Child custody :the ideological
terrain
1.
Hakuna
Matata ? Australian legislation on “shared parenting” (what we normal
folks call “custody of the kids ”) was intended to be simple and straight
forward, an equal split in most cases, and to minimise disruption in children’s
lives. Instead it’s an absolute
ideological mess- much worse than the discretionary property regime but
afflicted by the same lack of rules, the same sorts of bitter fights. Some women think they should get complete custody
of the kids as their hubbie is a useless male who should only get some form of
visitation rights that she can alter at will. After all she was the prime
interface with the kids and surely that’s what “parenting” means? Well the Law parliament passed says that
“there is a presumption” that “parenting” must be “shared”, but that’s
interpreted by ideologues, so a bit like Humpty Dumpty and his looking glass,
the words do not mean that at all.
2.
The basic problem is that while
we
have embraced no fault divorce as a reason to separate, many of the same fault
issues get rehashed in custody disputes. Courts effectively ensure that parenting disputes
becomes a relative qualitative analysis of each parent “skills”- which is
often an incentive to argue about how
bad your spouse has been in the past. Well, during the breakdown. Most often
these arguments do not really focus on the future, though some lip service is
paid to that issue. The bickering and bartering, for that’s what it is, misses
the perspective that a prime reason for many a marital split can often be a
marginalisation of different parental values. While arguments about parenting
skills can be a cathartic exercise for angry adults, it’s a huge waste of
effort, and the kids absorb all the anger - and all the uncertainty. The 1975
Act hasn’t reduced anger; it’s simply shifted the focus of the parental anger over
missed expectations inside marriage straight onto the children, who get
“prepped” against one of the parents and used as a weapon. And on the edge of
this vast intellectual waste land lurks ......the family lawyer.
3.
A dingo stole me baby: a dummy’s synopsis of the “custody” dispute
–time with your kids is an absolute
mess. The debate and the lore looks something like this:
·
Buy the
rights- how bizarre: MPs of all parties and genders get bombarded by
sob stories from Fathers Rights groups. Incessantly. And many MPs are anyway inclined to view The
Family Court as akin to the type of Inner City Greens who boycott Israeli
coffee shops. Frankly it just didn’t help that the former Chief Justice, Alistair
Nicholson, a well meaning guy, was
widely perceived by pollies as a player and not a referee. So under John Howard
the MPs, after lots of community consultation and one hell of an argument,
passed a law that legislated for equal parenting, sold politically in the
community as a fair deal to reduce bickering.
A “rebuttable presumption” was promised - that unless the other spouse
can show good cause why not, “parenting should be equally shared”. The
political deal was explicit and clear language was deployed about
responsibilities, and also about parenting.
The pollies hoped this would very much muffle the bleating from the Men’s
Rights groups; give effect to original idea of no fault divorce; reduce many of
the agency incentivisation problems of
the darlings in the legal industry, and hence cut the queuing problems in the
Family Court, saving tax payers dollars and letting families get on with their
lives. Ha hah ha. “As if” the Family
Court respects democracy- N.F.L, matey.
·
Left
turn: back to the supermarket During the Gillard parliament a law was passed to ensure the Howard era Law allowed
for other matters to be addressed, which , like all Aunty Julias “thought
bubbles of the day,” sounded like a really good idea- that is, until it was
implemented. You see the Gillard reforms
introduced more slogans to “consider” and
rather than settling the trajectory of the debate it just meant more confusion.
The Family Court luvvies thus jumped up and down, ignored the Howard law by
defining parenting as “supervision only” , and divined (aka “interpreted”) a “over
arching best interests of the child “test. They then said , cough, cough, that
“equal parenting” actually meant sort of, maybe, ish , equal “decision making”
, sort of, sort of, but most certainly not
equal “time”. Sort of a “quality time”
paradigm, outmoded as that is. Anyway a return to the luvvies usual practices,
quite coincidentally, of course. That “interpretation” that words didn’t have their
ordinary meaning, but rather deferred to their special industrial meaning, wow oddly,
allowed their mates the lawyers to keep their mindless existing micromanagement
systems intact, and hence their fee streams remained just the same: giddy up. This
amorphous phrase - “the best interests of the child”- is something that you will come across in this
area a fair bit. The test is vacuous, used ex post facto to justify outcomes de
jour, and begs the question about what those interest are long term. A bit like that chant you learnt at cubs - “Akela,
we will do our best”, or
“Total Quality Management”, or “There’s no I in Team” or “let’s all do the
right thing”, it’s management speak for family lawyers- sort of an exhortation
to “be reasonable and put kids first”, but no one does that all, its just a
slogan. Okay but what does it all mean ? Well it just means
micro management, no rules and lots of frustration all with 2 - 3 year delays. And yet, oddly, the
outcomes of dragging out disputes, delay over trivia, lots of position papers, and
limited focus are themselves all “in the
best interest of the child” because, well this test always coincides with “the best
interest of the lawyers”; stunning, huh – give someone a discretion and the
results coincide with their economic self-interest, who would have thought,
that Steve Levitt? (The cynicism in the community is that actually it is in the
best interest of “the children” – that is , of the children of the family
lawyers, who get taken overseas on holidays paid for out of your family wealth.
