Why the Government is wrong about shared parenting legislation

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  • Unfortunately, though, that "easy solution" isn't "good for the economy," let alone for the enormously profitable divorce industry.

    When will that industry really start to put the children first, instead of continuing to lie to the public with an empty rhetoric of "needs and wishes"? That rhetoric is fast becoming transparent to the public, though, and very soon it will no longer be possible to maintain a patriarchal status quo.

    The sooner we communicate the message to divorcing couples that neither parent will be allowed to dominate the other, and that the child will be placed with the parent best capable of fostering shared parenting, the sooner we will see a decline in disputes that currently clog up the courts, and leave parents financially and emotionally crippled.

    From ample years of experience, what becomes apparent is that what Zoe Saunders calls domestic abuse, this begins not in the home itself, but in the courtroom, where on parent knows that all the cards are stacked against the other, and exploits that with the most outrageous kind of contempt for justice.

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  • We shouldn't lose sight of the fact that Helen Rhoades, whose interpretation of the Australian experience Zoe seems to favour, is a feminist. Of course there is nothing wrong with that but family justice needs to be framed more broadly to serve the best interests of children and not just the best interests of feminists.

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  • Yes Zoe, you do write about cases involving various kinds of intractable disputes. The issues I have with your discussion is that there is a lack of acknowledgement of the how the current implementation of the legislation encourages these intractable cases. The probability of there being a "winner" of residence and contact (custody and access), in the context of an uncertain or yet to be determined outcome, fuels the war. If the probability of having a single were significantly diminished, and equal shared parenting were the rule, the fuel of these conflicts become far leaner and the allegations withdraw into begrudging cooperation.

    This is what I meant by a lack of discussion.

    Zoe Saunders | 14-Mar-2012 1:46 pm

    Robert - I am confused by your comment. I specifically mention intractable contact disputes in which allegations of abuse and alienation are raised and point out that those cases would be an exception to any statement on shared parenting in any event.

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  • http://family.michelmores.com/about-us/the-family-law-team-michelmores/Rachel-Cook/

    Hi Zoe
    Really like you piece. Well written. I agree entirely with you about the inevitable misunderstanding between primary legislation and public perception. Residence/custody is an excellent example of this. It seems there is to be lots of primary legislation coming the way of family lawyersin the next few months/year. Lots of changes for us to grapple with. We can only hope that these changes improve the experiences and outcomes for the children involved.

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  • I have worked in the family courts for more years than I care to remember + completely agree with what Zoe says. Despite what is said here + elsewhere (sadly, but perhaps understandably based on personal experiences), nearly all of the cases I have dealt with have been dealt with by "sensible" judges - not the female-biased idiots portrayed in the popular press.

    I could give many, many examples of this - I have acted for fathers and mothers and have found absolutely no bias whatsoever - perceived bias is of course subjective + personal.

    The best example against literal "shared parenting" I can think of was given by a family judge some 12+ years ago when he enquired re the argument of a child spending time equally with both parents as "where's the child's home?"

    Oh and please don't use the "abuse" argument re any contact/residence issue - again, I've rarely seen it used and, even then, it was only successful with substantive (e.g. criminal prosecution) evidence.

    Finally, the Anonymous who keeps putting words in capitals - all this does is make your point seem like a slighly deranged rant!

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  • Alex.... P.S. Your 'best example' against shared parenting from a judge 12+ years ago "where's the child's home" -
    It ignores a large amount of Case Law that declares children can and do easily move between 2 homes. It also ignores the research and studies that show that shared parenting benefits children generally.
    I hope this judge has changed his/her ways, although my experience shows there are still many judges and lawyers out there who continue pushing outdated stereotypes of families based only on their own experiences.
    Times have changed, both parents care for their children and look after financial responsibilities in the bulk of households in this country.
    It's a shame that old fashioned 60's stereotypes of what a family is are still being used as a basis for Court comment such as the Judge you quoted with such devotion.

