By Michael Green - posted Friday, 3 February 2006 The Forum - On Line Opinion
The Federal Government tables significant changes to the Family Law Act with a view to encouraging both parents after divorce to share parenting of their children. At the same time, the government announces that $400 million will be spent in setting up 65 family relationship centres across the country for the purpose of counselling couples with relationship problems and, if they decide to separate, to assist them to manage the aftermath in a sensible manner.
On the face of it, such sensible proposals might be expected to meet with universal acceptance. Indeed, the average citizen might even be moved to congratulate a government on such family-friendly initiatives.
Not so. There has been a chorus of dissent from significant interest groups and individuals. Former judge’s associate Waleed Aly (Sydney Morning Herald, (2/2/06), describes the shared parenting provisions as “little more than a mirage”. Family lawyerAndrea Brooks (Sydney Morning Herald, (11/2/06), calls the relationship centres “a triumph of style over substance”. The National Association of Community Legal Centres suggests that the new family law and processes “may be harmful to children” (“Seeing families right”, NACLC, December 2005).
Why all the big noise? After all, the government was not merely responding to noisy fathers’ groups, as some have claimed. A Federal Joint Select Committee, the Family Law Council, the Australian Law Reform Commission and others, over the past ten years, have pointed to serious deficiencies in the Family Law Act and its processes. Both mothers and fathers - individually and in consort with parenting groups - have responded vigorously to invitations for submissions to a number of inquiries.
In 2003, the government commissioned an inter-party committee to examine our family law system. The committee’s investigations were not done by members sitting on their seats in Canberra and chatting nicely to one another. For six months, the committee travelled the nation, conducted public hearings and received over 1,700 written submissions. The resulting report, “Every Picture tells a Story”, ran to 240 pages, and contained 29 recommendations. There was unanimous support for far-reaching reform of the system.
The government responded, a draft Bill was produced, and this was subjected to further public scrutiny by way of another inter-party committee. Out of this process the current Bill, the Family Law Amendment (Shared Parenting) Bill, is now before the parliament.
Given all of the above, one would expect that the reforms would attract overwhelming support. That this is not the case bears close examination.
The objections emanating from pockets of resistance can be loosely grouped as follows.
Equal or shared parenting is not in the best interests of children. The NACLC paper claims: “There is no evidence that time shared equally with both parents is actually more beneficial to children.” In a paper purporting to “ensure the full facts are widely known”, the authors have conveniently ignored at least three US studies (for example, Bauserman (pdf file 80KB), 2002), and an Australian study (Smyth et al (pdf file 3.74MB), 2003). This research shows that joint custody or shared parenting of children after divorce brings positive benefits to both children and their parents.
It is bold indeed for the NACL to rely so heavily on the Rhoades report (pdf file 663KB) (2000) to support many of its contentions, when it is well known that the limitations of that report were trenchantly criticised by several commentators (for example, Moloney 2001).
The NACLC suggests that what is important for children after separation is stability. This is best achieved by sole-mother custody, reflecting the parenting responsibilities in the intact family. This is the no change argument. Thus the NACLC paper suggests that children have enough to cope with “without asking them to cope with more unnecessary change by requiring them to spend more time with the other parent”.
This is head-in-the-sand stuff. Separation and divorce are all about change and it is impossible to shield children from it. What is important is to engineer the necessary changes in parenting that look after them emotionally, intellectually and financially. The stability that children hunger for is not geographical stability, but the stability of meaningful relationships with the people most dear to them, their mothers and fathers, grandparents, relatives and friends, schools and communities. Shared parenting can deliver this.
Another objection is that compulsory mediation may force separated parents, especially women, to negotiate with abusive former partners, and to agree to parenting arrangements that are not safe for them or their children.
This is not true and has never been true. No mediator or mediation agency will conduct a mediation session when family relationships are seriously affected by violence or abuse. In such instances, mediation is always seen to be inappropriate. The new family law provisions specifically exclude mediation in such cases.
Nor do mediators permit parties to agree to unsafe parenting arrangements. While entry into mediation may be required, remaining in the mediation session is voluntary, as is agreement to any proposals. Moreover, the parties have access to legal advice, either during the mediation or before signing any mediated agreement.
Such mischievous nonsense shields deeper currents. The opposition to reform from lawyers can only be motivated by professional and financial insecurity. Over 50 per cent of couples currently sort out their own post-divorce arrangements with little or no recourse to the law. With increasing education and the realisation that such a process can be achieved without paying $300-500 an hour to a lawyer, this trend is set to continue. In 10 years' time will there be any work left for the generalist family lawyer? I doubt it. And if the government’s programs of legislative reforms and community education are properly supported, I can envisage that the services of many family court judges will no longer be required.
The brayings of feminist groups are rooted in a similar anxiety for self-preservation and in the feminist myth. Their support for the present system reveals a concern about power and money: if mothers share the parenting of children, it follows inevitably that they will have to share control of the family and of the resources that come with it, i.e. the home and financial support.
