SHARED PARENTAL RESPONSIBILITY’ IN SHARED PARENTAL RESPONSIBILITY’ IN AUSTRALIA’S FAMILYAUSTRALIA’S FAMILY

LAW SYSTEMLAW SYSTEM

Dr Elspeth McInnes AMDr Elspeth McInnes AM

University of SAUniversity of SA

Altering States: Creating Futures Conference Altering States: Creating Futures Conference

Brisbane June 28-29 2007Brisbane June 28-29 2007

Family Law ChangeFamily Law Change

From July 1 2006 From July 1 2006 ‘‘equal shared parental responsibility’ equal shared parental responsibility’

under which decision makers under which decision makers mustmust consider children spending the consider children spending the maximum time possible (50/50) with maximum time possible (50/50) with each parent after separation, or each parent after separation, or substantial or significant time. substantial or significant time.

Paramountcy Principle Paramountcy Principle

Children’s best interests are Children’s best interests are paramount in all decisions.paramount in all decisions.

Previously: Each child’s ‘best Previously: Each child’s ‘best interests’ were uniquely examined.interests’ were uniquely examined.

Now: The content of ‘best interests’ Now: The content of ‘best interests’ is re-defined as regular contact with is re-defined as regular contact with each parent after separation.each parent after separation.

What’s the Problem?What’s the Problem?

TWO serious implications for adverse mental TWO serious implications for adverse mental health outcomes. health outcomes.

1.1. the mental health and developmental the mental health and developmental needs of children are subordinated to the needs of children are subordinated to the presumption of maximum time with each presumption of maximum time with each parent. parent.

2.2. victims of violence and abuse face greatly victims of violence and abuse face greatly increased risks of continuing exposure to increased risks of continuing exposure to abuse when they are required to share abuse when they are required to share care with an abusing parent. care with an abusing parent.

Mental Health & RelationshipsMental Health & Relationships

ABS data (2002) indicates that one in five ABS data (2002) indicates that one in five Australians have had a mental illness in Australians have had a mental illness in the past 12 months – mostly depressive the past 12 months – mostly depressive and anxiety disorders.and anxiety disorders.

Mental health problems can contribute to Mental health problems can contribute to difficulties in relationship formation and difficulties in relationship formation and are a commonly nominated cause of are a commonly nominated cause of relationship breakdown (Wolcott & Hughes relationship breakdown (Wolcott & Hughes 1999).1999).

Relationship breakdown is a ‘crisis’ period Relationship breakdown is a ‘crisis’ period which can itself precipitate mental illness.which can itself precipitate mental illness.

Contributing factors & Co-MorbidityContributing factors & Co-Morbidity

Drug and alcohol issues Drug and alcohol issues Family violence Family violence Intellectual disability Intellectual disability Poverty (Illness/disability impedes Poverty (Illness/disability impedes

earning)earning) Social isolation (cumulative risk). Social isolation (cumulative risk). Trauma Histories – PTSDTrauma Histories – PTSD

The Significance of ViolenceThe Significance of Violence Violence and abuse have been identified as Violence and abuse have been identified as

strong predictors and contributors to mental strong predictors and contributors to mental illness risk (Taft 2003; Itzin 2006).illness risk (Taft 2003; Itzin 2006).

Risk and severity of illness is linked to the age of Risk and severity of illness is linked to the age of onset, the severity, duration and number of onset, the severity, duration and number of episodes of violence and abuse as well as the episodes of violence and abuse as well as the presence or absence of supportive responses and presence or absence of supportive responses and safety.safety.

Children who experience violence and abuse are Children who experience violence and abuse are additionally developmentally vulnerable.additionally developmentally vulnerable.

The prevention and reduction and treatment of The prevention and reduction and treatment of violence and abuse must become central to violence and abuse must become central to mental health strategies.mental health strategies.

Gender and Violence/AbuseGender and Violence/Abuse Experiences of violence and abuse are gendered (ABS 2006). Experiences of violence and abuse are gendered (ABS 2006). Men are most likely to be assaulted by other men with whom Men are most likely to be assaulted by other men with whom

they have no intimate relationship.they have no intimate relationship. Women are most likely to be assaulted by a male ex-partner Women are most likely to be assaulted by a male ex-partner

or current partner.or current partner. One in four Australian young people reported seeing their One in four Australian young people reported seeing their

mother being assaulted by a father figure (Indermaur 2001).mother being assaulted by a father figure (Indermaur 2001). A Victorian public health study identified intimate partner A Victorian public health study identified intimate partner

violence as the leading contributor to illness and death violence as the leading contributor to illness and death amongst women aged 15-45 (Heenan et al 2004).amongst women aged 15-45 (Heenan et al 2004).

