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Fathers’ Rights Groups in Australia and their Engagement with Issues in Family Law
1er septembre 2004
par
There is a constant and persistent view pursued by people who are often discontented litigants sometimes obviously dysfunctional, that the court is in some sense designed by anti-family groups to destroy the institution of the family in society... An unfortunate concomitant of this approach is that some people and some politicians with limited knowledge of the issues involved, tend to latch on to such dysfunctional persons for apparent political gain. This has the further unfortunate effect of empowering such persons to feel that their behaviour is not only acceptable but is the subject of sympathy and approval by politicians and government. It is all too often the experience of this court that its most persistent critics have behaved in a way which cannot stand up to public scrutiny, particularly in relation to issues of violence against women and children. Such persons, who often espouse the rights of fathers, do very little for their cause. There are legitimate matters that can be advanced on their behalf and it is equally as important that the court and those within it do not adopt stereotyped attitudes towards men as well as women. However, the behaviour and attitude of those who espouse so-called fathers’ rights leaves little opportunity for rational discourse (1).
Introduction
The movement to promote fathers’ rights in the context of family law is newly emerging in Australia. While some fathers’ rights groups have been in existence for a number of years the movement appears to have gathered momentum, credibility and popular support as a political and media force in more recent years. Evidence of this can be found in the media attention it has received (2), the apparent proliferation of groups and branches (3), the organisation of conferences (4) and infrastructure (5) the expressions of support from politicians (6), the setting up of political parties (7), and the increasing sophistication and quantity of submissions such groups are making in respect of law reform references. Implicit evidence can be found in the strong reaction of the Chief Justice of the Family Court (cited above) and in the popular perception that fathers’ rights groups have played an influential role in respect of a number of the recent Australian family law reforms (8).
In spite of the media debate fathers’ rights groups have generated in recent times there is still surprisingly little written about them in the Australian context (9). Accordingly, in commencing this research we were interested in investigating and describing the groups as a phenomenon. In other words we wanted to find out who they are, how influential they have been in setting the agenda for family law reform and what their main concerns are. We have relied on primary sources in our research : submissions such groups have made to law reform bodies on various family law references ; telephone interviews conducted by our research assistant with representatives from various groups (10) ; self-generated literature ; and media searches.
This article has two parts. In the first part we briefly discuss the apparent success fathers’ rights groups have had in setting the agenda for family law reform in Australia. In the second part we outline the major concerns raised by Australian fathers’ rights groups over the years. In our opinion such a project necessarily exposes the highly politicised nature of the fathers’ rights agenda. Our intention in providing this overview is to provide a basis for future critical engagement (11) with such groups around the various issues raised. Because our intention is to describe, but certainly not to espouse, the views of the fathers’ rights movement we have provided some (very limited) critical comment.
Who are the fathers’ rights groups ?
For the purposes of our research we have defined fathers’ rights groups as being either groups which explicitly represent fathers’ concerns (whether custodial or non-custodial) or groups with an agenda which reflects the concerns of non-custodial parents (who are statistically more likely to be fathers). This definition is very loose. It includes groups whose sole focus is fathers’ rights, groups that raise parenting concerns as an aspect of their more general focus on men’s rights, and groups which don’t claim to represent either parent and yet present in their law reform submissions and literature a strong agenda for non-custodial parents. An example of the former are groups like Lone Fathers Association, Equality for Fathers and Dads Against Discrimination, which are very obviously set up to perform the role of representing fathers. An example of the latter is the Family Law Reform Association NSW Inc which actually claims not to be a fathers’ rights group. It says that it is after equality for both parents, it is just that fathers are usually the ones disadvantaged. It falls within our definition because it was started by men and has an agenda that primarily reflects the concerns of non-custodial parents.
There are a number of borderline groups which we have also taken note of this research. Some of these groups are borderline because they sometimes fall within our definition and at other times outside it. Parents Without Partners is the best example. One representative we interviewed said that it was a social group only with no interest in representing any particular constituency, while another representative we spoke to presented a strong fathers’ rights agenda. One law reform submission produced by this organisation presented an agenda strongly supporting the concerns of the non-custodial parent, while other law reform submissions contained agendas sympathetic to the interests of custodial parents, either male or female. Other borderline groups include those such as Women Who Want to be Women or Women and Grandparents Treated Unfairly by the Family Law, who clearly claim to represent neither fathers’ interests nor the interests of non-custodial parents and yet present an agenda that is strongly sympathetic to these constituents.
