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Joint Select Committee on Australia's Family Law System
08/07/2020
Improvements in family law proceedings

ZIMMERMANN, Professor Augusto, Private capacity

Evidence was taken via teleconference

CHAIR: We will resume the hearing. Before we continue, is there anything you wish to say about the capacity in which you appear today?

Prof. Zimmermann : I am a professor at Sheridan institute of higher education, a former associate dean for research at Murdoch University and a former law reform commissioner, but I'm providing this expert testimony in my private capacity.

CHAIR: Thank you, Professor. Information on parliamentary privilege and the protection of witnesses and giving evidence to parliamentary committees has been provided to you as part of your invitation to appear. I now invite you to make some opening comments.

Prof. Zimmermann : It's a privilege to be able to provide this expert testimony to the parliamentary hearing. I'm very grateful to the members of the committee for giving me this opportunity. You might have received the paper that I sent. That's basically my opening statement to this public hearing. I would like to start by saying that there is a link, as I mentioned in my submission, between child support payments and parental alienation. It's a very well-known link. The child support agency does not respect court orders—we have a case in my hands of a person whose order is not being respected. We have a situation of people who are being alienated from their kids, even though according to court orders they have the right to have a meaningful relationship with their kids, but the court orders are not being enforced. In my submission, I have also mentioned the problem of the psychological aspects of this alienation, where we have many parents who are even suicidal. I know a couple of people who have contemplated committing suicide as a result. The Child Support Scheme has in many ways been transformed into a sort of incentive to parental alienation. In my opinion, this is something that constitutes a violation of children's rights, because in my opinion children should have the right to develop a meaningful relationship with both parents. Those who refuse to let the separated parents see their kids should be dealt with according to the law. It's something that I have been fighting to correct for a long time, because children should have the right to have a meaningful relationship with both parents. The Child Support Scheme is perhaps not helping because there is a correlation between the time that the non-custodial parents spend with the child and the amount of payment that must be provided to the custodial parent. This is something that has led to an incentive to parental alienation. I have been interacting with family lawyers, not only as a legal academic but also as a professor, and I can testify to the fact that this is a reality.

Also, in one of his articles, Professor Patrick Parkinson, formerly of the University of Sydney Law School and now dean of the University of Queensland law school, explained that, unfortunately, there are some unethical family lawyers who instruct their clients to make false accusations of domestic violence. As a result, the matter has to be investigated. While the matter is being investigated, the person who has been accused is unable to have contact with their kids. This will automatically lead to the loss of custody and an increase in payments via child support payments. These false allegations are a real problem, and there are many cases that testify to this matter. What is really bizarre is the fact that it has been reported that some magistrates—and I have the evidence with me—will leave custody with the accuser even though the accusations are proven to be thoroughly unsubstantiated or, more than that, even false. Even after the department of child protection testifies to the fact that the person is falsely accused, some magistrates are leaving custody with the person who made the false accusation.

In my opinion, this is morally reprehensible because such accusations can destroy an innocent person's life. I know of people who have basically lost everything as a result. They have lost their properties, all their assets, all the money in their bank account. As I have submitted before, there is also the fact that some people whose spouses are planning to divorce them, if they happen to have a joint bank account—obviously these people are not committing financial abuse because they're sharing their bank account with the other spouse—are being victimised as a result of their money being completely withdrawn from the bank account prior to false accusations being made. I know people who have basically lost all their financial resources. The bank account has basically been emptied, and then false accusations have been made when the person might very well be homeless or not have any financial capacity to fight such an accusation. In addition to this, the evidentiary tools that are provided at the requests for restraining orders are sometimes lacking. You have people who, as a result of entering orders, have lost contact with children and also access to their properties, and later on the magistrate finds out that this person had not committed any crime whatsoever and that he was entirely innocent as a result. This is something that also needs to be taken into account, and it is something I find to be very important.

