ESSAY 15: RESOLVING FAMILY LAWFARE
No aspect of Australian law has attracted such persistent criticism as our Family Law system and courts.
To downplay such criticism is to ignore the lived experience of very many people. For many of us, our laws make litigation following an unwanted family breakdown unavoidable. Litigation which is far more destructive of our (and/or our loved ones’) lives, than the primary loss of our marriages/relationships.
In 1917 the Russian Soviet Republic became the first nation to introduce ‘no-fault’ divorce.
Australia’s rationale, for adopting this early innovation of the world’s first communist state, was said to be a reduction in litigation and related duress for all individuals involved in a divorce process. Judged from this sole perspective – its alleged purpose – the Family Law Act 1975 remains an abysmal failure.
Persistent criticism of the Family Court throughout its early decades saw attempts at major reforms by the Howard Coalition Government.
Those reforms sought a more appropriate role for non-resident parents (mostly fathers) in their children’s lives. The Howard Government Reforms in 2006 required the courts, in parenting disputes, to give priority consideration to two main factors. These two priority considerations were: (i) benefit to a child of having both parents involved in their lives; and (ii) the child’s safety. The courts were also required to give consideration to a range of additional factors which were enumerated in the legislation.
One of those additional factors was known colloquially as the “Friendly Parent” rule. In essence this required consideration, of how constructively/positively (as opposed to destructively/negatively), each parent approached the role and involvement of the ‘other parent’, in their child’s/children’s upbringing.
In 2011 the Gillard Labor Government removed this “Friendly Parent” rule from the Family Law Act. Not one of the other ‘additional factors’ was removed from the legislation – only the “Friendly Parent”. No politician clanged any bell. Our political class instead focussed the media on ‘reform’ of the “two priority considerations” (an alleged need to clarify that ‘safety’ comes before ‘benefit of two parents’ – though how the existing law might otherwise be applied, without this purported reform, was never explained).
If the Gillard Labor Government alternatively had insisted, that family law judges properly apply the “Friendly Parent” rule (rather than as many had chosen, to pay mere lip service to it), many of the same judges would arguably today be redundant, as our divorce process evolved to becoming more truly ‘no-fault’.
Rhetorical Question: Did our parliamentarians’ removal of the “Friendly Parent” rule consolidate possible perceptions (on part of some litigants and/or their legal advisors) of a culture within Australia’s family law system, of either softness, wiful blindness or perhaps plain naivety, by judicial officers toward perjury?
Two years after the Gillard Government removed the “Friendly Parent” rule from our ‘family’ law, Justice Collier admirably went public with these remarks:
“Allegations of child sexual abuse are being increasingly invented by mothers to stop fathers from seeing their children…you realise this is a person who’s so determined to win that he or she will say anything. I’m satisfied that a number of people who have appeared before me have known that it is one of the ways of completely shutting husbands out of the child’s life. It’s a horrible weapon.” (Note 1)
The Family Law Act 1975 facilitates and incentivises behaviour that is beyond any individual’s worst imagineable self. It only requires one difficult parent, to enmesh the person he or she chose to marry, in interminable parenting litigation, in which the difficult parent is typically rewarded and other parent damaged – by years of legal delays.
It is common sense that alternative law, which incentivises separating parents to act well – not poorly – would discourage and reduce harmful litigation.
The “Friendly Parent” concept should both be reinserted into our laws and made the centrepiece of parenting disputes.
No party seeking mediation should be refused it. Current mediation theory, which rejects this approach, should be junked and/or tailored toward arbitration.
The first statement Family Court judges should make to each parent (not their lawyer) is “Explain to me today why you believe your mediation is not working”.
Review of Family Law is easily bogged by its scope. Legal, societal, cultural and religious aspects make it prone to controversy, dogma and politicisation.
This essay proposes fixes which merit implementation as standalone reform. ‘Step evolution’ is arguably more acheivable, than delayable holistic reform.
Arguments will be made that these proposals downgrade or fail to duly appreciate issues of safety; with their solutions focussed on denial of parental access.
It is unclear why duly considered requirements for counselling / medical treatment would not be the preferred pathway (assuming the ‘problem parent’ is so willing). It is common sense that genuine (safety) issues typically flow from drug, alcohol, psychological or psychiatric conditions; and not gender.
Policy submissions by industry players (lawyers, mediators and other so-called experts) which fail to duly admit and recognise the material contributions from within their profession’s own ranks to our Family Law system’s failures, should be treated with abundant caution.
This Essay seeks to help nip in the bud trauma which is experienced by very many Australians owing to laws which fall entirely within the power and control of Australian parliamentarians. It does not propose to address the myriad of related and interconnected social issues.
The following comments should be considered exactly that (commentary); NOT policy proposals.
It may not be possible to turn back the clock on Australia’s rate of family breakdown.
Nevertheless, surely functions of a so-called Family Law might extend beyond the mere facilitation of the breakup of traditional (and non-traditional) marriages. In comparison, back in 1917, the Russian Soviet Republic sensibly combined ‘Decrees on Marriage and Divorce’.
Our own ‘Marriage Act’ does not define any contractual aspect of marriage. We instead outsource this to what is divorce law, which effectively renders void at law traditional cultural obligations of marriage.
Given this reality, should a warning of that fact ‘in simple plain English’ be included in Australia’s marital and/or divorce legislation? That any marital vows pertaining to ‘in good times and bad; for richer for poorer; in sickness and in health; to death do us part’ are utter nonsense, in terms of their legal validity?
What of, for consenting adults who choose a traditional marriage ceremony (heterosexual or otherwise), give them an option (if they both so choose) of ‘legally committing’ to those traditional cultural obligations? Those ‘traditional obligations’ could fall away, if the couple later (both) agreed to divorce. This approach is consistent with Russia in 1917, which limited no-fault divorce to ‘consenting couples’.
If nothing else, suggestions in preceding paragraphs, might inculcate more prudence in marital decisions.
For and on behalf of Common Sense for Australia Inc
Authorised for publication, 31 March 2022
An American report with 50 references to the Australian academic research, which underpinned the determination of our federal parliamentarian ‘Class of 2011’, to eliminate “Friendly Parents” from Australian law:
Linda Nielsen, Psychology, Public Policy and Law, 2014: Woozles: Their role in custody law reform, parenting plans, and family court