Family Law Amendments Would Roll Back Shared Parenting

This is a tale of two articles.  They both discuss the same thing, but have decidedly different slants on it.  They’re both about proposed changes to Australia’s Family Law Act of 1975.  This one (The Australian, 3/24/11) takes a decidedly sunnier view than this one (The West Australian, 3/23/11).

The ink was barely dry on the Howard government’s 2006 amendments to the Family Law Act promoting shared parenting, when opponents started attacking them.  They claimed that, despite clear language indicating that commission of domestic violence by a partner must be taken seriously before deciding custody, judges weren’t doing so.  That pattern of behavior, so opponents claimed, was resulting in “abusers getting custody.”

Never mind that they started leveling the claims long before any evidence for the proposition had been accumulated, let alone analyzed or published.  But, as is so often the case with those who pretend that men pose a unique threat to children, evidence wasn’t necessary.  They had their narrative of events and they were stickin’ to it.

Even now, they have essentially nothing beyond anecdotes to back up their claim.  After all, it’s been about 4 1/2 years since the effective date of the 2006 amendments and I for one have neither seen nor heard about a single authoritative study of post-amendment custody cases showing that judges were turning children over to abusers.  Indeed, the amendments could scarcely have been clearer about the importance of domestic violence in deciding custody.

Now, the rude among our readers are probably thinking “judges have always given custody of children to abusers.  That’s because 83 – 90% of custodial parents (depending on the country) are mothers and mothers commit the vast majority of child abuse and neglect.  Ergo, it’s almost a certainty that judges have given children to abusers.”

That fact, plus the absence of any comprehensive evidence that judges ignore the strictures in the amendments when it comes to abuse by fathers, pretty much compel the conclusion that the torrent of outrage directed at the amendments stems from a desire to keep mothers in command of fathers’ access to children and not concern for the children themselves.

So while the first article is headlined “Family Law Revamp to Keep Shared Care,” don’t be fooled.  From the two articles’ descriptions, the proposed bill submitted by Attorney General Robert McClelland will do exactly that, but merely as a fig leaf covering serious backtracking on fathers’ rights.

Under proposed new arrangements, the Family Court will still have to consider whether divorced parents have encouraged a close and continuing relationship between the child and their former partner when awarding custody.

That looks like a good thing until you consider that claims of domestic violence trump all else.  Of course that’s true now but the proposed law,

redefines domestic violence and places greater weight on child safety, meeting a key criticism of the Howard reforms.

How does it “redefine domestic violence?”  Apparently in about as general a way as can be imagined.

The definition now contains a general characterisation of harmful behaviour instead of an exhaustive listing, and provides examples of stalking, maiming pets and financial abuse.

You read that right, a “general characterization of harmful behavior.”  Could any terminology be more apt to result in wildly differing interpretations by courts?  Could any words open the door wider to judges to simply substitute their own biases about parenting for reliable, gender-neutral analyses?

And “financial abuse” is now officially considered to be violent.  As a practical matter, that means that the dad who persistently tells his wife “Dear, we really don’t have the money for you to buy so many shoes,” can lose his kid in divorce court because of it.  Under countless circumstances of course, his behavior could be considered responsible and caring, and by no definition of the word is it violent.  But in Australian divorce court it’s exactly that and yet another excuse to deprive fathers of their children (as if there weren’t enough already).

But there’s worse to come.

Under Labor’s amendments to the Family Law Act, the evidentiary burden on those seeking to show that a child faces a risk of violence has been eased after concerns that lawyers were advising clients against disclosing violence against them in case they were seen as an “unfriendly parent”.

That evidentiary burden has never been heavy.  As many fathers have said, pretty much any allegation will suffice; now courts will be able to accept even less.

The flip side is that any dad seeking to prove that the allegations are baseless has an even steeper hill to climb to get the judge to ignore false claims.

Remarkably, the first article’s view of all that is entirely equable.  It ends with the claim that not much will change from existing law.

As I said, the second article’s view of the matter is less optimistic and, I’m sure, more accurate.  One of its main points is that the proposed law, by encouraging claims of domestic violence and greatly expanding the definition of the term, will result in courts being flooded with angry parents, charging and rebutting domestic violence.

Divorced parents’ groups say proposed family law changes will swamp the courts with vexatious claims of family violence made by embittered ex-partners in custody disputes.

Brian Fisher, a spokesman for the Family Law Reform Association, said under the proposed changes, the definition of family violence would be left open-ended and become too subjective, making it easier for judges to restrict or terminate parental contact.

As an example, he said a woman could make an allegation that her estranged husband “raised his voice and I was scared”, leaving it virtually impossible for the accused to challenge that claim.

The changes will also water down sanctions against partners who made false statements about their exes, which Mr Fisher said would only encourage further damaging and untrue claims to be made during ugly court battles.

The veneer of gender equality in all this is not just tissue-thin but shredded.  No serious person pretends that the proposed changes are anything but a roll-back of fathers’ rights to their children and children’s rights to their dads.  And no one can pretend that anything else is the intent.  No informed person believes that it’ll be dads coming into divorce court saying “she frightened me, so I get the kids.”  And no one believes that if they did the courts would take them seriously.

The proposal is so far just that – a proposal; it’s not yet law.  In order for it to become law, it has to get a majority of votes in the Australian Parliament.

So now is the time for father’s groups and all those who truly care about children’s welfare to step up to the plate.  Specific MPs should be identified and their names and contact information should be distributed far and wide.  Those MPs should be contacted and told in no uncertain terms that a vote for this travesty means they will lose their seat in parliament.  And, those who vote ‘Aye’ must find themselves the target of a concerted electoral effort to defeat them.

Before any vote is held on the new amendments, fathers’ rights lobbyists must sit down for face-to-face meetings with MPs and explain all the many reasons why the bill must fail.

The game is afoot.

Thanks to Ned for the heads-up.

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