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[Discussion Paper 10 November 2004]

by Lien of OZ

Promoting marriage can never be achieved without discouraging divorce and the laws which aid and abet.

It has been said– "People who do not or won’t censure divorce carry no special weight as defenders of marriage."

From  Harrop, "What God Has Joined, Let No Man...," Providence Journal, 26 November 2003.

Lessons from History:

Winston Churchill "There is no doubt that it is around the family and the home that all the greatest virtues, the most dominating virtues of human society, are created, strengthened and maintained."

T.S. Eliot "By far the most important channel of transmission of culture remains the family; and when family life fails to play its part, we must expect our culture to deteriorate."

J. D. Unwin. " In human records there is no instance of a society retaining its energy after a complete new generation has inherited a tradition which does not insist on prenuptial and postnuptial continence."

Divorce Law Reform:

It is to be hoped that the "New Approach to the Family Law System" is in response to the constant and accumulating evidence that the "Natural Family" is the most cost effective and humanly beneficial structure for Australian society and that the consequences of ‘no fault’ divorce has brought in its wake innumerable social and welfare problems and enormous economic penalties.

As a consequence, Governments must continue to affirm, by way of public policy (and legislation) the benefits to society of stable marriage and family communion and in turn, promote strategies for and validate its reasons for, encouraging marriage and discouraging divorce.

In the absence of other areas of divorce or family law reform toward making divorce more difficult to obtain, the concerns for children proposed by the concept of shared parental responsibility appears to be a favourable forward movement. Nevertheless, when emphasis on its implementation is mainly, post divorce, the future welfare of children may not necessarily be advanced. The emphasis in the present discussion document seems to be directed mainly toward settling custody dispute rather than efforts to preserve marriages and inhibit the tragedy of divorce.

Presently two of the major problems areas in divorce are:–

One spouse can impose a divorce without due reflection or effective consultation. Thus, both partner and children are all too easily abandoned almost without censure.

Serious misconduct in breach of marriage vows or marital contract then remains largely ignored by the law. Whether adultery, desertion, abuse or other kinds of serious misdemeanours.

Issues of this kind could well be resolved by insisting on joint consensual applications for separation. This would be practically the same as adjudicating the mutual ending of a contractual agreement. All too often ‘neutrality in law’ grants divorce without regard for the (innocent) spouse who does not seek it. Estimates of the order 8 of 10 divorces are granted unilaterally without ever assessing ‘failings’ of any kind, or penalty in determining settlement proposals. This does not necessarily reintroduce the idea of ‘fault’ but rather to emphasise that penalties are attached when failure to uphold the sanctity of marriage is disrespected.

Divorce (or family) law needs to be reformed so that couples seeking separation must confront the real costs of their separation; to themselves and in particular their children.

The primary role of the proposed Family Relationship Centres should be to focus on marital dispute resolution. Pre and Post marriage education and only when all else fails, to intervene and assist in amicable shared parenting responsibility.

Inherent in the express public policy of ‘shared parenting’ is a recognition of the child's right to equal access and opportunity with both parents, the right to be guided and nurtured by both parents, the right to have major decisions made by the application of both parents' wisdom, judgment and experience. The child does not forfeit these rights when the parents divorce." --Presiding Judge Dorothy T. Beasley,


What is Meant by Shared Parenting?

Shared parenting represents an active alliance among the important people in the child’s

life - birth parent, foster parents and agency workers. Recognizing that the connection

between parents and their children is the single most powerful relationship upon which to

preserve or rebuild families, shared parenting emphasizes establishing an alliance with

parents to protect their children rather than just an alliance with children to protect them

from their parents.


One useful guide for shared parenting is provided by the Massachusetts Chapter of the Association of Family and Conciliation Courts–

Planning for Shared Parenting: A Guide for Parents Living Apart.


Why Preserve Marriage?

"Four decades of social science data overwhelmingly demonstrate that a committed marriage between a man and a woman provides benefits to the couple, to children, and to society at large; unmatched by any other relationship. Heterosexual marriage deserves to be confirmed, encouraged and affirmed, as unique."

Stable marriage upholds for couples, their children and society as a whole an impressive number of positive outcomes. Varying forms of co-habitation have rarely ever been shown to be the functional equivalent to ‘natural’ [or traditional] marriage.

