At first, I presumed, like many others, that the government’s recently announced inquiry into the family law system was an exercise in pure politics – a sop to Senator Pauline Hanson and her constituency of angry white men. Nothing would come of it, as nothing has come from the two big inquiries that preceded it. Another report to languish in a drawer.
But on close reading of those two inquiries – one from the House of Representatives, the other from the Australian Law Reform Commission – I see I was wrong. This new inquiry is not just cynical horse-trading. It is, I believe, a deliberate move by the government to bury the findings of the two inquiries it commissioned.
Both inquiries recommended sweeping changes that would put children’s safety – instead of parents’ rights – back at the centre of our family law system.
One reform, recommended by both inquiries, is so incendiary it’s provoked warnings of reigniting “the gender wars”. It is that the presumption of equal shared parental responsibility – and the mandate for judges to consider the option of shared care – should be abolished, because the evidence shows it is putting children at risk.
Shared parenting is the jewel in the fathers’ rights movement’s crown. After decades of aggressive lobbying on it, they got much of what they wanted from the Howard government in 2006. To remove the presumption of shared parental responsibility from the Family Law Actwould not only undo gains made by the fathers’ rights movement since the 1990s, but also those of the Coalition’s own culture warriors.
How did we get here?
Until the mid-1990s, children’s safety and wellbeing was central to custody decisions. Judges were cautious about ordering children into supervised contact with a father who had been abusive, noting the risk of psychological trauma, and would even refuse access if contact between the mother and the abusive father was likely to diminish her capacity to parent. Overall, the family law system was guided by research that evidenced the importance of stable relationships between children and their primary caregivers.
But that cautious culture began to change when new research, now contested, highlighted the benefits of a sustained relationship with both parents, and linked negative outcomes to absent fathers. As law reform commissioner Prof Helen Rhoades wrote, fathers’ rights groups used this research to lobby for laws mandating equal shared parenting, “arguing that failure to provide them with contact is child abuse”.
In 1995, after sustained lobbying from fathers’ rights groups, this shift towards a “pro-contact” culture was written into the Act by the Keating government. The reformed Act stated that parents share responsibility for the care and welfare of their children, and children have a right to ongoing contact with both parents. This wasn’t meant to apply carte blanche – it was to be balanced by the court’s requirement to ensure children’s safety from family violence.
Over the following decade, however, multiple studies identified a terrible trend: the rights of children to be safe from violence were slipping beneath the principle of the “right to ongoing contact”.
Despite clear evidence of this disturbing trend, another campaign by fathers’ rights groups moved the Howard government to further amend the Act in 2006. The Shared Parental Responsibility Act introduced changes designed to make it easier for fathers to be granted access to or custody of their children. These included the new “friendly parent” provision, which required parents to support their child’s relationship with the other parent. “Unfriendly” parents – especially victims of domestic abuse – were routinely warned by their lawyers that presenting allegations of abuse would damage their case or risk them losing access to their children altogether.
Across the family law system, the pro-contact culture was mutating. Denying contact between a father and his child was being identified as an unacceptable risk of harm – even greater than the risk of maintaining contact with a father who had abused his children. In Murphy v Murphy (2007) Justice Carmody wrote:
The consequences of denying contact between the abusive parent, usually the father, and the child, may well be as serious as the risk of harm from abuse. Thus, in D’Agostino a father who was convicted of sexually interfering with his 11-year-old daughter was not denied contact either with her or her two younger sisters, but was allowed contact on condition that all three children were together at the same time and another adult was also present.
This emphasis on pro-contact became, according to Rhoades, “the new orthodoxy” in family law. Culturally, across the family law system, father absence was being constructed “as a greater social problem than domestic violence”. Statistics bear this out: despite allegations of family violence featuring in more than half of cases, only 3% of fathers are denied access to their children. Three per cent.
It wasn’t just the courts that came to see mothers as the problem: a national survey from 2017 found 43% of Australians agree that mothers “often make up or exaggerate claims of domestic abuse in order to improve their case”. The “accepted wisdom” that false allegations were commonplace became a weapon for lawyers acting for alleged perpetrators. As soon as a mother (or child) alleged abuse, they could counter-allege “parental alienation syndrome”, a now discredited term that denotes children’s abuse allegations and fears are commonly coached into them by vexatious or delusional mothers. The cure, according to the child psychiatrist who invented the concept, was to switch custody to the father, and suspend contact entirely with the mother for a period of weeks or months.
The widely used concept of parental alienation (which, after being exposed as junk science, is still alluded to under synonyms like “brainwashing”, “projection of anxieties” and “enmeshment”) has led to some extreme outcomes in the family courts. One case I examined closely in my book on domestic abusewas that of Sandra*, who raised disclosures of sexual abuse made by her two young children.
