Category: Blog

September 2, 2020 by Robert Franklin, JD, Member, National Board of Directors

The more I see of Australian family law, the gladder I am that I live in the U.S.  Needless to say, U.S. family law and practices are woeful, often resulting in outcomes that are the very opposite of what public policy should be.  No country in the world, and certainly not the U.S., even comes close to sensible policies when it comes to children and parents.  Still, Australian kids in family courts fare worse than those in the U.S. and it’s not getting any better (Canberra Times, 8/30/20).

The laws governing adoptions in the Australian Capital Territory (ACT), i.e. Canberra and environs, will change on September 1.  From now on, the sole governing criterion for adoption is our old friend “the best interests of the child.”  Unlike in the U.S. where parental rights supersede even constitutional ones, if Australian parents have any rights to their children, it’s not apparent.  As of Sept. 1, a judge’s arbitrary, uninformed and free-floating notion of what’s good for a child is all it takes to terminate an adult’s parental rights.

Under amendments set to come into force on Tuesday, parental consent for adoption would no longer be required in circumstances where the adoption was set to benefit the child or young person.

A court will now consider the benefit a child or young person would have from having emotionally and physically stable living conditions and whether adoption would protect them from physical or psychological harm in deciding whether to dispense with consent.

A court will be able to dispense with the need for parental if the parent could not be identified or found, was unable to make an informed decision, or if adoption would protect the best interests of the child.

Now, the writer of the linked-to article, Jasper Lindell, didn’t manage to ask a single biological parent or organization supporting same their thoughts on the new law.  No, he interviewed and quotes only adoption advocates who are, understandably, thrilled with the new law.

Nor does he consider the whole gamut of adoption scenarios, instead dealing only with adoptions arising out of foster care.  Given that, let’s deal with those first.

Imagine a child I’ll call Jenny, taken from her mother who’s having a hard time raising her due to financial stress.  Mom’s situation may be temporary, but the daughter nevertheless goes into care.  And there she stays for, say, a year.  Along comes a married couple who are fairly affluent.  He’s a lawyer and she’s a nurse.  They earn good incomes and have a good house in a safe part of town.  They want to adopt the little girl.  No doubt about it, they can give her a good life, replete with good health care, education, etc.

Is it in Jenny’s best interests to live with them permanently as their adopted daughter?

Many would say it is.  But Jenny’s lived almost all her life with her mother.  The woman gave birth to her, nursed her and was there every time she cried.  She helped her learn to walk, responded to her first words, sat with her when she was sick.  Most importantly, Jenny bonded with her mother when she was barely weeks old and the destruction of that bond alone is one of the most traumatic things that can happen to a child.

So, what is in her best interests?  I of course say it’s being returned to her mother when she gets back on her feet, but many judges would disagree.  That’s partly because those judges have neither training in nor understanding of the way in which infants attach to their parents or the elemental importance of that attachment.  It’s far too easy to simply look at the circumstances of the two families and make the call adoption advocates hope for.

Speaking of which, another of Lidell’s elisions is the pecuniary interest many “adoption advocates” have in completed adoptions.  Here in the U.S. the pro-adoption lobby makes billions each year on adoptions that are completed, but not a cent on those that aren’t.  Is the same true in Australia?

Whatever the case, Adopt Change, that provides the bulk of the information in the linked-to piece, says nothing about biological parents on its website.  It’s a pro-adoption organization.  Period.  Presumably, its donors fund the organization because they value what it does.  In short, it’s not in its financial interest to give a balanced view of adoption, particularly its dark, dark side.

More on this next time.

August 31, 2020 by Robert Franklin, JD, Member, National Board of Directors

Yet another court has decided that a mother who abducts a child should be rewarded for doing so (Scottish Legal News, 8/26/20).

The child was born in 2010 in Poland.  Her mother and father lived together and raised her until she was seven, at which point they divorced.  The mother apparently had primary custody of the girl for the next two years and the father had regular contact with his daughter. 

