Counting the cost
No Head
Split Ends

Marriage happens; divorce happens. Those who have been through a split know the pain, the darkness. When children are involved, the key is to have their best interests at heart, to share the parenting. Sounds simple? Tell that to the lawyers, Diana Bagnall writes.

Some marriages end. Mine did, and when that happened four years ago, I entered a place that was completely foreign to me. Extraordinary really, when you think of how many people go there. They say that 50,000 children a year are caught up in divorce in Australia. All those children, and their parents, floundering in the dark (for it is a dark place) with precious little light to guide them, few ropes to hang onto, their hearts broken, their minds scrambled, and the only obvious signposts pointing towards legal offices and the courtroom. It's not a place you want to hang about in. Some people stay for years, desperately seeking justice, although justice is not a word that really belongs here. Others get stuck, disabled by anger and bitterness. But most try to pass through quickly, wanting to settle up and move on. When the grief and confusion of that place have faded, they rarely want to look back. It's as if what happened in that place was not normal. It is. Painfully so.

Getting divorced is as normal as getting married these days, given that nearly one in every two couples who marry eventually split up. But in a society which manages risk for almost every event in life, we don't manage divorce at all, says Anne Hollonds, who runs Relationships Australia in NSW. It's a mess.

It's a mess because we don't understand clearly what we're dealing with. Divorce is managed, in fact, as a legal event. But modern marriage, and its downside, divorce, are no longer experienced primarily as legal events. They used to be, in the not-so-old days when marriage was a contract between two families exchanging property and genetic stock. Back then, romantic love was an incidental. These days, romantic love is all there is. "It's like the light bulb," says Hollonds. "It's the great new idea you have when you start a business, it brings you together. I think there is a problem with the conversion of the love relationship into a sustainable partnership. They don't realise that [marriage] is a business, though at the end, when you divorce, you are damned sure it is a business."

A nasty business, because it involves the heart. But expecting, as we do, that blunt legal instruments can comb through the fine tangled affairs of the heart without creating more knots is unrealistic. Patrick Parkinson and Judy Cashmore, experts in family law based at the University of Sydney, say as much in their submission to the recent federal parliamentary inquiry into child-custody arrangements. "One of the premises involved in establishing this inquiry is that the answer is somehow to change the law," they write. "... To blame the family law system for the pain and stress so often caused by relationship breakdown is like blaming the health system for sickness, the welfare agencies for poverty or the police for crime ... It may be that the time has come to look beyond the family law system as 'the problem' and beyond legal changes as a solution. Over the last 30 years, we have sown the wind in terms of the revolution in attitudes to sex, procreation and marriage. We are now reaping the whirlwind."

And what a whirlwind it is. The above inquiry attracted a record 1700 submissions and opened a vein of misery and anger which profoundly shocked committee chair Kay Hull from the outset of hearings. Many of those who made submissions appeared still to be in that dark place, unable to find a way out. Their rage against the family law machine was choking. Few had a good word to say about the status quo. The committee's response, delivered on December 29 into the deadness of the summer break, was a full-on challenge to the conventional family law process. Its hefty report supports shared parenting in the broadest sense � that is, of parents being required to consult with each other before making big decisions involving their children, rather than the narrow sense of children splitting their residency 50-50 between parents. But in order to achieve this, it recommends a radical shake-up of the system, drastically scaling back the role of lawyers and the courts, and introducing two new pre-court stages requiring additional government money.

The first of these stages is a "non-threatening" entry point where parents can find out what's known about shared parenting, the impact of conflict on children, alternative dispute options, as well as have their case screened, assessed and, where appropriate, referred to counsellors, mediators and so on. Melbourne-based family therapist Jennifer McIntosh told the committee that "post-separation family functioning is an area in which research is ahead of practice and we would do well to follow the evidence". The crucial piece of evidence is that enduring parental conflict places the odds against all children, in all families. Knowing that is a big advance on where some parents now start from.

The committee wants separating parents to have to undertake mediation or some other form of dispute resolution before any obligation to pay child support arises, and to draw up a "parenting plan", with professional help. If they're still locked in conflict at this stage, they move on to the next, where the suggestion is that a new expert body, a families tribunal, will hear their case and make binding orders about parenting responsibility. In this new order, the court's role is reduced to hearing the most difficult cases, for instance, those involving child or sexual abuse, family violence, entrenched conflict or long-running disputes that the tribunal can't solve.

There's growing agreement among researchers that it's not their parents' separation per se that affects children, but how parents deal with it. The worst possible scenario for children is the most clich�d � the protracted litigation campaign where the aim is to destroy the former spouse, and children become embroiled in the battle. The best recognises that the notion of the "clean break" is fictitious, that parents who separate are never free of each other, although their relationship may be over, and that for their children's sake they need to work out new ways of getting on with the job of parenting. That doesn't necessarily mean burying the hatchet. Buried hatchets have a way of working their way to the surface and doing unexpected damage. It does mean changing the terms of engagement at the time of separation and divorce, however. It means thinking beyond divorce as a settlement where both parties try to squeeze the best out of the ending, to divorce as the beginning of a different shared future.

