Patterns of Parenting After Separation

Patterns of Parenting After Separation

A Report to the Minister for Justice and Consumer Affairs prepared by the Family Law Council
April 1992

Contents

Conclusions and Recommendations

1. Background

2. Research Studies and Inquiries

3. Post-separation Parenting Decisions: Formality, Responsibility and Personal Power

4. Custody and Access - Values and Assumptions in Language

5. Shifting the Focus - The Parenting Plan

6. Directions for Reform

Appendices

1. Provisions of The Family Law Act 1975 on Custody of Children and Related Matters

2. Persons and Organisations making submissions

3. Patterns Of Parenting After Separation Questionnaire

4. Extract from The Code of Practice of The Law Institute of Victoria

5. Examples of Terminology within Parenting Plans

6. Sample Parenting Plan

7. Selected Bibliography

GLOSSARY of abbreviations used in this paper:

This paper avoids the use of abbreviations as far as possible. However, some abbreviations are used, particularly in chapter three (Research Studies and Inquiries), and these are set out below.

ACIF / Australian Children in Families - Study by Ochiltree
ADR / Alternative Dispute Resolution
AIFS / Australian Institute of Family Studies
Burdekin Report / Our Homeless Children. Report of the National Inquiry into Homeless Children by the Human Rights and Equal Opportunity Commission. (Mr B Burdekin - Chairman). AGPS. Canberra. 1989.
ECMB / The Economic Consequences of Marriage Breakdown- Study conducted by the Australian Institute of Family Studies
PCMB / Parents and Children after Marriage Breakdown- Study conducted by the Australian Institute of Family Studies

Conclusions and Recommendations

Conclusions

Throughout this paper, a number of conclusions are reached on which the recommendations made in the report are based. The conclusions are:

(a) Most children want and need contact with both parents. Their long term development, education, capacity to adjust and self esteem can be detrimentally affected by the long term or permanent absence of a parent from their lives. The well-being of children is generally advanced by their maintaining links with both parents as much as possible.

(b) Many separated parents who are not the primary caretakers of their children have less and less contact over time with their children.

(d) Unresolved conflict between parents plays a substantial role in the initial decision of many young people to leave home prematurely.

(e) There remain, however, individual cases in which on-going contact with a parent cannot be seen to advance the well-being of the child; particularly in cases where abuse of the child has occurred, or where serious family violence exists.

(f) Solutions found by parents themselves frequently minimise distress for children whose parents have separated.

(g) Wherever possible, dispute management and resolution processes which encourage parents to take responsibility for their own disputes should be encouraged.

(h) The role of lawyers in family law is very significant. Their influence can encourage the separating couple to find an amicable resolution for disputes, which are more likely to be beneficial for the children. It can reduce the immediate distress associated with the marriage breakdown, and help provide a basis for on-going contact between the child and both parents.

(i) There is a need to formulate policy aimed at making the best use of existing and future counselling and alternative dispute resolution services.

(j) At times the fact that litigation has commenced will result in parents realising that they must come to a solution in relation to the parenting of their children. However, proceeding to a defended hearing should be considered as an intervention of last resort.

(k) Cooperative parenting after separation is a desirable goal.

(l) Cooperative parenting will be enhanced by the use of terminology that discourages ideas of ownership of children.

(m) In the end result, the division of post separation parental roles into custody vs access reinforces the win/lose attitude and discourages ongoing parental responsibility.

(n) General principles to assist in making decisions about who should have the major care giving role run a considerable risk of being pre-emptive and contrary to the child's best interest.

(o) The joint custody presumption has been tried and abandoned in at least one major jurisdiction. It has several major problems:

· it retains ownership language;

· it is frequently perceived to mean equal time;

· equal time with each parent is often unworkable.

(p) Parenting plans have, at their basis, a language that recognises the needs of children and responsibilities of parents. Parenting plans have been shown to provide a useful framework to guide future relationships between separating parents and their children.