Finally, I have to say something about spousal maintenance. Unfortunately, some people are not only having to pay full child support; they also have to pay on top of this what is called 'spousal maintenance'. In my opinion, this is bizarre, because we live under a no-fault system. Let's suppose that the person deliberately wants to leave the marriage for no proper reason—for example, they're just bored; they're just not happy to be married to this particular person anymore. I find it bizarre that the person who has been separated can then go to court and obtain spousal maintenance as a result. Some people, apart from paying child support, have to pay spousal maintenance to the person who leaves the marriage relationship. In the past, spousal maintenance was given if the person had some reason to request it—for instance, a violation of the marriage contract—but we don't have this anymore. We are under a no-fault system. There are no moral grounds for spousal maintenance in this current day and age. This is also something that we need to revisit.

In my opinion, it's time to restore justice to the system. I'm making these recommendations because even Professor Patrick Parkinson, the leading family law authority in this country, says that the Child Support Scheme provides what he calls—these are not my words but his—'perverse incentives' for parental alienation. He thinks that these incentives should be avoided and that a policy needs to be made in order to effectively prevent the situation of parents alienating other parents for the purpose of obtaining financial gain. In effect, the child support agency does not respect court orders. To say that the person who is being unfairly alienated has to pay full child support is, in my opinion, unacceptable and a violation of principles of the due process of law and natural justice. I think that something needs to be done. I believe that if you can correct these problems in the system then certainly the system can be improved. We need to protect the real victims of domestic violence, but we also have to take into account that sometimes a person who applies for a restraining order might be the perpetrator rather than the victim. I also have evidence of people who have become victimised by the system. They're innocent and are actually victims of domestic violence, but they have themselves been the recipient of such orders, rather than the other way around. This is something that we need to correct in order to re-establish justice within the system.

Everything I have provided is based on my experience, not only as a legal academic, because I have been interacting with people who are currently facing the Family Court system, but also as a former law reform commissioner, having written in relation to several terms of reference and participated in several inquiries regarding family law issues. I think I can speak with authority here. Thank you very much for the opportunity, and I'm very open to questions from any member of your committee. Thank you very much.

CHAIR: Thank you, Professor Zimmerman. I will lead off. In your submission, you recommend, as recommendation 1, that 'false accusations of domestic violence should lead to the loss of child custody', and you state:

It is time to restore procedural fairness and justice to the system. False accusations of domestic violence should lead to severe penalties, including criminal charges and the loss of child custody.

I want to take you to a dilemma that I face with this. Where there are accusations of domestic or family violence and those accusations are real then, obviously, we want to be able to deal with them and protect the parties as quickly as possible. The real issue I have is: how do we better determine what's a genuine accusation versus what is a false accusation, and how do we do that in a timely way that doesn't lead to all the adverse consequences which you and others have indicated in submissions?

Prof. Zimmermann : Your question is very important. One of the basic tenets of the common law according to tradition—and you can refer, for instance, to the likes of Sir John Fortescue and Sir Edward Coke—is that it's better to have one guilty person released from punishment than to have 20 innocent persons being wrongly convicted. What I'm saying here is that we need to think about re-establishing the due process of law and basic principles of natural justice. What's happening here is that some people are being evicted from their properties and they're losing custody of their children without having the right to defend themselves from these sorts of accusations. The other matter of fact I must tell you is that, if that is the case, the person who has been the recipient of such measures is a victim of domestic violence himself. I have tried to explain in my submission that deliberate attempts under instruction of unethical family lawyers to destroy an innocent person's life should be punished severely. I find it disgraceful, to be frank with you, that some judges, even after testimony to the fact that the accusations lacked any sort of evidence, kept the full custody with the accuser and, therefore, rewarded the person financially. There is a clear link here that is undeniable and I have the evidence to provide. This is something that desperately needs to be addressed.

CHAIR: Isn't the real issue here that, first of all, a domestic violence order, which is described by different names in different parts of Australia, can be obtained ex parte by one party? The evidence is not necessarily tested and often the situation is that the other party allows the order to stand without contesting it, and that creates a situation where one party has custody of the child for a long period of time before the matters have finally been resolved in the court. I take your point: if there is perjury, it ought to be punished. But it does strike me that the greater problem is the way in which domestic violence orders are granted in the first place, and there is the evidentiary burden requirement. Would it not be better to have a system where, if domestic violence is alleged, it should be determined quickly at the outset?

