THE WHY & WHAT of the Australian Family Law System

by Warwick Marsh

Speech given at the Lone Fathers Conference
Main Committee Room Parliament House, Canberra, – Embargo 10.30am

Thursday August 9th, 2007.



INTRODUCTION:

Warwick Marsh is the founder of the Fatherhood Foundation with his wife Alison. They have 5 children and have been married for 32 years. Warwick is on the board of a number of Non profit organisations and has been working in the community on a voluntary basis for 17 years. Warwick's background is as a musician and creative communicator/TV producer. He has produced over a dozen albums and over 20 TV shows. Warwick is also the Editor in Chief of Australia's longest running weekly electronic Ezine for Dads called Fathersonline which started in 2002.The fatherhood Foundation has produced Fathers day and Mothers day TV adds for national TV over the same period. In 2001 Warwick received a Centenary Medal from the Governor General for service in Musical leadership for young people and the Aboriginal community and his international Missions and aid work.

Ladies and gentlemen, distinguished guests.

Firstly today I would like to thank Barry Williams for the honour of speaking at the 2007 Lone Fathers Convention. I know of few men in Australia today who have fought so strongly and so consistently against the injustice of the Family Law Court and their associated entities. Who else in Australia has fought for fathers and the rights of a child to know his or her father for so long? We at the Fatherhood Foundation have only been involved in this struggle for the last five years but Barry Williams has been involved in this battle for the last 37 years. I don't know how he has done it but thank God for Barry Williams and thank God for the Lone Fathers Association of Australia. Where would we be without them? How many more children would be crying themselves to sleep tonight not knowing where their father was or not knowing if he cared? Thank God someone cares or we would not be here today.

Secondly I would like to honour and thank the many men in the father's movement who are here today to represent the families and children of Australia and those that have passed on like Lionel Richards from WA. Without your collective action, not much would have happened. It takes courage to step out of the crowd. It takes virtue to stand for the truth when everyone else seems content to go with the flow. Today I salute you and thank you on behalf of the children and families of Australia.

Thirdly I would like to thank Dr Robert Kelso, who is a senior lecturer in the Faculty of Business and Law at Central Queensland University, for his invaluable advice in preparation of this speech. Dr Pamela Henry & Natalie Gately who are both lecturers in law from Edith Cowan University deserve special recognition for their six groundbreaking studies proving the bias and injustice found in our family law court and child support agency.

The theme of this conference is the new Family Law amendments and the question is being asked, "Have they worked- and is this a turning point?" Before I endeavour to answer that question, can I suggest we first ask another question?

This question is, "Why has the Family Law system failed in the first place?"

Ed Cole, one of the fathers of the modern men's movement says, "The man who knows how, will always have a job, but the man who knows why, will always be his boss." Don't worry; I don't want to be your boss. We have enough of those in this place here today. I am just trying to understand the problem so that I can help to become part of the answer. To understand the problem we will have to go back in history. We have to understand how our laws were formed in the first place. They say that those who don't learn from history are condemned to make those same mistakes again.

Our laws in Australia today come from our great history of common law which has its roots in the Westminster system of government which comes from Great Britain. These laws in turn, can be traced back to 1066 to King Alfred the Great, who introduced the concept of law to England after a long period of anarchy called the Dark Ages. We don't know much about the Dark Ages except to understand that everyone did what was best for themselves. The main law of the day was; me, myself and I, and as a result not much progress was made, and not much history was written. Without law, civilization just spins its wheels. Justice is a pre-requisite for progress.

In 1066 King Alfred the Great introduced England to the hereto lost concept of the Ten Commandments found in the scriptures. You shall not kill, you shall not steal, you shall not lie or as Jesus so profoundly said in summing the Jewish Mosaic Law up, "Do unto others as you would have them do unto you!" It was then that England started to make progress and common law based on the scriptures became the law of England. It was out of this progress over several hundred years of bloody revolutions that Great Britain gave the world democracy. It came out of the furnace of affliction and was won at great cost in human life. Winston Churchill said of Democracy that it was the worst of systems but it was better than all the rest.

Democracy as it is practiced today is built on the Judeo Christian moral code as found in the scriptures. The code accepts that we live in a fallen world and that as a result we are prone to corruption. What is the saying that says, 'Power corrupts and absolute power corrupts absolutely'. That is why we have an intricate system of checks and balances between the legal system and the government which are based on our constitution. Australia's constitution, which was agreed upon by the people of Australia at Federation says, "Humbly relying on the blessings of Almighty God'. Henry Parkes, one of the founding fathers of federation said “That we are pre-eminently a Christian Nation & a Christian Commonwealth."

