National Network of Women’s Legal Services

This Briefing Paper has been prepared by the National Network of Women’s Legal Services (NNWLS) to assist other organisations and individuals to respond to the Parliamentary Inquiry into Joint Residence Arrangements that has been recently announced.

The Paper is aimed at workers in generalist community legal centres (CLCs), refuges, family support agencies, counselling services and other community organisations, Legal Aid Commissions, lawyers and counsellors in private practice, and individuals with their own family law experiences.

Written submissions to the Parliamentary Inquiry are due by 8 August.

Please feel free to draw from any of the information contained in this Briefing Paper. It is also important to draw on personal experiences. Please send letters and lobby politicians who have expressed views abut this Inquiry as well as making formal submissions. Key politicians details are included at the end of this Briefing Paper.

It would also be useful if individuals and agencies arranged to meet with local Federal members, other interested Members of Parliament or State Senators to express concerns about the proposals.

On 25 June 2003 the Federal Government announced a Parliamentary Inquiry into Joint Residence Arrangements in the Event of Family Separation. The Inquiry will be conducted by the Committee on Family and Community Affairs.

The Terms of Reference are as follows:

NNWLS understands that Backbenchers are the driving force for the Inquiry. NNWLS hear that they are heavily lobbied by constituents who are unhappy about family arrangements made in the wake of separation. Men complain that their child support commitments are breaking them financially and that their former female partners deny them contact with their children. The Prime Minister has indicated in media statements that he is supportive of an inquiry into a presumption of shared residence and is sympathetic to the views of contact parents.

House of Representatives Standing Committee on Family and Community Affairs

Parliament House

Canberra

ACT, 2600

Fax to (02) 6277 4844.

Enquiries can be directed to the above email address or ph (02) 6277 4566.

There has been considerable media interest in this Inquiry and the idea of a presumption of joint residence. NNWLS is concerned that some of the reporting and comment around this issue in the media has contained inaccuracies and myths about aspects of the family law system. To assist groups to develop accurate responses to the Inquiry, NNWLS has collated and summarised relevant legislative provisions and provided data from recent Australian research.

There is no principle of family law that advantages either parent in family law proceedings. Although mothers more often have legal "residence" (current term for custody) of children, most of these orders are made by consent. Further, the Family Law Act provides that each parent has parental responsibility (current term for "guardianship") for their child and that this is not affected by parental separation.

Where parents cannot agree on arrangements for the children and the Family Court has to decide it is bound by law to look at the best interests of the child as the paramount consideration.

The Family Law Act also sets out four clear principles about parenting of children namely:

• children have a right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

• children have a right of contact, on a regular basis, with both their parents, and with other people significant to their care, welfare and development; and

• parents share duties and responsibilities concerning the care, welfare and development of their children; and

• parents should agree about the future parenting of their children.

The Court must also consider a number of other factors such as

• any expressed wishes of the children

• the nature of the relationship of the child with each parent

• the likely effect of any changes in the child's circumstances

• the practical difficulty and expense of a child having contact with a parent

• the capacity of each parent to provide for the needs of the child

• the child's maturity, sex and background, including issues of race, culture and religion

• the need to protect the child from physical or psychological harm

• the attitude to the child and to the responsibilities of parenthood

• any family violence which has occurred.

NNWLS argues that the legislative framework already encourages parents to share duties and responsibilities of their children’s care. Where parents cannot agree, the Family Court is required by law to make decisions based on the needs, wishes and rights of children, not parents.

A large majority of men who are separated (64%) have contact with their children and almost three quarters of these men have children staying overnight with them. There is no Australian research showing why more contact does not occur. Interestingly, a recent study on contact arrangements shows that 25% of resident mothers believed that there was not enough contact, suggesting that, where fathers have good relationships with the children, mothers are keen for contact to occur.

Family Court data reveals that the rate at which fathers are awarded residence of their children is increasing. Outcomes of residence orders made in the Family Court for 2000-2001 show that 70% of residence orders are made in favour of the mother and 20% of orders for residence are made in favour of the father. In the mid 1990s only 15% of residence orders favoured the father. These statistics include orders made by consent as well as orders made as a result of contested hearings. In looking at outcomes for fathers of contested residence applications, two studies in the Family Court in 1983 and 1994 showed that fathers were successful in 31% of cases. In a smaller analysis conducted in 2000, fathers were successful in 40% of contested residence applications.

Shared residence is the least common post-separation arrangement with only 3% of children from separated families in ‘shared care’ arrangements in 1997. Less than 4% of parents registered with the Child Support Agency last year had equal (or near equal) care of their children.

US studies have shown that where shared residence couples make these arrangements they do so voluntarily, often without legal assistance and irrespective of legislative provisions. These studies have also shown that relationship between shared residence parents are commonly characterised by cooperation between the parties and low conflict prior to and during separation.

