Mandatory mediation, “shared care”
and Australian family law.
Historical, empirical and clinical reflections
Lawrie Moloney
Geneva July 3 2013
Post-separation decisions about children
Key principles over time
Former presumptive principles
Paternal ownership: Roman times to late 19th century
Maternal preference: Late 19th – late 20th century
Good/ bad parent: Child to “innocent party”
Major contemporary principles
“Shared care presumption” (subject to best interests)
Approximation presumption (subject to best interests)
Best Interests of Child (“no presumption”)
“Best interests” and the
search for consistency
Law
 Behavioural sciences
 Societal norms
 Parental responses
 Future predictions as underpinning principle

Best Interests of Child
Legal Dilemmas
Differences and the use of intuition
Every family and every child's circumstances are different and
the courts will continue to make decisions on this basis.
(UK Department of Education/Ministry of Justice 2012 par 4.4
Reasons for judgment, necessarily in many cases, especially in
a finely balanced case, are a rationalization of a largely
intuitive judgment based on an assessment of the
personalities of the parties and the child.
Murphy J (High Court Judge) in Gronow vs Gronow .
Best Interests of Child
Legal Dilemmas
Legal precedent and the quest for objectivity
[A]ll that has occurred is that the court has not yet determined which of the
factors of most relevant to welfare should be given pre-eminence over
other matters.
Full Court in In the Matter of Smythe
[T]he possibility that the facts and circumstances of a residence case can be
finely balanced [has been] rejected by the majority of the Full Court of the
Family Court … In such circumstances the court … has not sufficiently
scrutinised the facts and circumstances presented to it concerning the
best interests of the child.
Dickey (1997).Family law – 3rd edition. Commentary on the case of Smythe
Legal precedent – property vs children
‘It is plainly important [that] there be general
consistency from one case to another
underlying notions of what is just and
appropriate in particular circumstances.
Otherwise, the law would, in truth, be but the
‘lawless science’ of a ‘codeless myriad of
precedent’ and a ‘wilderness of single
instances’
Deanne J in Mallet’s case (property case)
Best Interests of Child
Behavioural Science Dilemmas
Appeals to “science” and predictability
Psychologists’ recommendations (in children’s
disputes) are based upon articulated
assumptions, interpretations, and inferences
that are consistent with established
professional and scientific standards.
American Psychological Association (2010)
Guidelines for child custody evaluations in family law proceedings.
Emphasis added
Best Interests of Child
Behavioural Science Dilemmas
The limitations of rationality
When one examines individual incidents of
decision-making [about children] and
attempts to unravel the factors responsible
for the course of action adopted, it soon
becomes evident that we are confronted with
a highly complex, frequently obscure and far
from rational process.
Rudolph Schaffer (1998 p 2). Making decisions about children. Emphasis added
Best Interests of Child
Societal norms
Deciding what is best for a child poses a question no less ultimate than the
purposes and values of life itself. Should the judge be primarily
concerned with the child’s happiness? Or with the child’s spiritual and
religious training? Should the judge be concerned with the child’s
‘economic productivity’ when he grows up? Are the primary values in
life in warm interpersonal relationships or in discipline and selfsacrifice? … [W]here is the judge to look for the set of values that
should inform the choice of what is best for the child? Normally, the
custody statutes do not themselves give content or relative weights to
the pertinent values. And if the judge looks to society at large, he [sic]
finds neither a clear consensus as to the best child rearing strategies
nor an appropriate hierarchy of ultimate values.
Mnookin (1975 p 260). Emphases added
The Best Interests of Children
Predicting the future
Based on the collective evidence to date - in a
multitude of domains, including cognitive,
social, emotional, and psychopathological the best that can be said is that there
sometimes is very limited support for the
belief that earlier events are connected to
later ones
Lewis (2001 p 74) Issues in the study of personality development. Psychological
Inquiry, 12(2), 67-83.
The Best Interests of Children
Future predictions & the great attachment debate
Beyond the best interests of the child.
Goldstein, Freud and Solnit (1973).
We cannot definitively say, based on
attachment assessment, this child should be
with this parent more than with that parent.
Srouf & McIntosh (2011). Divorce and attachment relationships: The
longitudinal journey. Family Court Review, 49(3), 464-473
The Best Interests of Children
Formation and structures of future families
It is no exaggeration to say that the [Western] family
changed more dramatically in the latter half of the
twentieth century than in any comparable span of
time in our history … This transition has seen
many family practices revised, if not reversed or
abandoned.
Furstenberg (2011, p. 192) “The transformation of the American family”
Future families: what will they look like?
Post separation shared parenting in
Western democracies

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General softening of boundaries around care of children both before and
after separation
Post separation definitions of shared care vary – in Australia at least
35% of time with each parent (threshold used by Child Support
Agency).
Most countries define as at least 30% time
Estimates* of incidence range between 11% and 22% of separated
parents in Australia, Canada, the United Kingdom, Denmark, Norway,
and the Netherlands
United States - around 20 % but as high as 32% in states such as
Wisconsin.
Sweden and Belgium – 33%.
