High-conflict Separation and Divorce: Options for Consideration

2004-FCY-1E

6. FOREIGN JURISDICTIONS CONTINUED

6.2 England

The current law governing the relationship of parents to children during divorce in England is the Children Act 1989, largely brought into force in October 1991 (Children Act 1989, U.K., c. 41). There are no specific provisions relating to high-conflict divorce. The philosophy on which theAct was built was that children are best looked at within a family and without any unnecessary intervention from the court (Sharp, 1998: 424). When the court determines any question relating to the upbringing of a child, the child's welfare is the court's paramount consideration.

When a child's father and mother are married to each other at the time of his or her birth, they each have parental responsibility for the child. If the parents are not married at the time of the child's birth, the mother has parental responsibility for the child, while the father has none unless he acquires it under the Act. He can do this by obtaining a parental responsibility order or by entering into a parental responsibility agreement with the mother. "Parental responsibility" means all the rights, duties, powers, responsibilities and authority which by law a parent has in relation to the child and his property. In any proceedings in which any question about the upbringing of a child arises, the court must have regard to the general principle that any delay in determining the question is likely to prejudice the welfare of the child (Children Act 1989, ss. 1, 2, 3, 4).

The Act does away with the concepts of "custody" and "access." Section 8 of the Act sets out various orders that can be made in family proceedings. These include a contact order (an order requiring the person with whom the child lives to allow the child to visit or stay or otherwise have contact with the person named in the order); a residence order (an order settling the arrangements to be made about the person with whom the child is to live); and a specific issue order (an order giving directions for the purpose of determining a specific question that has arisen or may arise in connection with any aspect of parental responsibility for a child). There is no presumption in favour of or against parental contact with the children. In making a section 8 order, the court considers a range of factors, including the child's physical, emotional and educational needs, the likely effect on the child of any change of circumstances, any harm the child has suffered or is at risk of suffering, and how capable each of the child's parents is in meeting the child's needs. Any parent or guardian of a child may apply to the court in family proceedings for any section 8 order.

When a court is considering making an order under the Act with respect to a child, it must not make the order unless it considers that doing so would be better for the child than making no order at all. In other words, there is a presumption against making an order under the Act. "The object was to avoid the making of unnecessary 'standard' orders, to limit the court to 'positive intervention' and to try [to] promote parental cooperation and agreement" (Sharp, 1998: 425). Subsection 11(7) of the Act provides that a section 8 order may contain directions about how it is to be carried out, may impose conditions that must be complied with by a parent of the child (among others), and may be made for a specified period of time, among other conditions.

A court considering any question relating to a child under the Act may ask a probation officer or some other person selected by a local authority to prepare a welfare report (Children Act 1989, s. 7). Section 16 of the Act allows a judge to make a family assistance order, which directs a probation officer or an officer of a local authority to make him or herself available to advise, assist or befriend anyone named in the order. However, the order can only be made in exceptional circumstances, and it must have the consent of every person named in the order, save for the child. Moreover, it can only have effect for six months or less.

In the context of domestic violence, the Children Act 1989 makes no mention of the term at all. As the recent report to the Lord Chancellor pointed out, when a court welfare officer's report is ordered under section 7 of the Act, the court may order periods of contact supervised by the court welfare officer as part of its decision making process. However, these orders do not provide a mechanism for long-term supervision of contact. The only other mechanism for professional supervision of contact is the section 16 Family Assistance Order, but given the limits on the issuance of these orders, they are of limited use in these situations. However, subsection 11(7) of the Act, discussed above:

... plainly provides the most scope for the protection of parents and children in cases where there has been domestic violence, but contact is nonetheless held to be in the interests of the child. Apart from directions about how a contact order is to be carried into effect (e.g. supervision, neutral handover points), the sub-section is apt for imposing conditions which must be fulfilled before contact takes place (Lord Chancellor's Department, 1999b: 86-88).

The Children Act Subcommittee of the Advisory Board on Family Law recently reported to the Lord Chancellor on the issue of parental contact in cases when there is domestic violence. The report recognized that steps needed to be taken to ensure that the issue of domestic violence, when it arises in contact applications, has been addressed. However, it recommended that, instead of amending the Children Act 1989, guidelines for the judiciary at all levels should set out the approach that the courts should adopt when domestic violence is put forward as a reason for denying or limiting parental contact to children. The guidelines would take the form of a Practice Direction.

