Families, policy and the law

Selected essays on contemporary issues for Australia
Collection – May 2014

Contents

23. Post-separation parenting arrangements involving minimal time with one parent

By Rae Kaspiew, John De Maio, Lixia Qu and Julie Deblaquiere

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In light of the longstanding policy aim of supporting parents to maintain contact with children after separation (see, for example, Parkinson, 2011), and strong social support for this notion (Kaspiew et al., 2009), the extent to which these principles are reflected in parenting arrangements is a question of significant interest. This chapter examines recent empirical evidence on post-separation parenting arrangements, with a particular focus on arrangements where children have little or no contact with one parent. It has been found, for example, that up to a quarter of children whose parents are separated rarely or never see their fathers (Australian Bureau of Statistics [ABS], 2011).1

The discussion in this chapter is based on data derived from three different sources: (a) a near-nationally representative sample of separated parents;2 (b) samples of families who used publicly funded, community-based family dispute resolution (FDR) services;3 and (c) Family Law Court files on court outcomes.4 The discussion illustrates the patterns evident among a sample of separated parents - minorities of whom used formal assistance in making arrangements - compared with more specific samples of families using family dispute resolution and courts. It demonstrates that a range of factors is linked with circumstances in which fathers have little or no contact with children, but that contact with services and courts is supportive of maintaining, and in some circumstances, increasing fathers' involvement with their children.

Broader context

Recent data confirm that the longstanding trend for substantial minorities of children to have rare or no contact with their fathers (Kaspiew et al., 2009) shows little sign of change. According to the Family Characteristics Survey 2009-10 by the ABS (2011), one in five children under 18 years had a parent living elsewhere, with about one-quarter seeing the parent living elsewhere less than once a year or never.5 When children rarely or never saw the parent living elsewhere, that parent in the majority of cases was the father. Analyses based on the Longitudinal Study of Australian Children (LSAC) reveal similar patterns, indicating nearly a quarter (23%) of children with separated parents had minimal contact with their father (i.e., once a year or not at all) at age 10-11, in 2010 (Renda, 2013).6

The 2006 amendments to the Family Law Act 1975 (Cth) were intended to provide increased legislative support for children to maintain a relationship with both parents after separation (Kaspiew et al., 2009).7 In addition to the presumption in favour of equal shared parental responsibility (see further below), the amendments introduced provisions recognising that the children's right to a meaningful relationship with each parent and their need to be protected from harm from abuse or family violence are integral elements of best interests outcomes (s 60B(10(a)-(b)), s 60CC(2)). Much has subsequently been written about the tension between these two principles (see, for example, Chisholm, 2009), and legislative amendments that became effective in mid-2012 specified, among other things, that the protection-from-harm principle should be given greater weight in circumstances where a conflict arises with the meaningful-involvement principle.8 The research findings discussed in this chapter pertain to the family law environment prior to the 2012 amendments.

Characteristics of families where children spend little or no time with the father

The main characteristics of families where children rarely or never see non-resident fathers may be understood on the basis of findings from the LSSF.9 In LSSF Wave 1, 11% of the focus children were reported to have no contact with their father, and 23% saw their father during the daytime only (Table 1).10 One-third of the children never stayed overnight with their father. By contrast, only 2% of children never stayed overnight with their mother, comprising 1% who never saw their mother and 1% who saw their mother during the daytime only. The most common care-time arrangement was children being in the care of their mother for 66-99% of nights. Forty-five per cent of children stayed overnight with their mother most nights (i.e., 66-99% of nights), while only 3% of children stayed with their father most nights. Overall, 16% of children had a shared care-time arrangement (35-65% of nights).

Table 1: Care-time arrangements of study child, Wave 1 (2008)
Proportion of nights per year with each parent %
Father never sees child 11.1
Father sees child in daytime only 22.5
66-99% with mother (1-13% with father) 45.1
Shared care time (35-65% with each parent) 16.1
1-13% with mother (66-99% with father) 3.0
Mother sees child in daytime only 1.3
Mother never sees child 1.0
Total 100.0

Notes: Based on analysis of focus child's care-time arrangements. Where both parents participated in the survey, only one parent's response in relation to care time was used (selected randomly).

