Assessing The Developmental Needs Of Children Overlaying The Shared Parenting Regime

Article by Alexandra Moles, Solicitor

An understanding of the developmental needs of children is integral to being a family lawyer. This paper briefly looks at how the current legislative framework takes into account the developmental needs of children, looks at the role of a lawyer advising in relation to the developmental needs of children and considers some post 1 July 2006 case law in relation to children’s developmental needs.

In order to look review "the developmental needs of children overlying the shared parenting regime", it is necessary to revisit the amendments made on 1 July 2006 by the Family Law Amendment (Shared Parental Responsibility) Act 2006 (hereinafter referred to as the Act).

The explanatory memorandums (original and revised) circulated by the Attorney General clearly state that the purpose of the amendments to the Family Law Act 1975 (hereinafter referred to as the FLA) are to "support and promote shared parenting"¹.

Further, The New Family Law Parenting System Handbook prepared and presented by the Family Law Section of the Law Council of Australia states that "the Act attempts to send out strong messages. The strongest message is about shared parenting after separation"².

The most relevant amendments brought about by the Act and applicable sections are:

1.1. Section 60B sets out the objects and principles of Part VII of the FLA:

(3) For the purposes of subparagraph (2)(e), an Aboriginal child's or Torres Strait Islander child's right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:

The explanatory memorandum states that the new section 60B of the FLA "better focuses the objects and principles of the Part on the best interests of the child and shared parental responsibility between parents"3. The Handbook then goes on to say that the "new provisions should give greater emphasis to those interests [best interests] when interpreting other provisions⁴" of the FLA.

1.2 Section 60CA of the FLA states that in deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.

1.3 Section 60CC sets out the considerations as to how a court determines what is in a child’s best interests as follows:

1.4 Section 61DA states that:

1.5 Section 65AA of the Family Law Act 1975 states that the child's best interests are the paramount consideration in making a parenting order.

1.6 Section 60CA of the Family Law Act 1975 provides that in deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.

1.7 Section 65DAA of the Family Law Act 1975 states that the Court is to consider the child spending equal time or substantial and significant time with each parent in certain circumstances as follows:

Understanding the key legislative provisions is imperative to advising a client on a one off basis, advising your client during the negotiation of an agreement or in contested litigation. Combining your understanding of ‘the developmental needs of children’ with your understanding of the ‘shared parenting regime’ is a powerful tool in constructing good arguments on behalf of your client for or against shared care (as the case may be) and to deconstructing an argument by another party which may not be age appropriate.

• Section 60CC(2)(a) – the benefit to the child of having a meaningful relationship with both parents:

  • The New Family Law Parenting System Handbook states "perhaps meaningful connotes some sort of priority in the sense that the relationship must be important or significant, but probably does not mean that the relationship is paramount or supreme"⁵.
  • What constitutes a meaningful relationship for a child must take into account the developmental needs of a child and depends on the particular child, family and circumstances.
  • Considering what is a meaningful relationship, is particularly relevant when you are advising parties who have children of varied ages.
  • A meaningful relationship is not necessarily ‘more time’ but means emotional closeness⁶.
  • Where there are circumstances of abuse, neglect and family violence, a meaningful relationship is not in a child’s best interests.
  • In circumstances where for example there is intractable conflict, there is research to indicate that restricted time may better serve the child⁷, but this may not always be the case.
  • Normally, evidence regarding the child’s relationship with their parents can be given by the parties or an expert in a family report.
• Section 60CC(3)(a) - any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views.

  • This provides the parties with the opportunity to address the developmental needs of the child and put evidence before the Court in relation to the child’s views.
  • Evidence can also be put before the Court by way of a family report.
• Section 60CC(3)(b) - the nature of the relationship of the child with each of the child's parents and other persons (including any grandparent or other relative of the child).

  • Normally, evidence regarding the child’s relationship would be given by the parties.
  • Evidence can be put before the Court by way of a family report.

The criticism of the two tiered approach to section 60CC has been considerable. For example, The New Family Law Parenting System Handbook states "the first and the newest of the primary considerations sends out a strong message about shared parenting, subject only to the message that it must be safe for the child. … it is only abuse, neglect or violence that can counter the primacy of shared parenting⁸" [emphasis added].

In relation to the rebuttal of the presumption of equal shared parental responsibility, Professor Richard Chisholm refers to the undignified scramble for legislative pegs on which to hang arguments, with parties eager to find factors that will gain some enhancement"⁹.