All a ruse really, and certainly not in the interests of your kids all). But Family
law is really a toll bridge controlled by the lawyers, so pay up while the
Billy Goats get Gruff and make all sorts of excuses . They muse about children’s
interest, but its all sophistry, because life is a lottery, and lawyers have no
follow up or long term studies so assert they know best. All unscientific bunkum.
Frankly we would all be better off playing rock, paper, scissors with kids
lives rather than what we have under the current regime.
“The “welfare and best interests of
the child” is a nebulous concept at best, vague and depends on values and
norms about which reasonable people
differ. The concept creates a false standard but the parties are nevertheless
invited to engage in a contest to prove their own superiority and their opponent’s
inferiority as measured against that standard. Issues are created out of
(sometimes ridiculously) minor incidents to prove one parents dedication and
suitability to promote the child’s best interest, while also demonstrating the
abject shortcomings of the other. After sometimes lengthy preliminary scuffles, it is up to the
judge to evaluate the fiercely competing claims and allegations within a time span in which most humble
mortals could not even comprehend a fraction of the often voluminous files. …
based on pseudo-science, is undeterminable, and impossible to manage in practice. Despite
decades of innovation and development, it has failed to create certainty and
stability….(cases are) in fact decided
on are at best at a rudimentary and simplistic level, and hardly allow for
objective evaluation in hindsight. In that context it is not surprising that there is a dearth of empirical data that
conscientiously evaluates the quality of court decisions over longer periods of time. It would be
interesting to see whether court decisions on average result in better long term outcomes than any randomized or
formulaic process that could be used to make parenting
decisions”.
·
Why (TF)
? The family court “industry” just hate the Howard era law and thus
subject you to micro management in a 2 year queuing process in order to
“determine the applicability of the presumption”; inspecting the butt in the
rebuttable presumption. The Family Court rejects equal time as embodied in The Howard
Law because (i) they loathe the
political success of the “knuckle dragging troglodytes” inside Fathers Rights
groups in persuading Parliament to legislate; (ii) are economically opposed to
equal parenting as that would do them out of a job, so latch onto the
Gillard malaise as an excuse to argue
the toss in the belief that what they have been doing for so long isn’t really
problematic at all; (iii) something about the Iraq invasion, something, Howard,
hate, something (ok, that was a family court mediator, not a judge, but you get
the idea- its ideological bile); (iv)
are genuinely concerned about equal parenting time as a risky experiment as
children “need a home, not a series of
places” (sort of sounds like The Heritage Foundations reasons for opposing no
fault divorce, really); (v) sincerely
believe their own prejudices that what goes on inside some families goes on
inside almost all; (vii) worry that shared parenting is code for “owning the
kids”, but aren’t able to articulate why
that’s a concern as between the parents, not just a one way concern (vii) transparency is hard- if they came out and said
“actually we are inevitably 80/20 so just fark off you plebs”, there would be
social outrage. That's why they need to pretend its VERY VERY SCIENTIFIC and
all fact specific. (At $4,000 a day, wouldn’t you be arguing hard you aren’t a complete
spiv as well? ) (ix) don’t have much of
an alternative to offer save even more interminable micromanagement and just won’t
admit they have failed to provide a coherent and workable alternative. Take
your pick. Anyway the Family Court finds ways not to apply the Howard Law in
practice, and asserts that Johnny Howards equal parenting reforms were mere
political symbolism. Sort of “we (the lawyers) will decide who comes (back in)
to (your family) and the circumstances
in which they come”, really. The touchstone is children under 5, with hopeless
fathers, unable to read wikihow.com , or without family to help, or a grannie to
tell men clean up or use cloth nappies, but the concern meanders all over the
shop into all age patterns and family demographics. Set out below are a summary
of the views of The FOFLI (the Friends
of the Family Law Industry).