The characteristics of parents and children differed depending on whether children had no face-to-face time with the father or whether they spent some time (daytime only or overnights) with the father. Children who never saw their father were younger than the other children. In Wave 1, 59% of children who never saw the father were under 3 years, compared with 39% of children aged 3 years or over. Parents whose child never saw the father were younger than other parents. Around 30% of mothers whose child never saw the father were under 25 years, while under 20% of the other mothers were this age. Mothers whose child never saw their fathers were also less likely to have been married to the father: 35% compared with just over one-half of the other mothers. Furthermore, parents whose child never saw the father lived farther apart from each other compared with those of other children (data not shown). Consistent with other research (e.g., Cheadle, Amato, & King, 2010), these findings suggest that no face-to-face contact between father and child limits the time available for fathers to develop a bond with and commitment to their child.

Further findings indicate that arrangements where children rarely or never see fathers are linked with complex personal dynamics, conflict or family violence. Mothers whose children never saw the father were more likely than other parents to report:

  • lots of conflict or fearful relationship with the other parent;
  • experiencing physical hurt and/or emotional abuse before or during separation; and
  • having issues such as mental health problems or substance abuse before separation.

The LSSF Wave 2 data suggest a slight increase in children with arrangements involving little or no contact with their fathers from Wave 1 to Wave 2 (an average of 28 months after separation). Interpretation of the data on this point is complex, since mothers' and fathers' reports differed somewhat. Among fathers who participated in both waves, 8% in Wave 1 reported they never saw the child. Just under 8% in Wave 2 reported having no time at all with the child. On the other hand, of mothers who participated in both waves, 14% in Wave 1 reported that their children had no time with the father, while this percentage increased to 16% in Wave 2.

Analysis also suggests that changing from having time to no time with the father or vice versa is associated with the factors such as children's age, distance between the two homes, and the quality of interparental relationships. Patterns for children aged 3-11 years were more likely to change from having no time to having time with their fathers, compared with younger and older children. Teenagers (aged 12-17 years) were more likely than younger children to drift towards having no time with their fathers. The longer the distance between the two homes, the more likely was there to be a change from having time to having no time and the less likely was change in the opposite direction. Interparental relationships characterised as having lots of conflict or being fearful were associated with a higher likelihood of change from having time to having no time, compared with circumstances where parents described their relationships as friendly, cooperative or distant. In addition, for some children, there was a gradual drift from having little time with their father to having no time.

Using FDR to make parenting arrangements

The use of family dispute resolution services to make parenting arrangements is not uncommon among separated families. Between a quarter and a third of parents in the LSSF Wave 1 indicated they had attempted family dispute resolution or mediation for parenting arrangements, and 7% and 14% respectively of parents who had reached parenting arrangements or were in the process of doing so reported that this was the main pathway for making parenting arrangements (Kaspiew et al., 2009). However, empirical evidence emanating directly from FDR services on parenting arrangements made in this way is rarely available. Data from an evaluation of a pilot program of Coordinated Family Dispute Resolution (CFDR) in cases where there has been a history of family violence goes some way toward filling this gap (Kaspiew et al., 2012; see also Chapter 22 in this volume). The aim of the pilot was to provide family dispute resolution services where both the process and the outcome safeguarded the safety of the child and the parent who was the target of family violence.

The evaluation of the CFDR pilot, conducted by AIFS, incorporated data from 126 cases handled in the pilot, along with a sample of comparison group cases (n = 247) that were dealt with within "standard" family dispute resolution processes.11 The discussion describing parenting arrangements is based on the number of children (rather than cases) for whom arrangements were determined in the pilot (51 children in 27 cases) and comparison groups (38 children in 100 cases). The cases in each of these samples were those judged by family dispute resolution professionals to be eligible for handling in the pilot because one or both parties disclosed a history of family violence. Risk management was centralised in the pilot process, with each party having a support worker experienced in family violence, access to legal advice and intensive preparation for the family dispute resolution process.

As the core findings from the CFDR evaluation show, a significant proportion of the cases in which parents approached family dispute resolution did not proceed through the process to an agreed outcome. There are several reasons for this, but the refusal of one party to engage with the process, or to maintain engagement, is the most significant (Kaspiew et al., 2012). The majority of both CFDR pilot and comparison group cases involved histories of family violence and concerns about child safety, with more indicators of severity present in the pilot group. Concerns about child safety were more markedly present in relation to fathers in both groups. Mental health issues and substance abuse issues with one or more family members were present in just over half of the CFDR pilot cases and in more than one-third of the comparison group cases.