What I hear over and over is that separation is not primarily a legal event, but a human event. So why don't we deal with it as such? Part of the explanation is historic. Before the advent of no-fault divorce in 1975, lawyers were needed to prove the grounds for divorce. But nearly 30 years on, the legal bent of divorce is still dominant. Vulnerable people clutch at what seems strongest, and legal parameters have an air of strength. But family law isn't about justice in the way that other aspects of the law are. "There's a sense in which the law has almost nothing to offer in the child area," says La Trobe University professor and researcher Lawrie Moloney, one of the main drivers of the groundbreaking Children in Focus program, funded through the attorney-general's department. "If you take each case on its merits, and allow each family to find a way and you support them in doing that, you don't have legal precedents that you start with. It can work that way with property. You can use some rules of thumb, but you can't do that with children unless you commodify the child."

Michael Green, a barrister and author of Fathers after Divorce, is banking on an "outbreak of common sense". He says: "People are waking up and they will bypass lawyers because they can't afford the money and the ill feelings that the legal system engenders."

The government hasn't yet responded to the parliamentary inquiry's recommendations, although the year in politics so far has been dominated by posturing about family values. Nor have those with vested interests in the family law system had much to say publicly, beyond an initial harrumphing about the tribunal presenting constitutional and practical obstacles. Which is not to suggest that the game is over. Far from it. There is a lot of money to be made from family law disputes, and those making the money will defend their turf. Depend on it, says Green, who now runs a mediation and divorce "coaching" practice. He directs me to Bob, a voluble, energetic man who runs a manufacturing business in southern Sydney, but who has spent much of his time in the past seven years deflecting and appealing against divorce litigation. He tells me he has so far spent over $500,000 in legal fees. His wife, he believes, owes her lawyers more than $800,000, and the case continues.

Family law cases are not allowed to be reported with identifying details. ("If we had some reporting in the Family Court, on the absurdities of what goes on there, it would be much healthier for the information of the community," Green says.) Suffice to say that Bob believed that his divorce matter was settled early in 1997, but when his personal circumstances changed, so too did the attitude of his ex-wife. The legal bills have been mounting ever since, and the game, as he outlines it, has been dirty. He hasn't spoken to his ex-wife in four years. He contacts his daughters, now aged 13 and 20, through their mobile numbers. All other avenues are closed to him on that front. He's tired, but he's not out. "If I could shake these people off, I could survive [in my business)," he tells me. "[The lawyers] work on the theory that you can't sustain the fight. Most people walk out, or go insane."

Insanity is par for the course. Sometimes I longed for it as a let-out in the first year of my separation. Other people fell over in a heap. Why couldn't I? The answer was always obvious. I had three children dependent on my not doing so.

I'm not going to discuss why my marriage ended. The bare facts are that I married young, and 23 years later, with three children aged 13 and under, I called it a day. I did so with dread in my heart. I thought of divorce as a train smash � limbs flying, blood all over the tracks, and those who survived doing so with permanent, ugly scars. It terrified me. Why should I have thought otherwise? The dominant model of divorce as far as I knew was acrimonious, combative, divisive and tragic. Yes, I'd seen Mrs Doubtfire, and so had my kids � "That's not going to happen to us, is it mum?" asked my middle child when we watched it together several years earlier � but if that represented a happy ending, it wasn't one I found particularly convincing.

What I needed four years ago was more light in the dark place which is unavoidable when your marriage ends. I knew I had to take myself through there, with my eyes open, and not allow myself to be directed somewhere I had no wish to go. But I needed better-marked paths and more knowledge about where those paths led. I needed to know which paths would best protect my children from the impact of what I had chosen to do. Most urgently, however, I needed to find a different way of talking to their father, which didn't lead me back to where I'd come from, but allowed us to co-ordinate our separate lives for our children's benefit. And that's where I was really following my nose.

I was convinced we could do this, not because our marriage break-up was any less wrenching than any other. It wasn't. But we both had a lot invested in being parents to our children, and I was sure neither of us would want to pull back. If that was the case, we had to find a way of pulling together. But working out how to do that while the person you need to co-operate with is not only the source and focus of your emotional distress but also your opponent in a legal sense, messes with your head. It's extremely stressful, and you need a lot of help to keep you on track.

Where you find that help is largely down to luck at present. There are many programs available to separated people in Australia � Centacare, the welfare arm of the Catholic Church in Sydney, for example, has recently introduced new programs to guide separated parents � but they're left to the individual to discover. They're not promoted as a first port of call by the family law system. Some people find help in friends and family who understand marriage breakdown from the inside, others seek out counsellors and mediators, others (and I include myself here) stumble upon lawyers who can think outside the square. They're not so common, though the Children in Focus program is specifically briefed to re-educate lawyers and mediators to think about post-separation families from the child's perspective (www.childreninfocus.org).

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