1. Introduction

Promoting and maintaining child-focused principles during parental separation, against a background of high emotions, is a key challenge for decision makers and family welfare professionals. Despite that, until recently there was little empirical data on how Australian separated parents were relating to each other, as well as data on the link between quality of relationship and the level of disputation over the children.

The seminal study of parenting relationships and arrangements after separation was conducted by Maccoby and Mnookin (1992). These authors found that post-separation relationships and parenting styles could be described according to levels on a spectrum, with “cooperative” at one end and “highly conflicted” at the other. In between, the authors identified a significant group of separated parents who engaged in “parallel parenting”. These parents were more business-like in their approach. They generally refrained from overt criticism but also maintained minimum contact with each other.

The most comprehensive data on how Australian parents manage separation and divorce was published as part of a major evaluation of the 2006 family law reforms (Kaspiew et al., 2009) conducted by the Australian Institute of Family Studies (AIFS). A key source of data in this regard came from the Longitudinal Study of Separated Parents (LSSF). Since that time, evidence from two further waves of the LSSF has also been published (Qu & Weston, 2010; Qu, Weston, Moloney, Kaspiew, & Dunstan, 2014).

Following the 2006 family law reforms, various initiatives in Australian family law have, where appropriate to do so,¹ aimed to discourage the conflation of adult-focused interpersonal difficulties with the management and resolution of parenting disputes. Initiatives have included: the funding of Family Relationship Centres (Parkinson, 2013); greater collaboration between relationship practitioners and lawyers (Moloney, Kaspiew, Deblaquerie, & De Maio, 2013); and less adversarial processes within courts (Harrison, 2009). These initiatives are consistent with long-standing evidence linking child wellbeing after separation with the level and persistence of parental conflict (Cummings & Davies, 1994; Emery, 2012).

The present report adds to our knowledge of the behaviour and motivations of separated parents by interrogating three independent data sets.

The first, the “Caring for Children after Separation Study”, covered in Chapter 2, collected Australian data on the dimensions, predictors and outcomes of parent–child contact after parental separation.

The second, covered in Chapter 3, reports on family law professionals’ experiences of, and attitudes towards, separated parents.

The third, covered in Chapter 4, presents the results of face-to-face interviews with highly conflicted separated parents who had presented at community mediation centres.

Finally, Chapter 5 contains some concluding observations that link these data sets together and place them in the context of the 2006 family law reforms.

2. Analysis of the Caring for Children after Parental Separation study

The AIFS Caring for Children After Parental Separation (CFCAS) study is a longitudinal survey of separated parents of at least one child aged 18 years or less.⁴ This chapter reports on three waves of self-report data. The original sample of 971 separated parents was obtained in 2003 through random digit dialling. The samples of men and women are independent. That is, the men and the women had not been in a relationship with each other (i.e., married or cohabitating). The survey sought information on a range of issues, including respondents’ parenting arrangements (including residence, contact and child support), decision-making responsibilities, wellbeing and demographic circumstances. Information regarding residence and contact was gathered in relation to the youngest child of the respondent.

The original sample was stratified by gender and geographical location from the population of Australian households with landline telephones.⁵ To obtain this sample, more than 163,000 telephone calls were made around Australia, leading to the identification of nearly 70,000 households (43%). Of these households, 77% did not contain a person in scope, while for 15%, the person who answered the telephone refused participation without revealing whether there was a person in scope.

The most favourable response rate (where interviews achieved are calculated as a percentage of interviews plus refusals by a person known to be in scope) is 44%. A more likely estimate, however, is around 26%—assuming that 15% of households where refusal occurred before eligibility could be determined were in scope.⁶ Most parents agreed to be recontacted at a later date for future research.

A second wave of interviews was conducted early in 2005. Respondents were interviewed for approximately 15 minutes on their attitudes to child support. Attempts were made to recontact the 896 (of the original 971) participants in Wave 1 who agreed to be recontacted at a later date. Of these, 678 were contactable: 92% (n = 623) were interviewed, 4% refused and 4% were away during the survey period.

A third wave of interviews took place in mid-2006. Attempts were made to recontact the 555 (of the original 971) participants in the CFCAS project who agreed to be recontacted at a later date.⁷ Of these, 438 were contactable, 93% (n = 406) were interviewed, 5% refused, and 2% were away during the survey period.

On average, interviews lasted approximately 20 minutes. Key topics included: relationship support services that they used around the time they separated and that they might consider using again, issues relating to post-separation disputes about parenting arrangements, and services used in resolving such disputes. Information on parenting arrangements was also collected to ascertain change in order to identify different trajectories of patterns of care over time.

Sample characteristics at Waves 1 and 3

This paper makes use of Waves 1 and 3 of the CFCAS project. Sample attrition (or loss of participants between data collection waves) is an issue in longitudinal research; however, this issue is particularly apparent with research involving separated parents, given that their accommodation tends to be more transient than the rest of population. It has been found in other longitudinal studies that individuals who “drop out” of studies tend to differ from those who continue to participate. Specifically, attrition tends to be higher among persons who are relatively young (aged between 15 and 24 years), single, unemployed or working in low-skilled occupations, or have relatively low levels of education.⁸

Table 2.1 provides a summary of key socio-demographic characteristics of those who participated in both Waves 1 and 3 compared to those who only participated in Wave 1. As can be seen, parents were more likely to have not participated in Wave 3 if they were in rental accommodation, aged less than 35 years old, had a child aged 5 years or less, were receiving government benefits, were unemployed, were in a de facto relationship before separation, had an income of less than $20,000, or had been separated for less than 2 years.

Note: * p < .05; ** p < .01; *** p < .001
Source: CFCAS Waves 1 and 3

Measures

At Wave 1, experiences of “disputes” were identified from several items. Respondents were asked how the initial decision about their children’s living arrangements was made (court adjudication, between the parents, or “just happened”). Arrangements that resulted from court adjudication were assumed to reflect the occurrence of disputes in the initial process of determining parenting arrangements. Respondents were also asked whether the initial arrangement was still in place. If it was not, they were asked how current arrangements had been decided. A court-adjudicated revision of an initial arrangement was interpreted as reflecting a dispute concerning an existing parenting arrangement. It was therefore possible to distinguish between disputes that resulted from the breakdown of an existing arrangement and those that took place when arrangements were first being determined.

Many parents who have post-separation disputes over their children do not use formal legal processes to resolve their disagreements. Therefore, those respondents who indicated that their initial and current arrangements were determined through means other than court adjudication were asked whether they had experienced a dispute about their children’s living arrangements and/or time spent with the child. It should be noted that if parents indicated that they had had a dispute, it is possible that such a dispute might have resulted in legal proceeding and adjudication without affecting living arrangements. Parents were not asked if they had had a dispute in cases in which there had been no contact between the non-resident parent and the child for the past 12 months (n = 180), or in cases in which a decision about parenting had not been finalised (n = 11). Because those without contact were not asked about this, all of the analyses of Wave 1 data were based on those cases in which both parents were involved with the child(ren) (n = 791).

In Wave 3, respondents were again asked whether they had ever had a dispute about their children’s living arrangements or time spent with the child. Additional information concerning the dispute was also sought, including how long ago the dispute occurred, and if they had sought professional help to resolve the dispute. Respondents were also asked to provide a short answer to an open-ended question on the nature of the dispute. If respondents did not report a dispute they were asked to provide a short answer about how they avoided a dispute.

A list of areas that may contribute to disagreements about parent–child contact after separation was provided to all respondents irrespective of whether they reported a dispute since separation. Parents were asked whether each listed item had lead to a disagreement with their ex-partner. By asking all respondents about disagreements, we were able to compare the responses of those who did and did not report disputes to examine whether there are particular types of disagreements that contribute to disputes.

Results

The use of court services to determine parenting arrangements—Wave 1

All parents were asked how the decision about their children’s living arrangements or time spent with their children was initially determined: either imposed by court, made by the parents themselves, or something that “just happened” (i.e., occurred passively and with minimal discussion).

Table 2.2 displays the type of decision-making process for the initial arrangement by residence and gender status of parents. Approximately 10% of parents indicated that their initial arrangements had been determined by court (i.e., that there was a dispute). Most parents indicated that they had made their initial arrangements themselves (more than two-thirds), while one in five indicated that the arrangement “just happened”.

Source: CFCAS Wave 1

It is difficult to interpret differences in the prevalence of court adjudication between different resident arrangements (resident mothers/non-resident fathers, resident fathers/non-resident mothers, shared-time and split arrangements) due to discrepancies between the groups on specific arrangements. For instance, for the most common arrangement, mother residence, non-resident fathers were more likely than resident mothers to indicate that their arrangements were determined by court (14% vs 4%).⁹ This discrepancy was also the case with split-residence fathers and mothers (11% vs 4%). There was agreement, however, between shared-time mothers and fathers, with 5–7% of these groups reporting a court adjudicated arrangement. Similarly, there was also consistency between resident fathers and non-resident mothers (18%–14%). Thus it seems that father residence arrangements were more likely to arise from court-adjudicated arrangements than shared-care arrangements.

Looking at differences between specific residence-gender groups, resident fathers were the most likely to indicate that their arrangements had been determined by court (18%), followed by non-resident fathers and mothers (14%). A relatively high proportion of split-residence fathers also reported court adjudicated arrangements. Fewer shared-time mothers and fathers, resident and split-resident mothers reported court adjudicated arrangements. Fathers overall were significantly more likely than mothers to report that arrangements had been determined by court.¹⁰ These differences will be discussed in further detail in a later section.

Those who had been separated for longer than 12 months were asked if their initial arrangement was still in place. If initial arrangements were no longer in place, parents were asked how their existing arrangements were determined. A court-adjudicated revision of arrangements was interpreted as reflecting a dispute concerning an existing arrangement. As can be seen in Table 2.3, three-quarters of respondents indicated that the initial arrangement was still in place. There is a significant difference between the type of process used to determine initial arrangements in the likelihood of revision. Specifically, those whose arrangements were determined by court were more likely than those whose arrangements were determined by other means to report that their initial arrangements were no longer in place (38% vs 23–24% in the other groups).¹¹ This difference remained significant after accounting for time since separation.

Table 2.3 also shows that just fewer than 10% of parents who had been separated for more than 12 months reported court-adjudicated revision of arrangements. A similar proportion indicated that their current arrangements were made by themselves (12%), while considerably fewer parents reported that the arrangement just happened (4%). Similar proportions of those whose initial arrangements were determined by court or something that just happened reported that their current arrangement was court-adjudicated (14–16%). Fewer parents who actively made their own arrangements suggested that their current arrangements were court-adjudicated (6%).

Note: Those who had been separated for less than 12 months were not asked if their initial arrangement was still in place.
Source: CFCAS Wave 1

Table 2.4 shows the decision-making process of current arrangements only for parents separated for more than 12 months who indicated that their initial arrangement was no longer in place. About one-third of parents who reported that their initial arrangements were no longer in place reported that the new arrangements had been determined by court. This is much higher than the proportion of parents whose initial arrangements were determined in court (9%, see Table 2.3). This indicates that if the initial arrangement had been revised, parents were more likely to have used the court to determine the revised arrangements than to determine their initial arrangements. Interestingly, if those whose initial arrangements were court-adjudicated had revised their arrangements, they were more likely to have revised arrangements without going to court. Specifically, approximately 60% of the parents who reported that their initial arrangement had been made in court revised their arrangements without going to court. In contrast, most parents (56%) whose initial arrangements “just happened”, and who revised their arrangements, reported that their current arrangement was court-adjudicated.

Note: Those who had been separated for less than 12 months were not asked if their initial arrangement was still in place.
Source: CFCAS Wave 1. Percentages may not total exactly 100% due to rounding.

Table 2.5 presents the relationship between the decision-making processes of initial and revised/current arrangements for parents who had been separated for 12 months or more, by residence and gender status of parents. As can been seen, resident mothers and non-resident fathers in particular were most likely to report that contact arrangements were still in place (83% and 76% respectively), followed by shared-time fathers and mothers (74% and 73% respectively). The proportions of other groups that reported that their initial arrangements were still in place were lower.

Note: Those who had been separated less than 12 months were not asked if their initial arrangement was still in place.
Source: CFCAS Wave 1

It should be noted that more recent data (Smyth, Weston, Moloney, Richardson, & Temple, 2008) suggest that shared parenting arrangements are likely to be the least stable. This reinforces a view that the “shared time” numbers in these data are too small to permit any statements about the stability of these arrangements.

