The child's right to know both parents
It would be understandable if some people failed to see in the title of the Family Law and Psychology Association's seminar, 'Enforcement of Access', anything of the intimate and subtle ties between child and parent. Although parental disputes, the balance between each parent's rights, and issues of fairness between the quarrelling parties may be the strongest associations we have with words such as 'access' and 'divorce', the Family Law Act (Section 64, la) puts the welfare of the child before other considerations in parental divorce.
Family law thus gives primacy to the protection of children from harm in circumstances of family upheaval. In this, the law reflects widely held values of parents who divorce and make their own arrangements for children. it is in fewer than 2 per cent of cases that parents' failure to make arrangements for their children requires judicial intervention, and this occurs only after other avenues of counselling and negotiation have failed.
The determination of how children's needs are best served in difficult circumstances is no easy matter, however, and all parents who divorce struggle with the issue. Many seek the collaboration of psychologists and lawyers in negotiating the conditions of care for children - hence the common purpose of the relatively new Family Law and Psychology. Association of Australia. The Association draws together professionals whose strands of expertise are directed, largely in the environment of the Family Court, to collaborating with parents in solving the dilemmas of divorce. As well as this seminar on the enforcement of access, the Association has organised seminars on child abuse and the psychologist as expert witness to stimulate debate on the process of law and the professional conduct of lawyers, barristers, judges and psychologists.
Conundrum of Enforcement
The central dilemma of the law relating to access and its enforcement was set out by Mr Justice Joske in his paper opening the seminar. This is that the best interests of the child may often be unfair to one of the parties to the divorce. Citing Lord Justice Ormrod in an English court, 'judges must pursue not what the essential Justice of the case requires, but the best interests of children Mr Justice Joske pointed out the quandary inherent in the enforcement of access orders - though they may be made in the interests of the child, they may have the undesirable, if unintended effect, of exacerbating conflict, which is most definitely not in any child's interests.
New powers to enforce access were introduced in amendments to the Family Law Act in 1989. Although the court now has greater power to compel parents to comply with its requirements for the child to have access to the non-resident parent, there are still many problems. For example, fines of up to $6000 can rarely be enforced, certainly not without prejudice to the child's wellbeing, and jail terms for parents carry short- and long-term penalties for children. Nevertheless, in Mr Justice Joske's view, the basic principle underlying the law's duty to protect children is that they should grow up knowing both parents.
Writing on this dilemma of enforcement of access, Mr Justice Smithers (1992) recently highlighted yet another dilemma for the law regarding the enforcement of access: 'A court which cannot or does not enforce its orders will find little favour with parties seeking justice according to law, or with the community as a whole' (p. 337). The symbolic and real value of the law to protect children's right to know both parents is thus juxtaposed with its potential to damage already fragile relationships - that between the parents, and between parent and child.
These problems became the subject of discussion for seminar participants. One very useful aspect of the forum was that assumptions made by professionals were examined - for example, it is very easy to lose sight of the child when dealing with the parent/client.
Pointing to the tighter regulation of economic matters, both property distribution and child support, Mr Justice Joske suggested that a competent, nonresident father may see the court as impotent to guarantee his access to the children. However, in a framework in which there is concern that 'mothers' rights' and 'fathers' rights' be symbolically balanced, we must be wary of an accounting mentality which balances money against children. The argument might be made that since mothers and children have benefited from the fuller accounting of assets in property settlements (for example, superannuation), and have also been placed in a more secure position financially by the redistribution of child costs through the Child Support Scheme, the law has turned to the issue of facilitating fathers' continuing relationships with and responsibility for children.
One of the problems with this symmetry between the rights of mothers and fathers is that nowhere In our society, not just in the area of divorce, is there a balance in responsibility and care for children. Another problem is that the law must first and foremost protect children, a function often cutting across the discourse of parent's rights (Eckelaar and Dingwell 1992). A third problem, indicated by Mr Justice Smithers (1992), is that if the law is to protect children and be good law it cannot be flouted; if the law is to regulate access, it must have the power to do so. A final problem is one that the seminar group identified, the inadequacies of legal categories and language in matters of parenting.
Mr Justice Joske cited two cases of stalemated dispute in which the court's ruling on the best interests of the child had been repeatedly flouted and in which counsellors' attempts at negotiating an arrangement between the parties had failed. ln these exceptional cases the judge reversed the custody order, making the other parent responsible for parenting. It is presumably only rarely that the welfare of children would be served by such extreme actions, although a law held in contempt cannot protect children.
The restrained language of the law ('parties' after all are flesh and blood parents of the child concerned) and the unfairness often so grievously felt, may not be without consequence for the child's wellbeing. 'Contempt' is frequently an expression of fierce and overwhelming hurt, anger and blame directed at the former spouse, and perception of children's wellbeing may be distorted by these emotions. The law is clearly a blunt instrument attempting to make the best of a far from optimal situation; fortunately, fewer than 2 per cent of parents are unable to find any other way to rearrange the parenting of their children under two roofs.
Better Than Folk Wisdom
Family law epitomises inter-disciplinary endeavour; other speakers at the seminar included Ms Jennifer Brennan, a solicitor with experience in country and city practice, in Family Court and Magistrate's court proceedings, and Mr Colin Ham from the Melbourne Bar. Both emphasised the responsibility of practitioners to inform clients exactly and very explicitly of their obligations, and in particular of the onus on them to encourage access.
Ms Brennan suggested that more individual solutions be sought with regard to access; detailed programs and flexibility were desirable in making access agreements hold up over time. Her experience in country practice was characterised by more negotiation between solicitors and magistrates than appears possible in cities.
