CIS-Murphys-to-Howards-Law-2 (5)CIS Murphy’s to Howard’s Law (2)

From Murphy’s
to Howard’s Law

Author Sue Price, JP (Qual) BSocSci

Shared parenting laws are under threat from feminists with no intention of
giving fathers a fair go, says Sue Price

The primary source of the unpopularity
of the family law system is the manner
in which parenting arrangements for
children have been determined in the
course of divorce proceedings. In fact, the Family
Law Act 1975 (the Act) has been described as ‘the
most unpopular single enactment in Australian
history.’1 For most of the past 35 years, the Family
Court of Australia has treated most separated
fathers as if an ‘access’ visit every second weekend
and half the school holidays were sufficient to
create a real and lasting relationship between child
and parent.
This started to change when the Howard
government changed the Act in 2006 and
compelled the Family Court to recognise that
shared parenting arrangements should be the
norm for many separating parents. The subsequent
amendments to the Act were the result of more
than a decade of public inquiry and agitation
concerning the operation of the Family Court and
how family law could better serve the best interests
of children. Unfortunately, only four years after
they were introduced, the shared parenting laws
are coming under renewed attack from feminist
groups and their legal and academic supporters
who opposed the new system right from the start
and have no intention of allowing it to be judged
impartially on its merits.
Finding fault
The introduction in 1975 of ‘no fault’ divorce
(based on the irretrievable breakdown of the
marriage proven by a 12-month separation)
created a legal fiction. The politicians failed to
consider whether people could accept moving
on with their lives without assigning blame or
taking responsibility for their behaviour. The
‘no fault’ concept therefore struggled to overcome
some people’s need to blame the other party for
real or imagined transgressions that led to the
end of their marriage. The result was that fault
was reintroduced by the backdoor. Family Court
decisions about where the children would live
or how the property would be divided became
an adversarial war of ‘he said, she said’ involving
family lawyers at 10 paces, with little evidence to
prove who was telling the truth.
By 1992, widespread community dissatisfaction
and the justifiable perception of bias against
fathers in what was then known as custody and
access decisions had resonated within the offices of
politicians across the country. The result was the
creation of the Joint Select Committee on Certain
Aspects of the Operation and Interpretation of
the Family Law Act (JSC FLA) 1992. Based on the
recommendations of the committee, the Keating
government amended the Act in 1995 to include
‘a rebuttable presumption of shared parenting,’
just as the ‘father’ of the Act, Senator Lionel
Murphy, had always intended.2 However, the
amending legislation failed to satisfy a divorced
father’s demands for a continuing role in his child’s
life. In practice, the intent of the legislation was
ignored by the Family Court, which continued to
decide custody and access arrangements based on
an assessment of the best interests of children that
overwhelmingly favoured mothers.3

Policy • Vol. 26 No. 2 • Winter 2010 35

Sue Price is a director and co-founder
of the Men’s Rights Agency.

FROM MURPHY’S TO HOWARD’S LAW
In 2003, Prime Minister John Howard read
the political mood well when he announced a
new inquiry into the family court, and threw his
support behind considering ‘allowing immediate
joint custody to divorced dads and mums.”
Despite the usual claims from defenders of the
Family Court about the alleged impractically of
shared parenting, commentators from across the
political spectrum acknowledged that reopening
the issue was overdue. 5 Shared parenting was
recognised as a step towards better protecting the
interests of children (for whom joint custody is
usually beneficial and desired by most children)
while ensuring that men have the right to continue
to bring up their children post-divorce.”
2003 federal inquiry into 50/50
A collective sigh of relief, tinged with a significant
amount of hope, swept over separated fathers
who felt they had been unreasonably denied
a meaningful relationship with their children.
Finally, the system was to be examined in an open
and accountable forum that offered parliamentary
protection to those who had previously been
prevented from detailing their experiences by the
secrecy provisions contained in the Act.
The Family Pathways Group, a committee
appointed by the Minister for Family and
Community Services and the Attorney General
(and dominated by stakeholders with vested
interests), had examined the family law system
in 2001, but its report was generally regarded
as disappointing for failing to address the major
issues’? This time, the Standing Committee on
Family and Community Mfairs was handed the
job of conducting the inquiry into ‘Joint Custody,
50/50.’8
The depth of feeling in the community about
family law was made apparent by the more than
1,700 submissions to the committee. Public
and in-camera interviews were also conducted,
which gave many interviewees the opportunity
to describe their traumatic encounters with the
Family Court. Time and again, the committee
heard from parents who had spent thousands of
dollars on litigation costs and had not seen their
children for years, often for no apparent reason.”
