A Short History of the Shared Care Parenting Laws and the Gender Wars in Family Law

ANZELA Legal Studies Teachers Conference

Parliament HouseBrisbane

Friday 3 May 2013

Contemporary Issues in Family Law

Zoe Rathus AMSenior Lecturer

Griffith University Law School

A Short History of the

Shared Care Parenting Laws

and the

Gender Wars in Family Law

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JOINT SELECT C’TEE - 1991• The politics goes public- Custody Wars: Are fathers getting a raw deal in family

law? (ITA) - New Woman – interviews a fathers’ rights campaigner:

He wants the awarding of joint custody of children to be the court’s first option; he wants lawyers removed from the process of family law and replaced with the system of mediation …

• Findings of JSC- many submissions, mostly from men were critical of

the Court’s attitude to joint custody- but “reluctance to order joint custody in contested

cases is fitting and appropriate”3

FAMILY LAW REFORM ACT 1995/96

• Enshrined children’s right of contact with both parents as a principle

• After lobbying – included the qualification – except if it is contrary to the child’s best interests

• Introduced legislative recognition of relevance of domestic violence as a factor

• Introduced mediation as the first option

PREDICTIONS COME TRUE

• Dramatic change in interim decisions:- significant increase in unsupervised contact

orders- significant reduction in no contact orders• Increase in litigation 1995/96 1996/97- custody/res. 11,430 19,424 - contraventions 786 1,434

Unacceptable Risk – Research Framework• Domestic violence and child abuse are

inter-related• Living with dv effects the post-separation

conduct of women• A ‘pro-contact’ culture has emerged since

1996• Insufficient relevance is accorded to a

history of dv in family law system decision-making

• Women’s Legal Service - 2000

2003 JOINT CUSTODY INQUIRYTerms of Reference Too Narrow

given that the best interests of the child are the paramount consideration, what other factors should be taken into account in deciding the respective time each parent should spend with their children post separation, in particular whether there should be a presumption that children will spend equal time with each parent, and, if so, in what circumstances such a presumption could be rebutted.

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Disjunction between social science research and policy?

• Despite the broad policy push towards encouraging co-parenting after separation – most notably the recently announced parliamentary inquiry into a rebuttable presumption of joint residence – little is known about parents who opt for shared care of their children, how these arrangements are structured, and how well they work.

• B Smyth, C Caruana and A Ferro, (2003)

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When Shared Care WorksAIFS Research Findings (2003)

• the men have reduced or flexible work arrangements• the women were all in paid work• the parents live close to each other• they had reasonable financial resources and infrastructure• a cooperative parenting style• child-focussed arrangements• a degree of paternal competence• most had not sought legal intervention

B Smyth, C Caruana and A Ferro, (2003) ‘Some whens, hows and whys of shared care: What separated parents who spend equal time with their children say about parenting’, Conference Paper presented at the Australian Social Policy Conference, Social Policy Research Centre, University of NSW.

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Characteristics of Families Who Share Care*• youngest child aged between 5 and 11 years (infants often

primarily attached to one parent and spending more time with them; older children needing time with friends and for other activities)

• most likely to have a university degree• most likely to be home owners or purchasers• likely to live within 10 kms of each other• mothers most likely to be in full time employment• fathers most likely to have a larger home with more bedrooms

* as compared with families who do not share careB Smyth, L Qu and R Weston, ‘The demography of parent-child contact’ chapter 9 in B Smyth (ed) Parent-child contact and post-separation parenting arrangements, AIFS, 2004 http://www.aifs.gov.au/institute/pubs/resreport9/main.html

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What was actually happening in Australia?