One might well ask, what are the most likely insecurity issues and emotional consequences facing children who have not bonded to their biological mothers or fathers? What kind of future generation will be launched into the world? What kind of risks and penalties will be reflected in society as a whole?

Many of these latter questions have already been surveyed by two major Australian Government sponsored inquiries:

June 1998 –reported in "To Have and To Hold."

and tabled on 29 December 2003, " Every Picture Tells A Story"; this latter document giving rise to the present discussion paper proposing major Family Law Reform focussing on the concept of ‘shared parental responsibility.’

We might well heed one of the strange characteristics of Government policy making, in the words of Henry Hide, that all too often– "Government policies purposely transfer resources from what they know works- the two parent family-to what doesn’t. Success must subsidise failure, not until failure succeeds but until even success is seen to fail."

A Mom and Pop Manifesto; What the Pro-family Movement Wants From Congress; Policy Review, Spring ; 1994


Some of the more contradictory paradoxes of current government policies and welfare practices are the penalties attached to lifestyles we say we value while simultaneously subsidising social pathologies that we, as a community, find distasteful. In spite of the fact that our own PM [in common with Leaders of other industrialised nations] repeatedly affirms that– "….there remains no substitute for the primacy of the family in Australia".

Notwithstanding, Government does very little to encourage marriage education and this is in spite of and in the face of, documented links between the breakdown of marriage [and family structure] and rising rates of crime and violence across the nation. (documented in –To have and to hold in 1998) On its own the economic cost of divorce to the Australian community is typified by a staggering cost penalty exceeding $3500 million each year. Furthermore, divorce continues to be an easy option as any notion of responsibility for marriage dysfunction is ignored under the ‘no fault’ legislation.

Concerning crime alone typically it is often reported by the Australian Institute of Criminology [Dr. Adam Graycar] costs Australia in excess of a staggering $18,000 million [$2800 for every household in the nation]. Resulting in such newspaper comments as " the breakdown of the traditional family and increasing proportion of single and serially monogamous family units are the main cause of increasing rates of crime and drug use." And further, by Alan Tapper reporting on WA Welfare and Juvenile Crime concluded:- " Family breakdown in the form of divorce and separation is the main cause of the crime wave."

Cited in 1995 in The State of the Nation, Centre for Ind Studies, Barry Maley.

In further reference to– "To have and to hold." – we may conclude that it has become increasingly clear that efforts need to be made to halt the penalties and risks experienced by children as a consequence of easy divorce. Divorces which arise mainly due to poor communication resulting from reduced time for personal relating and intimacy; In particular, as a result of ‘economic conscription’; namely, the necessity for both parents to undertake full time employment. All too often divorce seems to be an alternative to this kind of ’boredom’. Marriages of this kind do not always exhibit persistent conflict or other forms of serious marital disharmony. These marriages, with appropriate help and encouragement, could well be salvaged and children thereby rescued from almost certain economic deprivation and emotional distress; even ultimate risks associated with delinquency.

In "To have and to hold.’ It was reported that less than 1/3rd of divorces have be shown to have been occasioned following ‘high level’ conflict and/ or abuse.

Professors Amarto and Booth here (p.45) comment –"If divorce were limited only to high level conflict marriages, then divorce would generally be in the ‘children’s best interest’. But the fact that one-half of all marriages today end in divorce suggests that this is not the case……..people are leaving marriages at lower thresholds of unhappiness now than in the past……..The outcome for children of divorced parents may be more problematic in the future." Such observations were recognised 10 years ago.

In August last year (Age 10/8/2004) MP Ross Cameron drew public and political attention to the penalties associated with divorce, asking the question- Divorce, can we afford it? His comments related to cost penalties around $15,000 for each household in Australia while the litigants themselves spend on average $20,000. Added to this is the

lion’s share of most of our $ 4 billion welfare expenditure required to support 500,000 plus children in single parent households. Furthermore, there remains the 100 year correlation between family breakdown and crime statistics which latter, according to Dr. Adam Graycar of the Australian Institute of Criminology is an annual $18 billion national penalty. He suggested that for every dollar spent on holding families together $5 to $ 7 could be cut from the crime costs alone.

The prevailing acceptance of easy divorce is not a ‘luxury’ we can continue to afford.

