Byas, Anna --- "Family law: One size does not fit all" [2003] AltLawJl 75; (2003) 28(5) Alternative Law Journal 250

• Briefs
• FAMILY LAW
• One size does not fit all

Briefs

FAMILY LAW
One size does not fit all

ANNA BYAS^[*] draws on her own research data to comment on the federal government's resurrection of a legal presumption of joint custody.

Family law reforms in the recent decade have been implemented primarily to diffuse inter-parental conflict, promote private agreement and to encourage fathers to stay involved in their children's lives. However, conclusions drawn from a qualitative study of 32 separated parents conducted in 2000 as part of a doctoral thesis, indicate that in spite of good intentions, the guidelines of the Family Law Reform Act 1995 (Cth) (Reform Act) have done little to persuade parents to put hurt and blame aside or prompt an increase in cooperative parenting.

Moreover, the Reform Act has not engendered an increase in equal sharing of parental responsibilities either, thus suggesting that family law offers no more than formal equality.^[1] It would seem, therefore, that the current federal government's resurrection of a legal presumption of joint custody, long since repealed in the State of California after it was realised that the consequences were disastrous for children, is curious indeed.^[2] In addition, decades of contradictory and inconclusive social science research have demonstrated, if nothing else, that no single model of child custody can guarantee better outcomes for children of divorce. Thus the current revival of interest is clearly not a response to the best interests of the child.^[3]

In spite of the apparent limitations of the Reform Act to impact positively, or even significantly, on most separated parents, it could be argued that one of its strengths is the lack of any overt legal presumptions and detailed definitions. In the best light, this feature can be seen as an implicit acknowledgement of the diversity and complexity of the lives of separated parents. It is vital therefore, that the current parliamentary inquiry hear a much broader range of voices and experiences of separated parents than has previously been the case.^[4] Nevertheless, analysis of parent interviews has lead me to conclude that 'no presumption' reforms per se have had minimal positive impact on conflict levels, nor had a detectable influence on long-term private agreements. Moreover, meaningful father involvement stems from individual psycho-social experiences and perceptions of parenting rather than any legal guidelines or exhortations. On that account, one might well wonder what hope an already tried and failed presumption could contribute towards the fulfilment of original law reform goals, because, as parents' narratives imply, there are a number of factors that have not been, and cannot be, simply legislated away.

The first of these factors is that the realities and perceptions of those who parent apart are still largely determined by the resilience of the sexual division of labour in Australia. Parenting currently takes place in a society which displays a great deal of ambivalence about who should bear the responsibility for the care of children. Some mothers and fathers are modifying the traditionally gendered model of parenting to varying degrees but family law should not overzealously apply the principal of gender neutrality. Family law may be an easy target for formal equality but it is not the appropriate place to begin democratic family reform. For 'shared parenting' and 'parental equality' to attain normative meaning and practices, such concepts must be reflected far beyond the realm of family law and separated parents.

It would seem that by and large, the concepts of 'shared parenting' and 'parental equality' which form the foundations of family law reform are taking on a pseudo-normative meaning premised on the somewhat arbitrary measures specified by the Child Support Scheme and the Commonwealth Family Tax Benefit. Thus for many parents, shared parental responsibility is measured in nights per fortnight or per year, according to the bureaucratic formulae. This superficial measure tells us nothing of the experiences of shared parenting nor how equally parental responsibilities are really carried out. A larger share of parental responsibility for mothers, or the perception of it at least, persists to a significant extent.

For example, of the parents in the shared care category in my study, where one might expect to find an equally shared division of parental responsibilities, just over half of the mothers expressed resentment and frustration at having to take on all or most of the mundane and organisational responsibilities of child rearing. None of the fathers in the shared care category expressed similar resentment.

Second, the above study demonstrates that post separation arrangements need to be based primarily on practicalities and matched perceptions rather than on idealistic aspirations which are not grounded in the realistic possibilities for each family. It is important that arrangements not only best reflect each parent's level of involvement and capabilities in everyday care for children but that those perceptions are not too divergent between parents. 'Idealistic' preferences on the other hand, need to be in tune with what is workable or reasonable in relation to each parent's investment in child rearing and current life circumstances. If they are not, then such preferences are more likely to stem from hurt or anger and a need for retributive justice. This latter dynamic brings me to the third most salient finding of my study.

That is, legal rules and guidelines seem to have little power over how well or how quickly people adjust emotionally to separation, although sadly, family law does seem to offer tools and strategies for the playing out of poor emotional adjustment. My analysis indicates that the co-parenting project is governed more significantly by spousal feelings towards each other than by any other factor. The co-parenting project is most successful when parents have resolved their emotions to the extent that they can move from a spousal relationship to a parental one or when parents are committed to separating spousal issues from parental ones. This takes time. Even in the more successful co-parenting stories, participants in my research relate the emotional trauma of the first year or so as an impediment to cooperative parenting. Other stories indicate that spousal detachment can take many years. Arrangements for children

are established or evolve in the context of their parents' capacity to resolve their own emotions and deal with each other's responses to the separation. Such evidence cannot and should not be ignored by policy makers. A heavy­handed legal response such as the one being proposed, is unlikely to serve the best interests of parents trying to emotionally resolve the separation and, by implication, such a response is also unlikely to serve children well.

Empirical evidence consistently demonstrates a significant variation among separated parents in the way that spousal detachment and emotional resolution occurs and in the emotional and social contexts in which arrangements for children evolve. Policy makers must take this variation seriously before implementing a one size fits all legal presumption of equal time. It would be unfortunate if the worthwhile principle of shared parenting metamorphosised into no more than a legal strategy to override diverse parental inclinations and their correlations with children's best interests.

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^[*] Anna Byas is Doctoral Student in legal studies at Flinders University of South Australia.

^[1] While formal equality may offer equal opportunity, this does not translate into equality of outcome. Less than 4% of parents registered with the CSA have equal or close to equal care of their children. See Child Support Agency, 'Child Support Scheme Facts and Figures, 2002-03', (2003); Family court statistics indicate a reduction in 'joint residence'. See Family Court of Australia, 'Residence Order Outcomes - 1994-95 to 2000-01 ', <http://www.familycourt.gov.au/courtlhtmllresidence_orders.html> at 18 September 2003.

^[2] Hugh McIsaac, 'California Joint Custody Retrospective' in Jay Folberg (ed) Joint Custody and Shared Parenting {1991) 262-74. The joint custody model advocating 50/50 shared residence between parents has been largely discredited and repealed in overseas jurisdictions such as California. In the case of California, joint custody was frequently imposed on litigating couples and seen as a solution to high levels of inter-parental conflict. The expectation was that parents would be forced to resolve their differences by both putting the children's needs first. This is in fact contradictory to findings such as those of Amato which suggest that the higher the level of conflict, the more likely it is that the effects of frequent contact with both parents on a child's wellbeing will be negated. Paul R. Amato, 'Contact With Non-Custodial Fathers and Children's Wellbeing', (1993) 36 Family Matters32.

^[3] See Kate Funder, Remaking Families: Adaptation of Parents and Children to Divorce, (Australian Institute of Family Studies, Melbourne, 1996). This study found that the majority of parents and children ultimately adjust to divorce quite well and in such a variety of ways that there is 'no one golden rule' for post-divorce adjustment nor any one optimal family structure.

^[4] Rhoades, Graycar and Harrison claim that there is a disproportionate number of submissions made to parliamentary inquiries into family law matters by disaffected fathers. Helen Rhoades, Reg Graycar, and Margaret Harrison, The Family Law Reform Act 1995: The First Three Years (University of Sydney and the Family Court of Australia, 2000).