Aussie Senator Calls for Overhaul of Family Courts

December 11, 2015 by Robert Franklin, Esq, Member, National Board of Directors, National Parents Organization

Australian Senator John Madigan is calling for a “root and branch” revamping of family courts. He wants wholesale changes and he wants them soon. His motion is cosponsored by seven other Independents. Here’s his press release.

In a motion which will appear before the Senate next year and which is cosponsored by seven of the eight crossbenchers, Senator Madigan calls for the creation of a new family law mechanism that is not adversarial in nature and deals with family separation in a way that has a tangible and primary emphasis on the welfare of the child.

Senator Madigan said a new system was needed that had a focus on urgency for decisions, education and fairness.

Senator Madigan said: “As we head into Christmas, thousands of Australian children will be denied access to both parents due to a legal system that is in complete breakdown. The harm being done to Australian families by the Family Court is immense and unjustified. I call on the Australian Government to act on this as a matter of urgency.”

Senator Madigan’s comments come after recent media reports that the Law Society of NSW has said lengthy delays in the Family Court and the Family Law Division of the Federal Circuit Court were harming children. The society has said the Family Court was at breaking point, according to Fairfax reports.

The motion — cosponsored by senators Bob Day, Dio Wang, David Leyonhjelm, Glenn Lazarus, Jacqui Lambie and Ricky Muir — calls on the government to recognise that thousands of Australian children continue to be harmed by a family law system that is not fit for purpose.

The motion also calls for a complete revision of the Family Law Act 1975, saying it should be simplified, shortened and based on core principles that support the long-term welfare of children, gender equality and equal parental care and responsibility, when neither parent has been proven unfit.

There’s much meat on those bones. Madigan’s first target is the adversarial nature of family courts. I’ve often argued that child custody cases are, at heart, not legal matters and shouldn’t be decided by lawyers and judges. Seriously, why do we believe that judges are uniquely qualified to decide custody? Yes, they routinely say that they’re acting in the best interests of children, but there’s little evidence that they are or that they even know the important factors that contribute to it. If they did, equal parenting would be the norm rather than the vanishingly rare exception.

And of course lawyers make their daily bread (and pay their BMW notes) on conflict, and no one is as ripe for fighting as divorcing spouses.

The sensible thing would be to establish equal parenting as the norm for fit parents and allow the other 5% or so of parents to fight it out in court. For the vast majority of parents, the involvement of lawyers and judges only makes a bad situation all the worse.

And, as Madigan suggests, speeding up the process would be good for all concerned. Of course the best way to do that would be to establish shared parenting as the default position for all child custody matters. Parents would be free to establish different plans to suit their unique needs and unfit parents would be a special case. But if both parents knew from the start that each would get between 35% and 50% of the parenting time, there’d be little reason for prolonged wrangling. That would be easier on kids, better for parents, a relief to the courts and a money-saver for taxpayers. What’s not to like?

Best of all, Madigan is calling for equal parenting and equal parental responsibility. Needless to say, that would create a host of benefits for children, fathers, mothers and society generally. So it’s good to see a senator not only know what needs to happen in family courts, but also that doing it is an emergency.

An emergency? How can that be? After all, the Family Law Act of 1975 was amended in 1995 and again in 2006. The last amendment was widely heralded as a new day in child custody cases. Divorce cases were supposed to proceed more quickly thanks to mandatory mediation and fathers hoped for a new era in expanded parenting time. So it’s astonishing that neither of the promised developments has, well, developed.

Senator Madigan first spoke about the need for Family Law reform in a Senate speech in March 2014. In a follow-up speech in September 2014 Senator Madigan said: “Mothers, fathers and children face enormous risks in our Family Court system.” On June 23 2015 Senator Madigan asked questions of Attorney-General George Brandis about the functioning of the Family Court and the government’s plans to reform the Family Court, if any.

Over the last 12 months Senator Madigan has met with almost a dozen Family Law support groups across Victoria and in NSW.

“I have seen first-hand the harm being done by the Australian Family Court system,” Senator Madigan said. “This issue is too important for the government to keep duck-shoving and hiding. 2016 must be the year Australia fixes the Family Court.”

“Lengthy delays harming children.” “Complete breakdown.” “Immense and unjustified harm to families.” “Family court at the breaking point.” “Family law system… is not fit for purpose.” Those aren’t descriptions of a family court system that’s doing its job and doing it well. They sound like descriptions of an ongoing disaster. And they’re not just Madigan’s words or those of his co-sponsors; they’re the words of the Law Society of New South Wales. Even family lawyers are alarmed.

It’s time for Australians to roll up their sleeves and fix their family courts. The simplest single fix would be to establish shared parenting as the norm for all fit parents. Much research demonstrates that that would tend to ameliorate the conflict that besets family courts all too often. In so doing, it would speed the resolution of cases and of course further the best interests of children.

Finally, equal parenting has a powerful advocate in the Australian Senate. Madigan wants 2016 to be the year in which “Australia fixes the Family Court.” It can’t come too soon.


National Parents Organization is a Shared Parenting Organization

National Parents Organization is a non-profit that educates the public, families, educators, and legislators about the importance of shared parenting and how it can reduce conflict in children, parents, and extended families. Along with Shared Parenting we advocate for fair Child Support and Alimony Legislation. Want to get involved?  Here’s how:

Together, we can drive home the family, child development, social and national benefits of shared parenting, and fair child support and alimony. Thank you for your activism.

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