Recommendations

On the basis of its conclusions that the existing family law system fails to encourage cooperative parenting and that cooperative parenting has been shown to have positive and beneficial effects, the Family Law Council makes the following recommendations:

Recommendation 1 (paras 4.06 - 4.08)

The custody/access terminology in the Family Law Act should be replaced with alternatives set out in Recommendations 2 and 13.

Recommendation 2 (paras 4.06 - 4.08)

The word "guardianship" should be retained and the words "custody" and "access" should be replaced with the word "care" to describe shared parenting responsibilities in the Family Law Act.

Recommendation 3 (paras 5.17, 6.20 - 6.27)

All separating parents should be given information about, and urged to consider parenting plans as early as possible. To assist in this process:

(a) The Family Court should prepare a brochure, to be widely available, explaining the concept of parenting plans and their form, content and purpose. The brochure should also be a guide to assist separating parents in devising their own parenting plan;

(b) The Family Law Rules should be amended to require legal practitioners and Court officers to furnish information about parenting plans to persons proposing to initiate proceedings under the Act; and

Recommendation 4 (paras 5.09 & 5.16)

Formal recognition should be given to parenting plans by amending forms 4, 5 and 7 (Application for Dissolution of Marriage; Joint Application for Dissolution of Marriage; and Application Initiating Proceedings respectively).

Recommendation 5 (paras 5.05 - 5.06, 5.09 - 5.10)

A parenting plan should be set out in a manner which allows parents freely to decide the level of responsibility they intend to adopt for their children after separation.

Recommendation 6 (paras 5.21 - 5.22)

The parenting plan format should allow for maximum flexibility, to meet the changing needs of the child/ren and parents.

Recommendation 7 (para 5.06)

Parents should be encouraged, within their parenting plan, to choose a decision making or dispute resolution process to be adopted when problems arise. Litigating parental disputes should be the final option.

Recommendation 8 (paras 5.18 - 5.19)

Where litigation over the children is unavoidable, a Court wherever practicable should consider and frame orders in terms of a precisely defined parenting plan, using non proprietorial terminology.

Recommendation 9 (paras 6.20 - 6.27)

There should be an effective national education campaign to publicise and explain the parenting plan concept.

Recommendation 10 (paras 6.20 - 6.27)

There should be an education program directed specifically towards lawyers, counsellors, mediators, arbitrators and other people who advise separating parents. This program should provide detailed information about the reason for the adoption of parenting plans and about the operation of the plans.

Recommendation 11 (paras 5.26 - 5.30)

Consequential amendments should be made to related legislation.

Recommendation 12 (paras 6.04 - 6.05)

The terminology of the Family Law Act should include the concept of "residence" of the child to enable time ratios to be allocated between the parents for the residence of the child, where necessary.

Recommendation 13 (paras 6.10 - 6.11)

In amending the Family Law Act, the adoption of parenting plans and a change in terminology are preferable to the extension of child agreements.

Recommendation 14 (paras 6.12 - 6.14)

The introduction of a joint custody presumption is not recommended.

Recommendation 15 (paras 6.20 - 6.27)

There should be an effective education program designed to focus on the task of parenting after separation.

Recommendation 16 (paras 6.28 - 6.31)

The accessibility of counselling services and alternative dispute management and resolution procedures, should be improved so as to promote non- adversarial solutions to post-separation child care problems.

1. Background

Introduction

1.01 All too often, Australians are confronted with reports of marriage or de facto relationship breakdowns that involve bitter and sometimes tragic disputes over the children. Media reports of murders and suicides involving children highlight the emotionally volatile nature of this aspect of family law. The children of separated parents are often caught in a dilemma for which they bear no responsibility, but which causes them great personal anguish. Children can become pawns in a power struggle between their parents or can be used as vehicles for one or both parents to express unresolved and ongoing dissatisfaction with the breakdown of the domestic relationship. Some separating couples in Australia find themselves unable to distinguish between their personal bitterness about the breakdown of the relationship and the necessity of focusing on the future well being and contentment of their children.

