University of Queensland Research Seminar Series

1. University of QueenslandResearch Seminar Series Social Science or “Lego-science”: What’s wrong with the 2006 changes to the Family Law Act? Zoe Rathus AMGriffith University Zoe Rathus, Griffith Law School

2. s61DA Presumption of equal shared parental responsibility when making parenting orders When making a parenting order , the 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. • Rebuttals and exceptions exist Zoe Rathus, Griffith Law School

3. 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 order not made, consider a making a substantial and significant time order by same process See section s65DAA Zoe Rathus, Griffith Law School

4. ‘Lego-science’ Presumption parades as social science ‘truth’ about what is good for children But it is legislation not social science Sections build towards time like lego bricks on a lego-bridge Cases are the mortar Zoe Rathus, Griffith Law School

5. Outline of Presentation • What the social science really says about shared time • How the law (2006 Act) encourages shared time • How the socio-political climate influenced the law and its interpretation • Why a presumption was the wrong legal tool • The failure of the safeguards / exceptions • What now? Zoe Rathus, Griffith Law School

6. What the social science says about shared time • Focus on shared time because that is where the law leads • Three areas of particular concern: • Where there has been family violence or abuse • High levels of parental conflict • Infants and young children • Seven reports have been commissioned and other independent research published Zoe Rathus, Griffith Law School

7. Family Violence and Abuse AIFS Evaluation • FV – negative impact on children generally • BUT shared care no worse than other arrangements • EXCEPT where mother held safety concerns • 24% - 25% of mothers implementing shared care reported past physical hurt by children’s father Bagshaw and Brown • Some mothers felt pressure to agree to shared care despite history of violence Zoe Rathus, Griffith Law School

8. Parental Conflict • 21% – 24% of mothers with shared care reported ‘highly conflictual or fearful relationships with father (AIFS) • McIntosh: • Study with high conflict families • Shared care • Parents with greatest on-going conflict over time • Children had on-going sense of being “caught in the middle” • Children in other arrangements – sense of “caught in the middle” decreased • But shared care arrangements increasingly common where parents conflicted Zoe Rathus, Griffith Law School

9. Infants and Young Children • Shared care quite rare • McIntosh – infants exhibited irritability and ‘vigilant efforts to monitor the presence of the primary parent’ • 2 -3 year olds – higher rates of problem behaviour and poor persistence • Reason – disruption to the primary attachment relationship when ‘emotional regulatory systems of the brain are at a critical period of establishment’. Zoe Rathus, Griffith Law School

10. Parental Bonding Zoe Rathus, Griffith Law School

11. Shared Time is Increasing Community Statistics • 2003 – about 6% of children in equal time • 2008 – about 16% in substantially shared care (post-reform separations) • Outcome of change in law or changing social views? Family Court Statistics • Shared time orders pre and post reform – 4%  34% • ESPR – 76%  86% Zoe Rathus, Griffith Law School

12. Shared Time and the Law Zoe Rathus, Griffith Law School

13. Prescriptive & Discretionary Drafting The Presumption - prescriptive Court must apply the presumption that it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child. Does not apply - discretionary Reasonable grounds to believe [there has been] child abuse or family violence Interim hearings - discretionary Appliesunless court considers “not appropriate” Rebuttable - discretionary May be rebutted where evidence satisfies the court that it would not be in the best interests of the child Zoe Rathus, Griffith Law School

14. The Lego-bridge Objects Section – s60B (1)  The objects of this Part are to ensure that the best interests of children are met by: (a)  ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and (b)  protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and Primary Considerations Section – s60CC(2) (2)  The primary considerations are: (a)  the benefit to the child of having a meaningful relationship with both of the child's parents; and (b)  the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. Zoe Rathus, Griffith Law School

