Collusion and Corruption in Family Law - John Stapleton
One of the sickest jokes of the whole fiasco of the government inquiry into child custody, which reported on December 29th 2003, was the sight of the Family and Community Services Committee members warning the Chief Justice of the Family Court Alastair Nicholson to accept the report.
While fathers and family law reformers were visceral in their contempt, in the end Nicholson, the living embodiment to many of everything wrong with family law, was one of the report?s only supporters.
And why wouldn?t he embrace the report?
It set out, with clear collusion between the major political parties to protect the appalling legacy of the hated Family Court of Australia.
It ignored the personal and social consequences of the conduct of Family Court judges. It ignored the massive bias in the system. It ignored the many moving tales of distress from fathers, second wives, grandparents and non-custodial mothers.
It took a few hours, sometimes days, for fathers and family law reform advocates to realise how thoroughly they had been duded.
But realise they did. Lone Fathers described the rejection of a rebuttable notion of joint custody as silly and said they would appeal directly to the Prime Minister. Dads Australia called it a betrayal of the million Australian children of separated parents. The Men?s Rights Agency, which did numerous interviews on the subject right around the country, dismissed it as ?the greatest betrayal by any government ever in Australia?. ?The politicians all knew how crucial this issue was to the many fathers who are denied contact with their children,? she said. ?They have raised their hopes, only to see them dashed. They will not forget in a hurry. They have put us so far back in seeking shared parenting that it will take years to recover. They have vetoed a presumption of joint custody with no logical argument whatsoever. They have presumed that any parent with on-going conflict with their partner is a danger to their children. How just is that??
While the committee members originally appeared confident their recommendations would be implemented, it appears to be slowly dawning on the government they would be insane to do so. Particularly in an election year.
Every last attack on fathers will be met with a vociferous campaign from the fathers groups. Traditionally fragmented and disorganised, they have been united in their campaign for reform. While there will never be across the board co-operation between the groups, dominated as they are by strong personalities, most are aiming for much the same things.
While still lacking in the millions of dollars of public funds that flow to the women?s groups and women?s advocacy organisations, including the domestic violence industry, the fathers and family law reform groups are now better co-ordinated and better organised than ever before. The focus of the inquiry has consolidated the belief that the only way for parents to protect their children?s interests after separation is to remain fully involved in their upbringing in joint custody arrangements.
This government committee, by first inviting fathers to be heard and then completely ignoring everything they said, has created its own worst nightmare, inflaming sentiment and outraging reform advocates.
The report is clear political insanity on the part of the Howard government, which is only eight seats away from losing control.
The Prime Minister John Howard raised the hopes of millions of people affected by family law and child support in Australia and led them to believe that long over-due reform was on the way.
The report essentially spat in the face of the hundreds of thousands of pro-family men and women, many of them more naturally aligned to the Labor party than to the conservatives, who had drifted to the Coalition in the hope that they would reform family law. The report not only told the hundreds of thousands of people currently adversely affected by family law and child support that it would be inappropriate for them to do anything to improve their situation, it told fathers now and into the future that they are second class parents who do not deserve to be treated equally.
The hopes of fathers and family law reformers were brutally dashed by the report, which not only used completely spurious non-arguments to reject the proposal of joint custody, a popular and common sense idea, but made numerous recommendations, such as the taking away of driver?s licences, which would criminalise fathers and clearly make their lives worse.
It was open to the committee, on the evidence before it, to adopt shared parenting or joint custody as government policy. Its rejection of joint custody relies on an extremely selective choice of arguments. It would have been much easier to make a cogent argument in favour.
There was obviously a deal done between the parties to reject a rebuttable joint 50/50 custody after separation in return for bi-partisan support. As such, the report demonstrates clear collusion between the political parties to protect the corruption in the family law and child support systems. It failed to recommend exposure of the biased and dishonest conduct of family law experts. It failed to recommend a scrapping of the Family Court as a failed social experiment. The report did not recommend the abolition of the secrecy clauses of the Family Law Act, the notorious Section 121, and it failed to even recommend the counting of the death toll of the Child Support Agency, believed to be more than three a day.
Without a rebuttable notion of joint custody, which is so clearly supported by the community, the committee?s recommendations for a tribunal to try and take the heat out of the adversarial system of Family Law, fell more than flat.
The idea that they would recommend a tribunal with a child psychologist and family law experts on it, when every man and his dog in the country knows how utterly dreadful the experts infesting family law are, was simply preposterous. Without a rebuttable notion of joint custody such a tribunal would not be helping separating couples to achieve co-operative parenting arrangements after divorce. Instead it would be replicating the same practices that exist now; but making things even less accountable than at present. Does the country really need another secretive, corrupt and ideologically driven tribunal mucking with people?s private lives?
While we rarely agree with Kathleen Swinbourne of the Sole Parents Union, she got it exactly right when she said the recommendations of the report would make little difference in practice and that fathers having their children taken off them would hate a tribunal just as much as they hate the court.
