Divorce: how adequate are the provisions of the Family Law Act and the operation of the Family Court?


Echo Issue Outline: copyright © Echo Education Services
First published in The Echo news digest and newspaper sources index.
Issue outline by J M McInerney

What they said ...
Women refuse to allow their children to see their fathers even when a court order exists. Until the day that one of them is jailed or fined or made to work at community orders, this will continue
Melbourne criminologist, Maartje Irvine, giving evidence to the joint select committee on the Family Law Act, in November, 1992.

The arguments given against imprisonment of mothers usually focus on the welfare of the children while the mother is away and the risk that the father might be blamed by the children for putting their mother in jail.
Bettina Arndt, columnist for The Age, summarising the usual arguments offered against jailing mothers who deny fathers contact with their children.

The federal Attorney-General, Mr Daryl Williams, recently announced a number of possible changes to the Family Law Act and the operation of the Family Court.
These possible changes follow amendments to the Family Law Act which came into operation in June, 1996.
They also occur at a time when a number of criticisms have been levelled at the Family Law Act regarding its no-fault provisions and at the operation of the Family Court regarding the rights of non-custodial parents, generally fathers.
Given that approximately one in four marriages is currently likely to end in divorce, disputation regarding the Family Law Act and the functioning of the Family Court is all but inevitable.

Background
The most recent set of proposed changes to the Family Law Act would result in:

There has been criticism of the Family Law Act and the operation of the Family Court over a significant period.
A joint select committee on the Family Law Act reported in November, 1992. The joint select committee criticised the Family Court's failure to act against parents who denial access to non-custodial parents.
There have also been a number of amendments made to the family Law Act since it became law in 1975.
Late in 1995, the Federal Parliament amended the Family Law Act in an attempt to promote children's contact with the non-custodial or non-resident parent.
Under the new amendments which became law in June, 1996, children have a right of contact on a regular basis with both parents who share duties and responsibilities concerning the care, welfare and development of their offspring.
The amendments removed the concept of a parent being granted `custody'. (It was thought that the term `custody' suggested that the child(ren) became the possession of the custodial parent, to the effective exclusion of the non-custodial parent.)
Someone who would formally have been the custodial parent is now granted a `residence order' and the non-custodial parent a `contact order'.
The intention is to increase the influence of the parent with whom the child(ren) is(are) not living.
As of September 1, 1996, another series of changes have come into force. The aim of these changes is to have couples pay for some services which were previously free. The intention is that rather than pay such costs, couples will resolve disputes outside the courtroom.
As of September 1, individuals divorcing must now pay


All these services were previously free.
Also, since September 1, 1996, the cost of filing for a divorce has risen from $368 to $460. One report put the total of new costs at $1640.
Further to this there is now a cap on the amount of legal-aid funding for family law clients and divorcing couples can no longer use legal aid to have their children separately represented if they are able to meet the cost of such representation themselves.

