Patrick ParkinsonProfessor of Law

University of Sydney

Understanding the tumultOngoing conflict in Australia

concerning the law of parenting after separation

Very similar patterns all over the western world

Need to understand what is happening in a historical and comparative context

Finding a balance between competing policy concerns.

Trench warfare and the text of Part VII, Family Law Act

This paperReviews trends in the Western world

concerning the law relating to parenting disputes after separation

Explains why these changes have occurred and are probably irreversible

Considers when sole parental responsibility orders, and orders for limited or no contact, are appropriate, in the context of an acceptance that for the most part the ‘family’ continues after parental separation.

The indissolubility of parenthoodMajor shift in the law concerning parenting

after separation in the last thirty years across the western world.

Conflict arises from the breakdown of the model on which divorce reform was predicated in the late 1960s and early 1970s.

Model assumed that divorce could end the relationship between parents in such a way that people could get on with their lives with only residual ties to their former partners.

Marriage may be freely dissoluble, but parenthood is not.

Divorce reform and the free dissolubility model

• Giving dead marriages a decent burial• Allocating the property• Child support and spousal maintenance• Allocating the children – custody and

access• People could start anew with few ties if

any, to the preceding relationship• Eg Family Law Act 1975 (Cth)• Uniform Marriage and Divorce Act (USA)

The substitution model of post-divorce parenting

• “Divorce dissolves the family as well as the marriage” (Braiman v Braiman 378 NE 2d 1019 at 1022 (1978))

• The marriage breakdown marks the dissolution of the nuclear family

• Choice between two alternative households

• Strong differentiation between custodial and non-custodial parent.

Adjudication processes in the substitution model

Custody dispute was much like a contest about a deceased estate. “The parents' marriage, like the decedent, was dead. Parents, like the heirs, were in dispute about the distribution of one of the assets of the estate — their children…The goal of the proceeding was a one time determination of custody ‘rights’ which created ‘stability’ for the future management of the asset.” Andrew Schepard

Reconceptualising the post-separation family

• Théry and the idea of the “enduring family”

• Family remains a unit, but a bipolar one • Implies the refusal of a choice between

parents in favor of joint parental authority

• Ahrons and the “binuclear family’: limited partnership established for a single purpose – to be co-parents to the children.

The enduring familyFamily does not go through a death so

much as a metamorphosis No longer a nuclear householdOften a family in two locations, with new

relationships extending the range of adults and children associated with that family

Parents tied to each other by the continuing obligations of parenthood

II

From Sole Custody to Shared Care

The demise of ‘custody’• The joint legal custody movement

(USA)• Joint parental responsibility as the

default position:• The Children Act (England and Wales)• The principle of “coparentalité” (France)

- joint parental authority • Gesetz zur Reform des

Kindschaftrechtes, 1997 (Germany)• Scandinavia

Encouraging non-resident parent involvement

‘Joint physical custody’Arguments about time Legislative encouragement of shared

parenting France: alternating residence as an option Belgium: Loi tendant à privilégier

l'hébergement égalitaire de l'enfant dont les parents sont séparés (2006)

Louisiana, Arizona and other US states Spectrum of choices on offer to structure

post-separation parenting Abandonment of binary thinking about

‘custody’

Parental responsibilityFamily Law Reform Act 1995: Consistent with

international trends. Parental responsibility deemed to continue after relationship breakdown subject to court order.

2006 reforms: presumption of equal shared parental responsibility except where violence or abuse. Requirement on the courts to consider

specifically whether or not to make an order for equal shared parental responsibility has meant that joint parental responsibility is much less likely to continue as the default position.

The language of parenting orders1995: residence and contact2006: ‘live with’ and ‘spend time with’The price of greater sensitivity in the

language has been greater prolixityConsistent with international trends.

Language of custody disappearing everywhere.

Language of ‘parenting time’ and parenting plans is emerging pattern in the USA.

Encouraging non-resident parent involvement

Objects: Children have the benefit of both of their

parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child.

the need to protect children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence which may necessitate restraints on contact by one parent.