Mom then asked a Polish court for permission to move with the girl to Scotland.  She did so because that was where her boyfriend was living.  Her boyfriend was on the run from Polish law enforcement authorities, having been released from prison temporarily and fled to Scotland.  The Polish court denied the mother’s request to take the child out of the country.

Prior to moving to Scotland, a Polish court had refused the mother’s application for permission to take the child to Scotland on the grounds that it provided no benefit to her and would destroy her relationship with her father.

But the mother ignored that order and left the country with the child anyway.

Dad petitioned the Scottish court for an order returning his daughter to Poland.  The first court to hear the case granted his petition, the only “issue” in the case being the daughter’s expressed preferences.

The Lord Ordinary who heard the petition at first instance granted the petition, stating that the child’s objections had to be considered against this background, and that it was clear she had no appreciation of the nature of and reasons for the Polish court’s decision. Her express views were “highly subjective”, expressed in childish and immature language, and failed to take into account material considerations in relation to her wellbeing and best interests.

In short, the girl was too young and immature to be able to understand the issues in the case and her own welfare and so her wishes should be given only slight weight in deciding the case.

The mother appealed the decision of the Lord Ordinary and prevailed.

“In this regard courts are increasingly giving weight to the views of the child. A child-centric approach is required, with her interests and general welfare at the forefront. The focus is not on the moral blameworthiness of the abducting parent, nor on notions of deterrence.” 

Evaluating the decision of the Lord Ordinary, he said: “In Re M (2008) Lady Hale referred to the ‘wider considerations of the child’s rights and welfare’, and it is evident that these must be assessed as matters stand at the date of the court’s decision. By contrast, the Lord Ordinary makes no reference to this, nor as to the implications of the child having been living, apparently happily and well-cared for, in Scotland for over a year, this being a lengthy period for a 10 year old. There is no indication that the potential for harm arising from a further disruption has been addressed.” 

So (a) courts now decide cases on a “child-centric” basis and (b) the Lord Ordinary didn’t do so.  Needless to say, there are a number of problems with both (a) and (b).  As to (b), in fact the Lord Ordinary paid considerable attention to the child’s wishes, but found her ability to form intelligent ideas on the subject to be lacking.

As to (a), the appellate court continued:

“Though not determinative, the court places considerable weight on the child’s views. It has no particular comments on the way in which they are expressed, nor as to her lack of understanding of certain matters.

Well, isn’t that special.  In the court’s own words, its decisions in such cases are to be substantially controlled, not by law and not by facts, not by legal experts or mental health professionals but by children.  And the court will not care whether the child is able to understand the matters at issue or not.  Seriously, re-read the above quotation and decide if that’s not what it says.  In this case, a 10-year-old, who was expressly found by the judge who interviewed her to be insufficiently mature to decide what was best for her, is allowed to do exactly that.  What if she’d been six?  Four?  After all, if the court means what it says, “lack of understanding” by a child is no bar to her making the decision about with whom she wishes to live.

Given that that’s the case, why have courts at all?  Why not just ask the child her wishes and do as she says?  The decision in the case claims to hinge on the “best interests of the child,” but, like so many children, this one is in no position to decide what’s best for her but the adults who are so situated have punted the ball to her.  Amazing, but true.

But it actually gets worse.  The appellate court judge explained,

“The focus is not on the moral blameworthiness of the abducting parent, nor on notions of deterrence.”

All law exists in large part to attempt to shape behavior.  Certain behaviors society finds inappropriate and the law seeks to discourage those behaviors.  That’s why we have laws and courts to enforce them.  But, according to the Scottish court of appeals, not in this case or regarding this law.  “The focus” of the law “is not… on notions of deterrence.”  So courts “applying” this law, will not take cognizance of how their decisions will affect future wrongdoers.  Those parents who would kidnap their children in order to destroy their relationship with the other parent will be happy to learn that, however morally wrong, illegal and injurious to a child their actions may be, the court will, like Sgt. Schultz in “Hogan’s Heroes,” “see nothing.”  The law exists to discourage parental kidnapping, but the courts have now expressly nullified that purpose.

Finally, we find the usual misunderstanding of the Hague Convention on the Civil Aspects of Parental Child Abduction.