61% of persons reporting violence by a previous partner had 61% of persons reporting violence by a previous partner had children in their care at the time and 36% said the children children in their care at the time and 36% said the children had witnessed the violence (ABS 2006).had witnessed the violence (ABS 2006).

Violence and abuse are also key contributors to relationship Violence and abuse are also key contributors to relationship breakdown, featuring in two-thirds of cases which present in breakdown, featuring in two-thirds of cases which present in the courts of the family law system.the courts of the family law system.

Implications for Family Law SystemImplications for Family Law System

Men and women in the population of separated Men and women in the population of separated parents will have increased prevalence of mental parents will have increased prevalence of mental illness and increased prevalence of violence and illness and increased prevalence of violence and abuse issues compared to the general population abuse issues compared to the general population and compared with families where parents have not and compared with families where parents have not separated.separated.

Simply put, good relationships are less likely to Simply put, good relationships are less likely to break down. Where separating parents are able to break down. Where separating parents are able to safely and effectively negotiate post-separation safely and effectively negotiate post-separation agreements – they do.agreements – they do.

Those that remain in the court system are highly Those that remain in the court system are highly likely to feature a range of complex problems likely to feature a range of complex problems including mental illness and violence /abuse issues.including mental illness and violence /abuse issues.

Safety in Family LawSafety in Family Law

From July 1 2007 all separating parents From July 1 2007 all separating parents must attend an FRC and either make a must attend an FRC and either make a ‘genuine effort’ to resolve their dispute, ‘genuine effort’ to resolve their dispute, or establish that violence/abuse is an or establish that violence/abuse is an issue to be allowed to apply for a court issue to be allowed to apply for a court hearing.hearing.

False allegations of violence must result False allegations of violence must result in the alleging party paying court costs.in the alleging party paying court costs.

Fear of violence/abuse is subject to a Fear of violence/abuse is subject to a higher threshold of ‘reasonable fear’.higher threshold of ‘reasonable fear’.

Decisions re ChildrenDecisions re Children Whether in an FRC or the court, decision-makers Whether in an FRC or the court, decision-makers

MUST consider the child spending maximum time MUST consider the child spending maximum time with each parent, or substantial or significant time.with each parent, or substantial or significant time.

A presumption of equal shared parental A presumption of equal shared parental responsibility is applied unless there are responsibility is applied unless there are reasonable grounds to believe that a parent of the reasonable grounds to believe that a parent of the child or a person who lives with a parent of the child or a person who lives with a parent of the child has engaged in abuse or family violence BUT child has engaged in abuse or family violence BUT targets of violence/abuse are responsible for targets of violence/abuse are responsible for proving it happened.proving it happened.

Violence Restraining Orders and child abuse Violence Restraining Orders and child abuse substantiations by government departments are substantiations by government departments are commonly not accepted by judicial officers as proof commonly not accepted by judicial officers as proof of violence or abuse.of violence or abuse.

Violence Allegations + Family Law Violence Allegations + Family Law DecisionsDecisions

AIFS report (Moloney et al 2007) confirmed AIFS report (Moloney et al 2007) confirmed a majority of court cases involve a majority of court cases involve violence/abuse allegations.violence/abuse allegations.

‘‘It was unusual for contact to be denied’ – It was unusual for contact to be denied’ – allegations of severe violence with strong allegations of severe violence with strong evidence increased the likelihood of orders evidence increased the likelihood of orders for daytime only contact - ‘Nonetheless, for daytime only contact - ‘Nonetheless, orders for overnight stays predominated orders for overnight stays predominated among contact orders cases, whether or not among contact orders cases, whether or not allegations were made and regardless of allegations were made and regardless of the apparent severity or weight of the apparent severity or weight of evidence’ (Moloney et al 2007, p. ix)evidence’ (Moloney et al 2007, p. ix)

Going Mad or Being Driven Nuts?Going Mad or Being Driven Nuts?

