8th April 2014

ATTENTION:

MEMBERS OF THE AUSTRALIAN COMMONWEALTH PARLIAMENT

Please take the time to read this letter and you will get an understanding of what ordinary citizens of the Commonwealth are being subjected to through our legal and justice system.

The citizens of the Commonwealth of Australia have had more than enough of the corruption and collusion resonating from our Judicial system.  It is time that members of the Federal Parliament of Australia stepped up to the mark, stopped playing games with the lives of ordinary citizens of the Commonwealth of Australia, grew a backbone and honoured their commitment to serving the citizens of this country.

It is time that there was an investigation involving the corrupt activities of the Family Court of Australia its associated agencies, State Courts and the sexual abuse of children in their jurisdiction.  As an Ordained Christian Minister and a Social Justice and Human Rights Advocate I appeal to your moral decency to pay immediate attention to this matter.

As a community leader I present my case to you on behalf of some very respectable but angry citizens who have had more than enough of the unlawfulness and corruptness resonating from the Family Court of Australia and its associated agencies.  I have a wealth of experience and expertise in fighting corruption and of exposing the corrupt and I am not afraid of stepping up to the mark when it comes to naming and shaming paedophiles and those associated with their factions, particularly as it relates to the judicial system and other high profile offices.

In recent decades the Family Court and State Courts have been responsible for routinely removing young children from their protective environments and placing them in environments that are abusive and into the hands of paedophiles and their networks.  Legal teams, independent solicitors and independent psychiatrists have all contributed to this unlawful result through their gutless actions of playing along with the ‘Family Law Game’ and ruining the lives of many Australians.

These parasites have exploited the Family Court system in order to satisfy their overwhelming greed for personal gain and sadly at the expense of an abysmal outcome for the children and their families.

All of the decisions and actions by the Court are couched in legalese that makes it virtually impossible for the ordinary parent to comprehend.  It is certainly unacceptable to the Australia community to force contact between an abused child or children and their rapist.

Within the Family Court and State Court system we have ‘controversial’ mental health experts such as psychologists and psychiatrists who wield the power to change and determine the course of the case.  These so called professionals make custody recommendations in horribly biased and unscientific ways.

These so called experts are rarely seen working outside the Family Court System, however inside the Court they do not hesitate to unlawfully and unethically label a parent who reports sex abuse of a child as a fabricator or a parental alienator and to slap a personality disorder on them, or worse still, taking away the parent’s rights of the child or children.

Child protection agencies that are supposed to protect and have the children’s welfare at heart have become so powerful that they can derail almost any child sex abuse case into an attack on the parent they don’t like or believe.  This behavior is outrageous!

This highlights the fact that lawyers especially appointed to protect children’s interests in Court abuse their role and authority to influence the outcome and they get away with it.  Most independent lawyers have not met let alone had any interaction with the child or children they are supposed to be representing and they take on the agenda of the court, siding with the abuser and ultimately do not represent the child or children’s best interests.

Importantly and most significantly this illustrates how corrupt Judges have allowed all this to occur while presiding over a system that all too often has forgotten to act like a Justice System, usurping and derailing cases with their so called judicial powers and corruptly handing down unlawful decisions that are nothing more than a Judge’s decision based upon a lie.  Their actions and decisions are couched in legalese, making it virtually impossible for any parent to understand.

Our Family Court and State Court System as it currently stands is not a safe place to send children who have been sexually abused and neither is it a place to send parents who care about their children.  Until the system is reformed and rethought at every level and judges and magistrates investigated and prosecuted our Court System will remain an unsafe environment, malfunctioning dangerously and betraying its critical tasks.

It has been my experience and of research into the Family Court practices involving sexual abuse that the Family Court System actually places children being sexually abused by a parent back into the abusive parents care.  This is due to the protecting parent making the claim in the first place and is thus stigmatized.

These protective parents have as a result of their speaking out, been given inexplicable punishment and whose only crime if one could call it that was to try and protect the child or children from sexual abuse. Again I say that it is certainly unacceptable to the Australia community to force contact between an abused child or children and their rapist.

It has been my experience that in dealing with the Court system in both Commonwealth and State that its officers are not applying the law as the legislature intended and are in fact fabricating to clients to justify their position using such tactics as administrative obstructionism in an attempt to detract clients from pursuing their case.  This includes the refusal to file a client’s documents in the court, a right citizens of the Commonwealth of Australia are freely entitled to.

Our government is permitting courts to prohibit decent parents from utilizing the services of independent, unbiased expert witnesses.  Instead they compel the exclusive use of the court appointed and favourite corrupt compliant and lying psychiatrists, lawyers and social workers to provide their evidence instead and so the court gets the result it wants.

These parasites ignore and even deny the facts to falsely accuse decent parents of misconduct or mental health issues and in doing so are negligent in identifying child abusers.  It is also important to note here that what they say is accepted by the judge without question.

Not one of these corrupt parasites is concerned for the welfare of the children otherwise justice would have been accomplished.  These corrupt judges unlawfully place gag orders on parents, in order to protect their own vested interest and this is in breach of the constitution and before due process has taken place.  These Judges and officers of the Family Court have no moral conscience.  Not everything in this world is about ‘power, control and money.’

Court Orders restraining parents from making complaints to persons or agencies (i.e. government bodies such as the police and DOC’s, medical practitioners, religious institutions etc) in relation to the abuse of their children is a common tactic used.

It is obvious that no court can make such an order, preventing a criminal enquiry by police. This is a clear breach of the fundamentals of our legal system.  Police have a clear duty to investigate crime, including child abuse without any interference. No court may interfere or tell police what to conclude, especially before any investigation is conducted.   However, Police are running scared cowering in submission of the Court!   They are puppets for the buffoons they report to.

Additionally, NO Federal Court has authority under the Constitution to make orders affecting a State department unless the Constitution specifically names that department as falling under Federal jurisdiction.   And only Australian Federal police do come under that jurisdiction.

These illegal, corrupt “orders” are designed to prevent reporting of child abuse, using tame or corrupt solicitors working in the family law area and State children’s courts.

These solicitors place enormous pressure on a parent to “agree” to so-called “Consent Orders”, often lying to them, saying that they have a poor case and coerce them into complying otherwise they are told that will lose their children and be put in jail. They are often told that the time to get the truth out to save a child is six months after that child has been taken.  However, by then it is too late.

These so-called “Consent Orders”, based on a lie and duress, are catastrophic to the parent’s legal position.  They are told by lawyers that if they do not consent, they would have the child or children taken from them or the possibility of being put in jail.  I have now come to understand that this is a common trick and tactic to mislead a parent, and always later of course denied.   Subsequently, without any evidence having been filed in court, and before due process of law had taken place both constitutional and human rights along with the children’s constitutional and human rights have been violated.  Parents are then told, “Well, you agreed.”  They are bullied under duress.  This is exactly what I have personally experienced and have been dealing with numerous cases just like this.  We have the evidence!

Australians are entitled to free speech and, under International Law, Freedom of Association. These are fundamental Rights. Our Constitution forbids any interference with religious practice and the Commonwealth may make no Laws about that.  Therefore no court may interfere with that Right.

All of this order as mentioned above is beyond the power of this or any other court to make it is illegal and is of no effect.

The sheer absurdity and inevitable result of this so called “Order” is that it prevents authorities being informed of anything, even advising them of a murder or, the sexual abuse of children and the order attempts to silence parents ILLEGALLY.

These are illegal “Orders” designed to protect paedophiles from being reported, which is ILLEGAL.  And who’s responsible for placing these orders?  Guess who?

Governments are appointing many unsuitable people as Judges and Magistrates and it is evidently clear that the appointments are inappropriate.

Judicial corruption, using convenient rules, excluding of evidence, whilst bribery is rife and obnoxious and totally illegal Orders like the ones mentioned above appear often, with the result in protecting paedophiles. One must ask the question: “What kind of judge would make such underhanded, devious and illegal orders?”

Section 75 of our National Constitution was deliberately created to provide a solution to the above issues.  At that time, our first Prime Minister Andrew Barton QC, answered a question about section 75, saying:

“It may not strictly be necessary, but it may prevent a great evil.”  We need this section to be obeyed.”

Section 75 of our Constitution is there to enable any person to enlist High Court help to prevent corruption, without any preliminaries such as appeals in other courts, but three High Court Judges have recently defied the Constitution and refused to allow these special Writs to be filed when other judges are the respondents.

The High Court, Full Court will now have to find three of its own in Contempt of our Constitution for protecting paedophiles and corrupt judges in lower courts.

At issue are sexually abused and brutalised children. The courts under review ignored the facts, refused to protect the children and assisted the child abusers. There needs to be harsher penalties for people in such high profile positions who abuse their power.

The Family court has for more than a decade been legislatively prohibited (by Section 66E of the Family Law Act) from making child maintenance orders, but nevertheless continues to illegally make such orders for excessive and illegal ‘future’ liabilities.

I am aware of a case where the father payer was unusually successful in his appeal to SSAT arising out of CSA Officers unlawful change of his child support calculations from Taxable Income Assessment to 6A administration that had no legal or factual cause for change.

Although this was obvious from Case Officer level and throughout the ‘objections’ processes CSA Officers stubbornly held out to the wrongful decision as they serially do.  As a result of their unlawful actions the father payer was forced to appeal their decision to SSAT and was successful.

By unlawfully and knowingly overcharging the father payer, CSA officers have used the Commonwealth Government system to transfer the overcharge unlawfully to the mother who was not entitled to that money.

This is a clear case of fraud yet the Australian Federal Police Commissioner refuses to deal with the matter and continually sweeps it under the carpet.

Upon the fathers successful outcome at the Social Security Appeals Tribunal the debt became immediately and wholly payable on the tribunal decision. However, the Commonwealth refuses to pay back the remainder of the debt.

Serving Police Officers have as part of their job description a legal obligation to uphold the law and protect the community and this includes investigating criminal activities involving child sexual abuse, particularly in the light where judges are acting illegal and they cannot be allowed to pervert the course of justice by stopping criminal investigations with their unlawful orders.  However, the police are running scared of the court and comply with what they are asked to do, cowering in submission to the court.  This illustrates further corruption.

The Family Court has zero jurisdiction to make an order prohibiting anyone from reporting a crime.  It is infamous for such conduct to occur.

Yet I know of a case where it has made an order purporting to prohibit a father from reporting crimes of child sexual abuse to police. The police have been hoodwinked by the Family Court and are running scared because of Orders such as outlined above.  They don’t know their own job requirements.  These are two different jurisdictions and each has its own requirements set out in legislation.  Police investigate crime and bring the offenders before the court.

I have attempted to inform relevant police personnel to see sense over the following and take action, but I have been hampered by the legally under educated buffoons who populate that department.

These Judges and officers of the Family Court are definitely not sovereign upholders of our law and constitution. They have been so acquainted with derailing and usurping the law with their so called Judicial power that they have no accountability or watch dog to bring them to account and consequently they leave families and children decimated while letting the perpetrators go free.

These Judges and Officers of the Court have no sense of reality for those that have had their children unlawfully taken from them. Interestingly enough Judges are knowingly placing children into the care of abusing parents or guardians.  This is a well-known fact and nobody is prepared to do anything about it!  Sending Children back to their rapist!

This is not only criminal it is evil and I believe that paedophilia is alive and well within the Court System just as it is in Australia today.

Interestingly enough if a parent pushes too hard in court they often find themselves on the wrong side of the system with corrupt Judges threatening and even applying contempt of court in order to protect their own vested interests.  In extreme cases parents often lose their children.

This political driven stronghold with its deep rooted flaws, acts of coercion, nepotism, outright corruption, waste of tax dollars and the disregard for our fundamental right of ‘Due Process’ must be addressed.

The Rule of Law is crucial to any civilised community. When the Law is no longer respected, as it is fast becoming in Australia, then we are in for catastrophic instability.

Our attack on illegality in our courts and the apathy just allowing corruption to get worse is merely highlighted by our present campaign to force the High Court to act lawfully. It has been defying the Australian Constitution and refusing to discipline corrupt judges for at least the last ten years.

The refusal by three High Court Judges to allow Writs to be filed when the Constitution makes filing such Writs an Absolute Right is outrageous and can only be perceived as direct defiance of the Australian Constitution!  A further act of corruption.

The issue these judges are trying to bury instead of solve, is twofold in its possible explanations.

1. Judges protecting judges, no matter how wrong they were. Which of course is the High Court just defying the constitutional protection put there to prevent corruption and ignoring that court’s clear duty to do so?

2. Judges, even in the High Court, protecting paedophiles – for reasons that boggle the mind. However, Australians need to prepare to have their minds boggled.

These Judges and Officers of the Court are civil servants of the Crown and have sworn to uphold the law, yet they knowingly and corruptly pervert the course of justice through placing children into abusive environments.   They should be sacked and prosecuted without question and the Chief Justice of the High Court be required to give explanation to the Commonwealth Parliament as to why staff in the High Court are refusing to file such Writs. Judgments of Federal Family Courts must be dealt with by the High Court, which is now defying the Australian Constitution to protect corrupt judges and pedophiles!

Our governments are creating and permitting the operation of secret courts.  Under section 121 of the Family Law Act it makes clear the penalty up to one year for anyone disclosing the identity of a child involved in Family Law proceedings. It has been my view that this secrecy exists to further hide the corruption and unlawfulness that exist in the Family Court system.  Prohibiting public scrutiny has long been recognized as a guaranteed formula for corruption.  Why do we need secret Courts?  They obviously have something to hide?  Absolute corruption corrupts absolutely!

It has been my experience that in dealing with the Australian media that they are being restrained from reporting on issues of child sexual abuse in the Family and Children’s Court knowing that in many instances the child or children have been dragged back to the abusive environment to live with their abusers despite the overwhelming evidence to suggest this.  The Family Court use section 121 of its Act not to stop disclosure but to protect itself from the corruption from within, i.e. the pedophile network?

I do not believe for one minute that paedophiles and Satanists, imprisoning, sexually abusing, brutalizing and even murdering children are frivolous.

One must ask the question how this corrupt and toxic network of paedophiles has been able to intimidate such a supposedly moral society such as Judges and Magistrates, Lawyers, government agencies and professionals into deserting their legal and moral propriety in favour of cowering submission to the evil desires and directives of paedophiles and their factions.

For the situation within the judicial system to get to this stage would indicated that for many years now our politicians have been asleep on the job permitting this toxic environment to fester into the disgusting disorder that we experience today.  In other words for many years now the foxes have been in charge of the hen house!