The evidence establishes that her current circumstances are more than satisfactory in terms of her education, home environment, and general welfare and wellbeing.”  

He continued: “She has lived in Scotland for well over a year and has integrated well into her new community. A return to Poland pending a long term decision on her future would disrupt all of this for no obvious benefit, and in all probability she would again be in cramped and over-crowded living conditions.”

In other words, as long as an abducting parent can establish the child in reasonably good living conditions for a few months, the court will ignore her violations of law and court orders and give its blessing to the abduction.  That this is the precise opposite of the intention, and indeed the very reason for the existence, of the Hague Convention, to which both Poland and the U.K. are signatories, goes entirely unmentioned.  The purpose of the Convention is to deter and establish a remedy for international child abduction.  For a court to reward the wrongful conduct of abducting parents plainly thwarts that purpose.

And what of the words “no obvious benefit?”  The court has decided that having a relationship with her father, who helped raise her for seven years and then was her non-custodial parent for two, does not constitute a benefit to his daughter.  Once again, amazing, but true.  On what basis did the court make such a plainly false statement?  None whatever.  In fact, the Polish court said that removing the child from her father would destroy her relationship with him and therefore prohibited her from doing so.  That strongly suggests that the Polish court found the girl’s relationship with her father important and worth continuing.  The Scottish court ignored that completely.

I don’t know what it is about these international abduction cases that makes otherwise mentally competent judges lose their minds.  They routinely ignore facts, law and logic in order to endorse the destructive and abusive behavior of mothers who kidnap their children.

August 27, 2020 by Robert Franklin, JD, Member, National Board of Directors

Why is it that child welfare agencies in different countries sometimes seem so alike?  I comment on those agencies in all parts of the English-speaking world and the issues are almost all the same – nameless, faceless bureaucrats who seem to see their job as taking as many children from parents as possible.  Secrecy of the process, failure to follow the rules of the agency itself, lying by agency officials and “emergency” hearings held solely to avoid parental resistance round out the sorry state of governmental efforts to care for kids at risk of abuse or neglect.

And so it is here in Scotland (The Scotsman, 8/19/20).

Mrs. A and her children’s father are estranged.  They have two children, one of whom has an autism spectrum disorder.  So Mrs. A contacted her local council for help in dealing with her autistic daughter.

Big mistake. 

Far from providing the help she sought, the Moray Council ended up taking both children into “care.”  That lasted for an astonishing 18 months, during which of course the children were traumatized by being separated from their parents and each other.

Mrs. A and others complained to the council early on in the proceedings, but their complaints were completely ignored.  Hearings on the children’s welfare were brought on an “emergency” basis when in fact there was no emergency.  But that meant Mrs. A and her children couldn’t be present while the children’s fates were decided.

Moray Council social workers, along with police, removed two girls from their family home within five months of their mum seeking support for her eldest child who is autistic, and over the course of two years continually breached their own regulations and policies.

The inquiry report by [Scottish Public Services Ombudsman] states that social workers failed to provide clear assessments of risk, made unfounded allegations about the mum’s mental health, and denied the children the right to attend hearings about their care or include their feelings and views in what was happening to them.

They also placed the older child in a residential home for teenagers when she was only 11, and the other into foster care, without any attempt to have them live with extended family, despite offers from grandparents – and even failed to inform the parents when the younger child was hospitalised after being taken into care.

As is so often the case, the result of the agency’s intervention into the family, far from being helpful, ended up as destructive and traumatizing.

[T]he mother said: “Our family was torn apart and our children traumatised and damaged by their treatment by the social work service of Moray Council.

“Asking for assistance and support in coping with a child with special needs led to us experiencing a nightmare of aggressive and unprofessional interventions, and the unnecessary and traumatic removal of the children by uniformed police. Worse, our children had to suffer over 18 months of loss of the love and care of their family while they were in the “care” of the council.”

The council’s behavior was so bad that not only did the SPSO investigate the case, it issued 15 recommendations for improvement in the future, and did so publicly.  In other words, the Ombudsman isn’t happy and wants everyone to know it.  That may be because this case arose just four months after another case of abusive behavior by the Moray Council.  It may also be because, unlike other agencies that were involved in Mrs. A’s case, the council has yet to apologize for its behavior.