Typical was the story told by one man about
how his wife had raised 37 different domestic
36 POLICY· Vol. 26 No.2· Winter 2010
violence orders. He was found ‘guilty’ of twofor
writing a poem and a love letter. When the
woman complained without proof that he had
breached the order, he was imprisoned for 42 days.
She now lived in his $400,000 house, which he
owned before he met his wife and had possession
of his and his grandfather’s stamp collection.
He was left with a 1992 Honda and $8,500-and
he had not seen his son for two years and his
daughter for three. 10
2006 shared parenting amendments
The personal testimony before the committee
heightened concerns about the level of contact
between non-resident parents and their children.
It became clear that many fathers were trapped
in an 80/20 split-custody model, which did not
provide sufficient time for a father to develop a
close relationship with his children. With limited
contact opportunities, combined with many
residential parents opting to move away to live
with new partners or take up different jobs, the
bonds between child and parent are easily broken
to the detriment of both. More than one million
Australian children are not living with both their
biological parents and of those, half see one of their
parents four times a year or less or not at all. 11
The committee’s final report and
recommendations in support of a ‘clear
presumption, that could be rebutted, in favour of
equal shared parental responsibility’ set the stage
for the introduction of the Family Law Amendment
(Shared Parental Responsibility) Act 2006, which
was passed with the bipartisan support of
the Opposition Labor Party and commenced
operation on 1 July 2006.12
Under the amendments, and providing there
is no evidence of violence, child abuse or ongoing
acrimony severe enough to prevent the parents
reaching agreement about their child’s future
needs, the court is required to consider equal
shared parental responsibility. If granted, the
court is then obliged to consider ordering equal
parenting time or substantial and significant
time for non-resident parents, but with the best
interests of the child remaining the overriding and
final determinant.
The cornerstone of the new arrangements was
the requirement for parents to undergo mandatory
mediation to resolve parenting arrangements in
one of the 65 newly created Family Relationship
Centres or with private mediators.P If mediation
fails, then a certificate would be issued allowing
parents to make an application to Family Court.
In cases of violence or child abuse, or if a parent
absconds with the child, the requirement for
mediation is suspended.
Paradigm shift
The debate about separated or divorced fathers’
involvement in their children’s lives occurs across
an ironic cultural and political dichotomy. The
self-styled ‘progressive’ feminists and women’s
groups who opposed the 2006 changes subscribe
to an outdated view of men, women and society.
In defence of women’s right to be entirely free
from the last vestiges of the bonds of marriage,
men are portrayed as patriarchal oppressors and
abusers of women and unfit to parent children.
Many men, and the groups that defend separated
fathers’ rights, recognise that we have moved
on from the 1950s. In the majority of modern
families, both parents are expected to work and
both parents expect to be fully involved in the care
of their children.
For two decades, the Family Court subscribed
to the feminist ideology that gave priority to
maximising women’s freedom post-divorce at
the expense of fairly balancing the interests of
mothers, fathers and their children. The defenders
of the Family Court’s longstanding approach,
which includes many of the family counselors who
write the reports the court uses to make custody
decisions, are stuck in the old paradigm. The
Howard government’s shared parenting laws have
attempted to force the ‘family law industry’-
the lawyers, the judiciary, and associated service
providers-to accept the social realities of the
twenty-first century and accommodate changed
expectations about parenting and family life.
The ideological stakes partly explain the
entrenched opposition to shared parenting led
by feminist academics determined to preserve
mothers’ control of children after separation.
The inclusion of even the words ‘rebuttable
presumption of shared parenting’ in the 1995
Act triggered an almost immediate response from
these quarters, a response that was orchestrated
FROM MURPHY’S TO HOWARD’S LAW
by the Family Court of Australia. Helen Rhoades
of the University of Melbourne, Professor Regina
Graycar of the Sydney University, and Margaret
Harrison, then a senior associate to that longterm
opponent of shared parenting-Alastair
Nicholson, the then Chief Justice of the Family
Court-produced a report examining the impact
of the 1995 amendments. The authors’ research
was generously subsidised by a $300,000 grant
jointly funded by the Australian Research Council
and the Family Court. 14
The ideological stakes partly explain
the entrenched opposition to shared
parenting led by feminist academics
determined to preserve mothers’
control of children after separation.
