The Battleground of Family Law

With the arrests of Dr. Russell Pridgeon and Patrick O’Dea relating to their alleged connection to a ‘child stealing ring’, Australia should be waking up to the reality that our adversarial family law system is not only broken, but those embroiled in it are either damaged at the outset, or damaged by it.

These latest cases of abduction were long running and sadly not isolated. In the news again recently is the reminder of the four Italian girls who were the centre of emotionally charged scenes across our televisions when they were taken from their Australian mother and returned to their Italian father in Italy in 2012. Two of the Vincenti children spoke out about their ordeal with family disputes, their fractured family and the resulting emotional damage they had to navigate during their 2 years ‘on the run’ after their mother abducted them.

Seeking her own answers instead of the ‘he said / she said’ of her parents, Christine Vincenti eventually turned to the court documents to find the truth in the matter in which her father was an alleged abuser. She was then forced to confront her mother on her allegations. The children were not being abused as claimed and ultimately were very safe in the care of their father where they remain today, loved and free from harm. These living case studies tell us much.

In 2010, news broke in Australia of a father who, after two years, had located his abducted child. The ‘protective mother’ had fled Australia amid allegations of abuse. The recovery process was long and after much turmoil and protracted legal battles the child now lives happily with the father. Apart from the associated trauma of abduction, the child is well adjusted and now lives free from harm.  

To understand this and the abduction cases in which it’s alleged Pridgeon and O’Dea were involved in, we need to look back in the history of Australian Family Law.

For at least the last 50 years in the name of social, political and economic equality for women, we have been asking more of fathers in family. Over a gradual period of time they stepped up to the plate in most cases and became hands on helpers at home, positively engaging with their children from birth or even pre birth. This benefited all of us but none more-so than our children. Mothers were able to engage more into the workforce and fathers gained the rich rewards of being more hands on caregivers to their children.

However, with the introduction of no fault divorce in 1975 the divorce rate escalated and fathers felt the pain of being routinely cut out of children's lives. Despite the many advances of feminism, women were still seen as the primary caregiver and being divorced for a man meant losing all contact with his children. Naturally, this was heartbreaking.

As the volume of these fathers increased they joined together forming groups such as the Family Law Web Guide which emerged to help self litigants who could not afford the exorbitant fees of Family Lawyers. To fight on a political level they formed the Shared Parenting Council which was a coalition of men and women who wanted to see a fairer and more equitable system. Dads in Distress was also formed with the sole purpose of preventing the suicide of loving dads who could no longer bear the strain of divorce. And there was many of them.

The following timeline helps to demonstrate how we got where we are today.

2006 – Subsequent to lobbying from the fathers who felt unfairly disadvantaged after separation, John Howard introduced the Shared Parenting Amendment and equal shared parental responsibility between parents..

2007 – Protective Mothers Alliance was born in response to the Shared Parenting Amendment. Their tactics were that of a pseudo domestic terrorist group. They made threats to destroy the family court and fathers lobby groups and made claims to insiders working in the family court.  They shared confidential family court information which they then published online. They created multiple blogger sites which defamed fathers and the women who supported them. Their clearly stated aim was anti shared parenting and repealing of Howard’s shared parenting amendment.

2010 – The above groups moved from blogger sites to Facebook to continue to their campaign politically and socially. This became a powerful platform because it facilitated large action groups to unite across the country. 

2011 – In response to lobbying by mothers who feared the impact of family violence on children, Julia Gillard introduced the family violence amendment which made children’s safety a priority over their right to a relationship with both parents. This is a great and welcome advancement for victims of family violence. However, it also caused a raft of problems which face families and the Judiciary today.

The repealing of section 117AB of the Act meant those making false allegations in order to win custody could not be prosecuted for perjury. The family violence amendment had vastly broadened the definition of violence to include a range of emotional and psychological patterns of abuse which can not be tested with evidence. Thus, family court hearings became a matter of he said, she said.

Lawyers seized the opportunity for profit and allegations of domestic violence became the new battleground of Family Law.  

