tag:theconversation.com,2011:/us/topics/family-law-4122/articlesFamily law – The Conversation2024-03-21T12:25:56Ztag:theconversation.com,2011:article/2234222024-03-21T12:25:56Z2024-03-21T12:25:56ZWhy are Americans fighting over no-fault divorce? Maybe they can’t agree what marriage is for<p>“First comes love, then comes marriage” – so goes the classic children’s rhyme. But not everyone agrees. Increasingly, the idea that love is the most important reason to marry – or at least to stay married – is under attack. Republican pundits and lawmakers have been pushing back on the availability of no-fault divorce, challenging the idea that not being in love is a valid reason to end a marriage. </p>
<p>Speaking as a <a href="https://sc.edu/study/colleges_schools/law/faculty_and_staff/directory/yablonzug_marcia.php">professor of family law</a>, I know such views aren’t new. Zsa Zsa Gabor <a href="https://www.bbc.com/news/entertainment-arts-10984784">once quipped</a>, “Getting divorced just because you don’t love a man is almost as silly as getting married just because you do.” But while Gabor was probably joking, the Republican attack on divorce is serious.</p>
<h2>A history of American divorce</h2>
<p>For most of U.S. history, getting a divorce was difficult. Many states <a href="https://www.washingtonpost.com/history/2022/07/03/south-dakota-divorce-capital/">banned it entirely</a>, while others permitted it only under limited circumstances – typically <a href="https://daily.jstor.org/the-lost-history-of-no-fault-divorces/">cruelty, desertion or adultery</a>. Unhappily married couples who couldn’t prove such “faults” were effectively stuck.</p>
<p>Then, in 1969, California became the first state to <a href="https://digitalcommons.law.ggu.edu/cgi/viewcontent.cgi?article=1057&context=callaw">allow no-fault divorce</a> – meaning that a spouse could get a divorce simply by asking for it, without having to prove that their partner had done something wrong first. </p>
<p>After California enacted no-fault divorce, the rest of the states quickly followed. By 1977, 47 states permitted no-fault divorce, and by 1985, <a href="https://www.routledge.com/No-fault-Divorce-What-Went-Wrong/Parkman/p/book/9780367154394">all 50 states permitted some form of no-fault divorce</a>.</p>
<p>But now, nearly 50 years later, no-fault divorce is under increasing attack.</p>
<p>The issue gained <a href="https://www.rollingstone.com/politics/politics-features/stephen-crowder-divorce-1234727777/">renewed</a> <a href="https://www.cnn.com/2023/05/18/opinions/crowder-right-wing-rhetoric-about-divorce-ignores-history-shanley/index.html">national</a> <a href="https://www.christianpost.com/voices/steven-crowder-and-no-fault-divorce.html">attention</a> in 2023, when Steven Crowder, a conservative commentator who prides himself on his “provocative” views, expressed outrage and disbelief that his wife could divorce him without his consent. </p>
<p>Crowder isn’t alone in such criticisms: Divorce has become a hot topic among many red-state Republican lawmakers. Most recently, in January 2024, Oklahoma lawmaker Dusty Deevers proposed a bill to <a href="https://www.oklahoman.com/story/news/2024/01/26/no-fault-divorce-law-oklahoma-senator-wants-to-end/72354142007/">eliminate no-fault divorce</a> and suggested <a href="https://www.newsweek.com/dusty-deevers-public-shaming-people-who-divorce-republican-senate-1848878">“public shaming”</a> of spouses who commit marital fault and then divorce. Restricting no-fault divorce is also part of both the <a href="https://texasgop.org/wp-content/uploads/2022/07/2022-RPT-Platform.pdf">Texas</a> and <a href="https://ne.gop/issues/">Nebraska</a> Republican Party platforms, and was <a href="https://www.wwno.org/news/2023-01-12/louisiana-republican-party-considers-backing-elimination-of-no-fault-divorce">recently debated</a> by Louisiana lawmakers.</p>
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<figcaption><span class="caption">Oklahoma’s KFOR reports on a proposal to end no-fault divorce in the state.</span></figcaption>
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<p>The ability to divorce regardless of what the other party wants is the essence of no-fault divorce. I think it’s alarming that it’s under attack. Nevertheless, the idea that not being in love is a valid reason to divorce is an assumption that should be questioned. It’s based on the idea that love is the purpose of marriage, and that itself is debatable.</p>
<h2>What’s marriage for, anyway?</h2>
<p>Marriage is a legal status that confers important rights and benefits on the married, and these rights and benefits <a href="https://books.google.com/books/about/Public_Vows.html?id=Jnh7ylcLaB4C">have nothing to do with love</a>. In fact, the purpose of these advantages is to give couples non-love reasons to marry. The idea is that the social benefits of marriage are so significant that incentivizing marriage, or even flat-out <a href="https://www.thenation.com/article/archive/hotgun-weddings/">paying people to marry</a>, is justified.</p>
<p>For an example of this kind of cost-benefit analysis, consider the policy debate over whether children are better off being raised by two married parents. In her recent book “<a href="https://press.uchicago.edu/ucp/books/book/chicago/T/bo205550079.html">The Two-Parent Privilege: How Americans Stopped Getting Married and started Falling Behind</a>,” economics professor Melissa Kearney argues that this advantage is significant and wide-ranging. Not surprisingly, Kearney’s work was <a href="https://ifstudies.org/blog/the-ultimate-privilege-two-parent">eagerly embraced by</a> <a href="https://www.wsj.com/articles/marriage-economist-kearney-two-parent-privilege-socioeconomic-mobility-equity-single-mother-divorce-4b499a5e">pro-marriage advocates</a> and has reinvigorated <a href="https://www.brookings.edu/events/the-two-parent-privilege-a-conversation-on-the-case-for-marriage">long-standing discussions</a> <a href="https://www.niskanencenter.org/discussion-on-marriage-economic-opportunity-and-family-flourishing-with-melissa-kearney">about how to</a> <a href="https://www.politico.com/news/magazine/2024/01/06/marriage-political-expert-roundtable-00133856">further encourage marriage</a>. </p>
<p>If children do better when raised by married parents, it’s understandable that the government would enact laws and policies to promote marriage. It also explains why the government might seek to limit divorce. This is a purely instrumental view of marriage, and one that would have been <a href="https://www.hup.harvard.edu/books/9780674008755">very familiar to 18th- and 19th-century Americans</a>. </p>
<p>For most of U.S. history, marriage was unabashedly transactional. Laws <a href="https://www.hup.harvard.edu/books/9780674008755">essentially guaranteed</a> that most men and women would wed; love had nothing to do with it.</p>
<h2>Striking a ‘marital bargain’</h2>
<p>Historians refer to marrying for legal and economic benefits as the “<a href="https://casetext.com/case/perry-v-schwarzenegger-10">marital bargain</a>.” However, in the late 19th century, acceptance of the transactional nature of the marital bargain began to wane, and publicly, men and women began to declare that <a href="https://search.worldcat.org/title/marriage-a-history-how-love-conquered-marriage/oclc/64589809">love was the purpose of marriage</a>. As historian Nancy Cott writes in her book “<a href="https://www.hup.harvard.edu/books/9780674008755">Public Vows</a>,” by the turn of the 20th century, American culture had “put love and money on opposite sides of the street.” </p>
<p>My book, “<a href="https://steerforth.com/product/youll-do-9781586423742/">You’ll Do: A History of Marrying for Reasons Other than Love</a>,” also explores this history and shows how Americans went from encouraging the marital bargain to viewing it as harmful, both to couples and to the institution of marriage as a whole. </p>
<p>Despite the public view that love is the only reason to marry, the law takes a more practical approach, recognizing that love alone may not be enough to get couples to the altar. That’s why it continues to encourage marriage for instrumental reasons, with <a href="https://steerforth.com/product/youll-do-9781586423742/">benefits ranging from tax breaks and immigration preferences to criminal law defenses</a>.</p>
<p>When marriage was a clear bargain for exchange, the benefits of the union were obvious. Like the 19th-century marital advertisement “<a href="https://abcnews.go.com/GMA/story?id=700646">Man with farm seeks woman with tractor</a>,” each side knew exactly what they were getting. Now, the purpose of marriage is less clear. I believe the move to eliminate no-fault divorce is simply the latest symptom of this confusion regarding the goals of marriage.</p>
<p>If marriage is about love, then a lack of love should be the quintessential reason to divorce. However, if marriage is a contract for benefits, then it isn’t surprising that Crowder and other no-fault critics are outraged that it can be unilaterally broken. Although the push to eliminate no-fault divorce is presented as a fight over the purpose of divorce, it’s really a fight over the meaning of marriage.</p><img src="https://counter.theconversation.com/content/223422/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Marcia Zug does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>A growing number of Republicans say that you shouldn’t be able to divorce simply because you’ve fallen out of love. It’s an idea with a long history.Marcia Zug, Professor of Family Law, University of South CarolinaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2136002023-12-04T18:57:48Z2023-12-04T18:57:48ZHoliday co-parenting after separation or divorce: 6 legal and practical tips for surviving and thriving<figure><img src="https://images.theconversation.com/files/562825/original/file-20231130-19-2sk2bt.jpg?ixlib=rb-1.1.0&rect=0%2C140%2C6720%2C3732&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Working together, we can create a positive holiday experience for our children.</span> <span class="attribution"><span class="source">(Shutterstock)</span></span></figcaption></figure><p>The approaching holiday season will be the first post-split for Canada’s Prime Minister Justin Trudeau and Sophie Grégoire, who <a href="https://nationalpost.com/feature/justin-sophie-split-how-marriage-started-ended">separated in summer 2023</a>. It may also be the first for you. </p>
<p>Welcome to co-parenting, an increasingly common social reality. Every year, there are about <a href="https://www150.statcan.gc.ca/n1/daily-quotidien/220309/dq220309a-eng.htm">50,000 divorces across Canada</a>, and most of those involve children. </p>
<p>Annually, thousands of Canadian families join a growing group: divorced or separated co-parents who have to collaborate about parenting through the holiday season. This situation is increasingly our new national normal, but that does not mean it isn’t hard.</p>
<p>Whatever you celebrate, as the holiday season approaches, like many parents, you likely experience <a href="https://mottpoll.org/reports/tis-season-stressed">holiday stress</a> as well as festive feelings. </p>
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Read more:
<a href="https://theconversation.com/why-we-need-french-style-divorce-for-lockdown-break-ups-138195">Why we need French-style divorce for lockdown break-ups</a>
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<p>Holiday traditions involve expectations that can be especially challenging for parents post-divorce or post-separation. I don’t know anyone whose winter wonderland holiday fantasy involved being divorced. Then again, usually, the holiday season just before separation was filled with conflict, and you now face the potential of a more peaceful reality. </p>
<p>However, while separation can help reduce household conflict, it can also lead to new forms of battle. <a href="https://www.cbc.ca/news/canada/london/justice-delays-canada-courts-ontario-1.6900147">Family courts across the country are backlogged</a>, affected both by delays following pandemic closures and a shortage of staff and judges. This means they are especially full of urgent court proceedings as the festive season approaches. </p>
<p>Proactive planning can help prevent our families from adding to the backlog in the family courts. It can also keep your money in your own holiday present budget and out of the pockets of lawyers like me.</p>
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<img alt="A woman in Santa hat looks shocked looking at her cellphone while holding a card." src="https://images.theconversation.com/files/562820/original/file-20231130-15-dxuvr9.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/562820/original/file-20231130-15-dxuvr9.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/562820/original/file-20231130-15-dxuvr9.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/562820/original/file-20231130-15-dxuvr9.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/562820/original/file-20231130-15-dxuvr9.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/562820/original/file-20231130-15-dxuvr9.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/562820/original/file-20231130-15-dxuvr9.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="caption">Proactive planning can help prevent families from adding to the backlog in the family courts and keep your money in your own holiday budget and out of the pockets of lawyers.</span>
<span class="attribution"><span class="source">(Shutterstock)</span></span>
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<h2>Co-parenting is now a post-separation norm</h2>
<p>While it was exceptional when I started practising law 20 years ago, co-parenting is now the post-separation norm. </p>
<p><a href="https://www150.statcan.gc.ca/n1/pub/11-627-m/11-627-m2022018-eng.htm">About 25 to 30 per cent of Canadian children are growing up in separated or divorced households</a>, and more when non-marital cohabitants are considered, meaning the stats only show the tip of the iceberg of households where there is a lone parent or a blended family and no legally formalized marriage.</p>
<p>A majority of today’s separated or divorced parents are in a shared parenting situation. The Divorce Act was <a href="https://www.justice.gc.ca/eng/rp-pr/fl-lf/famil/c78/03.html#">amended in 2019</a> to underscore the desirability of co-parenting. The changes encourage the active involvement of both parents in children’s lives post-separation, rather than having one “access” parent with a limited role in decision-making, and one with “custody.”</p>
<p>Co-parenting during the holiday season can be challenging, but it is essential to prioritize our children’s best interests. Research overwhelmingly shows that, contrary to stereotypes, while many children experience short-term effects like shock, anxiety or anger after parents separate or divorce, it is not the split itself but rather <a href="https://www.scientificamerican.com/article/is-divorce-bad-for-children/#">high levels of conflict that are bad for children</a>. </p>
<h2>Uncharted territory of co-parenting</h2>
<p>Many Canadian children, like my four teens, have been living through co-parenting post-separation for several years. Others are new to it. Virtually all parents are walking in uncharted territory when we navigate shared parenting. </p>
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<img alt="A child in the middle holds two different adult hands. " src="https://images.theconversation.com/files/562829/original/file-20231130-21-qzwx5p.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/562829/original/file-20231130-21-qzwx5p.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=338&fit=crop&dpr=1 600w, https://images.theconversation.com/files/562829/original/file-20231130-21-qzwx5p.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=338&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/562829/original/file-20231130-21-qzwx5p.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=338&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/562829/original/file-20231130-21-qzwx5p.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=424&fit=crop&dpr=1 754w, https://images.theconversation.com/files/562829/original/file-20231130-21-qzwx5p.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=424&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/562829/original/file-20231130-21-qzwx5p.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=424&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="caption">Navigating shared parenting after a breakup is important and can be challenging.</span>
<span class="attribution"><span class="source">(Shutterstock)</span></span>
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<p>Even those of us who grew up with separated parents likely did not experience the two households that contemporary co-parenting families do. There has been a <a href="https://doi.org/10.1111/fcre.12301">radical shift towards increased involvement of both parents in children’s lives after parents split</a>. </p>
<p>So, as the holidays approach, it is likely useful to remind ourselves and each other of best practices. From 20 years as a practising lawyer, several years <a href="https://carleton.ca/law/people/bromwich-rebecca/">of academic research</a> and my own not-error-free personal experience, here are some tips to help separated co-parents ensure they look after the best interests of their children over the holidays.</p>
<p><strong>Plan ahead:</strong> Start planning for the holidays well in advance. Establish a clear schedule and communication plan with your ex-spouse to avoid last-minute conflicts. Be clear about whether any events will be attended by both parents, and be pro-active about setting boundaries that will prevent conflicts from arising. If both parties are tech adept, use <a href="https://www.parents.com/parenting/divorce/children/how-to-be-a-great-co-parent-if-you-dont-get-along-with-your-ex/">technological means — like apps — to facilitate this</a>.</p>
<p><strong>Be flexible:</strong> Be open to adjusting the schedule when necessary. Sometimes, unforeseen circumstances may arise, and it’s important to be adaptable for the sake of your children.</p>
<p><strong>Respect and create traditions:</strong> Respect each other’s family traditions and beliefs. Encourage your children to appreciate the diversity of celebrations. Embrace the opportunity to create new holiday traditions and positive memories with your children. </p>
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<img alt="Two families seen sitting around a holiday table." src="https://images.theconversation.com/files/562831/original/file-20231130-25-jou7h.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/562831/original/file-20231130-25-jou7h.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/562831/original/file-20231130-25-jou7h.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/562831/original/file-20231130-25-jou7h.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/562831/original/file-20231130-25-jou7h.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/562831/original/file-20231130-25-jou7h.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/562831/original/file-20231130-25-jou7h.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="caption">New traditions can emerge after separation or divorce.</span>
<span class="attribution"><span class="source">(Shutterstock)</span></span>
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<p><strong>Share responsibilities:</strong> Share the financial and logistical responsibilities of the holidays fairly. This includes sharing the costs of gifts, decorations and other holiday-related expenses.</p>
<p><strong>Avoid competing:</strong> Don’t compete with your co-parent for the children’s affection through extravagant gifts or experiences. Instead, focus on quality time spent together. You are not an ATM. Children <a href="https://theconversation.com/give-the-gift-of-presence-and-love-during-the-holidays-196273">will remember your presence more than your presents</a>.</p>
<p><strong>Seek support:</strong> Be realistic. Whatever problems existed in the marriage are likely to persist in post-separation interactions. An app might not be enough. A mediator, social worker, parenting co-ordinator or another professional such as a family law lawyer can be involved well in advance to help facilitate and co-ordinate communication so co-parenting during the holidays becomes less challenging. </p>
<p>Finally, beyond legal considerations, don’t forget to seek support as it’s needed, for both your own well-being, and as you support your children through family transition amid their regular developmental changes. Navigating separation or divorce means navigating a major life change <a href="https://www.psychologytoday.com/ca/blog/contemplating-divorce/201207/where-are-you-the-divorce-stress-scale">and related stressors</a>. All family members can be involved in identifying age- and role-appropriate ways to be part of creating a positive holiday experience. </p>
<h2>Holidays can be merry</h2>
<p>Co-parenting during the holidays is a new normal across Canada. Working together, we can create a positive holiday experience for our children. Children too can be involved in co-creating plans for the holidays for their contemporary families. </p>
<p>I am repeating this because I needed to hear it again and again: our children can thrive post-separation or divorce, and our own holiday seasons can be merry and bright.</p><img src="https://counter.theconversation.com/content/213600/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Rebecca Jaremko Bromwich received grant funding from the Law Foundation of Ontario to study co-parenting communication post-divorce or separation and how technology can support children's best interests by helping alleviate co-parent conflict.</span></em></p>Holiday traditions involve expectations that can be especially challenging for parents post-divorce or post-separation. Proactive planning helps.Rebecca Jaremko Bromwich, Academic Co-Director, Desautels Centre, Robson Hall Law School, University of Manitoba, Adjunct Professor, Carleton UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2166652023-11-02T17:15:40Z2023-11-02T17:15:40ZMany divorcees end up with nothing or only debt after divorce – new study<figure><img src="https://images.theconversation.com/files/556800/original/file-20231031-29-irgz81.jpg?ixlib=rb-1.1.0&rect=40%2C50%2C6669%2C4416&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Divorced couples may have less assets to split than you think.</span> <span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/unhappy-middle-aged-european-lady-takes-2212378645">Prostock-studio/Shutterstock</a></span></figcaption></figure><p>Contrary to the impression given by divorces covered in the <a href="https://www.theguardian.com/lifeandstyle/shortcuts/2015/feb/24/divorce-rich-husband-london-english-law">media</a>, most do not entail couples sharing vast amounts of wealth and spending huge sums on legal proceedings.</p>
<p>The Fair Shares Project is the <a href="https://www.bristol.ac.uk/law/fair-shares-project/">first nationally representative study</a> to examine the financial arrangements of divorcing couples in England and Wales. Our team’s <a href="https://www.bristol.ac.uk/media-library/sites/law/news/2023/Fair%20Shares%20report%20-%20final.pdf">new report</a> shows that most couples have very modest levels of assets to divide. In fact, 17% of divorcees in our survey had no assets at all, while 23% ended up with nothing or only debts following their divorce.</p>
<p>Divorce is a financial shock that ex-spouses – and their children – have to cope with as they adjust to living in two households. That shock can be particularly hard and long-lasting for older women, and women who have children.</p>
<p>The study, which one of us (Emma) led and was funded by the Nuffield Foundation, surveyed 2,415 people who had divorced up to five years previously, and interviewed 53 recent divorcees.</p>
<h2>Not much to share</h2>
<p>Couples may have less wealth to divide than you think: 28% of divorcees in our study had been living in rented accommodation and so, other than their pension, had very little by way of any capital to divide. It is not surprising, then, that 21% ended up with an amount less than £25,000.</p>
<p>The median net value of the assets, including property and pensions, that divorcing couples owned when they divorced was £135,000 - including those who had nothing or only debts. More than a quarter (28%) had assets below £100,000, while only 9% had over £1 million at their disposal. </p>
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<img alt="Close up of man and woman's hands resting on paperwork, car keys and house keys" src="https://images.theconversation.com/files/557297/original/file-20231102-27-krn4wv.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/557297/original/file-20231102-27-krn4wv.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/557297/original/file-20231102-27-krn4wv.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/557297/original/file-20231102-27-krn4wv.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/557297/original/file-20231102-27-krn4wv.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/557297/original/file-20231102-27-krn4wv.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/557297/original/file-20231102-27-krn4wv.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="caption">Our study found a 50/50 split does not reflect the priorities of most divorcees.</span>
<span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/divorce-agreement-wife-husband-can-not-263038649">Bacho/Shutterstock</a></span>
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<p>Our study found that wives generally had lower incomes than their husbands during the marriage, usually due to childcare responsibilities that prevented them working fulltime. This meant that divorcing wives had typically built up smaller pension pots than their husbands, pointing to greater financial hardship in later life. <a href="https://www.ons.gov.uk/employmentandlabourmarket/peopleinwork/employmentandemployeetypes/articles/familiesandthelabourmarketengland/2021">UK government data</a> also shows mothers spend more time on unpaid housework and childcare than fathers. </p>
<p>The law allows for a spouse to allocate rights in their pension to their ex-partner upon divorce. This may be used to help make up for one spouse having lost out on contributing to a pension due to caring responsibilities. However, our study found that only 11% of divorcees yet to retire had made such a pension-share arrangement – and of these, only a fifth (22%) shared the pension equally.</p>
<h2>Lack of awareness of their finances</h2>
<p>This failure to take account of pensions seemed to reflect a general lack of awareness or understanding of them, and even of their finances generally. </p>
<p>Nearly four in ten (38%) divorcees felt they’d had poor knowledge of their ex’s finances during the marriage. A third did not know the value of their own pension pot. And 10% did not know the equity value (how much of the mortgage had been paid off) of the former matrimonial home. This meant they were potentially in a weak position when it came to negotiating with their ex about how to share out their assets.</p>
<p>Yet 12% of those surveyed said they had sought out no information or advice when they divorced, and only a third had used a lawyer to help make their financial arrangements. Many divorcees were deterred by fear of legal costs.</p>
<p>However, contrary to <a href="https://theconversation.com/four-myths-about-the-financial-side-of-divorce-202975">popular misconception</a>, where legal or mediation costs were incurred, the costs were relatively modest: 24% of divorcees had to find less than £1,000, and a further 18% had costs between £1,000 and £3,000. Only 9% incurred costs of £10,000 or more.</p>
<p>Yet even modest costs may put legal help out of reach for some people. </p>
<h2>Losing out in the longer term</h2>
<p>The longer-term impact of making a poor deal is demonstrated by our data comparing divorcees’ household incomes at the time of the survey, up to five years after their divorce. Female divorcees, particularly mothers and those older in age, tended to be worse off than men, even when they had found new partners. For example, only 29% of women with dependent children, and 22% of women over 50 without children, had a household income above £35,000, compared with 45% and 32% of men.</p>
<p>The law that applies to the financial consequences of divorce is 50 years old. In 2020, <a href="https://members.parliament.uk/member/4198/contact">Baroness Fiona Shackleton</a> introduced a <a href="https://bills.parliament.uk/bills/2564">private member’s bill</a> into the House of Lords, arguing that it would be much simpler for couples managing their arrangements without help if there was a clear legal presumption that marital assets should be split 50/50. </p>
<p>But our study found that a 50/50 split would not reflect the needs or priorities of most divorcees. Only 28% had split their assets roughly equally; the majority either focused on who needed the assets most, or divided them according to who was the legal owner. For such divorcees, “fairness” lay in meeting needs or getting back what they had put into the marriage, not splitting a very small cake into two even smaller halves. </p>
<p>We believe it’s not the substantive law that needs reforming, but the means by which divorcees can access advice and help. Ensuring divorcing couples have access to affordable, appropriate and authoritative information, advice and support is key to ensuring that the deal they get is fair to both, and also protects their children.</p>
<p>A fair deal is one that takes account of all their available assets – including any pensions – so that they can each best adjust financially to life after the end of their marriage.</p><img src="https://counter.theconversation.com/content/216665/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Emma Hitchings receives funding from The Nuffield Foundation and previously from the Law Commission, the Bar Council and the Ministry of Justice.</span></em></p><p class="fine-print"><em><span>Gillian Douglas receives funding from The Nuffield Foundation as a co-investigator on the project, 'Fair Shares: Sorting out money and property on divorce'. Her previous research on financial and property aspects of family law has been funded by the ESRC and Joseph Rowntree Foundation.</span></em></p>The Fair Shares Project reveals the financial realities of everyday divorce in England and Wales.Emma Hitchings, Professor of Family Law, University of BristolGillian Douglas, Professor Emerita of Law, King's College LondonLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2147362023-10-15T04:45:46Z2023-10-15T04:45:46ZBetween state and mosque: new book explores the turbulent history of Islamic politics in Mozambique<p><em><a href="https://www.imf.org/external/pubs/ft/dp/2014/afr1404.pdf">Mozambique</a> is a multi-religious southern African nation with excellent relations between faiths. Relations between Muslims and the state have been good too. But the situation became more complicated <a href="https://theconversation.com/mozambiques-own-version-of-boko-haram-is-tightening-its-deadly-grip-98087">in 2017</a> when a bloody jihadist insurgency broke out in the north. Eric Morier-Genoud has published extensively on politics and religion in Mozambique. His latest book, <a href="https://www.hurstpublishers.com/book/towards-jihad/">Towards Jihad? Muslims and Politics in Postcolonial Mozambique</a>, looks at the historical relationship between Islam and politics in the country. He fielded some questions from The Conversation Africa.</em></p>
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<h2>When was Islam introduced to Mozambique?</h2>
