Think of the children - custody patterns after separation
July 11, 2004
A new study of custody patterns after separation shows that most parents have no idea what to expect, or even what's possible. Claire Halliday looks at the three most typical scenarios and finds it's not all darkness.
Every year, 50,000 Australian marriages end in divorce. Every year, about half of those divorces involve couples with children under the age of 18. And every year, a staggering number of those children find themselves ducking for cover amid the emotional fallout that almost inevitably follows a marriage breakdown.
With divorce so much a feature of modern life and with so many children at risk of emotional and psychological scarring from their parents' trauma, it's a wonder we are still so lacking in strategies to deal with it. But divorce and its parenting aftermath are at last on the agenda, as the Howard Government's investigation 18 months ago into the question of joint custody for separating parents showed. However, the path ahead is still unclear.
When Every Picture Tells a Story, the report that resulted from that inquiry, was released last December, its recommendations shied away from shared custody (in which children would reside with both parents on a 50-50 basis unless it could be shown that they would be at risk in such an arrangement). Instead, the report recommended a three-pronged approach to parenting after divorce: a starting point of "shared parenting"; a less adversarial family law system; and, the most radical element, the establishment of a tribunal with the power to hear and make decisions related to parenting disputes.
Some practical ground rules are all well and good, says Relationships Australia mediation counsellor Tony Gee, but the most important factor in shepherding vulnerable children through a "successful" divorce is how the parents deal with it between themselves. "It's absolutely clear that ongoing conflict is damaging for kids," Gee says. "Parents can really wage war on each other, and if children are living in a war zone they can't get emotional or psychological stability."
Unfortunately for many children, living in such war-zones is an everyday reality. According to a research paper just released by the Australian Institute of Family Studies, only one-third of the 1000 separated and divorced parents interviewed claimed there was "little or no conflict" in the aftermath of their failed relationships.
According to Tony Gee, "50 per cent of all separating couples get through their custody disputes pretty much by themselves, or with just a bit of help from mediation counsellors and lawyers. The other 50 per cent put in applications to the Family Court but only about 5 per cent of these actually go through the whole Family Court process."
What follows are three case studies of couples who have followed typical paths through the minefield of custody and property disputes post-relationship.
THE FAMILY COURT
There is a right way to do things when it comes to custody issues, says Jason Clarke, and a wrong way. The right way is for both parents to get along and work for the best interests of the children. The wrong way, he knows through bitter experience, is to allow anger to take over.
Jason and his wife Jenny (not their real names) divorced three years ago, after a one-year separation, when their daughter Hannah (not her real name) was four. Their relationship became increasingly bitter and ended up in the Family Court. "I didn't handle it very well," 41-year-old Jason, a retail manager, admits. He spent, he says, about $40,000 in legal fees connected with Family Court appearances. "Now I only see Hannah one weekend every month."
He and Jenny, 38, a sales assistant, met 11 years go. Two years later, they were married. A year after that, Hannah, now eight, was born. "I probably wasn't always the best dad," Jason says. "It was Jenny who got up in the middle of the night, even when Hannah stopped drinking the breast milk and went to formula. There was probably more time I could have spent with her."
To hear him speak of his daughter and these mundane missed moments of 4am feeds and nappy changes is painful.
"It really hurts," he says. "I have a child and I hardly ever see her. I miss out on all those little after-school stories. You know, the little stuff that happens with her friends. The little things that she thinks are funny when she's watching TV in the morning. I miss a lot of those little moments. I just miss her."
According to Jason, Hannah misses him too. Ask Hannah's mother, though, and she'll tell you that Hannah is "doing just fine" without her father.I'd have to sit there in this room and try to talk to Hannah. There was this woman just hovering round the whole time. I felt like I was a pedophile or something. Like I couldn't be trusted with my own daughter."
Jason Clarke, divorced father
It was Jenny who wanted to leave the marriage. "I just wanted a better life and that couldn't happen while I was with Jason," she says. "It was that classic growing apart stuff. I wanted to do things with my life - like build a better career and go back to study - and Jason never really encouraged it. He was happy with the status quo. It was like he was scared of me reaching my full potential in case he got left behind."
At first, she says, she wanted Hannah and Jason to be in regular contact and was considering something close to 50-50 custody. Hannah was at kindergarten when Jason moved out of the family home in Highett and into a nearby rental apartment, at Jenny's insistence, to ensure that parenting could be done together without the added stress of travelling across town.
What happened next, Jenny says, is that Jason's hatred of her took over.
"The first few months were OK - we even went out to dinner together for Hannah's fifth birthday. Then I started seeing someone else and everything changed."