Arguments in favour of reforming the Family Law Act and the operation of the Family Court
There appear to be two main thrusts behind attempts to reform the Family Law Act and the operation of the Family Court.
The first of these thrusts appears to be an attempt to increase the efficiency of the Family Court. Efficiency seems to be being gauged in two ways. Firstly attempts are being made to reduce the cost of operating the Family Court and secondly, attempts are made to increase the speed with which the Family Court can process applications.
One of the proposed changes to the Family Law Act would have couples seeking mediation and arbitration outside the Family Court. The Family Court would be approached only as a last resort.
It appears to be anticipated that this would have a dual effect.
It might result in people making greater efforts to arrive at a mutually acceptable compromise before approaching the court. (An incentive to do so is that the costs associated with approaching the court have been substantially increased and services that were free now carry a charge. As already noted, one estimate suggests that, since September 1, 1996, the cost of divorce has risen from $368 to a possible total of $1640.) This would seem likely to result in the Family Court being less busy and those cases which do come before it being able to be dealt with more speedily.
The second consequence would be that the operation of the Family Court would become less costly for the Federal Government. If fewer people approach the court for fewer services and those services are being partially paid for by divorcing couples, then there will clearly be savings in the cost of operating the court.
Further to this, the Victorian Legal Aid Commission has now taken moves to ensure that parents will no longer be able to have their children represented in the Family Court and have the cost of this representation met by Legal Aid.
This move has been supported by the federal Attorney-General, Mr Daryl Williams. (The cut in Legal Aid provision was partly prompted by federal cuts to legal aid funding.)
Mr Daryl Williams has stated, `We've got to make sure there is provision to ensure that parents who can afford to pay for separate representation for their children do pay and legal aid is not the one left to foot the bill.'
In addition to attempts to increase the efficiency of the family Court, reforms have been suggested to increase the fairness or the equity with which the court deals with divorce.
The proposal to have the court's proceedings able to be published, has been said to be one way of increasing the fairness of outcomes.
Mr Williams has claimed, `It is possible that the existing restrictions in fact prevent the exposure of unreasonableness on the part of one partner where the threat of public embarrassment of that partner could bring about a fairer result or a perception of a fairer result.'
A far more radical proposal for reform has been made by Barry Maley of the Centre for Independent Studies.
Mr Maley has suggested that the `no fault' system of divorce which currently operates in Australia be modified so that in certain circumstances `fault' can be considered.
According to this line of argument, if there is no opportunity to penalise those who behave irresponsibly in a marriage then there is less incentive for couples to act appropriately toward each other.
Mr Maley argues, `A central function of law in general is to encourage responsible, considerate behaviour by penalising those who do not live up to the promises they make or the reasonable expectations they create. This should be no less true of marriage than of any other contractual or quasi-contractual relationship.'
Mr Maley goes on to argue that under the current provisions of the Family Law Act, marriage partners who are, for example, abusive or who have a serious drug problem, approach the court as no more culpable than the non-offending partner.
Mr Maley argues that in circumstances such as these the offending partner should be able to be penalised via a less favourable property settlement and further that the behaviour of the marriage partners should be a factor when the question of the future residence of any children from the marriage is being decided.
Mr Maley further argues that such an arrangement would be more just for the non-offending partner and, in addition, that the re-introduction of the concept of `fault' into divorce proceedings might encourage marriage partners to behave more responsibly in their relationship.
Finally, Mr Maley claims that `fault' would not have to be a factor in most divorces and that couples who separated by mutual consent (with neither party believing the other had acted inappropriately or bore primary responsibility for the breakdown of the marriage) could have a `consensual' divorce as currently occurs.
(To date, no government, neither the present coalition government, nor the former labor government, appear to have considered Mr Maley's proposal.)
Another major criticism made of the current operation of the Family Court is that it does not deal appropriately with the custody of and access to children after a divorce.
Under the original provisions of the Family Law Act, custody of the children of the marriage went to the primary care-giver, almost always the mother, with the father being allowed access, most commonly one weekend a fortnight.
Many have criticised this arrangement as largely excluding fathers. Further criticisms have been directed at the manner in which the court has generally allowed the custodial parent, usually the mother, to deny the non-custodial parent their access rights.
The amendments made to the Family Law Act at the end of last year are an attempt to give each parent more equal access to their children. However, critics have claimed that unless the total culture of the court changes and unless judges are prepared to penalise resident parents who deny the non-resident parent access then no formal change to the Act is likely to make a significant difference to fathers' rights.
Age commentator, Bettina Arndt, has cited a Melbourne criminologist, Maartje Irvine, who has claimed, `Women refuse to allow their children to see their fathers even when a court order exists. Until the day that one of them is jailed or fined or made to work at community orders, this will continue ... People want offenders punished, not slapped on the wrist with a wet tram ticket.'
Finally, and from the opposite perspective, it has been argued that the `home-maker' in the marriage partnership, frequently the mother, is disadvantaged in most divorce settlements because the primary earning capacity of the marriage has resided usually with the male and he takes this with him when he leaves, despite the requirement that he pay maintenance for any children.
One of the most recent reform proposals is an attempt to redress this, with the non-financial contributions of `home-maker' spouse and superannuation provision for such spouses being taken into account in property settlements.
This, it is argued, should make financial settlements more equitable.

