Professor Richard Chisholm, a retired judge of the Family Court of Australia

Professor Richard Chisholm, retired judge of the Family Court of Australia was appointed to review the recently changed  (2006) family law legislation and  determine whether family violence issues were being adequately covered.

As soon as the Labor Party took over government in 2007, women’s groups around the country and academics, who have built their reputation on domestic violence claims that are in the opinion of many, excessive whilst denying the existence of women as perpetrators of violence against both their partners/ husbands and children, launched their assault on the recently changed family law legislation which had provided some opportunities for fathers to co-parent their children in shared parenting arrangements.

Playing the domestic violence card and accusing the Family Court of placing children at risk when sent to stay with allegedly violent fathers workd well for them and the Attorney General Robert McClelland was quick to take on board their claims.

Father’s groups were disappointed when he appointed the retired family court judge Richard Chisholm to investigate the claims. Prof Chisholm is not noted for his empathy with fathers and this is illustrated by his performance of a self-written ditty at the 12th National Family Law Conference, Perth 2006.

I leave it the readers to be the judge of Chisholm’s attitude towards men/fathers. …..

Melinda Chew, a senior writer with CCH report that he “sang with gusto to the tune of “On Top of Old Smokey” (better known as the “I Lost My Poor Meatball” song):

“It seems rather blokey the men won the fights

but now they all tell us it’s about childrens’ rights …

We struggle to read it, we mutter and moan,

by the time that we’ve read it, the kids have left home …

I studied one section, got it into my head,

but it only told me what another section said…”

“The recent epidemic of obesity seems to have extended to the Family Law Act”, his Honour observed with some amusement.

The writer continued: “On a more serious note, he turned his attention to discuss which parts of the Act were proving problematical. His Honour looked at the revised s 60B, which was more explicit than the old provision.

His Honour explained its workings thus: Section 60B divides considerations into two categories: primary considerations and additional considerations. Primary considerations are based on the premise that there’s a benefit to children of having a meaningful relationship with both parents. But this assumption must also be balanced with the need to protect children from violence and abuse. These two factors are known as the “new twin pillars of the law”. Additional considerations cover everything else (eg. views of the child, ability for adequate parenting, etc).

His Honour said that it was the job of the court and practitioners to apply the law and not be guessing what government wanted: “We know quite a bit of what the government intended, but then we have the legislation”. He cautioned that practitioners must be careful about making the intention of government (the politics) and the law the same thing. “At times of crises there’s a lot to be said about orthodoxy; it’s our job to administer the law.”

His Honour proposed that everything that was relevant to additional considerations was also relevant to primary considerations. He suggested that practitioners “take the factual disputes separately, then come back to the legislation to see how it fits together”, rather than take one legal category then look at another one, which “leads to endless confusion”. Practitioners should get the facts right first, he said, then work through the legislation referring back to the facts.

In the final analysis, he said, “you can make sense of it. The ultimate goal has to remain the same: to do what’s best for kids. So, we might see a lot of change in the way a case is presented, but the outcome should be the same as under old system.”

Professor Patrick Parkinson considered that the primary considerations set the broad direction to drive towards, while the additional considerations set the route (the way orders are framed). His view of the reforms was more optimistic, and he commented that: “we have an alignment between law and social science that we’ve never had before, confusing as it is”.

He referred to the research findings – expounded by Dr Joan B Kelly during the Family Law Conference – that there had been many commonly held misconceptions about what was in the best interests of children that had now been challenged by research findings.

Departing from Prof Chisholm’s opinion, he insisted that the primary considerations were not just a matter of politics, but were enacted in the light of the facts about post-separation effects on children. He urged the legal profession to consider primary considerations, not because Parliament said so, but because social science studies had shown that it was important for the healthy psychological adjustment of children of divorce.”