family law

Family Law Reform Fiasco – Rearranging the Deck Chairs on the Titanic

27 February 2023

8.4 MINS

The proposed Family Law Amendment legislation by the Labor Government will be another case of rearranging the deck chairs on the Titanic, instead of fixing the hole in the hull to stop the ship from going down.

Many of the reform proposals, such as considering the best interests of the child, are well-intentioned, but unless they solve the fundamental problem, they really become another layer of bureaucracy to waste taxpayers’ money.

Furthermore, the language of the proposed draft Family Law Reform Bill is very vague and ill-defined. It will assuredly add hundreds of millions of dollars to the legal bills of divorcing mothers and fathers over the next five years, if not billions of dollars.

This is not a small reform. It is a massive reform. To say it is not a major reform is a lie. The proposed vague Family Law amendment legislation will require many new legal precedents to be set, thus requiring expensive litigation.

Many cases, in need of a new precedent, will end up in the High Court. The lawyers will get rich, and the children will get poorer. So much for the best interests of the children.

Sadly, both mothers and fathers will inadvertently be hurt even more so than in the already vexatious process. The new amendments will result in far more ‘winner takes all’ outcomes.  The children will be the ultimate losers.

Fraught

As the Beatles and Jimi Hendrix prophetically sang in Sargeant Pepper’s Lonely Hearts Club Band, “It was 20 years ago today”… Twenty years ago in June 2003, Prime Minister John Howard called for an enquiry into the need for a ‘presumption of shared parenting’.

In late 2003, the House of Representatives’ Standing Committee on Family and Community Affairs side-stepped the Prime Minister’s original request, and came up with a nebulous concept of ‘shared parental responsibility’ and the need to direct divorcing couples away from the Family Law Court via an early intervention programme.

In the latter matter, directing divorcing couples away from expensive, often fruitless, and heartbreaking litigation procedures within the Family Law Court, the Committee’s report was one hundred percent correct.

I refuse to encourage people to go to the Family Law Court. Litigation between family members, especially mothers and fathers, is a suicidal process at the best of times. With the current anti-shared parenting culture in the Family Law Court, the decisions, more often than not, already result in increased rates of fatherlessness for children.

The new changes will cut more dads out of their children’s lives. Such a proposal is not in the best interests of the children.

Dads Missing in Action

Fatherlessness has been shown to increase the likelihood of increased poverty, increased crime, increased incarceration in a prison, increased likelihood of violent sex crimes against women, increased drug abuse, lower educational performance, increased susceptibility to mental health problems, increased risk of suicide and increased likelihood of child sexual abuse. See Facts on Fatherlessness.

If Australia can increase the proportion of children growing up with involved, responsible and committed fathers, we can begin to solve the problem of fatherlessness in Australia. Dr Bruce Robinson in 2003 estimated that fatherlessness costs Australia 13 billion dollars per year. With inflation, that would be 26 billion dollars today.

The problem of fatherlessness calls for a broad range of both government and community-based initiatives. The easiest part of the fatherlessness problem to fix would be the wise reform of the Family Law Court.

The simple introduction of a presumption of equal parenting, while imperfect, is the best solution by far of all the bad options.

It should be noted that there is no such thing as a good option in divorce for children. Only a better option than the others. As Winston Churchill famously said, “Democracy is the worst form of government, but it is better than all the rest.”

Divorce will always produce a certain amount of fatherlessness and motherlessness, whichever way the sums are done. The key is to find a way to ensure equality for divorcing couples, justice for children, and reduce divorce at the same time.

Hamstrung

Sadly, the proposed 2006 child custody changes in the Family Law Reform package did nothing more than recycle the ignored 1995 changes.

“The Family Court got it wrong!” was the plain message by the then Labor 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 (Labor) Senator Murphy was that the 1976 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 reinforced 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: Family Law In Australia” 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 those Family Law changes, Mr Hirst stated in 2005 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!”

Mark Twain said, “History does not repeat itself, but it rhymes.”

Getting Worse

Fast forward 20 years to 2023, and we find the Albanese Labor Government wanting to take any remaining suggestion of Equal Shared Responsibility, or the consideration of significant time, out of family law.

The reverse should be the case. We still desperately need a Presumption of Equal Shared Parenting after divorce. Nothing else will do. We laid this objective out as Point 6 in the 2003 12Pt Plan in the document called “Fathers in Families — Strengthening & Supporting Fathers & Turning the Tide of Fatherlessness in Australia.”

The new anti-shared parenting family law changes are an acquiescence to the whole culture of the Family Law Court, which is directed against such outcomes. Shockingly, this anti-shared parenting culture is now about to become law.

Radical feminist ideology that men as fathers are no longer necessary is negating the biological science. It takes a mother and a father to create a child. It takes a mother and a father to raise a child. Children have a biological birthright to a mother and a father.

The preamble to the UN Convention on the Rights of the Child adopted on 20 November 1989 confirms the child’s biological birthright to a mother and a father:

Convinced that the family, as the fundamental group of society and the natural environment for the growth and well-being of all its members and particularly children, should be afforded the necessary protection and assistance so that it can fully assume its responsibilities within the community.”

