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Agitation for parenting reform has become a prominent feature of family law policy debates in recent years. There appears to be broad acceptance that the emergence of this pattern is a product of the legislative reforms. Yet one of the interesting features of the published critiques has been a tendency to cast responsibility for redressing the problem of inappropriate shared care arrangements on the system's professional advisers, rather than seeking to change the law.

One version of this argument is that lawyers and judges should incorporate an understanding of the research evidence into their settlement and decision-making practices. A second redouble funktion binare optionen, which has drawn support from the fathers' lobby, calls on parents and family law professionals to redouble their efforts to make shared care work. This article seeks to engage with these arguments, and suggest their limitations as solutions to the risks posed by the current legislation, by examining the practice and policy context of the work performed by lawyers, judges and dispute resolution professionals in the family law system.

Redouble funktion binare optionen following section outlines the principal legislative amendments which came into effect in July Part 3 goes on to describe the relevant empirical findings and Part 4 set outs the recent proposals for addressing the problems revealed by this research. Part 5 then explores the obstacles to success of these proposals redouble funktion binare optionen avenues for protecting children's wellbeing, with a focus on four issues: Part 6 concludes by suggesting a possible form of amendment to the Family Law Act in the event the Australian government decides to respond to the issue in this way.

The Shared Parental Responsibility Act came into operation in Julyfollowing a three year reform process and extensive lobbying by fathers' groups. In line with these recommendations, Australia's Family Law Act now contains a presumption of 'equal shared parental responsibility', which presumes that consultative decision-making by parents is in the child's best interests.

Importantly, the requirement to consider a shared care arrangement is not limited to judicial officers. The system's various professional advisers, including both lawyers and mediators, are now obliged to ask clients to consider this option for their children.

The first tier of 'primary' factors requires practitioners to consider the 'benefit to the child of having a meaningful relationship' with both parents, and the need redouble funktion binare optionen protect the child from harm from being subjected or exposed to 'abuse, neglect or family violence'. At the heart of this framework is a narrowing of the discretion that has been historically associated with the redouble funktion binare optionen principle'.

Underpinning this model is the Hull Committee's policy goal of ensuring 'the majority' of Australian children grow up with 'meaningful relationships' with both parents, while safeguarding the 'minority' of children who have been subjected to abuse from further risk. The first empirical evidence of the impact of these changes comes from two related studies conducted by Jennifer McIntosh and her colleagues, which investigated the emotional wellbeing of children in post-separation families.

In the earlier studies, shared parenting was confined to a small and distinct group of financially comfortable parents who had self-selected this arrangement and were committed to making it work.

The most striking feature of the McIntosh data, however, is the finding that for a significant proportion of the children in her sample, shared care was a source of 'psychological strain'. At the 12 month mark, almost a third of the shared care families with school-aged children were characterised by redouble funktion binare optionen levels of acrimony and inter-parent conflict, and 21 per cent of the children in this sample exhibited a high level of clinical anxiety.

As in the first study, the key factor implicated in this outcome was the redouble funktion binare optionen of ongoing conflict between the parents. Whilst these studies involved relatively small samples, they nevertheless provide a clear indication of the dangers for children of a shared parenting regime when the child's parents are not able to cooperate with or support one another and there is a considerable level of conflict between the caregivers.

This redouble funktion binare optionen looks at several recent articles which have offered options for addressing the risks to children revealed by this research.

The first set of responses described here focuses on proposals for modifying the way in which lawyers and judges interpret the legislation. The second part examines a different tack, which argues for increased conflict resolution services. McIntosh and her colleagues clearly identified the reforms as the source of the harmful care arrangements they found. A similar suggestion has been proposed by Max Wright, a family mediation practitioner at Relationships Australia.

His focus is on the second of the two 'primary' considerations in the best interests checklist, which requires practitioners to be mindful of the need to protect children from 'physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence'. This expectation of the legal profession was also a prominent feature of the interviews with family mediators in a recent study conducted by Hilary Astor, Ann Sanson and myself.

Its survey data revealed that many practitioners in the dispute resolution sector are concerned by what they perceive to be the narrow legal policy approach to post-separation arrangements for children, compared to the nuanced and complex research understanding of children's developmental needs. More particularly, many mediators were critical of family lawyers for not challenging clients who sought legally sanctioned arrangements such as shared residence that were not compatible with their child's wellbeing.

As one such interview participant expressed this:. Mirroring the published critiques described above, these practitioners wanted lawyers to receive child development training and be required to use this knowledge as the basis for their work with family law clients, rather than, or to supplement, the law.

Alongside redouble funktion binare optionen recommendation, and as a corollary of it, these practitioners tended to be critical of the legal profession's partisan approach to family disputes, and expected lawyers to adopt a more holistic perspective of the conflict that encompassed concern for the future wellbeing of the children and the family as a whole.

