Family Law Act: too little, too late

On Monday, March 26, 2006, Senator Santoro presented the Second Reading Speech (PDF 1.83MB) on the Family Law Amendment (Shared Parental Responsibility) Bill. These amendments introduced several key features into the Family Law Act 1975 (the Act). These included continuing priority of post separation contact, compulsory out-of-court processes before filing, the rolling out of the Family Relationship Centres and strengthening of the enforcement regime dealing with breaches of court orders.

However, these key features did not address the serious child protection concerns from the experts in family law and people trained in social and legal analysis. For example, the Family Law Council reported in 2002 that, “There is no greater problem in family law today than the problems of adequately addressing child protection concerns in proceedings under the Family Law Act. Since 2002, the amendments to the Family law Act have done little to address the “this serious [child protection] problem and gap in services.”

Other articles by Barrister Patricia Merkin;

This writer fears that these proposed child protective amendments will not only be significantly watered down for political motives, but that the core elements that made the Act unresponsive to all but the most extreme cases of child abuse and family violence, will continue to expose vulnerable children in family law cases to further and ongoing harm. Further, it is contended these amendments are too little and very late.

Senator Santoro stated in the Second Reading Speech that, “More than one million Australian children have a parent living elsewhere. The children want the same things as any other children - to grow up in a safe environment with the love and support of both parents. They do not want their parents fighting in court.” This statement is interrogated to demonstrate the underlying ideology that has created the child protection crisis in family law.

First, “[m]ore than one million Australian children have a parent living elsewhere” is supposedly the impetus for continuing with the notion that when children are the persons involved in the Family Court parenting cases, their “best interests” are served by “ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child” (section 60B (1) (a)).

By implication then, the statement by Senator Santoro reveals that the government was attempting to respond to the issue of millions of fatherless children by prioritising contact between children and their fathers in the Act. This overlooks however, that only 6 per cent of all divorcing or separating couples use the Family Court, and of those, less than half involve parenting disputes. Therefore, these “millions” of children do not involve millions of children with a parent living elsewhere because of a Family Court order. The rationale that the Act “needs to ensure that children have the benefit of both of their parents having a meaningful involvement in their lives” is therefore wrong because the millions of children referred to in the Speech are not actually the children in family law litigation.

One of the foremost authorities on fatherhood in Australia Dr Michael Flood, stated that:

The most important obstacle to fathers’ parenting after separation is not the Family Court, nor selfish mothers, but many fathers’ own lack of involvement in parenting before divorce. When couples separate, most fathers have not been involved with mothers in shared parenting, and mothers continue to be the primary carers after separation.

He further stated that:

If the Government wants men to be involved parents after divorce, it should encourage them to spend more time with their children before divorce.

So then, on what basis did the Howard government formulate the amendment that prioritised contact with both parents after separation, an amendment that dates back to the 1995 reforms? Is this also the grounds for the present Coalition’s promise to fight these reforms?

Before this amendment, the common judge-made law prioritised the need to provide stability for children after separation, and that usually meant that the children remained in the primary care of the mother, unless she was unavailable or unfit. This was an approach both by the social living demands of the general Australian community in that it was recognised that mothers are the primary caregivers of children both pre and post separation. The biological demands of nature replicated across most of the human and non-human species is that females are presumably more naturally or commonly geared towards taking care of children. Yet the lobbying efforts by fathers’ rights campaigners since the early 90s insist that this was “unfair” and biased against fathers.

In analysing their lobbying success, Graycar opined correctly that “in the context of divorce law reform, men have the ears of the politicians, women and children do not”. That was the basis of the priority of contact by the Howard government reforms to the Act - and not the actual reality.

Second, the new 2010 proposed amendments do not adequately address the prioritisation of contact in the Act, because it leaves “contact” as the focus. But this prioritisation is not only contrary to the common sense that prevailed in the era of the common law interpretation of the child’s best interests, it is contrary to the most important finding of the core business that involved the types of parenting cases that ended up in the Family Court.

Credible research indicated that the core business of the Family Court was (and continues to be) child abuse and these involved child abuse that was and is “real, severe and serious”. Obviously then, the priority of contact was more a case of fitting the square peg into the proverbial round hole. This is because a priority of contact is obviously not suitable for children in cases involving “real, severe and serious” child abuse by one or the other parent.

In retaliation, father’s rights campaigners insist that the allegations of child abuse (and its inextricably linked cousin - domestic violence) are mostly rampant false assertions raised by malicious mothers. This is a fallacy still promoted today by many publically funded fathers’ rights groups, a fallacy that is soundly contradicted by the empirical research.

That the priority of contact should not be the focus of the Act is strengthened by the fact that couples must comply with pre-action procedures. By the time a case comes to the Family Court, it is supposed to have already been screened for violence or conflict and even this screening is problematic as cases of domestic violence are being discounted. Clearly, couples that have ended up in the Family Court do so because violence and/or conflict have led them there, so the best interests of children in these cases will not be best served by shared care. The fact that research indicates that most Australian mothers would prefer that non-custodial fathers have more contact (PDF 370KB) belies the father’s rights rhetoric - and most separated mothers do not end up in the Family Court.

Thus the reversal of section 60B, (1) (a) and (b) is a start. Furthermore, the denial of public funding to fathers’ rights groups that continue to promote the propaganda that has led to this child protection crisis in family law is overdue. Clearly, they seem to better represent the views of those that wish to minimise the allegations of child abuse and domestic violence rather than taking these cases as those of child abuse that is “real, severe and serious”. But parents who have not committed child abuse and domestic violence will be less likely to end up in the Family Court because of the pre-court screening processes and the lack of corroborating evidence.

Anyone who claims (as the father rights campaigners do) that a mere allegation with no evidence is all that a mother needs is spectacularly wrong or just mendacious. A guilty party cannot be expected to confess their abuse, but instead they can be expected to minimise or wish that their behaviours be ignored. Given the growing death toll of children who have been killed while in the care of a parent while under a court order, it is more than time to face this crisis and deal with it effectively. The reversal of the contact priority and the ceasing of the public funding of groups that insist that fathers are family law victims is a good place to start.

Anyone that personally attacks this writer for this proposition would appear to align with those who seek to discount domestic violence and child abuse. This also happens to be the posture of those that are more likely to be the ones who engage in the practice of the personal attack, a tactic well known to be used by the perpetrators of verbal violence, domestic or otherwise.
Source : https://www.onlineopinion.com.au/view.asp?article=11331&page=0

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