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Wednesday, 19 October 1983
Page: 1910


Mr COLEMAN(12.05) —In speaking on the Family Law Amendment Bill and the Migration Amendment (Emigration of Certain Children) Bill I will be concentrating on the child custody system established by the Family Law Act, a system which I think is more than unsatisfactory. It can even be called a disaster. But I do not want to be entirely negative and, before dealing with that issue, I want to welcome those clauses of the Family Law Amendment Bill which are genuine reforms of the principal Act. These derived ultimately from the 1980 report of the Ruddock Joint Select Committee on the Family Law Act. The honourable member for Dundas (Mr Ruddock) has every right to be pleased that his labours and those of his colleagues have at last borne legislative fruit. These include opening the court, with qualifications, to the public and the media under clause 52, measures which will go some way towards demystifying a court which in its general philosophy and values is in many respects out of step with, perhaps in some ways ahead of, broad public opinion and which is consequently the object of much suspicion and distrust by many people whose complaints cannot all be dismissed as those of bad losers.

Is that surprising? Many people are still mentally attuned to the old system of matrimonial offences and are confused by the new no-fault system. For example, a deserted father who did not sponsor the divorce and who worked hard to keep his family intact knows that he would have obtained custody of his child under the fault system; yet the Family Court operating under the no-fault system grants or may grant custody to the deserting mother. No wonder the father is confused and lacks respect for the law. He sees the present system as providing an incentive for wives to leave their husbands, obtain custody of the children and then obtain financial orders against their husbands. It is this sort of experience and sense of disillusionment with the law that has led to the formation of such bodies as the Lone Fathers Association, whose grievances, I believe, cannot indefinitely be ignored. Opening the courts to the public and the Press, with qualifications, will not remove those grievances-that calls for a different solution-but it will at least help the public get a better understanding of the new law. In any case, it is absurd and hypocritical to talk of protecting privacy when the reports of the cases appear almost contemporaneously in CCH reports and at length in various case books and text books.

Other clauses in this Bill correcting jurisdictional discrepancies are also to be welcomed. I have genuine doubts, however, about so-called divorce by post in undefended cases. I appreciate the argument that divorce is itself a sufficient trauma for there to be no need in undefended cases for a party or his or her representative to be present in court at the dissolution. Neverthless, I accept the argument of the churches that this clause will contribute further to the trivialising of marriage. If marriage requires a serious ceremony at its beginning, it requires at least mere attendence at a court by the party or a representative at its termination. I maintain this view although I recognise that the amended clause 53 excluding all cases involving children of the marriage under 18 years of age is an improvement on the original draft.

Let me turn now to the changes that the Bill will make to the child custody system, or rather those it does not make. This is a major issue affecting, I calculate, possibly one million children in Australia since one in every three marriages ends in divorce and two in every three divorces involve children under 18. The usual regime preferred by the Family Court is one of sole custody with one parent, usually the mother, having custody and the other parent, the father, having access and paying maintenance. But the system is not working, since when parents separate-and the figures are on the record-only 40 per cent of non- custodial parents continue seeing the children and only 50 per cent of the fathers regularly pay maintenance. If continuing contact with both father and mother is a key to the good psychological development of the children of divorce , the system is failing to deliver this. Perhaps one could go as far as to say that the present regime is damaging children. One thing is sure: It does not encourage a co-operative attitude between divorcing parents. The usual attitudes are those of adversarial, winner-takes-all contests, which, incidentally, soak up the vast bulk of the legal aid available. The Australian Legal Aid Office told the Ruddock Committee that in the three years after the Family Law Act came into operation 80 per cent of its funds and its officers' time was spent on family law matters.

The Family Court is a most unusual court. Its task is far harder than that of the old divorce court operating a matrimonial offence system, which had the task of establishing whether an offence had been committed and which then awarded custody to the guiltless party. That, at least, was a judicial task and the parties knew more or less where they stood. With the elimination of matrimonial offences and the introduction of the statutory requirement that the welfare of the child is paramount, the Family Court and its welfare workers have to evaluate and predict the capacity of either parent to provide a suitable environment for the child. This is not a judicial task involving rules of law and legal rules of thumb. It is a predictive and psychological task. It is in most cases an impossible task, except where one of the parents is an obvious sadist, or alcoholic or is otherwise unsuitable. When we consider further that the Family Court's general preference is for sole custody to one parent, we reach the problem which this Bill does not really touch.

Since the Ruddock Committee deliberated, there have been a number of developments which, in the nature of things, it could not have considered. There has been a growing and widespread realisation of how badly the sole custody regime, with access by the non-custodial parent, works. We all know the stories. Too often parents slander each other or the non-custodial parent attempts to undermine the custodial parent by lavishing gifts and meals on the child or children. Many non-custodial parents stop seeing their children because it all becomes too painful for them. The custodial parent places difficulties in the way of access. The non-custodial parent has in general an inferior status, feels it, and eventually gives up. Many non-custodial parents who do not see their children still love them, but the present system has killed the parent-child relationship and produced, in one telling American phrase, the category of ' disposable parents'.

At the same time as the realisation of these facts and the literature on the problem have grown, there have been other linked developments. There is now evidence that despite the shattering tensions which the child of a divorce experiences, it is still better for a child to have a continuing and good relationship with the non-custodial parent. In particular, there is an increasing amount of literature on the role of fathers and on the harmful effects of fathers' absence-still the norm in sole custody regimes, despite Gronow v. Gronow-on both girls and boys.

Two other important developments since the legislation now before the House was prepared should be mentioned. One is the change in the Californian law, on which recent Australian law has been based, to establish a presumption in favour of joint physical custody of the children of divorced parents; a presumption which may be rebutted by evidence that one of the parents is unfit by reason, for example, of alcoholism. It means simply the abandonment of the norm of sole custody, which is, after all, a legacy of fault divorce, and an attempt to maintain for the shattered children of divorce the norm of having two custodial parents.

The other relevant development was the establishment in Australia in 1980 of the Institute of Family Studies which has shown itself sceptical of the sole custody regime and in favour of joint physical custody wherever possible. I refer to the report of its National Conference in Canberra in 1981, 'Parenting after Separation-Alternative Patterns of Child Care', in which most of the speakers favoured joint physical custody; that is, the parents sharing approximately equal amounts of time with the child.

This proposition will need long discussion. Many arguments are raised by people with whom I have discussed this issue-that joint custody would not work with hostile parents; that it confuses children; that it would only work with modern or trendy middle-class people. I do not dismiss these arguments out of hand, but I think they are overstated. It seems to me that if the welfare of the child is paramount, joint custody is the ideal, and, on Californian experience, it is a workable idea, that in time might apply to, say, 50 per cent of cases; no more, I should think, but no less. As Geoffrey Lehmann, a Sydney lawyer and exponent of joint physical custody, put it in a recent paper:

Joint custody is not experimental or radical. It is simply a re-incarnation of the old-fashioned moralistic view that parents should stay together for the sake of the children.

I regret that this Bill does not begin to enter this territory, but I think this will occur next time round. Meanwhile, the Law Reform Commission has before it a reference regarding division of matrimonial property on divorce. I urge the Attorney-General (Senator Gareth Evans) and the Government now to consider referring the question of joint physical custody to the Commission for inquiry to advance this possible line of reform of the present disaster area.