Latest / The Post-Separation Abuse Podcast / 120. Is 9/5 the new 50:50? Care arrangements after Australia’s 2024 Family Law changes

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120. Is 9/5 the new 50:50? Care arrangements after Australia’s 2024 Family Law changes · The Post-Separation Abuse Podcast

• 0:02
  SPEAKER_00: Hello and welcome back to another episode of the Post Separation Abuse Podcast.
• 0:08
  SPEAKER_00: I'm your host for this week's episode, Danielle Black.
• 0:13
  SPEAKER_00: Today we're going to talk about a pattern.
• 0:17
  SPEAKER_00: One of the really interesting things about the work that I do is that I get to see patterns that individual parents and even individual lawyers and barristers don't necessarily get to see.
• 0:31
  SPEAKER_00: I'm primarily a coach and at any given time a significant number of my clients are somewhere in the Australian family court system.
• 0:39
  SPEAKER_00: Different states, different lawyers, different barristers, different report writers, different judges, different families.
• 0:49
  SPEAKER_00: And when you sit where I sit and you see enough matters over time, you start noticing things.
• 0:57
  SPEAKER_00: You start seeing patterns in the language, patterns in the assumptions, patterns in the recommendations.
• 1:08
  SPEAKER_00: There's one particular recommendation that is consistently turning up in parenting matters.
• 1:15
  SPEAKER_00: Nine nights with one parent, five nights with the other.
• 1:21
  SPEAKER_00: Nine five is how we refer to it.
• 1:25
  SPEAKER_00: And I'm saying it often enough that I'm a bit suspicious that nine five has become the new fifty fifty.
• 1:34
  SPEAKER_00: And honestly, I have some concerns about this.
• 1:37
  SPEAKER_00: Quite a few concerns actually.
• 1:40
  SPEAKER_00: Now before I get into my concerns, I want to be clear about what I'm not saying.
• 1:45
  SPEAKER_00: I'm not saying that a nine five arrangement is inherently bad.
• 1:50
  SPEAKER_00: I'm not saying that children should never spend five nights a fortnight with one of their parents.
• 1:56
  SPEAKER_00: I'm not saying that every report writer recommending nine five is doing something inappropriate.
• 2:03
  SPEAKER_00: There will absolutely be families and children for whom that arrangement works really well.
• 2:10
  SPEAKER_00: What I'm questioning is something very different.
• 2:14
  SPEAKER_00: I'm questioning what happens when the arrangement becomes the starting point instead of the child or the children in question.
• 2:23
  SPEAKER_00: When it becomes a formula, a compromise position, a neat mathematical solution to an incredibly complicated developmental and relational question.
• 2:37
  SPEAKER_00: Because we've actually done this before, but last time we called it 50-50.
• 2:43
  SPEAKER_00: For years, equal care developed an almost mythical status in Australian separated families.
• 2:51
  SPEAKER_00: There was an extraordinarily persistent belief that after parents separated, 50-50 was simply what happened or what should happen, or what is ideal.
• 3:03
  SPEAKER_00: Now, it would be fair to say that that myth is still alive and well in this country.
• 3:10
  SPEAKER_00: But we've got other episodes on that.
• 3:12
  SPEAKER_00: Two parents, two homes, equal time fair.
• 3:17
  SPEAKER_00: Except kids aren't property being divided in a settlement.
• 3:24
  SPEAKER_00: Their nervous systems don't come equipped with calculators.
• 3:28
  SPEAKER_00: Seven nights here plus seven nights there does not automatically equal a secure, developmentally appropriate childhood, and yet mathematical equality became confused with good parenting arrangements.
• 3:42
  SPEAKER_00: Now, contrary to popular belief, courts were never simply required to order equal time, but the old legislation contained a presumption of equal shared parental responsibility, which is the decision-making component of parenting.
• 3:57
  SPEAKER_00: And where that applied, there were provisions requiring consideration of substantial and significant time, including equal time.
• 4:09
  SPEAKER_00: Now that legislative architecture mattered because it significantly influenced the culture surrounding separated parenting.
• 4:18
  SPEAKER_00: And somewhere along the way, equal parenting responsibility, equal parenting importance, and equal parenting time became hopelessly tangled together.
• 4:31
  SPEAKER_00: That law changed in May 2024.
• 4:34
  SPEAKER_00: The presumption of equal shared parental responsibility was removed from the Australian Family Law Act.
• 4:42
  SPEAKER_00: The associated pathway requiring consideration of equal or substantial and significant time was removed.
• 4:49
  SPEAKER_00: And the legislation returned the focus more clearly to where it should have been, which is what arrangements are in the best interests of this particular child, not what arrangement is fairest for the adults involved.
• 5:06
  SPEAKER_00: Something interesting has happened since then.
• 5:10
  SPEAKER_00: There's now much fewer recommendations for equal time.
• 5:14
  SPEAKER_00: Good.
• 5:16
  SPEAKER_00: But I'm also seeing a lot of nine five during term time and fifty fifty during school holiday time.
• 5:26
  SPEAKER_00: And so I find myself looking at this and wondering if we've actually changed the underlying thinking or perhaps we have just tinkered a little bit with the math.
• 5:38
  SPEAKER_00: Now for some younger listeners, you might have no idea what I'm about to mention, and so I will give you a little bit of background.
• 5:46
  SPEAKER_00: For years there was a drink, a sort of kohler tonic like cordial called Claytons.
• 5:56
  SPEAKER_00: So it was non-alcoholic, but it was packaged to resemble whiskey.
• 6:01
  SPEAKER_00: It was marketed with a tagline of the drink you have when you're not having a drink.
• 6:08
  SPEAKER_00: So then in the vernacular there was then a phrase, quote, a Clayton's.
• 6:14
  SPEAKER_00: So a Clayton's something or other was what you have when you're not really having the real thing, if that makes sense.
• 6:24
  SPEAKER_00: That's just a little bit of context for what I'm about to say here.
• 6:28
  SPEAKER_00: Perhaps this is me showing my age.
• 6:30
  SPEAKER_00: But the way that I'm beginning to think of nine five is that it's the Clayton's fifty fifty, the fifty fifty that you have when you're not having fifty-fifty.
