Submission to the Justice and Electoral Committee on the Care of Children Bill
September 2003
National Committee
Father & Child Society
The Father and Child Society
The Father and Child Society was established in March 1998 and formally incorporated in November 1998. It was created to give local father groups/organisations support in setting up and running initiatives, as well as to improve access to information and improve communication between these groups. It was also formed to represent fathers on a national level through the government's ongoing consultation process with the community.
Comments on the Bill
In our work we offer support to biological fathers (within couple households and as part of separated couples) and step fathers. While there is a variety of living arrangements, we have argued in various forums that, in endeavouring to be inclusive of these various arrangements, government legislation has placed barriers to positive, and equal, parenting by biological fathers. For example, we have initiated a complaint to the Human Rights Commission that the paid parental leave legislation discriminates against biological fathers. While we are concerned with supporting fathers in various family arrangements, in this submission we focus particularly on the role of biological fathers who have separated, often through no choice of their own, from the biological mother of their joint children.
The committee of the Father and Child Society is disappointed with the perspective taken in the Bill. Hon. Margaret Wilson indicated the intention of the process leading to this Bill in her speech at the first reading of the Shared Parenting Bill on 10 May 2000. She said, "Unfortunately, the Shared Parenting Bill does not enable a review of the law in a holistic way. What we are intending to do here is a major review not only of the law but also, most importantly, of the policy that surrounds and informs the law."
This Bill suffers from the same failing levelled at the Shared Parenting Bill. To quote the Bill's Regulatory Impact and Compliance Cost Statement, Preferred Options, "It was decided that discrete and necessary amendments to the 1968 Act and related Family Court processes should proceed ahead of any decision on an integrated Act."
In reality, the changes are fundamental and wide-ranging, but lack a consistent conceptual framework.
It is regrettable that it needs to be stated, but the relationship between children and their parents is of great personal and emotional significance. It is one of the principle building blocks of a stable society. If these relationships are not recognised as a basis for long-term commitment, lifetime planning, social inclusion, a sense of belonging and a sustainable society, it is hard to know what could provide such a basis. Yet this legislation shows them little respect as if they are easily prescribed, disposed of and replaced.
It is hard to imagine the vision of society held by the drafters of the legislation. It certainly has not been spelled out in any public documents. In any event, there are numerous inconsistencies:
7.1) The Bill increases support for grandparents. Presumably this means that relationships with grandparents are considered important for welfare and best interests of children. It gives little thought for grandparents of the next generation, however. There could be serious long-term consequences for today’s parent-child relationships as a result of disrupted contact through interim arrangements, as well as later constraints on "contact" parents and lack of support for them to have effective "authoritative parenting" roles. The emphasis on one "carer" parent commonly restricts the relationship between children and their fathers. Has there been any thought as to whether relationships between fathers and children are being supported sufficiently for these fathers to be in a position to subsequently act as grandparents to their grandchildren?
7.2) The Bill claims to allow children to express views on matters that affect them, but this is severely constrained by the issues that are available to them for comment. With unilateral, no-fault divorce and no restrictions on separation of de facto partners, children have no say in law on the basic issue of separation. Moreover, unless the law specifically presents an option of shared custody, any one parent would have an effective veto on this option, and the possibility may not even be made known to the children.
7.3) The Bill claims to recognise "the diversity of family arrangements", but this appears to be primarily through consideration of same-sex couples, rather than recognising the very large number of cases where two parents live apart and both wish to be active parents. In particular, it fails to acknowledge the potential a custodial parent to act as gatekeeper and veto the parenting involvement of the other parent.
7.4) The Bill provides for assistance with the costs of supervised access: "Funding of supervised contact will further reduce the risk that children may miss out on contact or have unsafe contact with a non-custodial parent." Meanwhile there is no consideration of the barrier to access caused by child support liability, which makes no allowance for the "costs of enjoyment of access". This can be particularly problematic when a liable parent cares for the children for a significant amount of time. Moreover, the supervised contact funding may result in greater willingness by the court to require supervised access when unsupervised would otherwise have been acceptable.
7.5) The anomalous nature of child support is also indicated elsewhere in the Bill. To quote: "This Bill amends the processes for resolving guardianship issues so those processes are more inclusive and focus more on the welfare and best interests of the child. By doing so, the Bill makes guardianship legislation more consistent with the principles underpinning other child-related legislation." Perhaps the Child Support Act is not considered to be "child-related". It certainly has no "welfare and best interest" requirement, and, in practice, provides a barrier to significant levels of parenting by both parents.
7.6) The Bill proposes a change of terminology from "custody" and "access" to "day-to-day care" and "contact". This does not solve the problem of "winners and losers". In fact, given the efforts by some lobbyists over the years to identify women as "the carers" (despite the international time use data showing the increasing time fathers are now spending caring for their children), the terms convey even more of a win-lose connotation with the mother being more readily identified as the winner.
7.7) The Guardianship Act defines custody, but does not define access. This bill defines contact (clause 7 - contact, in relation to a child, includes all forms of direct and indirect interaction with the child). Access orders currently usually specify only direct contact, with phone, mail, email, school, etc. being left wide open. This bill takes an all-embracing view on contact, thereby automatically imposing additional restrictions. The current situation is more than sufficiently restrictive on non-custodial parents, as was eloquently described by Bettina Arndt recently:
"The great irony is that as the family law experts quibble over how much contact the father should be allowed to have with his young children, everyone knows that these children will not be cared for exclusively by their mothers. ... These days many of these infants and toddlers will spend long periods cared for by unfamiliar child-care workers and will often be farmed out to relatives, friends, mum's boyfriend, even for overnight stays. Unrationed care is permitted by one and all - with rigid controls only on the child's father."
