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Winner takes all

By Bettina Arndt - posted Tuesday, 14 February 2023


This week a television crew from the Japanese public broadcaster came to Sydney to interview family law specialist Justin Dowd, a former President of the NSW Law Society. Japan is considering a move away from mum-custody towards "joint parental authority" – which recognizes that it's in the best interests of children to have both mum and dad remain involved in their care.

The Japanese crew came to Australia because they acknowledge this country as one of the world leaders in encouraging separated parents to share decisions about raising their kids. That achievement stems from John Howard's path-breaking 2006 reforms promoting "equal shared parental responsibility" which resulted in a major increase in care from dads, more shared care, better relations between parents, and less litigation. The result was improved children's well-being, according to UNSW research, and the reforms were a big hit with the public, "overwhelmingly supported by parents, legal professionals, and family relationship service professionals," according to research by the Australian Institute of Family Studies.

Yet Justin Dowd had to tell the Japanese crew that it's all now at risk. The Labor government has just announced draft legislation that will take Australia back to the dark ages of the winner-takes-all custody model. "The Albanese government went back to the future this week," pronounced the Australian Financial Review (AFR) spelling out the proposed laws which would end of any notion of shared parental responsibility, shifting the power in divorce battles firmly back into women's hands.

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This is huge, people. This dastardly political attack on our society will undermine the welfare of children, ramp up hostility between parents, and swell the coffers of lawyers who will benefit from the appalling fallout. Yet our media and politicians will no doubt avert their eyes to this impending catastrophe and just usher the new laws through – unless we stop them.

Back in 2007, I was approached by a retiring family court judge, keen to enlighten me on how the family court had gone astray. The problem? "The woman has had all the power, the man almost none." In the judge's view, children were missing out on vital contact with both parents due to decisions to award sole custody to the primary carer. "The custodial parent has been all-powerful. She – it's usually she – has had the power to regulate access, sometimes regardless of court orders. She's had complete authority to live anywhere, with the child, that she desires. The power to determine the child's school, church, decisions about day-to-day living, and the power to get a greater slice of the matrimonial cake. More often than not that power is exercised unreasonably."

The Howard reforms very effectively eroded that power and, ever since, feminists have worked feverishly to get it back – regardless of the cost to children. Now comes their reward for marshalling the women's vote to help Labor regain government. It's payback time… and Labor has come good by offering women the greatest prize of all – the children.

According to bright new world of Family Law being promised by the Albanese government, the following will no longer be deemed important in making decisions about children's care:

  • Ensuring children benefit from meaningful involvement with both parents.

  • Children's right to know and be cared for by both parents.

  • Children's right to spend regular time with both parents and other significant people like grandparents.

  • Parents jointly sharing duties and responsibilities for the kids' care and development.

  • Parents agreeing about future parenting of children.

All gone. All the language that provided the scaffolding that enabled children to have divorced dads remain part of their lives is being ripped out of the legislation. The AFR headline said it all: "Time's up for 'equal rights' in court custody battles."

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Family Law professor Patrick Parkinson, who advised the Howard government when the 2006 reforms were introduced, warns that dads will be "cut out" by the proposed family law changes. Parkinson has produced a detailed submission exposing the flaws in the proposed changes. (This submission will eventually be publicly available as part of an inquiry into the proposed changes but please contact me if you'd like to see it now.)

"Under the guise of simplification, it actually involves radical change and radical reversal," Parkinson says, pointing out that the government is misleading the public in claiming support from various public inquiries for this move. In fact, neither the 2019 Law Reform Commission review nor a recent parliamentary committee recommended removing the pivotal section promoting "equal shared parental responsibility," although they did suggest some changes.

Here's where Labor's Attorney General, Mark Dreyfus, really gets sneaky. He justifies removing this critical section, 61DA, by claiming the language of "equal shared" responsibility has deluded daft dads into thinking that they might just be entitled to equal time with their own kids. The AG's consultation paper spells this out, explaining that the proposed repeal of this section is "a response to substantial evidence of community misconception about the law - that is, that parenting arrangements after separation are based on a parent's entitlement to equal time, rather than an assessment of what arrangements serve the children's best interests."

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This article was first published on Bettina Arndt.



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About the Author

Bettina Arndt is a social commentator.

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