• 6:41
  SPEAKER_00: Because it's close enough, still considered substantial time with both parents.
• 6:48
  SPEAKER_00: Perhaps not what the non-primary parent is asking for, but also not a complete loss, so to speak, if we're focused on the feelings of parents.
• 7:01
  SPEAKER_00: It looks moderate, balanced, reasonable, and again there's that word balanced.
• 7:08
  SPEAKER_00: I think we need to be really suspicious whenever adult notions of balance and fairness start creeping into conversations that are supposedly about children's best interests.
• 7:19
  SPEAKER_00: Sometimes balance is appropriate.
• 7:22
  SPEAKER_00: Sometimes equal time might be appropriate, particularly in a school holiday setting where there isn't the same need for structure and routine.
• 7:32
  SPEAKER_00: Sometimes nine five is appropriate, sometimes ten four is appropriate, sometimes alternate weekends are appropriate, sometimes daytime only contact is appropriate, sometimes professionally supervised time is appropriate, sometimes no time is appropriate.
• 7:54
  SPEAKER_00: The number, the maths should be the consequence of a thorough assessment.
• 8:01
  SPEAKER_00: It should never be the philosophy underpinning it.
• 8:05
  SPEAKER_00: Children don't experience parenting arrangements as percentages.
• 8:10
  SPEAKER_00: They experience them in their bodies.
• 8:13
  SPEAKER_00: They experience transitions, separations, reunions, bedtimes, school mornings, different expectations, different sensory environments, different levels of emotional availability and attunement, different capacities for co-regulation, different sibling dynamics, different travel requirements, different relationships with each parent, and in some families, vastly different levels of both physical and felt safety.
• 8:46
  SPEAKER_00: So when someone tells me that an arrangement is quote balanced or quote fair, my immediate question is balanced and fair to whom?
• 8:58
  SPEAKER_00: Because mathematical fairness means fuck all to a child's nervous system.
• 9:03
  SPEAKER_00: A three-year-old is not going to lie in bed thinking, well, this transition is causing me enormous distress, but on balance I acknowledge that dad is entitled to 35.7% of my fortnight.
• 9:17
  SPEAKER_00: That's not how kids work.
• 9:19
  SPEAKER_00: Children have developmental needs.
• 9:22
  SPEAKER_00: They have attachment relationships, they have temperaments, they have neurotypes, they have histories, and importantly, their relationships and attachments with each individual parent is not interchangeable simply because the adults are separated and happen to hold the title of parent.
• 9:44
  SPEAKER_00: Children can love both parents deeply and have completely different attachment relationships with them, different capacities to tolerate separation from either of them, different experiences of physical and felt safety with them, different needs from them.
• 10:06
  SPEAKER_00: And that should never be viewed as an insult to either parent because it's not.
• 10:13
  SPEAKER_00: It's just child development.
• 10:15
  SPEAKER_00: And frankly, it's just fucking common sense or it should be.
• 10:20
  SPEAKER_00: So what exactly are we counting when we're counting care?
• 10:26
  SPEAKER_00: That's another problem with the percentages that I think is worth talking about.
• 10:30
  SPEAKER_00: Because children don't experience care arrangements as percentages with each parent, and parents don't necessarily provide care in percentages either.
• 10:42
  SPEAKER_00: When we say that someone has thirty five percent care or sixty five percent care or equal care, what exactly are we counting?
• 10:51
  SPEAKER_00: Usually we're counting nights of care.
• 10:54
  SPEAKER_00: That's how the child support agency counts the percentage of care, at any rate.
• 11:00
  SPEAKER_00: So we're counting where children are sleeping.
• 11:05
  SPEAKER_00: And that's absolutely information about caregiving and it matters, but it's not the whole of caregiving.
• 11:12
  SPEAKER_00: Who knows that the book week function at school is happening next Friday?
• 11:17
  SPEAKER_00: Who remembers Crazy Hair Day?
• 11:20
  SPEAKER_00: Who knows that there's a parent teacher conference Thursday two weeks from now and that one child's teacher wants to talk about reading comprehension while the other child's teacher has raised concerns about friendships?
• 11:32
  SPEAKER_00: Who knows the sports day timetable?
• 11:34
  SPEAKER_00: Who knows when the homework project is due?
• 11:38
  SPEAKER_00: Who knows what's happening with the friendship fallout that began at lunchtime last Monday?
• 11:42
  SPEAKER_00: Who knows that the lunch box has started coming home untouched?
• 11:46
  SPEAKER_00: Who knows that the shoes are getting too small?
• 11:48
  SPEAKER_00: Who remembers the next GP appointment?
• 11:51
  SPEAKER_00: Who made the GP appointment?
• 11:53
  SPEAKER_00: The psychologist, the occupational therapist, the speech pathologist, the dentist, the orthodontist, the prescription that's about to run out, the referral that needs renewing, the school forms, the excursion, the portal notifications, the fucking gold coin for whatever event is happening at school this given day.
• 12:13
  SPEAKER_00: Who carries the running knowledge of this child's life?
• 12:18
  SPEAKER_00: Separation often does not divide that labourer according to the care arrangements.
• 12:24
  SPEAKER_00: A child can live across two homes with one parent remaining the person who notices, remembers, anticipates, organises, tracks, and follows up on almost everything.
• 12:38
  SPEAKER_00: A child can have two homes while the mental load still pretty much has one address.
• 12:43
  SPEAKER_00: And this is something that we see a lot in our work here at Danielle Black Coaching.
• 12:49
  SPEAKER_00: Both parents receiving exactly the same school newsletter, both having access to the same school portal, they can both contact the teachers, they can both contact medical and allied health professionals.
• 13:01
  SPEAKER_00: They might have equal or close to equal parenting time, and yet one parent remains the information hub.
• 13:08
  SPEAKER_00: What time is the assembly?
• 13:10
  SPEAKER_00: When's the appointment?
• 13:12
  SPEAKER_00: Did you book the dentist?
• 13:14
  SPEAKER_00: What does she need for school tomorrow?