The patterns evident among the LSSF samples show that more children were in parenting arrangements that allowed for time with their fathers at the conclusion of the dispute resolution process (Table 2). Prior to the process, just over a fifth of both samples (23% of pilot children and 21% comparison children) were in arrangements where the children never spent time with their father, but after the process only very small proportions of children in either group (pilot: 4%; comparison: 1%) never had time with their father. Shared care arrangements increased by almost ten percentage points among comparison group children (12% to 22%), but there was little change among pilot group children.

Table 2: Children's parenting time arrangements before and after services received, CFDR pilot and comparison groups
Child's parenting time arrangement Before services After services
CFDR pilot group Comparison group CFDR pilot group Comparison group
% N % N % N % N
All time with mother, no time with father 23.3 57 20.6 93 3.9 2 0.7 1
Most time with mother (at least 66% of time) 54.3 133 53.4 241 54.9 28 62.3 86
Shared care (35-65% with each parent) 8.6 21 12.2 55 9.8 5 21.7 30
Most time with father (at least 66% of time) 7.8 19 8.0 36 5.9 3 8.0 11
All time with father, no time with mother 2.5 6 5.1 23 - - - -
Not in agreement a N/A N/A N/A N/A - - 7.3 10
Missing 3.7 9 0.7 3 25.5 13 - -
Total 100.0 245 100.0 451 100.0 51 100.0 138

Notes: Percentages may not total exactly 100% due to rounding. a "Not in agreement" means that parents did not agree to parenting time arrangements as part of the mediation process.

Source: Kaspiew et al. (2012), Tables 3.11 and 4.29

The data for both the CFDR pilot and comparison groups were further analysed by whether mental health or substance abuse issues were present, and by whether parents were an alleged perpetrator or had allegedly experienced family violence. Although sample sizes are small, a few tentative observations can be made regarding the comparison group: where there was a drug or alcohol issue with one or more family members, an agreed shared care arrangement was less likely to occur (14% cf. 28% for families without such issues). The majority of alleged perpetrators of family violence were male and in these cases two-thirds of children spent most or all time with their mothers, one-quarter were in shared care and it was rare that children spent most time with their fathers after the process. A similar analysis of the CFDR sample was not possible due to small sample sizes.

Parenting arrangements: Court outcomes

Small proportions of parents resort to the courts for the determination of their parenting arrangements, with about 11% of the LSSF Wave 2 sample nominating court as the main pathway for developing or revising parenting arrangements (Qu & Weston, 2010). Research evidence shows that the majority of matters determined either by consent after court proceedings have been initiated or by judicial determination involve allegations of family violence and/or child abuse (see, for example, Kaspiew et al., 2009; Moloney et al., 2007). Court-based parenting outcomes may have two core aspects: orders relating to parental responsibility (these may not always be made if they are not sought), and orders relating to how much time the child spends with each parent (depending on the orders sought in the applications made by the parents, court determinations may or may not specify precisely how the child's time is allocated). The 2006 amendments made an explicit link in Part VII of the Family Law Act 1975 (Cth) between parental responsibility and parental time. These amendments introduced a presumption in favour of equal shared parental responsibility, although this is not applicable in cases involving concerns about family violence and child abuse, and is rebuttable on the basis of evidence to convince a court its application would be contrary to the best interests of the child (FLA s 61DA). Where orders for equal parental responsibility are made pursuant to the presumption, courts are obliged to consider making orders for the child to spend equal or substantial and significant time with each parent where this is found to be reasonably practicable and in the best interests of the child (FLA s 65DAA).12

Analysis of data derived from court files established that orders severing parental responsibility or providing for no or severely limited contact with one parent were comparatively uncommon both before and after the 2006 reforms (the discussion here focuses on post-reform findings).13 The court files highlighted that shared parental responsibility was the most common parental responsibility order, with 87% of children in the sample of all three file types having this arrangement (Table 3).14 Even in the numerically small class of cases most likely to involve allegations of family violence or concerns about child safety - those determined by judges - a majority (56%) of outcomes provided for shared parental responsibility.