·
Patience
is a virtue sayeth the frauds -We all agree that fathers or mothers who
have a history of bashing kids should be excluded. But the big issue is those
who embrace a concept called “the high conflict pantomime”, meaning couples
where they don’t cooperate, or at least
one of them just can’t be bothered for tactical purposes. Anyway if you can
keep your cool about how silly the delays are, middle class dads get 4 -5 nights out of every 14 if they fight i.e.
help the reincarnation of no fault divorce and pay the lawyers tariff and be patient
during the court process. But if your
wife just hates John Howard, or no fault divorce, or wants the kids as she doesn’t want to be
lonely, or wants to stay at home, or wants a payout under S 75 (2) then she really
has an option. That involves paying her lawyer s $ 25K and just not cooperating.
Cash firmly in their pockets, tongue firmly in cheek, the lawyers will tell the judge the parents
are in “high conflict”. The pavlovian judicial response is to get flustered about
what little time they have and apply a label and you will get 2 nights out of
14. Basically joint parenting is
optional in Australia, as long as the pantomime is scripted properly. Pay,
stand in queues and pretend you think the lawyers are wonderful people, and hey your kids have some chance of seeing their
father. Look this is cynical and there are 101 scenarios on this spectrum and
you should try for the best. But that’s how it plays through frankly in way too
many cases. Not much you can do about this. Sorry, bro. Buy the best lawyer.
http://www.familylawwebguide.com.au/library/spca/docs/Missing%20the%20Message%20-%20Michael%20Green%20QC.pdf
4.
Cultural Learnings of Australia for Make
Benefit Glorious Members of Law Society- The Men’s Rights lads, in
between Borat impersonations, kvetch about how The Family Court is populated by
“first gen men’s libbers in 1980s corduroy pants” and “mad far king lesbos” (11
of the 28 judges are female and no they ain’t, but who cares anyway) who won’t
apply the “ Far king Howard law” the way it was intended; which is true. The
Australian public strongly supports the 50/50 regime; but The FOFLI hate it.
The Family Court works very hard to undermine whatever social consensus exists
around no fault divorce, meanders with guidelines, asserts weird outcomes, can’t
iterate for sign posts, and then acts surprised when way too many people are
angered at their excuses for meddling and inordinate delay. As a result of all this
the community gets angrier and angrier and any hope of a nonpartisan middle
ground on family law reform, which is desperately needed, is becoming nigh on impossible. The battle
field at Ypres was way cleaner than todays family law ideological battleground.
What a mess.
Whisler
& Whisler [2010] FamCAFC 18 ; http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/FamCAFC/2010/18.html?stem=0&synonyms=0&query=whisler
5.
Some whacko-demic studies are
used to support the house view that the
Howard rule “doesn’t work” and MUST BE IGNORED, but the studies are mostly statistically soft
analysis. The studies the lawyers and their academic “go to people” in The
FOFLI use are largely hopelessly innumerate, and the lawyers swallow these
“studies”, oddly, as gosh, they also coincide with the lawyer’s economic
interests- who would have thought ? Now if you go into the Family Court you have
to take these studies very seriously unfortunately, because the lawyers love them notwithstanding
they would be rejected as unworthy of serious consideration in an Economics 101
class of 14 year olds. So pandering to the prejudices of the Chatterati , the “studies”
are very often not undertaken in any rigorous manner and include mainly skewed
samples, most often extraordinarily shallow cohorts, frequently ill-disciplined
segregation analysis, are poorly funded, lack granularity, relate to very short
time frames, and regression on the data pool (if any) is often replete with
multiple errors/ questions/ lacunae. They cover “the divorce period”; there is
no vague attempt to analyse outcomes over a 5 year period, or longer. And the anti-sharing studies pretend, or well
at least are relied on, to apply across the board to all families and that’s
their real problem: one size doesn’t fit
all that’s why Howie wanted a presumption to get some objective benchmark. The
pseudo social scientists MA types and the lawyers (er, doing math) , far too many of whom
seem to have achieved, maybe, a 51% pass mark in HSC stats exams or equivalents,
make Reinhart & Rogoff seem a paragon of database virtue when it comes to
analysis, caution and impact. The FOFLI,
then and maybe even possibly aware of how horribly statistically flimsy this
all is, also drill down further on “bitter divorces”. Yet simply designating a
divorce as being "in high conflict” and noting the difficulty of joint
parenting time is but one phase of any public policy analysis that strives to
be taken remotely seriously. This is not the simple causation v correlation
error. It is cause v. effect analysis.
