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2004/04: Divorce laws: should separating parents have equal custody of their children?
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divorce
custody
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Sections in this issue outline (in order):
1. What they said. 2 The issue at a glance. 3 Background. 4 Internet information links. 5 and 6 Arguments for / against. 7 Further implications on this issue. 8 Newspaper items used in the compilation of the outline.
What they said ...
'The termination of a relationship, particularly if there are issues surrounding the custody of children or disputes in the Family Court and a father loses custody, seems to increase the likelihood of the parent killing themselves and their children'
Jenny Mouzos, a researcher with the Australian Institute of Criminology
'One of the biggest problems concerns the ... parent [usually the mother] who ... systematically breaches court orders relating to access and residency'
Sarah Henderson, a lawyer and director of Kudos Management Group
The issue at a glance
In June 2003 the Prime Minister, John Howard, proposed that Parliament's Family and Community Affairs Committee review post-divorce custody and child support laws.
On 25 June 2003 the Minister for Children and Youth Affairs, Larry Anthony, and the Attorney General, Daryl Williams, asked the Committee to inquire into child custody arrangements in the event of family separation.
The Committee will specifically investigate whether a 'rebuttable presumption of joint custody should be introduced' wherever arrangements regarding child access are in dispute.
If this presumption is accepted, the starting point for any negotiations re child access is that the child would spend 50 percent of its time with each parent. It would then be necessary for any parent who believed this arrangement inappropriate to demonstrate why.
The Committee has received nearly 1700 public submissions. This is claimed to be a record number of submissions and concern has been expressed that the Committee does not have time to consider these submissions adequately before it is required to report its findings.
The Committee is expected to report by December 31, 2003.
Background
Despite the current select committee inquiry, 'custody' is a term that no longer has legal currency in Australia.
Prior to 1995, one parent had 'custody' while the other had 'access'. The parent with custody would be the parent in whose home the children primarily resided. However, custody also included virtually all the rights and powers that an adult needed to bring up a child, including the right to make decisions about a child's education and religion.
An access parent was granted visitation rights and/or could have the child live with them for designated or agreed periods. The access parent was still a legal guardian, but had few rights in determining how the child would be reared.
The terminology of custody and access was abolished by the Family Law Reform Act 1995. The Family Law Act now provides that whatever happens to the relationship of husband and wife (or de factos), they remain parents.
The Act says children have a right of contact, on a regular basis, with both their parents and with other people significant to their care, welfare and development (and that includes grandparents).
The Family Court or the Federal Magistrates Court makes orders about the practical issues of residence and contact if people cannot agree between themselves; but in the great majority of cases, both the parents retain parental responsibility.
Thus the Family Law Act in Australia gives parents 'joint custody' automatically, in the sense that both parents have legal responsibility for the child and should be involved in the child's upbringing after separation.
Though both parents retain responsibility for their children, one parent is usually designated the primary caregiver and the children reside principally with that person. Typical Family Court orders for residence and contact in Australia allow that the non-resident parent should have the child to stay for two nights every other weekend and half the school holidays. However, a court may modify that position, and restrict or prevent contact, if this is necessary for the safety and wellbeing of a child.
Thus the current debate is more about equal joint residence, rather than custody. Many of those arguing in favour of equal joint custody are in fact suggesting that children should spend approximately half their time in one parental household and half their time in the other. This seems to be what lies behind the concern expressed by the Prime Minister, John Howard, that many boys growing up in post divorce families lack male role models both at home and in school until their teenage years.
It is worth noting, however, that though the Family Law Act obviously intended that both divorced parents would collaboratively make significant decisions about their children's lives, in practice such decisions are more likely to be made by the parent with whom the children reside.
Internet Information
The Australian Parliament House of Representatives has published the document authorising an Inquiry by the Standing Committee on Family and Community Affairs into Child Custody Arrangements in the Event of Family Separation.
This document can be found at http://www.aph.gov.au/house/committee/fca/childcustody/
It outlines the terms of reference of the Inquiry.
It also includes links to the huge number of submissions received by the Inquiry.
The Australian Parliament's publication, 'About the House' invited Patrick Parkinson to produce an article outlining custody arrangements in Australia and the United States as background to the debate triggered by the Standing Committee on Family and Community Affairs into Inquiry Child Custody Arrangements in the Event of Family Separation.
