Mandatory mediation, “shared care” and Australian family law. Historical, empirical and clinical reflections Lawrie Moloney Geneva July

Post-separation decisions about children Key principles over time Former presumptive principles Paternal ownership: Roman times to late 19 th century Maternal preference: Late 19 th – late 20 th century Good/ bad parent: Child to “innocent party” Major contemporary principles “Shared care presumption” (subject to best interests) Approximation presumption (subject to best interests) Best Interests of Child (“no presumption”)

“Best interests” and the search for consistency Law Behavioural sciences Societal norms Parental responses Future predictions as underpinning principle

Best Interests of Child Legal Dilemmas Differences and the use of intuition Every family and every child's circumstances are different and the courts will continue to make decisions on this basis. (UK Department of Education/Ministry of Justice 2012 par 4.4 Reasons for judgment, necessarily in many cases, especially in a finely balanced case, are a rationalization of a largely intuitive judgment based on an assessment of the personalities of the parties and the child. Murphy J (High Court Judge) in Gronow vs Gronow.

Best Interests of Child Legal Dilemmas Legal precedent and the quest for objectivity [A]ll that has occurred is that the court has not yet determined which of the factors of most relevant to welfare should be given pre-eminence over other matters. Full Court in In the Matter of Smythe [T]he possibility that the facts and circumstances of a residence case can be finely balanced [has been] rejected by the majority of the Full Court of the Family Court … In such circumstances the court … has not sufficiently scrutinised the facts and circumstances presented to it concerning the best interests of the child. Dickey (1997). Family law – 3 rd edition. Commentary on the case of Smythe

Legal precedent – property vs children ‘It is plainly important [that] there be general consistency from one case to another underlying notions of what is just and appropriate in particular circumstances. Otherwise, the law would, in truth, be but the ‘lawless science’ of a ‘codeless myriad of precedent’ and a ‘wilderness of single instances’ Deanne J in Mallet’s case (property case)

Best Interests of Child Behavioural Science Dilemmas Appeals to “science” and predictability Psychologists’ recommendations (in children’s disputes) are based upon articulated assumptions, interpretations, and inferences that are consistent with established professional and scientific standards. American Psychological Association (2010) Guidelines for child custody evaluations in family law proceedings. Emphasis added

Best Interests of Child Behavioural Science Dilemmas The limitations of rationality When one examines individual incidents of decision-making [about children] and attempts to unravel the factors responsible for the course of action adopted, it soon becomes evident that we are confronted with a highly complex, frequently obscure and far from rational process. Rudolph Schaffer (1998 p 2). Making decisions about children. Emphasis added

Best Interests of Child Societal norms Deciding what is best for a child poses a question no less ultimate than the purposes and values of life itself. Should the judge be primarily concerned with the child’s happiness ? Or with the child’s spiritual and religious training ? Should the judge be concerned with the child’s ‘economic productivity ’ when he grows up? Are the primary values in life in warm interpersonal relationships or in discipline and self- sacrifice? … [W]here is the judge to look for the set of values that should inform the choice of what is best for the child? Normally, the custody statutes do not themselves give content or relative weights to the pertinent values. And if the judge looks to society at large, he [sic] finds neither a clear consensus as to the best child rearing strategies nor an appropriate hierarchy of ultimate values. Mnookin (1975 p 260). Emphases added

The Best Interests of Children Predicting the future Based on the collective evidence to date - in a multitude of domains, including cognitive, social, emotional, and psychopathological - the best that can be said is that there sometimes is very limited support for the belief that earlier events are connected to later ones Lewis (2001 p 74) Issues in the study of personality development. Psychological Inquiry, 12 (2),

The Best Interests of Children Future predictions & the great attachment debate Beyond the best interests of the child. Goldstein, Freud and Solnit (1973). We cannot definitively say, based on attachment assessment, this child should be with this parent more than with that parent. Srouf & McIntosh (2011). Divorce and attachment relationships: The longitudinal journey. Family Court Review, 49 (3),

The Best Interests of Children Formation and structures of future families It is no exaggeration to say that the [Western] family changed more dramatically in the latter half of the twentieth century than in any comparable span of time in our history … This transition has seen many family practices revised, if not reversed or abandoned. Furstenberg (2011, p. 192) “The transformation of the American family”

Future families: what will they look like?