There is a strong systems dynamics case to be made that the inherent
uncertainty of outcome itself drives parental angst- that is, the utter chaos in the current system is
making parents uncertain and hence “in high conflict”. Indeed rewarding difficult parents by throwing ones hands in
the air and condoning the status quo, is
the very problem inherent in the family law system, albeit that it’s explained
away as preferring children’s interests
over strict legalism. Its not: it
just rewards people who want to opt out of the Howard Law and can give cash to
lawyers and “consultants” (er, pseudos) to dream up counter arguments. (The
“sharing works school” of studies that
contradict these studies, are ignored or at least not reconciled). There is no
attempt to provide insight into how long the “no cooperation” zone lasts, its
rationale, nor how to remedy it (er , coz the best interests of the kids means
what again?). No one knows what the characteristics are of those in high
conflict—do both of them also have difficult interpersonal issues with others,
is it the separation causing issues, just whats happening? Its academic vomit and while “cautionary” that’s
the limit of its value. Some of the academic literature against co-parenting is
really funny, if you have time to read it, and with a stats background, you may
well roll around on the floor crying with laughter; it’s just so absolutely awful.
Label rich and insight poor. Often, though
not always, hugely ideological, theocratic in places, and assertive. The MA
types repeat it ad nauseam as confirming their approach and cross footnote one
another as if that gives it some grandeur. Not only is the math just awful, its
largely ideological bile, not careful research at all. To be fair the kick back
by the FOFLI is happening globally not just in Oz. Legislatures throughout the
Western World are moving towards joint time, but our courts and their acolytes
just hate joint parenting. Full stop. Some parts of the “narrative of the academic
literature” reads like the wisdom of the Eugenics Society (historically, also a
group of sincere social scientists, who likewise missed the plot in the 1930s).
Yet to be fair to the academics the real problem is the deployment of their
observations to almost all circumstances, all income levels, and all divorces. That’s compounded by woeful funding levels for
the studies, not especially impressive questionnaire design possibly because of
that, and certainly no design group follow ups. Pseudo-science at its worst, very ideological, and yet which justifies an army of family law talk
therapists and the inordinate delays by their buddies.
For perspectives to the contrary of our view expressed above,
and broadly sensible, reasonably well
put together, and yet still crying out for adequate funding to be meaningful
see the work of these academics:
http://sharedparenting.wordpress.com/2012/12/13/23/
The counter argument is best
summarised in “Shared Parenting: Raising
Your Child Cooperatively After Separation” Jill Burrett and Michael Green :
or possibly at an operational level in
this paper by Professor Patrick Parkinson
http://www.aifs.gov.au/institute/pubs/fm2013/fm92/fm92a.html
http://sharedparentingworks.org/wp-content/uploads/2013/11/Young-Adults%E2%80%99-Perspective-on-Divorce-Living-Arrangements.pdf
And, as this is the internet, we have to quote the kids
themselves. Thus, per Bart Simpson, to
his sister Lisa when she tries to stop the parents arguing: “ What are you doing! If they fight in front
of us we might get new bikes!” Season 15 / 21
You may well decide yourself of course
that mummy knows best is the best policy for your own family , moving forwards.
A place they can call home can be good. But its one factor in parenting, not
the only one to consider.
6.