Table 3: Parental responsibility outcomes, by type of case, post-1 July 2006
Outcomes for children Judicial determination (%) Consent after proceedings (%) Pure consent (%) All cases (%)
Shared parental responsibility 56.1 89.7 92.2 86.5
Sole responsibility to mother 28.2 6.8 3.8 8.2
Sole responsibility to father 6.2 1.3 0.4 1.6
Other 9.4 2.1 3.6 3.6
Total 100.0 100.0 100.0 100.0
No. of children 222 594 525 1,341

Notes: The shared parental responsibility category includes a small number of cases where there was shared parental responsibility with exceptions (less than 1%). The "other" category includes sole responsibility to maternal grandparent(s), to paternal grandparent(s) or to other relatives, along with a small proportion of orders for both mother and father. The sample was restricted to cases in which a parental responsibility was applicable and the outcome was recorded on the file. Weighted percentages. Percentages may not total exactly 100% due to rounding.

The file analysis also provided important insights into the patterns of care-time arrangements for court matters finalised after 1 July 2006.15 The findings establish that in cases where time with each parent was specified, the most common arrangement was for children to live with their mother and spend 14-34% of time with their father (45% of children). Around one-fifth of children (21%) lived with their mother and spent 0-13% of time with their father. A similar proportion (23%) were in shared care arrangements (35-65% of time with each parent). Very few children lived with their father and spent either 0-13% or 13-34% of time with their mother (3% and 8% respectively).16Table 4 provides a detailed description of patterns in orders for the allocation of children's time between parents, broken down by file type. Where the time allocation between parents was specified in the orders, fewer judicial determination files (8%) provided for 0-13% of time to be spent with fathers than either consent after proceedings (16%) or pure consent (13%) files.

Table 4: Care-time arrangements for children subject to proceedings with final arrangements, post-1 July 2006
  Judicial determination (%) Consent after proceedings (%) Pure consent (%) All cases (%)
Live with mother (0-13% with father) 7.5 15.6 13.1 13.3
Live with mother (14-34% with father) 10.2 27.1 34.3 27.8
Live with father (0-13% with mother) 3.7 0.6 2.9 2.1
Live with father (14-34% with mother) 3.1 5.1 5.1 4.8
Shared-care (35-65% with each parent) 12.6 16.5 12.6 14.2
Live with mother - time as agreed with father 26.0 27.6 20.8 24.4
Live with father - time as agreed with mother 10.5 3.0 3.4 4.3
Live with mother - no info on time with father 25.1 3.8 6.4 8.0
Live with father - no info on time with mother 1.2 0.7 1.4 1.1
Total 100.0 100.0 100.0 100.0
No. of participants 253 541 622 1,416

Notes: Care-time arrangements are based on arrangements in last order or judgment on file. A small number of children were excluded for whom information on who they were living with was missing or who lived with someone other than their mother or father, and who were living with either their mother or father but who had contact hours with a person other than a parent (such as a grandparent). Weighted percentages. Percentages may not total exactly 100% due to rounding.

Further analysis of data relating to family violence and child abuse allegations showed that care-time arrangements where children spent little time with one parent were particularly associated with complex cases.17 In cases where there was an allegation of child abuse,18 25% of children lived with their mother and spent 0-13% of time with their father, and 7% lived with their father and spent 0-13% of time with their mother. Where there was an allegation of family violence, 24% of children spent 0-13% with their father and 6% spent 0-13% with their mother. In contrast, in cases where there was no allegation of family violence or child abuse, the proportion of children in care-time arrangements providing for little or no time with one parent was lower, with 17% of children spending 0-13% of time with their father and 3% spending 0-13% of time with their mother (data not shown).

Conclusion

An emerging focus of discussion and debate concerns circumstances where, in Professor Patrick Parkinson's words (2011), the family law system tries "too hard to keep alive relationships that are not sufficiently healthy to survive without intensive care" (p. 149). This chapter has made an empirical contribution to this discussion by bringing together insights from different datasets that establish what patterns are evident in relation to situations where little or no contact occurs between children and one parent after separation. Given the different samples and definitions applied in each of the source studies, the conclusions drawn on the basis of this analysis are tentative. However, in bringing these insights together in this way, some influences on the question of whether children maintain contact with their fathers after separation have been illuminated, albeit in an exploratory fashion.