<p>Islam has a very old presence in Mozambique. It is estimated to have arrived within the first century of the start of the faith, with Arab, Ottoman and Persian traders. It settled at once during and after the 8th century among new Swahili networks, cultures and societies that developed on the east African coast between Somalia and what is today Mozambique. </p>
<p>Expansion of the Islamic faith inland was slow and only made significant progress in the 19th and 20th centuries. This was the time when European colonial powers occupied Africa, building new infrastructure such as roads and railways that helped the spread of different faiths. </p>
<p>At <a href="https://www.britannica.com/place/Mozambique/Mozambique-under-the-New-State-regime">independence in 1975</a>, Muslims represented 15% of the population of Mozambique. The latest census indicates it stood at 19% <a href="https://www.britannica.com/place/Mozambique/Religion">in 2017</a>. Today Muslims live mostly on the coast and in the north of the country. A majority of the population of Niassa and Cabo Delgado provinces are Muslim, as are 40% of the population of Nampula province.</p>
<h2>What’s been the political experience of Muslims since independence?</h2>
<p>A majority of Muslims, like all other religious people in the country, were in favour of independence. But when Frelimo, the liberation movement, came to power at independence in 1975, its policy was socialist-oriented and the government turned against religion. Frelimo saw faith as a superstition and an impediment to its programme. It closed churches near state and educational institutions, restricted religious practice, and even ran atheist campaigns between 1978 and 1980. </p>
<p>In the 1980s, the Frelimo party-state shifted towards tolerance, meaning a policy of minor religious restrictions and a strict separation between state and church/mosque. Frelimo party members were prohibited from being members of a religious institution. Faith institutions were ordered to focus on religion only. </p>
<p>In the 1990s, after the end of the <a href="https://www.britannica.com/question/How-did-the-Cold-War-end">Cold War</a> and the official abandonment of socialism, the Frelimo government moved towards a freer religious regime. </p>
<p>Nevertheless, the post-socialist <a href="https://www.portaldogoverno.gov.mz/por/Governo/Legislacao/Constituicao-da-Republica-de-Mocambique">1990 constitution</a> did not allow political parties based on regionalism, ethnicity or religion. So there’s a limit to what Muslims can do politically for their faith.</p>
<p>A law to recognise Muslim religious holidays in the 1990s was blocked by the Supreme Court in the name of secularism. Muslims argued this was unfair since Christmas is an official holiday, although called <a href="https://www.timeanddate.com/calendar/?country=126">“family day”</a>. </p>
<p>Similarly in the 2000s Muslim politicians (organised in a formal cross-party lobby in parliament) struggled to influence a new law to define the family, inheritance rights and women’s rights. </p>
<p>Consequently, many Islamic organisations and politicians have moved away from politics in the last two decades, to focus on education, social works and proselytism.</p>
<h2>What led to the current insurgency?</h2>
<p>There is much debate about the causes of the jihadi insurgency in northern Mozambique. <a href="https://www.iese.ac.mz/wp-content/uploads/2019/09/cadernos_17.pdf">Researchers</a> have identified poverty, youth marginalisation, ethnicity and religion as push factors. </p>
<p>The pull factor is a jihadi project of more justice and equality through sharia law and a caliphate. It offers an alternative plan for state and society, and a path to it through violence. The insurgency developed regionally (in connection with Tanzanian jihadis) and the insurgents connected formally to the Islamic State, the <a href="https://www.economist.com/middle-east-and-africa/2022/08/11/how-al-qaeda-and-islamic-state-are-digging-into-africa">international terrorist group</a>, in early 2018. </p>
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Read more:
<a href="https://theconversation.com/mozambican-terror-group-is-strikingly-similar-to-nigerias-deadly-boko-haram-201039">Mozambican terror group is strikingly similar to Nigeria's deadly Boko Haram</a>
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<p>My book shows that the overwhelming majority of Muslims in Mozambique do not want full sharia law and a caliphate. Nor do they accept the violence used to achieve these objectives. </p>
<p>The insurgents have nevertheless settled militarily in the extreme north, where they have established bases in deep forests and rely on Islamic State for some technical support and public relations.</p>
<h2>What support, if any, do the insurgents enjoy in Mozambique?</h2>
<p>Insurgents enjoy hardly any support nationally. Locally, they draw some support from networks they established, from long-held local grievances, and from mistakes the state, the army and the police have made since the start of the conflict. </p>
<p>Other dynamics have come into play, including displacement, violence, uncertainty and fear. Today, the “Al-Shabaab” insurgents (as they are known in Mozambique) operate in a territory of about 30,000 square kilometres which represents less than half of the province of Cabo Delgado (one of the 11 provinces of Mozambique). </p>
<p>This is a very limited territory, but one where crucial economic projects are located. Among others, private investment is unfolding for the production of onshore and offshore LNG gas, and companies have developed graphite projects that have turned Mozambique into the second largest world producer of this mineral. </p>
<p>The insurgents have hardly expanded since they began their armed insurrection in October 2017. In 2021 they carried out attacks in Niassa and Nampula, but they withdrew rapidly. It is not clear whether they chose not to expand, or whether the government and its <a href="https://www.usip.org/publications/2022/06/regional-security-support-vital-first-step-peace-mozambique">international allies</a> have been effective in containing them. Still, the armed conflict continues today, six years on.</p>
<h2>How can the peace be restored?</h2>
<p>This is a topic of debate. The government has been active mostly militarily, with an international intervention since 2021. It wants to root out those it calls international “terrorists”. </p>
<p>Many commentators and partners of Mozambique believe that to resolve the conflict, one also needs to address the root causes: poverty, youth marginalisation and ethnicity. Donors and the Mozambican government have started social and economic programmes focusing on youth and on economic development in the north of Mozambique. Even private companies such as TotalEnergie want to engage in such programmes.</p>
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Read more:
<a href="https://theconversation.com/catalogue-of-failures-behind-growing-humanitarian-crisis-in-northern-mozambique-149343">Catalogue of failures behind growing humanitarian crisis in northern Mozambique</a>
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<p>An element which has not been touched upon yet relates to the pull factors. There are several possibilities. One would be for the state and civil society to develop a reflection and consultation about the future of the country and about inclusion and representation. It could look at social, economic, political, historical, cultural, and religious elements, aiming to establish a medium-term “agenda for the nation”.</p><img src="https://counter.theconversation.com/content/214736/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Eric Morier-Genoud does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The overwhelming majority of Muslims in Mozambique reject the violence of the insurgents and their quest for a caliphate.Eric Morier-Genoud, Reader in African history, Queen's University BelfastLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2121752023-09-01T12:43:23Z2023-09-01T12:43:23Z‘The Blind Side’ lawsuit spotlights tricky areas of family law<figure><img src="https://images.theconversation.com/files/545068/original/file-20230828-244119-badfi1.jpg?ixlib=rb-1.1.0&rect=58%2C0%2C2878%2C1890&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Sean Tuohy, Michael Oher and Leigh Anne Touhy pose for a photo before a University of Mississippi game in 2008.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/michael-oher-of-the-ole-miss-rebels-stands-with-his-family-news-photo/83870434">Matthew Sharpe/Getty Images</a></span></figcaption></figure><p>What’s the difference between adoption and conservatorship? Millions of dollars and the freedom to make your own choices, if you ask retired football player Michael Oher.</p>
<p>Oher, whose story was made into the 2009 movie “The Blind Side,” says he believed he <a href="https://slate.com/culture/2023/08/blind-side-michael-oher-tuohys-lawsuit-conservatorship-adoption-lies.html">signed papers to be adopted</a> by an affluent white couple, Sean and Leigh Anne Tuohy, in 2004. But papers filed in court recently indicate Oher was in fact never adopted. Rather, he has been <a href="https://www.espn.com/nfl/story/_/id/38190720/blind-side-subject-michael-oher-alleges-adoption-was-lie-family-took-all-film-proceeds">under a court-imposed conservatorship</a> all this time. Further, it is alleged that the <a href="https://www.espn.com/nfl/story/_/id/38190720/blind-side-subject-michael-oher-alleges-adoption-was-lie-family-took-all-film-proceeds">arrangement allowed the Tuohys</a> to “gain financial advantages” by striking deals in Oher’s name.</p>
<p>The Tuohys’ attorneys have <a href="https://apnews.com/article/nfl-michael-oher-tuohys-blind-side-movie-1bebe2ba9ee2ba60ac806dabab4f6d4c">pushed back</a>, saying that Oher had long known he wasn’t formally adopted and that the <a href="https://people.com/blind-side-sean-tuohy-speaks-out-about-michael-oher-legal-petition-7643431">conservatorship was necessary</a> for his college football aspirations. Their current attorney has also said he believes the long timeline for getting an adoption – compared with the <a href="https://sports.yahoo.com/blind-side-controversy-why-the-tuohys-sought-a-conservatorship-over-adoption-for-michael-oher-141415218.html">relatively speedy</a> conservatorship process – played a role in their decision.</p>
<p>As the high-profile legal drama <a href="https://variety.com/2023/film/news/the-blind-side-controversy-producers-respond-michael-oher-1235704029/">continues to unfold</a>, Leigh Anne Tuohy’s <a href="https://perma.cc/2DVP-GSBR">personal website</a> still describes Michael Oher as the couple’s “adopted son.”</p>
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<p>As a <a href="https://www.law.virginia.edu/faculty/profile/nrc8g/2915359">law school professor</a> who teaches trusts and estates as well as family law, I have been intrigued by the precise connections between the Tuohys and Oher. A conservatorship and an adoption are two very different legal proceedings, and the resulting relationships are entirely distinct. </p>
<h2>What is a conservatorship?</h2>
<p>Conservatorships are legal mechanisms to help people who can’t care for themselves or their finances – for example, due to <a href="https://www.theguardian.com/commentisfree/2021/aug/18/britney-spears-case-guardianship-laws">advanced dementia</a>. They’re typically <a href="https://www.npr.org/2021/06/24/1009726455/britney-spears-conservatorship-how-thats-supposed-to-work">not for</a> people like Oher who have been signing their own contracts or writing their own books. The goal is to protect a vulnerable person’s well-being and their assets from being misused. Another recent conservatorship in the news, that of <a href="https://theconversation.com/why-conservatorships-like-the-one-controlling-britney-spears-can-lead-to-abuse-164617">Britney Spears</a>, was also the subject of contentious legal proceedings, although the conservator in that case was her father. </p>
<p>Adoption is a different legal process that results in a new parent-child relationship. Parents have certain rights and responsibilities for their children, but once a child turns 18 – regardless of whether they are adopted – they are legal adults: They can make their own medical decisions, enter into their own contracts and get married without any parental involvement. People in conservatorships don’t typically have the same kind of freedom.</p>
<p>In Tennessee, where the Tuohys live, parents are not required to support their children once they <a href="https://law.justia.com/codes/tennessee/2021/title-34/chapter-1/section-34-1-102/">graduate from high school</a>. But the existence of a parent-child relationship remains meaningful even after a child turns 18. For example, parents and children may have <a href="https://www.nytimes.com/2023/08/26/opinion/i-have-a-pretty-good-idea-why-michael-oher-is-angry.html">legal inheritance rights</a>, or children may be required to <a href="https://www.dallasnews.com/sponsored/2022/08/28/the-parent-trap-filial-responsibility-laws-cause-financial-havoc-for-children/">pay for a parent’s necessities</a>.</p>
<p>The Tuohys say they were told that they <a href="https://people.com/blind-side-sean-tuohy-speaks-out-about-michael-oher-legal-petition-7643431">couldn’t adopt an adult</a>. But under Tennessee law, as in <a href="https://www.childwelfare.gov/pubPDFs/parties.pdf">many other states</a>, adoption can take place at any age. To be sure, in Tennessee, anyone 14 or older <a href="https://codes.findlaw.com/tn/title-36-domestic-relations/tn-code-sect-36-1-117/">needs to consent for the adoption to take place</a>. So Oher would have had to agree – which he says he thought he did. </p>
<p>In addition, adoption <a href="https://codes.findlaw.com/tn/title-36-domestic-relations/tn-code-sect-36-1-117/">typically requires</a> <a href="https://www.findlaw.com/family/adoption/who-may-be-adopted.html">ending the rights of the birth parents</a>, which can be done either voluntarily or through a termination hearing. So even though Oher was over 18, the Tuohys could have adopted him – but that probably would have required ending the parental rights of Denise Oher, Michael Oher’s mother.</p>
<h2>Tuohys’ relationship to Oher</h2>
<p>The Tuohys didn’t file for adoption. Rather, they asked a court to appoint them Oher’s conservators, which it did.</p>
<p><a href="https://theconversation.com/why-conservatorships-like-the-one-controlling-britney-spears-can-lead-to-abuse-164617">Only a court</a> can impose a conservatorship, and only a court can terminate one. A handful of states explicitly allow for a “<a href="https://www.americanbar.org/groups/law_aging/publications/bifocal/vol-42/vol--42-issue-2--november-december-2020-/voluntary-guardianships--a-primer-on-states-guidance/">voluntary</a>” conservatorship – that is, one to which the person subject to the conservatorship agrees. Others, including Tennessee, <a href="https://heinonline-org.proxy1.library.virginia.edu/HOL/Page?handle=hein.journals/umem36&id=499&collection=journals&index=journals/umem">seem to allow that</a> implicitly, providing for <a href="https://law.justia.com/codes/tennessee/2010/title-34/chapter-1/34-1-107">special procedures</a> when the person joins the petition. </p>
<p>That appears to be what happened with Oher: He <a href="https://documents.shelbycountytn.gov/ProbateCourtDocuments/viewdoc.aspx?id=11">joined</a> in the request for a conservatorship, and so did his birth mother. At issue is whether he knew he was doing so.</p>
<p>Although <a href="https://thehill.com/opinion/judiciary/4164229-michael-ohers-shockingly-unnecessary-conservatorship-exposes-court-failures/">Tennessee law</a> requires that the court find an individual “<a href="https://law.justia.com/codes/tennessee/2010/title-34/chapter-1/34-1-126">fully or partially disabled and … in need of assistance”</a> before issuing the order on conservatorship, there do not seem to have been <a href="https://www.washingtonpost.com/sports/2023/08/25/blind-side-controversy/">any claims</a> that Oher could not manage his own finances, health or living situation. The court apparently found that it was in Oher’s “<a href="https://sports.yahoo.com/michael-oher-conservatorship-unlike-legal-141712383.html#:%7E:text=Judge%20Robert%20Benham%20noted%20in,in%20Oher's%20%E2%80%9Cbest%20interest.%E2%80%9D">best interest</a>.” </p>
<p>Nonetheless, the Tuohys were apparently given authority to act on behalf of Oher. Although they were appointed “<a href="https://www.caregiver.org/resource/conservatorship-and-guardianship/">conservators of the person</a>,” which typically does not include control over finances, they were also given authority to approve <a href="https://documents.shelbycountytn.gov/ProbateCourtDocuments/viewdoc.aspx?id=11%20NOTE%20THIS%20LINK%20DOES%20NOT%20WORK%20-%20how%20about%20this?%20%20https://www.vulture.com/article/blind-side-michael-oher-conservatorship-lawsuit-explained.html%22%22">any contract that Oher wished to sign</a>. It’s unclear just what financial arrangements they undertook, <a href="https://www.washingtonpost.com/sports/2023/08/25/blind-side-controversy/">other than those</a> that Oher alleges related to “The Blind Side” – he claims that a deal saw the Tuohys receive <a href="https://www.espn.com/nfl/story/_/id/38190720/blind-side-subject-michael-oher-alleges-adoption-was-lie-family-took-all-film-proceeds">millions of dollars in royalties</a> from the film. An attorney for the Tuohys <a href="https://people.com/tuohy-family-claims-blind-side-subject-michael-oher-attempted-15-million-shakedown-7643878">strongly denied</a> exploiting Oher, describing the lawsuit as a “shakedown”; they are reportedly preparing a legal response.</p>
<h2>Little oversight</h2>
<p>Conservatorships – also called guardianships in some states – can be useful to help people who cannot make their own decisions. Even then, to protect the individual’s autonomy, states typically require that conservators be given the least amount of power possible. </p>
<p>But there is typically <a href="https://time.com/6075859/britney-spears-conservatorship-disability/">very little oversight</a> over conservatorships. Generally, a conservator is supposed to provide an annual report to the court. Under-resourced courts, however, may not be able to monitor the guardianship. It isn’t even clear how many conservatorships exist in the U.S., due to <a href="https://www.eldersandcourts.org/guardianship_conservatorship/general-information/basics/data">uneven record-keeping</a>.</p>
<p>There are alternatives to guardianships. In advance of any incapacity, an individual can designate a trusted person, known as an “agent,” to act on their behalf through advance medical directives or financial powers of attorney. Another option is supported decision-making, in which the individual retains decision-making authority but receives help <a href="https://thearctennesse.wpengine.com/supported-decision-making-sdm-lev3/">from other people</a>. These arrangements can be informal or <a href="https://supporteddecisionmaking.org/faq/">written as contracts</a>.</p>
<h2>Oher’s options</h2>
<p>Oher has already asked the court to compel the Tuohys to stop using his name and image, to provide an accounting of – and an end to – the conservatorship, and to return any money which should have been paid to Oher. He is seeking information about his school records and any <a href="https://www.tennessean.com/story/news/2023/08/30/oher-seeks-blind-side-payment-information-in-conservatorship-battle/70717241007/">contracts related to the movie</a>. Outside of the conservatorship system, Oher could sue for damages in the event of any breach of fiduciary duty or fraud.</p>
<p>When all the smoke is cleared, maybe Oher can persuade Hollywood to make a sequel to “The Blind Side” about his struggle with the conservatorship system.</p><img src="https://counter.theconversation.com/content/212175/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Naomi Cahn does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Two very distinct legal processes are at issue in the Michael Oher case.Naomi Cahn, Professor of Law, University of VirginiaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2055622023-05-18T05:29:22Z2023-05-18T05:29:22ZGovernment’s family law bill is a big step forward. But it doesn’t do enough to address family violence<p>The Labor government’s <a href="https://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/Bills_Search_Results/Result?bId=r7011">Family Law Amendment Bill 2023</a> is making its way quietly through Australia’s federal parliament. It will become one of the most important laws passed this year.</p>
<p>It <a href="http://classic.austlii.edu.au/au/legis/cth/bill_em/flab2023204/index.html">proposes to</a> overhaul the family law system to make it “safer and simpler for separating families to navigate, and ensure the best interests of children are placed at its centre”. </p>
<p>We should celebrate the fact this bill is passing through parliament. It shows the government has responded to <a href="https://www.anrows.org.au/publication/no-straight-lines-self-represented-litigants-in-family-law-proceedings-involving-allegations-about-family-violence/">insistent calls for change</a> to protect families. </p>
<p>But here’s why it doesn’t go far enough in addressing family violence.</p>
<h2>What’s the bill for?</h2>
<p>The bill will make important changes to the rules that govern parenting arrangements after separation.</p>
<p>It will remove the presumption of “<a href="http://classic.austlii.edu.au/au/legis/cth/consol_act/fla1975114/s61da.html">equal shared parental responsibility</a>”. Under the current law, this presumption means both parents have a role in making major, long-term decisions about their children.</p>
<p>However, it’s often misinterpreted. <a href="https://consultations.ag.gov.au/families-and-marriage/family-law-amendment-bill/consultation/view_respondent?_b_index=240&uuId=931667378">Many people believe</a> it means parents are entitled to equal time with their children, regardless of domestic and family violence or abuse.</p>
<p>This bill will finally make it clear that equal time isn’t always appropriate or safe for families with a history of abuse.</p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"1655807754471342080"}"></div></p>
<h2>The problem of family violence</h2>
<p>The grim reality is that family violence is the norm, not the exception in family law. <a href="https://www.fcfcoa.gov.au/sites/default/files/2021-11/mr101121_0.pdf">Recent data</a> shows well over half of cases before the family court involve allegations of family violence against children or one parent.</p>
<p>Separation often doesn’t mean an end to the violence, but <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1084682">more harm and control</a>, especially at contact changeover times for children or during the court process.</p>
<p>Helen Politis, a victim-survivor of abuse and veteran of the family law system explains what this meant for her:</p>
<blockquote>
<p>The reign of chaos my children and I experienced prior to separation escalated post separation. Even worse was that this damaging behaviour was inadvertently enabled, legitimised, perpetuated and, I fear, normalised for my children.</p>
</blockquote>
<p>Victim-survivors face a <a href="http://hdl.handle.net/2123/6255">common belief from family law professionals</a> that children need a relationship with their father, no matter the abuse they have suffered. As Helen explains:</p>
<blockquote>
<p>Despite the overwhelming evidence of continued abuse and countless examples of the ways in which my children were being used as pawns, my own lawyers denied my situation. Routinely my desperate pleas to my lawyers were met with dismissive responses such as “it takes two to tango” and “you can’t clap with one hand”.</p>
</blockquote>
<p>This is even worse when the system itself is deliberately used by perpetrators to control and intimidate victim-survivors. Research in <a href="https://journals.sagepub.com/doi/abs/10.1177/1748895817728380">Australia</a> and <a href="https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/895175/domestic-abuse-private-law-children-cases-literature-review.pdf">the United Kingdom</a> demonstrates this “legal systems abuse” is common in family law. </p>
<p>For Helen, the legal system was a core component of family violence:</p>
<blockquote>
<p>Being caught in the family law system felt very dangerous. I was in an impossible situation, with no way out and no way of protecting my children.</p>
</blockquote>
<h2>What needs to be done?</h2>
<p>This bill makes important progress, but there are two main reasons why it doesn’t go far enough. </p>
<p><strong>It must allow histories of violence</strong></p>
<p>First, the bill needs to be stronger in recognising where family violence has occurred. </p>
<p>In the bill, there will be six principles to help judges, lawyers and parents decide what arrangements would be in children’s best interests. The bill includes reference to “safety” as one of these six principles, but at the same time proposes to remove a <a href="http://classic.austlii.edu.au/au/legis/cth/consol_act/fla1975114/s60cc.html">reference in the current law</a> to a history of violence in considering the best interests of children. </p>
<p>Simplification of the law shouldn’t come at the cost of harm. As family law expert Zoe Rathus from Griffith University explains: </p>
<blockquote>
<p>Talking about safety is talking about the future. Talking about violence is talking about the past – and talking about the past is critical to women and children being able to tell their stories when they have experienced family violence.</p>
</blockquote>
<p>There’s significant evidence that many <a href="https://theconversation.com/separated-parents-and-the-family-law-system-what-does-the-evidence-say-62826">victim-survivors’</a> allegations of family violence aren’t believed, and their experiences are <a href="https://search.informit.org/doi/10.3316/INFORMIT.702873923415841">minimised in the family law system</a>. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/separated-parents-and-the-family-law-system-what-does-the-evidence-say-62826">Separated parents and the family law system: what does the evidence say?</a>
</strong>
</em>
</p>
<hr>
<p>Helen’s own lawyers advised her not to raise her experiences of past family violence in her case, for fear it would be held against her: </p>
<blockquote>
<p>I believed that the family law system would provide my children with the safety and support that they rightfully deserved. What I experienced was an incredibly lengthy, frightening and financially depleting process. Family violence is what led me into the family law system, yet despite the irrefutable evidence, it was routinely ignored.</p>
</blockquote>
<p>As it stands, this bill reinforces this problem. It suggests we should ignore information and evidence about past violence, and pretend it isn’t relevant to the future safety of victim-survivors or the children at the heart of these arrangements. </p>
<p>To address this, the bill should retain the provision that allows evidence of any family violence to be considered. </p>
<p><strong>It must recognise ‘legal systems abuse’</strong></p>
<p>Second, the bill needs to do more to address <a href="https://dfvbenchbook.aija.org.au/understanding-domestic-and-family-violence/systems-abuse/">legal systems abuse</a>. </p>
<p>A major achievement of this bill is it will introduce a new power for judges to make orders that stop people bringing court proceedings where it would cause harm to the other family members involved.</p>
<p>However, it needs to go further. The bill needs to reflect global evidence and finally recognise “systems abuse” as a form of family violence. </p>
<p>Systems abuse could be explicitly listed as an example of family violence in the <a href="http://classic.austlii.edu.au/au/legis/cth/consol_act/fla1975114/s4ab.html">Family Law Act 1975</a>, as recommended by a recent unpublished study by Lucy Foster from Monash University. </p>
<p>We believe the bill could add systems abuse into the existing definition of family violence used in law.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/no-simple-solution-when-families-meet-the-law-58641">No simple solution when families meet the law</a>
</strong>
</em>
</p>
<hr>
<p>It’s important parliament takes this opportunity to get our family laws as strong as possible on the issue of family violence. </p>
<p>We support Helen in her hope for this new law:</p>
<blockquote>
<p>Although too late for me and my children… I am hopeful this time we have the courage to step up and deliver a Family Law Act that does not further damage the lives of vulnerable people. Simple changes such as recognising past violence can make all the difference. The proposed changes do not seem to go far enough to address the harms inflicted on vulnerable people before the family law system, overwhelmingly women and children.</p>
</blockquote>
<hr>
<p><em>The authors would like to acknowledge Helen Politis, who coauthored this article. Helen is a workplace advisor and advocate. She works with organisations, including 1800 Respect and the Judicial College of Victoria towards ending family violence.</em></p><img src="https://counter.theconversation.com/content/205562/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Becky Batagol provided advice to Zoe Daniels MP on the Family Law Amendment Bill 2023. Helen Politis provided statements and input to the solutions proposed for this story based upon her lived experience of family violence in the family law system. </span></em></p><p class="fine-print"><em><span>Jessica Mant provided advice to Zoe Daniels MP on the Family Law Amendment Bill 2023.</span></em></p>We should celebrate that this bill is passing through parliament. But there are 2 key concerns.Becky Batagol, Associate Professor of Law, Monash University, Monash UniversityJessica Mant, Lecturer in Law, Monash UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1979312023-02-13T12:51:00Z2023-02-13T12:51:00ZCohabitation: it’s time to take legal reform seriously<figure><img src="https://images.theconversation.com/files/508450/original/file-20230206-23-biiruh.jpg?ixlib=rb-1.1.0&rect=0%2C11%2C7423%2C4933&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/relocation-day-cohabitation-new-house-young-2164076925">fizkes/Shutterstock</a></span></figcaption></figure><p>We live our lives differently today. Marriage is no longer the go-to choice for couples. The <a href="https://www.ons.gov.uk/peoplepopulationandcommunity/birthsdeathsandmarriages/marriagecohabitationandcivilpartnerships/bulletins/marriagesinenglandandwalesprovisional/2019">marriage rate</a> is now the lowest since records began in 1862 and many couples are instead cohabiting. The unmarried family has become the <a href="https://www.ons.gov.uk/peoplepopulationandcommunity/birthsdeathsandmarriages/families/bulletins/familiesandhouseholds/2018">fastest-growing family type</a> in the UK. </p>
<p>The <a href="https://researchbriefings.files.parliament.uk/documents/SN03372/SN03372.pdf">number</a> of cohabitants has grown from around 1.5 million in 1996 to around 3.6 million in 2021, representing an increase of 144%. That amounts to one in five couples today and that figure is predicted to rise to one in four by 2031. </p>
<p>Despite this trend, it is alarming that cohabiting couples in England and Wales are often left without legal protections when they break up. Take the hypothetical example of Tom and Mary who have cohabited for ten years in a house owned by Tom and have a child together. Unlike their married or civilly partnered counterparts, if they split up, their home and other property would not be divided by the courts based on what is fair, having regard to the financial needs of the parties and contributions to the relationship. While child support would be payable, Mary herself would not be entitled to any maintenance.</p>