The Australian Family and Children’s Court system requires an urgent overhaul.  It is a self-serving institution with no accountability of its actors or players who care little about our beloved children and needs to be abolished.  It is my opinion as it is of many of the constituents of this country that everyone has to obey the law and that they are accountable, regardless of what occupation or office they hold.

Judicial Officers of our Commonwealth and State Courts are corrupt. They do not apply the law as the legislature decreed and are instead using their own ideologies and interpretations of what they believe are right in order to gain advantage and fulfill their agenda.

Judicial Officers continue to demonstrate lack of accountability and judgment by their outrageous actions in denying citizens of the Commonwealth of Australia Justice. This outrageous behavior is absurd and is a breach of trust and responsibility of one of the Highest Offices in the Australian Commonwealth and it must stop now!  This absolute corruption corrupts absolutely!

As members of the Australian Parliament if you would for just one minute take your head out of the sand and discover reality you may get an understanding of the issues affecting ordinary Australians.

To this end I am requesting that the matter be urgently investigated to deal with the corruption and collusion in the judicial system so that it works impartially of Court Officers own personal opinions, desires and agendas.  At the heart of this nation should be the protection of our children and the welfare of our Families.

Yours faithfully,

Brian Tucker

Revd. Dr. Brian Tucker,

Human Rights & Social Justice Advocate

Email:bmt060@gmail.com

Cc: Mr. Bruce Bell, LLB

Director

Real Justice

This document is copyrighted by the American Psychological Association or one of its allied publishers. This article is intended solely for the personal use of the individual user and is not to be disseminated broadly.

A copy can be purchased here…

Psychology, Public Policy, and Law © 2014 American Psychological Association 2014, Vol. 20, No. 1, 46–67 1076-8971/14/$12.00 DOI: 10.1037/law0000005

Extract…

Social Science and Parenting Plans for Young Children:

A Consensus Report

Richard A. Warshak

University of Texas Southwestern Medical Center, with the endorsement of the researchers and practitioners listed in the Appendix

Two central issues addressed in this article are the extent to which young children’s time should be spent predominantly in the care of the same parent or divided more evenly between both parents, and whether children under the age of 4 should sleep in the same home every night or spend overnights in both parents’ homes. A broad consensus of accomplished researchers and practitioners agree that, in normal circumstances, the evidence supports shared residential arrangements for children under 4 years of age whose parents live apart from each other. Because of the well-documented vulnerability of father– child relationships among never-married and divorced parents, the studies that identify overnights as a protective factor associated with increased father commitment to child rearing and reduced incidence of father drop-out, and the absence of studies that demonstrate any net risk of overnights, policymakers and decision makers should recognize that depriving young children of overnights with their fathers could compromise the quality of developing father-child relationships. Sufficient evidence does not exist to support postponing the introduction of regular and frequent involvement, including overnights, of both parents with their babies and toddlers. The theoretical and practical considerations favoring overnights for most young children are more compelling than concerns that overnights might jeopardize children’s development.

Keywords: child custody, children’s best interests, joint custody, overnights, shared parenting

One hundred and ten researchers and practitioners have read, provided comments, and offered revisions to this article. They endorse this article’s conclusions and recommendations, although they may not agree with every detail of the literature review. Their names and affiliations are listed in the Appendix. Social science provides a growing and sophisticated fund of knowledge about the needs of young children, the circumstances that best promote their optimal development, and the individual differences among children regarding their adaptability to different circumstances, stress, and change. Consequently, research focused on children whose parents never married, or whose parents separated or divorced, should inform guidelines to advance the welfare and define the best interests of those children; indeed, policymakers and practitioners in family law look to that research for such information. But the road from laboratories to legislatures and family law courtrooms is hazardous—fraught with potential for misunderstandings, skewed interpretations, logical errors, even outright misrepresentations. The hazards can be traced, in large measure, to differences between science and advocacy. Scientific approaches to a literature review aim for a balanced, accurate account of established knowledge and of unresolved issues that require further investigation. When there are discrepancies among findings,

Richard A. Warshak, Department of Psychiatry, Division of Psychology, University of Texas Southwestern Medical Center Dallas. I appreciate the valuable feedback to a draft provided by William V. Fabricius. Correspondence concerning this article should be addressed to Richard A. Warshak 16970

scientists strive to understand the reason for the discrepancies, and to assess the strength of the research designs and methods. By nature, scientific knowledge is incomplete; thus, not all findings and conclusions are equally trustworthy. Hence the need for balanced, accurate reviews. Advocacy approaches are recognizable by certain core features: Advocates select literature for the purpose of promoting a particular agenda, and ignore or minimize findings that fail to support the desired conclusions; they distort findings toward the advocate’s position; and they use a variety of polemics, loose logic, and emotional appeals to build a persuasive case. With respect to critical thinking about research, Meltzoff (1998) writes the following:

“Research shows” is one of the favorite expressions of psychologists who are called on by the media to express their professional opinions on a wide range of topics, who are asked to consult with or testify before lawmakers about social issues that affect public welfare, or who are relied on to give expert counsel to other health service providers or to educators. Research psychologists carry a heavy burden of responsibility for assuring the accuracy of their claims about their results. In turn, psychologists who cite or apply the research findings of others share their responsibility. They have an obligation to use their critical reading and evaluation skills in reviewing a study before they cite it as evidence that supports a point of view and before they apply the findings in their clinical work. (p. 9)

The purposes for this document are to provide the family court system—including lawmakers, mediators, decision-makers, parents, guardians ad litem, child custody evaluators, and therapists– with an overview of the research on parenting plans for children under the age of four years whose parents live apart, and to provide empirically supported guidelines that reflect a consensus among

SOCIAL SCIENCE AND PARENTING PLANS FOR YOUNG CHILDREN

leading researchers and practitioners about the implications of that research for policy and practice. It is not possible in the limited space here to offer a comprehensive review and analysis of that literature, although many published research articles and scholarly literature reviews are discussed.

Richard A. Warshak prepared the draft of this consensus document. The endorsers reviewed the draft and offered suggestions that were incorporated into the final manuscript. It is important to acknowledge that every endorser may not agree with every detail of the literature review. The endorsers are an international group of highly accomplished researchers and practitioners. This interdisciplinary group includes prominent representatives from the fields of early child development, clinical and forensic psychology, psychiatry, sociology, social work, and counseling. Many head their university departments, edit professional journals, and have served in leadership positions in professional associations. Certain events raised awareness of the need for this consensus statement on parenting plans for young children. Advocates are promoting a report issued by an Australian government agency (McIntosh, Smyth, & Kelaher, 2010) as a basis for decisions regarding parenting plans for children of preschool age and younger. Accounts of the report appearing in the media, in professional seminars, in legislative briefs, and in court directly contradict the actual data, overlook results that support opposite conclusions, and mislead their audience. A “background paper” describing the Australian report, posted on the Internet (McIntosh & the Australian Association for Infant Mental Health, 2011), illustrates all three characteristics. We give brief examples here followed by a more complete review below. An example of contradicting the actual data is seen in the following quote, into which we have inserted the actual statistical means from McIntosh et al. (2010, p. 133, Figures 4–5) to show how the description contradicts the findings. “Babies under two years who lived one or more overnights a week with both parents [ M ! 2.5] were. . .more irritable. . .than babies who had less [ M ! 2.2] or no [ M ! 2.6] overnight time away from their primary caregiver” (p.

2). (Note that the irritability score for babies with no overnights, that is, with daytime only contacts, is slightly higher than the score for babies who spent one or more nights per week with their other parent.) An example of selective reporting of other findings occurs in the following statement: “the only other study of young infants in overnight care [was] conducted by Solomon and George” (McIntosh & the Australian Association for Infant Mental Health, 2011, p. 2). We discuss below the other studies of young infants in overnight care that were available in 2011. Advocates’ efforts against overnight parenting time for preschool children have generated confusion and uncertainty about where the scientific community stands on these issues. This document, begun in January 2012, is an attempt to stem the tide of this misinformation before this advocacy becomes enshrined in professional practice and family law. Discussions of parenting plans for young children in normal situations concern three main issues. First, should young children’s time be concentrated predominantly under the care and supervision of one parent, or should their time be more evenly divided between parents? The professional literature and the law variously label as shared or joint, physical or residential custody, (as distinguished from sole physical custody) divisions of a child’s time between homes that have no greater disparity than 65%–35%. Second, should young children spend nights in each parent’s home, or should they sleep in the same home every night? Nearly all shared physical custody schedules include overnights, but not all children who spend overnights in both homes spend at least 35% time in each home. Third, if a parent is designated with the status of a young child’s primary parent, are the benefits to the child of involvement with the other parent diminished or erased if the parents disagree about the parenting plan, or if one or both parents feel great discomfort or hostility toward the other? Different answers to these three questions reflect different assumptions about the roots of parent– child relationships, and about the nature of contact necessary to secure healthy parent– child relationships.

At the outset we want to underscore that our recommendations apply in normal circumstances. They do not extend to parents with major deficits in how they care for their children, such as parents who neglect or abuse their children, and those from whom children would need protection and distance even in intact families. Also, our recommendations apply to children who have relationships with both parents. If a child has a relationship with one parent and no prior relationship with the other parent, or a peripheral, at best, relationship, different plans will serve the goal of building the relationship versus strengthening and maintaining an existing relationship.

Primary Parent Versus Equal Status Parents

Opposition to shared and overnight parenting for preschool children rests on monotropy, a concept proposed but later abandoned by John Bowlby (1969). Monotropy is the idea that infants form attachment relationships (defined as enduring affectional ties between one person and another across time and space) with a single caregiver before all other important relationships and that this first relationship serves as a foundation and template for all subsequent attachment bonds. This view posits that infants’ early relationships are hierarchically arranged with one primary relationship ranked above, and qualitatively different from, the others. The concept of monotropy was predominant in 20th century child custody case law (Warshak, 2011). Monotropy is the basis for the propositions that infants have one psychological parent and that the task of custody decision makers is to identify this parent who then receives sole decision-making authority, including the authority to determine when and if the children see the other parent (Goldstein, Freud, & Solnit, 1973/1979). A careful survey of the social science literature fails to support the hypothesis of monotropy. In the context of typical conditions of infant care, infants commonly developed attachment relationships with more than one caregiver (Brown, Mangelsdorf, & Neff, 2012; Brumariu & Kerns, 2010; Cassidy, 2008; Cohen & Campos, 1974; Lamb 1977a, 1977b; Ludolph & Dale, 2012; Sagi et al., 1995; Spelke, Zelazo, Kagan, & Kotelchuck, 1973). Multiple attachment relationships have been found cross-culturally, including in Germany, Israel, Japan, The Netherlands, the United Kingdom, and the United States (Van IJzendoorn & Sagi-Schwartz, 2008). Further, the quality of these relationships was independent so that, for instance, neither the relationship with the mother nor bwith the father was a template for the other (Kerns, Tomich, Aspelmeier, & Contreras, 2000; Main & Weston, 1981; Thompson, 1998; Verschueren & Marcoen, 1999). Each relationship makes some unique and some overlapping contributions to chil-

WARSHAK

dren’s development (Lamb, 2010a, 2010b). These relationship differences are not ranked in a hierarchy of importance or salience. Rather, they affect different aspects of children’s psychological development (Sagi-Schwartz & Aviezer, 2005). In a recent interview on the issue of overnight parenting time for infants, prominent attachment researcher Everett Waters clarified as follows: The idea that there should be one figure only was not Bowlby’s view in the end. It is also difficult when you use a term like “hierarchy” which is a very specific claim about superordinate–subordinate relationships; this one is more important than that one, that one is more important than that one; it implies a rank ordering. Rather than saying that there is a hierarchy, I think a better perspective is this: it is possible for infants and children and for adults to use a multiplicity of figures for secure-base support. Multiplicity does not imply any particular relationship among them. You are not more or less, you are just another (Waters & McIntosh, 2011, p. 480). Closely related to the idea that infants initially form one primary attachment relationship, is the notion that this relationship in most cases will be with the mother. This notion has not received support in the research literature. As Sir Michael Rutter (1979) wrote decades ago when reviewing the science relevant to the concept of monotropy, “Bowlby’s argument is that the child’s relationship with mother differs from other relationships specifically with respect to its attachment qualities, and the evidence indicates that this is not so” (p. 287). MacArthur scholar Professor Grazyna Kochanska and her colleagues reported the most recent and methodologically rigorous study on this topic (Kochanska & Kim, 2013). Using the Strange Situation procedure, which most attachment theorists hold in high regard, the researchers assessed infants’ attachment security with each parent at 15 months. Then they measured behavior problems at age 8 using ratings from mothers, fathers, teachers, and the children themselves. As expected, children with insecure relationships with both parents had the most behavior problems. Children were no more likely to be securely attached to mothers than fathers, and having a secure attachment with at least one parent had a powerful, beneficial, and protective effect that offset mental health risks. Most significant for parenting plan decisions, the benefits of a secure relationship with the father versus the mother were equivalent. Neither parent emerged as primary. In sum, based on child development research, policymakers and decision-makers cannot support a priori assumptions that parents of infants and toddlers can be rank ordered as primary or secondary in their importance to the children, and that mothers are more likely to be the “psychologically primary” parents. Further, the research indicates that because infants develop attachment relationships with both of their parents, there is a danger of disturbing one of those relationships by designating one parent as primary and limiting the infant’s time with the other parent. Policies and parenting plans should encourage and maximize the chances that infants will be raised by two adequate and involved parents. It stands to reason that if a secure attachment with at least one adequate parent is a sine qua non of optimal development, having relationships with two parents gives infants two chances to develop a secure attachment and thus increases the odds of accomplishing this important developmental milestone. Fathers increasingly want to take on more nurturing roles with their children and it is to their children’s advantage for society to encourage fathers to develop, engage in, and maintain rich multifaceted relationships with their children.

Face-to-Face Contact and the Development of Healthy Parent–Child Relationships

Children’s relationships with parental figures normally grow from frequent child–parent interactions in a wide variety of contexts, such as holding, stroking, talking, singing, playing, feeding, changing diapers, soothing, placing and removing from the crib, and so forth (Cassidy, 1994; De Wolff & van IJzendoorn, 1997; Kochanska, 1997; Lucassen et al., 2011). Such interactions help parents better understand the children’s needs, and give parents the knowledge to develop and hone parenting skills and behavior to meet their children’s needs. Although some child development theories place more emphasis on genetics, neurobiology, or on environmental factors other than the behavior of parents (such as peers), most professionals agree that a good deal of parenting skill develops from experience and being on the job. But how much does a parent need to be on the job, involved in child care, for the child to develop a relationship with the parent that is unique in significance compared with the child’s relationship with others in the child’s current and future life? We have no basis for asserting a specific threshold of contact necessary or sufficient for a child to develop the type of relationship with a caregiver that distinguishes itself as a parent– child relationship as opposed to the child’s relationship with other caregivers and persons in the environment. Similarly, we have no basis for determining a threshold of interaction necessary for the average parent to gain the experience that helps the parent become attuned to, and respond skillfully to, the child’s needs. Two sources of data, though, provide some parameters that are directly relevant to parenting time decisions for young children: the amount of parenting time the average child receives, and the impact of daycare on the development of parent– child relationships.

