Introduction of a Presumption

Queensland Centre for Domestic and Family Violence ResearchSharing the Caring or Caring about the Sharing:What’s wrong with the Family Law Act?Zoe RathusSenior LecturerGriffith University

Introduction of a Presumption 2006 – presumption that equal shared parental responsibility (ESPR) is in the best interests of children introduced into Family Law Act Result of lobbying by fathers’ rights groups Linked to time outcomes – equal time and ‘substantial and significant’ time Now seeing increased use of social science research in the courts – why? 2

‘Lego-science’ Presumption parades as social science ‘truth’ about what is good for children But conflicts with the social science Builds towards time outcomes like lego bricks Complex to interpret and unpredictable outcomes Dangerous for some children 3

s61DA Presumption of equal shared parental responsibility when making parenting orders When making a parenting order , court must apply a presumption that it is in the best interests of the child for the child's parents to have equal shared parental responsibility[ESPR] for the child. (2) The presumption does not apply where: (a) abuse of child or (b) family violence. (3)  interim order - applies unless court considers not appropriate in the circumstances  (4) May be rebutted by evidence that it is not in the best interests of the child 4

The Law about Time Where the presumption of ESPR is applied by a court it must: consider whether equal time is BIC; and consider whether equal time is reasonably practicable; and, if so → consider making an equal time order If not, consider a making a substantial and significant time order by same process See section s65DAA 5

Real Role of Presumptions • They are pragmatic and economical • Typically a legal presumption is applied where a fact is to be established and rather than impose the costs of proving this fact when it is almost certainly the case, the law says ‘take this fact as a given, subject to proof of facts to the contrary which rebut the presumption’ (LCA to Joint Custody Inquiry) • Classic example: if a married woman gives birth to a child, the husband of the women is presumed (rebuttably) to be the father.

A Type of ‘Legal Fiction’ • A presumption is a legal fiction that allows the trier of fact to establish the existence of a presumed fact, for which there may be no direct evidence, based upon proof of other basis facts. (Bowermaster) • A legal fiction becomes ‘dangerous’  only if ‘believed’; conversely, a ‘fiction becomes wholly safe only when it is used with a complete consciousness of its falsity.’ Ifa legal fiction is a false statement not intended to deceive, then its utility must wane - and its danger correspondingly wax - as recognition that it is in fact false diminishes. (Smith)

Presumptions in Custody Law • For centuries was a father preference • Then a maternal preference (tender years doctrine) • Then the best interests test: • Feminists – neutrality de-gendered parenting • Opened up an unregulated discretion  Governments curtailed discretion with best interests checklists and presumptions • Now presumptions contain policy positions

Joint Custody Models • Express statement of no presumption of joint custody • Presumption against joint custody in certain circumstances (eg FV – see NZ Act) • Only joint custody if parents agree • Only joint custody if certain conditions exist (eg close proximity, parental co-operation, history of involvement of both parents prior to separation)

Power of the Presumption • It is frequently applied – imposed or by consent • Triggers time sections • Exceptions to presumption and equal time seem to be overcome  Orders for ESPR and equal time often made where there is high conflict and sometimes where FV

Shared Time Increasing • 2003 – about 6% of kids in equal time • Shared care has increased* • Equal time orders • 15% of fully litigated cases • 19% of settled cases • Substantial time orders (30 – 45% of time to one of the parents) • 17% of fully litigated cases • 12% of settled cases * Family Court statistics (2007 – 2008)

What’s the problem? • Social science about shared care is contested • Social science about FV – and its relevance to terms of parenting orders – is contested • The lego-science has distorted the social science

One robust view • Some applications which I think are most appropriate [for evenly divided shared residence] include the following: With pre-school children, where both parents present as equally viable primary care givers, but where the chance of resolution is slim and the matter is at an interim stage. In these cases, it seems to me that unless both parents are kept involved in the child’s life to a significant degree, the attachment of the young child to one parent might be compromised.  Recommending a relatively equitable shared residency arrangement is way of keeping both parents ‘in with a chance’, whilst also being able to review how each copes with a significant blocks of time living with the child.’ (D Britton, 2002) • What about how the children cope? 13

