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
ADR
AIFS
Burdekin
Report
ECMB
PCMB
Australian Children in Families - Study by Ochiltree
Alternative Dispute Resolution
Australian Institute of Family Studies
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.
The Economic Consequences of Marriage Breakdown- Study conducted by the
Australian Institute of Family Studies
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.
(c) There is a strong link between single parenting and poverty.
(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:
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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
(c) Professionals working with separating parents should provide them with information
about parenting plans.
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 postseparation 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 preseparation 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.
1.15 First, research indicates that an important indicator of post separation wellbeing in
children is the maintenance of contact with both parents. Yet, in Australia, as well as in a
number of other countries, a high proportion of children lose contact with one parent, usually
their father.
1.16 Second, there appears to be a discrepancy between the new emphasis on ongoing
financial responsibility for children, and the expectations of and opportunities for, both
parents to continue to be involved in their development.
1.17 Third, family breakdown often involves dislocation and a reduction of material
resources for children. Too often, family breakdown leads to poverty for children, and
sometimes to homelessness. At times, there is simply not enough money to sustain two
households and legal costs can eat substantially into modest resources. In addition, a property
distribution decision can result in the parent with the major care of the children (usually the
mother) being forced to move to cheaper accommodation a long way from the very support
network she needs to sustain her and the children.
1.18 Fourth, whether partners litigate or negotiate their dispute, custody and access issues are
often the subject of considerable delays. There is good evidence that unresolved conflict
between parents is distressing for children. If delays contribute to a chronic state of
unresolved conflict, the damage to children can be considerable.
1.19 Finally, the pain, expense and potential damage to children may not be confined to those
who choose to litigate, but may also extend to the many thousands who "bargain in the
shadow of the law". Most separating couples consult lawyers, whose outlooks are generally
determined by legal training in the operation of the Family Law Act and whose advice on the
children normally centres on who should have custody of them and who should have acccess.
Even before the partners contemplate separation, most adults are aware of, and would use, the
terms "custody" and "access", as a result of usage in the media and from hearing of the
experiences of friends, family and acquaintances. Thus, even where the court is not directly
involved, the concepts and terminology of the Family Law Act permeate many of the
arrangements made by separating couples for their children.
1.20 This Report argues that in family law, the legal system has considerable potential for
good or ill. It can provide a framework to assist in finding fair and harmonious resolutions or
it can promote hostility and deepen family divisions. In an area of high emotions, the
attribution of positive or negative results to the legal system in any given case is, of course,
problematic. Regardless of what the law provides, animosity between some separating
parents is likely to remain. The process of litigation can become the primary vehicle for the
continued expression of such animosity.
1.21 It needs to be acknowledged that the Family Law Act has made numerous attempts to
minimise the negative effects of litigation. Salient amendments to the Act include the
following:
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Subject to conditions set out in the Act, the Court has been empowered to order
counselling to assist in the resolution of disputes about parenting arrangements.
The arbitrary age of 14 years was removed from the Act and the Court was directed to
give the wishes of all children appropriate weight.
The classes of children in respect of whom proceedings can be brought under the Act
have been expanded.
Express criteria have been introduced for the guidance of the Court in determining
guardianship and custody.
The Family Court now has power in NSW, Victoria, Queensland, South Australia and
Tasmania to make awards concerning the custody and guardianship of, and access to,
ex-nuptial children. (The Family Court of Western Australia also has this power.)
The Court now also has power under cross-vesting legislation to hear matters arising
during the course of proceedings that it would previously have had to transfer to a
State Court.
The Courts (Mediation and Arbitration) Act 1991 now enables the Family Court to
refer matters which come before it to a mediation or arbitration service where such a
process is appropriate to the dispute and is likely to lead to its resolution, without the
need for a determination of the matter by the court.
Parents can now also file their own agreements about guardianship, custody and
access.
The Child Support Scheme came into effect in 2 Stages: Stage 1 from 1 June 1988
and Stage 2 from 1 October 1989. Stage 2 of the scheme created a formula by which a
non-custodial parent's liability for child support would be assessed. In general, under
Stage 2 of the scheme, the Child Support Agency within the Australian Taxation
Office assesses and enforces the obligation to pay child maintenance and a parent no
longer needs to apply to a Court for maintenance.
1.22 State welfare legislation has also seen many legislative changes in recent years. The
increasing incidence of reported cases of child abuse and family violence has urged State
Parliaments to pass laws to protect victims and deal appropriately with offenders. Because
these matters impact heavily on families, Commonwealth family law has been influenced by
heightened community awareness of such problems. For example, issues of child abuse are
very significant in any decision of the Family Court as to custody and access.
Consultation
1.23 In April 1991 the Family Law Council issued its discussion paper Patterns of Parenting
After Separation. Council received 94 submissions from various organisations and private
individuals. These groups and people are listed in Appendix 2. Appendix 2 also provides a
statistical breakdown of the submissions received. Appendix 3 lists the questions asked in the
questionnaire which was enclosed with the discussion paper. Excerpts from submissions
appear throughout this Report. Council appreciates the high standard of the responses
received which have greatly assisted in its deliberations.
2. Research Studies and Inquiries
Introduction
2.01 This chapter will consider the findings of various Australian and overseas studies into
the effects of marriage breakdown on children and on the parent/child relationship. It will
show (inter alia) that there is substantial evidence indicating that ongoing contact between
children and their parents after separation is generally beneficial to the child. This conclusion
forms the basis for Council's view that amendments to our legal system which are likely to
encourage a greater awareness of, and commitment to, shared parenting after separation need
to be considered.
The role of the law and arrangements for children
2.02 The Family Court of Australia statistics for 1989-90 show a continuing increase in the
number of custody/guardianship and access applications made by parents. Unfortunately,
there are no available statistics showing the number of orders resulting from these
applications. Meanwhile in 1990, 44,913 children experienced their parents' divorce, and
there was, for the first time since 1982, an increase in the percentage of divorces involving
dependent children. It is estimated that the parents of 16.5% of Australian children will have
divorced before those children reach the age of sixteen (Carmichael and McDonald, 1988). In
addition, unknown numbers of children would have experienced the dissolution of their
parents' de facto relationship, or the termination of a re-marriage involving their parent and a
step-parent.
2.03 Almost 17,500 custody and guardianship applications were made in 1990-91, 23,707
decrees absolute involving children were granted in 1990, providing some evidence of the
extent to which legal advice is sought about children by one or other parent after separation.
Such applications would rarely be made without the advice and assistance of a lawyer, even if
the expectation were that matters would be resolved without resort to litigation. The
Economic Consequences of Marriage Breakdown (ECMB) study conducted by the Australian
Institute of Family Studies (AIFS) found that 80 percent of parents sought advice from a
lawyer regarding their financial situation. It appears that a similar percentage are seeking an
opinion on their rights and responsibilities towards their children and are consequently
influenced to varying degrees by the legal system by bargaining in its shadow (Mnookin and
Kornhauser, (1979)).
2.04 In their contact with parents and the advice they give them, lawyers are influenced by
such factors as precedent, personal experience and a duty to protect the interests of their
client. Advice is normally given with little or no direct knowledge of the complex dynamics
which usually exist between the spouses and between parents and their children.
2.05 Further, legal advice is usually couched in legal language. The level of understanding of
such advice has been estimated by Weston and Harrison (1989) to be poor. The authors
analysed data from the AIFS Parents and Children after Marriage Breakdown (PCMB) Study.
The study involved information from 523 divorced parents of approximately 1,000 children
in which separation had occurred between five and eight years earlier. Respondents were
asked to indicate their understanding of their legal rights and responsibilities with regard to
their children and their former spouses. Although few parents had orders which would have
altered the joint custody and guardianship presumption, more than two thirds of the custodial
mothers and half of the non-custodial fathers did not considered guardianship to be a joint
responsibility in their case. In general, the trends indicated that there was considerable
confusion and ignorance about custody and guardianship matters, even though only about
14% of respondents estimated that they understood them "not at all well".
The effects of marital separation on children
2.06 Research into the effects of marital disruption on children over the past few decades has
moved from concentrating on clinical groups of disturbed children at a time when divorce
was rare, to broader investigations involving non-clinical groups of children, preferably over
a several year period so that their adaptations might be shown. This approach is in line with
the recognition that separation and divorce are not single events, but occur over time and in
changing circumstances; and that there are varieties of both children and marriage
breakdowns.
2.07 Emphasis has also been placed on the deleterious effect on children of parental conflict,
irrespective of whether or nor parents ultimately separate. Elliott and Richards (1991) have
identified factors such as poorer behaviour and school attainment in children several years
before marriage breakdown. Empirical studies have also suggested that disputing parents who
remain together, for whatever reason, are not necessarily protecting their children from
conflict or its effects. Dunlop and Burns' study (1988) of adolescents and marriage
breakdown found that there were high levels of tension in families where divorcing couples
continued to live under the same roof cf. the American study of Wallerstein and Kelly (1980).
2.08 For obvious reasons separation precipitates a period of disorganised family life for all
members. Its duration and intensity are determined by factors such as the type of counselling
and/or dispute resolution processes availed of, the levels of psychological and economic
preparedness, the levels of hostility between the former couple and between the parents and
their children and the age and gender of the children.
2.09 There is now clear research evidence about the effects on children of the lack of dual
involvement by both parents in their lives. Research conducted in Australia and overseas has
highlighted a number of both short and long-term impacts and has measured a variety of
adaptations made by children in the face of disrupted family life.
2.10 Major areas documented by Australian and overseas research include:
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the extent of children's contact with both parents after separation;
the importance of continued contact with both parents;
some effects of marital disruption on children's self-esteem and general functioning;
factors which affect whether or not shared parenting occurs after separation;
the interrelationship of maintenance payments and access time spent with the child by
the non-custodial parent; and
situations in which ongoing shared parenting may need to be monitored, or may be
inappropriate.
Continued contact with both parents
2.11 The research data show the high frequency with which mothers assume the role of
primary caregivers after parental separation, despite gender neutral legislation and some
studies which show the importance of fathers to most children. Research also confirms the
common practice of keeping siblings together. In the Parents and Children after Marriage
Breakdown (PCMB) study, more than three quarters of the children were still living with
their mothers and had been doing so continuously for five to eight years. The parenting
arrangements of less than one fifth of the children had changed since the separation and this
figure included a number who had become independent and had left home.
2.12 Of course, the lives of parents and children are not static, particularly after marriage
breakdown. One of the unsettling aspects of such family disruption is the frequent reduction
in the standard of living of many mother custodians and their children (Weston, 1985). This
may be accompanied by the need to move house, which often involves loss of contact with a
known neighbourhood, school and friends. The most recent research both in Australia and
overseas has continued to emphasise the financial implications of marriage breakdown
(Weston, 1989) and the adverse effects on children's education (Keith and Findlay, 1988 and
Kilmartin and Wulff, 1984).
2.13 Recent research also establishes a link between father absence in post-separation
families and school performance. Binaire, Firestone and Raymond (1990) found that preseparation school performance levels were maintained when contact between children and
their fathers amounted to seven days per month or more. Knock (1988) suggests that the lack
of an "authority prototype" associated with father absence continues to be associated with
poorer educational performances. Kaye (1989) and Binaire et al (1990) found that boys
appear to be more educationally disadvantaged than girls following marriage breakdown.
However Connell (1982) suggests that reported gender differences reflect different
expectations regarding girls. Connell believes we are likely to be more sensitive to changes in
boys regardless of their performance levels.
2.14 Patterns of parenting in one and two parent families were examined in the AIFS
Australian Children in Families Study (Amato, 1987). This research included interviews with
over 400 children, about half of whom were living in either single parent or step families. In
general the children in intact families expressed positive feelings towards both parents,
although mothers appeared to be more involved with children than fathers, and helped more
with personal problems, while fathers were active in sport and other activities. A major
negative trend was the evidence of the non-involvement of fathers in a significant minority of
cases, where although technically intact, the family in reality had an absent parent.
2.15 The non-involvement of fathers was magnified in single parent families, where younger
children particularly often reported receiving low levels of support from non-custodial
fathers. The proportion of children who said they never saw their fathers increased as the
length of time since the separation increased. Many were apparently accustomed to this
situation and were either negative about the absent parent or were resigned to him not playing
a role in their lives. In terms of their development, adolescents in mother headed single parent
families had more autonomy than those in intact families, but they had also been required to
assume greater responsibilities.
2.16 Another important study by Hetherington (1979) has shown that there is little
association between pre-separation and post-separation parenting procedures. Changes in
relationships between non-custodial parents and children cannot be predicted from
knowledge of pre-divorce relationships. Some fathers who were originally close to their
children found the temporary access arrangements distressing and gradually lost contact with
their children, while other fathers who were originally distant from their children became
active and warm. Overall, however, research indicates that in the majority of cases the bond
between the non-custodial parents and their children becomes weaker over time.
2.17 In the PCMB study, several patterns of contact between children and their non-custodial
parents were apparent. Between 40%-50% of the children saw their absent parents less than 6
times per year or never. However, at the other end of the scale between 35%-47% saw their
parents at least once per month and sometimes more than 3 times per month.
2.18 Earlier Australian research findings had shown similar patterns of contact between noncustodial parents and their children. Hirst and Smiley (1980) found that for more than half the
children of separating families access either did not occur to a significant degree or seemed to
serve a transitional function only, culminating in a complete or near break after two or three
years. Burns (1981) reported similar findings. In the AIFS Australian Children in Families
Study, Ochiltree and Amato reported that 40% of the primary school children not living with
their fathers saw them no more than once a month.
2.19 In her study of Scottish divorces, Mitchell (1985) found that one quarter to one third of
children lost contact with their fathers shortly after the parents' separation and that over time
only half maintained contact on a regular basis. Among her conclusions was:
"Uncertainty about access causes more unhappiness for children than the question of which
parent they should live with".
Similar findings have been reported by Eekelaar and Clive (1977) in England and McCoy and
Nelson (1983) in Northern Ireland.
2.20 Two studies appear to go against the trend identified by Mitchell (1985). First,
Wallerstein and Kelly (1980) found that 20% of the children had infrequent contact with their
fathers, a figure which remained static over time. Their sample is not representative of the
general divorcing population as parents had sought counselling for themselves and their
children. This may have contributed to the fact that access arrangements remained fairly
constant over time.
2.21 However, their findings lend support to the contention of Mitchell (1985) that loss of
contact between children and fathers in the early post-separation period is likely to become
permanent. Wallerstein and Kelly reported:
"Nearly all the children in the sample longed and wished for more frequent visits with their
fathers. The only children reasonably satisfied were those who could bicycle over to the
father's house several times weekly, and where such frequent visits had the approval of both
parents".