It has become extremely difficult task for the judiciary to determine truth in the absence of physical or testable evidence. As a result Family Law cases can carry on for years while assessments and evaluations are undertaken and a determination can be made that will apparently work in the best interests of the children while keeping them safe. Sometimes, due to these assessments, the evaluations do not go in favour of the accuser, but rather work against them. 

And so the mothers rights / fathers rights battle continues.

As Parental Alienation theory started to make its way into family law matters, there became a new layer in determinations. Parental Alienation is described as the process, and result, of psychological manipulation of a child into showing unwarranted fear or hostility towards a parent.  Research has shown that the alienating parent usually has cluster B type personality disorders including borderline, narcissistic and paranoid personalities.

The ‘protective mothers' virulently opposed parental alienation theory and have spent years trying to discredit it. Despite this, it is gaining more and more strength with irrefutable research in Australia and internationally confirming its existence.

Sadly though, as fathers have again pushed back to remain involved in children’s lives, there are even less ‘winners’ in this zero sum game. The tragedy of 2018 is that more parents are being alienated or given minimal roles in their children’s lives.  A few years ago it was thought that PA impacted 15% of mothers and 85% of fathers. Today, the latest research is indicating it's more like 50/50. This is not something we should be seeking equality in.

By rejecting Parental Alienation theory the ‘protective mothers’  have disadvantaged themselves. Instead of looking for alternate solutions to family disputes, parents continue to use the dog-eat-dog family law to alienate and eliminate the other parent. As the courts and police screen through reports of abuse determining them as valid or not, the hearings drag out. And the Lawyers continue to soak it up.

Erring on the side of caution, when a Judge makes a decision which effectively determines unsubstantiated allegations, there is frequently evidence of mental health disorders in at least one parent.  While the accuser is not charged with perjury, shared parenting (even minimal) with those they’ve alleged abuse against, has been seen as a failure to these parents.

The result is now is the rise of vigilantism to support individuals who abduct children under the guise of calling themselves “protective”.  In these cases they ignore the psychological evaluations and evidence which resulted in the determinations made and facilitate abductions against court orders. They believe that all officials involved in family court are conspiring in keeping women and children abused. This is completely nonsensical.

After investigating many of these individuals and broader cases, including having read court documentation, being present in hearings and privy to details, I know that the waters of these cases are extremely dirty. While there are most certainly valid cases which need to be determined, some of the claims being made by ‘protective parents’ (mums and dads) are unsubstantiated, and yet because of the emotive and charged debate surrounding them, they continue to be spread as if they are fact.

In all of these cases, mental health and substance abuse appear to be most prevalent determinants in their family law matters. When determinations go against their wishes, they abduct or otherwise alienate the children from the other parent.  After their eventual recovery, often years later, there is much psychological and physical harm done to the children. This casts a serious doubt as to their efficacy of these groups who support vigilantism, blaming the family court and police for failing in their duty of care.  

Our family law system is broken.

If we genuinely want to resolve family disputes in a way that causes the least amount of harm to children, we have to look closer at mental health disorders affecting parents. Appropriate early interventions could help stem this from becoming the catastrophe for kids and parents we have today.

Societal change comes from grass roots movements. The battleground of mothers and fathers rights has proven this effective in family law. Sadly, with no positive outcome. The family law system is a mess. Our children are being immeasurably harmed. Our society is suffering and the tragic legacy will be long lived.

 

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Countering Arguments Against Shared Parenting in Family Law

Have we reached a tipping point in the child custody debate?

Despite strong public support and mounting empirical evidence in its favor as an ideal living arrangement for the majority of children of divorce, shared parenting as presumption in family law has historically been met with skepticism among some legal and mental health professionals. In a recent article in the Journal of Divorce and Remarriage, I describe how the past 40 years have produced three distinct “waves” of arguments against shared parenting, and how these have stalled meaningful legislative reform toward the establishment of shared parenting as a legal presumption, placing the burden of proof on shared parenting proponents to defend their position and demonstrate its efficacy, in a way that supporters of more traditional sole custody arrangements have not had to face.