• 13:16
  SPEAKER_00: Have you spoken to the teacher?
• 13:18
  SPEAKER_00: Can you send me the details?
• 13:20
  SPEAKER_00: And sometimes it's not even coming only from the other parent.
• 13:24
  SPEAKER_00: Institutions often reinforce it too.
• 13:27
  SPEAKER_00: Schools do it, medical practices do it, sporting clubs do it, one parent becomes the default parent.
• 13:34
  SPEAKER_00: The parent that everybody calls, that everybody emails, the person everybody assumes will know.
• 13:41
  SPEAKER_00: And it's important that we're careful here because this is not an argument that every heterosexual relationship operates this way.
• 13:49
  SPEAKER_00: It's not an argument that all fathers are not carrying significant mental and emotional labour.
• 13:56
  SPEAKER_00: That wouldn't be true.
• 13:58
  SPEAKER_00: They absolutely can.
• 14:00
  SPEAKER_00: Primary carers can carry this load irrespective of gender.
• 14:04
  SPEAKER_00: Same sex couples can have one person carrying significantly more than the other.
• 14:10
  SPEAKER_00: And I'm not suggesting that every successful relationship requires a fucking spreadsheet proving that each adult completed fifty percent of the invisible household labour over a fortnight.
• 14:24
  SPEAKER_00: Some couples divide responsibilities very unevenly and both people are very happy about that.
• 14:30
  SPEAKER_00: One person's work schedule might make one division of labour more sensible.
• 14:35
  SPEAKER_00: One person may genuinely enjoy managing particular parts of family life.
• 14:41
  SPEAKER_00: There can be seasons where one person carries much more because the other simply can't for whatever reason.
• 14:48
  SPEAKER_00: The issue isn't the mathematical equality.
• 14:52
  SPEAKER_00: Funny about that.
• 14:53
  SPEAKER_00: The issue is whether the arrangement is even visible to begin with, whether it's recognised, whether it's chosen, whether it's sustainable, whether it can be renegotiated when circumstances change, and whether one person has somehow become responsible not only for doing their own share, but for managing everyone else's contribution as well.
• 15:15
  SPEAKER_00: And this is where, quote, just tell me what needs doing and I'll do it, completely misses the point.
• 15:22
  SPEAKER_00: Because if we have to notice that something needs doing, remember when it needs to happen, work out how it needs to happen, tell the other person that it needs doing, remind them that it needs doing, then check whether or not they did it, we might as well have completed the fucking task ourselves.
• 15:38
  SPEAKER_00: And we're still the ones carrying the damn map.
• 15:43
  SPEAKER_00: The task might be shared, but the responsibility for the task existing hasn't been.
• 15:50
  SPEAKER_00: And there's a reason why so many exhausted women joke that they need a wife.
• 15:56
  SPEAKER_00: They're not necessarily meaning that they just need another pair of hands.
• 16:00
  SPEAKER_00: What they're often meaning is I want someone else to notice what I notice, to remember what I remember, to anticipate what I anticipate, and just to fucking handle some of it without requiring me to manage them handling it.
• 16:16
  SPEAKER_00: They want someone else to carry some of the remembering, some of the load, some of the mental and emotional load.
• 16:23
  SPEAKER_00: I've been thinking about this particularly deeply lately because I'm currently finishing a new course called Claim Your Name, Burning the Good Girl Contract, which will be launching at Danielle Black Coaching later this month.
• 16:37
  SPEAKER_00: And one of the clauses of what I'm referring to as the Good Girl Contract is carry the emotional and mental labor.
• 16:47
  SPEAKER_00: And mental labor isn't only doing things, it's also the knowing what needs to be done.
• 16:54
  SPEAKER_00: It's being the invisible operating system that keeps everything else functioning.
• 17:00
  SPEAKER_00: And one of the things that we'll be unpacking in Claim Your Name is what happens when women learn that being loving, capable, useful, maternal, organized, and quote, good means quietly becoming responsible for the functioning of everybody else around them.
• 17:16
  SPEAKER_00: And this is not me saying that caring is bad.
• 17:21
  SPEAKER_00: It's not me saying that being organized is bad.
• 17:25
  SPEAKER_00: And it's not me saying that doing more than someone else is inherently oppressive.
• 17:34
  SPEAKER_00: And certainly not because the answer is to deliberately stop doing the things that you genuinely want to do to prove that you're somehow liberated.
• 17:43
  SPEAKER_00: That would just be another fucking contract.
• 17:45
  SPEAKER_00: No thank you.
• 17:46
  SPEAKER_00: But the question that I keep coming back to as I'm as I'm building the finishing touches of this course is a lot simpler, and that is who decided?
• 17:58
  SPEAKER_00: Is this something that I've consciously chosen to carry?
• 18:02
  SPEAKER_00: Is this arrangement working for me?
• 18:04
  SPEAKER_00: Can I put something down without feeling that I've failed as a woman, a wife, a mother, a partner, a co-parent?
• 18:14
  SPEAKER_00: Can somebody else carry responsibility without me remaining responsible for supervising?
• 18:22
  SPEAKER_00: And what happens if I inevitably drop something?
• 18:27
  SPEAKER_00: Because this is another particularly cruel feature of mental labour.
• 18:33
  SPEAKER_00: Successful mental labour is typically invisible.
• 18:39
  SPEAKER_00: Failed mental labour can be immediately visible.
• 18:45
  SPEAKER_00: Nobody notices the one hundred and forty eight things that you remembered this week.
• 18:50
  SPEAKER_00: Everyone notices the one hundred and forty-ninth thing that you forgot.
• 18:54
  SPEAKER_00: And suddenly the person who's been quietly holding together an extraordinary amount of family infrastructure can find herself apologizing because somebody didn't have a costume for bookweek.
• 19:06
  SPEAKER_00: That intersection between carrying the labour and then taking the blame when something drops is something that we're going to be unpacking much more deeply inside Claim Your Name.
• 19:21
  SPEAKER_00: If you'd like to know when that course launches, please do head over to the Danielle Black Coaching website and make sure you're on the mailing list specific for that course.
