Patrick Parkinson
Professor of Law
University of Sydney
I
The Transformation in Custody Law
Understanding the tumult
 Ongoing conflict in Australia concerning
the law of parenting after separation
 Very similar patterns all over the western
world
 Need to understand what is happening in a
historical and comparative context
 Finding a balance between competing policy
concerns.
Trench
warfare
and the
text of
Part VII,
Family
Law Act
This paper
 Reviews trends in the Western world concerning
the law relating to parenting disputes after
separation
 Explains why these changes have occurred and are
probably irreversible
 Considers when sole parental responsibility
orders, and orders for limited or no contact, are
appropriate, in the context of an acceptance that
for the most part the ‘family’ continues after
parental separation.
The indissolubility of parenthood
 Major shift in the law concerning parenting after
separation in the last thirty years across the western
world.
 Conflict arises from the breakdown of the model on
which divorce reform was predicated in the late 1960s
and early 1970s.
 Model assumed that divorce could end the relationship
between parents in such a way that people could get
on with their lives with only residual ties to their
former partners.
 Marriage may be freely dissoluble, but parenthood is
not.
Divorce reform and the free dissolubility
model
Giving dead marriages a decent burial
Allocating the property
Child support and spousal maintenance
Allocating the children – custody and access
People could start anew with few ties if any, to
the preceding relationship
• Eg Family Law Act 1975 (Cth)
• Uniform Marriage and Divorce Act (USA)
•
•
•
•
•
The substitution model of post-divorce
parenting
• “Divorce dissolves the family as well as the
marriage” (Braiman v Braiman 378 NE 2d 1019
at 1022 (1978))
• The marriage breakdown marks the
dissolution of the nuclear family
• Choice between two alternative households
• Strong differentiation between custodial and
non-custodial parent.
Adjudication processes in the
substitution model
Custody dispute was much like a contest
about a deceased estate.
“The parents' marriage, like the decedent, was dead.
Parents, like the heirs, were in dispute about the
distribution of one of the assets of the estate — their
children…The goal of the proceeding was a one time
determination of custody ‘rights’ which created
‘stability’ for the future management of the asset.”
Andrew Schepard
Reconceptualising the post-separation
family
• Théry and the idea of the “enduring family”
• Family remains a unit, but a bipolar one
• Implies the refusal of a choice between
parents in favor of joint parental authority
• Ahrons and the “binuclear family’: limited
partnership established for a single purpose
– to be co-parents to the children.
The enduring family
 Family does not go through a death so much as a
metamorphosis
 No longer a nuclear household
 Often a family in two locations, with new
relationships extending the range of adults and
children associated with that family
 Parents tied to each other by the continuing
obligations of parenthood
II
From Sole Custody to
Shared Care
The demise of ‘custody’
• The joint legal custody movement (USA)
• Joint parental responsibility as the default
position:
• The Children Act (England and Wales)
• The principle of “coparentalité” (France) -
joint parental authority
• Gesetz zur Reform des Kindschaftrechtes, 1997
(Germany)
• Scandinavia
Encouraging non-resident parent
involvement
 ‘Joint physical custody’
 Arguments about time
 Legislative encouragement of shared parenting
 France: alternating residence as an option
 Belgium: Loi tendant à privilégier l'hébergement
égalitaire de l'enfant dont les parents sont séparés
(2006)
 Louisiana, Arizona and other US states
 Spectrum of choices on offer to structure post-
separation parenting
 Abandonment of binary
‘custody’
thinking
about
III
The Australian Reforms in
Comparative Perspective
Parental responsibility
 Family Law Reform Act 1995: Consistent with
international trends. Parental responsibility
deemed to continue after relationship breakdown
subject to court order.
 2006 reforms: presumption of equal shared
parental responsibility except where violence or
abuse.
 Requirement on the courts to consider
specifically whether or not to make an order for
equal shared parental responsibility has meant
that joint parental responsibility is much less
likely to continue as the default position.
The language of parenting orders
 1995: residence and contact
 2006: ‘live with’ and ‘spend time with’
 The price of greater sensitivity in the language has
been greater prolixity
 Consistent with international trends. Language of
custody disappearing everywhere.
 Language of ‘parenting time’ and parenting plans is
emerging pattern in the USA.
Encouraging non-resident parent
involvement
 Objects:
 Children have the benefit of both of their parents
having a meaningful involvement in their lives, to the
maximum extent consistent with the best interests of
the child.
 the need to protect children from physical or
psychological harm from being subjected to, or
exposed to, abuse, neglect or family violence which
may necessitate restraints on contact by one parent.