2.22 The second study is Australian and was conducted by Weir (1986). It goes somewhat
against the trend of substantial loss of contact, with two thirds of the children studied
continuing to see their fathers at least fortnightly. One interesting finding by Weir was that
the level of conflict within a separating family (inferred from the length of litigation over the
children) was associated not with the amount of access but with the manner in which it
occurred. Where conflict was considered to be high, access schedules were rigidly adhered to
with apparently little capacity to accommodate the changing needs of the children.
2.23 The desire of children to have contact or greater contact with their non-custodial parent
is reported in numerous other studies (e.g. Murch, 1980; Luepnitz, 1982; Santrock et al,
1982; Walczak and Burns, 1984; Ochiltree and Amato, 1985). One study (Jacobsen, 1978)
even went so far as to suggest that the more time with the non-custodial parent that was lost,
the greater the maladjustment in the child.
2.24 A further unsettling aspect of family disruption is the frequency with which it is related
to a decline in living standards, particularly where sole mothers are the primary carers after
separation (Weston, 1985 and 1989). Mother headed single parent families are most
vulnerable to poverty and are likely to be pension recipients for some time after separation.
Sixty-nine percent of mothers in the PCMB study received some form of social security
support after marriage breakdown (mostly in the immediate post-separation period) compared
with 2% of fathers. The ECMB study showed that for many custodial mothers, separation is
associated with the loss of the major earner's financial contribution to the family. The impact
of this loss is exacerbated by the fact that these mothers remain responsible for the major
expenses involved in child raising and they receive minor financial input from the noncustodial father. The converse situation is that separated fathers have fewer child related
economic commitments than they had prior to separation. In California, Weitzman (1985)
found similarly that men's living standards tend to improve and women's to fall upon
separation, with many mothers and children experiencing poverty.
2.25 These trends are related to family type and may be transitional if the mother re-partners.
However, indications are that poverty experienced by families has long term implications for
children and can lead to education and career disadvantages (Kilmartin and Wulff, 1984).
Other long term effects have been found by McLanahan and Booth (1988) in the USA. They
have reported that living with a sole mother in childhood is associated with being poor in
adulthood and becoming a sole parent in adulthood is also associated with poverty. This
situation may be accompanied by the need to move house, which often involves loss of
contact with a known neighbouhood, school and friends.
Maintenance and access issues
2.26 Strong research data collected prior to the introduction of the Child Support Scheme link
contact between parents and children with levels of maintenance payments. Funder (1989)
found that absence of contact or conflict associated with contact was related to lower
maintenance being received. In its analysis of the pre-Scheme child maintenance
arrangements of over 3000 parents, the AIFS found that payments were less likely to be made
where access visits were infrequent or were not taking place (Harrison, Snider and Merlo,
1990). It is as yet too early to gauge whether the full implementation of the Child Support
Scheme will influence visiting patterns, although administrative assessment is obviously
increasing average amounts paid (Harrison, Snider, Merlo and Luchesi, 1991).
2.27 Wade (1978) described the weakening of ties between parents and children as a cause of
maintenance default and Miller (1979) and Stack (1984) found that joint guardianship
reduced the chances of such default occurring. Seltzer, Schaeffer and Charng (1989) in the
USA found that non-custodial parents who pay support are more likely to visit their children
than are parents who do not pay. Their data suggested that fathers who invested economic
resources in their children invested time and attention as well. They also found an association
between non-custodial parents' remarriage and decreased visits, as the new family competes
for their time and attention.
2.28 In the PCMB study, respondents' accounts of the payment of child support varied. Noncustodial parents were more likely to report payments than were custodial parents to
acknowledge their receipt. Discrepancies were also common in relation to sporadic or nonperiodic payments for items such as school expenses, clothing or holidays. However, the
amounts paid in the form of periodic payments were likely, from the accounts of both
parents, to be fairly small - averaging between $25 and $30 a week per child. The most
powerful factor associated with the non-payment of maintenance was the bargaining between
parents over access, whether this bargaining took place soon after the separation or later. On
the positive side, Funder (1989) has observed an association between on-going financial
support and a continuing relationship between the non-resident parent and the children.
Step-families
2.29 The marital and family status of their parents is of continuing relevance to children.
Separation provides the opportunity for them to gain step-parents and additional siblings.
Children's sense of rejection may be either heightened or alleviated by the presence of
"replacement" family members. It is uncommon for children to have no step-parents several
years after separation, although their step-parent is more likely to be living with the noncustodial parent. This occurs because mothers are less likely than fathers to re-partner and
children are more likely to live with mothers.
2.30 From the stereotype of the wicked step-mother in Cinderella and the evil step-father in
Hamlet to the sweetness and light portrayed in the Brady Bunch, step-families and their
members obviously have a number of different guises and research can do no more than point
to general trends in their nature and outcomes for children. In the Australian Children in
Families Study (Ochiltree, 1987) children with step-fathers tended to report receiving little
support from them when they were new to the family, but support increased with time. The
research findings are inconclusive, with some studies finding that step-children do not
perform quite as well as children in other family types on measures such as educational
achievement, self concept and adjustment, whereas in other studies they do just as well (Ferri,
1984; Amato, 1987). McLanahan (1989) has commented that children with a re-partnered
custodian experience higher income levels than do those in single parent families, but they
move house more frequently, which may be disruptive. This mobility was also found in the
ACIF study.
Homelessness
2.31 In addition to empirical research, enquiries such as Our Homeless Children (1989) by
the Human Rights and Equal Opportunity Commission (the Burdekin Report) drew attention
to the plight of many children whose future wellbeing and prospects for advancement were
far from certain. The Burdekin Report received submissions from youth workers, welfare
organisations, researchers and children themselves, and painted a depressing picture. The
community was largely unaware that so many young people were living a hand-to-mouth
existence on the streets, often suffering from malnutrition and drug abuse. The report pointed
to the strong link between single parenting and poverty and also noted the significant role
played by family fragmentation and conflict in the initial decision made by many young
people to leave home prematurely. Submissions to the youth homelessness inquiry
documented the association between leaving home and the lack of parental concern,
supportive communication and involvement.
2.32 The youth homelessness inquiry was recommenced in mid-1990 to assess the measures
implemented in the interim. No report has as yet been issued to document the submissions
presented to the inquiry at this time. Media coverage in Victoria indicated continuing concern
at the apparent increase in homeless young teenagers and the cohort of long-term homeless
youth. Evidence suggests that there is an over-representation of young people from stepfamilies who are looking for accommodation. Although some of the potential stresses in stepfamilies are known, the particular patterns which lead to young people being homeless are
unknown and need to be explored further. There are complaints that insufficient steps have
been taken since the major report was released to improve the position of homeless children
or to stem the tide of those with nowhere to live.
Inappropriate Shared Parenting Situations
2.33 Despite the evidence suggesting that children generally want and need contact with both
parents, situations will always exist in which shared parenting is clearly inappropriate. In
such cases, Council would be loath to recommend any alterations to the Family Law Act
which would, or could in practice, be detrimental to the emotional or physical wellbeing of
the children of separating couples. There are three broad areas in which Council would regard
shared parenting as problematic and possibly undesirable.
- Child abuse
2.34 While the statistics on the incidence of child abuse are at present in a state of flux, it is
clear that some children need protection from a parent, just as some adults need to be
protected from their partners. Council's report Child Sexual Abuse (1988) dealt mainly with
the procedure when allegations of child sexual abuse were made in family law proceedings.
Suspension of access in such cases was recommended by a majority of Council. When doubt
exists, it is clear that the guiding principle must be the protection of the child. The Family
Court will need to continue to develop its expertise in dealing with these difficult cases. It is
an area in which close liaison between legal representatives for children, Family Court
counselling staff and State and local child welfare agencies will become increasingly
important.
- Family Violence
2.35 The exposure of a child to family violence involving his or her family members is itself
another example of child abuse and can cause emotional damage. As the Women's Legal
Resources Centre, Harris Park, stated in their submission to this report:
"It needs to be recognised that many families are violent and dangerous places."
The Women's Legal Service in Brisbane cited a Queensland report on family violence
entitled Beyond These Walls (1988):
"It is believed that despite the best efforts of the victims of domestic violence to shield their
children from the violence occurring between parents, in most households where spouse
abuse is present children witness at least some of the violent episodes..."
2.36 In families where violence has been directed at a child or a parent, the benefit to the
child of contact with the perpetrator must be brought into question. As the Children's Interests
Bureau of South Australia pointed out in its submission:
"Children's positive feelings towards a parent when in the presence of a supervising adult can
change when they are then required to undertake access visits. Children also have a right to
access but they must feel safe".
Refusal of access
2.37 There are cases other than those in which abuse and violence are alleged where it may
also be inappropriate to enforce contact between a child and his or her parents. Moloney et al
(1986) have examined this category of cases in which the Family Court has refused to grant
or make access orders. These cases have one, and often more, of the following factors:
1.
2.
3.
4.
5.
6.
Chronic high level of inter-parental conflict;
Strongly held contradictory values and beliefs between parents;
Potential for violence between any significant adults in the two families;
Significant lack of resolution of the marriage breakdown by one or both parties;
Significant mental ill-health of a parent or step-parent in either family;
The stress of access posing a serious threat to the healthy functioning of the child
and/or the custodial parent;
7. The stress of access posing a serious threat to the healthy functioning of the re-formed
family of which the custodial parents and the subject child are members;
8. A significant history of cross-generational conflict between both family groups and/or
a significant ongoing degree of polarization between the extended family and support
systems of the custodial and the access parent;
9. A lack of a previous significant relationship between the access parent and the child,
especially when combined with the child's attachment to a substitute parent figure;
and
10. The undermining by the access parent of the custodian's authority and custodial status.
2.38 Cases in this category need to be considered very carefully on their individual merits.
Some of the difficulties identified in the study by Moloney et al are likely to be alleviated by
mechanisms designed to focus more on parenting responsibilities. These mechanisms are
described later in the Report. It should also be noted, however, that there is evidence that
even where one former partner opposes contact, courts can succeed in promoting meaningful
ongoing parenting to the benefit of the child (Bryne and Moloney, 1992).
CONCLUSIONS
2.39 On the basis of evidence in research studies and inquiries Council has reached the
following conclusions:
(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 wellbeing 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.
(c) There is a strong link between single parenting and poverty.
(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 ongoing contact with a parent
cannot be seen to advance the wellbeing of the child; particularly in cases where abuse
of the child has occurred or where serious family violence exists.
3. Post-separation Parenting Decisions: Formality,
Responsibility and Personal Power
Introduction
3.01 This Chapter will consider the major ways in which post separation parenting decisions
are made. Decision making or dispute resolution processes affect the way a problem is
framed as well as the speed, quality and durability of the solution.
A mediator, for example, might recognise that a parenting dispute is being fuelled by a power
struggle but may choose nonetheless to concentrate only on the details of the parenting
arrangements. The mediator's action may stem from a belief that in general it is better to nip
escalating conflict in the bud.
On the other hand, a counsellor might choose to address the power issue more directly in the
belief that a more lasting solution is likely to result if this difficulty is acknowledged and
resolved.
A lawyer might deal with a similar issue by suggesting to a client that he or she make an
ambit claim which might then be softened in subsequent negotiations.
3.02 In examining decision making and dispute resolution options, this Chapter will keep in
mind three important questions which impact on the future wellbeing of children. They are:



what level of formality is needed to resolve a particular dispute over future parenting
arrangements?
to what extent does the decision making/ dispute resolution process chosen emphasise
responsibility for assisting in the future parenting of children?
to what extent does the decision making/ dispute resolution process chosen encourage
parents to remain in control of their own destiny and the destiny of their children?
3.03 These issues are of course interlinked. For example, less formal dispute management
and resolution processes usually afford parents a higher level of control and are explicitly or
implicitly based on an ethic of responsibility for ongoing parenting. Formal processes such as
litigation on the other hand, largely remove control from parents. Though guided in principle
by the best interests of the children, litigation also reinforces notions of winning and losing
and fails to provide a model for future cooperation.
3.04 The debate about the appropriateness of post separation dispute management and
resolution processes is a complex one. There are times, for example, when litigation or the
threat of litigation can be a highly responsible act. Similarly, informal discussions between
former partners of unequal status or power are not necessarily in the best interests of children.
3.05 Research indicates that generally, post separation parenting decisions are most likely to
be in the interests of the children:
when parents feel they are in control of their own futures
when parents are guided in their discussions by consideration of their ongoing responsibility
as parents, and
when parents are encouraged to conduct these discussions within relatively informal settings.
3.06 Where children or partners are potentially at risk, more formal procedures which shift
the responsibility for decision making in the direction of adjudication may be necessary. This
does not rule out the possibility of more informal procedures such as mediation or
counselling. Nor does it imply that there is no room for encouraging parents to take greater
responsibility for their actions (See, for example, Jenkins (1990)). But it is unfair to children
and potentially dangerous for families to allow such procedures to happen in a piecemeal
fashion or in isolation from an overall case management strategy.
3.07 It is essential that allegations of spouse and child abuse be taken seriously in the first
instance. Allegations need to be investigated thoroughly and promptly before issues of future
parenting arrangements can be properly addressed. Independent investigation of these cases,
especially where it involves interviewing children, is a process requiring skill and sensitivity.
The investigator must have the capacity to communicate his or her findings clearly and to
respond accurately to appropriately probing questions from lawyers or others who may
believe the allegations to be false. Council notes the formation of the new Mediation Service
in the Family Court. In the resultant redistribution of roles among Family Court Counsellors
it may be appropriate to develop a specialised service which aims to ensure prompt
investigation into cases containing allegations of abuse.
3.08 Matters involving allegations of abuse form one category in which some form of
litigation can be inevitable. This is further discussed later in this Chapter. Before this occurs,
however, other processes need to be considered; that is, private arrangements, child
agreements and consent orders.
Private arrangements
3.09 As noted above, most Australian parents make their own parenting arrangements
following separation or do not enter into any formal arrangements. Although there has been
no comprehensive investigation of how such arrangements come about, it is likely that they
happen in an informal atmosphere. In many cases agreements are not committed to paper.
Ideally such arrangements would be considered either before or around the time of the
separation. Sometimes, no doubt, they occur later when the separation crisis period is over.
The extent to which couples seek the assistance of friends, clergy, counsellors, family
therapists or the growing number of mediation services is largely unknown. As noted earlier,
however, it seems likely that many parents do seek legal advice before entering into these
arrangements. Private arrangements allow for a high level of personal power. At best they
allow maximum flexibility to suit individual situations. Such flexibility can facilitate an
ongoing review of the child's needs and the arrangements required to meet those needs. With
no legal processes, changes can be achieved with minimum levels of formality and minimum
expense.
