The Australian (Weekend Focus)

24 December 1999; p15 & p18

COURT OUT

One man's battle for his kids

More than a million Australian children will spend Christmas in a broken home. As the Government tries to improve family justice, "Mr X" tells of his personal voyage of despair."Don’t cry, you will lose your children for sure," your barrister says sternly; and inside all you can feel are waves of distress. For you are vulnerable through what you love the most – your children. Welcome to the Family Court of Australia. Behind the imposing facades of the courts lies the deepest hurt. Close to a million children now live away from their fathers. I was in the middle of an excruciating three days of being cross-examined in the Family Court of Australia, an experience that cost taxpayers many thousands of dollars. It had been an intensely difficult two-year journey getting here. I had done everything I could to protect the children, and recently everything I could to settle the matter. I had represented myself almost all the way through. I didn’t have money to pay people thousands of dollars a day to argue over my family situation. While I could not get legal representation, my ex was being funded through Legal Aid. She had an aggressive barrister, solicitor and legal assistant who used every destabilising tactic they could think of. None had met the children.

In all those days of cross-examination I was never asked about my relationship with the children or attitudes to parenting. Past relationships were referred to snidely as "sexual difficulties", things that happened 20 years ago flung in my face. I can’t pretend to have been the cleanest of skins throughout my life, but as I said in the court; "I might have a history, but I also have a present. I get up, I go to work, I pay my taxes and I have every right to expect that the mechanisms in this society which are supposed to protect children will also protect my children." I work as journalist but had never been a court reporter. I naively expected the system to work. It does not. I expected consistent honesty, accuracy and decency when it came to children. I found nothing of the kind. My former partner had never been the children’ primary carer. Those children grew up either with me, in care or at school. It was logical they should live with their dad.

After a period when relations in the household deteriorated into shouting abuse, she finally left on Fathers Day, 1997. On the advice of the police I approached the Family Court. It was a terrible time. The children were so distressed, their world was caving in. I got a pile of bewildering forms from the court and set to, calling on all the help I could. Finally the ex conceded, but then the mother-in-law got into the act, paying for the lawyer and making things a damn sight worse.

The first order I sought was for the children to have a separate legal representative through Legal Aid – mistake number one. I had no idea of the scandal attached to the legal representation of children. The initial orders, made by a female judge, had the children with me five days, four nights. These orders suited the children. They got to see their mum but had a stable place to live. Most of the people who have been helpful to me through all this have been women. Women, you see, know what other women can be like.  Mistake number two: at the insistence of the separate representative I agreed to a family report by a court-appointed psychiatrist. I found it biased and inaccurate. It is in the family reports that the alchemy of truth characteristic of the court occurs; where black can be turned into white, junkie mums into sober paragons of maternal virtue and men into violent sub-Neanderthals. It is here where the accusations of women, no matter how implausible, can be reported as fact.

The children settled in the months following the initial orders. All the time I was preparing for a full hearing, getting to work, looking after two children. The matter was in and out of court, each staging post a nightmare. The case passed through the pre-trial conference, legal complexities never explained. "Get yourself a lawyer." I negotiated all the complexities of the court, financial statements, affidavits, compliance checks. Like many men, I became something of a bush lawyer, read everything on what is now the country’s most controversial jurisdiction.

In the surreal world of the court administration there is not appreciation that single parents must both work and look after children. Issuing a subpoena, for instance, can only be done with the approval of a court registrar, and in the major jurisdictions in a narrow window when you can spend all morning or afternoon waiting to be seen. The only reason I managed was because I work 10 minutes away in a job with some flexibility.

The average lone litigant now spends 42 days preparing for trial. The family matters basket on my computer has 273 files in it; submissions, affidavits, solicitors’ letters, complaints. There are plenty of men who have spent more than $100,000 fighting for their children. The process is like climbing Mount Everest a dozen times in a state of emotional distress. During this time I was being harassed; "You will never see those children again." The police finally helped get an apprehended violence order against her. I remember her screaming in the police station foyer, the children with their fingers in their ears crying, the old cops smirking. It was the young women constables who were the best, who said it doesn’t matter who you are, you can’t behave like that. Though the academic research shows that when it comes to domestic violence both genders are equally guilty, try as a man ringing up a government-funded domestic violence help line.

The specialist report was released on the working day before the initial trial date. I couldn’t believe the spin. I wrote saying while I objected to a $3000 report that didn’t get basic things like ages correct, mirrored the negative experiences of others, misquoted me and was delivered at the last minute, I could agree to shared parenting as recommended. Without legal advice, I was stitched up. The children were split almost exactly 50/50 in an alternating pattern that was difficult for two children barely six and seven. Orders that were working well for the children were disrupted. I had no idea signing the orders would open me up to financial claims. The ex was ordered to take drug tests.