Around a quarter of children from representative populations of children in separated families have little or no contact with their fathers (ABS, 2011; Renda, 2013). In the LSSF population, the factors associated with this pattern suggest a lack of opportunities for paternal investment in the father-child relationship, as well as mental illness and factors linked with family dysfunction, such as family violence, safety concerns and substance misuse. These findings suggest considerable heterogeneity in the circumstances in which little or no contact occurs.

An important point arising from the parenting arrangements evident in the datasets generated through contact with the formal parts of the family law system (CFDR and the Legislation and Courts Project) is that although these client groups manifest the characteristics of family dysfunction, completion of family dispute resolution processes is likely to result in an average increase in the amount of father-child contact that occurs and a reduction in the extent to which patterns involving little or no contact occurs. Considering the specific sub-group of court users whose matters were determined by consent after the initiation of proceedings or judicial determination, it is evident that a minority of outcomes involved curtailing parent-child, and more specifically father-child, relationships through court orders for no or restricted parental responsibility and time. In both the CFDR and the Legislation and Courts Project datasets, the findings indicate that relationships are curtailed or restricted only when the most severe elements of dysfunction are evident.

On the basis of this analysis, it is evident that outcomes involving no or restricted involvement between fathers and children are not a common consequence of engagement with family law system services, and that the maintenance (and/or increase) of father-child contact most frequently results from such engagement, even when family dysfunction is present. A range of implications requiring further consideration arises from this. These include the extent to which service engagement addresses the underlying causes of dysfunction and equips the parents and children involved to manage their relationships into the future. A related question is whether the parenting arrangements made in such circumstances are sustained over the medium to long term and how the family members involved fare in these arrangements.

References

  • Australian Bureau of Statistics. (2011). Family characteristics, Australia, 2009-10 (Cat. No. 4442.0). Canberra: ABS.
  • Cheadle, J., Amato, P., & King, V. (2010). Patterns of nonresident father contact. Demography, 47(1), 205-225.
  • Chisholm, R. (2009). Family courts violence review. Canberra: Attorney General's Department.
  • Kaspiew, R., De Maio, J., Deblaquiere, J., & Horsfall, B. (2012). Evaluation of a pilot of legally assisted and supported family dispute resolution in family violence cases. Canberra: Attorney-General's Department.
  • Kaspiew, R., Gray, M., Weston, R., Moloney, L., Hand, K., Qu, L., & the Family Law Evaluation Team. (2009). Evaluation of the 2006 family law reforms. Melbourne: Australian Institute of Family Studies.
  • Moloney, L., Smyth, B., Weston, R., Richardson, N., Qu, L., & Gray, M. (2007). Allegations of family violence and child abuse in family law children's proceedings: A pre-reform exploratory study (Research Report No. 15). Melbourne: Australian Institute of Family Studies.
  • Parkinson, P. (2011). Family law and the indissolubility of parenthood. New York: Cambridge University Press.
  • Qu, L., & Weston, R. (2010). Parenting dynamics after separation: A follow-up study of parents who separated after the 2006 family law reforms. Canberra: Attorney-General's Department.
  • Renda, J. (2013). Is it just a matter of time? How relationships between children and their separated parents differ by care-time arrangements. In Australian Institute of Family Studies, The Longitudinal Study of Australian Children: Annual statistical report 2012. Melbourne: AIFS.

Footnotes

1 Statistically, it is rare for children to live with their fathers and rarely or never see their mothers (Kaspiew et al., 2009; Renda, 2013). For this reason, the focus in this discussion is on families where children rarely or never see their fathers; that is, arrangements involving "little or no contact" with fathers. Definitions in relation to such arrangements vary somewhat in the studies referred to, but generally the term used here encompasses arrangements where children never see their father or have minimal, such as annual, contact.

2 The parents participated in the Longitudinal Study of Separated Families (LSSF) (see Kaspiew et al., 2009; Qu & Weston, 2010).

3 The sample were part of the Coordinated Family Dispute Resolution (CFDR) pilot evaluation study (see Kaspiew, De Maio, Deblaquiere, & Horsfall, 2012).