Parenting time in intact families.

Measuring parenting time is complicated. Such measurement depends, in part, on which aspects of parenting are included, whether direct interaction is measured versus the time in which the child is under the parent’s care, whether one or both parents are present, and whether one or more children are in the parents’ care (Lamb, 2007; Pleck, 2010). No one time-use study is definitive. This paper finds useful the American Time Use Survey (ATUS), conducted by the U.S. Census Bureau for the Bureau of Labor Statistics (U.S. Department of Labor Bureau of Labor Statistics, 2013). The ATUS divides parenting time into primary and secondary childcare time.

Primary

childcare time is the quantity of time that parents spend primarily doing activities that involve care for their children.

Secondary

childcare time is when the children are in the parent’s care while the parent is engaged in activities other than primary childcare, such as cooking dinner.

Total childcare time is the sum of primary and secondary childcare time. Time during which the children are sleeping is excluded from the measure. From the parent’s point of view, total childcare time reflects the time the parent is caring for the children. From the children’s point of view, primary childcare

SOCIAL SCIENCE AND PARENTING PLANS FOR YOUNG CHILDREN

time reflects the time that the children are directly aware of, and interacting with, the parent. In a typical week, in two-parent homes in which the youngest child is under the age of one, mothers spent 79 hours and fathers spent 44 hours in total childcare. In other words, fathers spent 56% (44/79) of the amount of time that mothers spent in childcare, or 36% (44/(79 ” 44) of total parenting time. If we divide a full week by these proportions, fathers provided the equivalent of 2.5 days of childcare to the mother’s 4.5 days. The figures for primary childcare in a typical week (the quantity of time that parents spent primarily doing activities that involve care for their child) were 26.5 hours for mothers and 11.5 hours for fathers.

We can consider these data from two perspectives. From the parents’ point of view, the children were in the father’s care 44 waking hours per week to the mother’s 79 hours. This is the amount of time that each parent was accustomed to spending with the children, and presumably a sufficient amount of time for each parent to feel a parent-like bond to the children. From the children’s point of view, the children typically received, at most, 11.5 hours of direct care weekly from the father compared with 26.5 hours from the mother. (This is an overestimate because the data do not differentiate how much of the parenting time was directed specifically at the infant vs. divided among all the children in the home.) Presumably this is a sufficient amount of time for children to develop what our society regards as normal relationships with parents. From either perspective, these data should quell anxieties that young children whose time is divided relatively evenly between two homes will have insufficient time with either parent to develop healthy relationships that, according to attachment theory, contribute to subsequent optimal development.

Children in daycare. The second data source relevant to the issue of whether young children whose parents live apart need to live predominantly with one parent, and thus spend significantly less time with the other parent, is the literature on the impact of child relationships. A corollary of the proposition that children have only one psychological parent is that young children will suffer harm if separated from the parent and cared for by others. Goldstein, Freud, and Solnit (1973/1979) stated: In infancy, from birth to approximately 18 months, any change in routine leads to food refusals, digestive upsets, sleeping difficulties, s care is divided merely between mother and baby-sitter. They are all the more massive s day is divided between home and day care center. . . . Every step of this kind inevitably brings with it changes in the ways the infant is handled, fed, put to bed, and comforted. Such moves from the familiar to the unfamiliar cause discomfort, distress, s orientation and adaptation within his surroundings (p. 32). In 1999, 9.8 million American children under the age of five years spent 40 or more hours a week in daycare away from parents (Committee on Family & Work Policies, 2003), many beginning in the first year of life, and the majority xperiencing some nonmaternal care by 6 months of age (U.S. Bureau of the Census, 1999). On the one hand, if these children suffer impairments in the quality of their relationships with their parents that are traced directly to lengthy separations from their parents while in daycare, rather than of he quality of care, this would need to be taken into account in formulating child custody policy and decisions. On the other hand, if daily separations from parents do not harm the quality of child relationships, this would alleviate concerns about parenting schedules that keep children apart from one parent while being cared for by the other parent. The proposition that infants suffer ill effects from spending time in daycare centers has been investigated for more than 25 years. The Study of Early Child Care and Youth Development (SECCYD), a national research consortium sponsored by the National Institute of Child Health & Human Development (NICHD), has produced 249 scientific publications, most appearing in prestigious peer-review journals. These studies included care given by fathers and other relatives as daycare. Thus the findings most relevant to s time between homes are those that address children who are in the care of their fathers. When the SECCYD children were 12 years old, the study reported some long-term benefits and drawbacks of early childcare. On the whole what is most important is the quality of the childcare setting and the quality of the relationships between caregivers and children both at home and in childcare. But a key finding has particular relevance to the issue of young children being separated from mothers and in the care of their fathers: all of the negative effects associated with early child care were a function of time cared for by nonrelatives and not by time spent in care provided by fathers and grandparents (Belsky et al., 2007; van IJzendoorn et al., 2003, March; van IJzendoorn et al., 2004, July; for a review, see Aviezer & Sagi-Schwartz, 2008). This replicated an earlier finding when the children were 4 and one half years old (van IJzendoorn et al., 2004). Furthermore, the researchers believed that subsequent problem behavior linked to time in early child care, which did not rise to clinical levels (i.e., the behaviors did not require special attention; National Institute of Child Health and Human Development Early Child Care Research Network, child attachment or parenting, but was more likely a result of interactions with peers (Belsky et al., 2007; McCartney et al., 2010). Children in the NICHD study spent an average of 27 hours each week in child care, with more than one third spending 30 hours or more per week between the ages of 3 months and 1 and one half years. Interestingly although care by mothers, grandparents, and hired help in the home decreased over time, care by fathers remained stable over time with about 13% of children in this type of care regardless of children’s age (up to 4 and one half years; National Institute of Child Health and Human Development Early Child Care Research Network, 2004). Given the findings that infants and toddlers who spent considerable amounts of time away from their mothers and in the care of fathers and grandparents showed no negative effects in development, including in their relationship with their mothers, this early child care research provides no support for denying young children whose parents live apart from each other extensive time with their fathers (Bernet & Ash, 2007). Given the mixed findings of the effect of center-based care on children (e.g., linked to more ear infections and upper respiratory and stomach illnesses), if care by fathers allows less time in large group care, this may bring added benefits.

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Summary on Developing Healthy Parent–Child Relationships

The research discussed above helps us better understand the nutrients of a healthy foundation for parent– child relationships regardless of family structure. Based on this body of research we conclude the following:

consistent, predictable, frequent, affectionate, and sensitive behavior toward their infants is key to forming meaningful, secure, and healthy parent– child relationships.

• Having a secure attachment with at least one parent provides children with enduring benefits and protections that offset mental health risks of stress and adversity.

• Having a relationship with two parents increases children’s odds of developing at least one secure attachment.

• The deterioration of father– child relationships after divorce is a pressing concern (Zill, Morrison, & Coiro, 1993).

• The majority of children from preschool through college are dissatisfied, some even distressed, with the amount of contact they have with their fathers after divorce and with the intervals between contacts (Kelly, 2012; Hetherington & Kelly, 2002; Warshak & Santrock, 1983).

• Policies and parenting plans should encourage and maximize the chances that children will enjoy the benefits of being raised by two adequate and involved parents.

• We have no basis for rank ordering parents as primary or secondary in their importance to child development.

• Normal parent– child relationships emerge from less than fulltime care and less than round-the-clock presence of parents.

• Full-time maternal care is not necessary for children to develop normally. Children’s healthy development can and usually does sustain many hours of separation between mother and child. This is especially true when fathers or grandparents care for children in place of their mothers.

• These findings support the desirability of parenting plans that are most likely to result in both parents developing and maintaining the motivation and commitment to remain involved with their children, and that give young children more time with their fathers than traditional schedules allow (generally daytime visits every other weekend with perhaps one brief midweek contact).

child relationships discussed above, we turn next to studies that focus specifically on young children whose parents live apart from each other. This includes parents who divorced, those who were never married but lived together for a period of time, and those who never lived together. At the outset we stress that the body of work comparing children under 4 years of age being raised with different parenting plans is not as extensive, and with few exceptions not as methodologically rigorous, as the wider body of research on early child development and daycare or on older children raised in families in which the parents live apart from each other. Nevertheless these studies do provide important perspectives for custody policy and decisions. Sixteen studies were identified that provided relevant data on families with infants, toddlers, and preschool age children whose parents live apart from each other. These studies offered observations about parenting plans that either 1) designated one parent (usually, but not always, the mother) as a primary parent who is s care more than 65% of the time, or 2) s time between homes with no greater division of time than 65%-35%. We use the term shared parenting time to designate divisions of time in which each parent is responsible for s care at least 35% of the time. ’ separation and beyond. One such longitudinal study involved a group of 1,265 New Zealand children (Woodward, Fergusson, & Belsky, 2000). At ages 15 and 16 the investigators assessed the s views of their relationships with their parents and of parenting attitudes and behavior toward them during childhood. In this study of attachment, children who separation before the age of 5 saw themselves as less closely emotionally tied to their parents than did children who grew up in intact families, and they viewed their parents as having been less caring and more restrictive toward them during childhood. As with most findings in the divorce literature, the size of the significant effect was small to moderate, and this study needs replication with additional samples. This study provided no comparisons of children in different living arrangements, but it does suggest reason for concern about the s relationship with each parent when their parents live apart from each other. Three early exploratory studies in California relied on impressions derived from interviews (Wallerstein & Kelly, 1975, 1980; McKinnon & Wallerstein, 1987; Brotsky, Steinman, & Zemmelman, 1991). Notwithstanding the limits of such data (Amato, 2003; Kelly & Emery, 2003), the results are relevant to parenting plans for young children. In the first study (Wallerstein & Kelly, 1975, 1980), children between the ages of 2 and one half and 3 and one fourth years whose mothers worked full time outside the home did well with other caretakers including the father, when the caretaker s life. The s psychological s dissatisfaction with infrequent contacts with their fathers, and long intervals between contacts. The second study (McKinnon & Wallerstein, 1987) found that equal time residential arrangements were associated with positive outcomes when parents provided loving and sensitive care, and were associated with negative outcomes when parents were neglectful, violent, mentally ill, or directly involved children in interparental conflicts. Children below the age of 3 handled transitions between homes better than did the older preschool children. The third study (Brotsky, Steinman, & Zemmelman, 1991) found that children under the age of 5, whose parents shared parenting time almost equally, adapted to the parenting plan better on average than did older children. Only 5 of the 26 younger children developed serious psychological difficulties. The lack of direct comparisons of children living in different residential arrangements did not allow conclusions about whether the children would have done better or worse in sole custody arrangements. But the results failed to support generalizations that shared parenting and

SOCIAL SCIENCE AND PARENTING PLANS FOR YOUNG CHILDREN

overnights are incompatible with healthy adjustment in young children. One study reported on telephone interviews with 30 parents of children under the age of 5 whose average parenting plan fell just short of shared parenting time (the children spent on average 10 days and nights per month with their father, but approximately one fourth of the sample did have shared parenting time with children spending more time with fathers than with mothers) (Altenhofen, Biringen, & Mergler, 2008). Three-quarters of the sample had children enrolled in part-time or full-time child care. The findings revealed a moderate correlation between interparental hostility and parental alienating behaviors. The number of overnights with fathers increased over time; this could be attributed either to the s age or the length of time since the parents separated. s satisfaction with the parenting plan. Fathers with fewer overnights reported more hostile relationships with the mother. The meaning of this association is ambiguous. Two plausible explanations are that when hostility was high, mothers were less likely to offer overnights to s belief that the division of overnights was inequitable. child attachment in 24 children 6 years old who spent an average of eight nights per month with their fathers (Altenhofen, Sutherland, & Biringen, 2010). Unfortunately, the statistical procedures did not suit the sample size. Also, the attachment measure was completed by the mothers rather than by trained raters. This procedure leaves some doubt about what exactly is being measured (van Ijzendoorn, Vereijken, Kranenburg, & Riksen-Walraven, 2004; Waters, 2013). The study examined the link between attachment security and the age of onset of overnights, interparental communication and conflict, and s emotional availability. In this sample, 54% of the children were rated as insecurely attached. The only factor that s emotional availability. Factors that were unrelated to attachment security s age when overnights began, the level of conflict between the parents, and whether the child was in child care (about half were). Because of the lack of a comparison group, the study allowed no conclusions about how these children compared with those with fewer, or more overnights, or with children whose parents were married to each other. In sum, as with the five studies discussed earlier, this study provided no support for any particular parenting plan. Some commentators hypothesize that shared care is especially challenging for young children compared with older children (McIntosh, Smyth, Kelaher, Wells, & Long, 2011). This hypothesis lacks support from the studies discussed above. The studies we discuss below provided direct comparisons of families with different types of parenting plans. Nielsen (2013c) made a detailed review and analysis of this literature. In her work, for each study Nielsen attended to the sample’s representativeness, validity and reliability of the measurements, statistical significance of the results, consistency of findings from multiple methods, control for various factors that might account for the results, and whether the study passed peer review and appeared in a refereed journal. Rather than duplicate Nielsen’s analysis and describe in detail each study, we discuss a few of the studies that merit greater attention. Some of the studies we mention employed superior methodology. Others are mentioned because their methodological problems often go unrecognized or under recognized in accounts provided by professionals, expert witnesses, advocacy groups, and the media. With effective marketing and press releases, some studies impact the public forum and child custody litigation disproportionate to their quality.

