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The formality of a trial, dominated by lawyers whose approach often exacerbated tensions between the parties, has been replaced by a conference in which the judge has a conversation with the parents and allows each to speak directly of his or her experiences, attitudes to parenting and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
Showing posts with label Family Relationship Centres. Show all posts
Showing posts with label Family Relationship Centres. Show all posts
Sunday, April 29, 2007
Monday, February 19, 2007
More on the Kangaroo Court and Child Support
Forget about Child Support
I believe one of the reasons my ex-partner wishes me to have minimal time with my son is simply as a punishment, an act of malice. I believe a further reason is that the more contact I have with my son, the less Child Support I am required to pay her. Worse, if we had Equal Residency, which I was seeking, my ex-partner may have to pay me Child Support (due to her higher income).
I do not wish to receive any Child Support from my ex-partner (unlike my ex-partner, who has complained I am not giving enough to her). I would like to sign a Parenting Agreement stating that if we had Equal Residency, neither of us would seek Child Support from the other. However, as my ex-partner knows, such a condition would not be recognised by the Family Court. So I have no way to guarantee my ex-partner that I would not claim Child Support (as she is currently doing), whereupon I would be able to remove one of the barriers to her agreeing to Equal Residency. This is another example of the counter–productive nature of Family Court policy.
Kangaroo Court
My ex-partner was advised by her solicitor as early as October 2002 that she would most likely gain 70% of the assets if she went to Court. She won 68% of the assets. After an immense amount of time was spent by both parties producing documents demonstrating financial contributions to the relationship and including, for example, supermarket dockets from four years prior, and unstamped bank deposit slips, and after simply ignoring much of that documentation and giving an unjustified discretionary ‘global assessment’ it seems that the final outcome was in fact a virtual foregone conclusion. It appears that this was a Kangaroo Court.
Given that the mother was working fulltime and was on call some evenings and weekends while the father was available to look after the child fulltime if necessary; given that the father already had sole custody of the child’s half-sister, and given that the Child Psychologist had presented a three stage plan of increased contact with the father (to six days and four nights a fortnight) on the basis of a positive Family Report, it seems as though the judge reluctantly conceded the Child Psychologist’s recommendations.
Had I not had these exceptional circumstances in my favour I feel sure the judge would have ordered the standard second weekend contact, plus the cynical three hours contact after school one day a week which judges now add in the face of mounting evidence of the damage to children from being alienated from a parent (and despite the evidence that children respond better to block contact, not fragmented contact).
How can you split a week ?
To my constant amazement, I was asked by Family Court officials on a number of occasions – how did I think Equal Residency could work since my son was too young to be away from a parent (read ‘mother’) for a whole week. And how can you divide a week in half ? (there being an odd number of days in a week).
Well couples do this all the time, the most obvious plan being that you alternate four days (father) and three days (mother), and then three days (father) and four (mother).
You are left with the feeling that the culture of the Family Court is unimaginative, devoid of lateral thinking, and with an inability to think outside the square.
Do you actually believe the Family Court amplifies conflict?
During the Final Hearing I argued that it would be better to have Final Orders that could give finality to the Family Court process rather than orders which would require us, the parents, to return to the Court two years later, because the adversarial Family Court process amplifies conflict, and we need to resolve conflict. Justice Carmody was unable to fathom this argument. “Do you mean to say that if two people come to the Family Court and there is no conflict between them then the court will create conflict ?” he asked. I responded “If two people come to the Family Court it usually means that there is already conflict between them. But the way the Family Court operates means that solicitors will search for ammunition, and that there will be more accusations and counter-accusations as a result”. It seemed he just could not comprehend what was blatantly obvious to me from my own experience of the Family Court system. It is structured in ways which amplify and generate conflict.
This obvious fact is extremely serious because one of the most important factors in a child’s life is some sort of reconciliation, forgiveness, cooperation and harmony between the separated parents to heal the huge rift of divided loyalties and love the child has for both parents. The dynamics of the Family Court system together with the Family Law Industry tend to amplify conflict and can produce resentment meaning there is never any sort of reconciliation between the parents leaving many children emotionally scarred for life.
The new Family Relationship Centres (FRCs) are an admission and recognition that the current adversarial system is fundamentally flawed. But the FRCs will not work because the Family Court’s quirky policies and gender-biased laws have not changed.
Afterword
It has been said that men often have trouble letting go of issues after divorce, and they harbour resentment for years even to the point of obsession, unable to move on. My detailed account above could be interpreted in this light.
I therefore hasten to assure the reader that though I am extremely disappointed with the Family Court system and the Family Law industry, and though I have become a committed activist as a result of my experience (which I know is not nearly as unjust and outrageous as other cases I have come to learn about), I have indeed moved on. I am very happy with my life, and I have a relatively positive engagement with my ex-partner with regards to our son, (who thankfully has been protected from much of the pain of the separation and anguish of the Family Court process).