Prof. Zimmermann : Yes, but not at the cost of due process. I think it's very important to bear that in mind. If it takes a long time but justice is addressed, it's better to have certain time to decide on the matter in a proper manner than to make harsh judgments that can ultimately lead to the innocent victim finding himself or herself evicted from their property, alienated from their children and even being arbitrarily arrested. Think about that: a person who is in a situation like that is very confused, especially if it happens together with the undue withdrawal of their own bank account. The person probably has no financial capabilities to be able to defend themselves properly from the accusations. They are in a very desperate emotional state because they are trying to understand what has happened. It can happen to women as well. I have a situation in Sydney where the person, after returning from a hard day of work, was prevented from seeing her child inside the property, the home, because the police were there waiting to grant her a restraining order. The person is now unable to see her child. She lost her job as well. Because of the financial distress, she couldn't continue to exercise her activity properly and she lost her job as a result. Some people who have normal lives and are law-abiding citizens certainly face the situation of losing absolutely everything and being completely innocent in the matter. What is really more amazing is that some of these people have done a criminal thing, in my opinion, because it is certainly totally immoral that they have actually been rewarded by the system. I know people who are seeing their crimes being rewarded as a result, and this is something that I find unacceptable. You have to do something about this.

CHAIR: Professor, would a more inquisitorial approach to determining allegations of domestic violence improve the system?

Prof. Zimmermann : I have no doubt that this is the case. The adversarial model might work for other areas of law, such as commercial law—any other area of law whatsoever; perhaps even criminal law—but it's certainly not working properly at the family law level. We shouldn't aim for conflict. I think the best thing we have to do is seek peace and conciliation, and the magistrate certainly should not have to rely so much on the evidence provided by the parties. They should perhaps have the independence to also sort out methods involved and seek the evidence for themselves if necessary in the ultimate aim to achieve justice. What is very important is to have a court of justice and not a court of injustice, because it depends on the competence of the parties involved and it increases conflicts between family members, including children. This is a major problem, in my opinion, and I thank you very much for addressing this factor. I have referred to this in previous articles.

CHAIR: Thank you. I'll go to Senator Hanson now.

Senator HANSON: Thank you very much. Thank you, Professor Zimmerman. Following on from that, a lot of people who are facing domestic violence charges go to court and are advised by their legal representatives to accept it without admission, with no evidence, and a lot of the time they don't even know what they're admitting to and the implications that it has on their case in family law. Is that correct?

Prof. Zimmermann : It is unfortunately correct. I don't think anybody should admit to what they haven't done. Another thing I can tell you is that lawyers are the main benefactors of the system, because, if you win the Family Court case, firstly, the court order is not necessarily enforced by the police and, secondly, because of the adversarial model, there tends to be conflict and it also tends to be very costly, financially speaking. Some people might win a case but they actually become entirely destitute and sometimes financially bankrupt as a result.

Senator HANSON: Domestic violence is basically all under one category. 'Domestic violence' can be making a phone call and saying you want to see the children, with that upsetting the other person and them saying, 'I'm being harassed. I'm receiving phone calls and text messages.' It can be saying, 'I'm in fear for my safety,' and domestic violence orders can be taken out against the perpetrator, or it can be about physical violence. How do we put it into a category so that, when it is before the judges, they know exactly what type of domestic violence has been committed?

Prof. Zimmermann : It's perhaps necessary as a result of the lack of reasonableness and as a result of the fact that, as you say, some accusations are not entirely based on real violence at all. Perhaps it's necessary at this point to explain what 'violence' actually means. I can give an example of that. Thank you very much for providing the opportunity to me. This is an example of a husband here in Western Australia who was served a restraining order because his wife was having an extramarital affair. She was really upset that he was asking her why she was having such an affair. As a result of him bothering her about her extramarital affair, he was served with a restraining order by a Justice of the Peace. Not only that, but I have here the documents saying that the Justice of the Peace induced the unfaithful spouse to also obtain orders for the kids. Can you imagine: she was inducing this person to extend orders to the children so that the faithful husband would be evicted from the property and evicted from the lives of his children.

Senator HANSON: This is ridiculous. Can we put domestic violence into a category, such as category 1 for non-violence and, basically, sending text messages or phoning because someone wants to see the children—

Prof. Zimmermann : Financial abuse is a good example.

