Custody rules found to exacerbate child anxiety


IN A finding that challenges the Howard government’s changes to child custody laws, new research has found that children aged under 10 can be emotionally harmed by shared-parenting arrangements in many families.
Where parents cannot co-operate and remain hostile towards each other, shared-parenting arrangements can result in a higher-than-normal rate of clinical anxiety in the children, the research found.
The report follows changes to family law by the Howard government in 2006 in response to lobbying by fathers’ groups.
The changes emphasised the concept of equal shared parental responsibility, which is often misinterpreted as meaning equally shared time.
The report recommends that mediators and Family Court judges screen warring couples to ensure that their level of conflict does not make them unsuitable for shared care.
The report was written by Jennifer McIntosh, a child psychologist and associate professor of psychology at La Trobe University, and Richard Chisolm, a former judge of the Family Court.
It will be published next month in the journal Australian Family Lawyer.
Professor McIntosh told The Age that to be successful, shared parenting must involve parents living close to each other and getting along well enough to have a working arrangement.
They must each feel confident that the other is a competent parent, be financially comfortable, have family-friendly work practices and be committed to keeping the child out of their disagreements.
These conditions do not exist for many parents who have arrangements adjudicated by a court, Professor McIntosh said.
She found that litigating couples were more likely to substantially share children, even though 73% in one study reported “almost never” co-operating with each other, and 39% admitted “never” being able to protect their children from conflict.
“Shared care puts children more frequently in the pathway of animosity and acrimony between their parents, witnessing derogatory exchanges, for example,” she said. “The core issue is that shared care can inadvertently rob children of security in their relationships with both parents.
“Screening is essential. We should not allocate (shared) time as a means of appeasing angry parents.”
Professor McIntosh reported on two recent studies that tracked children’s wellbeing after a difficult divorce. One involved 181 children and the other 111 children. In the latter study, 28% of the children were clinically distressed four months after their parents’ court case ended.
Living in substantially shared care, being unhappy with those living arrangements, and having parents in high conflict were factors associated with poor mental health.
“One of the other realities of shared care is that it’s less stable,” she said.
Professor McIntosh said the concept of substantially shared time – five or more nights a fortnight with the “other” parent – is now being applied even to very young children, with 21% of shared-care children in one study aged less than four. Babies and toddlers are developmentally unsuited to shared care, her report argued.
She said the new law “tried to do good things. It tried to say that relationships with fathers are important, and they are. My data show that too. But, inadvertently, these changes seem to be creating new difficulties.”First published in The Age.