A very different view • the ‘compelling image I have of this debate about shared residence is of “children and their suitcases”’. • For young children ‘ there is substantial, and essential, brain development occurring. If demands on very young children are too high, such as shared residence in the wrong conditions, then this neural development can be compromised. (Tucker) 14

Judges Use of Social Science • Judges increasingly using social science • Not surprising given the lego-science and contested social science • Problem – judges cannot ‘apply’ social science research to the facts – only an expert can • No guidelines for use of research materials • Use of SS literature at time of judgment delivery could lead to applications to re-open evidence etc and appeals

Misusing Social Science • Stuart & Stuart [2008] FMCAfam 177 • FM misuses unrelated SS literature to decide this case not ‘high conflict’ • There are clues re violence or intimidation: • During XX M said: • … my big concern in a shared care parental responsibility arrangement is that because we can’t resolve conflict I won’t – my role is minimised and Mr Stuart, because he asserts his way so much and ends up getting his way, I actually effectively end up with very little say in the goings on of parenting decisions. • Children moving between evangelical Christian mother and atheist father • FM orders ESPR and equal time

Good Decision-making and FV • Raising it • Making a ‘finding’ • Understanding it 4. Acting on it

1. Raising it • Allegations are hard to make  amidst the ongoing controversies surrounding ‘false allegations’ and ‘false denials’  practitioners and researchers may underestimate the extent to which it is no trivial matter for many litigants to make any allegations against a former partner with whom one has had children, and with whom one probably wanted to share a lifetime (AIFS Report) • Silencing may happen long before court s63DA – ‘script’ for advisers s117AB – costs on ‘false’ allegations s60CC(3)(c) – ‘friendly parent’ • Lawyers often don’t plead it well

Raising it – Training Issues • FDRPs • dealing with FV in ‘mediation’ - Concern – DV competence training involves use of ‘differentiation’ research • Lawyers • How to interview clients disclosing FV • How to include in court material • How to gather evidence • Expert witnesses (family report writers) • Need for genuine expertise on FV

2. Making a ‘finding’ • Needs to be proved • AIFS – often little corroborative evidence • s60K – Is this used? • Best Practice Principles for Use in Parenting Disputes when Family Violence or Abuse is Alleged • judges encouraged to make ‘findings of fact as to the nature and degree of the FV’

3. Understanding it • Idea of ‘differentiation’ • Who gets to decide? • Understanding the conduct of parents at time of separation • Using our FV learnings

Dangerous ‘Differentiation’ • New buzz idea – ‘differentiation’ • Referred to AIFS report • Discussed in academic literature and some cases • Draws from various USA and Canadian scholars • Argument is – not all FV is the same or should have the same consequences • Creates a hierarchy or ‘levels’ of violence

‘Different types’ of violence • Intimate terrorism • Violent resistance • Situational couple violence (common couple violence) • ‘Separation’ violence

What kind of violence? • Will be become a new area of litigation • Concern it will emphasise physical violence rather than other types of serious abuse • ‘Separation’ violence • Controversial area • Term tends to minimise and ‘mutualise’ • Seen as a ‘one-off’ – not relevant to children • BUT – actually most dangerous time for women • Who will decide – the judge or the expert?

What the judge said … • Carlton & Carlton [2008] FMCAfam 440 • Serious family violence which led to injuries and charges of assault • Regrettably, this case is an example of the "intimate terrorism" described by Johnson and Ferraro as follows:  "intimate terrorism" violence should be viewed as a tactic that underpins a broader pattern of power and control.  the violence associated with "intimate terrorism" tends to escalate over time, becoming more frequent, more severe and more likely to result in significant injury. Many of its victims, who are overwhelmingly women, suffer from posttraumatic stress disorder (PTSD), depression and poor health. (Altobelli FM)

What the expert witness said …  this assessment raises concerns about [the mother’s] capacity in the past to protect her own children as well as Mr Carlton’s older children from an abusive family environment. By exposing her children to on-going violence as well as denying the violence that was allegedly perpetrated on [C] by his father, she appears to have been incapable of making discerning decisions that were child focused.