Senator HANSON: Yes. We put it into categories, so it is easily identifiable as to what extent is domestic violence. For instance, if you have category 3, you know it's physical violence. If you got physical violence, that's actually an assault. Why do the courts accept it based on the allegations of someone? If it's a physical assault, that is violence. Why isn't it then a criminal offence and why isn't it then to be pursued by the police, to lay charges against that person?

Prof. Zimmermann : I think that is a very good question. It is a mystery to me, and I find it hard to provide an explanation. For the reasons that you have provided, that is how it should be. I can explain to you that it can now be construed as financial abuse where a person is not sharing his joint bank account with his spouse. I know a person who lost the case because he was not sharing a bank account. That can be construed as financial abuse—which can, unfortunately, according to this particular interpretation, lead to a form of domestic violence. So even if you decide that your wife or your husband, for that matter, has a certain drug addiction or is an alcoholic or has a gambling problem, and you withdraw financial assistance for him to continue on his ways, that can be eventually interpreted as a form of financial abuse, which constitutes, according to certain interpretations, a form of domestic violence. I have also seen this happening.

Senator HANSON: I now want to go to the issue of shared custody. Correct me if I am wrong: it is actually in the legislation, but it's at the judge's discretion now. Is that right?

Prof. Zimmermann : Yes, indeed.

Senator HANSON: Can you explain shared parental custody and shared parenting, as they like to call it these days?

Prof. Zimmermann : Shared custody is the situation of both parents having equal access or a meaningful relationship with their children. According to research provided by more than 100 experts on the subject, it seems that kids long to have a meaningful relationship with both parents. But, as a result of the linking of child support payments and parental alienation, if one of the parents has more of a relationship with the child, it's not uncommon that parents are willing to obtain financial advantages by trying to poison the relationship with the noncustodial parent. As a result, the person who is not sharing custody, will probably lose the opportunity of having any contact whatsoever with the child. That is one of the main issues, I guess.

Senator HANSON: In your submission you say that you had an event and that Dr Linda Nielsen, Professor of Adolescent and Educational Psychology at Wake Forest University—an internationally recognised expert on the effects of shared parenting—spoke authoritatively about 52 studies that fully confirmed beyond a reasonable doubt that shared parenting undoubtedly offers the most beneficial effects for one of the measures of child wellbeing, and went on to analyse more than 60 living empirical studies on the subject.

I do believe that both parents should have meaningful relationships with their children and that they should actually come to an agreement. If parents can have a meaningful relationship with their children prior to separation, why can't they continue with that upon separation? Why can't we introduce a system where, if they have automatic fifty-fifty shared custody of the children—like one week on and one week off—and that doesn't work out, they actually sit down and work out what time frames would suit them due to their work and their commitments? Why can't we introduce something like that that forces them to sit down and work out times with children?

Prof. Zimmermann : I think this should be taken into consideration. As mentioned, this particular academic has referred to the benefits of shared custody. We have a very important academic paper, endorsed by 110 leading international experts on the subject, that states that shared custody is not necessarily problematic at all—quite to contrary.

Emeritus Professor Nurcombe, professor of child adolescent psychiatry here in Australia, at the University of Queensland, highlighted the fact that policies relating to this sort of matter are utterly inappropriate. It's very important to also bear in mind that, among these 110 leading researchers, not only Professor Nurcombe but also Dr Don Edgar, the former foundation director of the Australian Institute of Family Studies, and Judge Cashmore AO, professor in Socio-Legal Studies at Sydney University, signed the report with other leading experts in the field, saying that shared custody is not necessarily problematic for the young child and quite to the contrary. These are not just authorities on the subject; they are the leading authorities on the subject.

Senator HANSON: Why do you think the ALRC, the Australian Law Reform Commission, recommended in their family law hearing that we do away with fifty-fifty custody/parental responsibility?

Prof. Zimmermann : I think it is utterly irresponsible to propose such a thing, and certainly because this is not a clear instruction that provides rules to the contrary if that is required. If you don't have a clear proposition, you have a natural increase in conflict when it comes to custody issues. Certainly the main benefactors of the fact that you don't have such an objective rule are the family lawyers, who are going to profit at the expense of people's misery and, in the fight for custody, at the cost of children's rights and parental rights.