And, just to add insult to injury, two of the managers involved in the case have been promoted.  Of course they have.  As Maggie Mellon, of the Parents Advocacy and Rights (PAR) charity, said,

“It is disturbing that senior managers in the council consistently refused to recognise the concerns about their decisions and actions that were brought to them very early on by firstly the family and then by me in my professional capacity.”

She added: “Two of the senior managers involved have since moved on to be Chief Social Work Officers in larger councils. They both were personally involved in rejecting all attempts to have an earlier resolution, ignoring all evidence of breaches of regulations and guidance and of their own advertised policies.

And so it goes.  The arrogance of state officials who know to a virtual certainty that they will not be disciplined for their misbehavior seems the same everywhere.  In Mrs. A’s case, they were caught; in most similar cases, they’re not.  My guess is that Mrs. A and her advocate, Maggie Mellon, have a degree of skill at asserting their rights and those of their children that most people don’t.  The poor and poorly educated everywhere bear the brunt of child welfare authorities’ malfeasance.

August 26, 2020 by Robert Franklin, JD, Member, National Board of Directors

Will Senator Kamala Harris go to bat for parental equality in family courts?  As a senator and California’s Attorney General, she never has, but, as the Democratic nominee for Vice President, she now occupies a much more prominent position on the national stage.  Why would she use that newfound influence on behalf of divorced and separated parents?  See this New York Times article (New York Times, 8/21/20).

Harris’ father and mother are both immigrants to this country, her mother from India, her father from Jamaica.  They met in the ‘60s and married.  Her father, Donald J. Harris was a rising star in academia in the field of economics.  As such, the family moved a good deal from one college or university to another as Harris’ prospects steadily improved. 

But theirs was not a marriage made in heaven.  The pair didn’t get along and separated when their daughter was five years old, divorcing two years later.

The divorce was bitter…

Dr. Harris, in his 2018 essay, said his early, close contact with his daughters “came to an abrupt halt” after a contentious custody battle. He said the divorce settlement had been “based on the false assumption by the State of California that fathers cannot handle parenting (especially in the case of this father, ‘a neegroe from da eyelans,’ was the Yankee stereotype, who might just end up eating his children for breakfast!) Nevertheless I persisted, never giving up on my love for my children.”

Dr. Harris of course was no run-of-the-mill dad, but a highly intelligent, highly accomplished professor who ended his career at Stanford University.  What was there about him that meant his relationship with his daughters had to come “to an abrupt halt?”  Apparently nothing but his sex.  After all, however biased against people of color California courts might have been back in the early ‘70s, that bias would surely have extended to an Indian woman as well.  But it was the anti-dad bias that’s been so often remarked on that told the tale of the Harris divorce and the marginalization of Donald Harris in the lives of his children.

Interestingly, Senator Harris doesn’t seem eager to bring the matter up.

In a warm, encyclopedic tribute to her family Wednesday night, as she formally accepted the vice-presidential nomination, Senator Kamala Harris skimmed past any discussion of her father, Donald J. Harris, a Jamaican-born professor of economics at Stanford University.

Now, I fully understand that her speech to the Democratic National Convention wasn’t the time to raise prickly personal issues, but the fact remains that Senator Harris has yet to say anything about family court reform which is, in fact, the most important social issue of our day.  Single-parent households contribute to a host of social, educational and legal ills in ways that no other condition does.  Many years ago, a California judge brought the hammer down on her relationship with her father, uniquely positioning her to talk about family court reform.  So I hope to see Kamala Harris bring the matter before a national audience.  We’ll see. 

If not now, when?  If not her, who?

August 25, 2020 by Robert Franklin, JD, Member, National Board of Directors

Australia’s High Court has struck down a husband’s effort to sue his ex-wife for fraud due to her leading him to believe he was the father of two her children when in fact he was not.  The Court is both right and wrong in its decision that cries out for legislative remedy.

