An Analysis of Options for Changes in the Legal Regulation of Child Custody and Access

2001-FCY-2E

OPTION TWO: PARENTING RESPONSIBILITYAND PARENTING ORDERS (continued)

PARENTING ORDERS (continued)

Relationship Between Parenting Responsibility and Parenting Orders

Summary and Assessment

A neutral model of parenting responsibility would be best promoted through a regime in which parental responsibility had to be specifically allocated in a parenting order. Such a regime would still have to address parenting responsibility in the absence of a parenting order or agreement. However, because of the complications of divided jurisdiction, this will require substantial tripartite consultation and collaboration.

Criteria for Orders

The general criteria for making a parenting order must be the best interests of the child. The issue of concern is the extent to which this best interests of the child test should be further articulated. In many respects, the discussion here parallels that of the best interests of the child test in Option One; the list of factors that go to the best interests of the child would not necessarily be any different. There are, however, a number of questions that are unique to the design of a parenting-responsibility and parenting-order model under Option Two. Should such a regime include a general statutory list of factors to be considered for all parenting orders, or should it identify specific factors for specific kinds of parenting orders?

Factors in the Best Interests of the Child

One approach would be to provide a list of factors to be taken into account in making any and all parenting orders. The Australian Family Law Act, for example, provides an extensive list of factors to be taken into account when determining the best interests of the child for the purposes of a parenting order.255 Similarly, the U.K. Children Act provides a statutory list of factors, although the criteria are somewhat less extensive.

This option for reform could adopt a list of factors similar to that discussed in relation to the best interests of the child test in Option One (with the requisite revisions to the language of custody and access). The list of factors from the Children’s Law Reform Act, or the recommendations of the National Family Law Section of the CBA, as set out in detail above, could provide the basis for this best interests of the child test. The importance of at least taking continuity of care into account would similarly apply.

Specific Factors for Specific Orders

A second approach would be to set out the specific factors that would need to be taken into account in relation to specific kinds of parenting orders. This approach can be seen in the Washington Parenting Act, which provides criteria for evaluating the allocation of different aspects of parenting responsibility within a parenting plan.

For example, among the factors to consider in the allocation of decision-making authority, the Act directs the court to the history of participation of each parent in decision-making, whether the parents’ have a demonstrated ability and desire to cooperate with each other in decision-making, and the parents geographic proximity to one another, to the extent that it affects their ability to make timely mutual decisions.

In terms of the child’s residence, the Act directs the court to make residential provisions "which encourage each parent to maintain a loving, stable and nurturing relationship with the child, consistent with the child’s developmental level and the family’s social and economic circumstances." The court is further directed to consider a range of factors, including any agreement between the parties, each parent’s past and potential for future performance of parenting functions, the emotional needs of the child, the child’s relationship with siblings and other adults, the wishes of the parents and the child, and the parents’ employment schedule. But greatest weight is to be given to one factor, namely, "the relative strength, nature and stability of the child’s relationship with each parent, including whether a parent has taken greater responsibility for performing parenting functions relating to the daily needs of the child."256

The particular factors that the Washington scheme considers in relation to the allocation of residence and allocation of decision-making authority are echoed in the recent recommendations of the American Law Institute. In terms of the allocation of the child’s residential schedule (or what the ALI refers to as custodial responsibility), the ALI recommends the use of the approximation rule—that is, of trying to approximate the parenting arrangements that existed prior to separation and divorce. In this respect, the ALI recommendations are remarkably similar to the Washington scheme, which places the greatest emphasis on "the relative strength, nature and stability of the child’s relationship with each parent, including whether a parent has taken greater responsibility for performing parenting functions relating to the daily needs of the child" in the allocation of the child’s residential schedule. In both schemes, then, continuity and stability for children in terms of patterns of caregiving are given particular weight.

But, neither the Washington scheme nor the ALI recommendations emphasize this continuity of care in the allocation of decision-making authority. Rather, the Washington scheme focuses on whether the parents have a demonstrated ability to cooperate with one another. The ALI recommendations similarly focus on the extent to which parents have participated in decision-making in the past, and their ability to cooperate with one another in decision-making.257 While the ALI recommendations again attempt to approximate the pre-separation arrangements, here the emphasis is on the pre-separation decision-making arrangements.

The advantage of this approach is that it allows the factors to be more precisely designed and directed to particular dimensions of parenting responsibility. The kind of factors that would be in a child’s best interests when making a residential order may well be different from the kinds of factors that should be taken into account when making a specific-issues order or a decision-making order. The approach would, then, have the advantage of reducing at least some of the problems of indeterminacy associated with an elaborate list of factors to be taken into account in the best interests of the child test.258

While the elaboration of specific factors for specific aspects of parental responsibility may fit most easily within a model based closely on the Washington and ALI schemes (i.e. residential-schedule orders and decision-making-authority orders), this approach could be applied to a regime based on other types of parenting orders as well. For example, a regime based on allocated parental rights and responsibilities could be designed to include factors to apply to different aspects of parental responsibility.

