1. ANZELA Legal Studies Teachers Conference Parliament House Brisbane Friday 3 May 2013 Contemporary Issues in Family Law Zoe Rathus AM Senior Lecturer Griffith University Law School

2. A Short History of the Shared Care Parenting Laws and the Gender Wars in Family Law 2

3. 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

4. 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

5. 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

6. 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

7. 2003 JOINT CUSTODY INQUIRY Terms 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. 7

8. 8 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)

9. 9 When Shared Care Works AIFS 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.

10. 10 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 care B 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

11. 11 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

12. 12 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

13. Back Cover of ‘Joint Custody’ Report 13

14. 14 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

15. 15 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

16. 16 The Law about Time Where 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

17. 17 Meaningful relationships New 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.

18. 18 ‘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

19. 19 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

20. 20 Evaluations & Reviews … and more Evaluations & Reviews …

21. 21 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)

22. 22 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

23. 23 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

24. 24 ESPR Orders and Family Violence FV and CA alleged FV onlyCA onlyNo allegation ESPR75.8%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% Other6.3%0.9%5.6%3.4% ESPR Orders Made (consent and judicially determined) post 1 July 2006 FV = family violence CA = child abuse Table 8.7 – AIFS, 2009

25. 25 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

26. 26 Parental Conflict and Shared Care Wk No MonTuesWedThurFriSatSun 1FMMFFFF 2MMMFFFF 3MMMMMMM 4FMMFFFF 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.

27. 27 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’.

28. 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 children It 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) 28

29. 29 Shared Time is Increasing Community 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%

30. 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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32. 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, 2009 http://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, 2009 http://www.ag.gov.au/www/agd/rwpattach.nsf/VAP/(3273BD3F76A7A5DEDAE36942A54D7D 90)~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

33. 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_FamilyRelationshipServicesOverviewofP rograms_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