Liam Magill was married to Meredith Magill.  During the term of their marriage, she gave birth to three children.  Liam assumed he was the father of all three, but in fact, he fathered only the middle child.  Meredith allowed him to continue his assumption and indeed contributed to it.  For example, when the children were born, she filled out certain necessary forms that attend the birth of a child in Australia.  Those forms named Liam as the father.  Liam also signed the forms so stating.  As such, it seems clear that, whether intentionally or not, she informed him that he was the father of the children.

Later, he learned he wasn’t and the pair split up.  He sued her for the tort of “deceit,” and the trial court rendered judgment in his favor.  That judgment was overturned by the Court of Appeal whose ruling was upheld by the High Court.  Why?

Because, in Australia as in the U.S. and every other jurisdiction in the English-speaking world, there’s no duty on the part of a mother to inform the father that he has a child, nor is there any legal duty to tell her husband that he’s not.  In short, the two appellate courts ruled that there’s silence on the part of the mother wasn’t actionable.  Her decision to withhold the information about the children’s paternity was entirely her prerogative.  Nothing in either statute or common law requires her to tell the truth about the paternity of her children.

It’s a remarkable legal stance by any definition.

For example, in countless situations, we impose a duty of disclosure irrespective of whether there’s a specific statute requiring it.  Generally, a seller of anything who knows about a latent defect not easily observed by a potential buyer is required to disclose it.  That requirement overturns the old common law notion of caveat emptor (let the buyer beware) and does so for a perfectly sensible reason.  The seller knows about the defect and the buyer doesn’t.  Therefore, the seller bears the burden of disclosure.

But when it comes to paternity, we do the opposite.  We allow mothers to hide behind fathers’ lack of knowledge in order to perpetrate paternity fraud.  Again, no jurisdiction places the requirement of disclosure of what is undeniably a material fact on the person with knowledge of that material fact. 

The High Court rightly ruled that, since there was no duty of disclosure, failure to do so by Meredith was not actionable at law.

Now, I argue that Meredith’s representations on the birth forms that Liam read constitutes an affirmative representation to him of his paternity.  They were lies by her to him made for the purpose, or certainly the result, of getting him to play the role of father.  Therefore, her alleged “silence” on which both appellate court rulings hung, was no silence at all.  So, I contend that their rulings were at odds with obvious facts.

Whatever the case, the course for the Australian Parliament is clear – enact a statute requiring mothers to inform all possible fathers of their potential paternity.  In that way, the actual paternity of all children will be established at birth and the blight of paternity fraud will no more mar the lives of children and men alike.

After all, why would any legislative body stand by and watch as children’s lives are thrown into turmoil because their mother chose to lie about paternity?  Why should men’s parental rights depend entirely on the goodwill of mothers who may or may not be inclined to tell the truth?  Here in the U.S., we laud fathers and cry to the heavens that they’re important to their children’s well-being, but at the same time make no provision to ensure that they can be a part of their lives.  It makes no sense.

Plus of course the trauma inflicted on the man who believes he’s the father but turns out not to be is an outrage to any society that seeks to call itself civilized.  And the denial of parental rights to the man who is the father but doesn’t know the fact, is no less so.

There is, very literally, no excuse for allowing paternity fraud to continue and many reasons why it shouldn’t. 

It’s long past time for legislatures to act.

August 21, 2020 by Robert Franklin, JD, Member, National Board of Directors

Finally, in his presentation to Australia’s Joint Select Committee on Australia’s Family Law System, Augusto Zimmerman takes on false allegations of domestic violence asserted in family courts.

That’s a highly relevant topic, given that almost the sole justification for opposition to shared parenting comes from radical feminists and the domestic violence industry.  They routinely claim that judges ignore claims of DV in order to give primary child custody to abusive fathers.  And, according to them, all those claims are valid, or false ones are so rare that they’re unimportant in the big picture.

Zimmerman takes down those patently untrue claims.