<p>Tom and Mary would be largely treated as two unconnected individuals subject to the complexities and costs of property and trusts law instead. If no agreement was reached between the two that ownership of the home was to be shared and Mary had not made financial contributions to its acquisition, she would be left without a remedy. Work in the home and looking after their child would not make a difference in the eyes of the law as it stands. </p>
<p>Of course, couples like Tom and Mary can create wills, purchase property jointly or enter contracts, but in practice many people do not get around to it. Life is messier than that. </p>
<h2>The myth of common law marriage</h2>
<p>What exacerbates this issue is that many couples believe they do not need to put their legal affairs in order and are already protected as so-called “common law spouses”. But this is completely untrue. Merely living together does not create legal entitlements, yet this myth is widespread and endures. </p>
<p><a href="https://theconversation.com/common-law-marriage-a-myth-nearing-its-end-114037">Research</a> in 2019 showed 46% of the population in England and Wales thought unmarried cohabiting couples have a “common law marriage” with the same legal rights as spouses. </p>
<p>Academics and practitioners have long called for reform of this area. Graeme Fraser, the chair of Resolution’s (an organisation of family justice professionals) cohabitation committee <a href="https://www.ft.com/content/ea82e8dc-d95d-42b0-891d-1b0d6d90c8b1">branded</a> the law “unfair”, “not fit for purpose” and capable of leaving couples “at significant financial risk”. Lawyers frequently have to advise disappointed cohabiting clients that the law cannot provide solutions. The problem is lack of political will.</p>
<p>A comprehensive reform <a href="https://www.lawcom.gov.uk/document/cohabitation-the-financial-consequences-of-relationship-breakdown/">proposal</a> was produced by the Law Commission in 2007 and later shelved. Last year, the Women and Equalities Committee of the UK parliament released its <a href="https://committees.parliament.uk/publications/23321/documents/170094/default/">report</a> calling for the introduction of remedies for cohabitants who have lived together for a specified period of time or have a child together. But in November 2022 it was <a href="https://committees.parliament.uk/publications/31430/documents/176284/default/">rejected</a> by the government.</p>
<p>Resistance to reform is usually based on <a href="https://publications.parliament.uk/pa/cm5803/cmselect/cmwomeq/92/report.html#heading-5">fears of undermining marriage</a>, imposing rights on couples that do not want them, or that the scheme might be too difficult to operate. None of these are convincing arguments but they require closer inspection. </p>
<p>Regarding the undermining of marriage, no proposal to reform cohabitation rights in England and Wales has, to date, called for cohabitants to be treated identically to married people. Other countries, including New Zealand and Australia, do indeed treat cohabitants – or “de factos” as they call them – equally once they have lived together for a period of time or have had a child together. </p>
<p>But, in England and Wales, the calls for legal reform are not about collapsing the distinction between cohabiting and married people. Rather, reforming the current system would create a legal safety net for cohabiting couples.</p>
<p>The idea that reform might impose rights on couples who do not want them disregards the meaning of choice in this context. Some couples choose cohabitation because they do not want to marry. </p>
<p>Cohabiting couples who are knowledgeable of the law could opt out of legal protections, thereby exercising and preserving their autonomy. But <a href="https://www.natcen.ac.uk/blog/common-law-marriage-a-peculiarly-persistent-myth">research</a> on the common law marriage myth reveals a significant proportion of couples do not feel the need to marry because they believe they already are protected by the law. </p>
<figure class="align-center ">
<img alt="Two wooden figures are set in front of a small wooden house." src="https://images.theconversation.com/files/508451/original/file-20230206-23-977c0e.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/508451/original/file-20230206-23-977c0e.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=397&fit=crop&dpr=1 600w, https://images.theconversation.com/files/508451/original/file-20230206-23-977c0e.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=397&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/508451/original/file-20230206-23-977c0e.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=397&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/508451/original/file-20230206-23-977c0e.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=499&fit=crop&dpr=1 754w, https://images.theconversation.com/files/508451/original/file-20230206-23-977c0e.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=499&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/508451/original/file-20230206-23-977c0e.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=499&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="caption"></span>
<span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/two-people-standing-near-house-wooden-1035680527">Andrii Yalanskyi/Shutterstock</a></span>
</figcaption>
</figure>
<p>The complexity of operating a scheme is another counterargument. Critics may question how we define cohabitants and ask whether the law will inadvertently catch casual relationships or even flatmates. </p>
<p>The answer to this is careful drafting and drawing inspiration from other jurisdictions where cohabitation protections already exist. Both Scotland and the Republic of Ireland have legal frameworks that operate on relatively clear parameters. They tend to be used by couples who were in lengthy, committed relationships with children.</p>
<p>It is naive to think, or indeed romantically hope, that marriage works for everyone. The time has come for cohabitation reform to be taken seriously and placed back on the political agenda, as advocated by the <a href="https://www.birmingham.ac.uk/research/law/family-law-reform-now/securing-cohabitation-reform.aspx">Family Law Reform Now Project</a>, a group of academics, practising lawyers and policymakers. Last year, it was revealed that <a href="https://theconversation.com/over-half-of-children-in-england-and-wales-are-now-born-to-unmarried-parents-overturning-a-history-of-stigma-and-discrimination-189025">more than half of children</a> in England and Wales are now born to unmarried parents, which makes the need for legal reform all the more imperative. </p>
<p>It is time for society to confront the reality of modern families and offer cohabiting couples the basic legal protections they deserve.</p><img src="https://counter.theconversation.com/content/197931/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Andy Hayward acted as Specialist Adviser to the Women and Equalities Committee's Rights of Cohabiting Partners Inquiry. The views expressed here are his own and should not be taken as representing the views of the Committee. </span></em></p>Cohabitation reform is needed in England and Wales to better protect couples legally upon relationship breakdown.Andy Hayward, Associate Professor in Family Law, Durham UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1878172022-09-15T12:22:25Z2022-09-15T12:22:25ZIn states where abortion is banned, children and families already face an uphill battle<figure><img src="https://images.theconversation.com/files/482819/original/file-20220905-14-wr41ei.jpg?ixlib=rb-1.1.0&rect=21%2C26%2C3540%2C2344&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Of the 10 most child-friendly states, only one has attempted to ban abortion.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/katherine-merlos-a-pre-k-3-student-centron%C3%ADa-gives-a-thumbs-news-photo/1239430403">Sarah L. Voisin/The Washington Post via Getty Images</a></span></figcaption></figure><p>Some proponents of abortion bans and restrictions say they are concerned about “supporting not just life,” but what they call “<a href="https://missouriindependent.com/2022/07/06/states-with-strong-antiabortion-laws-have-high-maternal-and-infant-mortality-rates/">quality of life worth living</a>,” saying they want to <a href="https://www.theatlantic.com/politics/archive/2022/06/anti-abortion-movement-dobbs-roe-overturned/661393/">promote laws and policies that help families</a>. Three authors from Brigham Young University, for instance, have noted that the overturning of Roe v. Wade provides a “<a href="https://www.thepublicdiscourse.com/2022/06/82906/">genuine opportunity for pro-lifers to work with people of diverse political persuasions</a> to seek a more just and compassionate world. This world would be not only pro-life, but also pro-child, pro-parent and pro-family.”</p>
<p>U.S. Sen. Mitt Romney of Utah is one of three Republicans in the Senate who have sponsored a bill called the <a href="https://www.romney.senate.gov/romney-family-security-act-2-0-one-of-the-most-important-efforts-to-support-the-family-in-nearly-thirty-years/">Family Security Act</a>, billed as a “pro-family, pro-life and pro-marriage plan” that would provide a monthly cash benefit starting at pregnancy and continuing through the child turning 17.</p>
<p>But so far, these are <a href="https://www.theatlantic.com/politics/archive/2022/06/anti-abortion-movement-dobbs-roe-overturned/661393/">minority voices</a> in the anti-abortion movement. </p>
<p>As a law professor who <a href="https://scholar.google.com/citations?user=gCJEShUAAAAJ&hl=en&oi=ao">studies reproductive care</a>, policies that affect families and political partisanship, I have been following the relationship between <a href="https://www.urban.org/urban-wire/research-shows-access-legal-abortion-improves-womens-lives">abortion restrictions and family well-being</a> for decades. It turns out that states taking the strictest stands against abortion tend to have among the <a href="https://www.nytimes.com/2022/07/28/upshot/abortion-bans-states-social-services.html">worst statistics</a> on child and family well-being in the nation.</p>
<h2>Unintended pregnancy and infant mortality</h2>
<p>Take Mississippi, the state that enacted the abortion restriction law that was at the center of the Supreme Court’s June 2022 opinion in <a href="https://www.supremecourt.gov/opinions/21pdf/19-1392_6j37.pdf">Dobbs v. Jackson Women’s Health Organization</a>, which struck down federal protection for the right to get an abortion. </p>
<p>In 2019, Mississippi had the <a href="https://www.americashealthrankings.org/explore/health-of-women-and-children/measure/unintended_pregnancy/state/U.S">highest rate of unintended pregnancy</a>, defined as the percentage of women who recently gave birth but whose pregnancies were either <a href="https://www.cdc.gov/reproductivehealth/contraception/unintendedpregnancy/index.htm">unwanted or happened at an unwanted time</a>. In Mississippi, 47% of women who recently had a child did not want to become pregnant or wanted to become pregnant later in life.</p>
<p>By contrast, Vermont had the nation’s lowest rate of unintended pregnancy in 2019, with <a href="https://www.americashealthrankings.org/explore/health-of-women-and-children/measure/unintended_pregnancy/state/U.S">just 20% of women who recently had a child</a> saying they would have preferred not to get pregnant or wanted to do so at some point in the future. That state already protects abortion rights. If Vermont’s <a href="https://www.wcax.com/2022/06/23/will-vermont-become-abortion-haven-if-scotus-upends-roe-v-wade/">upcoming referendum on abortion</a> passes, the state’s constitution will protect “<a href="https://legislature.vermont.gov/Documents/2022/Docs/BILLS/PR0005/PR0005%20As%20adopted%20by%20the%20Senate%20Official.pdf">an individual’s right to personal reproductive autonomy</a>.”</p>
<p>Mississippi also has the <a href="https://www.cdc.gov/nchs/pressroom/sosmap/infant_mortality_rates/infant_mortality.htm">highest infant mortality rate</a> in the country. Five of the other nine states with the highest infant mortality <a href="https://www.nytimes.com/interactive/2022/us/abortion-laws-roe-v-wade.html">also have abortion bans</a>. At the other end of the spectrum, of the 10 states with the lowest infant mortality rates, <a href="https://www.cdc.gov/nchs/pressroom/sosmap/infant_mortality_rates/infant_mortality.htm">only one – Iowa</a> – has a law restricting abortions, <a href="https://www.kcci.com/article/governor-kim-reynolds-announces-legal-actions-regarding-abortion-in-iowa/40449729">although a court has prevented its enforcement</a>.</p>
<h2>Childhood poverty and teen birth rates</h2>
<p>Mississippi has the <a href="https://www.census.gov/acs/www/data/data-tables-and-tools/ranking-tables/">highest rate of child poverty in the country</a>. Six of the other 10 states with the country’s highest child poverty levels also have <a href="https://www.nytimes.com/interactive/2022/us/abortion-laws-roe-v-wade.html">abortion bans in effect</a>: Louisiana, Arkansas, Kentucky, Alabama, Oklahoma and Tennessee.</p>
<p>Mississippi also had the <a href="https://www.cdc.gov/nchs/pressroom/sosmap/teen-births/teenbirths.htm">highest teen birth rate in the country</a>, and eight of the other nine states with the highest teen birth rates also <a href="https://www.nytimes.com/interactive/2022/us/abortion-laws-roe-v-wade.html">ban abortions or have a ban blocked</a>.</p>
<p>In all 10 states with the lowest teen birth rates, <a href="https://www.washingtonpost.com/politics/2022/06/24/abortion-state-laws-criminalization-roe/">abortion is legal</a> and likely to be protected for the foreseeable future.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/482820/original/file-20220905-18-djghzt.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="A pregnant person has a written message on the skin of her belly: 'My daughter deserves a choice'" src="https://images.theconversation.com/files/482820/original/file-20220905-18-djghzt.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/482820/original/file-20220905-18-djghzt.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/482820/original/file-20220905-18-djghzt.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/482820/original/file-20220905-18-djghzt.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/482820/original/file-20220905-18-djghzt.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/482820/original/file-20220905-18-djghzt.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/482820/original/file-20220905-18-djghzt.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">A pregnant activist calls for abortion rights in Chicago on June 25, 2022.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/pregnant-woman-takes-part-in-a-protest-in-downtown-chicago-news-photo/1241562432?adppopup=true">Vincent D. Johnson/Xinhua via Getty Images)</a></span>
</figcaption>
</figure>
<h2>Supporting families</h2>
<p>The well-being of children also depends on the availability of support for their parents.</p>
<p>For instance, <a href="https://www.ncsl.org/research/labor-and-employment/state-family-and-medical-leave-laws.aspx">11 states plus the District of Columbia legally require employers</a> to offer workers paid time off after the birth or adoption of a child. None of those jurisdictions <a href="https://www.washingtonpost.com/politics/2022/06/24/abortion-state-laws-criminalization-roe/">bans abortions</a>.</p>
<p>Another federal effort to support families came in the Affordable Care Act, enacted in 2010, with <a href="https://www.healthcare.gov/glossary/affordable-care-act/">sweeping changes</a> to the nation’s health insurance marketplace. One provision allowed states to <a href="https://www.healthcare.gov/medicaid-chip/medicaid-expansion-and-you/">expand Medicaid eligibility</a> to more adults, with financial support from the federal government. If Medicaid were expanded, <a href="https://www.urban.org/research/publication/3-7-million-people-would-gain-health-coverage-2023-if-remaining-12-states-were">reproductive-aged women</a> would be among the groups to experience the largest coverage gains.</p>
<p>As of August 2022, <a href="https://www.urban.org/research/publication/3-7-million-people-would-gain-health-coverage-2023-if-remaining-12-states-were">12 states</a> had not adopted the expansion: Alabama, Florida, Georgia, Kansas, Mississippi, North Carolina, South Carolina, South Dakota, Tennessee, Texas, Wisconsin and Wyoming. <a href="https://www.nytimes.com/interactive/2022/us/abortion-laws-roe-v-wade.html">Eight of those states</a> have either a full ban on abortion or a ban after six weeks – before many people realize they are pregnant.</p>
<p>Two of those states, <a href="https://www.nytimes.com/interactive/2022/us/abortion-laws-roe-v-wade.html">South Carolina and Wyoming</a>, have abortion <a href="https://www.npr.org/2022/08/04/1115542013/wyomings-new-ban-on-abortions-has-been-temporarily-blocked">laws that are tied up in the courts</a>, and Florida bans abortions after 15 weeks. </p>
<p>In a June 2022 <a href="https://www.brookings.edu/blog/up-front/2022/06/30/the-end-of-roe-will-create-more-inequality-of-opportunity-for-children/">Brookings Institution study</a> of the states that are considered most child-friendly – measured by state expenditures per child and children’s overall well-being – the authors found that among the top 10, only Wyoming was <a href="https://www.nytimes.com/interactive/2022/us/abortion-laws-roe-v-wade.html">even trying to ban abortion</a>. For the 10 states Brookings rated least child-friendly, nine either had a trigger ban or other abortion restriction.</p>
<p>The overall pattern is clear: A strong social safety net and other anti-poverty programs <a href="https://www.nytimes.com/2022/07/13/opinion/abortion-romney-child-tax-credit.html">are more likely to be available</a> in states that also support abortion access, while actual measures of child and family well-being are often worse in states that restrict abortions.</p><img src="https://counter.theconversation.com/content/187817/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Naomi Cahn does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>States taking the strictest stands against abortion tend to have among the worst statistics in the nation on child and family well-being.Naomi Cahn, Professor of Law, University of VirginiaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1851982022-07-05T19:58:31Z2022-07-05T19:58:31Z‘Quite irreparable damage’: child family violence survivors on how court silenced and retraumatised them<figure><img src="https://images.theconversation.com/files/471511/original/file-20220629-15-8eow4h.jpg?ixlib=rb-1.1.0&rect=0%2C0%2C4330%2C2968&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><span class="source">Shutterstock</span></span></figcaption></figure><p>Nobody spoke to Donna* or her sister in the lead up to the family court decision that ordered the children to spend time alone with their father, who was violent. Donna was eight.</p>
<p>Later, after the children told the court’s Independent Children’s Lawyer their father had been “drinking a lot” when he was with them and made “threats to kill”, the judge appointed a supervisor to ensure the children would be physically “safe” from any further violence that might occur. Donna explains, </p>
<blockquote>
<p>[…] so, they thought it was safe, but it wasn’t […] we were just terrified of him. Really, really scared …</p>
</blockquote>
<p>Donna, now in her 30s, says the court’s disregard generated emotional harm that was “more traumatic” than the serious family violence leading up to court:</p>
<blockquote>
<p>[…] when you come from a situation of family violence as a child, your mother is your place of safety - generally - and when mum [is] removed […] you know, those times I was made to spend time with him without her was terrifying. And that was probably more traumatic than the years and years of trauma leading up to that.</p>
</blockquote>
<p>After about two years of court-enforced contact, Donna’s father physically assaulted the court-appointed supervisor in front of Donna and her sister, and the judge agreed to lift the orders.</p>
<p>But the psychological damage would resurface later in Donna’s adult life:</p>
<blockquote>
<p>[…] when I was 20, 21, I think […] I started to have flashbacks, and that’s when I realised that I needed to get some help because I couldn’t sleep because I just kept having flashbacks.</p>
</blockquote>
<p>I spoke to Donna as part of a <a href="https://www.whitlam.org/publications/they-thought-it-was-safe">project</a> for the Whitlam Institute within Western Sydney University.</p>
<p>Based on the research for my book <a href="https://www.blackincbooks.com.au/books/broken">Broken: Children, Parents and Family Courts</a>, the project combines a podcast and policy paper with 12 recommendations designed to create a family law environment able to learn from children’s experience – one based in children’s rights. </p>
<iframe width="100%" height="300" scrolling="no" frameborder="no" allow="autoplay" src="https://w.soundcloud.com/player/?url=https%3A//api.soundcloud.com/tracks/1273432588&color=%23ff5500&auto_play=false&hide_related=false&show_comments=true&show_user=true&show_reposts=false&show_teaser=true&visual=true"></iframe>
<div style="font-size: 10px; color: #cccccc;line-break: anywhere;word-break: normal;overflow: hidden;white-space: nowrap;text-overflow: ellipsis; font-family: Interstate,Lucida Grande,Lucida Sans Unicode,Lucida Sans,Garuda,Verdana,Tahoma,sans-serif;font-weight: 100;"><a href="https://soundcloud.com/user-571199545" title="Whitlam Institute" target="_blank">Whitlam Institute</a> · <a href="https://soundcloud.com/user-571199545/securing-childrens-safety-and-rights-in-australias-family-law-system" title="They thought it was safe: Securing children's safety and rights in Australia's Family Law system" target="_blank">They thought it was safe: Securing children’s safety and rights in Australia’s Family Law system</a></div>
<h2>What the research found</h2>
<p>In Australia, it’s a criminal offence to identify a party to a family law proceeding, including adults who went to court when they were children. </p>
<p>This means survivors of family violence who were subject to Federal Circuit or Family Court orders when they were children are unable to speak – online or in the media – unless they mount an expensive legal action seeking the court’s permission. If they are successful, they can only speak on the terms the court imposes. </p>
<p>As a consequence, <a href="http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/wa/FCWA/2016/6.html?context=1;query=Harley%20Cuzens%20%20;mask_path=">successful applications</a> usually involve cases where the media is willing to pay the legal costs.</p>
<p>Quite simply, the court cannot see the impact of its decisions on children’s lives. It is unable to learn from its mistakes. It has no mechanism through which children’s experiences can be used to inform structural change. And children are forced to live with the consequences.</p>
<p>During the writing of <a href="https://www.whitlam.org/publications/they-thought-it-was-safe">this report</a>, I traced the cases of seven adults whose families went to court when they were children. All were child survivors of family violence, and two were survivors of child sexual abuse. The length of litigation varied from two to ten years, including one participant who reported she didn’t have a memory from her childhood that didn’t include the family courts. </p>
<p>While each survivor had different experiences, they raised common themes. They told me they felt powerless, distressed at being disbelieved, ignored or “kept in the dark”. They said they felt traumatised by the way in which legal actors executed the court’s orders.</p>
<p>They told me about the long-term social, emotional and financial impacts of litigation on their families. They explained this trauma resurfaced in their adult lives.</p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"993639192302239744"}"></div></p>
<p>The cases of the people I spoke to were litigated between 1990 and 2010. Similar themes emerged in the <a href="https://aifs.gov.au/publications/children-and-young-people-separated-families-family-law-system-experiences">Australian Institute of Family Studies 2018 report</a>, based on interviews with children between the ages of ten and 17 about legal matters that were mostly finalised between 2016 and 2017. </p>
<p>What I found suggests the issues raised by older survivors are also being raised by younger survivors. This suggests the silencing of children is deeply embedded in the adversarial practices of the courts, in the ideologies of the legal profession and in institutional culture.</p>
<p>Nikos*, in his 20s, spent seven years of his childhood in the Federal Circuit and Family Courts. He never got to speak to the Independent Children’s Lawyer: </p>
<blockquote>
<p>[…] what I wanted, and what I thought would be better for me was completely irrelevant to the courts.</p>
</blockquote>
<p>Ten years after litigation has ended, Nikos can still name the lawyer who refused to speak to him as a child. He said a central problem was that the court’s adversarial system created a forum through which family conflict could be escalated and extended.</p>
<p>Anna*, in her 30s, also says the court made everybody “fight all the time”. She says:</p>
<blockquote>
<p>I honestly think that even though my dad was extremely violent, family court made it so much worse.</p>
</blockquote>
<p>Anna explains:</p>
<blockquote>
<p>Because mum was very angry and very inconsistent with me. But I think she would not have been like that if family court was not happening. If the court had just said in the first place, ‘Look, your dad’s really dangerous, don’t see him,’ she would have been a lot more settled and not under the same financial pressure. So, I think that we would have had a much better upbringing.</p>
</blockquote>
<p>As the decade-long litigation escalated, Anna’s relationship with her mother became increasingly “difficult”: </p>
<blockquote>
<p>I thought afterwards that probably the most unaddressed issue is how badly family court affected the relationship between my mum and I. [My mother] wasn’t the main perpetrator of family violence, and she did try to protect us from it, but because she couldn’t when the court ordered her to send us to dad’s house, it really has caused quite irreparable damage.</p>
</blockquote>
<p>The litigation in Anna’s case lasted until she was 14. When the court handed down its final decision, she ran away from home.</p>
<p>The problem, Donna explains, is that:</p>
<blockquote>
<p>Your fate is in the hands of these strangers […] I actually used to, you know, envision myself as a child just walking in there and screaming at them and telling them the truth, you know, and telling them that he is really dangerous. But, you know, not being heard. So what’s the point?</p>
</blockquote>
<h2>12 recommendations</h2>
<p>My <a href="https://www.flipsnack.com/whitlam/they-thought-it-was-safe-but-it-wasn-t/full-view.html">report</a> makes 12 recommendations, including that:</p>
<ul>
<li><p>there must be a less hostile context in which to hear legal matters which affect children</p></li>
<li><p>family law decision-making processes must be anchored in <a href="https://www.ohchr.org/en/instruments-mechanisms/instruments/convention-rights-child">children’s rights</a></p></li>
<li><p>adults who went to court when they were children should not be silenced.</p></li>
</ul>
<p>They’re designed to create a simpler and more affordable family law system that reduces harm to children and young people. </p>
<p>This requires the court to provide a child safe environment in which it’s possible for children and young people to speak freely about their safety concerns and be taken seriously.</p>
<hr>
<p><em>*Names have been changed and transcripts redacted to remove identifying details as required by law.</em></p>
<p><em>If this article has raised issues for you, or if you’re concerned about someone you know, call Kids Helpline on 1800 55 1800 or 1800RESPECT on 1800 737 732. In an emergency call 000.</em></p><img src="https://counter.theconversation.com/content/185198/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>This policy project has been funded by the Whitlam Institute within Western Sydney University. This story is part of The Conversation's Breaking the Cycle series, which is about escaping cycles of disadvantage. It is supported by a philanthropic grant from the Paul Ramsay Foundation.</span></em></p>In a new report, child family violence survivors describe how family court worsened their trauma and profoundly affected their well-being even into adult life.Camilla Nelson, Associate Professor in Media, University of Notre Dame AustraliaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1805222022-04-05T11:36:30Z2022-04-05T11:36:30ZNo fault divorce: how the new law will reduce family conflict<figure><img src="https://images.theconversation.com/files/456097/original/file-20220404-26-udxmbo.jpg?ixlib=rb-1.1.0&rect=366%2C0%2C6585%2C4554&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/sad-little-girl-looking-camera-while-609100724">VGstockstudio / Shutterstock</a></span></figcaption></figure><p>After more than 50 years, the law governing divorce –- the process of legally dissolving a marriage -– is changing in England and Wales. While everyone hopes they won’t have to use divorce law, each year over <a href="https://www.ons.gov.uk/peoplepopulationandcommunity/birthsdeathsandmarriages/divorce">100,000 couples</a> do. Yet for half a century the law itself has actually increased conflict between the parties and negatively affected children. The new law is intended to reduce family conflict and enable couples to dissolve their marriages or civil partnerships without the law itself making things worse.</p>
<p>The old law was based on the Divorce Reform Act 1969, which was later incorporated into the <a href="https://www.legislation.gov.uk/ukpga/1973/18">Matrimonial Causes Act 1973</a>. The 1973 act stated that a petitioner (the spouse seeking a divorce) could only get a divorce when their marriage had irretrievably broken down and they could prove one of five circumstances (“facts”) existed. Three facts were fault-based: adultery, behaviour and desertion for two years. The other facts required two years’ separation if the other spouse consented to the divorce or being separated for five years.</p>
<p>Unless couples were willing to wait two years, the only options were to divorce for adultery or behaviour, which led to some petitioners feeling compelled to exaggerate or distort their accounts of events during the marriage in order to get a divorce. Research by the <a href="https://www.nuffieldfoundation.org/project/finding-fault-divorce-law-in-practice-in-england-and-wales">Nuffield Foundation</a> in 2017 found that only 29% of respondents said that their “fault” reason very closely matched the reason for the divorce. This tells us that most fault-based divorce petitions (the official document requesting a divorce) were not an accurate account of a couple’s experience. About two-thirds of couples who divorced using fault grounds said it made the process more bitter, and around one-fifth said the law made it more difficult to sort out arrangements for their children. </p>
<p>A <a href="https://www.lawcom.gov.uk/project/family-law-the-ground-for-divorce/">1990 report</a> from the law commission found that the law provoked unnecessary hostility and bitterness. The commission found the process made things worse for children because it set the tone for their parents to remain in conflict following divorce.</p>
