Fixing Australia’s Broken Family Law and Child Support Systems

By Professor Augusto Zimmerman.

Augusto Zimmerman has been one of the few Australian academics to speak out boldly about the dysfunction in the nation’s family law and child support systems. He does so from a position of strength, being a former Law Reform Commissioner and now President of the Western Australia’s Legal Theory Association.

Child-support payments, parental alienation and adult male suicide – an undeniable link

According to a significant academic paper endorsed by 110 leading international experts, it is not correct to assume that sharing overnight care is necessarily problematic for the young child.

As stated by Professor Nurcombe, Emeritus Professor of Child & Adolescent Psychiatry, University of Queensland, ‘the paper highlights the fact that current policies relating to overnight contact with […] young children have been excessively affected by misplaced concern to the mother’.

Amongst the 110 leading researchers and practitioners mentioned in that research paper are Dr Don Edgar, former Foundation Director of the Australian Institute of Family Studies, Judy Cashmore AO, Professor in Socio-Legal Studies at Sydney University, and Emeritus Professor Barry Nurcombe, who then explains that ‘these experts who signed the report are amongst the best in the world in their fields’.

Parental alienation can devastate the relationship between a parent and his/her children. However, there is an undeniable link between the child-support scheme and attempts by some parents to eradicate the relationship between the child and the other parent.

Given that child support is calculated on the number of nights children spend with each parent, it is entirely reasonable to expect that a primary carer may be very tempted to withhold access for solely monetary reasons.

Contrary to popular belief, child-support payments have nothing to do with irresponsible fathers abandoning their children. This support scheme was primarily motivated by concerns about growing welfare expenditure.

Developed in the late 1980’s to oust the jurisdiction of the courts in relation to child support, such a scheme ‘was largely driven by the need to ensure … that private transfers of money from fathers to mothers reduced the burden of the state in terms of welfare expenditure’.

Across Australia, parents are being told in mediation sessions or by lawyers that there is no hope of overnight contact with their children. In view of the financial reward acquired, the position of custodial parents is that the other parent should spend the least time possible with their children.

As a result, thousands of parents who have had their contact with their young children limited to a few hours, often spend huge sums on lawyers, fighting to be able to care for their children overnight. Indeed, over 1 million children are living without their fathers and that the legislation underpinning the Family Court of Australia and the Child Support Agency has been a major factor contributing to the fatherlessness crisis.

According to the Australian Bureau of Statistics (ABS) 1,901 males (16.8 per 100,000) and 634 females (5.6 per 100,000) died by suicide in 2012 alone. The Australian Institute of Health and Welfare reports that the suicide rate for men aged 20 to 39 years has risen by 70 per cent over the last two decades.

This finding has been highlighted in an academic paper by Susan Beaton and Peter Forster. Published by the Australian Psychological Society, these two experts in suicide preventions explain that ‘suicide is the number one killer of men under 44 years’ in Australia, and that the dramatic increase in male suicide is at least partially due to marriage breakdown coupled with ‘poorer social support among divorced males’.^[7]

According to sociology professor Augustine Kpsowa of the University of California at Riverside, divorce following the loss of contact with their children is undoubtedly a major factor of male suicide. ‘As far as the divorced man is concerned, he has lost his marriage and lost his children and that can lead to depression and suicide’, Professor Kpsowa says.

Interestingly enough, here in Australia the death rate amongst child support payer fathers is almost double the rate of fathers who do not have administrative child support assessments.

In this sense, one fundamental reason for the dramatic increase in male suicide is the unfair denial of access of fathers to their children. This leads to the conclusion that marital status, especially divorce followed by the loss of access to children, has a strong net effect on mortality from male suicide.

Since there is an implicit assumption that the bound between a woman and her children is stronger than that between a man and his children, in a divorce settlement, custody of children is more likely to be given to the wife.

As a result, writes Professor Kpsowa,

the father loses not only his marriage, but his children. The result may be anger at the court system especially in situations wherein the husband feels betrayed because it was the wife that initiated the divorce, or because the courts virtually gave away everything that was previously owned by the ex-husband or the now defunct household to the former wife.