Three months later I took her back to court. She hadn’t done a single test and was keeping the children in an industrial warehouse. The court repeatedly over ruled the children’ solicitor, who said she would have serious concerns if the children were to stay with their mother at this time. Three months later I asked for an expedited review by the "specialist". Although the mother’s compliance with court orders to do drug tests peaked at 50 per cent, the specialist complimented her on her recovery and repeated her accusations as if they were fact. She claimed, for example, that I was writing four letters a week calling her a "using junkie prostitute". The specialist condemned this behaviour, yet no such letters existed. The specialist decreed that because I had called the police over her harassment I was threatening her parenting ability, and if I continued to report her to he authorities that my time with the children should be further reduced.

Although I work as a journalist the report decreed I was unable to express myself. I complained about this behaviour to the attorney-general, which got me nowhere. To my horror I discovered that I could not back out, that she had the right to run her response. Attempts to settle failed. Armed with a totally dishonest report the ex was determined to take the case all the way to judgment.

Although at the compliance check the court ordered the separate representative to be maintained, days before trial representation of the children ceased and Legal Aid began funding the mother, at a likely cost of $50,000. In other words the Government saw fit to spend this sort of money on someone who had never complied with a single court order, but not on the children. And certainly not on me.  Day after upset day I was sent home from work in tears. I took time off, issued 26 subpoenas, pulled all the evidence together – hours of taped abuse, diary entries, photographs from the day the children were born. It was a well-documented case, I was a journalist after all. I filed this mountain of material with minutes to spare. Photocopying alone cost hundreds of dollars.

His Honour was elaborately courteous throughout the hearing. All my witnesses were professional, told the truth, acted with decency. I found hers were a dishonest shemozzle. In the end all my efforts were to no avail. Three months later, immediately after Fathers Day, the judgment was handed down; two years to the day from when she left. My time with the children was to be progressively decreased over the next three years. I went home to a house still full of banners from the children: "We Love You Dad", "You’re the Best Dad". The judgment did not get my age or the hearing date correct, falsely claimed that I had an AVO against me and that the mother was the primary carer. The judgment ignored four days of evidence and regurgitated the report of a "specialist" who had never been cross-examined because I didn’t have $1500 to pay for his court appearance. It was as if the trial had never happened. I had seen the specialist with the children for perhaps six minutes. The judge went out of his way to say how helpful the reports were. But I knew they were patently biased and inaccurate.

My children are being progressively displaced from a house in s suburban street into a flat on a busy road near a methadone clinic and needle exchange. This is one man’s story, but I am aware now of too many cases to think mine was unique. I hear every day of courts ordering children back into the hands of violent, abusive, drunken, drug-addicted mothers when there’s a perfectly good home for them with their fathers, of men being stitched up by biased and inaccurate reports. I hear the grief of men falsely accused of sexually abusing children, of being violent and neglectful fathers when nothing of the sort is true; of their outrage at an industry thriving on false claims, of a system which leaves them impoverished and their children’s lives wrecked. Despite almost two decades as a journalist and a comparatively colourful life, I have never met a more dishonest group of people than some of those I encountered.

After two years in the Family Court I have formed the view, as they would say, that almost any alternative would be better than the present disastrous, damaging system. I have formed the view that shared parenting agreements should be mandatory except in exceptional circumstances, that the Family Court should be abolished and its useful functions transferred back to local or district courts where proper rules of evidence apply. Or that the tribunal system touted by a number of groups should be examined. I have formed the view that no one could pass through the Family Court of Australia and retain any respect for the legal profession or our country’s institutions; that funding of custody battles is an abuse of public funds; that the legal representation of children is a national disgrace; that a coterie of psychiatrists, psychologists and counsellors relied on by the Family Court and social welfare departments are deliberately providing false accusations and misinformation against men. I have formed the view that like any institution neither transparent nor accountable, the culture of the Family Court is corrupt; that ideology has replaced decency and the ones suffering the most are children, mine and many others.

Points of Note

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In Australia Today:

About 70 per cent of more than 2000 male suicides each year are caused by relationship break-up, with nine male suicides to every female suicide.

About 80 per cent of the Commonwealth Legal Aid budget is spent on family law, the bulk going to private lawyers for women.

About 40 per cent of Legal Aid cases are funded against an unrepresented party.

More than 1 million children are in single-parent homes, with only 3 per cent in shared care arrangements and 97 per cent in sole care arrangements.

About 73 per cent of children living with one parent see their other natural parent less than once a week.

About 30 per cent see their other parent once a year or less.

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In the Family Court

The average lone litigant spends 42 days preparing for trial.

The costs in a contested action can range from $10,000 to $100,000 plus for each party.

The median annual income of people in the court is $25,000 to $30,000. Some spend two to three years their annual income on legal fees.

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Costs of family breakdown

About $1.3 billion in private maintenance payments are channelled through the Child Support Agency annually.

About 91 per cent of payers are men.

Government parenting payments for single parents total $3,3 billion.

In 49 per cent of one-parent families, the parent is jobless.