 Consistent with international trends but duty to
consider equal time was not in the mainstream.
IV
Reasons for the Demise of Sole
Custody
Five factors
• Cultural changes
• Very wide support for involvement of
both parents
• Pressure from fathers
• Children’s needs and wishes for more
contact
• The Government and child support
The preciousness of children
 Declining birthrates and later starts to family life
 “The child becomes the last remaining, irrevocable, unique
primary love object. Partners come and go, but the child
stays. Everything one vainly hoped to find in the
relationship with one's partner is sought in or directed at
the child. …Doting on children, pushing them on to the
centre of the stage…and fighting for custody during and
after divorce are all symptoms of this. The child becomes
the final alternative to loneliness, a bastion against the
vanishing chances of loving and being loved.
(Beck and Beck-Gernsheim)
Attitudes to parenting after
separation
 79% of fathers and 83% of mothers in 2009 agreed or
strongly agreed with the statement that “children
generally do best after separation when both parents
stay involved in their lives”.
 86% of separated fathers agreed in 2009 v 77% of
separated mothers.
 Significant levels of support for the concept of shared
care.
Children’s needs, and desire for more
contact
 Involvement of both parents beneficial in the absence





of safety concerns or high conflict
Not frequency of time but closeness of parent-child
relationship
The importance of authoritative parenting
The problem of the 12 day gap
Majority of children in studies want more time with
non-resident parent
Young adults reporting on their childhoods say they
grieve loss of closeness to one parent following
separation.
The Government and child support
 Massive efforts to enforce child support
transfers
 Concerns about child poverty
 Protecting the taxpayer
 Fathers’ dissatisfied with levels of contact
 Hard for governments to enforce paternal
responsibility and do nothing about law of
parenting and enforcement of contact orders.
V
Opposition to change
Resistance to law reform
 None of these changes have been without controversy
around the western world
 Fierce resistance to change from some advocacy groups
 Two main arguments played out in every jurisdiction:
 Men just want to have more time with their children in order
to reduce child support
 Laws which support greater paternal involvement in
children’s lives put the safety of women and children at risk

The argument is that the more that legislation supports and
encourages the involvement of non-resident parents, the more it
exposes women to the risk of violence and abuse.
The importance of safety
 An absolute priority must be given to the safety of
victims of violence and their children when there
is a risk of serious harm
 But the arguments against laws that support the
involvement of both parents have been ineffective
 The tendency to treat all violence as homogenous
 Governments respond by bifurcation - strengthening
laws on violence and abuse and greater involvement by
non-resident parents
 Occurred in 1995, again in 2006 and again in 2011 in
Australia.
The way forward
 Family law systems need to deal with dark realities of
post-separation family life.
 Need to recognise the enormous societal changes in
the last 30 years but:
 Recognition of the notion that families endure beyond
the separation of the parents does not necessarily
involve an assumption that all families can or should
endure.
 Sometimes, family law systems around the world try
too hard to keep alive relationships which aren’t
sufficiently healthy to survive without intensive care.
VI
When is parenthood dissoluble?
The politicisation of domestic
violence
 One of the greatest problems in developing sensible policy
in this difficult area is that there is a discordance between
the rhetoric surrounding domestic violence in public policy
and the more complex picture derived from social science
research.
 Domestic violence defined in a homogenous way as being
perpetrated mainly by men, and characterised by a desire
to control and oppress women.
 To develop sound policy, it is necessary to move beyond the
rhetoric and to differentiate between different patterns of
violence within intimate personal relationships.
Typologies of family violence
 Coercive controlling violence
 Separation-engendered violence
 Mutual aggression in intimate relationships
 ‘conflict instigated violence’
 ‘common couple violence’,
 ‘situational couple violence’
 ‘violence driven by conflict’
Australian Institute of Family
Studies 2009
Family violence in general community (10,000 respondents)
Physical hurt
Emotional abuse alone
No violence reported
Number of respondents
Fathers
%
16.8
36.4
46.8
4,918
Mothers
%
26.0
39.0
35.0
4,959
Current safety concerns
Fathers
M others
%
Safety concerns for:
both for child an d self
self
foc us child
no concerns
Number of re spondents
2.6
1.6
12.3
83.5
4,825
8.4
3.6
9.1
79.0
4,772
Source: LSSF W1 2008
The new definition of family
violence (s.4AB)
 Helpful in identifying the pattern of violence.
