Personal Submission to Family Law Pathways Advisory Group

Email: gprice@menswork.au.com

www.menswork.au.com

Submission to the

Family Law Pathways Advisory Group

October 2000

By

Geoffrey Price

Counsellor and Psychotherapist

Family law mediator

Vice President of the NSW Men’s Health and Wellbeing Association

Co-founder and Group Facilitator of the MENDS program for separated men.

Trainer of mainstream agency Mends group facilitators under the Men and Relationships Initiative.

The values that this submission is based upon are:

The "best interests of the child" is a fair principle
The best interests of a child are served by equality of access for the child to both mother and father
The best interests of a child are served by the presence of female and male exemplars, esp extended families on both sides
That separating partners are responsible for resolving their own conflicts as much as is possible
That separation should be viewed by the separating partners as a difficult situation to negotiate a fair resolution of interpersonal, parenting and property issues, rather than as adversaries with a legal problem with both approaching the situation from a win/lose construct.
That moving to a fairer system is best done by raising the standard of care, and consideration to those in need, not reallocating resources from one gender to another.

What needs to be recognised:

That partners are often unable or not ready to negotiate reasonably while they are still angry, grieving or dissappointed – these unresolved feelings fuel bitterness and legal games
That AVO’s, and perhaps to a lesser extent, allegations of sexual abuse, are commonly falsely used as a legal tactic
The emotional cost to children and adults, and the lost productivity resulting are now an enormous cost to the nation and unless we do something clever will balloon in the future.
That family lawyers often inflame situations and move people away from resolution.
There is a problem so sensitive as to be largely unspoken. That there is an inherent inhibitor to finding easier agreement on shared parenting caused by the attachment of child support payments to the amount of time a child is with a parent. This actually is a disincentive to reaching agreement on shared parenting as parents pursue maximum time in order to receive maximum financial support.
There is an inherent problem with the system –

a family lawyer gains financially by inflaming conflict
a family lawyer must protect him/herself from accusations of not acting in the interest of the client by outlining extreme positions that often orient the client to extreme expectations, move them away from already agreed positions, and make fair and easy resolution more difficult.

Most men (and the families of those men) do not perceive the child residence, access and property outcomes from the system as fair
That parenting plans need to be flexible and change through time as children grow and have different needs to be with a primary carer (mother or father) and more capability to tolerate time away from the primary carer.
That when a couple are in relationship they have a covert or overt agreement as to what roles each adult will play. IE the male may be a full time worker, the female a full time child carer at home. This is fine while the relationship is intact, though when relationships fail many people re-evaluate what is important in their lives. When, for instance, they might decide that the incentives to work so hard are no longer there, or that they would rather spend more time caring for a child face to face, than work. The system needs to acknowledge the parent’s rights to change their lives while still being responsible for the support and care of their children. Additionally it needs to recognise that going out to work is an act of parenting, not some dereliction of duty to a child, and that this should be recognised when considering parenting arrangements.
Patterns existing in the relationship of control, power, manipulation are continued in negotiating a settlement. People often need counselling assistance to recognise and deal with these issues

Preferred Pathway to Finding Parental Agreement:

Information gathering – legal rights and responsibilities – community wisdom and self resolution
Private negotiation, if not successful, then:
Mandatory group work/counselling, in groups of 10-15 (like MENDS), then :
Intensive assisted negotiation (counsellors, mediators), then:
Arbitration determination - self representation (with personal support) to a community panel, (made up of appropriately qualified and trained elders, drawn from the ranks of counsellors, mediators, ex-judges etc) then:
Negotiation between representing lawyers, then :
Family Court determination

Principles to move to:

Beginning assumption that 50/50 shared parenting is the norm starting point
Unbundling, as much as possible, child support payments from residential arrangements so that parenting agreements can be pursued on the basis of the interests of child and both parents, rather than income.
That from the starting point of 50/50 shared parenting individual circumstances and plans are considered in determining family law outcomes
That mothering and fathering are equally valuable for children of both genders, both parents and the community
That reaching agreement is a interpersonal not a legal problem
That both parents have a right to get what they need for a good life
The community as a whole feels that, in general, family breakdown outcomes are fair

Proposed changes:

Where people cannot resolve the matter privately, group counselling (not couple or individual counselling at this stage) becomes mandatory to address emotional blockages, unexpressed feelings and unreasonable beliefs that stand in the way of reaching agreement. Refer to MENDS Program.
If this does not facilitate private resolution then intensive assisted negotiation by a co-gender team of counsellors/mediators that works directly and closely with the couple to find agreement.
Introduce a new pathway option (see above), with an arbitration panel of qualified experts/elders (not necessarily lawyers) which couples can elect to use. People can self represent, strict court rules of evidence do not apply. A common people’s forum. Fair, inexpensive, effective and efficient.
That gaining an AVO becomes more than a matter of deciding it would suit your tactical needs. Perhaps granting one should require some evidence of a history of harm or independent witnesses to the fact that harm may ensue. Needs further exploration of alternatives.
Where a matter does proceed to family lawyers, that the system provide an incentive for efficient resolution.
That where it is shown that lawyers have advised their clients to use an AVO as a legal tactic, this should be grounds for suspension/dismissal from the profession.
The resolution path that is presented to people needs to change its focus from legal to interpersonal, from reliance on experts (lawyers) to reliance on self, with appropriate support available.
Create a web site (see Divorceshop.com.au concept of the writer) that provides the above frame-up and allows access to government and non-government services in all areas. The writer has developed a concept for this and discussions have commenced with the Family Court of Australia. Further consultation with government is welcomed.
That 50/50 shared parenting becomes the assumed starting point for settlement. Factors to be taken into account in varying this are age and stage of development of the child, logistics, and the relationship between the parents.
That parenting agreements be subject to amendment (and easily amended) as the child’s circumstances change as it grows. So as a child becomes more able to be independent from a primary carer, access and residence arrangements may change, so that by infant school age (5 or 6) shared residence parenting may be introduced depending on all the other circumstances and the wishes of the non residential parent.
We need to change people’s assumption that separation is an adversarial matter ending in court to one of expecting to be able to negotiate a solution together, or with help from non-legal professionals. One of the most important steps in this regard is : Separate counselling and mediation services from the Family Court. When they are together perceptions are blurred and unnecessary conflict is invited. See research (Jordan Report as to men’s assumption that Counselling and the Family Court are connected and not male-friendly. The court should be seen, right from the start, as a last resort.
Facilitate gender circle discussion groups between men and women to begin the task of ending the gender war around family breakdown. It is important that this occur, that influential people are involved and that understandings reached are filtered to the whole community.