The skinny- To paraphrase
Zhou Enlai, frankly no one really knows if the Howard approach is good or bad
because the social experiment of equal parenting has yet to start, far less run
its course, and so “it’s just far too early to tell”. There is an innate feeling by the FOFLI that
joint parenting doesn’t last, it’s just male whimsy, at the time of separation
that will soon pass. There is an innate feeling by the hatekatewinsletfathersgroup.com crowd that
it’s all a control play designed to benefit the mothers S 75(2) claims, and get
revenge. Anecdotally equal parenting time has "not worked" in Kali-
fornicatia (a concern about too many
"latch key kids " going unsupervised); but has "worked” in Scando-Land
to reduce stress and to establish a “go forward norm” for kids. Albeit being
fought wherever it pops up. It’s hard to separate genuine research from pre
conceived ideological bile, and to work though meaningful sign posts as the
academics are often swept up in the culture wars. The current system – the
queue- just undermines the “prime parent” argument that women run: whatever its
merit like all interventions its sub optimal and its promoters even quietly
admit that. Australia’s courts anyway
are filled up with judges bought up pre the Howard Laws. So they do not seek to replicate the patterns inside the
actual marriage as closely and seamlessly as possible. Rather they cling to a “primary
parent” approach hugely out of touch with modern community experience and talk solemnly
about “parental responsibility” (both parents have to agree on the school, but dad
will get 3 out of 14 nights, not 7).
Because children’s time also can effectively feed back into the
arbitrary property allocation regime there are enormous gaming incentives and
financial rewards associated with “owning” the children. The result of which is
to set the parents against each other in bizarre gladiatorial contests so that the
Family Court ensures the maximisation of anger, and long delays for the kids. At
some point the Family Court micromanagement system will collapse for want of resourcing
its insatiable hunger, will mature and give effect to real joint parenting, thereby
reducing anger and improving kid’s welfare. But , again, not during your
divorce it won’t.
7.
Rock, Paper, Scissors- So you
will wait for The Family Court to have time to “scrutinise” you as a parent, i.e.
hold a 4 hour pantomime, and the result you will obtain in front of a judge is
quite haphazard. The complex mosaic of life is impossible to model yet under
the current approach the task of determining child welfare and time with
parents is not left to community consensus with firm rules, nor to child psychologists,
nor a jury drawn from the community. But rather to some well-meaning legal
beagle who won the legal writing prize 30 years ago in Family Law 401 at UNSW
or some such, is a Lifer in the current system, and has a spare 4 hours to look
at lopsided “evidence” and apply the dogma
law in its current state. They will read
the latest Jennifer McIntosh studies on high conflict parenting and they will
nod and then tug their forelocks. There will be no iteration for long term
educational or tertiary skills for the kids, why its inane that you will in
fact support your next partners kids rather than your biological ones to buy a
house in ten years time, or indeed any notion of what happens long term. That’s
mainly because they don’t know what the impact is of what they have been doing
for the last 38 years: its one of many “best” guess work that’s available; but
actually its ideology drawn from only their limited experiences. The myopic
view through as seen through the “focus of litigation” prism, is all about conflict de jour because that all
the lawyers see, and frankly all they have the skills to analyse, nothing much more
complex than that. Yet it’s because of a myriad of Rumsfeldian known, and
unknown unknowns, that the community
wanted joint parenting. The meaning of “life” is more than the period between
birth and death, as the shorter oxford dictionary defines it (the lawyers guide
book). The lawyers are innately risk averse, hate criticism, and a 50-50 rule,
lets face it, screws with their fee streams. So they will decide the fate of
your kids based on the conflict in front of them as scripted by their over
worked buddies: the usual lawyers pantomime with no vision, no analysis, and
lots of social assertion. That’s just Australian judicial politics for you. Live
with it. But any defender of the current system who tells you this makes sense,
or that its in the best interests of any given child, is either grossly socially naïve or being paid to keep a
straight face about all this (as I said, in either case “a family lawyer”).
8.
The long and winding road that leads -
So what does go on in court? Well, firstly “go on” is a misleading concept because
not much does. As a practical matter, and because of all the indecisiveness and
lack of intellectual clarity, the back log in court cases is 2 years. Wait 9
months get ten minutes to set a date 4 months away. This is the real problem,
and even the “mummy knows best”
ideologues recognise this- they just want more cash thrown at their solutions
so the queues become shorter. They never do. As everyone is incentivised to
argue the toss, people get massively rewarded for not resolving issues and
behaving badly. Justice delayed is justice denied, and with no guidelines, and
relying on assertions of “bad parenting”, it really has retained each and every one of the
worst aspects of fault based divorce, sans the grubby detectives in trench
coats following “cheaters” (wakey, wakey, hands of snakey). (Maybe queues of 3 years if you live in Darl
Keith, Poith, Wonderful Australia).