Senator HANSON: I just want to go to another area. People make allegations of perjury in the court system—I'm fully aware of it, because I have been in the court system and I've seen it happen—and nothing is done about it by these judges when perjury has occurred and it's been proven. What do you think should happen and how should that be addressed?

Prof. Zimmermann : It should be addressed as we should address any instances of perjury happening in other areas of law, not only in this country but also in any common law jurisdiction. Perjury is a very serious crime. It is incredible that some decisions by the judges are as a result of, for instance, independent reports provided by the child's independent lawyer or perhaps even by the Department of Child Protection, when the accusations sometimes are even called false if not unsubstantiated. Then we find out that some accusations can be fantastical. A person can be accused of all sorts of things that don't make sense when they're put together. For instance, a person can be accused of molesting a child but, at the same time, alienating the child, not being with the child or abandoning the child. Or there have been other accusations of, for instance, being homosexual—which makes no sense, because that's perfectly acceptable—but, at the same time, having an extramarital affair with a woman. All these things make no sense whatsoever.

Then, when we have a final decision, the magistrate acknowledges the craziness of the statements—because there is an avalanche of fantastical statements—and absolutely nothing is done. To make it even worse, sometimes the child is kept with the false accuser. The magistrate will say, for instance, that the child got used to living with the person who attempted, objectively speaking, to destroy the life and the reputation of an innocent person. How on earth can a judge who knows that the accusations are false, in a sense, indirectly reward such behaviour? I find it incredible.

Senator HANSON: I don't know if you want to answer this question or not, but do you believe that our court system is failing fathers and giving custody to mothers to basically protect them because of the domestic violence allegations and out of concern for the wellbeing of the mother and the children?

Prof. Zimmermann : Most victims might even be, and indeed are, women. But you have to take into account that the system allows for this sort of financial behaviour on the part of both males and females. I know some women who have been victims of the system and who are now paying child support because the husband was planning in advance to strike. In many ways, I believe that, as a result of what we have under the current system, the winner takes all, if he can plan in advance a strategy to obtain undue advantage when it comes to property settlements and custody disputes. I'll give you an example. If the person is planning in advance, he can strategically devise a scheme where the child might eventually be placed entirely in his custody—for instance, by making a false accusation. Then the matter has to be proven. I know a very good female friend of mine who is in this situation. She lost custody, and she has now been proven to be innocent. Is that going to be corrected or not? If not, we're rewarding immoral and irresponsible behaviour.

Senator HANSON: I have one last question. Do you believe that our child support system is fair and balanced in the way it's structured, or does it need a complete overhaul?

Prof. Zimmermann : I think that the child support system is entirely unjust because it doesn't respect the rule of law and it doesn't enforce or respect court orders. Some parents have been contacted by the child support agency and told that they have to pay 100 per cent in child support because the other parent has decided to not allow the court order to be enforced. As a result of that, the person communicates with the child support agency that it is not their fault that he or she is not able to have contact with the kids or have the kids spend the night with him or her. But the child support agency tells this innocent person, who is the victim of parental alienation, that they will have to pay 100 per cent in child support, even though they might have shared custody according to the court order. I find it unbelievable that the child support agency can have such disregard for the rights of parents and children and might even say that the court order is not relevant for the purpose of child support payments. This constitutes one of the major reasons for parental alienation in this country.

Senator HANSON: Thank you very much for your evidence today, Professor.

Prof. Zimmermann : Thank you very much. It's a pleasure.

Dr ALY: Thank you, Professor, for your evidence today. I do want to explore a little bit further what you said in your submission about the no-fault system around divorce. Are you suggesting that where one partner seeks a divorce for 'no proper reason'—I think that was the term you used earlier—that the court should be able to deal with that?

Prof. Zimmermann : What I'm suggesting is certainly not to change the no-fault system. That would be a misconstruction of my argument. What I'm saying is that gross instances of misconduct are not taken into consideration, and it's only this that I'm saying.

Dr ALY: Have you given any thought to what a resolution to that might be? What would be your suggestion, then, to remedy this issue?

Prof. Zimmermann : Certainly, I have a suggestion that parental alienation should not be allowed to go unpunished. I think it's very important that—

Dr ALY: Hello?

CHAIR: Professor Zimmerman, can you hear us?

Dr ALY: I think we've lost him, Chair.