Australia's history is littered with such men and such pronouncements. Australia's constitution does not say humbly relying on the blessings of almighty Buddha or almighty Allah, but almighty God. Australia's legal system is based on British common law. British common law goes back to the Magna Carta, a copy of which is on display in the foyer of this parliament. Our modern legal system is based on some basic biblical concepts, those being: due process, procedural fairness and natural justice. Time precludes me from elaborating on these concepts right now. However, we understand these concepts in the following ways; equality, fairness, that you are innocent until proven guilty, that rules of evidence apply, that you have a right to be heard and to know the person(s) who may be accusing you and that decision makers are impartial. Our whole legal system and government comes from and is based on our belief system and our belief system is the precursor to our legal system, which is founded on the Judeo Christian ethic. What has this got to do with the injustice found in the current Family Law system? Let me explain

In 1975 the current Family Law Act was introduced into parliament by the late Justice Lionel Murphy. The overriding ambition of Justice Lionel Murphy was to remove any vestige of the Judeo Christian ethic from our national life. To radically reshape the social, judicial and political landscape by imposing state regulation on the most sacred of relationships that is, between parents and their children. The deleterious effects of the Family Law Act are to be seen everywhere around us. Two guiding principles of the Family Law Act were "no fault" and "the best interests of the child". Section 121 of the Act gave the court the privilege of operating behind a curtain of secrecy. The court operates on an inquisitorial system in which judges become active participants in the process. Most importantly, there is no jury. Thus, the judge is also the decision maker.

There is no doubt that Justice Lionel Murphy was successful in his goal to eradicate all our links with the Judeo Christian ethic in both law and society. The Family Law Court is a prime example of his success in that he successfully established a 'new court' that had absolutely no link to our Judeo Christian heritage found in common law.

1) In the no fault provision he eliminated the need to prove right and wrong.

2) In diminishing the need for evidence based procedures he eliminated the need to tell the truth because perjury was no longer pursued as a crime within the jurisdiction.

3) He eliminated the right to trial by jury; thereby reducing the accountability of the court to the common people and in doing so made the judge a partisan actor.

4) He eliminated the long held biblical concept that a person is innocent until proven guilty

5) He eliminated the rights of parents to share in the care and company of their children - but claimed the judiciary's power to determine the "rights" of the child.

6) He eliminated the right of a child to be heard and have their wishes respected by the court.

7) He allowed third parties to initiate actions against parents.

In doing all of the above he removed the checks and balances found in common law and due process. In effect the Family Law Court effectively removed the concept of right and wrong and in doing so became its own worst enemy. Power corrupts and absolute power corrupts absolutely. The secrecy provision of S121 denies the public knowledge of what the court does on the pretext of "protecting privacy". Worse still, the only path to a High Court review of a decision is with the permission of the Family Court because the Family Law Court is not accountable to anyone other than itself who could question its judgement. What aggrieved individual could finance an appeal to the high court when that process was actively discouraged by the architect of the legislation himself?

And what of the architect of the legislation? Justice Lionel Murphy died in disgrace after being found guilty of perjury. That fact speaks for itself.

What are the other facts which need to be noted?

The "no fault" provision has been replaced by fault apportioned on the basis of a "claim" of domestic violence or "child abuse". I use the term claim because the court has never developed an investigation arm so the "claims" of violence and abuse are routinely left as just that - in the vast majority of cases they are not investigated or prosecuted.

The second issue is that the Family Court is the pre-eminent court for all Australian families and yet its sphere of activity is severely restricted to metropolitan and provincial cities. It has been absent in the rural and remote areas of Australia. The shocking child abuse and domestic violence in aboriginal communities in the Northern Territory has not registered on the Court's radar. The previous Chief Justice Nicholson desperately chased the Baktiari children as a cause celebre for his court but ignored the indigenous children and families which his Court was supposed to "protect".

The third issue is that the court rarely enforces its orders.

Finally, under the previous Chief Justice Nicholson, the Family Court pursued an obviously outdated vision of family life in Australia. The Court saw its mission as one of changing the social, political and economic landscape, to challenge what turned out to be a myth of oppressive male patriarchy. In its worst period the court accepted outcomes which routinely saw fathers reduced to marginal influences in the lives of their children. Many of our current social problems can be sheeted home to the loss of fatherhood.

In its worst period the Family Law Court operated on a similar basis to a Star Chamber.