The recommended guidelines comprise nine sections. They require the court to give early consideration to allegations of domestic violence. They set out the steps to be taken where the court forms the view that its order is likely to be affected if allegations of domestic violence are proved. They require that, where the court orders a welfare officer's report in a disputed application for contact with the children, the order of the court should contain specific directions to the court welfare officer to address the issue of domestic violence. They set out matters that the court should consider in deciding any question of interim contact with the child pending a full hearing. They set out what findings of fact that the court should make at the final hearing of a contact application in which there are disputed allegations of domestic violence. They set out matters to be considered by the court where findings of domestic violence are made. They set out which matters the court must consider when it orders contact with the child where findings of domestic violence have been made (e.g. should the contact be supervised and, if so, by whom). They state that the court should take steps to inform itself about the facilities available locally to the court to assist parents who have been violent to their partners and/or children and, where appropriate, should impose as a condition of future contact that violent parents avail themselves of those facilities. Finally, they state that in its judgment or reasons the court should always explain how its findings on the issue of domestic violence have influenced its decision on the issue of contact. A tenth section, not part of the formal guidelines, proposes that all courts hearing applications in which domestic violence is alleged should review their facilities at court and should do their best to ensure that there are separate waiting areas for the parties in such cases and that information about the services of Victim Support and other supporting agencies is readily available (Lord Chancellor's Department, 1999b: 6, 54-59).

In addition to the Children Act 1989, certain provisions of the Family Law Act 1996, when proclaimed, will make further changes in the law affecting children. Generally, under Part II of the Family Law Act, an application for a divorce order or a separation order can only be made if the marriage has broken down irretrievably, the requirements of an information meeting have been satisfied, and requirements about the parties' arrangements for the future have been made. A party must make a statement that the marriage has irretrievably broken down, but before the marriage is considered to be broken down, the parties must for a period of generally nine months reflect on whether the marriage can be saved and have an opportunity to effect a reconciliation and consider what arrangements must be made for the future.

Before any party makes a statement that the marriage has broken down, the parties, generally, must attend an information meeting. The information meeting is designed to provide relevant information to the parties about matters arising under Part II and Part III of the Family Law Act 1996, and to give the parties the opportunity of meeting with a marriage counsellor. Regulations governing the information meeting must make provision with respect to, in part, the giving of information about marriage counselling, the importance to be attached to the welfare and wishes of the children, how the parties may acquire a better understanding of the ways that children can be helped to cope with the breakdown of the marriage, protection available against violence, and how to obtain assistance and mediation (Family Law Act 1996 UK, Part II, ss 3, 5(1), 7, 8).

In cases of hardship, the court may order that the marriage not be dissolved. However, the court may only make such an order if satisfied that the dissolution of the marriage would result in substantial financial or other hardship to the other party or to a child of the family, and it would be wrong, in all the circumstances (including the conduct of the parties and the interests of any child of the family) for the marriage to be dissolved (Family Law Act 1996, ss. 10(1), (2)).

The court must consider the welfare of the children in any proceedings for a divorce or separation order. The court must consider if there are any children of the family, and if so, whether, in light of the arrangements being proposed, it should exercise any of its powers with respect to them under the Children Act 1989. When it appears to the court that the circumstances of the case require it to exercise any of its powers under the Children Act 1989, that it is not in a position to exercise the power without giving further consideration to the case, and that there are exceptional circumstances which make it desirable in the interests of the child to give a direction, the court may direct that the divorce or separation order not be made until the court orders otherwise. For the purpose of deciding whether to exercise its powers under the Children Act 1989, the court must consider the welfare of the children as paramount. The court must have regard for a variety of factors. These include the conduct of the parties in relation to the upbringing of the child; the general principle that the welfare of the child is best served by his or her regular contact with those who have parental responsibility; and any risk to the child stemming from where, or with whom, the child is to live. The court may also direct at any time that the parties attend a meeting to obtain mediation (Family Law Act 1996, ss. 11, 13).