Table 2.6 displays the proportion of parents who reported that either their initial or revised (current) arrangement had been determined in court. This table indicates the prevalence of disputes that resulted in a court-adjudicated arrangement among the sample of parents. Overall, 15% of parents indicated that they had had disputes that resulted in a court-adjudicated arrangement. Non-resident fathers were almost three times as likely to report their parenting arrangements had been determined by the court than resident mothers (23% vs 8%). Of course differential reporting by mothers and fathers, and different types of sample bias among independent groups of separated mothers and fathers are not uncommon in family law research.

Note: Those who had been separated less than 12 months were not asked if their initial arrangement was still in place.
Source: CFCAS Wave 1

Disputes about parenting arrangements that did not result in a court-adjudicated arrangement—Wave 1 (2003)

As noted, many parents who have disputes do not use the legal system to resolve their disagreements. Therefore, those respondents who indicated that their initial and current arrangements were determined through means other than court adjudication were asked whether they had experienced a dispute about their children’s living arrangements and/or time spent with their children. As shown in Table 2.7, 22% of respondents who indicated that their initial and current arrangements were not legally adjudicated reported that there had been major disputes about their children’s living arrangements.

Note: Those who had been separated for less than 12 months were not asked if their initial arrangement was still in place.
Source: CFCAS Wave 1

The prevalence of such disputes was similar across the different resident-gender groups, with the exception of the relatively high proportion of split-resident and resident fathers who reported a dispute (41% and 30% respectively). (The size of the non-resident mothers group is insufficient to make valid inferences.) Interestingly, shared-time arrangements are commonly viewed to be associated with a less conflicted post-separation relationship; however, the proportions of shared-time mothers and fathers who reported a dispute were similar to resident mothers and non-resident fathers.

Overall prevalence of disputes—Wave 1 (2003)

The proportion of parents who reported that initial or revised (current) arrangements had been determined in court or that they had had a dispute about their children’s living arrangements provides an estimate of the prevalence of disputes among parents. One-third of parents reported that they had experienced a dispute or that their arrangements had been adjudicated by the court (Table 2.8).

Source: CFCAS Wave 1

Again, it is very difficult to interpret the differences between different residence arrangements. Chiefly this relates to differences in the prevalence between gender-residence groups that represent specific arrangements (e.g., non-resident fathers vs resident mothers).

Looking at specific residence/gender groups, fathers were more likely than mothers to report a dispute or court adjudication. Specifically, non-resident fathers were more likely than resident mothers (41% vs 26%), and split-residence and resident fathers were most likely to report a dispute or court adjudication (54% and 47% respectively). Resident and shared-time mothers were least likely to report a dispute or court adjudication (26% and 28% respectively).

Differences between residence/gender groups in the prevalence of disputes—Wave 1 (2003)

Unfortunately, due to the small size of some groups (e.g., non-resident mothers), residence status and gender are very highly correlated. Therefore, a statistical examination of whether gender (i.e., male vs female) or residence status (i.e., residence vs non-residence vs shared care) has the strongest influence on the likelihood of reporting a court-adjudicated arrangement or a major dispute is difficult due to the increased likelihood of error. In particular, it is difficult to ascertain whether non-resident fathers are more likely than resident mother groups to report a dispute because they are male or because they are a non-resident parent.

If gender were not an issue, however, one would expect that the prevalence of disputes among father and mother groups making up specific resident arrangements should be similar. For this reason, it is useful to speculate on possible reasons for the differences between these groups.

It may be that differences reflect the subjective nature of a “dispute” and of situations that lead to a dispute. For instance, many men in dispute may feel that they have been left out of parenting of the child. It may also be that there are differences in the characteristics of mothers and fathers that explain differences in the prevalence of disputes. For instance, fathers in the sample may have been separated for a greater amount of time than mothers, or may be more likely to have re-partnered, or may be of a lower socio-economic status.

Given this, the next section, which examines the characteristics of those who report disputes, will also try to elucidate differences in the prevalence of disputes between mothers and fathers in the most common type of residence arrangement: mother residence (that is, the higher prevalence of disputes reported by non-resident fathers compared with resident mothers). It will first examine characteristics that are significantly associated with the reporting of a dispute or use of court to determine initial or current arrangements among the whole sample. It will also examine the relationship between characteristics and disputes separately for non-resident fathers and resident mothers, to see if there are differences in the characteristics associated with disputes between the groups. Finally, characteristics that are significantly associated with the reporting of a dispute among the whole sample and on which there are significant differences between resident mothers and non-resident fathers will be statistically analysed to determine if such characteristics might explain the differences between these groups in the prevalence of reporting disputes.

Characteristics of those who have had disputes or used court to determine initial or current arrangements—Wave 1 (2003)

In order to examine whether those who experience a dispute or use a court to determine initial or current arrangements differ from those who do not experience a dispute, characteristics were selected from several areas that have been found to be associated with disputes. The areas are demographic characteristics, co-parental relationship, parent–child relationship (pre- and post-separation), and time spent with the child by the non-resident parent.¹² Table 2.9 displays differences between those who did and did not report a dispute in variables selected from these areas. The analysis was taken separately for resident mothers and non-resident fathers.

Note: * p < .05; ** p < .01; *** p < .001. Percentages may not add up to 100 due to rounding.
Source: CFCAS Wave 1

Overall, parents who reported a dispute were similar in demographic characteristics to those who did not report any disputes. Nevertheless, non-resident fathers who reported a dispute were significantly more likely to hold a diploma or vocational qualification and less likely to have completed a tertiary degree compared with those fathers without dispute. Among resident mothers, those who reported a dispute had been separated for longer and had older children than those who did not report a dispute.

Non-resident fathers who reported a dispute were also significantly more likely than other non-resident fathers to report that their former spouse had re-partnered, to live further away from their former partner and their child, and to report that time spent with the child was on a fortnightly–monthly or infrequent basis (every 3–12 months) rather than on a more frequent basis (at least weekly). Non-resident fathers who reported a dispute were more likely than their counterparts without dispute to report that their contact arrangements were inflexible, that the resident mother had prevented a visit, that they were not satisfied with the level of contact, and that they would like to change their child’s residence arrangements.

Resident mothers who reported a dispute were also more likely than other resident mothers to have kept a written log of overnight stays, to report that the non-resident father had not showed up for contact, and report that the child had not wanted contact.

Not surprisingly, there were strong differences on variables associated with the post-separation co-parental relationship. For both resident mothers and non-resident fathers, compared to the no-dispute parents, those who reported a dispute reported significantly more conflict since separation, to be in fear of their safety in relation to their former partner, and to have concerns about abuse or neglect of their children.

The groups also differed to a considerable extent in their perception of the relationship between their former partner and their child, and the parenting ability of their former partner. Specifically, compared to the no-dispute group, the dispute group was significantly more likely to rate their former partners’ parenting prior to and after separation as “fair” or “poor” and report the non-resident parent as less involved in post-separation parenting, but not prior to separation (non-resident and male shared-time parents reported on their own relationship with the child). These differences were apparent for both resident mothers and non-resident fathers.

Disputes and residence—Wave 3 (2006)

Table 2.10 demonstrates that at Wave 3, 24% of respondents reported a major dispute about children’s living and contact arrangements. It is important to note that all of the analyses of Wave 1 data were based on those with contact (n = 791) (i.e., parents who reported that there had been no contact between the non-resident parent and the child in the past 12 months were excluded). In contrast, at Wave 3, the dispute item was asked of all respondents who participated at this wave. It is therefore difficult to compare the proportion that reported a dispute at each of the waves. However, it is notable that the differences between different gender/resident groups are again present, with fathers overall more likely than mothers to report a dispute.

Note: ^# The residence status of 66 parents was not technically determinate. There were 63 parents whose children were 18 years or over. These children are considered to be legally independent and are therefore not covered by the jurisdiction of the family law system. In addition, three parents of children under 18 years reported that their children were living independently.
Source: CFCAS Wave 3

Timing of disputes

On average, respondents reported that the dispute occurred approximately two-and-a-half years ago (M = 2.7, SD = 2.5, Mdn = 2.0). The average length of time between separation and dispute was 7.3 years (SD = 4.0, Mdn = 6.7).

What are disputes about?

Parents who reported a dispute were asked what they thought the dispute was about. Responses were open-ended, allowing for the diversity of themes underlying the disputes to be captured. A short verbatim answer to the question was recorded. Responses were classified according to a “grounded theory” approach by trying to create categories according to themes that emerged from the set of answers. The formation of categories was also informed by research findings regarding triggers of contact disputes after separation.

Occasionally, multiple themes were evident. However, in these cases an attempt was made to deduce the main underlying theme of the dispute. At times there was particular uncertainty regarding the distinction between concerns about parenting time and residence, given that changes in contact may alter the residence status of parents. It was generally unclear if a dispute about the amount of contact also constituted a change to residence. As such, categories regarding residence and contact can be regarded as overlapping. To reduce ambiguity, examples of responses are provided to illustrate respective categories.

Table 2.11 displays the categories that emerged from analysis of responses of those who reported a dispute and the proportion of responses that were classified into each category. The proportions of resident mothers and non-resident fathers’ responses that were classified into each category are also displayed in Table 2.11. It should be noted that the small (unrepresentative) groups limit the extent to which the observations can be generalised, and inferences should be made with caution.

Note: Percentages may not add up to exactly 100 due to rounding.
Source: CFCAS Wave 3

A common theme that emerged from parents’ responses was the breakdown of an existing contact arrangement. This theme emerged in approximately one-fifth of these responses. Resident mothers and non-resident fathers were equally likely to report such disputes; however, there were differences between these groups on the specific nature of breakdown. Non-resident fathers were more likely than resident mothers to report a dispute involving perceived denial of agreed time with the child (24% vs 11%). For example:

[My former partner] enrolled [child] in a sporting program and along with the travel involved this takes up an entire day of my 48-hour access period. (Non-resident father)

In my court papers I was supposed to see [child] from Friday afternoon to Saturday afternoon each weekend; however, the mother allowed [child] to go to Melbourne during the weekend when he should have been with me. (Non-resident father)

In contrast, resident mothers’ concerns about the breakdown of contact arrangements related to a child not being returned after seeing a parent or the logistics of the changeover (11% vs 0%):

They went away camping and didn’t come back for several days. I feel that the father should have contacted me to let me know what was going on. (Resident mother)

Him wanting the girls to travel on a train to [interstate city] for weekends [is inconvenient]. (Resident mother)

Parents’ wishes to change where the child lived were also commonly cited as the issue of dispute (16%), as typified by this response:

[My former partner] wanted him for more time. At that stage it was 10 nights with me and four nights with [him]; we agreed that we would go 50/50 at year 7. (Resident mother)

Interestingly, another 8% of responses suggested that a dispute arose because the child wished to live with the other parent. Altogether, disagreements concerning the resident arrangement appeared to be the central theme of 24% of disputes (15% of resident mothers and 18% of non-resident fathers).

[The child] was getting annoyed with her mother hassling her and I said she could come to stay with me. (Non-resident father)

My daughter wanted to live with the mother but the mother was reluctant to start with. (Non-resident father)

On the other hand, 9% of responses suggested that the dispute was about one parent wanting to increase the amount of time with the child, seemingly above what was agreed. Non-resident fathers were more likely than resident mothers to report a dispute of this nature (15% vs 7 %).

Just extra access, [he] gave me that day warning and he rang up and wanted her, around Christmas. (Resident mother)

[I want] to have more time to spend with my daughter. (Non-resident father)

Issues relating to violence and child safety were apparent in 14% of responses. A higher proportion of resident mothers than non-resident fathers reported that that the dispute was about violence or the safety of children (23% vs 6%).

The kids had gone on access there for three weeks, he got violent towards one of them and also there was the concern that the girls were in danger of general abuse. (Resident mother)

She was drinking too much and she trashed the house that she was living in. She was arrested for her own safety. That’s when I ended up with all the kids. The dispute was about custody and her drinking. (Shared-time father)

A further 9% of responses suggested that the dispute was about parenting issues such as decisions about the child’s education or parenting behaviours toward the child. A higher proportion of resident mothers than non-resident fathers reported disputes of this type (16% vs 6%).