<p>Further calls for reform came from the supreme court in the high-profile case of <a href="https://www.supremecourt.uk/cases/uksc-2017-0077.html">Owens v Owens</a> in 2018, which revealed the absurdity and unfairness of the law when Mrs Owens was unable to obtain a divorce. The first judge decided that the 40-year marriage had broken down, but Mrs Owens had failed to show her husband’s behaviour towards her satisfied the legal requirements for a divorce. Despite finding it a “very troubling case”, the court of appeal and supreme court could not overturn that decision because the first judge had applied the law correctly. </p>
<p>A few months later, the government <a href="https://consult.justice.gov.uk/digital-communications/reform-of-the-legal-requirements-for-divorce/supporting_documents/reducingfamilyconflictconsultation.pdf">published its proposals</a> to reform the law. The government accepted the many criticisms of the law and moved quickly to introduce a bill that became the <a href="https://www.legislation.gov.uk/ukpga/2020/11/contents/enacted">Divorce, Dissolution and Separation Act 2020</a> now coming into effect.</p>
<h2>The new law</h2>
<p>The new law amends the Matrimonial Causes Act 1973 (relating to marriage and divorce) and the Civil Partnership Act 2004 (relating to civil partnership and dissolution). Irretrievable breakdown remains the sole ground for divorce, but the need to prove any of the five facts has been removed. Couples will no longer have to document past wrongs to end their marriage.</p>
<figure class="align-center ">
<img alt="A woman removes her wedding ring while sitting at a table and signing a document." src="https://images.theconversation.com/files/456099/original/file-20220404-13-fjte63.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/456099/original/file-20220404-13-fjte63.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=397&fit=crop&dpr=1 600w, https://images.theconversation.com/files/456099/original/file-20220404-13-fjte63.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=397&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/456099/original/file-20220404-13-fjte63.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=397&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/456099/original/file-20220404-13-fjte63.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=499&fit=crop&dpr=1 754w, https://images.theconversation.com/files/456099/original/file-20220404-13-fjte63.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=499&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/456099/original/file-20220404-13-fjte63.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=499&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">No-fault divorce will make it simpler, and hopefully less painful, to dissolve a marriage.</span>
<span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/great-concept-divorce-ending-relationship-young-759005119">ThiagoSantos / Shutterstock</a></span>
</figcaption>
</figure>
<p>A divorce can be sought by one party –- as before –- or now by both parties jointly based on a statement of irretrievable breakdown. Joint applications will better reflect that divorce is often a mutual decision and encourage cooperation early in the process. </p>
<p>The court must take the statement to be conclusive evidence that the marriage has broken down irretrievably and grant the divorce. It will generally not be possible to contest a divorce application by challenging such a statement. </p>
<p>The divorce process will now take a minimum of 26 weeks to complete, which will be considerably quicker than in some cases under the old system. The <a href="https://www.gov.uk/government/news/new-divorce-laws-will-come-into-force-from-6-april-2022">government hopes</a> couples will use this period to plan for the future or, in some cases, to provide “a meaningful period of reflection and the chance to reconsider” whether to end the marriage. Civil partnership dissolution will operate in the same way.</p>
<h2>The future of divorce</h2>
<p>Despite the new divorce process being cheaper to administer and moving online, the <a href="https://www.lawgazette.co.uk/practice/absolute-scandal-hmcts-urged-to-cut-593-divorce-fee/5111994.article">Ministry of Justice has no plans</a> to reduce the £593 application fee. </p>
<p>However, by avoiding one party blaming another, the new system might still save couples money in the long run. A more conciliatory, civil approach should make it easier for couples to resolve matters of finances, property and children.</p>
<p>The new law is likely to lead to a short-term surge in divorces, as happened after the last reform in the early 1970s. However, once this increase subsides, the overall number of divorces will probably be much as they would have been without the reforms.</p>
<p>In recent decades, efforts to develop a more constructive and child-focused system of family justice have been compromised by English divorce law itself. The new law will be an improvement and finally bring the law in line with how people live and love in the 21st century.</p><img src="https://counter.theconversation.com/content/180522/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Andrew Gilbert does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The reform finally brings the divorce process into the 21st century.Andrew Gilbert, Senior Lecturer in Law, The Open UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1664062021-08-26T18:12:17Z2021-08-26T18:12:17ZBook extract: ‘Broken’ — requiem for the family court<figure><img src="https://images.theconversation.com/files/417351/original/file-20210823-19-14zqvp9.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><span class="source">April Fonti/AAP</span></span></figcaption></figure><p><em>On September 1, the Family Court of Australia will merge with the Federal Circuit Court. The Morrison government says this will “help reduce delays and backlogs in the family law courts”. However, the merger has been strenuously opposed by legal and family violence experts, who note Australia will be without a specialist, stand alone family court for the first time since the 1970s.</em></p>
<p><em>This is an edited extract from Broken, a new book by media academics Camilla Nelson and Catharine Lumby that explores the family court system.</em></p>
<hr>
<p>In the early 1980s, the newly established Family Court of Australia — “<a href="https://acuresearchbank.acu.edu.au/item/86vzq/born-in-hope-the-early-years-of-the-family-court-of-australia">born in hope</a>”, and ideals of conciliation — was hit by a series of <a href="https://www.abc.net.au/news/2020-09-03/family-court-bomber-leonard-warwick-jailed-for-life/12624080">violent attacks</a> in Sydney. </p>
<p>A judge was shot dead outside his home, and a string of lethal bombings followed. </p>
<p>One injured a judge and two school-age children while they slept, demolishing almost half of their quiet suburban home. Another killed a judge’s wife when she opened her front door. A third bomb exploded outside the family court building in Parramatta, and a fourth detonated inside a church hall, killing a member of the congregation, and seriously injuring 13 others, including children.</p>
<p>The murders and bombings remained unsolved until 2015, when Leonard Warwick was finally charged. His murderous rampage followed a legal dispute with his ex-wife over care of their five-year-old daughter. </p>
<p>His attacks on the family court indicated a fiercely held belief in his “right” to control his family. In <a href="https://www.theguardian.com/australia-news/2020/sep/03/family-court-bomber-leonard-warwick-73-sentenced-to-three-life-terms">sentencing</a> Warwick, Justice Peter Garling acknowledged the political dimensions of the crimes, saying it “cannot be viewed as anything other than an attack on the very foundations of Australian democracy”. </p>
<p>Yet, after the bombs went off, commentators of the day did not condemn Warwick’s violence, but the court instead. Elizabeth Evatt, then chief justice of the family court, explained, </p>
<blockquote>
<p>They said, “The Court has been bombed, what’s wrong with the Court?”</p>
</blockquote>
<h2>Successful terrorism</h2>
<p>The family court bombings were remarkable in that they were successful as acts of terrorism. Although commentators at the time readily acknowledged the murders were wrong, many made excuses on behalf of the perpetrator. </p>
<figure class="align-right ">
<img alt="The cover of the book 'Broken' by Camilla Nelson and Catharine Lumby." src="https://images.theconversation.com/files/417349/original/file-20210823-23-vvr9oq.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/417349/original/file-20210823-23-vvr9oq.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=918&fit=crop&dpr=1 600w, https://images.theconversation.com/files/417349/original/file-20210823-23-vvr9oq.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=918&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/417349/original/file-20210823-23-vvr9oq.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=918&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/417349/original/file-20210823-23-vvr9oq.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1153&fit=crop&dpr=1 754w, https://images.theconversation.com/files/417349/original/file-20210823-23-vvr9oq.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1153&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/417349/original/file-20210823-23-vvr9oq.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1153&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="caption"></span>
<span class="attribution"><span class="source">Black Inc.</span></span>
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<p>In the media, the violence was rationalised as the actions of a man who had been treated unfairly — of a man who, as The Sydney Morning Herald reported, was “extremely distressed by a decision of the court”. The paper called for a “fundamental reappraisal” of the new court, opining, “There must be something seriously wrong with the Family Court system for such an outrage to occur”.</p>
<p>According to The Bulletin, the family court was “too much of a revolution” and the bombings had “exposed serious flaws in our divorce machinery”. Warwick’s rampage was explained in much the same way as domestic abuse is explained: as the inevitable reactions of a “distressed” man who had been driven too far. The Australian said, “No wonder the man often feels a sense of rage.”</p>
<p>Almost immediately, then Attorney-General Gareth Evans sent a letter to activists in the nascent men’s rights movement, offering them a seat at the policy-making table by asking them what changes they would like to see to the court. This willingness of the Hawke Labor government to take the bomber’s “message” on board set the scene for the hijacking of family law that would reach its apogee under Liberal prime minister John Howard. </p>
<p>By the time the Howard government took office on a “family values” platform in 1996 — with a campaign brochure that featured a pastel-coloured drawing of a house with a white picket fence — the stage was set for a reform agenda that effectively elevated the claims of perpetrators above domestic abuse victims’ claims to safety. It would irrevocably change the culture of the court, so the court’s founding ideals would seem like a distant memory.</p>
<h2>Howard era changes</h2>
<p>Of Howard’s changes to the family court, one of the least discussed was the creation of the Federal Magistrates Court in 1999, renamed the Federal Circuit Court in 2013. This week, it becomes the Federal Circuit and Family Court of Australia, following the abolition of the standalone family court. The Federal Magistrate’s Court was <a href="http://classic.austlii.edu.au/au/journals/QUTLawJJl/2003/22.html">designed</a> to be “a lean, cost-effective court” — imposing a technocratic, financially rationalised form of justice on affected families.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/the-government-still-wants-a-family-court-merger-new-research-shows-why-this-is-not-the-answer-151481">The government still wants a Family Court merger — new research shows why this is not the answer</a>
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</em>
</p>
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<p>Cases were to be solved swiftly and easily, often brutally. And this new managerialist behemoth progressively took over <a href="http://www.federalcircuitcourt.gov.au/wps/wcm/connect/22d7697a-8f09-42d7-b209-7674790aaf3e/Federal+Circuit+Court+Annual+Report+201920_WEB.pdf?MOD=AJPERES&CVID=">90% of the family court’s caseload</a>, transforming the practice of family law beyond recognition. Federal Circuit Court cases are rapid and hectic, with minimal transparency. </p>
<p>In 40% of family law matters, one or both parties will be <a href="https://www.anrows.org.au/publication/no-straight-lines-self-represented-litigants-in-family-law-proceedings-involving-allegations-about-family-violence/">self-represented</a>. Studies show the most common reason for parties to self-represent is that they cannot afford escalating legal fees. </p>
<p>In a <a href="https://theconversation.com/the-government-still-wants-a-family-court-merger-new-research-shows-why-this-is-not-the-answer-151481">recent study</a> by Jane Wangmann, Tracey Booth and Miranda Kaye, one lawyer described the Federal Circuit Court as a “zoo”, in which everybody struggles to understand what is going on because “there’s so many people and it’s so noisy and it’s so confusing”. </p>
<p>One self-represented litigant told researchers that judges “push to settle”. They say, </p>
<blockquote>
<p>Just get it out of my court room, I don’t want to deal with this, get it out. </p>
</blockquote>
<p>Another self-represented litigant said the judge asked her, “Why haven’t you settled, why haven’t you settled this yet?” The judge added:</p>
<blockquote>
<p>I’m sick to death of people who won’t negotiate. Get out there and negotiate or I’m just going to flip a coin.</p>
</blockquote>
<h2>‘An absolute fantasy’</h2>
<p>It should be unsurprising that parties to these proceedings frequently conclude that justice has not been served. </p>
<p>Tasmanian senator Jacqui Lambie — for all her populist, political complexity — seems to be one of the few politicians who has recently stepped inside one of the nation’s hyper-rationalised lower-tier courts. </p>
<figure class="align-center ">
<img alt="Independent senator Jacqui Lambie." src="https://images.theconversation.com/files/417936/original/file-20210826-24-xt4y5k.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/417936/original/file-20210826-24-xt4y5k.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/417936/original/file-20210826-24-xt4y5k.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/417936/original/file-20210826-24-xt4y5k.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/417936/original/file-20210826-24-xt4y5k.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/417936/original/file-20210826-24-xt4y5k.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/417936/original/file-20210826-24-xt4y5k.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="caption">Independent senator Jacqui Lambie has blasted the family court merger.</span>
<span class="attribution"><span class="source">Mick Tsikas/AAP</span></span>
</figcaption>
</figure>
<p>She tried to convey the sense of shock in an <a href="https://www.aph.gov.au/Parliamentary_Business/Hansard/Hansard_Display?bid=chamber/hansards/b9b4d54c-068c-443a-852c-30cd8a038967/&sid=0014">excoriating speech</a> to parliament in February 2021 as the Senate debated the bill that would ultimately secure the courts merger.</p>
<blockquote>
<p>Maybe you’re thinking of a system where the bad guys get locked up and the good guys are quickly let go. In the back of your mind, you possibly have an idea that everybody has a high-powered lawyer in an expensive suit — and, my goodness, are they expensive. … If that’s what you’re thinking, you aren’t alone; that’s how I used to think our court system worked as well. Oh dear. It’s funny when you have life experience of something … <strong>nb small cut to quote here</strong></p>
</blockquote>
<p>In reality, judges are overworked and under-resourced, and therefore — as Lambie put it — forced to “churn through [family law matters] as though they’re on a production line”. In a memorable image, she likened the work of the judiciary to flipping greasy meals like “someone in a burger joint”.</p>
<p>The 2006 reforms included funding for already existing family support services, such as Relationships Australia, and the establishment of a new network of Family Relationship Centres. After this, separating parents increasingly began to turn to mediation to settle their differences, rather than the courts, reaching negotiated agreements through intermediaries. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/the-family-court-does-need-reform-but-not-the-way-pauline-hanson-thinks-125728">The family court does need reform, but not the way Pauline Hanson thinks</a>
</strong>
</em>
</p>
<hr>
<p>This turn to non-legal mediation and non-adversarial settlement has been pronounced, creating emotionally better, more affordable outcomes for families, although funding for the sector has dwindled dramatically and fails to meet demand. </p>
<p>At the same time, domestic abuse has become the central issue in the cases that continue to be brought before the family courts.</p>
<h2>A ‘Rolls Royce’ system for the rich and another for everyone else</h2>
<p>In Australia, <a href="https://aifs.gov.au/publications/parenting-arrangements-after-separation">97% of separating families</a> do not go to court, although 16% use mediation, counselling and lawyers to settle their disputes. </p>
<p>The remaining 3% of separating parents who are compelled to use the courts as their main pathway to making children’s arrangements are predominately families affected by domestic abuse, child safety concerns and complex risk factors, including drug and alcohol abuse and mental health issues. </p>
<p>Up to 85% of litigated family law matters involve <a href="https://www.alrc.gov.au/wp-content/uploads/2019/08/alrc_report_135_final_report_web-min_12_optimized_1-1.pdf">domestic abuse</a>. This figure includes 54% of families reporting physical violence, 50% reporting safety concerns, and 85% reporting emotional abuse. There are no reliable figures for financial abuse, but this is a frequent feature of all domestic abuse cases.</p>
<figure class="align-center ">
<img alt="Mother and small child climbing steps." src="https://images.theconversation.com/files/417935/original/file-20210825-13-19x6tfo.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/417935/original/file-20210825-13-19x6tfo.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/417935/original/file-20210825-13-19x6tfo.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/417935/original/file-20210825-13-19x6tfo.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/417935/original/file-20210825-13-19x6tfo.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/417935/original/file-20210825-13-19x6tfo.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/417935/original/file-20210825-13-19x6tfo.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">If family law matters do go to court, most involve domestic abuse.</span>
<span class="attribution"><span class="source">David Crosling/AAP</span></span>
</figcaption>
</figure>
<p>One of the many glaring problems in the courts is that the law has been written with less troubled families in mind.</p>
<p>It is a little-known fact that 49% of cases before the “specialist” Family Court are property matters. In practice, outside specialist lists — such as the <a href="https://www.michaellynchfamilylawyers.com.au/what-is-the-magellan-list/">Magellan list</a> for “serious” child abuse — and the hearing of appeals, cases are commonly transferred from the allegedly “less specialist” Federal Circuit Court to the allegedly “more specialist” Family Court because they involve complex decision-making around taxation, superannuation, or companies and trusts. </p>
<p>Effectively, this means affluent families have their cases heard in what has long been dubbed the “<a href="http://classic.austlii.edu.au/au/journals/QUTLawJJl/2003/22.html">Rolls Royce</a>” system of the family court. And the less affluent — including domestic abuse cases with aggravating factors such as drug and alcohol addiction or mental illness — are more frequently heard by commercially trained judges in the hyper-rationalised Federal Circuit Court. </p>
<p>This includes judges with little specific family law experience. Or as Lambie put it in her speech, </p>
<blockquote>
<p>Here is the divide between the rich and the poor.</p>
</blockquote>
<p>The court merger will do little to change any of this.</p>
<p><em>Broken is released on August 30, via Black Inc.</em></p><img src="https://counter.theconversation.com/content/166406/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Camilla Nelson receives funding as EG Whitlam Research Fellow at the Whitlam Institute at Western Sydney University.</span></em></p><p class="fine-print"><em><span>Catharine Lumby does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>A new book looks at the family court system, just as the Family Court of Australia merges with the Federal Circuit Court.Camilla Nelson, Associate Professor in Media, University of Notre Dame AustraliaCatharine Lumby, Professor of Media, Department of Media, University of SydneyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1640402021-07-20T13:22:40Z2021-07-20T13:22:40ZDivorce Act update will help protect children, mothers from violence and coercive control<figure><img src="https://images.theconversation.com/files/410841/original/file-20210712-71119-xh73sd.jpg?ixlib=rb-1.1.0&rect=0%2C8%2C5828%2C3864&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Domestic violence and coercive controlling behaviours are occurring in shared parenting arrangements more than was previously thought. </span> <span class="attribution"><span class="source">(Cottonbro/Pexels)</span></span></figcaption></figure><p>When the government amended the <a href="https://www.canada.ca/en/department-justice/news/2021/03/government-of-canada-announces-coming-into-force-of-divorce-act-amendments.html">Divorce Act of Canada</a> earlier this year, it included the <a href="http://rightsofchildren.ca/wp-content/uploads/2016/03/BIC-Report-ENG-Web.pdf">Best Interests of the Child</a> (BIC). These long-awaited updates require domestic violence to be presumed when determining the best interests of the child and parenting plans, one step towards keeping women and children safe.</p>
<p>Family violence <a href="https://laws-lois.justice.gc.ca/eng/acts/D-3.4/page-5.html?txthl=violence+family#s-16">is defined in the Divorce Act</a> as any conduct that is violent, threatening or a pattern of coercive and controlling behaviour, or that causes a family member to fear for their safety. </p>
<p>Prior to the amendments, the BIC standard was guided by provincial not federal legislation, whereby only four provinces (<a href="https://www.bclaws.gov.bc.ca/civix/document/id/complete/statreg/11025_04#section37">British Columbia</a>, <a href="https://www.qp.alberta.ca/documents/Acts/F04P5.pdf">Alberta</a>, <a href="https://www.gov.mb.ca/justice/crown/family/law/pubs/familylawbooklet2014.pdf">Manitoba</a> and <a href="https://www.nsfamilylaw.ca/custody-access/information-about-custody-and-access/faqs">Nova Scotia</a>) named domestic violence as a factor in the BIC. What this means is that when parents separate or divorce, decisions that are made about children must now take into account whether family violence is a component of the family dynamics regardless of where one lives in Canada. </p>
<p>Professionals working with and making decisions or recommendations to families about co-parenting need to better understand coercive control as an important component of domestic violence.</p>
<h2>Family violence includes coercive control</h2>
<p>Domestic violence is defined in research literature <a href="https://doi.org/10.1093/lawfam/ebt017">as both physical violence</a> and <a href="https://www.proquest.com/docview/1703203256">coercive control</a>. </p>
<p>The amended Divorce Act outlines that coercive and controlling behaviours are <a href="https://www.justice.gc.ca/eng/fl-df/pdf/fsdfv-fidvf-eng.pdf">a pattern of abusive behaviour used to control or dominate another family member; these may include emotional, psychological, sexual, financial or other forms of abuse</a>. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/why-domestic-violence-victims-often-feel-retraumatized-by-police-149776">Why domestic violence victims often feel retraumatized by police</a>
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</p>
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<p>Coercive control <a href="https://doi.org/10.1177/1077801215604744">can instil fear without physical violence, and can continue after the relationship ends</a>. This is important for those making decisions about parenting arrangements <a href="https://doi.org/10.1111/fcre.12081">because the impact of domestic violence on children increases their risk for emotional and behavioural problems throughout their lives</a>. </p>
<figure class="align-center ">
<img alt="Woman sits with arms crossed in the shadows" src="https://images.theconversation.com/files/411058/original/file-20210713-19-1ogk7zv.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/411058/original/file-20210713-19-1ogk7zv.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=399&fit=crop&dpr=1 600w, https://images.theconversation.com/files/411058/original/file-20210713-19-1ogk7zv.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=399&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/411058/original/file-20210713-19-1ogk7zv.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=399&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/411058/original/file-20210713-19-1ogk7zv.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=502&fit=crop&dpr=1 754w, https://images.theconversation.com/files/411058/original/file-20210713-19-1ogk7zv.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=502&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/411058/original/file-20210713-19-1ogk7zv.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=502&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="caption">Coercive control can instil fear without physical violence and can continue after the relationship ends.</span>
<span class="attribution"><span class="source">(Rodnae/Pexels)</span></span>
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</figure>
<h2>How does new legislation change practices?</h2>
<p>Prior to the amendments, women who experienced domestic violence were silenced by their lawyers as a result of the law itself.</p>
<p>One challenge inherent in Canadian family law is <a href="https://www.thomsonrogers.com/resources/privilege-recent-issues/">solicitor-client privilege and the duty of confidentiality</a> that can prevent lawyers from disclosing admissions of violent or abusive behaviour from their clients. </p>
<p>This means that lawyers may be well aware that coercive control defines a relationship and still argue on behalf of their perpetrating client for shared parenting. <a href="http://dx.doi.org/10.2139/ssrn.3759998">Disclosing coercive control until now has been subject to a lawsuit or professional misconduct</a>. </p>
<p>The future harm exception does allow lawyers to disclose knowledge of threats or acts of harm, but this is held to a high standard of “<a href="http://dx.doi.org/10.2139/ssrn.3759998">risk of serious bodily harm or death</a>.” </p>
<p>What’s still unknown is how the new amendments will change legal practices specific to domestic violence and shared parenting.</p>
<h2>A correlation between domestic violence and co-parenting</h2>
<p>We recruited mothers to participate in our study through community stakeholders, such as domestic violence shelters and pediatricians, as well as a paid Facebook strategy. Through our search efforts, we were able to recruit 84 women across Alberta, Manitoba and Ontario. Our <a href="https://sharedparenting.weebly.com">recent study revealed that all of our participants</a> with young children in shared parenting arrangements <a href="https://www.afccnet.org/58thannualconference/">experienced domestic violence, defined as physical violence and coercive control</a>. This research will be published later this year and is yet to be peer-reviewed.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/co-parenting-in-the-coronavirus-pandemic-a-family-law-scholars-advice-134093">Co-parenting in the coronavirus pandemic: A family law scholar's advice</a>
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</em>
</p>
<hr>
<p>We used a 56-item Co-parenting Across Family Structures tool, or <a href="https://doi.org/10.1007/s10826-019-01370-3">Co-PAFS scale</a>, that is intended to measure effective co-parenting as well the <a href="https://pubmed.ncbi.nlm.nih.gov/9669164/">Hurt, Insulted, Threatened and Screamed (HITS)</a> scale, that measures domestic violence in our study.</p>
<p>Our research found a correlation between domestic violence (the higher the score, the more severe the violence) and Co-PAFS scores (the higher the score the more conducive to healthy co-parenting). We found that the lower the domestic violence scores, the higher the co-parenting scores. </p>
<p>Using the Co-PAFS scale can help the courts make shared parenting orders.</p>
<h2>Impacts on women and young children</h2>
<p>Our study found that women who share parenting at least 40 per cent of the time had similar scores on measures of domestic violence, anxiety, depression and child development to women who shared parenting less than 30 per cent of the time. </p>
<p>This suggests that domestic violence and coercive controlling behaviours are occurring in shared parenting arrangements more than was previously thought; the assumption has been that parents who share parenting 40 per cent of the time or greater are able to do so because they have a healthy relationship and are able to put the needs of the children first.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/co-parenting-in-the-time-of-coronavirus-if-you-and-your-ex-dont-agree-what-are-your-rights-134900">Co-parenting in the time of coronavirus: if you and your ex don't agree, what are your rights?</a>
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<p>These findings are critical and require further exploration because family court orders for shared parenting (40 per cent or more time with each parent) occur routinely in Canada in situations of domestic violence and have negative impacts on women and young children. </p>
<p>The amendments to the Divorce Act in Canada will require us to better understand the day-to-day practices of those supporting families through the separation/divorce process and parenting arrangements for children. That will help ensure parenting plans reflect considerations of safety for survivors of domestic violence and their young children.</p><img src="https://counter.theconversation.com/content/164040/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Beth Archer-Kuhn receives funding from Social Sciences and Humanities Council of Canada (SSHRC). </span></em></p><p class="fine-print"><em><span>Natalie Beltrano does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>There’s a need to better understand coercive control as an important component of domestic violence when it comes to making decisions around co-parenting.Beth Archer-Kuhn, Associate Professor, Faculty of Social Work, University of CalgaryNatalie Beltrano, Research Coordinator, PhD Student, School of Social Work, University of WindsorLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1605142021-06-15T12:23:36Z2021-06-15T12:23:36ZFriends are saying ‘I do’ – but might not understand the legal risks of their platonic marriages<figure><img src="https://images.theconversation.com/files/406152/original/file-20210614-77865-zda7im.jpg?ixlib=rb-1.1.0&rect=263%2C6%2C3914%2C2661&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Since there’s no romantic relationship, judges are likely to default to ruling that platonic marriages are an attempt to game the system.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/wedding-cake-with-statuettes-of-two-women-is-seen-during-news-photo/81102220?adppopup=true">Gabriel Bouys/AFP via Getty Images</a></span></figcaption></figure><p>When a couple decides to tie the knot, they’ll often say they’re marrying their best friend. </p>
