A SUMMER OF DISCONTENT

DISAPPOINTMENT OVER PROPOSED REFORMS TO CHILD CUSTODY

Alan Barron, Co-ordinator, The Institute of Men’s Studies.

The Federal Government’s House of Representatives Committee Report into Child Custody has left children, fathers and grandparents with little change to their current status after family breakdown, and has brought mostly negative responses from men’s groups. Many spokesmen said the Report was disappointing in that it fails to address the core issue of rebuttable, that is the presumptive joint/shared parenting and residency issues. The Report has rejected ‘equal parenting’ in favour of an open approach whereby divorcing parents would attempt to work out custody arrangements between them. In relation to child support, the Report recommends increased powers for the Child Support Agency, including going down the American path of "cancellation of drivers/other licences". Separating parents who renege on child support payments will risk incarceration under the proposals.

Minister for Children and Youth Affairs, Larry Anthony indicated that the Federal Government was in no hurry to endorse a major overhaul of Australia's child custody system, saying it would take its time to ensure the best interests of children would be met.

My own view is that the Report is seeking to put a better-equipped ambulance at the bottom of the cliff rather than to build a safety fence at the top. Present divorce laws make it too easy for one partner to walk out - the focus should be on keeping marriages intact. Once bureaucrats from the Family Court take over, separation appears inevitable.

Barry Williams, Lone Fathers' Association of Australia, raised concerns about many aspects of the Report. He said the main failing of the Report lay in the apparent inability of the committee to realise that most of its recommendations involve "recycling" the same people like social workers and departmental officials who currently dominate the divorce industry and who regularly impose their politically correct views on separating families to the disadvantage of fathers and their children.

Mr Geoffrey Greene, Federal Director, Shared Parenting Council of Australia said: ”A majority of our Affiliate Organisations feel ‘bitterly disappointed’ that the Committee’s report has failed to recognise every child’s fundamental right to experience the love, guidance and companionship of both their parents in an equitable arrangement. The most common complaint made to us is that the Parliamentary Committee appeared more interested in compromising principles to achieve a bipartisan report - rather than doing what was right for children of separated parents.... We are particularly concerned that there is no legislative provision that will ensure that Recommendation 5 of the Committee’s report will ever result in more than a cursory look at shared physical custody by either Courts and/or Tribunals. The Shared Parenting Council calls on the Prime Minister and Federal Cabinet to put some meaning to this recommendation by ensuring that the child’s right to experience both parents’ care and affection be strengthened in the objects section of the Family Law Act. Whilst this would not result in a rebuttable presumption in favour of joint physical custody it would at least ensure that practitioners of family law would be required to address this ‘right’ before any determination to overturn it is made.”

Divorce laws undermine marriage and family life and are a major cause of marital instability, according to senior social researcher, Barry Maley. of the Centre for Independent Studies. In his recently published new work, “Divorce Law and the Future of Marriage”, Maley argues that urgent reform is needed to require spouses to jointly submit their divorce application by mutual consent. He believes there should not be property legislation for de facto couples because they failed to make the commitment to marry. Maley says about four out of five divorces were submitted by only one spouse, a fatal flaw that exposed people to disadvantage. Changes to the law would restore incentives for couples and families to stay together, he said. He believes that in a system of mutual consent, if a divorce application was submitted by one spouse the non-consenting spouse would be deemed to have been deserted.

The Chief Justice of the Family Court has accused a federal MP of attempting to intimidate him by calling for his resignation amid a heated public debate over child custody. Chris Pearce, Liberal MP for the eastern Melbourne seat of Aston and a member of the Parliamentary Committee examining reforms to joint custody law, said Chief Justice Alastair Nicholson should step down because he had tried to unduly influence the committee. The Shared Parenting Council of Australia joined the call for Justice Nicholson's resignation. But Justice Nicholson said he had no intention of resigning. "I view calls for my resignation by Mr. Pearce and the Shared Parenting Council of Australia as an attempt to intimidate me in the carrying out of my duties," he said. Justice Nicholson has attacked suggestions that the Family Court should be stripped of the power to adjudicate in child custody battles. He has been a vocal opponent of the idea of shared custody saying it could jeopardise children’s interests, was unworkable and " too simplistic".

Justice Nicholson is due to retire in March 2004. An angry Mr. Pearce issued a statement urging him to "bring forward his much anticipated retirement... and retire now". He said Justice Nicholson was breaching the separation of powers between the judiciary and Parliament. "These have not been light-hearted comments. They have been very strong attacks. Justice Nicholson's attack on the Committee... confirms his total lack of regard and respect for the parliamentary process and the Parliament's role in developing and legislating the laws of Australia. "It is Justice Nicholson's role to administer the law, not to make it."