“There’s no doubt injustice has been done to men. The classic situation is the good father who sees his children every day and then Bang! The couple separates, the court gives him every second weekend. To have a dear little child that you love and suddenly your contact to him is so restricted. It’s a basic cause for the anger so many men feel about the Family Court.”
The speaker is not one of the disgruntled litigants so blithely dismissed by our former chief justice, Alastair Nicholson. This is retiring Family Court judge Geoffrey Walsh, who wrote to me nine years ago, contemplating the mistaken direction taken by his court. He summed up the error as follows – “the woman has had all the power, the man almost none.” A mother with custody, he explained, was allowed to regulate access, live anywhere she liked, make decisions about day-to-day living and get a greater slice of the matrimonial cake. “More often than not that power is exercised unreasonably,” he observed.
In the past nine years little has changed. The injustice continues. It is good to have our complacency about this appalling state of affair shaken by John Hirst’s indignation. As an outsider, he investigates the Court and is blown away by discovering example after example of breathtaking disregard of men’s basic rights. He finds a court where vile accusations are made against men with impunity, where perjury has no consequences. A court where men have to pay and pay to try persuade the Court to enforce its own orders. A court which even allows a woman to rename her child if it suits her.
He rightly thunders over the sheer stupidity of a system that allows lawyers to score points by fighting over where children will live. “Settling disputes between parents over the care of children in an adversarial way is madness.” It is good to be reminded of the lunacy of it all.
But the solutions aren’t so easy. I have long been a vocal supporter of a rebut-table presumption of joint custody. But the argument that gives me pause is the risk that this could lead to more litigation – that even more couples would end up in court if joint custody was the starting point. Any solution that prompts even more couples to fight in court over their children has to be avoided.
A very strong argument can be made that more parents will end up sharing parenting more equitably after divorce if they can be forced to listen to their own children, or taught to understand their needs. All the research shows very clearly that most children express a clear desire to be with both parents – which does not necessarily mean split time but flexible arrangements built around the children’s needs rather than parental desires. When children’s views are properly heard, many parents do approach things more sensibly. That’s the essence of the approach the government is now backing, with the network of sixty-five new Family Relationship Centres, aimed at helping parents work out arrangements that are in their children’s interests. These centres would be based around child-focused mediation devoted to determining what children need in terms of care, which is very different from the classic mediation that involves a negotiator simply helping battle out agreements.
Hirst is wrong to dismiss this as nothing new. The proposed mediation is different from what used to be offered by the Family Court, which was rarely child-focused and often distinctly biased against men. The approach being proposed is one that has already been shown to be effective, even with some of the most difficult cases that have spent years in and out of court. Apart from the child-focused mediation, high-conflict parents would be referred to a child-inclusive program, involving experts working intensively with the entire family, which is custom-made for the more troubled families that presently end up in court.
We know this works. For some years now, the Family Court has been referring some of their most difficult cases to such programs and finding parents do actually shift ground. We’re not usually talking about huge changes but certainly less of a war zone, with parents far from friends but at least capable of reaching some arrangement with each other. And what’s just as important, the mediation provides somewhere parents can go back to if arrangements become unstuck and they need further help. There’s solid American research showing good quality mediation does result in fathers having more active and flexible long-term involvement in their children’s lives, a far better result than was achieved through court battles.
But Hirst is quite right in warning that people should not be allowed to use allegations of violence or abuse to avoid this more civilised and effective approach. While it is often claimed this mediation is inappropriate in cases where there has been violence, the centres like Unifam which have been using child-centred mediation with cases referred from the Court are well used to handling people where AVOs have been issued, often on both sides, and still achieve successful outcomes. What is needed in these cases is that after proper investigation the Family Court should determine whether the abuse or violence actually took place, impose real penalties where there have been false allegations, and then refer such cases back to these special mediation programs. Court orders do nothing to help these troubled families find a way to parent effectively after divorce – but these programs can help, even when violence or abuse has occurred.
It was also pleasing to see Hirst shoot holes in so-called research claiming only 9 per cent of allegations of abuse were false. The issue of false allegations regarding abuse and violence has received attention from numerous inquiries into the Court, all of which have concluded this is a very real problem. A woman claiming abuse or violence often gains a significant advantage in denying her partner contact with the children. It is most unfortunate there has been no response to recommendations made to dealing with this very serious issue which brings the Court into such disrepute.
But Hirst struggles in dealing with the complexities of the child-support system. He mentions that men on low incomes cannot afford to live decently and make a substantial contribution to his former household. “Either the government has to discourage divorce or bear more of its costs,” he suggests.
Well, the government is certainly working on discouraging divorce, which is why the new relationship centres are planned to include all sorts of counselling and referral services to try to shore up shaky marriages. And the government is already paying mightily for the costs of divorce. A staggering 40 per cent of payers are liable for only a token $5.00 a week payment due to their low incomes. According to the 2003 parliamentary committee report, Every Picture Tells a Story, the annual cost to the government of supporting separated families is over $2.7 billion a year. Most of the low-income families simply can’t afford the costs of running two households and it is the government which is paying the bill.
At present a government committee is in the process of investigating the current child-support formula, aiming to recommend changes based on the actual costs of children, and taking into account factors such as the costs of contact which were not properly acknowledged in the previous formula. The recommendations from that technical committee, which comprises most of the key players with expertise in the area, will address some of the glaring faults in the current system. For instance, currently there is a reduction in child support when children spend more than 109 nights with the contact parent. This creates a cliff effect with fathers being restricted to fortnightly access so mothers won’t lose money. Breaking this nexus is critical to encouraging more shared parenting.
John Hirst is right to applaud some of the changes taking place in the Family Court – notably the new inquisitorial approach currently being piloted. And the new Chief Justice certainly is a breath of fresh air. But there have always been some judges free of the anti-male bias that afflicts many of their colleagues, judges who do play it straight down the line. Some show real determination to shake up the Court’s appalling record on enforcement of contact orders by imposing real penalties for breaches – a very welcome change. Yet this still means a visit to Court is a lottery, with men rarely the winners. That’s why other solutions must be found. Let’s leave the Family Court to the kangaroos … and seek answers elsewhere.
This is a reply to John Hirsts Quarterly Essay, 'Kangaroo Court': Family law in Australia. To read the full essay, login, subscribe, or buy the book.
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