Every Picture Tells a Story
DVIRC’s Response to the Report on the Inquiry into Child Custody Arrangements
Like many other concerned people and organisations, DVIRC made a submission to the recent federal government enquiry into joint custody arrangements (see Spring Edition 2003: 23-9). The enquiry has now released its report, Every Picture Tells a Story, and this article provides an edited version of our response to it.
DVIRC welcomed several aspects of the Committee’s Report, in particular its: rejection of the presumption that parenting would be shared between both parents following family separation; recommendation that the number of contact centres be increased; endorsement of the New Zealand model for families where violence has occurred, which is a presumption against equal parental responsibility in such cases (unless the perpetrator can prove he is not violent). However this latter point falls short of a presumption of no contact in such cases, and proposed amendments to Australia’s Family Law Act may offer perpetrators of violence another legal avenue for harassing an ex-partner or children. DVIRC remains concerned about several other aspects of the report. Assumptions about Parenting Embedded in Every Picture Tells a Story is an assumption that 50/50 shared parenting is the ideal. However such a model does not reflect how parenting responsibilities were actually shared prior to a relationship’s breakdown. In most relationships, mothers bear a disproportionate responsibility for child care. And following a relationship breakdown, most daily decisions about such matters as a child’s health and education are taken by the primary, rather than the non-resident parent. It is, therefore, the primary parent who will be sanctioned for not maintaining ‘shared parenting responsibilities’ with a non-resident parent, while non-resident parents who fail in their
responsibilities, such as to maintain contact with their child, will attract no sanction. A ‘Family Tribunal’ The Committee recommends establishing a Family Tribunal to take over some of the Family Court’s responsibilities. We believe it would be better to restore funding to the Family Court so that these capabilities (mediation, a non-adversarial approach, support, information and referral) could be returned to the court, which could also be developed to include a ‘shop front’ for such services. What powers would the Tribunal have to investigate allegations of domestic violence and child abuse? Who would make these decisions? Where would they fit within the legal system? How would they link to ongoing legal/police matters and Child Protection? What training would Tribunal workers have? What would the timeframe be for families to be investigated? What would be the consequences? Family Violence Cases The report needed to significantly elaborate on several matters where violence has been a feature of a relationship. How are the terms ‘entrenched conflict, family violence or serious child abuse’ defined? How will risk be established (at what point, by whom, and with what kind of screening tool?). Domestic violence and child abuse are notoriously difficult to substantiate. Lack of _____________
Autumn Edition 2004
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Child Custody Arrangements
medical and other forms of evidence are common. Substantiation of non-physical violence is even more difficult. Will intake workers be trained in screening for family violence? At what stage will families be screened, and by what service or professionals? How will processes be set in place to safeguard women or children who are unable to disclose abuse? Mediation More broadly, Every Picture Tells a Story does not critically explore the idea of mediation as a panacea for family disputes. Mediation requires significant commitment, openness and skills which many families in conflict cannot muster. We are especially concerned that women and children who are at risk of violence are not expected to ‘mediate’ with its perpetrator. It is simply not possible to mediate where violence is present. This fact reinforces the urgency of clarifying what risk assessment processes would be in place to divert women and children who are at risk away from the Tribunal and into the Court system. If mediation is to become the new solution, clear guidelines will be needed as to staffing requirements. What kind of training and experience would mediators have? How would domestic violence/child abuse training or expertise be required and assessed? What peak body will monitor and evaluate the mediators? If the mediation service is out-sourced, it is critical that providers receive accredited, standard competency training to avoid disparities in risk assessment and mediation skills. To fail to do this would place women and children at great risk, and be likely to lead to parenting plans that are not in the best interests of the child or the mother. Best Interests of the Child? We are relieved that this report stops short of advocating for a presumption of equal parenting. However it recommends that the Family Law Act be altered to ‘create a clear presumption, that can be rebutted, in favour of equal shared parental responsibility, as the first tier in post-separation decision making’ (41, 2.82). This removes a principle enshrined in Family Law, i.e. that the court should work in the best interests of the child. Instead, the child’s best interests would be considered within a context of shared parenting, equal time and equal responsibility which raises the status of parental interests. In reporting of submissions they received, the Committee noted that few individuals were able to place the best interests of a child above their own. Some of the report’s recommendations reinforce this approach. Moving towards a language of ‘equality’, which seems fair on one level, actually undermines a capacity to objectively and individually determine what is in the best interests of the child. We hope that the push towards equal parenting and mediation will be moderated by the recognition that domestic violence and child abuse are particularly common in cases that come before the Family Court. And where violence is present, the values of co-operation and respect, which are required to share responsibilities, cannot function. Every Picture Tells a Story can be downloaded from http://www.aph.gov.au/house/committee/fea/childcusto dy/report.htm
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DVIRC Newsletter