• 19:31
  SPEAKER_00: You'll see that on the homepage.
• 19:34
  SPEAKER_00: I will be giving some more information about that over the next few weeks.
• 19:40
  SPEAKER_00: But I did want to raise it here because I think it matters to this conversation.
• 19:45
  SPEAKER_00: When we talk about parenting arrangements and say that somebody has 35% care, 50% care, 65% care, we need to keep in mind what that percentage is actually measuring.
• 19:57
  SPEAKER_00: It's measuring time, but it's not measuring the distribution of the parenting labour, of the emotional labour, of the mental labour.
• 20:05
  SPEAKER_00: And it certainly doesn't tell us everything we need to know about what care looks like in the life of this particular child, which circles us back to 9-5.
• 20:16
  SPEAKER_00: I mean, but surely the report writer knows all of this for those in the court system.
• 20:23
  SPEAKER_00: Well, sometimes there are some truly excellent family report writers.
• 20:30
  SPEAKER_00: I know that there are many thoughtful, nuanced reports where the writer's reasoning can be followed from the evidence they gathered through their assessment of the child's developmental and relational needs through identified risks and protective factors all the way to their conclusions and recommendations.
• 20:52
  SPEAKER_00: Even where we might not necessarily agree with every conclusion or recommendation, we can generally understand the clinical reasoning.
• 21:04
  SPEAKER_00: And that's what we want to see.
• 21:07
  SPEAKER_00: However, unfortunately, we also often see reports where we get to the conclusions and recommendations and think, how the fuck did we get here?
• 21:17
  SPEAKER_00: Because the body of the report describes significant concerns.
• 21:22
  SPEAKER_00: A child clearly struggling with the current arrangements, clearly struggling with transitions, family violence allegations that are yet to be tested at trial.
• 21:34
  SPEAKER_00: A parent with clearly very limited insight, a highly conflicted parenting relationship, and in many cases conflict that is very clearly asymmetrical.
• 21:47
  SPEAKER_00: A child with specific developmental needs, a parent who historically performed very little day to day care, very little emotional attunement, very little co regulation.
• 22:00
  SPEAKER_00: Perhaps a child expressing clear resistance, refusal, or distress.
• 22:06
  SPEAKER_00: And then somehow, ta-da! Nine five.
• 22:12
  SPEAKER_00: And we then find ourselves scrolling backwards looking for the paragraph that we apparently must have missed where someone explained why five nights per fortnight with the non-primary caregiver is developmentally indicated and appropriate for this particular child.
• 22:30
  SPEAKER_00: Why not four nights?
• 22:31
  SPEAKER_00: Why not three?
• 22:33
  SPEAKER_00: Why not six?
• 22:35
  SPEAKER_00: What does five accomplish?
• 22:36
  SPEAKER_00: What evidence supports it?
• 22:38
  SPEAKER_00: What identified need of this child does it meet?
• 22:43
  SPEAKER_00: What risks does it mitigate?
• 22:46
  SPEAKER_00: What developmental formulation led us here?
• 22:52
  SPEAKER_00: Because, quote, it's a compromise that has nothing to do with child development, nothing to do with child needs, nothing to do with child best interests.
• 23:07
  SPEAKER_00: And this is where we have to understand that experts have biases too.
• 23:12
  SPEAKER_00: And that's a part of the conversation that we really have to be willing to have.
• 23:17
  SPEAKER_00: An expert is just a human being with a history, with beliefs, with bias.
• 23:24
  SPEAKER_00: They have their own experiences of relationships, separation, parenting, family violence, sometimes even the family court system itself.
• 23:34
  SPEAKER_00: Professional expertise doesn't magically erase any of that.
• 23:38
  SPEAKER_00: And the professional obligation is to recognize those things and prevent them from influencing or impacting the assessment.
• 23:48
  SPEAKER_00: But unfortunately, there is such a thing as unconscious bias.
• 23:53
  SPEAKER_00: There is such a thing as values, beliefs, and attitudes that are not understood or acknowledged by a professional.
• 24:01
  SPEAKER_00: It really doesn't matter how fucking smart someone is or how smart they think they are.
• 24:06
  SPEAKER_00: That does not mean that they have a high level of insight into their own unconscious values, attitudes, beliefs, and bias.
• 24:15
  SPEAKER_00: And the moment an assessor starts with a personal ideology, whether that's children should have equal time, mothers make false allegations, fathers are routinely excluded, high conflict automatically means that both parents are contributing equally to said conflict, or even the reverse of any of those propositions, and then they assess a family through that lens, we have a really big problem.
• 24:46
  SPEAKER_00: I want to be clear that testing someone's account of events, testing somebody's narrative is wholly and completely appropriate.
• 25:00
  SPEAKER_00: A family report writer, a family assessor, a risk assessor should not simply ever accept everything that either parent says as fact.
• 25:11
  SPEAKER_00: There can absolutely be inconsistencies that require exploring.
• 25:17
  SPEAKER_00: There might be competing accounts, in fact if a family is in the court system, I think we have to assume there are going to be significantly competing accounts.
• 25:29
  SPEAKER_00: There will likely be allegations that are disputed.
• 25:34
  SPEAKER_00: There may be information from other sources that contradicts something that a parent has said.
• 25:40
  SPEAKER_00: That's all part of the assessment.
• 25:43
  SPEAKER_00: But there is a world of difference between quote help me understand this and quote you're lying.
• 25:52
  SPEAKER_00: There is a world of difference between quote tell me about your concerns regarding equal or significant time and quote why isn't fifty fifty good enough for your children when it's good enough for mine?
• 26:11
  SPEAKER_00: Yes, incidentally I have had clients come to me having been told that by the family report writer in their case.
• 26:21
  SPEAKER_00: One approach is investigatory.
• 26:25
  SPEAKER_00: It's curious.
• 26:27
  SPEAKER_00: Hopefully child focused.
• 26:30
  SPEAKER_00: The other contains a preordained premise, and if the premise is already there before the parent has finished explaining their concerns, then we have to ask whether the assessment is genuinely driving the recommendation or whether the preferred recommendation is driving the assessment.
