THE SPOILS OF POST MARRIAGE WARFARE
14 November 2002
Writer: Kevin Glancy
It is hard to comprehend how any mother or father, regardless of the status of their marriage, would ever want to deprive each other of the pleasure and company of their own children. Let alone deny their own children the right to enjoy the equal and ongoing love and attention of the same two people who brought them into this world.
Yet when marriages fail it is exactly this kind of vindictive and selfish attitude that is often perpetrated by one parent on the other and it continues to be at the heart of one of Australia's most damaging social tragedies. None of us are immune and most of us know someone who has been hurt by the resulting trauma caused by that type of spiteful reaction to a failed relationship.
Sadly, all that was meaningful during the marriage, including joint parental responsibility for the children, is somehow lost in the emotion when the marriage fails. But rather than seek a fair and amicable resolution with the other parent over child custody, that parent will instead exact their revenge in court where, unfortunately, it is the children who will bear the brunt of that hostility. It is they who are ultimately deprived of the continuity of a loving relationship with both parents.
In our custodial legal system, where supposedly the interest of the child is paramount, priority is actually given to the division of joint marital assets. Only when that has been completed do the children then take their place in the firing line as parents begin the fight for their custody in a war, seemingly sanctioned by the one institution that is supposed to ensure that the interest of the child is protected.
The Family Law Court of Australia is that institution and at the very least it should act like a failsafe system to curtail the potential for injustice due to the actions of such a mean-spirited parent. At best, the Court should ensure that after marriage both mother and father are equally responsible for both the emotional and financial welfare of their children. In fact it appears that the Court does neither.
Instead, through what can only be described as an extraordinary abuse of natural justice the Court, in effect, pours kerosene on the emotional fires that burn when a marriage fails by allowing unsubstantiated claims made by the vindictive parent to not only remain unchallenged, but to influence outcomes. This tacit approval by the Court simply raises the level of existing conflict and promotes bitterness to new heights.
When parents enter the Family Law Court what in all fairness should be a simple logistical exercise to ensure that shared parenting continues after marriage is instead turned into an exercise in legal combat where there are winners and losers. Where children become nothing more than the spoils of after-marriage warfare. Where the combatants are encouraged by solicitors to commit acts of vicious slander. Where 'child experts' can and do manipulate children to say things they would not normally say. Where feminist women's support groups coach mothers and their children in what to say in court to ensure that fathers are completely eliminated from the parental equation. It's a savage, parasitical industry that should have no place in a Family Court process let alone be sanctioned by such a body. Unfortunately, for the most part, the Court does nothing to stop this evil manipulation of our legal system.
Furthermore, if you assume that this esteemed arm of the legal profession is concerned about the administration of true justice and equality then consider this. In around 90% of the cases heard by that Court mothers gain what is in all practicality sole custody of their children. Now whether in this supposed age of equality that kind of bias is appropriate is not the issue. It could be argued that primarily mothers should have custody, however the ammunition used to obtain that result with questionable allegations being accepted by the Court often represents an extreme denial of natural justice.
Allegations of sexual abuse, paedophilia and violence, more commonly made by mothers but also made by fathers, can be aired without challenge. Despite the absence of any proof these claims are accepted by the Court in the interim and are used to justify why access, usually for the father, is minimised or restricted. Eventually - and it could be well over a year later - when either the claim is dropped or the father somehow manages to prove his innocence, there is no penalty for making such a vexatious claim and in any event the damage is well and truly done.
Due to the unsubstantiated allegation access has already been limited and only allowed under supervision. The Department of Community Services even keeps a record of the allegation as if it were true. I've spoken to many fathers who have pleaded with the court to allow them the opportunity to defend such cruel accusations to no avail. The system denies them a voice and affidavits made by the claimant are accepted on face value without scrutiny.
So how does a father explain to his son or daughter that he can't be in the same room with them without the presence of a third person? What level of understanding does a child have as to why his or her father cannot show affection with a hug or a kiss? How does a father defend himself when the neighbour's kids tell his child that their own father is a paedophile? This is happening and it should be stated quite clearly that some fathers also make similar spiteful claims usually about the mother or her new partner.
