By Augusto Zimmermann

The Turnbull government has ordered a comprehensive review of the family law system to ensure it can deal with cases of domestic violence and child abuse. The Australian Law Reform Commission will conduct a wide-ranging review of the Family Law Act, the first comprehensive examination since its introduction forty-two years ago. In the meantime, a federal parliamentary committee is examining how to create a better family law system for those suffering domestic violence.

It is all working just as the Turnbull government and the “establishment” divorce lawyers intended. For instance, Attorney-General George Brandis has appointed Professor Helen Rhoades to chair this important review. Brandis says she has “extensive experience and a deep knowledge of family law”. Professor Rhoades is the co-convenor of the Melbourne Law School’s Family and Children’s Law Research Group and chaired the Family Law Council from 2010 to 2016. She has written and edited numerous publications focused on issues related to family violence and child custody issues from a distinctly feminist point of view.

Senator Brandis acknowledged that he has appointed someone who is deeply “embedded within the system”; that is, someone who epitomises the status quo. According to the journalist Corrine Barraclough, there are some other things we need to know about this appointment:

[Professor Rhoades] has a clear history of repeatedly pushing back against shared care. Her less than positive response to shared parenting was taken into consideration in the Australian 2006 reforms and the Family Justice Review (FJR) in the UK in 2011. The FJR’s interim report had encouraged a change in legislation to emphasise “the importance to the child of a meaningful relationship with both parents after their separation where this is safe”. In step s Rhoades with weighty concerns, a U-turn follows and into the bin flies legislation emphasising the importance of both parents.

She snubs shared parenting, writing “… This view is based on a belief that shared parenting is so intrinsically beneficial to children that it should be supported even when parents are not able to cooperate or communicate with each other.” Hmm. So, she’s against shared parenting because exes can’t communicate? How is that in the best interest of children? Crucially, she places the importance of parental communication—often scuppered by the very parent inappropriately withholding contact —as paramount. She says that is above the need of children to have meaningful contact with both parents. As a self-proclaimed feminist, perhaps we can conclude her position clearly shows her ideological priority aligning with the mother instead of the child. Instead of snubbing share care, damning it as damaging to children, how about examining how irrationally hostile parents might be made to act in their child’s best interests? Of course, that isn’t in keeping with feminist ideology, is it?

She has taken exception to reform sparked by “extensive lobbying by fathers groups”. The very fact they exist underlines the real issue here, but again, a feminist ideologue sees fathers, and in fact, the family as the enemy.

She frequently quotes the discredited Jennifer MacIntosh, who has directed several research projects for the federal Attorney-General’s Department and the Family Court of Australia. She is entrenched in the system. She led research that said shared care was a source of “psychological strain” for children “in her sample”.

Ms Barraclough concludes her assessment with a fundamental question: Why hasn’t Senator Brandis appointed an authentic reformist to provide input into this important review? As she points out, the reform of a deeply flawed system is far too important to be trusted to someone who is known for her anti-shared-care agenda, which is likely to make the system worse. Who would like to guess what this sort of “review” will find?

I applied for the position of President of the Australian Law Reform Commission. My application seems to have been ignored entirely. I did not even receive an acknowledgment of my application.

In my application, I stated that I was very interested in the reform of the family law from a rights-based perspective, and that I had just completed my five-year term as Law Reform Commissioner in Western Australia.

My fellow commissioners and I reviewed the operation of the Family Restraining Orders Act 1997 (WA), considering whether there would be benefits in having separate legislation governing family violence orders. Our Commission also published a final report on the inter-relationship of the right to lodge a caveat over land and the Family Court Act 1997 (WA) and the Family Law Act 1975 (Cth).

Furthermore, in October 2008 I was asked by the Immigration and Refugee Board of Canada to give detailed documentation on issues of domestic violence in Brazil. My contribution to the process was to provide expert information on domestic violence legislation and its implementation in Brazil. I offered documentary evidence to the Canadian board, which is an independent administrative tribunal responsible for refugee protection and immigration appeals.

As a Law Reform Commissioner I stood firmly against the West Australian government when they introduced highly cont roversial legislation on domestic violence that posed an insidious threat to the fundamental rights of citizens. Family violence orders (FVOs) can now be used in Western Australia to evict a person from his home and to deny contact with his children, although these orders lack the proper application of due process. They are often granted on a “without admissions” basis, which means no evidence needs to be produced.