Between the time of separation and when individuals receive advice from their family lawyer, it is likely that they will either seek out or receive some information in relation to children’s developmental needs and/or shared parenting. Most clients therefore seek advice from family lawyers with preconceived notions of ‘entitlement’ or of ‘understanding’ which are often selectively interpreted or misunderstood. There are therefore significant challenges for family lawyers to assist families to work towards a satisfactory agreed outcome.

The Australian Bureau of Statistics, 2003, Family Characteristics Survey found six broad patterns of parenting post-separation as follows:

• Traditional parenting time, in which the children usually see their non-resident parent each weekend or every other weekend (34%)
• Little or no parenting time, in which children rarely see (less than once a year) or never see their non-residential parent (26%)
• Daytime only parenting time, in which children only see their non-resident parent during the day (16%)
• Holiday time only parent, in which children see their non-resident parent only during school holidays (10%)
• Occasional time parent, in which children see their non-resident parent once every three to six months (7%)
• Equal or nearly equal shared care, in which children are in the care of either parent for at least 30% of nights a year (6%).

In 2003, an Australian Institute of Family Studies survey found that¹⁰:

• 11% of children spend one overnight each fortnight with their non-resident parent;
• 35% of children spend two overnights each fortnight with their non-resident parent;
• 11% of children spend three or four nights each fortnight (consecutive) with their non-resident parent;
• 4% of children spend two overnights in week one and another overnight in week two with their non-resident parent;
• 4% of children spend three nights in week one and at least one night in week two with their non-resident parent;
• 6% of children spend four or more nights in one week and at least one night in the week two with their non-resident parent (almost shared care);
• 10% of children spend five or more nights a fortnight with their non-resident parent (almost shared care);
• 7% of children spend one overnight each week with their non-resident parent;
• 9% of children spend two overnights each week with their non-resident parent;
• 4% of children spend three nights each week with their non-resident parent.

The report on the inquiry into child custody arrangements in the event of family separation ‘Every Picture Tells a Story’ made a finding that there was a widespread belief of a ‘80:20 rule’, being a traditional parenting regime whereby one parent spends alternate weekends with a child¹¹. This is one of the reasons for the emphasis placed in the new legislation on shared care.

Traditional arrangements of alternate weekend and holiday time do not always reflect the research about what is developmentally appropriate. There are differing views about how a traditional arrangement developed historically. Eminent American Psychologist, Dr Joan Kelly’s view is that in the US, the "alternating weekend pattern may have gained favour because it was easy to apply, requiring no judicial or psychological analysis…. The primary caretaker guidelines with every other weekend visiting with the non-resident parent became the accepted definition of children’s best interests in formal and informal visiting guidelines"¹².

More of Dr Kelly’s research provides a criticism of the traditional arrangement:

There is widespread criticism that lawyers have historically viewed traditional arrangements as a ‘one size fits all approach’ and have been slow to react to research regarding developmental needs and changes regarding what is considered to be in a child’s best interests. In order to avoid positioning clients in relation to a one size fits all approach, it is important to provide information and education to clients.

The US is regarded as one of the most progressive countries in relation to shared care regimes. Family Law in the US is regulated on a state by state basis and the outcomes on a state by state basis indicate significant implementation of shared care arrangements. The following are some of the highly regarded US post-separation parenting models that can be provided to clients to assist in the development of age appropriate parenting plans:

Similarly, most experts caution against a ‘one size fits all’ shared parenting approach and the parenting models should not be provided to clients as a ‘off the shelf’ formula. This would clearly be a repetition of the mistakes made previously in relation to the traditional approach. The benefit of these parenting models are that they usually include significant evidence based information about what helps and harms children after divorce, how to develop parenting plans and children’s developmental needs at different stages which clients can read in their own time, can provide to their former partner and use as tools in negotiation/ mediation.

In order to assist your client to develop a post separation parenting plan, have your client complete a comprehensive checklist of information in relation to their children’s needs and their postseparation concerns. Attached to this paper is an example checklist that addresses the current legislative framework. If possible, parties should also confer with a social scientist in relation to their proposals.

Although not covered within the scope of this paper, it is noted that there have also been significant amendments to the procedure of the Courts which aim to recognise a child’s right to have their views given appropriate consideration in the process of attempting to resolve post-separation disputes in which they are involved, such as the Child Responsive Program and the Children’s Cases Program¹⁵. These developments are in response to the research that indicates better outcomes for children in a child inclusive and child responsive process.