7.8) Child support is given to a custodial parent with no specified guidelines, controls or accountability on the use of the money. If a parent has been shown not to act in a child’s best interest as specified in court orders, why is it presumed that the same parent will act in the child’s best interest with respect to the use of this child support money?
7.9) The Bill is claimed to support for "all types of family unit". Is there really a "one-size-fits-all" solution, or does support for one undermine support for others? For example, a child in a blended family but seeing the other parent is also in a two-home family. Support for "single-parent households" may conflict with supporting a child’s right to both parents. It is hard to see how the Bill supports "two-home children".
7.10) Clause 7, interpretation, specifies that the role of providing day-to-day care for a child: "(b) includes the right to determine where, and with whom, the child lives". The same wording is used in clause 15(2)b, examples of guardianship. So who has this right, the person with day-to-day care, or all guardians? Does it include freedom to relocate, or live with known child abusers, or put a child into anyone else’s care?
There are also several fundamental issues that are ignored in the Bill.
8.1) The Family Court is a very crude mechanism for intervening in family issues. It is slow, expensive, and lacking expertise, and it is ill suited to ongoing disputes over numerous individually minor (but cumulatively significant) matters. It has recognised enforcement problems. Its interventions -- commonly involving the removal of a parent from a significant parenting role -- are extreme. Is too much being asked of the Family Court? If it is a crude instrument, then should it be used for drastic surgery?
8.2) Clause 4 states, "the child’s welfare and best interests are to be paramount". Nowhere are these concepts spelled out, and no justification or explanation are required when they are used. As with the Guardianship Act, the concepts can simply be claimed so as to "justify" any course of action against all objections.
8.3) Current policies on domestic violence arise from the perspective of the Duluth model. This is a gendered approach based on ideas of power and control, with an abuser and a victim. It has several shortcomings: a) It is not suitable for considering situations of mutual violence; b) Resulting policies are not well suited to handling cases of violence by women; c) removal and supervision of the designated offender may not reduce the risk to children, in that the alternative situation (such as a sole-parent household or living with another unrelated adult) could be associated with greater risk of child maltreatment.
8.4) Parenting orders are not the same as parenting plans. Many of the issues under guardianship seem not to be considered under parenting orders, so the parent without day-to-day care may have no rights on these. Parenting plans specify intent with respect to major issues, such as schooling, and religion. Orders appear primarily to be specifying detailed terms for the "contact" parent, restricting and circumscribing that parent’s role.
8.5) It is now generally possible for people to know, through DNA testing, who both their parents are. There is increasing recognition of the importance of this knowledge and its release in cases of adoption and even donation of sperm. It is anomalous that easily determined information on paternity is not made available when it can give, in most cases, as much certainty as there is on maternity. Given that the Bill describes powers to make determinations of paternity, it is amateurish, and potentially more expensive, not to require routine use of available technology.
8.6) There appears to be almost a conspiracy of silence on the issue of parental alienation. There has been increasing consideration of "battered women’s syndrome", whereby women’s perceptions and behaviour are said to be influenced by their environment, and children are said to be harmed by their environment if there is violence in the household. It is hard to understand the apparent inconsistency whereby there is no acknowledgement of children’s susceptibility to alienation from one parent by the other.
8.7) There has been much attention and publicity given to shared parenting in recent years. The issue was even the catalyst for the current Bill. Nevertheless, it does not even get a mention in the Bill.
8.8) There appears to have been no consideration of the wider effects of the disrupted parenting that is central to current family law and would be perpetuated by this Bill. An indication of these effects was given by in March 2000 Mary Iwanek (Child, Youth and Family Services Department National Manager Adoptions) when describing the long-term effects on parents whose child had been adopted.
"Many birth parents are unable to come to terms with the loss of a child, Ms Iwanek says. "It increases over time. It's like a funeral when the body stays in the house for ever. Some suppress it effectively, to move on, and others don't. A woman who placed a child 30 years ago will talk about it tearfully today.
There is, therefore, a high incidence of not attaching to subsequent children or becoming over-possessive, fearful of losing them and there is a high degree of divorce.""
("Close Encounters" by Val Aldridge, on p.17 of The Dominion, 23 March 2000)
As with the Guardianship Act, there is much scope for interpretation, so outcomes are not clear. There is no statement of principle acknowledging or supporting a principle of the primary commitment of both parents to their children. This should be a priority given interpretation by the Court to date. Its absence in this situation signals a lack of recognition of this principle.
The bill does not convey an awareness of the problems fathers face, or how vulnerable they see their position as parents to be. How can this bill be seen as supporting their position when it emphasises the carer role and allows others besides parents to be given equal rights and responsibilities?
There is no vision of individual men and women living together in the current government's thinking.
Recommendations
- It is important that this legislation reduce, rather than raise, barriers to biological fathers being positive involved parents.
- Higher priority should be given to shared parenting as promoting the welfare and best interest of the child, with greater recognition of the family environment of "two-home children".
- It should be recognised that child support is a major barrier to substantial contact below the 40% of nights threshold, and the Child Support Act should be reviewed to take this into account, and to also note UNCROC’s articles recognising the "direction and guidance" role of both parents.
- Claims that a decision is based on the welfare and best interest of the child should be supported by explanatory details.
- The issue of parental alienation should be addressed.
- DNA testing for paternity should be routine, and paternity orders should not be made without such a test.
- Domestic violence legislation should be reviewed in the context of alternative theories of violence. Any orders resulting in change in custody or access in response to violence only be made with explicit consideration of the resultant situation and its possible impact in terms of the welfare and best interest of the child. In particular, the question should be addressed as to whether the child would be more at risk of violence from others in the resultant situation.