4 The data were gathered through the Legislation and Courts Project (see Kaspiew et al., 2009).

5 These statistics are based on the reports of parents who had at least one child living with them at least half of the time. In other words, the results were based on the reports of the child's main carer. In most cases, the main carers were mothers. Information was collected about each child under the age of 18 years who had a parent living elsewhere.

6 These children were in the K cohort, and were in kindergarten when data collection began in 2004 (Renda, 2013).

7 The reforms were enacted through the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth).

8 See the Family Law Amendment (Family Violence and Other Matters) Act 2011 (Cth).

9 The LSSF was initially part of the Australian Institute of Family Studies (AIFS) evaluation of the 2006 family law reforms. LSSF focused on separated parents with a child under 18 years old who had separated since July 2006 and had registered with the Child Support Agency in 2007. The first wave collected data from 10,000 separated parents in 2008, when they had been separated for an average of 15 months. One year later, 70% of these parents were re-interviewed. Questions in relation to children were focused on one child. In Wave 1, most of these children were of preschool age, with 41% under 3 years old and 18% 3-4 years old.

10 Overall, the prevalence of children having little or no contact with their fathers differs from the findings of the ABS and LSAC studies. This is likely to reflect, among other factors, the sample of families included, the length of time since separation, the age profile of the study children, the definitions applied in each study, and whether mothers' or fathers' reports were used. A detailed discussion of these methodological issues is beyond the scope of this chapter.

11 The evaluation was based on a mixed-method design and involved: qualitative interviews with professionals working in the pilot both in the early implementation phase and near the end of the data collection period; mixed-profession focus groups; an online survey of professionals; a request for information regarding adaptations and innovations to CFDR in each location; interviews and an online survey with parents who had received CFDR services; and case file analyses of all CFDR cases over the period of the evaluation (n = 126) and a sample of comparison group files who received standard family dispute resolution services (n = 247).

12 These provisions were not changed by the 2011 amendments (Family Law Amendment (Family Violence and Other matters) Act 2011 (Cth)); however these amendments were intended to ensure family violence was disclosed and that protection of children from harm was given greater weight where this issue was in conflict with the child's right to meaningful involvement.

13 As part of AIFS evaluation of the 2006 family law reforms, information was gathered from a sample of court files involving children's matters heard in the Family Court of Australia (FCoA), Federal Magistrates Court (FMC) and the Family Court of Western Australia (FCoWA). Data were collected from a sample of 985 cases filed after 1 July 2006 and finalised by November 2008. The aim of the court file analysis was to obtain systematic data on the implementation of key aspects of the Shared Parental Responsibility (SPR) Act 2006. Along with basic demographic data of the parties and children, extensive data were also gathered on the orders made by the court relating to parental responsibility and care-time arrangements, including any special conditions (such as supervision when a parent spends time with a child). In cases where a Form 4 had been filed (an allegation of family violence and child abuse), this information was also captured. Information on the appointment of an Independent Children's Lawyer (ICL) and whether a family report was on file was also covered in the data collection.

14 There were: (a) "pure consent" files, initiated as consent orders reflecting applications for court endorsement of arrangements agreed to by the parties; (b) "consent after proceedings" files, involving matters that started as contested applications but that were subsequently settled by consent; and (c) "judicial determination" files, comprising matters where the final outcome was determined by a judge.

15 Care-time arrangements were analysed by combining information about the person with whom the child spends time (e.g., mother, father, or other person such as grandparent) and the percentage of contact hours, standardised to a four-week block from the last order or judgment on file.

16 In a significant number of files, no information was available about the amount of time the child was to spend with his or her other parent. Some of these files included arrangements where the child's time was "as agreed", while in others no reference was made to the number of hours.

17 The file analysis also included information on a set of "factual issues" from key documents, including affidavits, family reports and judgments. "Family violence" was defined as a parent's assertion of family violence that was sexual, physical, or emotional/psychological/threatened, or a family violence order. "Child abuse" was defined as a claim of a need to protect the child from: physical harm, sexual harm, emotional/psychological harm, neglect or witnessing family violence.

18 Due to the very small proportion of allegations of family violence and child abuse in "pure consent" cases, the analysis that follows is restricted to cases that were either finalised by judicial determination or by consent after proceedings had been initiated.