Section 60 CC Family Law Act 1975 directs inquiries about
best interests of the child by- you guessed it- more listing and labelling
See also
Mazurka & Mazurka [2011 FamCAFC 68;
MRR v GR (2010) FLC 93-424; Escott v Lowe [2007] Fam CA 307; DS
v DS (2003) FLC 93-172
9.
New bell bottoms- Secondly,
well, when you do get there the “new black line” is, well, something like 5 out
of 14 nights for the “minor parent”.
That’s right, they hate the Howard test , but the middle of the Bell
curve is 4 or 5 nights for the knight. Weird, or what ? Huge ideology, spend 2
years fighting, but don’t suggest that’s just to make a point, or earn lawyers fees.
Gosh no. As an interim arrangement wait maybe 9 months
for a hearing. This is why family
lawyers enjoy the same social cache in large parts of our community as do used
car dealers and pay day lenders. Fiddling with kid’s lives for cash, but
pretending it’s all about science, when you know it’s as scientific as the
hatred of GM crops. Yes there are issues, and to be fair to the mummy knows
best ideologues their systems may work if they could get community buy in and
cut the frustration that their approach causes with its inordinate delays. But
right now it’s all about confrontations, sledging the other parent, and pretending
time based charging is not itself
actually the worst form of child tampering. So allocation of the kids right now
is just bitter and brutal. Yuck. Yuck. Yuck.
10.
Come the raw prawn – when you
are getting divorced it makes sense to misbehave as much as you can as the
courts encourage that sort of behaviour. Everyone agrees joint parenting
shouldn’t expose kids to abusive parents who hit them. But the FOFLI argue that
there is another exception called “high conflict” parents, being couples who
fight. Surprisingly, or maybe not, everyone who wants the kid puts on a high conflict
pantomime. The courts tut- tut and say shared parenting won’t work because the
parents can’t co-operate and that exposes the kids to too much anger and
dysfunction. Sounds plausible? Sort of; save that it ignores the fact that a
lot of the conflict arises because there are no rules. Doubtless in some
marriages post-divorce conflict is bad, even difficult, though frankly rarely
actually irretrievable. The system rewards irretrievability. Of course if you
are being $4,000 a day you argue its never retrievable and hope you buddies always
believe this. Oddly though, and you
don’t have to understand game theory to work this out-such an approach incentivises the parent with the child to
misbehave so that the conflict is labelled as “high”. Then pretend social
engineers and the legal profession nod very sagely. Yes, the pantomime they
scripted is being played out in front of them – again, gosh, shock and horror, who
would have thought it ? At $ 1800 an hour for all the lawyers , startling
revelations arise……..like that horrific time you turned up late to one ballet
concert. And you wait months for that. The
rewards for causing high conflict are just way too tempting and the overwhelmed
Family Court has created no prophylactics to deter these “plays” and thus encourages
misbehaviour, tantrums, and game playing. It’s in the best interests of the
children this maladjusted anger management be controlled at source- not
rewarded. However because of the “discretion” the lawyers take for themselves,
there is huge storytelling, often
fraudulent and bitter claims, bought about by the angry parent but also tacitly
encouraged by lawyers and consultants who
script kids about what to say or how to behave.
Race to the bottom stuff, in which the greatest harm to the children is by
the lawyer designed process. The community wants 50/50 because it recognises
that in general, over the long term connections with both parents, will emotionally strengthen kids and mean the dads
pay for their tertiary education, etc., over the long term. For lawyers, well
in the long term they are all dead and the long term is too cerebral for them,
and doesn’t pay the bills. So they love a system that looks at short term
conflict, and they never ever ever will look at their systemic long term
consequences. So we now have a new generation where some women who don’t want
to return to work after a divorce even if capable of doing so just won’t restart
their lives because they strive to convince some somnambulant Family Court judge
they need a massive property adjustment. We have a generation of bitter men who
tell the next generation of males to always hide their assets because the
Income Tax Act is easier to understand than the ranting’s de jour of the Family
Court, and have lots of cash hidden so you can bribe the kids. Yucky. Just
yucky. All around the uncertainties of trading time with the kids and getting
property adjustments. By maximising disruption in children’s lives at this time
the Courts promote a philosophy that judges, which in this instance act as bureaucratic
officers of the state, know best. You
don’t need to be a genius to work out why the Family Court queue grows and
grows. But you do wonder just where this generation’s rabbit proof fence starts
and stops.