Ms Brennan was critical of accepting the folk wisdom of 'the usual' - that is, the children visiting the non-resident parent every fortnight from 5.00 pm Friday to 5.00 pm Sunday. This stereotype appears to be based more on the appearance of getting what was due than on making arrangements appropriate to parents' work and lifestyles and children's age and needs. Such arrangements can be singularly unsuitable for many parents and children.
Heeding parents' requirements and children's needs was also seen as the basis of a good arrangement by Ms Robyn Weir, a clinical psychologist, who looked behind conflicts between parents about access to the way in which the separation occurred. She pointed out the very different personal worlds of parents at the time of separation; one has usually been the protagonist in the separation and has at the time of the physical separation made some future plans, the other has often not foreseen the end of the marriage or yet envisaged a separate life. Although both experience intense pain and dislocation, adjustment to the rift will usually proceed more slowly for the parent who feels deserted.
During this period of adjustment, emotions may be overwhelming and understanding of each other's position clouded. Ms Weir presented case studies to illustrate these processes, and the ways in which children get caught in the maelstrom of parental emotions. She showed how a psychologist can offer insights into this process and options for the management of conflict, and at the same time help establish a structure in which children can be cared for. She and others at the seminar emphasised that professionals were temporary adjuncts to parents in their difficult task of rearranging family relations and responsibilities after divorce. Others have proposed that the law and psychologists function to provide a scaffolding for parents who will normally go on to construct anew their family relations more or less in their own design.
Part of this scaffolding or framework comprises firm, practical plans for managing children. Parents temporarily in disarray are thus helped to re-establish routines with fewer points of potential conflict. Ms Weir raises with her clients simple, practical matters, such as the question of who will give young children their bath and tea around the conventional access changeover time of 5.00 pm Sunday evening. Even in the most harmonious homes, parents know that Sunday evening with its combination of tired, hungry children and parents contemplating another hectic week is a tinder box.
Some situations require more structure and intervention, at least for a time. Clinical psychologist Dr Kenneth Byrne put forward a practical format for help in very troubled access situations. Based on the notion of protecting children from parental conflict and facilitating children's relationship with the non- resident parent, Dr Byrne's Professionally Facilitated Access is a model worth pondering by parents and professionals alike, since it suggests adaptations that might help in cases where children have not seen a parent for a long time and are timid about contact, as well as in cases when a parent is unable to take full responsibility for a child.
The arrangement for the visit proceeds in three phases. Phase One Is divided into three time periods. Time One: Resident parent and children arrive and spend 20-30 minutes with psychologist-children play/talk; parent and psychologist talk; psychologist observes these interactions; mother leaves premises. 'Time Two: Psychologist and children spend 20-30 minutes together talking about plans for visit, and feelings/fears. Time Three: Non-resident parent arrives and spends 20-30 minutes with psychologist and children before departing.
In Phase Two, children and the non-resident parent depart for the visit and spend time together, if, for example the non-resident parent has been out of touch with the children for a long time, or if there are special circumstances of fear on the part of children, or reasons to exercise protection, the psychologist may accompany children and non-resident parent on a (short) visit.
Phase Three is the mirror image of the first phase, with the non-resident parent and children spending time with the psychologist; children and psychologist alone; resident parent and children with psychologist.
As well as facilitating access, this procedure protects children from exposure to parental conflict, removes the opportunity for parental conflict being exacerbated, has the potential to be used in a variety of circumstances, and permits all concerned to explore in safety ways of managing the visits. Dr Byrne recounted his observation of a child alone with him waiting for her father to arrive. She sat muttering: 'I don't want to go. No way!' At the same time drawing a beautiful, colourful ballerina performing on stage. She then departed peacefully for her visit with her father. The psychologist is in a position to discuss the child's behaviour with both parents.
The Professionally Facilitated Access Model also allows professionals and parents alike to test the validity of their judgements about the children's wellbeing and the impact of access on children. Dr Byrne emphasised that this format was flexible, and although in very difficult or dangerous situations a professional was required, grandparents might in less extreme circumstances fulfil many of the functions: providing a neutral venue, ensuring that children would not be in the presence of both parents together, and that parents would not meet.
Complex Lives and Flexible Solutions
In the discussion following these papers, judges, lawyers and psychologists' all commented on the inadequacy of legal language in matters of relationships between parents and children. The law no doubt has had a powerful effect on the way we all think since fathers ask for 'the usual' or 'their rights', meaning seeing their children every second weekend from Friday night to Sunday evening. Yet a general feeling in the seminar was that children's and parents' lives are complex and require more flexibility for the wellbeing of all.
The legal and psychology professions agree that more widespread and early education in parenting functions and responsibilities is essential, as is a shift from an ownership/rights mentality to a framework of continuing responsibility for the wellbeing of children. Two important matters for review which will be considered at future seminars are, first, legal terminology and the anachronistic and inadequate use of the terms 'custody' and 'access', and, second, consideration of the many meanings attached to shared parenting and the implications of these for parents, children and the law. These issues are among those being considered by the joint Parliamentary Inquiry into the Family Law Act which is due to report in the next months.
- Eekelaar, J. and Dingwell, R. (1992), The Reform of Child Care Law: A Practical Guide to the Children Act 1989, Tavistock, London.
- Smithers, The Hon. Justice A. (19911), 'Enforcement in relation to access and contempt issues.' The Fifth National Family Law Conference. Conference Handbook, Business Law Education Centre, Melbourne.
In this issue
- Children's voices, adults' choices: Children's rights to legal representation
- The child's right to know both parents: Enforcement of child access
- What unemployment means: Young people and their families
- A safe place for children: Views from the outer suburbs
- Children's welfare, rights and the legal system
- Childhood in its social context: The under-socialised child?
- Adolescent children and their parents
- Long-term relationships between parents
- Families, work and industrial relations
- Self care for school aged children