“Family Court makes disputes worse” – 1999

Letters to the Editor and an Editorial in response to two articles published in The Australian on 24-26/12/1999

“Court Out – One man’s battle for his kids”

Justice Nicholson claims that the Family Court “assists parties to resolve their disputes” (Letters, 27/12).

I beg to differ. The very nature of the Family Court is guaranteed to make disputes worse, due to the adversarial nature of proceedings and the assumption from the outset that the children of divorce are a prize to be awarded to the winner..

The $20,000 to $100,000 couples spend on legal fees could better be spent on mediation, counselling, parenting and relationship education or in many other ways that will make divorce easier on the children. For this sort of money each party could have a case worker visit them daily for a year, and actually resolve the underlying problems that are otherwise played out on the battlefield of the Family Court.

In the small minority of cases where the divorce involves violence, the justice system may need to be called on, and children protected from the abusive parent. However, in most cases the starting point should be that both parents will share parenting and financial support of their children, and serious efforts to make this work.

If a child is sick we don’t just say “here’s an aspirin, if that doesn’t work too bad” on the grounds that proper care is too hard and expensive. Why then do we put such a low value on our children’s emotional wellbeing?

Peter Vogel Faulconbridge, NSW

It is pleasing to see a paper having the courage to print the article “Court Out – One man’s battle for his kids” (24-26/12)

The Family Court specialises in first removing parenthood, then property, possessions and pride from any loving father through any means available to them, and any woman even considering a change in lifestyle without the father of her children being involved knows full well the power that she has at her disposal through the threatened use of this court.

Similar stories could fill page after page of our newspapers daily if any journalist bothered to hunt out these men who have been churned through this system. I am one of those stories, but I am forbidden to publicly give that story, by a piece of Family Law legislation known as s121, that is designed to protect the children, but in fact does far more to protect our judges and their decisions from any close scrutiny.

NAME SUPPLIED South Australia

My hearty thanks to The Australian and Mr X for having the courage to publish “Court out – One man’s battle for his kids”.

From personal experience I know without any doubt that everything Mr X wrote is true, because he did no more than describe how the Family Court industry operates. There are many fathers quietly battling “the system”. In my own case, even though I have committed no crime, and want more than anything else to be a good father, I have had my little son taken away from me via the court process – and, of course, my little son has lost his father.

NAME SUPPLIED Victoria

It is understandable that Justice Nicholson (Letters, 28/12) should attempt to defend his court. It is also disappointing that he refuses to acknowledge there is anything wrong with the way the Family Court functions.

Many other people now acknowledge that separating the work of the Family Court from other courts was a psychological blunder. It has allowed for an expensive growth industry which is less interested in serving those who come before it than in ensuring that it serves those who work for it.

I have heard many stories about the Family Court (from both sides of the same relationship) and, even allowing for a desire to exaggerate, I am aware that the experiences of “Mr X” are likely to be close enough to the truth to be cause for concern.

In denying this the judge is doing himself and his colleagues as well as those who come before the court a great disservice.

K.M. GUNN

Lower Mitcham, SA

The Australian Editorial that appeared as a follow-on to the “Court Out” and “Trial Separation”articles that appeared on Friday 24 December.

Families need new ways of ending strife

Monday 27 December 1999

Christmas and New Year is a time of happiness and family security – but not for everyone. It is also a period that reveals the strain and conflict within some relationships and families. Fortunately, there is a growing awareness that a society cannot function in a healthy way if too many of these basic human link easily break.

In government there is a realisation that a different approach is needed. It is a paradox. The starting assumption for a new policy must be that policy can only do so much. Government has to encourage people to be self-reliant. Individuals must take greater responsibility for themselves and their families. This means more emphasis on preventing conflict, through education and counselling. Sometimes a mark of success in a pre-marriage program will be two people deciding they are not, after all, meant to be together. When conflict cannot be prevented, it must be resolved without making it worse. It has to be done quickly, cheaply and fairly, in a way that engages the people involved and encourages them to accept the outcome. Non-government agencies have the potential to offer a wide range of services – such as counselling and mediation – and the federal Government is right to encourage their growth.

For too long the Family court, and bitter argument about its workings have dominated public perceptions about family conflict. Certainly the experience of being a litigant in the court can be disillusioning. In its Christmas weekend edition The Australian published the account of one such litigant. Of course, there are always other points of view – those of another party, for example, or of court officers. Only 5 per cent of Family Court cases ultimately need a decision by a judge. Some of those cases could be dealt with more quickly and less expensively, removing causes of further resentment and conflict. Other cases entail unnecessarily protracted litigation before they settle. And there are cases that could be dealt with more conveniently by a non-government agency in a rural or regional area.

Where litigation cannot be avoided it should be made as short and simple as possible. For this reason, the new federal magistrates service, expected to begin next year, is a promising, if modest, venture. The idea is that magistrates with streamlined procedures will relieve the Family Court of simpler cases.

The Government’s promotion of alternatives meed not be seen as a threat to the court. It may mean that the court finds itself with a more coherent and manageable mandate. Constructive criticism aside, the court has also suffered unreasonable attacks, made inevitable by its sheer prominence in the difficult field of family law.

If agencies do more conflict prevention and resolution, and the magistrates handle more litigation, the court should be able to concentrate its expertise on the more difficult and complex cases. The courts’s Magellan project illustrates the potential. This project involves Victorian cases where there are serious allegations of child abuse. Taking a team approach, and with good co-operation from state agencies, the court has been able to resolve these difficult cases relatively quickly. The benefit is not just a saving of time and resources but probably the prevention of serious long-term damage to families. Better prevention and quicker remedies – these approaches will be in demand as family policy evolves.

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Letters to the Editor in response to the Editorial (above)

Family Court unfair to men

The Australian, 29 December, 1999.

I applaud The Australian for publishing the articles “Court Out” and “Trial Separation” on Christmas Eve. For too long the media have been silent about the difficulties faced by litigants, especially fathers, in the Family Court of Australia.

I must however, dispel a myth that is in danger of becoming accepted as fact and is referred to in today’s editorial “Families need new ways of ending strife” (27/12).

Your editorial has relied on a claim that because only 5 per cent of Family Court cases are decided by a judge, then it follows 95 per cent are happy with the outcome of their separation agreements.

That is not the case. The system is so long winded and the entrenched maternal preference so apparent, many men are forced to accept agreements that offer little contact to their children or little in the way of fairness.

Despite wishing to proceed, many withdraw when they run out of money, especially when there is a seemingly endless supply of Legal Aid funding for the other side. Often cases don’t get beyond the first step – a Legal Aid mediation conference when pressure to agree is immense – often under threat to remove funding or threat that “you’ll pay all the costs” (yours and the other party) for any future litigation. Some counsellors are adept at convincing fathers that more harm than good will result from them wishing to spend time with their children, when faced with a mother who is determined to deny contact.

The final sell-out often comes from the least expected quarter – the father’s solicitor. After many weeks of negotiation, letter writing, document preparation – his advice maybe “this is as good as it gets, so sign the consent orders” (i.e. an offer of every second weekend contact with the children), or “do not proceed to court seeking residency – you have no chance of success”.

I doubt the 95 per cent have ever been asked if they signed the agreements willingly. Perhaps it is time to ask those searching questions. A Royal Commission into the Family Court would be welcomed, for they have, for too long, remained in hiding behind their cloak of secrecy.

Sue Price, Men’s Rights Agency, Waterford Qld