In common with McIntosh, Chisholm and Wright, these practitioners were concerned about the potential impact on children and families of the current legal construction of children's best interests and, like them, saw the solution to this problem in terms of modifying lawyers' professional practices. In other words, while the legislation may be problematic, it need not pose any risk to children's wellbeing if lawyers, like mediators, adopt a research-informed rather than legal-policy based approach to working with parents.

A very different response to the McIntosh research has been offered by Burrett and Green, in an article that has drawn the support of fathers' groups such as 'Dads in Distress'. It is on this point that they part company with McIntosh and Chisholm and, by association Wright and the family mediation practitioners in our inter-professional relationships studysuggesting their proposals are ideological and casting the authors as part of a political 'resistance movement' that is opposed to shared parenting.

Burrett and Green are concerned that the call for caution might lead to strategic applications for sole custody orders and a 'pull back' from shared care arrangements by the courts. The problem as Burrett and Green see it is that parents have not been adequately assisted, or have not worked hard enough, to resolve their conflict. Seen from this perspective, the correct strategy according to the authors is 'not caution, but courage, perseverance and determination'.

As the authors put their case:. In keeping with this approach, Burrett and Green disagree with McIntosh and her colleagues that shared care is a limited option, best suited to families where parental conflict is well managed. Whilst I have grave concerns about Burrett and Green's call for perseverance, the various proposals for professional intervention outlined in the previous sections have much to recommend them.

As I have noted elsewhere, an understanding of the research evidence about parental conflict, children's needs and family violence is critical to good practice in this area of the law, [68] and collaboration between lawyers and mediators can only benefit from greater familiarity with each other's knowledge base.

Evidence of this kind will redouble funktion binare optionen highly pertinent to an assessment of a number of factors in the 'best interests' checklist, such as a parent's capacity redouble funktion binare optionen provide for the child's emotional needs.

A diverse range of redouble funktion binare optionen of this kind currently operates in the Australian sector, redouble funktion binare optionen high quality services for parents in conflict.

Wright's critique took the form of a response to a published debate between Chisholm and Patrick Parkinson about the capacity for judges to rely on factors beyond those identified in the legislation — such as evidence of the child's exposure to 'frequent conflict' — to determine children's best interests. His position centres on the substantial research evidence linking parental conflict and 'psychological harm' to children.

Unfortunately, while Wright is correct that Parliament's intention is an important tool for interpreting online stock trading best site reforms, he is mistaken in his belief that the Howard government envisaged the protective exemptions being used in this way. In fact, the reality is quite the opposite. It is true that the Hull Committee inquiry was provided with a wealth of research-based submissions and that these informed its recommendations.

In acknowledgement of this evidence, [82] the Hull Committee recommended a legislative presumption against shared responsibility for children in cases of 'entrenched conflict', as well as cases involving redouble funktion binare optionen or abuse.

Its reasons for doing so reveal a concern that an exception for parental conflict would effectively undermine the normative aim of the reforms:. The government's response went on to suggest that the effects of conflict on a child would be a matter for the courts to consider in individual cases.

At best then, any consideration of conflict by the courts must be incorporated into the decisional process indirectly via other factors in the 'best interests' checklist, such as an assessment of the child's views or a parent's capacity to meet the child's emotional needs. And while Parkinson suggests these considerations may be important in redouble funktion binare optionen the 'primary' factors, [87] he is also at pains to argue that such considerations lack the 'weight' of those that Parliament chose to emphasise.

In fact, the decision to exclude parental conflict as an explicit reason to question the presumption of shared responsibility does not simply leave this factor as one of the many indirectly relevant issues a court redouble funktion binare optionen consider when determining what orders to make.

It also sends a powerful message that lawyers and judges should not see this feature of the evidence as sufficient reason to reconsider shared parenting — or rather, that they should no longer treat this factor in this way. Prior to the reforms, the courts generally regarded the presence of inter-parental conflict as an indication that a collaborative care arrangement was not a viable option, and that its imposition was likely to compromise the child's wellbeing.

More importantly perhaps, this message may have a flow-on effect on assessments of the 'practicability' of shared living arrangements under s 65DAA. Nor is it likely that research-aware lawyers will inevitably interpret 'family violence' expansively as suggested by Wright, so as to include evidence of a conflicted relationship between the parents. In fact, empirical research has suggested that evidence of violence generally needs to meet a 'stringent standard in relation to severity' before a court will limit a parent's contact with their child, [90] and that family lawyers are well aware of this dynamic.

Thus, while the interpretative arguments offered by Chisholm and Wright have much to recommend them from the perspective of the child development research, the practice reality for lawyers and judges is that a child's exposure to ongoing conflict between the parents is unlikely to be regarded as sufficient to question the benefits of a shared care arrangement redouble funktion binare optionen there is compelling evidence of violence or abuse, and this appears to be as Parliament intended.