A number of information meetings were launched as pilots in order to study their efficacy, before Part II of the Family Law Act 1996 was to be proclaimed. A 1999 summary of research in progress examines the different kinds of information meetings. One of the goals of the Family Law Act 1996 was to protect children's interests by informing parents about the needs children have and about the importance of giving them clear age-appropriate information. An information meeting provided parents with leaflets for and about children. In some pilots a parenting plan was provided for those attending (Walker, 1999: 7). The parenting plan is designed partly to give information about the needs of the children, and partly to provide a pro-forma in which parents can record the arrangements they are making for the children. However, "The Plan is not enforceable by the Court, nor is it formally part of the legal process. Rather, it is a tool for parents" (Walker, 1999: 9). As one commentator stated: "For parents to fill in a parenting plan together, a certain degree of trust, civility and cooperation is required. As one mother pointed out, parents in conflictual relationships were unlikely to use the plan jointly as a negotiating tool" (Richards and Stark, 2000: 487).

Concerning the information meeting in the context of victims of domestic violence, lessons learned from the research included that training of the presenters of information must prepare them for addressing domestic violence as a subject and must promote awareness and sensitivity; women's refuges are suitable venues for such information meetings; and some women should be exempt from attendance because of their inability to go to the meeting without their husband's knowledge (Walker, 1999: 14-15).

In 1999, the Lord Chancellor announced that the implementation of Part II of the Family Law Act 1996 was being delayed, because the interim results of the information meeting pilots had been disappointing. Only 7 percent of those who attended the pilots had been diverted into mediation and 39 percent had reported they were more likely than before to go to a solicitor (Lord Chancellor's Department, 1999a). The Lord Chancellor's Advisory Board on Family Law disapproved of this decision, arguing that fair use had not been made of the findings of the information meetings as a whole (Lord Chancellor's Department, 2000). The government has recently decided to repeal Part II of the Family Law Act because research on the compulsory information meetings that were central to Part II of the Act failed to show that such meetings would be useful on a nationwide basis (Lord Chancellor's Department, 2001).

6.3 Australia

The law governing divorce in Australia is the Family Law Reform Act 1995.Part VII of the Act addresses children. The object of that Part is "to ensure that children receive adequate and proper parenting to help them achieve their full potential, and to ensure that parents fulfill their duties and meet their responsibilities, concerning the care, welfare and development of their children." The principles underlying the Act include that, except where it would be contrary to the best interests of the child, children should have a right of contact, on a regular basis, with both their parents; parents share duties and responsibilities concerning the care, welfare and development of their children; and parents should agree about the future parenting of their children (Family Law Reform Act 1995, No. 167 of 1995 (Cth), s. 60B).

The Family Law Reform Act 1995 provides that each parent of a child has "parental responsibility" for the child, subject to court orders. Parental responsibility means "all the duties, powers, responsibilities and authority, which, by law, parents have in relation to children." A court may issue a parenting order that confers parental responsibility on a person or that may diminish the parental responsibility of any person (Family Law Reform Act 1995, ss. 61C, 61D).

The Act sets up a scheme for providing counselling assistance to parties with children. For example, a parent of a child at any time may seek the counselling facilities of the court. Or the court may order at any time that the parties to the proceedings attend a conference with a family and child counsellor to discuss the care, welfare and development of the child in order to try to resolve differences between the parties on these issues (Family Law Reform Act 1995, ss. 62D, 62E).

The Act also encourages the use of parenting plans. The parents of a child are encouraged to agree about matters concerning the child rather than seeking an order from the court. A parenting plan may deal with the person with whom the child is to live, contact between a child and another person, maintenance of the child, and any other aspect of parental responsibility for the child. There is no specific section relating to parenting plans in the case of high-conflict divorce. The plan may, on application, be registered with the court, provided that the court considers it appropriate to do so in the best interests of the child (Family Law Reform Act 1995, ss. 63B, 63C(2), 63E).

As in England, the Act does away with the terminology of "custody" and "access." Instead, a court may make a parenting order that addresses with whom a child shall live (called a residence order), contact between a child and another person (called a contact order), the maintenance of a child (called a maintenance order), or any other aspect of parental responsibility (called a specific issues order). In proceedings for a parenting order generally, the court must order that the parties attend a conference with a family and child counsellor. A parent must not, contrary to a residence order, remove the child from the care of a person. A parent must not, contrary to the terms of a contact order, hinder or prevent a person and the child from having contact. A parent must not, contrary to the terms of a specific issues order, hinder the person caring for the child pursuant to that order. A court may issue a warrant for the arrest of an alleged offender to enable him or her to be dealt with under section 112AD of the Act for contravening the Act (Family Law Reform Act 1995, ss. 64B, 65F, 65M, 65N, 65Q).