Events could spiral into resentment (toward the spouse and “the system”), bitterness, anxiety, and depression, reduced self-esteem, and a sense of “life not worth living”. As depression and poor mental health are known markers of suicide risk, it may well be that one of the fundamental reasons for the observed association between divorce and suicide in men is the impact of post-divorce (court sanctioned) “arrangements”.

This explanation helps us understand what happened to the police officer who hanged himself after being denied access due to charges brought by his ex-wife, which the court found to be frivolous. Or to the loving father who hanged himself after being denied access to his children because he could not afford to pay child support that higher than his take-home pay.

In a letter signed ‘In Memory of My Loving Father’, his distressed 14 year-old daughter stated: ‘I know my father was a good man and a good father … He obviously reached a point where he could see that justice was beyond his reach and decided that taking his life was the only way to end his suffering’.

As can be seen, the child-support scheme has been transformed into a perverse incentive to parental alienation.

Such alienation constitutes a gross violation of children’s rights, and is also a leading cause of male suicide in Australia. And so it is important to consider that separating a parent from their children (in order to obtain financial advantage) constitutes a serious form of child abuse.

As correctly stated by Sir Paul Coleridge, a former High Court Judge in the United Kingdom, ‘mothers who refuse to let separated fathers see their children should have them taken away. The children should be handed over to the full time care of the father if the mother persistently defies court orders’. I wholeheartedly agree with him.

The unfairness of spousal maintenance

A woman’s specialisation in domestic work and child-rearing often entails the erosion of her income-earning capacity. During the period when the law regarded marriage as the union between husband and wife to be indissoluble except by death, a wife had a life-long right to be supported by her husband unless that right was forfeited by her own actions.

The idea relied on the indissolubility of marriage, which for the husband involved a continuing obligation to support his wife. Therefore, a man who had broken the promise of supporting a woman by entering into matrimony still had the legal obligation to look after her welfare if she was in need and unable to support herself.

During the ‘no-fault’ revolution in Western societies throughout the 1960s and 1970s, the law removed considerations of ‘fault’ and divorce became a ‘right’ freely available at the decision of one spouse even against the wishes of the other.

Naturally, it becomes far more difficult in such circumstances to justify support for a young woman who leaves her husband for reasons such as boredom or because she has formed a new relationship outside the marital relationship.

Although acknowledging the variety of reasons why a marriage might break down, it is entirely reasonable to question the legitimacy of a system that compels some ex-spouses to support an individual who leaves the marriage relationship for entirely unilateral reasons.^[15] Surely, there is little doubt that elementary considerations of fairness and equity demand that the law compelling the payment of spouse maintenance be immediately repealed under the current ‘no-fault’ system.

False allegations as a tool in family court disputes

It is deeply commendable that strenuous efforts are being made to ensure that female victims of domestic violence are given every possible legal support to ensure their safety. But many in the legal profession and elsewhere take issue not only with the perceived bias against male victims of domestic violence, but also with the notion that laws should be tilted to favour alleged victims without any consideration for traditional legal protections to ensure fair treatment for the alleged perpetrators.

Many cases of domestic violence have ended up in our courts where these allegations have been entirely disproved, and sometimes many years after the alleged offender found himself evicted from his home, alienated from his children, arbitrarily arrested, suffering incommensurable damage to his personal and professional reputation, and financially bankrupted after facing huge court costs to defend himself from mendacious accusations.

Curiously, surveys indicate that the general public is now fully aware that false allegations of domestic violence are regularly made, although accusers are virtually never punished. In a survey with over 12,500 Australian respondents, more than half agreed with the statement that ‘women going through custody battles often make up or exaggerate claims of domestic violence in order to improve their case, and only 28 per cent disagreed.’^[16]

The same findings were obtained in a survey of 68 Australian families by Dr Sotirious Sarantakos. This sociology professor at Charles Sturt University discovered that a considerable number of allegations of domestic violence are patently false. In such cases, ‘the initial allegations of DV were modified considerably by them during the course of the study, particularly when they were faced with the accounts of their children and mothers, admitting in the end that they were neither victims of violence nor acting in self-defence’.

As for members of the judiciary, the overwhelming majority of magistrates agree that false claims are often sought for collateral reasons pertaining to family court disputes and child custody issues. According to David Collier, a retired judge from the Parramatta Family Court, these orders have now become a “major weapon” in the war between parents who wish to secure sole custody of children.

