Opinion & Commentary
Trying harder to keep families together
A pat on the back for John Howard, whose government has now published its plans for a long overdue reform of family law in Australia .
The $400 million of taxpayers' money it took to come up with these ideas looks a bit excessive, but at least the reforms should help make divorce less stressful.
And with a bit more thought, they might even reduce the number of family break-ups.
The new Family Relationship Centres are the most significant reform proposal.
The idea is to move towards a non-adversarial, child-focused system for resolving disputes when couples separate.
If these centres help couples agree on child custody and financial affairs without recourse to battling barristers, they will be helpful.
There are, however, some questions about how they will operate.
Will they simply treat family break-ups as an administrative problem, using trained experts to offer technical information, or will they seek to intervene with counselling and advice, helping couples to reflect on what they are proposing to do before they do it?
Many divorces nowadays are not the result of irretrievable relationship breakdown. They are the result of boredom and restlessness and a search for excitement by one or both partners.
Research tells us children may suffer in all sorts of ways when their parents separate, and it is when divorces come out of a clear blue sky that children are often most badly affected.
These Family Relationship Centres should not simply facilitate break-ups.
They should make people aware of how separation could affect their children.
Another key element of the proposed reforms is a recommendation by the Ministerial Taskforce on Child Support that the child support payments system put in place as part of a divorce settlement be revised.
Change here is vital, for the existing system is plainly unfair and unjust.
Under current arrangements, a non-custodial parent (normally the father) continues to make full child support payments to the custodial parent even when he takes care of the children for a significant time.
The proposed change would reduce these payments to take account of the costs incurred by the non-custodial parent in looking after the children.
This is obviously fair, but it raises the question of who will make up the shortfall in the cash going to the custodial parent?
If payments by non-custodial parents are reduced but the incomes of custodial parents are to remain unchanged (as politicians have promised), who does the Government expect to make up the difference?
Step forward the long-suffering and already overtaxed Australian taxpayer.
This is a major issue for the Government to wrestle with, for if it is unfair to expect non-custodial parents to keep paying the full amount for the upkeep of their children, it is surely even more unfair to expect other people who have no connection with the family to bail them out.
Finally, an issue on which there is a resounding silence.
Thirty years on from the introduction of no-fault divorce, shouldn't a new wave of family law reform be reflecting on how this key aspect of our system has been operating?
When no-fault divorce was introduced in 1976, opponents warned that it would lead to a higher divorce rate, and their fears seem to have been proved right.
In the early 1970s, there was about one divorce per 1000 head of population. Today that figure is closer to three. The divorce rate would look even worse were it not for the fact that the marriage rate has been plummeting as cohabitation has been rising, which means there are now fewer married couples around to get divorced.
We cannot put the toothpaste back in the tube, but if we are serious about family law reform, we should at least think about tweaking the rules about the way no-fault divorce operates.
At the moment, the system is unjust.
Unlike any other contractual agreement, a marriage agreement can be unilaterally torn up and the disadvantaged spouse has no legal right to compensation.
Surely it would serve the interests of justice better if Family Relationship Centres and the Family Court were allowed to investigate the issue of fault, not as a ground for granting divorce but as a factor in determining the terms of a disputed settlement?
Other things being equal, there should be a presumption in divorce settlements in favour of the offended party -- natural justice demands nothing less.
With such a presumption in place, some petitioners might hesitate before filing for divorce, for breaking a marriage agreement would no longer automatically prove costless.
Not only would such a change be fairer, it could even reduce the number of divorces -- and that would make the task of the Family Relationship Centres just a little bit easier.
Arti Sharma is a researcher at The Centre for Independent Studies
