Australia to Review Family Courts and Laws; the Guardian is not Amused

October 11, 2019 by Robert Franklin, JD, Member, National Board of Directors

Writer Jess Hill gets a lot wrong in her article here (The Guardian, 10/2/19).  I’ll say more about that later, but about the Australian government’s new inquiry into the family law system, we can only hope she gets this much right:

 It is, I believe, a deliberate move by the government to bury the findings of the two [previous] inquiries it commissioned.

If only it were true.  I wrote about the most recent of those efforts by the Australian Law Reform Commission here, here and here.  To put it mildly, the ALRC’s document was so shoddy, so entirely lacking in balance and indeed basic facts that burial is the best that can be hoped for.

Here’s what veteran Aussie journalist Bettina Arndt told me about the ALRC’s review of family courts:

The terms of this enquiry had over 200 references to violence and no mention at all of enforcement of contact orders, parental alienation or any of the other relevant issues. They were bombarded with submissions from women’s groups arguing that children need protection from violence fathers and of course most of the cases that make it to court include violence orders, because this is now the major tactic mothers use to gain power in family law disputes. The recommendations reflect that bias and the success of the orchestrated campaign from feminists to wind back Australia’s laws supporting shared parenting. 

Ms. Arndt, you’re too kind.  I won’t go into the many flaws of the Commission’s report, but will try to summarize.  As Arndt pointed out, it was almost entirely a product of input from those who oppose shared parenting per se and who believe that the worldwide movement on behalf of children maintaining real relationships with both parents following divorce is nothing but a ruse to hand over kids to abusive fathers.  If anyone else provided input to the Commission, its report failed to present their views or complaints.

There were other gaping holes.  One was its failure to even mention courts’ long-time refusal to enforce orders of contact.  Historian John Hirst has written at length about the astonishing fact that, alone among all orders issued by all Australian courts, only those permitting non-custodial parents to have contact with their children are never enforced – as a matter of law – by the courts’ inherent power of contempt.  Nor of course did the Commission’s report mention that something like 90% of those non-custodial parents are fathers.

Indeed, the 583-page report offered no data whatever on what courts actually do in custody matters.  What percentage of cases result in sole custody to the mother?  To the father?  What percentage have court-ordered shared parenting?  How many cases are litigated?  How many are agreed?  And how much parenting time is ordered in those cases?  We might think information like that would have been highly germane to the Commission, but the Commission didn’t think so.

What about the already voluminous and ever-growing body of science indicating a preference for equal parenting over all other types of custody save intact families?  The Commission dismissed all that with a few carefully chosen words.

At a broad level, studies based on population level samples demonstrate that poorer outcomes for children are linked with: financial disadvantage, exposure to inter-parental conflict and family violence, and problematic parenting. There is no strong link between post-separation parenting arrangements (in other words, the amount of time children spend with each parent) and child wellbeing per se.

That of course is too clever by half.  In the first place, it disposes of almost all of the science on shared parenting with the words “studies based on population level samples.”  Given that restriction of course the statement is true enough, or at least close to it.  (Dr. Malin Bergstrom’s massive studies in Sweden have cohorts of around 150,000 individuals, and do indeed demonstrate that kids in equal custody arrangements do better psychologically and educationally than do those in sole or primary care.)  But in assessing the science on shared parenting, there is literally no reason to limit the science deemed acceptable to “population level samples.”  After all, family court judges don’t decide “population level” cases, but individual ones.

Nothing so indicates the Commission’s bias against fathers and shared parenting than its blanket refusal to consider the 62 cases that overwhelmingly come out in favor of equal parenting.

Plus, as we so often see, the Commission’s off-hand dismissal of the science on equal parenting entirely ignored the fact that, whatever the shortcomings of that science, there’s essentially none that demonstrates that sole parenting is best for kids.  The Commission, like seemingly all other opponents of shared parenting demands one level of scientific rigor for pro-shared parenting advocates, but none at all for those in opposition. 

And then there’s the fact that Australian law as it currently exists, is scarcely a shared parenting advocate’s dream.  Its sole nod to shared parenting is its statement that judges must “consider” ordering equal parenting.  That’s it.  They needn’t order it of course, but only consider it.  And even that was considered too onerous by the Commission.  Here’s what I wrote back in April:

Its recommendation is that the current requirement that judges consider equal parenting time be done away with.  Why?  The one and only problem claimed by the commission with that requirement is that it introduced “an unnecessary additional step in the process for determining care-time arrangements.”  In short, “considering” shared parenting arrangements is inconvenient for judges.

In a nutshell, that’s the report that The Guardian and Jess Hill are so intent on maintaining as a guide to family court reform in Australia.

I’ll have more to say on that next time.

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