Linda Seaborn
For several years now, there has been a general theme espoused by a marginalised group of angry fathers that "women" are to blame for their lack of access to children they are separated from, their financial woes, "false" accusations of domestic violence, etc.
In response to these men's lobbying, the federal government conducted an inquiry into child custody arrangements after family separation and is now proposing major amendments to the family law system. These include forcing parents to use mediation rather than the Family Law Court to sort out residency issues.
Taking battles about where the children reside and who has contact with them and when out of the court sounds like a good idea at face value. However, most separating parents, despite the inherent difficulties of a separation, manage to make an agreement without going to court.
The majority of the cases in court are there because there are issues of violence, abuse and intimidation. A 2001 study led by Monash University's Professor Thera Brown, found that in 50% of family law cases there had been multiple and serious forms of family violence at the mid-point of the proceedings.
Better access to relationship counselling would be a welcome step forward since, at the moment, people who want relationship counselling often can't afford it.
But the centrepiece of the draft legislation is a proposal to set up 65 relationship centres where parents on the verge of break-up will be forced to go for mediation.
Taking people who are experiencing the crime of assault in the form of family violence out of the legal system and into "mediation" is a betrayal of supposed legal protection. Forced mediation has a history of disadvantaging women.
Interestingly, federal Attorney-General Philip Ruddock detailed the government's family law agenda for the first time at the Lone Fathers Association national conference at Parliament House on June 22-23. Promising better access for fathers to their children, Ruddock said separation should be a relationship issue, not a legal one. Separation is "not always in the national interest", he told the conference.
Remember the slogan "the personal is political"? Well, just reverse it. Now it seems that political issues such as violence against women and children are "relationship issues, not legal ones".
Ruddock does concede, however, that "there were some couples who, for reasons of violence or abuse, could not stay together". What he fails to do is to provide adequate mechanisms that will protect the victims of that violence and abuse. Instead, he wants to force them to attend "relationship centres" and undergo mediation with their abusers.
The theory is that the abuse will be detected through a "screening" process. But even with the most sensitive screening tool and a highly skilled and experienced worker, not all cases of domestic violence will be identified. A 1996 study of mediation services by the Keys Young social and consumer research company found that almost two-thirds of cases referred to mediation involved family violence.
The requirement to make dispute resolution compulsory provides exceptions for cases where there is or has been family violence or abuse. However, there is no explanation as to how the court will determine what are "reasonable grounds" to believe that abuse or violence has occurred or may occur.
A further problem is that the court's current processes routinely expose adults and children to continuing risk of violence and abuse. The Family Law Council highlighted this in its 2002 report on child protection and its 2004 letter of advice on family violence.
There is an annual corpse count of mothers and children killed by men who used the opportunity of child contact to kill their child/children and sometimes other family members.
Unfortunately, the proposed reforms do not include protocols for supporting victims of family violence within dispute resolution and legal processes.
A sworn statement by a person that violence or abuse has occurred should be sufficient to establish "reasonable grounds" to believe that violence or abuse has occurred or may occur.
The legislation should provide for a statutory compensation system to parents of children or children of parents who are killed or suffer serious physical or psychological harm as a result of court orders to reside with or have contact with the perpetrators.
As a matter of urgency, the family law system's capacity to identify and provide protection from family violence should be addressed. The recommendations of the Family Law Council in its 2002 family law and child protection report and its 2004 letter of advice on family violence should be implemented.
What is also worrying is Ruddock's statement that "mothers would not be jailed for failing to comply with contact orders requiring visits with dads ... but that doesn't mean to say that in appropriate cases ... a range of other remedies wouldn't be available".
The mother-criminal/father-victim dichotomy assumed here by Ruddock is revealing. It says nothing about penalties for non-residential parents (90% of whom happen to be men) who fail to turn up for access visits. Apparently, it's OK to inconvenience and let down residential parents (90% of whom happen to be women) and children (who can be devastated by the no-show of a supposedly loving parent). But, if a non-residential parent (male) is put out by not being able to get access, out come the "range of other remedies".
These proposed amendments are nothing more than a regression to patriarchal control of the family (i.e., mothers and children) that should exist only in history books.
From 91×ÔÅÄÂÛ̳ Weekly, July 13, 2005.
Visit the