CHAIR: We've lost Professor Zimmerman. We'll see if we can get him back. We'll resume now.

Dr ALY: Professor Zimmerman, I believe that you were in the middle of answering questions.

Prof. Zimmermann : Perhaps I should start again. What I was trying to say is that, unfortunately, we have perjury not being punished accordingly. Another problem that I see is the fact that some children would like to develop a meaningful relationship with both parents, but, as a result of some strategies I see being applied by some parents, these children are being victimised by not being able to have such a relationship. I am entirely 100 per cent sure that if the marriage is broken and both parties want to leave the marriage then they should have every right to do so. That's why I strongly opposed to the restoration of the old model, where not only was no-fault divorce never the rule, but fault issues were necessary and had to be dealt with. I am not supporting this sort of old model. What I'm saying is that parental alienation, false accusations and perjury must be taken into account.

Dr ALY: I take your point on that. I'm referring specifically to where you talk, for example, about 'an unfaithful wife who leaves the marriage contract for reasons such as boredom or because she has decided to form a new relationship outside the marriage bond.' You spoke earlier about proper reasons for leaving a marriage. The question I have is whether there could be any adverse implications from that. For example, in countries where a woman has to prove why she wants a divorce, it often has adverse implications for women who are forced to stay in abusive marriages, or, where a man accuses a woman of infidelity, it can have dire consequences for that woman. I want to probe with you further what you mean about the particular stance that you've put forward in your submission.

Prof. Zimmermann : It's fairly simple. That was mentioned especially in the context of support payments. I was referring in this particular case to spousal maintenance. I have no doubt whatsoever that spousal maintenance was created to address the ancient model, the old model, where fault was taken into account. But now that we have a no-fault system—and I am in support of this—where the marriage is broken and both parties have all of the rights to leave the marriage, it shouldn't be the case that there is, and I don't see any grounds for, the payment of spousal maintenance where a husband has been abandoned by his wife just because the wife does not want to be with him anymore. I think that both parties support gender equality, and I think that both men and women should be financially independent and should have the right to sort out their lives without requesting privileges that are not considered on the grounds of moral validity. That's what I'm saying.

Dr ALY: Do you think that prenuptial agreements and contracts would perhaps address some of the issues that you raise here?

Prof. Zimmermann : It's a very good point, Dr Aly. What I feel is that the parties should have some margin for discretion, but the law certainly has the obligation to never allow oppression and injustice to be committed. I don't see a problem with different arrangements in terms of contractual relationships since that is actually giving more rights to the parties involved and is not reducing rights.

Dr ALY: You said something about people not being given the right to defend themselves against accusations of domestic violence. Could you please elaborate on that further? When you talk about the right to defend themselves, are you talking about the legal right or are there other circumstances or other issues that are impinging on that?

Prof. Zimmermann : Sometimes it is actually impossible if a person faces a situation where they have no money in their bank account and have been evicted from their property. We can't ignore the fact that an interim order based on no evidentiary sources can actually lead to homelessness. It is a fact that some people are homeless as a result of marriage breakdown. What I have to say is that, if the person is facing such financial difficulty and the person can't afford to pay another week of rent and is under terrible emotional conditions, it would be really hard for them to fight for their rights when it comes to the final hearing at the court. The person might not be able, emotionally and financially, to fight for their right to be innocent. That's one of the main problems that I see: when a person is being victimised by the system. That should certainly never be at the expense of justice ultimately being achieved by means of proper assessment of the matter and that should not be at the expense of the basic principles of natural justice and due process of law.

Dr ALY: Thank you for clarifying that. We've heard from other witnesses the recommendation regarding a process for assessing domestic violence, whether it's through training of support personnel and people involved in the Family Court system to recognise domestic violence or whether it's through a more formalised process involving a panel of experts to assess domestic violence and abuse. Do you think that having a process like that would mitigate the concerns that you raised as well as the concerns that have been raised by people who are advocating on behalf of women who have gone through domestic violence and feel that they have not been taken seriously by the courts?

