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August 2nd, 2012 by Robert Franklin, Esq.
With anti-father articles coming fast and furiously, from many sources and countries, it’s refreshing to come across a piece like this in the MSM (Herald Sun, 7/31/12).  The Australian news media take a back seat to no one when it comes to vilifying fathers and in the process misrepresenting the science on the many benefits of fathers to children.  So although the writer, Susie O’Brien, is clearly not the last word on Australian family law, her heart’s in the right place and she’s not afraid to call shared parenting “the gold standard we should work towards.”  How often do you read that in the MSM?

In 2006, the Howard government passed very modest legislation that encouraged courts to give fathers a real role in their children’s lives post-divorce.  There was nothing at all radical about the new law, but the ink on it was barely dry when the anti-father forces swung into action claiming that abusive fathers were getting custody.  That was never true and they began their claims before there was any reliable data at all on the law’s effects, but so craven are politicians that the Australian parliament rolled over virtually as one to show their obeisance to the anti-father rhetoric.  In fact, later studies by the Attorney General’s office found that divorcing parents liked the new law and that its mediation provisions seemed to be working well.  But that didn’t stop yet more changes a mere four years after the original ones.  And to no one’s surprise, they turned out to include a dramatic expansion of the meaning of domestic abuse and the removal of any and all sanctions for false allegations of same.  In short, they gave mothers a green light to make any claims they wish against fathers in order to cut the dad out of his children’s lives.

But that seems to be insufficient to the needs of those who believe, against all the social science, that children don’t need their dads.

But there is growing pressure on the federal Attorney-General to remove the shared parenting presumption in the Family Court.

Last week Monash University professor Nahum Mushin, who sat on the Family Court for 21 years, questioned the notion, saying it had “created a false expectation in the minds of some parents”.

Speaking at the Australian Institute of Family Studies Conference in Melbourne, Prof Mushin said it limited the court’s discretion too much and “should be a general policy rather than a default position”.

He said it should be more about the quality of time rather than the quantity…

University of Sydney professor Patrick Parkinson also questioned the presumption of shared parenting, saying it “only works if both parents live closely together and there is co-operation”.

I’ve said it before; opponents of shared parenting legislation have an obligation to explain to the rest of us why they think that the current system is so good.  After all, the two august personages quoted above surely know the facts about fatherlessness in Australia and elsewhere in the world.  They also surely know that, in 90% of cases, it’s Mom who gets custody of the children.  And they surely also know that, even the meager access doled out to fathers is routinely thwarted by custodial mothers and that they do so with complete impunity.  The two professors certainly know that, alone among all courts in the country and alone among all the issues faced by those courts, family courts refuse to enforce their own visitation orders.  Indeed, according to well-reputed historian John Hirst, it’s a matter of long-standing precedent that only visitation orders are not enforced by the courts’ inherent powers of contempt.  And finally, they surely know that about a third of children of divorce have no contact with their fathers.

In short, they know the problems of fatherlessness and they know the significant role played by family courts in causing and perpetuating those problems.  So why is all that OK with them?  Astonishingly, they never say.  And it’s not just Parkinson and Mushin who never say; no one ever does.  I’ve been reading and writing about family law and family court reform since 1998 and I can’t recall ever seeing a single person write “the status quo is acceptable and here’s why.”

The reason of course is that the status quo is not acceptable and no one dares claim it is.  But all these people ever do is try to defeat every single move, regardless of how trivial, to improve children’s access to their fathers.

So now it’s an attack on shared parenting.  When Parkinson says it “only works if both parents live closely together and there is co-operation,” the real-world translation of that is “if Mom wants to move away, she can deprive Dad of his parental rights” and “if Mom wants to cause Dad enough grief, she can deprive him of his parental rights.”  Judges of course see that every day, whether professors do or not.  When professor Mushin says shared parenting “should be a general policy rather than a default position,” the real world translation is “in no individual case does any judge ever have to abide by a ‘general policy.””

What these objections to shared parenting amount to are a brief for the status quo.  So I would like to ask the honorable professors two questions.  First, “is there anything about the current system of custody, child support and access that you would change if you could?”  If the Australian government were one day to say to them “just tell us what to do about those areas of law and we’ll do it,” what, if anything, would they recommend?  As far as I can tell, the two professors, like the less circumspect members of the anti-father crowd, would say “the system’s working well, thank you.”  Oh, they might go for a little nip here or a tuck there, but nothing significant, nothing that would tell the children of Australia that they understand their need for their fathers.

My second question would be this: “Since you don’t like shared parenting, I suggest we simply reverse parental roles in family courts.  For, say, 30 years, we’ll treat mothers the way we’ve treated fathers and fathers the way we’ve treated mothers.  In 90% of custody cases, we’ll give sole custody to fathers and force mothers to pay child support that’s then enforced by the most draconian measures.  We’ll issue orders allowing mothers to see their children for two days out of every two weeks, but if Dad decides not to allow her access, we won’t lift a finger to help Mom.  What do you think?  Do you still think shared custody is such a bad idea?”

I’d be interested to know their answers.  Along with everything else, it’s always struck me that those opposed to children having a relationship with their fathers rely on the ever-present gender bias of family courts.  My guess is that they only believe that shared parenting is a bad idea because the current situation benefits mothers at the expense of fathers and children.  Remove that ever-present bias and I suspect they’d scream bloody murder.

To her credit, Susie O’Brien doesn’t buy what they’re selling.

And, in fact, many men’s advocates have been disappointed that the reality of shared care hasn’t always matched the ideal.

But I would argue it’s an important position for us to have as a society.

For too long mothers have had automatic right to sole custody while loving, good fathers have had to fight tooth and nail to get more than every second weekend with their own kids.

Where it is logistically possible and good for the kids, shared parenting should always be the standard to which courts and counsellors aspire.

Children have a right to be brought up by both parents. This means dads should have the same rights as mums.

It is an absolute tragedy that one in four kids from divorced and separated families sees one parent less than once a year, or never…

Shared custody should always be in the best interests of the children and not just the parents. This shouldn’t mean, however, that dads don’t have any rights at all…

But shared parenting is still the gold standard we should work towards.

The exact way to accomplish maximizing both parent’s time with their kids may not be easy to figure out.  No law will be a perfect fit for everyone.  But there are a few things of which we should never lose sight.  One of those is the fact that children need both parents involved in their lives to the greatest extent possible.  You don’t accomplish that by tossing the very idea of shared parenting over the side.  To her credit, Susie O’Brien gets it.

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