The Howard Government has taken some steps to alleviate the harmful impact of divorce on children, by encouraging post-divorce settlements which promote shared parenting.
Sadly, however, too many fathers are still unaware of their new rights, says Ash Patil, president of the equal-parenting group, Fathers4Equality.
Last Father’s Day, tens of thousands of Australian children did not see their fathers. These children are the silent victims of a family law institution purposely designed to deny children a meaningful relationship with one of their parents, simply because the parents had divorced.
These family law orphans are the legacy of a fundamentally flawed system that has treated children as the ultimate prize, to be won by one parent and lost by the other. (According to the Family Court of Australia, 97.5 per cent of all family law proceedings result in the children losing one of their parents).
Winner takes all
For more than three decades, “the best interests of the child” was a mere phrase, or rather a dishonest facade for an industry obsessed with promoting adversarial conflict, entrenching gender stereotypes, and insisting on a winner-takes-all philosophy designed to raise the stakes and generate massive legal fees in the process.
But some people in federal parliament would have you think that things have been changing for the better, especially since the introduction last July of what some claim to be the “most significant changes to family law in the last 30 years”.
Despite its still being too early to pass judgment on the application of the legislation by the courts, the intent of the Family Law Amendment (Shared Parental Responsibility) Act 2006 has been quite clear:
i) That there is a rebuttable presumption of equal joint parental responsibility.
ii) That if this presumption is not rebutted (through credible concerns for the child’s safety, for instance), then the Family Court must consider an equal parenting time arrangement, or whatever shared parenting time arrangement is requested.
iii) If such an arrangement is not awarded, the court must clearly explain why.
The legislation is designed to promote significant and substantial shared parenting time (with both parents) for children of divorce, while at the same time bolstering safeguards against legitimate and credible risks to the child’s safety, and allowing the court ample discretion against impractical arrangements that simply would not work.
Some fathers, having already applied and been granted five and six days’ residence out of every 14, have some hope that things are improving.
However, they continue to have some serious concerns about the entrenched anti-male bias throughout every level of the family law industry, the escalation of false domestic violence allegations as a tactic for depriving access to children, and a lack of consistency in the application of the legislation throughout the registries. Although the legislation is far from what is required, it is still significantly better than what existed before.
Nevertheless, James Adams, a spokesman for Fathers4Equality, has expressed dismay that, despite over a year having elapsed since the new Family Law Amendment Act came into force, fathers (and their solicitors) are still surprisingly ignorant of the changes.
“We get e-mails every single day from desperate and sometimes suicidal fathers in the midst of separation, who are close to breakdown because they fear that they will never see their kids again,” says Adams.
But the threats of denying access to children, often made by mothers during separation, may have been a truism in the past, but is less likely to be endorsed by the courts today.
Adams says that, considering the grim suicide statistics awaiting fathers after divorce, where more men suicide every year than this country’s total road death toll, the importance of educating those most vulnerable about these changes cannot be understated.
Although grateful at the commitment the Prime Minister has shown in changing these flawed family laws, Fathers4Equality is requesting that the government do more to promote the message of change.
This is as much about changing the expectations of a whole community as it is about informing fathers of the recent changes.
The jury is still out on whether the courts, which have been historically resistant to any form of shared-parenting initiatives, will interpret these laws as they were intended over time; but the whole family law reform package put out by the government has underscored a decisiveness for change that at face value seems quite genuine, at least for now.
Let us hope that the family law courts live up to the intent of the legislation. Then, maybe next year, many more children will get to spend Father’s Day with their dad.