Mission & Justice

Erin O’Dwyer; 9/3/08

A story floats around Sydney’s legal fraternity that only gets better in the telling. In early December 2005, on a crisp summer’s day in Canberra when Federal Parliament was to consider one of the most radical and ambitious social reforms ever, men’s groups from around the country rallied their members to fire off 17,000 emails to politicians and their advisers. Where the story sits on the scale of truth and urban myth is impossible to know, but there is no doubt that the extremely powerful and well-organised fathers’ rights lobby sent their message to the right ears.

See; The Sun Herald; No Internet Text
“One of the regrettable features of society at the present time is that far too many young boys are growing up without proper male role models,” said then prime minister John Howard in 2003, announcing an inquiry into family law “They are not infrequently in the overwhelming care and custody of their mothers. If they do not have older brothers or uncles they closely relate to … many young Australian boys are at the age of 15 or 16 before they have a male role model with whom they can identify”
Initially, at the urging of a coalition of dads groups known as the Festival of Light, the government considered a new system of “rebuttable” joint custody. Courts would presume that children should spend equal time living with each parent.
In the end, new laws introduced in 2006 require courts to consider giving each partner equal time. If not, then “substantial and significant time”. The men didn’t get quite what they wanted, but it was good enough.
“The changes came about via very effective lobbying by men,” says family law specialist Justin Dowd, from Sydney firm Watts McCray. “Some might say that the men’s groups were very happy with the outcomes of all these changes,” says another family lawyer.
Sociologist Dr Elspeth McInnes, from the University of South Australia, goes one step further. “The family law changes reflect in large measure the lobbying goals of the fathers’ rights movement and it’s designed to favour men’s rights agendas,” she says. “That is, to preserve men’s entitlement and choice to determine their involvement post-separation, to minimise their accountability for violence against women, and to minimise child support.”
On the positive side, the changes mean that heart-wrenching Friday night handovers at McDonalds’ car-parks across the country are (almost) a thing of the past. Instead of the every-second-weekend-and-half-the-school-holidays regime that became the norm for a generation of kids, more fathers are winning week-about arrangements. The old catch-cry, “in best interests of the child”, is no longer central to how child custody cases are decided. Instead, there is a presumption that parents will share the care.
It sounds good in theory. But new research published last week shows that shared-care parenting arrangements are breaking down. And it has prompted a growing chorus of family lawyers, academics and mothers’ groups to ask whether the fathers’ rights lobby may have railroaded the family court process.
The research, in the Journal Of Family Studies, found that most children who split their time between divorced parents will end up living with their mothers after a few years. In almost 600 families studied over three years, about half of shared-care arrangements had broken down. Of those who lived with one parent from the beginning, more than 90 per cent were still there three years later. About 80 per cent lived mostly with their mothers, while just 6 per cent lived mostly with their fathers.
A separate study, published in the same journal, found that more parents in high-conflict divorces have shared-care arrangements than other divorcing parents. But three-quarters of those arrangements broke down within a year because the parents could not get along. In 73 per cent of cases, at least one parent reported “almost never” co-operating with the other within four months of leaving court.
In a number of cases, parents had no contact with each other, leaving children to pass messages between the warring pafrs. One in three children were so emotionally distressed that they required professional help.
Side-by-side, the two studies paint an alarming picture. But, says co-author associate professor Bruce Smyth, from the Australian National University, it is too early to tell whether 50-50 parenting was failing parents.
“The rates of shared care are clearly rising,” he says. “Ten years ago it was 3 per cent. In 2005 it was 5 per cent. Now it’s nine or 10. The question is how high are these rates going to go. In the US it’s reached the 20 per cent mark Most researchers are saying it’s too early to tell but anecdotally [the new laws] are heightening fathers’ expectations. Aspirations are racing ahead and we don’t have the data to back it up.”
