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  • Family law review must beware of backward steps
  • By Editorial
  • The Age
  • 15/07/2009 Make a Comment
  • Contributed by: Rambo ( 7 articles in 2009 )
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Fair and compassionate law is not achieved by ideological prescription.

MIXING politics, religion and family break-ups makes for a potent brew. The history of heated debates on amendments to the Family Law Act on intensely personal matters such as divorce and the custody of children is evidence of the futility of expecting legislation to provide perfect answers for every case. The Age has long warned against overly prescriptive family law, arguing that each case must be decided on its unique circumstances, with the best interests of children as a prime consideration.

The Howard government's changes to the act in 2006 created an obligation for the Family Court to consider shared care of children by divorced couples. It also required a later, broader review of the act. This review, now under way, has fired up public debates, some old and some new, some valid and some spurious, about the rights and wrongs of family law. The Age endorsed the spirit of the 2006 reforms, which upheld children's right to a continuing relationship with both parents but did not adopt then prime minister John Howard's original suggestion that joint custody be made automatic. The amendment was much less prescriptive, requiring only that the court consider shared care in the children's best interests. Most rulings have required a resident parent to make sure children had a meaningful relationship with the non-resident parent, except in cases that involved a clear risk of harm.

Shared custody works best when divorced parents can co-operate amicably. That is why courts have taken a cautious approach to shared custody between high-conflict ex-couples. The 2006 reforms sought to move away from traditional adversarial hearings to a conference-style process, with participants reporting much less post-divorce acrimony as a result. The proportion of parents with equal or near-equal custody arrangements since 2006 is almost double the previous rate.

That has not satisfied parents who expected more, such as the many fathers who fail to get a 50-50 custody ruling. Some mothers, for their part, complain that children have been put in the care of abusive men. Both men and women have faced difficulties in relocating some distance away from their former partner when court rulings require their children maintain meaningful contact with both parents. There is some confusion about what the law means, and any review should seek to clarify inconsistencies, omissions and ambiguities in the act.

Still, the fact remains that the 2006 reforms were an improvement for the majority, and most divorce agreements are reached without a legal fight. It is the exceptions, the most intractable cases, who go into bitter court battles and attract most attention. These exceptions do not disprove the general rule, nor void the principle that judges must consider each child's best interests. Such decisions call for wisdom and compassion, beyond any guidance the law can give. There can never be a one-size-fits-all template.

The Age would hope the Institute of Family Studies, which is undertaking the Family Law Act review for the Attorney-General, takes account of the general improvements even as it considers certain difficulties since 2006. One recent proposal on divorce merits less consideration in its report, which is due in December. Shadow minister for families Tony Abbott, a Catholic conservative, has suggested couples be given the option of marrying on terms that prevailed before the 1975 introduction of no-fault divorce. Until then, a marriage could be dissolved only if a couple were separated for more than five years or if a partner could be proved guilty of adultery, desertion, cruelty, habitual drunkenness or insanity, or was imprisoned.

Mr Abbott's premise seems to be that divorce is too easy. Yet, for the best part of a decade, Australian Bureau of Statistics records have refuted claims of rising divorce rates, which peaked in 2001. The rate has fallen every year since, even as marriage rates have risen slightly. The annual 6.6 per cent decline to 47,963 divorces in 2007 was the biggest in two decades.

Mr Abbott is seriously misguided if his intention is to make his brand of conservatism relevant to more Australians. Aside from the legal and institutional costs and complications of his proposal, most Australians would not want a return to the intrusive and inherently acrimonious days when private investigators were hired to secure the evidence, such as "pants around the ankles" photographs, required to obtain a divorce. How does that promote the wellbeing of divorcing couples, let alone the interests of any children? That, above all, must remain the guiding principle of family law.


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