The Stanford Custody Project followed a random sample of 1,386 families over a 3-year period (Maccoby & Mnookin, 1992). The sample included 289 children two and younger, and 424 children between three and five years old. This project studied how custody arrangements are reached and how they change over time. The findings revealed the familiar problem of mother-resident children losing contact with their father over time. What is most relevant to parenting plans for young children, though, is that he loss of contact was far greater for the group of children whose contacts were restricted to the daytime compared with those who spent overnights with their fathers (56% father dropout vs. 1.6% for children under three and 49% vs. 7.7% for children who were 3–5 years old at the time of their parents’ separation). The strong association between continued father involvement and shared parenting was replicated in a Wisconsin random sample of 1,100 families in which mothers and fathers were interviewed an average of three years after divorce (Berger, Brown, Joung, Melli, Wimer, 2008; Melli & Brown, 2008). The sample split evenly between sole mother custody and shared parenting, and in 40% of each custody group the youngest child in the family was under five years old at the time of divorce with 16% two or younger. Children with shared parenting plans spent as much or more time in their fathers’ care 3 years after divorce as they did at the outset, whereas children in sole mother custody were much more likely to experience a dropoff in contact with their fathers. Both fathers and mothers with shared parenting plans were far more likely to report that fathers were very involved with the children and most mothers were satisfied with the father’s involvement or wanted even more. Shared time mothers (98%) reported that their children’s physical health was good or excellent and 90% thought the same about their children’s emotional health. Because this study conducted analyses for the sample as a whole without differentiating results based on the children’s age, we cannot be sure of the extent to which these positive findings for shared parenting apply more, less, or equally to the infants and preschoolers. But since they made up such a large proportion of the sample, and in the context of the entire literature on shared parenting with young children (with the exception of two outlier reports to be discussed below), it is likely that the positive findings for parenting plans with greater father involvement apply to the young children. It is important to note that about 85% of the fathers and mothers in shared parenting arrangements and about 80% of those with sole mother custody reported that their relationship was “friendly” or “neutral/businesslike.” This is consistent with other data on coparenting (e.g., Ahrons, 1994; Maccoby & Mnookin, 1992). Policymakers should recognize that parents in protracted custody and access disputes do not represent most divorced couples and should not drive legislative statutes that apply to the general population of mothers and fathers who raise their children while living apart from each other. A Yale University project examined the relationship between overnights and psychological and behavior problems in 132 children between the ages of 2 and 6 years (Pruett, Ebling, & Insabella, 2004). The study merits significant weight in part because it used a fairly representative sample of lower middle class couples with

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a midrange of conflict, relied on standard measures, and reported s measures, 15 to 18 months after the parents filed for divorce, overnights had 3 years (considering aggression, anxiety, depression, social withdrawal, and sleep problems), and benefited 4- to 6-year-olds. Some gender differences were noted. Overnights were linked, among girls but not boys, to fewer social problems. Inconsistent, erratic parenting schedules were more likely to be linked with negative outcomes for boys than for girls. Poorer parent– child relationships and conflict between parents had stronger links to children’s outcomes than did overnights. Data from fathers showed a direct link between children’s adjustment and overnights and consistent schedules. Data from mothers showed that their support for fathers’ involvement moderated the positive outcomes seen for overnights (Pruett & Barker, 2009). About one third of the children had three or more caregivers during the day. The 2- to 3-year-olds showed no differences related to multiple caretakers, but 4- to 6-year-olds with multiple caretakers had better outcomes.

The Australian Institute of Family Studies analyzed longitudinal data on 7,718 children, nearly four thousand under the age of 5 years (Kaspiew et al., 2009). The number of children whose 65% of overnights spent with each parent, was 201 under age 3 (8% of children in this 4 years (20%). Data from both mothers 2 years after the parents separated, were reported for the entire sample. Parents who shared parenting were more likely than parents in sole custody arrangements to believe that their parenting plan was working well for the child; more than 90% of the parents whose 47% overnights with their fathers believed that their parenting plan was s beliefs. The results indicated that children in shared parenting arrangements were doing as well as, or marginally better than, children who spent fewer than 35% overnights with their fathers. Consistent with the Stanford study, overnights were linked to higher levels of continued father involvement; one of five children with daytime only contact saw the father only once a month or less. According to mothers, fathers with shared care time had been more involved parents prior to separation, so this study cannot attribute a causal relationship between overnights and continued father involvement. But in their review of the literature, Fabricius, Sokol, Diaz, and Braver (2012) concluded that the evidence to date is consistent with the hypothesis that more parenting time has a causal effect on the quality of the father-child relationship security. Also consistent with previous studies, Kaspiew et al. (2009) reported that conflict and violence s outcomes. This impact was no greater for children with shared parenting time than those in other arrangements according to fathers’, but not mothers’, reports. In sum, according to this large-scale study, in general no negative, and some marginally positive consequences were associated with parenting plans in which children ages 0–4 years spent at least 35% of the time with their fathers. Also, overnights were associated with protecting regular father involvement. These results parallel the overall conclusions from most studies that shared parenting and overnights with fathers introduce no detriments to children, and may bring benefits, especially promoting and maintaining the father– child relationship that is vulnerable to deterioration with other parenting plans. In contrast to the pool of studies that reported generally positive or neutral findings for shared parenting and overnights with fathers, two studies reported negative findings and a third is sometimes inaccurately cited as having reported negative effects of infant overnights. The two outlier studies that reported negative effects of overnights for young children have received more widespread media coverage than the studies discussed above and are cited by expert witnesses and advocacy groups to oppose shared parenting legislation and parenting plans which allow fathers to care for pre-schoolers overnight. The study that is mistakenly cited to support blanket restrictions against overnights relied on the 20-min Strange Situation laboratory procedure to assess the attachment classifications of infants 12 to 20 months old, 44 who had some overnights with their fathers, 49 who had no overnights, and 52 who lived with their married parents (Solomon and George, 1999a). No significant differences were found between the overnight group and the no overnight group in the distribution of secure and insecure attachments, nor was frequency or history of overnights related to attachment classifications. What confuses some commentators is that the overnight group compared unfavorably with the children in intact families. Naturally this comparison is irrelevant to parenting plans because any differences found may be attributable to divorce and not to overnights. One year later 85% of the sample were observed interacting with their mothers in two laboratory activities (Solomon & George, 1999b). Again no statistically significant differences were noted between children with and without overnights. Overnighting infants compared unfavorably with a combined group of infants from intact families and those with no overnights with a father who lived apart from the mother, but the authors pointed out that the results of their brief laboratory procedure might be unrelated to infant behavior in shared parenting families. A difference that did not reach statistical significance was the presence in the overnight group of more disorganized mother– child attachments, which theorists generally associate with neglect or abuse and poorer long-term psychological development. But the rate of unfavorable attachments in all three study groups was abnormally high. The authors noted the nonrepresentativeness of their sample; a high percent of parents were under restraining orders (86% of fathers with overnights, 100% of fathers without overnights, and 33% of mothers with overnights—compared with 9% of mothers in the no overnight group). Also, the parents in the overnight group differed in important ways from those in the no overnight group: the overnighters’ parents had higher levels of conflict, hostility, and abuse, were more likely to be unmarried, and were more likely to have children from more than one relationship. Because of the differences between the groups, the study cannot attribute outcomes to the presence or absence of overnight contacts. Instead, attachment classifications were related to the coparenting relationships and to the mother’s parenting skills, with less secure attachments in all groups found when mothers were less responsive to their children’s needs. Other authors have highlighted additional significant limitations of the study (Cashmore & Parkinson, 2011; Lamb & Kelly, 2001; Nielsen, 2013c; Nielsen, 2013d; Pruett, Cowan, Cowan, & Dia-

SOCIAL SCIENCE AND PARENTING PLANS FOR YOUNG CHILDREN

mond, 2012; Warshak, 2002). There was no evidence that the infants had formed attachments to their fathers before the onset of overnights; infants in the overnight group were less likely than those in the no overnight group to have at least weekly contact with their fathers and only 20% of overnighting infants saw their fathers on a regular and consistent schedule; some of the infants were separated from their fathers repeatedly and for long periods of time effectively making the fathers strangers to their children; the data about father– child contact, conflict, communication, and mother’s responsiveness to the child came solely from mothers; the follow-up analyses did not differentiate between children whose overnights began recently versus those who had overnights at the outset of the study and at follow-up. The study’s first author agrees that the results cannot be generalized to divorced parents because a large portion of the sample had never married or lived together, most had separated before the infant was 4 months old, and the parents’ level of hostility and conflict are unrepresentative of the general population of parents facing decisions about parenting plans for young children (Solomon, 2013). Solomon (2013; Solomon, 2013, April) also believes that the current states of research and of theory are insufficient to inform decision makers about the best age to begin overnights and about whether to encourage shared parenting time with infants and toddlers. The first outlier study is a report issued by the Attorney General’s department in Australia and copyrighted by a clinic founded by the study’s first author (McIntosh et al., 2010). This report, which has generated much publicity, is important because the first author promotes the results of this study as a basis for child custody decision-making and policy. Analyzing data from a national random sample, this study examined the link between overnights and children’s health and behavior. The study compared children in three age groups: under 2 years, 2–3 years, and 4–5 years. The sample is not representative of parents who are divorced because most of the parents were never married to each other (90% for the sample of infants and 60% for toddlers), and 30% never even lived together. Thus potentially the study is more relevant to parenting plans for never married parents, and less relevant to divorced parents, particularly those with infants. The study is unique in that it divided the children with overnights into two groups: occasional overnights (labelled primary care in this study: 1–3 nights monthly for infants and 5–9 nights for the 2- to 3- and 4- to 5-year-olds) and frequent overnights (labelled shared care in this study: 4–15 nights monthly for infants, an overly broad range by conventional definitions of shared parenting, and 10–15 nights for the older children). Dividing the groups in this manner brings one drawback and one benefit. The drawback is that it reduces the size of the groups. In some cases this produced unacceptably small samples: the smallest were the group of infants with occasional overnights, ranging from 14–20 depending on the variable analyzed (e.g., 14 for the measure of irritability), and 2- to 3-year-olds with frequent overnights, ranging from 5–25 depending on the variable analyzed (e.g., 5 subjects for a rating made by teachers and daycare attendants of conflict with the child; 25 subjects for the mother’s evaluation of the child’s emotional status). An analysis based on five respondents is unlikely to provide meaningful data. The benefit of differentiating the two overnight groups is that it allows a test of the hypothesis generated by those attachment theorists who raise concerns that overnight separations from their primary parent (almost always the mother) harm young children. Solomon and George (1999a) articulated a hypothesis of linear effects whereby any harmful effects of overnights “should be more pronounced the longer and/or the more frequent the overnight separations are and the earlier such arrangements are put into place” (p. 5). Basically, if overnights are bad for young children because they separate them from a parent designated as a primary caregiver, we would expect that the longer and more frequent the separations, the worse the effects. We present the results of this study here. A subsequent section discusses concerns about the manner in which these results have been interpreted and promoted. For infants, two of six outcomes were interpreted as  ore negative for frequent overnighters compared with occasional overnighters, but not compared with infants with no overnights (irritability and “visual monitoring of the primary caregiver”—infants with no overnights had the most negative irritability score). Four of six outcomes showed no difference: physical health, wheezing, mothers’ concerns about the infant’s development, and negative responses to strangers. More wheezing was reported for infants with frequent overnights compared with occasional overnighters, but not compared with infants with no overnights. This difference approached but did not reach statistical significance. For the 2- to 3-year-olds, two of seven outcomes were interpreted as negative for frequent overnighters compared with the other two groups (persistence and behaviour problems with mother). Four showed no difference for frequent overnighters compared with the other two groups: physical health, conflict with caregivers, mother’s evaluation of the child’s emotional functioning, and response to strangers. A trend that fell just short of statistical significance was better global health for children with overnights, whether frequent or occasional, when compared with children with no overnights. The one positive outcome for frequent overnighters compared with the other two groups was less wheezing. No analyses were reported for the toddler group that compared occasional overnighters with no overnighters, so no claims can be made about the desirability of allowing versus depriving toddlers of occasional overnights. Only 1 of 13 analyses (none for infants under 2 and one for 2- to 3-year-olds regarding persistence) supports the linear effects hypothesis that the more overnights the worse the outcome. Infants with occasional overnights (which in this study means as much as three nights per month) were less irritable and tended to wheeze less than did infants with no overnights or frequent overnights. Toddlers, age 2–3 years, with frequent overnights wheezed less than those with occasional or no overnights. These positive links with overnights challenge the assumptions of those who, like the study’s first author, discourage parenting plans that allow infants to spend overnights with both parents. The second outlier study, with the assistance of a widely distributed press release, similarly has garnered a lot of publicity (Tornello et al., 2013). The more impact a particular study has on child custody  ecisions, the greater scrutiny it merits. Similar to the McIntosh et al. (2010) report, the sample was composed predominantly (85%) of children whose parents had never been married to each other, but with a larger sample of overnighting children. The data were drawn from the Fragile Families and Child  Well-Being Study of children born to inner-city low-income (62% below the poverty level), racial/ethnic minority families (85%), a