The need revealed by women’s groups for funding and resources to support abused women and children is well established and accepted. Not so, however, is the radical position that this is the lot of most women and children, particularly in the aftermath of separation or divorce. Radical feminism has done a disservice to women. It has sought to portray them as poor, suffering creatures that need protection from men and from paternalistic institutions. They are unable to speak confidently for themselves, to make their own choices, and are easily led into negotiations where their will and interests are overborne. Such thinking is a grave insult to the majority of women.
Ask any experienced mediator who carries the power in a mediation: almost inevitably the mother with the children.
The government is to be congratulated on having the courage and energy to effect a new system of family law and practice so soundly based on reliable research and the aspirations of right-thinking men and women. If enacted, funded and supported by community education, it will bring enormous benefits to mothers, fathers and children.
Michael Green QC was admitted to the New South Wales Bar in December 1975. He became a Queens Counsel in 1988. He is the principal of Michael Green Mediation, a private mediation practice specialising in family conferencing, mediation, life skills programs and local government, workplace and commercial disputes. Michael Green is the president of the Shared Parenting Council of Australia, and also co-wrote a book with Jill Burrett (Sydney psychologist) on Shared Parenting (published mid 2006).
Some comments:
I fully support advances in the Family Law and Shared Parenting arrangements.
I do however have some doubts in regards to this story.
1. '$400 million will be spent in setting up 65 family relationship centres'
How much will be spent maintaining and staffing them?
2. Who will staff them?
With what qualifications and experience in areas of domestic violence, mens health, family support services, etc.
3.'If enacted, funded and supported by community education, it will bring enormous benefits to mothers, fathers and children.' Who is going to fund it? The 'community'?, does that mean not-for-profit organisations, like 'Angli-care' etc.
Is this just another cop out by the government to place responsibility back on the "community' and untrained volunteers?
4. Finally the terminology used, ie 'brayings of feminist groups' and 'aspirations of right-thinking men and women' reveals to me a certain 'patriarcal ideology'
Posted by Coyote, Friday, 3 February 2006 10:51:04 AM
"The need revealed by women’s groups for funding and resources to support abused women and children is well established and accepted."
How is it well established? What information are you relying on Mr Green to support the making of that statement given the years of propaganda pumped out by women's groups seeking taxpayer funding. As a person who practiced law Mr Green you should know that courts fail to make proper determinations of guilt with respect to women who allege abuse. So because there is no official government interest in establing the true extent of abuse perpetrated on women in the community there is no way of evaluating what their needs are.
Posted by Ros, Sunday, 5 February 2006 3:07:07 AM
I agree that both parties have to co-operate to make shared parenting work as well as it can. Again though you have to look at what you are comparing it to.
I'm not sure what research is around but I have a suspicion that even bad shared parenting where bad behaviour by one parent is unlikely to be rewarded with extra residency may lead to better outcomes for children than unnecessary sole parenting achieved through the bloody mindedness of the parent gaining the residency.
As I have pointed out earlier I think we need to remove the financial incentives promoting the sole parent model. Certainly help those who are left with kids through the other parents lack of interest but give nothing for those who take actions which make shared parenting impossible. I do not believe there should be any Family Tax Benefit, child support, rent assistance etc, single parents pensions etc paid to a resident parent when shared parenting is not in place because of the actions and choices of that parent.
Also make a loss of residency a likely outcome for ongoing patterns of behaviour which hinder shared parentings success - if one parent chooses to relocate away from the area let them be the one to suffer the consequences not their children and the other parent. If one parent deliberately or consistantly breaches residency arrangements let them face loss of residency. Kids will feel some pain during the transition but maybe they can be raised by someone who cares more about them than other agenda's.
Prescription will not work in all situations but the current situation appears to leave many women believing that the 80/20 split and control over their kids lives are their right and the way things should be. A percentage of those might see things differently if shared parenting is the norm rather than the exception and a percentage more might find scamming the system is just to much work with to little reward.
R0bert
Posted by R0bert, Sunday, 5 February 2006 7:55:57 PM
Dear Michael Green,
There is evidence in dispute against a lot of what you state.
"This is not true and has never been true. No mediator or mediation agency will conduct a mediation session when family relationships are seriously affected by violence or abuse. In such instances, mediation is always seen to be inappropriate. The new family law provisions specifically exclude mediation in such cases."
Personally I have been pushed into mediation over the last 5 years with my abusive ex and that being DESPITE years of domestic violence and child abuse allegations against the father. ANd mediation with an abuser is never a pretty sight - a classic example where I asked we have a clause that says our daughter's interests are put first - eg birthday partys, special events, we will reschedule his fortynight contact to teh following weekend (so he does not lose out), he refused and thunped his fist on the table saying "MY contact is more important than some kids birthday".
Our most recent mediation was about negotiating meeting places and petrol costs - the mediator asked what he would agree on - he said "I ain't agreeing to anything unless SHE drops assault charges". Still with all of this, legal aid turn me down and send me a letter which says I must try mediation again before court - so maybe you should post this research which shows victims of DV are not forced into mediation - because I know I am not to only woman who has been forced to mediate with her abuser.
Posted by WomensActionGroup, Sunday, 2 April 2006 5:54:25 PM