Sunday, October 7, 2007

Information Kit



This Information Kit has been prepared by Geoff Holland and others of the Equal Parenting Network.

Feedback, including constructive critical arguments are appreciated.

Version 07 Oct 2007

1. What is a “Presumption of Equal Parenting Time” ?
2. 10 Reasons to implement a Presumption of Equal Parenting Time
3. How the current Family Court system is failing children
4. How a Presumption of Equal Parenting Time will benefit children (more reasons)
5. Other benefits of a Presumption of Equal Parenting Time
6. When equal parenting time is not appropriate

1. What is a “Presumption of Equal Parenting Time” ?

A “Presumption of Equal Parenting Time” is a proposed amendment to the Family Law Act 1975 which means that following family separation, parenting time will be equal unless one parent prefers to have less parenting time (and therefore must pay Child Support).

It is a “presumption” which means that if there are strong grounds to demonstrate that equal parenting is not in the best interests of the child, then, following mediation in a Family Relationship Centre, the matter can go to court (the Family Court system) to test those grounds.

2. 10 Reasons to implement a Presumption of Equal Parenting Time

1. Children need both parents.

2. Children have a right to the meaningful involvement of both parents in their lives.

3. Children who do not have meaningful involvement of both parents tend to have lower academic achievement, higher teenage pregnancy rates, higher delinquency rates, substance abuse, eating disorders and incidence of depression.

4. A Presumption of Equal Parenting Time is necessary for the Family Relationship Centres to be able to achieve successful outcomes with separating couples and drastically reduce the numbers who go on to the Family Court system. Without it, the Centres will function as a waiting room.

5. A Presumption of Equal Parenting Time will remove much of the uncertainty which obliges couples to go all the way to the Final Hearing to get a verdict, and which creates more conflict and lasting animosity.

6. The lasting animosity and amplified conflict between separated couples created by the Family Court system damages children for life. A Presumption of Equal Parenting Time can prevent much of this amplified conflict.

7. Children understand fairness and equity from an early age, and research shows they desire that both parents be treated equally.

8. Active involvement of both parents in children’s lives provides more love, more security, more resources, greatest safeguard against abuse (abuse typically happens when one parent has little contact and knowledge of the day-to-day experience of their child), more parental guidance, more active role models, more wisdom and experience.

9. The Family Law Act now guarantees and imposes on parents the right to Equal Responsibility of their children. However, it is not possible to fulfil one’s obligations of Equal Responsibility without adequate time – and adequate time is best ensured with equal time.

10. A Presumption of Equal Parenting Time would significantly downsize the Family Court system which is currently wasting hundreds of millions of taxpayers’ dollars. These funds would be better spent on services (eg expanding Family Relationship Centres) helping parents resolve their differences, changing behaviours, developing the potential of parents, and facilitating better prospects of staying together in healthy, cooperative and loving relationships – which of course would be in the best interests of children.

3. How the current Family Court system is failing children

Children need both parents. The Family Court system has been alienating fathers and non-custodial parents (ie. sometimes mothers) for over three decades with tragic consequences for children.

The Family Court system is a blunt instrument which has caused immeasurable and needless human suffering beyond the pain that comes from family separation.

Successive Federal Governments need to accept responsibility for this tragedy in the same way they need to accept responsibility for the tragedy and shame of the Stolen Generation of Aboriginal children when they relocated them away from their rightful parents.

The arrogance of the government, judges and magistrates who believe they know better than the parents as to who should look after the children, persists in the Family Court system today.

We would not expect judges and magistrates to decide who is going to look after the children when couples are together. Why should they assert such a right just because couples have separated ?

The number of families with children that end up separating is rapidly approaching 50%. It is a very common phenomenon.

Amplification of conflict damages children

We must find an alternative to the current adversarial Family Court system because the current system sets parents against each other in a “custody battle” and this amplification of conflict is most harmful to children.

The Family Court system reiterates that it is only acting in the “best interests of the children” but the tragic irony is that in alienating parents and amplifying conflict they are damaging the wellbeing of children.

The Family Court system has little accountability and is prejudiced against both fathers, and non-custodial parents (ie. sometimes mothers). This prejudice and injustice, under the guise of “best interests of the child,” causes much grief and resentment.

Suicide and murder-suicide

The Equal Parenting Network estimates that as many as 100 people (mostly dads) suicide each year as a direct result, and another 200 people (mostly dads) suicide each year as an indirect result, of the injustice and prejudice against fathers, and against non-custodial parents due to the Family Court system and the Child Support Agency regime.

We also estimate that approximately 20 ex-partners and 20 children are murdered each year (mostly as murder-suicides by dads) as a result of the amplified conflict and unfair treatment of fathers and non-custodial parents in the Family Court system. Most of the suicides and murder-suicides we believe were/are preventable, and the Family Court system must bear responsibility for these preventable cases.