 Two categories:
 violent, threatening or other behaviour that coerces or
controls the family member or
 violent, threatening or other behaviour that causes the family
member to be fearful.
 Subsection (2) provides illustrations of conduct that may
fall within the definition of family violence.
 Is this a wider or narrower definition than before?
 The fact that behaviour constitutes an assault or battery is
neither necessary nor sufficient for the behaviour to
constitute family violence within the Family Law Act
 Violence defined in terms of effects, not just actions
A history of violence
 Many provisions focus on history even when no
current safety concerns e.g. the requirement on the
court to take certain steps promptly (s.67ZBB)
 AIFS found that a history of family violence did not
necessarily impede friendly or cooperative
relationships.
 16% of mothers who reported being physically hurt
by their ex-partner reported friendly relationships
 23.5% reported having a cooperative relationship
 18.5% reported a continuing fearful relationship
Focusing on Current Safety
Concerns
 Need for clearer focus on current safety concerns, as in
New Zealand
 NZ question: ‘will the child be safe if a violent party
provides day-to-day care for, or has contact with the
child?’
 Need to concentrate resources on the parents and
children who are at most risk
 If everything is urgent, nothing is urgent
 Lack of clarity in Act about how history of violence or
of prior family violence orders are relevant to decisions
The two safety priorities
 Act after the 2011 amendments, identifies two priorities in
cases where safety is an issue:
 The priority of child safety:
 greater weight is to be given to the need to protect the child
from physical or psychological harm from being subjected to,
or exposed to, abuse, neglect or family violence than to the
benefit to the child of having a meaningful relationship with
both of the child’s parents (s.60CC(2))
 The priority of parental safety:
 In considering what order to make, the court must, to the
extent that it is possible to do so consistently with the child's
best interests being the paramount consideration, ensure that
the order...does not expose a person to an unacceptable risk of
family violence (s.60CG).
The relevance of history
 Risk of abuse of children
 children’s attitudes towards living with, or going on




visits to, a violent parent
assessing the mother’s capacity for parenting: mothers
may be misdiagnosed as suffering from various
psychopathologies, when deficiencies and problems are
reactive to the experience of abuse
assessing the mother’s attitude towards contact between
the child and the other parent
Violence as a window on the soul
History of coercive controlling violence esp. important
The triumph of optimism over
experience
 Contact centres as the solution?
 The institutional imperative to help the parents to
‘self-manage’
 Where there are ongoing issues of violence, abuse
or serious dysfunctionality requiring professional
interventions to sustain the parent-child
relationship, questions need to be asked about the
purpose of those interventions.
Intractable conflict
 Every Picture rec. 2: “Part VII of the Family Law Act
1975 be amended to create a clear presumption against
shared parental responsibility with respect to cases
where there is entrenched conflict, family violence,
substance abuse or established child abuse”
 The effect of conflict on children
 Reasons for entrenched conflict
 Significant child protection concerns
 Unresolved anger at separation or issues with new
partners
 When conflict is intractable
When the Parents Have Never
Been a Family
 About 11-12% of all births are to single mothers
 Since 1975, entry of children born into lone-mother
families has increased at a higher rate than due to parental
separation.
 The hard questions:
 Is it realistic to expect parents to develop a cooperative joint
parenting relationship when they have never known what it is
to live together and raise the child as a couple?
 Is it to be presumed that children will benefit from a
relationship with a parent whom they do not know through
the intimacy of the daily child-care tasks in an intact family?
The legal issues
 Sec. 60B(2):
 “children have the right to know and be cared for by both
their parents, regardless of whether their parents are married,
separated, have never married or have never lived together”
 Children ‘have a right to spend time on a regular basis with
both their parents.”
 What if there has been conflict between the parents since
birth?
 The long-term prognosis – increasingly tenuous
connection
 Presumption of equal shared parental responsibility?
Conclusion
 Massive changes in family law across the western world




in last thirty years
Australian developments broadly consistent with
international trends
The shift to recognise the indissolubility of
parenthood is both appropriate and irreversible
Policy discussions need to both acknowledge this and
recognise that by no means all parent -child
relationships survive parental separation or should
survive
Greater clarity is needed in legislation
Intensive care for dysfunctional
families
Thou shalt not kill; but
need'st not strive
officiously to keep alive.”
(Arthur Clough)