• 26:51
  SPEAKER_00: The assessment should determine the recommendation always.
• 26:57
  SPEAKER_00: The preferred recommendation should never determine the assessment.
• 27:03
  SPEAKER_00: The distinction matters enormously when the person expressing that opinion is positioned as being an independent expert and is framed as so often the case as quote highly respected insert vomit emoji.
• 27:22
  SPEAKER_00: But here is where I need to say again that a family report is never a judgment in the sense of it being a final outcome.
• 27:32
  SPEAKER_00: This is something that I desperately want parents to understand.
• 27:37
  SPEAKER_00: A family report writer is not the judge, despite the fact that there's possibly quite a few that have fairly significant god complexes.
• 27:47
  SPEAKER_00: They're not conducting a final hearing.
• 27:49
  SPEAKER_00: They have not heard all of the evidence tested under cross examination, including dare I say, their own fucking report.
• 28:00
  SPEAKER_00: They're providing supposedly expert evidence to assist the court.
• 28:05
  SPEAKER_00: Potentially very important evidence.
• 28:09
  SPEAKER_00: But the court itself makes clear that a family report is one source of evidence considered in making its decision, and the court the judge is not at all bound by its conclusion and recommendations.
• 28:30
  SPEAKER_00: Yet I regularly speak to parents who receive a family report or child impact report, single expert report, risk assessment report, and immediately believe that their case is over because someone tells them the court will give significant weight to the report.
• 28:53
  SPEAKER_00: Please, lawyers, if any of you are listening, find something else to say for fuck's sake.
• 28:59
  SPEAKER_00: Something original would be fantastic.
• 29:02
  SPEAKER_00: Now is the court going to give significant weight to that particular report?
• 29:08
  SPEAKER_00: Maybe.
• 29:09
  SPEAKER_00: But weight is not the same thing as inevitability and if you're charging upwards of five, six, seven, eight hundred dollars an hour, you should fucking know the difference.
• 29:23
  SPEAKER_00: Just saying.
• 29:25
  SPEAKER_00: And the recommendations are capable of being challenged and should be challenged.
• 29:33
  SPEAKER_00: The reasoning is capable of being interrogated.
• 29:38
  SPEAKER_00: The report writer can be cross examined, the methodology matters, the evidence relied upon matters, the expertise of the person expressing the opinion matters or lack of expertise, as the case may be.
• 29:56
  SPEAKER_00: The connection between their observations and their conclusions matters or again, the fucking lack of connection in far too many cases to count.
• 30:09
  SPEAKER_00: And sometimes the appropriate question isn't do I like this recommendation?
• 30:15
  SPEAKER_00: Does it align with what I want?
• 30:18
  SPEAKER_00: Rather it's can the report writer actually explain how they arrived at this conclusion and associated recommendations?
• 30:28
  SPEAKER_00: Those are very different questions.
• 30:31
  SPEAKER_00: And it brings us to something else that I think parents listening need to really understand.
• 30:37
  SPEAKER_00: It's one of the reasons why final trials can matter so much, not because we're all sitting there excitedly waiting to watch the report writer squirm under cross-examination, although I will admit that can be quite fun.
• 30:51
  SPEAKER_00: You know, I am only human and that part can be just a little bit satisfying.
• 30:58
  SPEAKER_00: The idea that a report writer who has charged a fucking obscene amount of money for something that clearly ChatGPT has half or wholly written is now being asked to explain how they got to that conclusion and recommendations.
• 31:15
  SPEAKER_00: Yeah, I know I'm not the only one who's entertained by that.
• 31:20
  SPEAKER_00: But none of that's the point.
• 31:22
  SPEAKER_00: The point is that final trial is where expert evidence can actually be tested and should be tested.
• 31:30
  SPEAKER_00: You've probably heard some version of family reports are given significant weight by the court again, please, I'm so fucking sick of hearing that.
• 31:40
  SPEAKER_00: Yes, they can be.
• 31:42
  SPEAKER_00: But sometimes that sentence gets interpreted as well the report writers recommended it, therefore the judge will probably order it, case closed.
• 31:52
  SPEAKER_00: But those are not even remotely the same thing.
• 31:55
  SPEAKER_00: A written report lands very differently when the person who wrote it is sitting in the witness box and a barrister starts asking why?
• 32:05
  SPEAKER_00: Why this many nights?
• 32:07
  SPEAKER_00: What evidence supports that recommendation?
• 32:10
  SPEAKER_00: What developmental literature are you relying upon?
• 32:14
  SPEAKER_00: What training?
• 32:16
  SPEAKER_00: How did you account for this specific child's attachment relationships?
• 32:20
  SPEAKER_00: You identified this risk in paragraph eighty seven.
• 32:25
  SPEAKER_00: Where is that risk accounted for in your recommendations?
• 32:29
  SPEAKER_00: You accepted this parent's account but rejected the other parent's account.
• 32:33
  SPEAKER_00: On what basis?
• 32:35
  SPEAKER_00: Were you aware of this evidence when you prepared your report?
• 32:39
  SPEAKER_00: Does this new evidence affect your opinion?
• 32:42
  SPEAKER_00: How did the history of family violence inform your assessment?
• 32:47
  SPEAKER_00: What specialist training do you have in assessing family violence and more specifically coercive control?
• 32:55
  SPEAKER_00: What alternative arrangements did you consider?
• 32:59
  SPEAKER_00: Why did you reject them?
• 33:01
  SPEAKER_00: What would need to be different for you to recommend something else?
• 33:05
  SPEAKER_00: And sometimes eventually, having heard the evidence now before the court, do you wish to revise your recommendation?
• 33:15
  SPEAKER_00: And sometimes they do.
• 33:18
  SPEAKER_00: I think that happens more often than many parents realise, because an expert opinion isn't carved into stone the moment that somebody converts the report to PDF.
• 33:27
  SPEAKER_00: This isn't a fucking stone tablet.
• 33:29
  SPEAKER_00: It's an opinion based upon the information available to that expert at a particular point in time, and information can change, evidence can emerge, assumptions can be challenged, and reasoning or lack thereof can be tested.
