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Family Law Act: too little, too late

By Patricia Merkin - posted Tuesday, 7 December 2010

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.”

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.

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About the Author

Patricia Merkin writes on behalf of the National Coalition of Mothers Against Child Abuse.

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