15. Goode and Goode[2006] Fam CA 1346 it can be fairly said there is a legislative intent evinced in favour of substantial involvement of both parents in their children’s lives, both as to parental responsibility and as to time spent with children [my emphasis], subject to the need to protect children from harm, from abuse and family violence and provided it is in their best interests and reasonably practicable. (para 72) Zoe Rathus, Griffith Law School

16. s65DAA(5) – Reasonable Practicability Factors (a) how far apart the parents live from each other; and (b)  the parents' current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and (c)  the parents' current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and (d)  the impact that an arrangement of that kind would have on the child; and (e)  such other matters as the court considers relevant. Language does not provide clear guidance as to when shared care is likely to work well Zoe Rathus, Griffith Law School

17. My Proposal for Clearer Guidance An equal time order (or substantial and significant time order) should only be made where: • The parents live sufficiently close to each for the children to attend ordinary daily activities from both homes; and • The parents communicate at a sufficient level to effectively implement a shared care time arrangement without regular conflict; and • There is no past or present serious family violence or conflict. Zoe Rathus, Griffith Law School

18. Socio-political History • Driven by fathers’ rights groups (FRGs) • Not satisfied with Family Law Reform Act 1995 • A presumption of equal time was part of their platform • Equal time was embedded in the ToRs at 2003 Inquiry: • given that the best interests of the child are the paramount consideration, what other factors should be taken into account in deciding the respective time each parent should spend with their children post separation, in particular whether there should be a presumption that children will spend equal time with each parent, and, if so, in what circumstances such a presumption could be rebutted. Zoe Rathus, Griffith Law School

19. The Presumption Against Shared Care Time • Committee made no recommendation about time – only ESPR • BUT - it recommended a presumption against shared parental responsibility where there was ‘entrenched conflict, family violence, substance abuse or established child abuse, including sexual abuse’ • Has never occurred – may contribute to the failure of the safeguards Zoe Rathus, Griffith Law School

20. Public Perceptions • The AIFS Evaluation • ‘many parents did not understand the distinction between shared parental responsibility and shared time’. • This ‘widespread misunderstanding of the introduction of “equal” shared parenting came with an increase in expectations among fathers and a related perception of disempowerment of women’. • “Although a presumption of equal time was not won by the fathers’ rights’ lobby, a cultural shift towards that outcome in community understanding and expectations was certainly gained. Some of this cultural shift seems to have also spilt over into the courts.” (ZR) Zoe Rathus, Griffith Law School

21. 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 • Basic Fact = wife and husband are married • Presumed fact = husband is the father Zoe Rathus, Griffith Law School

22. 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 Zoe Rathus, Griffith Law School

23. A Type of ‘Legal Fiction’ • ‘judges, lawyers and legal commentators allow linguist inventions and conventions to distort their thinking … like the ancient peoples who built idols out of some stone and wood, named them, and then bowed down to them, asking them for assistance and guidance’ (Bix) • 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.’ (Smith) • “It seems that the presumption and its lego-science may have taken on the hue of a ‘truth’ to be believed, rather than being recognised as a legal fiction – as lego-science - to be applied in carefully weighed circumstances.” (ZR) Zoe Rathus, Griffith Law School

24. ESPR Orders Made (consent and judicially determined) post 1 July 2006 ESPR Orders and Family Violence FV = family violence CA = child abuse Table 8.7 – AIFS, 2009 Zoe Rathus, Griffith Law School

25. Parental Conflict and Shared Care 21 day cycle imposed by FM on conflicted family. My little five year old woke up this morning and she goes, ‘Mummy, whose house are we going to today?’ and that just broke my heart and I sort of just laughed  I said to her: ‘It’s Daddy’s tonight  and then you see Mummy the next two nights, and then you go back to Daddy for the rest of the week, okay?’ … (Fehlberg research) Zoe Rathus, Griffith Law School