• 33:47
  SPEAKER_00: And the expert may be invited and may appropriately modify their opinion.
• 33:54
  SPEAKER_00: That is not necessarily evidence that the report writer was incompetent.
• 33:59
  SPEAKER_00: In fact, a genuinely competent independent expert should be capable of changing their opinion when the evidence warrants it.
• 34:08
  SPEAKER_00: I'd be considerably more concerned about an expert who couldn't.
• 34:14
  SPEAKER_00: And cross examination from a barrister isn't the only source of scrutiny.
• 34:19
  SPEAKER_00: In a final trial the judge can ask questions too.
• 34:22
  SPEAKER_00: Remember, the report writer is not the decision maker.
• 34:27
  SPEAKER_00: The judge is.
• 34:28
  SPEAKER_00: And ultimately the judge has to decide what weight to give expert evidence after considering it alongside all the other evidence in the case.
• 34:39
  SPEAKER_00: So yes, expert reports can be given significant weight, but here's the part that I wish was said just as often by lawyers.
• 34:49
  SPEAKER_00: Significant weight does not mean unquestioned weight.
• 34:54
  SPEAKER_00: A report sitting unchallenged in someone's inbox is a very different creature from an expert sitting in a witness box having to explain, defend, and where appropriate, reconsider the conclusions drawn and the reasoning behind their recommendations.
• 35:12
  SPEAKER_00: And this is why I become really concerned when parents are told, quote, you should probably just agree.
• 35:27
  SPEAKER_00: Maybe that advice is completely sound in that particular case.
• 35:33
  SPEAKER_00: Sometimes aligning with the recommendations can be the sensible decision.
• 35:39
  SPEAKER_00: Remember, nothing in this podcast is legal advice or specific to your case.
• 35:46
  SPEAKER_00: Sometimes proceeding to final trial would be financially and emotionally catastrophic for very little realistic prospect of a different outcome.
• 35:57
  SPEAKER_00: That's why you need individual legal advice and also individual coaching.
• 36:04
  SPEAKER_00: We don't provide legal advice, but we do provide clients with a space with which to analyse the benefits and risks of the paths that have been explained to them by their legal team.
• 36:18
  SPEAKER_00: But we do need to keep in mind that the existence of an unfavorable family report or impact report, expert report, whatever report we're talking about, is not by itself an analysis of the merits of proceeding to trial.
• 36:32
  SPEAKER_00: There is another question.
• 36:35
  SPEAKER_00: How robust really are the conclusions and recommendations of this report when the reasoning is actually tested?
• 36:43
  SPEAKER_00: Because perhaps the report writer has done excellent work and can explain every step, great.
• 36:49
  SPEAKER_00: But perhaps they can't.
• 36:51
  SPEAKER_00: Perhaps evidence has changed or new evidence has emerged.
• 36:55
  SPEAKER_00: Perhaps important material wasn't available when they conducted the assessment.
• 37:00
  SPEAKER_00: Perhaps assumptions underlying the recommendations don't survive cross-examination.
• 37:05
  SPEAKER_00: Perhaps the judge has questions of their own.
• 37:08
  SPEAKER_00: Perhaps the expert's just fucking incompetent.
• 37:11
  SPEAKER_00: Perhaps the expert will revise their recommendations when given the opportunity to salvage some form of professional credibility.
• 37:20
  SPEAKER_00: That's what testing the evidence means.
• 37:23
  SPEAKER_00: So when someone tells you, quote, the report will be given significant weight, remember the rest.
• 37:29
  SPEAKER_00: And the rest being, yeah, the report will be given significant weight right up until somebody holds it up to the light and the expert has to stand behind it and explain how they got there.
• 37:42
  SPEAKER_00: Then we'll see how much weight it can carry.
• 37:46
  SPEAKER_00: Report writers are not supposed to be professional compromisers.
• 37:51
  SPEAKER_00: Now this might challenge some people.
• 37:56
  SPEAKER_00: Oh well.
• 37:58
  SPEAKER_00: I'm increasingly concerned by the fact that there are reports that appear to treat the report writer's role as being partly to engineer a settlement and avoid trial.
• 38:08
  SPEAKER_00: Now, resolving family law proceedings without a final trial can obviously be enormously beneficial.
• 38:14
  SPEAKER_00: No sane person wants to go to trial.
• 38:17
  SPEAKER_00: Trials are expensive, they can be exhausting in in all the ways.
• 38:23
  SPEAKER_00: They prolong uncertainty.
• 38:25
  SPEAKER_00: Children and parents can benefit enormously when the parents can reach appropriate agreements.
• 38:34
  SPEAKER_00: I'm certainly not anti-settlement prior to trial.
• 38:38
  SPEAKER_00: However, I'm very much anti-settlement at the expense of the children.
• 38:44
  SPEAKER_00: Because the purpose of a family assessment isn't quote, what recommendation can I make that both parents might grudgingly accept?
• 38:53
  SPEAKER_00: It isn't mum wants a twelve two split, meaning twelve nights with her a fortnight and two nights with Dad.
• 39:04
  SPEAKER_00: Dad wants fifty fifty.
• 39:06
  SPEAKER_00: Hmm How about nine five?
• 39:10
  SPEAKER_00: So then everyone's equally unhappy.
• 39:14
  SPEAKER_00: Great work, team.
• 39:15
  SPEAKER_00: High five Yeah no.
• 39:19
  SPEAKER_00: Assessments should identify risks associated with the proposals or options, and recommendations should be framed in terms of risk minimization.
• 39:29
  SPEAKER_00: Family assessors should also have a broad knowledge of relevant peer-reviewed research concerning families and children in family law matters, that's quite literally their job.
• 39:41
  SPEAKER_00: Their job is not finding the midpoint between two competing proposals.
• 39:46
  SPEAKER_00: Their job is not predicting what might make the litigation disappear, and it's certainly not making recommendations because they look balanced.
• 39:56
  SPEAKER_00: Best interests are not necessarily found at the mathematical midpoint between two parents' positions.
• 40:02
  SPEAKER_00: Sometimes one parent's proposal is much closer to meeting the child's needs.
