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SHARED PARENTAL RESPONSIBILITY’ IN AUSTRALIA’S FAMILY LAW SYSTEM Dr Elspeth McInnes AM University of SA Altering States: Creating Futures Conference Brisbane.

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Presentation on theme: "SHARED PARENTAL RESPONSIBILITY’ IN AUSTRALIA’S FAMILY LAW SYSTEM Dr Elspeth McInnes AM University of SA Altering States: Creating Futures Conference Brisbane."— Presentation transcript:

1 SHARED PARENTAL RESPONSIBILITY’ IN AUSTRALIA’S FAMILY LAW SYSTEM Dr Elspeth McInnes AM University of SA Altering States: Creating Futures Conference Brisbane June

2 Family Law Change From July From July ‘equal shared parental responsibility’ under which decision makers must consider children spending the maximum time possible (50/50) with each parent after separation, or substantial or significant time. ‘equal shared parental responsibility’ under which decision makers must consider children spending the maximum time possible (50/50) with each parent after separation, or substantial or significant time.

3 Paramountcy Principle Children’s best interests are paramount in all decisions. Children’s best interests are paramount in all decisions. Previously: Each child’s ‘best interests’ were uniquely examined. Previously: Each child’s ‘best interests’ were uniquely examined. Now: The content of ‘best interests’ is re- defined as regular contact with each parent after separation. Now: The content of ‘best interests’ is re- defined as regular contact with each parent after separation.

4 What’s the Problem? TWO serious implications for adverse mental health outcomes. 1. the mental health and developmental needs of children are subordinated to the presumption of maximum time with each parent. 2. victims of violence and abuse face greatly increased risks of continuing exposure to abuse when they are required to share care with an abusing parent.

5 Mental Health & Relationships ABS data (2002) indicates that one in five Australians have had a mental illness in the past 12 months – mostly depressive and anxiety disorders. ABS data (2002) indicates that one in five Australians have had a mental illness in the past 12 months – mostly depressive and anxiety disorders. Mental health problems can contribute to difficulties in relationship formation and are a commonly nominated cause of relationship breakdown (Wolcott & Hughes 1999). Mental health problems can contribute to difficulties in relationship formation and are a commonly nominated cause of relationship breakdown (Wolcott & Hughes 1999). Relationship breakdown is a ‘crisis’ period which can itself precipitate mental illness. Relationship breakdown is a ‘crisis’ period which can itself precipitate mental illness.

6 Contributing factors & Co-Morbidity Drug and alcohol issues Drug and alcohol issues Family violence Family violence Intellectual disability Intellectual disability Poverty (Illness/disability impedes earning) Poverty (Illness/disability impedes earning) Social isolation (cumulative risk). Social isolation (cumulative risk). Trauma Histories – PTSD Trauma Histories – PTSD

7 The Significance of Violence Violence and abuse have been identified as strong predictors and contributors to mental illness risk (Taft 2003; Itzin 2006). Violence and abuse have been identified as strong predictors and contributors to mental illness risk (Taft 2003; Itzin 2006). Risk and severity of illness is linked to the age of onset, the severity, duration and number of episodes of violence and abuse as well as the presence or absence of supportive responses and safety. Risk and severity of illness is linked to the age of onset, the severity, duration and number of episodes of violence and abuse as well as the presence or absence of supportive responses and safety. Children who experience violence and abuse are additionally developmentally vulnerable. Children who experience violence and abuse are additionally developmentally vulnerable. The prevention and reduction and treatment of violence and abuse must become central to mental health strategies. The prevention and reduction and treatment of violence and abuse must become central to mental health strategies.