Post separation shared parenting in Western democracies General softening of boundaries around care of children both before and after separation Post separation definitions of shared care vary – in Australia at least 35% of time with each parent (threshold used by Child Support Agency). Most countries define as at least 30% time Estimates* of incidence range between 11% and 22% of separated parents in Australia, Canada, the United Kingdom, Denmark, Norway, and the Netherlands United States - around 20 % but as high as 32% in states such as Wisconsin. Sweden and Belgium – 33%. * Figures from Smyth et al (forthcoming)

Social forces linked to focus on “shared parenting” Women’s increasing participation in the paid workforce Changing perceptions of fatherhood Broadening understandings of attachment The UN Convention on the Rights of the Child The complex issue of absent dads The discomfort of indeterminacy See Moloney, Weston & Hayes (2013)

Women’s increasing participation in the paid workforce Notes: A part-time job refers to paid work of fewer than 35 hours per week. Source: Updated trends provided in Renda (2003). Renda’s data were based on ABS Labour Force Status and Family Characteristics (Catalogue no ). The 2007 data were based on ABS (2007) Labour Force Status and Other Characteristics of Families (datacube ST FA4). Figure 1: Trends in the breadwinning roles of parents in couple families with dependent children, 1983 to 2007

Changing perceptions of fatherhood With the exception of lactation, there is no evidence that women are biologically disposed to better parent than men are. Social conventions, not biological imperatives, underlie the traditional division of parental responsibilities Lamb (1997) The role of the father in child development.

Broadening understandings of attachment The bond between a child and a good mother … expresses itself in an unrelenting and self-sacrificing fondness… Fathers and stepmothers may seek to emulate it … But the mother’s attachment is biologically determined by deep genetic factors, which can never apply to them. Epperson v Dampne (1976) Mr Justice Glass Infants do not have gender biases when it comes to attachment formation. Their bias is for responsive, attuned predictable, warm care within one consistent caregiving relationship, and then, subsequently, others. McIntosh (2011 p, 424)

UN Convention on the rights of the child Article 9 (Separation from parents): Children have the right to live with their parent(s, unless it is bad for them. Children whose parents do not live together have the right to stay in contact with both parents unless this might hurt the child.

The complex story of absent dads Absent dads were a key driver of Australia’s 2006 legislative reforms – but high conflict and fear are an important part of the story

Mothers’ reports that relationship with father is distant, highly conflicted or fearful, by fathers’ care-time Based on mothers’ reports Note: the remainder of mothers described the inter-parental relationship as “friendly” or “cooperative”

Fathers’ reports that relationship with mother is distant, highly conflicted or fearful, by fathers’ care-time Note: the remainder of fathers described the inter- parental relationship as “friendly” or “cooperative”

The discomfort of indeterminacy “The approximation rule increases grounds for parental conflict … The rule has led to strategic behavior … By striving to reduce the more open- ended “best interest” factors, [the rule] provided new weapons to high-conflict couples. Indeed, the new objective measurements may favor the initiator of divorce and the party with the more strategic lawyer” Dolan, M. and Hynan, D. J., "The Limits of Determinacy: An Empirical Critique of the ALI Approximation Rule for Child Custody Disputes" Paper presented at the annual meeting of the The Law and Society Association, Renaissance Chicago Hotel, Chicago, IL

Note: Slides on the topics below were presented at the seminar but will not be publicly available until they are published early in 2014 Shared time parenting over time: Child Support Agency cases Sequential survey data: Separated parents from different cohorts reporting shared-time parenting Trends in shared-time family dynamics

Beyond the focus on time Moloney, L., (2003) Bargaining over children. From presumptive practice to child-focused litigation. Family Matters, 65, Smyth, B., (2005) Time to rethink time. The experience of time with children after divorce Family Matters (71) Moloney, L., (2008) Dads, family breakdown and the 2006 family law reforms. It’s about time – or is it? In Proceedings: Men’s Advisory Network Second National Conference. Promaco Publishers, Fremantle Moloney, L., (2012) Child sensitive practices in parenting disputes. About time and about timing. Opening Address: Child Inclusive Practice Forum Dockside, Darling Harbour, Sydney, March 15 th

Research supporting practice Clinical assumptionsResearch literature Each child and each family is uniqueNo single arrangement is best Children love/want/need both parents. Extended family important Ongoing meaningful relationships link to good outcomes. Safety main caveat Disentangle couple r/ship from parenting obligations Children do best when kept out of the conflict How parents relate is criticalDecisions about time subordinate Money is important: often insufficientLink between poverty/poor outcomes Good dispute resolution process as important as good outcome The more formal the process, the less satisfied the client. “Good divorce” possible/ worth effortMost parents are able to cooperate