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February 10, 2016 by Robert Franklin, Esq, Member, National Board of Directors, National Parents Organization

Not long ago, Australian Senator John Madigan and six other senators signed a letter vowing to reform family courts there “root and branch.” This video is of Madigan apparently beginning that process. Here’s his press release on the matter.

The video is of Madigan questioning Family Court CEO, Richard Foster, in the hearing room of the Senate Legal and Constitutional Affairs Legislation Committee. It’s just 6 ½ minutes of Q & A, and the answers are both unsurprising and telling.

The gist of Madigan’s questions is whether family courts in Australia have any idea of what they’re doing with kids, with parents or how the children are faring under the orders issued by those courts. In a nutshell, the answer to each question is “no.”

Now, many of those answers were perfectly legitimate. Foster didn’t know and said so. Plus, more than one of Madigan’s questions clearly required someone to have conducted some form of research in order to have the information requested. Foster said that too, which was entirely appropriate.

But the overall message to Australians is this: family courts make orders regarding the best interests of children, but have no idea if their orders serve those interests or thwart them. The courts don’t know and don’t have any interest in knowing what happens after the courtroom door closes behind a newly divorced couple and their children.

And, by any stretch of the imagination, that’s damning information. Of course, if family court judges here in the States were to be asked the same questions they’d give the same answers. Every child custody case decided in the two countries is supposedly based on the best interests of the children, but judges have no information on how children fare after the order is signed.

I’ve said before, that they apparently have little or no information on what parenting arrangement serves children’s interests before issuing their orders. If they did, they’d more often issue equal parenting orders. But Madigan’s questions were a bit different. They inquired into whether the judges receive any feedback on how families fared post-divorce. The unsurprising answer is that they receive none.

In every other walk of life, thinking people understand that feedback is necessary to do a proper job of just about anything. None of us can simply function in the dark and expect ourselves to perform well. That’s why experience doing a particular job is one of the most important qualifications for employment doing that job. The experienced candidate has tried, failed, tried again and eventually succeeded. In so doing, he/she knows better how to do the job than the candidate who hasn’t undergone that learning process.

Remarkably, we seem to believe that family judges in some way know what to do without the least feedback about how parents and children respond to their orders. To say the least, that’s just not sensible and Madigan’s questions and Foster’s answers make it clear.

Again, Foster was correct when he said that the questions required research to answer and courts don’t have that research on which to rely. Fine. The obvious next step is to do that research if it hasn’t already been conducted, which of course much of it has. There are mountains of research on children’s well-being in different types of parenting arrangements, but astonishingly, Foster quite clearly knew of none of it. Has he read a word of the information on shared parenting? The Committee hearing was his opportunity to say so, and he didn’t.

When asked by Senator Madigan if the Family Court kept statistics on the impact of the court on children, Mr Foster said: “That’s more a research project. Judges have no report back about the impact of their orders. In terms whether it’s a positive or negative outcome, they would probably never know.”

Senator Madigan said he was shocked by Mr Foster’s answers.

“I recognise a court does not undertake research but in this case senior court executives were entirely unaware of any research available and what was worse, they didn’t seem to realise the need for it,” Senator Madigan said later.

“Any other branch of government would report on its effectiveness, efficiency and impact in an annual report. The Family Court has an enormous impact on Australian families – and specifically Australian children – yet it has no idea whether it is administering this duty fairly or efficiently. Frankly, I’m shocked.”

That’s right, “in terms of whether it’s a positive or negative outcome, they would probably never know.” This is how we decide children’s futures. The judge is almost certainly uneducated in the value of equal parenting to children. On the basis of that ignorance, he/she makes an order. That order is essentially guaranteed to require that the child see one parent substantially less than half the time and more like 20% of it. Then the judge never sees the parents or the children again, ensuring that he/she will have no feedback on how the order affected the family. It’s a perfect ignorance feedback loop.

But the ignorance doesn’t stop there. In answer to Madigan’s questions, Foster admitted that family courts have no data on how many kids have meaningful contact with both parents post-divorce. Likewise, they have no information on whether the orders they issue are adhered to by the parents. They simply do what they do, all the while telling the world that they’re acting in children’s interests, but without the slightest idea of whether they are or not.

As Madigan so cogently pointed out, any other branch of government would be required to report on what it does and, in order to do so, would keep statistics on it. Family courts could easily do so and reasonably cheaply too. Attorneys and pro se parents would simply fill out a form at the end of the case saying what the court’s order consisted of. That information would be entered into a searchable database.

As to the effects of court orders on children, whether court orders were being adhered to, etc., periodic surveys could be designed and conducted sampling parents, children and their experiences post-divorce.

All in all, those simple steps would provide lawmakers and the general public a much better idea of what courts are doing and whether it’s working in the best interests of children.

That seems sensible and straightforward enough. But no jurisdiction anywhere at any time has done it. Perhaps Australia will be the first.

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