What Mum Did, What Dad Did do family law advisers want to know

By Virginia Morris,2014-04-29 21:27
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What Mum Did, What Dad Did do family law advisers want to know

    Family Relationships Services Australia National Conference 2008

    5 7 November 2008

    What Mum Did, What Dad Did:

    Do advisers in family law matters want to know about past

    patterns of care?

    Dr Becky Batagol, Monash University, Vic

    Ms Zoe Rathus, Griffith University, Qld

    Associate Professor Juliet Behrens, Australian National University, ACT

    Ms Margie Rowe, Australian National University, ACT

    This paper outlines a plan for a new research project examining the operation of the post-reform family law system. The project would involve an assessment of whether and how past patterns of care are taken into account in the work done by lawyers, family dispute 1resolution practitioners and family consultants (collectively ‗advisers‘) with parents who

    are making post-separation parenting arrangements for their children. Our starting point is that past patterns of care both are and should be relevant to such decision-making, even

    in the post-2006 family law environment. We want to test both the extent to which family law advisers agree with this proposition, and the ways in which it is or is not applied in their practices. Our hypothesis is that, despite legislative direction to have regard to them, past patterns of care are now given limited attention by such advisers, which may result in decisions which pay insufficient attention to children’s best interests.

    The project will investigate that hypothesis.

    We intend to commence this research with a small pilot study in 2009. We are keen to find partner organisations (particularly those which employ and/or represent family law advisers) who may be interested in working with us with on the project both in its pilot phase, and afterwards. We would also be grateful for your feedback on our plan.

Why focus on past patterns of care?: Our research questions

    The project focuses on the connection between past patterns and future care of children whose parents have separated, and the extent to which there is continuity of care for those children through this process. By past patterns of care we mean the quantity and kind of

    care which has been provided by the mother and father of a child before separation, and between separation and the finalisation of parenting arrangements. By kind of care we

    mean the extent to which parents‘ care of children has been sole or shared, mediated by another or not, ―hands on‖ or passive, based around play or necessary physical care,

     1 See Family Law Act 1975 (Cth) s63DA(5)


    2 or not (HREOC 2005, 32-33; Craig 2007), child-centred or parent-centred, authoritative

    among other things.

Prior to the reforms in 2006, the ‗status quo‘ (or how things have been arranged previous

    to separation) had always been a strong predictor of post-separation outcomes, such that a primary caregiver would normally have obtained an order (whether court-ordered or by consent) that the child live with them for most of the time. Thus, gendered patterns during relationships have generally continued after separation, with most children continuing to live with their mother after separation (Smyth and Wolcott 2004, 4). Such an emphasis on the status quo limits the disruption to the living circumstances of children whose parents have separated.

    As indicated, our starting position is that past patterns of care both are, and should be, relevant to decision-making about post-separation care arrangements for children.

First, such patterns of care remain relevant under the Family Law Act (FLA) even after

    July 2006. We acknowledge (and explore further below) that the picture is not a clear one, however. Indeed, the 2006 reforms seem to muddy the link between past and future care of children around separation appearing to minimise the relevance of any link in

    the major aim of encouraging shared care, while emphasising its potential significance in 3other places. It is this very unclear picture which is one of the reasons for the need for the research. Without empirical research it is impossible to ascertain how various decision-makers interpret the 2006 reforms, and in particular how they interpret the relevance of past patterns of care under the current FLA.

Therefore we have posed two first high-order research questions:

    ; How much relevance do advisers place on the intact family’s care arrangements when

    considering what arrangements to put in place after separation?

    ; To what extent is this advice influenced by the provisions of the Family Law Act or the developing jurisprudence?

    Second, psychological literature tells us that attention should be paid to past patterns of care for children‘s well-being and healthy development through separation.

    Continuity of care through the separation process may be important for the wellbeing of children, although its importance is contested. Social-sciences literature highlights the importance of stability in living arrangements for children‘s healthy development (eg.

    Goldstein, Freud and Solnit 1973, 32-3). Such a view is premised upon the dominant account of child development, attachment theory. That theory ‗maintains that a child‘s

    ability to form and maintain healthy intimate relationships across the life span depends on its having a close and consistent relationship with its mother during infancy and early childhood. This view is generally accepted in child development and developmental psychology and has greatly influenced the evolution of U.S. child custody law (Bruch

     2 Amato and Gilbreth 1999, 559. ‗Authoritative parenting‘ relates to a style of parental support and control of children: see also Parkinson (2006), 184, in which he suggests a link between a meaningful relationship, in the sense that term is now used in the legislation, and authoritative parenting. 3 Family Law Act 1975 (Cth) ss 60CC(4) and (4A).


    4 The appropriateness of attachment theory has, however, been challenged in 2006, 285).

    the context of multi-person care arrangements for children, rather than the single care-giver (dyadic) model of child rearing. (McHale 2007).

    Attachment theory does not suggest that an infant can only have one attachment with one adult (ie. a young child can form a number of attachments) but they will be qualitatively different. What is important, however, is that ‗attachment security is not transferred by

    the child from one parent to another when moving between their care.‘ (McIntosh and

    Chisholm 2007) Therefore, in a regime which encourages the sharing of care between the former primary carer and the other parent, there is a risk that:

     for young children of divorce their attachment formation is likely to be

    poorly affected when the infant does not have a continuous experience of

    reliable care with either parent. Shared care arrangements that involve frequent

    moves from one parent to another can, inadvertently, bring about this experience.‘

    (McIntosh and Chisholm 2007, 4)

    Our second high-order research question, then, will be the extent to which, consciously or not, advisers from varying backgrounds employ attachment theory (or alternatively, emphasise to their clients the idea of continuity of care through separation) in the professional assistance they provide to separating families to determine care arrangements for children after separation and what, if any, alternative or additional theories they draw on.