It is notable that the statistics for suicides and murder-suicides relating to Family Court cases and the Child Support Agency are either not officially available or have been covered up.

From the dads’ perspective (or sometimes the non-custodial mum), they lose meaningful involvement in their children’s lives, even though they are available and competent to look after them. They typically lose the family home and car, and are then forced to pay high levels of Child Support for the privilege of rarely, or sometimes never, seeing their children.

These factors together with the lies and distortions of truth generated in an adversarial system, not to mention the huge legal fees and the extended period of stress and uncertainty, constitute a powerful driver of suicide and murder-suicide.

The system reduces the chances of any form of reconciliation

The Family Court system is a formal adversarial system. It is a very expensive process, typically costing $20,000-$60,000 for each parent who uses a solicitor and barrister. This is money that should be going toward securing a home and material wellbeing for the children. The current Family Court system is deluded when it says it is acting in the best interests of children.

The Family Court system requires parents to prepare Affidavits. Family Law solicitors often encourage their clients to consider issues that were not previously issues.

Because Family law solicitors see their duty as an advocate to maximise the gains (in terms of residency and material gain) of their client irrespective of the needs of the child or fairness toward the other parent, they regularly broaden the theatre of conflict. They also need to do this to justify their exorbitant fees – typically $400 per hour, and $5,000 a day for a barrister.

In the tension of the formal, expensive, uncertain, and adversarial system which can have a wide range of outcomes depending on the broad discretionary powers (ie. largely unaccountable) of the judge or magistrate, the litigating parents begin to embellish, exaggerate and construct their Affidavits. This leads to outrage by the other parent and a round of Responses to the Affidavits follows. “Truth” becomes selective and loses balance. As they say – truth is the first casualty of war.

Because of the lies and distortions that typically eventuate from a Family Court process due to its adversarial nature, and because of the huge expense, the tension of the process that typically lasts two years before Final Orders are handed down, and because the Final Orders are typically prejudiced against and unnecessarily marginalise one of the parents, the relationship between the parents often becomes so embittered that the chances of some sort of reconciliation in the future has become highly unlikely.

The Family Court system minimises the chances of some sort of friendship reconciliation between the parents, and this is the most damaging aspect with regards to the psychological and emotional wellbeing of the children. The children are now likely to be damaged for life.

Family Court system provides incentive for conflict – does not address problems

The Family Court system currently says “if there is any evidence of conflict between the parents then equal parenting time is not an option.”

This gives incentive for the parent most likely to “win” custody (ie. usually the mum) to generate conflict.

The Family Court system has abrogated its responsibility to ensure parents behave responsibly and appropriately toward each other and toward their children (eg. to refrain from speaking badly about the other parent, known as “parental alienation”).

The response of the Family Court system is to minimise contact of the child to one of the parents (usually the dad). The authorities throw their hands in the air. In the words of one senior Family Court official “we can’t change human behaviour.”

On the contrary, case workers at the Family Relationship Centre must attempt to resolve issues of inappropriate behaviour and parental alienation, and if unsuccessful, they should be referred to the Family Court system where suitable penalties must be imposed such as Community Service, monetary fines, or even daytime jail for chronic offenders. We must address harmful behaviour and attitudes (parental alienation) by parents which are a form of emotional abuse of children.

However, reducing access of children to the offending parent should be a last resort as this penalises the children ! Better to treat the cause rather than apply a bandaid.

Penalising the parent who shows restraint

Another nonsensical policy of the Family Court system is to base residency on precedent. That is, when the case finally reaches the Final Hearing, the judge or magistrate looks at who has been the primary carer, and then awards residency to that parent.

This gives an incentive for couples to fight over residency in the two year lead-up to the Final Hearing (or at least until Interim Orders are granted which can also involve a considerable waiting time).

It means that parents who have been aggressive in maintaining majority residency prior to Orders are rewarded, and parents who have demonstrated restraint for the sake of peace and the sake of their children, are penalised.

We recommend that a Presumption of Equal Parenting Time apply from the moment of family separation, which can be backed up an immediate Recovery of Contact Order (RCO) by the police in the event that one parent is being obstructive.

It is often agued that a Presumption of Equal Parenting Time will put some children at risk.

If children are at risk from one of their parents, reducing contact from 50% to 40%, 30% or even 20% will not remove the danger. By not awarding equal parenting, the Family Court system is not solving problems of children at risk.

If a child is at risk from one of the parents, that situation requires a definitive response from the Child Protection Agency.

The most recent statistics indicate that the Family Court awarded Joint Custody in 2.5% of cases (2000/01) 1.. Equal Custody would have been awarded in only a fraction of 2.5% of cases. Are we suggesting that children were at risk in over 97.5% of these cases ?