3.10 At worst, private arrangements can leave children or a parent vulnerable to ongoing
abuse. A former spouse may be fearful of taking action. Children may feel they have no
recourse. Private arrangements can also hide ongoing emotional exploitation. For example,
the parent with whom the children principally reside may continually denigrate his or her
former partner. In such situations the children are placed in a dilemma. The other parent may
experience great difficulty in maintaining his or her position and may finally withdraw.
Sometimes such a parent is advised by a well meaning friend, counsellor or lawyer to stay
away until things settle down. The research indicates that under these circumstances contact
rarely resumes.
3.11 If children usually do best when they have continuing involvement with both parents, it
is relevant to consider why so many private arrangements fall short of this goal. This may be
partly due to the socialisation of men and women into the roles of breadwinners and child
carers. Women are almost always disadvantaged in their career aspirations if they decide to
have children. Typically, within a few years of children being born, men are further along a
career path and have greater earning potential. If a couple separate at this time, it is frequently
the case that the husband has been making the larger financial contribution to the household
at the expense of spending time with his children. It may also be the case that in order to
minimise the financial hardship of a separation, the husband feels that he needs to continue to
concentrate on his career.
3.12 In Australia, structural changes are coming about slowly and haphazardly. There is little
doubt, however, that as the economic survival of families increasingly requires that both
parents join the workforce, the question of shared parenting and the issues surrounding it will
become more and more pertinent. Certainly the ongoing financial responsibility of separated
parents for their children has been clearly recognised in the new maintenance regime set out
in the Child Support Act. As noted earlier, there is a link between continued maintenance
payments and more frequent access visits by non-custodial parents. Although it is too early to
assess the impact of the Child Support Scheme in this area, it may act as a catalyst to increase
shared parenting after separation.
Consent orders and child agreements
3.13 These orders and agreements are specifically provided for in the Family Law Act
(section 66ZC) and the Family Law Rules (Order 31. Rule 8). Being legal documents, they
are couched in legal terms, generally revolving around concepts such as custody,
guardianship and access. The extent to which parents actively participate in drafting the
agreements and the extent to which the agreements spring from a commitment to
responsibility for ongoing parenting can vary considerably. On the one hand, they may be the
result of careful and responsible negotiation between former partners and, where appropriate,
their children. On the other hand, they may represent an ungracious compromise hammered
out by lawyers at the court door among a sea of affidavits.
3.14 If nearer the former end of the spectrum, consent orders and child agreements, although
limited by the language they employ, can form the basis for present and future agreements
between parents and their children. Ungraciously compromised ones will break down when
the family confronts its first crisis of interpretation or, as Weir (1986) has suggested, the
arrangements agreed upon will be rigidly adhered to and take little or no account of changing
needs.
Litigation
3.15 Several years ago the Family Court introduced its case management system, which was
closely examined by the Report of the Working Party on the Review of the Family Court
(September 1990). Rather than allow cases to proceed unchecked through the system, Court
staff assess the nature of the dispute and assign each case to an appropriate dispute
management and resolution process. Through mechanisms such as information sessions
conducted by Family Court Counsellors, parents are encouraged to negotiate directly or with
the assistance of their legal practitioners. If this process fails or becomes unworkable, clients
are offered counselling or mediation or a combination of both. Unless a child or a spouse is
deemed to be at risk or the situation is otherwise urgent, litigation will not proceed until bona
fide attempts to resolve the dispute at a less formal level have been attempted. If the case
proceeds to litigation for interim determination, Judges frequently call for independent expert
advice (normally supplied by Family Court Counsellors) to assist both them and the couple in
narrowing down the range of issues in dispute.
3.16 The case management system recognises the importance of promoting an appropriate
decision making process as early as possible in the life of the dispute. In the majority of cases
it favours informality over formality, parental responsibility over responsibility being handed
to an external arbitrator and control for the term of any resolution being vested in the parents
themselves. In promoting this approach, the case management system not only implicitly
recognises that different styles of dispute management are associated with different
outcomes, but also that early patterns of post-separation parenting tend to set a framework for
what follows in the longer term. This latter recognition accords with the research of Mitchell
(1985) and Benians (1986) which found that parenting patterns established within the first
few weeks of separation are a good predictor of longer term parenting arrangements.
3.17 Although less than 5% of cases proceed to a fully defended court hearing, these hearings
cast a shadow over many negotiations concerning the future of children. As Moloney and
Harrison (1992) have noted:
"Given their necessary penchant for precedent and tendency to anticipate worst case
scenarios, lawyers advice to clients would normally be couched in terms that would be
required to win custody or gain access".
When discussing litigation, it is also necessary to keep in mind the thousands of couples who
get as far as pre-trial hearings or other preliminary court skirmishes over children.
3.18 A few cases go to litigation because they are genuinely complex or one or both parties
have unreasonable expectations or are unable to compromise their stance and may have
resisted the best efforts of lawyers, counsellors and mediators to assist. For example, one
parent may have sound reasons for wishing to move to another country. The other parent may
oppose this as it will generally mean that one of them will lose meaningful contact with the
children. In the final analysis, a decision may be required based on a third person's
assessment of the best interests of the children. The process to reach such a decision is formal
and often has its own momentum which is difficult for the parties to control. It is often a
difficult procedure for all participants. They tend to see themselves as winners and losers.
3.19 Another category of litigated case already alluded to is that in which serious allegations
are being challenged or denied by the accused. These cases require a determination regarding
facts which is as conclusive as possible. It is frequently assumed that such a determination is
best achieved via an adversarial system. However, Kirby (1985) is among those who have
questioned this assumption. Given the potentially destructive nature of the adversarial system
for those who have shared an intimate relationship and who may be expected to cooperate
over parenting arrangements in the future, arguments in favour of alternatives need to be
taken seriously. It is beyond the scope of this report to pursue this issue in depth. However,
Council notes the efforts being made by the Australian Law Reform Commission to find
ways of at least modifying destructive elements within the adversary system by establishing,
for instance, responsible and agreed upon procedures for obtaining evidence from children.
Council submits that the proposals made later in this report concerning parenting plans and a
change of language within the legislation may also have a modifying influence on the
negative aspects of litigation.
3.20 Many couples appear to still engage in unnecessary litigation either at a preliminary
level or in terms of a fully defended hearing. There are often cases in which early conflict has
been poorly handled and in which adversarial style negotiating has been entered into from the
beginning. They are cases in which couples are usually left estranged from each other at the
expense of ongoing parenting responsibilities towards their children. They are expensive in
monetary terms both for the couple and for the taxpayer. It is hoped that the reforms to be
suggested in this report will contribute to a reduction of the number of cases in this category.
Before considering this, however, it is necessary to examine in broad terms some of the
contributions by, and limitations on, the following four commonly used services:




dispute management and resolution services
counselling
legal advice
Court adjudication
Each of these services impacts on children in different ways.
Dispute management and resolution services
3.21 These services are most commonly referred to under the somewhat unsatisfactory
heading "alternative dispute resolution" (ADR). ADR covers a broad range of activities
designed in one way or another to assist clients in taking more control over their own
disputes. The procedures themselves may differ widely. They reflect a variety of
philosophical positions and attempts to match the process with clients' needs. They are
"alternative" in the sense that, to a greater or lesser extent, they shift the process from one of
external judgment based on legal argument to an emphasis on consensus reached after an
exploration of the circumstances of a particular couple or family.
3.22 It is clear that much remains to be done in continuing to place ADR services
strategically, to meet the needs of a broad range of clients. Some couples may want the
opportunity to put their respective positions and leave it to an arbitrator (or panel of
arbitrators) to give guidelines for future action. They may wish to keep the direct contact they
have with each other (at least for the time being) to a minimum. Others, hopefully the
majority, will see the desirability of beginning to resolve issues as quickly as possible. They
may recognise, for example, that so long as they have dependent children they will need to be
able to communicate with each other about their changing needs. Such a couple is well suited
to one of the mainstream mediation processes in which the third person remains strictly
neutral as to the outcome, but works hard to make the process one in which mutually
acceptable resolutions are possible.
3.23 Somewhere on a continuum between arbitration and mediation is a process which is
sometimes termed conciliation. Definitions vary, but typically the conciliator, unlike the
mediator, would be willing if necessary to express views about the range of acceptable
resolutions in a particular case. The conciliator may, for example, express an opinion about a
proposal by both parents that siblings of a similar age be separated and may actively
encourage the parents to search for a different solution.
3.24 The risk associated with conciliation is that the expression of an opinion may
prematurely or unnecessarily disempower the parents. The problem encountered with
mediation is that a resolution may suit the parents, but be achieved at the expense of the
interests of the children or that it may endorse a resolution in which the less assertive parent
has been unable or unwilling to negotiate what he or she really wants.
3.25 Council is aware that historically Family Court counsellors have fulfilled the role of
counsellor, conciliator and mediator as appropriate. Many marriage counsellors, family
therapists and mental health professionals also assist couples in the resolution of postseparation conflict. Neighbourhood mediation services in various States have become
increasingly involved in assisting separating families. Post-separation mediation services
have also been developed as distinct departments in approved marriage counselling
organisations and within the Family Court itself (Chisholm (1991)). Another initiative within
the Family Court has been the sanctioning of joint Registrar/Counsellor sessions in an effort
to bring to mediation the skills of both lawyers and behavioural scientists.
3.26 Council applauds the fact that in more recent times in Australia considerable resources
are being devoted inside and outside family law to the serious study of mediation as a
process. The practice of family law and family and separation counselling are well
established and reinforced by extensive literature and training programs. Effective family
mediation has been increasingly recognised as a complex task requiring commitment and a
high level of expertise.
Counselling
3.27 Separating is frequently associated with significant emotional upheaval for family
members. The dynamics of this upheaval can be complex. Only a minority of separations are
mutually agreed upon. More often one partner has, to some extent, prepared for the departure,
while the other finds himself or herself in an initial state of shock or disbelief.
3.28 For a partner in such a state, concentrating on the wellbeing of children can be very
difficult. Such people may need an opportunity to begin to come to terms with themselves
and their failed marriages. Typically, they find themselves trying to cope with strong feelings
of remorse, sadness, guilt and anger. At the same time, they are often plunged into a set of
social expectations with which they are unfamiliar.
3.29 There are a variety of types of counselling services available to separating couples and
counselling may be offered from a range of sources including the Family Court counsellors
and counsellors attached to marriage counselling organisations approved under Part II of the
Act.
3.30 Counselling offers separating families the opportunity to deal with the strong and
confusing feelings surrounding marital breakdown in an atmosphere which is supportive and
safe. The counsellor deals with inappropriate expressions of anguish and hurt such as threats
and acts of violence and unreasonable demands concerning the children. A skilled counsellor
is conscious of the effect that marital separation can have on the children. If appropriate, the
counsellor will work with children to assist them in maintaining relationships with their
parents as parents. The counsellor will simultaneously help the couple distinguish between
their role as parents and their relationship as spouses.
3.31 Counsellors will facilitate working towards a reconciliation if both spouses signal their
willingness to explore this possibility. If not, the counsellor's task is to facilitate a
constructive separation. A constructive separation means that, among other things, realistic
and sensible negotiations can take place over critical matters such as future parenting
arrangements and property distribution.
3.32 Whether facilitating separation or reconciliation, counselling has been shown to be
effective. The findings of the Australian Institute of Family Studies about effectiveness of
marriage counselling conducted by approved marriage counselling organisations in Australia
(Wolcott and Glezer (1990)) indicated that counselling generally enhanced understanding
between spouses and improved marital relationships. In general, over half the men and
women involved in the study reported satisfaction with the results of their counselling
experience. They felt that their relationship had changed for the better. In particular, two
thirds reported that their problems were on the way to resolution and that they had an ability
to solve their problems in the future.
3.33 Studies conducted by the Family Court Counselling Service over a number of years
consistently found that most couples were able to resolve disputes about parenting after
separation. In general terms, the earlier the couple attended a counselling session the higher
was the chance of agreement. About 75-80% of couples agreed about future parenting when
referred shortly after a separation. If seen after a significant time lapse or after allegations had
been made in the form of affidavits, the agreement rate was reduced to 50%. A study
conducted at the Sydney registry in 1983 found that the recidivism rate after agreements
reached with the help of Family Court counsellors was very low. This contrasted with
couples who had proceeded to pre-trial hearings, most of whom had relitigated within a short
space of time (Bordow, Marshall and Turner (1983)).
3.34 For many couples counselling, especially joint counselling, can help them to understand
the reasons for the breakdown in their relationship and to gain a deeper appreciation of their
own responses and the responses of their partner and children, to that breakdown. Through
counselling, a couple may begin to identify separate needs and to set goals and make plans to
achieve them. Most important among these goals are the plans for ongoing parenting roles for
both mother and father. It is clear that counselling interventions can pave the way for spouses
to begin the difficult negotiations about their ongoing relationship with their children.
Counselling can at times be an important pre-requisite for mediation.
3.35 The form of counselling employed must take cognisance of the problems presented. As
noted above, encouraging the parents to consult with each other over the children is simply
not appropriate in cases where the family has been affected by child abuse or family violence
to such an extent as to render impossible fair and voluntary negotiations between parents. As
Justice Elizabeth Evatt pointed out in her submission to the Council:
caution is always needed to protect parent and child from the manipulative or oppressive
partner.
Legal advice
3.36 The fact that only a small proportion of separating parents who have sought legal advice
end up in a contested hearing regarding their children suggests that lawyers play a significant
role in assisting their clients to come to parenting decisions.
3.37 In its submission the Law Institute of Victoria noted that since 1986 practitioners
involved in family law in that State have been encouraged by the Institute to follow a Code of
Practice, which sets out guidelines for advising clients who are contemplating divorce.
Council endorses the recommendations set out in the Code. It regards the Code as a step
forward in enhancing the potentially positive role solicitors can fulfil in guiding their clients
towards a more amicable and constructive approach to divorce negotiations, particularly in
regard to issues involving children. Extracts from the Victorian Code of Practice are set out in
Appendix 4.
3.38 Despite the potentially beneficial influence lawyers can have, there are also problems
associated with the nature of the advice they may offer. First, the duty of the lawyer is to
serve and promote the interests of his or her client, whereas the Family Law Act directs that
the welfare of the child is to be the paramount consideration. The lawyer faces a dilemma
where the desires of a client and the welfare of the child do not coincide.
3.39 A second difficulty with advice from lawyers is that it is usually couched in the
language of custody, guardianship and access. The difficulties inherent in this terminology
and the almost inevitable connotations of winning and losing are discussed in detail in
Chapter 4.
