Is The Court To Blame


Separated Dads
Author Lawrie Moloney

Author, lecturer and former director of counselling at the Family Court, Lawrie Moloney examines recent changes to the Family Law Act on post-separation parenting arrangements and asks to what extent is the Family Court responsible for fathers losing contact with their children. (An edited version of this article appeared in the Melbourne Age on October 17th 1996.)
Some time ago, I took my eleven year old to play his first game of indoor soccer. At half time, the supporting mothers looked to me and the only other father in attendance, to provide some coaching tips to our gallant sons. Fortunately for me – who couldn't detect an off-side if it jumped up and bit him – the other father was able to oblige.

On the way home, I reflected on how our society is saturated with icons depicting stereotypical roles for mothers and fathers. That week, for example, we had received the roster for Jeremy's dinghy sailing season. I couldn't understand why there were two rosters - until I realised that one was for the mothers to do the canteen, while the other was for the fathers to drive the rescue boats.

Jeremy – a true child of the nineties – responded to my musings. "What about the time," he reminded me, "you offered to do some typing for the school and got that note thanking all the mothers for their support. And what about those safety signs on the backs of buses that always show mothers holding the children's hands. And what about ..." Jeremy was really warming up to the subject until he remembered he was hungry and asked about dinner.

Whenever the topic of how to share parenting is aired on programs such as the ABC's 'Life Matters' we are told that the presenters are "deluged with letters". Despite the continuing societal pressure to conform to type, this juxtaposition of gender and parenting is always a hot topic. And nowhere are passions on this question more strongly aroused, than when the issue is around parenting arrangements following separation. Consider the headlines announcing Bettina Arndt's recent Age articles on the subject - ‘Fathers Mistreated’, ‘Access Denied'.

Although the Family Court delivers formal judgements in less than 5% of contested cases, its pronouncements about post-separation parenting arrangements have trickle-down effects which modify the advice lawyers give to their clients and influence the outcome of less formal processes such as mediation. At the same time, the Family Court always presents a soft target for those who choose to report on selected aspects of particular cases. A major problem with this form of reporting is that the methodology can be (and is) equally used to buttress arguments in support of judicial discrimination against men, women, gays, lesbians, even children.

In June 1996, the Family Court abandoned some of its old rubric, which included the proprietorial language of custody and access, and replaced it with a language emphasising ongoing shared responsibility. Under the pre-June regime, there was substantial evidence that men tended to be discouraged from applying for custody; that they were in any case 'successful' in their applications significantly less often that women; and that two or three years after separation, many fathers had lost significant contact with their children. To what extent is the Family Court responsible for this state of affairs? 

Family Courts here and elsewhere, attempt both to reflect and comment upon societal norms. In a pluralistic society, it is inevitable that such Courts will be simultaneously accused of responding in too radical and too conservative a manner. In contemporary society, for example, the Family Court must in some way respond to the reality that women continue to be strongly socialised into being responsible for caring and nurturing (watch any of the toy advertisements on Saturday morning television), whilst men attend to things external.  

When stressed families come apart, how should the ongoing parenting be arranged? Some women see little value in ongoing contact - "He was never there when we were married!" - and actively or passively discourage the children from continuing the relationship. At the same time, increasingly vocal groups of men are highly critical of the Family Court for, as they see it, treating them as second class parents and for inadequately enforcing even the relatively modest 'access' arrangements awarded in their favour.

Family Court judges have wide discretionary powers in contested cases about children. They cannot but bring to their judgements their own overt and covert value systems. Perhaps it is not surprising that those values often seem to echo the domestic realities noted by numerous researchers - that families are places in which many fathers are largely absent. "Surely," some judgements imply "'access' for one of two days per fortnight is sufficient!" On the other hand, a systematic reading of the published judgements on post-separation parenting disputes, whilst not always edifying, reveals many examples of great judicial insight and compassion. Indeed at times, judgements contain near heroic attempts to solve the apparently insoluble dispute in which both parents are asking for a major share of the parenting.

Like society itself, the Family Court is an evolving institution. It should not be forgotten that it was the Family Law Council, chaired by a Judge of the Family Court, which made recommendations to the Attorney General which eventually lead to dispensing with the language of custody and access and which endorsed the concept of ongoing shared responsibility after separation. The Family Law Council's Report was written in the research based knowledge that in two parent families, women do generally continue to provide most of the day to day care for their children. It was, in that sense, quite consciously 'pushing the boundaries'. It has been praised and criticised for so doing.

Julian Disney has described the uneven distribution of parental and nurturing responsibilities as another glass ceiling for women (to say nothing of its ongoing socialising effect on children and the restrictions it also places on men). How men and women co-operate in these areas in ways which are fair and personally fulfilling is, in my view, a core social issue of our time. The Family Court provides one window through which we can observe our progress. I support a greater sharing of post-separation parental responsibility between men and women. But I am equally aware that the Court's deliberations are only a part of the bigger picture to which we contribute.

Lawrie Moloney is a senior lecturer teaching Counselling Psychology in the Graduate School of Education at La Trobe University. He is married to Banu and is the father of two beautiful boys, aged 11 and 17. Having trained as a clinical psychologist and a family therapist, Lawrie joined the Family Court in 1975. He worked as counsellor until mid 1977 and was Director of Court Counselling until 1985. He was a student counsellor at Swinburne for three years before joining La Trobe. Lawrie has published more than 50 articles and chapters on issues related to family policy and is a co-author of two recent major evaluative studies of family mediation. He is a member of the editorial board of the Australian Journal of Family Law. Lawrie regards his most important contribution to the issue of shared parenting as his work on the Family Law Council committee which produced the report, Patterns of Parenting after Separation. The recommendations of this report concerning a change from the proprietorial language of custody and access and emphasis on ongoing parental responsibility, have been incorporated into amendments to the Family Law Act.

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