1. "Family Court of Australia, Residence and Contact orders - Any Application, For children by outcome 1994-95 to 2000-01"

4. How a Presumption of Equal Parenting Time will benefit children (more reasons)

A Presumption of Equal Parenting Time means that even before couples separate, they will know what the residency arrangements will be for the children (except in special circumstances where there is evidence of abuse). Couples will know this even before they have children. It will come as no surprise.

The Federal Government has set up a network of Family Relationship Centres around the country. This is an excellent initiative provided they are transparent and accountable. They are a recognition that the current Family Court system is seriously flawed. The Family Relationship Centres should have been introduced decades ago.

The idea of the Family Relationship Centres is to provide a free or low-cost service in an informal and friendly environment so professional mediators can assist separating couples in working out the details of their Parenting Plan.

If couples are unable to agree, the matter can then move on to the Family Court system. The mediator will write a report, and include details of whether one or both parents were inflexible or unwilling to negotiate.

We recommend that if a parent has been advised by a Family Relationship Centre mediator that the Family Court system will most likely award equal parenting time, yet they insist on refusing to negotiate, but instead take the matter to the Family Court system, and equal parenting time is then awarded, that parent would be responsible for the other parent’s legal fees as well as court costs.

So the Family Relationship Centres can succeed

The Family Relationship Centres are unlikely to be effective (and anecdotal evidence suggests that the success rate is so far quite low) until they are backed up by a Presumption of Equal Parenting Time, because typically dads want half time with their children and many mums do not accept this (perhaps because they are resentful or for other reasons which do not justify reducing the children’s contact with the dad).

Children have a right to spend maximum time with both parents. The way to express this right is with a Presumption of Equal Parenting Time.

Studies demonstrate that a consistent concern of children going through the experience of family separation is that they want to see their parents being treated equally.

Children who do not have a meaningful role of both parents in their lives are handicapped. Research demonstrates that children in single parent families have higher incidences of teenage pregnancy, lower academic performance, higher drop-out and delinquency rates, as well as higher rates of depression, substance abuse and eating disorders.

With equal parenting, where one parent is deficient in one area, another parent is there to compensate.

Equal parenting time gives each parent a chance to recharge their batteries. They are likely to appreciate more spending quality time with their children during their contact days. Equal parenting time allows both parents a chance to find a balance between work and family life, and also to enjoy their social life.

Equal parenting time means that children can have contact with their grandparents, cousins, aunts and uncles on both sides of their family.

The old argument that mums had custody because the dads are working no longer applies. The Family Court system regularly awards residency to mums who work full time. They have even been known to award residency to fulltime working mothers when the dads were not working or had flexible work arrangements !

More block time
It is often argued that equal parenting time is not good for children because it will involve more handovers and greater instability. But equal parenting time does not have to involve more handovers, and in most cases will require less handovers (for example in the most common pattern of “week-about”). Since the Family Court system has begun allowing children to spend more time with their dads by throwing in an afternoon after school, they have created more instability. Any child psychologist will tell you that children prefer not fragmented time but block time.

Once again, in an effort to hold on to a flawed regime, as well as their own centrality in family separation outcomes, the Family Court system compromises to best interests of children.

“If the judiciary is viewed in part as a business, as Charles Dickens suggested, the family courts’ customers are divorcing mothers who hope to win custody and windfall settlements. The more satisfied customers an enterprise has, the more it prospers. So it is not surprising that family courts are interested in attracting and satisfying customers.”

“The Myth of Deadbeat Dads” Baskerville, Stephen PhD. Liberty p28 June 2002 pp27-32

5. Other benefits of a Presumption of Equal Parenting Time

Downsizing the Child Support Agency
The Child Support regime is also a cause for much bitterness and even suicide in some cases. With a Presumption of Equal Parenting Time, the bitterness of Child Support will simply disappear in most cases.

Also we will save tens of millions of dollars from downsizing the Child Support Agency. It is estimated that it costs the Child Support Agency, ie taxpayers, about $2.00 for every $1.00 recovered by the Child Support Agency from marginalised parents who resist payment on principle.

Naturally, a fair Child Support regime must remain for parents who are not willing to care for their children half the time.

We argue that there be no Child Support obligations where there is equal parenting time, no matter what the respective income of either parent after separation. The reason for this is that it acts as a disincentive for both parents to look for ways to increase their own income, which is not beneficial for the children.

In cases where one parent argues they have limited capacity to generate income because they were looking after the children in the relationship while the other parent developed their career, compensation can be made in terms of division of assets at the time of separation, leaving no open-ended obligations.

Many alienated parents (typically dads) remain on low income or Unemployment Benefits in order to minimise their Child Support payments. This is not beneficial to the children or the national economy.

