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

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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

    know that having it within the context of family law disputes is the best place to

    be having that discussion.

    The extent to which the nexus between pre-separation and post-separation care is being severed is not yet clear, however early indications are of an increase in shared care, even 8in highly contested and high conflict situations. In light of the social sciences literature

    on the importance of stability and parental attachment for children‘s well-being, any

    legislative encouragement to break the nexus between past and future care, or to treat it as irrelevant, has the potential to undermine the best interests of many Australian children.

    It has been argued that the mixed messages in the new legislation mean that it is likely that concerns about violence and past patterns of care will be ―swamped‖ in the popular

    and professional discourse around equal time, perhaps particularly in private

     7 Hansard, House of Representative Standing Committee on Family and Community Affairs, Child Custody

    Inquiry, 1 September 2003, Blacktown, p 5. 8 Recent figures from the Child Support Agency show an increase in cases in which both payer and recipient of child support have contact with the child for more than 30 per cent of nights: Fehlberg and Behrens (2008) 322. For some further evidence that court-ordered shared care has increased since the reforms see McIntosh and Long (2007) where they report that in their particular sample 46% of children left court in a shared care arrangement : 9. McIntosh and Long comment that: ‗In light of these legislative reforms, an increase in shared care can be seen as a mark of success. However, this study and previous research identified data suggesting that increased shared care in this Court sample proved less successful for the emotional well-being of certain groups of children‘ (10).


    arrangements made between parents (Rathus, 2007). Experienced commentators worry that this will mean that Australian family law will become less child-centred (Chisholm 2006; Fehlberg and Behrens 2008). This lack of clarity calls for careful research based on ‗the assumption that it is through the day to day practices of those to whom the

    legislation is primarily addressed that the ―meaning‖ of the legislation will be stabilised

    and made determinate (Dewar and Parker 1999, 15).

Importance of advisers

    The role of advisers in family law is of increased importance since the 2006 reforms. This is because of the emphasis in the Act upon non-adversarial conflict resolution models. Lawyers, family dispute resolution practitioners, counsellors and family consultants play a central role in facilitating parental agreement under the reformed Act. Each of these professional groups must now, when assisting or advising parents following the breakdown of a relationship, encourage parents to reach agreement themselves over the care of children after separation by entering into a parenting plan (s63DA(1).) Furthermore, those advisers play a role in determining parenting patterns after separation. They must discuss equal or substantial and significant time care arrangements with parents when providing assistance informing them that if such arrangements would be in the best interests of the child and reasonably practicable they could consider an arrangement of that kind. (s63DA(2).) Smyth cautions that a risk of focussing attention on particular patters of post-separation parenting (eg. equal time and substantial and 9significant time) is that ‗this focus might act as a misunderstood ―radiating message‖ or

    signpost about what most separated parents should now be doing, or what will be the

    ―starting position‖ or best outcome if things go to court.‘ (Smyth 2008, 2)

    Rhoades, Astor and Sanson (2008) have highlighted the differences in professional ethical and legal obligations as well as in approaches to assisting families between family lawyers and family dispute resolution practitioners (the latter group usually come from a social-science background but can have a legal background). Earlier research shows that law is ―polyvocal‖ in that it speaks in different discourses to different people (Sarat and

    Felstiner 1995). We anticipate that we will find significant differences in constructions of the relevant law among and between lawyers, family dispute resolution practitioners and family consultants. What advisers think the law is has a significant impact on 10outcomes, particularly in family law: it almost is the law. This assumption draws on

    Mnookin and Kornhauser‘s ‗shadow of the law‘ theory (that is, the idea that legal

    principles are of considerable importance as bargaining chips in the vast majority of family law disputes which are settled by parents outside of court) (1979).

     9 Smyth acknowledges borrowing this term from J. Walker, ‗Radiating Messages: An international

    perspective‘, Family Relations 52, 406-417. It seems that the term has an earlier origin in M. Galanter, ‗Law Abounding: Legislation Around the North Atlantic‘ (1992) 55 Modern Law Review 1 and has been

    borrowed previously by others, including Dewar (1998, 474).

