Has there been a degradation of men’s rights in Australian Family Law and Child Support?

by Jade McNamara

11 February 2020

 

I write this article as a woman. One who has recently soldiered with her husband through what can only be described as a ‘very bloody’ and extremely one-sided war. I witnessed the Family Court and Child Support favour and reward my husband’s former wife, ignoring countless, very significant factors.

I don’t claim to have vast expertise on the Australian Family Court or Child Support systems, only local, first-hand experience and some wisdom gained along the way. From what I have experienced, it is clear that these systems are in desperate need of review and reform.

Before proceeding, I want to clarify my position. I happen to personally know many women who have experienced negative decisions from both the Family Court and Child Support, whereby their former husbands have been favoured. I fully support the position of my fellow women who have suffered under the rigors of these systems, and do not wish to detract from this.

However, my experience has indicated a current and very clear bias against men and fathers.

I married a wonderful man in 2013. He had a young son, whom he share-cared with his former spouse (let’s call her Wendy), on a 50/50% time basis. My husband was the sole payee of Child Support. Wendy was disinterested in working, and had been a serial welfare abuser both prior to and after that former marriage.

Not long into our marriage, I began to realize that our sanctuary of coupledom was becoming negatively infiltrated. Wendy was a formidable presence: constantly forwarding bills and costs for the son; attacking us; accusing us; and criticizing us. There was a note pad that travelled between the two homes, in the son’s school bag. Dealing with ‘the note pad’ became a dread to my husband and me. I began to feel more and more like I wasn’t the only wife in my marriage.

On her refusal, my husband and Wendy did not settle property at the culmination of their marriage. So, in yet another sense, she was very much tied up with our lives. Ten months into our marriage, we sought advice from a lawyer as how to we could sort the property, so we could all move on.

Wendy agreed to enter into mediation to settle the property. However, shortly after the first session, we received a notification from the mediatory body that Wendy had cancelled mediation. Within a week, on our doorstep, we were served with a summons to court. Wendy had received leave to proceed with an out-of-time property settlement and was requesting 75% of our wealth. I remember asking myself the question, “How has she been given permission to seek so much?” It seemed to me unfair and unlawful.

A nasty three and a half year battle followed that 75% claim. During multiple court appearances I watched lawyers, barristers, registrars and magistrates ignore significant factors pertaining to Wendy, including that she: brought no assets into that marriage; was abusive as wife and mother; was disinterested in working; entered into adultery; and refused to contribute to the majority of costs of the child. Further to this, Wendy’s barrister saw fit to abuse my husband and accuse him of ‘warehousing’ money because he chose to donate money to the church, of which we are members.

During one trip to the Family Court, I left the building to top our parking meter. I noticed a solo man distributing pamphlets that advertised for ‘the rights of men in Family Law.’ I willingly received a pamphlet and declared my full support for his cause. I walked away musing, ‘Perhaps the biases and injustices that we were experiencing within the Family Court are common, and not isolated to our case.’

Later I asked our lawyer if there was a bias towards women in the Family Court. His answer astounded me: “Yes, previously the Family Court favoured men, now the pendulum has swung the other way.”

“No kind of extreme is healthy,” I thought to myself. I began to see the need for objective discernment in each individual case that reached the Family Court.

In the midst of this, and on Wendy’s request, we enrolled my husband’s son into a private school. When Wendy refused to contribute to school fees, my husband consulted Child Support, hoping to reduce his payments. The Child Support officer requested we produce a signed declaration from either the school or Wendy, declaring consensual enrollment. Because neither party was willing to provide this, Child Support refused to alter the payment situation. On communicating this decision with my husband, the Child Support officer, asked him “Are you feeling suicidal?”

I was shocked to hear that my husband was asked this question. Then I learned that it was a mandatory question for Child Support employees. Because, reporting from the 2017 Federal Parliament Family Court enquiry revealed that, in Australia, an average of 10 men and 3 women are suiciding each week due to Family Law matters (source Australian Bureau of Statistics & Coroner’s Court of Victoria). A close friend and clinical psychologist (a men’s behavior specialist) recently communicated with me: “Men generally don’t take their lives because they lose their job or miss a promotion, they suicide because they lose their families and children.”

We waited six months after the final trial for the Magistrate’s decision. This decision equated to an order for my husband to pay Wendy a sum of money that was much more than her 50% share of the marital asset pool. Interestingly, within this order was the addition of an amount of money that came from assets obtained after the divorce of that former marriage. After looking into legislation surrounding out-of-time property settlements, we discovered that there was very little. It was an ‘anything goes’ scenario, all assets marital and post marital could be put on the table. I was horrified, this was a great incentive for spouses to wait for an ‘opportune time’ to property settle.

On advice, we chose to appeal the Court’s decision to include post marital assets in the Order. The Appeal Trial was even more of ‘blood bath’ than the former trial. All three Appeal judges again ignored significant factors, and sided with Wendy. Two notable declarations made by the judges included: “She deserves a portion of the post marital assets” and “She did a great job (as a wife and mother).” I thought to myself, ‘Have any of you even looked at the evidence or read the Affidavits?’

The result of our court appearances included an order to pay Wendy a sum equal to 85% of the original marital asset pool. In order to raise this money and pay our legal fees, my husband and I were required to access all of our savings, sell all of our shares, and re-mortgage our home.

Within six months of the end of court proceedings, my husband received a message via text from Wendy. It read ‘Our son will be living with me now, don’t bother coming to pick him up.’ The very next day my husband received a phone call from Child Support. They communicated that there had been a change in the circumstances in the care of his son, that Wendy had claimed 100% custody. My husband was asked if he agreed with this, to which he answered “No.” Over the following days, many additional calls from Child Support ensued. The result of these, was that Child Support chose to support the position of Wendy, and my husband was informed that he must pay 100% Child Support to her.

Currently, it has been 14 months since we have seen or heard from my husband’s son. His mother now owns an unencumbered home, has a bank account full of savings, and receives a substantial weekly wage from us via Child Support. Recovering from the pain of losing his son has been a slow journey for my husband. Additionally, as a newly married couple, rebuilding our relationship after years of trauma has been a gradual process.

Recently, my husband and I attended a forum on Australian Family Law and Child Support. I was astounded to see an audience that was about 80% men. During the course of the evening, we heard many sad stories, all from men. Men who had been forced to pay 100% Child Support, those who had been prevented from seeing their children, some who had been falsely accused of violence, others who were suicidal and depressed, and still more who had endured lengthy and costly Family Law proceedings.

Based on my experience over the past few years, if I was asked the question: Has there been a degradation of men’s rights in Australian Family Law and Child Support? My answer would be yes.

I stand with the fathers and men who have been subject to unlawful and unspeakable biases through Family Law and Child Support in Australia. Equally, for all of the people who have been impacted in some way, by these systems, I pray for healing and restoration.

My thanks go out to the One Nation Party for the push, and to the Morrison government for establishing the current Joint Select Committee on Australia’s Family Law System. This committee has been appointed to run an enquiry on both Australian Family Law and Child Support Systems. I anticipate a favourable response from this enquiry in October 2020.