The report concentrated on the shared
parenting provision of the 1995 Act, which was
described ‘as one of the most contentious aspects
of the reforms.’ In his comprehensive analysis
and rebuttal, Michael Green QC labeled the final
report as a waste of time and money. On top of
the overt bias towards custodial mothers and the
failure to understand the real value of fatherhood
for children, Green argued that the limited sample
of cases used by the authors did not justify their
sweeping conclusion that shared parenting placed
women and children at greater risk of serious
domestic violence and abuse.”
A nest of inquiries
The election of the Rudd government in
November 2007 re-energised the campaign to roll
back the shared parenting laws that had been in
operation for barely a year. The renewed offensive
has covered the same ground and concentrated
on the most emotive issue. The Family Court has
been accused of forcing children to spend time
with violent fathers and placing mothers and
children at risk of harm in order to comply with
shared parenting requirements. The issue gained
national attention when the shared parenting laws
were blamed for the death of four-year-old Darcey
Freeman, who was allegedly thrown by her father
POLICY· Vol. 26 No.2′ Winter 2010 37
FROM MURPHY’S TO HOWARD’S LAW
from the West Gate Bridge in Melbourne in
January 2009.
In response to Darcey’s death, federal Attorney
General Robert McLelland announced his
intention to reconsider the 2006 amendments in
light of the alleged increased risk of exposure to
domestic violence. The Chief Justice of the Family
Court Diana Bryant gave credibility to the roll
back cause when she called for the provisions of
the Act dealing with penalties for false allegations
of domestic violence to be repealed ‘as the wrong
interpretation of the law meant some women in
custody hearings were less likely to report violence
to the court.l'”
To fairly judge the impact of the
new laws requires separating
fact from fiction and not muddling
the issues of shared care and
domestic violence.
Five new and ongoing inquiries into shared
parenting have been announced, the majority of
which focus on domestic violence. 17 Retired Family
Court Judge Richard Chisholm was appointed by
the Attorney General to inquire into family law and
domestic violence. Chisholm’s appointment was
controversial given his well-known opposition to
shared parenting and to fathers caring for children
under three years 01d.18 The suspicion that the
Rudd government had rigged the deck to gain a
predetermined outcome that would support the
ending of shared parenting was increased by the
predictable findings of the Chisholm report, which
was published in November 2009. Chisholm
found that some women had become reluctant
to raise allegations of violence without proof for
fear of not being believed and being forced to
pay the other party’s cost for making unproven
allegations. He concluded that the presumption
of shared parental responsible had taken the focus
off the best interests of the child and had exposed
women and children to greater risk of violence. 19
countering the counterattack
To fairly judge the impact of the new laws requires
separating fact from fiction and not muddling
38 POLlCY· Vol. 26 No.2· Winter 2010
the issues of shared care and domestic violence.
Statistical evidence shows mothers and their
boyfriends kill more children than biological
fathers’? and that almost equal numbers of
children identify witnessing violence against their
mother and their father.” Men are not the sole
perpetrators of domestic violence as one in three
victims are actually men.”
Twelve months prior to Darcey Freeman’s
death, Gabriella Garcia strapped her 22-monthold
son to her chest and jumped off the same bridge
because she feared losing her son due to a nonexistent
Family Court application. Both tragedies
point to the fear and desperation felt by parents
facing significant, if not complete, exclusion from
their children’s lives. But neither tragedy justifies a
knee-jerk reaction against shared parenting.
Section 117AB of the Act states a party may
be ordered to pay some or all of the costs of the
other parent if the court is satisfied that a party
‘knowingly’ made a false allegation or statement
in the proceedings. Deliberate intent to falsely
accuse is difficult to prove and when allegations
are dismissed by the court, the penalty is rarely,
if ever applied. However, it is essential to retain
the penalty as a safeguard, which may discourage
the use of false allegations as a legal tactic or to
unfairly remove a parent from their child’s life.
Allegations of abuse have an instant and serious
affect on a parent’s time with their child, delaying
court decisions until the truth is determined,
creating enormous stress, damaging reputations,
destroying relationships with friends, family
and children, and incurring large costs to prove
innocence. It is unlikely that the threat of a cost
order would stop a parent who was convinced
their child was being abused from reporting the
offence.
Thankfully, a report by the Australian Institute
of Family Studies (AlFS) released at the same
time as the Chisholm report found that in most
cases, the shared parenting laws were working
well. Shared time with both parents was found
not to have a negative impact on the wellbeing of
children, except as one might expect, in extremely
acrimonious situations where parents struggle
to reach and keep shared care arrangements,
and where the mother has safety concerns.” In
some cases the concerns are real. In others, the ~
are perhaps concocted or even imaginary. Most
importantly, as the Garcia tragedy illustrates,
cases of family breakdown leading to violence and
harm do not necessarily conform to the feminist
stereotype.”
