In the best interests of the children


In his regular public utterances the former Chief Justice of the Family Court, Alistair Nicholson, spoke of what he saw as an oddity in Australian political culture – that failed litigants from the Family Court took their grievances to politicians. He complained that some of the politicians made the mistake of listening sympathetically, which encouraged these failed litigants to believe that their grievances were justified. Politicians, it appeared, were responsible for breeding opposition to the Court.

Fathers had many grievances against the Court, but they made the proposal for joint custody their rallying cry. They opted for joint custody because it most clearly signals what is wrong with their experience in divorce. They become marginal to their children’s lives. If they can still see their children it is usually only every second weekend, which does not allow them to live normally with their children; they are forced into the role of courting or entertaining them. The scholarly literature now supports their complaints in arguing that fathers can only remain effective parents if they can help, guide and discipline children in their everyday lives. Whether joint custody is necessary to achieve this remains the question.

It is a tribute to our representative system that parliamentarians have been responsive to fathers’ complaints. There has been bipartisan interest in the issue, but members of the Liberal and National parties have been more responsive. The fathers who have suffered most are poor and live in the outer suburbs and in the regions, now not Labor territory. Labor is also more aligned with women’s lobby groups, and to support demands made by men looks like a retrograde move and maybe threatening to women. Women’s groups have been properly concerned to protect women from violence in divorce, a case that is now well accepted.

The fathers and their organisations have been more successful in getting enquiries held than in getting the law changed. Unless someone with sufficient authority commands the issue and sees clearly what has to be done, change will be only incremental. In June 2003 Prime Minister John Howard indicated his support for – or his inclination towards – joint custody. He was worried at so many young boys growing up with no contact with their fathers and without any male role model. This had become a widespread concern; attacked on this front the Family Court seemed more vulnerable than when it was accused by men’s groups of being hard on fathers. Howard transmitted the proposal for consideration to the House of Representatives standing committee on Family and Community Affairs, which was to report within six months. It was asked to consider whether on separation there should be a presumption that children spend equal time with each parent and on what grounds the presumption could be rebutted.

Chief Justice Nicholson was the chief opponent of this proposal. He defended the Court’s record on the allocation of custody and criticised the joint custody plan as being developed by fathers who were not thinking of the best interests of their children. But the starting point of the enquiry had been that it was not in children’s best interests that fathers be excluded! He was concerned, along with women’s groups, that the plan would yoke women to violent men. But the joint custody was rebuttable; it was to be the starting point of negotiations and it could be argued against! A violent man would be the first to be excluded from it. Nicholson’s chief point was that the plan was ‘a one size suits all’ solution. This overlooked both that the plan was rebuttable (and hence adjustable to varying degrees) and that the present system itself produced a standard settlement: kids with the mother, fathers with access every second weekend.

Nicholson was on firmer ground when he listed the practical difficulties of joint custody: parents living too far apart (kids can’t have two schools); children preferring one home; a high degree of co-operation necessary between parents. Generally the discussion of the difficulties was clouded by how the subject had been introduced. The Prime Minister took joint custody to mean a 50/50 time sharing. When Yuri Joakimidis, the scholar of joint custody and national director of the Joint Parenting Association, heard that formulation, he feared it had been used to stymie change since it is so easy to find objections to it. His formulation is that a joint custody settlement should ‘maximise the time and involvement each parent is willing and able to contribute in raising their children’. As to the time, he is happy to see a range of between 40 per cent and 60 per cent, which can be achieved in a variety of ways, not necessarily week and week about. Perhaps he should be even more flexible. Getting the time to be quality time is the key thing. Why always weekends? A dad spending two weeknights with his daughter could help with homework and go with her to her netball practice. For young children short visits of an hour every other day would be more beneficial than a block of time every other week.

Do the fathers really want more involvement? About a third lose all contact with their children. Custodial mothers complain that fathers regularly do not show up for their access visits and they are left to explain the absence to disappointed children. The Joakimidis formula allows for this – willing and able. Surveys here and in Britain indicate that fathers are looking for more involvement.

Those who list all the practical difficulties should recognise that joint custody is in part a symbolic claim; it is a protest against automatic marginalisation and exclusion. The claim could be conceded and the practical difficulties allowed to work themselves out. A man offered the chance of looking after his children every other week may decide that their home can be with their mother so long as he has a say in when he can see them – and it might be more than every other weekend. And if his circumstances change, the option would be there for him to increase his involvement.

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 the Court 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 or to doing anything differently. The only way to control the Court is to instruct it where the best interests of children lie.

This is an edited extract from Quarterly Essay no.17, ‘Kangaroo Court’: Family Law in Australia, by John Hirst ($13.95, Black Inc.).

This is an edited extract from Quarterly Essay no.17, ‘Kangaroo Court’: Family Law in Australia, by John Hirst ($13.95, Black Inc.).

Launched in 2004, New Matilda is one of Australia's oldest online independent publications. It's focus is on investigative journalism and analysis, with occasional smart arsery thrown in for reasons of sanity. New Matilda is owned and edited by Walkley Award and Human Rights Award winning journalist Chris Graham.