In this sense, a survey of 38 magistrates in Queensland reveals that 74 per cent of them agreed that domestic violence restraining orders are often used for tactical purposes.

Similarly, a survey of 68 magistrates from New South Wales informs that 90 per cent of them agree that such orders are commonly sought as a ‘tactical device’ to aid applicants with family law disputes, and to deprive former partners of contact with their biological children.

There is indeed an obvious link between restraining orders, false claims of domestic violence, and parental alienation. The problem of false allegations lies particularly in how these restraining orders are issued and the grounds for which they are made. Unfortunately, a considerable number of restraining orders are granted on a ‘without admissions’ basis that have virtually no evidentiary value in themselves.

There is therefore a notorious lack of scrutiny concerning the nature and substance of these complaints. That being so, it is always important to remind us that not everyone who applies for a restraining order is a genuine victim of violence, just as not everyone who is subject to such an order is necessarily the perpetrator. In fact, the person who is protected by the order may sometimes be the actual perpetrator, whereas the one bound by the order may actually be the real victim.

While it is not entirely possible to know if every order is legitimately applied, there is little doubt that a countless number of applications are grossly misused and unmeritorious. Timing is a possible sign that someone may be seeking a restraining order for reasons other than a real concern for physical safety. A common example is that, after initiating custody proceedings, unethical lawyers might instruct their clients to apply for such an order so that they may obtain an upper hand at family court proceedings.

Because respondents are required to vacate their family home, the granting of such orders have profound implications for the lives of those who are affected. Of course, being deprived from one’s home is a deeply traumatic experience. And yet, each year thousands of innocent Australians are issued with orders that evict them from their properties.

Since these orders are granted on an ex parte basis, armed police officers evict surprised owners with no evidentiary hearing or admissions. These orders nullify the fundamental right of homeowners to occupy their property, thus making a crime out of the ordinarily innocent act of merely returning home.

Furthermore, these orders often restrict contact with children, which may result in supervised parenting time or no time at all. A parent receiving such an order must immediately vacate his or her home and make no further contact with their children.

This is about children being maliciously alienated from one of their parents. These orders, separating fathers from their children for years, and even life, are often issued without any evidence of legal wrongdoing. They are often issued at a hearing at which the accused person is not present.

Final Observations and Recommendations

It is time to restore procedural fairness and justice to the system. In particular, it is time to punish those who use the strategy of applying for restraining orders in order to obtain undue advantage at family court proceedings, particularly those relating to property settlement and custody issues.

The members of the Joint Select Committee will notice the recommendations made in my earlier submission. For instance, it is stated that false accusations against an innocent parent should lead to the loss of child custody.

This is certainly a form of domestic violence to deliberately attempt to destroy the life and reputation of an innocent parent, and, in the process, alienating this parent from their children so as to obtain undue financial advantage by means of child support payments.

According to law professor Patrick Parkinson, the child-support scheme presently provides a myriad of ‘perverse incentives … for primary caregivers to resist children spending more time with the other parent to avoid a reduction in the child support obligation.’

As far as possible, concludes Professor Parkinson, ‘these perverse incentives need to be avoided, and legislative policies in these areas should be in harmony rather than conflict’.

In this sense, the undeniable and patently obvious link between parental alienation and the child-support scheme must be addressed, and urgent remedial action being taken. Above all, it is a simple matter of justice that those who irresponsibly refuse to let separated partners see their biological children should be punished accordingly.

Although judges are notoriously reluctant to punish such alienating parents, alienation of this kind must be approached as a very serious form of child abuse – which is indeed so terribly serious that it should give rise to the automatic loss of custody in favour of the innocent parent who has been unfairly alienated.

Besides these important matters there is also the unreasonableness of spousal maintenance payments. Indeed, my submission provides several compelling reasons as to why, under a “no-fault” system, it is simply unacceptable that such payments should be allowed to continue. Because they violate the most fundamental principles of equity and fairness, such payments constitute a serious anomaly within the current system and they should be immediately abolished.

This piece is adapted from a statement made by Professor Augusto Zimmerman to the Joint Select Committee on Australia’s Family Law System at their invitation. The original text, including footnotes, can be found here.