1.02 In the introduction to its report Access - Some Options for Reform (1987), the Family Law Council expressed some sympathy for the view that the prevailing custody and access system created a mentality in which parents were encouraged to think of themselves as winners or losers in the custody battle. Furthermore, the Council suggested that if the couple could so agree, a system of joint custody, where both parents shared equal parental status (although the time spent with the child may be divided unequally) might be desirable.

1.03 On the other hand, there was an equally strong view, particularly among those involved in the litigation of custody disputes, that even a very cautious acceptance of the notion of joint custody by the Council would prove to be impractical.

1.04 While the Council regards cooperative approaches to parenting as a desirable aim, at no stage has joint custody been seen as a panacea. Indeed in the Australian context, enforcement of the strictly legal definition of joint custody - that is the day to day care and control of the children by both parents - is in most situations unrealistic. This is because in the vast majority of cases, the child resides principally with one parent.

1.05 Where parents are separated, traditionally the child has been thought of as being in the legal or de facto custody of one parent, and is seen to be in the total control of that parent. The other parent plays a minor role or, too often, no role at all and often feels deprived of some proprietary right to the child.

1.06 At its meeting in March 1988, Council established a sub-committee on Patterns of Parenting After Separation to examine existing patterns of parenting after separation, community expectations on the role of the custodial and non-custodial parents, preferred patterns of parenting and whether steps should be taken to encourage separated parents to adopt particular parenting arrangements.

Terms of Reference

1.07 The Patterns of Parenting After Separation Committee was subsequently given the following terms of reference:

1. To evaluate relevant research studies to identify patterns of parenting both within pre-separation and post-separation families in Australia.

2. To examine relevant research studies and literature relating to the effects on children and parents of current practices in family law in Australia relating to custody and access, and to indicate the extent, if any, that these practices affect parenting practices carried out prior to separation.

3. To study literature described in overseas family law practices relating to the care of children after separation.

4. To evaluate models of cooperative parenting to identify their relevance, if any, to Australian children and their families.

5. To develop models for instituting cooperative parenting after separation with a view to relating them to the various models of alternative dispute resolution.

6. To indicate the legislative, and as far as possible other changes, necessary to ensure that pre-existing patterns of parenting prior to separation are either respected or improved upon after the separation of the parents.

1.08 These terms of reference form the basis for the conclusions reached and the recommendations made throughout this Report. The conclusions are based on the first three terms of reference, and the recommendations on the latter three.

Committee members

1.09 The members of Council's Patterns of Parenting After Separation Committee at the time of production of this report were:

Ms Jan Williams, Convenor, Executive Director, Marriage Guidance (New South Wales), Sydney, NSW;

Professor Frank Bates, Professor of Law, Newcastle University, Newcastle, NSW;

Ms Margaret Harrison, Senior Research Fellow, Australian Institute of Family Studies, Melbourne, Victoria;

Mr Lawrie Moloney, Lecturer, La Trobe University, Melbourne, Victoria;

Mr Bill Hughes, Director of Research, Family Law Council Secretariat, Canberra, ACT.

1.10 Council acknowledges with thanks the research and drafting work on this report which was done by Ms Janet Power, a final year Arts/ Law student at the University of Queensland who worked with Council's Secretariat from December 1991 to February 1992.

Current legal provisions

1.11 Under the Family Law Act 1975 both parents are joint guardians and joint custodians of their children. This situation only changes by order of the Court. When this occurs the Court can order the children to be placed in the custody, or under the guardianship of, any person or persons, and it may grant a right of access to the children by any person. Joint custody may also be changed by the parents filing a child agreement in the Court.

1.12 Furthermore, where there are children of a marriage, the court may not, except in unusual circumstances, issue a decree absolute unless it is satisfied that proper arrangements, in all the circumstances, have been made for the welfare of those children.

1.13 The relevant provisions are found in Parts VI and VII of the Act and are set out in Appendix 1 to this paper.

The issues and problems

1.14 It is a complex matter to say whether the present laws concerning parenting after separation and related issues are performing well or not, or, to be more specific, to decide whether the current system is doing as well as any alternative that might be put in its place. As will be discussed further in this paper, there are several good reasons to explore possible alternatives.