Men's Rights Agency - Feminism

B. The agenda of the fathers' rights movement continued

6. Property division and spousal maintenance

Some fathers' rights groups have submitted that women are getting the better matrimonial property deal on divorce, although their claims are not generally supported by the research in this area.²⁷⁷ For example, Men's Confraternity believes that women get more of the matrimonial property, thus creating a window of opportunity for "an army of divorcee women" who marry poor and divorce rich. It comments that "[o]ften the multiple-marriage divorcee specialist conceals her actual worth when making a "kill" in order to accumulate a growing nest egg"²⁷⁸

When the groups have made suggestions for reform in relation to property division on marriage breakdown many of their concerns are about the nexus between property settlements, spousal maintenance, and child support. For example, the Lone Fathers Association states that the courts “tend to agree with female partners' requests to double and even triple dip, allegedly on behalf of the children by getting child support and larger property settlements to make allowance for the children and spousal maintenance because they need to look after the children".279 According to Lone Fathers this means that the non-custodial parent is left in poverty, with 98 per cent of their total wage going in property settlements and child support, while the custodial parent can "live a life of small luxury". The Lone Fathers Association considers that the courts should adhere to the clean break principle after divorce, a sentiment endorsed by Men's Confraternity, who propose the abolition of spousal maintenance because:

When men and women divorce each other they have ended their commitment to each other. As such they should each be personally responsible for their own destinies. There is no valid basis for making one person responsible for the other person's future, in particular where there is an inability or lack of desire to get off their beam’s end and create their own path of success or failure as it is involved considering that equal opportunity legislation has been enacted to assist all to obtain employment^.280

Nonetheless fathers' rights groups in Australia are not generally as vocal about the need for reform of the matrimonial property regime under the Family Law Act as they are about the need for reform in relation to custody and child support.²⁸¹ This is interesting in the light of Martha Fineman's comments on the targets for reform of fathers' rights groups in the USA. She says that "child support and custody were important targets, probably because they were the only areas in which it could even be argued that women had any significant, demonstrable advantage".²⁸²

277 See P MacDonald (ed), Settling Up: Property and Income Distribution on Divorce, Prentice Hall, Sydney, 1986; K Funder, M Harrison and R Weston, Settling Down - Pathways of Parents After Divorce, AIFS. Melbourne; 1993.

278 ALRC, Matrimonial Property. The Family Law Reform Party (JSC CFLI: CSS).

279 LFAA, Newcastle-Hunter, (JSC CFLI: CSS). 60 (1998)12 Australian Journal of Family Law

280 It is worth noting that in fact, spousal maintenance is rarely granted, see above, n 121.

281 LFAA (ALRC, Matrimonial Property) suggests a 5O/50 spilt of property acquired in marriage and considers that no reference should be made to non-financial contributory factors such as home-making and child- rearing. They believe that property brought into the marriage, or its value, should belong to the individual party who brought it in. They also suggest that at any time during the marriage the parties should have the option of "contracting out" of the property regime. Their proposals can be contrasted with those made by Parents Without Partners (ALRC, Matrimonial Property) which are that adequate provision for the present and future needs of the children of the marriage should have Priority over the claims of either parent in respect of property division. They emphasise the need to “alleviate the poverty trap and take into account the disadvantaged earning capacity of almost all custodial parents". Accordingly they suggest a flexible 60/40 guideline in favour of the custodial parent and suggest that it would benefit both parents and the children if the non-custodial partner were to forgo any or part of a claim to the marital home in lieu of paying maintenance. It must be recognised that these proposals were made before the introduction of the new child support regime, and can be contrasted with the position taken in their submission on that scheme. This was that "custodial parents live well while non-custodial parents live in poverty”. It is not clear whether this dramatic difference in opinion reflects the fact that these submissions were prepared by different authors and/or branches or whether the effect of the scheme has resulted in a shift in their official position.

282 M Fineman, The Illusion of Equality: The Rhetoric and Reality of Divorce Reform, University of Chicago Press, Chicago, 1991, p 89.