Prof. Zimmermann : I think it's very important, and I would extend this to even male victims of domestic violence because they are sometimes not believed by the courts or even by the police. I have heard of male victims of domestic violence that have been accused of being the perpetrators. There is an impression that men can never be the victims of domestic violence when, officially speaking, one third of the victims of domestic violence happen to be men. The others who are not in this statistic are those who haven't had the courage to disclose the information. There are many accounts of men who, when they go to the police to complain, are assumed to be the perpetrators because of the feminist narratives that can't conceive of a man being the victim.

Dr ALY: Do you think that it is the feminist narrative or do you think that it is part of a broader cultural context in which men who suffer from domestic violence or a whole range of other issues—depression or mental health issues—aren't encouraged to speak about their experiences?

Prof. Zimmermann : I was a commissioner dealing with the matter of domestic violence and I have countless letters with me of people who were ridiculed and mocked because of their allegation that they were the victims. These people have paid a very heavy price because they didn't want to leave their marriage, because they would lose custody of the kids or they were afraid of losing custody of the kids, and as a result they have been subjected to indescribable instances of violence. This is something that they did for the love of their kids because they were really concerned about the wellbeing of their children. I have with me the case of a person who was evicted from his property and found out later that his wife and children were killed by the father-in-law. This is a tragedy that happened here in Western Australia. It's amazing that this is happening and nobody is doing anything about it.

Dr ALY: Thank you very much, Professor Zimmermann.

Prof. Zimmermann : Thank you so much. It was a pleasure to talk to you.

Ms STEGGALL: You made some comments about child support. You intimated that, with equality and everyone working, if you choose to leave there shouldn't be child support, but do you accept that child support is, at its essence, calculated on the cost of raising children?

Prof. Zimmermann : Yes.

Ms STEGGALL: So, regardless of who they're spending time with, there is a pool of money available to support that child and, if the parents had stayed together, they would have combined their resources to support the child, and separating does not diminish your responsibility to provide for the child. Do you accept that?

Prof. Zimmermann : I accept but not entirely.

Ms STEGGALL: What part of that don't you accept?

Prof. Zimmermann : Because this calculation can be quite arbitrary. I know of a lawyer, for instance, who couldn't provide a payslip and he was assumed to have received far more than he actually received and ended up having to give more than 80 per cent of his salary for the child support payment, basically leaving him destitute. I reinforce this point again: it's unacceptable for child support—even though the person who works for the agency has in their hands the fact that a court order is in place and that the court order is not being enforced—to say that the victimised parent has to pay more in child support. This is unacceptable and certainly a violation of the basic principles of the rule of law.

Ms STEGGALL: That happens where, for example, there's a breakdown and there's a departure from family orders—for example, when a child is not spending time with both parents in the way that is anticipated by the orders, and there might be a delay in the courts being able to address that. It may be brought back when there are contravention proceedings or an appeal or a review of the orders to see why they are no longer being followed. The situation is that child support operates quite independently and is informed by a party that the current arrangements, such as the number of nights a child is spending with one parent, have changed. Basically, the agency, regardless of the reason why the arrangement has changed, just looks at the fact of where the child is currently spending time. Are you saying that child support shouldn't just look at the reality of where the child is actually spending time but also why they're spending time there?

Prof. Zimmermann : In the normal context, that's what happens in our jurisdictions, in the common law system that respects the rule of law and due processes of law, and such decisions should be made by judicial order. We should never have arbitrary decisions of this nature. If there is a concern about judicial delay, and that seems to be the case according to your impression of the matter, that has to give doubt and be solved. I will tell you one thing: it is unacceptable and unbelievable that an agent can act in such an arbitrary fashion and not have respect or regard for a court order.

If the case is that the arrangements have been changed, it is for the party to communicate to the proper authority—namely, a member of the judicial branch—so that he or she will be able to assess the matter and make the rearrangements for the visitations of the child.

Ms STEGGALL: Sure, but doesn't that support the statement that it would be incredibly difficult for a child agency that doesn't have access to evidence to be making a decision as to why arrangements have changed, as opposed to what the facts are of the nights where a child is spending their time? In fact, it would serve all purposes for there not to be any delays in the judicial system so that, if there is a contravention of orders—for example, someone withholding time with a child or someone departing from orders—there should be a system to accelerate that review by the court to ensure that the allegation is dealt with, disproved or proved, so that arrangements can then be streamlined and made consistent with the child support agency?

