Chaos at the Crossroads: Family Law Reform in Australia

Despite architect Lionel Murphy's vision of a "helping" court when he brought no-fault divorce to Australia in 1975. co-operative parenting after divorce was rarely encouraged.

Almost from the minute the Family Court opened its doors it became a law unto itself, imposing sole mother custody on separating families despite the harm it caused. Reforms meant to promote shared parenting in 1995 actually saw the small percentage of such orders drop. Historically, the Family Court denied fathers contact with their children on the flimsiest of excuses or most ludicrous of accusations. Overly legalistic, enormously bureaucratic, secretive, unaccountable and ideologically based, defying community norms of morality and propriety, it soon became one of the country's most hated institutions.

The book relies on many sources already available in the public domain to trace the antecedents of the Howard government's 2003 parliamentary inquiry and the story of what has happened since. Despite the deliberate blizzard of women's and domestic violence groups stacking the inquiry, the public hearings around the nation exposed for anyone who cared to look the massive dysfunction of Australia's family law and child support systems and the distress they created in the community.

It also exposed the divide between the taxpayer-funded mandarins and the general populace. The industry continued to blindly insist their only concern was the best interests of the child. It was little short of a lie.

The 2003 inquiry was given added piquancy by virtue of being held during the final days of that aging lion of the left Chief Justice Alastair Nicholson. He had dominated family law in Australia for more than half of the Court's life and took every opportunity he could to attack the Howard government for its investigation of shared parenting.

The original 2003 announcement from the Prime Minister that the government would examine the idea of a rebuttable presumption of joint custody provoked a wave of positive media coverage and community support. However the parliamentary inquiry's final report, the poorly written, intellectually sloppy and ridiculously named Every Picture Tells A Story, caused many problems. It was condemned by family law reformers as a betrayal of the nation's more than one million children of separated parents and of the sometimes tearful parents who had appeared before the inquiry. DOTA described the report as just like a Family Court judgement, it bore no relationship to the evidence and no relationship to reality.

The Howard government dithered for years over the issue of family law reform, destroying the public momentum for change. Embarrassed by accusations it was influenced by men's groups, it would not be until 2006, after yet more committees and calls for submissions, that the Howard government finally passed what DOTA condemned as sadly inadequate laws promoting shared parental responsibility.

Unconvinced the legislation would make any difference in practice, DOTA declared with characteristic chutzpah the fight lost: "The liars, the lawyers, the bureaucrats and the social engineers have won the day."

Not withstanding DOTA's stance, the lengthy public debate engendered a cultural shift. After 2006 many separating parents expected to share the care of the children. But the court itself was largely hostile towards shared parenting and impatient of parliamentary interference.

Just as with the name Dads On The Air, the title Chaos at the Crossroads popped into my mind one day and stayed. An early draft went up online in 2004. Come 2010 and the title could hardly be more appropriate. The narrowly returned Labor government had neither the guts nor the integrity to mention family law during the campaign leading up to the August election. Fearful of losing votes, they did not acknowledge they were winding back the popular shared parenting laws. The rollback came under the guise of protecting women and children from violence. The government ignored the findings of the Australian Institute of Families Studies that there was no evidence shared parenting resulted in higher levels of conflict and that the new laws were widely supported.

The government's expansion of the definition of domestic violence in the proposed Family Violence Bill was cheered on by shared parenting's greatest opponents former Chief Justice Alastair Nicholson and Justice Richard Chisholm.

After more than 20 years of ferment, community agitation, government inquiry, thousands of submissions and countless stories of suffering and distress, there now appears less hope than ever for separated dads. As the government fuels moral panic over domestic violence, family law is heading straight back from whence it came, to those dark days when too many fathers entering the court never or rarely ever saw their children again.