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  • Alex... There are a couple of enlightened judges and lawyers who have spoken out about the family law system failures and how many times it affects children's rights to have a meaningful relationship with both of their parents.
    Yes 'judges' many times can be sensible but they are working within a system that is systematically biased in favour of the so-called primary carer (usually mother). It is a system that has little or no enforcement and little or no will to take the so-called primary carer to task for recalcitrant behaviour, except in a small minority of cases.
    Don't take my word for it:-


    Lord Justice Munby - 2004

    Judge backs angry fathers over contact with children - Call for sweeping changes to family justice system after 'shameful' court failures


    Lord Justice Ward - 2008

    Vengeful mothers leave good fathers powerless to see child, says judge


    “The adversarial nature of the system invites people to come and use the courts system as a punch up and the children get used as pawns," said Sandra Davis, head of family law at Mishcon de Reya, for whom the poll was conducted.

    “It polarises parents and it puts children in the middle of the antagonism.

    “Some fathers back off because it is too painful to carry on litigating, they give up.”

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  • Alex, although I appreciate your insight from years of experience in the family court, what you have seen and report here about the abuse argument may be misunderstood by some. I take it that you mean very few pleadings argue for sole access based on allegations of abuse. No doubt you know what you are talking about, and I certainly won’t contradict you.
    However, no pleading on that basis is necessary when there already exists a criminal court order barring the other parent from the home, or from being within half a mile of the child’s primary care giver. That court order seems to do a pretty good job at restricting any other access order defining pickup or drop off notwithstanding that 3rd parties will assist, the children will not be interested in spending time with the soon to be adjudicated "abuser", nor will any police enforce such orders, nor will any therapist put their client in a position of possibly being harmed while charges are pending against the parent.
    It's easy to make allegations and have them acted on by police, no fuss no muss, no cost and pretty well immediate, enforceable sole custody. There you have it, a de facto and pre-emptive family court access order.
    No family court judge or lawyer needs to be involved, which is why you accurately report from your family court experience.
    Thank you for drawing attention to this problem for children.

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  • As for "where is the child's home?" - the answer is quite simple. It should be with the parent best capable of promoting shared parenting? The fact that we have not matured to that point yet indicates what most people working in the industry would have to concede as "institutionalized sexism." Those who deny the existence of that - well, either they are malicious, or motivated by the financial gain of breaking up families.
    As for the issue of false allegations re: abuse, these are a rampant disease in the family courts, with judges saying quite freely that they hear allegations of sexual abuse of children from mothers every single day. When the family courts begin to treat false allegations as the crimes that they are, and when those who use the courts to inflict emotional violence on their former partners are treated as criminals, we will have progress, and greater safeguards for children will be in place.
    At present, the crimes of false allegations are put down to the emotional instability of separating parents, and thus pardoned. What this does is engender a culture of blame and dishonesty, which targets and bullies the parent who already has the cards stacked against him. In turn, this does violence to children, who are denied a loving relationship with their fathers. It's obviously time to get tough, and time for a more equitable treatment of moms and dads in the courtroom.

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  • Zoe - I agree it may be irritating when people use the words "custody" and "access" rather than "residence" and "contact". However I think that when it's just the words that have changed, rather than the conceptual framework in which they exist, of a legally defined hierarchy between post separation parents, it's little wonder that people regard the words as interchangeable. I believe this conceptualization does nothing to promote co-operation between post separation parents, and I look forward to its being abandoned.
    You touch on the issue of quantity of time rather than quality of relationship, and remark that it's an issue practitioners are used to. I can say with some authority that it is not only practitioners, but contact parents as well who are used to the argument that less emphasis should be paid on time and more on quality. The argument is as well worn as it is specious.
    I would defy anyone to identify any human relationship, other than that of non-resident parent and his/her relationship with his/her child(ren), where the amount of time spent in each other's company is considered entirely irrelevant to the quality of the relationship. How much more important is the issue of time, then, in a parent /child relationship, where there are so many complex tasks to be done to assist in the child's development? On this point, I think it noteworthy that no-one - as far as I'm aware - has argued that the amount of time a resident parent spends with her/his child(ren) is irrelevant to the quality of their relationship.

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