In determining the best interests of the child, the court must consider several factors. These include:

  • any wishes expressed by the child (taking into account the child's maturity);
  • the likely effect of any changes in the child's circumstances (including the likely effect of separation from a parent);
  • the practical difficulty and expense of a child having contact with a parent;
  • the need to protect the child from physical or psychological harm caused by being subjected or exposed to abuse, ill-treatment, violence or other behaviour, whether directed at the child or another person; and
  • any family violence involving the child or a member of the child's family.

There are also provisions to resolve any inconsistencies arising from the issuing of a contact order, in instances when a state or territory has issued a "family violence" order (Family Law Reform Act 1995, s. 68E, Division 11, Family Violence).

Recently, the Australian government amended this Act. The court may now require a person who contravenes an order affecting children to participate in an appropriate post-separation parenting program designed to help resolve conflicts about parenting. It can also make a further parenting order that compensates for contact foregone as a result of the contravention. However, the court is required to take other action against the person if, with regard to the first contravention, the person has behaved in a way that showed a serious disregard for his or her parenting obligations, or if, with subsequent contraventions, it is not appropriate for the person to be dealt with by requiring his or her attendance at a post-separation parenting program (Family Law Amendment Act 2000, No. 143, 2000 (Cth), s. 60C).

The amendments also require those who give advice to people when making a parenting plan (family and child counsellors or mediators and lawyers) to explain in language likely to be readily understood by them, the obligations created by the plan, and the consequences that may follow if either of them fails to comply with any obligation (Family Law Amendment Act 2000, s. 63DA).

The amendments set out a parenting compliance regime in three stages. The first stage applies when a court makes a parenting order. The court has a duty to include in the order particulars of the obligations that the order creates and the consequences that follow if a person contravenes the order. If the person is not represented by a lawyer, the court must explain the availability of programs to help him or her understand their responsibilities under parenting orders. If a lawyer represents the person, the court may request that the lawyer help explain these matters to the person. Any explanation must be given in a manner readily understood by the person to whom the explanation is given (Family Law Amendment Act 2000, s. 65DA).

A person bound by an order (such as a residence order or contact order) who intentionally failed to comply with the order, or made no reasonable attempt to comply with it, is considered to have contravened the order. The amendment, however, allows a long list of reasonable excuses for contravening the order. These include that the person did not understand the obligations imposed by the order, or that the person breached a residence order or contact order in the reasonable belief that it was necessary to protect the health or safety of a person, including the child. The standard of proof is on the balance of probabilities (Family Law Amendment Act 2000, ss. 70NC, 70ND, 70NE).

Under stage two of the parenting compliance regime, a person who, without reasonable excuse, contravenes an order, may be ordered by the court to attend a post-separation parenting program to be assessed for his or her suitability for the program. If shown to be suitable to attend, the court may order him or her to attend the program. The court may also make a further parenting order that compensates for contact foregone as a result of the contravention. The provider of the program has the duty to inform the court if a person is unsuitable to attend a program. The provider must also inform the court if the person fails to attend the program or becomes unsuitable to take part in it. The Attorney-General of Australia is required to publish a yearly list of post-separation parenting programs (Family Law Amendment Act 2000, ss. 70NF, 70NG, 70NH, 70NIB.)

The third stage of the parenting compliance regime applies when, for the first contravention of the order, the court decides that the person has behaved in a way which showed a serious disregard of his or her obligations under the order, or that the person has, without reasonable excuse, contravened the order after the first contravention. The court has a variety of orders it can make. The court may order the person to enter into a bond. The bond may impose conditions, for example, that the person get family and child counselling. If the person has breached a parenting order, the court may vary the order. In making this variance order, the court must, in addition to the best interests of the child, take into account other considerations. For example, the court must consider if the person who contravened the parenting order did so after having attended, after having refused or failed to attend, or after having been found to be unsuitable for taking further part in, a post-separation parenting program. The court may also order a person imprisoned for 12 months or less, or until, during that time, the person complies with the court order. However, before sentencing a person to prison, the court must be satisfied that the contravention cannot be dealt with in any other way (Family Law Amendment Act 2000, ss. 70NJ, 70NM, 70NO).