7. Reintroduction of fault into divorce proceedings

A number of groups²⁸³ support the reintroduction of the concept of fault into divorce proceedings. The Family Law Reform Association NSW Inc seems to go further and favour the introduction of considerations of fault into the counselling process and/or child custody decisions when it submits that "counsellors shouldn't support the parent who has taken the child from the marriage".²⁸⁴ Lone Fathers also argues that the deserting parent should be given less consideration “before the Family Court", and that sole parenting should be awarded to the parent who "most responsible” during the separation, but does not indicate how responsibility is to be measured or whether it. Considered as it is manifested towards the children or towards the other spouse.²⁸⁵

Implicit in some of these submissions appears to be the feeling that women are at fault for leaving their marriages²⁸⁶ and that, when fault is not factored into property and custody proceedings, this behaviour is either encouraged, or men fail to get appropriate recognition of their innocence. For example, the Non-Custodial Parents Reform Group argues that many non-custodial parents are forced out of marriage by the custodial parent and that the current family law system makes a farce of marriage because the non-custodial parent then loses the marriage, the bulk of their property and life savings, and access to the children without any compensation.²⁸⁷

As a corollary some groups argue that, while fault has supposedly been removed from divorce proceedings, in fact it is automatically attributed to men, either through the consideration of domestic violence²⁸⁸ or because of the general bias against men in the system.

A number of groups also argue that the availability of divorce should be restricted.²⁸⁹ For example, Neville Abolish Child Support and the Family Court, as spokesperson for Parent Without Rights, comments that divorce is too easy and that the "divorce industry" is enormous. He argues that judges, lawyers and politicians find divorce extremely lucrative and have a vested interest in the status quo.²⁹⁰

283 LFAA (ALRC, Equality); the Family Law Reform Party (LFAA Conference, 1997); the Family Law Reform Group (JSC FLA); Men's Confraternity (JSC CFLI: CSS); Women who Want to be Women (JSC FLA).

284 Communication with research assistant.

285 LFAA (ALRC, Matrimonial Property).

286 Research supports the proposition that women are more likely to initiate the termination of marriage than men are. Research in Australia and overseas indicates that women initiate divorce in approximately 60 per cent of cases. However a notion of fault based on this fact will be decontextualised and simplistic. For a discussion of the emotional difficulties that men have following separation, particularly when it is one they have not initiated, see P Jordan, The Effects of Marital Separation on Men -10 Years On, Research Report No 14, Family Court of Australia, Sydney, 1996, p 13.

287 LFAA, Newcastle-Hunter, also argues (JSC CFLI: CSS) that non-custodial parents are discriminated against as a result of the high incidence of termination of marriages by the female partner without their consent or agreement (65 per cent). A fact which they say is encouraged by the lack of a consideration of fault in (divorce proceedings.

288 See, for example, Men's Rights Agency (communication with research assistant). The LFAA submits (Barry Williams, LFAA Conference, 1997) that the fact that apprehended violence orders are taken into account in property cases is inconsistent with the no fault principle. In fact many commentators would argue that this is not being done and that more consideration should be taken of violence in property proceedings: J Behrens, "Domestic Violence and Property Adjustment: A Critique of 'No Fault' Discourse" (1993) 7 AJFL 9; J Behrens, "Violence in the Home and Family Law: An Update" (1995) 9 AJFL 70. See also R Graycar, "The Relevance of Violence in Family Law Decision Making" (1995) 9 AJFL 58 at p 59-60.

289 The Family Law Reform Association argue (JSC FLA) that no legal action around family break up should be permitted without participation in 12 months of counselling. Men's Confraternity (communication with research assistant) favours the complete abolition of divorce for couples who have been married for less than five years.

290 Communication with research assistant.

8. Secrecy and s 121

Section 121 of the Family Law Act does not totally prohibit the publication of details of proceedings. However it does make publication which identifies a party concerned with the proceedings an offence. Generally fathers' rights, groups making submissions on s 121 feel that it "silences critics and hides the work of a draconian system".²⁹¹ Parent Without Rights argues that proceedings should be published "so that we can expose bias and see if justice is being done".²⁹² The Australian Family Law Action Group also argues for the unrestricted publication of Family Court proceedings:

No names or descriptions of people involved (description means appearance, dress, age or occupation) may be used by the media in these matters. Obviously the public will not follow any case governed by these restrictions, nor will the media publish or publicise with these regulations... To expand on this situation we, as John Citizen, just aren't interested in reading or hearing stories without these embellishments, so that thousands of horrendous stories coming from the Family Court do not become known to the general public... A story without names and without description is without interest and colour.²⁹³

But contrary views can be found. The NSW branch of Dads Against Discrirnination²⁹⁴ speaks of retaining s 121 because it is an important safeguard of privacy of those involved in Family Court proceedings.