Prof. Zimmermann : What you're saying makes perfect sense to me, but I have to add that a good friend of mine, a female person, a wonderful mother of two children, unfortunately lost custody as a result of strategies that were adopted by the ex-husband. She's now paying full child support payments and she's unable to have a relationship with her children, against her best will. That is something that leads me to believe that there is a connection here between the parental alienation that she is having to endure and child support payments. The first thing that the ex-husband did was to call the child support agency, and now she's paying full child support as a result of this strategy being applied by the former husband. So it is not that it just happens to men; it can happen to anybody. I must be very clear about this. I just want to establish justice to the system. I believe that many women are now victims of the system because of these sorts of arrangements, which are utterly inappropriate and must be corrected.

Ms STEGGALL: I think it was mentioned during Senator Hanson's questions that, in the Family Law Act, if there is no assessment of risk of harm, there is an assumption of shared parental responsibility for decision-making in relation to children. Then there is a requirement in the act that, if shared parental responsibility is considered appropriate, the courts should look at whether shared and equal time is reasonable and, if not, whether it would be substantial and significant time. You seemed to indicate—and correct me if I am wrong—that there should be a basis of accepting that equal time is a primary position. The case law establishes the main reasons why equal time doesn't get accepted by a court. It is generally things like there being a high level of conflict between parties, there's poor communication between parties, the distance of living apart and parenting capacity if maintenance simply isn't there to establish shared care. Do you accept those areas that the court has established where equal time simply doesn't work in those situations?

Prof. Zimmermann : That is when you have the reward of irresponsible behaviour. If you have this conflict—and the conflict could even be caused by one of the parents—I don't find it fair and just to reward the person who is responsible for creating the conflict. What I'm saying is that we should avoid, by all means, the adversarial model of extreme conflict between the ex-spouses. We should do everything we can to make this separation amicable. So what I propose is that we should have shared custody as a general rule, with exceptions provided—but certainly not to reward gross instances of irresponsible behaviour.

Ms STEGGALL: Let's put aside the conflict and look at the other areas—for example, poor ability to communicate to the other party about decisions or about the day-to-day lives of the children. They are very hard things to get around. There are things like distance. If parties choose to move away and live further apart, is it your view that it there is a reasonable expectation that child custody should be split equally while living quite distant, even though that is quite an inconvenience to the child?

Prof. Zimmermann : Basically what you have is equal parenting rights. If the person wants to move away, the other person should not become the victim of a voluntary choice. Unfortunately, the person wants to have the best of both worlds in this case—breaking up the marriage and, at the same time, wanting to, for instance, live overseas. If that is the case, she has to be responsible for the decisions that she makes. I don't think that a person who is the other parent—

Ms STEGGALL: You said 'she', but men will also move away and still want equal time.

Prof. Zimmermann : I totally agree.

Ms STEGGALL: And I am not just talking about internationally; it can be within a city like Sydney. Some of our cities are large. As soon as you start moving too far apart, or several suburbs apart, it does require a real splitting of the child's life.

Prof. Zimmermann : Absolutely.

Ms STEGGALL: The presumption of equal time puts the stress of separation on the child and puts too great an onus on children to adapt to the breakdown of a marriage.

Prof. Zimmermann : I couldn't disagree more. Most children really crave a meaningful relationship with both parents. If a man or a woman wants to move to another jurisdiction, for instance, I think they are demonstrating a lack of proper care and love for his or her child. I think that this person has to make some sort of sacrifice to allow this child to develop a meaningful relationship with both parents. Otherwise, this constitutes, in my opinion, a very egregious form of selfish behaviour.

Ms STEGGALL: Do you accept that children, whilst wanting a strong relationship with both parents, do have a desire to have a principal place of residence? Do you believe that children actually do develop that?

Prof. Zimmermann : I think that the parents should think about this before they cause the problem. I don't think that it is fair for the child to have to make such a choice. That's what generates conflict, and that's when we have the problem of the link between child support payments and parental alienation that I mentioned before.

Ms STEGGALL: Thank you very much.

CHAIR: Professor Zimmerman, I think that has exhausted our questions. I thank you for your submission and also for discussing it with us today.

Prof. Zimmermann : Thank you very much. It was a privilege.