Family Court - two years of anguish and escalation

(Reproduced here with permission of the Author. This article was also published on Online Opinion.)

Family Court - two years of anguish and escalation
by Geoff Holland

After my separation and subsequent divorce, the Family Court process took two years of anguish, during which the relationship between myself and my ex-partner degenerated from a time when we would still hug each other, make jokes and offer cups of tea, to one of bitter arguments and physical violence. I believe the Family Court system and Family Law industry is partly responsible for this escalation of conflict.

“My solicitor says I can get 70 per cent and I want 70 per cent”

Before my ex-partner had initiated the Family Court process I organised to meet with her at the Dispute Resolution Centre. By her own account, she had contributed 45 per cent of the assets (I maintained it was 24 per cent). One of the mediators put it to her, “So you would be happy with 45 per cent?” My ex-partner replied, “No, my solicitor says I can get 70 per cent and I want 70 per cent”.

In the Family Court process there were three “conciliation conferences”. My ex-partner’s solicitor undermined chances to reach agreement at two of these three sessions. In the first session, my position was that my ex-partner had contributed 24 per cent of the assets. My ex-partner’s solicitor wanted 70 per cent. In the spirit of negotiation I offered 35 per cent (and was prepared to go to 50 per cent). The solicitor facetiously responded, “OK, we want 90 per cent” - thus swiftly and effectively ending any prospect of a negotiated settlement.

(The solicitor asked me straight after that meeting what my bottom line was and I told him 50 per cent.)

My ex-partner ended up winning 68 per cent of the assets at the Final Hearing; however 40 per cent of this, it is estimated, was spent on her solicitor's and barrister's fees, implying that she received about 41 per cent of the assets.

Interim Orders

At the third conciliation conference I asked the Deputy Registrar why I was not able to see my son on any weekends. The Deputy Registrar put this question to my ex-partner. She responded, “Because I work and weekends are the only time I can see him”. “But don't you also have Thursdays off?” he asked her. My ex-partner replied, “Yes, but that's when I have to do my shopping”. Irritated with her response, the Deputy Registrar slammed his book closed and turned to me saying, “you should seek Interim Orders”.

This was the first I had heard of “Interim Orders”.

So I spent many hours preparing an application for Interim Orders. When the matter was finally heard the judge ruled, “Because the Final Hearing is imminent, we will not change the current pattern of contact”. The judge described the Final Hearing as “imminent” even though he could not set a date. The Final Hearing occurred 12 months later.

Father “inexperienced”

During the Final Hearing the judge made some bizarre statements. For example, he stated that I was inexperienced as a father - even though I had actively brought up a 14-year-old daughter (positive and thriving according to the Family Report). In fact, I had more experience than the mother.

“Global assessment” in the kangaroo court

In the property settlement the judge took into consideration grocery bills paid by the mother four years prior, and a scrappy and barely legible notebook of supposed expenses. He didn’t investigate an arithmetical mistake in her totals, and accepted as evidence a bank deposit slip which had been filled in but which had not been stamped or separated from the butt. He ignored over $5,000 received and spent by the mother in Family Tax Benefits, to which both parents were entitled. Because I hadn’t kept grocery bills from four years prior, it was assumed I hadn't bought any.

The judge did not take into consideration my ex-partner’s superannuation because it was concluded that, “it would be a long time before she would benefit from it”.

The judge awarded 68 per cent of assets to the mother. He said, “This is a global assessment and I am not required to, and will not provide a breakdown for this figure”. Not even a justification for this decision was given.

My ex-partner was advised by her solicitor 2 ½ years before the Final Hearing that she would most likely gain 70 per cent of the assets if she went to court. She won 68 per cent of the assets. An immense amount of time was spent by both parties producing documents demonstrating financial contributions to the relationship but much of the documentation was ignored. The judge made a “global assessment” which did not accord with the evidence. It seems that the final outcome was in fact a virtual foregone conclusion, and that this was a kangaroo court.

Allegations of sexual abuse

The affidavits of my ex-partner and her mother contained allegations of sexual abuse by me toward my son. Having such false allegations made against you is extremely distressing. In my case I was very lucky to be able to demonstrate they were false.

My ex-partner agreed, during my cross-examination of her, that her allegations were very serious. I then asked why she had not raised these serious matters during her interview with the child psychologist who was writing the family report. She replied (after much hesitation) that she didn’t have enough time. But the family report showed that the interview had lasted 1hr 45mins.

I would have pressured my ex-partner to admit that she had fabricated the allegations except I was concerned the judge might think I was bullying her (which could preclude Equal Residency) as it was already plain to everybody that she had.

The judge made no comment to my ex-partner for having committed what was in fact perjury.

“In the child’s best interests”

Even though the mother worked full-time and was on call some nights and weekends, and even though the father was available to care for the child any time and all the time, and even though the child had a sibling at the father's home, it was deemed in the child's best interest to locate the child with the mother. Here we see the double standard of the Family Court and the bias against fathers in action.

Awarding costs against the respondent

The judge ordered the respondent (i.e., me) to pay $5,000 towards the legal fees of the applicant. This was despite the fact that:

I had made written offers for settlement and my ex-partner had made none;
residency orders were closer to what I had sought than those my ex-partner had sought; and
the normal procedure is that respondents do not have to pay the legal fees of the applicant.
I rang up to find about appealing against these costs. I was told that I would need transcripts of the Final Hearing which would cost me about $3,000. I was also told by the Family Court in Brisbane that a board of Family Court judges would hear the appeal and that, “Appeals are rarely successful because the judge’s decision is usually discretionary, and other judges do not like to overturn discretionary decisions”.