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majority of which had a parent incarcerated some time before their children reached the age of five years (50% fathers, 10% mothers) and whose parents had nonmarital births from more than one partner in their teenage or young adult years (65%). Reliable data from such a sample is relevant to families in similar circumstances and offers an opportunity to test the hypothesis that overnights leave children vulnerable to other family stressors. The Fragile Families sample is not representative of impoverished families in general, of those above the poverty line, and those who were married and subsequently divorced. Naturally, results based on this sample are largely irrelevant to parents who can afford custody litigation. But the results may assist those who advise parents in fragile families or formulate policy for such families. Based on mothers’ reports, the researchers categorized 1-yearolds according to the number of overnights they spent with their fathers each year: day contact only, some overnights (from 1 to 51), and frequent overnights (52 to 256, or 1 to 5 nights weekly). Note that the frequent overnight group included residential plans ranging from traditional mother custody arrangements, to equal physical custody, to shared custody in which children spent 2/3 of their time in the father’s care. About 42% of the 1-year-olds had overnights. Four groups were created for the analysis of 3-yearolds, again based on the number of overnights they spent with their father each year: day contact, rare overnights (1–12), some overnights (13–127), and frequent overnights (128 –256). The latter group meets conventional definitions of joint physical custody or dual residence, with the high end representing arrangements where the children spent 2/3 of their time in the father’s care. Based on clinical experience, the theory of monotropy, and only three studies (the authors overlook the additional studies discussed  above), the authors hypothesized that very young children who frequently spend the night at their fathers’ home would have more insecure attachments with their mothers. The outcome measures were the mothers’ responses to an abridged and modified version of an established measure of attachment, completed when the children were 3 years old, and the mothers’ responses to a standard checklist of children’s behaviors. One strength of the study is that it took into account the mother’s report of depressive symptoms, of her relationship with the father, and of her rating of the quality of the father’s parenting. The only significant finding with respect to a link between overnight status and attachment to the mother was that children who at age 1 had frequent overnights (1 to 5 overnights per week) were more likely than those with some overnights to be insecurely attached to their mothers at age 3. The relationship was nonlinear in that the children with frequent overnights and those with some overnights were not more likely to be insecurely attached than those with day contact only. (The percent of insecure attachments was lower among those who had some overnights compared with those who had day only contact, but this difference was not statistically significant.) Also, there were no significant links between overnights at age 3 and attachment. As with McIntosh et al. (2010), the authors gave no explanation for findings that failed to support the linear effects hypothesis. If overnights with fathers are hypothesized to stress children’s attachment to their mothers, how are we to understand the finding that children who slept every night in their mothers’ homes showed no more favorable attachment outcomes than those who occasionally or frequently slept apart from their mother? Two concerns are important to keep in mind when considering these data on children’s attachment to their mothers. First, interpreting the higher rate of insecure attachments to mothers in the frequent versus some overnights is confounded by an unfortunate design problem. More than half of the infants in the frequent overnight group actually lived predominantly with their fathers (26 of the 51 frequent overnighting infants for whom attachment was measured, some spending as much as 70% of overnights with their fathers). (For the 3-year-olds, 45 of the 60 for whom attachment was measured lived predominantly with their fathers.) When the outcome of interest is the infant’s attachment to the parent who provides the majority of care, this group of atypical families should be eliminated from an analysis of infant-mother attachment. Particularly in a sample drawn from a population whose mothers had higher rates of substance abuse, depression, and incarceration (McLanahan, 2013), without knowing why these babies were living with their fathers, we cannot assume that overnights in their fathers’ home caused children’s insecure attachment to their mothers any more than we assume that the presence of umbrellas causes rain. The second concern is that the Toddler Attachment Q-sort (TAQ) used to measure attachment security was abbreviated and modified from an established measure (the Attachment Q-sort [AQS]), but there is no evidence of the validity of the reduced version TAQ. Also, in place of trained raters using the TAQ to classify mother– child attachment based on hours of observed interactions, in order to save money the Fragile Families study had the mothers rate the behaviors that make up the attachment classification. There is some question about what is being measured when mothers complete the AQS in place of trained raters (van IJzendoorn, Vereijken, Kranenburg, & Riksen-Walraven, 2004; Waters, 2013). Even if the measure of attachment was valid and interpretable, when relying on these results to advocate for or against overnights, it is important to go beyond statistically significant differences to ask if the differences raise meaningful concerns about development. Recall how the daycare researchers clarified that the higher level of problem behavior linked to time in childcare centers still remained within the norm of behavior that required no special attention. And the irritability score for frequent overnighters in the Australian study (albeit derived from a measure of questionable reliability), although higher than the occasional overnighters was nonetheless identical to the sample of children in intact families and was in the normal range for the larger data set of Australian children. Similarly, in a population of families in which mothers are below the poverty line or have not completed high school, the rate of insecure attachment scores on the TAQ is 49%. All the groups in the Tornello et al. (2013) study, regardless of frequency of overnights, had lower percents of insecure attachment than what we would expect for children living in poverty with poorly educated mothers. In contrast to the attachment measure that was modified from the original instrument and lacks evidence for its validity, children’s behavior was assessed with a standard instrument administered in a standard manner. Behavior as rated by their mothers created seven variables each for children age 3 and 5. Of the 14 analyses, none showed statistically significant differences with one

SOCIAL SCIENCE AND PARENTING PLANS FOR YOUNG CHILDREN

exception. Frequent overnights at age 3 predicted more positive behavior at age 5 than day contact only and rare overnights. Advocacy in Place of Critical Thinking and Science The manner in which the studies by McIntosh et al. (2010) and Tornello et al. (2013) are being interpreted and promoted by advocates and applied by those who make policy and custody decisions have raised concerns among social scientists (Lamb, 2012a, 2012b; Ludolph & Dale, 2012; Millar & Kruk, 2014; Nielsen, 2013b; Cashmore & Parkinson, 2011; Pruett et al., 2012; Warshak, 2012). In discussing the results of McIntosh et al. (2010), it is important to go beyond synopses of the results presented in the report itself, and subsequently by the first author, which express concern about overnights for children under four. A very different picture emerges when analyzing the report’s data. The discrepancies are important because the 169-page report is far longer than a typical article in a scientific journal and many readers—particularly legislators, the media, and others not versed in research psychology—may read the synopses only and take these as an accurate and complete overview of the study’s results. Multiple problems exist in the design, procedures, data analysis, data reporting, and interpretation of results of the McIntosh et al. (2010) study (Cashmore & Parkinson, 2011; Lamb, 2012b; Ludolph, 2012; Nielsen, 2013c, 2013d; Parkinson & Cashmore, 2011). These are the type of problems that can affect the admissibility and weight of the study when proffered as evidence in custody litigation. They include observations such as the following: • The report’s synopsis (McIntosh et al., 2010, p. 9) selectively presented what the authors interpreted as negative outcomes attributed to overnights, but ignored the more numerous findings that showed no statistically significant differences attributed to overnights or that showed benefits of overnights (for a discussion of this cherry picking strategy, see Johnston, 2007). McIntosh has been criticized for ignoring opposing viewpoints when she selected theorists to interview who support the concept of an attachment hierarchy, for a journal issue that she edited, and excluded those whose views challenge this position (Lamb, 2012b; Ludolph, 2012). She then gave a skewed summary of viewpoints that selectively excluded conflicting information and created a false impression of consensus. • The authors drew unwarranted conclusions about their data. Consider this sentence from the synopsis: “Infants under two years of age living with a nonresident parent for only one or more nights a week were more irritable, and were more watchful and wary of separation from their primary caregiver than those primarily in the care of one parent” (p. 9). The first author subsequently described these negative outcomes as “a cluster of stress regulation problems” (McIntosh, 2011, p. 3). This inference reveals an analytic gap between the data and the interpretation of data (for discussions of the legal implications of such a gap for the admissibility and weight accorded to social science evidence, see Zervopoulos, 2008 and Zervopoulos, 2013). Because attachment theorists note that when infants are anxious they look at their mothers and try to get her attention, the authors assume that the more infants looked at and sought their mothers’ attention, the more anxious they were about her availability. This commits the logical error known as affirming the consequent.

The authors interpreted the mothers’ responses to three questions as an index of the infants’ insecurity and anxiety about separation from their mothers.

1 The questions were extracted from the Communication and Symbolic Behavior Scales (CSBS), a measure of an infant’s readiness to learn to talk versus being at risk for communication delays (Wetherby & Prizant, 2001). Paradoxically, the study interpreted scores that indicate healthier cognitive development (greater readiness to learn to talk) as a negative outcome (anxiety), although none of the three questions reference anxiety. Moreover, the 3-question “visual monitoring scale” was composed solely for the purposes of this study and has no known validity or reliability. Without such indices of the measure’s scientific value, the results are uninterpretable. In legal parlance, the measure is unreliable in the sense that it is untrustworthy as an index of what it purports to measure (Daubert v. Merrell Dow Pharmaceuticals, 1993).

The study drew negative conclusions about overnights based on scores that were within the normal range. The mean irritability score for the frequent overnighters and the infants in intact families was identical, and the mean score for all groups studied was within the normal range (Sanson & Mission, 2005). Thus if the irritability among overnighting infants, the authors should express equal concerns about infants being raised in intact, two-parent Australian homes. Similarly, mean score on behavior problems with mother was well within the normal range and close to that of children from intact families (Smart, 2010). The synopsis referred to specific problem behaviors such as refusing to eat, hanging on to the parent, and often being very upset (although the report gives no scores for these individual behaviors). The larger database from s data was extracted supports common sense: reports, nearly 50% of toddlers sometimes refused to eat and sometimes hung on their mother when she tried to leave, and nearly 40% often got upset with their mother (Smart, 2010). It is a mistake to draw negative conclusions about a parenting s behavior that falls within a normal range.

• Data are only as good as the validity and reliability of the measurements. In the case of the outcomes in the Australian study, none of the four significant negative outcomes, nor the one that approached but did not reach statistical significance, were based on measures that have demonstrated acceptable validity or reliability (Nielsen, 2013d). In addition to the problems with the visual monitoring scale, the reliability of the irritability scale falls in the “questionable” range (George & Mallery, 2003); the interpretation of the wheezing measure, based on only one question, was faulty; the persistence measure lacked any reported validity, reliability, or norms; and the scale of behavior problems with the mother, abridged from a standard measure, had no measure of reliability or validity for the new instrument. Also, the study reported data only from one parent, not both. Previous studies have found that reports of mothers and fathers about their children’s wellbeing can vary significantly.

1 When this child plays with toys, does he/she look at you to see if you are watching? ; When you are not paying attention to this child, does he/she try to get your attention? ; Does this child try to get you to notice interesting objects – just to get you to look at the objects, not to get you to do anything with them?

Continued…

This document is copyrighted by the American Psychological Association or one of its allied publishers. This article is intended solely for the personal use of the individual user and is not to be disseminated broadly.

A copy can be purchased here…

Psychology, Public Policy, and Law © 2014 American Psychological Association 2014, Vol. 20, No. 1, 46–67 1076-8971/14/$12.00 DOI: 10.1037/law0000005

A Personal Message from ISSAC BROTT:

I am researching a \’family\’ pshychologist called Jennifer Neoh who is often appointed by the family law court to render reports which seem to be habitually damning to me and destructive to families.I have discovered quite a bit but need more.In particular those men she has applied a PAI test to.I was a family lawyer for 32 years so I know what I am doing.All are welcome to contact me.ISSAC BROTT 0419586146

http://www.f4joz.com/news/newspage.php?yr=8&id=10043

— Regards F4Joz Team www.f4joz.com

Ben Schneiders

Senior writer for The Age

parents who share the care of their children appear to be managing it far more amicably, with a marked decline in conflict between former partners and more people reporting friendly or co-operative relationships.

Research by academics at the Australian National University found that among parents who separated in late 2009, only 15 per cent reported being in conflicted or fearful relationships with their former partners. That compared with nearly a third of parents who split in late 2006.

The data, based on people who registered with the Child Support Agency, also showed an increase in separated parents in friendly and co-operative relationships. It had risen from about half among those who split in 2006 to 61 per cent three years later.

The shared care of children is becoming more common with a near doubling in the past decade, although it occurs in only about one in nine separated families. Shared care is defined as when the children are with each parent for at least 30 per cent of the time.

ANU Associate Professor Bruce Smyth, a report co-author, said the data was encouraging.

It came despite concerns  family law changes in 2006 – which require greater consideration by courts to consider shared care – could lead to more children suffering from being used as a bargaining chip between parents in high conflict.

Dr Smyth said there were some big surprises from the research, including that increases in shared care largely occurred before the change to the law and had plateaued since. Another was  separating partners were becoming more co-operative.

Dr Smyth said one important factor might be the extra money spent on support services, such as family relationship centres.

”Not going to court and fight but instead to talk things through is changing the complexion of how things are run,” Dr Smyth said.

There also appeared to be a continuing cultural shift to fathers wanting to take a greater role in their children’s lives.

Shared-care families tend to be dual income with higher educated parents, research shows. They are likely to live close to each other and have some flexibility over work hours. That makes positive outcomes for children more likely.

But not all shared care works for children, Dr Smyth said. Among parents in high conflict with court-imposed rigid arrangements, the outcomes can be poor with children feeling ”caught and used”.

Dr Smyth said the best arrangements were those that were flexible and reflected the children’s needs.

February 11, 2014

By Doug Ireland Staff writer   The Daily News of Newburyport       Tue Feb 11, 2014, 03:00 AM EST

Dear member,

A message from CAP

I am writing to you personally to let you know that Pru Gowards legislation will pass if we all do not stand up against this, You being a member gives you the reason to do this as your here because you want your children returned.

What we need from you is participation in the group you can only be helped if you help yourself. We value your efforts and need more help so if you can that would be great. The post that have been put up are not just for reading but to empower you to comment, to have your say and fight for your children.

This fight is for everyone a collaboration of people working together to STOP the injustices and crimes that have gone on for far too long.

If you want Admin or help from others then help yourself show us your fighting spirit, show us by working with us. What does need to be done ASAP is the Victims Impact Statement.

Please down load this from the cap fb page or in files In order to save our stolen children we MUST provide case evidence to the Australian Senate to force an inquiry into the corruption of the Australian Child Protection Industry and abolish the crimes of the current state and territory legislation that allows unregistered caseworkers opinion to legally kidnap our children and grandchildren until they are 18 years old.

Every member of their family and significant others touch by the forced removal of a child this is YOUR chance to really make a difference and bring an END to the New Stolen Generation of Australian Children.

Completing this VIS is VITAL to make changes for your stolen children. It will be a very difficult process completing the VIS but no more difficult then the worry, pain, grief and loss that we all suffer everyday for our stolen children and grandchildren.

Please take the time to fill in this Victim Impact Statement (VIS) the “Forgotten Australians” We required only 516 VIS to achieve their Senate inquiry. If anyone requires help or support to complete this document just ask …

Write The Hon. Barry Robert O’FARRELL,  MP

http://www.premier.nsw.gov.au/contact-premier-new-south-wales

Thanks

CAP

To bring an end Why this is important sign here

Deputy Chief Justice Faulks Family Court of Australia is a Dickhead, judges and lawyers are liars that’s the truth the whole truth and nothing but the truth, they have no regard for truth and no intention of getting to the truth or delivering justice.

About NJCA

Managing People in Court Conference

National Judicial College of Australia and the

Australian National University

February 2013

2

INTRODUCTION

1. Most judges tend to couple the word self-represented litigant (SRL) with an

expletive. It is customary to regard them as difficult, time-consuming,

unreasonable, and ignorant of processes of the law.*

2. Some twelve years ago I wrote a paper in which I proposed that courts should

regard self-representation by litigants as a challenge rather than as a problem. In

revisiting the subject over a decade later, I find that my views about the matter

have not changed substantially. There have been some developments in all

courts in relation to SRLs but the challenge remains.

3. It has been said there are three things that can be done in relation to selfrepresentation

by litigants: one is to get them lawyers, the second is to make

them lawyers and the third is to change the system. Self-representation has

reached a level in many courts where it is common for at least one of the parties

to be unrepresented for one half of the time. This means that courts are no

longer dealing with a minority aberration but are being obliged to contend with

change which may require altering the way in which courts operate. If it

becomes the norm for many litigants to be self-represented, the justification for

retaining existing court procedures based on parties’ being legally represented

may no longer be valid.

4. This paper explores how each of the three suggestions could assist SRLs’

interaction with the court system and improve the conduct of litigation where an

SRL is involved. This paper does not purport to provide the answers. It is

acknowledged that the challenges presented by SRLs have existed for some time

and solutions have been difficult to find. His Honour, Justice Geoffrey Davies

(as he then was) said:

I believe that the question of how to cope with [the plight of the

unrepresented litigant] is the greatest single challenge for the civil justice

system at the present time.