8 Gender 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 they have no intimate relationship. Men are most likely to be assaulted by other men with whom they have no intimate relationship. Women are most likely to be assaulted by a male ex-partner or current partner. Women are most likely to be assaulted by a male ex-partner or current partner. One in four Australian young people reported seeing their mother being assaulted by a father figure (Indermaur 2001). One in four Australian young people reported seeing their mother being assaulted by a father figure (Indermaur 2001). A Victorian public health study identified intimate partner violence as the leading contributor to illness and death amongst women aged (Heenan et al 2004). A Victorian public health study identified intimate partner violence as the leading contributor to illness and death amongst women aged (Heenan et al 2004). 61% of persons reporting violence by a previous partner had children in their care at the time and 36% said the children had witnessed the violence (ABS 2006). 61% of persons reporting violence by a previous partner had children in their care at the time and 36% said the children had witnessed the violence (ABS 2006). Violence and abuse are also key contributors to relationship breakdown, featuring in two-thirds of cases which present in the courts of the family law system. Violence and abuse are also key contributors to relationship breakdown, featuring in two-thirds of cases which present in the courts of the family law system.

9 Implications for Family Law System Men and women in the population of separated parents will have increased prevalence of mental illness and increased prevalence of violence and abuse issues compared to the general population and compared with families where parents have not separated. Men and women in the population of separated parents will have increased prevalence of mental illness and increased prevalence of violence and abuse issues compared to the general population and compared with families where parents have not separated. Simply put, good relationships are less likely to break down. Where separating parents are able to safely and effectively negotiate post-separation agreements – they do. Simply put, good relationships are less likely to break down. Where separating parents are able to safely and effectively negotiate post-separation agreements – they do. Those that remain in the court system are highly likely to feature a range of complex problems including mental illness and violence /abuse issues. Those that remain in the court system are highly likely to feature a range of complex problems including mental illness and violence /abuse issues.

10 Safety in Family Law From July all separating parents must attend an FRC and either make a ‘genuine effort’ to resolve their dispute, or establish that violence/abuse is an issue to be allowed to apply for a court hearing. From July all separating parents must attend an FRC and either make a ‘genuine effort’ to resolve their dispute, or establish that violence/abuse is an issue to be allowed to apply for a court hearing. False allegations of violence must result in the alleging party paying court costs. False allegations of violence must result in the alleging party paying court costs. Fear of violence/abuse is subject to a higher threshold of ‘reasonable fear’. Fear of violence/abuse is subject to a higher threshold of ‘reasonable fear’.

11 Decisions re Children Whether in an FRC or the court, decision-makers MUST consider the child spending maximum time with each parent, or substantial or significant time. Whether in an FRC or the court, decision-makers MUST consider the child spending maximum time with each parent, or substantial or significant time. A presumption of equal shared parental responsibility is applied unless there are reasonable grounds to believe that a parent of the child or a person who lives with a parent of the child has engaged in abuse or family violence BUT targets of violence/abuse are responsible for proving it happened. A presumption of equal shared parental responsibility is applied unless there are reasonable grounds to believe that a parent of the child or a person who lives with a parent of the child has engaged in abuse or family violence BUT targets of violence/abuse are responsible for proving it happened. Violence Restraining Orders and child abuse substantiations by government departments are commonly not accepted by judicial officers as proof of violence or abuse. Violence Restraining Orders and child abuse substantiations by government departments are commonly not accepted by judicial officers as proof of violence or abuse.

12 Violence Allegations + Family Law Decisions AIFS report (Moloney et al 2007) confirmed a majority of court cases involve violence/abuse allegations. AIFS report (Moloney et al 2007) confirmed a majority of court cases involve violence/abuse allegations. ‘It was unusual for contact to be denied’ – allegations of severe violence with strong evidence increased the likelihood of orders for daytime only contact - ‘Nonetheless, orders for overnight stays predominated among contact orders cases, whether or not allegations were made and regardless of the apparent severity or weight of evidence’ (Moloney et al 2007, p. ix) ‘It was unusual for contact to be denied’ – allegations of severe violence with strong evidence increased the likelihood of orders for daytime only contact - ‘Nonetheless, orders for overnight stays predominated among contact orders cases, whether or not allegations were made and regardless of the apparent severity or weight of evidence’ (Moloney et al 2007, p. ix)