• Traditional parenting time (weekends) – 34%• Little or no parenting time – 26%• Daytime only parenting time – 16%• Holiday only parenting time – 10%• Occasional – 7%• Equal or near equal (30% of nights) – 6%

% = % of children with one parent living elsewhere

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House of Representatives Standing Committee on Family and Community Affairs

every picture tells a story:

Report on the Inquiry into Child Custody Arrangements in the Event of a Family

Separation →

Family Law Amendment (Shared Parental Responsibility) Act 2006

Back Cover of ‘Joint Custody’ Report

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Introduction of a Presumption

• 2006 – presumption that equal shared parental responsibility (ESPR) is in the best interests of children introduced into Family Law Act

• Linked to time outcomes – equal time and ‘substantial and significant’ time

• Linked through the lego-bridge of ‘the benefit’ of ‘meaningful’ relationships of children with both parents

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s61DA Presumption of equal shared parental responsibility when making parenting orders

(1)When making a parenting order , court must apply a presumption that it is in the best interests of the child for the child's parents to have equal shared parental responsibility [ESPR] for the child.

(2) The presumption does not apply where: (a) abuse of child or(b) family violence.

(3) interim order - applies unless court considers not appropriate in the circumstances

(4) May be rebutted by evidence that it is not be in the best interests of the child

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The Law about TimeWhere the presumption of ESPR is applied by a court it must:

consider whether equal time is BIC; and consider whether equal time is reasonably

practicable; and, if so →consider making an equal time order

If not, consider a making a substantial and significant time order by same process

See section s65DAA

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Meaningful relationshipsNew Primary Considerations – s 60CC(2)

(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and

(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

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‘Lego-science’• Presumption parades as social science

‘truth’ about what is good for children• But it is legislation not social science• Builds towards time like lego bricks • Now seeing increased use of social

science research in the courts

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Real Role of Presumptions• They are pragmatic and economical• Classic example: if a married woman gives birth

to a child, the husband of the women is presumed (rebuttably) to be the father.

• ‘justification for all presumptions is human experience’ … ‘there is no justification for maintaining a presumption if common experience is to the contrary.’ (Murphy J)

• FLA presumption is obviously not right for significant numbers of children – common experience to the contrary

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Evaluations&

Reviews

… and more

Evaluations&

Reviews …

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Public Perceptions• The AIFS Evaluation– ‘many parents did not understand the distinction

between shared parental responsibility and shared time’.

– This ‘widespread misunderstanding of the introduction of “equal” shared parenting came with an increase in expectations among fathers and a related perception of disempowerment of women’.

• “Although a presumption of equal time was not won by the fathers’ rights’ lobby, a cultural shift towards that outcome in community understanding and expectations was certainly gained. Some of this cultural shift seems to have also spilt over into the courts.” (ZR)

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Emerging Issues

• Three areas of particular concern:–Where there has been family violence or

abuse–High levels of parental conflict–Infants and young children

• Seven reports have been commissioned and other independent research published

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Family Violence• AIFS Evaluation• FV – negative impact on children generally• BUT shared care no worse than other arrangements• EXCEPT where mother held safety concerns• 24% - 25% of mothers implementing shared care

reported past physical hurt by children’s father

Bagshaw and Brown• Some mothers felt pressure to agree to shared care

despite history of violence

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ESPR Orders and Family Violence

FV and CA alleged

FV only CA only No allegation

ESPR 75.8% 79.6% 71.9% 89.8%

Sole to mother

14.0% 18.5% 18.0% 4.9%

Sole to father

4.0% 1.0% 4.4% 1.8%

Other 6.3% 0.9% 5.6% 3.4%

ESPR Orders Made (consent and judicially determined) post 1 July 2006

FV = family violenceCA = child abuse

Table 8.7 – AIFS, 2009

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PARENTAL CONFLICT

• 21% – 24% of mothers with shared care reported ‘highly conflictual or fearful relationships with father (AIFS)

• McIntosh: – Study with high conflict families– Shared care

• Parents with greatest on-going conflict over time• Children had on-going sense of being “caught in the middle”

– Children in other arrangements – sense of “caught in the middle” decreased

• But shared care arrangements increasingly common where parents conflicted

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Parental Conflict and Shared Care

Wk No

Mon Tues Wed Thur Fri Sat Sun

1 F M M F F F F

2 M M M F F F F

3 M M M M M M M

4 F M M F F F F

My little five year old woke up this morning and she goes, ‘Mummy, whose house are we going to today?’ and that just broke my heart and I sort of just laughed I said to her: ‘It’s Daddy’s tonight and then you see Mummy the next two nights, and then you go back to Daddy for the rest of the week, okay?’ … (Fehlberg research)

21 day cycle imposed by FM on conflicted family.