My daughter is now 16 years old and very street-wise. She lives with her father, she is not going to school a lot, and her father thinks she should stay in school and I think she is ok to be working. (Resident mother)

Some disputes (8%) appeared to be about relocation. Mostly this was about the resident mother wanting to move with the child, which would prevent the non-resident father from seeing the child; however, there were two instances in which the non-resident mother was unhappy because the father’s move prevented him from being able to see the child.

She walked away with the child [and] I don’t know where she is. [She] won’t let me have the child, and took me for all I have and turned the family against me. (Non-resident father)

The fact that he won’t come back and live in Australia and his son is deeply troubled at the moment. (Resident mother)

In another 8% of responses, parents indicated that the dispute was about the intersection of money (child support, family tax benefit and divorce assets) and time with child. A higher proportion of non-resident fathers than resident mothers believed that the dispute was about money (12% vs 0%).

Centrelink said that they would take money from [my former partner] and give it to me because I had custody of [our child]. So [my former partner] changed her mind and then wanted full custody because she wanted the money. She realised she was going to lose money. (Non-resident father)

A very small proportion of responses suggested that disputes were about the non-resident father not wanting contact (4%) or about re-partnering (2%).

Disagreements—Wave 3 (2006)

A list of areas that may contribute to disagreements about parent–child contact after separation was provided to all respondents irrespective of whether they reported a dispute since separation. Parents were asked whether any of these had led to a disagreement with their ex-partner. By asking all respondents about disagreements, we were able to compare the responses of those who did and did not report disputes to examine whether there are particular types of disagreements that might contribute to disputes.

As displayed in Table 2.12, the most common area over which separated parents reported a disagreement was money (including child support), with 61% of parents admitting disagreement in this area. Issues relating to re-partnering, the wishes of a child, and concerns of parenting also quite commonly led to disagreement (approximately 40%). One-quarter of parents reported a disagreement about relocation.

Parents who reported a major dispute were more likely than those who did not to admit disagreement in all areas. These differences were statistically significant, with the exception of disagreements over issues relating to a new partner. The largest differences between those who did and did not report a major dispute were in disagreement over the ability of either parent to care for the children and the relocation of either the respondent or ex-partner. Those who had a dispute reported a significantly greater number of different types of disagreements (M = 2.8, SD = 1.0 vs M = 1.6, SD = 1.3)¹³ compared to those who had not.

Source: CFCAS Wave 3

Table 2.13 shows the proportion of non-resident fathers and resident mothers who reported disagreements in the particular areas measured. A significantly higher proportion of non-resident fathers than resident mothers reported disagreements over the wishes of one or more of the children (46% vs 33%) and relocation (33% vs 20%). Other differences were not significant.

Source: CFCAS Wave 3

Sources of help used in resolving disputes—Wave 3 (2006)

Parents who reported a major dispute since separation were asked which sources of help they consulted to resolve the dispute. Approximately half (48%) of those who had a dispute sought help for the dispute. The most common source of help was a lawyer, with 74% of those who sought help seeking legal advice. Roughly one-third who sought help reported seeking help from a mediator or a counsellor, and about one-quarter sought help from someone else. Of the individuals who sought help from non-legal dispute services (i.e., mediation or counselling), most also sought help from a lawyer.

Source: CFCAS Wave 3

Table 2.15 summarises the number of different sources of help that were accessed. Of those who reported getting help, the average number of different sources used was 1.6 (SD = 0.95).

Source: CFCAS Wave 3

How disputes were avoided

If parents did not report a dispute about parenting arrangements, they were asked how they managed to avoid such a dispute. Again, responses were open-ended and a short verbatim answer to the question was recorded. Similarly, responses were classified according to a “grounded theory” approach by trying to create categories according to themes that emerged from the set of answers.

Table 2.16 displays the categories that emerged from analysis of responses and the proportion of responses that were classified into each category. The proportions of resident mothers and non-resident fathers’ responses that were classified into each category are also displayed.

Source: CFCAS Wave 3

As can be seen, five main themes emerged from the analysis: parental cooperation, a child-focused orientation, unilateral arrangements, intervention and further measures, and distance.

The most common theme that emerged as to how disputes were avoided seemed to reflect some degree of parental cooperation in decisions over residence and time spent with the child. This theme emerged in approximately one-third of responses. Typically such responses suggested that disputes were avoided because of communication, flexibility and compromise in negotiating arrangements. Non-resident fathers tended to cite such reasons more than resident mothers (44 vs 22%). Examples of such responses include:

You listen a bit more and say a bit less. We know what the routine is—if there is something happening we talk to each other and say I’m going to a kid’s birthday party and they might sleep over. Just talk to each other and figure something out. (Shared-time father)

By giving [my former partner] more time, [this] lessened any conflict, and with more compromise and communication, building up trust allowed him to feel that he can make an equal contribution to [child’s] parenting. (Shared-time mother)

Compromise mainly—I never made demands—flexibility and consideration of everything else. We treated it in some ways as if we were still together; communicated about the kids, still got him involved in special days. (Non-resident father)

Some parents suggested that cooperation was achieved specifically because parents shared a good relationship or similar views on parenting, or because the arrangements suited both. For example:

I believe that both of us have worked towards [the arrangement], and we get on fine and we pretty much agree on the arrangements. We talk freely, we support each other in decisions that [we] have made, [we have a] high level of communication. (Non-resident father)

We are like-minded enough on how [our child] is brought up. We have similar views on how she is raised. (Non-resident father)

We came up with our custody agreement. If he wanted to have them for five nights a fortnight, he could, but he just didn’t [want that] and it worked out fine for him and fine for me. It just worked out [that we were] both happy with the arrangement. (Resident mother)

Another major theme in responses seemed to suggest that disputes were avoided because negotiations about parenting arrangements were conducted with children’s interests as the foremost consideration. This theme emerged in approximately one-quarter of responses. For example:

Our daughter is priority for both of us—my partner’s and my feelings come second to [our] daughter’s. (Non-resident father)

When we are angry we are still able to see what is in [our child’s] best interest. I think it’s too disruptive shunting them between homes. [A] 50/50 [arrangement] is not good; sharing half a week each ... can be harmful. (Resident mother)

Responses were also judged to be child-focused if they suggested that the child’s preference was taken into account, or if the child made the decision about the arrangements. Resident mothers tending to cite such reasons more than non-resident fathers.

We just agree I suppose [it’s] just what the kids want. If they wanted to go live with him, they know they can. (Resident mother)

I’ve always said they can ring; they can see him as much as they or he wants. (Resident mother)

Child-focused responses also included responses that indicated that arrangements were not disputed because the non-resident parent was less able to parent the child, for reasons including mental and physical illness, substance use and work commitments.

My former partner wanted to care for [our child] full-time, which suits me as I suffer from panic attacks and my health is not really that good. (Non-resident father)

He has drug and domestic violence convictions against him and he knows he can’t have her full-time. (Resident mother)

When this all happened, I was on my own. There was no way in the world I could have had the kids [be]cause of my work hours, [so there was] no argument about who was going to have the kids. (Non-resident father)

Another one-quarter of parents seemed to suggest that disputes were avoided because one parent determined arrangements without negotiation with the other parent. Usually this reflected a lack or marginalisation of involvement of the non-resident father, either in the care arrangements or negotiations about arrangements. Many responses of this nature included those by resident mothers who suggested that their former partner was disengaged from parenting and so did not care or was uninterested in seeing the child.

It is something that has to be done. He wants limited contact so that’s what has been agreed. [My former partner] dictates whether he wishes to see the children and I abide by that. (Resident mother)

He didn’t want to be involved, [so] it was very easy. (Resident mother)

He’s only wanted limited contact with the children and both of us have agreed to that. (Resident mother)

Other unilateral responses suggested that the non-resident parent did not have contact with the child; however, it was not indicated whether this was by choice.

We just don’t see him, [so] we’ve just not had any disputes. (Resident mother)

Unilateral responses also included those that suggested that one of the parents had been excluded from decisions about arrangements or made concessions during negotiations about arrangements. Generally, this seemed to result in the resident parent being the ultimate decision-maker in arrangements.

[We] had no discussion. Since [the child] has been born I have had no say in the matter at all. (Non-resident father)

[We] haven’t had a chance to [have] disputes. I’ve had no say at all. (Non-resident father)

I just put my foot down and say “no”. (Resident mother)

Some responses suggested that disputes had not occurred because of an intervention or other measures (9%). These responses seemed to reflect more tenuous parental relationships that needed further support to make contact work without dispute. For instance, some parents said the arrangements had not varied from the parenting agreement or court order. Some of these responses suggest that there may have been a dispute at an earlier stage of the separation. In these cases it would appear that the agreement had been instrumental in preventing further disputes. Interestingly, non-resident fathers tended to have these beliefs more than resident mothers.

I don’t ask anything from him over and above the court order. (Resident mother)

We fought about it at the beginning and agreed. We’ve got consent orders and a parenting plan and property divided up, so it’s been all organised since we separated. (Shared-time father)

... The court ordered 50/50 shared care and we have both abided by it. (Shared-care father)

Other measures that were also introduced to prevent disputes occurring in more tenuous parenting arrangements included parents not having any contact with each other,¹⁴ or parents involving extended family to reduce any tension.

No communication between us—[it] reduces the chance of conflict. (Resident father)

[We communicate] through his parents. I was at the stage where I wouldn’t talk to him because he was rude, so I went through his mum. (Resident mother)

Finally, some parents suggested that disputes were avoided because the distance between the non-resident parent and child restricted arrangements and presumably claims for different arrangements.

Living in Australia, he can’t say “can I have them [on] the weekend?” because we’re here [and he is not]. If he was here in Australia, we could organise something like that. (Resident mother)

3. Practitioners' experiences of parenting disputes

This chapter draws on qualitative data derived from a series of focus groups conducted by AIFS with professionals working in the wider family law system (including mediators, counsellors, family therapists and family lawyers). This component was designed to provide a different methodological vantage point—the views of professionals—from which to understand post-separation parenting disputes. Focus groups provide a greater opportunity to explore the more complex conceptual and process-oriented issues likely to be at play in disputes about contact.

Participants

Participants were recruited by way of a formal approach: letters were sent to organisations, inviting the participation of professionals who work with families in dispute after separation. Each organisation was provided with an overview of the nature and aims of the project. Participation of individual workers was voluntary and all participants signed consent forms.

Six focus groups with industry professionals were conducted. Each focus group comprised 5–10 members. The composition of focus groups was along professional and organisational lines:

• Four focus groups were conducted with professionals employed in services that provide family dispute resolution services (mostly comprising clinical psychologists, social workers and family therapists).
• One focus group was conducted with family lawyers who engage in publicly funded and private practice.
• One focus group was conducted with staff of the Child Support Agency (CSA)—the government agency that aims to support separated parents in the transfer of payments for the benefit of their children.

The total sample consisted of 48 individuals, of whom 31 were female, which reflects the gendered nature of professions working with families in disputes.

Question guide

A structured group interview guide was used, comprising 12 questions. Questions were developed through an extensive work-shopping process with AIFS researchers. Focus-group interviews typically have a particular logic, where questions are guided by a funnel design. Relatively broad, easy to answer, non-threatening questions are initially asked to promote group cohesion, rapport and trust. As far as practical, the same questions are asked of all of the groups so that points of similarity and disparity can be explored both across and within the groups (Smyth, 2004). By and large, all questions were asked of the group as a whole (rather than of individuals).

Procedure

Focus groups were conducted in May and June 2005 on the premises of the targeted services. They were audio-recorded with the participants' permission, and subsequently transcribed verbatim. Focus-group interviews ran for approximately 90 minutes. Each group had a moderator and a moderator's assistant.

The data were analysed using a transcript-based analysis. This approach is argued to be the most rigorous and time-intensive method of analysis, as it allows for a systematic examination of all information and observations obtained during the focus group sessions (Chioncel, Van Der Veen, Wildemeersch, & Jarvis, 2003; Hennink, & Diamond, 1999; Krueger, 1998). In this approach, the focus-group transcripts form the basis of the analysis. The transcripts are supported by field notes, recordings and debriefing discussions.

The data were coded thematically. This meant that as the transcriptions were analysed and a particular theme emerged, it was given an identifying code or label. As the process continued, new codes were created as new themes emerged, and existing codes were reapplied each time they appeared.