Despite her youngest, Sally*, repeating the disclosures to police, child protection services and a counsellor, and despite child protection finding that the father was a risk of sexual harm to one or both children, the family court judge in her case agreed with the family report writer’s analysis that the allegations likely stemmed from the “anxiety of the mother”.
In a secret hearing, the judge ordered that custody be switched to the father, despite the kids having only ever had limited contact with him. Sandra was prohibited from seeing or even speaking to her children for two weeks. Following that, she could only see her children a couple of hours every fortnight, monitored by a supervisor at $65 an hour. Aside from her allegations, the family report writer found no other problems with Sandra’s parenting.
In the majority of cases featuring allegations of family violence or child abuse, however, orders weren’t made for a switch in custody. The vast majority did, however, end up with orders for equal shared parental responsibility – up to 79%.
Allegations of family violence dismissed
So why wasn’t the child’s right to be safe overriding the presumption of shared parental responsibility? Because, according to criminologist Dr Samantha Jeffries, from the school of Criminology and Criminal Justice at Griffith University, allegations of family violence were simply being minimised or dismissed by the courts. In focus groups with lawyers and social workers, Jeffries was told time and again that this was because domestic violence does not fit into the pro-contact ideology of the court.
“Participants said the parent-child relationship has to be maintained at all costs,” she says. “So you need to make the domestic violence go. You need to invalidate it, otherwise, how can you possibly legitimise an ongoing relationship with a perpetrator of domestic violence?” The quickest way to make the violence disappear, said Jeffries, was to discredit the mother. “She’s dishonest, she’s exaggerating, she’s hysterical – she’s the one with the issues.”
In the 2010 report No Way To Live, mothers described the reality of being court-ordered to co-parent with an abuser. Said one, “It’s very distressing some of the things they come home and say. ‘My daddy said he’s going to run over you’ or ‘My daddy wants me to go to karate so I can bash you’.”
In one case, the father had sexually abused the children during a court-ordered contact visit, and yet was still granted supervised access. The mother, forced to relocate to enable the supervised contact, was told by the court-appointed expert in her case that an ongoing relationship with their father was necessary for the children, because they “needed to have positive experiences to forget the rest”.
By 2011, it was clear that the family law system was not protecting children. This moved then attorney general Robert McClelland to fight for another set of changes to the Family Law Act. In 2012, McClelland’s reforms removed Howard’s “friendly parent” provision, expanded the definition of domestic violence, and gave greater weight to the child’s right to safety over the benefit of a relationship with both parents.
But despite these changes, the family law system continued to prioritise the right to contact over the right to safety. As one evaluation showed, perpetrators of domestic violence were continuing to achieve “significant and substantial unsupervised time with their children”. In cases involving allegations of family violence or child abuse, shared parental responsibility was still the result in up to 83% of cases (and 40% of cases that went before a judge).
Putting children at centre of law
The 2017 House of Representatives inquiry into family law, chaired by then Liberal MP (now Senator) Sarah Henderson, recommended that the Australian Law Reform Commission consider removing the presumption of equal shared parental responsibility from the Family Law Act, because it appeared to be “leading to unjust outcomes and compromising the safety of children”. It also recommended that allegations of family violence be determined earlier in legal proceedings, to deliver justice not only to those impacted by family violence, but also to those falsely accused.
Following 179 consultations across Australia, and over 1,200 written submissions, the ALRC agreed that the presumption of “equal shared parental responsibility” should be replaced with “joint decision making about major long-term issues”. It also recommended abolishing the section requiring the courts to consider equal, substantial or significant time with each parent.
Viewed together, the two reports outline out a radical plan to put children’s safety back at the heart of family law. This is urgent work. We need a revolution in the family law system that is both cultural and structural. It needs to change the court’s position from pro-contact – an orthodoxy that has led to women and children being routinely disbelieved – to pro-children.
This new inquiry is not about giving everyone a say. Few women will feel comfortable airing their most traumatic and humiliating stories before a politician who has already pre-judged them as liars. This is about boosting the grievances of a certain group of men – some dedicated fathers who have been wronged, and others excluded from their children’s lives because they are dangerous. In an inquiry like this, there will be no way to tell the difference between the two.
If this new inquiry further entrenches the dangerous pro-contact culture of the family law system, one thing is clear: it will make it an even more dangerous institution for children.
*Names have been changed
Source : https://www.theguardian.com/law/2019/oct/03/family-law-inquiry-is-no-sop-to-hanson-its-a-deliberate-move-to-bury-previous-reviews?CMP=share_btn_fb