This article does not acknowledge that many children are abandoned and unacknowledged by the men who helped create them, but argues in the context that much fatherlessness will be eliminated if 'shared parenting' orders are made. It should be noted, that contact with children can not and is not enforced. We do need to increase the proportion of children growing up with responsible and committed fathers -but this process should also include addressing male attitude to their sexual and reproductive responsibilities.
Fatherlessness and the Family Law Reform Fiasco
Warwick Marsh Fatherhood Foundation
The promised Family Law Reform by the Federal Government could be another case of re-arranging the deck chairs on the Titanic, instead of plugging the leak to stop the ship going down. Many of the reform proposals, such as the Family Relationship Centres, are well intentioned, but unless they solve the fundamental problem they really become another layer of bureaucracy to waste taxpayer's money.
In June 2003 the Prime Minister called for an enquiry into the need for a 'presumption of shared parenting'. In late 2003, the House of Representative's Standing Committee on Family and Community Affairs sidestepped the Prime Minister's original request, and came up with a nebulous concept of 'shared parental responsibility' and the need to direct divorcing couples away from the Family Law Court via an early intervention programme. In the latter matter, directing divorcing couples away from expensive, often fruitless and heartbreaking litigation procedures within the Family Law Court, the Committee's report was one hundred percent correct.
Fatherlessness has been shown to increase the likelihood of increased poverty, increased crime, increased incarceration in a prison, increased likelihood of violent sex crimes against women, increased drug abuse, lower educational performance, increased susceptibility to mental health problems, increased risk of suicide and increased likelihood of child sexual abuse. If Australia can increase the proportion of children growing up with involved, responsible and committed fathers, we can begin to solve the problem of fatherlessness in Australia.
Dr Bruce Robinson has estimated that fatherlessness costs Australia 13 billion dollars per year. In the context of fatherlessness, reform of the Family Law Court is only 25% of the problem. However if parliament were to introduce a presumption of equal parenting time, this simple act would be the easiest way to reduce fatherlessness in Australia. Divorce will always produce a certain amount of fatherlessness and motherlessness which ever way the sums are done. The key is to find a way to ensure equality for divorcing couples, justice for children and reduce divorce at the same time.
The proposed 2005 child custody changes in the Family Law Reform package do nothing more than recycle the ignored 1995 changes. "The Family Court got it wrong!" was the plain message by Minister Peter Duncan, as he moved the Keating government's 1995 amendments. In response to the Family Court's refusal to comply with the intent of the original legislation, Minister Duncan stated that:"The original intention of the late Senator Murphy was that the Family Law Act would create a rebuttable presumption of shared parenting, but over the years the Family Court has chosen to ignore that. It is hoped that these reforms will now call for much closer attention to this presumption and that the Family Court will give full and proper effect to the intention of Parliament."(Duncan P. Consideration of Senate Message, House of Reps Hansard 21 November, 1995, pp 3303)
Strikingly, despite this further reinforced legislative directive from the Labor Party, the Family Court continued to snub its nose at the intention of this legislation, and joint custody orders in fact fell further from an already paltry 5%, to a further low of just 2.5%.
In his telling "Kangaroo Court" critique, the well respected academic and social commentator, Mr John Hirst, underscored the inability of Australian governments to fully grasp the extent of resistance to equal parenting initiatives from a Family Court with remarkably entrenched views. Of the recently proposed Family Law changes, Mr John Hirst stated that: "Late in 2003, the standing committee reported its findings. It is not clear why it baulked at recommending that joint custody be made law. Because no adequate anti violence filters were put in place. The committee itself seemed committed to the change; the bulk of the evidence it heard was in favour; the Prime Minister had given them the cue. Although not prepared to recommend it as law, it remained sympathetic to joint custody and in appropriate cases it urged that it be encouraged. Judges in Australia were to consider equal time!"
The same obstacles to anything resembling equal parenting time will be faced by this new legislation. It is a pointless exercise to ask the Family Court to 'consider' equal parenting time, when the whole culture of the Court is directed against such outcomes.
Importantly, the studies that have sought the views of children document that equal time with their parents is what most children want. Everything known about the children of divorce and their needs tell us that it is in their best interests to maximize the involvement of both parents for the benefit of the child. Where both parents seek to continue their role as parents, the court should reduce neither parent to a mere visitor, unless the other parent comes forward with a compelling reason to do so.
It would be wonderful if the government would consider not only the wishes of Australian children but of the voting public. In recent polls the concept of shared parenting received between 91% (Insight Poll) and 82% (Channel Nine Poll). In a federal poll in early 2004 Family Law Reform and Child Custody was the number one issue, outpolling Medicare by over six times.
The Australian public have a deep sense of unease about the Federal Government's handling of the process of Family Law Reform. This unease is born out by social worker, Matilda Bawden, who says of the committee who are establishing the counselling competencies for the Federal Government's Family Relationship Centres. "There is almost no father-friendly representation on this committee and certainly no evidence to show it is sympathetic to genuine shared parenting or joint residency outcomes or ideals." The Family Relationship Centres, which are supposed to be working towards shared parenting outcomes, will be staffed by counsellors who know nothing about shared parenting. It is a little like Einstein's definition of insanity, 'doing the same thing over and over again and expecting different results'.
Australia's most pressing reason for Family Law Reform is to turn the tide of family breakdown, which will in turn lower the divorce rate. According to American researchers John Guidubaldi and Richard Kuhn divorce rates in USA declined nearly four times faster in high joint custody states compared with states where joint physical custody was rare. As a result, the states with high levels of joint custody now have significantly lower divorce rates on average than other states. The real reason the Titanic is sinking is because we have refused to put a premium on marriage.
Dr Wade Horn, author of 'The Fatherhood Movement: A Call for Action' said,"The best prevention for fatherlessness is building strong healthy marriages." Unless Family Law Reform works towards preventing divorce in the first place it will continue to be a 'Clayton' style of reform. Waleed Aly, a lawyer and former legal associate to a family court judge, said about the recent proposed changes to Family Law Reform, "It is more a mirage than a breakthrough."
Unless Australia deals with the fundamental problem, which is the continuing high rate of family breakdown, and puts a premium on marriage, the Family Law Reform fiasco will continue. Until the Government gives a firm direction to the Family Law Court, that a presumption of equal parenting must be the starting point for all divorcing couples, rearranging deck chairs on the Titanic will continue to be our primary occupation.