It is difficult to find decisions since 1 July 2006 which specifically address the developmental needs of children in reasons for judgment. The following are some of the reported and unreported decisions discussing children’s developmental needs and the ‘best interests’ test post 1 July 2007.

This is a decision of Federal Magistrate Mowbray in relation to two children aged 8 and 4 years respectively at trial. Since separation in 2002, the children lived the Mother and spent substantial time with their Father. The Mother’s proposal was that the children spend time with their Father one night each week and each alternate weekend during the school term and until the 2006 school holidays for two, three consecutive night periods during holidays and from 2007 onwards, for one half of all school holidays. The Mother did not oppose the eventual implementation of equal time but considered this issue to be ‘one of timing and appropriateness of any introduction of that regime’. The Mother contended that her proposal was ‘developmentally’ and ‘age appropriate for the children’ (in particular for the 4 year old child).

The Father’s proposal was for an incremental arrangement leading eventually to equal time. The Father proposed that until July 2006, that the children live with him from Tuesday until Thursday each week (2 nights) and each alternate weekend from Friday to Sunday (2 nights). From July 2006 to late 2007, the Father proposed to increase his alternate weekend time until Monday morning. From late 2007, the Father proposed equal time but not in a consecutive block. The Father proposed that the children spend from Wednesday until Monday in week one (5 nights) and Wednesday to Friday in week two with him (2 nights).

When the parties separated the eldest child was 3 years old and the youngest child was only two months old. After separation, the Father initially spent time with the children each Saturday, with the eldest child staying overnight at his residence and the youngest child returning home before bedtime. The Father also spent a couple of hours each weekday with the children and took time off work in November and December 2003 to care for the children so that the Mother could recommence full-time work. The Father also changed his work commitments in January 2004 so he could care for the children on Thursdays.

The eldest child was 3 years old when the Father commenced having two consecutive overnights each week. Both children commenced two overnights each week in January 2005. At the time of trial, the Father had spent up to five consecutive nights with the children during holiday periods since separation.

The dispute largely related to the Mother’s allegations that the parties’ communication was not good enough to support the Father’s proposal. The Father disputed that the communication was poor. The report writer gave evidence that "an ability to communicate between the parents without denigration or lack of respect would be necessary to make shared care work".

Ms Pam Connor, Psychologist, prepared a family report in November 2005 and recommended:

• The Father’s proposal would not have a negative impact upon the eldest child;
• There is research to indicate that overnight stays are not contraindicated for 4 years olds;
• That the youngest child is strongly attached to both parties;
• That the youngest child should not spend a significant period of time away from either parent as it is not age appropriate.

The general recommendation of the report writer was that there should be an increase of the Father’s time with the children to one more night per week immediately but anything further should be progressed cautiously.

The Federal Magistrate made an Order for equal shared parental responsibility and accordingly was required to consider the concept of ‘equal time’. The Federal Magistrate chose not to adopt the recommendations of the report writer and accepted the Father’s submission that "there is no reason why this [his time] should not happen to the maximum extent possible".

The Federal Magistrate accordingly Ordered that the Father spend 6 nights (non consecutive) with the children each fortnight, extending to 7 nights (non consecutive) a fortnight in 2007 and a week about arrangement to commence in 2009. In concluding the Federal Magistrate found "I have decided that it is in the best interests of the two children for them to spend equal time with each parent as soon as this is developmentally appropriate". It is not possible to ascertain from this judgment how the Federal Magistrate reconciled the report writer’s recommendations regarding the developmental needs of the children with the Orders he eventually made.

This was an Appeal of a decision of Federal Magistrate O’Dwyer. Orders were made for shared care on a week about basis and for the parties to have equal shared parental responsibility. The children were aged 7 and 3 respectively at trial. After separation in late 2005, proceedings were commenced quickly and Orders made on a final basis in early 2006. In summary, those Orders were for the parties to have joint parental responsibility and for the Father to spend four nights (non consecutive) a fortnight with the children. There was also provision for the implementation of a further night per fortnight as agreed between the parties within 6 months of separation.

In August 2006 (less than 6 months after the first final Orders were made), the Father made a further Application for the children to live with him and for the Mother to only spend 6 hours each Sunday with the children. The Application stemmed from allegations made by the Father that the Mother’s new partner was not appropriate and an injunction was sought restraining him from being in contact with the children. In the Mother’s response, she sought a slight reduction in the father’s time with the children.

