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Family Law Exacerbates Fatherlessness

Family Law Exacerbates Fatherlessness

Friday 1st Jun 2001 Dr Muriel Newman Media Release -- Social Welfare

Fatherlessness, described as the major cause of many of society’s ills – child abuse, crime, drug addiction, suicide, educational failure, unemployment – is being exacerbated by our present family laws. Yet rather than tackling the problem, the government has paid lip service to it and swept it under the carpet.

In response to my calls for law changes to shared parenting that would help to turn around the problem of fatherlessness, the government instigated another review. In fact, during their term of office they have spent literally millions and millions of dollars on reviews, commissions of enquiry, advisory panels, official’s committees, discussion papers, and so on, often simply to give the appearance that they are taking an issue seriously.

The Guardianship Act Review now languishes on the Minister’s desk. As I understand it there are no specific plans to fundamentally change family law, although I suspect that there will eventually be some window dressing word-changes to make the Act ‘sound’ more child friendly. Meanwhile, in spite of the irrefutable evidence that our present family laws are damaging children as well as the social fabric of society, the government will sit on its hands.

Let me share with you a story that outlines some of the realities of our present family law system and then I will ask you to be the judge as to whether there is a need for change.

Brian is a truck driver. He is married to Wendy and has two children; Rebecca aged 5 and Daniel 7. Some months ago Brian arrived home from an overnight job to find his house empty and his family gone. That day the police came around and served him with an ex-parte protection order from his wife. That order essentially meant that he was no longer able to have any contact at all with his children. His wife had told the lawyer that although Brian had never been violent towards her or the children, she was concerned that he might become violent when he found her gone.

Brian sought the help of a lawyer. The end result was an $8,000 bill, a permanent protection order against him, a nine month period in which he wasn’t allowed to see his children at all, a court appearance which resulted in him having two hours of supervised access a fortnight, costing $50 a time, at a Barnardos residence, and compulsory attendance at a violence prevention course.

His parents who are in their eighties, could not see their grandchildren either, tried to talk to Wendy. For their efforts, they ended up with a trespass order against them.

Wendy was able to use legal aid in her legal fight against Brian. He used his retirement savings and then went into debt.

Once she and Brian are divorced Wendy will be the real winner - sole custody of the children, a secure income in the Domestic Purposes Benefit with a child support top-up, a cheap state house, and half of the value of the assets. Brian will be a loser, having to pay the full amount of child support yet only seeing his children for the equivalent of just over 2 days a year, as well as being heartbroken and broke.

The children will be the biggest losers, however, effectively having lost a dad, grandparents, uncles, aunts and cousins. Further, the nature of their family environment will put them into a high-risk category. Statistics tell us that a sole parent household headed by a single woman is the most dangerous family environment in which to raise children. Such children are 32 times more likely to be abused and 75 times more likely to be killed than if they were living in a family with their natural parents who were married.

That is not to say that individual parents fail to do their best, it is just that the statistics are overwhelming in saying that children are at risk in households headed by a sole mother, with no father around.

It has further been estimated that for every 10% increase in family breakdown there is a 17% increase in violent crime, with children from such single parent households being in danger of falling off the rails, experimenting with booze, sex, and drugs, dropping out of school, becoming involved initially in petty crime to pay for the drugs, eventually leading to serious violent crime.

In spite of New Zealanders up and down the country calling for a tougher approach to violent crime in the 1999 referendum, supported by 92% of the population, the government has ignored calls to get to the heart of the problem, to turn around the incentives in our laws that are causing the breakdown of the home and the family. In fact, the government has turned its back on a problem, which is clearly going to get worse, since if present trends continue, by the year 2010 three quarters of Maori and a half of non-Maori children will be living in families where there are no fathers.

Meanwhile, recent changes to family law have made the problem worse, by significantly contributing to increasing fatherlessness. The 1995 Domestic Violence Act, which replaced the 1982 Domestic Protection Act, broadened the definition of violence to include “psychological” abuse. This is in spite of there being no evidence to link psychological abuse to physical abuse.

In the last three years, some 28,755 applications for protection orders were made, covering 42,959 children. Because 89% of the orders were made ex-parte and less than 20% were defended, many of those children will only see their fathers for two hours a fortnight in a supervised setting. Some dads fight in the courts, while others simply walk away saying that it is impossible to maintain a proper relationship with their children under those circumstances.

The Domestic Violence Act changed the basic legal assumption that someone is ‘innocent until proven guilty’, and that guilt must be proven ‘beyond reasonable doubt’, to being guilty by accusation, leaving the accused to have to try to prove their innocence. In fact the burden of proof required to initiate a protection order is non-existent. It all effectively depends on whether the custodial parent ‘feels’ that they and their children will be unsafe.