3.40 Another difficulty, alluded to earlier, is that by its nature, legal advice is guided by
precedent. Precedent derives from litigated cases which are generally representative of the
most difficult end of the spectrum. A flow on effect has been described by Moloney (1987) in
which advice based on protecting oneself against the worst case scenario, is translated into a
demand or a proposal put to the other parent, which in turn invites an equally extreme
response. While lawyers may recognise these proposals as ambit claims, couples in a state of
emotional turmoil are likely to view them differently. Once this process begins, it can be very
difficult for lawyers and their clients to contain the situation and to remain open to the full
range of possible parenting solutions.
3.41 A number of submissions received by Council in relation to the topic of legal advice
suggested that specialist training and ongoing education should be provided for family law
practitioners. This was seen as particularly important in cases where allegations of child
abuse were raised or where the practitioner was required to act as the separate legal
reprsentative of the child. Council's report Representation of Children in Family Law
Proceedings (1989) addresses this issue in detail. Specialist accreditation systems for family
lawyers, such as that operating in Victoria, go some way towards meeting this need. So too
do the various continuing education programs and specialist post graduate diplomas and
degrees. For example, in addition to the mainstream subjects, the Post Graduate Diploma in
Family Law and the Masters Degree in Family Law at Monash University offer a fully
accredited unit in Family Dynamics. Council believes initiatives such as this should be
encouraged.
Court adjudication
3.42 At the end of the continuum of dispute resolution processes stands the court, which
provides an independent and enforceable decision, based on the competing claims of parents
regarding their children. The earlier segment on litigation in this Chapter has addressed the
question of when the courts or the threat of court action should be contemplated. The need for
less adversarial yet effective court procedures in family law is almost universally
acknowledged. The question of how to do this is a complex one and largely beyond the brief
of this report. Nevertheless, it is suggested that a focus on parenting as a relationship and a
process rather than as a static legal position, and a change in legal language to reflect that
focus, would go a considerable way towards achieving a dispute resolution system more truly
geared to the interests of children and families. These issues are taken up in the next two
Chapters.
3.43 Orders resulting from court intervention are presently couched in legal language. Wher
two households are competing for one child this necessarily encourages each household to
compete for the status of real parent. The litigious process may exascerbate this process.
Where the separation itself is problematic or acrimonious, the winner of the custody dispute
frequently sees himself or herself as being morally vindicated.
3.44 Another limitation of court adjudication relates to children's changing needs for parental
input and guidance over time. Research points to the need to review arrangements regularly.
In a stable two parent or one parent family this review tends to be carried out incrementally
and informally. But when parenting disputes are resolved through litigation, considerable
public and private resources are required to amend orders as the need arises.
3.45 The determination of custody by the Court requires the Court to decide how the welfare
of the child will best be advanced. The Court is obliged to consider the extensive criteria set
out in section 64 of the Family Law Act. Issues such as the wishes of the child, the nonseparation of siblings and the continuation of existing satisfactory arrangements are all
relevant. Unfortunately, often litigants, those supporting them and their legal advisers
perceive the process as a search for "the better parent". This often involves the former couple
in criticising each other as parents and exascerbating anger and hurt associated with the
process of separation.
3.46 Moira Rayner, the Victorian Commissioner for Equal Opportunity, stated in her
submission:
"[The Family Court] has become as adversarial a court as one would wish, and the intention
that children's interests should be taken at least as seriously as adults ... has been largely
frustrated."
3.47 The Adolescent Family Therapy and Mediation Service in North Parramatta suggested
that:
"If the process [of making arrangements for children] were conciliatory, not adversarial, this
would reduce the tendency to inflame an already emotionally traumatic system."
3.46 In short, the adversary system may promote divergence and dependency on legal
solutions, when the child's continuing welfare requires a cooperative relationship between
parents.
CONCLUSIONS
3.48 Council has reached the following conclusions:
(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.
4. Custody and Access - Values and Assumptions in
Language
Introduction
4.01 This chapter examines values and assumptions which underpin various attempts to deal
with the difficult area of arrangements for children after separation. It will consider the
practicalities of some of the attempts at reform which have been made - especially the
attempts to provide and impose joint custody. Chapter 6 will suggest a way forward in which
the shared parenting aspect of joint custody is preserved while the more negative and
unworkable aspects of this approach are rejected.
4.02 The "best interests of the child" principle has developed slowly. Ownership notions
about children, prominent throughout most of the nineteenth century, have been rejected in
theory but not entirely in practice. These notions remain embedded in the very language we
use to describe the post-separation relationship between children and parents. Within the
constraints of legal language, the courts have grappled with issues such as whether access is
primarily the right of the parent or the right of the child, at what age and to what extent are
the wishes of a child to be respected and whether or not separate legal representation of
children is useful. At least one senior family law practitioner (Broun, 1985) has argued that
separate representation of children has no place in the adversary system.
4.03 There is no doubt that a combination of cultural pluralism, no fault divorce law, shifting
gender roles and research findings on child development has made the question of postseparation arrangements for children considerably more complex. Parallel to this, as Edgar
(1986) has noted, is a strong commitment to the limited number of relationships which exist
within a nuclear family. Edgar notes evidence from the AIFS Marriage Breakdown Survey
indicating that divorce generally takes place only after a great deal of thought and agonising.
4.04 Clearly couples gain a considerable part of their personal and social identity from their
relationship with each other and from their role as parents. Though it is likely to be
accompanied by decreasing levels of social stigma, marital separation and divorce will
continue to be experienced by the majority of children and spouses affected as a traumatic
event. Within our pluralistic society, questions about what is in the best interests of the
children are likely to become more rather than less complex.
4.05 Council considers that an examination of the language within which issues of children,
parenting and divorce are discussed, is an important step towards understanding the
difficulties associated with parenting after separation. The role of language in any given
situation can be crucial to the manner in which that situation is viewed. Encouraging changes
in terminology can be a means of promoting different attitudes. For example, significant
changes in social attitudes have resulted in changed terminology in areas such as women's
affairs, disabilities and immigration. It is suggested that an important test of the value of a
particular expression is to ask "whom does the expression serve?" Words such as
"custody","access" and "guardianship" have precise legal definitions but they do not
necessarily reflect the practice of the relationship between parents and children.
4.06 The language of the law, and particularly of the Family Law Act, plays a significant role
in shaping post-separation parenting options. This was accepted by the vast majority of
respondents to the Council's questionnaire, who were critical of the current terminology and
supported change. This was true for both couples who litigate their custody and access cases,
and for couples who negotiate in the shadow of the law (paragraph 1.19). The remainder of
this chapter will examine the role of legal language and set out why Council considers the
current terminology is not appropriate is not conducive to a constructive approach to the
complex task of parenting after separation.
4.07 Council has considered a range of wording options to replace the existing custody/access
terminology. This question was raised in Council's discussion paper and several possible
alternatives are set out in Appendix 5 as a result of that consultation. Council has concluded
that the concept of guardianship will need to be retained to describe long term responsibilities
and arrangements for the child.
4.08 In Council's view, however, the words "custody" and "access", with their connotations
of ownership, should be replaced if a shared parenting approach is adopted. A system based
on shared parenting requires parents to make decisions about how the care of the child will be
shared between them. Parents also will need to make decisions on the location of the child's
residence. The concept of residence is further examined in Chapter 6.
4.09 The basis of arrangements for the care and residence of a child will be a parenting plan.
Parenting plans are discussed in Chapter 5. In summary, in the system of shared parenting
proposed in this report Council recommends use the words "guardianship", "care" and
"residence" to describe arrangements between parents for the ongoing shared parenting of
their children.
Significance of Terminology - overseas developments
4.10 In a report to the Canadian Department of Justice on parental responsibilities legislation,
Ryan (1989) notes that existing terminology describing relationships between separated
parents and their children is drawn from criminal law and the law of property. This appears to
be a universal problem in family law. In his submission, Professor H.A. Finlay described
family law terminology as being derived from nineteenth century notions of the ownership of
the family by the father. Nations which share the English legal tradition inherited both this
perspective and English legal language. Ryan's report refers to amendments to the language
of family law in France and Scandinavia and concentrates in detail on the legal position in
three American states and in the United Kingdom. This world wide concern clearly suggests
that there is a need to reconsider the terminology employed in family law.
4.11 Ryan states, for example, that a "custodian" is defined by Websters dictionary as "one
who guards and protects or maintains, especially one entrusted with guarding or keeping
property or records or with the guardianship of prisoners or inmates". "Custody" can be
synonymous with incarceration and is also used to describe conversion of property or goods.
When used to describe the status of children of divorce, the term inevitably carries overtones
of ownership. Moreover, we speak of winning, gaining or being awarded custody. We speak
of a custody battle as if "it" were a prize only one partner can win.
4.12 Access also has ownership connotations. For example, the term describes the right to
enter or pass over adjoining land without hinderance. For a mother or father, the term
"access" is an especially disempowering one. While it may have legal meaning, it has little if
anything to do with the complex task of parenting. The North American term "visitation"
may at first appear less derogatory. But as Ryan points out, even this expression
"delegitimises and redefines the parent as something other than a parent, i.e. a "visitor" to his
or her children".
4.13 Commonly used expressions such as "custody order", "access order" and "unfit parent"
each carry negative connotations. Even the apparently more benign term "joint custody" is
something of a contradiction in terms. As Gardner (1985) suggests, the word "custody"
within this expression implies entrapment, possession and restraint. The word "joint" on the
other hand suggests cooperation and flexibility of movement.
4.14 The language we use determines the range and type of solutions available to us and
shapes our perception of a given situation. As Elkin (1975) notes, language has the power to
strengthen and weaken, to offer hope or despair. More than fifteen years have passed since
Elkin suggested that it was time for the linguistic symbols of family law to be questioned.
Changing language, especially language which has a certain level of familiarity and to which
legal meaning is attached, is not easy. It does not happen overnight. But the fundamental
question is whether or not our linguistic symbols are helpful or harmful to the parents and
children they are meant to serve. If they are not helpful, we should begin the process of
changing them.
4.15 The research of Parkinson (1988) on children and divorce has lead her to conclude that
"legal labels matter". Divorce mediators Folberg and Graham (1979) assert that many post
separation disputes over children represent a search for parental status. They claim that many
of the advocates for the legal presumption of joint custody were driven by this notion.
Patrician (1984), quoted in Ryan (1989), supports this observation. Patrician asked a sample
of non custodial fathers to respond to legal terms such as "sole legal custody" and "noncustodial parent". The responses to these terms were extremely negative and associated with
high levels of inequality. The term "custodial parent" was associated with being "strong
rather than weak, powerful rather than powerless, winning rather than losing, dominant rather
than submissive, valuable rather than worthless, important rather than unimportant and
valuable rather than useless". These and other findings led Patrician to conclude that noncustodial fathers perceived their situations as inherently unfair. They were discouraged about
the notion of parental cooperation and felt that the likelihood of conflict with their former
spouses had increased rather than diminished. Roman and Haddad (1978) had earlier used the
term "disposable parent" to signal their understanding of this loss of status.
4.16 On the basis of these findings, it is suggested that the possibility of achieving
cooperative parenting after separation would be enhanced by the use of terminology which
did not carry overtones of "owning" the children. Removing terms such as "custody", "noncustodial parent" and "access" from our legal language, and replacing them with language
which is neutral and does not bear the connotion of one parent "winning" and the other
"losing" with respect to the children, would, in the opinion of Council, encourage both
parents to view their parenting roles as continuing beyond the marital separation.
4.17 Ryan also suggests that a new approach to child custody determinations is required.
Such an approach should focus on the "needs of children and the responsibilities of divorced
parents to continue to care for their children after marriage breakdown". Ryan extensively
reviews legislation in the American States of Florida, Maine and Washington which
incorporate these concepts and dispense with terms such as custody and visitation. She notes
that Scandinavia and France are also removing win/lose terminology and are developing
concepts which highlight the needs of children after divorce and the responsibilities of their
parents. Similar changes have been effected in the United Kingdom by theChildren Act 1989.
4.18 The Law Commission of Great Britain - Report on Family Law(1988) opted for an
approach under which parents would retain their equal parental status after separation and
share the child's time between them, although not necessarily equally. The key concept would
be parental responsibility. The Commission argued that parents have "responsibilities" rather
than "rights" and that children can benefit if parents share these responsibilities between
them.
4.19 Many of the Commission's recommendations were addressed in the (UK) Children Act
1989 which replaced the concept of "parental rights" with "parental responsibility". It also
removed the "access" and "custody" terminology and introduced "residence" and "contact". It
is too early to evaluate the full impact of these changes which commenced to operate in late
1991.
4.20 The question of terminology is also being examined by a sub-committee of the Family
Law Advisory Committee to the California Judicial Council. The Californian experience
offers some guidance on the topic of shared parenting. That State enacted a legislative
presumption of joint custody after separation in the early 1980s. Since then, joint custody has
been found to be unworkable unless both parents favour it, and are prepared to go some
lengths to ensure the arrangement operates harmoniously. For this reason, the presumption in
favour of joint custody has now been abandoned (see paragraph 5.44), and the sub-committee
has suggested that the new language should:




Eliminate the sense of ownership.
Eliminate the "winner" and "loser" mentality.
Emphasise that both parents share rights and responsibilities.
Be clear and understandable.




Recognise that divorce has occurred between the spouses, not between the parents and
the children.
Heal the conflict that is a normal part of the divorce process.
Fit with other federal and state laws.
Allow for special situations.
4.21 Ryan's view of the legislation in Washington, Maine, Florida and Britain is that each
jurisdiction has gone about the common goal of consciously shifting away from the adversary
struggle over custodial labels, in a different way. The four jurisdictions are briefly outlined
below. Each has struggled with the issues of terminology, public policy, preferred options,
dispute resolution procedures, parenting plans, modification to existing orders and
limitations. Each has something different to offer the Australian context. The most important
message would seem to be that there are no short cuts. Each community must find a way
which meets its own special requirements.
4.22 Florida - Shared Parental Responsibility Act. On 1 July 1982 Florida became the first
jurisdiction in the USA to enact "shared parental responsibilities" legislation following
considerable dissatisfaction in that State with a custody-access system. The new legislation
was intended as a "shared parenting" rather than a "joint custody" statute . The Florida Act
declares that it is the public policy of the State of Florida that each minor child has frequent
and continuing contact with both parents after separation or divorce, and to encourage parents
to share the rights and responsibilities of child rearing and to participate in decision making
about children. The Act adopted the "friendly parent" provision of the California joint
custody statute and elevated it to a statement of legislative policy. Unlike the California
model, however, the Florida statute presumes there will be one primary residence for the
children with both parents continuing to share in the decision making.