     10 Both Cate Banks in Brisbane and Rhoades et al in Melbourne (prior to the 2006 amendments) have been

    involved in research about the way in which lawyers and family dispute resolution practitioners undertake their work with clients and how their different practice frameworks influence this. Neither of those projects, however, investigated past care. See Banks (2007) and Rhoades et al (2006).


    However, we have also been conscious in our design of this project of criticisms of the power of this theory. These criticisms can be grouped into two categories: first, that the theory overstates the role of law in out-of-court negotiations and second, that the theory assumes that ‗law‘ is a singular concept with an authoritative interpretation that is

    understood by everyone in the same way (a ‗top-down‘ model of law). Ellickson‘s (1991)

    and Jacob‘s (1992) work is critical in the first category. Dewar and Parker‘s work in

    Australia has been critical in the second category (1999), as has that of Ingleby (1992), Sarat and Felstiner (1995) and Trinder (2003). Batagol and Brown (2009) have proved both points in relation to family mediation in Australia. These researchers all suggest that law may cast multiple rather than single shadows, if any at all. It is some of these multiple shadows which this project is designed to explore in relation to provisions relating to past patterns of care. There is also the possibility with these reforms that it is the glaring light of the central ‗radiating message‘ of shared care that will shine on

    private negotiations and that the ‗shadow‘ of the more nuanced law will be largely extinguished.

    It is important to talk with advisers in different parts of the country, given the findings of earlier research that outcomes differ depending on location, and that local conventions around interpretation vary across the country (Parker and Drahos 1994). One of our considerations in putting together the research team has been to ensure that we have appropriate geographical coverage.

Existing empirical data

    There is no published research, and no planned research that we know of, which looks in depth at the critical question of how past patterns of care are now being taken into account in the advice given to parents under Australian law. These are, however, issues which are attracting the interest of other researchers. For example, very recent work by Liz Trinder and colleagues in England has used conversation analysis to demonstrate a more general trend not to allow talk about past behaviour in the specific context of in-court conciliation meetings (Trinder, Firth and Jenks 2008).

    Gender will be central to this project. Empirical evidence shows that gendered patterns of care of children continue in Australia today, despite widespread approval of the ideal of shared parenting (Craig 2006, 276). Significant differences exist in the quantity and kind of care offered by mothers and fathers. For intact families, we know that mothers provide more absolute child care than fathers and that the kind of care provided by mothers is different from that which fathers provide, with mothers doing more double activity, more physical labour, following a more rigid timetable, and shouldering more overall responsibility than fathers (Craig 2006, 274-6). Thus, orders for equal time will

    usually represent a significant change from pre-separation arrangements, and in some cases orders for substantial and significant time will as well. This means that, at an already difficult time, a family is trying to implement arrangements in which they have no practice.


It must be remembered that the ‗research evidence for equal time parenting is not strong‘

    (Smyth 2008). We really know little about the impact of shared care, particularly equal time living arrangements, on children. The early evidence that we have certainly gives cause for concern. The most significant published research so far on the impact of the 2006 shared parenting changes is Jennifer McIntosh and colleagues‘ research on patterns

    of shared care, parental conflict and the emotional well-being of children (McIntosh and Long 2007). Their research indicates that more families are leaving both mediation and Family Court proceedings with shared care than at entry, and with much greater levels of shared care than were the case prior to the legislative reforms. Given McIntosh‘s key finding that substantial sharing of care in high conflict cases after separation might increase the risks for children‘s healthy emotional development (especially younger

    children), the fact that arrangements for shared care were made in 46 per cent of cases in her court sample is particularly concerning.