At the interim hearing, the status quo was continued and an Order made for the preparation of a family report. An Independent Child Lawyer was also appointed.

At the time of trial, the Father was spending five (non consecutive) nights a fortnight with the children. At trial, the Wife resiled from her former position to only slightly reduce the Father’s time with the children and sought that the Father’s time with the children be reduced to only three nights a fortnight as she asserted that too many changeovers were ‘unsettling’ for the children.

Despite the Mother’s proposal for the Father to spend significant time with the children, the Mother sought to rebut the presumption of shared parental responsibility based on allegations of violence. At trial, the Federal Magistrate made no findings of violence and hence an Order was made for equal shared parental responsibility.

After the Orders were made, an incident occurred whereby the Father was charged with assaulting the Mother’s new partner at a changeover; he eventually pleaded guilty and was fined $1,000. This was admitted as fresh evidence during the Appeal. On Appeal and as a result of the incident, no Order was made for equal shared parental responsibility.

At trial, the report writer recommended a continuation of the 9/5 arrangement. The report writer was challenged at trial about the ‘developmental appropriateness’ of the arrangement in place – namely a 2 day on, 2 day off, 3 day on, 7 day off arrangement. The report writer said during cross examination that the current arrangement was developmentally appropriate for the 7 year old but in relation to the younger child, too much ‘mucking around’ was not a good thing. The report writer then went on to say that "for youngsters… if it’s done on a regular predictable basis it’s not a problem".

The Independent Child Lawyer put to the report writer that a week about shared care arrangement could be appropriate for the children. During cross examination the report writer said if it is "the same days in the fortnightly cycle, there's no big deal". However, the report writer then went on to say that week about arrangement would not be appropriate in this case as 7 days was too long for children to be away from each parent.

In his reasons for judgment, Federal Magistrate O’Dwyer opined that 2 changeovers per week (as opposed to the arrangement in place which had numerous changeovers per week) would reduce the harm caused by the disruption of more changeovers.

On Appeal, Justice Kay re-exercised discretion and, given equal shared parental responsibility was not applied, did not consider equal time and ordered a continuation of the status quo which was considered ‘developmentally appropriate’.

This was an Appeal from a decision of Federal Magistrate Burnett. The Father’s Application was for shared care and the Mother’s Application was for the Father to spend five nights a fortnight with the child. The child was aged 8 years. The parties commenced a relationship in 1993 and separated at Christmas in 2006. At separation, the Father alleged that the Mother withheld the child from him. Time was eventually reinstated and the Father alleged that the child made disclosures that the Mother was consuming alcohol to excess and had been drink driving. The Father retained the child and the Mother had supervised time with the child.

The Mother commenced proceedings in January 2007 and family reports were obtained. The first report recommended shared care and this was implemented in March 2007, at an interim hearing. The report recommended a review of the arrangements in 6 months time. The second family report in June 2007 supported the Mother’s proposal. The report writer’s recommendation was based on her assertion that the Father was controlling. The report writer considered routine important for the child and did not consider that an equal time Order would assist the child to have routine so the Father’s time with the child was reduced. The Appeal was dismissed.

This was an Application by a Father to spend time with a 7 year old child, whom he last saw in 2003. The Father had not spent time with the child since she was aged 3 months. The Mother made serous allegations of relentless physical, emotional and sexual abuse during the relationship and alleged that since separation the Father had stalked and harassed her.

An Independent Child Lawyer was appointed and a family report prepared. The report writer made a recommendation that the Father not spend any time with the child and stated that "while [the child] may miss out on some developmental issues (identify with biological father) if contact is not resumed, her other developmental needs for emotional security, feelings of well-being, attachment security with her primary figure (mother/brother), far outweigh this". Justice Ryan agreed with this recommendation and the Father’s Application was dismissed.

There is so much information and research available to family lawyers in relation to the developmental needs of the children. It is imperative that we keep on top of the latest research and actively disseminate this information to clients either directly, or by referring our clients to experts who can educate clients about post separation parenting to minimise the effects of separation and divorce on children. Knowing the law is not enough. In order to advise your client’s comprehensively, an understanding of the developmental needs of children is imperative.

In closing, to quote Professor Altobelli "one way of summarising the effect of these amendments succulently is to say – in the absence of violence, abuse or neglect – shared parenting after separation is the desired normal arrangement"¹⁶.

© Hopgood Ganim

Australia's Best Value Professional Services Firm - 2005 and 2006 BRW-St.George Client Choice Awards

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.