Specific factors could also be included within a regime based on residence, contact and specific-issues orders. However, it may be somewhat more challenging within such a regime to distinguish between factors relevant for residence and factors relevant for decision-making authority. In the U.K. and Australian schemes, decision-making authority is assumed to be shared, unless a court order provides otherwise. As noted above, this assumption that parental responsibility survives a parenting order may make this approach inappropriate for Option Two. On the other hand, it would certainly be possible to distinguish between at least some specific factors that ought to be taken into account in making residence orders, contact orders and specific-issues orders. Some such factors are discussed below.

Presumption or Principle in Favour of Contact

Several jurisdictions have moved towards a presumption or principle in favour of contact. In the U.K., the Family Law Act 1996 specifically provides for a presumption in favour of contact. Section 11(4)(c) states that the welfare of the child is best served by regular contact with those with parental responsibility. The legislation simply endorsed what was already a trend in family law. The English Court of Appeal has developed a "very strong" presumption in favour of contact.259 The Court has held that contact should not be prevented unless there are cogent reasons for doing so, and that the courts should take a medium and long term view of the child’s development, and not accord excessive weight to short term problems, such as the contact parent’s present psychiatric instability.260 Many commentators have been highly critical of this approach to contact, arguing that the best interests of children have often been compromised in the pursuit of maintaining contact. In particular, there is a concern that the general principle of maintaining contact has not been appropriately balanced with the equally important objective of protecting children from harm.261

The Australian regime states, as a general principle, that "children have a right of contact, on a regular basis, with both parents." This principle is expressed to apply "except when it is or would be contrary to a child’s best interest."262 This right of contact was one of the most contentious aspects of the Family Law Reform Act 1995. While many argued that it was a positive development, ensuring that non-resident parents would be more involved with their children, others were concerned about the potential for abuse.263 The Australian Family Court, however, has been more insistent that a child’s right to contact is qualified by the best interests principle.264 The Act was not held to create a presumption in favour of contact, but rather to provide the context for considering the child’s best interests.

As discussed above, there has been a significant decrease in Australia in the rate of orders refusing contact at interim hearings, but not in the rate of refusing contact in final orders, which has remained unchanged.265 This change in interim orders is partially attributable to the right-of-contact principle contained in the legislation.266 While the impact of the principle of contact in Australia is not as severe as it is in the U.K., the findings would suggest that there is at least some reason to be concerned with the way in which the principle in favour of contact is operating in the context of family violence, particularly at the interim stage.

If the Divorce Act is to be reformed according to a neutral model of parental responsibility, it should not include a presumption in favour of contact. There is tension between a neutral model of parental responsibility, which makes no assumptions about how parental responsibility ought to be allocated, and a presumption in favour of contact, which is based on the presumption that a particular kind of parenting arrangement is always in the best interests of the children. Moreover, the experience in the U.K. suggests that there is reason to be concerned that a presumption in favour of contact may not achieve the ultimate balance between promoting meaningful relationships and protecting a child from harm.

The question of whether the Divorce Act should include any statement of principle in favour of contact is more difficult to answer. Such a statement could be consistent with the guiding principle that reform should recognize that children benefit from the opportunity to develop and maintain meaningful relationships with both parents.

However, it is important to consider how such a principle in favour of contact might operate in practice. It must be noted that the U.K. Children Act did not actually contain a presumption in favour of contact, nor even a statement of right of contact. Rather, the "very strong presumption" is a creation of the courts, (subsequently confirmed by the Family Law Act). The incorporation of a right of contact in the Divorce Act creates a risk that the courts could create a similar "very strong presumption." By contrast, the Australian courts have been more cautious and have not endorsed a presumption. However, the statement of the right of contact has made the courts more reluctant to deny contact. Although it falls short of a presumption, the legislative scheme, and the courts’ interpretation thereof, does still seem to be based on the assumption that a particular kind of parenting arrangement is in the best interests of children. It also effectively creates the need to establish in law that contact is not, in fact, in the best interests of the child, if contact is to be denied.