* I acknowledge the invaluable assistance I have received in the preparation of this paper from my

Legal Associate, Ms Carrie Gan, and also from Mr Callum Musto. Many of the good things result from

their research on my behalf. They are, of course, in no way responsible for any of the shortcomings in

this paper.

3

… Cases in which one or more of the litigants is self-represented

generally take much longer both in preparation and court time and require

considerable patience and interpersonal skills from registry staff and

judges.1

5. What this paper aims to do is generate ideas and discussion about possible ways

to improve the situation.

THE CHALLENGE OF THE SELF–REPRESENTED LITIGANT

THE CHALLENGES PRESENTED BY SELF–REPRESENTED LITIGANTS

6. The Australian court system is an adversarial system. In this system, the court

has a substantially passive role and relies on the parties to present all material

that will be relevant/necessary to enable the court to make its decision. An SRL

is not a qualified legal practitioner and usually does not have the expertise to

provide the assistance to the court that a solicitor or barrister would. In the

adversarial system, this lack of assistance from parties hinders the court in

discharging its function2 – that is, to make decisions about disputes parties

cannot themselves resolve.

7. Because SRLs are not properly qualified and are not officers of the court, they

are:

independent of, and not governed by the duties owed to a court by a legal

practitioner upon which the operation of the court system is so highly

dependent. Those duties are duties of disclosure to the court, of avoidance

of abuse of the court process, to not corrupt the administration of justice

and to conduct cases efficiently and expeditiously.3

8. Moreover, when a dispute involves one party who is self-represented and

another who is represented by a legal practitioner, this appears to create an

unlevel playing field. This in turn raises issues “about the fairness of the legal

1 Geoffrey Davies, ‘The reality of Civil Justice Reform: Why we must abandon the essential elements

of our system’ (2003) 12(2) Journal of Judicial Administration 155,168.

2 Richard Stewart, ‘The self-represented litigant: A challenge to justice’ (2011) 20(3) Journal of

Judicial Administration 146, 155.

3 Hon Justice Robert Nicholson AO, ‘Australian experience with self-represented litigants’ (2003)

77(12) The Australian Law Journal 820, 821.

4

process facilitated by the court.”4 It might be said that the “playing field” of

litigation is never truly level, even when both parties are represented, because of

the varying skills and abilities between solicitors and counsel. However, the

field is more markedly uneven in cases where a lay-person is on one side and a

qualified practitioner is on the other. The disparity in skill and knowledge raises

issues as to a court’s duty to assist the SRL. This is explored in more detail later

in this paper. The obligation of the court to provide some advice (if not

assistance) to SRLs5, and an SRL’s lack of understanding of the process,

necessarily means more time is required to finalise the proceedings.

9. An SRL does not only present challenges for the court; the court proceedings

present challenges for the SRL. He or she is dealing with foreign and complex

rules and processes (many of which might feel counter-intuitive to a lay person)

and a language that sounds like English but nevertheless does not make any

sense to him or her.

10. In addition to the procedural barriers, the SRL also faces administrative barriers

which lawyers are generally not troubled by. Unlike lawyers, SRLs are not

familiar with the appropriate forms to fill out and knowledge of such basic

things as where the court building is located. They do not have working

relationships with court staff. All of these can make the litigation process much

harder to navigate.6

11. The process of presenting a case before the court is also unfamiliar to SRLs and,

again, may feel counter-intuitive:

… A plaintiff must frame the facts in a way which includes all legally

relevant allegations, and is not obscured by extraneous material. Thus, in

most civil claims, matters such as motive will be wholly irrelevant. This is

counterintuitive. From a layperson’s perspective, the task of the court is to

do justice. From such a viewpoint the malicious motivation of a contract

breaker is highly relevant – much more so, it could be argued, than the

fact that the breach is tenuously justified by a contractual force majeure

4 Richard Stewart, above n 2.

5 In Re F: Litigants in Person Guidelines (2001) FLC 93-072.

6 Duncan Webb, ‘The right not to have a lawyer’ (2007) 16(3) Journal of Judicial Administration 165,

172.

5

term, or that the plaintiff first breached the contract by failing to deliver

on time due to unavoidable external matters. …7

WHY ARE PEOPLE SELF–REPRESENTING?

12. There are a variety of reasons why people are self-represented. Some may not be

able to afford to pay a lawyer. Some may feel they do not need a lawyer. For

example, in uncontroversial matters such as an uncontested divorce the value of

the dispute is seen to be disproportionate to the lawyer’s fees. Some may be

disenchanted with the legal profession and hold the view that involving a lawyer

will only make the dispute more acrimonious whereas they could resolve it

themselves in an amicable fashion.8

13. But, regardless of the reasons as to why someone is self-represented, it is clear

from available data that SRLs continue to make up a significant proportion of

litigants. In the 2011-2012 financial year, 27 per cent of finalised cases in the

Family Court involved at least one SRL. In 2007-2008, the figure was the same.9

In the High Court, 41 per cent of special leave applications in the 2011-2012

financial year was filed by SRLs.10 In 2007-2008, that figure was 67 per cent.11

14. The significant number of SRLs coupled with the types of challenges they

present to the court system should cause everyone in the court system to think

about what can be done to tackle those challenges.

TACKLING THE CHALLENGE

WHAT HAS ALREADY BEEN DONE?

15. In 2001, the AIJA published the Litigants in Person Management Plan: Issues

for Courts and Tribunals (“Litigants in Person Management Plan”).12 This

7 Ibid, 171.

8 Ibid, 170-171.

9 Family Court of Australia, Annual Report 2011-2012, 62.

10 High Court of Australia, Annual Report 201-2012, 15.

11 High Court of Australia, Annual Report 2007-2008, 18.

12 Litigants in Person Management Plan: Issues for Courts and Tribunals, AIJA Courts and the Public

Committee (2001).

6

document was “intended to provide a range of information and ideas for courts

and tribunals to draw on in formulating their own management plans.”13

16. Since the publication of Litigants in Person Management Plan, regardless of

whether courts have adopted the ideas discussed in that document, courts in

Australia have “increasingly undertaken initiatives designed to assist [SRLs] and

to ease their impact on the court system.”14

17. The Family Court, for example, has implemented various strategies to

streamline the process for SRLs. These include providing do-it-yourself kits for

guidance and assistance on completing some of the most common forms,

including consent orders, financial statements and affidavits; providing

compulsory training for all client service staff to help them recognise the need to

spend more time with SRLs and assisting staff in tailoring services to meet the

needs of the Court’s different client groups; and providing information on the

Family Court website including electronic versions of information brochures,

kits and court forms which can be downloaded by SRLs; interactive information

including a virtual tour of the Court, a step-by-step guide to proceedings in the

Court and links to legislation and Rules of the Court.15

18. The Queensland Courts website has a specific section for SRLs. That section

provides information about advice and support available to SRLs, possible

avenues where SRLs can obtain legal advice, obtain a trial date, forms and

practice directions.16

19. Institutions other than courts have also implemented strategies to improve the

plight of SRLs. In 2008, Victoria Legal Aid published a DIY kit for family law

matters, How to run your family law case. Unlike the Family Court’s DIY kits

which relate only to specific forms such as an application for consent orders

form or an application for divorce form, the Victoria Legal Aid DIY kit covers

family law proceedings more broadly, including information on areas such as

13 Ibid, 1.

14 Forum on Self-Represented Litigants, AIJA and the Federal Court of Australia (2004), 3.

15 Family Court of Australia, Self Represented Litigants (29 January 2013) Family Court of Australia

<http://www.familycourt.gov.au/wps/wcm/connect/FCOA/home/about/Media/Fact_Sheets/FCOA_SR

L>

16 Queensland Courts, Representing yourself in court (29 January 2013) Queensland Courts

<http://www.courts.qld.gov.au/representing-yourself-in-court>

7

alternatives to litigation, making an application and choosing the right forum for

the application, preparing an affidavit and preparing for a trial or hearing.17

20. The Queensland Public Interest Law Clearing House Incorporated operates a

(unique) service that provides free, confidential and impartial legal advice to

SRLs.18 This service is discussed later in this paper and it is argued that such a

service could be established nationally to assist SRLs in all jurisdictions.

21. Despite the efforts to date to assist SRLs in the court system, the challenge

remains and from the statistics available, it would seem that SRLs continue to

form a significant proportion of litigants in the system. Therefore, it is necessary

to explore what more can be done to address the challenge.

GETTING THEM LAWYERS

Legal Aid

22. If a person is self-representing because he or she cannot afford a lawyer, the

State may assist through the provision of Legal Aid. However, there is always a

finite limit to the amount of Legal Aid available. Although governments might

view Legal Aid as a funding black hole, the funding provided to Legal Aid is

always perceived as not enough. In the 2011-2012 financial year, New South

Wales Legal Aid had a total income of $243.6 million and a total expenditure of

$244.7 million19, leading to a deficit of $1.1 million. In the 2011-2012 financial

year, Victoria Legal Aid received total income of about $153.8 million and total

expenses of about $160 million – a deficit of $6.2 million.20 Even when Legal

Aid operates at a “surplus”, it is not a big one. Legal Aid Queensland achieved a

budget surplus of $3.025 million in the 2011-2012 financial year.21

23. The strain on Legal Aid funding is demonstrated by the recent changes to Legal

Aid in Victoria. Victoria Legal Aid changed some of their eligibility guidelines.

Some of these changes came into effect on 7 January 2013. In family law

17 Victoria Legal Aid, How to run your family law case: A do-it-yourself kit to help you prepare a

family law case and represent yourself in court (February 2008).

18 Queensland Courts, Representing yourself in court (29 January 2013) Queensland Courts

<http://www.courts.qld.gov.au/representing-yourself-in-court/legal-advice-qpilch>

19 Legal Aid New South Wales, Annual Report 2011-2012, 68.

20 Victoria Legal Aid, Annual Report 2011-2012, 55.

21 Legal Aid Queensland, Annual Report 2011-2012, 38.

8

matters, “funding of parents who do not resolve matters through mandatory

family dispute resolution will be limited to trial preparation”. Victoria Legal Aid

say that they are not funded to meet the growing demand in the family law

courts and their priority is to fund Independent Children’s Lawyers in matters

where the court has identified that this is important. Changes to eligibility

guidelines in criminal matters mean that “appeals in the Victorian Court of

Appeal and the High Court that do not have a reasonable prospect of resulting in

a lesser effective sentence or non-parole period will not be funded.” Legal Aid is

“prioritising conviction and sentence appeals that would have a bearing on the

overall period of imprisonment the client would be liable to serve.”22

24. There are also changes to eligibility guidelines which will come into effect later

in 2013. In family law, clients who are “found to have contravened orders in the

Federal Magistrates Court, the Family Court and/or the Magistrates Court

without reasonable excuse will not be eligible for funding or will have their

funding removed”. Independent children’s lawyers will appear personally for

children in final hearings in the Federal Magistrates Court and the Family Court

rather than instructing counsel. In relation to summary crimes, “only those

facing actual imprisonment will be eligible for a grant of legal assistance”.

However, duty lawyers will continue to provide advice and representation to

people charged with less serious offences who are not eligible for Legal Aid.23

25. Whatever may be the system for supplying Legal Aid the State cannot provide

legal assistance to every litigant because there is a limit to the amount of funding

that the State can inject into Legal Aid. In my opinion, the State also should not

provide legal assistance to every litigant. To do so would almost inevitably

encourage litigation or prolong it.

26. In addition, within the concept of providing Legal Aid the question of

proportionality must inevitably arise. Lack of means should not ensure that a

case that lacks merit is pursued interminably at tax payers’ expense. Moreover,

priority should probably (and properly) be afforded to some classes of cases

22 Victoria Legal Aid, Overview of eligibility guideline changes that came into effect 7 January 2013

(29 January 2013) Victoria Legal Aid <http://www.legalaid.vic.gov.au/4922.htm#>

23 Victoria Legal Aid, Overview of eligibility guideline changes to come into effect during 2013 – dates

to be confirmed (29 January 2013) Victoria Legal Aid <http://www.legalaid.vic.gov.au/4923.htm#>

9

rather than others. Criminal cases involving the serious risk of incarceration

would feature on most priority lists – as would cases involving children and

child abuse.

27. While Legal Aid is an important and established means of obtaining lawyers for

SRLs, there are clearly limits to its availability both because of funding issues

and eligibility criteria.

Pro bono lawyers

28. SRLs may obtain legal representation from a lawyer who does pro bono work.

There are a variety of organisations who provide pro bono legal services – Law

Societies, Bar Associations or some community legal services.

29. It is arguable that lawyers should not be expected to provide free legal services

any more than plumbers might be expected to provide free plumbing. However,

the professionalism of lawyers and the community-centric nature of Australian

society mean that lawyers, as with other trades-people and professionals, will

frequently provide services to those who cannot afford to pay for them and who

do not qualify for Legal Aid. It would be a mistake for Government to impose

the institutionalisation of such free services (other than through the provision

of government-funded Legal Aid). Governments ultimately must wear the

responsibility for providing what the individual cannot and for making policy

decisions about who is to be assisted and who is not. This is a community

obligation which must be subject to the priority allocated to it by the elected

government.

30. There are also ethical and practical issues associated with pro bono services.

One is the issue of liability and accountability when a client is dissatisfied.

Consider, for example, a client who is not able to pay for a lawyer and who is

ineligible for Legal Aid, but who has been able to obtain legal assistance

through a centre that provides pro bono services. If the client feels the service

may not have been up to the standards he or she would have received from a

paid lawyer, should the pro bono lawyer be held accountable? The service may

have put the client in a better position than if he had no legal assistance

whatsoever, but the client may not feel that the level of service was equal to that

10

which would have been provided by a privately retained lawyer.24 The ethical

questions raised by this issue are articulated by a US article about the ethical

issues of pro bono advocacy:

It seems dangerous for the profession to chastise those who are willing to

provide help when others will not, but whose performance does not meet a

client’s expectations. On the other hand, it is very important that the

assistance provided to individuals in these settings be held to an objective

standard, and failure to meet that standard means something must be done.

Determining this standard, however, may be more difficult …25

31. A pro-bono lawyer may suffer a moral conflict when providing pro bono

services. Helping a client who has drug issues, for example, may cause moral

conflict for some lawyers.26 This raises the question of what it means to “do the

public good”:

… it might be necessary to shift the perception that pro bono work should

align with the moral interests of those who are performing it, and rather

advocate the position that “doing public good” means assisting all those in

need, regardless of whether the volunteer sympathises with their plight.