A recent report to the Attorney-General by the Former Chief Justice of the West Australian Family Court, the Honourable Jan McCall, has recommended relaxing the restrictions on publicity under s121.²⁹⁵ The Attorney-General seems to favour the report's recommendations.²⁹⁶ Media coverage has made it clear that the recommendations are supported by fathers' rights groups,²⁹⁷ although opposed widely by many women’s groups,²⁹⁸ civil rights groups; and others.²⁹⁹

291 The Family Law Reform Party (JSC CFLI: CSS) argues that s 121... allows a large amount of secrecy and allows star chamber tactics that would do the Spanish Inquisition proud”.

292 JSC FLA. See also LFAA, Sydney, (JSC FLA) and Qld (ALRC, Contempt).

293 JSC FLA.

294 JSC FLA.

295 I McCall, Publicity under the Family Law Act: proposals for the Amendment of Section 121, April 1997.

296 Attorney-General's Press release, 25 June 1997.

297 "Silence in the Court" The Sydney Morning Herald 18 August, 1997. The Sydney Morning Herald ran two articles, one in favour of relaxing the restrictions, the other opposed. The article which argued for relaxation was authored by Michael Green, QC, a prominent spokesperson for fathers' rights interests. See also Sex/Life episodes 19 and 20, featuring Mr Green.

298 J Harrison, Submission to the Attorney-General on Publication in Family Law Proceedings, National Women's Justice Coalition, 1997

299 Above, n 297.

9. Bias in the process of family law decision making

A. The family law "system", the Family Court, the Family Law Act, and the child support legislation

There are claims by some groups that the "system" victimises, persecutes and abuses men.³⁰⁰ Other claims are not so overtly gender specific. The Sydney Men's Network claims that the current family law system is oppressive to non-custodial parents.³⁰¹ There are also claims of bias or discrimination in respect of the legislation. Equality for Fathers, for example, submits that the basic concepts of family law need to be brought into line with "true sexual equality for both sexes".³⁰² A number of groups claim generally that the Family Court is biased.³⁰³

Parent Without Rights hints at something akin to corruption when it suggests that the government and the Family Court occasionally exert pressure on media executives and proprietors not to publish certain information relating to Family Law matters and cases. As evidence of this claim, a representative of this group cites the numbers of media interviews he has done which have not gone to press. He also cites the fact that he once told the Chief Justice of the Family Court that he was releasing a copy of the letter he was writing to the Justice to the media and yet none of the 20 media outlets he sent the letter to gave it a mention.³⁰⁴

B. The adversarial process and alternative dispute resolution mechanisms

A number of groups criticise the adversarial process as being inappropriate to the resolution of family disputes, primarily because it aggravates conflict.³⁰⁵ Many of these groups advocate alternative forms of dispute resolution, such as mediation, counselling or arbitration, to replace or supplement the adversarial system.³⁰⁶ For example, Parent Without Rights submits that mediation centres should be set up and that parties who refuse to negotiate during mediation should be ordered to pay the other sides costs. It states that "people must be made to attend counselling or mediation, before running to lawyers”^.307

While they appear to favour alternative methods of dispute resolution most groups are unhappy with the manner in which these processes have manifested within the Family Court. For example, Parent Without Rights argues that there is bias in the counselling process and states that:

The counsellors must.. make it clear to both of the parties that they are counselling whether they (the counsellors themselves) are lesbian, gay or espouse feminist ideology. It goes without saying that the majority of normal heterosexual parents object to the above types being involved with their family problems... (C]ounsellors are biased, because of their own personal views and lifestyle!³⁰⁸

It also argues that Family Court counselling is not orientated to keeping relationships intact309 and says that "counsellors must be more than just social workers, with a short diploma in social or women's studies".³¹⁰

C. Lawyers and Legal Aid

A couple of groups see lawyers as being highly problematic. For example, the Lone Fathers' Association³¹¹ argues that legal advocates are divisive, some erroneously³¹² telling men they will be defeated if they choose to contest residence. In its view, this causes a number of men to agree to relinquish residence.