A recently published three-year research project produced interesting results about the effects of the Family Law Reform Act 1995. There was no evidence to suggest that shared parenting had become a reality for children since the Act came into effect. Most respondents agreed that mothers continue to do the bulk of the care-giving work after separation. While parents were entering into workable and flexible shared-residence arrangements after separation, these arrangements were being reached without legal assistance and without any knowledge of the Act. The reforms had created uncertainty and confusion about the state of the law. While the new terms and concepts remained alien to the vast majority of separating parents, who continued to think in terms of custody and access, some non-resident parents believed the new shared parenting regime provided them with "rights" to be consulted about day-to-day decisions affecting the child. The concept of shared parenting also led some parents, particularly fathers, to believe that the law required the children to live half the time with each parent. These parents tended to respond with anger and frustration when advised that the Act did not require this. In addition, the lack of clarity in the legislation had provided fresh ground for disputes between parents. The research suggested that the reforms had created greater scope for an abusive non-resident parent to harass or interfere in the life of the child's primary caregiver by challenging her decisions and choices. The concept of ongoing parental responsibility had become a new tool of control for abusive non-resident parents. This also meant constant disputes and an endless cycle of court orders (Rhoades et al., 2000: 1-2). A related consequence was an increase in the number and detail of specific issues orders qualifying and quantifying the resident parent's authority and responsibilities. This could create even more areas of possible dispute:

Specific issues orders have now started to become more commonplace than in the early days following the coming into force of the Reform Act, and they tend to be much more detailed and differ in nature from the kind of orders made before the reforms. For example, orders are now used to delegate particular areas of responsibility to parents (for example, who will take the child to sport this week), and are sometimes used to impose standards of caregiving expected of the resident parent (one order reviewed provided that the mother must 'ensure that [the child]'s school clothes are properly laundered'). Previously, comparable orders were used only to regulate long-term matters, such as to ensure that the resident parent forwarded copies of the children's school reports to the non-custodial parent every year (Rhoades et al., 2000: 3).

The report also expressed concerns that the safety of children has been compromised. For example, when domestic violence was alleged, there was a trend away from suspending contact at interim hearings as the way of ensuring the child's safety until trial, and towards the use of neutral hand-over arrangements as the preferred protective mechanism. The most common response in the post-Family Law Reform Act judgements to allegations of violence was to order unsupervised contact between the father and child using, for example, a collection point that did not require face-to-face contact between the parties. Supervised contact was used as a safety mechanism far less frequently than a neutral hand-over point. The post-Family Law Reform Act cases using supervised contact involved more serious levels of violence than those instances when supervision was ordered prior to the reforms. The research demonstrated that, unlike the situation before the Family Law Reform Act 1995, residence orders giving each parent equal time with the children were being made in contested proceedings and in circumstances where there was a high level of conflict between the parties. One of the most significant findings of the research was the large increase in numbers of contravention applications brought by non-resident parents alleging breaches of contact orders. Many of these applications were without merit and were pursued as a way of harassing or challenging the resident parent (Rhoades et al., 2000: 6-9). Finally, interviews with parents suggested that unsafe contact orders were being made by consent:

Most of the parents we interviewed as part of this research had expressed concerns about domestic violence when their contact arrangements were made. We found that many women had agreed to contact arrangements that did not provide them with the level of protection they had wanted. Either they had felt coerced into agreeing to the arrangements by their lawyer (who in turn had advised them about the 'usual' approach of the Court at interim hearings to allegations about the father's violence), or they had believed that there was no other option the father would agree to and they had no resources or were unwilling to 'fight'. Many had agreed to unsupervised contact on alternate weekends with a neutral hand-over arrangement, although they had wanted supervised contact (Rhoades et al., 2000: 10).

The Family Court of Australia has recourse to in-house services for the resolution of disputes through mediation, conciliation and litigation methods. The Family Court has created case management guidelines to manage the flow of cases through the Court. There are three different management tracks: the Direct Track, the Standard Track and the Complex Track. The Direct Track is the procedural path for matters in which the issues in dispute are narrow, and for which the estimated hearing time is not more than one day. The Complex Track is for matters involving complicated issues of fact, law and evidence, in which the hearing will take six days or more. The Standard Track is for matters not meeting the criteria of the Direct or Complex Track (Family Court of Australia, 1997a).