Themes were analysed according to their frequency, extensiveness and intensity (Krueger, 1998). Frequency refers to the number of occasions a particular theme is addressed within a group. Extensiveness relates to the number of people who raise a particular issue (this is important where a few people may repeatedly address a certain issue—hence, frequency in isolation could be misleading) and the intensity of the issue, which refers to the depth or strength of feeling with which participants communicate a particular point.

Findings

Sources of conflict

Most practitioners had a great deal of experience in working with families and all demonstrated depth of knowledge about the nature of contact disputes after separation. In addition, there was a variety of perspectives and discipline expertise, and as such many sources of conflict were discussed. It was evident that sources of conflict overlap for most families. In particular, implicit within professionals' narratives was the enmeshment of parents' concerns about their children and underlying relationship dynamics. That is, some of the triggers for disputes appear quite "child-centred", meaning that they seemed to arise as a result of concerns for the best interests of the child(ren), whereas others appeared to be more closely connected to "adult issues". However, it was noted that often people "blur" their ideas of their children's needs and their own relationship issues.

Parenting

It was clear from practitioners' discussions that different parenting values and styles were inherent in disputes about children. Professionals argued that differences in parenting styles may result in a reluctance, or a complete opposition, from one parent to allow contact with the other parent for fear of exposing the child(ren) to a parenting style that they find unacceptable. There was much discussion about the origins of divergence of parenting styles and ideas were raised about the nature of the relationship between children and parents.

Some practitioners noted that divergence in ideas about parenting and children's needs is characteristic to all parenting partnerships. As one participant noted:

people have different relationships with their children and … [the children] do different things with each parent … [so] the mother will have one perception of [the] children, their personalities and how they're doing, and the father will have quite a different perception. (Female case manager, Roundtable Dispute Management [RDM])

It was agreed, however, that divergence of parenting style and values is "exacerbated" in separated families. It was recognised by a number of practitioners that these different parenting styles and values, and an inability to subsequently parent together, may have been why parents separated. However, conversely, such differences can also occur because experiences of parenting after separation are generally very different.

The impact of gender and parental status on parenting concerns was commonly raised. It was noted, for example, that some resident mothers believe that time with non-resident fathers in some way interferes with the child's typical routine. Several practitioners felt that these concerns can arise from the experiences of mothers in spending more time with the child, which can lead them to pay greater attention to issues such as stability, nutrition, sleep and safety. As one mediator put it:

resident parents see the child a lot more, [and] know their routines and their limits … [and] all the nuances that the non-resident parent doesn't know. Hence, their arguments tend to centre on these issues. (Mediator, RDM)

Another practitioner suggested that at times this knowledge may be used to exclude the non-resident parent:

One parent, usually the mother, has the belief that she has the full exclusive knowledge about what is good in parenting and [she] has not really let go. (Mediator, Relationships Australia [RA])

In contrast, non-resident fathers were more likely to have concerns about the quantity of time with the child. There was a considerable amount of focus on the origins of non-resident fathers' concerns about parenting arrangements. Some practitioners pointed out that separation as a life event often acts as a catalyst for parents, particularly men, in reassessing their lives. Several professionals explained that, for some men, separation and divorce could lead to a reappraisal of their role as parents. A common perception was that separation and divorce provides the impetus for some men to:

take stock of their lives and sometimes make changes … [For example], they may have worked a lot when they were in the relationship and they have decided not to work so much to perhaps co-parent the child. (Mediator, Family Mediation Centre [FMC]).

Another commented:

It often takes the impact, or the impetus, of divorce and separation for blokes to get a kick in the arse and say, "Well, you know, 70 hours a week is probably the reason she left me, therefore I need to take stock, and I can take stock by changing my whole philosophy and realising that what's important [is] my children now and I have to do something about that". (Mediator, FMC)

However, professionals noted that at times these types of life changes are viewed with scepticism resulting in conflict, particularly when a reduction in work hours, or changes in the type of work performed, have financial consequences in terms of the amount of child support payable. This point was elaborated on in several of the focus groups, with the consensus being that actions such as these may be:

regarded with great suspicion because people are putting negative interpretations on each other on the decisions that they're making. (Mediator, FMC)

Another mediator from the FMC argued that disputes may arise when a parent wants to make some life changes and be present as a parental figure for the first time following separation, and this renewed interest can be hard for the primary carer to find credible.

Other professionals suggested that societal changes that have led to an increase in men's involvement in family life and child rearing have also led to an interpretation by some men that their parenting responsibilities are "rights" and "entitlements". This paternal "stance" was described as a potential trigger for conflict, particularly between parents whose previous relationship was quite traditional in terms of the division of labour within the home. Other professionals interpreted parental contact disputes following separation and divorce as a way in which parents, particularly fathers, seek to prove their love for their children. At the more extreme end of this perception, professionals described hearing parents, usually fathers, saying that although they might lose in court, their children will at least know that they fought for them.

Mental health issues, drug/alcohol and violence concerns

Practitioners noted that often families who were in entrenched conflict had multiple problems, including psychiatric, substance use and violence issues. These issues contributed to disputes as they are often sources of safety concerns. As one professional commented:

You get one parent who is worried in terms of protective issues … one parent is using drugs or alcohol to an excess, and so they don't want the children exposed to that. (Conference Chair, RDM)

Such issues also limit parents' abilities to cooperate in their arrangements aimed at caring for the children.

Families who have special needs … are in a much more vulnerable situation … They may need a different level of support to hold a [parenting] agreement … [and] there are higher risks for them. (Mediator, FMC)

The difficulties in working with parents with untreated mental health issues such as depression or personality disorders (e.g., narcissism) was particularly noted. One family lawyer observed that "psychiatric illness [and] personality disorders … [limit] parents' insight into their behaviour and how its affects their children". Several practitioners noted that the "inflexibility" associated with such disputes was related to not only the "rigid" or "internally-focused" thinking of parents with such issues, but also the other parent's profound distrust (fairly or unfairly) of their parenting abilities.

The resultant complexity of these issues generally resulted in the dispute proceeding to court and the entrenchment of conflict. In relation to this, some practitioners argued that alternative dispute resolution processes are limited if issues of violence are relevant, particularly if there needs to be a determination of safety risks.

Change of circumstances: Children's development, relocation and re-partnering

All focus groups addressed the impact that parental relocation can have on contact arrangements. The prevalent feeling among the groups was that when one party relocates, contact is made more difficult in a practical sense. Travel considerations need to be factored into contact arrangements where previously provisions of this kind may not have been required.

Relocation also has financial implications for parents, particularly contact parents. One professional at CSA noted that when the need for travel increases, the cost of contact can increase exponentially. Furthermore, this increase in travel costs might upset the balance in terms of how much child support the contact parent should pay versus how much it costs to have actual contact. Others argued more generally that greater geographical distance between parties increases the difficulty in negotiating arrangements suitable to both parents.

Practitioners explained that children's development could often generate conflict between parents, as contact arrangements require revision and reworking to meet a child's changing needs. Furthermore, as children become less adaptable in terms of fitting in with their parents' wishes, conflict (or further conflict) can result. In some cases, accusations are made regarding whether the desires expressed by a child are in fact the child's own wishes or whether they are indirectly speaking for one of their parents.

Re-partnering was also repeatedly cited as a trigger for conflict between former partners.

The link between money and contact: The entangled nature of child support and contact and the role of negative attributions around parental motivation

Despite the legal distinctions made between contact and child support, it was apparent from the professionals' descriptions of their work with parents in these contexts that this distinction is not necessarily experientially felt.¹⁵ Several expressed a frustration in trying to help parents understand that the two are not connected; one is about relationships and the other is about money.

You hear it every day … He won't pay because she doesn't give him care and she won't give him care because he doesn't pay. (Mediator, FMC)

Several professionals described the difficulty experienced by some parents in accepting the other parent's desire to change the way they parent—for example, a desire to become a more "hands-on" parent. This difficulty is exacerbated by the consequences that changes such as these have on the amount of child support the contact parent pays and the resident parent receives. Many professionals commented that this is one of the more challenging issues encountered when working with separating parents in devising contact arrangements for their children.

In line with this, when parents debate the virtues of one contact arrangement over another, it was argued that it can be difficult to decipher whether:

they are talking about a contact arrangement that is supposedly in the best interests of the children [or whether] … this is about saying, "I don't want you to have more time because it means less money to me," or, "I am asking for more time because it means that I pay less money". (Mediator, FMC)

Several professionals argued strongly that money, in the form of child support, plays a "big part" in contact disputes, causing considerable angst and conflict between former partners. One professional commented that at times there seems to be an inability on the part of some parents to make the connection that:

when they are talking about these money issues … what they are talking about at the end of the day is what their children will have to live on, and reconciling that "I'm worse off, and they're worse off" … So trying to take from the other person isn't necessarily the answer. (Mediator, FMC)

Another common theme was the degree to which negative attributions are made around a parent's motivation for making some life changes; for example, deciding to be a more involved parent. Although briefly addressed under "Change of circumstances", it is equally relevant here because of the interplay between the financial implications of such life changes and the negative attributions made as a result. This theme was evident in the words of one practitioner:

The link between the number of nights and the child support payable is a huge issue in mediation because you are counting and then you flip over the 109 [nights] and you go to a different formula and all of a sudden she says "you are doing it for the money" and he says "no, I am not", and then you have got to try and unlink them … [There are] huge issues around that. (Mediator, RA)

Other professionals argued that the nature of the child support legislation exacerbated disputes in this area. One commented:

A lot of care disputes come down to the nature of the legislation in a lot of ways, too, because the formula is very inflexible, in that there are cut-off points … and often it's one or two days that can make an enormous impact on the assessment, so people will try and get their court orders worded in such a way that it falls short, or just above, the threshold. It's unfortunate that one or two days can be the source of so much contention, because in reality sometimes those couple of days equate to thousands of dollars one way or the other. (Professional, CSA)

This linkage of child support and contact in the minds of some separated parents was pointedly made by another professional.

Unfortunately, the children are often seen as commodities that have a big influence on the relative financial status of the parents and it can become a tug of war over the children for money reasons, particularly in the early stages of separation when there is still a lot of conflict between the parents. (Professional, CSA)

The nature of the separation: Who ended the relationship and was there a third party?

The nature of a separation was seen as a "crucial factor" in predicting and understanding the character of ongoing parenting relationships between former partners. A number of professionals discussed the impact of third-party involvement in the demise of a relationship; that is, where one party has been left for another person. The prevalent feeling among professionals was that when this occurs it often:

creates a level of anger and hostility … [which] is very difficult at that point in time. (Mediator, RA)

Another related factor seen to trigger conflict between former partners was the degree to which both parties had come to accept the ending of their relationship and which party ultimately decided to end the relationship, or which party "called the shots". Some professionals suggested that these different roles (that of the "leaver" and the "left") meant that the parties were at different stages of grieving and acceptance of their separation and divorce, and at times this led to different emotional responses from the parties.

One mediator elaborated on this point.

Early on … particularly if one person has chosen the separation, they've often thought about … how it might play out, but the other person is still dealing with that separation that they didn't want … [They may also have] a real sense of loss and a sense of injustice: "This has been done to me in some way and I didn't want it and therefore I am not going to be ripped off any further … so now I am going to fight for my rights and I want a fair go." (Mediator, FMC)

Unfinished business: Unresolved personal/relationship issues and relationship history

All focus groups addressed the degree to which communication issues between the former partners lead to and exacerbate conflict. One professional commented that in cases where there is protracted conflict between the former partners there was usually:

a really problematic relationship and then it just continues … There has been absolutely no communication since separation between the parents … and they don't want there to ever be any … I think they focus on that rather than coming up with solutions for the child. (Case manager, RDM)

This statement was met with much agreement. Another mediator suggested:

The obvious thing is communication … Characteristically they are blown if their communication is broken down. They get what we call negative intimacy. They make negative assumptions all the time and then they start to communicate less because it's too hard and the children get caught in the middle, [taking] messages between the parents. (Mediator, RA)

Several professionals argued that a focus on interpersonal issues diminishes a former couple's ability to be child focused. Even after separation, the emotional ties to one another can still be quite strong and the feelings of hurt, loss and grief may seem insurmountable, particularly in the early days. Many professionals raised this point. One put it this way:

When people separate they can lose their sense of who they are because it is all so tied up in the relationship and [the dispute] gives them another story (as victim), [which] gives them something to hold on to for the moment. (Mediator/psychologist, RA)

Another described the process of dealing with such issues.