Research with children in the UK undertaken by Carol Smart has shown that, for children living in two homes, they had ‘emotional and psychological space’ to traverse as well as physical space. The research showed that shared care was more likely to be organized to suit parents than to suit children. It found that the majority of children in ‘shared residence knew how important the equal apportionment of time was for their parents. The study showed that children often carry the burden of shared care and found it emotionally straining to upset the balance between their parents. Children felt responsible for ensuring ‘fairness’ between their parents and in fact put their own interests below the interest of their parents for shared care. The research argues that being shared on a fifty-fifty basis can become ‘uniquely oppressive’ for some children.

There is to date no Australian research looking at predictors of successful shared residence arrangements in separated families. Little is known about parents who opt for shared care of their children, how these arrangements are structured, how well the arrangements ‘work’ and the effect of these arrangements on children.

It is clear from the most recent Time Use surveys that women in relationships still do the bulk of caring for children and domestic work: 90% of women and 63% of men spent time on housework such as cooking, laundry and cleaning. Where child care was noted as a person’s main activity, women spent twice as long as men caring for children and were more likely than men to provide direct care that includes feeding, washing and dressing.

Of single parent families, 75% - 85% are headed by single mothers. Being the resident mother of children is still the most likely predictor of poverty in Australia. Research over the past two decades has consistently shown that women are more likely to experience financial hardship following marital dissolution. In a 1993 study, husbands surveyed three years following their marital breakdown had returned to income levels equivalent to pre-separation while wives’ income levels had dropped by 26%. More recent studies have revealed a statistically significant relationship between gender and financial living standards after divorce.

Research has also shown that the degree of financial disadvantage experienced by women post-separation may be exacerbated by a number of factors; spousal violence, division of marital property, lower rates of employment and lower earning capacity .

In 2000, a survey conducted of Child Support Agency (CSA) clients revealed that only 28% of payees reported always receiving payments on time, while 40% reported that payment was never received. The total child support debt grew at an average rate of 7% in the four years to June 2001, to a total of $670 million. The age of child support debt increased over this period and the percentage of payers with child support debts rose from 56% to 74% in 2001. The older and larger the debt amount, the harder the debt is to recover from payers. The Child Support Agency failed to collect nearly $770 million in 2000-2001 and the debts written off by the Child Support Agency during this period rose by 27% to $74 million.

Data from a 1996 Australian Bureau of Statistics national benchmark study showed that 23 % of women who have ever been married or in a defacto relationship had experienced violence in that relationship. This means that one in five Australian women have experienced family violence by their current or former partner representing a total of 1.4 million women.

There is now a significant body of research that demonstrates that there is a high incidence of domestic violence in cases going to the Family Court and that domestic violence against women continues after separation. A 2002 study found that of the 35 resident mothers, 86% described violence during contact changeover or contact visits. It is not surprising that violence and abuse is more prevalent in families who separate, than families who remain together.

Some boys and young men suffer from an excess of destructive male role models, not from their absence. They grow up with neglectful or abusive adult men and violent and dominating images of manhood. It is wrong to assume that any male role model is better than none. It is more important that boys are raised by nurturing and positive parents of either sex, rather than by fathers in particular.

The National Network of Women’s Legal Services is opposed to a legal presumption of joint residence for separating families. Such a presumption represents a dangerous and dramatic policy shift in the government’s family policy that is not evidence-based but is, instead, being led by political factors and emotive anecdotes. A presumption offers a simplistic, ‘one-size-fits-all’ solution to families who are complex, have a multitude of needs and patterns and operate in a variety of ways.

The arguments against a joint presumption of shared residence set out below can be used by individuals, groups, professionals and organisations intending to engage in this debate by writing submissions to the Inquiry or lobbying members of Parliament:

• It privileges the rights of parents over the rights of children by over-riding the paramouncy of the ‘child’s best interests’ principle which is entrenched in the Family Law Act.

Catherine Carney (Principal Solicitor)

or

Pia van de Zandt (Solicitor)

Women’s Legal Resources Centre

02-9749 7700

Catherine_Carney@fcl.fl.asn.au

Prime Minister

Darryl Williams AM QC (Member for Tangney, WA)

Attorney General

Larry Anthony MP (Member for Richmond, NSW)

Minister for Children and Youth Affairs

Jackie Kelly (Member for Lindsay, NSW)

Parlimentary Secretary to the Prime Minister

Ross Cameron MP (Member for Parramatta, NSW)

Parliamentary Secretary to the Minister for Family and Community Services and Minister for Children and Youth Affairs

Senator Amanda Vanstone (Senator for South Australia)

Minister for Family and Community Services

Minister Assisting the Prime Minister on the Status of Women

Wayne Swan MP (Member for Lilley, QLD)

Shadow Minister for Family and Community Services

Senator Michael Forshaw ( Senator for NSW)

Parliamentary Secretary to the Shadow Minister for Family and Community Services

Robert McClelland (Member for Barton, NSW)

Shadow Attorney General

Senator Joseph Ludwig (Senator for QLD)

Parliamentary Secretary to the Shadow Attorney General

Senator Jacinta Collins (Senator for Victoria) )

Shadow Minister for Children and Youth and Shadow Minister for Women