Consistent with international trends but duty to consider equal time was not in the mainstream.

Five factors•Cultural changes•Very wide support for involvement

of both parents•Pressure from fathers•Children’s needs and wishes for

more contact•The Government and child support

The preciousness of childrenDeclining birthrates and later starts to family life“The child becomes the last remaining, irrevocable,

unique primary love object. Partners come and go, but the child stays. Everything one vainly hoped to find in the relationship with one's partner is sought in or directed at the child. …Doting on children, pushing them on to the centre of the stage…and fighting for custody during and after divorce are all symptoms of this. The child becomes the final alternative to loneliness, a bastion against the vanishing chances of loving and being loved.

(Beck and Beck-Gernsheim)

Attitudes to parenting after separation

79% of fathers and 83% of mothers in 2009 agreed or strongly agreed with the statement that “children generally do best after separation when both parents stay involved in their lives”.

86% of separated fathers agreed in 2009 v 77% of separated mothers.

Significant levels of support for the concept of shared care.

Children’s needs, and desire for more contact

Involvement of both parents beneficial in the absence of safety concerns or high conflict

Not frequency of time but closeness of parent-child relationship

The importance of authoritative parentingThe problem of the 12 day gapMajority of children in studies want more

time with non-resident parentYoung adults reporting on their childhoods

say they grieve loss of closeness to one parent following separation.

The Government and child supportMassive efforts to enforce child support

transfersConcerns about child povertyProtecting the taxpayer

Fathers’ dissatisfied with levels of contactHard for governments to enforce paternal

responsibility and do nothing about law of parenting and enforcement of contact orders.

Resistance to law reformNone of these changes have been without controversy

around the western worldFierce resistance to change from some advocacy

groupsTwo main arguments played out in every jurisdiction:

Men just want to have more time with their children in order to reduce child support

Laws which support greater paternal involvement in children’s lives put the safety of women and children at risk The argument is that the more that legislation supports and

encourages the involvement of non-resident parents, the more it exposes women to the risk of violence and abuse.

The importance of safety An absolute priority must be given to the

safety of victims of violence and their children when there is a risk of serious harm

But the arguments against laws that support the involvement of both parents have been ineffectiveThe tendency to treat all violence as homogenousGovernments respond by bifurcation -

strengthening laws on violence and abuse and greater involvement by non-resident parents

Occurred in 1995, again in 2006 and again in 2011 in Australia.

The way forwardFamily law systems need to deal with dark

realities of post-separation family life.Need to recognise the enormous societal

changes in the last 30 years but:Recognition of the notion that families endure

beyond the separation of the parents does not necessarily involve an assumption that all families can or should endure.

Sometimes, family law systems around the world try too hard to keep alive relationships which aren’t sufficiently healthy to survive without intensive care.

The politicisation of domestic violence

One of the greatest problems in developing sensible policy in this difficult area is that there is a discordance between the rhetoric surrounding domestic violence in public policy and the more complex picture derived from social science research.

Domestic violence defined in a homogenous way as being perpetrated mainly by men, and characterised by a desire to control and oppress women.

To develop sound policy, it is necessary to move beyond the rhetoric and to differentiate between different patterns of violence within intimate personal relationships.

Typologies of family violenceCoercive controlling violenceSeparation-engendered violenceMutual aggression in intimate

relationships‘conflict instigated violence’‘common couple violence’, ‘situational couple violence’ ‘violence driven by conflict’

Australian Institute of Family Studies 2009

Family violence in general community (10,000 respondents)

Fathers Mothers % %

Physical hurt 16.8 26.0Emotional abuse alone 36.4 39.0No violence reported 46.8 35.0Number of respondents 4,918 4,959

Current safety concerns

Fathers Mothers

% Safety concerns for:

both for child and self 2.6 8.4 self 1.6 3.6 focus child 12.3 9.1 no concerns 83.5 79.0 Number of respondents 4,825 4,772

Source: LSSF W1 2008

The new definition of family violence (s.4AB)

Helpful in identifying the pattern of violence.Two categories:

violent, threatening or other behaviour that coerces or controls the family member or

violent, threatening or other behaviour that causes the family member to be fearful.