Jenny is now married to that man, and pregnant with a second child, and has come to believe the wounds between her and Jason will never heal.
The "snipey comments" made by Jason in front of Hannah escalated into verbal abuse and swearing. In retaliation, she threatened to withdraw access to their daughter. "I was worried about what all the anger was doing to Hannah at the time," she says. "He'd be swearing at me when I dropped her off there and she just had this really confused look. She started talking about 'ignoring Daddy when he was rude to Mummy' and I realised she was having to make all these sort of censorship decisions that a little girl shouldn't have to make. He couldn't see past his own hatred for me because I'd left him to see that he was doing her damage.
"I just wanted it all to stop and the only way I could do that was to stop him seeing her. Once he was really goading me and making comments about my partner and he was telling me to f-- off, right in front of Hannah. I told him that if he spoke like that one more time I would stop him from seeing Hannah. He stood there and just said it again. I made an appointment with a solicitor the next morning. Then everything just snowballed."
That was the point at which Jenny and Jason became another statistic - they joined the ranks of the estimated 5 per cent of separated or divorced parents for whom mediation and resolution seems impossible without legal intervention.
Jenny never meant to end up in the Family Court, she says. She admits that her own anger took over, and that revenge against Jason was a key motivator in fighting custody over Hannah. But what followed was a three-year blur of applications and intervention orders and court appearances that culminated in Jenny being awarded major custody of Hannah with Jason only allowed to have access to her once a month.
Throughout the process, whatever relationship was left between them disintegrated to the point where even handover of their child became a battlefield. Changeover periods, the Family Court decreed, were to be overseen by one of four formal handover centres operating in Melbourne, places Jason describes bitterly as being "like McDonald's drive-thru for parents".
Every fourth Saturday, Jenny would drive Hannah to the changeover centre and leave. Fifteen minutes later, Jason would arrive at the opposite end of the building and enter for a supervised two-hour visit with his daughter.
"I'd have to sit there in this room, like a lounge room, and try to talk to Hannah," he says. "There was this woman just hovering round the whole time. I felt like I was a pedophile or something. Like I couldn't be trusted with my own daughter."
That lasted seven months. It's a time frame that is quite typical, says Wendy Frayne, co-ordinator of Gordon Care's Mentone Contact Service. "It's only meant to be a short-term solution while parents are dealing with conflict around custody and separation. Most people use us for 6-12 months until other arrangements are worked out. It's just a way of minimising the contact between volatile parents so that the children don't have to witness their parents fighting every time they go between one and the other."
That women like Jenny believe a child needs its mother more than its father ("because," she says, "a mother can give children a type of love that they just instinctively crave") is something that riles a growing number of fathers. Support groups opposed to the assumption that children of separation should spend 80 per cent of their time with their mothers and just 20 per cent with their fathers are growing. One such group is Fathers 4 Justice, which had its beginnings in the UK but has recently launched an Australian chapter, based in Queensland under co-ordinator Trevor Arthurson.
Arthurson has himself been through the Family Court system and says that the 300-strong local membership is growing every day. "When a mother assumes custody of a child, that's considered normal," he says, "and when a father assumes custody it's called abduction."
The group's most recent local protest on Australia Day - "we sent the Prime Minister the shirts off our backs" - received little media attention but there are, Arthurson says, other plans brewing.
The desired outcome, he says, is for the Government to legislate 50- 50 custody as the presumed starting point, with logistics to be worked out on a case-by-case basis. Without that, he says, fathers cannot be said to be treated equally by the Family Court system.
"Nobody wants to legislate it for everyone, it wouldn't work. We want it as a starting point so that both parties can enter mediation on an equal footing. There's dads out there who just want a chance to be better dads."
Jason Clarke says he wants that too. He knows he has made mistakes but now feels stymied by a system that won't let him forget it. But to change the arrangement that was established on the basis of past behaviour would mean another court battle that he simply can't afford.
"I dealt with all this really badly and I guess I've lost my daughter," he says. "We still have great times together - we've stopped the handover centre thing and I have her for weekends at my place - but still, how can you get close to someone when you hardly see them?"
THE POWER OF MEDIATION
For Karen and Steve Taylor (not their real names), both 29, it was mediation that saved them from custody dispute disaster. Separated six months ago after a five-year de facto marriage that produced two children - Ebony, 4, and Riley, 2 (not their real names) - Karen and Steve feel that they still have a long way to go but that they are, at least, on a path to better communication.
Both IT professionals living in the eastern suburbs, the former couple found a private mediation counsellor in the Yellow Pages, and their sessions have, they believe, helped them reach a point where the emotion has waned, allowing them to parent more effectively.