People go through different stages [during] separation and after a period there is an acceptance and they grow towards a solution … But in the early stage, just after separation, there is a lot of difficulty in separating the issues between the parents and the issues revolving around the children. (Professional, CSA)

Some professionals also pointed out that parents can repeat relationship patterns of old. Conflict and difficulty in communicating may have been a feature of their relationship prior to separation, and after it.

That's the only way they know how to deal with each other. (Mediator and family lawyer, FMC)

To illustrate this point, one psychologist and family law practitioner remarked:

The more functional the relationship while it's together, the more functional the separated parents are going to be. (Family lawyer, Victorian Legal Aid)

This same professional also suggested that, in some cases:

Contact disputes happen before [a] child is even conceived … The seeds are there in the relationship between the parents.

Interventions for resolving contact disputes

It was evident that practitioners employed a wide variety of strategies, which allowed them to deliver interventions that were specifically tailored and timed to individual circumstances. Implicit within the responses was the importance of flexibility in working with families in dispute.

One of the main themes in practitioners' responses was the inherent difficulty of parents who are in dispute to focus on the needs of their children. In line with this, many practitioners described the use of "child inclusive" or "child-focused" approaches to dispute resolution. Practitioners explained that this approach aims to "bring the children's voices into mediation" and to encourage parents to reflect on their children's experiences and needs, particularly regarding the co-parental relationship and parenting arrangements.

One of the central tools of a child-focused approach that was described by practitioners was to interview children with the aim of understanding their experiences of parental conflict and what they want regarding separation. Practitioners described the process of providing information from such interviews to parents as very effective in helping parents to resolve conflict.

When that feedback is given … sometimes it is a really powerful technique to help parents actually focus and be able to put themselves and their own pain aside and think, "this is what the kids think, and we've got to do it right for them". (Mediator, FMC)

Practitioners also described how a key aspect of child-focused approaches involves an educative component, whereby parents are provided with the information needs of children in relation to different parenting arrangements. For instance, if parents want shared care of a 6 month old they would receive information about child development and practical considerations in relation to facilitating such an arrangement. One service described a parenting checklist that outlined aspects of the arrangement that need to be considered in making an agreement (e.g., holiday arrangements and sharing of information between parents about the child). Parents may also receive booklets and audio-visual resources about the needs of children experiencing separation.

Other techniques employed by participants to focus parents on their children included inviting parents to describe their child and the child's interests, writing the child's name on the whiteboard during mediation, and using the child's name and referring to the parents as "mum" and "dad". In general, practitioners described the child-focused approach as very effective in helping to resolve disputes. As one mediator explained:

It has an emotive quality to shift people, [and] the ability [to get] people to reflect on what's happening, and think about what their children need. It doesn't always resolve the matter entirely but it usually has the ability to give [parents] insight and help people say, "OK, maybe we need to think differently". (Mediator, FMC)

In general, practitioners highlighted the importance of a sensitive approach to parents' individual experiences, which allows them to feel heard and that their point of view has been validated. Many practitioners also described the potential benefits of providing individual counselling sessions for parents in conjunction with mediation. These sessions allow parents the opportunity to speak openly about the painful personal issues that they may be experiencing as a result of relationship separation. In such sessions, parents can experience "empathy for and acknowledgement of" the difficult situation in which they find themselves. Such processes may be necessary before insight into the dispute is possible and before some progress can be made. They may provide:

somewhere where [parents] can normalise what they are going through; a bit more time … to manage what they are going through. (Mediator, RA)

For parents who were stuck in terms of making an agreement, another commonly cited technique was to suggest an "interim" agreement, which involves parents trying to cooperate in a certain arrangement for a short period of time (e.g., 2 weeks). Such techniques were useful in opening parents up to ideas and practicalities that they would not have otherwise considered. As described by one practitioner:

Interim arrangements are good when you [deal] with parents in great chaos. It is good to work with them to make arrangements for just the next two weeks until they see you again, then check how that went and then [make an arrangement for] the next month. (Mediator, FMC).

Limitations in interventions

In discussions about interventions, it was noted that each type of intervention had to be carefully assessed. The effect of allegations of violence on the mediation process was particularly highlighted. Specifically, it was observed that mothers who had experienced spousal violence and had resultant concerns for their own and their children's safety were often very reluctant to initiate or participate in mediation; if they did participate, they were often very clear about the issues they were willing to negotiate (e.g., supervised contact vs no contact). Practitioners noted the heightened level of stress and anxiety within families, especially for women who raise allegations. According to one child legal representative, many of these women also had childhood histories of such experiences. It was noted that misreading or underestimating the effects of violence greatly undermines the capacity of the dispute resolution process.

Views concerning the benefits of the legal system were quite nuanced. This seemed to relate in part to differences in the extent to which family lawyers were involved in the services from which practitioners were recruited. Despite this, it was commonly recognised that many parents seemed to be influenced by cultural perceptions that marriage breakdown is an event that must be played out in an adversarial manner, which most practitioners believed increased the likelihood of more entrenched conflict. It was thought that parents are motivated to involve the legal system out of a desire to be vindicated, to hurt the other party, or simply to be heard. But it was generally agreed that expectations of what the court will deliver often exceed outcomes.

On the other hand, some practitioners cited the importance of good legal advice during the mediation process in protecting the parent from future legal action or situations in which there are protective or safety concerns. This view was encapsulated in the following comment:

You have cases … of highly entrenched conflict … that need judges to make decisions because the [alternative dispute resolution] system can't make decisions with [regard to] risk … [and] protective concerns. (Mediator, FMC)

The next chapter reports on the results of interviews with a non-randomised sample of parents or carers who had attended mediation in an attempt to deal with significant levels of ongoing conflict over children following separation.

4. Parents with ongoing post-separation conflict: a qualitative study

The study reported in this chapter gathered qualitative data from individuals who had significant ongoing conflicts and who had volunteered to participate in child-focused mediation. The interviews, most of which took place in parents’ homes, were constructed in such a way that each individual was allowed sufficient time to tell their story. Key research questions explored were:

• To what extent were these separated parents with ongoing conflicts about their children able and willing to focus primarily on the needs of their children?
• Would there be any direct or indirect evidence that the children had a "voice" in the dispute?
• To what extent would these separated couples be distracted by concerns driven by spousal relationship issues or by issues largely unrelated to the welfare of the children?

Participants

Participants in this particular part of the study were individuals who were assessed to be in significant levels of ongoing conflict over their children post separation, but who had agreed nonetheless to attempt to mediate the dispute in a community-based agency. A screening instrument developed by AIFS was used to determine if a dispute or series of disputes over parenting arrangements had occurred during the previous 12 months and had remained unresolved during that time.

In total, 18 individual interviews meeting these criteria were conducted. Of these, three were excluded. One was excluded because of a recording error that did not allow accurate transcription. The other two were excluded because by the time the interviews took place it had become clear that the disputes had been substantially resolved. The final sample, therefore, consisted of 15 participants (nine male, six female) who were clients of community-based mediation and dispute resolution organisations. All but one of the interviews was conducted face-to-face. One interview was conducted via the telephone as the respondent had moved interstate and was unable to attend in person.

The mean age of male participants was 44 years (range 35–53 years). For the five female participants who gave their exact age, the mean age range was 45.2 years (range 39–54 years).¹⁶ Of the final sample of 15 participants, 14 were experiencing ongoing post-separation parenting disputes with the other parent of their children, while one dispute was between a mother and daughter over parenting arrangements with respect to a grandchild. It was decided to include this grandmother in the sample because of her claim to have had a significant parental-type role in her grandchild’s life prior to her daughter’s separation.

Tables 4.1 and 4.2 provide an overview of key demographic information as well as the existing parenting arrangement.¹⁷ Table 4.1 reveals that eight participants lived in an urban setting, three lived in regional centres and a further three lived in rural locations. One participant preferred to not disclose her location category. Three participants were earning less than $20,000 per annum, four were earning between $20,000 and $60,000 and five had incomes in excess of $60,000. The income levels of two participants were not available. There was no obvious link between location and earnings. Table 4.2 reveals the number of children impacted upon by the dispute, varying from one to six. It also suggests that the parents in dispute were experiencing a wide variety or parenting arrangements, ranging from full-time care, to shared parenting, to no contact at all.

Note: ^*Pamela is the child’s grandmother.

Note: *Pamela is the child’s grandmother.

Scope

The interviews explored participants’ perceptions of the reasons for separation, the nature of the dispute and the forms of dispute resolution interventions that had been tried. Although the interview schedule was used to direct and guide the interview process, the overall interview style was semi-structured and allowed for further exploration of topics as they arose. Techniques such as open-ended inquiry, reflecting, summarising and probing questions were utilised to draw out the underlying themes.

Procedures

Participants were recruited from mediation services in an Australian capital city. A letter was forwarded to clients of these services. Information on the study was also displayed in waiting rooms. Interested parties then contacted AIFS and were screened for inclusion into or exclusion out of the study. Parties who met the inclusion criteria were then asked to participate in the semi-structured interview. This interview ran for between 20 and 90 minutes (average time 75 minutes). Participants were interviewed in their homes, at the relevant mediation service or at mutually agreed upon premises. The interviews were recorded on an iPod and a tape recorder and later transcribed using a professional transcription service.

All participants provided both oral and written informed consent, which consisted of a plain language statement. Following the interview, participants were thanked for their time and were provided with a $20 payment to offset expenses associated with attending the interview.

Methods of data analysis

The issues that led to and sustained the parenting disputes were analysed by using the case-study technique recommended by Willig (2001). Willig suggested that the defining features of case studies are:

• use of an idiographic perspective-the researcher is concerned in the first instance with understanding this particular case;
• attention to contextual data-the researcher pays attention to the ways in which the aspects of the case relate to or interact with other social and environmental factors;
• triangulation-validation of data is facilitated through cross verification from more than two sources;
• a temporal element-this assumes that the investigation of occurrences is sensitive to developments over a period of time. Just as the investigation does not privilege a single instance, it also does not privilege events or descriptions that occurred only at one particular time; and
• concern with theory-theoretical support from other studies or other examples that might add weight to or challenge the emerging understandings.

A "case" in this study focused on the perceptions of one of the individuals in dispute regarding what was causing and sustaining the conflict around post-separation parenting in his or her particular situation. After recording and transcribing the interviews, the material generated was summarised for each case. A template was developed to guide the exploration of the transcripts. The template contained the following sections: relationship history, current relationship status, beliefs about children’s contact with both parents, post-separation parenting arrangements and disputes over parenting arrangements. Each section of the template contained a subset of questions. Several questions were asked to gain an understanding of the participants’ relationships, including length, status at the time of separation, reasons for the separation and current relationship status with the former partner. The parenting arrangement section included questions about current and prior child-care arrangements, ideal child-care arrangements and the identification of beliefs that might be contributing to these arrangements. The dispute section included questions about the nature of the dispute(s), barriers that contributed to effective dispute resolution and interventions utilised to resolve such disputes. The template was completed for each participant.

The identification and formulation of themes involved several additional steps. First, each transcript was subjected to prolonged engagement. That is, the transcripts were read a number of times so that emerging themes and hypotheses could be generated. The themes and hypotheses were then checked for consistency or otherwise within and across cases.

Conducting an inter-rater reliability check on two of the transcripts selected at random further confirmed the consistency. To do this, a second rater, not involved with the research, was instructed on how to analyse the transcripts using the templates. These templates were compared with those analysed by the first rater to determine points agreed upon and points of difference. The total points agreed upon for the two templates were expressed as a percentage of the total of answers (that is, a total of those agreed upon, those in difference and those in disagreement). Templates were found to have an average of 94.2% inter-rater reliability.

Results

Initial case summaries are presented below.

Case 1: "Fred"

Fred commenced co-habiting with his partner after a 12-month relationship; they subsequently married. In addition to having children together, Fred’s former partner brought children from a previous relationship into the marriage. Fred reported that there were some issues in their relationship for which they had sought counselling. At the time of the dissolution, he was negotiating to see another counsellor. He said he found out about the end of his relationship when he returned to the marital home from work to find his wife and children gone and a note advising that contact would be made "when we’re ready". At this point he contacted the police and engaged a solicitor. He attributed the separation to factors such as financial issues, conflict over his former partner’s children from the previous relationship and limited time spent together as a couple. At the time of the interview Fred said that communication with his former partner had broken down and any communication between them was via solicitors. He said he had contact with one child (a son) at a contact centre. It was difficult to ascertain the factors that were contributing to Fred’s post-separation parenting dispute, as he was unable to list any factors that in his view could have been contributing to the problem.

