Family Law Changes, Real Change or More of the Same?

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In the wake of the recently proclaimed announcements of the "biggest changes to family law in 30 years", it may be somewhat premature to claim 'victory' for children and their fathers just yet.

In the wake of the recently proclaimed announcements of the "biggest changes to family law in 30 years," it may be somewhat premature to claim 'victory' for children and their fathers just yet.

Notwithstanding the spin of official media releases, the 2005 child custody amendments do nothing more than recycle the ignored 1995 changes.

'The Family Court got it wrong!' was the plain message by Minister Peter Duncan, as he moved the Keating government's 1995 amendments. In response to the Family Court's refusal to comply with the intent of the original legislation, Minister Duncan stated that:

"The original intention of the late Senator Murphy was that the Family Law Act would create a rebuttable presumption of shared parenting, but over the years the Family Court has chosen to ignore that. It is hoped that these reforms will now call for much closer attention to this presumption and that the Family Court will give full and proper effect to the intention of Parliament."

(Duncan P. Consideration of Senate Message, House of Reps Hansard 21 November, 1995, pp 3303)

Strikingly, despite this further re-inforced legislative directive from the Labor Party, the Family Court continued to snub its nose at the intention of this legislation, and joint custody orders in fact fell further from an already paltry 5%, to a further low of just 2.5%.

In his telling "Kangaroo Court" critique, the well respected academic and social commentator, Mr. John Hirst, underscored the inability of Australian governments to fully grasp the extent of resistance to equal parenting initiatives from a Family Court with remarkably entrenched views. Of the recently proposed Family Law changes, Mr. John Hirst stated that:

"Late in 2003, the standing committee reported its findings. It is not clear why it baulked at recommending that joint custody be made law. The committee itself seemed committed to the change; the bulk of the evidence it heard was in favour; the Prime Minister had given them the cue. Although not prepared to recommend it as law, it remained sympathetic to joint custody and in appropriate cases it urged that it be encouraged. Judges in Australia were to consider equal time!"

"Consider it?

"The Court had made it abundantly clear to the committee that it was opposed to anything like equal time."

The same obstacles to anything resembling equal parenting time will be faced by this new legislation. It is a pointless exercise to ask the Family Court to 'consider' equal parenting time, when the whole culture of the Court is directed against such outcomes

Importantly, the studies that have sought the views of children document that equal time with their parents is what most children want. Everything known about the children of divorce and their needs tells us that it is in their best interests to maximize the involvement of both parents for the benefit of the child. Where both parents seek to continue their role as parents, the court should reduce neither parent to a mere visitor, unless the other parent comes forward with a compelling reason to do so.

If the Howard government genuinely favours equal parenting time as a preferred family law approach, then it must direct the Family Court with CONCRETE legislation that requires a rebuttable presumption of equal parenting time as a starting point.

History suggests that anything less will simply be conveniently interpreted by a resistant Family Court as permission to continue the failed status quo.

Jointly authorized and released by:

Joint Parenting Association

Box 7115

West Lakes, South Australia 5021

http://www.jointparenting.org.au/

&

Fathers4Equality Australia

PO Box 57,

THIRROUL, NSW, 2515

http://www.fathers4equality-australia.org/

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Ash Patil

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