As noted in Part 4, one aspect of the 'responsible lawyering' recommendations made by social science professionals involved a critique of the legal profession's partisan approach to family disputes, which contrasts with their own impartial and holistic perspective.

The problem with this suggestion is that it is not consistent with the lawyer's professional duties to their adult clients. Family lawyers redouble funktion binare optionen disclose to the court any material relevant to the child's welfare whether or not it is in the interests of their client, [94] and the Family Law Council's Best Practice Guidelines encourage practitioners to 'emphasise to clients … the benefits that cooperation between parents brings to children'.

By contrast with a mediator, a family lawyer has a single client and is obliged to 'advance and protect' that person's interests 'to the best of the practitioner's skill and diligence, uninfluenced by the practitioner's personal view of the client or the client's activities'. On the other hand, family lawyers have a number of indirect responsibilities to the child, such a duty to advise their client that the child's 'best interests' will be the court's paramount concern when deciding what orders to make.

Consistent with the lawyer's duty to ensure their advice is 'in accordance with the law', [] practitioners in our study described testing clients' instructions against the relevant legislative and case law principles, and 'realigning' the client's perspective if their proposals were not in sync with these. For example, one practitioner explained:. As this suggests, lawyers drew on a range of non-legal forms of knowledge — redouble funktion binare optionen as their own parenting experiences and their understanding of the psychological dimensions of childhood gained in professional development seminars — to challenge a client's proposals.

But although family lawyers engage in regular professional development activities, [] which often include research-based training about children's redouble funktion binare optionen needs, their professional responsibilities as lawyers limit their capacity to use this information when it is not consistent with redouble funktion binare optionen law.

As described, family law redouble funktion binare optionen in our study sought to be child focused whilst also fulfilling their professional responsibilities to their client. However, the kinds of legal and logistical reality testing practices they described effectively mark the boundary of a child focused approach for legal practitioners.

If the law happens to be out of step with other relevant knowledge on the topic — such as the psychological evidence base — redouble funktion binare optionen lawyer redouble funktion binare optionen not at liberty to choose between these sources when giving legal advice.

Indeed, our redouble funktion binare optionen suggests that lawyers tend to use non-legal discourses to support their advice about the law, not to unpack it. At the heart of the complaints raised in Part 4 is a perception of marked disparity between the legal and social science understandings of children's post-separation needs, and for many mediators in our study the law was unacceptably narrow and ideological.

The previous section looked at the limits on lawyers' capacity to make use of the child development research owing to their professional obligations as legal practitioners. In this section I explore the scope for its incorporation into judicial determinations, using a post-reform decision of the Family Court as the basis for a hypothetical case study.

Seaford and Seaford was decided soon after the Redouble funktion binare optionen findings were published.

The mother wanted the father's contact with the child reduced to two nights per fortnight. The father sought an equal time arrangement. In the course of the hearing, evidence was led and accepted that the parents' relationship was characterised by long term hostility, and that they were unable to co-operate or communicate about their son. In addition to the issue of parental conflict, the judge in this case made a number of adverse findings about the mother's parenting capacity.

Amongst other things, she was said to be incapable of accepting the child's relationship with his father and was unable to prioritise the child's needs above her own.

Given the evidence of parental conflict in this case, a question arises about the extent to which it is open to a judge faced with the kind of applications that were made here redouble funktion binare optionen incorporate the research evidence into the decisional process.

If we assume for a moment that the judge was convinced that the father should be the primary caregiver and the mother should have more limited contact redouble funktion binare optionen the child, [] the dilemma she would have faced is that this was not how the case was run. Neither the father nor the Family Consultant argued against sharing parenting or sought or recommended a primary care arrangement in the father's favour.

Although the father's initial application was for sole care, by the time the matter came on for hearing he had abandoned this redouble funktion binare optionen favour of his equal time proposal. The judgment notes that this occurred after he received the court consultant's report, [] which recommended joint care.

However, we cannot know for certain whether the law directly or indirectly affected the way the father presented his case. He may well have pursued more limited time with his son in any event, perhaps because of his employment commitments or out of concern for the boy's relationship with his mother.

But we can be fairly certain that any legal advice he received would have alerted him to the fact that the law now requires judges to give 'positive' [] consideration to an equal time arrangement, absent exceptional circumstances.

Faced with applications of the kind made in Seaford and evidence of entrenched hostility between the redouble funktion binare optionen, how might a judge incorporate an understanding of the research literature so as to maximise the child's wellbeing? A redouble funktion binare optionen is not bound by the parties' proposals when crafting parenting arrangements. The reality of litigation is that it is difficult and discouraged for a judge to reach a firm conclusion about the child's best interests early in the hearing process.

It is only after redouble funktion binare optionen evidence has been adduced and tested that a decision-maker will have a sense of the most beneficial outcome for the child and their family.

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