For them, custody was always going to be an equal dynamic. But then the arguments started. Breaking up, Karen says, was due to a combination of "growing up and falling out of love", but parenting, they realised, needed to go on forever.
"At least we both realised that, but things have really only been going OK for the last few weeks," she says.
Before the two sessions of mediation, Karen says, meeting her former partner twice a week for the handover of their children was a time fraught with raw anger and bitter words. "There wasn't one of us who wanted out of the relationship more than the other - there was no third party involved - so it seemed like we were just both being irrationally angry with each other because we didn't make this thing between us work," she says.
Mediation helped her and Steve to find a way to discuss those issues in a space clearly removed from the children. "The counsellor helped us understand what we already really knew: that we were only making the kids' lives hard by fighting in front of them," Steve says. "He didn't tell us to just stop the anger - that would have been unnatural - but he told us how to manage it and recognise who it was directed towards.
"He told us what it was like for the children to see us fighting and it just woke us up. There's always time to have space away from them if we have something to say to each other. By that time, the initial anger has usually calmed down a bit anyway. We can both be more rational."
Although Karen concedes it's a fluid process, she believes things have reached a point of amicability now. "We are at the point where I can drop the kids around to his flat and just give him their bags and tell him whether they need a nappy change or a snack or something and he can just say 'Thanks', and if there's other stuff that we need to talk about - there are a lot of financial things to work out between us with the house and some joint investments - we make sure we do it in when the kids are asleep or when they're at creche."
Mediation was Steve's idea and something Karen initially railed against. "I think I wanted to pretend that we were really cool and smart and could handle all this stuff without telling someone else about it," she says. "I'm a fairly private person when it comes to things like this. The fact that we had to sort it out professionally felt like we'd failed again."
For Steve, though, it was a logical move. "My parents got divorced when I was in my last year of primary school and those memories of them just at each other were something I didn't want for Riley and Ebony. Mediation wasn't around much then, but I wish it had been.
"I'm not blaming Karen for being the bad one here - we've both made really bad mistakes - but I just want to stop it before it gets out of hand. It seems so easy to let these things get out of control and then I don't know how you ever get back on track."
The two have made a private agreement to minimise any official legal involvement in their disputes, and are looking to a future that, Steve says, "will be up and down but hopefully end up in the right place".
Currently, he has the children two nights every week and an extra night per fortnight. It's an arrangement they both say they would like to maintain.
"It will be hard work to make it work properly," Steve says. "I think for custody to work there has to be a hell of a lot of compromise and it's things you don't even really think about until you've lived it. We're already planning where the kids are going to go to school and who will be doing drop-offs and pick-ups.
"For it to work best we've agreed to be within three suburbs of each other, and to make that sort of commitment is obviously going to have an impact down the track. It changes all those dreams you have about maybe moving cities one day or living overseas. All that stuff has to really go out the window. It would be much easier to be together but if you're not happy, what are you meant to do?
"Hopefully, if we do this right, the kids are young enough that they will just grow up thinking living between two houses is normal. My parents did it pretty badly and I don't want that. I don't want the kids to see us fight any more. I figure that if we can just tell them that Mummy and Daddy still really love them and we really show that to them, then it will be OK."
Even with such a positive view to the future, Karen says there will still be a cost. "Ebony got really upset the other day when I told her she was going to her Dad's for sleepovers," she says. "She was helping me pack her little backpack and we were putting in her teddy bear and her pyjamas and her slippers and then she just started crying. I said, 'What's wrong, sweetie?' and she just said 'I want to pack you to Daddy's too'.
"Even when you get along and you think you're starting to do everything OK, you can forget that you're still dealing with little kids who don't really understand why their mum and dad aren't in the same house any more. She's got everything on a timeline now - she remembers things that have happened in the past as being 'when Daddy and you were still friends'. That just breaks my heart."
THE AMICABLE ARRANGEMENT
"People look at me like I've got two heads when I tell them we get along," says Sue Cerantonio of her exceptionally amicable relationship with former husband Lou.
Separated since 1991 after a marriage that began a decade earlier, the Cerantonios know they are the exceptions to a tragic rule. But in sons Anthony, 17, and Matthew, 15, they have the proof that it can work. Growing up between two homes seems to have had little impact on the boys.
"I guess it's because we were so little when Mum and Dad split up," says Anthony. "And the way they just get along so well. Every second mate has parents who are splitting up but they all seem to fight. It's not like it is in our family. I think it's helped us heaps."
Sitting together in Lou's spacious Newport home, a first glance at this foursome would never conjure up the notion of divorce. Instead, with their relaxed ways and ready smiles, they seem the essence of a family united. "Sue was my best buddy and still is," says Lou, 44, an entertainment manager at Crown Casino.