In the great majority of divorces the participants (parents) do not hate each other and usually only one of them has deemed the marriage to have failed. Children from these kinds of (low level conflict) separations ultimately grow into adults suffering increased psychological distress and so often repeat the cycle of unstable marital union themselves or as is more common today, simply avoid marriage altogether. This is now evident in the growing number of de-facto unions and serial cohabitation.#(see note below) Which latter has consistently been shown to be disadvantageous. Even when marriage ultimately occurs it is usually not especially stable and associated with high relative levels of divorce.

Another leading social researcher and former Director of Aust. Inst. of Family Studies- Dr. Don Edgar [p.49 To have and to hold.] also concurs that divorce is particularly damaging in the lives of children.

"Children are better off economically, psychologically, emotionally with both parents.

AND fathers, despite their bad press are an important resource for their children’s well being. Step families are a high risk, even though, financially, children are better off if the custodial parent remarries."

The enormous economical penalties’ accruing from marital breakdown and divorce was clearly acknowledged in 1998 yet there still remains a 1000 fold difference between the economic burden on the Commonwealth relative to the pitifully small contribution made toward preventing marriage breakdown and relationship education. The committee in 1998 recommended that the imbalance needed correction. Here we are in 2005 and well might we declare that the wheels of Government turn ever so slowly.

At least the present proposals have now recognised the need to halt the damage to children resulting from marital dysfunction and breakdown.

# Cohabitation: While some contemporary researchers might affirm that the modern 21st century trend of cohabitation prior to formal (registered marriage) union may well secure eventual stability the records of history do not support this contention. Rather cohabitation leads to persistent insecurity, resulting predominantly from the absence of commitment by at least one of the parties. Features of this kind simply confirm comments documented in To have and to hold. See for instance studies by Prof. Sarantakos, Steven Nock and Brown and Booth.

Yet very little attention is given in support of any educational programs to promote pre-marital preparation or teaching on the benefits of marriage.

Very recently Dr. Mariah Evans and Prof. Jonathan Kelly in analysing a 40,000 participant survey note that the ‘cohabitation experience is not working’. Confirming other studies reported by Maggie Gallagher in "The Abolition of Marriage" –cohabitation is an artificial construct. What lovers do when one of them at least does not care to commit or dare to marry. Then after repeated hurt and lack of trust the very idea of enduring love becomes illusive and increasingly improbable. The TV serialised "Sex in the City" rather than presenting ‘sexual bliss actually reveals repeated hostility between men and women with merely occasional interludes in an unrewarding search for sexual highs. Layers of distrust creating only calloused hearts.

Preserving Marriage: Clearly the stable ‘natural’ family unit is by far the most ‘cost effective institution’ that this Nation of Australia, in common with other industrialised nations, should make every effort to preserve and encourage.

Given the damage divorce causes society– economic penalties and increasing welfare expenditure and increasing levels of crime plus other social disintegrations– government should do everything in its power to preserve, help and encourage strong marriage.

Since the introduction of ‘No-Fault’ divorce in mid 1970’s, marriage in Australia, has progressively been devalued. Declining rates of marriage have ensued in company with escalating rates of divorce.

Marriage per 1000 in 1970 =116…………………….In 2001 = 109

Divorce per 1000 in 1970 = 2.2…………………….In 2001 = 49.9

A better statistic for the latter however, should be the number divorced relative to the 1000 couples remaining married ~14. Comparing the number of divorces relative to marriages in any year gives an entirely false picture.

The drift away from and the consequences of divorce has to be halted. The present discussion paper attempts to focus on one of the major injustices and damaging issues falling upon children and that is, the dominant deprivations resulting from children’s separation from their biological father. Thus the principle of "shared parental responsibility" should provide at least partial remedy for the ever increasing damage resulting from the western world epidemic of "fatherlessness."

One criticism of the discussion paper is the apparent emphasis on or acceptance of divorce rather than a dominant effort to restrict it.

The carnage of divorce:

Conventional wisdom accept the idea that unhappily married couples and their children will be much happier if they separate and arrange an amicable divorce.

Reality however, is that children of divorce are twice as likely as those from intact parents to drop out of school, three times as apt to get pregnant as teenagers, six times as likely to be in poverty and 12 times more likely to be incarcerated. A further and unexpected legacy

of divorce" according to Dr. Judith Wallerstein is that when adult, 2/3rds of these children are themselves unable to form lasting bonds with someone of the opposite sex.