Mothers living with violent partners face a classic Mothers living with violent partners face a classic ‘Catch-22’:‘Catch-22’:

If mothers stay, the child protection system can classify If mothers stay, the child protection system can classify them as emotionally abusive/neglectful. If the child is them as emotionally abusive/neglectful. If the child is killed by their violent partner, they may be charged killed by their violent partner, they may be charged with criminal neglect for failing to act to protect the with criminal neglect for failing to act to protect the child.child.

If mothers leave to protect their child/ren, the family If mothers leave to protect their child/ren, the family law system is likely to make orders for the child/ren to law system is likely to make orders for the child/ren to have continuing unsupervised contact with the abuser.have continuing unsupervised contact with the abuser.

Parents who allege violence or abuse face court costs if Parents who allege violence or abuse face court costs if they cannot prove their claim.they cannot prove their claim.

Mothers who resist presenting children for contact with Mothers who resist presenting children for contact with their abusers face fines, imprisonment and reversal of their abusers face fines, imprisonment and reversal of residence to place children in the ‘care’ of the abuser.residence to place children in the ‘care’ of the abuser.

Children’s Mental Health and the Children’s Mental Health and the Half-Child PolicyHalf-Child Policy

Even in cases where there is no violence/abuse Even in cases where there is no violence/abuse issue, a presumption that all children will have issue, a presumption that all children will have their best interests served by living half time with their best interests served by living half time with each parent, is problematic.each parent, is problematic.

Some cases which NCSMC has seen include: Some cases which NCSMC has seen include: - breast-fed babies ordered into half-time - breast-fed babies ordered into half-time rotations with mothers told to express milk if they rotations with mothers told to express milk if they wanted to continue to breastfeed.wanted to continue to breastfeed.- kindergarten children being ordered into half - kindergarten children being ordered into half time rotations with parents in different time rotations with parents in different statesstates - primary school children attending school - primary school children attending school halfway between their parents’ residences 200 halfway between their parents’ residences 200 km apart km apart

Mental Health Risks to ChildrenMental Health Risks to Children Continuing lack of safety on court ordered contact with Continuing lack of safety on court ordered contact with

violent/abusive parentsviolent/abusive parents Continuing exposure to disputes between parents and attacks Continuing exposure to disputes between parents and attacks

on a parenton a parent Feeling responsible for the violence/disputes between parentsFeeling responsible for the violence/disputes between parents Being pressured to ‘spy on’ or ‘be mean’ to the other parentBeing pressured to ‘spy on’ or ‘be mean’ to the other parent Disrupted attachment/breastfeeding for infantsDisrupted attachment/breastfeeding for infants Loss of extended family, neighbourhood and community in Loss of extended family, neighbourhood and community in

commuter shuttle – eg cannot participate in regular sportcommuter shuttle – eg cannot participate in regular sport Potential to feel lost between households with no real homePotential to feel lost between households with no real home Made to feel responsible for parents’ health and well-beingMade to feel responsible for parents’ health and well-being Lack of continuity of context for developmental milestonesLack of continuity of context for developmental milestones Having to manage different parenting styles/expectations Having to manage different parenting styles/expectations Adverse exposures to new partners and step-families or Adverse exposures to new partners and step-families or

‘being dumped’ in favour of parents’ new partners.‘being dumped’ in favour of parents’ new partners.

Children are not anti-suicide Children are not anti-suicide devicesdevices

The half-child family law policy is an outcome of lobbying by The half-child family law policy is an outcome of lobbying by fathers’ rights groups. They have used men’s suicide rates as fathers’ rights groups. They have used men’s suicide rates as arguments for children to be halved across households and child arguments for children to be halved across households and child support to be reduced.support to be reduced.

The federally funded organisation ‘Dads in Distress’ places an The federally funded organisation ‘Dads in Distress’ places an empty chair at each meeting ‘in memory of those who can’t be empty chair at each meeting ‘in memory of those who can’t be here’ yet they have had no formal links to mental health services here’ yet they have had no formal links to mental health services for suicidal members.for suicidal members.

NCSMC considers that suicidal threats, ideations and behaviours NCSMC considers that suicidal threats, ideations and behaviours need to be recognised as a mental health problem, whether they need to be recognised as a mental health problem, whether they occur in the context of divorce, unemployment or any other occur in the context of divorce, unemployment or any other circumstance. Such ideas and conduct should result in a referral circumstance. Such ideas and conduct should result in a referral to a medical or community mental health support service.to a medical or community mental health support service.

