By Roderick Campbell - Canberra Times

Child custody disputes are undoubtedly the biggest single cause of friction in the aftermath of a marriage break-up and are probably the most significant factor in the Family Court’s poor standing among many non-custodial parents.

A recent paper prepared for the Federal Government discussed opening up the Family Court to more regular and more enlightening media coverage. The theory was that if the media had better access to the court, the public would better understand family law matters and the court’s reputation would be enhanced.

Freeing up media access to the court is unlikely, by itself, to achieve a lot. No amount of coverage of family law cases will ever convince some disgruntled litigants, most of them men, that the court does not have an in-built anti-male bias.

The court’s handling of custody disputes appears to cause most of their anger. And once that battle is lost, its equally unpopular sequelae, child support, follows.

People who have had no personal experience of the Family Court or the administration of family law, might wonder why, in custody disputes, the court always feels obliged to side with one parent or the other, despite the fact that both are good parents. Why does the court not award joint custody more often? Why is one parent’s refusal to accept a joint custody arrangement not regarded as prima facie evidence that they should not be granted custody at all?

To discover the answer to these questions, one must go to more than 20 years of reported judgments of the court.

The bottom line in most custody disputes, it seems, is that one parent is going to “win” and the other is going to “lose”. And it is done in the name of the “best interests” and the welfare of the children.

Last year’s much heralded amendments to the Family Law Act were meant to change this and move the emphasis towards shared parenting. However, the recent controversial Full Court ruling on the right of a parent to move interstate with the children to remarry has convinced most lawyers in the field that nothing has changed.

The reason is that the court rarely awards joint custody to warring parents, in the not unreasonable belief that joint custody cannot work where the parents are forever at each other’s throats.

At the end of the day, the question is: what arrangement is in the best interests of the children? If joint or shared custody is going to be unworkable and detrimental, it is not really an option. Quite frequently, it is both parents who are to blame for this, although the system is open to abuse. One parent can set themselves up for a sole custody order by undermining previously agreed arrangement, thereby rendering joint custody unworkable.

The court’s approach to these cases has been explained in a number of published judgments. In a 1993 case, Chief Justice Alistair Nicholson wrote, “If parenting values are not compatible, it may result in mounting tensions and mistrust to the point where the arrangement becomes detrimental and unworkable. Views with respect to medical preference, the emphasis on homework, selection of television programs, treats and discipline, need to be reasonably compatible.”

Anyone who is married with children will know that such matters can normally be sorted out amicably in a properly functioning family. But they would also see how they might become sources of considerable conflict in a marriage which has broken down, when the art of compromise suddenly evaporates.

Twenty years ago, The Full Family Court said “The best interests of a child, and the full promotion of his welfare, are not generally served by orders for joint custody unless his parents have demonstrated that degree of maturity and such an ability to communicate and cooperate with each other as to give the court some confidence that the order for joint custody will be workable or that, with assistance from the counselling services of this court, it can be made workable.”

This observation seems to suggest that the presumption is against joint custody. It is a presumption with which at least one expert in the field strongly disagrees.

Dr. Don Edgar, Director of the Australian Institute of Family Studies, believes that the system has wrongly defined the concept of the “best interests” of the child.

He says there should be an assumption that those best interests are likely to be served through joint parenting arrangements, rather than some sort of Solomon-like carve up.

Writing in the Australian Family Lawyer, Dr Edgar said the “dogma of the primary caretaker rule”, whereby the parent who had most of the day-to-day care during the marriage should get custody, was as sexist as the by-gone era idea that the best interest of a child meant leaving him or her with the father.

After reviewing years of research which underlined the detrimental impact of divorce on children, but the positive effects of shared parenting, Dr Edgar said it was incredible that the children’s views were largely overlooked in the process and that custody and access were talked about as though they were parental rights.

We should, he said, be talking about the child’s right to involvement with both parents, not of the parent’s right to custody or access rights.

More than 10 years ago, Dr Edgar wrote, “There is an element of professional paternalism in assertions that joint physical custody is bad for the children. Do we have the right to interfere with the child’s living arrangements while the parents are married? What gives us the right to interfere when they get divorced?”

“Since the law wishes to assert both parents’ ongoing responsibility for the care and control of children, why should it give custody to one in effect, and only formal maintenance responsibility and unequal access, care and control rights to the other parent? Will such splitting ever work in the best interests of the child?”

The theory that the Family Court decides these matters by reference to the true “best interests” of the children was further undermined a few months ago when a senior judge said the court might actually be encouraging parents to leave their spouses without warning and set up house with their children, knowing that this is a smart legal tactic in the future custody battle.

Justice Alwynne Rowlands said the way in which the court decided interim custody issues was encouraging parents to arrange their affairs by dramatic action. Knowing that the court was likely to make an order that was least disruptive to the children, the parent could do a “runner”, confident that by the time the case came on for a full hearing, the interim arrangement would have become virtually permanent.

When one parent can manipulate the process by either walking out of a marriage unannounced or by deliberately undermining joint parenting arrangements, and then have their actions vindicated by a custody order made in the “best interests” of the children, it is not hard to see why come non-custodial parents remain unimpressed by lofty statements of principle from the judges.

Why not respond with your views and experiences to this article in the Canberra Times ? Ed.

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