Court out

Family law specialist Max Meyer* discusses some of the ways the courts appear to treat men and women differently.

The value of marriage

With few exceptions, property settlement cases between husband and wife are dealt with by the Family Court; those relating to de facto partners are dealt with by the Supreme Court.

It is hard to escape the suspicion that the Supreme Court judges do view marriage as a more serious business than de facto relationships, which are not nearly so profitable as are marriages, for wives at least.

In a case that came before the Supreme Court in 1996, and then the New South Wales Court of Appeal, the difference was once again made clear.

At the start of the relationship, the man was the owner of a substantial home, some other real estate, and a business. He had to pay his former wife a large amount of money for property settlement and he had some other debts.

At the start of the de facto relationship, the couple decided to try and keep his house and start a new business. The woman put in all her money, over $100,000, to help the man pay off his former wife and reduce the business overdraft.

Therefore, at the end of the relationship, the man kept his expensive home, but had substantial debts and had no money or resources at all. At the end of the relationship, she had nothing, but he had even less than nothing. The business had no value and the debts on the property exceeded its value because of the crash in the property market.

So the parties found themselves in a peculiar position. The man's application was that the woman share the losses. He wanted her treated as a true partner in the relationship, which meant that she would have shared in the benefits and should share in the losses.

The woman, on the other hand, said that she should not be treated in this way, that it was not by any means a gift by her to him in order to share his life, but the money that she put in was only a loan.

Of course, usually these positions would be reversed. It is easier to imagine that if there had been a lot of money around at the end of the relationship, the wife would have argued that she was a true and equal contributor; the man would have argued that she should simply get her money back and no more.

What the court did, and the Appeals Court did not upset, was to agree with the woman. She got her money back, with a small amount of interest.

It is a very peculiar view of a relationship and one that I am sure would not be shared by any Family Court judge. But on this occasion, this peculiar way of viewing a relationship has favoured a de facto wife.

What happened to notions such as a pool of assets? Rather than one pool, the court treated these people as having separate spas.

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The true worth of a father

What value does the Family Court place on a relationship between the children of a marriage and the parent with whom they do not live full time: in other words, usually their father?

We now know that the answer is: much less than $200,000.

One of the most difficult questions in family law, both for the lawyers and for the parents, is what to do with the parent who disobeys contact orders. There is no shortage of remedies in the law, but there is a serious shortage of the will to use them.

If you break court orders to let a child have regular contact with the other parent, there is no doubt that a judge can find you in contempt of court and send you to gaol.

This is almost never done. The reason given, quite sensibly, is that it would deprive the child of a parent while the parent is in gaol. The logic never seems to follow that the refusal of contact itself deprives the child of one parent.

However, in 1996 a husband was ordered not to sell or mortgage any property pending a court decision about who would get it. In breach of the orders, he mortgaged one and sold another, and got rid of the proceeds. This yielded about $200,000. The judge found him in contempt.

The husband's lawyer asked the court to give him a suspended sentence but the judge said that this would not adequately reflect the seriousness of the offence.

So the husband went to gaol for six months.

But the sting is in the tail. The husband had the two children living with him at the time. He argued that the welfare of the children would be adversely affected by sending him to gaol. This argument failed, and in he went.

I am disturbed that the Family Court seems to place a higher value on obedience to financial orders than it does on obedience to orders relating to the welfare of children. But of course, I may be missing something here.

The community has an interest in ensuring that court orders are obeyed. The community also has an interest in ensuring the welfare of its children. The judges of the Family Court are obliged by law to do so. The social cost of the failure to do so, is damaged children. The cost of that is too high for any community.

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The myth of the primary caregiver

Of all the arguments that are used to support a woman's preferred parenting role, the most familiar is the primary care giver one.

This is the argument for experience. Two American researchers state it in this way.

"A woman who has served as the primary parent, has already largely developed and demonstrated the skills to care for the child in an every day way. She has much less to learn than the father."

This implies that because the mother has experience, she will be better as a future sole parent. However, this seems not necessarily true. What the research reveals is a deterioration in the single mother's relationship with her children. After divorce, she seems to have less time and energy for the children and more problems managing their behaviour, particularly with sons. In other words, being a sole parent is a very different challenge to being one of two parents in the same home.

By and large, before divorce, parents think of themselves as partners in rearing the children. Whether they spend equal time or not, both are important. Before divorce we don't rank them; only afterwards do we call them primary and secondary parents.

The basis of this seems to be offensively simple minded. Just because one parent spends more time, does that make that parent the more significant? It seems not, provided the involvement goes beyond a certain minimum time.

And in the list of responsibilities that go to make up a primary parent role, is there not some gender bias against men? Shopping for food and clothes is included, often earning the wage that pays for the shopping is not. Being involved with team sports, providing a sense of physical protection and security, these do not get much of a mention.

And do we overvalue the significance of basic tasks like meal preparation, dressing, bathing, and so on? As one American writer has put it: "Many of these responsibilities are activities done for the child, rather than with the child."

More importantly, the primary care giver argument seems to focus not on the quality of the relationship between child and parent, but in the quantity; how many hours, how many tasks, how many behaviours?

The problem is that our present system makes the courts less and less able to receive evidence about the true relationship between children and each parent.

The Court will insist that the parties go to counseling but this is confidential and the children may not even be involved.

In certain circumstances, perhaps a Legal Aid lawyer will be called in to represent the children. This may help. It may not. But legal aid is being cut. Legal Aid lawyers will have less and less time for these children, not that they have a whole lot of it even now.

The court orders a family report from a counselor only when the litigation process is entrenched, and just before a final hearing. Both parents will by then have dug their trenches and adjusted their sights. In those circumstances, the family report is no less and no more than the biggest weapon in the battle, rather than a means of avoiding it.

Why can't we do better? The answer has got to be money. If a family report is ordered early, it will need updating by the time of a hearing. That means twice the number of reports. Perhaps twice the number of counselors.

But such a change might save more money than it costs, in terms of court time and the cost of stitching together damaged lives.