Family law: fact and fiction

Peter Vogel examines some of the popular beliefs about family breakdown.

Fiction: The Family Court acts in the best interests of children.

Fact: It is in the best interests of the children that they maintain a good relationship with both parents, and that conflict between parents is minimised. The adversarial nature of the Family Court guarantees that neither of these will be possible. Even if parents separate reasonably amicably, once lawyers and the courts become involved, they find themselves at the centre of a storm which invariably ends with a loser and a winner. This is inherent to a system which assumes that one parent will "win" the children and the majority of the property. The "loser" suddenly becomes a weekend visitor to his or her children, and often pays unreasonable levels of child support. With such high stakes, conflict is encouraged. Even though we theoretically have a "no fault" system, judges have to find in favour of someone, and that someone is typically the one who most successfully assassinates the character of the other parent. Alternative methods of dispute resolution do exist, but as long as the adversarial option exists alternatives will not be used to their full benefit.

Fact: Although the courts' prime focus is meant to be the "best interests of the child", there is a continuing trend to equate the best interests of the child with that of the parents, most usually the mother. The logic is: if mum's unhappy, the kids will not be happy. Obviously, there is some truth to this, for example if the mother is subjected to violence. However, the principle is typically broadened to the extent that the wishes of the mother take priority over needs of the children, such as a close relationship with the father. Tragically, obsession with making life comfortable for the parents has perpetuated the "usual arrangement" of one-parent custody with one-weekend-a-fortnight contact with the other parent. We need to make shared parenting the presumed arrangement post-separation, with sole custody being the last resort only if it is clear that joint parenting cannot work. The desire of the mother to be rid of the father should not take precedence over the child's needs.

Fact: One of the major obstacles to making shared parenting possible is the current obsession with the non-directive, neutral stance taken by most counselors and mediators. Couples seeking counseling are asked "what do you intend for the children?", and if they say that the children will live with one parent, the counselor will take that as a given. It is generally considered unethical for the counselor to make alternative suggestions - to be "directive". In many cases, parents assume that one of them will "have" the children, as if this is normal and desirable. To make matters worse, this view is often secretly shared by the counselor as well. Unless there are reasons why shared parenting would not be possible, counselors should explain the benefits of shared parenting with their clients, and also explain the downside of being a sole custodian. If at all possible, they should help them arrive at an arrangement which shares the parenting as much as possible.

Fact: If a custody dispute comes to court, one of the considerations often cited by the judge is the "status quo". This is the notion that changes of established routine are harmful to children. For example, a common scenario is where the mother leaves the father, taking the children with her. By the time the father gets the matter to court, several months if not years have elapsed, and the judge will say that the children have become accustomed to living with the mother and not seeing the father, and following the doctrine of "status quo" changing the arrangements would not be in the best interests of the child. If that's the logic, I wonder how a father would fare in court applying for sole custody of his children if the mother were hit by a bus and in a coma for six months? I also marvel at how a judge can ignore years of "status quo" with both parents which existed prior to the separation.

Fact: Some fathers who are not emotionally close to their children do willingly lose contact with their children. Others give up because their occasional contact as a court-mandated visitor is too difficult or painful, for them and their children. Many fathers who lose contact with their children do so because of difficulties imposed by a hostile mother. A parent who has "won" the children is usually in conflict with the other parent, and has little motivation to maximise contact between the children and the other parent. Even though denial of contact is a breach of court orders, custodial parents are rarely penalised. It's time the courts recognised denial of parental contact as child abuse, and took a strong stand against the perpetrators.

Fact: The issue of child support is complex and emotive. Once again, the problem is magnified by the sole-custody preference of the courts; if parenting is shared equally, there can be little argument that costs should be shared equally. Disputes about child support are often reported in terms of an uncaring father not wanting to support his offspring. The reality, however, is that in many cases the level of child support demanded is not reasonable or affordable. The rules by which child support obligations are calculated have many problems, but the question most often asked is why should child support be calculated as a percentage of income, without a ceiling? Surely the cost of raising a child is fixed -- if the liable parent's income doubles, does it suddenly cost the custodial parent twice as much to raise a child?

Fact: I use the term "sexism" rather than "gender bias" because I believe that the courts do genuinely attempt to operate impartially; however sexist assumptions about mothers and fathers are so pervasive that gender bias often results. By sexist assumptions I mean stereotypical views such as mothers being natural nurturers, men being naturally violent. Old-fashioned notions about a woman's place being in the home and the father's role as breadwinner are still common throughout society, and judges, lawyers and even the litigants themselves often believe this deep down, although it's not fashionable to admit it.

When a man goes to court to fight for more than the usual "visitor" status, judges often wonder what his motives are. After all, for a mother to be distressed at losing her relationship with her children is understandable, but a father wanting to stay involved must have another agenda. The prevailing theory, taught to judges by gender-awareness training, is that fathers who protest at being cut out of their children's lives are bitter men who can't accept that the marriage is over and want to use the children to maintain control over the mother. Why, I wonder, do we not teach judges that mothers who deny fathers involvement with their children are not really interested in being a parent, but are just exercising power over the father?

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