Many alienated parents (typically dads) skip the country often taking their assets with them as they know that they will lose most of their assets and gain little contact with their children if they stay. There is a huge ex-patriot population living overseas because of the unjust Family Law regime we currently have. Typically when they move overseas they lose all, or virtually all, contact with their children which is detrimental to the children.

This also means a considerable drain of assets out of the country which is a negative for the national economy.

Family Court system bursting at the seams

The Family Court system is bursting at the seams. There are now more Family Court judges and Federal Magistrates than ever before. The typical period of a case going to Final Hearing is two years – two years of posturing by the parents, of uncertainty, tension and stress. Judges and magistrates regularly make mistakes due to the pressure of work. They often make judgements on the run.

The Family Court system costs tens of millions of dollars a year to maintain.

The rate of family separation, when including de facto relationships, is steadily increasing. We need to find a way to assist separating couples resolve their differences quickly, before they have time to ferment and conflict escalates.

Presumption of Equal Parenting Time will downsize the Family Law industry

The Family Court system is to some extent “captured” by a very lucrative billion dollar Family Law industry from which most judges and magistrates originate. The Family Law industry has spent considerable sums of money preparing submissions arguing against sensible reform of Family Law, in order to preserve its prosperous existence.

Family Law solicitors have been known to undermine negotiations at pre-trial conferences.

Limited (and weak) reforms have been introduced in 2005 and 2006 which included the establishment of the Family Relationship Centres. Immediately the Family Law industry lobbied the government to guarantee themselves a slice of the new Family Law mediation industry.

But Family Law solicitors have been trained in adversarial methods and techniques, and not in conflict prevention, conflict resolution, mediation, family psychology and child psychology etc. We believe they should be excluded from such mediation services.

In fact, we believe that all couples must attend a designated Family Relationship Centre before they can enter into the Family Court system. At present couples merely have to assert they have attempted some sort of mediation somewhere.

It is important to restrict pre-Court mediation to the Family Relationship Centres in order to maintain an adequate and consistent level of quality control, and to be able to conduct comprehensive retrospective analyses of their effectiveness.

Allowing Family Law solicitors to conduct pre-Court mediation makes a mockery of the new mediation strategy. Solicitors say they will sign contracts which will bar them from representing either party following mediation, but while this may prevent individual conflict of interest, it does not prevent industry conflict of interest.

Family Law solicitors are part of the problem, not part of the solution.

A Presumption of Equal Parenting Time will allow Family Relationship Centres to achieve successful outcomes and make much of the Family Law industry redundant.

6. When equal parenting time is not appropriate

Reasons why equal parenting time may not apply include
6.1 child abuse
6.2 chronic neglect
6.3 parent has moved away

6.1 Child abuse
In the case of child abuse, sexual child abuse would indicate that the offending parent would have no unsupervised contact, at least until after a long period of monitored rehabilitation.

In the case of physical and emotional abuse, Child Protection officers in conjunction with a case worker from the Family Relationship Centre would determine the severity of the abuse, and make recommendations to the judge or magistrate as to the level of contact. Emphasis would be placed on rehabilitation of the offending parent with the aim of achieving equal parenting.

Child Protection Agencies must investigate allegations of child abuse immediately, whether parents are together or separated. Both parents must be investigated to determine the truth. There must be appropriate penalties in place for false allegations, and of course immediate action to protect children in cases of demonstrated abuse, as well as appropriate penalties for the offending parent. The process of investigation must be transparent and accountable.

We should make polygraph tests / lie-detectors available to parents.

Parents must have recourse to a dedicated Ombudsman for Family Issues.

6.2 Chronic neglect
Child Protection officers in conjunction with a case worker from the Family Relationship Centre would work with the parent in question to achieve a high level of quality care. If after a period of time this has not been achieved, then the presumption of equal parenting time can be withdrawn and contact reduced until such time the parent has demonstrated responsible and adequate parenting skills.

6.3 Parent has moved away
It is not fair on children to expect them to regularly travel long distances between parents’ homes, which increases the risk of car accident. Likewise excessive travel to school is not in the child’s best interests.

If a parent has moved more than half an hour’s drive from where family separation occurred, they must be given the opportunity to move back closer or risk losing the Presumption of Equal Parenting Time.

(If both parents have moved away more than half an hour’s drive from the place where family separation occurred, parents can structure equal parenting on a three-year rotational basis, for example).

Either parent can move half an hour by car away from the point where family separation occurred without forfeiting the Presumption of Equal Parenting Time, so children may be up to one hour’s drive away from the other parent, but still only half an hour’s drive from their school.


This Information Kit has been prepared by Geoff Holland and others of the Equal Parenting Network

Feedback, including constructive critical arguments are appreciated.

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