Draft policy suggestions to implement a Presumption of Equal Parenting Time in the Family Law Act, and other policies to support this and to support mediation processes in Family Relationship Centres
DRAFT 31 MAY 2007
PRESUMPTION OF EQUAL PARENTING TIME
Parenting is a natural right of both the father and the mother. Therefore in the absence of any child abuse, or intractable practical problems such as living in different cities, mediation and other processes in both the Family Court system and the Family Relationship Centres should begin with a Presumption of Equal Parenting Time. While judges continue to feel that they need to decide a 40/60 split or a 55/45 split or a 33/67 split in residency, cases will continue to be dragged through the Family Court system. This very process tends to amplify conflict which itself is very damaging to children. The Family Relationship Centres FRCs are unlikely to be effective until there is a Presumption of Equal Parenting Time incorporated into the Family Law Act because there will be no incentive to mediate if the either parent (usually the mum) believes they can get majority residency in the Family Court system. The Family Court system must abandon the policy of excluding the prospect of equal parenting time where there is conflict between the parents, as this policy can encourage conflict. Also, the child is penalised with this policy by having access to one of their parents restricted. Instead, offending parents must be directly penalised with fines, community service, or jail in acute cases.
No unilateral summary exclusion
That it be illegal for either parent to be able to unilaterally exclude the child from the life of the other parent based on unsubstantiated allegations. The argument that one parent would "shut down emotionally" should the child have contact with the accused parent does not constitute justification for denying access. Access can only be denied or restricted after thorough and professional independent investigations into both parents and child find evidence of child abuse.
Neither parent can move away with the children
Neither parent can move away a significant distance from the other parent with the children without their consent as this constitutes parental alienation. The point of reference is the original family home. If a parent moves more than 20 minutes driving time away, they shall be responsible for all pick ups and drop offs. A parent shall not be allowed to move more than 45 minutes driving time from the location of the original family home. The school selected will be one within 20 minutes of the parent closer to the location of the original family home (unless otherwise agreed by both parents).
Neither parent can use the excuse that they wish to be exempt from mediation on the basis that the other partner is too violent or has been abusive to the children. The issue of child abuse needs to be taken up with Child Protection who need to ensure child safety - by restricting access if necessary. If required, mediation can take place via an online video-conference with parents in separate locations.
Public access to proceedings
Should an initial mediation session in the Family Relationship Centre fail to reach agreement on all issues, a further public mediation should take place, public in the sense that it should be recorded and made publicly available on podcasts, so that public scrutiny is not lost. Public access to court processes has been a fundamental principal of courts and this should not be lost when processes move to Family Relationship Centres.
Exclusivity of FRCs
Every couple should be obliged to attend an FRC, and no other mediation service (especially those run by Family Law solicitors), because we need to do precise studies on the effectiveness of policies, and we cannot do these studies if mediation is being carried out by a huge variety of organisations. Limiting mandatory mediation to the FRCs gives far better prospects for quality control.
Transparency in evaluation
The FRCs need to present statistics and evaluation of outcomes on a regular basis and these need to be made available to the public.
FRCs need to be adequately funded to run courses in Conflict Resolution, Conflict Prevention, Advanced Parenting, The Harm of Parental Alienation, Anger Management et al. (Participants can pay part of the cost, say $15 per session).
FRCs need to be adequately funded to assign qualified case workers to couples where there are accusations of violence or sex abuse, to ascertain the veracity, and to trigger remedial action where cases are verified, ranging from attending courses, for mild instances, to removal of the child in serious cases. Case workers should be able to interact regularly with children where there is suspicion of parental abuse, but case workers should scrutinise both parents even-handedly. Courses should be available for groups of children to teach them about signs of physical or sexual abuse, and how to alert the case-worker, or school counsellor, as well as teach them how abusive parents might ask them to keep a secret, and why it is important not to keep such secrets.