Many of these groups claim to represent a very large (and growing) constituency, although sometimes their figures are used in a loose sense. For example, a representative from Dads Against Discrimination claimed that it represented 350,000 men, that ’being the number of men caught up in the family law system (12). Some of these groups also claim to field large numbers of inquiries from members of the public. Typical activities undertaken range over a broad spectrum, including such things as organising regular self-help meetings for members to share their experiences in the family law system, organising public information meetings with guest speakers, making submissions to government bodies on law reform references, speaking to the media, producing newsletters and pamphlets, lobbying and encouraging members to lobby politicians and the referral of members to information and professional services.
One of our general impressions of the fathers’ rights movement is the high turnover of groups. Many of the groups we attempted to make contact with for the purpose of telephone interviews seem to have gone out of existence since making the law reform submissions that alerted us to their existence. In spite of this turnover there are a number of groups which claim to have been around for many years (13). Our impressions are that these have tended to survive because of the tireless efforts of one or more key individuals in the organisation. Examples are Barry Williams who was the founding member and has been the National President of the Lone Fathers Association since 1973, has a high profile role in Parents Without Partners, with which he has been associated for more than two decades, and Nevil Abolish Child Support and the Family Court (14) who has "run" Parent Without Rights for the last eight years. A common problem for the groups seems to be continuity in membership, with people tending to move on "once they have been helped" (15).
An interesting feature of these groups is the increasing involvement of women. Many of these groups are concerned to point out that they have members who are women and sometimes women as key players in the organisation (16). The women who are involved tend to be involved in their capacity as "second wives" or other family members of men who have had some engagement with the family law.
A. How Influential has the fathers’ rights agenda been ?
One of our intentions in carrying out this research was to assess the impact the groups have had in Australia. This has proved more difficult than we imagined.
1. Media coverage
Our impression is that the groups and/or their views have a strong presence in the media. We certainly found that when media sources were commenting about non-custodial parents or family law issues generally, it was very common to include interviews or comments from at least one fathers’ rights group spokesperson (17) Other media commentators ’might not actually use interviews with the groups, but will espouse views sympathetic to theirs (18), and might even detail interviews with "family law practitioners’ or "individuals’ who have strong contacts with at least one of the groups (19). Not surprisingly, perhaps, the existence of the groups is powerfully felt on talk back radio programs. However, other more news oriented programs are also devoting attention to the groups. For example, the ABC radio station, Radio National, played a track from the recently released compact disc "Displaced Dads" produced by Dads Against Discrimination.
Dads Against Discrimination outlines its opinion on the reason for the media interest as follows : « DADs Queensland is one of the first organisations that the media call when they want an unbiased, non-sexist, balanced and concerned view on the rights of non-custodial parents and the welfare of their children » (21).
Indeed this view seems to be shared by the media, for many of the programs and articles that we have listened to, watched, and read for this piece do not present a counter perspective on these issues. The fact that the views of fathers’ rights groups are considered unbiased is reminiscent of "the subliminal message" in law which has been critiqued by Naffine and other feminists, "that reasonable people are men, not women" (22).
2. Political influence
We would argue that the rhetoric and views of the groups, and the significant media attention they have received, have affected the atmosphere in which legal and political changes are being debated in Australia. This is particularly so given that many of their views are in alliance with those of the "pro-family" New Right (23). However, the intention of this paper is not to overstate the political influence of the groups, which we have found very difficult to assess. Indeed, the groups vary in their own opinions on this. At times, they suggest that they wield enormous political influence. For example, fathers’ rights campaigner Ian Monk entitled his compilation of newspaper clippings on his campaign efforts, How I initiated three Parliamentary Inquiries into Family Law and Reformed the Family Court. Barry Williams, the National President of the Lone Fathers Association, has stated that :
« The previous government was advised that, if the extreme inequities in the present formula were not fixed, them would be a very large defection of male NCP voters from the Labor party at the next election. The (then) government ignored that warning » (24).