• 40:07
  SPEAKER_00: Sometimes neither parent's proposal does that.
• 40:11
  SPEAKER_00: Sometimes the appropriate recommendation will make one parent extremely fucking unhappy.
• 40:17
  SPEAKER_00: And that's okay, because children's best interests don't have to poll well.
• 40:22
  SPEAKER_00: What I'm saying here is that the report writer is not the decision maker.
• 40:28
  SPEAKER_00: And this is a distinction that I think has become really blurred.
• 40:32
  SPEAKER_00: There's a difference between saying, quote, based on my expertise and my assessment of this family, these are the developmental, relational and risk considerations I believe the court should take into account.
• 40:46
  SPEAKER_00: And effectively saying, quote, here are the parenting orders that I've decided this family should have.
• 40:52
  SPEAKER_00: Those things aren't the same thing.
• 40:54
  SPEAKER_00: Determining who a child should primarily live with and what the care arrangements should ultimately be is the role of the court.
• 41:03
  SPEAKER_00: That matters.
• 41:05
  SPEAKER_00: Because a good expert helps the court understand things that fall within that expert's expertise.
• 41:13
  SPEAKER_00: Child development, family functioning, attachment relationships, family violence dynamics, risk, psychological functioning.
• 41:24
  SPEAKER_00: They provide evidence that helps a judicial officer make a legal decision.
• 41:29
  SPEAKER_00: But importantly, the family report writer is not the judicial officer.
• 41:33
  SPEAKER_00: Their job is not to set the scene for coming to consent orders at a dispute resolution.
• 41:42
  SPEAKER_00: And sometimes I think everyone involved with the system could do with remembering that.
• 41:57
  SPEAKER_00: Yeah, that's a pretty fucking expensive elephant, I know.
• 42:01
  SPEAKER_00: Private family reports can cost an extraordinary amount of money.
• 42:06
  SPEAKER_00: Sometimes tens of thousands of dollars.
• 42:08
  SPEAKER_00: And if parents are paying that kind of money for supposedly expert assessment that could materially influence the arrangements that their children live under for years, I don't think it's unreasonable to expect more than a fucking boilerplate.
• 42:24
  SPEAKER_00: I don't think it's unreasonable to expect the children's names and ages to be correct.
• 42:29
  SPEAKER_00: I don't think it's unreasonable to expect obvious copy and paste errors not to be there.
• 42:35
  SPEAKER_00: I don't think it's unreasonable to expect contemporary, accurate knowledge of child development and attachment.
• 42:42
  SPEAKER_00: I don't think it's unreasonable to expect appropriate expertise in family violence, including the nuances of coercive control, to have an approach in terms of assessing that where family violence has been a feature of the case.
• 42:57
  SPEAKER_00: And I certainly don't think it's unreasonable to expect the recommendations to have an identifiable evidentiary and clinical pathway behind them.
• 43:06
  SPEAKER_00: If you're going to recommend that a child substantially increase their time away from their primary attachment figure, explain why.
• 43:15
  SPEAKER_00: If you're going to recommend five nights, explain five nights.
• 43:20
  SPEAKER_00: If you're going to recommend equal time, for fuck's sake, explain equal time beyond something fucking vague and generic that Chat GPT could spit out about prioritizing relationships with parents or other equally vague platitudes.
• 43:37
  SPEAKER_00: If you're going to recommend supervised time, explain that.
• 43:40
  SPEAKER_00: If you're going to recommend no time, explain that.
• 43:45
  SPEAKER_00: Show your work.
• 43:47
  SPEAKER_00: You know, I'm a former teacher.
• 43:49
  SPEAKER_00: Any teachers listening will know that we don't just want kids bringing us the answers.
• 43:56
  SPEAKER_00: We're often saying can you show me your working out?
• 44:00
  SPEAKER_00: How did you get to that point?
• 44:03
  SPEAKER_00: And this applies more than ever here to this conversation because these are not theoretical recommendations.
• 44:11
  SPEAKER_00: Our kids have to live them.
• 44:13
  SPEAKER_00: And if someone's opinion has the potential to substantially influence where a five-year-old sleeps for the next decade, I think we're allowed to have some fairly fucking high expectations as to how they arrived at that conclusion and recommendation.
• 44:28
  SPEAKER_00: Expertise should increase accountability, should never insulate someone from scrutiny.
• 44:35
  SPEAKER_00: And the authority attached to expert evidence makes the quality, neutrality, and evidentiary basis of that expertise even more important, not less.
• 44:46
  SPEAKER_00: Parents, please do not mistake expert evidence for destiny.
• 44:51
  SPEAKER_00: And this is something that I'm really hoping that you'll hear.
• 44:54
  SPEAKER_00: If you've received a report recommending 95, 86, 5050, or any other arrangement that concerns you, I'm not telling you to ignore that.
• 45:07
  SPEAKER_00: I'm not telling you that the report writer's incompetent, and I'm certainly not telling you that because Danielle's been yelling about family reports into a microphone, that you should march into your lawyer's office tomorrow and announce that this report's fucking bullshit.
• 45:22
  SPEAKER_00: Please don't do that.
• 45:24
  SPEAKER_00: What I am telling you is stay curious.
• 45:28
  SPEAKER_00: Read the report carefully.
• 45:30
  SPEAKER_00: Understand the reasoning if there is any.
• 45:34
  SPEAKER_00: Separate the body of the report, the observations, you know, the boring bit where it's this parent said this and this parent said that.
• 45:43
  SPEAKER_00: You know, that's the part that everybody skims and then gets to the end, the juicy bit.
• 45:48
  SPEAKER_00: But read it carefully.
• 45:51
  SPEAKER_00: Read what your former partner has said.
• 45:54
  SPEAKER_00: Read what you have said, what's been noted in the report.
• 45:59
  SPEAKER_00: Then when you move to the conclusions and the reasoning, see if you can understand the conclusions and the reasoning.
• 46:08
  SPEAKER_00: Look at what evidence the report writer has actually relied upon, if that's at all evident.
• 46:15
  SPEAKER_00: Look at whether the concerns that have been raised in the body of the report actually appear to have informed the conclusion and the recommendations in any way.
