Family Law is one of the most contentious and emotional issues that governments have to deal with. Everybody feels like a loser in the Family Court. Whether it’s about property, custody, or child support, nobody comes out a winner. That’s why there are so many complaints about it, and so many inquiries into it.

The government released three reports yesterday on the effect of the changes to the Family Law Act. These changes, introduced in 2006, were designed to better enable both parents to be responsible for their children following separation. Nobody was really happy with what was happening previously. Generally, you got what was called the 80/20 rule – mothers had custody of children, and fathers had ‘access’ every second weekend and maybe half of the school holidays.

This left everybody disgruntled. Dads were encouraged to be “Disney Dads” taking kids out and buying them things when they saw them. Mothers were generally left to do all the disciplining and pick up the pieces when fathers didn’t turn up. Kids were shunted back and forth every second weekend, disrupting their social networks and sporting competitions.

Nobody liked it, and everybody wanted it changed. But not the way it happened.

The 2006 changes were called the Family Law Amendment (Shared Parental Responsibility) Act 2006. Great name, great intention. But what it did was introduce a presumption of shared custody of, rather than shared responsibility for children. It did this by including in the Family Law Act a number of clauses which specifically talk about children spending substantial time with each parent. While the government says this was never the intention, that is what is happening in many cases.

The first report on the latest changes is from the Australia Institute of Family Studies. It’s the mildest of the three, and it found that shared care (not shared custody) generally works well. Except in cases where there is violence or abuse, where the well being of children is severely compromised in shared care arrangements. Hardly surprisingly, it also found that in cases which go to the Family Court there are higher percentages of violence than in the general population, and that the Family Law system doesn’t respond very well to violence or child abuse.

It also found that the (unintended) consequences of this legislation are that it favours fathers over mothers, and parent’s rights over children’s needs. As a result, there are children in shared care arrangements where there are concerns for their safety.

The Family Law Violence Review by Richard Chisholm goes even further. It found that women are now very reluctant to raise allegations of violence or abuse in court for fear that they will lose custody if they fail to prove it. The very circumstances reported by Darcey Freeman’s mother after Darcey was murdered by her father when he threw her off the West Gate Bridge.

And then there’s the report by the Family Law Council which finds that women and children are being put at risk, and the Family Court doesn’t deal very well with violence.

Unfortunately this isn’t the first time this has happened.

Way back in December 2000, the Rhoades, Graycar & Harrison report on the first three years of the 1996 Family Law changes found exactly the same thing. Women and children were being put at risk, with children being forced to be handed over to their abusers.

I hate to say “I told you so”, but – I told you so. Many people told you so. In fact, all the evidence and all the experts told you so. The Family Court said they wouldn’t be able to administer a presumption of shared care, lawyers said there would be confusion about what it meant, domestic violence workers said women and children would be put at risk, child psychologists said it wouldn’t be good for children, research from places where it has been introduced said shared care doesn’t work where it is court ordered and there are high levels of conflict, or violence or abuse. Yet, it was introduced.

The Attorney General said yesterday we need more education, rather than any legislative change. More education? I don’t think even the Audit Office could work out how much money and time governments have spent over the years educating people about domestic violence. Yet it still happens. And courts still ignore it. And, more importantly, governments continue to listen to very vocal, very disgruntled men’s groups who deny that it is a problem and insist that women make up allegations of violence to gain an advantage in court. If you don’t believe me, just read the transcripts of the Hearings into these very changes.

Three reports Mr Attorney General. Three. All independent of each other, and all saying the same thing. These changes are not working. It’s the legislation itself putting women and children at risk, not lack of understanding about it.

One child has already died as a direct result of this legislation. How many more have to do so before you agree to change it?

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Peter Fray
Peter Fray
Editor-in-chief of Crikey
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