In a similar vein, Barry Williams writes :
« I had a very positive and sympathetic hearing in Parliament House with Tim Fischer [the Deputy Prime Minister of Australia] on 5 February. He is going to back us all the way for quick and positive changes. He stated the system and especially the Child Support Scheme is stacked against the man. A special sub-committee has been set up to look into the Child Support Scheme. » (25)
There are other suggestions or evidence of influence. For example, Barry Williams asserts that the Joint Select Committee into the Operation of the Family Law Act 1975 (Cth) was established after a petition signed at the 1990 conference of the Lone Fathers Association called for a parliamentary inquiry into the Family Law Act.26 Additionally, together with other fathers’ rights groups the "LFAA is now called to sit on family law advisory panels and discussion groups" (27). One obvious example of influence occurred when the Australian Family Court was bombed. The then Commonwealth Attorney-General, Gareth Evans, wrote to groups, such as the Lone Fathers Association, stating that he was "very concerned about the Family Court and in particular the recent violent incidents" and would welcome any suggestions for change which they might rnake (28).
A new strategy to increase their political influence and gain credibility is the establishment of political parties to represent the groups’ concerns. Peter Brown, of the Family Law Reform Party stated, "We have to fix the [family law] system. And the only way to do this is through a political solution" (29). He discusses the advantages of registration as a political party as follows : « I rang Canberra ... and asked for a meeting with the Attorney-General to discuss [the Liberal Party’s position on family law issues). I was asked what group we were from, I told them FLR, and what sort of group is that, when I replied that we were a registered political party we had an appointment within two hours... All this for 135 votes ».
3. Law reform
It is difficult to assess the extent to which the groups’ political clout has translated into law reform. In a Penthouse article, written prior to the changes made by the Family Law Reform Act 1995, it was said that :
« People like Mike Ward [Men’s Confraternity], Barry Williams [LFAA] in Canberra and Ken Pierce [LFAA NSW] in Sydney all know they have a long way to go. They have the numbers but no financial support ; their actions can lead to Joint Committees, Family Court reports and Ombudsman inquiries but they can’t turn recommendations into law ; they have the sympathy of politicians but many of those politicians am afraid to upset the woman vote » (30).
On the other hand, in a letter to our research assistant, Barry Williams said of Lone Fathers Association, "This organisation has been credited with success in many changes to the Family Law Act...". It is uncertain which changes Mr Williams is alluding to, but the most wide-ranging amendments to the Family Law Act in relation to disputes over parenting were made by the Family Law Reform Act 1995. It has been claimed by sources outside the groups that "a driving force in effecting these reforms has been the recent and persistent voice of fathers’ rights groups (31). Certainly aspects of the reforms would appear to satisfy some of the groups’ concerns (32). However ; lobbying by women’s groups had a significant impact on the final version of the bill, and these changes would not have been to the liking of the fathers’ rights groups (33). Hence, even if the "driving force" behind the changes was fathers’ rights groups, the actual Act passed by parliament could not..be said, to be one which purely panders to those groups. A similar comment could be made about the recent proposals for law reform in relation to the Child Support Scheme.
It seems fair to comment that fathers’ rights groups are increasingly effective in making, and in galvanising their members to make, submissions in respect of family law reform references. This is an ability which obviously has the potential to impact the law reform process. Concerns about the public submission process in relation to family law reform have been expressed by a number of writers. Regina Graycar has commented that "public submissions may not present an accurate picture of the current operation of the family law system"(34). The public submission process favourably reflects "organised, self-interested and more vociferous groups"(35) such as fathers’ rights ’groups. Women may be disadvantaged in the ability to participate effectively in public inquiries. For example, Martha Fineman has written in relation to a legislative committee in Wisconsin that, "[t)he fact that the custodial mothers were not organized meant that their side of the story - their problems, perceptions and issues - were incompletely and, in a political sense, ineffectively articulated" (36).