<p>But what if two actual best friends – no sex or even romantic feelings involved – just decided to get married? </p>
<p>Friends, <a href="https://www.nytimes.com/2021/05/01/fashion/weddings/from-best-friends-to-platonic-spouses.html">The New York Times reported</a> in 2021, are starting to “marry in a platonic fashion, swearing never to leave each other for better or for worse.” </p>
<p>These “nonconjugal couples” – mutually supportive relationships of friends or relatives that lack a sexual component – are powerfully challenging dominant social and legal norms around what constitutes family.</p>
<p>I’ve recently written about how these <a href="https://www.bloomsburyprofessional.com/uk/legal-recognition-of-non-conjugal-families-9781509939954/">nontraditional couples could one day gain legal recognition</a> – and thus tax breaks and couple benefits – in the courtrooms of the U.S., Canada and Europe. </p>
<p>But legal recognition, as of today, doesn’t exist. So there are risks in saying “I do” to a friend. </p>
<h2>The legal pitfalls of platonic marriages</h2>
<p>Two friends can get married for a host of reasons. </p>
<p>They might not believe in the traditional heterosexual family and wish to challenge it. They might simply think that their best friend is the person they want to share chores, meals and finances with. Or they might also believe that, as law-abiding taxpayers, they should also be able to receive the <a href="https://www.nolo.com/legal-encyclopedia/marriage-rights-benefits-30190.html">family benefits</a> that other married couples receive, like filing their tax returns jointly.</p>
<p>At the moment, though, friendship is not recognized by law. And only a handful of states allow friends to gain legal recognition through registration as domestic partners. These include <a href="https://repository.law.umich.edu/cgi/viewcontent.cgi?article=1216&context=mjgl">Maine, Maryland</a> and <a href="https://www.denvergov.org/content/dam/denvergov/Portals/777/documents/MarriageCivilUnions/Designated%20Beneficiary%20Agreement.pdf">Colorado</a>.</p>
<figure class="align-right zoomable">
<a href="https://images.theconversation.com/files/406153/original/file-20210614-66119-1qt2q47.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Statuettes of two men in tuxedos adorn the top of a wedding cake." src="https://images.theconversation.com/files/406153/original/file-20210614-66119-1qt2q47.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/406153/original/file-20210614-66119-1qt2q47.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=902&fit=crop&dpr=1 600w, https://images.theconversation.com/files/406153/original/file-20210614-66119-1qt2q47.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=902&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/406153/original/file-20210614-66119-1qt2q47.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=902&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/406153/original/file-20210614-66119-1qt2q47.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1134&fit=crop&dpr=1 754w, https://images.theconversation.com/files/406153/original/file-20210614-66119-1qt2q47.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1134&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/406153/original/file-20210614-66119-1qt2q47.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1134&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">It’s pretty easy for two friends to get married – they just can’t admit that they’re only friends.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/in-this-photo-illustration-same-sex-statues-adorn-the-top-news-photo/56334631?adppopup=true">Christopher Furlong/Getty Images</a></span>
</figcaption>
</figure>
<p>However, <a href="https://www.supremecourt.gov/opinions/14pdf/14-556_3204.pdf">any two consenting adults</a> – regardless of their genders – can get married in the U.S. Two friends, therefore, can pretty easily pull it off. But they can’t admit that they’re only friends. </p>
<p>Legally speaking, it could be seen as a sham marriage.</p>
<p>For this reason, two friends who tie the knot and receive a marriage certificate can still face considerable risks. They expose themselves to criminal sanctions and civil penalties on grounds of “marriage fraud” if a federal or state agency becomes suspicious of the union. And they may also be denied benefits usually granted to married couples. </p>
<p>Kerry Abrams, the current dean of Duke University School of Law, <a href="https://scholarship.law.duke.edu/faculty_scholarship/3818/">has outlined different doctrines</a> developed in welfare law, social security law and immigration law over the course of the 20th century to specifically detect fake or sham marriages. Whether it’s two people tying the knot so one can gain citizenship, seeking to obtain <a href="https://cite.case.law/mj/74/525/">a housing allowance</a> or getting married ahead of a trial <a href="https://www.law.cornell.edu/supremecourt/text/344/604">so they can’t be forced to testify against one another</a>, the conclusions of the courts are the same: Their marriage is a sham, and the individuals expose themselves to criminal or civil liability and a termination of benefits.</p>
<p>Detecting a sham marriage isn’t easy. And courts acknowledge that there are many reasons that may motivate a person’s decision to marry that aren’t “romantic,” such as a desire to file income jointly to gain tax exemptions.</p>
<p>Therefore, courts look at whether there is what they call a “specific illicit purpose.” As <a href="https://cite.case.law/mj/74/525/">a judge wrote in his ruling</a> in a case about a couple that fraudulently got married to gain a housing allowance: </p>
<blockquote>
<p>“It is not the absence of a perfect or ideal ‘love, honor, and cherish’ motivation of the parties that renders the consequences flowing from the appellant’s actions in the case before us criminal; rather, it is the affirmative presence of a singularly focused illicit one – an intent to fraudulently acquire a government payment stream – that does so.”</p>
</blockquote>
<p>Two married friends will need to demonstrate before courts that they did not have a “singularly focused illicit” purpose of acquiring some sort of government benefit. But they’ll have a hard time doing so. That’s because when courts seek to understand whether the couple intended to live together as husband and wife, they’ll be assuming the family norm in which the couple has a sexual relationship. </p>
<p>Since there is no romantic relationship, judges will likely default to arguing that the friends got married only to game the system.</p>
<h2>Can the Constitution help?</h2>
<p>At the constitutional level, there is this one decision that might lend some hope to nonconjugal couples: <a href="https://supreme.justia.com/cases/federal/us/413/528/">Department of Agriculture v. Moreno</a>, also known as “the hippies case.”</p>
<p>The Moreno case concerned a group of impoverished, unrelated people living under the same roof who, at some point, were denied food stamps by the government. The government argued that its goal was fraud prevention: In its view, households with unrelated people – such as friends – are more likely to commit fraud to illegally obtain government benefits.</p>
<p>The Supreme Court, however, <a href="https://www.oyez.org/cases/1972/72-534">ruled in favor of the household</a> in 1972. It concluded that minimizing fraud is a valid interest, but that the government could do so through other, more specific measures, instead of just denying benefits to a whole group of people. </p>
<p>However there are two problems with using this decision as a precedent for opening the door to allow two friends to marry. First, the outcome was largely driven by what the Supreme Court deemed the “cynical” motives of the legislature, which, in amending the law, had singled out “hippies” as undeserving of food stamps. Second, it isn’t about marriage, per se; it’s about who can gain access to one specific legal benefit: food stamps.</p>
<p>So I would argue that the constitutional decision that says something about the fate of platonic marriages is not Moreno, but <a href="https://guides.ll.georgetown.edu/c.php?g=592919&p=4182205">Obergefell v. Hodges</a>, the Supreme Court judgment on same-sex marriage.</p>
<p>The idea of marriage Obergefell puts forth is one founded on rather traditional family norms. The plaintiffs in the Obergefell case – a gay couple – were, in every way aside from their same gender, congruent with what most Americans understand a married couple to be. Their relationship was sexual, exclusive, romantic, nuclear and involved two people. They were also committed to each other for life. </p>
<p>To show that same-sex marriage is a subset of the broader fundamental right to marry, <a href="https://www.oyez.org/cases/2014/14-556">LGBTQ litigators chose to reinforce preexisting norms</a> of marriage and family. They marshaled evidence showing that a gay or lesbian couple had the same ability to love, be intimate and raise children. Friends do not necessarily adhere to these norms: They are not intimate, and they are not necessarily interested in raising children, though <a href="https://www.cbc.ca/news/canada/ottawa/multimedia/raising-elaan-profoundly-disabled-boy-s-co-mommas-make-legal-history-1.3988464">some of them are</a>. </p>
<p>Ironically, it seems that LGBTQ activism has made it much harder for other nontraditional families to gain access to marriage. <a href="https://theconversation.com/polyamorous-relationships-under-severe-strain-during-the-pandemic-154335">Polyamorous and polygamous relationships</a> are among them. </p>
<p>And, yes, friends, too.</p>
<p>[<em>You’re smart and curious about the world. So are The Conversation’s authors and editors.</em> <a href="https://theconversation.com/us/newsletters/the-daily-3?utm_source=TCUS&utm_medium=inline-link&utm_campaign=newsletter-text&utm_content=youresmart">You can read us daily by subscribing to our newsletter</a>.]</p><img src="https://counter.theconversation.com/content/160514/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Nausica Palazzo does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Because any two consenting adults can get married in the US, a platonic marriage could pretty easily be pulled off. Legally speaking, though, it’s a sham.Nausica Palazzo, Postdoctoral Fellow in Comparative Law, Hebrew University of JerusalemLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1591442021-05-27T16:41:36Z2021-05-27T16:41:36ZUnemployment and conflict: how COVID-19 has affected women in Morocco<figure><img src="https://images.theconversation.com/files/401638/original/file-20210519-19-1a2tk0y.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">In Morocco, most women's lives, choices and mobility are controlled by men.</span> <span class="attribution"><span class="source">FADEL SENNA/AFP via Getty Images</span></span></figcaption></figure><p>Across the world, COVID-19 has completely disrupted lives. This includes the activities and social affairs within households. </p>
<p>I wanted to explore how exactly it had affected gender roles, and the relationship between women and men, within households in Morocco. Morocco is basically a patriarchal society – laws <a href="https://www.kas.de/documents/276068/8307005/KAS+Maroc+Policy+Paper+Nov+2020+-Women%E2%80%99s+Rights+in+Post-2011+Morocco+The+Divergences+Between+Institutions+and+Values.pdf/9aacf4ba-a1ea-3e66-b70b-787498b50d12?version=1.0&t=1607504069145">codifying</a> gender relations are based fundamentally on the supremacy of the male head of the family, considered the main provider and decision maker. Women’s lives, choices and mobility are controlled by the male members of their families. </p>
<p>Despite progress made at closing the gender gap in <a href="http://riverapublications.com/article/moroccos-experience-with-gender-gap-reduction-in-education">education</a>, women <a href="https://www.mdpi.com/2076-0760/5/4/75/htm">are yet</a> to reach decision-making positions, in the private and the public sphere.</p>
<p>In a <a href="http://riverapublications.com/article/women-and-gender-relations-during-the-pandemic-in-morocco">new study</a> I wanted to explore how COVID-19 affected women and gender inequities. </p>
<p>I found that the pandemic has burdened women with more housework and duties at home, and that violence against them has risen. This is particularly the case among working-class women and housemaids, who are more vulnerable. </p>
<p>Reforms in education, legislation and law enforcement are key to changing this. </p>
<h2>Increased gender inequalities</h2>
<p>For this study, I carried out an extensive literature review, which included an examination of official documents and previous research on women and gender. I also undertook some fieldwork between April and December 2020 in the region of Fès. This is the third largest province in the country, with a strong informal economy led by women. I carried out interviews with 40 people (25 women and 15 men) to understand the obstacles they had encountered during the pandemic. </p>
<p>To mitigate the spread of the new coronavirus, for a few months in 2020 and again in 2021, the government implemented various lockdown measures including the closure of airports, schools, cafes and mosques. It also enforced stay-at-home orders and set up curfews. </p>
<p>As a result of these measures, I found, there were job losses. This <a href="https://www.povertyactionlab.org/sites/default/files/MEL_COVID-19%20in%20Morocco_Labor%20market%20impacts%20and%20policy%20responses_0.pdf">was higher</a> for women (17.5%) than for men (15.1%). Most <a href="https://www.moroccoworldnews.com/public/2021/05/341321/hcp-increase-of-2-in-unemployment-rate-at-start-of-2021">affected</a> were women working in the service industry – such as the tourism industry, cafés and restaurants, which all have <a href="https://faculty.wcas.northwestern.edu/%7Emdo738/research/COVID19_Gender_March_2020.pdf">a high female employment rate</a>. Also affected was the <a href="https://english.alarabiya.net/coronavirus/2020/07/14/Coronavirus-Crisis-hit-Moroccans-join-informal-economy-as-job-market-shrinks">informal economy</a>, which includes women who were self-employed, small-scale producers and distributors of goods and services, and domestic workers. </p>
<p>To control the pandemic and support those who had lost their incomes, the government <a href="https://www.kas.de/documents/282499/282548/Covid19+Response+in+the+Maghreb+-+Eya+Jrad.pdf/122aaa7e-0608-ad15-abc7-4f09cfff689e?version=1.0&t=1600704327172">established</a> the Coronavirus Management and Response Fund. The fund was valued at over US$3 billion. But <a href="https://careevaluations.org/wp-content/uploads/Rapid-gender-analysis-CARE-Morocco.pdf">fewer women</a> than men have benefited from the government’s aid, as it was mainly directed to male heads of households. It’s typically the male head of the family who registers for support. </p>
<p>Increased domestic tasks as a result of school closures and lockdown measures have <a href="https://www.wilpf.org.uk/covid-impact-series-morocco/#:%7E:text=Research%20revealed%20that%20Moroccan%20women,%2C%20while%20men%20only%205%25.&text=Similar%20percentages%20have%20also%20been,violence%20against%20women%20at%2054%25.">disproportionately affected</a> women, who already carry out the majority of unpaid domestic work. Moroccan women <a href="https://www.wilpf.org.uk/covid-impact-series-morocco/#:%7E:text=Research%20revealed%20that%20Moroccan%20women,%2C%20while%20men%20only%205%25.&text=Similar%20percentages%20have%20also%20been,violence%20against%20women%20at%2054%25.">devote</a> 38% of their free time to domestic work, compared to just 5% for their male counterparts. In this sense, the pandemic has further relegated women to the domestic sphere and increased violence against them.</p>
<p>In relation to gender-based violence, I found several reports showing that it worsened during the pandemic. A <a href="https://www.tanmia.ma/wp-content/uploads/2020/07/Coronaviolence-final-report-English.pdf">survey</a> by Mobilising for Rights Associates, an NGO working to promote women’s human rights, revealed a rise in violence against women and girls during the pandemic. Collaborating with 16 local women’s NGOs, between April and May 2020, the survey (of 159 women) found that one in four women suffered from physical violence. The study also flagged psychological violence as another predominant form of violence and that husbands were the main perpetrators. </p>
<p>According to a <a href="https://www.hcp.ma/Communique-du-Haut-Commissariat-au-Plan-a-l-occasion-de-la-campagne-nationale-et-internationale-de-mobilisation-pour-l_a2411.html">recent report</a> by the Higher Planning Commission in Morocco – an independent government statistical institution – 25% of Moroccans experienced conflict gender relations with the people with whom they have been confined. </p>
<p>Women’s health has been affected in other ways. The lockdown reduced women’s access to healthcare due to limitations on mobility imposed by the confinement measures. For instance, 30% of women could <a href="https://www.hcp.ma/Communique-de-presse-Publication-du-rapport-d-analyse-genre-de-l-impact-de-la-pandemie-COVID-19-sur-la-situation_a2656.html">no longer visit</a> reproductive health facilities. </p>
<p>The Higher Planning Commission also found that women were more at risk of contracting the virus because a large number of them do frontline care and service work. In Morocco, women <a href="https://www.moroccoworldnews.com/public/2020/07/309720/world-population-day-hcp-reveals-women-are-more-exposed-to-covid-19">represent</a> 58% of the medical workforce and 67% of paramedical personnel, such as nurses and technicians. </p>
<h2>Much-needed reform</h2>
<p>Policymakers must take these insights into account when making policies for economic recovery. They also show us that reform is needed <a href="https://www.fes.de/e/womens-care-burden-has-to-be-recognised">to cater for</a> women’s rights, justice and inclusion. </p>
<p>There needs to be recognition and value of women’s care work and the redistribution of this load within families. This should be done through state policies. For instance social policies should be redesigned <a href="https://journals.sagepub.com/doi/full/10.1177/1440783320942413">so that they guarantee</a> equality and a fair division of domestic labour and care.</p>
<p>In Tunisia, for example, the patriarchal Islamic family code has had successive reforms. The <a href="https://vc.bridgew.edu/jiws/vol18/iss4/3/">most recent one</a> pushes men to do their share of the housework and has fostered women’s access to the labour market. This <a href="https://thearabweekly.com/tunisia-marks-long-struggle-womens-rights">shows</a> that a gender equality-based model of family law can be successfully integrated into the Muslim culture.</p>
<p>Women working in the informal sector must also be provided with suitable safety nets, such as healthcare and social security. The government recently <a href="https://northafricapost.com/49025-morocco-project-to-generalize-social-protection-launched-under-kings-chairmanship.html">launched</a> a project which aims to generalise social protection. This is a good move, but the government must ensure that women benefit from it. </p>
<p>Importantly, recovery must lead to a more equal world that is more resilient to future crises.</p><img src="https://counter.theconversation.com/content/159144/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Moha Ennaji does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>In Morocco, the COVID-19 pandemic has burdened women with more housework and duties at home, and violence against them has risen.Moha Ennaji, Professor, Université Sidi Mohammed Ben AbdellahLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1514812020-12-14T00:33:17Z2020-12-14T00:33:17ZThe government still wants a Family Court merger — new research shows why this is not the answer<figure><img src="https://images.theconversation.com/files/373537/original/file-20201208-19-83eree.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><span class="source">April Fonti/AAP</span></span></figcaption></figure><p>As federal parliament heads off on its Christmas break, a cloud of uncertainty hangs over the legal community and the Australians who use the family law system. </p>
<p>Amid a busy final sitting week, the Morrison government’s controversial <a href="https://www.aph.gov.au/Parliamentary_Business/Bills_LEGislation/Bills_Search_Results/Result?bId=r6475">plan to merge</a> the Family Court of Australia and the Federal Circuit Court — which both have responsibility for family law — has been shelved until next year. </p>
<p>This merger has been on the cards <a href="https://theconversation.com/a-new-family-super-court-may-not-save-time-or-result-in-better-judgments-97454">for some time</a>. It passed the lower house <a href="https://www.abc.net.au/radionational/programs/drive/fears-over-family-court-merger/12944388">earlier this month</a>, despite fierce opposition from Labor, the Greens and legal experts. </p>
<p>The Coalition is now seeking <a href="https://www.abc.net.au/news/2020-11-30/family-court-federal-circuit-court-merger/12933874">Senate crossbench support</a> to create a single court known as the Federal Circuit and Family Court of Australia. </p>
<p>My <a href="https://www.anrows.org.au/project/exploring-the-impact-and-effect-of-self-representation-by-one-or-both-parties-in-family-law-proceedings-involving-allegations-of-family-violence/">new research</a>, together with colleagues Jane Wangmann and Tracey Booth, provides further evidence as to why this would be an unhelpful move. </p>
<p>The high number of family law cases involving both family violence allegations and self-representation shows how safety and improved resourcing must be central to all family law proceedings — not just improved “<a href="https://www.attorneygeneral.gov.au/media/media-releases/court-reforms-deliver-better-outcomes-families-5-december-2019">efficiency</a>”. </p>
<h2>Plan for single court opposed</h2>
<p>The <a href="https://www.attorneygeneral.gov.au/media/media-releases/court-reforms-deliver-better-outcomes-families-5-december-2019">government claims</a> the merger will “help reduce delays and backlogs in the family law courts”. </p>
<p>But there is little, if any, evidence to support this. The government says a <a href="https://www.ag.gov.au/sites/default/files/2020-03/pwc-report.pdf">PwC review</a> proves there will be new efficiencies. However, this review <a href="https://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id:%22committees/commsen/ffa2f2f1-2261v-4ba0-836e-5aadfcc2b54a/0007%22;src1=sm1">did not put a cost on</a> merger models or consider the potential impact of the proposal.</p>
<figure class="align-center ">
<img alt="Attorney-General Christian Porter" src="https://images.theconversation.com/files/373570/original/file-20201208-21-kcqfgp.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/373570/original/file-20201208-21-kcqfgp.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/373570/original/file-20201208-21-kcqfgp.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/373570/original/file-20201208-21-kcqfgp.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/373570/original/file-20201208-21-kcqfgp.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/373570/original/file-20201208-21-kcqfgp.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/373570/original/file-20201208-21-kcqfgp.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Attorney-General Christian Porter is seeking Senate support for the court merger.</span>
<span class="attribution"><span class="source">Mick Tsikas/AAP</span></span>
</figcaption>
</figure>
<p>At the outset, the government’s plans have been contentious — with <a href="https://www.smh.com.au/national/parliament-urged-to-reject-family-courts-merger-once-and-for-all-20201022-p567n5.html">legal experts</a> seeing it as the effective abolition of the specialist Family Court of Australia. It has generated opposition from <a href="https://www.smh.com.au/national/parliament-urged-to-reject-family-courts-merger-once-and-for-all-20201022-p567n5.html">peak legal bodies</a> such as the Law Council of Australia, National Aboriginal and Torres Strait Island Legal Services, Women’s Legal Services Australia and Community Legal Centres Australia. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/a-new-family-super-court-may-not-save-time-or-result-in-better-judgments-97454">A new family 'super court' may not save time or result in better judgments</a>
</strong>
</em>
</p>
<hr>
<p>More than 110 organisations <a href="https://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Legal_and_Constitutional_Affairs/Federalcircuitcourt/Report/section?id=committees%2freportsen%2f024525%2f75488">signed a letter</a> attached to a Labor senators’ report to a recent <a href="https://www.smh.com.au/national/senate-committee-backs-family-court-merger-as-labor-greens-dissent-20201120-p56gjn.html">Senate inquiry</a>, saying “safety must come first in family law”.</p>
<p>These signatories have no personal gain in opposing the merger. Lawyers will continue to have work from the breakdown of family relationships whatever structure is in place.</p>
<h2>Merging makes sense … if done properly</h2>
<p>Superficially, merging the two courts, which have almost the same jurisdiction in family law, is an attractive proposal. </p>
<p>Legal experts agree duplication between the two courts has created a range of difficulties for litigants. </p>
<p>Due to Australia’s constitutional arrangements, there is already a complex network of courts to be navigated by parties dealing with family violence and family law issues. Legal responses may require involvement in magistrates’ courts, children’s courts, district and county courts as well as the two possible courts for hearing family law matters.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/the-family-court-does-need-reform-but-not-the-way-pauline-hanson-thinks-125728">The family court does need reform, but not the way Pauline Hanson thinks</a>
</strong>
</em>
</p>
<hr>
<p>Many of the opponents of the current bill see advantages in a merger, but only in a way that would retain specialisation. For example, the NSW Bar Association has <a href="https://nswbar.asn.au/the-bar-association/publications/inbrief/view/08b347d11316f1372f3414b4c4338f0c">proposed</a> making the Federal Circuit Court’s family law jurisdiction a new, lower division within the specialist Family Court. </p>
<h2>Family law needs family law specialists</h2>
<p>We need to keep a specialist court because family law is incredibly complex. </p>
<ul>
<li><p>The <a href="https://www.legislation.gov.au/Details/C2019C00101">Family Law Act</a> is a long and complicated piece of legislation. Family law judges require knowledge of the act as well as tax law, constitutional law, trusts, evidence law, and international property arrangements. </p></li>
<li><p>Family law judges also need to understand family violence and its implications for the safety of women and children. Numerous <a href="https://www.alrc.gov.au/wp-content/uploads/2019/08/alrc_report_135_final_report_web-min_12_optimized_1-1.pdf">studies</a> have shown allegations of family violence and child abuse are the core business of the family law system. A specialist court, with expert supports, is required for cases involving violence, abuse, mental health and/ or drug and alcohol issues.</p></li>
<li><p>Family law judges have to deal with high rates of self-represented litigants. In <a href="http://www.familycourt.gov.au/wps/wcm/connect/fcoaweb/reports-and-publications/annual-reports/2019-20/2019-20-annual-report-toc">2019-20 the Family Court</a> noted at least one party is unrepresented in 40% of trials .</p></li>
</ul>
<h2>Our research on family law proceedings</h2>
<p>My colleagues and I have just completed <a href="https://www.anrows.org.au/project/exploring-the-impact-and-effect-of-self-representation-by-one-or-both-parties-in-family-law-proceedings-involving-allegations-of-family-violence/">a large study</a> looking at people who represent themselves in family law matters involving family violence allegations. </p>
<p>Funded by Australia’s National Research Organisation for Women’s Safety, our research included court observations at eight Family and Federal Circuit Court sites. We observed a total of 512 court events, 243 of which involved a self-represented litigant. </p>
<figure class="align-center ">
<img alt="Woman looking stressed, working on a computer" src="https://images.theconversation.com/files/373572/original/file-20201208-15-ep9o5x.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/373572/original/file-20201208-15-ep9o5x.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/373572/original/file-20201208-15-ep9o5x.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/373572/original/file-20201208-15-ep9o5x.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/373572/original/file-20201208-15-ep9o5x.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/373572/original/file-20201208-15-ep9o5x.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/373572/original/file-20201208-15-ep9o5x.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Large numbers of family law matters involve both self-represented litigants and issues of family violence.</span>
<span class="attribution"><span class="source">www.shutterstock.com</span></span>
</figcaption>
</figure>
<p>This is problemative because self-represented litigants can slow down proceedings. Judges have the difficult task of explaining requirements to self-represented parties, while ensuring they remain impartial. </p>
<p>We also examined 180 court files of the matters involving a self-represented litigant. Of the examined files, 82% raised allegations about family violence. </p>
<h2>‘Like a zoo’</h2>
<p>During our observations, we also observed judges with huge caseloads and large daily court lists. At one Federal Circuit court, there were over 70 cases all listed for hearing at 10am before a single judge — the judge’s associate said this was a small list compared to other circuits. </p>
<p>One <a href="https://www.legalaidact.org.au/what-we-do/lawyers-at-court">duty lawyer</a> we interviewed described some regional circuit sitting days as</p>
<blockquote>
<p>like a zoo […] there’s so many people and it’s so noisy and it’s so confusing.</p>
</blockquote>
<p>We also observed run-down state Federal Circuit Court buildings, which are not suitable for cases involving family violence allegations. This includes a lack of <a href="http://www.familycourt.gov.au/wps/wcm/connect/fcoaweb/family-law-matters/family-violence/personal-safety/personal-safety">safe rooms</a> and separate entrances and exits. Even where safety measures, such as video links or screens, were available in the courtroom, self-represented litigants were often unaware of them.</p>
<h2>Alternatives to merging</h2>
<p>It is impossible to see how these matters would be improved by the current proposal to merge the courts. Instead, recent court initiatives — supported by government funding — such as harmonising forms and rules, a <a href="http://www.familycourt.gov.au/wps/wcm/connect/fcoaweb/family-law-matters/family-violence/lighthouse-project/lighthouse-project">risk-screening system</a> for parenting matters, a <a href="http://www.federalcircuitcourt.gov.au/wps/wcm/connect/fccweb/family-law-matters/property-and-finance/ppp500/ppp500">simplified process</a> for property cases with small asset pools and <a href="https://www.attorneygeneral.gov.au/media/media-releases/funding-upgrade-launceston-court-facility-8-october-2020">upgrading</a> particularly poor court facilities, will have a much greater impact. </p>
