Sunday Herald Sun (Melbourne)
10 January 2010

Editorial

Family law must be fair

Family law is a vexed and emotionally charged area. It has been a source of controversy and review for decades - ever since 1975 when Lionel Murphy enacted the Family Law Act, which enshrined no-fault divorces.

But, after countless reviews and changes to the law, we are yet to get it right.

In 2006, the Howard government established the principle of shared parenting to encourage both parents to share responsibilities after divorce. It gave fathers a better chance of gaining custody or helping to rear their children.

Feminist groups have now mounted a campaign to have the shared parenting legislation rolled back and the Rudd Government is exploring the proposals. There have been no fewer than six official reviews of the Family Law Act.

Obviously, the protection of children is paramount in family law, but there needs to be a balance that ensures the rights of all parties are respected.

There is an increasing number of cases in which parents have been stopped from seeing their children because the system has been manipulated by the other parent. There have been cases in which parents who have abused children have been given custody or access to them.

Today, the Sunday Herald Sun exposes such a case. A mother, found by the Family Court to be violent, untruthful, lacking moral values and responsible for emotional and psychological abuse of her children, has been given custody.

Their father, described by a judge as "intelligent" and "courteous", was falsely accused by his former wife of sexual abuse of his daughters and has not had regular contact with the children since August 2005.

The Family Court ruled that the father was no threat to his daughters, but found that because of the time he spent apart from the children, it was best they not see each other.

The judge added: "It is a sad fact in the family law jurisdiction that a determination which is most consistent with the best interests of the children can appear to reward bad behaviour on the part of one parent and work in apparent injustice for the well-motivated, best-performing parent."

While the court's decision is understandable, it surely raises questions about the need for safeguards to prevent a parent being wrongly tagged as violent or abusive.

The system needs to be refined under the guiding principle that men and women should have equal opportunities to develop loving relationships with their children. It must protect and nurture all parties in a divorce. It must aim to be both compassionate and fair.

The law will never be perfect. But it can be better.

Sunday Herald Sun (Melbourne)
10 January 2010

Fury at ruling in custody battle
By Laurie Nowell

A mother found by the Family Court to be violent, untruthful, lacking moral values and responsible for the psychological and emotional abuse of her children has been given custody of them.

The father, deemed "principled" and with "much to offer his children", has been effectively banned from seeing his daughters.

The case will spark renewed debate about family law and the issue of shared parenting.

The father, who we will name "Bill" because he cannot be identified for legal reasons, is described by a Family Court judge as no threat to his daughters, a successful parent who is "courteous" and "intelligent".

The same judge found the mother, whom we will call "Jasmine" and who abandoned her first daughter at two and spurned the child's subsequent attempts at reconciliation, had displayed "dreadful", "cruel" and "malicious" behaviour.

But the judge still ruled that because of time spent apart, the children had become estranged from their father and it was in their interests that "the children spend no time with the father".

This was at odds with a ruling in February 2008 that Bill should have contact with his daughters.

But in last month's ruling, the judge said: "The necessity to preserve the children's physical, emotional safety and welfare is overwhelming. However unsatisfactory this outcome is for the father, it is the outcome most aligned with the children's best interests.

"In addition, it is the only outcome which will afford the girls the peace they require now while permitting some possibility of a relationship between the father, (the children) and their siblings in the future, however long term that may be."

But the judge added: "It is a sad fact in the family law jurisdiction that a determination which is most consistent with the best interests of the children can appear to reward bad behaviour on the part of one parent and work in apparent injustice for the well-motivated best performing parent."

Bill has not seen his daughters since April and has not spent extended time with them since August 2005.

He says the estrangement was largely a result of false allegations of sexual abuse of the children made against him by his former wife.

The custody ruling in the Family Court last month came after a seven-year battle over access to the girls, now aged nine and 11.

It followed a criminal trial in 2007, when Bill, 55, was cleared of the sexual abuse allegations. The trial judge found them totally false and threw the case out.

The ordeal has cost Bill his home, his job and about $450,000 in lost income and legal costs. He has faced court 70 times to clear his name and try for some form of access to his children.

"It has been a nightmare. All I wanted was to be part of my children's lives - to try to give them a good start in life," Bill said.

"But I am denied that because of the malicious way in which my ex-wife has acted and because of the credence the legal system has given her lies and falsehoods.

"The family law system needs wholesale change. There appears to be no testing of evidence in court and it seems that often lies and fabrications are immediately accepted as fact.

"It's a disgrace and, as far as I know, it doesn't happen in any other legal sphere."

Bill's case follows the case of "Steve" last year, in which the court accepted his good character, but banned him from seeing his daughter for seven years because it was believed the mother would "shut down" emotionally if he were allowed to see her.

In another case last year, a father, "Mick", was jailed for sending a birthday card to his daughter in breach of a court order and was locked up again for taking a walk in a park - near where, unknown to him, his daughter was playing.

Debate over the operation of family law has become heated over the past year with a new campaign seeking to overturn amendments to the Family Law Act brought in by the Howard government that have established the principle of "shared parenting" and effectively given fathers a better chance of having greater access to their children in custody disputes.

Historian and Family Court critic Prof John Hirst questions the underlying principles in family law.