In the same way that any political activist must fight for justice and a more enlightened system - for years if not decades, I too must keep arguing my case along with thousands of other activists here in Australia. So please consider this before reducing and relegating my account to some negative male stereotype.
Geoff.
I believe one of the reasons my ex-partner wishes me to have minimal time with my son is simply as a punishment, an act of malice. I believe a further reason is that the more contact I have with my son, the less Child Support I am required to pay her. Worse, if we had Equal Residency, which I was seeking, my ex-partner may have to pay me Child Support (due to her higher income).
I do not wish to receive any Child Support from my ex-partner (unlike my ex-partner, who has complained I am not giving enough to her). I would like to sign a Parenting Agreement stating that if we had Equal Residency, neither of us would seek Child Support from the other. However, as my ex-partner knows, such a condition would not be recognised by the Family Court. So I have no way to guarantee my ex-partner that I would not claim Child Support (as she is currently doing), whereupon I would be able to remove one of the barriers to her agreeing to Equal Residency. This is another example of the counter–productive nature of Family Court policy.
Kangaroo Court
My ex-partner was advised by her solicitor as early as October 2002 that she would most likely gain 70% of the assets if she went to Court. She won 68% of the assets. After an immense amount of time was spent by both parties producing documents demonstrating financial contributions to the relationship and including, for example, supermarket dockets from four years prior, and unstamped bank deposit slips, and after simply ignoring much of that documentation and giving an unjustified discretionary ‘global assessment’ it seems that the final outcome was in fact a virtual foregone conclusion. It appears that this was a Kangaroo Court.
Given that the mother was working fulltime and was on call some evenings and weekends while the father was available to look after the child fulltime if necessary; given that the father already had sole custody of the child’s half-sister, and given that the Child Psychologist had presented a three stage plan of increased contact with the father (to six days and four nights a fortnight) on the basis of a positive Family Report, it seems as though the judge reluctantly conceded the Child Psychologist’s recommendations.
Had I not had these exceptional circumstances in my favour I feel sure the judge would have ordered the standard second weekend contact, plus the cynical three hours contact after school one day a week which judges now add in the face of mounting evidence of the damage to children from being alienated from a parent (and despite the evidence that children respond better to block contact, not fragmented contact).
How can you split a week ?
To my constant amazement, I was asked by Family Court officials on a number of occasions – how did I think Equal Residency could work since my son was too young to be away from a parent (read ‘mother’) for a whole week. And how can you divide a week in half ? (there being an odd number of days in a week).
Well couples do this all the time, the most obvious plan being that you alternate four days (father) and three days (mother), and then three days (father) and four (mother).
You are left with the feeling that the culture of the Family Court is unimaginative, devoid of lateral thinking, and with an inability to think outside the square.
Do you actually believe the Family Court amplifies conflict?
During the Final Hearing I argued that it would be better to have Final Orders that could give finality to the Family Court process rather than orders which would require us, the parents, to return to the Court two years later, because the adversarial Family Court process amplifies conflict, and we need to resolve conflict. Justice Carmody was unable to fathom this argument. “Do you mean to say that if two people come to the Family Court and there is no conflict between them then the court will create conflict ?” he asked. I responded “If two people come to the Family Court it usually means that there is already conflict between them. But the way the Family Court operates means that solicitors will search for ammunition, and that there will be more accusations and counter-accusations as a result”. It seemed he just could not comprehend what was blatantly obvious to me from my own experience of the Family Court system. It is structured in ways which amplify and generate conflict.
This obvious fact is extremely serious because one of the most important factors in a child’s life is some sort of reconciliation, forgiveness, cooperation and harmony between the separated parents to heal the huge rift of divided loyalties and love the child has for both parents. The dynamics of the Family Court system together with the Family Law Industry tend to amplify conflict and can produce resentment meaning there is never any sort of reconciliation between the parents leaving many children emotionally scarred for life.
The new Family Relationship Centres (FRCs) are an admission and recognition that the current adversarial system is fundamentally flawed. But the FRCs will not work because the Family Court’s quirky policies and gender-biased laws have not changed.
Afterword
It has been said that men often have trouble letting go of issues after divorce, and they harbour resentment for years even to the point of obsession, unable to move on. My detailed account above could be interpreted in this light.
I therefore hasten to assure the reader that though I am extremely disappointed with the Family Court system and the Family Law industry, and though I have become a committed activist as a result of my experience (which I know is not nearly as unjust and outrageous as other cases I have come to learn about), I have indeed moved on. I am very happy with my life, and I have a relatively positive engagement with my ex-partner with regards to our son, (who thankfully has been protected from much of the pain of the separation and anguish of the Family Court process).
In the same way that any political activist must fight for justice and a more enlightened system - for years if not decades, I too must keep arguing my case along with thousands of other activists here in Australia. So please consider this before reducing and relegating my account to some negative male stereotype.
Geoff.
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