Patrick Parkinson is Professor of Law at Sydney University.
This is a very informative article, explaining the law as it currently operates in Australia and attempting to clear up some popular misconceptions about joint custody provisions in the United States.
Much of the information supplied in the Background section of this issue outline was taken from this article.
The article can be found at http://www.aph.gov.au/house/house_news/magazine/ath18_childcustody.pdf
As it is a pdf file, you will need Adobe Acrobat Reader in order to read it.
The laws administered by the Family Court, including the Family Law Act, can be found at http://www.familycourt.gov.au/html/legislation.html
Mens Rights is a national non-profit organisation seeking to support men's claims in divorce and custody disputes. It contains a great deal of information both from within Australia and overseas supporting the proposition that men are unfairly treated in custody disputes and that the Family Court in Australia operates to the detriment of men.
Mens Rights Internet site can be found at http://www.mensrights.com.au/
The National Council of Single Mothers and Their Children is a lobby and support group originally founded to support women who had borne children outside marriage. Its brief is now much broader as it aims to support all sole parents, especially mothers.
The Council presented a submission to the Standing Committee on Family and Community Affairs Inquiry into Child Custody Arrangements in the Event of Family Separation.
The Council's Internet site can be found at http://www.ncsmc.org.au
The Shared Parenting Council of Australia was incorporated in September 2002 as a representative body for a range of parent, children, church and Family Law Reform organisations who share the common purpose of prescribing in law, every child's right to an equal relationship with both their mother and father following parental separation or divorce.
The Council seeks to promote a shared role for mothers and fathers after divorce or separation.
The Council's Internet site can be found at http://www.spca.org.au/
Arguments against formal joint custody of children
1. Equal joint custody may disadvantage children
It has been claimed that many children would suffer if required to spend approximately equal amounts of time with each of their divorced parents.
The Australian Institute of Family Studies has argued that 'co-parenting' would have significant disadvantages for some children.
The Institute has claimed that infants and pre-schoolers are likely to have a stronger attachment to one parent and so might be distressed if required to leave that parent and spend significant amounts of time with the other parent.
The Institute also notes that teenagers typically need to spend time with their friendship groups and that this could make moving between two households difficult and stressful.
An equal time arrangement would require parents to live quite close to one another, so that children could have continuity in terms of schooling and seeing their friends. In the aftermath of separation it may be very difficult for both parents to afford to live in the same area, even with one parent in the rental market. Divorce tends to bring about a shift by at least one parent if not both to areas of lower housing cost. Even if the parents live in the same area at first, as time goes on, re-partnering, job demands and other life circumstances may well pull them in different directions.
It is claimed that many separated families would simply find it infeasible to maintain equal parental access to the children.
In a study by the Australian Institute of Family Studies, based on interviews conducted in 1997, the median value of the net assets of couples at separation (excluding superannuation) was $124,101. In most divorces, there is simply not enough property to go around to enable the re-creation in two households of the equivalent of what the family had in one. In practice this means that many children may not be able to spend approximately equal time in two households, as there would not be enough resources to met their physical needs in both settings.
It has also been claimed that relations between the two parents may not be sufficiently good to enable equal time arrangements to work effectively.
After a divorce there may not be enough goodwill between both parents to allow for the degree of co-operation necessary to manage children's lives lived equally in two households.. There may also be differences in parenting styles that cannot be resolved. Divorce often result in estrangement between the parents, and so there are some parents for whom an equal time arrangement would not be a workable compromise. Further, where there has been domestic violence or child abuse, shared parenting would not be in the best interests of the child or the abused partner.
2. Abusive partners sometimes harm either their former partners or their children
It has been claimed that if women were further compelled to joint custody arrangements with their former husbands or partners, then they may be placed at greater risk of physical harm from these men.
The Domestic Violence and Incest Research Centre claims that about 86 percent of mothers are subjected to physical or verbal abuse from former partners when children are handed over under joint access.
It has also been argued that men who already treat their partners violently are likely to remain violent or become more violent when their partners leave them.
Janine Bush, policy co-ordinator for the Victorian Women's Refuges and Domestic Violence Services has claimed, 'After separating from an abusive partner, women frequently experience an escalation of violence and there is an increased risk of harm ...'