• 46:26
  SPEAKER_00: Consider the strengths and the weaknesses.
• 46:29
  SPEAKER_00: Consider what aspects can be appropriately challenged and tested, and perhaps even most importantly, don't think that you have to agree to an arrangement that you genuinely believe is harmful to your child solely because you've been told that a recommendation from a report writer makes the outcome inevitable.
• 46:50
  SPEAKER_00: There's a difference between receiving difficult professional advice and surrendering your critical thinking.
• 46:56
  SPEAKER_00: Get legal advice.
• 46:59
  SPEAKER_00: Understand your risks, understand the cost implications, understand what going to trial actually means.
• 47:07
  SPEAKER_00: Understand that you may ultimately receive an outcome that you don't really want.
• 47:11
  SPEAKER_00: All of that matters.
• 47:13
  SPEAKER_00: But please do also make an informed decision because quote, the report writer recommended it and quote the court has ordered it, they're not the same thing remotely.
• 47:28
  SPEAKER_00: So is nine five now genuinely the new fifty fifty?
• 47:34
  SPEAKER_00: Maybe.
• 47:36
  SPEAKER_00: Highly likely.
• 47:38
  SPEAKER_00: Watch this space.
• 47:42
  SPEAKER_00: I don't have Australian wide empirical data showing that nine five recommendations have increased since the 2024 amendments to the Australian Family Law Act.
• 47:52
  SPEAKER_00: But what I do have is a pattern that I'm observing across my own work, which incidentally is one of the benefits to the fact that the bulk of my work is actually coaching people, you know, real people with real cases.
• 48:06
  SPEAKER_00: So I'm seeing this pattern across my work and I'm seeing it often enough to pay attention.
• 48:12
  SPEAKER_00: My brain over the years has just become its own little data center.
• 48:17
  SPEAKER_00: And so it does flash and fire when there's different things coming in front of me, and I'm like, yeah, I've seen this case before, and I've seen that case before.
• 48:25
  SPEAKER_00: Not literally that actual case, but more so the elements and the patterns in the case.
• 48:30
  SPEAKER_00: That's one of the reasons why people come to us here at Danielle Black Coaching.
• 48:35
  SPEAKER_00: It's, you know, not just because of our lived experience, it's not just because of our vast expertise, but it's just simply because we work in this space so much with clients across the country that we've just got so much understanding and knowledge and stuff in our brain to compare it all to, as opposed to a professional who works primarily with clients in one particular jurisdiction.
• 49:09
  SPEAKER_00: Maybe future research will demonstrate that this whole nine five thing is coincidental.
• 49:15
  SPEAKER_00: Nine five in the school term and fifty fifty in the school holidays.
• 49:19
  SPEAKER_00: But maybe it won't.
• 49:20
  SPEAKER_00: And what interests me more than the number itself is the thinking behind it.
• 49:25
  SPEAKER_00: If we've moved away from reflexively recommending fifty fifty while retaining the underlying assumption that good post-separation parenting arrangements should maximize mathematical equality between adults, well we haven't progressed very far, have we?
• 49:42
  SPEAKER_00: We've just shaved off a handful of knots.
• 49:45
  SPEAKER_00: The 2024 reforms did not replace a presumption of equal shared parental responsibility with a presumption of nine five.
• 49:54
  SPEAKER_00: There is actually no standard for care arrangements after separation, and there shouldn't be.
• 50:02
  SPEAKER_00: The question is supposed to be about this child, this child's age, this child's development, this child's relationships, this child's temperament, this child's history, this child's own views and wishes where appropriate, this child's safety, both physical and felt safety, this child's specific needs, these parents' actual parenting capacities, these parents' abilities to meet this child's needs, the research that exists to cover all of these things, particularly the research specific to post-separation, the caregiving that each parent actually provides, not merely the number of nights allocated to them, not what looks equitable on a spreadsheet, not what makes the adults feel equally important and involved, not what makes coming to agreement or you know settling the case easier, and not what arrangement happens to be fashionable this year.
• 51:12
  SPEAKER_00: Maybe the question that we should be asking isn't is nine five the new fifty fifty?
• 51:19
  SPEAKER_00: Maybe it's why the fuck are we still starting with fractions when we should be starting with the child, our children my child, your child, future children.
• 51:37
  SPEAKER_00: Do the assessments, understand the relationships, understand the development, understand the risk, understand the capacity, understand what this particular child actually needs.
• 51:49
  SPEAKER_00: Then think about the days and the nights of care, not the other way around.
• 51:57
  SPEAKER_00: Thank you so much for being here with me for this episode of the post-separation abuse podcast.
• 52:04
  SPEAKER_00: I remain eternally grateful for you being here, for you taking part in this discussion, for you thinking about what we're talking about, for you talking about what we're talking about, because I do hold on to the belief that it's these conversations had by you, by whoever it is that you speak to, by the broader community, that will improve things for our kids.
• 52:36
  SPEAKER_00: That's why we're here at Danielle Black Coaching, and we're here for you if you want to talk to women who get it.
• 52:47
  SPEAKER_00: Not from a textbook, but from the lived experience of post-separation, the lived experience of the system and the shared experience of all of the many, many hundreds of women that we have been working with over the years.
• 53:06
  SPEAKER_00: Please do not ever forget how incredibly important you are to your child.
• 53:13
  SPEAKER_00: How important even just one protective regulated parent can be.
• 53:20
  SPEAKER_00: Don't underestimate that.
• 53:21
  SPEAKER_00: Don't underestimate you.
• 53:24
  SPEAKER_00: You are important.
• 53:25
  SPEAKER_00: Please go forward into the rest of your day, whatever your day is going to look like.
• 53:32
  SPEAKER_00: Holding on to that knowing how important your role is even when you feel powerless and believe me, I've been there.
• 53:43
  SPEAKER_00: If you've listened to any number of episodes here, you know that I've been there.
• 53:48
  SPEAKER_00: You know that I get it.
• 53:50
  SPEAKER_00: Please don't underestimate the difference that you can make.
• 53:54
  SPEAKER_00: I'll look forward to chatting with you again soon.