While a right of contact might be seen to help promote meaningful relationships with non-residential parents, the experience in other jurisdictions suggests that when stated as a presumption, principle or right, countervailing interests, such as protecting children from violence, conflict and abuse, can be compromised. A right of contact may increase a child’s actual contact with the non-residential parent. However, it is not clear that such a right would promote meaningful relationships only when it is safe and positive to do so. If a general statement in favour of contact was to be included in the statute, it would then be important that the statute also specifically address the limitations to this right. These limitations are addressed in further detail in the section on violence, high conflict and inadequate parenting below.

A third option would be to include the principle of maintaining meaningful relationships within the best interests of the child test. As discussed above, the Special Joint Committee recommended that the principle of maximum contact currently found in section 16(10) of the Divorce Act incorporated into the best interests of the child test, so it can be weighed and balanced against other competing factors. A neutral model of parenting responsibility could adopt a similar approach, including the principle of contact in a list of statutory factors to be taken into account in determining the best interests of the child, and in allocating specific aspects of parenting responsibility. The idea of promoting meaningful relationships between parents and children, when it is safe and positive to do so, could then be included in a statutory list of best interest factors.

Presumption For or Against a Court Order

In its general definition of the welfare of the child, the U.K. Children Act 1989 provides that when a court is considering whether or not to make an order, "it shall not make the order… unless it considers that doing so would be better for the child than making no order at all."267 This presumption of "no order" reflects the philosophy of private ordering in the U.K. Act, and the bias against judicial intervention in the resolution of disputes involving children.

The U.K. scheme is intended to encourage parties to settle their own parenting arrangements, without resort to the courts.268 The U.K. scheme has restructured the relationship between private ordering and judicial intervention in a manner that now strongly favors private ordering.269

There is no similar provision in the Australian legislation. The Family Law Council recommended against the adoption of the Children Act’s "no order" principle, on the basis that it was "too inflexible."270

An important objective of any reform is to encourage separating and divorcing parents to enter into cooperative and consensual arrangements for the children without resort to the courts. In directing the court not to make an order unless it is in the best interests of the child, the U.K. legislative provision is sending a message that the courts should not become involved in the micro-management of trivial issues between parents. Rather, the legislation requires that parents sort out these issues between themselves, and not resort to the courts for every small parenting disagreement. However, it is not clear that this objective is best achieved with a presumption against judicial intervention. The U.K. scheme has arguably swung too far in the direction of private ordering.

In this respect, the Australian legislation may provide a better model for balancing private ordering and judicial intervention. The Family Law Act includes a number of provisions that expressly encourage parents to cooperate and reach consensual arrangements for their children. Section 60B states that one of the objects of the Act is that "parents should agree about the future parenting of the children," and section 63B states that "parents of a child are encouraged (a) to agree about matters concerning the child rather than seeking an order from a court." However, in the criteria for making a parenting order, there is no presumption in favour of private ordering or against judicial intervention. Once a parent has sought a parenting order, then there is no presumption against making such an order but, rather, a requirement that the order be made in the best interests of the child.

If the Divorce Act is reformed to include provisions that encourage parents to enter into cooperative arrangements (as discussed in the sections on parenting plans and primary dispute resolution below), then there is no compelling policy reason to include a presumption against orders in the criteria for the best interests of the children. Rather, it is important that the legislation continue to ensure that resort to the courts is available for those parents who are unable to reach their own agreements. The increasing emphasis within the family justice system on settlement, mediation and other forms of primary dispute resolution is such that by the time parents come to court seeking a parenting ordering, alternatives for resolving their disputes have been exhausted. If efforts to settle disputes have failed, there should be no presumption against courts making parenting orders. There is a limit to the extent to which the statute should force the parties to resolve their disputes privately. Once parents end up in court seeking parenting orders, the court should then make whatever order(s) it concludes is in the best interests of the child. A presumption against judicial intervention would also be extremely inappropriate in the context of high conflict families, which often require considerable intervention, as discussed in further detail below.

Summary and Assessment

To the extent possible, general statutory criteria should be eschewed in favour of criteria more closely tailored to specific aspects of parenting responsibility. A general list of equally weighted statutory criteria does not promote certainty or predictability, but specific criteria for specific aspects of parenting responsibility will. Both parties and courts will be able to focus on the particular factors that are relevant in the allocation of particular aspects of parenting responsibility.

A regime based on parenting responsibility should not include a presumption in favour of contact. A presumption in favour of contact is based on the presumption that a particular kind of parenting arrangement is always in the best interests of the child. As such, it is not consistent with a neutral parenting responsibility model that does not make any assumptions about how parental responsibility should be allocated.

Nor should a regime based on parenting responsibility include a presumption against court orders. While parents should be encouraged to resolve their parenting disputes on their own, and should be discouraged from turning to the courts to micro-manage their parenting arrangements, courts should retain their authority to make orders in the best interests of children.