Arguments against reforming the Family Law Act and the operation of the Family Court
The primary argument offered in defence of the Family Law Act and the current operation of the Family Court is not so much that either is perfect as that a number of the proposals for reform would significantly damage the Act and the court.
The first criticism is made of attempts to make the Family Court a court of last resort by encouraging couples to have recourse to outside mediation and arbitration so that they would only approach the court should these measures fail.
Chief Justice Alister Nicholson of the Family Court, has said that this could `tear the heart out of the Family Court', so that it came to be seen as `only a place where you came to litigate.'
According to this line of argument, one of the strengths of the Family Court is the range of approaches and services which it can place at the disposal of the divorcing couple, as well as the breadth of its view of marital problems and the expertise of the staff and magistrates who operate within it.
It has been argued that if its services were truncated and mediation and counselling sections `hived off to private enterprise' then the total quality of what the court has to offer would be reduced and what would replace it in other, more fragmented, agencies would not be as good.
It has also been argued that the attempt to have people pay more for being divorced is inequitable as it may create a situation where some people felt obliged to remain in unhappy marriages because they were unable to met the cost of divorcing.
One of the cornerstones of the original Family Law Act was that divorce should be freely available to those in need of it.
The shadow attorney-general, Senator Nick Bolkus, has summed up opposition to both reforms claiming that both he and his party remained opposed to `cuts to mediation and counselling services and the introduction of new fees for access to the court.'
Relatedly it has been argued that it would not be appropriate to have the proceedings of the Family Court made public.
Supporters of the Family Law Act as it stands claim that one of the additional strengths of current procedures is that they recognise the privacy and the personal nature of the matters brought before the Family Court and acknowledge that there is no public interest to be served by making the details of a couple's divorce widely known.
It has further been argued that it may be inappropriate to require parents who want separate representation for their children in a divorce to have to pay for this representation, rather than have cost met through Legal Aid.
According to this line of argument, the children are more likely to be manipulated and their independence and wishes not respected if they have to rely exclusively on one or other of their parents to supply them with legal representation.
On the question of the re-introduction of the concept of fault into divorce it has been argued that this would only serve to make divorce proceedings more protracted and traumatic.
Dr Muriel Porter, a Melbourne academic and historian, has argued, `Mr Maley's suggestions surely send ripples of horror through everyone who endured an old-style divorce proceedings. The arguments over who was to blame, the ugly intrusion into the most intimate details of people's lives, all on record in a court of law, was demeaning, to say the least. Sure, it probably did prevent some people from seeking a divorce, but did it make their marriages any more bearable, or the lives of their children any happier?'
Dr Porter has also noted that the re-introduction of `fault' into divorce cases would be likely to increase the cost of divorce.
`The lawyers would certainly rejoice if we turned back the clock. Think of the fees they could make from the acrimonious wrangling over who did what and to whom, and why!' Dr Porter has claimed.
Dr Porter has also claimed that making marriage harder to leave is no necessary cure for social ills. She suggests that effectively to require many people to live in unhappy and possibly abusive marriages creates social ills of another sort to those commonly attributed to divorce.
`The misery endured in silence behind the curtain of respectability and moral rectitude over decades and centuries does not bear thinking about,' Dr Porter argues.
On the question of the Family Law Act and the Family Court treating fathers unjustly, a number of counter claims have been made.
Firstly, it has been argued, in the majority of divorce settlements fathers agree to the mother having the children live with her for the majority of the week.
Secondly, it has been argued that with regard to contact visits the court has limited options. When mothers deny fathers their contact visits with children many judges argue their are few penalties they can appropriately apply.
If they jail the mother or require her to complete a community order they may be endangering the children. Whatever punishment is given the mother must not be one that could have adverse consequences for the children.
Bettina Arndt has summarised the usual arguments offered against jailing mothers who deny fathers contact with their children. `The arguments given against imprisonment of mothers usually focus on the welfare of the children while the mother is away and the risk that the father might be blamed by the children for putting their mother in jail.'
It is also argued that the court has to err on the side of caution when mothers make charges of physical or sexual abuse against their former spouses. It is claimed that the possible danger to the children is too great to allow contact visits to continue if the mother's allegations have not been disproved.

