Winner takes all

Labor’s new family law bill panders to feminists by pushing divorced dads out of children’s lives.

This week a television crew from the Japanese public broadcaster came to Sydney to interview family law specialist Justin Dowd, a former President of the NSW Law Society. Japan is considering a move away from mum-custody towards “joint parental authority” – which recognizes that it’s in the best interests of children to have both mum and dad remain involved in their care.

The Japanese crew came to Australia because they acknowledge this country as one of the world leaders in encouraging separated parents to share decisions about raising their kids.  That achievement stems from John Howard’s path-breaking 2006 reforms promoting “equal shared parental responsibility” which resulted in a major increase in care from dads, more shared care, better relations between parents, and less litigation. The result was improved children‘s well-being, according to UNSW research, and the reforms were a big hit with the public, “overwhelmingly supported by parents, legal professionals, and family relationship service professionals,” according to research by the Australian Institute of Family Studies.

Yet Justin Dowd had to tell the Japanese crew that it’s all now at risk. The Labor government has just announced draft legislation that will take Australia back to the dark ages of the winner-takes-all custody model. “The Albanese government went back to the future this week,” pronounced the Australian Financial Review (AFR) spelling out the proposed laws which would end of any notion of shared parental responsibility, shifting the power in divorce battles firmly back into women’s hands.

This is huge, people. This dastardly political attack on our society will undermine the welfare of children, ramp up hostility between parents, and swell the coffers of lawyers who will benefit from the appalling fallout. Yet our media and politicians will no doubt avert their eyes to this impending catastrophe and just usher the new laws through – unless we stop them.

Back in 2007, I was approached by a retiring family court judge, keen to enlighten me on how the family court had gone astray. The problem? “The woman has had all the power, the man almost none.” In the judge’s view, children were missing out on vital contact with both parents due to decisions to award sole custody to the primary carer. “The custodial parent has been all-powerful. She – it’s usually she – has had the power to regulate access, sometimes regardless of court orders. She’s had complete authority to live anywhere, with the child, that she desires. The power to determine the child’s school, church, decisions about day-to-day living, and the power to get a greater slice of the matrimonial cake. More often than not that power is exercised unreasonably.”

The Howard reforms very effectively eroded that power and, ever since, feminists have worked feverishly to get it back – regardless of the cost to children. Now comes their reward for marshalling the women’s vote to help Labor regain government. It’s payback time… and Labor has come good by offering women the greatest prize of all – the children.  

According to bright new world of Family Law being promised by the Albanese government, the following will no longer be deemed important in making decisions about children’s care:

• Ensuring children benefit from meaningful involvement with both parents.

• Children’s right to know and be cared for by both parents.

• Children’s right to spend regular time with both parents and other significant people like grandparents.

• Parents jointly sharing duties and responsibilities for the kids’ care and development. 

• Parents agreeing about future parenting of children.

All gone. All the language that provided the scaffolding that enabled children to have divorced dads remain part of their lives is being ripped out of the legislation. The AFR headline said it all: “Time’s up for ‘equal rights’ in court custody battles.”

Family Law professor Patrick Parkinson, who advised the Howard government when the 2006 reforms were introduced, warns that dads will be “cut out” by the proposed family law changes. Parkinson has produced a detailed submission exposing the flaws in the proposed changes. (This submission will eventually be publicly available as part of an inquiry into the proposed changes but please contact me if you’d like to see it now.)  

“Under the guise of simplification, it actually involves radical change and radical reversal,” Parkinson says, pointing out that the government is misleading the public in claiming support from various public inquiries for this move. In fact, neither the 2019 Law Reform Commission review nor a recent parliamentary committee recommended removing the pivotal section promoting “equal shared parental responsibility,” although they did suggest some changes.   

Here's where Labor’s Attorney General, Mark Dreyfus, really gets sneaky. He justifies removing this critical section, 61DA, by claiming the language of “equal shared” responsibility has deluded daft dads into thinking that they might just be entitled to equal time with their own kids. The AG’s consultation paper spells this out, explaining that the proposed repeal of this section is “a response to substantial evidence of community misconception about the law - that is, that parenting arrangements after separation are based on a parent’s entitlement to equal time, rather than an assessment of what arrangements serve the children’s best interests.”