4.23 Furthermore, unlike the legislation adopted in Maine and Washington the Florida statute
allowed some remnants of the old custody and access language to remain in certain
situations. This has occurred where incidental references to "custody" and "visitation"
throughout the existing legislation were not amended, and to maintain consistency with other
Florida statutes. Ryan notes that "the statute has had a much less dramatic impact in that both
lawyers and judges have tended to cling to the language with which they are familiar". Ryan
concluded from this that the language of the whole statute needs to be made internally
consistent and also consistent with the operation of dispute resolution procedures.
4.24 Washington - The 1987 Parenting Act. This Act abandons the language of custody and
replaces it with the concept of parenting. The functional approach to parent-child
relationships after separation uses a parenting plan which covers 4 areas: the child's
residential arrangements; child support; allocation of decision making; and a dispute
resolution process. The parenting plan is based on the needs of the children and how best to
meet them.
4.25 The terms "custody" and "visitation" are absent from the Act, which refers instead to "a
parenting plan", "parenting functions" and "residential schedules". The Act assumes a child's
needs are best met by a continuing close relationship with each parent, unless there are
compelling reasons to the contrary.
4.26 Ryan explains that: "The Parenting Act requires the Court to designate, in a parenting
plan, one parent as the "custodian" of the child solely for the purpose of all other state and
federal statutes which require such designation ... The designation will not affect either
parent's rights or responsibilities under the parenting plan. In the absence of such a
designation, the parent with whom the child resides the majority of the time will be deemed
to be the child's "custodian" for the purposes of other federal and state statutes."
4.27 Maine - Domestic Relations Statute. Relevant provisions of the Maine legislation
dealing with the parenting of children begin with the public policy statement "that
encouraging mediated resolutions of disputes between parents is in the best interest of minor
children."
4.28 The legislation offers three options. Under the first option, the responsibilities for the
various aspects of a child's welfare are divided between the parents, with the parent allocated
a particular responsibility having the right to control that aspect of the child's welfare. The
second option is for most or all aspects of the child's welfare to remain the joint responsibility
of both parents so that both parents retain equal parental rights and responsibilities. Under the
third option one parent is granted exclusive parental rights and responsibilities over all
aspects of the child's welfare, with the possible exception of the right and responsibility for
support.
4.29 The legislation expresses no preference or presumption for any one of the options,
except that where the parents have agreed to an award of shared parental rights and
responsibilities, the court must make that award unless there is substantial evidence that it
should not be ordered. If there is no parental agreement, the court is required to make an
order in terms of one of the three options.
4.30 Ryan reports that, after five years of operation, the legislation is functioning well and
most separated parents and lawyers are satisfied with it. The language of "parental rights and
responsibilities" appears to have overtaken talk of "custodial parents". It is claimed that
mandatory mediation, conducted in the presence of lawyers, has led to the "shared parental
rights and responsibilities" pattern being adopted in 90% of cases. It has also been claimed
that there has been a gradual increase in the amount of time fathers spend with their children,
while primary residence usually remains with the mother.
4.31 In her conclusion, Ryan notes that all four jurisdictions discussed have consciously
moved away from the language of "custody" and "access" and towards the language of
parental responsibilities. These responsibilities are "shared" and none of the jurisidictions
contemplates an equal division of time spent with each parent, unless that arrangement
genuinely suits the parents and children.
4.32 It should be mentioned at this point that among the submissions received by Council
there was a minority view that a change in terminology will not have any significant effect in
relation to the parenting of children. A Family Court Judge said:
...if a simple solution could materially improve the operation of a difficult branch of the law it
would clearly be most beneficial. If, however, the prospect of such a benefit cannot be
reasonably established then it should be firmly rejected particularly bearing in mind the
confusion that a change of terminology is likely to cause in the community and the problems
of enforcement that would be likely to arise both nationally and under the Hague Convention.
4.33 Council emphasises that this is a minority view and that overseas experience indicates
that where changes in terminology have been introduced the early results are promising. It is
expected that when this report is under consideration by Government the overseas position
should be even clearer.
4.34 The remainder of this Chapter examines the major frameworks within which the
questions of arrangements for children are addressed and debated. A way beyond the
limitations of the present frameworks - that of combining a parenting plan approach with a
change in terminology - will be suggested in Chapter 6. Some of the issues and problems
associated with such a change will also be raised.
The Custody/Access Arrangement
4.35 As already discussed, the terminology of the custody/access arrangement has its roots in
the notion of ownership of children. It contains adversary notions of winning and losing and
frequently has the effect of substantially devaluing one parent's contribution. Many parents
who "lose" custody finally abandon their parenting role altogether, leaving one parent,
usually the mother, to cope alone. The children of separated parents are more vulnerable than
their counterparts who retain a relationship with both mother and father. They are also more
likely to be living in poverty.
4.36 In two parent families, the implicit assumption is that both parents ultimately have equal
status and equal responsibility in relation to the children. However, when the couple
separates, the custody and access arrangement militates against the continuity of this
assumption.
Selecting the "better" parent
4.37 Currently, the determination of custody awards in Australia is based on the welfare of
the child as the paramount consideration. This is often perceived as the Court choosing the
"better" parent, in terms of the criteria set out in section 64 of the Family Law Act. The
American literature refers to two other criteria, not found in section 64, which are seen as
providing guidance for parenting arrangements. The friendly parent provision directs the
court in some jurisdictions to award sole custody, when joint custody is opposed, to the
parent more likely to allow frequent contact with the other parent. The primary caretaker
preference suggests awarding custody to the spouse who has undertaken the primary role of
caring for the child throughout the marriage.
4.38 Both these principles implicitly retain the notion of a primary and secondary role.
Endorsing greater status or greater control for the "friendly parent", might be a useful short
term strategy in the event that the other partner is too focussed on the spousal relationship to
be able to consider seriously a joint parenting role. But the long term endorsement of such a
principle simply solidifies an unsatisfactory situation. Except in extreme cases, the
"unfriendly parent" will gradually come to terms with the separation and will be in an
increasingly strong position to take on meaningful parenting responsibilities. Such a natural
process is hindered by a sole custody order which, once made, sets up expectations which are
difficult to reverse. The primary caretaker preference may also reinforce the situation
prematurely by restricting one parent's involvement (usually the fathers') in the lives of their
children after separation.
4.39 At a more general level, it is suggested that the idea that if one searches hard enough, the
question of who is the better parent will be resolved, can on the surface be a beguiling one.
Perhaps the most well known historical account of decision making over competing parenting
claims occurs in the biblical story of Solomon. It is seen as an example of Solomon's wisdom
that he was able to determine who was the more caring parent. A more contemporary version
of this situation occurs in Bertolt Brecht's "The Caucasian Chalk Circle".
4.40 There is a problem, however, in applying the principles in these stories to parenting
disputes following separation. Such stories assume that a "winner" can be found by probing
sufficiently deeply or with sufficient wisdom. What gives the stories added artistic credibility
is that the "loser" is caught out. In each case she is shown to be lying and not the "true
parent". In both stories quoted "sole custody" is granted to the "real parent" while the other
parent is disgraced. There is no discussion of quality of the existing relationship or of the
relationship which may have been, between the child and the other parent. The task of the
judge in each story is to weed out the truth rather than to search for ways in which the child
might continue to relate to both parental figures. The settings are essentially adversary and
may leave the combatants totally estranged from each other.
Joint Custody
4.41 Studies involving joint custody arrangements are characterised by small samples, and a
variety of implicit or explicit definitions of what is meant by "shared" or "joint", as well as
"custody" and "guardianship".
4.42 Reporting on 24 joint custody cases, Steinman (1981) observed that all 32 children had
two psychological parents and were attached and had strong loyalty for both. Generally they
were neither confused by differences in parental values, nor by living in two homes.
However, some were stressed by having to travel long distances between parental homes,
which led Steinman to conclude that "joint custody" needs to be evaluated with regard to the
capacities and emotional concerns of the individual children.
4.43 Luepnitz's (1982) findings were more positive. She contrasted 16 joint custody parents
with equal numbers of custodial mothers and custodial fathers. She found that, among other
things, many non-custodial parents but no joint custodians had lost contact with their
children; many custodians, but no joint custodians, reported feeling overwhelmed or "burnt
out"; and that no joint custody fathers had stopped supporting their children financially while
many non-custodians had. She concluded that "joint custody at its best is superior to single
parent custody at its best". As mentioned earlier, others have echoed Luepnitz's findings on
the connection between continued contact and the payment of child maintenance.
4.44 Various jurisdictions have attempted to provide for joint custody within their legislation
by two methods:
(a) Encouragement
This encourages parties to share custody. The Court may order joint custody against the
wishes of one of the parent if it is seen to be in the child's best interests.
(b) Presumption
This is a stronger joint custody law which establishes a presumption that joint custody is the
preferred arrangement. This narrows judicial discretion.
4.45 It has been argued that the imposition of mandatory "joint custody" by the Family
Courts would provide a solution to the problems of custody and access. This issue was
examined in Council's report Access - Some Options for Reform (1987). Council's
conclusions were that in the short term provision might be made in the Act for the registration
of joint custody agreements. This recommendation was enacted more broadly in 1987 as
section 66ZC. Council made it clear that if this were to be done qualitative research would
need to be undertaken to determine whether the best interests of children were being more
effectively promoted by such agreements. These suggestions are useful as far as they go. In
the final analysis, however, they represent an attempt to temper the destructive effects of the
adversary law. They do not address the more fundamental question of when and why we
should adopt such a system.
4.46 California was the first State in the United States to introduce a statutory presumption of
joint custody after separation. In most States where such a presumption or preference was
adopted, the statutory change replaced laws which emphasised the primacy of the maternal
role. Enhancing the position of mothers was seen as discouraging fathers from parenting and
this was in turn regarded as damaging to children because of the reduced likelihood of the
father maintaining a close relationship with his children after separation.
4.47 California repealed its joint custody presumption provision in 1988. Prior to its repeal,
Weitzman (1985) criticised California's legislation as having little impact on actual
arrangements for children, which almost invariably reflected the mother preference of most
divorcing couples. Bruch (1988) was also antagonistic, claiming that the statutes showed a
"hasty political endorsement of a popular movement" and that "few States have addressed the
legal, practical or psychological implications of their new laws".
4.48 Since 1988, the Californian legislation has had "neither a preference nor a presumption
for or against joint legal custody, joint physical custody, or sole custody, but allows the court
and the family the widest discretion to choose a parenting plan which is in the best interests
of the child or children". (Section 4600[1](d) of the California Civil Code).
4.49 In itself, joint custody has not been found to ameliorate conflict and thus it cannot be
said that such a regime is necessarily beneficial to the children affected.
4.50 This Chapter has examined the progressive reforms made in four overseas family law
jurisdictions and considered the parenting options currently available to separating couples in
Australia. Council believes that these overseas models offer valuable guidance for reforming
our own Family Law Act. These possibilities will be further considered in Chapter 6.
Conclusions and Recommendations
Conclusions
4.51 On the basis of its examination of problems with the custody/access model and its
study of schemes based on cooperative parenting, Council has reached the following
conclusions:
(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.
Recommendations
4.52 On the basis of its conclusions that the existing Australian family law system fails
to encourage cooperative parenting and that cooperative parenting has been shown to
have positive and beneficial effects, Council makes the following recommendation:
(1) The custody/access terminology in the Family Law Act should be replaced with
alternatives set out in Recommendations 2 and 13.
(2) 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.
5. Shifting the Focus - The Parenting Plan
Introduction
5.01 This chapter will consider some of the practical aspects of parenting plans and how they
can fit into our existing legal framework.
5.02 Council is of the opinion that the adoption of a parenting plan format for determining
post-separation child arrangements would increase the likelihood of shared parenting in
Australian families. A sample plan is set out at Appendix 6. It should be stressed, however,
that the scope, detail and content of plans will vary widely. It might also be expected that the
greater the cooperation between separating parents, less detailed and more flexibility will be
found in the plan.
5.03 In Council's view, plans should be in simple English and, as far as possible, should be
drawn up by parents themselves. This might be expected to increase their commitment to
their plan and to minimise the possibility of conflict over interpretation of what was intended.
5.04 The idea of parenting plans has essentially grown out of attempts to resolve the sole
custody versus joint custody debate. In the U.S. States of Washington, Florida and Maine and
in other countries such as the United Kingdom and some Scandinavian countries, the
resolution of this debate has involved the elimination of adversary and ownership language in
relation to parenting. In each case the new language has been incorporated into legislation
which emphasises children's needs and parental responsibilities.
5.05 The Parenting Act in the State of Washington, for example, requires the submission of a
parenting plan where an application for dissolution or legal separation is made. The Act
provides for the submission of a temporary as well as a permanent parenting plan. The object
of this requirement is to ensure that parents have a well thought out working document with
which to address the future needs of their children. More specifically, the objectives of the
Parenting Act are to:
(a) provide for the child's physical care;
(b) maintain the child's emotional stability;
(c) provide for changing needs in a way that minimises the need for future modification to the
permanent parenting plan;
(d) set out the authority and responsibility of each parent;
(e) minimise the child's exposure to harmful parental conflict;
(f) encourage the use of the parenting plan as an alternative to relying on judicial
intervention; and
(g) otherwise protect the best interests of the child.
5.06 The Washington Act also requires the following issues to be addressed in each plan:
(a) allocation of decision making authority;
(b) residential provisions for the child(ren);
(c) financial support for the child(ren); and
(d) dispute resolution processes to be used in the event that future conflict is unable to be
resolved directly.
The Washington Act objectives and requirements seem appropriate for Australia.
5.07 It is suggested that the requirement to resolve disputes over parenting after separation
using the language and format of a parenting plan has substantial implications. Whether in
the area of mediation, conciliation or litigation, the discussion or submission of a parenting
plan acts as a means of "containment" of the crisis of separation for both parents. In this
respect, Council considers that the use of a well-structured and clear parenting plan guide will
assist parents in focussing on how to meet the needs of their children after separation. In time
of emotional upheaval, the plans offer a structure on which the parents can rely, while,
ideally, avoiding the formality of proceeding to litigation.
5.08 Parenting plans can also shift the focus of negotiations away from criticism of the other
spouse's capabilities, based on past behaviour, to present and future oriented statements as to
how each former spouse intends to fulfil his or her role as a parent. As noted earlier, research
suggests that the level and quality of parental involvement during a marriage is not
necessarily a predictor of what will happen post-separation. Parenting plans give each parent
the opportunity to consider the nature of their parenting responsibilities.