"The Family Court by law has to make the children's interests paramount in divorce cases. Everyone thinks this is wise and proper, but to elevate one principle above all others can produce terrible results," he said.

"To stop mothers being tempted to make accusations of sexual abuse and so keep children to themselves, the law should state that any parent making false accusations of this sort will lose the right to be chief carer of the children. If a mother has so turned the children against the father that they don't want to see him, for a time at least the children should be taken into care.

"Even on the present test of child's best interests, it is hard to see how a child will benefit from being left with such a mother. She has burdened the child with the story that her father abused her.

"Then when the child comes of age she will discover that the mother's accusations were false."

22 Comments followed this article

mick Posted at 4:13 AM Today

Australians have lost their marbles

Comment 1 of 22

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Ron O Posted at 5:14 AM Today

Best solution - sack ALL Family Court judges. None of them have a clue. They give a whole new meaning to the word incompetence. They are NOT acting in the interests if the children - they are acting in the interests of their own inflated ego's.

Comment 2 of 22

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S. Kelvin Posted at 5:27 AM Today

This is what feminism has led to throughout the western world: women with no character and men with no rights. Decent people are getting sick of the double standards.

Comment 3 of 22

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keith of belgrave Posted at 6:03 AM Today

Sad very very sad nothing has changed with the family laws for fathers in 30 years. No justice for men, all the who har about women's liberation etc, It's a women's world.

Comment 4 of 22

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Robert Mont of healesville Posted at 7:45 AM Today

So what... I had a magistrate from the family court tell me ...."what makes you think you have any more rights over this woman who bore this child?"....nothing has changed, the family court sux.

Comment 5 of 22

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kaotik4266 Posted at 8:46 AM Today

It's a sad thing, too, that the mother often gets custody of their children by default, regardless of their parenting ability or that of the father.

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David of Mooroopna Posted at 8:54 AM Today

As usual, we have a disgusting and backwards legal system in this country. The judges tend to treat dogs better than our children

Comment 7 of 22

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hunter Posted at 9:07 AM Today

This ruling does not surprise me,it is typical Australian justice

Comment 8 of 22

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Isabella Cloud of Murtoa Posted at 9:26 AM Today

This is unacceptable, why do we let you things happen? I have no idea how the judge came to this decision...

Comment 9 of 22

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Anti-sexist of One Tree Hill Posted at 9:30 AM Today

Good to see the system works to do what is in the best interest of the children.

Comment 10 of 22

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AAP of Blackburn South Posted at 9:37 AM Today

I use to have such respect for the legal system, I no longer have any faith at all in them - they do not always rule for the truth and do not provide justice. My faith stands with God's Justice. The legal system does not always deliver wisely.

Comment 11 of 22

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misha of melbourne Posted at 10:09 AM Today

I am a mother and was so sorry for the dad in this story. A child needs both parents Love and affection equally.No one but a biological father can offer that love. If the mother gets a New de-facto he too will get access to the kids will he not ? even tho' he has never been with them ! No parent should be cut off from their kids.Period.

Comment 12 of 22

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Ang. M. of Melbourne Posted at 10:13 AM Today

How cruel and stupid can the family court get?! This ruling is disgusting.

Comment 13 of 22

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ld-v of lalor.vic. Posted at 10:16 AM Today

It certainly is a very very sad world esp for all children concerned.

Comment 14 of 22

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Adam Cuschieri of South Morang Posted at 10:24 AM Today

Get rid of the family court. This is a complete and utterly embarrassing. The judges have no idea how destructive they are to good fathers who want nothing but the best for their children. The Vic Government seems to have ample money for investigative commissions in to everything but the Family Court and the rules which regulate it's decision making.

Comment 15 of 22

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John of Melbourne Posted at 10:25 AM Today

Family Law is indicative of just how inadequate in terms of equity and justice our legal system is. And the government (state and federal) is at the begging whim of civil libertarians.

Comment 16 of 22

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Bosco of Geelong Posted at 10:34 AM Today

What an absolute farce the Family court system is!

Comment 17 of 22

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DAJ of Ballarat Posted at 10:42 AM Today

I don't have kids yet but it certainly makes you think that the person you have them with needs to be of sound mind because as a male you can be accused of rape, abuse, violence etc without the presumption of innocence.

Comment 18 of 22

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Rob of Kyabram Posted at 11:11 AM Today

It is not only the mum who is dysfunctional but the judge as well. Time for a complete renewal of our broken down activist controlled justice system. Close the family courts and start again, even a drunk could make better decisions.

Comment 19 of 22

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Meg of shep Posted at 11:17 AM Today

Ridiculous I and my older sister were both raised by my father with help from my grandparents [his parents] when my mum abandoned us when I was 8 months old. This judge has alot to answer for. Men are just as good a parent as women are. The girls should just go to the better home.

Comment 20 of 22

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Melanie Baker of S.E suburbs Posted at 11:44 AM Today

This is terrible, we can't even rely on our justice system anymore to think of the best interest of our children, absolutely disgusting! I feel for the kids they always get stuck in the middle, and the poor dad (Bill) for having such a horrid ex-wife.

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michael pitt of kapunda Posted at 12:00 PM Today

When you think that tragedies like this have been occurring for the past 35 years; what sort of court allows people to get away with what should be a serious criminal offence and then crucifies the victims and the father.

Comment 22 of 22