Echoing these concerns, Linda Hancock (37) argues that the report produced by the Joint Select Committee on Certain Aspects of the Operation and Interpretation of Family Law on Child Support (38) narrowly focused on issues raised by fathers’ rights groups, (39) as opposed to equally addressing the concerns of resident parents and remaining cognisant of the broader aims and objectives involved in the introduction of the Child Support Scheme (40). She suggests that this outcome was a natural result of relying on submissions as evidence rather than independent non-partisan research. She found that 53 per cent of the submissions made to the committee were made from non-resident parents predominantly men), and 5 per cent were from their spouses. By comparison only 32 per cent of the submissions were from resident parents (predominantly women) (41).
It has been suggested that fathers’ rights groups would have more of an impact if not for the fact that they tend to be badly organised and dominated by "egos" (42). As we have noted above(43), at least one key individual in each group is often responsible for the survival of the group and is the key media spokesperson for the group (44). These individuals are not necessarily particularly articulate or media savvy (45). Our opinion, derived from studying internet websites and overseas materials, is that the groups in Australia are not as well organised or as sophisticated in the presentation of their views as those in the United States, Canada or the United Kingdom. However there are currently moves in Australia to organise into one national umbrella group (46) : ’This single organisation would carry the weight and lobby power that the smaller groups individually lack..." (47). If well organised (perhaps by second wives who according to some within the groups (48) seem to have many of the organisational skills in the movement), this umbrella group could also provide a focus for the development of necessary skills, as well as greater cohesion and continuity in the Australian fathers’ rights movement.
B. The agenda of the fathers’ rights movement
In this part we will set out the agenda of the fathers rights’ movement. We will first look at the general concerns some fathers’ rights groups have expressed about the erosion of the family unit We will then go on to outline more specific substantive concerns raised by many of the groups, namely, child custody, enforcement of access (49), child support, "false" allegations of family violence, matrimonial property division and the desirability of the reintroduction of fault into divorce proceedings. Finally we will look at concerns about process, such as secrecy, allegations of bias in family law decision making processes and the question of funding of men’s as opposed to women’s groups.
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Notes
1. Honorable Chief Justice Alistair Nicholson, from "Welcome" in "Enhancing Access to Justice", Family Court of Australia Second National Conference Papers, 2-23 September 1995, Family Court of Australia. Sydney, 1996, p 1.
2. For example : The Sydney Morning Herald, 6 July 1984, p 1 ; 19 February 1988 ; 5 August 1992, p4 ; 22 September 1993, p9 ; 2 September 1994, p 13 ; 25 February 1995, p2 ; 22 June 1995 ; 2 September 1995, pp 116 ; 4 May 1996, p 8 ; 12 October 1996, pp 1, 4 ; 14 October 1996, p 11 ; 15 October 1996, p 11 ; 22 October 1996 (Series by Bettina Arndt) ; 28 November 1996. p 1 ; 12 February 1997. p 13 ; The Age, 14 November 1995, p 11 ; 28 January 1996, p12, 8 May 1996. p 20 ; 30 July 1996, p 15 ; The Australian, 2-3 September 1995, p 29 ; 13
3. March 1997, p 11 ; The Sun Herald 9 March 1997, p 39.
4. M Abernethy, "Paternity Wars : In Australia, Divorce is a Battle Men can’t win", Australian Penthouse, April 1993. Lone Fathers Association, Australia (LFAA) organised the first National Family Law Conference in 1990 and the second National Family Law Conference in 1997.
5. Participants at the LFAA Conference (1997) raised the possibility that more political gain may result from strategic alliances and the creation of an umbrella organisation. Cheryl Gregory from DADs is engaged in the task of developing a mailing list and appropriate structure.
6. At the LFAA Conference (1997) Barry Williams recounted his communications with Tim Fischer. Member of Parliament and former Chair of the Joint Select Committee into the Family Law Act Roger Price attended the conference as did Liberal backbencher Paul Marrick [should be Marek] (federal member for Capricornia), and ACT Attorney-General Garry Humphries.
7. The Family Law Reform Party (FLRP) is a registered political party which has run candidates at state level and intends to run candidates at the next federal election.