Case 2: "Grace"

Grace had commenced co-habiting with her partner 6 weeks into their relationship. They subsequently had three children, one of whom had significant special needs. Grace stated that when she was 6 months pregnant with her youngest child, her relationship with her former partner deteriorated due to his issues with anger and decreasing time at home. She later found out that he had been and was continuing to use an addictive drug. Grace reported obtaining an intervention order because of her former partner’s verbal and financial abuse of the family generally and his abusive behaviour towards one of the children in particular. She attributed the relationship breakdown to his controlling nature and believed the separation was in the best interests of the children. She specifically attributed the post-separation parenting dispute to three core concerns: her former partner’s drug use, his association with an alleged sex offender and his inability to adequately care for the children. Notwithstanding Grace’s concerns, her former partner has the children in his care for two out of every 14 days. Grace is unwilling to have any formal contact with him.

Case 3: "Pamela"

At the time of the interview, Pamela was in dispute with her daughter over spending time with her grandchild. According to Pamela, the relationship breakdown with her daughter was mainly linked to property/financial issues. Her daughter and her daughter’s family had been residing in a property owned by Pamela. The house "needed to be sold" and her daughter was asked to vacate the premises. At the time of the interview Pamela was having no contact with her grandson. Pamela believed that her daughter’s reaction to the separation from her former partner was also contributing to the breakdown of the relationship between herself and her daughter.

Case 4: "Tammie"

Tammie married after a 2-year relationship; they separated after 23 years of marriage but at the time of the interview were not yet divorced. Tammie reported that she had woken up one night to find that "something" had happened to her which left her partially disabled. From her point of view, the disability caused a "lot of inequity" in their relationship, which included financial inequities. Though her former husband decided to terminate their relationship, Tammie said he remained living in the family home. She attributed the relationship dissolution to "differences in their values about money and people" and her former partner’s controlling behaviour. Tammie requested that her former husband leave the marital home when he commenced a new relationship shortly after their marriage breakdown. From her point of view, the parenting dispute was about "their differences in values, her former partner’s inability to compromise and the role of his new partner in raising her children-especially given his extensive work commitments". Tammie said that from her former partner’s viewpoint, however, there is an ongoing dispute about money and child support payments. Tammie has shared care of their older child and major care of the younger child, who has roughly 4 days a fortnight with his father.

Case 5: "Lainie"

Lainie was married for approximately 18 years, and at the time of the interview had been separated for 10 years. For Lainie, the main issue in their relationship was "the level of her husband’s sexual demands". After their relationship breakdown, Lainie’s former husband continued to reside in the family home for some time and then moved into his own home. He initially spent time with his four children on 1 day a week, but "on the recommendation of her solicitor", this was altered to 2 days a fortnight-that arrangement continuing for approximately 7 years. According to Lainie, the arrangement broke down due to a dispute about the travel arrangements and her former husband’s "desire to control her". Lainie’s experience of that desire to control her brought back memories of the marriage-an underlying issue that had contributed to the relationship dissolution. She was also concerned at the time of the dispute about travel arrangements that the children’s father was not setting appropriate boundaries and was providing the older children with alcohol and "inappropriate photographs of women". At the time of the interview Lainie said that while the existing arrangement of 2 days per fortnight "remained in place", the children’s father was not seeing them and was refusing to discuss matters with her except via written correspondence.

Case 6: "Will"

Will commenced co-habiting with his partner after a 2-year relationship. At the time of the interview, their two children were below school age, though his former partner also had two teenage children from a prior relationship who also lived in the household. Will attributed the dissolution of their relationship to factors such as their "differences as people, his former partner’s dislike of his job, her need for things to be her own way and her friends’ influence upon her perception of him". Will said that their first child was unexpected, his former partner having told him she was unable to have any more children. Though Will did not want any more children, he said his former partner became pregnant to him a second time. He "found out about the relationship breakdown" when he came home one day and found the home empty. Although he has time with his children during the week and every second weekend, Will has "no communication with his former partner". He said that time with children is "at the discretion of his former partner [and is] designed around his former partner’s needs". He sees the ongoing post-separation parenting dispute as being about the "inflexibility of the arrangements, financial issues and his former partner’s feelings of jealously".

Case 7: "Lincoln"

Lincoln married his partner after they had lived together for about 8 years. They have been separated for 6 years and are currently divorced. Lincoln said he found out about the separation when he came home one day to find the house in disarray and his wife and child gone. He attributed the separation to their "differences as people, his former partner’s manipulative and controlling behaviour and negative peer influences upon her". Lincoln also said that his former partner would describe him as "violent, racist and someone who displayed misogynistic behaviour". He said that the post-separation parenting disputes have been about the role of his former partner’s friend in his son’s life, and his former partner’s desire to control him and the child. He also indicated, however, that his former partner would say that the dispute has been about his violence and aggression. Lincoln has shared care of his son (2 weeks on, 2 weeks off). He also noted that "an anomaly in the court order" means that his former partner has an extra month over a 12-month cycle. He described the situation as a stalemate, noting that the only means of communication with his former partner was via a communication book, which "she refuses to use".

Case 8: "Raff"

Raff married his partner in the same year they had commenced co-habiting. At the time of the interview, Raff reported being separated for 1 year. He and his former partner were not yet divorced and had not finalised the division of their assets. Raff reported that factors that contributed to their separation were his former partner’s "gambling behaviour, her negativity, jealousness and loss of interest in life and her challenging him at every turn". He believed the problems became evident in their marriage when his former partner became pregnant but then continued after the birth of their son. He also believes that his former partner suffered post-natal depression. He initiated counselling but their relationship ended about two months later. Increasing arguments had been fuelled by his suspicion that his former partner was gambling. Raff said that when his former partner walked out of the family home, he changed the locks. He said he had to make use of the courts to obtain time with his 2-year-old son. He felt that the post-separation parenting disputes and the disputes over finances were entwined, though he attributed "95% of the dispute to finances and the other 5% to his former partner’s bitterness towards him for the termination of the relationship". At the time of the interview, Raff was spending time with his son, which included one overnight stay per week. He was planning to apply for shared care in the future.

Case 9: "Seb"

Seb married his partner in the same year they had commenced co-habiting. The marriage resulted in the birth of one child, aged 7 at the time of the interview. At this time, they were separated but not yet divorced. Seb’s former partner also had two children from a previous relationship, aged 17 and 14 years at the time of the interview. He reported that they had mutually agreed to separate, "as their relationship had been deteriorating for some time". He also said, however, that his former partner’s need to have everything her own way and her inability to "back down" on issues contributed to the relationship breakdown. In addition, after the birth of their child, his former partner "was diagnosed with depression and this had placed extra pressure on their marriage". Seb reported spending time with two of the three children on a regular basis, but that when this arrangement broke down, he had to have it "reinstated by a court". He believed that the disputes over child-care arrangements were fuelled by his former partner’s need for control and need to "win" as well as her perception of his inability to care for the children. Other issues such as where the child’s toys and presents were to be kept also contributed to disputes. Seb felt that underlying the disputes were his former partner’s feelings of resentment towards him for moving on with his life. He said he believed that child-care arrangements and child support are linked. He admitted that he had used withdrawal of child payment as a means of getting his former partner to negotiate.

Case 10: "Doug"

Doug married 3 years after he commenced living with his partner. They separated 7 years later and were divorced at the time of the interview. They have two daughters aged 9 and 6 years. Doug reported that his former partner had advised him that he was the cause of her depression and that one of them had to leave the marital home for a short-term separation. He said he moved out of the family home, but that a week later his former partner told him that the separation would be permanent. He "tried counselling but it was unsuccessful". Doug added that during their marriage he had felt criticised by his former partner and that this had also contributed to the relationship breakdown. He attributed the post-separation parenting disputes over their two children to a variety of issues including his former partner’s "distrust and mistrust" of him and their "perhaps mutual hatred of each other". He also felt angry because he believed that his former partner could make a financial contribution by working but chose not to. Doug said that the parenting dispute was initially about finances, but that this had evolved into a dispute about holidays. From his former partner’s point of view, he said, the dispute was mainly about her perception that he was unable to care for the children. After the separation, Doug initially took some time to "sort things out" and then arranged to parent the children 3 days out of 14-increasing this over time to 5 days in 14. His application to the court for shared care was not successful and he feels things are currently at a stalemate. Communication is through a communication book or by email, "so that the children are not exposed to our arguments".

Case 11: "Robbie"

Robbie married his partner, 15 years his junior, after a 3-year relationship. They are divorced and at the time of the interview had two children aged 8 and 11 years. Robbie reported some difficulties in their relationship related to frequent arguments about the children’s care, which caused him to distrust his former partner. He stated that he found out about the end of his relationship when a police officer attended his workplace with a restraining order obtained by his former partner, indicating that he had threatened to shoot his wife and children. Robbie reported that the relationship separation was caused by the level of mistrust between them, child welfare issues, his lack of love for his former partner and his former partner’s allegations of his violence. He indicated that the post-separation parenting disputes have been about the "vile hatred" he and his former partner feel towards one another. Robbie felt that his former partner would see the dispute being related to his former partner’s perception of his level of aggression, violence and threatening behaviour, while other contributing factors cited included financial and child welfare concerns. Robbie represented himself in court, as he was not satisfied with his prior legal representatives. He has time with his children for five out of 14 days and has had up to six contact orders.

Case 12: "Harry"

Harry married his partner, 10 years his senior, "a bit over 6 months after we had started living together". At the time of the interview they had been separated for 2 years but were not divorced. They had one male child who at the time of the interview was aged 19 months. Harry said that at the time his former wife moved out, he did not know that she was four months pregnant. Prior to their separation, they were assaulted by security guards at a concert. Harry believes that coupled with a "general breakdown in their relationship", this event was a catalyst for the breakdown of their relationship. Harry said that the post-separation parenting dispute over their 19-month-old child is based on his former partner’s fear of the potential damage a father could inflict-a fear he believes is based on his former partner’s own childhood experiences. Harry felt that other factors contributing to the ongoing dispute included different values about money, his former partner’s lack of empathy towards him and her unwillingness to take him seriously as a father. Harry originally spent time with his child 1 day a week at his former partner’s house. As she is currently residing interstate, however, Harry now sees his son only once every 6 weeks. He said they communicate via lawyers and that the situation is completely unsatisfactory.

Case 13: "Des"

Des commenced living with his partner 2 years before they were married. Now divorced, the marriage produced three children who at the time of the interview ranged from 8 to 13 years in age. Des explained that he and his former partner experienced financial difficulties, which required them to sell their house. He believes this to have been the "beginning of the end" of their relationship. In fact he views finances, "as being the sole reason for the relationship dissolution". Des said he found out about the separation when he received a phone call from his mother advising that his former partner, who was away at the time, had left him. He then received a letter from a lawyer requesting that he leave the family home so that the children and his former partner could return home. Following the separation, Des did not see his children for five months. He took the matter to court and said that a psychologist’s report recommended he have supervised access with his children for 5 hours per week for the first 6 weeks, which then increased to 9 hours with the children per week. This lasted for nine months. Des said that at this time he "smacked" his youngest daughter for being rude and was then accused of child abuse. He links the post-separation parenting disputes to his former partner being "possessive as a mother" and to her view of him as being a "raving lunatic". Des had not seen his children in the three months prior to the interview and had had no contact with his former partner.

Case 14: "Charlie"

Charlie married her partner after they had been co-habiting for 1 year. They were married for 11 years and at the time of the interview had been separated for 5 years. Prior to leaving the relationship, Charlie had sought legal advice. When she left the family home, against her husband’s will, she did so with the two children of the marriage and their suitcases. According to Charlie, a parenting agreement was created at the time of separation, which allowed for them both to employ their children’s nanny so that she could move between the two homes. Their separation subsequently became acrimonious and Charlie obtained an "anti-molestation" order against her former partner. Eventually she sought advice from a "QC" and filed for full-time care of the children. Charlie thought their marriage broke down because there was "nothing left" between them and she no longer wanted to remain in the relationship. She also felt that she was dominated and bullied by her former partner. Charlie said that the child-care dispute had been a proxy for a property dispute and that her former partner had not been able to separate the two issues-perhaps because he felt embarrassed by her decision to terminate their relationship. Though Charlie now has shared care of her children, she said that currently she does not have any communication or contact with her former partner.

