Shared care an unintended consequence

The law of unintended consequences, often cited but rarely defined, is that actions of people—and especially of government—always have effects that are unanticipated or unintended - The Concise Encyclopaedia of Economics.

When couples walk down the aisle or share their first pregnancy test results, few think about the consequences of a once loving relationship ending. Even fewer can image the nightmare a Family Court custody battle can become under the 2006 shared parenting amendments to the Family Law Act.

Parents who are not in conflict tend to settle custody arrangements amicably. Preliminary research is showing that for these couples 50/50 shared care works well. The 2006 amendments were designed to give fathers more access to their children and vice versa and to include shared parental ‘responsibility’ as an integral part of shared care.

However, cases which end up in the Family Court, where the fate of the children is decided under the new laws, are those in which the main feature is entrenched conflict and often family violence. Studies are show that these are the situations where shared care works least well.

Family Court Judge Justice Tim Carmody, who resigned a year after the 2006 amendments were introduced, says that shared care should not be a starting point, but an end point of family law.

‘Where the parents are co-operating and friendly, some form of shared care can work. But in cases of entrenched conflict, which represent the bulk of matters litigated in the Family Court, it puts the child right in the middle of the conflict. It’s like social engineering, a way of society forcing the parents to, in a sense, stay married and decide the most fundamental things they were not able to agree upon when they were together.’

Former Chief Justice of the Family Court, Alastair Nicholson, said in a Lionel Murphy speech that the effect of the shared parental responsibility approach ‘was and is not child oriented, but perpetuates the notion of a child as a chattel, whose time is to be equally divided between the parents, for the benefit of the latter, but not necessarily for the child.’

In May, following a national protest by the Safer Family Law Campaign about the new laws, the Chief Justice of the Family Court of Australia (FCA) said parents were being discouraged from raising violence and abuse issues. Under the shared parenting laws, in interim hearings, when domestic violence perpetrators are most volatile, there is no provision to investigate claims of abuse. If they cannot be proven, under the existing laws, the accusing parent risks losing custody of their child to the alleged perpetrator and paying both sides legal costs.

Carolyn Johnson, academic author of a book Come With Daddy, interviews with victims of familicide, says unless there is indisputable evidence of abuse, many lawyers advise their clients not to raise abuse issues because of a very real risk that the parent raising the issue will lose custody.

If a parent raises any objections about the other parent, they are labelled by the Court as a ‘hostile parent’ or ‘no contact’ or ‘alienating parent’ and seen by the Court as a danger to their child. They could end up with only one or two hours supervised contact a week or fortnight of supervised access with their child.

The number of parents who litigate in the Family Court has dropped dramatically since the 2006 changes. Johnson’s view is that this reflects the number of parents bullied or threatened into ‘agreeing’ to some percentage of shared care because they feared losing custody.

For couples who do end up in Court, the presumption is that contact with both parents is enforced, sometimes with dire consequences. Dionne Fehring was one of three parents of murdered children who spoke at national protest rallies held on May 3. She told how a Family Court judge had ignored reports of extreme violence by her former partner, which resulted in the deaths of her two infant children at his hands. The judge ignored her family’s pleas not to give the father unsupervised access to the children. Five weeks later the children were killed in a murder suicide by their father.

One of the Family Law Act reviews will look at how State and Federal laws fail to work together to protect children. Often a State Magistrates Court will issue a violence restraining order, but the Federal Family Court will override it and order contact. The police had taken out a restraining order to protect Dionne and her children which was overruled by the FCA when it awarded interim custody to the father. And this was two years before the strengthened amendments.

According to its own website, the Family Court states that: ‘In a third of litigated cases, the Family Court ordered that children spend 30% or less time with their father.’  In 29 percent of those cases, the main reason given was ‘abuse and family violence’. In 9 percent of litigated cases, mothers were awarded less than 30 percent care and in 16 percent of those cases, the main reason was abuse and family violence. In other words, even parents the Court itself deems violent are being awarded some access to their children.