Smyth is reluctant to comment on the role that militant dads’ groups have played in pushing the new regime, but says that the changes reflect a shift in a society where both men and women want dads to play a bigger role. The breakdown in shared arrangements can also be attributed to one parent moving away or a child changing school, rather than simply conflict and violence. “Shared parenting was inevitable,” he says. “But policy is marching away on a lot of ideas and there is still a lot more we need to know”
University of Wollongong sociologist Michael Flood is one of a few academics researching the rise of father’s rights groups as a backlash against the feminist movement of the 1970s and ’80s. He believes that fathers’ contact with children has been privileged over children’s safety from violence. And he says fathers’ groups ignore the real obstacles to shared parenting, whether it be forgotten homework and missing shoes or children witnessing serious violence between their parents.
“Both government policy and many fathers’ rights groups are guided by two central and mistaken assumptions,” he says. “That is, all children see contact with both parents as in their best interests in every case, and that a violent father is better than no father at all. The achievements of the fathers’ rights movement are already putting women, children and indeed men at greater risk of violence and abuse.”
Dr Elspeth McInnes agrees, saying judges trained in the law rather than in family dynamics now start from a point of equal care and often do not proceed to considering the safety of the children. McInnes believes shared-care parenting agreements are being handed down by the courts to appease angry hurt men, without considering the practical realities. She says in one case the two parents lived 200 kilometres apart, and the child had to go to school in between. She had also seen cases where babies still breastfeeding were split 50-50 between their parents. “The male judge will sit there and say, ‘Can’t you express? There are pumps, you know’.”
Practical realities aside, McInnes of shared-care arrangements had broken down. Of those who lived with one parent from the beginning, more than 90 per cent were still there three years later. About 80 per cent lived mostly with their mothers, while just 6 per cent lived mostly with their fathers.
A separate study, published in the same journal, found that more parents in high-conflict divorces have shared-care arrangements than other divorcing parents. But three-quarters of those arrangements broke down within a year because the parents could not get along. In 73 per cent of cases, at least one parent reported “almost never” co-operating with the other within four months of leaving court. In a number of cases, parents had no contact with each other, leaving children to pass messages between the warring parteners. One in three children were so emotionally distressed that they required professional help.
Side-by-side, the two studies paint an alarming picture. But, says co-author associate professor Bruce Smyth, from the Australian National University, it is too early to tell whether 50-50 parenting was failing parents. “The rates of shared care are clearly rising,” he says. “Ten years ago it was 3 per cent. In 2005 it was 5 per cent. Now it’s nine or 10. The question is how high are these rates going to go. In the US it’s reached the 20 per cent mark Most researchers are saying it’s too early to tell but anecdotally [the new laws] are heightening fathers’ expectations. Aspirations are racing ahead and we don’t have the data to back it up.”
Smyth is reluctant to comment on the role that militant dads’ groups have played in pushing the new regime, but says that the changes reflect a shift in a society where both men and women want dads to play a bigger role. The breakdown in shared arrangements can also be attributed to one parent moving away or a child changing school, rather than simply conflict and violence. “Shared parenting was inevitable,” he says. “But policy is marching away on a lot of ideas and there is still a lot more we need to know”
University of Wollongong sociologist Michael Flood is one of a few academics researching the rise of father’s rights groups as a backlash against the feminist movement of the 1970s and ’80s. He believes that fathers’ contact with children has been privileged over children’s safety from violence.
And he says fathers’ groups ignore the real obstacles to shared parenting, whether it be forgotten homework and missing shoes or children witnessing serious violence between their parents. “Both government policy and many fathers’ rights groups are guided by two central and mistaken assumptions,” he says. “That is, all children see contact with both parents as in their best interests in every case, and that a violent father is better than no father at all. The achievements of the fathers’ rights movement are already putting women, children and indeed men at greater risk of violence and abuse.”
Dr Elspeth McInnes agrees, saying judges trained in the law rather than in family dynamics now start from a point of equal care and often do not proceed to considering the safety of the children. McInnes believes shared-care parenting agreements are being handed down by the courts to appease angry hurt men, without considering the practical realities. She says in one case the two parents lived 200 kilometres apart, and the child had to go to school in between. She had also seen cases where babies still breastfeeding were split 50-50 between their parents. “The male judge will sit there and say, ‘Can’t you express? There are pumps, you know’.”