Browne (1997), Principal Director of Court Counselling in the Family Court of Australia, pointed out that the Court strives for the timely application of alternative dispute resolution techniques to meet the needs of clients. Discussing Johnston's three levels of impasse in high-conflict divorce cases (internal, interactional and external levels), she argued that for the majority of cases the impasse could be overcome or prevented by dealing with the problem early. "Indeed, the resolution rates in the Family Court of Australia in relation to voluntary conciliation counselling and mediation and early court ordered conciliation counselling support the value of early intervention with agreement on at least one substantial issue being 73 to 74 percent." However, she recognized that in high-conflict cases different strategies are required:

These difficult cases require different strategies. These may involve group processes, a clinical management plan involving more than one counsellor or mediator and perhaps the involvement of extended family members and children. For the successful clinical management of these cases, it is essential that the reason for the impasse be diagnosed, as the type of intervention will vary accordingly. The other necessary feature in managing these cases is the early detection and diversion of potentially complex matters for the appropriate clinical intervention (Browne, 1997: 5-7).

In 1999-2000, the Court's case management continued to emphasize conciliation through primary dispute resolution. Only about 20 percent of matters filed proceeded to the litigation stage; the remaining 80 percent were resolved through primary dispute resolution (Family Court of Australia, 2000a: 23).

Since January 1, 2000, the Family Court of Australia calls its primary dispute resolution services "mediation" services, instead of "conciliation" and "counselling". This change was introduced to reduce the confusion for clients accessing the Court's primary dispute resolution services. The Court is also introducing a streamlined assessment of cases in terms of their suitability for the various types of mediation it delivers. A major characteristic will be individual assessment and monitoring of cases. Those involving child abuse allegations will be managed to ensure liaison with relevant state welfare departments, with coordinated input from various professionals (Family Court of Australia, 2000a: 8-9).

The Court's Future Directions Report recognized that the effective management of cases has required the identification of those matters that will best benefit from, or will require a particular type of, intervention, including judicial determination. It proposed changes to the case management system for expediting the process, such as a record kept by court staff, a Case Summary that would ultimately provide a record of agreed facts and identify contested facts by the trial judge, and that, when possible, would permit the same court professionals to deal with a particular issue. The report proposed reforms to reduce partisanship in the giving of expert evidence. It also proposed reforms to ensure greater compliance of orders for the preparation of trial. For example, trial dates would not be allocated unless there was compliance, so that no longer would the cost of expensive trial time be at risk if one of the parties failed to comply with orders for preparation for trial. The report also recognized that many families would benefit from ongoing assistance in the implementation of orders after the court proceedings ended, particularly in some chaotic families, and recommended the creation of a working party to consider the ways in which these families can be assisted in their ongoing parenting and in their compliance with court orders (Nicholson, 2000).

Most recently, the Government of Australia in May 2000, announced the creation of the Family Law Pathways Advisory Group, a high-level advisory group whose role is to assist the government in its efforts to maximize positive outcomes for families navigating pathways through the family law system. To frame its report to the government, this Group was seeking submissions on, among other things, how to help families minimize conflict. In July, 2001, the Family Law Pathways Advisory Group published a major report entitled, Out of the Maze: Pathways to the Future for Families Experiencing Separation. By its terms of reference, the Group was to hold to a vision of an integrated family law system that is flexible and builds individual and community capacity to achieve the best possible outcomes for families. It was required, in part, to formulate a set of recommendations on how to provide stronger and clearer pathways to early assistance to ensure people facing relationship breakdown are directed to services most suitable to their needs. It was also required to help families minimize conflict, manage change more successfully, and meet new obligations and commitments. The report envisaged an integrated family law system in which family members experiencing separation could easily and quickly identify and access help when needed. The system's primary focus would be to support family decision making and family nurturing. Such a system would be responsive and coordinated. It would provide appropriate assistance to family members as early as possible. It would treat all comers fairly (Family Law Pathways Advisory Group, 2001).

The report saw this integrated family law system as having five key functions: education for the community and professionals; accessible information; appropriate assessment and referral at all entry points to the system; service and intervention options to help family decision-making; and ongoing support. These functions would sustain three types of pathways for families: self-help pathways; supported pathways; and litigation pathways. Families would move along a chosen pathway. The self-helppathway would suit parents who have a relationship that allows them to make decisions about parenting with minimal or no outside help. Parents on this pathway would need access to information about how to put their children first, how to share their parenting responsibilities and how to make their own decisions. The supported pathway would be needed by parents who are likely to experience difficulties but may, with appropriate support, manage their separation and parenting responsibilities. Parents on this pathway would be provided information about the system at the first point of contact and would be followed up by information and advice specific to the particular family. The objective-to engage both parents in non-adversarial decision making-may require a series of interventions addressing their relationship and parenting capacity before the parents are able to make an agreement. They might also use specific services, such as parenting education focusing on the children's experience of separation and mediation. Litigation should used as a last resort. The litigation pathway may be the appropriate pathway for parents who are not able to reach agreement at all, and for families where a quick resolution on issues of violence, child abuse or abduction is needed. For the relatively small group of separated parents who experience high–level conflict and have a very low capacity to manage their parenting responsibilities, the litigation pathway may be the most appropriate match.