Dreyfus is also tossing out the other key sections which gave dads hope of fair treatment, namely 65DAA which requires courts to consider equal time or substantial/significant time, as a possible parenting option.

As Parkinson points out, the proposed new laws “stripped almost all references which encourage the meaningful involvement of both parents in relation to the child after separation” – references which have been used for almost three decades to inform negotiations for parents who have “bargained in the shadow of the law.” And equally, to guide lawyers, mediators and family consultants helping parents through this process. The risk is we could go back to vicious winner-takes-all battles for the children – described by family lawyer Geoff Sinclair in the AFR as “full-on disputes – there was no silver medal. You either won or lost, and the prize was the children.” Sinclair is hopeful this won’t happen.

Now the new family law will be all about safety. The first consideration under the proposed legislation is what orders are best to promote safety for the child or carers. That’s hardly a surprise. Feminists have been using the violence card to undermine father’s contact with their children since the 2006 laws were first introduced, with constant claims about violent dads putting children at risk, and legal efforts to beef up safety considerations working very effectively to shut fathers out of children’s lives.

They’ve done a brilliant job hushing up the key statistic which puts a lie to the claim that so many dads pose a risk to their children – namely that only 1.2% of women are physically assaulted by their male partner or ex-parent each year in Australia, according to the most recent 2016 Personal Safety survey. Physical violence is blessedly rare.

No wonder they place so much emphasis on the tiny numbers of cases which actually make it through to court - complex cases, often involving mental health problems, which fail to be resolved through alternative dispute resolution. Oh yes, there’s violence here – often these cases come festooned with allegations of violence or emotional abuse from both sides. Yet there’s AIFS research showing more fathers than mothers held concerns about their children’s safety, often involving harm inflicted by mum’s boyfriend.

“Any reform of the law needs to be more sophisticated and nuanced than to be premised on an assumption that almost all perpetrators are male and almost all victims are female,” argues Parkinson yet this is precisely the main thrust of Labor’s proposed new family law. And naturally, the media laps it up. “Draft bill aims to improve safety for separating families,” applauded The Guardian. “Family law overhaul aimed at stopping abusive partners manipulating the system,” ran the SMH headline.

It's another superb victory for the feminists, one more achievement for their mighty domestic violence juggernaut, which already works a treat stacking the family law system to favour women. Currently all it takes is one vague claim that violence could occur, requiring zero supportive evidence, to set in train a sequence of events starting with Dad being removed from the home, denied contact with children and, if he’s lucky, ending up paying big money to see his own children in our hellish supervised contact services. And mum gains all the perks, benefits and supports that come with victim status. It’s totally irresistible.

Labor’s latest move didn’t surprise me - they have form. I watched in horror when Labor regained power in 2007 and immediately appointed a fierce critic of shared custody, psychologist Jennifer McIntosh, to study overnight care by dads of infants and toddlers. Her devastating research results came to be used to deny dads overnight care of young children, not only in Australia but across the world before her research was eventually denounced by a team of international experts.

Phillip Ruddock, the Attorney General who implemented the Howard government reforms, pointed out at the time that Labor has always been keen to wind back efforts to promote divorced dads’ involvement with children.  “They’ve long been captured by the female lobby determined to retain sole control over their children.”  

Now’s the time to stand up and show ordinary Australians won’t stand for this attack on children’s right to be cared for by both parents. We need very quickly to get active and make enough noise to convince the politicians currently basking in feminist accolades that we are not letting them slip this one through.  

I need all of you to make your voices heard – in every way possible:

• Priority one is visiting local federal parliamentarians and strongly expressing concern.   

• Use your media contacts to raise proper discussion of this vital issue.

• Warn organisations involving older people that grandparents could also be pushed out of children’s lives.  

• Post on social media, encourage men’s groups to get active, join public discussions. 

• Here are some ideas you can use to make a submission to the Attorney-General's Department inquiry. Either email it to FamilyLawReform@ag.gov.au or upload it here. (Note - ignore the structured questionnaire which doesn’t allow input on the important changes.)

• Send the email to your local federal MPs and Senators.

We can’t afford to just sit back and let them get away with unwinding the legal framework that did so much to improve the lives of fathers and their children.