Format and contents of parenting plans
5.09 Parenting plans form an ideal basis for discussion in a mediation or conciliation setting
by focussing on the details of parenting rather than on legal concepts such as custody and
access. The Form 4 (Application for Dissolution of Marriage), Form 5 (Joint Application for
Dissolution of Marriage) and Form 7 (Application Initiating Proceedings) in current use
already seek information about arrangements for the care of children and itemise such factors
as housing, supervision, education, health, maintenance and other relevant factors. With some
adjustments the information provided in the relevant form could provide the basis for a
parenting plan for the children of the marriage. Justice Nygh of the Family Court suggested in
his submission that "a range of options embodied in standard forms which the parties can
vary in any particular" would be appropriate, and Council agrees with this view.
5.10 The contents of the parenting plan would naturally be dictated by the topics covered on
the standard form but would not be confined to these. Council recommends that the areas
mentioned in the Washington Parenting Act would need to be included (paragraphs 5.05 and
5.06 above). That Act refers to "objectives" and "issues" separately. Both of these elements
would be covered in the standard form. With regard to financial support, the form could
require the parents to specify whether or not an application under the Child Support Scheme
will be made, or whether some other financial arrangement has been made.
The wishes of the child
5.11 A further issue raised in the submissions was the need to take into account the wishes of
the child or children. Moira Rayner, the Victorian Commissioner for Equal Opportunities,
argued that
Above all, it is essential that the proposed parenting plan be predicated expressly on the
parent's recognition that not only are the child's interests paramount, but that each child has
rights, including the right ... to be consulted and have [his or her] views taken into account at
all stages of significant decision making about their welfare
5.12 Council agrees that the stated views of a child must be taken into consideration when the
parents are discussing that child's future but under no circumstances should there be
compulsion to require a child to state his or her views. However, it is necessary to bear in
mind that the aim of the parenting plan is to encourage an ongoing meaningful relationship
with both parents.
The role of non-parents
5.13 Some of the submissions received by Council referred to the need to include input from
other significant people in the parenting plan. Particular reference was made to the role of
grandparents, uncles and aunts. While Council agrees that such people play a valuable role in
a child's life, and ongoing contact with them is important for a child after separation, it does
not consider that input by significant others to the parenting plan is desirable or practical.
Marriage breakdown is a traumatic personal experience for the parents and child as it is. The
necessity to include others in post-separation negotiations would be unworkable and place too
much pressure on an already emotional situation. Where provision for ongoing contact with
other people is to be made in the parenting plan, Council believes it should rest on the
initiative of the parents to consider this in addition to the other elements of the plan. The
same considerations would apply with regard to the question of input by step-parents to the
parenting plan.
When should parenting plans be considered?
5.14 Patterns of behaviour established during the first eight weeks after separation are likely
to continue throughout the separation (Mitchell, 1986 and Benians, 1980). Council
recommends that all separating parents should be given information and urged to consider
parenting plans as early as possible. To assist in this education process 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. It should
also be required that professionals working with separating parents should provide them with
material on parenting plans.
5.15 If these procedures are followed, Council believes that parents will have an identified
and clear structure to work with from the outset of their negotiations over the children. Thus
it is hoped that by adopting a forward-looking and constructive approach to the question of
ongoing child care, parents will be able to reach an amicable arrangement for the children
relatively quickly and thereby avoid causing undue distress. Furthermore, by establishing a
conciliatory, rather than an adversarial attitude to matters relating to the children's welfare,
future disagreements should be able to be settled without resorting to litigation and ideally a
pattern will be established where both parents continue to play a meaningful role in their
children's lives.
When should parenting plans be used?
5.16 In practical terms, parenting plans already exist within the Family Law Act in embryonic
form. As mentioned above, forms 4, 5 and 7 of the Family Law Rules require parents to set
out the arrangements for their children in certain circumstances. Council proposes that the
terminology used in these forms should be replaced along the lines recommended in this
Report. The information provided by parents on the arrangements for parenting their children
after separation should still be provided, but it should be framed in terms which are less
adversarial and more child focussed than those which are currently employed.
5.17 Council envisages that every separating couple seeking advice, whether from a lawyer, a
counsellor or some other source will be presented with information about parenting plans.
This information should be presented in the form of a brochure, prepared by the Family
Court, explaining the concept of such plans and their form, contents and purpose. The
pamphlet should also be a guide to assist separating parents in devising their own parenting
plan. In theory, all separating parents would use the format as the basis for their negotiations
and thereby would devise their own particular plan.
5.18 However, Council is aware that a parenting plan will not be appropriate in every
situation. Not all parents are capable of or willing to cooperate or communicate to the extent
necessary. Where it is apparent that the dispute will go on to litigation - for example because
of allegations of child abuse - parents may be unable to negotiate all aspects of child
arrangements on a fair and rational basis.
5.19 In such situations, it will become necessary for the court to devise a parenting plan for
the parents, which may be quite different from those created by parents who can cooperate.
The court's plan would necessarily be far more precise. Where frequent contact with one
parent is regarded as undesirable because of substantial fears for the safety of the child or
former spouse, the court's order will, in effect, be similar to current orders, where contact
between parent and child is kept to a minimum, and may have restrictions placed on it.
5.20 As mentioned earlier, the Maine Domestic Relations Statute sets out three options for
the court in terms of post-separation arrangements. The third of these is the "sole parental
rights and responsibilities" option, where, according to Ryan, one parent is granted exclusive
parental rights with respect to all aspects of a child's welfare, with the possible exception of
the obligation to provide financial support. In cases where the court dictates the parenting
plan, it may be necessary for such an approach to be adopted in extreme cases.
5.21 Council acknowledges the possibility that there will be some separating couples for
whom the parenting plan format would be seen as unnecessary; for example, parents who feel
they can cooperate on issues without the need to formalise their arrangements Once again,
Council emphasises its view that the format should be presented to couples at the earliest
possible point after they decide to separate. In this manner, only those couples who seek no
professional advice at all with regard to their divorce will avoid contact with some person or
body who will encourage them to consider the proposed plans.
5.22 Council suggests that the parenting plan should be set out in a manner which allows the
parents freely to choose the level of responsibility they intend to adopt for their children after
separation. On this basis, Council considers that there will be very few couples for whom the
plans would be seen as too limited in promoting a maximum degree of shared parenting.
However, it is not proposed that the parenting plan format should be compulsory for every
couple.
Flexibility, variation and enforcement
5.23 The Law Council of Australia stated in its submission that:
"... in many cases, although it might be desirable to define access with a degree of precision
contemplated by parenting plans, nevertheless with this certainty comes rigidity at the
expense of flexibility."
Council considers that parenting plans will be flexible and capable of easy alteration to meet
the changing needs of the child. Where parents can cooperate review of the plan will occur
informally, as it does under the current system. Because the parents will have been working
within a cooperative framework since their separation, it is envisaged that they will be able to
continue to consult with each other and act with the best interests of their child as their
paramount concern.
5.24 Realistically, it needs to be borne in mind that even where the parents do adopt the
parenting plan format, there will be cases where its renegotiation becomes a difficult and
disputed process. This may occur because of ongoing dissatisfaction with the marriage
breakdown in some other respect, for example, in relation to the property settlement.
Similarly, it is foreseeable that, despite having negotiated a parenting plan, some parents will
not be satisified with the practical operation of the plan and will deviate from it. The
Washington Act requires parents to specify their chosen dispute resolution process and
Council considers that such a specification would be necessary to make allowances for the
reality that as the child's and the parents' needs change, dissatisfaction with the parenting plan
may well occur.
5.25 In February 1991, Council established a Repetitive Access Committee to examine the
issue of access applications which come before the Family Court repeatedly. Council
considers that the findings of the Repetitive Access Committee will having substantial
implications in the difficult area of on-going parental dispute over contact between the
children and the parent with whom they do not usually reside. For this reason, this report will
not focus on the question of the enforcement of child arrangements with regard to "access".
Parenting plans and other statutes
5.26 A number of responses to the discussion paper pointed out that the change in legislative
terminology proposed by Council would cause difficulties in relation to other statutes. This
would occur because certain bodies, such as the Department of Social Security, require that
the applicant parent have the "custody, care and control" of the child in order to be eligible
for benefits and payments. Furthermore, "custody" and "access" are terms employed in
international agreements relating to children.
5.27 Council acknowledges this point, but does not consider that it raises major problems.
The determination of "custody, care and control" for the purposes of legislation such as the
Social Security Act is a question of fact. If anything, the existence of a parenting plan will
make the factual situation clearer than in the past and should not, therefore, cause
administrative difficulties for the Social Security Department.
5.28 Similarly, so far as laws relating to matters such as international child abduction are
concerned, Council considers that the replacement of the custody/access model will not cause
major problems. However, it will be essential that deeming provisions are added for the
purposes of complying with the relevant legislation.
5.29 Council is aware of many amendments to the Family Law Act both proposed and
implemented over the years. The systematic removal of adversary and ownership terminology
combined with the requirement for disputes to be framed in terms of parenting plans would
be yet another significant change. In a jurisdiction such as family law no change can ever
represent a panacea. However, parenting plans and a change in terminology do represent the
possibility of moving beyond an apparent impasse. According to Ryan they have, over time,
received strong community success where they have been implemented.
Conclusions and Recommendations
Conclusions
5.31 Having examined the parenting plan option, Council has reached the conclusion
that:
(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 parents and their children.
Recommendations
5.32 Council makes the following recommendations:
(3) 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
(c) Professionals working with separating parents should provide them with
information about parenting plans.
(4) Formal recognition should be given to parenting plans by amending forms 4, 5 and
7, (Application for Dissolution of Marriage; Joint Application for issolution of
Marriage; and Application Initiating Proceedings respectively).
(5) 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.
(6) The parenting plan format should allow for maximum flexibility, to meet the
changing needs of the child/ren and parents.
(7) 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.
(8) 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.
(9) There should be an effective national education campaign to publicise and explain
the parenting plan concept.
(10) There should be an education campaign 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.
(11) Consequential amendments should be made to related legislation.
6. Directions for Reform
6.01 This report has discussed a variety of proposals to amend the law of custody and access.
The main legislative options available are:
(a) to change the terminology of custody and access;
(b) to change terminology and introduce parenting plans;
(c) to extend current child agreement arrangements; or
(d) to promote a joint custody preference.
Legislative options
(a) Change in terminology - paragraphs 4.01 - 4.34
6.02 It is becoming increasingly clear that legal words matter, and terms such as "custody"
and "access" limit the options parents see as being available following separation. The
following criteria and objectives are relevant in formulating a language which reflects
continuity of parenting after separation. The new language should:
1. Eliminate words which connote ownership.
2. Acknowledge that both parents share ongoing responsibilities towards their children.
3. Eliminate the winner/loser mind set and so reduce the conflict that is a normal part of
the separation process.
4. Reflect the need to promote, and where necessary protect, the welfare of the child.
5. Be efficient and self explanatory.
6. Recognise that there is a distinction between the spousal relationship and parenting
relationship and that parental separation does not terminate the parent/child
relationship.
6.03 As the graph in Appendix 2 indicates, 55 out of 64 respondents to the questionnaire
distributed by Council favour a change in terminology. Many of the submissions echoed the
words of the National Catholic Association of Family Agencies, who stated that
"parents require terminology that implies that their cooperation about parenting issues is both
required and important, even after separation. The present terminology appears to highlight
the scope for disagreement rather than cooperation."
6.04 In using the term "shared parenting" Council is not implying equal time sharing between
the parents. It may therefore be necessary in some cases for the residence of the child to be
specified eg. where one parent uses the lack of legal regulation to impose his/her own will in
a non-cooperative way and the other parent asks the Court to regulate the matter.
6.05 In such cases Council recommends that the Court should be able to decide on the shared
parenting arrangements and impose a residency rider. The terminology of the Act should,
therefore, include the word "residence" to enable the Court to specify the "care" and
"residence" of the child.
(b) Parenting plans and change in terminology - paragraphs 5.01 - 5.30
6.06 Council emphasises the usefulness and importance to all separating parents of preparing
their own parenting plan as a statement of intent as to their long term commitment to their
children. Council considers that one option requiring consideration is that the Family Law
Act be amended to include the requirement for parents in conflict to formulate a parenting
plan.
6.07 The basic elements of a parenting plan are




The setting out of the authority and responsibilty of each parent
The specification of residential provisions.
The specification of the financial support of the children.
A statement of the ways the disputes are to be settled.
6.08 The response to the parenting plans proposal was extremely positive, with over half the
submissions favouring the general adoption of the plans. One reservation expressed by a
number of groups was concerned with the need to adopt a very clear terminology. In cases
where both parents may not be completely satisfied with the parenting arrangements, some
respondents feared that the proposed terminology may be liable to be misinterpreted, leading
to uncertainty, and eventually, to litigation.
6.09 Council considers that in complex cases such as these, it would be necessary for those
who assist the parents in devising a parenting plan (that is, counsellors, solicitors and
particularly the court) to enure that the terms of the plan are sufficiently specific so as to
avoid possible confusion. In particularly difficult cases, where litigation results in the court
dictating a plan to the parents, the resulting plan would be similar in effect to the custody and
access orders currently made by the court, though couched in "shared parental
responsibilities" language.
(c) Extended child agreements - paragraphs 3.13 - 3.14.
6.10 The formulation of child agreements contain the seeds of what has been described above
as a parenting plan. Child agreements, as they are currently employed, have the following
limitations:
1.
2.
3.
4.
Many appear to retain the language of custody/access/guardianship.
They are not subject to scrutiny.
They are rarely used.
When used they tend to be about resolving specific disputes between parties in
relation to children rather than discussing ongoing parenting.
6.11 Were these limitations to be addressed, the result would begin to look more like the
parenting plan. If parents wish to formalise the provisions of the parenting plan they can
utilise the provisions of section 66ZC.
(d) The joint custody preference - paragraphs 4.41 - 4.50
6.12 A legislative preference for joint custody would involve the Court being required to
favour parents being jointly responsible for the day to day activities of their children. It is the
Council's view that the joint custody provisions would in most cases put unrealistic
expectations and pressures on parents, and therefore on children. Further, joint custody
retains the ownership language with respect to the relationship between parents and their
children.
6.13 Joint custody in the Australian sense of joint responsibility for day to day activities is
virtually impossible for many separating couples. In legal terms, the issue here is whether or
not joint guardianship should be encouraged. As joint guardianship is rarely severed, it is
more important that parents understand their legal position vis a vis their children and their
importance in the lives of their children, than that preferences or presumptions are included in
the Family Law Act. The existence of such provisions does not change behaviour or improve
childrens' relationship with their non-resident parents; it merely changes the phraseology of
orders and agreements.
