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  • Children caught in crossfire (cont)
  • By David English
  • The Sunday Mail
    Page 2 of 2
  • 21/12/2003 Make a Comment
  • Contributed by: admin ( 74 articles in 2003 )
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What has been put to the family and community affairs committee loudly and very clearly is that in law custody (access) should be 50-50.

Furthermore, it should be specifically negotiated between the parties with the interests of the children - rather than mums or dads - as the primary, if not dominant, aim.

What has also been put to the committee loudly and clearly is that lawyers and judges should have nothing whatever to do with the process. Most certainly the Family Court should be stripped of all its powers over custody considerations.

It has also been given ample evidence that justice in Australia comes at a very high price - usually $100,000 to $150,000 for a case to go through court - and even then a final decision may not be made.

Liberal committee member Peter Dutton - whose electorate is Dickson in Brisbane's north - is at pains not to pre-empt the committee's report.

But he will go so far as to say: "The overwhelming message is a need for change. We have had it put to us that the system does not work."

Mr Dutton says data collated for the committee shows that between 70 and 80 per cent of men who have been to the Family Court believe they have not obtained reasonable outcomes.

For the detail of what the committee proposes, we will have to wait.

But some of the clear options include:

- A TRIBUNAL - made up of a mediator, a child psychologist and a family law expert - to replace the Family Court.

- ENSHRINING the principle of 50-50 custody rights.

- DEVISING methods by which the desires and needs of children for access are heard and acted on. Some have argued children should be separately represented at custody hearings or mediation.

Mr Dutton is prepared to say publicly at this stage that he would like to see lawyers kept out of the configuration for whatever replaces the Family Court.

He may not get his wish.

The Australian Constitution and Justice Nicholson have something to say about that.

Justice Nicholson has already hinted that a quasi-judicial body without a lawyer at the helm is unlikely to avoid challenge in the High Court.

Shared Parenting's Mr Greene accuses the judge of some judicious bluffing and says a string of bodies - the Australian Taxation Office, Superannuation Complaints Tribunal and Child Support Agency, for example - give low priority to the formalities of law.

In fact, Mr Greene says the High Court rulings in 1976 put the Family Court on a much more formal footing than had been envisaged when it was created.

He believes any rearguard action to save the Family Court is doomed.

Opinion polls show between 70 and 90 per cent of Australians believe there should be effective 50-50 custody.

Critics of change ask how a tribunal, basically an entity without teeth, will get two people who hate each other to sit down dispassionately and reach a custody arrangement that suits their kids. And how will it compel any dissenting parties to stick to the agreement?

These questions may take a complex change in Australian social behaviour rather than a change in the law.

As passionate and persuasive as Mr Greene's arguments may be to the ears of divorced dads, his words are a nonsense to the likes of Yvonne Parry, from the National Council of Single Mothers and Their Children.

Ms Parry and her organisation questions the basic presumption that 50-50 custody can work.

She says the existing custody arrangement - where in 75 per cent of cases the mother is awarded custody - is merely a template, not a mandate.

Ms Parry thinks Mr Howard handed the parliamentary committee a fait accompli.

"Howard said there will be change and then he set up an inquiry," Ms Parry says.

"There's a vocal minority who've been pressing the backbenchers for change."

And she sees some of that minority as pretty nasty.

"We've had death threats here since the inquiry was announced. People have sent e-mails saying they hope we die and they hope our kids die and stuff like that. It's not nice."

Ms Parry says her organisation argued in a submission to the parliamentary committee that a change would lead to more, not less, court intervention.

"It is our view that going down the negotiation path only puts split couples further at loggerheads."

She says that despite criticism of the way the Family Court operates, it is a reality that most child care is done by women.

Ms Parry concedes that the Family Court custody hearings are "a long, drawn-out process".

She argues that it is wrong to assume the court's paramount function is resolving access.

"We'd like to see safety of children as the top priority," she says, adding that the court should not only be retained but given powers to investigate claims of violence or abuse.

"We think the court does a wonderful job in very trying circumstances."

Sue Price could not disagree more. A director and co-founder of Men's Rights, Ms Price says she has seen too many victims of the Family Court to agree that it does a good job.

"The majority of men who've been through the process are dissatisfied and most are in a desperation state," Ms Price says.

"I know from the myriad of women - mostly second wives - we've dealt with that most mums agree that the court has gone overboard against fathers."

Ms Price says that for too long politicians and the Family Court have been listening to the "extreme views" of extremist feminists.

Ms Price believes the touted reforms will succeed and will get approval from parliament.

But she concedes she cannot foresee exactly how the Family Court is to be moved aside and a replacement put in place.

Brisbane lawyer Michael Lynch, who runs a practice with five other lawyers specialising in family law, says lawyers have been taken "somewhat by surprise" by the inquiry and the intensity of feeling the impending report is generating.

Mr Lynch says that those who work at the coalface have deep reservations about enshrining 50-50 custody.

"I'd say 99 per cent of judges and family law lawyers and even social workers are quite terrified by that presumption," he says.

According to Mr Lynch, a recent Canadian study shows the best outcomes from a child's standpoint are achieved when custody is dealt with case by case and not on a presumption that 50-50 works.

Mr Lynch, who has been in family law practice for more than a decade, says it is unfair to label the Family Court as out of touch. "I'm exposed to the court and the court is constantly trying to refine its processes."

Mr Lynch urges caution if wholesale change is sought. "The court has been around and operating for 28 years - let's have some thought before getting rid of it."

Mr Lynch concedes there are delays in the process and there are questions about the cost. "The stories we hear are the horror stories, not the average daily workings."

He says there is a risk of "it blowing up in our faces" if change is made without careful consideration.

There is no doubt that a changed custody system will bring new difficulties for those who will administer it.

There's a strong suggestion that any new custody-determining entity will have some powers to review or re-make decisions by the Family Court.

There is also a suggestion that children may be better able to have their voice heard and may be able to have decisions that separate them from a parent reversed.

Detractors ask: what emotional price might that exact?

Ms Price says change is inevitable because so many people have been disaffected by the current system.

"When you count the men and women, the grandparents and the kids, this issue of custody directly touches nine million of us. Whatever comes next has got to be better than what we've got."


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