13 Going Mad or Being Driven Nuts? Mothers living with violent partners face a classic ‘Catch- 22’: Mothers living with violent partners face a classic ‘Catch- 22’: If mothers stay, the child protection system can classify them as emotionally abusive/neglectful. If the child is killed by their violent partner, they may be charged with criminal neglect for failing to act to protect the child. If mothers stay, the child protection system can classify them as emotionally abusive/neglectful. If the child is killed by their violent partner, they may be charged with criminal neglect for failing to act to protect the child. If mothers leave to protect their child/ren, the family law system is likely to make orders for the child/ren to have continuing unsupervised contact with the abuser. If mothers leave to protect their child/ren, the family law system is likely to make orders for the child/ren to have continuing unsupervised contact with the abuser. Parents who allege violence or abuse face court costs if they cannot prove their claim. Parents who allege violence or abuse face court costs if they cannot prove their claim. Mothers who resist presenting children for contact with their abusers face fines, imprisonment and reversal of residence to place children in the ‘care’ of the abuser. Mothers who resist presenting children for contact with their abusers face fines, imprisonment and reversal of residence to place children in the ‘care’ of the abuser.

14 Children’s Mental Health and the Half-Child Policy Even in cases where there is no violence/abuse issue, a presumption that all children will have their best interests served by living half time with each parent, is problematic. Even in cases where there is no violence/abuse issue, a presumption that all children will have their best interests served by living half time with 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 rotations with mothers told to express milk if they wanted to continue to breastfeed. - kindergarten children being ordered into half time rotations with parents in different states - primary school children attending school halfway between their parents’ residences 200 km apart

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17 Mental Health Risks to Children Continuing lack of safety on court ordered contact with violent/abusive parents Continuing lack of safety on court ordered contact with violent/abusive parents Continuing exposure to disputes between parents and attacks on a parent Continuing exposure to disputes between parents and attacks on a parent Feeling responsible for the violence/disputes between parents Feeling responsible for the violence/disputes between parents Being pressured to ‘spy on’ or ‘be mean’ to the other parent Being pressured to ‘spy on’ or ‘be mean’ to the other parent Disrupted attachment/breastfeeding for infants Disrupted attachment/breastfeeding for infants Loss of extended family, neighbourhood and community in commuter shuttle – eg cannot participate in regular sport Loss of extended family, neighbourhood and community in commuter shuttle – eg cannot participate in regular sport Potential to feel lost between households with no real home Potential to feel lost between households with no real home Made to feel responsible for parents’ health and well-being Made to feel responsible for parents’ health and well-being Lack of continuity of context for developmental milestones Lack 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 ‘being dumped’ in favour of parents’ new partners. Adverse exposures to new partners and step-families or ‘being dumped’ in favour of parents’ new partners.

18 Children are not anti-suicide devices The half-child family law policy is an outcome of lobbying by fathers’ rights groups. They have used men’s suicide rates as arguments for children to be halved across households and child support to be reduced. The half-child family law policy is an outcome of lobbying by fathers’ rights groups. They have used men’s suicide rates as arguments for children to be halved across households and child support to be reduced. The federally funded organisation ‘Dads in Distress’ places an 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 for suicidal members. The federally funded organisation ‘Dads in Distress’ places an 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 for suicidal members. NCSMC considers that suicidal threats, ideations and behaviours need to be recognised as a mental health problem, whether they occur in the context of divorce, unemployment or any other circumstance. Such ideas and conduct should result in a referral to a medical or community mental health support service. NCSMC considers that suicidal threats, ideations and behaviours need to be recognised as a mental health problem, whether they occur in the context of divorce, unemployment or any other circumstance. Such ideas and conduct should result in a referral to a medical or community mental health support service. 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, emotional withdrawal, irritability, substance abuse, suicidal behaviour – are all likely to have a negative impact on the child and increase their risks of future mental health problems. 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, emotional withdrawal, irritability, substance abuse, suicidal behaviour – are all likely to have a negative impact on the child and increase their risks of future mental health problems.