The overwhelming number of complaints by fathers' rights groups, however, are based on the impression that women are getting legal aid and men are not.³¹³ Various consequences are said to follow from this. Some groups perceive that women have an advantage because they have unlimited legal resources and can therefore hold out or engage in protracted negotiations that men cannot afford to engage in. Parent Without Rights argues that fathers incur enormous expenses in attempting to obtain custody and in consequence can't pay child support.³¹⁴ Alternatively the cost of legal representation prevents men, from actually gaining custody and access. Men’s Confraternity argues that unbalanced legal representation builds up a wealth of precedent in favour of women, which makes it harder for men to get satisfactory judgments.³¹⁵ The solution to this state of affairs according to some groups is that legal aid should be awarded on a case basis. That is, it should be available to both parties regardless of their financial circumstances.³¹⁶

D. The Child Support Agency

Complaints about the inefficiency of the staff at the Child Support Agency and the agency itself are common.³¹⁷ There are also a number of complaints that staff are unsympathetic to, or biased against, non-custodial parents.³¹⁸

300 CSAG. Vic, (JSC CFLI: CSS); LFAA (ALRC, Equality).

301 Communication with research assistant. See also Men’s Confraternity (ALRC, Matrimonial Property).

302 Men's Confraternity also argues that new legislation should be enacted within a framework of equality (JSC CFLI: CSS). It suggests that the Family Law Act was prepared before the "proclamation of equality" and is therefore an anachronism (ALRC, Matrimonial Property).

303 Parent without Rights (communication with research assistant and JSC FLA); The Men's Rights Agency (communication with research assistant); LFAA (ALRC, Equality); Equality for Fathers (JSC CFLI: CSS).

304 JSC FLA.

305 ALRC, Children. See also LFAA (Executive Committee) (JSC FLA); Parent without Rights (ALRC, Children); Parents without Partners (NSW) (JSC FLA); The Family Life Movement (JSC FLA); The Family Law Reform Party (JSC CFLI: CSS); The CSAG (communication with research assistant).

306 Note that a number of authors have cautioned against private ordering on the basis that it replicates and perpetuates power imbalances that currently exist in the private sphere between men and women. See J Behrens, above, n 32.

307 ALRC, Children. The Family Life Movement (JSC FLA); Parents without Partners, NSW, (JSC FLA); the Family Law Reform Party (JSC CFLI: CSS); the CSAG (communication with research assistant); the Family Law Reform Group (JSC FLA); DADs, Qld, (JSC CFLl: CS S); LFAA (ALRC, Matrimonial Property); the Family Law Reform Association NSW Inc (communication with research assistant); Women and Grandparents Treated Unfairly By Family Law (JSC FLA). The Australian Family Law Action Group is alone in arguing that the adversarial process should be replaced with an inquisitorial system (JSC FLA).

308 ALRC, Children. This group argues that many of the counsellors are female and therefore not empathetic to men - what they label a “brigade of female chauvinistic counsellors". LFAA, Sydney, is another organisation arguing (JSC FLA) that the Family Court counselling service (and the Family Court Mediation service) is biased, uninformative, creates animosity and is not subject to scrutiny. They say that counselling is coercing men into making unfavourable agreements.

309 Similarly, FLAG comments (JSC FLA) that they have received "countless horrendous records of 'counselling' by the 'Family' Court which has directly resulted in the actual subversion, corruption and destruction of families".

310 ALRC, Children.

311 LFAA (ALRC, Contempt). Parents without Partners say (communication with research assistant) that they try to "get people away from the solicitors who are the real problem". Parent Without Rights argues (JSC FLA) that men often consent to the woman having sole custody because of misinformation or pressure by their lawyers.

312 This acknowledgment sits uncomfortably with the statistics they cite in the context of custody. See above text to n 93 and following.