What of the handmaiden of the Family Law Court, the Child Support Agency?

Part of the Family Court's mission was to redistribute assets from the marriage but this often left the majority of men with severely diminished opportunities to rebuild their businesses and their lives. An unintended outcome was that women with children became a burden on the public purse. In a famous television event, the then Prime Minister Bob Hawke cried and promised that "no child would live in poverty". Thus the CSA was born. Like the Family Court the Agency is largely immune to review and criticism. It does not have to account for its performance or its failures - that is, that payments to children are now less than they were before the Agency came into being; and its treatment of fathers (in excess of 90% of payers) the agency has left a legacy of suicide and economic ruin. The cost of collection outweighs the value to the public accounts. CSA "clients" consistently record the highest rates of unemployment 42%, bankruptcy, living below the poverty line and general social dysfunction. CSA payers are the new underclass of Australian Society.

Even more than the Family Court, the CSA is responsible for removing fathers from children's lives because control of children translates directly into $$$. And the decision by a CSA officer is impossible to challenge or have independently reviewed. It has learned it lessons well from the Family Court.

Why are these government bodies so fearful of the bond between a parent and child? Because this bond is a natural biological bond. This bond is ordained by God and this presents a serious challenge to those who would seek to remove God from our society.

You might be aware of the story of Alexander Solzhenitsyn who suffered terribly for many decades in the communist prison system. When he asked the question of the older men who suffered similar fates rotting in the Soviet Gulag Prison Camps in Siberia, the answer came back. "We have forgotten God. That's why all this has happened." When people look up to their father in heaven with hearts of love, freedom flourishes. Even atheists can enjoy that freedom because the scripture entreats us all to live lives of love - believers and unbelievers alike. In doing so we give each other the right to be treated equally and respectfully by both the laws and the parliament of the land.

So despite the best intentions of Lionel Murphy and the parliament of the day, the Family Law system of Australia, to quote my good friend John Stapleton from Dads on Air who spoke before me.

It is perfectly clear that the family law court has no intention of reforming its style of custody orders, it is impervious to outside criticism and is unfit organisation to be making decisions about the future of our children.

What then regarding the question, "Have the new amendments worked?"

The answer I believe is quite simple. No, they haven't because any reform has to deal with ingrained bias against the male of the species in a lop-sided system. One could argue that there has been some improvement, but at what cost. In talking to a friend of mine who practises family law, I was told that unfounded allegations of domestic violence against fathers has risen almost 50% over the last 12 months since the new amendments came in. Of course in the process the fathers in question are removed from their children because the fathers in question are guilty until proven innocent. The whole sorry process starts all over again and again children have to cry themselves to sleep because daddy doesn't live here anymore.

What is the answer?

We need a change of heart and a change of mindset. We have to spell out a new mindset. That requires new legislation that recognises our Judeo Christian Heritage as the basis for our common law and our democratic form of government as we know it. I have come to the conclusion you can't sew a new patch on an old garment. What we need is a new family law Act and a totally new system. The Child Support Agency is hopelessly inefficient and needs to be scrapped just like they have done in Great Britain and we have to give the authority back to the parents. Fathers have an obligation to provide for their children but society has an obligation to guarantee the rights of children to equal access to both parents. What is so radical about a presumption of equal parenting in the event of family breakdown? Marriage is a covenant and if one party betrays the other that should also be taken into account in a new system. We cannot do away with right and wrong simply because we want to pretend they don't exist. The real answer is for our society to find ways to support married couples in their most difficult times and not tout divorce as the ultimate cure-all for all marital difficulties we need a marriage renaissance and a renewal of the meaning of love. The Australian Institute for Family Studies has declared after thirty years of empirical research that divorce is generally bad for both children and adults alike. That is something I could have told them 40 years ago as a young child growing up in a broken home.

The change of law is the easy part. The change of heart is much harder. Our society must again learn the golden rule and practice it.

This is not something that can be forced and generally speaking, it is better taught than caught. It starts when we all admit that we all share part of the blame and that includes those gathered here in this room today.

This change begins when we practice forgiveness on each other, and I am sure we will not run out of opportunities to find fault with each other, especially with me anyway. Just ask my wife.

Let me finish by sharing with you what I believe could be the beginning of the answer-

A Short Course on Human Relations highlighting the importance and the power of words.

The six most important words - I admit I made a mistake

The five most important words - You did a good job

The four most important words - What is your opinion?

The three most important words - Would you mind

The two most important words - Thank You

The most important word - We

The least important word - I