Sunday, April 29, 2007

Family Court reforms

An article from the Age and my letter to the editor, which to my knowledge was not published. Do editors feel they have a community responsibility to publish the least number of letters concerning Equal Parenting and reform of the Family Court issues ?

The Age 26 April 2007

Taking some of the pain out of family breakdowns

THE Family Court has had a short but tumultuous history. Since its inception as part of the 1975 Family Law Act — initiated by Labor attorney-general Lionel Murphy with the aim of allowing failed marriages to end with dignity and minimum expense — the court has indeed simplified divorce proceedings, but it has also witnessed battles between parents, lawyers and judges, often with tragic consequences.

It has been described, with reason, as the most dangerous and violent court in the country. The most extreme clashes have resulted in death and serious injury. In the 1980s, Family Court judge David Opas was shot dead when he answered his doorbell; Pearl Watson, the wife of a second judge, died when a bomb exploded on her doorstep; and Judge Richard Gee was hurt in a bombing. Indeed, there have been numerous cases resulting in death or injury in violent episodes outside family courts around Australia.

While these incidents are tragic and deplorable, it is not surprising that the personal and financial devastation that so often follows the dissolution of a marriage has had such consequences — especially when drawn-out legal negotiations have left numerous fathers feeling abandoned by the courts and mothers struggling to raise their children with inadequate support from their former partners. But in recent months the Family Court has undergone radical changes in its processes and the results have been encouraging. As The Age reports today, the spirit of the Murphy reforms may finally have been embraced.

The formality of a trial, dominated by lawyers whose approach often exacerbated tensions between the parties, has been replaced by a conference in which the judge has a conversation with the parents and allows each to speak directly of his or her experiences, attitudes to parenting and hopes for the future. Even its straightforward title — the less adversarial trial — indicates the fact that the traditional British "adversarial" system has been replaced with a European-style inquisitorial system in which the laws of evidence are less stringent. The focus of the judge's inquiry is on the children and the arrangements that will best meet their needs.

This process is the subject of Finding a Better Way, a report to be launched tomorrow by Family Court Chief Justice Diana Bryant. Written by La Trobe University academic Jennifer McIntosh, it is a study of the effects of the process on children and parents who participated in trials of the new system in 2004 and 2005. The results are encouraging. Children whose parents were divorced under the new system emerged happier than children whose cases were processed in the traditional way; their parents argued less and were more likely to have co-operative arrangements for sharing the children than other parents. Dr McIntosh concluded that the new system "demonstrated a greater capacity to respond to and safeguard the psychological vulnerabilities of the co-parental relationship, post separations than the traditional, adversarial process". In general, parents have also been positive about the new approach: whereas 70 per cent of parents involved in the previous approach felt the process had a negative effect on them as parents, just 28 per cent of those in the new process felt this way.

This does not mean an end to disputes about custody and child support — there remains much to be done to ensure that all parents meet their responsibilities in these matters — but the Family Court has taken a huge step towards civilising what was too often a demeaning process for all involved. The great strength of the new system is that for the first time the law insists that the interests of the child be paramount and that both parents have, as far as possible, equal rights and responsibilities. The system is not perfect — for example, there are legitimate concerns about ditching the rules of evidence (particularly the abolition of the ban on hearsay) — but with goodwill, strong support systems and careful adjudication, children will be the real beneficiaries of these changes. As one QC said: "Someone has to keep an eye out for the interests of the child."


The Age Letters to the Editor 26 Apr 2007

Judges must also get out of the way

Finally ! It has taken 30 years for the Family Court system to acknowledge what Dads have been arguing all along - that their adversarial system is grossly inappropriate ("Taking some of the pain..." 26 Apr 07). In fact, by amplifying conflict they have been damaging children and acting contrary to the child's best interests.

However, they still don’t get it ! While the Family Court now admits that trials have been “dominated by lawyers whose approach often exacerbated tensions between the parties”, they still do not see that judges also need to get out of the way.

The new Family Relationship Centres are the way to go, but until they are mandatory, until they have authority, transparency and accountability, and until they are based on a Presumption of Equal Parenting Time, they are not going to be able to keep separating partners out of court.

A judge has no right to decide how much access a child has to each parent when the parents are together. Assuming there is no child abuse - by far the majority of cases - what gives judges the right to make arbitrary judgments on access just because the parents have separated ?

Geoff Holland
Cairns, Qld

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