But one thing is certain regardless of gender - if you are deemed to be the non-custodial parent by the Family Law Court your rights seem to be somewhat less than those enjoyed by the custodial parent. This second-class citizen status also transcends into the role you play at the hands of the Child Support Agency. Unfortunately, because in the majority of cases fathers lose their right to custody, the denial of equal rights and the subsequent frustration that builds when you're not allowed to even defend yourself can lead to a more extreme conclusion.
What would be our reaction if we discovered that in Australia three women between the ages of 25 and 44 committed suicide every day? Would we ignore it? Yet that is exactly the rate by which men in our country are killing themselves and according to the Australian Bureau of Statistics that figure is on the rise. While that shocking statistic cannot be totally attributed to problems of failed relationships or frustration due to the lack of access between fathers and their children, throw in a failed business and it is safe to assume that most of the reasons why mature men decide to shorten their lives are covered.
The real problem is that the Family Law Court does not in the first instance apply a shared parenting concept. This presumption of equality would go a long way to eliminating conflict as it would demand that a parent who selfishly wants to minimise access for the other would have to prove why that should be the case. Apart from compromise due to the practicality of living arrangements, children would then be the winners having the best chance possible of spending equal time with both parents after the marriage fails.
Vexatious claims would probably become a thing of the past if only the Court demanded that they be substantiated and imposed penalties should those claims prove to be false. Surely, such a concept of truth and equality is hard to argue against yet there are people in this country who, despite the current level of damage to families and in particular children, will do their utmost to resist any change to the current ailing system, from left-wing politicians to members of the legal fraternity, from alternative life-style proponents to pro-feminist groups and supporters of affirmative action. Currently the law is on their side because the Family Law Court does not apply a shared parenting presumption nor does it ensure that the truth prevails, which is a common fault in all areas of our adversarial justice system.
Fortunately, there are a number of Liberal politicians who are prepared to fight for change and they should be applauded and encouraged in the face of such overwhelming forces of political correctness. Leading the charge is local Liberal Federal Member, Ken Ticehurst who, concerned about the terrible social damage inflicted on his own Dobell electorate, organized a panel discussion for Coalition Senators and Members in Parliament House last week with the support of Senator Jeannie Ferris.
The discussion concept was designed to allow two non-custodial fathers and one non-custodial mother along with Michael Green QC and Sue Price, Co-director of the Men's Rights Agency, to put their own cases and views before the panel. When I spoke to Ken Ticehurst following the meeting he was particularly pleased that around 25 Senators and Members had attended the meeting, while others had apologised for not being able to attend due to their own busy schedules.
"I think the huge turn-out suggests that many politicians are concerned about the issue and perhaps at long last we can work towards some much-needed change. On the evidence presented by the non-custodial parents it is obvious that the children suffer most and the custodial system is lacking in fairness and objectivity. All too often children are denied sufficient access to either their mother or father and in the majority of cases that go before the court it is the father who is lost in the equation without any real justification."
Mr Ticehurst went on to say that perhaps the term 'access' should be applied not as it is with regard to parental child contact but applied to a child's right to spend equal time with both their mother and father regardless of the status of the parent's marriage.
"Obviously, there are practical and logistical considerations but children should have equality of access to both parents and that should be the starting point in any court of law."
Those who presented their cases to the panel included a mother who had now lost custody of her children having being subjected to endless emotional and legal harassment by her former husband. He had constantly made false accusations including the claim that she had chronically abused and neglected her children, indulged in multiple affairs and was never home. He even accused her new husband of being a child abuser.
Of course none of this was ever proven to be true, yet in typical Family Law tradition she had borne the consequences of those allegations at great emotional and financial cost. At the hearing she spoke (name withheld) of how, "the most litigious party wins the day in court" and how "parents can and do blatantly perjure themselves in the Family Court without penalty." She also highlighted the fact that non-custodial parents have "few real rights" particularly where the Child Support Agency is concerned and how there is no accountability for money paid to the custodial parent. She also pointed out that such is the weight of payments that it is very difficult for non-custodial parents to re-establish themselves and it was easy to see how suicide could be an option.