6.14 It is suggested that joint custody (as it is now known) should only be adopted when
parents clearly understand its meaning and agree on it being a workable option for them. In
that situation the court's intervention is unnecessary and legislation is irrelevant. The child's
best interests are more clearly advanced when legislation includes a check list of matters
which should be taken into account [See section 64(1) of the Family Law Act], rather than a
bald espousal of joint custody. Even where joint custody is a workable option for the parents,
the Council considers that such a scheme could be achieved, with equal effect, were the
parents encouraged to consider their child care arrangements in the terms of a parenting plan.
In this way, the use of the term "custody" would be avoided and this would accord with the
Council's proposal to remove "ownership" language from our legal terminology.
Non-legislative options
6.15 Council considers that there are three non-legislative reform possibilities open to the
government. These are:
(a) no change option;
(b) encourage effective parenting education; and
(c) improve access to available services.
(a) The no change option
6.16 One immediately apparent option is that there be no change to the existing law. The
major argument which would justify such a course of inaction is that the vast majority of
cases (around 90%) are not contested.
6.17 There are many reasons why such issues are not contested - parties may seek to avoid a
potentially bitter dispute, may genuinely feel that any such dispute is not in the interests of
the child or may, simply, not be able to afford additional litigation, either emotionally or
financially.
6.18 Council believes that the law ought, in this respect, to be proactive. In the light of
various, by now, well known instances (the Cleveland affair - See B Campbell, Unofficial
Secrets, 1988 and Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112)
significant legal change is taking place in the way in which the common law views the
relationship of parent and child. Although these examples did not take place in Australia, they
represent situations - the reality of child sexual abuse and the broad notion of parental right which are every bit as real in this country as in their country of origin.
6.19 Council is firmly of the opinion that terminology used in relation to parental
arrangements for and disputes over children should not emphasise ownership rights with
regard to the children. The present Australian terminology, such as "custody" and "access", or
some of the overseas terminology, such as "visitation" and "contact", may promote those
concepts to varying degrees. Council considers it desirable that whatever terminology is used
should emphasise the responsibilities of parents and de-emphasise the idea of ownership of
children. For this reason, Council considers that the "no change" option is neither a desirable
nor a beneficial one. Overseas experience indicates that it is possible to change the custody
and access system of post-parenting arrangements for children. Council believes that the
system of family law in Australia should be moving away from a model which has proved
itself to be problematic, and towards a pattern which may serve to encourage shared
parenting after separation.
(b) Effective parenting education
6.20 Positive patterns of parenting are learned through role models during infancy and
childhood. Parents learn how to be parents principally from their own parents. An
improvement in how parents cope with parenting after divorce will therefore take time.
6.21 Creating effective parenting arrangements after separation requires a combination of
factors of which facilitative legislation is but one, albeit an important one. If the legislation
were changed it would be some time before its affects would filter through to those in the
community who make no direct use of the legal system for parenting arrangements.
6.22 Currently, a number of sterotypes exist within the community concerning children and
separation; the effect of martial breakdown on children; who should fulfil the role of "real"
parent; and the impact of conflict between parents on child development. Attitudes which
promote, for example, the notion that children are ultimately the property of one parent or the
other, or that children should not be allowed to "interfere" in the post-separation
arrangements made for them by their parents inhibit the development of mature and
beneficial adult - child relationships by devaluing the contribution which either parent or the
child could make to such a relationship. It is not possible to quantify the significance of these
attitudes in decreasing the ability of parents to enjoy a meaningful relationship with their
children after separation. Council believes, however, that they may play a significant role and
should be considered in any proposed parent education programs.
6.23 Council believes that a community education program with challenges stereotypical
and/or proprietorial attitudes towards children and their status within marriage breakdown,
and promotes the values and skills of cooperative parenting after separation should be
implemented. A variety of media should be employed, so as to reach a broad range of
community members. Television, newspaper and magazine advertisements, for example,
would be effective in reaching a broad range of community groups and members.
6.24 An education program targetting separated parents should be developed in the
community to help them examine their own behaviour and attitudes towards children and
parenting following separation, and understand the effect of the breakdown of their marriage
on their children. These programs should be developed to meet a range of needs, for example,
to suit parents who work full time, or who have a non-English speaking background.
6.25 The Attorney-General's Department provides limited funds to approved marriage
counselling organisations to conduct marriage education programs ($248,000 in 1990/91).
The major portion of funds goes to pre-marriage education, and largely to groups who will
marry in churches. A small number of organisations offer programs to separated parents on
parenting after separation. Likewise community health services and community organisations
may offer parenting courses, some targeted towards separated parents. These parenting
courses primarily target the verbally articulate.
6.26 Council considers that specific programs should be developed which would assist
children whose parents have separated to come to terms with their family situation, and to
provide all children with information about issues surrounding marriage breakdown.
Parenting education for school age children would be a controversial topic, because, as the
questionnaire from the Family Court Counselling Service in Brisbane pointed out, parenting
education is primarily received from a child's own parents, and it is a sensitive area. Many
parents may be opposed to education for parenting as such. Education as to the dynamics of
human relationship in a less specific context may be more acceptable to parents, and be seen
by school age children as somewhat more relevant to their own situations.
6.27 The final area in which Council considers an increase in education services would be
desirable is with respect to the on-going teaching of professionals, including lawyers,
mediators and counsellors. These people play a vital role in shaping the parenting options
which parents see as open to them following separation. Education about the benefits of
children to dual parental involvement after separation and how this process might be
facilitated would be valuable. The submissions received by Council also indicated a need for
the specialist training of lawyer who are to act as children's separate legal representatives, and
who deal with cases where child sexual abuse is alleged.
(c) Improved access to available services
6.28 The use of counselling services and alternative dispute management and resolution
procedures is a vital step in promoting non-adversarial solutions to questions surrounding
child care after separation. Council received a very strong response to the suggestion that
access to such services and procedures should be improved. Broad support was evident for
the proposal that accurate and comprehensive advice should be available (in the person's first
language) to all separating parents.
6.29 However, support for improved access to services in itself will be of little effect if the
services provided are inadequate. The Legal Services Commission of South Australia pointed
out that
"services must be funded adequately on an on-going basis ... Those who show a willingness
to talk about their disputes should not be discouraged by long waiting times for a counselling
appointment [because of a shortage of services]."
6.30 Furthermore, Council is of the opinion that improved access to counselling services will
be of little value if the legislation on which decision about parenting are made has
shortcomings. In such a situation, counselling will not be encouraging the most beneficial
solution to a given parenting problem.
6.31 The final issue which Council has considered in relation to the parenting plans proposal
is that of costs. The cost of the present custody and access system, in financial terms, is
considered by the Council to be significant, particularly in the areas of legal aid and
administrative costs. In Council's view, the implementation of the proposals contained in this
Report will shift a proportion of cases out of the courts and into less costly dispute
management and resolution processes. It is more likely that the outcomes of those cases
which will remain for decision by the courts will meet the needs of the disputing parties, and
therefore reduce the number of matters which return to the courts.
6.32 Council considers that for these reasons, the proposals outlined in this Report should
result in overall cost savings to the public purse.
Recommendations
6.33 Council makes the following recommendations in relation to the additional issues
canvassed above:
(12) 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.
(13) In amending the Family Law Act, the adoption of parenting plans and a change in
terminology are preferable to the extension of child agreements.
(14) The introduction of a joint custody presumption is not recommended.
(15) There should be an effective education program designed to focus on the task of
parenting after separation.
(16) 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.
Appendix 1
Provisions of The Family Law Act 1975 on Custody of
Children and Related Matters
Section 55A Decree Absolute Where Children
55A(1) [Court declaration] A decree nisi of dissolution does not become absolute unless the
court has, by order, declared that it is satisfied:
(a) that there are no children of the marriage which have attained 18 years of age; or
(b) that the only children of the marriage who have not attained 18 years of age are the
children specified in the order and that:
(i) proper arrangements in all the circumstances have been made for the welfare of those
children; or
(ii) the circumstances by reason of which the decree nisi should become absolute even though
the court is not satisfied that such arrangements have been made.
55A(2) [Doubts about proper arrangements] Where, in proceedings for a decree of
dissolution of marriage, the court doubts whether the arrangements made for the welfare of a
child of the marriage are proper in all the circumstances, the court may adjourn the
proceedings until a report has been obtained from a court counsellor or welfare officer
regarding those arrangements.
55A(3) [Child of the marriage] For the purposes of this section, a child (including an exnuptial child of either the husband or the wife, a child adopted by either of them or a child
who is not a child of either of them) is a child of the marriage of the child was treated by the
husband and wife as a child of their family at the relevant time.
55A(4) [Relevant time] For the purposes of subsection (3), the relevant time is the time
immediately before the time when the husband or wife separated or, if they have separated on
more than one occasion, the time immediately before the time when they last separated
before the institution of the proceedings in which the decree nisi of dissolution of marriage
was made.
Jurisdiction of the Court
"63E(1) A person who is the guardian of a child under this Act has responsibility for longterm welfare of the child and has, in relation to the child, all the powers, rights and duties that
are, apart from this Act, vested by law or custom in the guardian of a child, other than:
(a) the right to have the daily care and control of the child; and
(b) the right and responsibility to make decisions concerning the daily care and control of the
child.
63E(2) A person who has or is granted custody of a child under this Act has:
(a) the right to have the daily care and control of the child; and
(b) the right and responsibility to make decisions concerning the daily care and control of the
child.
63E(3) The operation of subsection (1) or (2) in relation to a child may be varied by an order
made in relation to the child by a court exercising jurisdiction under this Part.
63F(1) Subject to any order of a court for the time being in force ... each of the parents of a
child who has not attained 18 years of age is a guardian of the child, and the parents have the
joint custody of the child.
Court Orders
64(2) Without limiting the generality of sub-section (1), in proceedings in relation to the
custody, guardianship or welfare of, or access to, a child, the court may, if it is satisfied that it
is desirable to do so, make one or more of the following orders:
(a) an order placing the child in the custody of any person or of any 2 or more persons jointly
(whether or not that person or any of those persons is a parent);
(b) an order placing the child in the guardianship of any person or of any 2 or more person
jointly (whether or not that person or any of those persons is a parent);
(c) an order granting to any person (whether or not that person is a parent) rights of access to
the child).
Child agreements
s60 "Child agreement" means an agreement:
(a) that is in writing;
(b) that is made (whether before or after the commencement of this section and whether
within or outside Australia) between the parents of a child (whether or not there are other
parties to the agreement); and
(c) that makes provision in relation to child welfare matters in relation to the child (whether
or not it also makes provision in relation to other matters);
"child welfare matters" means matters in relation to custody, guardianship or welfare of, or
access to, a child, but does not include matters in relation to the maintenance of a child.
Registration etc. of child agreements
66ZC Subject to the regulations, a child agreement may be registered, as prescribed by the
Rules of Court, in a court having jurisdiction under this Part.
66ZD(1) Where a child agreement is registered under section 66ZC, a party to the agreement
may not institute proceedings under this Part seeking an order under section 64 in relation to
child welfare matters dealt with in the agreement.
66ZD(2) A court in which a child agreement is registered under section 66ZC may, by order,
vary the agreement, in so far as it makes provision in relation to child welfare matters, if it
considers the welfare of a child requires the variation.
Appendix 2
Persons and Organisations making submissions
Names, Characteristics and Statistics
The Family Law Council received 94 responses to the Discussion Paper. These consisted of
64 completed questionnaires and 30 letters or submissions. The names of respondents are set
out below. Where both a submission and a questionnaire were received from the same
individual or organisation, this is noted with an asterisk. One respondent wished to have his
name withheld.
Law Council of Australia, Family Law Section
Law Institute of Victoria
ACT Bar Association
The Hon. Justice E. Evatt, Australian Law Reform Commission
The Hon. Justice R.W. Gee, Family Court of Australia
* The Hon. Justice P.E. Nygh, Family Court of Australia
Family Court Counselling Section, Brisbane
D. Bowen, Family Court Counselling Section, Sydney
B. Davies, Family Court Counselling Section, Lismore
D. Davies, Family Court Counselling Section, Newcastle
D. Dockeary, Family Court Counselling Section, Melbourne
T. Gee, Family Court Counselling Section, Dandenong
J. Grant, Family Court Counselling Section, Sydney
L. Moore, Family Court Counselling Section, Townsville
J. Morrissey,.Family Court Counselling Section, Canberra
B. Murley, Family Court Counselling Section, Sydney
T. O'Donohue, Family Court Counselling Section, Newcastle
J. Picton, Family Court Counselling Section, Dandenong
G. Preston, Family Court Counselling Section, Parramatta
I. Ritchie, Family Court Counselling Section, Cairns
R. Trevaskis, Family Court Counselling Section, Adelaide
H. Wingate, Family Court Counselling Section, Newcastle
C. Worth, Family Court Counselling Section, Dandenong
Legal Aid Office, ACT
Legal Aid Commission, WA
Legal Services Commission, SA
Office of the Family, WA
NSW Child Protection Council
Children's Protection Society, West Heidelberg
Children's Interests Bureau, SA
Office of the Commissioner for Children, New Zealand
Assoc. Prof. R. Chisholm, University of New South Wales
Prof. H.A. Finlay, University of Tasmania
H. Fleming, University of Sydney
Dr R. Ingleby, University of Melbourne
J. McGinness, Commonwealth Attorney-General's Department


M. Rayner, Victorian Commissioner for Equal Opportunities
E. Ruth, Uniting in Care, WA
National Council of Women
Women in Support of a Better Deal for Mothers
Women's Legal Resources Centre, Harris Park
Women's Advisory Council, NT
Women's Legal Centre, Brisbane
West Heidelberg Community Legal Service
Royal Australian and New Zealand College of Psychiatrists
WA Faculty for Child Psychiatry
Dr H.J. Jones
Dr H.M. Connell
Canberra Marriage Guidance
Marriage Guidance Council of South Australia
Marriage Guidance Victoria
Marriage Guidance WA Inc.
T. Winter, Marriage Guidance WA Inc.
Upper Murray Family Care
E. Price, Lifeline, Canberra
Adolescent Family Therapy and Mediation Services
J. Sanders, Family Mediation Tasmania
Adelaide Central Mission
Centacare, Brisbane
Centacare, Hobart
National Catholic Association of Family Agencies
Family Focus, Kennington
L. Ball
M. Barbetti
J. and J. Brasier
J. Carr
K. Crawford
G. Daranwell
M. Douglas
D. Glenn-Hume
S. Glenn-Hume
K. Hammond
P. Henry
G. Howard
C. Irons
E. Le Page
A. McLaughlin
P Pallister
R. Patrick
J. Robinson
J. Ryan
J. Salata
J. Shea
D. Stanbridge
M. Stark
E. Tebbutt
P. Varga
B. Vinecombe
The graph below sets out a summary of the responses to the questionnaire (Appendix 3). It
reflects the "yes" or "no" answers, but responses which were uncertain have been omitted.