Subsection (2) provides illustrations of conduct that may fall within the definition of family violence.

Is this a wider or narrower definition than before?The fact that behaviour constitutes an assault or

battery is neither necessary nor sufficient for the behaviour to constitute family violence within the Family Law Act

Violence defined in terms of effects, not just actions

A history of violence

Many provisions focus on history even when no current safety concerns e.g. the requirement on the court to take certain steps promptly (s.67ZBB)

AIFS found that a history of family violence did not necessarily impede friendly or cooperative relationships.16% of mothers who reported being physically

hurt by their ex-partner reported friendly relationships

23.5% reported having a cooperative relationship

18.5% reported a continuing fearful relationship

Focusing on Current Safety Concerns

Need for clearer focus on current safety concerns, as in New Zealand

NZ question: ‘will the child be safe if a violent party provides day-to-day care for, or has contact with the child?’

Need to concentrate resources on the parents and children who are at most risk

If everything is urgent, nothing is urgentLack of clarity in Act about how history of

violence or of prior family violence orders are relevant to decisions

The two safety prioritiesAct after the 2011 amendments, identifies two

priorities in cases where safety is an issue: The priority of child safety:

greater weight is to be given to the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence than to the benefit to the child of having a meaningful relationship with both of the child’s parents (s.60CC(2))

The priority of parental safety:In considering what order to make, the court must, to

the extent that it is possible to do so consistently with the child's best interests being the paramount consideration, ensure that the order...does not expose a person to an unacceptable risk of family violence (s.60CG).

The relevance of history Risk of abuse of childrenchildren’s attitudes towards living with, or going

on visits to, a violent parentassessing the mother’s capacity for parenting:

mothers may be misdiagnosed as suffering from various psychopathologies, when deficiencies and problems are reactive to the experience of abuse

assessing the mother’s attitude towards contact between the child and the other parent

Violence as a window on the soulHistory of coercive controlling violence esp.

important

The triumph of optimism over experience

Contact centres as the solution?The institutional imperative to help the

parents to ‘self-manage’Where there are ongoing issues of

violence, abuse or serious dysfunctionality requiring professional interventions to sustain the parent-child relationship, questions need to be asked about the purpose of those interventions.

Intractable conflictEvery Picture rec. 2: “Part VII of the Family

Law Act 1975 be amended to create a clear presumption against shared parental responsibility with respect to cases where there is entrenched conflict, family violence, substance abuse or established child abuse”

The effect of conflict on childrenReasons for entrenched conflict

Significant child protection concernsUnresolved anger at separation or issues with

new partners When conflict is intractable

When the Parents Have Never Been a Family

About 11-12% of all births are to single mothersSince 1975, entry of children born into lone-mother

families has increased at a higher rate than due to parental separation.

The hard questions:Is it realistic to expect parents to develop a cooperative

joint parenting relationship when they have never known what it is to live together and raise the child as a couple?

Is it to be presumed that children will benefit from a relationship with a parent whom they do not know through the intimacy of the daily child-care tasks in an intact family?

The legal issuesSec. 60B(2):

“children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together”

Children ‘have a right to spend time on a regular basis with both their parents.”

What if there has been conflict between the parents since birth?

The long-term prognosis – increasingly tenuous connection

Presumption of equal shared parental responsibility?

ConclusionMassive changes in family law across the

western world in last thirty yearsAustralian developments broadly consistent

with international trendsThe shift to recognise the indissolubility of

parenthood is both appropriate and irreversible

Policy discussions need to both acknowledge this and recognise that by no means all parent -child relationships survive parental separation or should survive

Greater clarity is needed in legislation

Intensive care for dysfunctional families

Thou shalt not kill; but need'st not striveofficiously to keep

alive.”

(Arthur Clough)