Of course, it is extremely important to protect those women who are at risk of violence and it is commendable that strenuous efforts are finally being made to provide victims with every possible legal support to ensure their safety. But many in the legal profession and elsewhere take issue with the notion that laws should be tilted to favour alleged victi ms without any consideration for traditional legal protections to ensure fair treatment for the alleged perpetrators. These protections are being severely undermined in Western Australia.

Simon Creek, a West Australian family lawyer, supported my position in an article in the West Australian. He addressed some of the notorious inadequacies of the current system, explaining that the latest changes in the legislation “are likely to cause as many problems as they might fix”.

Mr Creek is merely expressing the frustration of many experienced lawyers at these radical changes. As a family lawyer he has been “introduced to the best, and worst, of human beings”. Perhaps, right there, is the source of his “growing unease” over recent amendments to the Restraining Orders Act 1997 (WA).

In addition to my application to the Australian Human Rights Commission, I made a submission to the Parliamentary Inquiry into a Better Family Law System. Again, my submission appears to have been entirely ignored. Again I did not receive an acknowledgment of its receipt.

In my submission I stated that, in August 2013, our Law Reform Commission received final terms of reference from the West Australian Attorney-General to consider:

  • the benefits of separate family and domestic violence legislation;
  • the utility and consequences of legislation for family and domestic violence restraining orders separate to their current location in the Restraining Orders Act; and
  • the provisions which should be included in such legislation were it to be developed (whether in separate legislation or otherwise).

In December 2013, our Commission published its discussion paper presenting fifty-three specific proposals for reform and raising twenty-nine questions for discussion. This paper was followed by consultation with more than 150 individuals expressing their concerns about family and domestic violence. Our Commission received forty-three written submissions, and we also conducted a number of additional consultations to resolve matters arising from the submissions. Our final report was published in June 2014.

It is curious that, despite my involvement in this investigation and special knowledge gained from it, my submission to this federal inquiry has been entirely ignored. In my submission I expressed my complete agreement that domestic violence is a serious problem and that the full force of the law must be applied against the perpetrators of such violence. On the other hand, I also dared to remind the members of this parliamentary inquiry that one of the primary reasons for the “epidemic” of domestic violence in Australia is the expanded meaning of the word violence. Such meaning has become radically subjective and it now practically means whatever the “victim” claims it to be.

Released by Senator Brandis on August 18, 2 016, the Commonwealth-funded National Domestic and Family Violence Bench Book claims to provide “comprehensive guidance on issues relating to domestic and family violence for judicial officers in all jurisdictions”. This guide effectively turns anything that causes displeasure into “domestic violence”. It gives as examples of “violence” continuing silence, staring, withdrawing affection, or threatening to divorce.

A comprehensive study on post-separation conflict indicates that many participants who sought (and obtained) FVOs referred to “abusive behaviour” as something they had not directly perceived, but that was simply suggested by lawyers and social workers. As one participant stated:

The lady at the court showed me this flow chart of domestic violence and it actually made me realise that that’s what I’ve dealt with since I’ve been with him, but it’s been verbal and emotional rather than physical.

Under present statutory schemes, one may seek a “family violence order” on such grounds as “emotional abuse”, “banking abuse” and “financial abuse”. These are extraordinarily subjective standards. Argu ably, even a raised voice or an extemporaneous gesture may be regarded as “emotionally abusive” and provide sufficient grounds for a claim that “domestic violence” has occurred. The present definition of “violence” encompasses such things as “refusing to let you have money” (financial abuse), “not sharing a joint bank account” (banking abuse), “giving you negative looks” (emotional abuse) or “ignoring your opinion” (emotional abuse).

The West Australian Law Reform Commission spent numerous hours discussing the concept of “banking or financial control” as a form of domestic violence. In our final report, “Enhancing Family and Domestic Violence Laws”, the Commission rejects any such idea, since there might exist a proper reason as to why someone may be prevented from accessing the family’s financial or banking resources. Instead, in our report the government is reminded that “the inclusion of emotional and psychological abuse within the definition of family and domestic violence is contentious”.

The idea of “economic abuse” as a form of “violence” that possibly justifies an FVO application was explicitly rejected by the Commission’s final report. We rejected the idea of “economic violence” by referring to Sydney family law professor Patrick Parkinson’s opinion that adding it “has very little potential to be helpful and much potential for the opposite”. Our final report argues that “it is preferable not to expressly refer to concepts such as economic (and emotional) abuse in this new proposed category of the definition [of domestic violence]”.