<p>So would more judicial officers and family consultants — who advise the court on parenting matters — and increased funding for legal aid and services to help self-represented litigants at court. </p>
<p>It is disappointing to see the government ignoring all the expert evidence and ploughing ahead with this merger, describing it as a “<a href="https://www.theaustralian.com.au/business/legal-affairs/controversial-courts-merger-bill-shelved-until-2021/news-story/2dc98b141376180dabdf430f2bc7db96">priority</a>” when parliament returns next February. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/book-review-the-death-of-expertise-76462">Book review: The Death of Expertise</a>
</strong>
</em>
</p>
<hr>
<p>Hopefully, the Senate crossbench does not do the same. Improving the safety of litigants and their children should be the underlying reason for changes to the family law system. Not unproven efficiency gains which may actually undermine safety.</p><img src="https://counter.theconversation.com/content/151481/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Miranda Kaye received funding from ANROWS for a project entitled "Exploring the impact and effect of self-representation by one or both parties in Family Law proceedings involving allegations of family violence".</span></em></p>As federal parliament heads off on its Christmas break, a cloud of uncertainty hangs over the legal community and the Australians who access the family law system.Miranda Kaye, Senior Lecturer, Faculty of Law, University of Technology SydneyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1391842020-05-22T15:42:11Z2020-05-22T15:42:11ZScotland’s Children Bill: why the law needs to protect the rights of the child when parents separate<figure><img src="https://images.theconversation.com/files/337024/original/file-20200522-124822-1cov58i.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/child-broken-heart-little-girl-crossed-445491082">Shutterstock</a></span></figcaption></figure><p>Divorce and separation affects <a href="https://www.gov.scot/publications/civil-justice-statistics-scotland-2017-18/pages/3/">many families</a>, and following a breakup, most make their own arrangements about where children will live and how their relationships with each parent will work. But some families struggle with this, especially if there are <a href="https://www.nuffieldfoundation.org/sites/default/files/files/Enforcement%20report%20final%20Dec%202013.pdf">issues</a> like domestic abuse or other concerns about children’s welfare.</p>
<p>In these circumstances families may resort to court to help resolve issues connected to “child contact” – a legal term for the systems and court processes that decide whether and how a child sees a parent that they are not living with. But what say should children have in decisions made about them when their parents separate?</p>
<p>Work is currently underway in Scotland to reform <a href="https://beta.parliament.scot/bills/children-scotland-bill">the law</a> that deals with how children participate in decisions about child contact. There is <a href="http://www.parliament.scot/GettingInvolved/Petitions/PE01635">mounting concern</a> that children’s views are not always heard in disputes about contact, and that practice across Scotland is inconsistent and at times poor. </p>
<figure>
<iframe width="440" height="260" src="https://www.youtube.com/embed/gPgR1qu8B1o?wmode=transparent&start=0" frameborder="0" allowfullscreen=""></iframe>
</figure>
<p>The <a href="https://www.ohchr.org/en/professionalinterest/pages/crc.aspx">UN Convention on the Rights of the Child</a>
recognises children’s rights to participate in these decisions. For example, <a href="https://www2.ohchr.org/english/bodies/crc/docs/AdvanceVersions/CRC-C-GC-12.pdf">Article 12</a> sets out the right of every child to freely express their views in all matters that affect them. These views should then be given due weight in the decisions, according to the child’s age and maturity. </p>
<p>But things are not always straightforward. How can adults involve children in ways that are not harmful? What are the risks of not involving children? And how can children participate in decisions that empower and protect them? </p>
<p>The UN Committee on the Rights of the Child sets out the steps states parties should take to ensure that children’s rights become a reality. The requirements are wide-ranging and emphasise how children should be <a href="https://www2.ohchr.org/english/bodies/crc/docs/AdvanceVersions/CRC-C-GC-12.pdf">supported to participate</a> throughout the legal process.</p>
<p>The steps begin with preparation before children give their views, extend to feedback to children on the decision made (including how their views were considered), and on to children having access to <a href="http://docstore.ohchr.org/SelfServices/FilesHandler.ashx?enc=6QkG1d%2FPPRiCAqhKb7yhsiQql8gX5Zxh0cQqSRzx6Zd2%2FQRsDnCTcaruSeZhPr2vUevjbn6t6GSi1fheVp%2Bj5HTLU2Ub%2FPZZtQWn0jExFVnWuhiBbqgAj0dWBoFGbK0c">complaints and redress</a> if they feel their rights have not been upheld.</p>
<h2>Does Scotland comply with children’s rights?</h2>
<p><a href="http://hdl.handle.net/1893/31100">Our research</a> has found inconsistent and frequently poor implementation of children’s participation rights. Often this stems from adults’ concern about children’s vulnerability. Many worry that involving children could be distressing or open them up to parental influence.</p>
<p>But these problems are partly produced by how our adversarial legal system deals with contact – a system that sees it as a dispute between adults. These problems are also produced by the limitations of the mechanisms available to find out children’s views. A <a href="https://www2.gov.scot/Topics/Justice/law/17867/reporters/child-welfare-guide">child welfare reporter</a>, for example, may be instructed to establish a child’s views on complex and emotionally charged issues but only meet with the child a few times.</p>
<p>In Scotland, our research found that children are generally not supported to participate throughout this legal process. There are no routine systems in place to prepare children or explain legal processes. Nor are there any routine mechanisms to provide children with feedback about the decisions that are made, or to explain what role their views had in these decisions. And there are no accessible ways for children to complain if they feel their rights have been breached.</p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/337040/original/file-20200522-124851-jl0ph3.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/337040/original/file-20200522-124851-jl0ph3.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/337040/original/file-20200522-124851-jl0ph3.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/337040/original/file-20200522-124851-jl0ph3.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/337040/original/file-20200522-124851-jl0ph3.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/337040/original/file-20200522-124851-jl0ph3.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/337040/original/file-20200522-124851-jl0ph3.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Children need to be properly listened to.</span>
<span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/caring-worried-african-american-mother-holding-1417298627">Shutterstock</a></span>
</figcaption>
</figure>
<p>Scotland is not alone in wrestling with these issues. We found that there were similar problems in other parts of the UK and in Australia, New Zealand and Canada. We found mechanisms were not always attuned to issues like domestic abuse or allegations of parental manipulation – issues experienced by the majority of families who resort to the courts.</p>
<p>Without the appropriate mechanisms, these issues risk becoming blocks to childen’s participation rights. There were also significant concerns about the communication skills of those working in court with children and the inadequacy of resources available to help children take part.</p>
<h2>Reforms</h2>
<p>The <a href="https://beta.parliament.scot/bills/children-scotland-bill">Children (Scotland) Bill</a> was introduced to the Scottish parliament in October 2019. It aims to <a href="https://www.parliament.scot/S5_Bills/Children%20(Scotland)%20Bill/SPBILL52PMS052019.pdf">improve compliance</a> with the UNCR, helping to align family law with the Scottish government’s plans to <a href="https://www.gov.scot/news/strengthening-childrens-rights/">incorporate the UNCRC into Scots law</a>. But as it stands, the bill falls short – especially in relation to children’s participation rights. </p>
<p>The <a href="https://www.parliament.scot/parliamentarybusiness/CurrentCommittees/justice-committee.aspx">Justice Committee</a> agreed with this assessment in its <a href="https://sp-bpr-en-prod-cdnep.azureedge.net/published/J/2020/5/1/Stage-1-Report-on-the-Children--Scotland--Bill/JS0520R07.pdf">Stage 1 Report</a> on the bill. It has asked the Scottish government to make substantial improvements in relation to children’s participation rights. </p>
<p>The Committee’s recommendations span important issues including: removing barriers for children who may wish to instruct their own solicitor; providing children with choices about if and how they participate; and clarity on who should provide feedback to children about the decisions courts make.</p>
<p>The greatest opportunity for change rests with the recommendation to develop advocacy and support. In Scotland, children <a href="https://www.ed.ac.uk/files/atoms/files/mh-ijcc-yello-evidence.pdf">repeatedly</a> tell us when it comes to the separation of their parents, being an active part of decision-making would make the most difference to their experiences. Meaning they would have choices about if and how to take part. </p>
<p>They would be supported to articulate their views. Their views would be transmitted directly to the court. And they would receive feedback on the decisions made.</p>
<p>All adults involved in the legal process would see it as their responsibility to include children and to uphold their participation rights. Systems would be established so children could complain if they felt their rights had been breached. This is what is needed to ensure children were both empowered and protected when exercising their rights.</p>
<p>Without addressing these issues, the bill risks making very little difference to children’s experiences at the moment. We need to do better.</p><img src="https://counter.theconversation.com/content/139184/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>In relation to this work, Fiona Morrison has received funding from Scottish Government and the Carnegie Trust. </span></em></p><p class="fine-print"><em><span>In relation to this work, Kay Tisdall receives funding from Scottish Government and the European Union's Rights, Equality and Citizenship Programme (2014 - 2020) . </span></em></p>When it comes to separation arrangements, Scotland needs to protect and uphold the rights of children to express views about decisions that affect them.Fiona Morrison, Lecturer in Child Wellbeing and Protection, University of StirlingKay Tisdall, Professor of Childhood Policy, The University of EdinburghLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1258232019-11-07T19:03:13Z2019-11-07T19:03:13Z‘Parental alienation’: the debunked theory that women lie about violence is still used in court<p>One Nation leader Pauline Hanson’s unfounded claim women that lie about domestic abuse to deny fathers access to their children is what’s driving the latest <a href="https://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Family_Law_System">parliamentary inquiry</a> into the family law system.</p>
<p>But this isn’t a new idea. Hanson’s claim stems from a history of discrediting women in the family court, with gendered expressions “parental alienation” and “parental alienation syndrome” emerging in the 1980s. They’re expressions you can expect to hear as the inquiry unfolds across the country over the next year. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/we-dont-need-another-inquiry-into-family-law-we-need-action-123758">We don't need another inquiry into family law – we need action</a>
</strong>
</em>
</p>
<hr>
<p>Parental alienation is hard to define because of its contested nature. But it is generally understood as the actions of one parent to prevent a child from having an ongoing relationship with the other parent. </p>
<p>Of course, there are cases where parents engage in despicable and irrational conduct towards each other after separation – and involve their children. Both mothers and fathers are capable of this. </p>
<p>But many parents accused of alienation are mothers alleging family violence or child sexual abuse. </p>
<p>And the consequences can be serious and detrimental to children if the court requires them to visit or live with an abusive parent. </p>
<p>While the theory of parental alienation syndrome was <a href="https://xyonline.net/sites/xyonline.net/files/2019-10/O%27Donohue%2C%20Examining%20the%20validity%20of%20parental%20alienation%20syndrome%202016.pdf">exposed</a> as junk science, parental alienation is wielded by fathers’ rights groups and <a href="https://www.theguardian.com/law/2019/oct/03/family-law-inquiry-is-no-sop-to-hanson-its-a-deliberate-move-to-bury-previous-reviews">continues to have credibility</a> in the family law system.</p>
<h2>Parental alienation in Australian courts</h2>
<p>Recent <a href="https://www.sciencedirect.com/science/article/abs/pii/S0145213419302224">Australian research</a> into family law cases shows parental alienation continues to be raised by fathers as a “defence” to child sexual abuse allegations. </p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"1189700409633329152"}"></div></p>
<p>When parental alienation is raised, mothers can experience intimidation from many angles – fathers, family report writers, judges and lawyers – all painting them as “hysterical, vindictive and manipulative women”. </p>
<p>This research is reflected in <a href="https://www.themonthly.com.au/issue/2015/november/1446296400/jess-hill/suffer-children">harrowing stories</a> such as those Jess Hill and other journalists have gathered from women and children caught up in alienation claims in our family courts.</p>
<p>These problems still occur in Australia partly because <a href="http://www.austlii.edu.au/cgi-bin/viewdb/au/legis/cth/consol_act/fla1975114/">the legislation</a> regulating family law in Australia promotes a philosophy of “<a href="https://www.theguardian.com/law/2019/oct/03/family-law-inquiry-is-no-sop-to-hanson-its-a-deliberate-move-to-bury-previous-reviews">sharing children</a>” after parents separate, in terms of decision-making and time. </p>
<p>While the term “parental alienation” is not in the family law <a href="http://www.austlii.edu.au/cgi-bin/viewdb/au/legis/cth/consol_act/fla1975114/">act</a>, a mother who is reluctant to send her children to their father may be perceived as obstructive in the face of this “sharing children” aspect of the law. </p>
<p>It’s a short distance from being seen as obstructive to being labelled alienating.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/forceful-and-dominant-men-with-sexist-ideas-of-masculinity-are-more-likely-to-abuse-women-125873">Forceful and dominant: men with sexist ideas of masculinity are more likely to abuse women</a>
</strong>
</em>
</p>
<hr>
<p>When an alienation accusation finds support from an expert witness or a judge, the children may be sent to live with the father and the mother’s access may be severely reduced or totally denied. </p>
<p>Although such an outcome does not always follow, <a href="http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FamCA/2001/1197.html?context=1;query=P%20v%20D;mask_path=au/cases/cth/FamCA">orders transferring</a> the residence of children to an allegedly abusive father are <a href="https://www.sciencedirect.com/science/article/abs/pii/S0145213419302224">sometimes made</a>, often against the strong and clear views of the children.</p>
<h2>A debunked, outdated theory</h2>
<p>The term parental alienation syndrome first appeared in Australia in 1989 in a widely read <a href="https://catalogue.nla.gov.au/Record/2016542">family law journal</a>. The author, Kenneth Byrne, reported on this new concept called “parental alienation syndrome”, which had been coined by USA child psychiatrist <a href="http://www.fact.on.ca/Info/pas/gardnr85.htm">Dr Richard Gardner</a> a few years earlier. </p>
<p>Unfortunately, and incorrectly, <a href="https://www.fact.on.ca/Info/pas/byrne89.htm">Byrne informed</a> his readers that although “some” claims of child abuse </p>
<blockquote>
<p>are legitimate; many more are manifestations of [parental alienation syndrome] embedded in charges of abuse.</p>
</blockquote>
<p>In 1995, the term parental alienation syndrome <a href="http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FamCA/1994/179.html?context=1;query=%22parental%20alienation%22;mask_path=au/cases/cth/FamCA">first appeared</a> in a published case from the Australian Family Court. </p>
<p>It’s no coincidence this was when the first set of legislation amendments aimed at shared parenting were <a href="http://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/cth/num_act/flra1995183/s31.html">under consideration</a>. Mothers who did not willingly send their children to their fathers came under scrutiny for their “hostile” attitude. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/when-mothers-are-killed-by-their-partners-children-often-become-forgotten-victims-its-time-they-were-given-a-voice-124580">When mothers are killed by their partners, children often become ‘forgotten’ victims. It’s time they were given a voice</a>
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<p>Research after those mid-1990s amendments found women were often disbelieved in their claims of family violence and child sexual abuse and such claims were often responded to <a href="https://trove.nla.gov.au/work/153356700?q&versionId=173232445">with allegations</a> of alienation. </p>
<p><a href="http://www.familycourt.gov.au/wps/wcm/connect/fcoaweb/reports-and-publications/reports/2000/fcoa_pr_flra_95_first_three_years">Mothers even reported</a> that their lawyers advised them not to raise violence for fear of being accused of being an alienator and potentially losing their children.</p>
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<p>But <a href="https://www.ncbi.nlm.nih.gov/pubmed/16293307">research suggests</a> deliberately false allegations are rare and Gardner’s clinical theory has <a href="https://www.tandfonline.com/doi/abs/10.1080/15379418.2016.1217758?journalCode=wjcc20">since been debunked</a>. </p>
<p>Despite this, parental alienation and parental alienation syndrome continue to be alleged in parenting cases. And research continues to be conducted both by <a href="https://www.utas.edu.au/latest-news/utas-homepage-news/university-of-tasmania-leads-research-into-the-complexities-of-parental-alienation">scholars who see parental alienation as valid concept</a> and by those, such as myself, who are concerned that the term is easily misused and is dangerous.</p>
<h2>Unsafe arrangements for children</h2>
<p>American researchers recently conducted a <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3448062">large study</a> of cases involving parental alienation and abuse allegations. </p>
<p>They found where the father claimed parental alienation, courts were more than twice as likely to disbelieve any claims of abuse by mothers, and almost four times more likely to disbelieve allegations of child sexual abuse.</p>
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Read more:
<a href="https://theconversation.com/the-family-court-does-need-reform-but-not-the-way-pauline-hanson-thinks-125728">The family court does need reform, but not the way Pauline Hanson thinks</a>
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<p>In Australia, the most <a href="https://www.alrc.gov.au/news/family-law-inquiry-final-report-released/">recent inquiries</a> about the family law system recommend <a href="https://theconversation.com/the-family-court-does-need-reform-but-not-the-way-pauline-hanson-thinks-125728">repealing some of the sections</a> of the Family Law Act that strongly promote shared parenting because of concerns that they sometimes silenced violence and created unsafe arrangements for children. But none of the recommendations from the recent inquiries have yet been implemented.</p>
<p>The new inquiry is an unsubtle attempt to push these concerns away – until the next child is abused or dies while visiting a parent against their wishes – and a new inquiry is called into how to deal better with family violence in family law.</p>
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<p><em>The National Sexual Assault, Family & Domestic Violence Counselling Line – 1800 RESPECT (1800 737 732) – is available 24 hours a day, seven days a week for any Australian who has experienced, or is at risk of, family and domestic violence and/or sexual assault.</em></p><img src="https://counter.theconversation.com/content/125823/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Zoe Rathus is affiliated informally with other scholars and practitioners researching the issue of the use of parental alienation in a range of countries. She has a forthcoming article in a Special Edition of the Journal of Social Welfare and Family Law on parental alienation.</span></em></p>The consequences of the parental alienation theory can lead to children getting a court order to visit or live with an abusive parent.Zoe Rathus, Senior Lecturer in Law, Griffith UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1257282019-10-28T03:42:48Z2019-10-28T03:42:48ZThe family court does need reform, but not the way Pauline Hanson thinks<p>Senator Pauline Hanson has recently argued fathers get a raw deal from the family court, saying mothers often make up accusations of family violence to deny fathers contact with their children. These unsupported <a href="https://www.theguardian.com/australia-news/2019/sep/18/pauline-hanson-sparks-fury-with-claims-domestic-violence-victims-are-lying-to-family-court">claims</a> perpetuate a form of victim blaming and may make women who have experienced family violence reluctant to speak out for fear of being disbelieved. </p>
<p>Yet this seems to be what’s pushing the latest parliamentary inquiry into family courts, of which Hanson is deputy chair. </p>
<p>It is, in fact, extremely rare for fathers to be denied contact with their children. This only happened in <a href="https://aifs.gov.au/publications/parenting-arrangements-after-separation">3% of all court orders</a> in 2014.</p>
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Read more:
<a href="https://theconversation.com/we-dont-need-another-inquiry-into-family-law-we-need-action-123758">We don't need another inquiry into family law – we need action</a>
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<p>What’s more, there have already been two recent inquiries into family law, one ending as recent as April <a href="https://www.alrc.gov.au/news/family-law-inquiry-final-report-released/">this year</a> from the Australian Law Reform Commission. But the government has so far not implemented any of their combined 93 recommendations.</p>
<p>So while Hanson’s claims are wrong, there are still major issues the family court needs to fix to make sure the best interests of the child are promoted and victims of family violence are better protected.</p>
<h2>‘Equal responsibility’ doesn’t mean equal time</h2>
<p><a href="https://aifs.gov.au/publications/parenting-arrangements-after-separation">Only 3%</a> of separated parents end up in court to decide their parenting arrangements. Of those, a <a href="https://aifs.gov.au/sites/default/files/efva2012-synthesis-report.pdf">survey</a> has revealed more than half of respondents have experienced physical or emotional abuse. </p>
<p>Despite these statistics, in the overwhelming majority of cases both parents still have care or contact with their children and exercise equal shared parental responsibility. </p>
<p>In 2003, former Prime Minister John Howard initiated a House of Representatives report, <a href="https://www.aph.gov.au/Parliamentary_Business/Committees/House_of_representatives_Committees?url=fca/childcustody/report.htm">Every Picture Tells a Story</a>, which recommended the introduction of equal shared parental responsibility. This was introduced to the law in 2006. Joint parental responsibility for the care of children is also in line with an article in the <a href="https://www.unicef.org.au/Upload/UNICEF/Media/Our%20work/childfriendlycrc.pdf">United Nations Convention on the Rights of the Child</a>.</p>
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Read more:
<a href="https://theconversation.com/the-long-history-of-gender-violence-in-australia-and-why-it-matters-today-119927">The long history of gender violence in Australia, and why it matters today</a>
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<p>But there has been ongoing <a href="https://www.ag.gov.au/FamiliesAndMarriage/Families/FamilyViolence/Documents/Family%20Courts%20Violence%20Review.pdf">misunderstanding</a> among some members of the Australian public that equal shared parental responsibility means equal time with the child between each parent. </p>
<p>In fact, the Australian Law Reform Commission recommended the Family Law Act 1975 should be amended to replace the presumption of “equal shared parental responsibility” in favour of “joint decision making about major long-term issues”. This means parents should consult each other on issues such as the child’s health, their religious upbringing, their education and the changes to their living arrangements.</p>
<p>The presumption can be rebutted if there are reasonable grounds to believe a parent has abused his or her child or engaged in family violence.</p>
<h2>Long delays and high costs</h2>
<p>Another significant problem is the high costs and long delays litigants face. According to a 2018 <a href="https://www.ag.gov.au/LegalSystem/Courts/Documents/pwc-report.pdf">report</a>, litigants can spend over A$100,000 per matter in the Family Court of Australia. And the median wait time to have a case heard at trial is a whopping 17 months. </p>
<p>These are conservative figures. For some parties, the costs are even higher and the delays are longer. This causes frustration for those involved, which can not only lead to an escalation in disputes, but can also leave children and parents in unsafe situations.</p>
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Read more:
<a href="https://theconversation.com/domestic-abuse-or-genuine-relationship-our-welfare-system-cant-tell-120223">Domestic abuse or genuine relationship? Our welfare system can't tell</a>
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<p>High costs can significantly erode financial security. It also makes the family justice system inaccessible, especially if the parties are ineligible for legal aid. The high costs of litigation or financial abuse against a party can force individuals to represent themselves in court.</p>
<p>To address these problems, there needs to be increased government <a href="https://www.abc.net.au/news/2017-04-30/family-court-letting-families-down-chief-justice-says/8483858">funding</a> to relieve pressure on the under-resourced court, with money for registrars and family consultants. The family court structure must also be fundamentally reformed.</p>
<h2>Child welfare is a state issue, but the family court is national</h2>
<p>Contemporary family disputes that end up in court often involve child abuse, family violence, drug and alcohol issues and mental health problems. An effective family justice system requires information sharing and a coherent response. </p>
<p>But family violence orders and child welfare are exclusively managed by the states and territories. This means the Family Court has limited investigative powers to follow up allegations of family violence and child abuse. </p>
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Read more:
<a href="https://theconversation.com/a-new-family-super-court-may-not-save-time-or-result-in-better-judgments-97454">A new family 'super court' may not save time or result in better judgments</a>
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<p>One of the major recommendations of the Australian Law Reform Commission is to abolish the federal-based Family Court in favour of creating separate family courts in each state and territory. There’s only one state-based family court in Australia, in Western Australia.</p>
<p>This is a sweeping reform that would radically transform the Australian family justice system. It has potential to improve the way courts deal with family violence and child protection by closing jurisdictional gaps, unifying both commonwealth and state jurisdiction over family law matters.</p><img src="https://counter.theconversation.com/content/125728/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Henry Kha does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>There have already been two recent inquires into family court, but none of their recommendations have been rolled out.Henry Kha, Lecturer in Law, Macquarie UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1239282019-09-20T08:17:39Z2019-09-20T08:17:39ZVIDEO: Michelle Grattan on the family law inquiry - and the UN climate change summit<figure>
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<p>University of Canberra Deputy Vice-Chancellor Leigh Sullivan discusses Scott Morrison’s new family law inquiry with Michelle Grattan. They also speak of the developments in the Tamil family from Biloela’s case, and the UN barring Australia from speaking at the upcoming climate change summit.</p><img src="https://counter.theconversation.com/content/123928/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Michelle Grattan does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Michelle Grattan discusses the government’s new family law inquiry, and Australia being banned from the speaking list at the upcoming UN climate change summit.Michelle Grattan, Professorial Fellow, University of CanberraLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1237582019-09-19T20:54:25Z2019-09-19T20:54:25ZWe don’t need another inquiry into family law – we need action<p>Over the next 12 months, a joint parliamentary committee will examine Australia’s family law system. It will be led by conservative Liberal MP Kevin Andrews and One Nation leader Pauline Hanson. </p>
<p>But it would appear the driving force behind this new inquiry is Hanson’s recent unsupported <a href="https://www.abc.net.au/radionational/programs/breakfast/pauline-hanson-defends-contentious-inquiry-into-family-law/11522952">claim</a> that women are frequently making up allegations of domestic violence in family courts.</p>
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Read more:
<a href="https://theconversation.com/the-long-history-of-gender-violence-in-australia-and-why-it-matters-today-119927">The long history of gender violence in Australia, and why it matters today</a>
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<p>The Greens and Labor do not support the inquiry. In fact, the Greens <a href="https://10daily.com.au/news/politics/a190918cqkvl/pauline-hanson-attacks-domestic-violence-survivors-as-liars-20190918">described it</a> as “a sop to One Nation by the government” and Labor <a href="https://www.afr.com/politics/federal/women-making-up-domestic-violence-allegations-pauline-hanson-20190918-p52sf1">suggested</a> the prime minister had “done a deal with One Nation”.</p>
<p>It is the latest in a <a href="https://www.news.com.au/finance/work/leaders/australian-politics-live-wednesday-september-18/live-coverage/65cbe4019e11e2d9bcb9426919c2c789">string of inquiries</a> into the family law system and its failings. </p>