“MYTH: Where there’s conflict between parents,
there should be little or no contact
Reality: Lawyers and counsellors
sometimes suggest that the only solutions to conflict between separated parents
are: to reduce or eliminate contact between the parents or between father and
children, or to have supervised pick-ups and drop-offs. This is inconsistent with
research, which shows that good contact results in reduced conflict between
parents. Rather than seeing hostility as a disincentive to shared parenting,
it’s better to view it as an indicator of needing a better parenting plan.”
11.
In the best interests of, um, whose children
was it, again ? Apparently the best interests of your children can only
be decided without goal posts, no matter what your social status, income,
family support network or otherwise. It’s the kind of logic Magda Goebbels was
famously comfortable with - no need to let the children move on with their
lives, there is possibly something worse they need protection from. As the system melts down the FOFLI call for
even more funding for even more micro management, and as that fails, even more
funding for even more micro management , and as that fails even more ….….although
it’s quite clear that throwing more taxpayer dollars for continued failure is
precisely not what’s needed at all. Public opinion, the genesis of the 2006
shared parenting reforms, indicated a manifest preference to work with a social
ordering rule based on the indicia of the stability of a long term marriage.
The ever petulant FOFLI do not recognise that queues would disappear overnight,
allowing the courts to identify issues rather than create them. And, one
suspects, parental conflict may well be lowered by certainty, rather than by
delay. Of course expecting the FOFLI to
promote that sort of reform is about as likely as having car manufacturers (remember
them, Mordy ?) support tariff reform. For like car manufacturing the current
system is expensive, not wanted, and is doomed long term. Thus currently the Family Court, likes Royal
courts of old, require that a pantomime be performed about parenting skills. One
parent will “prepare the kids” while the other parent waits. Possibly you will
be made to see a family counsellor who says – surprise, surprise, surprise,
that the output is unhappy kids. Garbage in, garbage out. And at that point the
lawyers will require that- yes you guessed it- more lawyers be appointed for
the kids (at your expense). What a mess. NF DINO - No fault divorce in name only.
To be fair to proponents of extensive
intervention model , they aren’t cheerleaders for the current queuing system. See http://www.familytransitions.com.au/Family_Transitions/Jennifer_McIntosh.html
Like most pantomimes these performance ends like an end of career David Williamson
script- all the moralising steps and the end which is predictable, symbolic, and no longer incisive
12.
Events in Life: micro v macro-
To justify the current policy the lawyers will bring forward cases that tug at
the heart strings. So should it be bespoke justice (of the 4 hour kind) but with
huge delay? Or should we make rules,
laws, and live with the bad outcomes, optimising to reduce danger? Consider for
a moment that that we have the unusual situation in Australia that should your
spouse get cancer and pass away your parenting duties and time will increase.
The state will provide limited support to your stressed out children and will
certainly not have anyone review your parenting skills. Especially not 2 grumpy
and not especially impressive junior barristers at $ 3,000 a day; a gaggle of tired
solicitors; and one very bored judge. Maybe a talk therapist, although maybe
sometimes a social worker, or more likely Mike and Juliana from the local Presbyterian
church will pop in weekly for a coffee. But instead of a Death Event consider a
Divorce Event in the same family. In the latter case the state will force the
same family into a pre clearing regime that takes 2-3 years and limits their contact time with one
of their parents. Very odd social policy, explained away by “high conflict
parenting”, (well, moths to a flame) but is more properly explained by the
absence of lawyers needing cash, not dire social interventions, in the case of
spousal death. Lawyer’s bills don’t improve kid’s welfare, markedly or
otherwise, and the intervention of the
Family Court in its current form has far too many negative externalities. And
costs a bomb. Both death and divorce are times of stress. But the family law system,
you see, sets out to disrupt the children’s patterns of life as much as
possible at a time that they should be as normal as possible to what they were
pre the divorce. Lawyers, who struggle with game theory just don’t comprehend
the impact of their acts: well, apparently.
And the defenders of the current system just haven’t worked out any way
to stop the inevitable game playing. Odd
given their economic interests you make think, or not.
13.
