What is WRONG with the FAMILY COURT system in Australia:

Version 26 July 2006

1. The Family Court system in Australia typically takes two years to process a case when it shouldn’t take more than a few months at most. This delay contributes to the high rate of suicide and murder-suicide associated with family breakup. The delay increases the death rate and generates conflict and human trauma.

2. Family Law solicitors make huge sums of money – typically $20,000-$40,000 per case (that is – each parent spends this amount !), and sometimes in excess of $100,000 from a single case – from parents who could be spending this money on providing a good home and opportunities for their children. The financial strain of Family Court cases generates immense stress on separated couples and generates conflict between them.

3. Family Law solicitors are responsible in many cases for amplifying conflict between separated parents both inadvertently and deliberately. They have been known to subtly encourage their clients to construct and exaggerate issues and to portray the other party in terms of negative stereotypes. Family Law solicitors have been known to deliberately sabotage Family Court ‘conciliation conferences’ presumably to draw out the court case. The adversarial system of the Family Court system generates conflict.

4. The Family Court of Australia awarded Joint Residency to 2.5% of cases in 2000/01 – the most recent year statistics are available. This suggests that Equal Residency was awarded in probably less than 1% of cases. It will not award Equal Custody in cases where there is “entrenched conflict”. This policy encourages mothers to generate conflict and to lie about conflict – typically by applying for a Domestic Violence Order (DVO). A DVO can be obtained without the need for the police to investigate the matter - ie often they don’t bother to even interview the alleged perpetrator. Once a DVO has been issued, it is virtually impossible to have it struck out. The respondent is advised to “accept the charges without admission of guilt.” They are also advised “not to worry about it, that it is not in itself serious, and is quite common” even though the charge will last for two years, and although it will likely have achieved the aim of establishing “conflict in the relationship between the parents” and therefore preclude the possibility of equal parenting time. In the event that a parent is able to disprove the allegations of domestic violence (or child abuse), there are no penalties handed down to the parent who fabricated the charges. This is not to say instances of domestic violence and child abuse do not occur, or that these instances are not serious. It is to say that we have inadequate systems (or will) to distinguish real cases from fraudulent ones.

5. The Family Court system in Australia invariably awards sole residency to the parent with whom the children ‘usually reside’ – the ‘precedent principle’. This encourages parents to use force to gain more time with their children in order to demonstrate that they are the prime carer during the two year period (or longer !) leading up to the Final Hearing. The Family Court system therefore rewards the use of force and penalizes parents who show restraint. This policy generates conflict.

6. The Family Court system in Australia rarely awards Equal Residency even if the father has won sole residency but wants Equal Residency ! and even though numerous studies show that children invariably benefit more from Equal Residency arrangements compared to Sole Residency arrangements.

7. Under mounting social science research and evidence that Sole Residency is damaging for children, the Family Court system now tends to award the conventional second weekend access to fathers, plus an additional couple of hours after school one day per week, even though Family Court child psychologists will admit that children need block time, not fragmented time. It is a cynical and inappropriate gesture on the part of Family Court judges to appear to be addressing the problem of parental alienation.

8. Under the existing system, if both parents qualify for the Single Parents Pension, only one of those parents can be awarded the pension in a situation of Equal Residency, and it is awarded to the first to apply. They cannot receive half each. This policy generates conflict.

9. Legal Aid can be provided to only one party, even if both qualify. This generates conflict.

10. Decisions in the Final Hearing of the Family Court often rely heavily on the Family Report which is based on observations of the parents (particularly the father) with the child in an office for a period of half an hour (as well as two hours of interview with each parent, particularly the father who has to prove his competence). This contrived environment and the brevity of the artificial ‘observation’ (try behaving normally when a psychologist is watching you and taking notes on everything you do !) on only one occasion is a seriously flawed assessment methodology.

11. The Family Court system of Australia does not recognize the rights of the child to spend a significant amount of time with both parents, nor does it recognize the rights of the father or mother. Instead it claims to know what is in “the best interests of the child.” Similarly parental rights were extinguished in previous decades when the state took Aboriginal children away from their natural parents and adopted them out to White families because the State knew what was “in the best interests of the child.” Just as that policy caused immense human trauma and suffering to children, the current policy of the State through the Family Court system in Australia is also causing immense and unnecessary trauma and suffering to children by alienating one of the parents, usually the father. The Family Court system has been acting AGAINST the best interests of children for the last 30 years.

12. Typically the Family Court system in Australia awards sole residency to the mother. The father meanwhile, not only loses most in the property settlement (typically the family home), and is forced to pay ongoing maintenance to the mother, but he is given only token access to his children of two days per fortnight, and sometimes much less. If a mother moves further away from the father, the father usually has to travel further to see his children. The Family Court system in Australia discriminates against fathers under the false pretext of acting “in the best interests of the child”. Family Court judges, registrars, barristers and solicitors are in collective denial of the inherent gender bias.

13. Family Court judges have enormous amounts of discretion to the point they do not have to give breakdowns of reasons why they have given, for example, a ‘global assessment’ awarding 70% to 80% of property to the resident parent – typically the mother (a figure typically given to mothers by solicitors of the likely outcome of their case, irrespective of particular circumstances), or why they have awarded sole residency to the mother even in situations where the father has more time available to care for the children. To appeal against a judge’s order is almost never successful, because such an appeal will be heard by a panel of other Family Court judges who are reticent “to overturn a discretionary judgment of another judge.”

14. Justice Rimmer was recently accused of plagiarism in her reasons for her judgments (and the evidence of plagiarism was plain). There have been calls for an investigation to see if such plagiarism has occurred elsewhere, as well as numerous calls over the years to investigate the judicial integrity of the Family Court system generally, following a constant stream of complaints (far more serious than plagiarism), but no investigation has ever taken place. Meanwhile, Justice Rimmer remains on ‘extended leave.’

Conclusion

The Family Court system in Australia is geared to exacerbate conflict. Much of the conflict currently associated with family breakups can be avoided with the implementation of a Rebuttable Presumption of Equal Residency, meaning that if both parents desire at least half time caring for their children, then this will be the outcome unless there are compelling reasons against it - such as issues of child abuse, or practical problems. Children are better off with significant access to both parents and the best way to achieve this is through equal parenting time.

The government is establishing a network of 65 Family Relationship Centres in Australia in order to minimize the need to go to the Family Court. This is a recognition of the inappropriate adversarial nature of the Family Court system (clearly stated by the government). Also, solicitors are not allowed to advise clients until after they have attended a Family Relationship Centre. This is a recognition that solicitors tend to ‘up the ante’ and exacerbate conflict.

However, it is unlikely Family Relationship Centres will work (they require a mere three hours of mediation – the Family Court already provides at least two ‘conciliation conferences’) until there is a change in the law to implement a Rebuttable Presumption of Equal Residency, because fathers will continue to seek equal time with their children, and mothers will continue to carry the process through to the Family Court where they know they will likely be awarded 70-80% of the property (ie the family home) and 70-80% of residency of their children, ie Sole Residency or quasi Sole Residency, not to mention a regular income from their ex-partner in the form of Child Support.

Organizations such as Relationships Australia, Centacare, Anglicare and UnitingCare are amongst the main organizations who have won tenders to operate the Family Relationship Centres. All these organizations have made submissions to the House of Representatives Inquiry into Child Custody Arrangements in the Event of Family Separation, arguing against a presumption of equal residency – even though the government has stated that equal residency is to be the starting point for negotiations between separated couples in the Family Relationship Centres…

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