And for the separating adults themselves, there now appears little evidence to support the view that divorce was a good idea.

Divorce is not the solution: Unhappy marriages are not solved by easy ‘no fault’ divorce.

In a wide ranging evaluation from data collected by the National Survey of Family and Households in the US, reported by Karen S. Peterson in USA Today 11 July 2002, putting off getting that divorce study finds that waiting and working it out can pay off.

These kinds of findings were presented in July 2002 in Arlington Va. at the "Smart marriages" conference, sponsored by the Coalition for marriage, Families and Couples Education.

Scott Stanley reported that consistent with other research, affirming efforts to preserve "marital commitment" that, not only does a strong commitment to staying married help couples to avoid divorce but it also helps more couples achieve a happier marriage.

Other results now demonstrate that couples who actually divorced, experienced more conflict while of the order 8 out of 10 couples who opted to pass up on divorce were found to be happily married 5 years after the point of initial crisis. Empirically it was estimated that unhappy spouses who divorced encountered double the degree of conflict and hostility (even violence) than those who remained in a less than satisfactory marriage AND for those who ‘stuck it out’ over a five year period, they now claim to enjoy what they regard as a contented relationship. For children of their unions this kind of ‘restored stability’ is far reaching and beneficial.

Other findings from this National Survey note that 74% of divorces occur between adults who five years before their divorce separation regarded their relationship as happy and contented. The same relative number of couples stated that only one of them was unhappy at the time of their separation.

Furthermore, a staggering 93% of spouses, who did not divorce, reported no significant disharmony or violence in their relationship 5 years after their initial critical period when divorce was initially seen as an option.

This kind of evaluation draws the favourable conclusion that divorce doe not necessarily lead to a happy ending.


Reducing rates of divorce: Efforts to reduce the rates of divorce have been underway in the USA for of the order 5 years. One group is under the leadership Mike Mc Manus {see Marriage Savers by Michael J. McManus}

In 1999 the Governor of Arkansas called for a 50% cut in divorce for his state. This was after he learned of the successes of Marriage Savers led by Mike and Harriet McManus who had helped reduce the divorce rate in Modesto, Calif. by 30 percent and Kansas City, Kan. by 35% in only two years. " I was inspired to invite them to tell their story to people in Arkansas," Governor Huckabee said. "It's time to declare a MARITAL EMERGENCY in Arkansas."

There are now over 24 States in the US proposing and implementing laws to make divorce harder. Florida in particular has introduced extensive marriage education programs (pre and post) focussing particularly upon young people in high school and colleges. This State now boasts that ‘you can’t graduate from high school without first taking a class on marriage and family’.

In Oklahoma some $10M of Federal welfare funding has been directed into programs promoting marriage.

Ohio has introduced a task force on Family Law and Children documenting their study and proposals in Family Law Reform: Minimising Conflict, Maximizing Families.

Another US based group initiated by James Cook (not our 1770 esteemed discoverer) but President of the Joint Custody Association, established in 1979

The Joint Custody Association, originated in 1979 by James Cook, is a non-profit network throughout North America and Western Europe of 3,000 individuals in 43 states and 15 foreign countries:

This network could provide useful material in support and encouragement of the proposals put forward in the discussion paper recommending ‘Shared Parental Responsibility’.

(a) Assessing research and conveying information about joint custody and divorce practices.

(b) Creating and encouraging passage of legislated statutes.

(c) Surveying decrees and their consequences, and

(d) Assisting in the implementation of joint custody.


Professionals (psychologists, psychiatrists, therapists, family law attorneys and social scientists (20%)

Concerned parents, both custodial and non-custodial, of which:

75% are Fathers

25% are Mothers

The Joint Custody Association is concerned with 36 other issues, including:

Child Support Reform

Abuse assessment

Visitation Enforcement

Mediation Practices

Economic Survival

Low-cost adjudication

Unwed Father and unwed mother rights

Standard of living rationale

Cohabitation and premarital agreements

Child Support Accountability

"Best Interests" qualifications

Amnesty for expatriate parents

James Cook was the key initiator and prime mover of California's historic AB1480 (1979), establishing joint custody and enacted by the California legislature.