It has further been claimed that though statistically biological fathers do not pose a significant risk to their children, this situation alters after a custody dispute, especially when the Family Court's ruling has not gone in the father's favour.
Jenny Mouzos, a researcher with the Australian Institute of Criminology, has claimed, 'The termination of a relationship, particularly if there are issues surrounding the custody of children or disputes in the Family Court and a father loses custody, seems to increase the likelihood of the parent killing themselves and their children.'
It has also been noted that Mensline Australia, a telephone counselling service for men, receives at least two calls a day from men threatening to kill themselves and often their children.
Further, it is noted that though men with a pervious history of violent action are more likely to become abusive after a divorce, there is no certain way of predicting which males may behave in this manner.
Lee Formica, who represents Victoria's Law Institute on a Family Court committee dealing with domestic violence, has stated, 'What the court doesn't have is a crystal ball ... I don't think there is anything in the law that can deal with people that just lash out ...'
Critics of automatic equal access to children argue that the risk of such arrangements may be too great.
Chief Justice Nicholson of the Family Court has warned, 'A parent who is living in a violent or oppressive relationship may be persuaded to "agree" to a shared care relationship in inappropriate circumstances.'
A submission to the committee hearing from the Family Court has stated, 'Counsellors and judges are ... aware that increased contact may provide some parents with opportunities to control and harass their children and former partners.'
3. At-risk parents and children cannot be given adequate protection from violent former partners
It has been claimed that the law does not provide adequate protection for women who believe they are at risk of attack by a former partner.
It is argued that apprehended violence orders are not adequately enforced and so offer little or no protection to women who fear violence from former partners.
This criticism was made in September 2003 after a man, estranged from his former partner, stabbed to death his two children and their maternal grandfather. It has been claimed that an AVO(apprehended violence order) had been issued against the man and that despite making further threats against his former partner he was not taken into custody.
Victims groups claim that AVOs do little or nothing to protect the individuals involved and often inflame a situation.
Those who hold this view argue that joint custody arrangements cannot be expected to work when the law cannot provide adequate protection for those who fear attack from former partners.
It has further been claimed that there are insufficient changeover centres where partners can meet and the children can be swapped from one parent to another. These exchanges are often an opportunity for one former partner to abuse the other.
Many such exchanges take place in public locations such as fast food restaurants because they give the women involved some degree of safety.
Counsellors have claimed they often have no choice other than to direct women to public places.
Again it has been argued that it is inappropriate to try to increase joint access when the safety of women and children currently involved in access arrangements cannot be guaranteed.
4. Joint parental access to children does not have to be equal access
Chief Justice Alastair Nicholson of the Family Court has argued that a starting point of presumed equal custody was impractical and unnecessary. Justice Nicholson has claimed that the key in custody cases was the quality of the relationship between parent and child and not the quantity of time spent together.
According to this line of argument, many children do not see their parents for equal amounts of time, even when those parents are living as husband and wife under the same roof.
It is claimed that a viable and valuable relationship can be maintained with each parent without the starting point for that relationship being that the child resides for each amounts of time with each parent. So long as each parent has a substantial amount of time with the child on a regular basis this should be sufficient to maintain a sound relationship.
5. Some parents do not want equal joint custody
It has been claimed that some divorcing parents do not want to have equal joint custody of their children. On the extreme end of this scale there are those parents who, after a divorce, no longer want to continue contact with their children at all. This point has been made by Trish Bolton, a tutor in media and communications at Swinburne and Monash universities, in an article published in The Age on September 3, 2003.
Ms Bolton claims, 'My children were three and seven when I ended my marriage. Their father kept contact with them for a year or so, but after less than three months I knew it wouldn't last. Somehow, in that short time, his love for them just seemed to evaporate.'
Chief Justice Alistair Nicholson of the Family Court has made a similar point. Justice Nicholson has claimed, 'Some fathers chose not to have contact with their children or did not show up when they had access on weekends, having to be persuaded by court counsellors to maintain contact with their child.'
A submission to the committee hearing from the Family Court has made a similar point, 'Sadly, it is not uncommon in counselling sessions for a counsellor to need to encourage parents (often fathers) to stay involved, rather than retreat altogether from their children.'