Practical realities aside, McInnes says courts are ignoring a history of violence in relationships and violent men are being granted equal custody, thanks largely to the power of the father’s lobby. “The principal of shared parenting works best when people can co-operate and be motivated to work for the child,” she says. “Where that occurs, those decisions are usually made by agreement. When you have to go to court to reach agreement, this would be the least likely space where you are going to get good shared-care arrangements.”
The academics might agree, but those working at the grassroots are split. Robyn Cotterell-Jones, from the Victims Of Crime Assistance League (VOCAL), says she sees many women who left violent relationships only to find themselves and their children subject to violence again after family court orders were given.
“There are 43 different mens groups, but women don’t know there are lobby groups until it is too late,” she says. “Too many people are coming forward with very similar stories. A woman who has escaped violence who has very genuine fears runs the risk of losing her children unless she can provide sufficient proof of the violence [that] happened to her.”
Those who work solely with fathers tell a different story. “I only know of a few guys who have got 50-50,” says Phil York, from Dads in Distress. “Most dads are lucky to get Friday afternoon pick up from school and Monday morning drop-off every second weekend.
York believes the new laws have changed things for the better, with fathers having more say during the early stages of separation and in mediation. But he says many men are still settling for second best, especially where there is conflict. “When guys get access that’s half the problem solved,” York says. “When they don’t get access, guys are in full distress. Then they are liable to do silly things like take their own lives.”
Barry Williams, a veteran fathers’ rights crusader whose Lone Fathers Association sent its first shared-care submission to the Federal Government in 1980, believes the new laws work. He points to success stories in California and other parts of the United States, which are questioned by the academics. “I’m running around Australia explaining these things and getting a 70 per cent positive attitude about it,” Williams says. “But it’s the feminist groups who are putting these scare tactics out and the lawyers too. The lawyers are going to lose a lot of money and the feminists just don’t want it. They are scared they are going to lose a bit of child support.”
Musician Colin George, whose moderate Fatherhood Project on the NSW North Coast organises annual music festivals featuring the likes of Pete Murray and John Butler, has sympathy for both sides. George himself has an unusual custody arrangement. He built a house with his ex-partner that has two self-contained units for the parents and a third space in the middle for the children. He says it is a work in progress, and not without its difficulties, but communication and patience are the key.
“We have to accept that some men have been extremely hurt and damaged by the process that was going on in the courts,” he says. “But you have to take things case by case. A presumption of equal parenting is a good step, but it needs to be taken on a case-by-case basis. There are some men and some women who put their needs above their children’s needs, when we should be looking at the best interests of the child. What I always say to men is you have to be a reasonable man in an unreasonable situation:’
            Adapting to a shifting landscape
For more than a decade, Tracey Watson’s* three children spent every second weekend and half the school holidays with their father. “It wasn’t perfect but it worked quite well,” she says. “You have all the structure and the kids are stabilised in one environment.”
Then, four years ago when Watson separated from the father of her fourth child, she agreed to a 50-50 split. It was typical of the shifting landscape of Australian divorce law. But the arrangement didn’t work.
“With shared care, children have to try to adapt to alternative structures,” she says. “It’s one structure here, one structure there and they don’t get the consistency that a kid needs. “My son loses things, and he wets the bed. He’s anxious. Every morning he has to ask who he’s with and what’s happening and what’s going on. At seven, I’ve only just got him to spend half the night in his own bed.”
Recently, Watson renegotiated with her expartner for their son to spend nine days with her and five days with him. She hopes that will work better, but says there should be more emphasis in the legal system on parents’ strengths rather than equality.
“I don’t know of anyone who has a shared care arrangement who doesn’t have conflict,” she says. “If the shoes get left behind, it becomes a drama. If something needs to be done I pickup the tab and that’s not shared parenting. “I’m good with structure, my ex-partner is the fun dad. In the 50-50 split each parent ends up doing things that they are good at and that they are not so good at, instead of being divided up according to people’s strengths, which is what happens in a marriage.”
* Real name withheld

This entry was posted on Sunday, March 9th, 2008 at 4:46 pm and is filed under Australia, Gender & Marriage, Health & Children, Human Rights. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.