Case 15: "Nellie"

Nellie was interviewed by telephone as she was living interstate at the time. Nellie separated from her former partner about 15 months after marrying. She stated that she was older than her former partner and that they had had an agreement to retain their separate houses during their marriage. The fact that her former partner did not abide by this agreement was a major factor in her decision to terminate their relationship. In addition, prior to terminating the relationship, Nellie and her former partner had been the victims of a physical assault. According to Nellie, this too acted as a catalyst for leaving the marriage. Three weeks after she terminated their relationship, Nellie found out that she was pregnant. At the time of the interview she had full-time care of their young child, who had been diagnosed in utero with a chromosomal disorder. Nellie’s loss of independence and her desire not to be dependent upon her partner were her stated reasons for terminating the relationship. She believed that 75% of the relationship dissolution was attributed to her loss of independence, while the remaining 25% was related to an imbalance in their priorities. She also thought that her former partner had control issues. Prior to moving interstate, her former partner had had time with their son 1 day a week in her home. Nellie felt that their post-separation parenting disputes were related to finances. She reported that her former partner was only contributing $20 a month in child support. Nellie felt that if he wanted time with their son, he needed to be more financially responsible. She was also distressed by her former partner’s response to the news of their son’s diagnosis, believing that he was putting his own needs before those of their child. She said she saw parenthood as a gift, while her former partner viewed their son as an extension of himself, lacked parenting skills and sought to control him. She said that contact with her former partner is undertaken via lawyers.

Thematic analysis

The issues fuelling the disputes in the above cases can be broadly categorised as:

• exclusively child-focused (1);
• exclusively spouse-focused (6);
• combined child- and spouse-focused (7); and
• no relevant information (1).

As Table 4.3 shows, "Exclusively child-focused" disputes occurred in only one case. "Exclusively spouse-focused" disputes, which reflected disputes such as property and financial issues, and feelings about their former partner accounted for six cases, while a combination of child and spouse-focused disputes occurred seven times.

Note: *Fred was unable to provide insight into the contributing factors to his post-separation parenting dispute.

Exclusively child-focused disputes

As noted, only one dispute within the sample could possibly be categorised as "Exclusively child-focused". There is no doubt that the dispute was strongly motivated by concerns about the other parent’s ability to care adequately for the children. For example, the following question was posed to Grace:

I just want to take you back to the contact disputes and you said there were three main reasons for you around the contact dispute. There were the drugs, there was contact with X and there was concern regarding [your former partner’s] ability to adequately care for the children. If I gave you a pie and said how much does each issue get ... ?

Response:

A third each! They’re all incredibly strong points for me.

A worrying feature of this case was that in the face of these concerns, Grace’s former partner continued to have a significant caring role with his children and that during this time, Grace was having no contact with him. It could be argued, therefore, that this case more rightly belongs in the "combined child- and spouse-focused" dispute category. On the other hand, Grace’s strategy for dealing with her former partner’s behaviour (as she saw it) was to keep her distance. This could be regarded as a resolution of sorts, though it was a resolution that also put the children at potentially greater risk.

Exclusively spouse-focused disputes

Exclusively spouse-focused disputes consisted of parental disputes concerning the introduction of new partners, financial issues, continuation of the relationship dynamics and unresolved feelings about the other partner or about the dissolution of the relationship. Exclusively spouse-focused disputes occurred in six cases. The contributing factors in each case are explored and presented in Table 4.4.

Table 4.4 reveals that the majority of exclusively spouse-focused disputes combined at least two contributing factors. Financial disputes and the continuation of the relationship dynamics were the most prominent. Less prevalent factors included ongoing feelings about how the relationship ended, "different values" and the presence of a new partner or the role of another party (friend of former partner).

Lincoln, for example, indicated that his post-separation parenting dispute was linked to the continuation of the relationship dynamics with his former partner, combined with "interference" from one of her female friends.

The bottom line is that [my child’s] mother wants to have it her own way, and there endeth the lesson, and if she doesn’t get her own way then she will continue to litigate. The phrase "I will win in the end" was used by her shortly after the initial orders in [date], and she meant it. [Our son] was intended to be enrolled at the local Catholic secondary school but as it turned out one of her most venomous allies is in a senior teaching position at that school, albeit at another campus. So naturally when I found that out I withdrew consent for him to be enrolled there ... There is no negotiation, but that resulted in her resorting to litigation.

Doug saw that "distrust or mistrust, and probably hatred more than anything else" were the underlying reasons to his post-separation parenting dispute. He continued to feel criticised by his former partner.

I don’t think there’s ever going to be the trust ... I just get the feeling that it’s just too irreversible now, that’s it, and it’s too set in your own ways. I suppose you’ve got fairly proud stubborn people coming at it in different angles, that it’s never going to change, and ... I wouldn’t know how it would ever change.

Raff was asked about how intertwined were the post-separation parenting disputes and the financial disputes.

Absolutely, it’s a race. I don’t get contact with my son, or [I get] restricted contact, because she knows that the more she has my son, the bigger settlements she’s going to get, and she’s already said that, "if you want your son, you pay for it" ... So what she does is she stalls at every turn.

Raff had earlier indicated that "95%" of the dispute was attributable to finances, while the other 5% was related to bitterness towards him or bitterness about the dissolution of their relationship.

Harry indicated that one of his biggest issues was that contact with his child occurred within his former partner’s house, which he saw as controlling on her part. Also contributing to their dispute was the role of finances and different values about money, in that his former partner wanted had wanted expensive child travel, private hospitals and obstetricians. Harry felt misunderstood as a father and felt that his former partner did not understand the importance of his child in his life:

I feel as though it’s her obstinacy, her inability to negotiate, her basic lack of empathy for the feelings of the child’s other parent. She just doesn’t understand how much I love and suffer, you know, like how much I love [my child], and how much I suffer for not being with him, and I think, you know, to a certain degree he feels the same.

A specific aspect of the continuation of the relationship dynamic: Violence

Cases were reviewed to determine the role of violence within the disputes. Violence was viewed as contributing to the dispute when the participant reported or alleged violence or indicated that their former partner would say that violence was involved. One exclusively spouse-focused dispute met this criterion. Lincoln stated:

She tried to paint the picture of me being violent and aggressive and racist and lazy and if there was a negative it got a run … There was a dispute over something and I can’t for the life of me remember what it was, and she sat there and in front of [our son]-in his presence and hearing-said to me, "You never fucking wanted [our son] anyway". And of course that was a red rag to a bull; the hand came back ready to give her … and I realised I don’t know how or why but was like a light went off … hang on, the button has been pushed, and [I] withdrew and just brushed her hair with my fingers. I admitted to it in an affidavit and I admitted to it in court, because it’s a one-off event.

Combined child- and spouse-focused disputes

Seven cases featured disputes that mentioned both child- and spouse-centred themes. The contributing factors to each case are summarised in Table 4.5.

Factors that contributed to the spouse disputes were more often related to either the continuation of the relationship dynamic or either party’s feelings about the dissolution of the relationship. Factors such as new partners, finances and differences in values were mentioned in fewer instances. Child welfare factors such as concerns regarding the standard of care, or the ability of the former partner to care for the children, featured in five out of the seven cases, and boundaries or discipline issues featured in three out of the seven cases.

For some it appeared that the child welfare issues were secondary to the spousal dispute between the former partners. Lainie, for example, felt that underneath the issue of the child "handover" arrangements was her former partner’s desire to continue to control her:

If you analysed how he treated me in the relationship and [how he] felt it was okay to treat me, that is really what he’s doing now … [If] I don’t agree to change it [to] the way he has said it must be done, he’s not going to see the kids. So yeah, I believe it’s more important for [my former partner] to make me do as he says. (p. 21)

Another issue for Lainie related to the boundaries she felt her former partner was setting. During the interview, for example, she mentioned that her former partner had allowed the oldest child access to alcohol despite the child being under the legal alcohol-consumption age. Such issues did not appear to be as strong for Lainie, however, as her concerns about continuing to feel controlled by her former partner.

Reports of violence featured in three of the cases that contained a combination of child and spouse disputes. Robbie said he had been accused of violent behaviour.

I was at work and in walked a copper and said, "Here’s a restraining order. Where’s your guns? You threatened to shoot your wife and your children." No such thing ever took place.

Robbie claimed that the reverse was the case and that he had proof that his former partner had set out to have him killed.

Des had had no contact with his children and thought that they were now scared of him. He was angry about an intervention order that had been taken out on him.

I said to her lawyer, "What am I meant to have done to warrant this sort of procedure?" and she said, "You called your wife a f-king bitch." I said, "Well, how serious is that on the scale of things?" and she said, "Very serious" … But over time the allegations have escalated dramatically … I think they call it "allegation creep" … So it’s gone from, you know, swearing at my wife to being a menace and dangerous and blah, blah, blah.

Charlie had taken out an "anti-molestation" order against her former partner on the grounds of his abusive behaviour. She noted a continuation of this relationship dynamic within the current parenting dispute.

He likes to dominate me, and I guess interestingly, if I think about his behaviour, it’s about domination, and I just won’t be dominated. And so when we have these disputes about custody, it was about me not being dominated; I am not going to be bullied and he’s a real bully and I just won’t put up with it.

Children’s roles in the process of negotiating post-separation parenting arrangements

Across the three themes already noted, the area of children’s views or wishes in working out parenting arrangements post separation was explored. More particularly, participants were asked if their children’s views were taken into consideration when working out their post-separation parenting arrangements. Table 4.6 reveals that it was overwhelmingly reported that children were not consulted by their parents in working out such arrangements.

Tammie’s children had requested that care be shared between their parents. She reported that this request had been agreed to with respect to the older child only.

If he wanted to go and live with his new partner I would feel absolutely embittered and spiteful to think another woman was bringing up my child 50% of the time, because [my former partner] would not be there. I didn’t want to lose [my son] at 12 [years of age].

Most participants did not elicit their children’s views in caring arrangements post-separation. When asked if his children’s views were taken into consideration when negotiating parenting arrangements, Seb responded:

That’s really a light bulb moment for me there, I think. No, I’ve never actually discussed it with them. I think [my biological child] was too young to make a decision or perhaps understand, maybe. [My step-child] wasn’t.

Seb reported that one of his step-children attended the contact visits along with his biological child. He felt this was an "ad hoc" arrangement in that this child had been told she could attend "if she wanted to". Seb noted that her views had not been directly elicited.

Despite parents indicating that their children are "front and centre" of the post-separation parenting disputes, it appears that the majority of the sample did not discuss with their children, nor elicit from their children, views or wishes concerning post-separation care arrangements. While some were probably too young to be involved in such discussions, it is also clear that the majority of parents remained mainly focused on issues other than those that related directly to the welfare of their children.

Summary reflection

The parents in this sample had significant ongoing conflict about arrangements for their children but had nonetheless agreed to attempt to resolve their dispute through mediation at a community-based agency. These parents’ struggle to remain focused on their children’s needs would suggest that resolution of their dispute through child-focused or even child-inclusive mediation presents considerable challenges. The findings reflect those from earlier work by Smart, May, Wade, and Furniss (2005). In a qualitative study of 61 parenting disputes that were "skewed towards the high conflict end of court cases" (Smart et al., 2005, p. 1), these authors concluded that post-separation parenting disputes were often complex and that child and spousal issues rarely occurred in isolation from each other. They also noted that hostile relationships between former partners were common where disputes over children were ongoing.

Within the present sample of highly conflicted parents who had attempted mediation, a predominantly child-focused approach to the dispute appears to have occurred in only one case. Even in this case however, the focus on the child was limited in nature, the mother having opted to have no contact with her former partner while the children were in his care. This effectively meant that she was unable to monitor the concerns she had for their welfare during this time.

