By Dr Elspeth McInnesSchool of Education, Magill Campus

Shared Parental Responsibility in Australian Family Law & the Impact on Children Seminar, Adelaide 13-14 April 2008.

From July 1 2006 ‘equal shared parental responsibility’ under

which decision makers must consider children spending the maximum time possible (50/50) with each parent after separation, or substantial or significant time.

The presumption of ‘equal shared parental responsibility’ can be rebutted where there is a risk of violence

parents should agree and co-operate in the best interests of their children, and

children do best when they have a meaningful relationship with both parents. 

Previously: Each child’s ‘best interests’ were uniquely examined.

Now: The content of ‘best interests’ is re-defined as regular contact with each parent after separation.

TWO serious implications for adverse mental health outcomes.

1. the mental health and developmental needs of children are subordinated to spending maximum time with each parent.

2. victims of violence and abuse face greatly increased risks of continuing exposure to abuse when they are required to share care with an abusing parent.

10 year old raped/killed by father in Queensland on December 31 2007.

One of 4 children in father’s care after mother relinquished care in 2004 after lengthy family court proceedings.

Father arrested and hospitalised – involuntary treatment order December 8, discharged December 22 – no monitoring, no check re child protection.

Mother never informed of father’s hospitalisation. Said her children always cried when they left her to return to father. Last contact with them December 23.

Eldest daughter and neighbours had previously made child abuse reports about father to child safety dept with no response.

Surviving children placed with killer’s parents and mother to seek residence in family court.

(Sources: various press reports – see reference list)

April 25 2004 Jayson Dalton killed Jessie(20 months) and Patrick (3 months) then himself rather than return them to the care of their mother, Dionne.

Dalton had a DVO before separation, twice breached it and had been imprisoned for the breach.

March 11 Dionne hospitalised with psychosis after Dalton’s breach, leaving children with her mother.

March 16 Family Court awards Dalton care of the children after 14 minute hearing. Judge tells Dionne’s mother he was violent to wife, but not really to his children. No assessment of care capacity of Dalton or Dionne’s mother was made.

Family Court ordered the children to be returned to Dionne after 5 weeks when she was released from hospital, but Dalton killed the children and himself on the day they were to go back to their mother’s care.

Chief Justice Bryant quoted‘There was nothing to indicate this would happen’. BUT If nobody looks then nobody can find risk indicators. Air safety crashes investigations aim to discover what happened with

a view to crash prevention and reduction. Victims of family homicide need a family homicide review process to

learn from tragedies across both state and federal systems when parents have separated.

Family law delivered children to parents who killed them.

Family law inability to properly assess parents’ capacity to provide safe and suitable care (despite a legal responsibility to do so).

Mothers’ concerns of child abuse were disregarded/ mothers not informed of problems with father’s care.

Police involvement with killers prior to deaths and their evidence of violence not available to decision-makers re children.

Parents with mental illness not linked with child protection plans.

Child protection system ineffective.

Separation is a high risk context for family homicide.

Strang (1996) 43 of 88 killings of children by parents/step-parent in context of parental separation. Biological fathers most common killers (46 deaths).

Mouzos & Rushforth (2003) over 13 years, men kill average of 58 women partners and 16 children per annum with family breakdown common context.

Johnson (2005) researched 7 cases of post-separation murder-suicide in WA. Common factors DV history, high jealousy and ownership, frequent threats to harm self and others, deteriorating mental state prior to murders.

Violence and abuse have been identified as strong predictors and contributors to mental illness risk (Taft 2003; Itzin 2006).

Risk and severity of illness is linked to the age of onset, the severity, duration and number of episodes of violence and abuse as well as the presence or absence of supportive responses and safety.

Children who experience violence and abuse are additionally developmentally vulnerable.

The prevention and reduction and treatment of violence and abuse must become central to mental health strategies.

Population data estimates 27,000 children affected by parental mental illness – most dangerous disorders for risks to children are depression and substance abuse (Tomison 1996).

Only 1 in 6 sufferers get appropriate help – women more likely to access help – men more likely to be undiagnosed and untreated (Rodgers et al 2004).

Most common diagnosed context of mental illness child deaths is mothers killing newborns (Strang 1996).

Major problem that health systems treat adult patients and ignore their children and the parenting context. COPMI project aims to assist http://www.copmi.net.au/

The Qld death prompted the state government to institute new rules requiring mental health workers to assess and provide a child care plan before discharging patients under Involuntary Treatment Orders where the patients have responsibilities for, or are involved in, the care of children. The assessment is to include the patient's ability to parent the children and any foreseeable risk of harm to the children, but most state and territory mental health services do not have protocols with child protection departments and the need for parenting plans on patient discharge.

Where parents have separated children are less supported and exposed to system gaps. Parents with shared responsibility and continuing time with children do not receive

information about the hospitalised parent’s capacity to provide care and are thus unable to seek a change in care arrangements to ensure their children are cared for (The 2007 case).

Where parents have been made incapable of providing care due to the violent or abusive actions of the other parent (The Dalton case), child protection, police and domestic violence reports need to be part of the evidence available to decision-makers in the family law system.

ABS data (2002) indicates that one in five Australians have had a mental illness in the past 12 months – mostly depressive and anxiety disorders.

Mental health problems can contribute to difficulties in relationship formation and are a commonly nominated cause of relationship breakdown (Wolcott & Hughes 1999).

Violent and abusive relationship are a key risk to women’s mental health (Taft 2003).

Relationship breakdown is a ‘crisis’ period which can itself precipitate mental illness (Rodgers et al 2004).

State police, health, children’s services, emergency accommodation, child protection, and corrections hold important evidence on risks to children’s safety where family violence, mental illness and parental separation come together, but do not have ready interface with each other or the family law system.

Ex Parte DV orders routinely not accepted by family court as evidence of violence. No ready timely pathways for state held evidence (eg police /mental health service info) to be available to family law decision makers responsible for determining children’s best interests.

Family law decisions on child allocation over-ride state laws and are not monitored for their impact on the child’s safety or best interests.

Child contact services are short-term and the most dangerous parents are excluded for staff safety (Sheehan et al 2005).

Magellan program of state child protection/family law interface is highly restricted – majority of violence and abuse cases outside the program.

SA Family Safety Framework has developed a shared risk assessment, information sharing and referral process across police, health , education and children’s services, emergency accommodation services and child protection.

Model should be extended to include family law services (including FRCs) responding to identified high risk separated parents.

Need for learning approach via interagency family homicide review process including family law system services when parents are separated.

The alternative is to continue to complacently accept children’s current levels of exposure to abuse and violence after parental separation and claim ‘There was nothing to indicate this would happen’ as the death and injury toll mounts.

Human right to survival and safety has to be recognised as the threshold condition of a child’s best interests and the possibility of a meaningful relationship with anybody.

Need to have a robust investigatory, risk assessment and decision-making processes to protect children from parents with a history of violent or abusive conduct.

Need resources and concerted continuing effort.

Therefore need leaderships committed to ‘safety first’ driving interagency reform across the state-federal divide.

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