Family Law Act: too little, too late

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.