The court now errs on the side of caution to such an extent that a series of insults can be treated the same as repeated, sustained beatings leading to hospitalisation. The result is that thousands of ordinary, loving fathers are prevented from having any meaningful relationship with their children, further exacerbating the growing problem of fatherlessness.

Sir Michael Hardie Boyes, our former Governor General expressed his concerns about fatherlessness in this way:

“Fatherless families are more likely to give rise to the risks of being abused, of being emotionally, even physically scarred; of dropping out of school; of becoming pregnant; of living on the streets; of being hooked on drugs or alcohol; of being caught up in gangs, in crime; of being unemployable; of having no ambition, no vision, no hope; at risk of handing down hopelessness to the next generation; at risk of suicide”.

I ask you to be the judge, as to whether there is an urgent need for family law reform. I believe the necessity for change is overwhelming and I would like to outline what I believe we need to do to turn the situation around.

Firstly, we need to ensure that when family breakdown does occur, children retain the full support of both their mother and their father. Replacing the present family law system, which gives preferential sole custody of children to mothers, with a shared parenting would go a long way towards ensuring such an outcome. Other countries that have legislated for shared parenting have seen that children do better.

The reality is that children need the love, protection and support of two parents. Our present family law, that awards sole custody, alienating the non-custodial parent and causing many to lose all effective contact with their children, is wrong.

I believe the Guardianship Act should be amended to introduce a presumption of Shared Parenting. My new private members’ bill, the Guardianship (Shared Parenting) Amendment Bill, which will be submitted into the next members’ ballot, seeks to ensure that in the event of separation, children have frequent and on-going contact with both their mother and their father, grandparents and extended family as well. Under shared parenting, both parents are equally responsible for the well-being of their children. That means neither one can take the child off the other, unless it can be proved that they are not fit to be a parent. Further, under my bill, any parent that is obstructive runs the risk of losing the right of access to the children.

Without the ability to fight for custody of the children, parents will be required to focus on their proper role - agreeing on what sorts of living arrangements and daily routines will be best for their child. Mediation services and parenting plans will help to guide the parents in devising the most beneficial arrangements. By removing the warfare out of what is already a difficult and stressful event for both parents and children, shared parenting seeks to keep the child’s rights to both a mother and a father sacrosanct, even after family breakdown has occurred.

Secondly, I would ensure that children have the protection of open justice in the unlikely event that custody and access cases were referred to a family court. Secrecy in that court is an anomaly that must be changed. In countries that have opened up their family court, acrimonious litigation was seen to decline reinforcing the view that justice is not done unless it is seen to be done. My Guardianship (Shared Parenting) Amendment Bill models the Australian legislation by providing for such openness.

Thirdly, the Domestic Violence Act needs to be amended introducing a more testing burden-of-proof provision for protection orders. If such orders are served ex-parte, it should be mandatory that a defended hearing be scheduled within 48 hours, in order that the evidence can undergo proper scrutiny by a judge.

Fourthly, I would return the DPB to its original role of supporting parents during the difficult period of separation by helping them find their feet in the workplace. All evidence shows that it is detrimental to children to live in a family where there is no role model of a parent who is working for a living. The DPB needs to be considered as a temporary benefit, which specifically provides support and assistance to sole parents as they move into paid work. Such assistance may include child-care help, as well as support to overcome the individual barriers that the parent faces to accepting paid employment. Further, with both parents in the workforce, the incentives for parents to co-operate under the provisions of shared parenting are greatly enhanced.

Finally, the present child support act is a vexed issue. Widely regarded as unfair, it was introduced to ensure that non-custodial parents accept their responsibility to contribute financially to the upbringing of their children. Under a shared parenting regime, any child support payments would be made to the family, not the IRD, although such an agency may be involved in collection. Countries that have introduced shared parenting have found that there is widespread compliance with child support requirements.

What I have outlined to you tonight are five key steps to change the present incentives in family law that promote family breakdown, parental alienation, and fatherlessness. ACT is committed to these policy initiatives and will be actively campaigning on them at the next election. In view of the National Party’s strong support of my shared parenting bill last year, there is an excellent chance that with an ACT-National Government after the next election, family law reform will be high on the agenda with shared parenting becoming the law.

Equally what we know absolutely conclusively is that under a Labour-Alliance-Green-New Zealand First Government, shared parenting will never see the light of day, and the need for family law reform to turn around the growing problem of fatherlessness and the associated social crisis, will be ignored.

For more information visit ACT online at http://www.act.org.nz or contact the ACT Parliamentary Office at act@parliament.govt.nz.

© Scoop Media

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