Arguments supporting formal joint custody of children
1. The current access provisions are inequitable, especially in their treatment of fathers
It is claimed that divorcing fathers are far less likely to be granted primary custody of their children than are their female partners. It is also claimed that the access they are granted is either inadequate or that their access rights are ignored by their former partners.
An article published in The Australian in 1998 gave the following figures.
In 1980, fathers were successful in 31 per cent of defended custody cases and mothers in 54 per cent, while in 10 per cent the custody was shared. In the rest, custody went to other family members or institutions.
In 1990, fathers were again successful in 31 per cent of cases, mothers in 60 per cent; there was shared custody in 8 per cent of cases and in 1 per cent of cases custody went to family members or institutions.
Thus, on the face of it, mothers are twice as likely as fathers to have the family Court determine that their children should reside primarily with them.
Research conducted in 2003 by the Australian Institute of Family Studies on data arising from the Household Income and Labour Dynamics survey found that 36 per cent of Australian children whose parents were not living together had not seen their fathers in the last 12 months. A further 17 per cent had day-only contact. Less than half of those fathers with access to their children had them to stay overnight. This was a study of more than 1000 separated parents. 32 percent of divorced fathers had not had contact with their children in the last twelve months.
Figures published in 1999 present a similar picture. In an article published in the Australian in 1999 it was claimed that more than 1 million children were in single-parent homes, with only three per cent in shared care arrangements and 97 per cent in sole care arrangements. It was further claimed that about 70 per cent of children living with one parent saw their other natural parent less than once a week, while about 30 per cent saw their other parent once a year or less.
It is claimed that these figures demonstrate a predisposition on the part of the Family Court to grant custody of children to mothers.
It is further claimed that many women deliberately frustrate their former partners' custody rights and that the Family Court rulings are difficult to enforce. Critics of the system argue that many mothers do not give fathers the access rights granted them by the Family Court and that little official effort appears to be made to rectify this situation.
2. Access rights granted by the Family Court are very difficult to enforce
It has been noted that many parents, particularly fathers, who have been granted access and partial residency rights have these rights systematically denied by their former partners.
Sarah Henderson, a lawyer and director of Kudos Management Group, has noted, 'One of the biggest problems concerns the ... parent who ... systematically breaches court orders relating to access and residency.'
Ms Henderson claims, 'There are plenty of payee parents [that is, parents receiving child support from their previous partner], most often mothers, who are more than happy to take the money and run, literally.'
Ms Henderson claims that this is a difficult problem to address. She writes, 'The problem is that unless parents are prepared to pay thousands of additional dollars in legal fees and court costs, access rights granted by the Family Court are almost impossible to enforce.'
3. The risk posed to children by a potentially abusive parent, especially a father, has been exaggerated
Australian Institute of Criminology figures show almost 72 percent of child homicides are committed by men - but rarely by the child's biological father. Children are much more likely to be killed by a de facto, a stepparent or their mothers.
'When biological parents killed their children, it was usually the mother rather than the father who perpetrated the homicide,' AIC researchers concluded, after reviewing all child murders over a ten-year period from 1989.
It is claimed that there is a popular misconception that many fathers pose a serious threat to their children and former partners. Critics of this view claim that the misconduct of a very small proportion of men is used to cast doubt on the parenting and relationship skills of all men. It is claimed that such prejudices create community and judicial attitudes that make it less likely that fathers will be granted custody of, or access to, their children.
4. Unequal custody arrangements may increase the risk posed to children and former partners
It has been claimed that rather than parents per se posing a risk to their children, whatever risk exists may actually be generated by the tensions surrounding a family breakdown and what are seen as the unequal custody arrangements that grow from the separation of the parents. It has been suggested that fathers, in particular, may become violent or abusive under these circumstances.
Jenny Mouzos, a researcher with the Australian Institute of Criminology, has claimed, 'The termination of a relationship, particularly if there are issues surrounding the custody of children or disputes in the Family Court and a father loses custody, seems to increase the likelihood of the parent killing themselves and their children.'
It has been argued that inequitable divorce settlements, particular with regard to child access, unbalance some fathers so that they become a risk to themselves and their children.
One divorced father, referred to by the assumed name 'Anton' was quoted in The Age as saying, 'If someone loses what they believe to be everything - their ability to see their kids, their job, their self-esteem - and they can't control their irrational thoughts, they start to move into the arena of revenge against their wives. These men might say, "If I kill myself, she wins, but if I take the kids with me, I win."'