[S]urveys indicate that the general public is now fully aware that false allegations of domestic violence are regularly made, although accusers are virtually never punished. In a survey with over 12,500 Australian respondents, more than half agreed with the statement that ‘women going through custody battles often make up or exaggerate claims of domestic violence in order to improve their case, and only 28 per cent disagreed.’[16]

The same findings were obtained in a survey of 68 Australian families by Dr Sotirious Sarantakos. This sociology professor at Charles Sturt University discovered that a considerable number of allegations of domestic violence are patently false. In such cases, ‘the initial allegations of DV were modified considerably by them during the course of the study, particularly when they were faced with the accounts of their children and mothers, admitting in the end that they were neither victims of violence nor acting in self-defence’.

Plus, family court judges who regularly deal with these claims well know that they’re often made for no reason other than to gain an advantage in the litigation.

As for members of the judiciary, the overwhelming majority of magistrates agree that false claims are often sought for collateral reasons pertaining to family court disputes and child custody issues. According to David Collier, a retired judge from the Parramatta Family Court, these orders have now become a “major weapon” in the war between parents who wish to secure sole custody of children.

In this sense, a survey of 38 magistrates in Queensland reveals that 74 per cent of them agreed that domestic violence restraining orders are often used for tactical purposes.

Similarly, a survey of 68 magistrates from New South Wales informs that 90 per cent of them agree that such orders are commonly sought as a ‘tactical device’ to aid applicants with family law disputes, and to deprive former partners of contact with their biological children.

And why wouldn’t they be?  It is quite the irony that the very judges who know that many accusations of DV are false and made only to more easily marginalize the other parent in the lives of the children are the ones issuing the orders that do exactly that.  Crocodile tears, indeed.

And, speaking of marginalizing the other parent,

There is indeed an obvious link between restraining orders, false claims of domestic violence, and parental alienation.

Of course there is.  If one parent is bent on alienating the child, what better way to begin than by levelling a charge of DV against the other parent?  The alienator will know to a virtual certainty that the judge will issue an order keeping the targeted parent away from the child and the child’s home.  And that of course creates the ideal circumstance for further alienation, i.e. the alienator with 24-hour custody of the child.  Therefore, via the DV process, judges abet parental alienation.

In addition to handing out DV restraining orders like candy on Halloween, the targets of those orders often aren’t given an opportunity to defend themselves because the hearings are ex parte, i.e. conducted without the target’s knowledge or presence in court.  Not only that, but often those orders are issued on the basis of no evidence.

The problem of false allegations lies particularly in how these restraining orders are issued and the grounds for which they are made. Unfortunately, a considerable number of restraining orders are granted on a ‘without admissions’ basis that have virtually no evidentiary value in themselves.

There is therefore a notorious lack of scrutiny concerning the nature and substance of these complaints. That being so, it is always important to remind us that not everyone who applies for a restraining order is a genuine victim of violence, just as not everyone who is subject to such an order is necessarily the perpetrator. In fact, the person who is protected by the order may sometimes be the actual perpetrator, whereas the one bound by the order may actually be the real victim.

Under those circumstances, the targeted parent answers the doorbell one day only to be confronted by armed officers telling him to leave his house and not return.  Why?  He has no way of knowing, but his life is thrown into turmoil anyway.

Because respondents are required to vacate their family home, the granting of such orders have profound implications for the lives of those who are affected…

These orders nullify the fundamental right of homeowners to occupy their property, thus making a crime out of the ordinarily innocent act of merely returning home.

Furthermore, these orders often restrict contact with children, which may result in supervised parenting time or no time at all.  A parent receiving such an order must immediately vacate his or her home and make no further contact with their children.

This is about children being maliciously alienated from one of their parents. These orders, separating fathers from their children for years, and even life, are often issued without any evidence of legal wrongdoing. They are often issued at a hearing at which the accused person is not present.

In short, the entire system of dealing with DV allegations should be scrapped and another put in its place that balances the need for protection from actual harm with the rights of the accused.  As long as the current system remains, those who want to use it unjustly for malicious and deleterious ends will continue to do so.

Thanks to Augusto Zimmerman for fighting the good fight.  It’s far from over.

August 20, 2020 by Don Hubin, Ph.D., Chair, National Board of Directors

Don’t denigrate play. It’s serious child-rearing work. And, it turns out that dads and moms play with their children differently (on average–obviously, there are many individual variations).