Since then, Cook has authored material used in legislative debates in 40 other state capitols. He has been on-hand, providing testimony, at legislative hearings on these issues in over 35 state capitols and Canadian and western European cities, as well as Congressional hearings regarding child support.

Cook is the author of "Joint Custody, Sole Custody: A New Statute Reflects a New Perspective" (Conciliation Courts Review, Volume 18, No. 1, June 1980).

He is also cited in:

Sharing Parenthood After Divorce, Ciji Ware, Viking Press

Joint Custody & Shared Parenting, Jay Folberg, BNA Books

How to Forgive Your Ex-Husband & Get On With Your Life, Marcia Wootman, Warner Books

Fathers' Rights, Jon Conine, Walker & Company

Weekend Fathers, Gerald Silver, Stratford

Divorce Book for Parents, Vicky Lansky, New American Library

Help for Children from Infancy to Adulthood, Miriam J. Williams Wilson, Rocky River Publ.

The Divorce Lawyers, Emily Couric, St. Martin's Press, and others.

In the US the general consensus is that it now makes political, as well as sociological, sense to reduce the carnage of divorce. Even good enough marriages provide better outcomes for children, women and men when compared with the innumerable (and costly) problems resulting from divorce.

Fatherlessness: Since World war 11 the Western World has stealthily been overtaken by "Fatherless Generations" A term widely adopted by sociologists for our modern, post war and ‘baby boom’ generations. Yet within each persons heart remains a hunger for an earthly father; a craving for security and comfort which seemingly, only a father can provide. The absence of or inadequate relationship with any person’s biological father is now known to have a striking impact on personal development and relationship development and respect for, the opposite sex.

One group of social scientists (Biller & Kimpton, 1997; Blankenhorn, 1995; Popenoe, 1996) propose that the roots of a wide range of social problems (i. e. child poverty, urban decay, societal violence, teenage pregnancy, and poor school performance) can be traced to the absence of fathers in the lives of their children. Biller & Kimpton (1997, p. 147) have even used the term "paternal deprivation" in a manner parallel to Bowlby's 1951 concept of maternal deprivation. These authors define mothering and fathering as distinct social roles that are not interchangeable. Marriage is seen as the social institution within which responsible fathering and positive child adjustment are most likely to occur. Fathers are understood as having a unique and essential role to play in child development, especially for boys who need a male role model in order to establish a masculine gender.

Biller, H. B. & Kimpton, J. L. (1997). The father and the school-aged child. In M. E. Lamb (Ed.) The role of the father in child development. Third Edition (pp. 143-161). New York: John Wiley & Sons, Inc.

Blankenhorn, D. (1995). Fatherless America: Confronting our most urgent social problem. New York: Basic Books.

Popenoe, D. (1996). Life without father. New York: Martin Pressler Press.

Bowlby, J. (1951). Maternal care and mental health. Geneva: World Health Organization.

Fathers you see are important! — to their wives — to their children — to the community.

In a community deprived of effective fathers and father relationships:–

The gaols remain full.

Local CIB units remain fully employed and the courts kept busy.

The war on drugs and alcohol abuse is extended.

Eating disorders, compulsive dieting, anorexia and bolimia are aggravated.

Single parent and child poverty expands.

Child abuse and sexual crimes persist.

Promiscuity , STD’s (AIDS), pre-nuptial pregnancy and abortion remain problems.

Recruiting table top dancers, strippers and prostitutes is made easier.

Homosexual (gay and lesbian) distress continues to expand.

Levels of domestic violence increase

A new generation of assertive women arise and take charge of the void created by renegade, violent or passive men.

In short fatherlessness lies at the root cause of present day social unrest; declining child well being, the source of much of the anger, violent crime and aimless insecurity expressed in the lives of the sub 25 generation X.

Fathers ARE important!

Effective fathers hold in their hands and lives, the responsibility for, and capacity to, enrich, guide and guard, the lives of their children, now and in the future. These fathers provide:–

Physical and emotional protection and security.

Love and nurturance

Material resources.