Fair go for fathers
Anecdotal evidence suggests that shared parenting
laws have increased the level of the fathers’
involvement with their children. The AIFS
report drew on three sets of statistics to gauge
the impact of the changes. However, none of
the data is conclusive because of the short time
period involved.
A Longitudinal Study of Separated Families
conducted in 2008, barely 18 months after
introduction of shared parenting, found 16.1% of
all children were in shared care and 5.2% spent
most or all nights with their father. At the other
end of the spectrum, 33.5% of children never stay
overnight with their father and 11.1% spend no
time at all.25
The Family Characteristics Surveys of 1997
showed relatively low levels of shared care
in just 3% of divorced families. The Family
Characteristics and Transitions Survey 2006-07
conducted 12 months after the legislative changes
found that the level of shared parenting had risen
to 8%.26
The Child Support Agency (CSA) statistics
show an increase in shared care from 7% in 2003
to 12% in 2008 and 17% in 2009. However,
doubt is cast on the accuracy of these figures
because 40,000 cases have been overstated as
being in shared care, due to the CSA counting
each parent as a separate case number.”
The number is equivalent to a 5% reduction in
shared care statistics.
The Family Court has conducted its own
survey, and the results of litigated cases decided
since the change to the legislation are more
encouraging. Fathers have been granted primary
care in 17% of decided cases; equal parenting
time has been granted in 15% of these cases;
and shared parenting (around five days per
fortnight) in 14%. In consent cases, fathers have
been granted primary care in 8% of cases; equal
parenting in 19% of cases; and shared parenting
in 14% of cases. Overall, 46% and 41% of fathers
FROM MURPHY’S TO HOWARD’S LAW
have a considerable level of involvement in their
children’s lives in decided and consent cases
respectively. 28
Conclusion
It is timely to remember that 95% of couples
manage to resolve their separation issues by
themselves, and the vast majority of divorcing
couples are not abusive to each other or their
children.” However, much avoidable misery will
be caused if we do not get the policies right for the
5% of cases where the Family Court intervenes and
sets the ground rules for parenting after divorce.
There is clear evidence that children fare much
better when both parents remain fully involved
in their lives: they have greater self esteem and
confidence, do better at school, and are less likely
to use drugs and be in trouble with the police.”
The truth is that it is too early to accurately
gauge the impact of the shared parenting changes,
let alone establish whether they have succeeded
and ensured that competent parents have
meaningful relationships with their children in
separated families. But we will never know the
truth, or establish what more needs to be done,
if the federal government preemptively caves
into the pressure groups based on exaggerated
claims about the dangers to women and children.
Rumour has it that the Prime Minister has told
the Attorney General to ‘back-off’ on rolling back
shared parenting. The seeming rush not to judge
could be a political dodge and may only last until
after the next federal poll. The Rudd government
is understandably reluctant to reopen an issue in
an election year that pits the interests of families
against feminist ideologues who have the ear
of policymakers.
Endnotes
1 Geoffrey deQWalker, The Seven Pillars of Centralism:
Federalism and the Engineers’ Case (Sydney: Samuel
Griffith Society, 2002).
2 Peter Duncan, Parliamentary Secretaryto the Attorney
General, HANSARD (21 November 1995), 3303.
3 See John Hirst, ”’Kangaroo Court”: Family Law in
Australia,’ Quarterly Essay 17 (2005).
4 Dads on the Air, Chaos at the Crossroads, an account
of the Joint Custody 50/50 submissions and hearings
(2004),5.
POLICY· Vol. 26 No.2· Winter 2010 39
FROM MURPHY’S TO HOWARD’S LAW
5 The Hon. Alastair Nicholson J, ‘Family law under
review,’ABC Radio (18 June 2003).
6 Bettina Arndt, ‘Fathers may get justice at last,’ The
Age (20 June 2003), cited in Chaos at the Crossroads,
as above, 4; Paula Totaro, ‘Why both parents count,’
The Sydney Morning Herald (9 December 2005).
7 Family Law Pathways Group, Out of the Maze
(Canberra: 2001).
8 Standing Committee on Family and Community
Affairs, Joint Custody 50/50 and Child Support
Inquiry (2003).
9 Chaos at the Crossroads, as above, 67, 70.
10 As above, 64.
11 ABS Family Characteristics & Transitions, Cat. No.
4442.0, Table 13, Children aged 0-17 years with a
natural parent living elsewhere,Contact arrangements
by age of child (2006-07).