The Australian public knows that false accusations of family violence are made, but virtually never punished when the claim is entirely disproved. In a survey with over 12,500 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.

Most magistrates in Australia share this popular perception that FVOs are often sought for reasons which are unrelated to authentic fear or real violence. For example, a survey of thirty-eight magistrates in Queensland revealed that 74 per cent of them agreed that FVOs are often used for tactical purposes. A survey of sixty-eight magistrates from New South Wales indicates that 90 per cent of them agreed that these orders are often sought as tactical devices to aid applicants with family law disputes, including depriving the former partners of any contact with their children.

This popular perception is also confirmed by an empirical analysis of sixty-eight families with allegedly violent wives conducted by Dr Sotirios Sarantakos, an Associate Professor of Sociology at Ch arles Sturt University. His research concludes that a considerable number of “women’s allegations of DV” are actually false. In such cases:

The initial allegations [of family violence] 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.

Lack of due process

At a minimum level, due process requires sufficient evidence to convict. Further, due process requires that proceedings be designed to allow a person charged with a criminal offence or accused of a civil wrong to be heard in a regular court and be fully informed in a timely fashion of the nature of the accusations. Furthermore, due process entails, at least in criminal prosecutions, a presumption of innocence and the right to a fair and impartial adjudication. This necessitates, among other things, that the accused shall receive a fair and timely opportunity to respond to the allegations and prepare a defence.

One of the most insidious consequences of the politicisation of this important debate relates to the undermining of traditional procedural rules that are normally applied to govern our adversarial system of justice. FVOs lack the proper application of due process because the evidentiary standards are greatly relaxed. In more extreme cases, such orders will have no evidentiary foundation and be granted on a “without admissions” basis that have virtually no evidentiary value.

An analysis of court files in New South Wales reveals that the courts often deal with these accusations of domestic violenc e in less than three minutes. These cases are resolved by consent without admissions. The information provided in these complaints is typically brief and tends to focus on a single incident. Further, references to “fear” are included in a routine or habitual manner, “frequently as a bald statement to conclude a complaint without any reasoning or thematic connection to the victim’s experience”.

Naturally, having only a few days to defend oneself against an accusation of domestic violence is not nearly enough time. This is compounded by the undeniable stress caused by being evicted from the home by armed police officers at the behest of the domestic partner. Far more often than not, the respondents will have lost access to their children and even the ir joint bank accounts too. This is because the applicant might have spent several months or even years with a lawyer planning to file such an order.

In sharp contrast, the accused is given only a couple of days to prepare a defence. Following a final hearing, those who are adjudged guilty through such a precarious process will have their life and reputation forever tarnished. Contact with their children may also be banned, particularly when the mere existence of the restraining order makes any contact impossible.

Such situations occur every day in Australia. As a result, law-abi ding citizens have been caught in police proceedings and evicted from their homes by ex parte orders that seriously violate the most basic elements of due process—including advance notice of the proposed action, the right of facing the accuser, and the opportunity to refute the allegation.

There is a widespread view that some lawyers have instructed clients to seek restraining orders even when they are palpably unjustified. Rather than being honestly motivated by legitimate concerns about feeling safe, a person may seek an FVO simply because he or she is legally advised to look for any reason to apply for such an order when facing a family law dispute.

 

Parental and property rights

Being deprived of one’s home is always a traumatic experience. And yet, each year thousands of innocent Australians are issued with FVOs that evict them from their homes (and often alienate them from the lives of their children) without due process or any significant issue of physical safety or fear for safety involv ed.

Since these orders are often granted on an ex parte basis, armed police officers evict surprised owners from their properties without any evidentiary hearing or admissions. Since these orders nullify the legal right of homeowners to occupy their homes, they basically create a crime out of the ordinary act of returning home. As noted by Simon Creek:

All a person will need to do is head off to court with their silver-tongued lawyer and tearfully explain that they have a reasonable fear of something bad happening. There will then be an automatic presumption in favour o f granting a VRO or FVRO. And all of the above can take place without the alleged perpetrator even being informed. The first time he, or she, might know of what is being said about them is when they return home to find the locks changed and a police officer serving them with a copy of the order.