<p>In fact, there have already been two very recently: the 2017 House of Representatives <a href="https://www.aph.gov.au/fvlawreform">inquiry</a> into a “better family law system to support and protect those affected by family violence”, which made 33 recommendations, and the Australian Law Reform Commission <a href="https://www.alrc.gov.au/news/family-law-inquiry-final-report-released/">inquiry</a> released just this year, which made 60 recommendations to the government. The government has not responded to either of those reports.</p>
<p>We do need to hear more about family violence, not less. But we need action, not yet another inquiry.</p>
<h2>No evidence backing Hanson’s claims</h2>
<p>There is no evidence, beyond anecdotes, to support Hanson’s claims. In fact, studies conducted in <a href="https://cwrp.ca/sites/default/files/publications/en/FalseAllegs13E.pdf">Canada</a> and <a href="https://aifs.gov.au/sites/default/files/publication-documents/aifsreport15.pdf">Australia</a> in the early to mid 2000s found false allegations about child abuse were rare. When they did occur, they were more likely to come from fathers who did not have the primary care of the children. </p>
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Read more:
<a href="https://theconversation.com/domestic-abuse-or-genuine-relationship-our-welfare-system-cant-tell-120223">Domestic abuse or genuine relationship? Our welfare system can't tell</a>
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<p>We have heard all this before. Similar concerns about false allegations were a significant influence on then Prime Minister John Howard’s <a href="https://aifs.gov.au/publications/evaluation-2012-family-violence-amendments/export">2006 reforms</a> to family law.</p>
<p>The research following those changes found the measures designed to address false allegations - for example imposing costs orders, and assessing whether parents were “friendly” about their former partner’s contact with children - only served to silence women. <a href="https://www.ag.gov.au/FamiliesAndMarriage/Families/FamilyViolence/Documents/Family%20Courts%20Violence%20Review.pdf">One of the reports</a>, which recommended changes to these provisions, noted:</p>
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<p>family violence must be disclosed, understood, and acted upon. […] The family law system, and each component in it, needs to encourage and facilitate the disclosure of family violence, ensure that it is understood, and act effectively upon that understanding.</p>
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<p>In other words, there is still a need to enhance the quality and nature of information about family violence provided to the courts.</p>
<h2>Inquiries are not the same as research</h2>
<p>Family law cases are complex. Those that go all the way to a final hearing before a judge often involve multiple issues, of which family violence is one. They frequently also involve concerns about child abuse, drug and alcohol use, mental health, parenting capacity and neglect. </p>
<p>The courts rely on a range of information and evidence to help them reach a decision. Hanson suggests protection orders have some power in the decisions, but they are just one of the various factors courts will assess to determine the best interests of children and the need to protect them from family violence.</p>
<p>It is critical any focus on false allegations also includes a consideration of the responses to those allegations. <a href="https://www.jstor.org/stable/42858216?seq=1#page_scan_tab_contents">Research has found</a> male perpetrators of family violence engage in a range of tactics to deny, minimise and shift blame about violence.</p>
<p>A parliamentary inquiry is not a research exercise. To suggest it will be able to provide clear evidence about the extent of false allegations (or false denials) is simply untrue. </p>
<p>Parliamentary inquiries receive submissions from a range of people, including members of the public. And in the context of family law, the submissions are likely to come from those who are unhappy with their experience. This is not a representative sample from which it will be possible to draw firm conclusions.</p>
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Read more:
<a href="https://theconversation.com/see-what-you-made-me-do-why-its-time-to-focus-on-the-perpetrator-when-tackling-domestic-violence-119298">See What You Made Me Do: why it's time to focus on the perpetrator when tackling domestic violence</a>
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<p>The composition of the inquiry, and the terms of reference, are not likely to encourage victims of family violence, or those working in the services that support them, to come forward and make submissions.</p>
<h2>We need action on family violence</h2>
<p>The multiple inquiries preceding this announcement show there is a pressing need to address the fragmentation that results from Australia’s federal system, in which family law is a federal concern, while domestic violence orders and child protection are state or territory matters. </p>
<p>This fragmentation results in gaps in information and responses to domestic and family violence. </p>
<p>Also pressing is the need to address the high cost and delays in the family law system. In its <a href="https://www.alrc.gov.au/wp-content/uploads/2019/08/alrc_report_135.pdf">report</a>, the Australian Law Reform Commission found 33% of matters pending in the Family Court in June 2018 had been filed over a year ago, with 48% of these having been filed more than two years ago. These delays are mainly a result of under-funding <a href="https://www.lawcouncil.asn.au/media/media-releases/law-council-applauds-senate-s-call-for-an-end-to-court-funding-crisis-">of the courts</a> over a number of years.</p>
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Read more:
<a href="https://theconversation.com/an-innovative-way-to-counter-domestic-violence-provide-housing-for-abusers-116597">An innovative way to counter domestic violence: provide housing for abusers</a>
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<p>Delays are a problem for everyone in the family law system, but they create particular concerns for families with family violence, as interim orders are made without the benefit of full and adequate evidence. </p>
<p>Delays exacerbate costs, and together provide a powerful incentive to settle. And there is concern parties may settle for outcomes that are not safe or satisfactory. </p>
<p>These pressing needs are well documented in earlier reports which include recommendations about how to address them. Action on these recommendations is needed rather than further inquiries.</p>
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<p><em>Correction: An earlier version of the article said the Australian Law Reform Commission found 33% of matters pending in the Family Court in June 2018 had been filed over a year ago, and a further 48% had been filed more than two years ago. This has been updated to correctly state that of the pending matters filed over a year ago, 48% were filed more than two years ago.</em></p><img src="https://counter.theconversation.com/content/123758/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Miranda Kaye has received funding from ANROWS for a project entitled "Exploring the impact and effect of self-representation by one or both parties in Family Law proceedings involving allegations of family violence". </span></em></p><p class="fine-print"><em><span>Jane Wangmann has received funding from ANROWS to conduct research on self-represented litigants in family law proceedings involving allegations about family violence. Jane is a member of the NSW Domestic Violence Death Review Team. </span></em></p>It seems the driving force behind this new inquiry is Pauline Hanson’s unsupported claim women often make up allegations of domestic violence in family courts.Miranda Kaye, Senior Lecturer, Faculty of Law, University of Technology SydneyJane Wangmann, Senior Lecturer, Faculty of Law, University of Technology SydneyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1238802019-09-19T11:38:47Z2019-09-19T11:38:47ZGrattan on Friday: Morrison government solid on industrial relations reform but bootlicks One Nation on family law<p>John Howard is remembered by his Liberal tribe as a reformer, but his legacy is mixed. The GST has endured but he essentially doomed his government when he let his ideological obsession with industrial relations run away with him.</p>
<p>The Liberals lost the next election, and had to stand by as Labor dismantled WorkChoices.</p>
<p>Now a subsequent Liberal government is starting on workplace change, with industrial relations minister Christian Porter on Thursday releasing the first discussion papers.</p>
<p>It’s early days and in politics sheep can always put on wolves’ clothing. But on what we see, the measured approach of Scott Morrison and Porter is a far cry from that of Howard and likely to be more successful and lasting.</p>
<p>That’s not to ignore the government’s tough stand against militant unionism. The Ensuring Integrity bill from last term is back, and its prospects – provided there is some fine tuning - appear better this time, thanks in no small part to the antics of John Setka.</p>
<p>(On Thursday the Senate referred Setka to the privileges committee which will investigate the claim his comments at a private union meeting amounted to a threat against Centre Alliance senators in relation to their vote on the integrity bill. The CFMEU immediately declared it looked forward to appearing before the committee.)</p>
<p>More broadly, the government says industrial relations changes should meet three criteria: they need to create jobs and put upward pressure on wages, boost productivity, and promote economic growth.</p>
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Read more:
<a href="https://theconversation.com/how-the-major-parties-stack-up-on-industrial-relations-policy-116256">How the major parties stack up on industrial relations policy</a>
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<p>Porter, in his Thursday address to the Committee for Economic Development of Australia (CEDA), said the matters selected for scrutiny were based on what stakeholders had been telling the government.</p>
<p>The first two discussion papers cover proposed criminal penalties for wage theft, and extending the permitted length of greenfields enterprise agreements for major projects.</p>
<p>They have been chosen strategically. The second is relatively uncontroversial. The first is pitched towards workers.</p>
<p>These will be followed by papers on the building code that applies to Commonwealth-funded building work; casual employment; the small business fair dismissal code, and several aspects of enterprise bargaining. Some of these will be more controversial than the initial ones.</p>
<p>Porter sought to put the need for change in perspective: “the present system benefits from the great virtue that in most sectors most of the time it is a relatively orderly rules based system”.</p>
<p>Howard went for root-and-branch change; the Morrison government is looking for incremental reform.</p>
<p>Morrison is not an industrial relations crusader. Crucially, in all areas he is outcomes-oriented. He wants the changes he seeks to get through the Senate, where he would need crossbench support. Having unexpectedly won control of the Senate at the 2004 election, Howard had no check on his ambitions.</p>
<p>As Porter puts it, there are two crucial questions before a government wanting IR changes: what improvements are most important to strengthening the economy and “what possible changes can achieve a significant enough degree of consensus that they can be supported through parliament?”</p>
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Read more:
<a href="https://theconversation.com/jacqui-lambie-mixes-battler-politics-with-populism-to-make-her-swing-vote-count-123175">Jacqui Lambie mixes battler politics with populism to make her swing vote count</a>
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<p>Unsurprisingly, wrangling legislation through the upper house preoccupies the government. The Senate this term, with its smaller crossbench, is easier to deal with, though not necessarily easy. The half a dozen non-Green crossbenchers include Cory Bernardi (now in practice a government vote), two One Nation senators, two from Centre Alliance and Jacqui Lambie.</p>
<p>When Labor and the Greens vote against legislation the Coalition needs four of these crossbenchers to carry it. The government is shameless in throwing them bones of various shapes and sizes.</p>
<p>For Lambie’s support on the tax package, it forgave Tasmania’s $157.6 million housing debt.</p>
<p>This week Pauline Hanson was given a win, for past and future favours, when the government announced a joint parliamentary committee would examine the family law system.</p>
<p>Hanson, who thinks men get a bad deal in the system, has been constantly agitating for an inquiry, including putting some draft terms of reference to Porter. On Tuesday came the statement from Morrison and Porter.</p>
<p>The government is appointing as chairman Kevin Andrews, a Liberal conservative with a strong, long-term interest in and commitment to marriage counselling. It is backing Hanson as deputy chair (a position formally chosen by the committee). Of the ten-member committee five will be from the government; the ALP (which opposed the inquiry) will have three, and there will be one lower house crossbencher (Zali Steggall, who as a barrister specialised in family law).</p>
<p>This inquiry, though supported by the Law Council of Australia, seems unnecessary and is provocative.</p>
<p>Unnecessary, because the government already has a detailed report from the Australian Law Reform Commission, which it asked for, with a large number of recommendations on family law policy. That came earlier this year and the government has yet to address it. There was also a parliamentary inquiry last term that focused on protecting people affected by domestic violence in the family court system. There has been a plethora of other reviews over the past decade.</p>
<p>Provocative, because it is all about Hanson. </p>
<p>She caused immediate outrage after the announcement by her comment that “a lot of the women out there abuse the system by instigating false DVOs against their former partners or their husbands. They use that to further their needs”.</p>
<p>She also said: “In legislation there is 50/50 custody but it is at the discretion of the judges and I don’t think that is good enough.”</p>
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Read more:
<a href="https://theconversation.com/a-new-family-super-court-may-not-save-time-or-result-in-better-judgments-97454">A new family 'super court' may not save time or result in better judgments</a>
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<p>Anti-domestic violence campaigner Rosie Batty said in reply to Hanson’s DVO claim: “Obviously there are some women who do abuse the system, but overwhelmingly we know that one woman a week is being murdered at the hands of a violent man”.</p>
<p>Batty said Hanson’s comments showed she already had an agenda. “It cannot possibly be an unbiased inquiry with these two people heading it up,” she said.</p>
<p>The family law system is one of the most fraught and sensitive policy areas. It is more than unfortunate that it has become a pawn in the wider Senate play. This is all about politics. It’s far from a best practice path to reform of a system that affects so many people – critically, so many children.</p><img src="https://counter.theconversation.com/content/123880/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Michelle Grattan does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>As the government starts its work on workplace change, it gave Pauline Hanson a win, for past and future favours, making her deputy chair of a joint parliamentary committee into the family law system.Michelle Grattan, Professorial Fellow, University of CanberraLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1219072019-09-04T13:44:28Z2019-09-04T13:44:28ZHere’s what young people say helped them get through their parents’ divorce<figure><img src="https://images.theconversation.com/files/288363/original/file-20190816-192235-jespk2.jpg?ixlib=rb-1.1.0&rect=66%2C81%2C4671%2C3200&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Children found it particularly difficult when parents couldn't agree on where they would live.</span> <span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/sad-african-american-kid-girl-hugging-1282522480?src=jZGDYfU6Faedh9bmufoVXg-1-41">Shutterstock.</a></span></figcaption></figure><p>When parents separate or get divorced, it inevitably disrupts the lives of children, and can <a href="https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/755135/Mental_health_and_behaviour_in_schools__.pdf">take a toll on their mental wellbeing</a>. Over time, children learn to accommodate the changes – some more successfully than others. It’s estimated that <a href="http://sro.sussex.ac.uk/id/eprint/44691/">one in three children</a> under the age of 16 in the UK experience their parents’ separation. </p>
<p>Parents often worry about how best to support their children, so that they can adjust to the changed family situation as successfully as possible. For <a href="https://policy.bristoluniversitypress.co.uk/childhood-experiences-of-separation-and-divorce">my latest research</a>, I conducted a comprehensive survey of 34 young adults, aged 18 to 30, reflecting on their childhood experiences of separation and divorce. For some, their experience was as recent as one to three years ago – for others, it was much further behind them. </p>
<p>I found that most young people end up accommodating their parents’ separation well over time. Even so, my results indicate that certain factors can help or hinder children, as they adapt to this life-altering event. </p>
<h2>An end to conflict</h2>
<p>The most important thing, which helped children adjust, was when separation brought an end to conflict between their parents. This might not happen until initial arrangements about where children would live and when they would have contact with each parent were put in place. But when it did, my participants reported an immediate sense of relief, which helped them view the separation as a positive improvement in their lives. </p>
<p>Communication also made a big difference: being told what was going to happen in advance by their parents helped children make sense of their changing family situation. For young children, this often meant being <a href="https://journals.sagepub.com/doi/abs/10.1177/0907568211421220?journalCode=chda">told more than once</a>. Children benefited from having the opportunity to talk about their parents’ separation, and receive support from other family members, such as aunts and grandmothers. Talking to siblings and friends – particularly trusted friends who had experienced their own parents’ separation – was <a href="https://www.naccc.org.uk/downloads/Children_involvment.pdf">also found to be helpful</a>.</p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/288364/original/file-20190816-192246-1fawzbk.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/288364/original/file-20190816-192246-1fawzbk.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/288364/original/file-20190816-192246-1fawzbk.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/288364/original/file-20190816-192246-1fawzbk.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/288364/original/file-20190816-192246-1fawzbk.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/288364/original/file-20190816-192246-1fawzbk.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/288364/original/file-20190816-192246-1fawzbk.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="caption">Family support makes a big difference.</span>
<span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/loving-understanding-old-grandma-embracing-little-1231591480?src=jZGDYfU6Faedh9bmufoVXg-1-44">Shutterstock.</a></span>
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<p>Children who were able to stay in contact with both parents, as well as their friends, accommodated separation and divorce better. It also helped if further changes were kept to a minimum: for example, if children continued to live in the same area and attend the same school after separation. Where this happened, <a href="https://journals.sagepub.com/doi/abs/10.1177/0907568211421220?journalCode=chda">children felt</a> their views had been taken into account in post-separation arrangements – they felt they “mattered” to their parents. This ultimately brought about a more positive view of the separation.</p>
<h2>Losing touch</h2>
<p>Children who lost contact with the parent they didn’t live with, but said this was what they wanted, tended to show a high level of accommodation. But those who did so involuntarily accommodated the separation less well. My <a href="https://policy.bristoluniversitypress.co.uk/childhood-experiences-of-separation-and-divorce">research found that</a> they viewed their parents’ separation as neither a positive improvement, nor a significant loss, and showed a medium level of accommodation. </p>
<p>Few of these children were told about the separation in advance, and loss of contact meant they did not see their needs taken into account. While they did not experience conflict between their parents directly, they were often aware of their resident parent’s dislike of the other parent and felt “silenced” from talking about them at home, which led to a sense of divided loyalties. </p>
<p>These children appeared very isolated, having access to few sources of support within the family, no support outside the family and feeling unable to talk to anyone about the changes. Over time, they created an emotional distance from the separation, meaning they treated it as a life event and moved on.</p>
<h2>Continuing conflict</h2>
<p>Children who continued to experience conflict between their parents after separation accommodated the changes less well. My participants described feeling “caught in the middle” of their parents’ conflict, particularly at handovers, and feeling responsible for younger siblings. This aligns with <a href="https://journals.sagepub.com/doi/10.1177/0907568203010002002">findings</a> from <a href="https://www.researchgate.net/publication/258129026_A_scoping_review_of_qualitative_studies_about_children_experiencing_parental_separation">many previous studies</a>. They viewed their parents as being preoccupied with their own issues and concerns, and failing to take their children’s needs into account. They also felt unable to talk to anyone in the family about the separation, for fear of making the conflict worse. </p>
<p>Children found it particularly difficult when parents couldn’t agree on where they would live and contact arrangements, requiring them to talk to social workers as a result of family court proceedings. As children, my participants said they struggled to accept the post-separation changes, and as young adults their parents’ separation remained a very significant loss in their lives.</p>
<p>Having a sense of how these young adults experienced their parents’ separation in childhood, and the factors that helped them accommodate the changes it brought about well, can help guide parents who are separating now. It can inform their choices, and those of their families, to make sure their children have the best chance of accommodating separation well over time.</p><img src="https://counter.theconversation.com/content/121907/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Susan Kay-Flowers does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Communication, contact and an end to conflict all help children accommodate this major change.Susan Kay-Flowers, Senior Lecturer in Education and Childhood Studies, Liverpool John Moores UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1152382019-04-11T02:19:45Z2019-04-11T02:19:45ZNew report charts future of the family law system<figure><img src="https://images.theconversation.com/files/268699/original/file-20190411-2905-1x5t7ye.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">The Australian Law Reform Commission handed down it's report on changes to the family law system on April 10.</span> <span class="attribution"><a class="source" href="https://www.shutterstock.com/download/confirm/655295230?src=ud-9ojVhsQ0SCO5YaqSqXw-1-0&size=huge_jpg">Shutterstock</a></span></figcaption></figure><p>After years of uncertainty about the future of the family law system, the next government now has a clear roadmap for how to amend the law, and improve the system of justice, for all those unfortunate enough to go through a relationship breakdown.</p>
<p>The Australian Law Reform Commission’s (ALRC) <a href="https://www.alrc.gov.au/inquiries/family-law-system">report</a>, published on April 10, is the result of 18 months of work, initially under the leadership of <a href="https://law.unimelb.edu.au/about/staff/helen-rhoades">Professor Helen Rhoades</a>. The President of the ALRC, the <a href="https://www.alrc.gov.au/honourable-justice-sarah-derrington-president">Honourable Justice Sarah Derrington</a>, led the project in its later stages.</p>
<p>The final report makes recommendations that are considerably different from the proposals put forward in its <a href="https://www.alrc.gov.au/publications/review-family-law-system-discussion-paper">discussion paper</a> in October 2018. That paper presented an ambitious reform agenda focused upon the provision, at taxpayer expense, of many new services, such as “one-stop-shop” centres to help people access relevant programs. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/in-the-family-court-children-say-they-want-the-process-explained-and-their-views-heard-its-time-we-listened-93919">In the Family Court, children say they want the process explained and their views heard. It's time we listened</a>
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<p>While many of these were worthy ideas, a taxpayer dollar can only be spent once, and the discussion paper did not adequately set out a rationale for the new spending initiatives, or prioritise between them. The final report nonetheless builds upon some of the sensible proposals for reform to the law the paper put forward, such as the simplification of the law concerning parenting after separation. </p>
<p>It also makes a radical new suggestion that the federal family courts be abolished. Instead, it recommends cases be heard by state and territory courts that can make orders under state child protection and family violence laws, as well as under the <a href="http://www.austlii.edu.au/cgi-bin/viewdb/au/legis/cth/consol_act/fla1975114/">Family Law Act 1975</a>.</p>
<h2>Reducing cost and anguish</h2>
<p>The best way to evaluate the ALRC’s recommendations is to ask how well they work to reduce the cost and anguish for people going through a family breakup. One of the ALRC’s guiding principles was that the law be:</p>
<blockquote>
<p>…clear, coherent, and enforceable so as to enable families to resolve the issues arising after separation […] in a just, timely, and cost-effective manner…</p>
</blockquote>
<p>Overall, it offers a coherent package of reforms. Proposals for simplification of the law are part of this.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/sperm-donation-is-testing-what-it-means-to-be-a-legal-parent-all-the-way-to-the-high-court-109140">Sperm donation is testing what it means to be a legal parent, all the way to the High Court</a>
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<h2>Parenting after separation</h2>
<p>The law on parenting after separation has long been criticised as <a href="https://www.researchgate.net/publication/315796480_Deciding_Parenting_Cases_Under_Part_VII_42_Easy_Steps">overly complex</a>. The ALRC recommends reducing the number of matters that a judge must consider when deciding what is in the best interests of a child whose parents cannot agree about post-separation parenting.</p>
<p>The ALRC’s recommendations are likely to be criticised for abandoning the reforms <a href="http://www.austlii.edu.au/cgi-bin/viewdb/au/legis/cth/num_act/flapra2006500/">introduced in 2006</a> that sought to <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2438494">encourage parents and judges to consider the option of shared care</a> – or even an equal time arrangement. </p>
<p>The government would be wise to deal with these recommendations sensitively and in a manner that does not reignite the “<a href="https://www.jstor.org/stable/25740368?seq=1#page_scan_tab_contents">gender wars</a>”. The fact is that <a href="https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=4389&context=lcp">only a small proportion of parents</a> are able to make a shared care arrangement work for the benefit of the children. They have to live close enough together, for a start.</p>
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<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/separated-parents-and-the-family-law-system-what-does-the-evidence-say-62826">Separated parents and the family law system: what does the evidence say?</a>
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<p>The important principle, currently contained in the <a href="http://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/cth/consol_act/fla1975114/s60b.html">Family Law Act</a>, is that the law should encourage the maximum involvement of both parents in children’s lives which is consistent with the children’s best interests. That principle needs to be retained in the Act. Sometimes, due to abuse, neglect, mental illness or other factors, it is <a href="https://aifs.gov.au/publications/family-matters/issue-92/violence-abuse-and-limits-shared-parental-responsibility">not safe for children to have much involvement from one of the parents</a>; but this is a minority of cases. </p>
<p>Children, vulnerable to long-term harm from their parents’ breakup, do best if they can keep <a href="https://www.researchgate.net/publication/247452180_Using_child_development_research_to_make_appropriate_custody_and_access_decisions">a close relationship with both of their parents</a>.</p>
<h2>Dividing property after separation</h2>
<p>Another important reform is to set out some basic rules and principles concerning the division of property after separation. Currently, so much depends on the discretion of the judge; and the principles on which that discretion is exercised are <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3085678">very unclear</a>. This is especially the case when it comes to inheritances, and property owned before the marriage began. </p>
<p>The ALRC makes various proposals to simplify the law. It avoids some of the harder issues, such as pre-marital assets, but a reforming government could and should tackle them. These issues are dealt with very sensibly <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2928085">in other countries</a>, which can provide models for Australia.</p>
<h2>Access to justice</h2>
<p>The Commission makes other reform proposals that may sound technical, such as how orders for costs should be made, or when arbitration could be used. Together, these proposals could do a lot to reduce the <a href="https://espace.library.uq.edu.au/view/UQ:0109a5e">cost of access to justice, and to deter bad behaviour</a> by some litigants and a minority of family lawyers.</p>
<p>The ALRC’s report offers a clear and coherent way forward for the government. It is worthy of the most careful consideration by all politicians concerned about improving the system.</p><img src="https://counter.theconversation.com/content/115238/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Patrick Parkinson receives no present funding related to this article.