Attending courses - authority
FRCs need to be given the authority to oblige parents to attend courses (Conflict Resolution, Conflict Prevention, Advanced Parenting, The Harm of Parental Alienation, Anger Management) and to make recommendations to a court to impose penalties (community service, fines, daytime jail, extended jail) for chronic antisocial behaviour including lack of cooperation, communication, and consultation regarding parenting, violent attitudes, physical or emotional/psychological violent behaviour, parental alienation, and sexual abuse.
Process Parental Agreements
FRCs need the authority to fully process Consent Orders, and the authority to lodge them with the Family Court to help minimise parents' contact with the courts.
Opportunity for review
Either parent should be able to review Consent Orders agreed to at an FRC by calling for another mediation session at an FRC. Mediators and case workers who see a parent acting vexatiously by calling for excessive mediation sessions can refer the case to the Family Court system.
FRC Complaints Investigation Service (CIS)
That an independent FRC Complaints Investigation Service be established to investigate claims of bias, non-professionalism, or mistakes etc for clients of the FRCs. This CIS should also be transparent and accountable to prevent it from being captured by the FRC industry.
Screening of FRC mediators and case workers
That FRC mediators and case workers are not only thoroughly screened to ensure they have no history of perpetrating child abuse, or domestic violence, but that they are also screened to ensure that they have never been victims of child abuse or domestic violence.
No solicitor can be present at the mediation sessions. However, either parent can bring along a support person who is a close friend or relative (but not a professional).
Review of past Orders
Given that the Family Court has recognised the inappropriateness of Family Court policy prior to the changes in July 2006 by denying children adequate contact with their fathers / non-custodial parents, parents should have the opportunity to have their situation reviewed. They should be able to pay for a mediation session at an FRC (eg say $300 for three hours mediation) to renegotiate contact arrangements with the other parent. Failing agreement, the mediator can forward a report to the Family Court system, and the parent seeking review can submit a document to the judge (no more than four pages) outlining their reasons for a review and what they are seeking. The judge can then decide whether to hear the case by speaking to the parents directly (without solicitors present and without affidavits). Such hearings would be recorded and recordings made available to both parents. In the absence of child abuse or insurmountable practical problems the judge would have to consider "why not equal parenting ?" (or the amount of parenting less than 50% that the parent seeking review is asking).
Divide property evenly
That property division be based on a formula of returning assets contributed by each partner at the beginning of the relationship (plus a moderate interest based on the CPI), and that the balance be divided equally. In the case where one parent is unable or unwilling to assume 50% residency of the child, half of the assets belonging to that person can be placed in an independent interest-bearing account from which Child Support can be withdrawn and paid on a regular basis to the resident parent.
Fixed Child Support
That the policy of setting Child Support to the rate of income of the non-resident parent be abolished, replacing it with a fixed rate - for example $150 per week for the first child and $75 for each other child assuming the non-resident parent has absolutely no contact with the child, and reduced pro-rata according to the proportion of time the child spends with the non-resident parent. There would be no Child Support for either parent with equal parenting time regardless of respective incomes. Child Support would automatically be adjusted each year in line with the CPI.
Changing child family names
That neither parent can unilaterally change the family name and other names of the child following separation. However, following attempted mediation, where parents cannot agree on the names of the child, first names and middle names must remain the same as per the birth certificate. The family name can be changed to the original family name of the mother (but not to a new married name) in the case of daughters, and can be changes to the original family name of the father in the case of sons. In the case of the daughter, the father's original family name can be included as the last middle name of the daughter, and in the case of the son, the mother's original family name can be included as the last middle name of the son.
Recordings made available
That both the Family Court system and the Family Relationship Centres make available recordings of hearings and mediation sessions on CD for an affordable fee - such as $10, rather than the current process of charging $100 per hour of hearing transcript, or deciding who and who should not be allowed to have a copy of the recording based on a Family Court manager's discretion.