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  • Children caught in crossfire
  • By David English
  • The Sunday Mail
    Page 1 of 2
  • 21/12/2003 Make a Comment
  • Contributed by: admin ( 74 articles in 2003 )
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CHRISTMAS is looming and millions of divorced Aussie dads are dreading it. It's not creeping credit card debt or even monster hangovers that loom large in their minds. It is the stark realisation that time with their children will be brief - and in many cases non-existent.

Every year more than 50,000 Australian couples split up. It is a trend that has increased for nearly 30 years.

In the vast majority of cases, children are among the flotsam when the tears and recriminations have finally subsided. In most divorce cases, custody of the children goes to the mother. That, too, has been the trend for nearly 30 years.

But that may be about to change - and change dramatically.


THOSE WITH LITTLE FAITH
CHARLIE M. is a father who has little faith in the Family Court custody system – not only because of what happened to him but because he has met women who feel harshly treated, too.

Charlie, 44, who has worked at various sales jobs here and overseas, says that in his experience the Family Court makes custody decisions that don't always make sense.

Under an interim custody order, Charlie sees his three-year-old daughter just one day a week. Before the interim order was made, a registrar of the court gave him 50-50 care of the child.

And before he and his wife separated, Charlie was the stay-at-home parent – looking after the child from the age of five months. Charlie is still living in the three-bedroom family home – a home he bought outright a year before marriage. His ex-wife is living in a one-bedroom flat with the child.

Charlie says his lack of contact with his daughter causes him great distress. "What depresses me is I'm missing out on my child's life right now. There's no way of getting back lost time even if in the long run I get better access."

His daughter goes to Charlie from 5pm Saturday to 5pm Sunday. Charlie says he believed injustices in the Family Court only befell men, until he met a woman who was also being denied reasonable access because she had chosen to be the family breadwinner.

"This woman made the choice of working to keep the family together," Charlie says. "But when the marriage broke up she was punished for not being a stay-at-home mum. Her story made me understand that the system can be just as unfair on women as men."

Charlie's marriage came to an abrupt end shortly after his Asian-born wife obtained Australian citizenship. According to his version, his wife, who had opted to work four days a week (primarily to send money back to her relatives), had been having an affair and when he confronted her she called the police, alleging domestic violence.

The police came to the home and after investigating told his wife she should leave the house. Charlie filed a domestic violence order against his wife – alleging incidents where he was attacked with scissors, a shard of glass, and bashed with a glass.

Within days his wife had filed a counter DVO and sought and gained through the magistrates court a "recovery order" for the child.

Charlie reckons that if he was poor and did not own his own house, there would be no custody fight for the child. He believes custody of the child is the linchpin in his ex-wife's case to get a large part of the property he owned long before he married her.

He says he cannot understand how the Family Court in its interim orders has denied him at least equal access to a child he raised on a daily basis for most of her life.

Charlie has an appointment with the Family Court this month for a mediation conference. That will be followed in the new year with a pre-hearing conference. A final decision on custody is not expected until late 2004 or early 2005.

In the time it will have taken the Family Court to decide the fate of Charlie's daughter, she will have gone from toddler
to schoolgirl.

A federal parliamentary committee is about to hand down its report into custody laws in Australia - and what has been leaked so far promises substantial change.

There is talk that the report, due to be tabled in parliament by the end of this month, calls for the existing Family Court to be virtually sidelined - confined to property settlement matters.

In its place to deal with custody would be a tribunal charged solely with trying to meet the needs of children caught in the wreckage of marriages that have crashed and burned.

The animosity between the Family Court and the 10-member committee over possible change is palpable - as anyone knows who has followed the exchanges of fire in the media between Family Court Chief Justice Alastair Nicholson and committee members in recent weeks.

While some of the arguments are highly legalistic and seem to many to be esoteric, it comes down to three simple questions:

- HAS the Family Court done a good job?

- IF THE answer is no, should the court be replaced?

- IF IT should be replaced, with what?

In every sense the answers to these questions are important.

It is one of those issues that has great potential to divide communities - and families, for that matter.

There are obvious vested interests.

Lawyers, especially those who specialise in family law, are one vested interest. If radical reform of the process becomes reality, a multibillion-dollar "industry" will nosedive overnight.

Angry fathers (many effectively but unfairly denied access to their children by the existing system) are another group with a vested interest.

Their main complaint is that the Family Court does business by delay - endlessly making interim orders for custody pending final orders that, in effect, never come.

Only 6 per cent of all custody cases are finally determined in the Family Court itself.

The remaining 94 per cent are resolved by either one party (almost always the dad) capitulating, or as a consent agreement arrived at after years of blood and tears.

This constant delay in finally resolving custody arrangements takes a real toll.

Figures show that 40 per cent of fathers lose all contact with their children within two years of divorce. They just give up and go away.

Geoffrey Greene, the federal director of the Shared Parenting Association, doesn't mince words: "There is no place in Australian society for an institution that operates in the way the Family Court operates. What an indictment it is of the court that the vast majority of Australians want to take it apart."

Mr Greene - who has spent $80,000 in his own court actions - says Lionel Murphy, the former federal attorney-general who reformed Australia's divorce laws in the mid-1970s, would be "revolving in his grave" over the way the Family Court does business.

Politicians, too, have a vested interest inthe way custody matters are determined in Australia.

The average backbencher of whatever political persuasion will tell you they are driven crazy by constituents complaining about the Family Court.

That may explain the impetus for the operations of the family and community affairs committee, chaired by the National Party MP for Riverina (New South Wales), Kay Hull.

In less than six months the committee has gone from standing start to final report, taking 1800 written submissions and interviewing about 200 other witnesses.

The committee has six Government members and four Opposition members. On a male-female basis it is split 60-40.

From a political standpoint, the family and community affairs committee has some powerful allies. Prime Minister John Howard, for starters.

Mr Howard made it quite plain he felt kids, boys especially, needed access to their fathers.

There are about six million Aussie men - most of them voters - who would agree.

At the moment, the usual prescription from the Family Court is a custody split of about 80-20 in favour of the mother.

Dads on average nominally get access every second weekend and half the school holidays.


Continues on Page 2


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