8. See L Young, "Parenting Disputes under the Family Law Act 1975 : The New Regime" (1996)1 Sister in Law 93 at 101.
9. For one of the few treatments of these groups see R Graycar, "Equal Rights Versus Fathers’ Rights : the Gild Custody Debate in Australia" in Child Custody and the Politics of Gender, C Smart and S Sevenhuijsen (eds), Routledge, London, 1989. Canadian research in this area includes the work of I Bertoia and J Drakich, "The Fathers’ Rights Movement : Contradictions in Rhetoric and Practice" (1993)14 Journal of Family Issues 592. Work in the US includes S Coltrane and N Hickman "The Rhetoric of Rights and Needs : Moral Discourse in the Reform of Child Custody and Child Support Laws" (1992) 39 Social Problems 400. Work in the UK includes Richard Collier, "’Coming Together ?’ : Post-Heterosexuality, Masculine Crisis and the New Men’s Movement" (1996) IV Feminist Legal Studies 3.
10. These interviews were not a primary research resource. This was because we were unable to systematically locate groups and/or their representatives. However, the interviews did provide useful background information such as size of membership and the types of activities undertaken by the groups interviewed.
11. See M Kaye and J.Tolmie, "Discoursing Dads : The Rhetorical Devices of Fathers’ Rights Groups" (forthcoming in MULR).
12. Communication with research assistant. The Family Law Reform Association NSW Inc, in speaking of those involved in its inception (in one of its’ self-generated pamphlets), says that, "at times there were only four people at a meeting, but they were determined to press on for reforms to the Family Law Act, no matter how much support they received. They knew they were speaking for thousands of people and that it was imperative that they continue."
13. For example, Parent Without Rights was apparently formed in 1977. The LFAA claims to have started in 1973.
14. Mr Abolish Child Support and the Family Court changed his name by official deed poll. See "Nevil With A Cause", The Age, 3 October 1997.
15. Dads Against Discrimination (communication with research assistant). The UK group, Families Need Fathers, in its advice to members thinking about starting a local group says, "Only a few people will stay longer in a group than it takes to settle - or abandon - their own problems. Don’t be depressed..." See J Baker, Starting a local group : An FNF guide, Version 2, Families Need Fathers, London, 1996 at p 2.
16. See for example, Men’s Rights Agency which was co-founded by Sue Price.
17. Some notable examples an : A Horin, "Fathers Angry at Move to Cut Child Access", Sydney Morning Herald,22 June 1995 ; C Allisson, "Inquiry told of ’Grossly Unfair’ Child Support Laws", Sydney Morning Herald, 22 September 1993 ; M Brown, -There are a Lot of Angry Men out There", Sydney Morning Herald, 6 July 1984 ; L Lamont and N Jamal, "Getting Their Orders", Sydney Morning Herald, 12 February 1997 ; D Bagnall, ’Divorced from Reality", The Bulletin :, 12 November 1996, 16 at p 18.
18. Sex/life, Fathers and Family Law Courts, Programs 19 and 20.
19. B Arndt, "I want my Daddy", Sydney Morning Herald, 12 October 1996.
20. Life Matters, 19 December 1996. v
21. DADs newsletter (communication from DADs, QId).
22. N Naffine, Law and the Sexes Allen & Unwin, Sydney, 1990.
23. See Smart and Sevenhuijsen, above n 9, L Harne and J Radford, "Reinstating Patriarchy : the Politics of the Family and the New legislation" in A Mullender and R Morley (eds), Children Living with Domestic Violence : Putting Men’s Abuse of Women on the Child Care Agenda, Whiting & Birch, London, 1994 ; see further ; P Abbott & C Wallace, The Family and the New Right, Pluto Press, London, 1992.
24. LFAA Conference, 1997.
25. Lone Fathers’ Noos, the newsletter of the LFAA (undated, 1997). v
26. Ibid.
27. M. Abernethy. above, n 3 p 38. B Arndt, "When School’s Out for Fathers", Sydney Morning Herald, 4 May 1996, suggests that "family law reform groups"’ complaints about the treatment of non-custodial parents by school authorities have resulted in new policies in NSW and Queensland which attempt to offer non-custodial parents more involvement in their children’s schooling.
28. T. Taylor, "Australian Terrorism : Traditions of violence and the Family Court Bombings" (1992) 8, Australian Journal of Law and Society 1, argues that the Attorney-General’s consultation with fathers’ rights groups and his apparent desire to appease them had the effect of legitimising the bombings and delegitimising their target (the court).