* Figures from Smyth et al (forthcoming)
Social forces linked to focus on
“shared parenting”
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Women’s increasing participation in the paid
workforce
Changing perceptions of fatherhood
Broadening understandings of attachment
The UN Convention on the Rights of the Child
The complex issue of absent dads
The discomfort of indeterminacy
See Moloney, Weston & Hayes (2013)
Women’s increasing participation in the
paid workforce
Notes:
A part-time job refers to paid work of fewer than 35 hours per week.
Source:
Updated trends provided in Renda (2003). Renda’s data were based on ABS Labour Force Status and Family Characteristics
(Catalogue no. 6224.0). The 2007 data were based on ABS (2007) Labour Force Status and Other Characteristics of Families (datacube ST FA4).
Figure 1:
Trends in the breadwinning roles of parents in couple families with dependent children, 1983 to 2007
Changing perceptions of fatherhood
With the exception of lactation, there is no
evidence that women are biologically disposed
to better parent than men are. Social
conventions, not biological imperatives,
underlie the traditional division of parental
responsibilities Lamb (1997) The role of the father in child development.
Broadening understandings of
attachment
The bond between a child and a good mother … expresses
itself in an unrelenting and self-sacrificing fondness…
Fathers and stepmothers may seek to emulate it … But the
mother’s attachment is biologically determined by deep
genetic factors, which can never apply to them.
Epperson v Dampne (1976) Mr Justice Glass
Infants do not have gender biases when it comes to
attachment formation. Their bias is for responsive, attuned
predictable, warm care within one consistent caregiving
relationship, and then, subsequently, others.
McIntosh (2011 p, 424)
UN Convention on the rights of the child
Article 9 (Separation from parents):
Children have the right to live with their
parent(s, unless it is bad for them. Children
whose parents do not live together have the
right to stay in contact with both parents
unless this might hurt the child.
The complex story of absent dads
Absent dads were a key driver of
Australia’s 2006 legislative reforms –
but high conflict and fear are an
important part of the story
Mothers’ reports that relationship with father is
distant, highly conflicted or fearful, by fathers’
care-time
100%
80%
60%
20%
Fearful (n=330)
19%
11%
40%
4%
4%
20%
36%
13%
11%
14%
19%
7%
14%
4%
12%
16%
Lots of conflict
(n=642)
16%
17%
Distant (n=929)
25%
0%
Never sees child Sees daytime only 1-13% nights
14-34% night
35-65% nights 66-100% of nights
Based on mothers’ reports
Note: the remainder of mothers described the inter-parental relationship
as “friendly” or “cooperative”
Fathers’ reports that relationship with mother is
distant, highly conflicted or fearful, by fathers’
care-time
100%
80%
14%
60%
Fearful (n=165)
4%
29%
40%
2%
12%
20%
2%
3%
14%
13%
3%
21%
Sees daytime
only
1-13% nights
15%
Lots of conflict
(n=658)
11%
Distant (n=961)
32%
18%
17%
19%
28%
0%
Never sees child
14-34% night
35-65% nights 66-100% of nights
Note: the remainder of fathers described the interparental relationship as “friendly” or “cooperative”
The discomfort of indeterminacy
“The approximation rule increases grounds for
parental conflict … The rule has led to strategic
behavior … By striving to reduce the more openended “best interest”factors, [the rule] provided
new weapons to high-conflict couples. Indeed, the
new objective measurements may favor the
initiator of divorce and the party with the more
strategic lawyer”
Dolan, M. and Hynan, D. J. , 2010-05-27 "The Limits of Determinacy: An Empirical Critique of the
ALI Approximation Rule for Child Custody Disputes" Paper presented at the annual meeting of the
The Law and Society Association, Renaissance Chicago Hotel, Chicago, IL
Note: Slides on the topics below were presented at the seminar but will
not be publicly available until they are published early in 2014
Shared time parenting over time: Child Support
Agency cases
Sequential survey data: Separated parents from
different cohorts reporting shared-time parenting
Trends in shared-time family dynamics
Beyond the focus on time
Moloney, L., (2003) Bargaining over children. From presumptive
practice to child-focused litigation. Family Matters, 65, 56-61.
Smyth, B., (2005) Time to rethink time. The experience of time
with children after divorce Family Matters (71) 4-10.
Moloney, L., (2008) Dads, family breakdown and the 2006
family law reforms. It’s about time – or is it? In Proceedings:
Men’s Advisory Network Second National Conference. Promaco
Publishers, Fremantle 31-44.
Moloney, L., (2012) Child sensitive practices in parenting
disputes. About time and about timing. Opening Address: Child
Inclusive Practice Forum Dockside, Darling Harbour, Sydney,
March 15th
Research supporting practice
Clinical assumptions
Research literature
Each child and each family is unique
No single arrangement is best
Children love/want/need both
parents. Extended family important
Ongoing meaningful relationships
link to good outcomes. Safety main
caveat
Disentangle couple r/ship from
parenting obligations
Children do best when kept out of the
conflict
How parents relate is critical
Decisions about time subordinate
Money is important: often insufficient
Link between poverty/poor outcomes
Good dispute resolution process as
important as good outcome
The more formal the process, the less
satisfied the client.
“Good divorce” possible/ worth effort Most parents are able to cooperate