12 Standing Committee on Family and Community
Affairs, Every Picture Tells a Story, Recommendation
l.
13 Arti Sharma, Family Relationship Centres: Why We
Don’t Need Them, CIS IssueAnalysis No. 70 (Sydney:
The Centre for Independent Studies, 12 April
2006).
14 Helen Rhoades, RegGraycar, and Margaret Harrison,
‘The Family Law Reform Act 1995: the first three
years’ (Sydney:University of Sydney & Family Court
of Australia, 2000).
15 Michael Green QC, ‘Missing the message,’ and
‘Current Controversies: knowing the enemy,’ Nuance
2, http://pandora.nla.gov.au/panI13076120011019-
OOOO/www.nuancejournal.com.au/documents/twol
toctwo.htrnl (December 2000).
16 Adele Horin, ‘Judge callsfor urgent changes to family
law,’ The Sydney Morning Herald (2 May 2009).
17 Family Courts Violence Review, Professor Richard
Chisholm; AIFS Evaluation of the Family Law
Reforms;Australian LawReform Commission, Family
Violence Inquiry; Family Violence Research Project,
ProfessorThea Brown, University of South Australia,
James Cook University and Monash University; and
the Shared Parental Responsibility Research Project,
conducted by the Social PolicyResearch Centre at the
Universityof New South Wales (SPRC) in consortium
with the Australian Institute of Family Studies and the
University of Sydney.
18 Richard Chisholm and JenniferMclnrosh, ‘Cautionary
notes on the shared care of children in conflicted
parental separations,’ Family Relationships Quarterly
3 (Australian Institute of Family Studies, 2009).
19 Richard Chisholm, Family Courts’ Violence Review
(Attorney General’s Department, 2009).
20 Men’s Health Australia, Latest Child Homicide
Statistics: Only 24% of Perpetrators are Fathers (Men’s
40 POLICY· Vol. 26 No.2· Winter 2010
Health Information & Resource Centre (MHIRC),
University of Western Sydney, and the Australasian
Men’s Health Forum (AMHF), 2009).
21 David Inermaur, Lynn Atkinson, and Harry Blagg,
Working with Adolescents to Prevent Domestic Violence,
(Crime Research Centre, University of Western
Australia, July 1998),97.
22 ‘Overview of recent family violence research findings,’
www.oneinthree.com.au/overview/ (2010).
23 Australian Institute of Family Studies, Evaluation of
the 2006 Family Law Reforms (2010).
24 In one case in the late 1990s, the mother would
strip off her three-year-old son and photograph him
from all angles before sending him for contact with
his father. On his return, she inspected him from
head to toe looking for signs of injury, took more
photos, and questioned him intensely about the
time with his father until he fell asleep exhausted.
After extensive inquiry and testing of evidence, the
father was vindicated, and the Family Court awarded
him full-time care of his son. But on the day before
he was due to be handed over, the mother killed the
boy and took her own life. Sean Parnell, ‘Mum, tot
found dead,’ Courier Mail (Brisbane: 14 September
1998).
25 Australian Institute of Family Studies, Evaluation of
the 2006 Family Law Reforms (2010), 112-135.
26 Australian Institute of Family Studies, Evaluation of
the 2006 Family Law Reforms, 130-131 citing ABS
Family Characteristics Surveys 1997 and 2003 and
the ABSFamilyCharacteristics and Transitions Survey
2006-07.
27 Child Support Agency, 2009 Facts &Figures (2008-
09),28.
28 Jim Carter, Shared Parenting Trends citing statistics
provided by Richard Foster,FamilyCourt ofAustralia
to the Senate Estimates hearing on 23 February 2009
in his answer to a question asked by Senator Stephen
Fielding, www.familylawwebguide.com.au/news/pg/
news/view/605/index.php&f1lter=21 (2009).
29 Ian Munro, ‘Family Court makes break-up less of a
trial,’ The Age, Melbourne (28 February 2004) citing
Michael Foster, Chairman of the Law Council of
Australia’s family law section, ‘Creating a perception
that the court will help people through a trial is likely
to discourage settlements which are presently running
at the rate of95 per cent of cases.’
30 UNICEF, Report on Childhood in Industrialized Centres
Report Card 7 (2007), ‘[GJrowing up in single-parent
familiesand stepfamilies [isassociated]with greater risk
to well-being – including a greater risk of dropping
out of school, ofleaving home early,of poorer health.
oflow skills,and oflow pay’; ‘The Best Parent isBoth
Parents,’ Parental Equality (2001).