One of the more coherent attacks on the committee report came from the eccentric speaker for the SA parliament Peter Lewis, who slammed the House of Representatives' Standing Committee on Family and Community Affairs, Inquiry into Shared Parenting (HORISP), Report into Child Custody Arrangements.
"Of course, the existing 'Industry' would say the kind of complimentary things they have said about this report! It's business as usual for them, with a cursory slap on the wrist for the crook, abusive, sexist, racist, biased, criminal things they have been doing, all still permissible under the new regime recommended by HORISP," Lewis said.
"At present, a vindictive parent of a broken marriage can still go into 'the system' and lie their heads off under oath, thereby destroying the reputation of their innocent ex-spouse and get away with it! AND WORSE still these liars (perjurers) will most likely get custody/residency of the children, &/or at least prevent the other parent from reasonable (or any) access," the Speaker said.
"Taxpayers will continue to foot the bill for many more years for all the problems which caused the Family Court's rotten reputation to come under the Parliamentary Committee's spotlight in the first instance; namely, anti-father bias and false allegations, including perjury, accusing one or other of the parents of violence and abuse."
"Their No 1 recommendation should have been to make perjury (telling lies under Oath) in the Family Court processes a criminal offence. Such a recommendation would then have allowed an additional criminal charge of Criminal Defamation to be brought against the liar," Peter said. "They don't address this major problem anywhere in the Report."
"However, in their No 1 recommendation HORISP talk about "shared parental responsibility" which is what the current practice in the Family Court jurisdiction now claims to deliver."
"At present, the Court awards 'shared responsibility' by giving one parent
responsibility' for residency/custody - whilst giving (compelling) the other parent 'responsibility' for the supply of the money, called 'support', without satisfactory (or any) access, i.e. one gets the kids and the other pays the bills under the 'shared responsibility' model at present. HORISP has not recommended any change to the definition of 'shared responsibility'.
"Yet in recommendation No 2, HORISP want "a clear presumption against shared parental responsibility ... (where there are allegations about)... entrenched conflict, family violence, substance abuse or established child abuse, including sexual abuse".
"Under current case law this recommendation will aid, abet and encourage liars and cheats to an even worse degree than the current practice of the Family Court allows. They seem to me to be shamelessly stupid, or insensitive, or ignorant, or all three."
"The report fails to recommend an abolition of the Family Court case law and precedents flowing from it, which it created. This will continue to effect and determine its future deliberations unless it is abolished by Statute.
Any new system which is going to be built on the foundations of the old, will be destined to failure," the Speaker said.
"The only people who will view this Report as progressive will be those who weren't around at the time of the 1992 and 1995 inquiries, and those who depend on the existing injustices of the system to make their living".
"I am angry that this will do nothing to reduce the suicide rate and mental illness which has arisen in consequence of the practices in the Family Court system, until now".
"The Family Court system and the publicly paid servants in the processes which hang off it are racist, sexist, abusive, biased, crook and often criminal in their impact on too many parents who have to go through it".
HORISP has missed the need to recommend changes to the law which would change these things."
* "They are racist because too often, they assume Anglo Saxon cultural mores".
* "They are sexist because too often, they assume that a woman will be a better parent than a man".
* "They are abusive because too often, they assume that a man should earn the money and support the children, after the former wife has lied about and vilified him and obstructs his lawful access to children".
* "They are biased because too often, they assume children don't need their father".
* "They are crook because too often, they allow perjury without penalty in their processes and actions".
* "Finally, the Family Court system covers up criminal conduct by allowing too many publicly paid servants in the processes associated with its actions to ignore the public duty of the Court to uphold the law, including its own Orders".
"The only significant change has been a recommendation to replace part of the work of the existing Family Court with a Tribunal. Yet the Tribunal will not require people appearing before it to tell the truth nor do HORISP's recommendations compel the Tribunal to try and discover the truth before making its Orders. This will make things worse, not better. Moreover, it is probably un-Constitutional anyway."
"It seems the Committee (HORISP) has attempted to avoid offending the Family Court, the publicly paid people who work in the industry and the entrenched structured, leftist views and injustices of the politically correct ninnies who gave evidence to it."
"The Hon Speaker is concerned that Legal Aid will continue to be used to prop up more litigation against too many fathers, who in most cases will have no access to any fair and comparable representation in court."
"The Committee has wimped out in its duty. The basic reason for its establishment was to discover the causes and eliminate the injustices of the current Family Court system. It was told by the Prime Minister to work out the changes to the Family Law Act to fix the problems with the Family Court system. It has not done that."
"The major parties were represented on this Committee and have had their chance to get it right but failed. They have even recommended things which will compound the felony of the system and which are probably un-Constitutional. The Prime Minister must now kick butt and fix the problem himself".
19 January 2004