29. LFAA Conference, 1997
30. M Abernethy, above, no 3 at 107.
31. L. Young, "Parenting Disputes under the Family Law Act 1975 : the New Regime" (1996)1 Sister in Law 93 at p 101.
32. For example s 60B(2) introducing the child’s right of contact, on a regular basis, with both parents ; the increase in "alterative dispute resolution" (now called primary dispute resolution) and private ordering generally ; the fact that a residence parent will not automatically have the rights to make decisions concerning the children (cf "old" custody orders). See J Behrens, "Shared Parenting : Possibilities and Realities" (1996)21 Alternative Law Journal 213.
33. Note in particular the work of the National Women’s Justice Coalition who lobbied for changes to the Family Law Reform bills. Amendments were made so that s 60B(2) clarifies the child’s ’right’ of contact so that it exists "except where it is or would be contrary to the best interests of the child". See also the ending of the "silence about violence" in the Act in ss 43, 68F, 68J, 68K, 68R, 68S and 68T, although many would argue that these changes did not go far enough. See J Behrens, "Ending the Silence, But... Family Vio1ence under the Family Law Reform Act 1995" (1996) 10 AJFL 35.
34. R Graycar, Submission to the Joint Select Committee on Certain Aspects of the Operation of the Family Law Act, Part Two, National Committee on Violence Against Women, 1991 at p71.
35. L Hancock, "Reforming the Child Support Formula : Who Wins ?", forthcoming in Just Policy.
36. M Fineman, "Illusive Equality : On Weitzman’s Divorce Revolution" [1986] American Bar Foundation Research Journal 781 at p 788.
37. Hancock, above, no 35.
38. An Examination of the Operation and Effectivenessof the Scheme (1994) Canberra.
39.For example she notes that in chs 16-19, which deal with issues concerning the child support formula, the submissions of non-resident parents are cited or quoted 81 per cent of the time by the committee, as opposed to submissions made by resident parents.
40. See also K Funder, "Changes in Child Support" (1997) 48 Family Matters 36.
41. The remainder of submissions were from organisations (which included a number of fathers’ rights groups), grandparents and divided custody parents. Graycar, above, n 9, found that of the oral submissions to the ALRC, Reference into Contempt, Report No 35,1987 (hereafter ALRC, Contempt) 46 out of 71 were from identified "fathers’ rights" groups or from individuals sympathetic to their position. See also M Harrison and R Graycar, "The Australian Family Law Reform Act : Can Changing Legislation change Legal Culture, Legal Practice and Community Expectations ?" (forthcoming).
42. B Arndt, Getting the Message Across about Injustice to Men, Conference Paper, LFAA Conference, 1997.
43. Text to no 14.
44. Many of these individuals perform key roles for one or more group. For example, the Child Support Action Group (CSAG) research paper entitled Parents are Forever : A Reply by the Disposable Parent was jointly written. One of the writers, Y Joakimidis, wrote the recent LFAA Submission to the ALRC reference on Children and the Legal Process, Issues Paper 18, AGPS, Canberra, 1996 (hereafter ALRC, Children).
45. Arndt, above, no 42.
46. Cheryl Gregory (DADs) speaking at LFAA conference, 1997.
47. See, D Ward Guidance for the Unification of Associations and Groups seeking Changes to Family Related Legislation in Each State, information leaflet, 1996.
48. Cheryl Gregory (DADs) speaking at the LFAA conference, 1997.
49. Pt VII of the Family Law Act 1975 (as amended by the Family Law Reform Act 1995) has changed much of the terminology (and substance) of parenting orders. In this paper we have tended to use the language of "custody" and "access" because that still tends to be the common parlance and the language used by most of the groups. Additionally, many of the groups, submissions upon which we have relied were written prior to the recent amendment.
P.S. * Lecturers at the Faculty or Law, Sydney University. We are indebted to the helpful comments of Reg Graycar on earlier drafts of this article. We would also like to thank Jonathon Hunyor, Suzanne Christie and Veronique Maury for their invaluable research assistance which was funded by the New South Wales Law Foundation Legal Scholarship Support Fund.
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