313 The Men's Rights Agency claims that the legal aid dollar is split 2:1 in favour of women (communication with research assistant). LFAA Executive Committee) claims (JSC FLA) that there is unlimited legal aid for mothers and prohibitive costs of legal representation for fathers. At another point they say that legal aid for the non-custodial parent is "never granted". See also Men's Confraternity (ALRC, Matrimonial Property); DADs (communication with research assistant); Parent without Rights (JSC FLA); the CSAG, Northern Rivers, (JSC CFLI: CS S). In contrast, Legal Aid Statistics indicate that women are legally aided because of their financial position, that both men and women benefit from Child Support fora[um] run by Legal Aid and that men receive between approximately 32-39 per cent of all Legal Aid funding in family law matters, Legal Aid in Australia 1993-1994, Statistical Yearbook, Attorney-General's Dept, June 1995.

314 JSC CFLI: CSS.

315 ALRC Matrimonial Property.

316. LFAA, Sydney, (JSC FLA); Women and Grandparents Treated Unfairly by Family Law (JSC FLA); Men's Confraternity (ALRC, Matrimonial Property).

317 For example, the Non-Custodial Parents Reform Group describe lengthy delays before phones are answered, inconsistent information and advice, a high number of errors, no acknowledgment of the receipt of correspondence and no pamphlets explaining the scheme in English or otherwise (JSC CFLI: CSS). LFAA, Newcastle-Hunter, comments that most of the staff in the Child Support Agency were of "ethnic origin" and were extremely difficult to communicate with. When people asked to be transferred to a more fluent English- speaking person, "ethnic discrimination was threatened" by the staff (JSC CFLI: CSS). See also the Child Support Action Group (NSW, NT & Vic) (JSC CFLI: CSS): Parents without Partners (JSC CFLI: CSS); The Family Law Injustice Group Helping Together (JSC CFLI: CSS); DADs, QId, (JSC CFLI: CSS).

318 DADs, NSW (JSC CFLl: CSS); the Non-Custodial Parents' Reform Group (JSC CFLI: CSS); Men's Confraternity (JSC CFLI: CSS). For a contrast in perspective note the evidence regarding the difficulties custodial parents have experienced under the scheme in obtaining child support or dealing with the Child Support Agency. See the submissions on the Child Support Scheme of the WA Legal Aid Child Support Unit; Women's Information and Referral Exchange, Illoura Centre (Qld); Single Mothers' Support Group; Women's Electoral Lobby (ACT); Dale Street Women's Health Centre (SA); Domestic Vio1ence Interagency (ACT); Centacare (Tas & NSW); Canberra One Parent Family Support Service (Birthright) (JSC CFLI: CSS).

10. Funding for men's groups

A common complaint is that women's groups are getting government funding and men's groups are not. For example, the Child Support Action Group comments that:

Women appear to have been very effective at obtaining funding and resources to counter past deficiencies in child support, and this is to be commended. It is to be hoped that organisations representing men will also be able to obtain funding and resources to counter the problems that are now affecting them.³¹⁹

Some of these complaints are directed at women's refuges. Parents Without Partners comments that women's refuges get 15 million dollars a year, for which they are not accountable, whereas men's groups get no funding.³²⁰ There are also claims of "capture" and financial mismanagement For example, Parent Without Rights comments that "hardline feminists [are] controlling and running women's refuges" and that "it's about time there was a comprehensive inquiry into these refuges and the ways in which taxpayers money has been misspent".³²¹ Men's Confraternity says that "[w]omen's refuges provide a safe base from which lesbians and men-haters launch attacks on men and the family. The operation and purpose of women's refuges should form the basis of an inquiry."³²² The Lone Fathers Association comments that "claims [that certain women's shelters had become known centres for child abuse] must be addressed by child protection agencies".³²³

319 NSW, JSC CFLI: CSS. A representative of DADs speaking to our research assistant also commented on the inequity of funding women's groups. He illustrated this point by the fact that at 'The Attorney-General's meeting in Melbourne" there were 140 "women's groups" (it is not clear what criteria he was using to classify the groups) and only 40 "men's groups". Men's Confraternity suggests that there has been a tendency for the feminist organisations who have spearheaded the change in women's roles (described as "free[ing] themselves in recent years of their role obligations without accepting the obligations of men or relinquishing aspects of their former lifestyle when it suits them") to be funded. Men's Confraternity formed itself "to present an alternative view to these organisations". (ALRC, Matrimonial Property). The Men’s Rights Agency (communication with research assistant).