Allocating half a child to a suicidal parent is likely to result in the Allocating half a child to a suicidal parent is likely to result in the child being more exposed to the parent’s mental illness – crying, child being more exposed to the parent’s mental illness – crying, emotional withdrawal, irritability, substance abuse, suicidal emotional withdrawal, irritability, substance abuse, suicidal behaviour – are all likely to have a negative impact on the child behaviour – are all likely to have a negative impact on the child and increase their risks of future mental health problems.and increase their risks of future mental health problems.

What’s to be Done?What’s to be Done? Safety first must become central to family law Safety first must become central to family law

decision-making. A risk management approach decision-making. A risk management approach would screen cases, seek evidence, investigate would screen cases, seek evidence, investigate cases and err on the side of safety. The best cases and err on the side of safety. The best parent is a SAFE parent.parent is a SAFE parent.

Children’s developmental needs must be Children’s developmental needs must be recognised and protected ahead of child recognised and protected ahead of child allocation formulas.allocation formulas.

This implies a change in education, philosophy This implies a change in education, philosophy and practice for all professionals engaged in the and practice for all professionals engaged in the family law system. family law system.

Currently parents’ entitlements to a half-child Currently parents’ entitlements to a half-child dominates children’s rights to safety, continuity dominates children’s rights to safety, continuity of residence, continuity of education and a voice of residence, continuity of education and a voice in the decisions affecting their lives.in the decisions affecting their lives.

ReferencesReferences Australian Bureau of Statistics, (2006) Australian Bureau of Statistics, (2006) Personal Safety SurveyPersonal Safety Survey, Catalogue , Catalogue

Number 4906.0, Canberra, AGPS.Number 4906.0, Canberra, AGPS. Butterworth, P. (2003) ‘Multiple and Severe Disadvantage among Lone Butterworth, P. (2003) ‘Multiple and Severe Disadvantage among Lone

Mothers Receiving Income Support’, Mothers Receiving Income Support’, Family MattersFamily Matters No. 64, Autumn pp. 22-29. No. 64, Autumn pp. 22-29. Heenan, M., Astbury, J. Vos, T., Magnus, A. and Piers, L. (2004Heenan, M., Astbury, J. Vos, T., Magnus, A. and Piers, L. (2004), The Health ), The Health

Costs of Violence: Measuring the Burden if disease caused by Intimate Partner Costs of Violence: Measuring the Burden if disease caused by Intimate Partner ViolenceViolence, VicHealth, Victoria Department of Human Services, VicHealth, Victoria Department of Human Services, , Melbourne. Melbourne.

Indermaur, D., (2001) Indermaur, D., (2001) Young Australians and Domestic ViolenceYoung Australians and Domestic Violence, Trends and , Trends and Issues Paper No. 195, Canberra, Australian Institute of Criminology.Issues Paper No. 195, Canberra, Australian Institute of Criminology.

Itzin C. 2006 Tackling the Health and Mental Health Effects of Domestic and Itzin C. 2006 Tackling the Health and Mental Health Effects of Domestic and Sexual Violence and Abuse, UK Home Office.Sexual Violence and Abuse, UK Home Office.

Moloney, L., Smyth, B., Weston, R., Richardson, N., Qu, L., and Gray, M., Moloney, L., Smyth, B., Weston, R., Richardson, N., Qu, L., and Gray, M., (2007), (2007), Allegations of Family Violence and Child Abuse in Family Law Allegations of Family Violence and Child Abuse in Family Law Children’s ProceedingsChildren’s Proceedings, Research Report No. 15, Melbourne, Australian , Research Report No. 15, Melbourne, Australian Institute of Family Studies.Institute of Family Studies.

Taft, A. (2003) Taft, A. (2003) Promoting Women’s Mental Health: The Challenges of Promoting Women’s Mental Health: The Challenges of Intimate/Domestic Violence Against WomenIntimate/Domestic Violence Against Women, Issues Paper No. 8, Australian , Issues Paper No. 8, Australian Domestic and Family Violence Clearinghouse, Sydney, UNSW.Domestic and Family Violence Clearinghouse, Sydney, UNSW.

Wolcott, I. and Hughes, J., (1999) Wolcott, I. and Hughes, J., (1999) Towards Understanding the Reasons for Towards Understanding the Reasons for DivorceDivorce, Working Paper 20, Melbourne, Australian Institute of Family Studies., Working Paper 20, Melbourne, Australian Institute of Family Studies.