Article: Winners and Losers: The Father factor in Australian Child Custody Law
In a scholarly article especially critical of the role of men’s groups, Dr Colin James provides historical context to the major changes that have occurred in the Family Law Act and its predecessors concerning children and how fathers are perceived.
After 1975 judges of the Family Court of Australia exercised the most unstructured discretion of any system in the Western world, even though the Family Law Act imposed guidelines for applying the welfare principle in custody matters.
That helps to explain why, during the 1990s, judges showed considerable diversity of opinion on the importance of gender roles in parenting decisions. Although Australian research had linked egalitarian beliefs with higher educational attainment, Family Court decisions showed that judges were as capable of gender bias as other community members.
The most significant male reaction to the 1975 reforms was the increase in domestic violence. Disputes over child custody aggravated the risk to women from violence by their male partners who in many cases exploited access arrangements to further threaten or assault the mother. Women’s refuges first appeared in the early 1970s and by 1979 there were 100 government funded refuges and 265 by 1990.
Male violence extended to judges the Family Court itself. In 1980, Justice David Opas was shot dead, and in 1984 a bomb killed Pearl Watson, wife of Justice Ray Watson. Also in 1984, Justice Richard Gee was seriously injured by a bomb placed at his homein a Sydney suburb and other bombs exploded in Family Court’s buildings.
These bombings and shootings appeared to be sophisticated acts of terrorism and most of the crimes were never resolved. Despite the intensity of opposition by some groups the government proceeded with reforms and passed the Child Support (Assessment) Act 1989 (Cth), which made it more difficult for men to avoid their financial obligations towards their children in the custody of the mother. Rates of domestic violence by men towards their wives increased and research confirmed that the most dangerous times were when women attempted to leave their male partners, sought legal advice about divorce or commenced legal proceedings.No one in government or the judiciary anticipated such a violent reaction by some men to the reforms.
Soon after the Family Court Act came into effect in 1976 theFamily Court refused to consider a man’s violence towards his wife relevant in custody cases unless it directly affected the children.141By the 1990s and after research by the Australian Institute of Criminology and an inquiry by a Joint Select Committee there was a significant shift in how judges interpreted the indirect effects of domestic violence on children.
In the 1994 case of JG and BG involving the custody of two small children the husband’s counsel argued that the allegations against his client of domestic violence towards the wife were inadmissible and irrelevant.143Chisholm J seized the opportunity to acknowledge research on domestic violence, the AustralianLaw Reform Commission’s report “Equality Before the Law” (1994) and earlier cases in Australia and other jurisdictions. He concluded that violence was relevant to thewelfare of children whether or not it was directed at them, it was committed in theirpresence or in some other way affected the parenting of the custodial parent.
It was the legislators however that most fully acquiesced to the demands of the reactionary men’s groups in the 1990s.
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