Given that the Family Court hears only a fifth of Family Law cases, with the Federal Magistrates Court hearing four fifths, the number of litigated cases since 2006 can be estimated at approximately 11,000 or so.

If supervised access is ordered, and if children protest and cry about being forced to see a parent they have witnessed being violent, the protective parent is often blamed. There seems little understanding of the psychological impact on a child of having witnessed violence, says child expert Emeritus Prof Freda Briggs.

From one grandmother: ‘My grandchildren told the court psychologist how they had to watch their father bash their mother, spit on her, drag her around by the hair and kick her with steel-toed boots - and then the Court said go sit at the contact office and have a meaningful access visit.’

Professor Briggs says it is more psychologically damaging for children who have witnessed abuse than if they were themselves abused.

‘They tend to blame themselves for not being able to protect the other parent. Forcing children to see a violent parent further abuses them in many cases,’ she said.

For parents who believe they have a good relationship with their ex, and that, despite the marriage breakdown, they have faith in the other’s ability to parent well, if the child, for any reason, protests about access visits, Court can impose severe penalties on the custodial parent.

Earlier this year, the FCA said one Tasmanian woman was an exemplary parent who promoted a healthy relationship with the father, but lost custody of her two children because the daughter cried and protested when she had to go on access visits in Melbourne.

The problem is not only one for mothers. Fathers too are blamed when a child is unhappy about access visits. ‘When my five-year-old objects to seeing her mother in the supervised access centre,’ said one father ‘I’m made to feel by the staff that it’s my fault.’ Instead of the Court listening to the child, or investigating reasons why they may feel insecure or unhappy, one parent is often seen as responsible.

Shared parental responsibility laws began in Australia in 1995 and were strengthened in 2006. The first review of the 2006 amendments, by the Australian Institute of Family Studies, is due in December 2009. Any changes would not be expected until at least July 2010.

What about the kids?

In one study involving over 300 children, 27% were in shared care arrangements. In these cases, the fathers reported consistently higher frequencies of minor conflict, serious verbal conflict and major conflict with their former wives throughout that year; and the mothers were more likely than mothers in other sorts of arrangements to feel that their former partner did not believe they were good parents.

In the second study, in 73% of the shared care cases resolved at court, at least one parent reported ‘almost never’ co-operating with the other. And in 39% of shared care cases, a parent reported ‘never’ being able to protect their children from their conflict.

Such findings are concerning, because they suggest that a significant proportion of these children emerged from Family Court proceedings with substantially shared care arrangements that occurred in an atmosphere that placed psychological strain on the child.  The research suggests that children are particularly at risk when certain factors are present, such as:

• parents having low levels of maturity and insight
• poor emotional availability of parents to the child
• ongoing, high levels of inter-parental conflict
• ongoing significant psychological acrimony between parents
• one or both parents seeing the child as being at risk when in the care of the other.

Source: Cautionary notes on the shared care of children in conflicted parental separations by Professor Richard Chisholm and Dr Jennifer McIntosh, published Australian Institute of Family Studies, Family Relationships Quarterly Newsletter, issue 8.
 

Ping pong kids

For some, the changes can’t come soon enough.

A Sydney mother showed her solicitor a photograph of a hand-print welt on her three-year-old daughter’s back, only to be told it would be unwise to produce the picture in Court. When she asked why, she was told she risked losing custody, a risk she was not prepared to take. She has agreed to share custody with her ex who has three days a week.

One Adelaide mother of an eight-month-old baby (already travelling three hours a day several times a week to visit her father) was told by the Court to stop breast feeding within three months so the baby could start overnight contact visits.

Relocation issues are also problematic under the amendments.

Another child whose parents met and lived in Sydney, but had spent eight months in a remote Queensland town where the father had moved for work, was ordered to have 50/50 shared care with both parents. The order forced the mother to remain living in a caravan park (there was no other housing available), isolated from the family and support network where she had grown up. The Court heard that the mother was depressed and financially destitute since there was no work in the town.

To view changes being called for see the National Council for Children Post Separation and The Safer Family Law Campaign.

By Barbara Biggs

This article was first published in the Spring 2009 edition of Australian Family Magazine.