In addition to information, parents on the litigation pathway may need legal advice, access to support services for some issues, legal representation, and support in negotiating legal and, particularly, court–related processes. For these families, the conflict is so entrenched that no amount of information or supportive intervention will bring partners to a result agreeable to both. The litigation pathway should be speedy. Delay in reaching a determination may only heighten the conflict and make more difficult their chances of moving into a manageable, if not cooperative, ongoing parenting relationship after the decision has been handed down. Ongoing support should be available after the final order is made, given that at least one of the parents involved may not support the determination. This is even more important if they have truly explored primary dispute resolution options without success. There is no value in referring these matters for further alternative interventions because a quick determination of the issues in dispute is needed (Family Law Pathways Advisory Group, 2001).

This report made 28 recommendations. These include:

  • That a long–term community education campaign, with clear core messages and promoting the principles that underpin the family law system, be developed that would focus on the interests and needs of children and would reinforce post–separation parenting responsibilities (including flexible parenting models that work).
  • That a national education package for schools, consistent with national education goals, be designed, to develop individuals' capacities for healthy relationships, provide information about positive parenting models and demonstrate that it is "OK" to look for help when difficulties arise.
  • That all professionals and key staff working in the family law system adopt a multidisciplinary approach to resolving issues for families, and that priority be given to a number of strategies to support such a holistic approach. This includes developing a national code of conduct for lawyers practising in family law to reflect the principles outlined in the report. The code would include a commitment to actively promote non–adversarial dispute resolution and other good practices; maintenance of multidisciplinary education for family law judges and magistrates; development of a quality accreditation mechanism for all family and child mediators and counsellors; and adoption of a multicultural perspective by all professionals and key staff working with members of culturally and linguistically diverse communities, and indigenous communities.
  • That coordinated, national, system–wide information is available to families experiencing separation and service providers, which describe the family law system and available services, and which contain key messages and information about pathways, be developed and maintained.
  • That an appropriate template for first point of contact assessment be developed and implemented nationally to match the family with the most appropriate set of services to resolve difficult or outstanding issues. The template should have certain core features, be simple and easy for service providers and clients to use, allow customization for local applicability, and be based on agreed indicators and demographic information, including screening for violence and the possible need for child protection.
  • That access to services for high–need groups be expanded, including services that specifically support children in separating families; services for men, specifically services that help them effectively co-parent their children after separation; services which support the capacity of vulnerable and disadvantaged people to access non–adversarial approaches; services for families experiencing family violence; services to support people with mental health problems; and services which meet the needs of indigenous Australians.
  • That legal aid services be encouraged to continuously improve primary dispute resolution services, including family law conferencing; and that increased legal aid funding be provided to improve equity of access in high–need areas, that is: early intervention; domestic violence proceedings; family law disputes in which there are allegations of child abuse; and enforcement of contact orders.
  • That innovative practices and service delivery models be further developed where necessary and made available nationally, including child–inclusive practices in family relationship services; flexible models for community–based mediation/conciliation/counselling services; children's contact services; mediation-arbitration models; multiservice assistance to self–represented litigants at all courts exercising family law jurisdiction, and indigenous family conferencing models.
  • That the role of the non–government sector in the provision of high–quality personal counselling be increased and ensure that counselling support is available at key points in families' contact with the system where emotional distress and the risk of conflict may be greatest.
  • That responses to family violence be managed in accordance with the following principles: the safety of children and adults is paramount; where there is a dispute about an apprehended violence order, it should be resolved quickly and fairly; both applicant and respondent should have reasonable and timely access to legal assistance; and where there are children, parenting issues should generally be dealt with at the same time as the apprehended violence process.
  • That nationally consistent protocols, supported by nationally consistent training about family violence and family breakdown issues, be introduced for practitioners (for example police, lawyers, court support, counsellors). When developing these for the indigenous community, specific cultural perspectives on family and community violence need to be considered, in line with the proposals and framework developed by the Ministerial Council on Aboriginal and Torres Strait Islander Affairs in September 1999.
  • That, in cases of family violence and child abuse, where primary dispute resolution is not appropriate, processes be developed to expedite access to a court determination.
  • That the development of clearly defined roles for, and responsibilities of, child representatives be given urgent priority, with adequate funding allocated to support implementation (Family Law Pathways Advisory Group, 2001).