Hence a property right is nullified and the family is transformed into a public space in which the state “deliberately and coercively reorders and controls private rights and relationships in property and marriage—not as an incident of prosecution, but as its goal”. In this legal context, Jennie Suk of Harvard Law School conclude s, “The police presence is required in that space and the state gains a foothold for its supervisory presence and control in the home.”

Since FVOs require the respondent to vacate the family house immediately, such orders have profound implications for parental rights. They often restrict parental contact with children, which may result in supervised parenting time or no parenting time at all. Clearly, when an accusation is made the stakes are extremely high. This contrasts with the extremely low burden of proof that is often applied to these orders, which is then exacerbated by the abbreviated manner of the court hearings.

 

The link between child support payment and violence accusations

Reliable studies indicate that children often adapt better to their parents’ divorce if they are allowed to have continuing contact with their non-custodial parents. A recurring theme in the field of child psychoanalysis is that children of divorced parents often deeply desire a meaningful relationship with their non- custodial parents.

Three things should be taken into account when it comes to child custody. First, no children should be denied their basic right to develop a meaningful relationship with both parents. Second, no legal system has the legitimacy to prevent meaningful child-parent relationships to flourish, unless, of course, there are serious concerns about abuse, and principles of natural justice are fully applied in the investigation of these matters. Third, there is no excuse for parents to neglect or abandon their children, or to alienate them from the other parent.

The Commo nwealth Department of Human Services has been responsible for determining the level of support that non-custodial parents are expected to pay. The amount required for such payment is based on the amount of care a child receives from each parent, which is determined by the time a child spends with his or her non-custodial parent.

Originally justified as a method of recovering welfare costs, child support payments have now been transformed into a massive federal subsidy on unilateral divorce. In other words, the payment of support is an entitlement to be automatically assessed on all non-custodial parents, and even on those who are unwillingly separated or divorced against their will. As noted by US sociology professor Stephen Baskerville:

No-fault divorce allowed a mother to divorce her husband for any reason or no reason and to take the children with her. Child support took the process a step further by allowing the divorcing mother to use the now-fatherless children to claim her husband’s income—also regardless of any fault on her part (or lack of fault on his) in abrogating the marriage agreement.

Contrary to popular belief, child support pay­ments have nothing to do with fathers abandoning their children, or reneging on their marital vows, or agreeing to a divorce. Since we live in a “no-fault” system, nobody can contest their divorce and arbitrary separation from their children. That being so, loving parents can be forcibly separated from their children, and child support payments are awarded ostensibly and without any reference to “fault” whatsoever.

Accordingly, child support payments may sometimes operate as an undeserving financial reward for narcissistic parents who deliberately make it very difficult, if not impossible, for non-custodial parents to establish meaningful contact with their children. In view of the reward acquired, the position of some custodial parents is that the non-custodial parent should not be allowed to spend any time at all w ith their biological children.

A parent who holds temporary custody due to false accusations of domestic violence may decide to procrastinate as much as possible to prevent the other (innocent) parent any right of access to their biological children. This form of alienation constitutes a direct violation of the UN Convention on the Rights of the Child. Parents are legally entitled to bring up their own children—and children have a right to their own two parents’ care, as affirmed by the Convention. Article 9(1) of the Convention states: “States Parties shall ensure that a child shall not be separated from his or her parents against their will.” Article 9(3) goes on to say that every child has a “fundamental right” to maintain a regular and me aningful contact with both parents, except where the best interests of the child are not properly realised.

Over the years I have received numerous accounts of non-custodial parents who have been falsely accused of child abuse and neglect. Some of them lost access to their children entirely due to these false accusations. This is so even after the Department of Child Protection (DCP) completely cleared them of any wrongdoing. When both DCP and the courts clear an alienated parent of any wrongdoing, more often than not the courts still award full custody of the child to the parent who made the false allegations.

Indeed, making a false allegation of child abuse has now become a common strategy when it comes to family law litigation. It is regularly used to alienate an innocent parent from their children. As stated above, the strategy consists in the ability of the custodial parent to defame the non-custodial parent without the slightest need of proof. Such accusations tear apart entire families purely on the word of one person. Proof is not necessarily required. And the damage to the innocent person’s life and reputation is irremediable. According to Dr Adam Blanch, a psychologist and counsellor working in Melbourne:

The more a single parent can restrict the other parent’s access to the children the more financial support they receive from the alienated parent and the government, and [an FVO] even when based on allegations that have been unsubstantiated is a great weapon in the fight for primary custody and restricted access.