The first wave of arguments was advanced in a manner that considered the idea of shared parenting of children by parents in conflict after divorce as an outlandish proposition. Three distinct arguments were made to discredit the concept:

First, it was asserted that children have one primary attachment figure to whom they become bonded, almost always the mother, and that any period of separation from the primary attachment figure will damage children’s development and compromise their well-being. At the same time this argument was advanced, however, reformulations of attachment theory emphasized the fact that children typically formed primary attachments to both parents, that these attachments were equally important for children, and that children tenaciously continue these attachments in changing circumstances, including after divorce.

A second line of argument was then put forward, stating that child development would be compromised when children move back and forth between two homes, “bounced around like a yo-yo,” with constant movement, two sets of home rules and different parenting styles. The research on children living in two homes found, however, that children themselves generally did not report such problems, and that sustaining attachments with both of their parents protected them from the adverse child development outcomes often accompanying divorce. In fact, lengthy separations from either primary attachment figure were found to be detrimental to child development.

Finally, a third argument was made that it is harmful to child development to disrupt the caregivingstatus quo, and that mothers should thus retain their role as the primary day-to-day caregivers of children. Research suggested otherwise, however: shared care of children was becoming the norm in two-parent families and disrupting shared parenting would in fact be more likely to lead to instability in children’s lives.

The second wave of arguments against shared parenting were presented as more concentrated and in-depth rebuttals of the concept, especially in situations where parents disagreed or were in conflict over child care arrangements after divorce. First, it was argued that shared parenting after divorce exacerbates parental conflict, and that children would be drawn into the conflict if shared care arrangements were imposed on families. Shared parenting, therefore, is only suitable for parents with little or no conflict and who get along well as co-parents. Again, research findings challenged this viewpoint: in actuality, an adversarial “winner-take-all” approach to child custody exacerbates parental conflict, leading to adverse consequences for children, whereas conflict is reduced in shared parenting arrangements where neither parent feels marginalized from his or her children’s lives. Further, research demonstrated that children do better in shared care arrangements even if there is conflict between the parents, and that sustaining both relationships is a protective factor for children in high parental conflict situations. Not all conflict is bad for children. Ongoing and unresolved conflict, however, is harmful to children; in such situations, rather than depriving children of a relationship with one parent, interventions to reduce conflict and support child development, such as assisting parallel parenting, therapeutic family mediation, and parenting education programs, were found to be most protective of child well-being. In response, a second critique of shared parenting was then advanced within the “second wave”: in high-conflict families, shared parenting exposes victimized parents and children to family violence and child abuse, and a legal presumption of shared parenting will allow abusive parents to continue their reign of terror in families. This argument, however, misrepresented the position of shared parenting proponents, who made clear that a legal presumption of shared parenting should always be rebuttable in cases of violence and abuse, as in such cases the safety of children and victimized parents is the primary consideration.

The third wave of arguments against shared parenting acknowledged that shared parenting may be beneficial for most children and families of divorce, including those in high conflict, but cautioned against the use of presumptions in family law, arguing that the best interests of children are different in each individual case, and that judges should retain their decision-making authority when it comes to post-divorce living arrangements for children. In response to this viewpoint, it has been pointed out that research on post-divorce outcomes for children and families has now established which living arrangements are most likely to support healthy child development. Without a legal presumption, judges make decisions based on idiosyncratic biases, leading to inconsistency and unpredictability in their judgments. And with two adequate parents, the court really has no basis in either law or psychology for distinguishing one parent as “primary” over the other.

It may be asked, then, after 40 years of debate, whether we have now reached a tipping point, when researchers can conclude with confidence that the best interests of children are commensurate with a legal presumption of shared parenting responsibility after divorce. Summarizing the state of current research in two recent special issues on shared parenting in the Journal of Divorce and Remarriage and the Journal of Child Custody, leading divorce scholar Sanford Braver asserts, “To my mind, we’re over the hump. We’ve reached the watershed. On the basis of this evidence, social scientists can now cautiously recommend presumptive shared parenting to policymakers…shared parenting has enough evidence [that] the burden of proof should now fall to those who oppose it rather than those who promote it.”

References

Kruk, E. (2018). “Arguments Against Presumptive Shared Parenting as the Foundation of Family Law: A Critical Review,”  Journal of Divorce and Remarriage, 59 (5), 388-400.

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