Council acknowledges that, despite the difficulties associated with the imposition of joint
custody, mentioned earlier in this Report, a significant number of respondents favoured the
introduction of a joint custody presumption. Council does not support this suggestion, and
considers it significant that, of the 25 respondents who favoured the introduction of a joint
custody preference, 23 of them also favoured a change in the terminology used in relation to
parenting after separation. The main concern of the respondents in this group was the same as
that of the other individuals and organisations who made submissions to Council. The
question of how to achieve on-going involvement by both parents in the lives of their
children after separation is the crucial one.
Council received very few submissions on the topic of child agreements, and considers that
this response supports the suggestion that child agreements are rarely used.
Council acknowledges and appreciates the media coverage given to the parenting plans
proposal in the print media and on the radio and television. Many of the respondents to the
Discussion Paper became aware of the proposal solely as a result of this coverage.
Finally, Council wishes to express its gratitude to the people who assisted the Patterns of
Parenting After Separation Committee in the preparation and drafting of the Discussion Paper
and the Report. Since the formation of the Committee in 1988, a number of people have
provided valuable advice, and brought their expertise to the Committee. The Council thanks:
Dr Carole Brown, Principal Director of Court Counselling, Family Court of Australia,
Sydney, NSW;
Associate Professor Richard Chisholm, School of Law, University of New South Wales;
Mrs A. Doherty, Commonwealth Attorney General's Department, Canberra;
Mr Peter Mark, former Principal Director of Court Counselling, Family Court of Australia,
Sydney, NSW;
Mrs Emilia Renouf; and
Rev. Father John Usher, Centacare Family and Marriage Counselling Service, Sydney, NSW.
Appendix 3
Patterns Of Parenting After Separation Questionnaire
1.
Do you consider that the existing provision of the Family Law Act 1975 (section 64)
establishes a satisfactory basis on which to determine issues relating to the children of
separated parents?
2.
(A) Do you consider that the current custody/access model is an adequate basis for
determining parenting issues?
(B) Please give reasons for your answer to (A)
3.
(A) Do you support the view that there should be a change in terminology used in
relation to parenting after separation?
(B) If so, please indicate:
(i) what terminology you think should be changed, and
(ii) what new terms do you suggest should be used.
(C) Please give reasons for your answer to (A).
4.
(A) Do you support the use of a parenting plan approach?
(B) If so, do you consider parenting plans should
(i) apply generally?
(ii) be confined to litigated cases
(iii) other?
(C) Please give the reasons for your answers to (A) and (B).
5.
(A) Do you consider that the extension of current child agreement arrangements is
desirable?
(B) Please give reasons for your answer to (A).
6.
(A) Do you support the introduction of a "joint custody" preference? ["Joint custody"
here means both parents having equal responsibility for the children's upbringing,
education and wellbeing. It may or may not mean the parents are physically with the
children for an equal amount of time.]
(B) If so, please summarise your reasons for supporting joint custody.
(C) If not, please give your reasons.
7.
(A) Do you favour non-legislative changes to the existing system, such as effective
parenting education and/or improved access to available services?
(B) If so, please specify the types of non-legislative changes favoured.
(C) Please give your reasons in support of each non-legislative change advocated.
8.
Do you wish to make any other comments or submissions?
Appendix 4
Extract from The Code of Practice of The Law Institute of
Victoria
General
1.1 The solicitor should endeavour to advise, negotiate and conduct proceedings in a manner
calculated to encourage and assist the parties to reconcile their differences and should inform
the client of the approach he or she intends to adopt.
1.2 The solicitor should encourage the client to see the advantage to the family of a
conciliatory rather than a litigious approach as a way of resolving the dispute. The solicitor
should explain to the client that in nearly every case where there are children, the attitude of
the client to the other party in any negotiations will affect the family as a whole and may
affect the relationship of the children with each parent.
1.3 The solicitor should encourage the attitude that a family dispute is not a contest in which
there is one winner and one loser, but rather a search for fair solutions. The client should be
encouraged to avoid using words or phrases that imply a dispute when no serious contest
necessarily exists, for example, "opponent", "win", "lose" or "Smith v Smith".
1.4 Because of the involvement of personal emotions in family disputes, the solicitor should,
where possible, avoid heightening such emotions by the advice given and by avoiding
expressing opinions as to the behaviour of the other party.
1.5 The solicitor should also have regard to the impact of correspondence on the other party
when writing a letter of which a copy may be sent to that party and should also consider
carefully the impact of the correspondence on his or her own client before sending copies of
letters to the client.
1.6 The solicitor should aim to encourage, at an early stage where possible, full frank and
clear disclosure of information and openness in dealings in an endeavour to avoid or dispel
suspicion or mistrust between parties.
1.7 The solicitor should aim to achieve settlement of differences as quickly as possible as
may be reasonable whilst recognising that the parties may need time to come to terms with
their new situation.
Children
5.1 The solicitor should, in advising, negotiating and conducting proceedings, assist both the
client and the other parent to regard the welfare of the child as the first and paramount
consideration.
5.2 The solicitor should aim to promote cooperation between parents in decisions concerning
the child, both by formal arrangements (such as an order for joint custody), by practical
arrangements (such as shared involvement in school events) and by consultation on important
questions.
Appendix 5
Examples of Terminology within Parenting Plans
Common terminology
Some alternatives
Parenting Agreement
Custody Agreement
Parenting Plan
Parenting functions
Living Arrangements
Visitation
Residential schedules
Living Arrangements
Access
Residential schedules
Primary Home/Access Home Mum's Home/Dad's Home
Visiting
Living with
Broken Home/
Two Home Family
Reconstituted Family
Custody/Access Rights
Division of Parental
Responsibility
Appendix 6
Sample Parenting Plan
Names of parents.............................
and..............................
(Mother)
(Father)
Child ..............................(Name)
..../.../19...(Date of Birth)
...............................
..../.../19...
...............................
..../.../19...
A. All changes to this plan will be by agreement between both parents.
B. Disputes will be resolved by the parents themselves or, in the absence of agreement, by the
XYZ Mediation Service.
C. Both parents agree to cooperate with one another in making the plan work for the benefit
of their children and to consult one another on important questions.
Care of child/ren
1. Each parent may make decisions about the day to day care of the child/ren while they are
residing with that parent.
2. Decisions on major matters are shared as follows:
(a) Education.........................................................................
(b) Health care.......................................................................
(c) Religious observance.........................................................
(d) Sport................................................................................
(e) Other matters....................................................................
Residence of child/ren
1. School year schedule
January...................................... July........................................
February..................................... August....................................
March........................................ September................................
April......................................... October....................................
May.......................................... November.................................
June.......................................... December..................................
2. Holidays


.....................................................................................
............................................................................................
3. Birthdays/Special days


....................................................................................
............................................................................................
4. Telephone access.......................................................................
5. Transportation............................................................................
Financial support
In addition to child support, it is agreed that additional costs will be paid as follows:
Health insurance .................................................................................
School fees .........................................................................................
Other/Special needs ............................................................................
This plan is agreed to and each parent has a copy.
................................................. ...........................................
(Mother)
(Father)
Date...../..../19....
Appendix 7
Selected Bibliography
Amato P. R. "Children's Reactions to Parental Divorce: The Views of Children and Custodial
Mothers"Australian Journal of Social Issues. Vol 22, No 4.1987.
Amato P. R. "Long-term implications of parental divorce for adult self-concept". in Journal
of Family Issues Vol 9, No 2. June 1988.
Australian Institute of Family Studies.
- The Economic Consequences of Marriage Breakdown in Australia. AIFS Melbourne.
August 1985.
- Parents and Children after Marriage Breakdown Study. AIFS (Forthcoming) 1991.
Bisnaire L., Firestone P. & Rynard D. "Factors associated with academic achievement in
children following parental separation" in American Journal of Orthopsychiatry. Vol 60, No
1. January 1990.
Broun M. QC "The legal and ethical implications of acting for children". Paper delivered at
Family Law Workshop, 20 April 1985, Monash University. 1985.
Bruch C. "And how are the children? The effects of ideology and mediation on child custody
law and childrens' wellbeing in the United States" in International Journal of Law and
Family, 2, pages 106-126. (1988)
Burns A. "Divorce and the children" in Australian Journal of Sex, Marriage and Family, 2,
pages 17-26 1981.
Eekelaar J. & Clive E. Custody after Divorce: The disposition of custody in divorce cases in
Great Britain. Oxford. 1977.
Edgar D. E. Marriage, the Family and Family Law in Australia. Discussion Paper No. 13.
Australian Institute of Family Studies. 1986.
Elkin M. "The language of family law is the language of criminal law" in Conciliation Courts
Review. 13:1. 1975.
Family Law Council.


Access - Some Options for Reform. AGPS. Canberra. 1987.
Child Sexual Abuse. AGPS. Canberra. 1988.
Folberg J. & Graham M. "Joint custody of children following divorce. Law Review,
University of California, Davis. 1979.
Funder K. "Financial support and relationships with children" Report No 6, Child Support
Evaluation Study, AIFS. 1989.
Gardner, R A "Joint custody is not for everyone" in Joint Custody and Shared Parenting,
Washington DC,Bureau of National Affairs Inc., 1984.
Harrison M., Snider G. & Merlo A. Who pays for the Children? A first look at the operation
of Australia's New Child Support Scheme. Monograph No 9 Australian Institute of Family
Studies. 1990.
Hetherington E. M. "Divorce: A Child's Perspective."American Psychologist. Vol 34, No 10,
pages 851-858. 1979.
Hirst S. R. & Smiley G. W. The Access Dilemma: A study of access patterns following
marriage breakdown.Collected Papers. Family Court of Australia. 1980.
Jacobsen, D. R. "The impact of marital separation/divorce on children" in Journal of Divorce,
Parts 1-3, Summer, Fall and Winter Editions. 1978.
Kaye S. "The impact of divorce on children's academic performance" in Journal of Divorce.
Vol 12, No 3. 1989.
Keith V. & Finlay B. "The impact of divorce on children's educational attainment, marital
timing and likelihood of divorce" in Journal of Marriage and the Family. Volume 50. August
1988.
Kilmartin C. & Wulff M. "Educational and labour force participation of Australian young
people living in two and one parent families". in Journal of the Australian Population
Association, Vol 1, pages 121-139. 1984.
Kirby M in Nixon M (Ed.) Issues in Psychological Practice. Longmans. 1984.
Luepnitz D. Child Custody: A Study of Families After Divorce. Lexington, Mass. Lexington
Books. 1982
McCoy K. & Nelson M. Social Service Departments and the Matrimonial Causes (NI) Order.
Social Work Advisory Group. Belfast. 1983.
McDonald P. (Ed) Settling Up: Property and Income Distribution on Divorce in Australia.
Prentice-Hall. Sydney. 1986.
McLanahan S. "The two faces of divorce: women's and children's interests". Discussion
Paper No 903-89, Institute for Research on Poverty, University of Wisconsin, Madison. 1989.
Miller G. H. "Joint Custody" 13 Fam L Q 1979
Mitchell A. Children in the Middle: Living through Divorce. Tavistock Publications. London
and New York. 1985.
Moloney L, Marshall A and Waters P. "Suspension of Access: Attitudes which have
influenced the Courts" in Australian Journal of Family Law Vol 1, No 1, Pages 50-66.
August 1986.
Murch M. Justice and Welfare in Divorce. Sweet & Maxwell. London. 1980.
Nock S. "The family and hierarchy" in Journal of Marriage and the Family. Vol 50.
November 1988.
Ochiltree G. Stepfamilies. Australian Early Childhood Association. Watson ACT. 1987.
Ochiltree G. & Amato P.R. The Child's Eye View of Family Life AIFS Melbourne. April
1985.
Parkinson L. "Child custody orders: a legal lottery?" in Family Law Vol 18 pages 26-30
1988.
Patrician M. "Child custody terms: potential contributors to custody dissatisfaction and
conflicts". in Mediation Quarterly Vol 3. 1984.
Ricci I. Mum's House, Dad's House. Collier Books. MacMillan. NY. 1985.
Richards M. "Children, parents and families: developmental psychology and the reordering of
relationships in divorce" in International Journal of Law and the Family, 1, pages 295-317.
(1987)
Roman M. & Haddad W. The Disposable Parent. New York. Holt, Rinehart & Winston. 1978
Ryan J. Parents forever: Making the Concept a Reality for Divorcing Parents and their
Children. A report submitted to the Department of Justice (Canada) on the parental
responsibilities legislation in four jurisdictions: Florida, Maine, Washington and GreatBritain.
1989.
Santrock J.W. Warshak R. Lindbergh C. and Meadows L."Children's and parent's observed
social behaviour in stepfather families" inChild Development. Vol 53, No 2, pages 472-480.
1982.
Seltzer J., Schaeffer N.C. and Charng H. "Family ties after divorce: the relationship between
visiting and paying child support" in Journal of Marriage and the Family, 51, pages 10131032 1989.
Steinman, S. "The experience of children in a joint custody arrangements: a report of a study"
in Amer. J. Orthopsychiat. 51:403-414. 1981.
Wade J. H. "The Family Court of Australia and Informality in Court Procedure" (1978) 27
International and Comparative Law Quarterly 820.
Walczak Y. & Burns S. Divorce: The Child's Point of View. Harper & Row. London. 1984.
Wallerstein J. S. & Kelly J. B. Surviving the Breakup: How Children and Parents Cope with
Divorce. New York. Basic Books. 1980
Weir R. The interaction between access patterns and litigation path. Paper presented at the
2nd National Family Law Conference, Sydney, June 1986.
Weitzman L. The Divorce Revolution: The Unexpected Social and Economic Consequences
for Women and Children in America. The Free Press. New York. 1985.
Weston R. "Marriage and the nature of poverty". A paper presented at the National
Conference of the United Nations Association of Australia: National Status of Women
Committee. 1985.
Weston R. "Income circumstances of men and women after marriage breakdown: A
longitudinal study". A paper presented at the Third Australian Family Research Conference,
Ballarat. 1989.
Weston R. and Harrison M. "Divorced parents' understanding of their rights and
responsibilities towards their children". Paper presented at the Third Australian Family
Research Conference, Ballarat. 1989.
Wolcott I. and Glezer H. Marriage Counselling in Australia: An Evaluation. Monograph No
8. AIFS. 1990.
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