    This evidence is strong and credible enough that it has led one highly-respected family law researcher to call for immediate reform to the section of the FLA which requires a

    court to consider equal time or substantial or significant time in certain circumstances (s 65DAA). Helen Rhoades suggests the inclusion in that section of a ―checklist of

    cautionary factors‖, based on McIntosh and Long‘s research, which would tell against such orders: (Rhoades 2008).


    We would conduct an initial small pilot project, involving a small number of interviews with six family dispute resolution practitioners and six family lawyers (two of each profession in Canberra, Melbourne and Brisbane). These interviews will attempt to identify key issues relevant to the project that will be investigated in the main project.

After the pilot, the main project would combine techniques used for data collection, both

    quantitative and qualitative, including focus group sessions, survey, interview, file analysis and observation. This would be the first time that Eekelaar, Maclean and Beinart‘s (2000) ground-breaking methodology will be employed in Australia also.

    Furthermore, data would be sought from the full range of professional advisers

    commonly consulted after family breakdown: family lawyers, family dispute resolution practitioners and family consultants. Those professionals would be drawn from those practising in three distinct locations around Australia. Through analysing the experiences

    of all this range of practitioners, we would contribute a unique body of research to the knowledge base.

Data collection techniques which would be used:

    1. We would hold focus groups with male and female lawyers and family dispute

    resolution practitioners in Canberra recruited through our networks. Each focus

    group would be occupation (lawyer/family dispute resolution practitioner) and

    gender-specific and would consist of a maximum of eight participants. These

    focus groups would be recorded and transcribed, with detailed analysis of them

    enabling us to identify issues to pursue in subsequent phases


    2. We would also observe four family dispute resolution sessions and four lawyer-

    client sessions in order to better understand the setting in which professional 11 advisers and their clients discuss provisions relating to past parenting.

    3. Lawyers and family dispute resolution practitioners across the country would be

    asked to complete a web-based survey indicating their responses to a number of

    questions in relation to the relevance of past patterns of care under the current law

    and their practices in advising clients in this area. These questions would cover

    issues such as: advisers‘ interpretations of the impacts of the reforms on the

    relevance of past patterns of care; whether and what they ask their clients about

    past patterns of care; what particular aspects of past patterns of care they believe

    should and do have an impact on outcomes in Court; and what evidence they use

    of past patterns of care in negotiations and court proceedings. We would aim to

    have electronic submission of complete surveys from 200-400 lawyers, and the

    same number from family dispute resolution practitioners. The surveys would

    enable us to gather quantitative data which would be valuable in itself and also be

    able to be tested in the next phase.

    4. We would conduct open-ended, face-to-face and one-on-one interviews with

    professionals. In each of the three locations where the researchers are based

    (Canberra, Melbourne and Brisbane), a number of lawyers and family dispute

    resolution practitioners will be interviewed for approximately one hour. Ideally,

    we would also interview a smaller number of lawyers and family dispute

    resolution practitioners working in rural and regional areas in Victoria and


    5. We would interview a number of family consultants in Melbourne and Brisbane.


    This is an innovative, important and much-needed project. The 2006 Shared Parental Responsibility reforms, heralded as the most significant since the introduction of no fault divorce over 30 years previously, provide conflicting directives over the importance of past patterns of care after separation. Understanding the impact that these far-reaching reforms have upon the lives of Australian children is crucial to understanding the experiences and wellbeing of Australian children through separation and divorce. Understanding how care arrangements are negotiated through separation is of immense importance to the many children who experience their parents‘ separation. Parents very

    often rely on the advice of lawyers and family dispute resolution practitioners when making decisions about parenting arrangements after separation. Less often, but perhaps even more critically, parents are advised by family consultants working in the Family Court. This research project would contribute valuable knowledge which can be used to improve that decision-making and to ensure that past patterns of care are given appropriate recognition in decision-making.

     11 A similar initial observation phase was used by Eekelaar, Maclean and Beinart 2000. We will adopt the observational method utilised by Eekelaar and his co-researchers and that used by Batagol to observe family dispute resolution (Batagol and Brown, 2009).



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