Useful FV Learnings • Domestic violence affects the post separation conduct of women victims • Diminished parenting capacity often occurs with victims of domestic violence • Perpetrators can be charming and victims can be unattractive:  beware of differentiating the abuser from the victim based on who presents as the victim; who is more charming, charismatic, and likeable; who appears more organised, reasonable, and sensible; and who feels more entitled and morally outraged. Socio-paths, narcissists, and chauvinists (who use violence for interpersonal control) can make a very smooth presentation, whereas the victim can appear emotionally distraught and disorganised.

Exemplified in the Courts • Calkin and Calkin [2009] FMCAfam 241 • Forced participation in pornography which made the wife feel ‘dirty and disgusting’ • Also reference to physical, sexual, verbal and psychological abuse • Mr Calkin presented as much more positive, relaxed and resolved about his situation following marital separation  it seemed that Mr Calkin wants no more than to be a loving father. • Ms Calkin appeared to be significantly anxious and tearful, although perhaps less so than her presentation 12 months ago. Her anger towards Mr Calkin  was palpable.

4. Acting on it • AIFS report – allegations were not always formally linked to outcomes • How do we make FV relevant to decision-making? • ‘emotional consequences’ for children • Not just about risk of future abuse • Emotional protection may include considering the consequences of past violence on children

Impact of Lego-science • FLA provides no guidance on how to make FV relevant – just that it is relevant • Perhaps the new Act has meant that it is discussed in the courts (in objects (s60B) and primary considerations (s60CC(2)) • But the lego-science of presumptions, meaningful rel’ps and time overwhelm • More insidious – seems to be there – negated rather than silenced?

Is FV Relevant? • Carlton – presumption rebutted but order - 2 out of every 3 weekends from after school Friday to before school Monday + half school holidays, Wed telephone calls + special days • Calkin – ‘claytons’ sole PR awarded to mother – order that she consult father and keep him advised on all PR issues + (within 8 months) – every second weekend (Fri – Mon) and Wed nights

Suitcases and Planes W and P [2007] FMCAfam 105 Burchardt FM: • father has engaged in FV - s60CC(2)(b); • presumption rebutted under s61DA(2); • sole parental responsibility to the mother • child (boy just under 3 yrs) will benefit from a meaningful rel’p with both parents - s60CC(2)(a) • Order that child live with mother and fly from Burnie (Tas) to Melbourne every second w/e from Friday to Sunday

FLA Reform • Abolish presumption • Abolish any reference to specific time constructs • Develop ways to make FV relevant • Make the shared parenting provisions exclusionary rather than inclusionary. Shared care can only be ordered after consideration has been given to: • develop an appropriate list – eg any history of abuse or violence, past care, communication btn parents etc • Develop guidelines for the use of social science research in court 33

Some Useful References • A Bailey, ‘Separating safety from situational violence: Response to “Allegations of family violence and child abuse in family law proceedings: A pre-reform study”’, (2007) 77 Family Matters, AIFS, 26 • J Bowermaster, ‘Legal Presumptions and the Role of Mental Health Professionals in Child Custody Proceedings’ (2001-02) 40 Duquesne Law Review, 265 • P Jaffe, J Johnston, C Crooks and N Bala, ‘Custody Disputes Involving Allegations of Domestic Violence: Toward a Differentiated Approach to Parenting Plans’ (2008) 46(3) Family Court Review 500 • M Johnson & K Ferraro (2000) ‘Research on domestic violence in the 1990s: Making Distinctions’, Journal of Marriage and Family, 62 • J Kelly and M Johnson, ‘Differentiation among Types of Intimate Partner Violence: Research Update and Implications for Interventions’, (2008) 46(3) Family Court Review, 476 • L Moloney, B Smyth, R Weston, N Richardson, L Qu and M Gray, Allegations of family violence and child abuse in family law proceedings: A pre-reform study, (2007) AIFS • P Smith, ‘New Legal Fictions’, (2006-07) 95 Georgetown Law Journal, 1435 • A Tucker, ‘Children and their Suitcase’ (2006) 18(4) Australian Family Lawyer, 16 • J Wangmann, ‘Different types of intimate partner violence? A comment on the Australian Institute of Family Studies report examining allegations of family violence in child proceedings under the Family Law Act’ (2008) 22 Australian Journal of Family Law 123

Introduction of a Presumption