Trying to maliciously separate an innocent person from their children (so as to obtain undue financial advantage) constitutes a serious form of child abuse. Perpetrators of false allegations should not go unpunished as is often the situation now. Once it is possible to fully testify, beyond reasonable doubt, that no instance of child abuse has actually occurred, such accusations should automatically lead to the loss of child custody. The custody of a child should b e given to the parent who was the innocent victim of unsubstantiated allegations on malicious grounds.

 

No-fault divorce and the moral basis for spousal support

This leads me to another important issue: spousal maintenance payments.

When the law still regarded marriage as the union between husband and wife to be indissoluble except by death, a wife had a lifelong right to be supported by her husband (unless she forfeited that right by her own actions). Marriage was considered an institution with effective contractual overtones, which provided the wronged party with the right to seek compensation and to be released from the marriage relationship.

Under this “fault” system, compensation was available on grounds of matrimonial offence relating to adultery, cruelty or desertion. The courts were required to consid er the commission of offence and the party responsible for the marital breakdown would be held accountable for his misbehaviour.

In this context, any award of financial support reflected not only an element of assistance to the spouse unable to support herself but also an element of punishment of the “guilty” party. If a man deserted his wife she could successfully apply for the right of financial support. Hence, in the 1964 case of Davis v Davis Justice Barry of the Victorian Supreme Court declared:

The broad notion acceptable to the community is, I think, that if a husband of means irretrievably destroys the reality of a marriage, and it appears that he contemplates marriage with another woman who he prefers to his wife, the court should ensure that he pays to the spouse he is repudiating whatever, having regard to his means and his conduct towards her, and her conduct towards him, is fair and reasonable, recognizing that he is pursuing his own gratification in disregard of obligations he undertook.

In a subsequent decision in Atkinson v Atkinson (1969), Justice Barry stated:

The conduct of a husband amounting to a matrimonial offence is considered … a necessary element in determining what order is proper … or what order is just and equitable in the circumstances of the case.

By contrast, a wife who committed adultery forfeited her right to spousal maintenance absolutely. In Adams v Adams (1964) the Supreme Court of New South Wales (Begg J) said of the woman who violated the marriage vow: “In the usual case a wife who has been found guilty of a matrimonial offence will not be awarded maintenance.”< /p>

Before the “no-fault” system, spousal support rested on the premise that the party who was not legally at fault for the marital breakdown was entitled to a form of damages. The idea relied on the indissolubility of marriage, which for the husband involved a continuing obligation to support his wife. A man who had broken the matrimonial promise of supporting a woman still had the legal obligation to look after her welfare if she was unable to support herself.

During the “no-fault” revolution in Western societies in the 1960s and 1970s, the law removed considerations of & #8220;fault” and divorce became a “right” freely available at the decision of one spouse even against the wishes of the other.

There are, however, significant difficulties in justifying support in jurisdictions that have removed the fault-based aspects of spousal maintenance. It is not difficult to justify support for a wife who is abandoned for a younger woman, or for a wife who leaves her husband because of his violence. However, it is much more difficult to justify support for a wife who decides to leave for reasons such as boredom or because she has formed a new relationship outside the marital relationship. To the extent that she is unable to support herself independently, a disloyal wife still remains legally entitled to receive support from her betrayed husband.

This apparent anomaly is consistent with the feminist approach to heterosexual marriage. Radical feminists regard marriage as a “patriarchal” institution based on gender inequality and the division of labour between men and women. In this context, instead of perpetuating women’s dependency, spousal support is viewed as a compensation to be expected by all wives who divorce their male “oppressors”. According to such feminist scholars, feminism supports law which not only “recognises and rejects the categories of public and private”, but which “must also reject traditional categories of … husband and wife”.

Although acknowledging the variety of reasons why a marriage might break down, it is not unreasonable to question the legitimacy of a system which compels some support to an unfaithful spouse who leaves the relationship for entirely unilateral and selfish motivations. It should be a valid defence to any claim for support that the party seeking compensation was in some way directly responsible for the end of the marital relationship. For these reasons, in the rationale for spousal maintenance, some recognition of responsibility for the marital breakdown should be taken into full consideration.

In the past, the law has been criticised for conscious or unconscious gender biases in its operation. This may well be so, but now we are witnessing a more distinctive contribution by radical feminist ideology: the conscious reward of selfish behaviour and the deliberate undermining of justice by family law.