The issue then becomes whether a lawyer would be able to perform a

service competently if he or she had a moral conflict with the outcome. …

Normally money is a good way to bridge this gap, but in the pro bono

sector, it may be far more difficult.27

32. Lawyers who undertake pro bono work provide a commendable and important

service. Pro bono lawyers are an excellent avenue through which SRLs can

obtain advice and representation. However, the availability of the service

depends on the availability of lawyers who are volunteering and, furthermore,

there are ethical and practical issues which may mean that pro bono services are

not suitable for every SRL.

24 Elliot A. Anderson, ‘Unbundling the ethical issues of pro bono advocacy: Articulating the goals of

limited-scope pro bono advocacy for limited legal services programs’ (2010) 48(4) Family Court

Review 685, 694.

25 Ibid.

26 Ibid, 695.

27 Ibid.

11

Unbundled legal services

33. One way of expanding legal services available to SRLs, whether through Legal

Aid or pro bono services, is to provide unbundled legal services, that is, to

provide legal services for part of the legal proceedings rather than for the

whole. A litigant may be able to obtain legal advice initially “just to know where

[I] stand” or a litigant may obtain legal advice for the preparation of court

documents or obtain representation just for the trial.

34. There are advantages and disadvantages associated with unbundled legal

services. The most obvious advantage is that an SRL who lacks financial

resources can obtain legal assistance for some of the proceedings, if not for all

of the proceedings. An obvious disadvantage of unbundled legal services is that

the lawyer will not have as good a working-knowledge of the matter as a lawyer

who provides the “whole service”. If a lawyer has carriage of a matter from

beginning to end, he or she has a good working-knowledge of the facts of the

whole case (rather than segments of it). This means the lawyer is in a good

position to provide competent advice about the litigation. If a lawyer is

consulted only for one particular stratum of the litigation, he or she may be

given inadequate information or instructions which can, in turn, lead to less than

optimal advice – or possibly to negligent advice.

The Queensland Self Representation Service

35. In Queensland, the Queensland Public Interest Law Clearing House has set up

the Self Representation Service (“the SRS”). The SRS provides pro bono

unbundled legal services to SRLs and was modelled on the Citizens Advice

Bureau at the Royal Courts of Justice in London.28 This paper suggests that the

SRS is model of how unbundled legal service can and should be provided

nationally in Australia.

36. The SRS started operation in 2007. It initially assisted SRLs whose matters were

in the Queensland Supreme Court, District Court and Court of Appeal. The SRS

28 Andrea de Smidt and Kate Dodgson, ‘Unbundling our way to outcomes: QPILCH’s Self

Representation Service at QCAT, two years on’ (2012) 21(4) Journal of Judicial Administration 246,

247.

12

expanded into the jurisdiction of the Queensland Civil and Administrative

Tribunal in 2010. More recently, a pilot service has been implemented in the

Federal Court and Federal Magistrates Court in Brisbane.29

37. The SRS provides one initial appointment to all SRLs.30 However, for clients

who are unable to afford private legal assistance and who are ineligible for

Legal Aid, the SRS provides any number of appointments (as necessary) to

legally assist those clients.31 The type of unbundled assistance provided to SRLs

usually falls within the following categories:

• · Legal advice, including advice about commencing proceedings, prehearing

and compulsory conference advice, advice about making

interlocutory applications and complying with or enforcing decisions;

• · Assistance to draft documents, including forms, submissions and

affidavits;

• · Referral to non-legal support services.32

38. The SRS model is unlike the traditional client-solicitor relationship as the clients

are not “represented” by the SRS solicitors. The SRL clients “remain

responsible for the conduct of their proceedings” – they are responsible for

appearances before and communications with the court, the other parties and the

other parties’ lawyers.33

39. The existence of the SRS is dependent on a non-recurrent grant of $127,882

from the Department of Justice and Attorney-General. That budget is sufficient

to employ one full-time solicitor and one part-time paralegal.34 However, the

29 Ibid, 246.

30 Tony Woodyatt, Allira Thompson and Elizabeth Pendlebury, ‘Queensland’s self-representation

services: A model for other courts and tribunals’ (2011) 20(4) Journal of Judicial Administration 225,

226.

31 Andrea de Smidt and Kate Dodgson, above n 28, 247.

32 Ibid.

33 Ibid, 247.

34 Ibid.

13

SRS is also assisted by member firms whose practitioners provide pro bono

services.35

40. The SRS is beneficial to SRLs in various ways. By giving SRLs advice and

assistance about all aspects of litigation, including how to commence

proceedings, make interlocutory applications, complete forms, and draft

affidavits and submissions, SRLs are better prepared and have a better

understanding of the court process. The SRL can “better communicate their case

to the court and other party” and the court benefits from a better prepared

participant.36

41. However, the operation of the SRS also presents challenges.

42. One recognised challenge of operating the SRS is how to disseminate

information about the SRS to people who need it most. To that end, the SRS has

taken an “active approach” and “identif[ied] the [SRS] to key stakeholders and

thus ensure that appropriate referrals to the [SRS] are made.”37 Referrals to the

SRS are made by the courts, Legal Aid, legal practitioners, government

departments, the Queensland Bar, community organisations and other sources.

By far, the greatest number of referrals come from the courts. An annual email is

sent by the SRS to the new intake of judges’ associates so they are aware of the

service and judges can make appropriate referrals.38

43. One problem which the SRS, or a similar pro bono unbundled legal service

provider, might face is how to properly limit the scope of assistance provided.

When a person retains a lawyer, the parameters of the service are usually set out

in an engagement letter or a costs agreement. However, when someone is

providing unbundled legal services (especially when this is done pro bono), the

process of limiting the scope of the representation/assistance can be difficult

because “individuals are not guided by payment parameters”. If a service similar

to the SRS is established across Australia, the organisations providing the

service should have signed agreements with the SRLs that clearly detail the

35 Tony Woodyatt, Allira Thompson and Elizabeth Pendlebury, above n 30.

36 Ibid.

37 Ibid, 227.

38 Ibid, 228.

14

parameters of the service to be provided and the relationship that will be formed.

Other important information that should be included in the signed agreements

include information about confidentiality and follow-up procedures.39

44. Another issue with pro bono unbundled legal services is that of lawyer/ “client”

privilege. Where the person privately pays for and retains a lawyer, privilege

applies to lawyer/client communications. However, where a lawyer is providing

pro bono unbundled legal services, that lawyer is not “representing” the “client”.

The person is not a “client” in the traditional sense of the word. Rather, the

lawyer is providing the person with assistance in discrete tasks. The issue of

privilege in relation to lawyer/ “client” communications should probably be the

subject of legislative prescription.

45. There is also the question of whether the services provided are covered by

professional indemnity insurance.

46. If the issues outlined above are properly addressed by Government, it would be

extremely beneficial for SRLs, the courts and the legal profession if a similar

service were implemented nationally across Australia.

MAKING THEM LAWYERS

47. If an SRL is not able to obtain any sort of legal assistance, an alternative means

of assisting SRLs is to provide them with some sort of training or information so

they can undertake their own litigation. (The SRS is one way of doing this.)

Obviously, the type of assistance provided to the SRL will depend on the needs

of the individual SRL. “[N]ot all [SRLs] are created equal” and some need more

guidance than others.40

48. Information and assistance can be provided to SRLs from a variety of sources –

court website, information sessions, and the Bench, to name a few. This section

examines each of these and the issues surrounding them.

39 Elliot A. Anderson, above n 24, 689.

40 John M. Greacen, ‘Self-Represented Litigants: Learning from Ten Years of Experience in Family

Courts’ [2005] The Judges’ Journal 24, 25.

15

Court websites

49. It has been mentioned above that the Family Court website provides a vast

amount of information for SRLs.41 The benefit of this website is that the SRLs

can access the information at their leisure and the information can help

familiarise SRLs with court processes so they have a better idea of what to

expect.

50. However, providing information on a website is clearly not going to assist SRLs

with every issue that confronts them during the litigation process. While website

information can provide SRLs with a basic understanding of the court and trial

process, websites cannot provide detailed information in relation to the

substantive aspects of the SRL’s case. For example, website information cannot

advise the SRL about his or her prospects of success nor can it draft affidavits in

accordance with the rules of evidence. An SRL requires more assistance than a

website can provide to run his or her own case.

51. The effectiveness of website information is also dependent on how easy it is to

access and how the information is organised so that the SRL can identify what

information is relevant for their matter. Providing a link to different pieces of

legislation will not be very effective if the SRL does not know the name of the

relevant legislation, or does not know the relevant section and has to trawl

through a long Act in order to find the law relevant to their matter.

52. The Alaska Court System Self-Help Centre for Family Law website is an

example of a website that effectively provides information for SRLs.42

Information is divided into different categories such as “child custody for

unmarried parents”, “child support”, “property and debt when ending marriage”

and “grandparents – visitation and custody”. Each category is, helpfully, a link

to the more relevant information. For example, the “grandparents – visitation

and custody” link leads to relevant information such as “what rights do

grandparents have regarding their children?”, “what forms are used to ask for

41 Family Court of Australia, above n 15.

42 Alaska Court System, Self-Help Center: Family Law (1 February 2013) Alaska Court System

<http://courts.alaska.gov/selfhelp.htm>

16

grandparent visitation?”, and “how do grandparents try to get visitation with a

grandchild?”.

53. While Australian courts provide information for SRLs, it is important that the

information is set out in a way that is easily accessed by SRLs and organised in

a way that is easy for SRLs to identify what is relevant for them.

Information sessions run at a court registry

54. Face-to-face information sessions held at the relevant court registry can be an

effective way of providing SRLs with the relevant information. Face-to-face

information sessions can be particularly beneficial because they give the SRL

the opportunity to ask questions of a real person if there is an issue in need of

clarification or explanation.

55. Alternatively, information sessions can by conducted by video, that is, SRLs

attend the court registry in groups and view an information video. This is done

in the family law jurisdiction in Indiana in the US. The “Family Matters” video

is:

intended to help litigants make an informed decision regarding legal

representation, provide resources for securing representation if they so

desire, and provide important information about the legal process and the

responsibilities they will be expected to fulfil if they represent themselves.

To avoid “information overload” for litigants, the video is broken down

into 30 short chapters which are designed to be easily understood by the

viewer. Chapters range from approximately one to three minutes in

length. … Although it is possible to view the entire video at one time, it is

suggested that litigants view it in sections as they progress through the

stages of their case.43

56. This paper will focus only on face-to-face information sessions.

57. The information sessions should not simply give SRLs an overview of the

different stages of court proceedings and the various forms that may need to be

43 Hon. Randall T. Shepard, ‘The Self-Represented Litigant: Implications for the Bench and Bar’

(2010) 48(4) Family Court Review 607, 612-613.

17

completed. People may find it difficult to retain information in bulk and any

information that is not needed for immediate processing may be easily

forgotten.44 Instead, the information sessions should ideally be targeted at

specific areas of the litigation process. For example, how to prepare an affidavit,

subpoenas, cross-examination, court-etiquette. That way, SRLs can attend the

information session(s) relevant to them and apply that knowledge immediately.

58. A question that arises in relation to face-to-face information sessions is whether

they will be run by court staff or by volunteers from the legal profession. There

are issues with both.

59. If the sessions are run by court staff, staff will need to be trained to ensure the

information provided is correct. The question arises as to whether/how much

funding will be provided for this. Training staff will require funding and, if

some staff are occupied with providing information sessions, additional staff

will be required to perform the court’s routine administrative work.

60. Some topics, such as cross-examination and preparing affidavits, raise further

issues. First, these topics require staff to undertake some sort of legal training. In

that case, it would be more appropriate for information sessions on these topics

to be run by volunteer lawyers rather than by court staff.

61. However, a question arises as to whether information sessions on such topics

should be run by the court registry at all. Topics such as cross-examination and

preparation of affidavits fall into a grey area where information provided might

constitute legal advice. A court must be impartial and independent and must not

provide legal advice to a litigant. If a court were to run information sessions,

whether through staff or volunteer lawyers, it would have to be careful to ensure

the content does not constitute advice.

62. If the information sessions are run by volunteer lawyers, conflicts of interest can

arise.45 For example, if the volunteer lawyer represents one party to litigation in

his paid employment as a lawyer, and the opposing party is an SRL attending an

information session run by the same lawyer, then that lawyer may be precluded

44 John M. Greacen, above n 40, 25 and 26.

45 John M. Greacen, above n 40, 30.

18

from providing information to the SRL or from continuing to represent his or

her client. This is even more so in circumstances where the information is on a

topic which can cross the boundary of information into the area of legal advice.

63. The likelihood of conflicts of interest arising can be diluted by having at least

two independent lawyers participate in the information sessions.46

Assistance from the Bench

64. Where there is an SRL in proceedings before the court, the court has a role in

providing the SRL with information. This role of the court has been the subject

of some discussion in case law.

65. In Re F: Litigants in Person Guidelines47 (“Re F”) the Full Court of the Family

Court considered the principles in Johnson v Johnson48 and set out revised

guidelines for judges when dealing with SRLs. Those guidelines are:

1. A judge should ensure as far as is possible that procedural fairness is

afforded to all parties whether represented or appearing in person in order

to ensure a fair trial;

2. A judge should inform the litigant in person of the manner in which the

trial is to proceed, the order of calling witnesses and the right which he or

she has to cross examine the witnesses;

3. A judge should explain to the litigant in person any procedures relevant to

the litigation;

4. A judge should generally assist the litigant in person by taking basic

information from witnesses called, such as name, address and occupation;

5. If a change in the normal procedure is requested by the other parties such

as the calling of witnesses out of turn the judge may, if he/she considers

that there is any serious possibility of such a change causing any injustice

to a litigant in person, explain to the unrepresented party the effect and

46 Ibid.

47 (2001) FLC 93-072.

48 (1997) FLC 92-764.

19

perhaps the undesirability of the interposition of witnesses and his or her

right to object to that course;

6. A judge may provide general advice to a litigant in person that he or she

has the right to object to inadmissible evidence, and to inquire whether he

or she so objects. A judge is not obliged to provide advice on each

occasion that particular questions or documents arise;

7. If a question is asked, or evidence is sought to be tendered in respect of

which the litigant in person has a possible claim of privilege, to inform the

litigant of his or her rights;

8. A judge should attempt to clarify the substance of the submissions of the

litigant in person, expecially in cases where, because of garrulous or

misconceieved advocacy, the substantive issues are either ignored, given

little attention or obfuscated …

9. Where the interests of justice and the circumstances of the case require it,

a judge may:

• · draw attention to the law applied by the Court in determining

issues before it;

• · question witnesses;
• · identify applications or submissions which ought to be put to the

Court;

• · suggest procedural steps that may be taken by a party;
• · clarify the particulars of the orders sought by a litigant in person

or the bases for such orders.49

66. The concept of the judicial officer’s role when assisting an SRL in court has

been more recently considered in Kenny v Ritter:50

49 In Re F: Litigants in Person Guidelines (2001) FLC 93-072, [253].

50 [2009] SASC 139.