Furthermore, article 7 of the UN Convention on the Rights of the Child again confirms the biological birthright of a child to a mother and a father.

“The child shall be registered immediately after birth and shall have the right from birth to a name, the right to acquire a nationality and. as far as possible, the right to know and be cared for by his or her parents.”

This biological birthright to both parents is further confirmed in the words of Article 9 section 3,

“Parties shall respect the right of the child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis.”

Interestingly, article 18, section 1 of the UN Convention on the Rights of a Child provides a strong legal argument for a presumption of Equal Shared Parenting in the event of separation or divorce.

“Parties shall use their best efforts to ensure recognition of the principle that both parents have common responsibilities for the upbringing and development of the child.”

Suffer the Children

If we purport to represent the best interest and viewpoints of the children, why not give them what they want? Studies show that children, in the event of divorce, want equal time with both of their parents.

Everything we know about children of divorce is that for their best interests, we need to maximise the involvement of both parents for the benefit of the children. 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.

It would be wonderful if the government would consider not only the wishes of Australian children, but also those of the voting public. In polls taken at the last major change to family law reform in 2006,the polls showed that the concept of shared parenting in the event of divorce received between 91% (Insight Poll) and 82% (Channel Nine Poll) support.

In a federal poll at the time in early 2004, Family Law Reform and Child Custody was the number one issue, outpolling Medicare by over six times. Currently, I believe the Australian public has a deep sense of unease about the Federal Labor Government’s proposed bill for Family Law Reform. This unease has yet to be articulated, but will be expressed in Anthony Albanese’s Labor loss of power in the 2025 election.

The proposal for major family law reform disguised as an amendment to the Family Law Act is also immoral in its process. Every bit of legislation to do with marriage in relation to Family Law since the Matrimonial Bill of 1957 has been decided in the Parliament by a conscience vote (Free Vote) by both parties except the current proposed reform and the Gillard 2011 family law reform.

The reason Family Law Reform is decided by a process of conscience is that it needs a free and open debate throughout the community to ensure unjust laws are not passed on a partisan basis. Why change that time-honoured process by promoting an unjust radical anti-child, anti-shared parenting ideology by a one-party Labor /Greens majority who do not care about the rights of the child?

Martin Luther King was right to say,

“Injustice anywhere is a threat to justice everywhere. We are caught in an inescapable network of mutuality, tied in a single garment of destiny. Whatever affects one directly, affects all indirectly.”

Australia’s most pressing reason for Family Law Reform is to turn the tide of family breakdown, which will in turn lower the divorce rate. We must put our children first both in word and in deed.

According to American researchers John Guidubaldi and Richard Kuhn, divorce rates in the USA declined nearly four times faster in high joint custody states compared with states where joint physical custody was rare.

As a result, the states with high levels of joint custody now have significantly lower divorce rates on average than other states. The real reason the Titanic is sinking is from the point of view of the wellbeing of our children. This is because we have refused to put a premium on marriage. Our children are the beneficiaries when marriages thrive.

Dr Wade Horn, author of The Fatherhood Movement: A Call for Action, said, “The best prevention for fatherlessness is building strong healthy marriages.” Unless Family Law Reform works towards preventing divorce in the first place, it will continue to be a ‘Clayton’ style of reform.

Unless Australia deals with the fundamental problem, which is the continuing high rate of family breakdown, and puts a premium on marriage, the Family Law Reform fiasco will continue.

The Government must give a firm direction to the Family Law Court, that a presumption of equal shared parenting in legislation must be the starting point for all divorcing couples. Until that happens, the Family Law Reform Fiasco will continue and re-arranging deck chairs on the Titanic will continue to be our primary occupation.

Lovework

My advice for married couples is simple. Determine to stay in love at all costs. Your children need both of you. The alternative is unthinkable. Marriage requires work. As Andre Maurois said, “A successful marriage is an edifice that must be rebuilt every day.”

My advice for those who love their children or their grandchildren: your children don’t have a voice, so they need yours now. Please send an email to Labor Attorney-General Mark Dreyfus and tell him his proposed Family Law reforms will hurt our children even more. The opportunity for submissions closes at 5PM on Monday 27 February 2023. Use this email address: FamilyLawReform@ag.gov.au

For more information, check out my article “Dads Cut Out in Changes to Family Law”.

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First published at Dads4Kids. Photo by Karolina Grabowska.

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2 Comments

  1. Leonie Robson 27 February 2023 at 10:29 am - Reply

    Email sent.
    Thanks brother for your rundown of what is being proposed.
    It’s breathtaking in its audacity.

  2. Kaylene Emery 27 February 2023 at 7:15 pm - Reply

    Dear God please lead the women of Australia to stand up and stand beside our our men n boys. Let us not wait for them to ask us because they are not like us and they may not ask.
    Thank you Warwick and all of those men who do speak and take action. Thank you for protective role in our family and our society.

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