The Guardian 14 December, 2005

Family law:
capping off a week of infamy


Bob Briton

Changes to Australia's Family Law Act 1975 introduced into the House of Reps by the Howard Government last week have been hailed by disgruntled fathers' groups as good legislation. A column in The Sydney Morning Herald described it as the beginning of " the age of second-phase feminism as the equalities of opportunity won for women over the past 30 years give way to a new era of equal rights, such as the right of mothers and fathers to have equal access to their children in the event of divorce". The reality is that the latest legislation is another Coalition attack on the rights of women and the completion of some unfinished business by reactionary forces who never accepted the far-reaching progressive changes introduced with the original Act 30 years ago.


Under the old system, "fault" had to be established as grounds for divorce in the courts. The grounds included adultery, desertion, cruelty, habitual drunkenness, imprisonment and insanity. Wealthier divorcing parties often hired private investigators to establish wrongdoing by the estranged spouse before, during and after their separation. It was a shameful public circus and the prospect of ending up in the divorce courts served to keep a lot of loveless and destructive relationships together. Women were further trapped by their exclusion from the paid workforce and the lack of childcare. Religious and other conservative forces wholeheartedly endorsed this overbearing, moralising anti-woman aspect of then status quo.

They were outraged by then Attorney General Lionel Murphy's Family Law Act. Under the new system, couples could apply for a no fault divorce after 12 months separation with only minimal fees; no court appearances and no lawyers. The only time official mediation or the courts became necessary was if the issues of access to children or property settlement could not be worked out by the couples themselves. Reactionary forces latch on to reports of the difficulties encountered by these couples and their children to suggest the whole of the system ushered in by the Family Law Act is flawed.

As the years have gone by, fully 95 per cent of couples now manage to sort out child custody arrangements by themselves. Last week's legislative broadside sets out to interfere with the discretion of the Family Court to determine the "starting point" for the sharing of access to children by divorced parents. The presumption the Howard Government wants to establish is for 50-50 shared access by both parents.

"I don't see how the measures that require first the courts to look at what is in the best interests of the child and then ensure that the child is not exposed to danger and to ensure that in looking at the best interests of the child, that they have a right to know both parents, should cause any problem", Mr Ruddock told the media.

Former Chief Justice Alistair Nicholson welcomes any change that would bring a less adversarial approach to this small percentage of custody cases that come before the courts. However, he notes that the latest changes pander to the militant fathers' groups. Furthermore, as he points out, "It's really not practical for parents so it doesn't strike me as a great advance at all." While the legislation is peppered with "where practicable" and "where possible" riders, it is based on the assumption that, regardless of nearly all circumstances, a 50-50 sharing of time with both parents is the ideal for children.

The Sydney Morning Herald's Paola Totaro sought to back up this assertion in a piece last week by claiming " research worldwide not only confirms the significance of two parental figures but also the negative neurological impact of stress and external stressors on young, developing brains". Presumably, she is not referring to research that shows that a whopping 23 per cent of Australian women have experienced violence in their marriage or de facto relationship and that in half those cases the attacks have been witnessed by her children.

Supporters of the Federal Government's move vigorously promote the anecdotal evidence of fathers' groups to explain shortcomings of the current situation. At present only six percent of children from split families spend close to equal time with both parents that's how "ideal" and practical it is! Another 34 per cent of children spend every weekend or every second weekend with the non-resident parent. They usually spend half the school holidays with them, as well. Another 26 per cent see the parent who lives elsewhere once a year on average.

Supporters of the government appear to be suggesting that the last mentioned statistic is due to the operation of the Family Court as it stands; that large numbers of fathers are being prevented by the court from seeing their children. Dr Elspeth McInnes of the National Council for Single Mothers strongly disagrees. "It's incredibly rare for there to be no contact where a parent has sought it and we know of children being forced to have contact with sex offenders, with people with criminal records for assaulting members of their family."

There is no doubt that the current system is not perfect. It is doubtful that a body dealing with such emotion-charged issues could ever get it right in every single instance. Research on the operation indicates that it has, quite reasonably, a general preference for keeping children with the parent with whom they are already living. It has a preference for not separating siblings. It has a preference for the mother-child relationship, the relationship between parents and biological children and a concern for the wishes of the child.

Howard, Ruddock et al are about to throw a grenade into this field of delicate issues. They want to score points for the old guard and encourage the notion that the system is biased against men. They are not interested in social justice. Like the attacks on single mothers contained in the so-called Welfare-to-Work package, the family law changes are an attempt to roll back the gains women have made over the past 30 years.

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