19 What’s to be Done? Safety first must become central to family law decision- making. A risk management approach would screen cases, seek evidence, investigate cases and err on the side of safety. The best parent is a SAFE parent. Safety first must become central to family law decision- making. A risk management approach would screen cases, seek evidence, investigate cases and err on the side of safety. The best parent is a SAFE parent. Children’s developmental needs must be recognised and protected ahead of child allocation formulas. Children’s developmental needs must be recognised and protected ahead of child allocation formulas. This implies a change in education, philosophy and practice for all professionals engaged in the family law system. This implies a change in education, philosophy and practice for all professionals engaged in the family law system. Currently parents’ entitlements to a half-child dominates children’s rights to safety, continuity of residence, continuity of education and a voice in the decisions affecting their lives. Currently parents’ entitlements to a half-child dominates children’s rights to safety, continuity of residence, continuity of education and a voice in the decisions affecting their lives.

20 References Australian Bureau of Statistics, (2006) Personal Safety Survey, Catalogue Number , Canberra, AGPS. Australian Bureau of Statistics, (2006) Personal Safety Survey, Catalogue Number , Canberra, AGPS. Butterworth, P. (2003) ‘Multiple and Severe Disadvantage among Lone Mothers Receiving Income Support’, Family Matters No. 64, Autumn pp Butterworth, P. (2003) ‘Multiple and Severe Disadvantage among Lone Mothers Receiving Income Support’, Family Matters No. 64, Autumn pp Heenan, M., Astbury, J. Vos, T., Magnus, A. and Piers, L. (2004), The Health Costs of Violence: Measuring the Burden if disease caused by Intimate Partner Violence, VicHealth, Victoria Department of Human Services, Melbourne. Heenan, M., Astbury, J. Vos, T., Magnus, A. and Piers, L. (2004), The Health Costs of Violence: Measuring the Burden if disease caused by Intimate Partner Violence, VicHealth, Victoria Department of Human Services, Melbourne. Indermaur, D., (2001) Young Australians and Domestic Violence, Trends and Issues Paper No. 195, Canberra, Australian Institute of Criminology. Indermaur, D., (2001) Young Australians and Domestic Violence, Trends and Issues Paper No. 195, Canberra, Australian Institute of Criminology. Itzin C Tackling the Health and Mental Health Effects of Domestic and Sexual Violence and Abuse, UK Home Office. Itzin C Tackling the Health and Mental Health Effects of Domestic and Sexual Violence and Abuse, UK Home Office. Moloney, L., Smyth, B., Weston, R., Richardson, N., Qu, L., and Gray, M., (2007), Allegations of Family Violence and Child Abuse in Family Law Children’s Proceedings, Research Report No. 15, Melbourne, Australian Institute of Family Studies. Moloney, L., Smyth, B., Weston, R., Richardson, N., Qu, L., and Gray, M., (2007), Allegations of Family Violence and Child Abuse in Family Law Children’s Proceedings, Research Report No. 15, Melbourne, Australian Institute of Family Studies. Taft, A. (2003) Promoting Women’s Mental Health: The Challenges of Intimate/Domestic Violence Against Women, Issues Paper No. 8, Australian Domestic and Family Violence Clearinghouse, Sydney, UNSW. Taft, A. (2003) Promoting Women’s Mental Health: The Challenges of Intimate/Domestic Violence Against Women, Issues Paper No. 8, Australian Domestic and Family Violence Clearinghouse, Sydney, UNSW. Wolcott, I. and Hughes, J., (1999) Towards Understanding the Reasons for Divorce, Working Paper 20, Melbourne, Australian Institute of Family Studies. Wolcott, I. and Hughes, J., (1999) Towards Understanding the Reasons for Divorce, Working Paper 20, Melbourne, Australian Institute of Family Studies.


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