Though very few fathers actually kill their children, there are social commentators who argue that estranged fathers would pose less of a risk to their children if custody arrangements were more equitable.
5. Current access provisions disadvantage children
It has been claimed that research indicates that many children require continued contact with the primary adults in their lives. Even very young children, it has been argued, rely not simply on association with their mother. Rather, it is claimed, they need to remain in contact with the significant adults in their lives. These key adults usually include their fathers and their grandparents.
Age columnist Bettina Arndt has argued, 'At present, when families break up, dad often disappears from the scene and it is often months or even years before contact with the children is resumed. The result is distressed children, particularly young children, [who] miss out on the comfort of attachments vital to their sense of security at this difficult time.'
It has further been claimed that men are just as capable of being principal caregivers as women and that they can offer things to their children that a mother may not be able to.
Bob Geldof, a popular musician involved in a celebrated British custody case in the 1990s, made the following observations. 'The contention that women are inherently better nurturers is wrong ... the 21st century is seeing the transformation of men's lives, and by definition the lives of their children. Nearly half the workforce is female and men now hold a different view of parenting. There are no studies, which suggest that a child brought up by a man (as I was) displays any psychological or
emotional characteristics different to one raised by a woman.
... But the unspoken assumption is that the interests of the child are
nearly always best served by the presence of the mother. This is simply wrong ... The law is creating vast wells of misery, massive discontent, an unstable society of feral children and feckless adolescents who have no understanding of authority, no knowledge of a man's love and how different but equal it is to a woman's.'
Further implications
At this point it is difficult to predict what will be the findings of the Standing Committee on Family and Community Affairs Inquiry into Child Custody Arrangements in the Event of Family Separation.
To date it has been reported that the Inquiry is likely to recommend that the minimum support payment to be paid by a divorced parent with whom a child does not reside be doubled from $5 a week to $10. Such a recommendation is unlikely to satisfy those who consider these payments highly inadequate.
It is doubtful that should the Inquiry endorse a presumption that both divorced parents should have the same right to have their child reside with them that this will see the end of the debate surrounding access and custody.
If this principle is accepted then it may go some way toward addressing the criticism made by many fathers that Family Court rulings minimise the importance of the role of a father in a child's life.
However, there are those who have suggested that all such a recommendation will do, if acted upon, is increase the number and length of hearings at the Family Court, as mothers, in particular, seek to demonstrate that their children should reside with them for more than fifty cent of the time. The bitterness and acrimony that surround such disputes are unlikely to disappear. In the event of a 50/50 residence ruling becoming the norm, all that is likely to change is that a higher percentage of women, as opposed to men, may begin to complain that the Family Court's rulings are inappropriate.
Sources
The Age
1/9/03 page 14 letter from Deborah Wiener, 'Unfair assault on the family Court'
1/9/03 page 14 letter from Lynda Memery, 'Since when did men have boobs, Bettina?'
3/9/03 page 13 comment by Trish Bolton, 'The unfair backlash against single mothers'
19/9/03 page 4 news item by David Wroe, 'Many absent fathers pay only $5 maintenance'
20/9/03 page 5 (Insight section) analysis by Julie Szego and Caroline Milburn, 'Blood relations'
27/9/03 page 4 news item by Wendy Tuohy, 'Access denied: when grandparenting isn't grand'
The Australian
13/9/03 page 3 news item by Christine Jackman, 'Parents rage at custody inquiry'
15/9/03 page 5 news item by Christine Jackman, 'Custody inquiry on fast track'
16/9/03 page 5 analysis by Christine Jackman, 'The tragedy of fathers who kill'
17/9/03 page 3 news item by Vanessa Walker, 'Killer's threats to wife revealed'
17/9/03 page 13 analysis by Christine Jackman, 'When dads get deadly'
18/9/03 page 10 editorial, 'Understanding why fathers kill their kids'
20/9/03 page 3 news item by Louise Perry, 'Stabbing sparks restraint order row'
22/9/03 page 3 news item by Christine Jackman, 'PM divorced from reality on custody'
The Herald Sun
24/9/03 page 18 comment by Sarah Henderson, 'Dads fight for fairness'
21/9/03 page 3 news item, '$840m debt on children'