26. Stuart v Stuart [2008] FMCAfam 177 • Children aged 6 and 3 • Mother – Evangelical Christian; father atheist • Mother’s evidence: • because we can’t resolve conflict … 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. • Federal magistrate: • … not a case ‘where the presumption of equal shared parental responsibility is displaced’. • ‘Indeed, I regard its operation and implementation – and its consequences [ie equal time orders] – as being in  [the] best interests [of the children]’. • No specific reference to the provisions of s 61DA • No mention of s65DAA Zoe Rathus, Griffith Law School

27. Family Law Legislation Amendment(Family Violence and Other Measures) Bill 2011 Existing law (2)  The primary considerations are: (a)  the benefit to the child of having a meaningful relationship with both of the child's parents; and (b)  the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. Add (2A) If there is any inconsistency in applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b). Zoe Rathus, Griffith Law School

28. Conclusion • The presumption is the foundation of a lego-science about shared care • Lego-science – that shared care is good for children • Has been built on by the lego-bridge to the time sections • The structure and drafting have a deep impact on interpretation and operation • Is influenced by the socio-political background • Has been reinforced by the cases • The presumption has to be repealed if different outcomes are to occur Zoe Rathus, Griffith Law School

29. Zoe Rathus, Griffith Law School

30. Current Research 1. R Kaspiew, M Gray, R Weston, L Moloney, K Hand and L Qu, Evaluation of the 2006 Family Law Reforms, Australian Institute of Family Studies, December, 2009. http://www.aifs.gov.au/institute/pubs/fle 2. R Chisholm, Family Courts Violence Review, November, 2009 http://www.ag.gov.au/www/agd/agd.nsf/Page/Families_FamilyCourtsViolenceReview 3. Family Law Council, Improving Responses to Family violence in the Family Law System: An Advice on the intersection of family violence and family law issues, December, 2009 http://www.ag.gov.au/www/agd/rwpattach.nsf/VAP/(3273BD3F76A7A5DEDAE36942A54D7D90)~Family_Violence_Report.pdf/$file/Family_Violence_Report.pdf • J Cashmore, P Parkinson, R Weston, R Patulny, G Redmond, L Qu, J Baxter, M Rajkovic, T Sitek and I Katz, Shared Care Parenting arrangements since the 2006 Family Law Reforms, Social Policy Research Centre, May, 2010 Zoe Rathus, Griffith Law School

31. Research Continued • J McIntosh, B Smyth, M Kelaher, Y Wells and C Long, Post-separation Parenting Arrangements and Developmental Outcomes for Infants and Children – Collected Reports, May, 2010 6. D Bagshaw, T Brown, S Wendt, A Campbell, E McInnes, B Tinning, B Batagol, A Sifris, D Tyson, J Baker and P Fernandez Arias, Family Violence and Family Law in Australia: The Experiences and Views of Children and Adults from Families who Separated Post-1995 and Post-2006, April, 2010 • Reports 4 – 6 are available at http://www.ag.gov.au/www/agd/agd.nsf/Page/Families_FamilyRelationshipServicesOverviewofPrograms_ResearchProjectsonSharedCareParentingandFamilyViolence 7. Australian Law Reform Commission and NSW Law Reform Commission, Family Violence: Improving Legal Frameworks – Consultation Paper, April 2010 and Family Violence: A National Legal Response – Final Report, October, 2010 Zoe Rathus, Griffith Law School

32. Research Continued 8.L Laing, No Way to Live: Women’s experiences of negotiating the family law system in the context of domestic violence, University of Sydney, NSW Health and Benevolent Society, June 2010. http://www.bensoc.org.au/uploads/documents/no-way-to-live-full-report-june2010.pdf • Z Rathus ‘Social Science or “Lego-Science”? Presumptions, Politics, Parenting and the New Family Law’ (2010) 10(2) Queensland University of Technology Law and Justice Journal, 164 • B Fehlberg, C Millward and M Campo, ‘Shared Post-separation Parenting in 2009: An Empirical Snapshot’ (2009) 23 Australian Journal of Family Law 247. Zoe Rathus, Griffith Law School