Another non-custodial parent, Michael X, told of how, during a visit to his nine year old daughter's school on a Friday, her teacher reported that his daughter was being abused by her mother and, noticing signs of stress displayed by his daughter, Michael decided to take her home with him for the weekend. However, prior to doing so he sought advice from his solicitor, the police and the court. As there were no custodial court orders in place they all said that he was within his rights to take his daughter home but that he should inform the mother of their daughter's whereabouts. So he rang the mother and assured her that he would return their daughter on the Sunday.
One half hour following that call a warrant, instigated by the mother, was issued for his arrest. This was all achieved after 4pm on a Friday afternoon. Michael was later arrested for having "abducted his daughter" and included in the report were the words used by the mother, "I think he might sexually assault her."
Despite the complete lack of any history or proof of such sexual abuse, without any charges being laid and without ever being questioned by the police, Michael X can now only see his daughter under supervision for limited periods. Furthermore, the mother has spread the word around his neighbourhood where he has lived for many years that he is a paedophile. Is it any wonder that men keep killing themselves?
As Michael told me, "I just wish the police would charge me as I know I'm innocent but in the Family Law Court it is the allegation that 'sticks', they don't care whether you're innocent or guilty." Not once during many appearances in court has Michael ever been allowed to defend himself against these and other allegations - guilt is assumed.
Wayne B, another non-custodial parent who had been the primary care giver as far as his son was concerned during the marriage, explained how when the relationship had ended with his wife she would not allow him to see his son at all. She had constantly refused requests for access and had made various false allegations against him. He also spoke of the heartbreak of not being allowed to see his son and the huge cost incurred to obtain limited access through an extremely slow legal process.
Wayne was elated after the panel discussion saying, "I am extremely grateful for this opportunity to tell my side of the story, something I was never allowed to do in court and I applaud Ken Ticehurst for at least trying to do something about the terrible injustice inflicted by the Family Court process."
As a result of this meeting a group of Liberal politicians, headed by Ken and Senator Jeannie Ferris, are now devising a strategy to bring about much needed change to the Family Law Court system and in particular, to install the 'rebuttable presumption of 50/50 shared parenting'. This would then mean that both parents would have equal access to their children and therefore the starting point in any case before the Family Law Court would be joint custody and children could not be used as a tool for revenge.
There is no doubt that the extent of this post marriage warfare is far reaching and continues to be ignored by those blinkered social engineers who oversee a custodial legal system that continues to take an enormous emotional and financial toll on, not just non-custodial parents, but grandparents, uncles, aunts, brothers, sisters and even new partners.
Apart from the obvious unfairness, the system also has a negative effect on both custodial and non-custodial parents. Child support paying parents are often refused access to see their children at the times appointed by the court and there's little they can do about it. They also know that the more money they earn, the more they will have to pay in child support, so there is often little incentive to comply and many drop out of the workforce. It's believed that 41% of non-custodial parents listed with the CSA (Child Support Agency) are on the dole.
Liberal Minister, Larry Anthony, has made many attempts to make the CSA system fairer, but his efforts have been continually blocked by Labor and the Democrats in the Senate.
There is also no incentive for the custodial parent to allow greater access to the non-custodial parent because that would lead to a reduction in the child support payments that they are receiving. Again, a parent with custody receiving child support has little incentive to work often preferring instead to live off those payments, combined with other welfare benefits and the income of their new partner.
Many child support paying parents I have spoken to express their frustration and despair due to the fact that their former partners are able to start a new life, seemingly with their money, while they themselves have lost the family home to the same custodial parent in the divorce settlement and after paying CSA payments have little left to live on, unable to scrape up enough money for a mortgage, unable to re-start their lives. Why isn't there a 'receipt system' so that parents receiving child support are made accountable for that money to ensure that it is directly invested in the children?
It would be grossly unfair to suggest that all custodial parents are 'villains' but according to the many case studies that I have seen, there is no doubt that some of them are definitely better off financially than they were in marriage. While there is no crime in that achievement it is hardly fair when it is achieved largely at the expense of their former partners.
Let us all hope, if not simply for the sake of fairness and equality, then at least for the sake of our children, that on behalf of fathers and mothers everywhere, who are forced to fight for the right to be with their own children, who are suffocating under the weight of emotional and financial stress, that Ken Ticehurst succeeds where others have failed.