Cultural and gender transmission; enriching identity, personal worth and competence. ( Helping and encouraging girls to express their femininity and boys their masculinity)

All too often, in Australia, it is a wife and mother who initiates the dissolution of the marriage contract. Mutual responsibility for the further up-bringing of the children of the union is not always adjudicated fairly. In the great majority of cases, disputation over custody finds in favour of the mother. Increasing numbers of children thus become effectively fatherless.

In Australia it is estimated that some 23 per cent of all children live in single parent families and 90% of these are mother headed households. A further sad thing is that under Australia’s current family law system children continue to lose access to their father.

In generations past fatherlessness generally resulted only from paternal death. Today it seems more often to occur as a result of choice or legal directive. Ultimately leading to emotional ‘father hunger’ in children and increasing numbers of rejected and rebellious men.

The concept of ‘shared parental responsibility’ proposed in the ‘discussion paper’ where an agreed mutual divorce has been decreed, should at least encourage continual father– child relating. Many of the potential risks and penalties arising from fatherlessness should thereby be alleviated.

In whose best interest?

In situations of a divorce due to high level conflict the concept of ‘shared parental responsibility’ may well be fraught with not a few difficulties. Not the least of which, under ‘no fault judgement’, is that no guidelines are provided to determine or required to prove, evidence of high level conflict or abuse.

In situations where persistent child abuse has been prevalent- who is to blame and how is this to be determined and what remedies are to be put into place to overcome this?

Very often a father, when a divorce is granted, to is called upon to finance ‘in the best interest of his child/ren’ and surrender custodial rights to their mother. He is thus deprived access to his children even when he does not seek a divorce.

Under existing ‘no fault’ separation legislation the one making the unilateral appeal for divorce and seeking to abdicate from marital union is not necessarily judged as forfeiting any right or role to further parent their child/ren.

Under present "Family Law" the same ‘Judge’ who decides firstly in favour of a divorce is then called upon to determine what is ‘in the best interest of children’. Yet already he has inflicted upon them the break up of a once secure family. These children are thereby hurt.

Duration and kinds of parental access to children may necessarily need to be differentially determined according to the chronological age and sex, of the children. Father impact and need, oftentimes becomes greater in the teen years. In the longer term ‘the best interest of a child’ may not be served, even where the father may have been the instigator of forms of child abuse.

How and by whom, are the ‘best interests of a child’ to be determined both initially and at different age levels?

Different kinds of shared parenting schedules need to be negotiated according to the age sex and needs, of children.

How are children’s opinions to be determined both initially and over the ‘long haul’?

Geographical separation is another significant situation that has to be accommodated.

How are any subsequent step-parenting situations to be mediated? OR other kinds of de-facto coupling? Statistically children are not well served within so called blended families. How would children’s opinions be assessed and by whom?

What kind of adverse conflicts would determine when grand-parents become responsible for children? Which set of grand-parents the wife’s or husband’s and what about differences between and circumstances of each set of grand-parents?

What kind of welfare assistance might be extended to grand-parents caring for their children’s children?

These kinds of circumstances and conflicts can be multiplied many times over.

Issues of this kind moreover, need to be brought to the attention of parents contemplating divorce- by legal mandate if necessary.

Other questions relating to divorce reform and parental custody have been extensively outlined in a paper by Dr. Steven Baskerville, ‘Strengthening Marriage Through Divorce and Custody Reform.’ The Family In America-Vol. 18 No. 05; May 2004.

See http://profam.org/pub/fia_1805.htm


Steven Baskerville raises many significant questions concerning the way funds in support of custody reform are to be applied and the need to avoid creating yet another expensive bureaucracy exploiting the breakdown of marriage and family rather than effort to strengthen them and reduce the penalties and hazards to society linked to divorce.

For instance Steven Baskerville has noted that only one-quarter of the funds are actually targeted at improving marriages. The remaining amount goes to child support enforcement programs, designed to wring more money out of the pockets of low-income, unemployed fathers. http://users.rcn.com/baskerville/gov_as_family_therapist.htm

See also http://www.stephenbaskerville.net/

Stephen Baskerville holds a PhD from the London School of Economics and teaches political science at Howard University in Washington, DC.

He is an advisor to the American Coalition for Fathers and Children and the Men’s Health Network and spokesman for Men, Fathers, and Children, International, a coalition of 12 fatherhood organizations from 9 countries.

NB. Also http://www.familylawreform.org/

States With Joint Custody Presumption Laws In The U.S.