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Infants and Young Children

• Shared care quite rare• McIntosh – infants exhibited irritability and

‘vigilant efforts to monitor the presence of the primary parent’

• 2 -3 year olds – higher rates of problem behaviour and poor persistence

• Reason – disruption to the primary attachment relationship when ‘emotional regulatory systems of the brain are at a critical period of establishment’.

Debate about Shared Care• Lawyers, researchers and social scientists have different views.• In 2011 the Australian Journal of Family Law published an article,

a comment on this and a response to the comment – all about parenting arrangements for young childrenIt is important for the legal reader to note that many of the positive outcomes observed in shared-time families are now known to be less attributable to the time arrangement itself, and more to the attributes of the relatively small group of parents who sustain these arrangements (eg these parents opt in voluntarily, get along, are well educated, and have a degree of financial independence and flexibility in their work hours) compared to other separated parents. Our own recent study suggests that shared-time parenting can have a darker side, namely, as a de-stabilizing influence on important early foundations of development.(This is the comment)

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Shared Time is IncreasingCommunity Statistics

• 2003 – about 6% of children in equal time• 2008 – about 16% in substantially shared care (post-

reform separations)• Outcome of change in law or changing social views?

Family Court Statistics• Shared time orders pre and post reform – 4% 34%• ESPR – 76% 86%

Family Violence Amendments• New amendments about FV become operative

in 2012• Comprehensive definition of FV – including

being exposed to FV• Repealed some provisions that appeared to

silence women from disclosing violence• Placed emphasis on the primary consideration

about protection from violence• Family Court has Best Practice Principles for

Judges dealing with FV cases (on website)30

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Zoe Rathus, Griffith Law School

Post Reform Research

1. R Kaspiew, M Gray, R Weston, L Moloney, K Hand and L Qu, Evaluation of the 2006 Family Law Reforms, Australian Institute of Family Studies, December, 2009.http://www.aifs.gov.au/institute/pubs/fle

2. R Chisholm, Family Courts Violence Review, November, 2009http://www.ag.gov.au/www/agd/agd.nsf/Page/Families_FamilyCourtsViolenceReview

3. Family Law Council, Improving Responses to Family violence in the Family Law System: An Advice on the intersection of family violence and family law issues, December, 2009http://www.ag.gov.au/www/agd/rwpattach.nsf/VAP/(3273BD3F76A7A5DEDAE36942A54D7D90)~Family_Violence_Report.pdf/$file/Family_Violence_Report.pdf

4. J Cashmore, P Parkinson, R Weston, R Patulny, G Redmond, L Qu, J Baxter, M Rajkovic, T Sitek and I Katz, Shared Care Parenting arrangements since the 2006 Family Law Reforms, Social Policy Research Centre, May, 2010

Zoe Rathus, Griffith Law School

Research Continued

5. J McIntosh, B Smyth, M Kelaher, Y Wells and C Long, Post-separation Parenting Arrangements and Developmental Outcomes for Infants and Children – Collected Reports, May, 2010

6. D Bagshaw, T Brown, S Wendt, A Campbell, E McInnes, B Tinning, B Batagol, A Sifris, D Tyson, J Baker and P Fernandez Arias, Family Violence and Family Law in Australia: The Experiences and Views of Children and Adults from Families who Separated Post-1995 and Post-2006, April, 2010

• Reports 4 – 6 are available at http://www.ag.gov.au/www/agd/agd.nsf/Page/Families_FamilyRelationshipServicesOverviewofPrograms_ResearchProjectsonSharedCareParentingandFamilyViolence

7. Australian Law Reform Commission and NSW Law Reform Commission, Family Violence: Improving Legal Frameworks – Consultation Paper, April 2010 and Family Violence: A National Legal Response – Final Report, October, 2010