According to recent research from Cambridge University reported in The Guardian, dads “tend to engage in more physical play like tickling, chasing, and piggy-back rides.” Even with the youngest children, fathers enjoy more “boisterous rough-and-tumble play.”

This won’t be news to most parents, and certainly not to anyone who has read Dr. Anna Manchin’s terrific book, The Life of Dad. I once read  an article by an expert on child development who frequently asked audiences of mothers and fathers for a show of hands of those who would play with their older infants by raising them up and down in their arms. Almost every hand in the room went up. Then this expert asked, and how many of the parents toss the infant up, letting go and then catching them. Then, this expert said, almost all of the mothers’ hands went down.

All kinds of play, including rough-and-tumble play have specific benefits for children.  “Children who benefited from ‘high-quality’ playtime with their fathers were, according to the study, less likely to display hyperactivity, emotional or behavioural difficulties. They also appeared to be able to control their aggression, and were less likely to lash out at other children during disagreements at school.”

The next time you’re playing hard with your toddler or child, or the next time you see a father doing this, remember: it’s not just play; it’s serious work. (That doesn’t mean that it’s not a lot of fun, too, though!)

August 18, 2020 by Robert Franklin, JD, Member, National Board of Directors

Professor Augusto Zimmerman goes on, in his presentation to the Joint Select Committee, to take on the issue of spousal maintenance (A Sense of Place, 7/27/20).  As with the child support/parental alienation/male suicide triumvirate of issues, he pulls no punches.

Surely, there is little doubt that elementary considerations of fairness and equity demand that the law compelling the payment of spouse maintenance be immediately repealed under the current ‘no-fault’ system.

It is that system of “no-fault” divorce that’s the focus of his opposition to alimony.  Zimmerman points out that, in the past, when marriage was much less easy to dissolve than it is today, a system of spousal maintenance could be defended.  After all, back then, women tended to be the primary or sole caregivers to children and, if a man violated his marriage contract, could be left with no means of support.

But today’s reality bears little resemblance to that of pre-“no-fault” days.

During the ‘no-fault’ revolution in Western societies throughout the 1960s and 1970s, the law removed considerations of ‘fault’ and divorce became a ‘right’ freely available at the decision of one spouse even against the wishes of the other.

Naturally, it becomes far more difficult in such circumstances to justify support for a young woman who leaves her husband for reasons such as boredom or because she has formed a new relationship outside the marital relationship.

Indeed, it is precisely that blatant unfairness that so rankles so many payers of alimony.  The idea that the lower earning spouse can fail/refuse to financially contribute to the family, have an extra-marital affair, divorce the other spouse and be paid to do so is simply a bit much for many people.  To the extent our legal system embraces such plainly unjust outcomes, it loses credibility and legitimacy with everyday people.

Curiously though, Zimmerman never mentions the more telling and obvious argument against alimony – that only the disabled or the very old can be said to need that support.  Again, the simple fact is that both women and men can support themselves and any legal requirement that they be supported by an ex-spouse is both unnecessary and unjust.  Essentially anyone can work and earn a living.  They should be required to do so.

Moreover, the promise of alimony is a considerable incentive to divorce.  It’s a regular payment of cash, usually for years and often enough for life.  Like all offers of cash, it powerfully motivates the potential recipient to do what’s required to get it.  In this case, divorce is the only thing required. 

Society has a great interest in stable, long-lasting marriages.  Married adults are more likely to be employed, less likely to commit crime and ingest illicit drugs, etc. than are unmarried adults.  And of course two married parents tend strongly to produce healthier, happier children than do unmarried parents, so a healthy society promotes stable marriages.  Ours does the opposite and alimony is an integral part of that disfunction.

Zimmerman’s argument that Australia’s system of spousal maintenance is unfair is apt, as far as it goes.  But it’s incomplete and, I suspect, insufficient to reform the law.  Somehow I just can’t see appeals to fairness and justice getting much traction, given the current state of discourse about family courts and family law in the Land Down Under.