He has, in the past, received ARC Discovery Grant funding on issues concerning family law and has conducted research on shared care (as part of a large team) for the Commonwealth Government.</span></em></p>The Australian Law Reform Commission’s report makes a radical new suggestion that federal family courts be abolished. It also recommends changes to laws concerning parenting and property division.Patrick Parkinson, Academic Dean and Head of TC Beirne School of Law, The University of QueenslandLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1033352019-02-21T19:05:20Z2019-02-21T19:05:20ZWhen granny flats go wrong – perils for parents highlight need for law reform<figure><img src="https://images.theconversation.com/files/259629/original/file-20190219-121757-52twqm.jpg?ixlib=rb-1.1.0&rect=1527%2C0%2C3393%2C3260&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Granny flats are often the result of informal arrangements between parents and children who assume it will all work out well.</span> <span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/australian-residential-backyard-granny-flat-540473419?src=8nmKLvUcptrsHRPPcvnHIA-1-0">Markus J/Shutterstock</a></span></figcaption></figure><p>A “granny flat agreement” is an informal arrangement between a parent and their adult child or children. The parent (often elderly) contributes funds to create granny flat accommodation either by modifying a home or by buying a suitable property in the name of the children. In return they agree to provide the parent with a lifetime right to live in the granny flat, or at least until the parent needs residential care. </p>
<p>Many of these arrangements work out well. The older person then enjoys the love and support of having their family close by as they age. </p>
<p>When an arrangement of this kind goes wrong, however, it can seriously threaten the wealth, autonomy and dignity of the elderly parent. If the relationship between the parent and child, or child’s spouse, breaks down and the parent is asked to leave the property, he or she may be left with nothing. </p>
<hr>
<p><em><strong>Read more:</strong> <a href="https://theconversation.com/flatting-in-retirement-how-to-provide-suitable-and-affordable-housing-for-ageing-people-101598">Flatting in retirement: how to provide suitable and affordable housing for ageing people</a></em></p>
<p><em><strong>Read more:</strong> <a href="https://theconversation.com/co-housing-works-well-for-older-people-once-they-get-past-the-image-problem-79907">Co-housing works well for older people, once they get past the image problem</a></em></p>
<hr>
<h2>How does the law treat granny flats?</h2>
<p>The parent’s only chance of recovering her contribution is to go to court. These court cases depend on applying a complex set of rules.</p>
<p>The parent must prove the contribution was not a gift but that they supplied funds as part of an arrangement that the parties would live together. Agreements creating interests in land need to be <a href="https://www.legislation.nsw.gov.au/#/view/act/1919/6/part4/div1/sec54a">in writing</a>, and usually there is no written agreement. </p>
<p>The court can apply <a href="https://www.translegal.com/legal-english-dictionary/equitable-principle">equitable principles</a>. A parent who contributed to improving the property ought to have the contributions back, or a proportionate share of the property returned if the arrangement ends prematurely, because it is unjust for children to retain the benefit of the contribution without providing the granny flat. </p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/259631/original/file-20190219-121735-4pcoyq.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/259631/original/file-20190219-121735-4pcoyq.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/259631/original/file-20190219-121735-4pcoyq.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/259631/original/file-20190219-121735-4pcoyq.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/259631/original/file-20190219-121735-4pcoyq.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/259631/original/file-20190219-121735-4pcoyq.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/259631/original/file-20190219-121735-4pcoyq.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="caption">A parent who made a contribution to renovations or extensions ought to get that back if living arrangements break down.</span>
<span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/building-site-uk-brick-house-extension-1248532891?src=8nmKLvUcptrsHRPPcvnHIA-1-11">Paul Maguire/Shutterstock</a></span>
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<p>Where the court finds that the parent relied on a promise by the child that the parent would have an interest in the house, or at least a right to live with the child for life, the child can be required to repay the contribution.</p>
<p>This often means the child must sell their house if they cannot refinance to obtain the money to pay the parent. If the parent is entitled to a share of the property, the house has to be sold to realise the parent’s share. </p>
<p>The problem for parents is that court cases cost money, unless Legal Aid is available, but only parents who are truly destitute qualify for assistance. The parent has to produce evidence of the arrangement or the promise. They often have to recount conversations from many years ago to prove there was an arrangement. The children have to spend money on their own lawyers.</p>
<p>Parents and children very rarely put these agreements in writing and almost never consult a lawyer. Sometimes, to help the child get finance, a parent may have told the lender the contribution was a gift. </p>
<p>All this makes court cases complex, difficult and expensive. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/the-financial-services-royal-commission-highlights-the-vulnerability-of-many-older-australians-93359">The Financial Services Royal Commission highlights the vulnerability of many older Australians</a>
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</p>
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<p>In New South Wales, the <a href="https://www.legislation.nsw.gov.au/%7E/view/act/1984/147">Property (Relationships) Act 1984</a> may apply to granny flat disputes, but the parent still has to show how they contributed to the child’s property. Other states and territories – including <a href="http://classic.austlii.edu.au/au/legis/vic/consol_act/ra2008173/">Victoria</a>, <a href="https://www.legislation.sa.gov.au/LZ/C/A/DOMESTIC%20PARTNERS%20PROPERTY%20ACT%201996/CURRENT/1996.51.AUTH.PDF">South Australia</a>, <a href="http://www7.austlii.edu.au/cgi-bin/viewdb/au/legis/tas/consol_act/ra2003173/">Tasmania</a> and <a href="http://www7.austlii.edu.au/cgi-bin/viewdb/au/legis/act/consol_act/dra1994253/">ACT</a> – have similar laws for couples, which might apply to family arrangements. However, the NSW legislation is broader, which makes things worse for parents outside NSW.</p>
<p>When a dispute arises, the parties usually want to resolve the matter as quickly and as cheaply as possible. But court cases can take a year or more to get to hearing. Affidavits must be prepared and financial documents reviewed. During this time the parent may be living in emergency housing, often at public expense. </p>
<p>The picture gets worse if the child’s marriage breaks down. The parent’s claim then gets taken into family property proceedings between the child and their spouse in the Family Court or Federal Circuit Court. This can take even longer than going to the Supreme Court. </p>
<h2>A better way to resolve disputes</h2>
<p>Parties to these disputes need fast access to a system of practical rules for separating the parties’ property interests, and one that offers early mediation. These rules would cover factors such as increases in the value of the property, how long the parties lived together, what benefits they received, and other discretionary considerations. Such rules might provide the basis for a set of statutory guidelines for a tribunal to apply. </p>
<p>Civil and administrative tribunals <a href="http://www.ncat.nsw.gov.au/Pages/going_to_the_tribunal/going_to_the_tribunal.aspx">emphasise informality and conciliation</a>, so giving these tribunals jurisdiction to resolve granny flat disputes according to statutory guidelines would arguably be more efficient than going to the Supreme Court or Family Court. </p>
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<img alt="" src="https://images.theconversation.com/files/259640/original/file-20190219-121735-1mofllw.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/259640/original/file-20190219-121735-1mofllw.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=546&fit=crop&dpr=1 600w, https://images.theconversation.com/files/259640/original/file-20190219-121735-1mofllw.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=546&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/259640/original/file-20190219-121735-1mofllw.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=546&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/259640/original/file-20190219-121735-1mofllw.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=686&fit=crop&dpr=1 754w, https://images.theconversation.com/files/259640/original/file-20190219-121735-1mofllw.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=686&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/259640/original/file-20190219-121735-1mofllw.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=686&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="caption">Parents and children who trust each other may be reluctant to get legal advice on a granny flat arrangement, but they really should.</span>
<span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/elderly-woman-her-daughter-3651263?src=cCxaBBwnbC8Kyt-a3vwNWA-1-61">Alexander Raths/Shutterstock</a></span>
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<p>Parties really should seek legal advice on granny flat arrangements before they commit to the deal. But parents often trust their children and are optimistic that they can live together as a family. If a lawyer provides advice to an elderly parent individually and with an awareness of their client’s possible incapacity or vulnerability to undue influence, that gives all parties a chance to decide what they want to happen if the relationship breaks down. </p>
<p>Centrelink <a href="https://www.smh.com.au/money/how-to-give-property-to-your-kids-and-keep-the-age-pension-20151118-gl1ypg.html">recognises granny flat arrangements</a>, so parents’ contributions are not automatically <a href="https://www.humanservices.gov.au/individuals/enablers/gifting">treated as a gift</a>. Gifting attracts an asset test under which the parent might be deemed still to have the funds contributed, which could reduce their pension. </p>
<p>The children can also be worse off if the Tax Office considers that the child accepting the contribution made a capital gain because the parents’ contribution increased the value of the home. </p>
<p>Although the Australian Law Reform Commission has <a href="https://www.alrc.gov.au/publications/elder-abuse-report">looked at some aspects of this issue</a>, action is need to reduce the complexity of existing equitable and statutory rules. Elderly parents should not have to take their children to court in expensive legal proceedings to retrieve the contribution that was meant to ensure they had a secure home in their later years. </p>
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Read more:
<a href="https://theconversation.com/we-need-more-flexible-housing-for-21st-century-lives-102636">We need more flexible housing for 21st-century lives</a>
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<img src="https://counter.theconversation.com/content/103335/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Patricia Lane does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Parents and children rarely put agreements about granny flats in writing and almost never consult a lawyer. But when these arrangements go wrong, the consequences can be disastrous and costly for all.Patricia Lane, Senior Lecturer, University of SydneyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1091402019-01-29T19:11:35Z2019-01-29T19:11:35ZSperm donation is testing what it means to be a legal parent, all the way to the High Court<figure><img src="https://images.theconversation.com/files/256019/original/file-20190129-42594-1fps110.jpg?ixlib=rb-1.1.0&rect=0%2C4%2C1000%2C661&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">We need a new legal definition of 'parent' to reflect the diversity of Australian families.</span> <span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/lesbians-mothers-adopted-child-happy-homosexual-568376338">from www.shutterstock.com</a></span></figcaption></figure><p>The family courts have historically treated legal parentage as a question of who has “<a href="http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FamCA/1999/446.html?context=1;query=tobin;mask_path=au/cases/cth/FamCA+au/cases/cth/FamCAFC+au/legis/cth/consol_act+au/legis/cth/num_act+au/legis/cth/repealed_act+au/legis/cth/consol_reg+au/legis/cth/num_reg+au/legis/cth/num_reg_es+au/legis/cth/repealed_reg+au/legis/cth/bill+au/legis/cth/bill_em+au/legis/cth/digest+au/legis/cth/table+au/other/HCAASP+au/other/hca/bulletin+au/other/HCASum+au/cases/cth/HCASL+au/cases/cth/HCATrans+au/other/AUOmbIRp+au/other/rulings/ato/ATOCR+au/other/rulings/ato/ATOER+au/other/rulings/ato/ATOFTD+au/other/rulings/ato/ATOFTR+au/other/rulings/ato/ATOGSTA+au/other/rulings/ato/ATOGSTB+au/other/rulings/ato/ATOGSTD+au/other/rulings/ato/ATOGSTR+au/other/rulings/ato/ATOLCTD+au/other/rulings/ato/ATOMTR+au/other/rulings/ato/ATOMTROS+au/other/rulings/ato/ATOPGBR+au/other/rulings/ato/ATOPR+au/other/rulings/ato/ATOPRP+au/other/rulings/ato/ATOSTRNS+au/other/rulings/ato/ATOSTR+au/other/rulings/ato/ATOSTD+au/other/rulings/ato/ATOSMSFD+au/other/rulings/ato/ATOSMSFR+au/other/rulings/ato/ATOSMSFPR+au/other/rulings/ato/ATOSCD+au/other/rulings/ato/ATOSCR+au/other/rulings/ato/ATOSD+au/other/rulings/ato/ATOSGD+au/other/rulings/ato/ATOSGR+au/other/rulings/ato/ATOTD+au/other/rulings/ato/ATOTR+au/other/rulings/ato/ATOITR+au/other/rulings/ato/ATOTGD+au/other/rulings/ato/ATOTGR+au/other/rulings/ato/ATOWETD+au/other/rulings/ato/ATOWETR+au/other/rulings/ato/ATODER+au/other/rulings/ato/ATODFTR+au/other/rulings/ato/ATODGSTD+au/other/rulings/ato/ATODGSTR+au/other/rulings/ato/ATODLCTD+au/other/rulings/ato/ATODMTR+au/other/rulings/ato/ATODMTROS+au/other/rulings/ato/ATODPGBR+au/other/rulings/ato/ATODSTD+au/other/rulings/ato/ATODSTRNS+au/other/rulings/ato/ATODSMSFR+au/other/rulings/ato/ATODSMSFD+au/other/rulings/ato/ATODSCD+au/other/rulings/ato/ATODSCR+au/other/rulings/ato/ATODSD+au/other/rulings/ato/ATODSGD+au/other/rulings/ato/ATODSGR+au/other/rulings/ato/ATODTD+au/other/rulings/ato/ATODTR+au/other/rulings/ato/ATODTGD+au/other/rulings/ato/ATODWETD+au/other/rulings/">begotten or borne</a>” a child. But increasingly complex family situations created as a result of donor conception, surrogacy, IVF and DNA testing are sorely testing this biblical-sounding definition. </p>
<p>In 2019, the Australian High Court will be hearing the <a href="http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCATrans/2018/265.html">appeal</a> concerning the legal parentage of a child born via sperm donation. This is a crucial opportunity for the court to reconsider the “begotten or borne” definition, and the emphasis currently placed on biology and how someone was conceived.</p>
<p>Some time this year, the High Court will be telling an 11-year-old girl (let’s call her Billie) who her legal parents are. By the age of 11, most of us have a pretty clear picture of who our parents are, and chances are, Billie does too. She and her younger sister live most of the time with their two mums (Susan and Margaret Parsons), and have regular time with their dad (Robert Masson) and his partner Greg.*</p>
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Read more:
<a href="https://theconversation.com/mum-dad-and-two-kids-no-longer-the-norm-in-the-changing-australian-family-88014">Mum, dad and two kids no longer the norm in the changing Australian family</a>
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<h2>Why is this case significant?</h2>
<p>Billie’s family is in the High Court because her mums want to re-locate to New Zealand, and her dad objects. Whether the Parsons family should be allowed to relocate is a parenting order decision, in which the best interests of Billie and her little sister must, under the Family Law Act, be paramount. </p>
<p>But because Australian family law puts a big emphasis on “<a href="http://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/cth/consol_act/fla1975114/s60cc.html">the benefit to the child of a meaningful relationship with both parents</a>” when deciding the best interests of the child, whether Robert is considered Billie’s legal parent will influence the outcome. </p>
<p>Billie’s case is significant because at its heart is a curly question: what does it mean to be a legal parent? Pull at this thread, and it unravels many other questions. What counts when judges are deciding a child’s legal parentage? Should the court consider the circumstances of the child’s conception, birth and genetic relatedness? Are the intentions of the people who helped bring the child into the world relevant? What about whether they have functioned as the child’s parents so far? And is the child’s perspective relevant?</p>
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Read more:
<a href="https://theconversation.com/connecting-diblings-how-the-law-is-failing-to-keep-up-with-modern-families-85749">Connecting 'diblings': how the law is failing to keep up with modern families</a>
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<p>Family law has struggled to keep up with developments in assisted reproduction, paternity testing and the increasing diversity of Australian families. Parentage issues arise not just as a result of assisted conception, such as in cases donor conception or surrogacy. Issues also arise when children are raised by a non-genetic parent for cultural reasons (such as in some Aboriginal or Torres Strait Islander families), or where a man has been raising a child who he later discovers is not his biological offspring.</p>
<h2>Why is Australian parentage law so messy?</h2>
<p>Australian parentage law is particularly complex because of uncertainty surrounding the way the federal Family Law Act interacts with state or territory laws. </p>
<p>There is, as <a href="http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FamCAFC/2018/115.html?context=0;query=masson;mask_path=au/cases/cth/FamCAFC+au/legis/cth/consol_act+au/legis/cth/num_act+au/legis/cth/repealed_act+au/legis/cth/consol_reg+au/legis/cth/num_reg+au/legis/cth/num_reg_es+au/legis/cth/repealed_reg+au/legis/cth/bill+au/legis/cth/bill_em+au/legis/cth/digest+au/legis/cth/table+au/other/HCAASP+au/other/hca/bulletin+au/other/HCASum+au/cases/cth/HCASL+au/cases/cth/HCATrans+au/other/AUOmbIRp+au/other/rulings/ato/ATOCR+au/other/rulings/ato/ATOER+au/other/rulings/ato/ATOFTD+au/other/rulings/ato/ATOFTR+au/other/rulings/ato/ATOGSTA+au/other/rulings/ato/ATOGSTB+au/other/rulings/ato/ATOGSTD+au/other/rulings/ato/ATOGSTR+au/other/rulings/ato/ATOLCTD+au/other/rulings/ato/ATOMTR+au/other/rulings/ato/ATOMTROS+au/other/rulings/ato/ATOPGBR+au/other/rulings/ato/ATOPR+au/other/rulings/ato/ATOPRP+au/other/rulings/ato/ATOSTRNS+au/other/rulings/ato/ATOSTR+au/other/rulings/ato/ATOSTD+au/other/rulings/ato/ATOSMSFD+au/other/rulings/ato/ATOSMSFR+au/other/rulings/ato/ATOSMSFPR+au/other/rulings/ato/ATOSCD+au/other/rulings/ato/ATOSCR+au/other/rulings/ato/ATOSD+au/other/rulings/ato/ATOSGD+au/other/rulings/ato/ATOSGR+au/other/rulings/ato/ATOTD+au/other/rulings/ato/ATOTR+au/other/rulings/ato/ATOITR+au/other/rulings/ato/ATOTGD+au/other/rulings/ato/ATOTGR+au/other/rulings/ato/ATOWETD+au/other/rulings/ato/ATOWETR+au/other/rulings/ato/ATODER+au/other/rulings/ato/ATODFTR+au/other/rulings/ato/ATODGSTD+au/other/rulings/ato/ATODGSTR+au/other/rulings/ato/ATODLCTD+au/other/rulings/ato/ATODMTR+au/other/rulings/ato/ATODMTROS+au/other/rulings/ato/ATODPGBR+au/other/rulings/ato/ATODSTD+au/other/rulings/ato/ATODSTRNS+au/other/rulings/ato/ATODSMSFR+au/other/rulings/ato/ATODSMSFD+au/other/rulings/ato/ATODSCD+au/other/rulings/ato/ATODSCR+au/other/rulings/ato/ATODSD+au/other/rulings/ato/ATODSGD+au/other/rulings/ato/ATODSGR+au/other/rulings/ato/ATODTD+au/other/rulings/ato/ATODTR+au/other/rulings/ato/ATODTGD+au/other/rulings/ato/ATODWETD+au/other/rulings/ato/ATODWETR">one senior judge</a> points out, “serious divergence of judicial opinion in this area” and the Family Law Act does not provide any clear answers. </p>
<p>The overall lack of flexibility for diverse families has led the <a href="https://www.ag.gov.au/FamiliesAndMarriage/FamilyLawCouncil/Documents/family-law-council-report-on-parentage-and-the-family-law-act-december2013.pdf">Family Law Council</a> to conclude the present framework does not “reflect the reality of parenting and family life for many children in Australia” and that comprehensive federal legislation that defines legal parentage across all circumstances is needed.</p>
<h2>How can we clarify the law?</h2>
<p>With such statutory complexity, the High Court may be limited in what it can do to clarify the law in Billie’s case. For decades, the Family Court has debated whether the <a href="http://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/cth/consol_act/fla1975114/s60h.html">provisions</a> in the Family Law Act regulating legal parentage for children conceived via assisted reproduction exclusively define legal parentage for these children, or merely enlarge the category of people who can be determined a parent. Neither of these approaches, however, adequately respond to the bigger issue of how “parent” is defined. </p>
<p>When interpreting the term “parent” within the Family Law Act, judges have assumed the use of the term “both parents” means a child may have a maximum of two parents, each of whom has “<a href="http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FamCA/1999/446.html">begotten or borne</a>” the child (unless an adoption order is in place, or a statutory exception applies).</p>
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Read more:
<a href="https://theconversation.com/victorias-world-first-change-to-share-sperm-or-egg-donors-names-with-children-72417">Victoria's world-first change to share sperm or egg donors' names with children</a>
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<p>This biological interpretation is at odds with understandings of the meaning of “parent” in other areas of law. For example, in migration law, the <a href="http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FCAFC/2010/119.html">Full Federal Court</a> held in 2010 that the word “parent” is not limited to biological parents. Rather, it “is used today to signify a social relationship to another person” often characterised by “intense commitment to another, expressed by acknowledging that other person as one’s own and treating him or her as one’s own”. </p>
<p>In a number of other jurisdictions, including Canada’s <a href="https://www.cbc.ca/news/canada/british-columbia/1st-canadian-family-with-3-parents-on-birth-certificate-grows-1.2950107">British Columbia</a>, children can have more than two legal parents, where that reflects the intentions of all the adults before conception. </p>
<h2>Should children have a voice?</h2>
<p>But something important is missing from this debate. At 11 and ten, Billie and her younger sister could probably tell the court a lot about who they regard and rely on as their parents. Their legal parentage forms a crucial part of their legal kinship identity, and therefore part of their personal identity. It affects their legal relationships not just with their legal parents, but with one another as siblings and with extended family. </p>
<p>Yet <a href="http://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/cth/consol_act/fla1975114/s64b.html">amendments</a> to the Family Law Act in 2012 explicitly removed decisions surrounding legal parentage from “parenting orders” (ie, orders that state the parenting arrangements for a child, including matters such as who they live with and when). This means that when making decisions about a child’s parentage, the best interests of the child are not paramount and there is subsequently no requirement that the child’s views be considered. </p>
<p>When the <a href="http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FamCA/2017/789.html">trial judge</a> first heard Billie’s case in the Family Court, she discussed the children’s understanding of their family in the basic sense of who the children called “mummy” and “daddy”.</p>
<p>Ultimately, however, the judge emphasised Robert’s genetic contribution, and his intention to be a father in deciding that he was a legal parent (and that Margaret, who had been present at Billie’s conception, and has been one of her primary care-giving parents from birth, was not). </p>
<p>Achieving a more child-centred model of legal parentage is likely to be a long process, requiring significant changes to legislation. How the High Court responds to this case, and the curly problems of legal parentage it raises, may help shape reform.</p>
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<p><em>* This article uses the same pseudonyms used by the Family Court</em></p><img src="https://counter.theconversation.com/content/109140/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Fiona Kelly receives funding from the Australian Research Council to study the relationships between people connected via donor conception.</span></em></p><p class="fine-print"><em><span>Hannah Robert does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Who is a child’s legal parent? The question is at the heart of a case due before the High Court this year. It may have implications for children born via IVF or surrogacy, and the people who raise them.Hannah Robert, Lecturer in Law, La Trobe UniversityFiona Kelly, Professor, Law School, La Trobe UniversityLicensed as Creative Commons – attribution, no derivatives.