. While the government says this was never the intention, that is what is happening in many cases.
The first report on the latest changes is from the Australia Institute of Family Studies. It’s the mildest of the three, and it found that shared care (not shared custody) generally works well. Except in cases where there is violence or abuse, where the well being of children is severely compromised in shared care arrangements. Hardly surprisingly, it also found that in cases which go to the Family Court there are higher percentages of violence than in the general population, and that the Family Law system doesn’t respond very well to violence or child abuse.
It also found that the (unintended) consequences of this legislation are that it favours fathers over mothers, and parent’s rights over children’s needs. As a result, there are children in shared care arrangements where there are concerns for their safety.
The Family Law Violence Review by Richard Chisholm goes even further. It found that women are now very reluctant to raise allegations of violence or abuse in court for fear that they will lose custody if they fail to prove it. The very circumstances reported by Darcey Freeman’s mother after Darcey was murdered by her father when he threw her off the West Gate Bridge.
And then there’s the report by the Family Law Council which finds that women and children are being put at risk, and the Family Court doesn’t deal very well with violence.
Unfortunately this isn’t the first time this has happened.
Way back in December 2000, the Rhoades, Graycar & Harrison report on the first three years of the 1996 Family Law changes found exactly the same thing. Women and children were being put at risk, with children being forced to be handed over to their abusers.
I hate to say “I told you so”, but – I told you so. Many people told you so. In fact, all the evidence and all the experts told you so. The Family Court said they wouldn’t be able to administer a presumption of shared care, lawyers said there would be confusion about what it meant, domestic violence workers said women and children would be put at risk, child psychologists said it wouldn’t be good for children, research from places where it has been introduced said shared care doesn’t work where it is court ordered and there are high levels of conflict, or violence or abuse. Yet, it was introduced.
The Attorney General said yesterday we need more education, rather than any legislative change. More education? I don’t think even the Audit Office could work out how much money and time governments have spent over the years educating people about domestic violence. Yet it still happens. And courts still ignore it. And, more importantly, governments continue to listen to very vocal, very disgruntled men’s groups who deny that it is a problem and insist that women make up allegations of violence to gain an advantage in court. If you don’t believe me, just read the transcripts of the Hearings into these very changes.
Three reports Mr Attorney General. Three. All independent of each other, and all saying the same thing. These changes are not working. It’s the legislation itself putting women and children at risk, not lack of understanding about it.
One child has already died as a direct result of this legislation. How many more have to do so before you agree to change it?
Excellent article. Its so frustrating when a noisy minority makes things worse for everyone. Children are so vulnerable they need every protection we can give them as a society.
The Senate Committee hearings into these changes was warned quite clearly about all these risks.
There was a minority report by the Democrats and the Greens at the time which reads like a script for the Chisolm report as a result.
http://www.aph.gov.au/Senate/committee/legcon_ctte/completed_inquiries/2004-07/family_law/report/d02.htm
Yes, its yet another case of “I told you so” – what is frustrating is that I don’t expect we’ll see the necessary changes any time soon…
There is also the issue of the triple whammy brought about by changes happening at the same time to the single parent pension under Welfare to Work, and changes to the child support formula.
There is still a disconnect between the assumption of equal shared care under family law and income support provisions that only allow Centrelink to consider one person as the primary carer for a child.
As a result its usually single mothers and their kids that are worse off…
Another feminist diatribe. Are there any men in the Sole Parent Union? Marital breakdown is a difficult subject and for decades men got the short end of the stick. I am in no way defending violence by either party in a breakdown in a marital relationship. Isn’t custody shared responsibility, or have I missed the point somewhere? In any judicial situation allegations of abuse need to be substantiated or they are inadmissible. Unfortunately this means that many crimes a difficult to prove as a consequence of no witnesses.
However the corollary of the case is that if there is no onus of proof then unsubstantiated accusations can be made and a presumption of guilt will exist unless innocence can be proved which is equally difficult. Unless children are at risk, equal time with both parents seems to me to be a reasonable proposition. Similarly equal contribution towards upbringing of children should be the objective as with shared parenting both parents should be able to work.
In relation to “vocal men’s groups”, these are outnumbered by significant numbers of vocal women’s groups with agendas substantially biased against men. Posturing on either side does not solve problems.
If either parent is abusing children, then by all means restrict access, but the simplistic feminist mantra that all men are aggressive bullies and consequently men should have no custody should be rejected and each case evaluated on its merits.
Raising the Darcy Freeman case is a massive red herring. The Family Court had no reason to suspect that either parent would place the children at risk. Furthermore had Mrs Freeman thrown a child off the bridge, would the feminists be advocating custody of children by their fathers because of the possible risk of them being harmed by their mothers? I think not.
There are no parental rights; only parental responsibilities. The best interests of the child must always be the paramount consideration in each case. There should be no presumptions in the legislation. Time spent with a child does not equate to and should not be confused with exercise of parental responsibility. Past or present physical or emotional abuse by a parent often indicates a poor ability to exercise responsibility by that parent in the future, and will almost always adversly affect relationships and the ability to make parenting decisions cooperatively. Yes there are difficulties in proving alegations of past violence and abuse. More resources are needed in disputed cases to enable independent expert evidence to be obtained and presented. And, no, I have not yet read the recently released reports.
Onya Greg A. Swinbourne is exactly the kind of political feminist you’d expect to find at a lobbying outfit like SPU. The truth is it’s the corrosive acrimony of the gender war at the heart of totalitarian State control systems. DOCS and Human Services, which effectively make the (Childrens) courts, at State level particularly, a complete sham.
I well remember my idealistic young counsel emerging ashen-faced from a courtroom toilet in which he had just thrown up. This was in the days of true Legal Aid when cases might last up to 3 weeks. The opposing (Departmental) barrister had just jeered at him for conducting a spirited defence when “we all know what the outcome is, stop wasting your time”.
The chilling despotism of these Departments is perhaps historical feminism’s greatest victory.