 

Final considerations

The A ttorney-General has announced plans to undertake a review of the family law system. It is about time. However, the appointment of a family law academic who pushes hard on the mainstream domestic violence narrative, so ensuring children remain under the care of their mother, is not a good sign that the review is going to improve a deeply flawed system.

Whether this will really be an independent review with the intention of securing the best for the children, I prefer to leave to the final opinion of others. Professor Rhoades, as Senator Brandis states, has “extensive experience and a deep knowledge of family law”. She is an Australian academic who is deeply “embedded within the system”. And she has a clear history of repeatedly pushing back against shared parental care of children.

The Turnbull government has also flagged changes to the Family Act to ensure those suffering family violence are not put in a position where they are personally cross-examined by alleged perpetrators or vice versa. As reported in the media, “the changes aim to stop survivors of family violence suffering further trauma”.

Domestic violence is a grave issue and we should never go soft on it. It is extremely important to protect women who are at risk of violence and it is commendable that strenuous efforts are finally being made to ensure victi ms are given every possible legal support to ensure their safety.

However, the sympathy which is due to those who live in fear of violence should be extended to those who are the victims of false accusations. I believe the perpetrators of such accusations should meet the full force of the law. They are utterly demoralising a system that should be effectively providing for justice and for the protection of the innocent.

Such false accusations should give rise to criminal charges and the automatic loss of child custody.  The perpetrators of such false allegations should not go unpunished, as is often the situation now.

This is not about violent people who criminally abuse their spouses and children. This is about law-abiding citizens who have lost parental and property rights without the most elementary requirements of natural justice and due process of law. One of the most insidious consequences of the politicisation of the debate relates precisely to the undermining of traditional procedural rules that are normally applied to govern our adversarial system of justice.

It is disheartening that our government seems dismissive of the plight of thousands of law-abiding citizens who have become the innocent victims of a system that appears to reward false accusations of domestic violence. I am deeply concerned that penalties are not applied against individuals filing false complaints of domestic violence. Such false accusations should be taken into account when it comes to child custody and financial matters.

These are some of the things an authentic reform requires of a government that is genuinely interested in improving Australia’s family law system.  Above all, it should be a major public policy goal to protect the institution of marriage by restoring its contractual accountability. The courts should be given the power, on application, to award damages to any party who breaches the marriage contract. This should involve the judicial task of making awards of damages for intangible losses.

The courts routinely award damages for non-economic loss in personal injury claims and damages for loss of reputation in defamation claims. In the context of family law, therefore, it is desirable and morally correct that fault or responsibility for divorce should be taken into account for the award of damages and for deciding the division of family property. Above all, as noted by South Australian lawyer Christopher Brohier:

Marriage is a contract. The law gives a right to claim damages for br eaches of contract in the civil and commercial arenas. Why should marriage be the only contract which may be breached with impunity? The law, by means of ascribing consequences to actions, signals to us what we as a community hold important. It is clear that the no-fault revolution, in allowing the marriage contract to be breached without any legal consequences (though … there are serious and unavoidable consequences in fact) has undermined the value we place on marriage, to the detriment of Australian society.

It is time therefore to protect the innocent victims of unilateral divorce. Ultimately, no-fault divorce that is unilaterally appl ied may undermine justice, as it may reward irresponsible behaviour and make a complete mockery of marital vows. To stabilise marriage, the Family Law Act must be amended in order to remove the present incentive of no-fault divorce which enables a spouse to unilaterally leave a marriage without any fear of losing custody of children and property. On the contrary, this person may even be rewarded with the payment of child support and spousal maintenance by the innocent party who was a faithful spouse and did not desire to inflict all the pain and suffering caused by the breakdown of the family upon their children. This egregious legal anomaly is a standing invitation to irresponsible behaviour. If this urgent reform is not undertaken, the Family Court of Australia will continue to perpetrate injustice by rewarding those responsible for grave marital misconduct, including separating children from their legally blameless parents.

Dr Augusto Zimmermann is Director of Postgraduate Research and former Associate Dean (Research) at Murdoch Law School. He is also Professor of Law (Adjunct) at the University of Notre Dame Australia (Sydney campus), a former member of the Law Reform Commission of Western Australia (2012 to 2017), and President of the Western Australian Legal Theory Association.

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