6.4 New Zealand

The Act governing the custody of children in New Zealand is the Guardianship Act, 1988.An old statute, it contains no provisions relating to high-conflict divorce, save for provisions relating to domestic violence. "Custody" is defined as the right to possession and care of a child. "Guardianship" is defined as meaning the custody of a child and includes the right of control over the upbringing of the child. Generally, the father and mother of a child are each a guardian of the child. When there are disputes between them concerning the exercise of their guardianship, they can apply to the court for its direction, and the court may make any such order relating to the matter that it thinks proper. A child of, or over the age of, 16 years who is affected by a decision or a refusal of consent by a parent or guardian in an important matter may apply to a Family Court Judge, who may review the decision or refusal and make such an order as he or she thinks fit (Guardianship Act, 1988, Statutes of New Zealand, as amended, ss. 3,6, 13, 14).

On making an order of custody about a child, the court may, as it thinks fit, make such an order with respect to the access to the child by a parent who does not have custody of the child. A parent who does not have custody of the child may apply to the court for an order granting him or her access to the child. The court may also order that other relatives have access in certain circumstances. The court also may, on application by any person affected by the order of custody or access or upbringing of the child, vary or discharge the order. A person who hinders or prevents access to a child by a person who is entitled under a court order to access to the child is guilty of a summary conviction offence. An order with respect to the custody of a child of or over the age of 16 years cannot be made unless there are special circumstances (Guardianship Act 1988, ss. 15, 16, 17, 20A, 24).

When it is alleged that a party to the proceedings has used violence against the child or a child of the family or against the other party to the proceedings, the court must, as soon as practicable, on the basis of the evidence presented before it, determine if the allegation of violence is proved. Where the court is satisfied that a party in the proceedings has used violence against the child, or the other party to the proceedings, the court must not make an order giving the violent person custody of the child, or make an order allowing the violent person access, other than supervised access, unless the court is satisfied that the child will be safe while the violent party has custody of, or access to, the child. In making the determination about the safety of the child, the court must consider several factors. These include the nature and seriousness of the violence, how recently the violence occurred, the frequency of the violence, the likelihood of further violence occurring, the physical or emotional harm caused to the child by the violence, the wishes of the child having regard to the age and maturity of the child, and any steps taken by the violent party to prevent further violence. If the court cannot determine that the allegation of violence is proved, but is satisfied that there is a real risk to the safety of the child, the court may make such an order as it thinks fit to protect the safety of the child. "Supervised access" is defined in the legislation (Guardianship Act 1988, ss. 16B, 16A).

A judge who has reason to believe that any person is about to take a child out of New Zealand with intent to defeat the claim of any person who has applied for or is about to apply for custody of or access to the child, or to prevent any order of the court as to custody or access from being complied with, may issue a warrant directing any constable or social worker to take the child. The judge may also order that the travel documents of the child or of the person believed to be about to take the child out of New Zealand, be surrendered to the court. A person who takes or attempts to take a child out of New Zealand, knowing that proceedings are pending or about to be commenced under the Guardianship Act, or with intent to prevent an order concerning custody or access from being complied with, is guilty of a summary conviction offence. However, it does not constitute a contempt of court (Guardianship Act 1988, s. 20).

The New Zealand government is in the process of reviewing the laws about guardianship, custody and access. In a recent discussion paper, Responsibilities for Children, Especially When Parents Part, the government stated that its goals for child and family policy included enhancing the well-being of children, supporting parents in carrying out their responsibilities to their children, and providing a policy and legal framework to facilitate the range of ways in which parents and others carry out their responsibilities to their children. The discussion paper asks several questions, such as: should the terms "guardianship", "custody" and "access" be replaced in law by a broader range of orders for the courts to consider? Should the law reflect a more consensual approach to custody and access? Should the law encourage an emphasis on the ongoing responsibilities of both parents? How else can parents be encouraged to take greater responsibility for their children? For example, it asks for views on the use of "parenting plans," based on agreements between the parties and sanctioned by the court. Submissions to the government about its discussion paper had to be submitted by November 30, 2000 (New Zealand, 2000).

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