Shoot out at OK Corral – The Family Law Courts approach to joint
parenting is an ideological, non-purposive, politically weird, interpretation
of the Howard Law of the People, even post the Gillard iterations. It’s
possible that someone will appeal their way out of the Family Court group think
kumbaya sessions. The High Court, who well know the problems of “specialist courts
“, may well tell the Family Court to apply the
Howard Law, as the Family Court must apply law passed in a democracy, not make
it up based on the ravings of a modern day, albeit well-meaning, Margaret
Sanger and meander all over the place. It would save the Family Court from
ignominy, save taxpayers huge amounts, save kids lives, give deference to the
true meaning of, and community desire for, the 2006 reforms, reduce parental angst // anger,
and may well work. We don’t know. But don’t hold your breathe on this either.
In any event it won’t happen during your divorce.
14.
Ricky -
don’t you lose that number: there is a more tenable solution on the
horizon to these appalling daily re-enactments of Jarndyce v Jarndyce being
played out each day in your local Lionel Bowen Building. Law Lord George
Brandis QC, our new Attorney General, is well aware from his time with Don Bradmans team// The Johnny
Howard XI, that his predecessors have thrown huge amounts of dollars at the
queue created by the Family Court all to no avail, and that the Gillard thought
bubble is a complete mess: for he told her it would be. Lord George may well
think it’s time to make it clear to the Family Law Court luvvies that the
community favours dispute resolution and equal parenting, involve the
grandparents mandatorily, and cut the fees paid to lawyers for hiding behind
excuses. Politically very popular, and that’s lots of XXXX for George from the
Mens Rights dudes at State of Origin 10. And, after all, He With The Speedos once suggested
bringing back fault based divorce, or having a cooling off period, a view also
emerging amongst US conservatives as no fault is having similar issues over
there as well. While George of the Queensland Jungle can’t sack recalcitrant Family
Court judges, as one of his predecessors Peter Duncan (L) really wanted, nonetheless
he may well reinforce the Howard law and address the queuing issues by
requiring automatic equal parenting time in the case of established families, and
intervention only after a cooling off period, save for specified and emphatic reasons.
Possibly limit judicial dithering further (say by a voucher system, or timing
rules for the courts intervention) or length of marriage indicia. Expect the
lawyers to throw a massive hissy fit of course as this is not what their mates
“studies show ” and who T.F. is going to pay for next year’s holidays in Fiji
in the best interests of their kids, if the law is self-executing and straight
forward? Ideologues like Nicola Roxon will be livid that the community is
getting its way as we are not “experts” i.e. all clerked for High Court judges, plebs that
we are, without safe seats on Emily’s List. Sadly that means more inter gender meandering
, and more politicking at a time when a
grand bargain and risk trade-offs are required to solve the breakdown of the
bespoke justice approach and the long court queues. Nonetheless whatever the
parliamentary outcome the Family Court will, of course, yet again, scoff at
democratically enacted laws. So possibly also expect some “ Tim Fischer style Capital
C conservative appointees” being parachuted in to sort out the Family Court
debacle, quickly, as the current Chief Justice Diana Bryant and todays luvvies
are quite incapable of beginning the task, far less finishing it. Maybe take a
lesson from tax policy Australian style: bung it into law, get going, and clean
up the residue in 52 weeks’ time. The abolition of the Family Court experiment
is what’s really needed, to be replaced with a limited fee, time incentivised, dispute resolution mechanism; a non-lawyer driven mediation group that
deals directly with anger and getting people back on their feet asap. A process
that uses lawyers to help, not govern ; but reform of this nature this is way less
likely. Nonetheless, come on George, reduce the queue- free “The Swollen
Generation”.
Federal Parliamentary Hansard 21
November 1995, p 3303. Peter Duncan MP “ The original intention of the late Senator
Murphy was that the Family Law Act would create a rebuttable presumption of
shared parenting, but over the years the Family Court has chosen to largely
ignore that”. Mr Duncan was a minister in the Keating government.
And, in Australia, political deals
will be done around family law reform. Run a back solve on this set of voting
trades, look at the Men’s Rights preference flow towards swing Senator elect Ricky Muir, and ask yourself,
“what would Mal Colston do ?” http://www.aec.gov.au/Elections/Federal_Elections/2013/. A deal is what.
Frankly the area needs de
politicisation. Adopt the kiwi 50/50 no pre contributions rules on property,
and “trade this” as part of a social compact for equal parenting. Save
taxpayers and save families. Roxon
doubtless believes the literature against joint parenting, but unless we get
some consensus on Family Law, we aint going nowhere at all. No one wants a divorce system where kids
allocation is dependent upon which side of politics has its turn to govern.
No comments:
Post a Comment