The other participants were unable to remain substantially focused on concerns they held for their children; instead, spousal issues were embedded in or dominated the parenting dispute. Indeed, most parents’ attempts to negotiate with their former partner about the needs of their children appeared to quickly reach a stalemate. Instead of focusing on their children, most parents became distracted by relationship dynamics or their own emotional processes. As noted for example, Doug indicated that feelings such as mistrust and hatred were underpinning his post-separation child-care dispute; and Tammie suggested that that her former partner’s efforts to control her led her to withdraw consent about the children’s travel, which in turn prompted her former partner to cease all contact with his children. Significantly, only two parents in the sample sought out their children’s views on parenting arrangements post separation.

5. Concluding observations

We begin this final chapter by considering key data from the Caring for Children After Parental Separation (CFCAS) sample of parents and then placing these data in the context of data derived from the AIFS evaluation of the 2006 family law reforms by Kaspiew et al. (2009), noted in Chapter 1.

The CFCAS data were collected between 2003 and 2006, the period immediately prior to the commencement of the family law changes of 2006. Though generalisations from these data must be treated with care (see cautionary statements in Chapter 2), the information provided by these parents nonetheless provides clues about the way in which post separation children’s issues were being dealt with during the period prior to the 2006 reforms. Along with the retrospective “Looking Back Survey” also conducted by AIFS (see Kaspiew et al., 2009), the CFCAS data provide some useful insights into the management of separation-related parenting disputes before and after the 2006 reforms.

About 33% of the parents in the CFCAS sample reported that they had found themselves in dispute about post separation arrangements for the children. Of these, 15% were court-adjudicated while a slightly greater proportion (18%) was managed through other means. In addition, of the roughly 10% of parents who indicated that their initial arrangements had been determined by a court, the proportion who reported that these arrangements were no longer in place was almost twice that of those who managed their dispute in other ways.

The fact that about two thirds of parents in the CFCAS sample reported no dispute about their children appeared to be a generally—though not entirely—positive finding. On the upside, the most common way in which parents said they dealt with potential disputes was by focusing on cooperation and by recognising the importance of compromise, flexibility and good communication. A more explicit child-focused theme was also was also evident in some of the reports.

On the flip side, a less positive way of avoiding disputes between parents in the CFCAS sample was for the parents to have little or no contact with each other, even though they continued to have a relationship with their children. This well-known dynamic had been identified earlier by Maccoby and Mnookin (1992) and labelled as “parallel parenting”. While little if any communication between parents might work in the short to medium term, to allow conflict to subside over time, in the long term, especially as children move into their teens, parallel parenting carries various risks, including children’s attempts to play one parent off against the other without the other knowing (Seddon, 2003).

At the more extreme end of the dispute avoidance dynamic were families in which one of the parents—typically non-resident fathers—was marginalised (or had marginalised themselves) within the family and had no significant involvement with the children. This pattern of parental (mainly father) absence following separation had been identified as a significant issue prior to the 2006 reforms (e.g., Smyth & Ferro, 2002; Smyth, Sheehan, & Fehlberg, 2001) and was indeed one of the drivers of the reforms (Smyth, 2009).

Like the AIFS studies noted in Chapter 1 (Kaspiew et al., 2009), the CFCAS data appear to confirm that even prior to the 2006 reforms, many separated parents were capable of dealing with disputes or potential disputes over children’s matters with little evidence of acrimony. Such processes are good news for children, for whom the way a dispute is handled rather than the dispute itself is probably the most important determinant of their ongoing wellbeing.

It is difficult to assess the impact of the processes experienced by the relatively high proportion (15%) of parents who reported that their dispute had been “determined” by a court—or indeed the precise meaning of the word “determined”. Data on the applications published by the Family Court of Australia for 2000–01, for example, showed that of those cases in which an application was made, almost two-thirds (64%) were resolved before reaching a pre-hearing conference. Of the 36% involved in a pre-hearing conference, only one in six (i.e., 6%) was finally determined by a judge.¹⁸ It is unlikely that all of the parents who said that their dispute had been determined by a judge had in fact proceeded as far as a full judicial determination. Indeed from the point of view of a parent in the CFCAS sample, “determination” may have been conflated with a “resolution”, which could have occurred at any time after the application was made.

A principle adopted within reports by both the Family Law Pathways Advisory Group (2001) and the House of Representatives Standing Committee on Family and Community Affairs (2003) was that though litigation over children was at times necessary, “supported” dispute resolution mechanisms such as mediation should be adopted whenever this was a safe and reasonable option.¹⁹ The first AIFS post-reform study compared parents who had separated after the 2006 reforms with parents who had separated between January 2004 and June 2005 (Kaspiew et al., 2009, p. 50). Kaspiew et al. found evidence of a modest post-reform increase in the use of counselling, mediation and dispute resolution services during or after separation (from 61% to 73%), a modest increase in the use of domestic violence services (11% to 14%), a modest decrease in the use of lawyers (74% to 67%) and an 11% drop in the use of courts (40% to 29%).

As noted in Chapter 1, the post-reform parents were again interviewed some 12 months later (Qu & Weston, 2010, Wave 2) and again roughly 5 years after separation (Qu et al., 2014, Wave 3). Five years after separation, more than two-thirds reported having used no services in the previous 2 years. Of the remainder, 27% made use of counselling, mediation or FDR, 20% consulted a lawyer and 14% had some involvement with the courts.

Roughly half of these parents also reported at each of the three waves that they had sorted out their parenting arrangements. A further 27% said that their arrangements had been sorted out at two of the three waves, while 16% said that parenting had been sorted at only one of the waves. By Wave 3, only 4% had never sorted out any of their parenting arrangements.

The Wave 3 data also reveal that as time goes on, there is an increase in the proportion of parents who see courts, compared to counselling mediation and dispute resolution services, as their main pathway towards resolution.

Table 5.1, reveals that though “discussions between parents” was most commonly reported as the main pathway by parents who had reached parenting agreements by Wave 1 (65%), by Wave 2 this figure had been reduced to 37%, and by Wave 3 to 25%. This decrease was offset to a limited degree by an increase over time of arrangements that “just happened” (Wave 1: 15%; Wave 2: 17%; Wave 3: 20%). More tellingly, however, the longer these parents took to develop their initial parenting agreements, the more likely they were to rely mainly on formal services (legal and non-legal) and the courts:

• Use of courts accounted for the steepest increase, from 3% of the group reaching initial parenting agreements by Wave 1, to 14% in Wave 2, and 21% in Wave 3.
• Use of a lawyer increased from 6% among parents reaching initial parenting agreements by Wave 1, to 13% by Wave 2, and to 15% by Wave 3.
• Use of counselling, mediation or FDR services increased from 9% in Wave 1, to 17% in Wave 2, and remained similar (16%) in Wave 3.

It is important to recognise that though, over time, we see substantial increases in the proportion who saw services as their main pathways and in the proportion who saw courts as the main pathway relative to other services, by Wave 3 the absolute number of parents seeking help from any source had dropped considerably.

Notes: Data have been weighted. Excludes parents who did not know or refused to answer (< 1% for each wave). ^a Includes “focus child decided”. Percentages may not total 100% due to rounding. *** p < .001; statistically significant relationship emerged between pathways used and wave in which parents reported sorting out arrangements.
Source: Qu et al., 2014, p. 55

Perhaps the most striking feature of Table 5.1 is the high number of parents who see themselves (either through discussions or who reported “it just happened”) as responsible for sorting out parenting at a relatively early stage and the relatively high numbers who at this stage saw counselling/mediation as the main pathway. In summary, there is an increased reliance on all services as time goes on and an increasingly steep rise in reliance on courts, lawyers and counselling/mediation. But by that point the number needing these services to reach resolution had dropped considerably.

Another way of thinking about the extent to which post separation parenting disputes have been diverted away from litigation since the 2006 family law reforms is to examine the data on applications for final orders in children’s and children plus property cases. Kaspiew et al. (2009) reported a 22% reduction in such applications between 2004–05 and 2008–09. Though these data were encouraging, the period was considered too short to express any confidence that a trend might be apparent. An examination of court data by Parkinson (2013) found a decrease in litigation in children’s and children plus property cases between 2004–05 and 2011–12 of 32%. Further analysis by Kaspiew, Moloney, Duncan, and De Maio (2015) found the decrease between 2004–05 and 2012–14 to be of the order of 25%.

Though these three sets of data leave little doubt that the 2006 reforms have been associated with lowering the rates of litigation over children, the continuing challenge for the family law system remains that of providing the most appropriate and timely response to parents in dispute about their children. In this regard, further analysis of the Wave 3 data conducted by Qu et al. (2014) revealed that parents who took longer to reach parenting agreements were also more likely to have ongoing family violence/abuse and safety concerns. Thus, among parents who had reached parenting agreements for the first time by Wave 3, 35% reported the experience of physical hurt and/or emotional abuse in all three waves and 11% had safety concerns across all three waves. By contrast, of parents who had reached parenting agreements by Wave 1, 20% reported the experience of family violence/abuse in all three waves and 3% had safety concerns in all three waves.

Perhaps not surprisingly, the latter data suggest that the higher the level of dysfunction, complexity or both, the longer it takes to reach a resolution regarding parenting arrangements. (And as noted, delays in reaching agreement are likely to impact negatively on the wellbeing of the children in dispute.) But the nexus between dysfunction/complexity and delay is by no means a simple one. For example, Kaspiew et al. (2009) found that while histories of violence, mental health problems and addictive behaviours had negative impacts on the agreement rates reached through family dispute resolution, these problems were not necessarily a barrier to resolution.

The stories of the experienced professionals in Chapter 3 and the stories of individual separated parents told in Chapter 4 point to recognisable patterns of behaviour among significantly conflicted separated parents. One such pattern is the enmeshment of parents’ concerns about their children with their own overt and underlying relationship dynamics. The dynamics themselves can be driven by a variety of issues. They might be linked, for example, to dysfunctional or abusive behaviours (past or continuing); reflect parental shock and possible lack of acceptance with respect to the separation; be associated with long standing communication problems; or derive from an overwhelming sense of injustice. The strength of the enmeshment or sense of injustice, the extent of the humiliation or trauma resulting from the experience of abuse, or the degree to which communication has broken down will of course impact on the capacity to reach a resolution that works for the children and the capacity of the practitioner to assist in this process.

But beyond the patterns that can be seen in the stories told in Chapters 3 and 4, what stands out is the highly individualised nature of the narratives. Thus beyond recognising the patterns, the skill of the practitioner in “difficult cases” will always come down to engaging with the particular, reflecting it back to the client with empathy and without judgement, and providing space for each narrative to be heard by the other.

Commitment to this process comes with no guarantees. Though it takes considerable patience, it should not be blind in its execution. For example, in the service of trying to provide at least some stability for the children in difficult disputes, some parents may be willing to respond to an invitation to try a “temporary solution” that can be monitored by mediators, family dispute resolution practitioners or other suitable professionals. The monitoring might be supported by collaborative lawyers and/or an Independent Children’s Lawyer, or by lawyers working in good faith in more traditional ways.

The creation of new family relationship services and expansion of existing services were a critical part of the 2006 family law reforms. But notwithstanding these initiatives, and even when supported by education programs and less adversarial approaches to litigation, the sort of difficulties apparent in the dynamics within the families examined in this report are unlikely to diminish. Indeed it is likely that family structures will become more complex into the future, leading in turn to even more challenging questions around family transitions.

That said, the evidence is now clear that most separated parents are capable of and willing to manage issues regarding their children with little or no support from professionals; many can manage these issues with only modest amounts of support; some may cope well but need support at a later stage; others may need support more than once after separating.

For individuals or couples at the abusive or dangerous end of the spectrum, the need for early judicially determined arrangements clearly remains. But judicial determination alone will not always be sufficient. Rather, one of the family law system’s ongoing tasks will remain the coordination of responses in such cases both before and after determinations are made.

Coordination across disciplines, across the range of stakeholders commonly associated with separated families, and not infrequently across differing geographical locations, will continue to be challenging. At the same time however, it needs to be acknowledged that the 2006 family law reforms opened up a range of opportunities for intervention that simply did not exist prior to that time.

Finally, the data in this report suggest that in the name of children’s improved wellbeing, a further challenge is that of assisting a higher proportion of parents to resolve or manage their child-related disputes at an earlier stage after the separation and wherever possible, to move—even if a little—beyond the solution of “parallel parenting”. To do this, we need to continue to refine our skills in engaging with the particular characteristics of each difficult family, to move beyond understanding the patterns embedded in each dispute, to understanding and responding to the unique way in which the dispute is played out in the families with whom we engage.

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