“I expect by then you two will be able to sort things out yourselves”

In my Orders Sought I asked that pick-ups and drop-offs of the child be reciprocated - i.e., each parent do their own pick-ups such that drop-offs are eliminated. The judge didn't see this as a reasonable request and ordered that the father do all pick-ups and drop-offs.

I asked that the mother use the child's surname as described on his birth certificate (the father's surname) rather than changing it to her own, to avoid confusion as to which name our son would be listed under at school, with Medicare and so on. The judge suggested that this was one issue that in the new spirit of co-operation, the father and mother could resolve among themselves. One year later this issue has not been resolved.

Surely the court is there to make decisions when no agreement can be reached by the parties. An easy policy solution would be for boys to take the surname of their father and girls to take the surname of their mother.

The Family Report was based on meetings of the Family Court child psychologist with the mother, and then with the father. My 14-year-old daughter (from a previous relationship) was also required for an interview, though the child's maternal grandmother who was looking after my son most of the time while the mother was working, was not required to be interviewed.

The child psychologist sat in the corner of a small room observing and taking notes while my son and I “interacted”. Similarly this took place with the mother. This is such an unnatural situation in which to “objectively” observe “typical behaviour” between a child and a parent, and yet so much hangs in the balance with this half hour “observation”. One can easily walk along a plank located one metre above the ground, but suspend the same plank between two buildings 100m above the ground and the result is quite different.

Nevertheless, the interviews and observations went smoothly. In the Family Report, the child psychologist recommended a three-stage increase in contact with the father. She said to me following the release of the report, “I didn't go all the way to Equal Residency because I felt I'd intervened enough, and I thought that by the time he [our son] goes to school, you two will be able to sort things out for yourselves”. What a huge ill-founded assumption this was considering the mother was willing to fabricate sexual abuse allegations among other blatant untruths in her affidavits to minimise my contact with my son.

As with the whole Final Hearing, all the onus to demonstrate and achieve reconciliation was placed on me while the mother benefits from not co-operating.

I asked the child psychologist why the Family Court granted Equal Residency in so few cases. She said, “You have no idea of some of the fathers we have come through here”. “Are so many of them so terrible?” I asked. “Oh no, most of them are very good fathers,” she responded. “So why is Equal Residency granted in less than 5 per cent of cases?” I continued. The Family Court child psychologist did not respond. She looked at her notes, shuffled her papers and changed the subject.

The Final Orders

In his Contact Orders, the judge followed the recommendations of the Family Court child psychologist. He was only going to make orders until the beginning of 2007 which would have meant both the father (me) and the mother would be posturing for the next two years preparing for the next round in court. The judge had given me some excerpts from the Family Law Act to read during the lunch break. One part of the Act is a recommendation: When making orders, consider orders which minimise the need to return to court. When I pointed this out to the judge he seemed irritated. However, in his Final Orders he put in a fourth contact stage beginning in 2007 and continuing indefinitely.

I pointed out to the judge that while stages one to three were for progressively increasing contact, his stage four would reduce contact and that there was no apparent logic in this. The judge responded that when a child starts school, both parents have less time. I responded that even taking this into account, the child would have less percentage contact with the father. The judge replied irritably, “Well I'm not going to change it now!” Easy for him to dismiss, but his sloppy decisions can have a major impact on our lives and relationships for the next decade or more.

We were handed a copy of the Orders for perusal. My ex-partner’s solicitor approached me after about five minutes saying, “Well we're finished. Are you finished? We have to go back in.” He was pressuring me. However, I took my time reading over the Orders.

I noticed that the judge had deviated from the recommendations of the child psychologist by ordering pick up at 7.30pm rather than 7.30am. The judge, again irritable, remarked that that was just a “typo”. “Typo” it might have been, but had I not pointed it out at that moment it most likely would have become irrevocable.

Forget about Child Support

I believe one of the reasons my ex-partner wishes me to have minimal time with my son is simply as a punishment, an act of malice. I believe a further reason is that the more contact I have with my son, the less Child Support I am required to pay her. Worse, if we had Equal Residency, which I was seeking, my ex-partner may have to pay me Child Support (due to her higher income).

I do not wish to receive any Child Support from my ex-partner. I would like to sign a Parenting Agreement stating that if we had Equal Residency, neither of us would seek Child Support from the other. However, as my ex-partner knows, such a condition would not be recognised by the Family Court. So I have no way to guarantee to my ex-partner that I would not claim Child Support, and thereby pave the way for an agreement on Equal Residency.

The Family Court system is fatally flawed

The Family Court system and industry generates and amplifies conflict. This fact is extremely serious because one of the most important factors in a child’s life following family separation is some sort of reconciliation and harmony between the parents to heal the huge rift of divided loyalties and love the child has for both parents. The current system aggravates an already strained relationship to the point where there may never be any sort of reconciliation between the parents, leaving many children emotionally scarred for life.

The new Family Relationship Centres (FRCs) are an admission that the current highly formal, expensive and adversarial system is wrong. But the FRCs will not work because the Family Court’s quirky and gender-biased policies have not changed. (Mothers will simply pass through the FRCs and on to the Family Court).

I believe there are at least several hundred people - mostly men - who suicide each year following divorce, as well an alarming number of murder-suicides involving children. I believe the current Family Court system is partially responsible for many of these deaths. The Family Court system is fatally flawed. We need real change.