320 Communication with research assistant. Men's Confraternity argue that the same refuge facilities should be set up for men (JSC CFLI: CSS). In fact, a Wesley Mission Report revealed that approximately one third of the homeless in Sydney are women yet there are only 83 crisis beds for women; "Two Million Trapped in Life of Poverty", Sydney Morning Herald 15 May 1996. The Homeless Person's Information Centre commented that there are up to 640 crisis beds for men in Sydney. Sydney Morning Herald 8 February 1995.

321 JSC CFLI: CSS.

322 Review of Restraining Orders.

323 ALRC, Children.

Conclusion

Men (and women) involved in the Family Law system are undoubtedly hurting and hurt.³²⁴ It is obvious that the fathers' rights agenda is, to some degree, fired by this hurt. There is a strong and impassioned sense of grievance in much of what is said by these groups. Nonetheless, while the feelings of suffering are real, the framework of values and understandings which is used to characterise and make sense of both those feelings and the experiences which give rise to them is very-much open to debate.³²⁵ Richard Collier makes such a distinction when he talks about, the "disjunction between the very real experience of personal disempowerment which appears to exist on the part of many of these men and the facts of power?”³²⁶ We are concerned that the fathers' rights movement, and a number of the media representatives and public figures who deal with these groups, do not draw such a distinction.

We are also concerned that the agenda of the fathers' rights movement is often presented as the male perspective on family law. It is certainly the only such perspective having a real influence in the media and in political debate and law reform. Where do fathers who have experienced pain over the breakdown of their spousal relationship, and in their subsequent attempts to maintain relationship with their children, look to make sense of their experiences? As Ros Coward has said, fathers in this situation:

... suddenly find themselves without any automatic role and seeking a language to embody what has been positive, and what they want to protect, in their relationship with their children. The only place to articulate this is the right wing, pro-family lobby.³²⁷

Yet not all hurt fathers share the political framework underpinning much of this agenda or would necessarily characterise their experiences in accordance with it. The agenda we have described is not the fathers' viewpoint of family law, only one highly politicised perspective which is "open to question on empirical and logical grounds".³²⁸ Let the questioning begin.

324 Jordan (1984 and 1996), above, n 286; M Harrison, Attitudes of Divorced Men and Women to the Family Court, Australian Family Research Conference, ANU, Canberra, pp 23-25 November 1983.

325 For example, it is unfortunate that the feelings of disempowerment suffered by some men have been t translated and transferred by the groups into punitive measures towards single mothers and lesbians.

326 Collier, above, n 9 at 35.

327 R Coward. "How Fatherhood became a Taboo", The Age, 8 May 1996.

328 D Brown and R Hogg, "Law and Order Commonsense" (1996) 8 Current Issues in Criminal

Appendix

Key to Abbreviations used in this paper

Father's Rights Groups

Law reform bodies/Parliamentary inquiries

· ALRC - Australian Law Reform Commission

· ALRC, Children - Speaking for ourselves: Children and the legal process, Issues Paper 18, AGPS, Canberra, 1996

· ALRC, Contempt - Contempt, Report No 35, AGPS, Canberra, 1987

· ALRC, Equality - Equality before the Law: Justice for Women

· ALRC, Intractable Access - For the Sake of the Kids: Complex Contract Cases and the Family Court, Report No 73, AGPS, Canberra, 1995

· ALRC, Matrimonial Property - Matrimonial Property, Report No 39, AGPS, Canberra, 1987

· JSC CFLI: CSS - Joint Select Committee into Certain Family Law
Issues: Child Support Scheme

· JSC FLA - Joint Select Committee into the Family Law Act

· Review of Restraining Orders Taskforce on Family and Domestic Violence and the Ministry of Justice (WA) May, 1995

· Break the Silence - Break the Silence: Report of the Taskforce on Domestic Violence to the Western Australian Government, January 1986.

Fathers' rights groups

· CSAG - Child Support Action Group

· DADs - Dads Against Discrimination

· FLAG - Family Law Action Group

· FLIGHT - Family Law Injustice Group Helping Together

· FLRP - Family Law Reform Party

· FNF - Families Need Fathers (UK)

· LFAA - Lone Fathers Association, Australia

Go back to Index for Fathers' Rights Groups in Australia

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