So why aren't they together? "It was probably more my fault," says Lou. "When I got married I was 21 and Sue was 23. I thought I knew what love was. I'd never been in love before. I got confused about what love was and what friendship was. There was slightly somebody else involved but that didn't really formulate until after we separated. But it sort of woke me up to the fact about what my feelings for Sue were.
"It's not like we fought or anything. We weren't that sort of couple. We've never been like that in front of the kids. The house was always peaceful. It was more a case of 'I shouldn't be here because I'm not in love with this person'. I just told her that I had to go."
For Sue, a 47-year-old receptionist who admits to "thinking that we would be together forever", there was initially anger. "I was upset. I had two small babies at the time. I think it was more a security thing. I guess I thought we could still work it out and then I finally worked out that it wasn't going to happen. I was bitter. Not to the extent where I took it out on the children, or on Lou - I would never do that. I just thought through it myself. It took me a while but I did it. I just realised that, yes, we weren't the same."
Throughout this early confusion, Sue and Lou resolved to keep their problems away from the boys. "The day that I brought it to boiling point and said everything I felt, we pretty much made some great pacts there and then," says Lou. "If we had some arguments or something to say to each other we decided we'd always say it away from the boys and never in front of the boys or to the boys, and we made a pact in relation to me having the boys every fortnight. Sue's always said I could have the boys whenever I like, though. There's never been a golden rule that I could only have them on set days and times.
"I knew we were lucky being able to do that. My brother had divorced before me and I saw what he went through and it was just horrible. He never even saw his daughter from about the age of 10. He still hasn't really seen her and she's now 26. I didn't want that. I wanted to maintain a friendship with Sue and still maintain the family feeling for the boys. No matter what we were doing, that was always a priority."
In the financial settlement, it was agreed that Sue would take the house and the car. "I left with my clothes and essentials, and that was it," says Lou. "Maintenance was agreed upon and it's been maintained the whole way through. It's always been happy."
Lou isn't ashamed to admit that, in those younger days when he was still working as a nightclub manager before taking on his position at Crown seven years ago, taking his children every fortnight was more a duty than a pleasure.
"I was brought up in an Italian family and Dad used to work six or seven days a week so I never really saw him as a friend. I had absolutely no idea how to be a father," he says.
For Sue, the fortnightly break gave her a wellearned rest and the chance to pursue her own social life. But at first, the relaxation was tempered with concerns about her boys.
"I did worry because I knew that Lou wasn't really great at the parenting. I always had a really strict routine with the boys in terms of what time they went to bed and the fact that I never let them eat junk food. I wasn't sure how Lou would go by himself at first."
YOU ARE NOT ALONEThe unexpectedness of her situation was something that Sue struggled with in the early days. "There weren't many people we knew at that stage who were separated or divorced so I never really talked about it much. Then I did start to meet people at school who had been through it too and I just tended to relax about it a bit more."
Finding help can be difficult but there are a variety of organisations and private psychologists who can offer help with mediation counselling on custody issues.
Check the Yellow Pages under "counselling". - Anglicare Victoria offers parenting workshops and mediation counselling for couples. There is no charge for its mediation services. Tel: 9321 6133
- Relationships Australia offers workshops and mediation counselling for couples dealing with custody issues - either as couple-only counselling, or with children (age depending) included. Fees are income-based: $1.20 per hour per $1000 of gross income. Tel: 9835 7570
- The Shared Parenting Council of Australia can offer advice and links to single-parent support groups in your area. Details at www.spca.org.au
As the boys have grown into adolescence, their bonding with their father has reached a new level, and now the informal custody arrangements the former couple have lived by mean that Anthony and Matthew are often with Lou several weekends in a row.
Teething problems, says Sue, have been minimal. "One thing that does happen is that the boys play us off one against the other. They come to you when they want to do something and tell you that the other one said they can do it. Then Lou and I talk about it and find out they are just trying it on."
Even the introduction of partners along the way (Lou was married for 11 months in 1995) has been relatively smooth. "Whichever partner or friend we have at the time has always been welcomed by both Sue and I," Lou says. "Sue would come out and kiss my partner on both cheeks and my partner would be like, 'Jesus', because it wasn't what they expected from an ex-wife. But if they can't handle it, that's their problem. It's best for the boys that Sue and I can be so friendly. That's what's always been important."
Sue's long-term partner lives with her and the boys at Taylors Lake and from Lou, he gets nothing but praise. "He's a chiropractor and he cracks my back for me," he laughs. "We are unusual but I'm glad. I think the boys have turned out so well because of the way we've been. It's too bad other parents can't do it this way too."