    Our third reason for our starting position that past patterns of care are and should be relevant to post-separation decision-making about the care of children is that past behaviour is a reasonable predictor of future conduct. Thus, for example, it has been argued that parents who have been involved in a significant degree of caring for children are likely to continue to do so. There is a reasonable amount of empirical evidence to support this argument. So, for example, Rhoades, Harrison and Graycar found in their study of the 1996 reforms to Part VII of the FLA that parents who genuinely shared

    parenting after separation had also shared parenting during the relationship (Rhoades et al

    2000, [1.3]). Other studies have found that arrangements (whether court-ordered or agreed) for shared parenting after separation often revert to care by one parent (usually the mother) over time (Juby et al 2005). This is not to say, of course, that parents cannot and will not change in the extent to which they are available to their children; indeed, separation is sometimes a ―wake-up call‖ for previously uninvolved fathers (Smart and

    Neale 1999). Nonetheless, past behaviour (including behaviour between separation and finalising post-separation arrangements) is a better indicator of likely future behaviour than mere statements (or assumptions) to the effect that such change will occur.

    Our third high-order research question, then, will be an exploration of whether advisers attach any predictive value, and hence relevance, to past patterns of care.

     4 Bruch goes on to a comprehensive critique of some of the psychological work published in U.S. law journals on the issue of child custody, and particularly that which de-emphasises the importance of children‘s primary attachment and stresses the importance of children‘s secondary attachments.


    This research will advance knowledge by exploring how these important arguments play out in practice since the 2006 reforms. The outcomes of the project will enable us to make recommendations to law-makers and professionals in relation to these matters. It will also enable us to contribute to a dialogue between lawyers and family dispute resolution practitioners in a context where such dialogue is agreed by all participants to be necessary (Rhoades, Astor, and Sanson 2008) yet some changes to the ―family law

    system‖ seem destined to reduce the opportunities for it to occur (Fehlberg and Behrens


The legislationmixed messages

    The new laws contain ―mixed messages‖ as to the importance of past patterns of care

    upon decision-making over post-separation living arrangements. There are provisions that appear likely to lead to less attention being paid to past patterns of care than was the case before the reforms: so, for example, advisers are required to suggest, and courts in some circumstances to consider, equal time and ‗significant and substantial time‘ (including

    weekday, weekend, holiday and non-holiday time) arrangements with both parents (FLA

    ss 63DA and 65DAA). In Goode v Goode (2007) 36 Fam LR 422, the Full Court of the

    Family Court considered these provisions and concluded that preserving the status quo should be given less priority than previously (at 443), at least at interim hearings. Furthermore, the increased emphasis on family dispute resolution carries with it the implication that parties should be future focussed and discouraged from ‗raking over old 5ground‘ and focusing on past conduct.

    There are some tendencies in the other direction, however. In the assessment of children‘s best interests (which remains the paramount consideration in decision-making

    about children FLA s 60CA) two new provisions specifically require a decision-maker to take into account the extent to which a parent has fulfilled their parental 6responsibilities, both before and since separation (FLA s 60CC(4) and (4A)). In addition,

    new priority is given to protecting children from ‗family violence‘ (FLA ss 60B(1)(b) and

    60CC(2)(b)). This requires an assessment of past conduct as part of the assessment of future risk.

    The changes also place increased emphasis on shared parenting and attempting to ensure that more Australian children have a meaningful relationship with both parents after separation (specifically aimed at children spending more time with their fathers). Further, the new provisions encourage separating parents to resolve their disputes themselves, with family dispute resolution made compulsory in many cases (FLA s 60I). One of the

    unspoken premises of these reforms appears to have been to break any automatic nexus between past patterns of care during the relationship, and post-separation agreements.

     5 In most facilitative family mediation practice, past behaviour will only be discussed in mediation where it blocks the process: Folberg and Taylor (1984) 8. 6 Although the fact that s60CC(4A) requires the court to focus in particular on ‗events that have happened, and circumstances that have existed, since the separation occurred‘ suggests a diminution in the importance given to the arrangements in the intact family.


    Given the well-researched gendered roles of mothers and fathers in the majority of intact Australian families, the role of women as primary carers became a theme at the 2003 Joint Custody Inquiry. At one of the public hearings Jane Woodruff, Chief Executive Officer of Uniting Care, Burnside, suggested that perhaps the kinds of post-separation arrangements which families were putting in place at the time reflected the respective roles that men and women generally played in their families when they were together. Committee Member, Cameron Thompson MP, responded with a comment which perhaps demonstrated a prevailing political pressure to sever connections between past care and post-separation arrangements:

    There seems to be a view that because women are the primary caregivers in a

    family, then it is appropriate for that to continue as the template for what must

    happen from then on. Do you agree with that? The whole idea, it seems, of the

    shared care proposal is that that be thrown open to a wider debate than just

    focusing on the role of the woman generally as the primary caregiver and then 7extending that into the post separation period.

    One of the key questions about the reforms is whether indeed they have ‗thrown open‘ a ‗wider debate‘ about the importance of the past patterns of care and the role of the

    primary carer, or whether instead, they have simply minimised the importance of this role without the benefit of wide debate or relevant social science research. As Ms Woodruff sagely replied:

    It would be wonderful if we actively had that debate in the society. But I do not