20

The courts have recognised that when faced with a litigant in person, a

measure of judicial intervention is not simply permissible but necessary,

in order to ensure a fair hearing. The nature of the duty of a judge

conducting a trial with a self-represented party has been the subject of a

number of authoritative discussions. The general approach which a court

should take to a litigant in person in civil proceeding was addressed by

Samuels JA in Rajski v Scitec Corporation Pty Ltd:

In my view, the advice and assistance which a litigant in person ought

to receive from the court should be limited to that which is necessary to

diminish, so far as this is possible, the disadvantage which he or she

will ordinarily suffer when faced by a lawyer, and to prevent

destruction from the traps which our adversary procedure offers to the

unwary and untutored. But the court should be astute to see that it

does not extend it auxiliary role so as to confer upon a litigant in

person a positive advantage over the represented opponent. …

…

The scope of the duty of the court to the litigant in person is constrained

by the fact that the judge must endeavour to maintain the appearance of

impartiality.

…

… when the self-represented litigant is before the court, the judge must

ensure that a fair trial takes place. In order to achieve this, the judge is

required to assist the self-represented litigant. However, the judge must

equally ensure that despite any assistance to the litigant in person, the

perception of impartiality is maintained.51

[footnotes omitted, emphasis added]

67. Both Re F and Kenny v Ritter recognise that when an SRL appears in court,

there is a need for the court to provide the SRL with some assistance. However,

what is also recognised is the conflict between assisting the disadvantaged SRL

51 Kenny v Ritter [2009] SASC 139, [17], [19] and [23].

21

(the principle of fairness) and maintaining an appearance of impartiality and

independence (the principle of impartiality)52 and, of course, being impartial.

68. Impartiality is a fundamental characteristic of the court system:

The court, as one of the three arms of government, is the institution ultimately

and specifically charged with the function of resolving disputes and imposing

penalties for breaches of the rules of society (i.e. laws) …

…

It is suggested that public confidence in the court exists because there is a

presumption that the court is independent, impartial, fair and competent.53

[footnotes omitted]

69. In an adversary system like ours, SRLs need assistance from the Bench because

they are at a disadvantage. In an adversary system, it is up to the parties to run

their case, to present the necessary evidence in order for the judge to make a

finding in their favour. SRLs are required to do this as well, but their task is

much more difficult because they are not familiar with the processes, the

language is foreign, the rules are complex and the SRL has an emotional

investment in the proceedings before the court which makes his or her task less

objective and more difficult.

70. A judge can attempt to “level the playing field” by assisting the SRL in

accordance with the principles set out in Re F and Kenny v Ritter. But the judge

must take care not to assist the SRL so much so as to appear to be partial

towards the SRL or to create disadvantages for the represented party. This is

almost always easier said than done. The difficulty in achieving this balance is

aptly summarised by the Full Court in Re F:

… neutrality is a key feature of the adversarial system. Judicial assistance

cannot make up for lack of representation without an unacceptable cost to

matters of neutrality.

52 Richard Stewart, above n 2, 159.

53 Ibid, 149 and 151.

22

…

It is simply not possible to create a level playing field where one party is

represented by a professional and the other is not. Thus, to provide a

guideline to judges of this type, if applied literally, not only sets the judge

an impossible task but is likely to create unreal expectations on the part of

the litigant in person and at the same time give a false impression of lack

of impartiality by the judge to the party who is represented.54

71. The presence of SRLs in our adversary court system represents a conflict in the

fundamental principles upon which our court system is predicated – namely

fairness and impartiality. It is possible for the judicial officer to provide the SRL

with some assistance while at the same time preserving an appearance of

impartiality, but the assistance which the judicial officer can provide is

extremely limited. In circumstances where SRLs are a significant proportion of

all litigants, perhaps the most effective way to assist manage SRLs is not to

help
the SRLs better understand and adapt to the existing system, but to change

the system to reflect the needs of the SRL.

CHANGING THE SYSTEM

72. It is so much more comfortable to play the game with people who know the

rules and play by the rules, for knowledge to prevail over ignorance, experience

over naivety and skill over bumbling. However, what we should ask ourselves

from time to time, is whether the practices we follow, the laws we make, the

laws we interpret and apply, and the processes by which we reach decisions

need to be as complicated as someone “on the outside” might find them to be.

73. There are three areas, or perhaps three targets, that I want to address under this

general heading. They are the courts, the Government (the legislature) and the

profession.

A less adversarial system

74. A big part of the reason why SRLs are such a problem in our court system is

because our court system is an adversarial one where the judge is passive and

54 In Re F: Litigants in Person Guidelines (2001) FLC 93-072, [221] and [242].

23

relies on the parties to present all the relevant matters to the case in order for the

judge to make a decision. For reasons discussed above, the SRL does not fit well

in this system.

75. Perhaps one way to tackle the challenge of SRLs is to change the system and

make it less adversarial.

76. The Family Court introduced the Less Adversarial Trial (“LAT”) in relation to

children matters to provide an opportunity for a more understandable process, a

fairer process, and a process where the litigants themselves have a more direct

involvement in the proceedings and have a sense of ownership. The LAT was

designed to enable litigants to understand the proceedings better and for the

proceedings themselves to be more directive and hence more focused on the

matters that had to be decided, rather than on the multiple issues that the parties

may have felt were worthy of being dealt with.

77. There are several features of the LAT which would make the court system

somewhat easier for SRLs to participate in.

Speaking directly to the judge

78. In the Family Court, on the first day of the LAT, both of the parties are usually

given an opportunity to speak directly to the judge about what they would like

for their children. When a party speaks directly to a judge, rather than through a

lawyer, this may elicit admissions and concessions which would not ordinarily

have been made by lawyers, whose principal job (appropriately in the adversary

system) is to be the champions of their clients. By taking control away from the

lawyers and speaking directly with the parties, judges are able to get a much

clearer picture of the relationship between the parents and the aspirations the

parents have for the children.

79. Of course, the benefits of having a party speak directly to a judge are premised

on the SRL being an articulate and reasonable person. A querulous litigant who

speaks directly to a judge may complicate the proceedings rather than simplify

them.

24

Judge finalises and settles with the parties the issues in dispute

80. Unlike a conventional trial where it is up to the parties to identify the issues in

dispute, in the LAT the judge identifies the issues in dispute early on in the

proceedings. The judge settles the issues in dispute (and in need of judicial

determination) before the finalisation of the LAT or hearing/trial commences.

This approach focuses the SRLs attention on what needs to be resolved, instead

of allowing the SRL to canvas matters which are not relevant to the issues in

dispute.

81. This approach also allows the judge to identify to the parties what sort of

evidence is required in order to assist him or her in determining the dispute.

Again, this approach helps to focus the SRL’s attention on adducing evidence

that is relevant rather than allowing the SRL to drive the proceedings and

adduce evidence that the SRL thinks is relevant.

Judicial consistency

82. This is an aspect of the LAT that is helpful to both SRLs and to lawyers. In a

LAT, one judge presides over the whole proceedings, from beginning to end.

This allows the SRL to become familiar with the judicial style. There is

consistency in the way the proceedings are conducted, and the SRL does not

have to repeat the history of the proceedings to a different judicial officer every

time the matter comes before the court.

Litigants sitting at the Bar table

83. Most judges prefer to have a triangle of dialogue that involves a judge and two

lawyers, preferably counsel, at the Bar table. In my opinion this is a

perpetuation of the “old boys club”-like environment associated with litigation.

The triangle of dialogue should be at least as broad as the litigants. After all, it

is their matter which is the subject of deliberation. When I conduct a LAT, I

prefer litigants to sit at the Bar table. This brings them within the triangle of

dialogue and enables them to have a better understanding of what is occurring.

It also tends to discourage the “old boy chat” that sometimes occurs between

counsel and the judge and vice versa.

25

84. This applies also when one of the parties is self-represented. These days it

would be difficult to imagine a judge excluding an SRL from the Bar table. If an

SRL is at the Bar table and, at the same time, the other litigant is sitting further

back in the court, there may be a temptation for that person to regard the process

as excluding him or her in favour of the SRL.

85. Others will judge the success of the LAT – but it represents at least a bold step in

reviewing the court processes that have been in place for decades. It is not

simply accepting that change is a bad thing and that what has been for a long

time “tried and true” should never change.

The Government

86. Legislation is often complicated and sometimes incomprehensible – even to

judges. The law is there to govern all of society, not just lawyers. It is therefore

important that all of society, not just lawyers, understand the law.

87. It is arguable that a law that is not easily understood, or understood with

difficulty, should not be a law. How is it that a person, a citizen, is expected to

comply with something which is extremely complicated or incomprehensible?

Each of you will have a different favourite piece of incomprehensible legislation

but let me share one of mine with you.

88. The Income Tax Assessment Act has grown from a relatively thin pamphlet to a

two-volume Act – the 1936 Act and the 1997 Act. The 1997 Act was enacted in

an attempt to simplify the 1936 Act which had been amended so many times that

it became thousands of pages long and very complex with subsection after

subsection being created. An example of how complex the Income Tax

Assessment Act 1936 had become is s 102AAZBA which concerns the modified

application of CGT, in particular the effect of certain changes of residence:

For the purposes of applying this Act in calculating the attributable

income of a trust estate of a year of income (in this section called the

attributable income year), where:

(a) disregarding the assumption in paragraph 102AAZB(b), at any

time (in this section called the residence-change time) during

26

the attributable income year or an earlier year of income, the

trust estate ceased to be a resident trust for CGT purposes, and

became a non-resident trust estate; and

(b) the trust estate owned a CGT asset at the residence-change

time; and

(c) a CGT event happens in relation to the asset during the

attributable income year; and

(d) section 104-170 of the Income Tax Assessment Act 1997

(CGT event 12) applies to the asset in respect of the change of

residence for the purposes of the application of this Act apart

from this Subdivision;

then sections 411 to 414 (inclusive) apply to the asset as if:

(e) those sections had effect for the purposes of calculating

attributable income under this Subdivision instead of Part X;

and

(f) any reference in those sections to an eligible CFC were a

reference to the trust estate; and

(g) any reference in those sections to a commencing day asset

were a reference to the asset; and

(h) any reference in those sections relating to the eligible CFC’s

commencing day or the day following the eligible CFC’s

commencing day were a reference respectively to the

residence-change time or a time immediately after the

residence-change time; and

(i) subsections 412(2) and (3), and paragraphs 414(3)(b) and

(4)(b), referred only to the market value of the asset

concerned.

89. A lawyer might find this provision difficult to understand. A lay person would

almost certainly find this provision difficult to understand. There are some

27

things which contribute to this. First, the section is number 102AAZBA. The

numbering shows how complicated the tax rules are and how often they have

been amended – there are so many rules in place and the rules have been

changed so often that legislators had to resort to numbering the section with five

different letters. Second, there are many words in the section which have

legislative definitions. For example, “attributable income”, “trust”, and “resident

for CGT purposes”. In order to understand what these terms mean and to

understand s 102AAZBA itself, the lay person must flick back and forth

between this section and the interpretation section of the Act. Third, the

interpreter must read and understand sections 411 to 414 and then apply those

sections to the asset in the manner stipulated by s 102AAZBA. Finally, there are

terms which are technical terms whose definitions are not easily found in the

Act. For example, “an eligible CFC” is not defined in s 102AAZBA nor is it

defined in the interpretation section of the 1936 Act. Difficulty in finding the

meaning of this term will make it difficult for any reader to understand this

section.

90. Legislators and drafters might reasonably say they have been forced to be more

complicated in their drafting and obliged to amend the Act again and again to

prevent lawyers from finding ways of circumventing what is there. What seems

to happen is that an initially relatively straightforward concept has accretions of

complications plastered onto it as, increasingly, clever lawyers find increasingly

complicated ways of getting around the original provisions. When an accretion

is added to an accretion the interaction between the various laws becomes

difficult, if not impossible to follow.

91. I suggest that there should be a new statutory office created of a “Legislation

Ombudsman”. This would be a person to whom bad drafting or

incomprehensible parts of legislation can be referred. The Legislation

Ombudsman’s job would be to report such legislation to Government, which

might reasonably accept an obligation to do something about bad pieces of

legislation. I am not sufficiently naïve as to believe that there would be a rush to

fix the problems revealed. In fact, I suspect they would receive a very low

legislative priority. Nevertheless, Governments ought to take some pride in

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their work and the institutionalising of a process of identifying bad or difficult

legislation may serve to bring the need to draft comprehensible legislation to the

forefront of the minds of legislators and drafters.

92. Drafting less complicated and more comprehensible legislation ensures that laypeople

and not just lawyers can understand it. SRLs who are able to understand

the law will be able to better present their case in court.

The profession

93. The legal profession is one which guards its turf jealously. To an SRL, being in

a court room feels somewhat like being in an old-boys’ club where members of

the club are speaking to each other in a strange language known only to them,

where the members know each other quite well and are disparaging and

discouraging of interlopers.

94. There are some judges and lawyers who strive to explain proceedings to SRLs

and to provide appropriate assistance where needed. However, there are others

who might resent the presence of SRLs and who “wish to turn back the clock to

a time when they did not exist in large numbers”.55 In order to better manage

SRLs, it is necessary to change this attitude.

95. Training would play an important role in doing so. Training on the handling of

SRLs should become a standard part of the orientation of new judges. This

training should address the ethical issues in assisting SRLs and equip judges

with the skills to manage SRLs in the court room.56 Training about SRLs should

also form part of the curriculum of the courses required for admission to

practise. Practitioners should be aware of their obligations when involved in

proceedings where an SRL is the opposing party.

CONCLUSION

96. There is no silver bullet to the challenge of self-representation in our courts.

There are a number of suggestions in this paper which may or may not find

favour with the community, Government, lawyers or judges. However, if courts

55 John M. Greacen, above n 40, 26.

56 Ibid, 27.

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remind themselves that access to justice requires that it should be to all “without

fear or favour, affection or ill-will”57 then it follows that we should place all of

our processes, language, practices and assistance under the microscope of that

access to justice to determine whether, in a world in which the self-represented

are a large proportion, we are showing sufficient awareness, courtesy,

consideration and ultimately fairness and justice to those who appear before the

court without a lawyer. After all “Sir Gerard Brennan used to say that we may

never attain perfect justice, but that doesn’t mean we can’t aspire to it”.58

57 Oath of Office.

58 ABC Radio National, ‘The Law Report’, Judges Lose Sleep Over Work Stress, 5 February 2013

(Sally Brown).