Further implications
This issue will continue to be debated regardless of any further amendments that are made to the Family Law Act or changes that are affected in the operation of the Family Court.
Family life, its continuance and the circumstances under which it is ended or modified are such fundamental issues that there is unlikely to ever be full agreement on how best to support them.
In the current economic rationalist climate the added imperative to reduce the costs of administering the Family Law Act and of operating the Family Court further complicate the issue.
It is interesting that the current media and political debate has devoted little attention to pro-active measures. That is, the question of how to prevent marriage breakdowns as opposed to how to manage divorce has not been fully canvassed.
The government is devoting $6.1 million over the next three years to relationship counselling. It hopes some 81,000 people will take part in relationship and pre-marriage courses over this time and that the result will be a reduction in the nation's divorce rate.
Currently some one in four marriages ends in divorce, a rate which represents a four hundred per cent increase on that of forty years ago.
Divorce remains a highly sensitive political issue. Its sensitivity may help to explain the government's apparent vacillation on aspects of the issue. For example, after it was reported that the federal government proposed to limit the mediation and counselling role of the Family Court, the report was denied by the Attorney-General only to be later effectively confirmed when the government announced its support for a series of measures, including the removal of counselling and mediation services from the Family Court.

Sources
The Age
8/9/96 page 1 news item by Paul Daley, `Radical family law plan'
11/9/96 page B1 and B3, analysis by Sally Heath, `The high cost of unhitching'
15/9/96 page 3 news item by Kate Nancarrow, `Breaking up can be made much harder to do'
23/9/96 page 4 news item by Alex Messina, `Call to put fault back into divorce'
12/10/96 page 1 news item by Bettina Arndt, `Fathers mistreated: judge'
12/10/96 pages 17 and 20 part 1 of `Failing our children' series, analysis by Bettina Arndt, `Falling down'
12/10/96 page 20 part 1 of `Failing our children' series, news item by Bettina Arndt, `a father defeated, but still living in hope'
14/10/96 page 13 part 2 of `Failing our children' series, analysis by Bettina Arndt, `Access denied'
14/10/96 page 13 part 2 of `Failing our children' series, news item by Bettina Arndt, `Sole defender of justice in the north'
15/10/96 page 2 news item by Karen Middleton, `His-and-hers lists urged for marriage'
15/10/96 page 13 part 3 of `Failing our children' series, analysis by Bettina Arndt, `Making it work'
15/10/96 page 13 part 3 of `Failing our children' series, news item by Bettina Arndt, `Divorce without distress'
15/10/96 page 13 part 3 of `Failing our children' series, news item by Bettina Arndt, `Beyond the call of duty'
16/10/96 page 5 news item by Karen Middleton, `Fairer split sought in divorce changes'
16/10/96 page 5 news item by Karen Middleton, `Parents told to pay for aid'

The Australian
21/9/96 page 24 comment by Barry Maley, `Why marriage matters'
21/9/96 page 24 comment by Barry Maley, `Fault must be found for just family law'
3/10/96 page 5 news item by Fiona Kennedy and Leisa Scott, `Radical reform for family Court denied'

The Herald Sun
1/10/96 page 19 comment by Dr Muriel Porter, `Divorce already misery enough'
3/10/96 page 5 news item by Karl Malakunas, `Cuts to Family Court mediation'
7/10/96 page 19 comment by Barry Maley, `Blame where it's due'