An accidental coroner


In his 13 years as state coroner, this former barrister brought a warm heart, as well as a cool legal head, to the job.
IT WAS a narrow country road on a day shimmering with heat, the kind of day that calls for relaxing under shady verandas with long, cold drinks. But emergency workers were out under the baking sky for hour after hour, growing quietly distraught at what lay before them: the bodies of six local teenagers who had died after being hit by a car.
One worker was feeling not only overwhelmed but ashamed that he was not coping. It was his job, wasn’t it, to deal with this kind of thing? Why couldn’t he just be strong and get on with it?
Then he glanced over and saw that the state coroner, Graeme Johnstone, had arrived. And that Johnstone was weeping at the devastation that lay before him. It struck the worker powerfully: the coroner saw so many terrible sights, and this scene had distressed even him. Watching, the man realised that it was OK for him to be upset. It was OK to be human in the face of tragedy. Sorrow did not mean weakness. The man’s distress did not disappear, but his shame did.
Johnstone says tears are the reason he was able to do his job as coroner. They released the grief he sometimes felt about what he had to deal with; they confirmed that he had not burnt out, that he could still bring a warm human heart, as well as a cool legal head, to this job.
“Unless you actually have a tear, every week or couple of weeks, about what you’re doing – unless you find (your eyes) wet -you shouldn’t be doing it,” he says firmly.
When he was a deputy coroner in the late ’80s, this was an unfashionable view. “It was, ‘If you can’t stand the heat, get out of the kitchen.’ I used to talk about the fact that every so often, I would have a tear. I think people thought that was rather strange.” Now counselling is routine for the staff of the Coroner’s Office after they have dealt with trauma: “I think things have moved on.”
Now it is time for Johnstone to move on. After 13 years as state coroner and three as deputy coroner, he is leaving to return to the magistracy. He will be replaced by County Court judge Jennifer Coate, who has worked extensively in the Children’s Court and helped set up the Children’s Koori Court.
Johnstone will have a couple more guest appearances with inquests over upcoming cases that he has opened, including the Burnley Tunnel smash, but he had his last day as coroner on Wednesday. He fielded staff farewells and media interviews in an office full of packing boxes, the overflow of 13 years of drama, tragedy and controversy neatly encased in cardboard.
Notwithstanding his comfortable working arrangement with his tears, Johnstone is a man who likes to keep himself contained. He sits behind his desk in a navy pinstripe suit. His answers are short and his manner guarded; he is a private man by nature, and he is also aware of the sensitivities of families whose loved ones have come before him as cases to be investigated. Their feelings are not be outraged, and his own, he makes clear, are off limits.
He will list the cases that most distressed him – the Longford gas explosion, the deaths of nine disabled people at Kew, the firefighters at Linton, Bali – but he will not share his responses to them. “Don’t make me go back there,” he says.
Johnstone was an accidental coroner. “This job is completely opposite to my nature,” he says. “I don’t like seeing anything suffer. Anything on television, the really graphic programs or the programs on medical management issues, I just turn away. I can’t look at it.”
But one Sunday in 1988, he was talking to then coroner Hal Hallenstein at a magistrates’ picnic in Templestowe. “The deputy’s job was available, and he and I were standing by each other and I, just as a matter of conversation, said, ‘What’s the job about?’ He told me. We went our own separate ways. The following morning, (chief magistrate) Darcy Dugan phoned me up and said, ‘You’re the new deputy state coroner.’
“I said, ‘What? I’m not interested.’ He said, ‘Yes you are, you’re it. You’re the only one that’s expressed any interest!”
Closer acquaintance with the job initially did nothing to relieve Johnstone’s misgivings. “I wondered what the bloody hell I’d done. Dealing with the files, dealing with the tragedies. It was horrible. There was no training, no advice, no support, nothing.”
Then Johnstone discovered a pattern of cases that led to him to a realisation about this work, a realisation captured by a Canadian politician who once said that a coroner’s task is “speaking for the dead to protect the living”. Johnstone’s epiphany – his discovery that being a coroner was a valuable calling, and a calling he felt deeply – came via forklifts.
Several forklift-related deaths had come before him. He started asking questions to which no one seemed to know the answers. Eventually he discovered that there had been 20 forklift deaths in the previous three years, compared to 21 in the 10 years before that. Investigations led to recommendations and to changes in design, changes in work systems and restrictions about the presence of pedestrians around forklifts.
“That’s when I thought, ‘This is what it’s about, preventing deaths.’ Most people at that stage thought (the coroner’s job) was about just completing an investigation and putting the file away.”
Changes made as a result of the coroner’s recommendations have saved many lives, he says. He points to new laws requiring personal flotation devices to be worn while on boats, to the widening of Geelong Road (given impetus by an accident that killed a young family), and the results of his inquiry into deaths in custody: “We’ve got probably the lowest rate of deaths in prisons, the lowest death rates in the world from self-harm.”
Along with the successes have been some blunders. The most high-profile involved the case of a termination of pregnancy at the Royal Women’s Hospital in 2000. The 32-week foetus had had an abnormality that would cause dwarfism and the mother was acutely suicidal.
The matter went to the Medical Practitioners Board after a complaint was made by anti-abortion National Party senator Julian McGauran. McGauran made the complaint after Johnstone released to him a copy of the police brief that included the woman’s private medical files. It triggered a heated debate about the confidentiality of medical records in general, and abortion records in particular.
Johnstone says now that he regrets that decision. “In hindsight, I’d probably do something different. I wouldn’t have released the files. The state of the law then was very much that the coroner’s files were totally public documents . . . Had I known what would happen, I wouldn’t have done it. I suppose it’s also a trust issue, because you think that someone who has a public responsibility to be moral (will behave like) a responsible person. I wouldn’t have expected them to release (some of the material in the file) in the way they did. Those two factors combined to make the decision.
“Now files are not so open; medical records very tightly controlled. There have been procedural changes internally.”
Graeme Johnstone grew up in Newtown, Geelong. He was the only child of a father who was a wool classer and a mother who stayed home to care for him. They struggled to send him to private school but managed it, and after finishing at Geelong College Johnstone moved into law.
When he first became coroner, he collected books on forensics and true-crime as background for his work. He was startled to read of his father in one of them: his parents had been witnesses in the highly publicised Pyjama Girl murder case of 1934, in which an unidentified woman’s bashed and burned body was found stuffed in a drain.
Coming home after their first date, a ball, his parents drove over a culvert at Howlong, on the border of NSW and Victoria: “There was someone huddled over a fire in the culvert and that was the killer burning the Pyjama Girl. They realised the next day. My father was interviewed by police.” Given his later career trajectory, Johnstone finds the coincidence bizarre.
Murders do come before him. But so do many, many accidents and mistakes, oversights in hospitals and workplaces that end in someone being killed. This is why he has pushed hard to set up and extend counselling services at the court, and they are not confined to the bereaved relatives. “It’s helping the families through the process; it’s also helping those who were involved in the incident. If you think about it, when someone gets up in the morning, they don’t expect to kill someone on the way to work. They don’t expect to kill someone at work. The managing director of a company doesn’t go out of his or her way to have a death at the workplace. What you find is that everyone who comes into this environment is traumatised.”
Most unnecessary deaths are the result of human error, design problems or system failures, he says. He did not see his task as apportioning blame, although he did refer to the Office of Public Prosecutions any cases that he thought involved criminal behaviour. Johnstone believed his main role was to find the facts and work out whether anything could be done to prevent such a death happening in future. He thinks it often comforts a family to know that society has learned a lesson from their loss.
He leaves as one of his legacies the world-first National Coroners Information System, a centralised nationwide database for storing information on Australia’s 7500 unnatural deaths each year. It will make it quicker and easier to identify patterns of similar cases so that systemic hazards or dangerous products can be identified.
He takes with him, as one of the legacies of the job to him, a new awareness of the generosity of the human spirit. “I’ve seen many cases where people have honestly admitted they’ve made a mistake. The reaction of family members is, in a lot of cases, the opposite to what you’d expect. They’re more forgiving.” It has made him a strong believer in a more therapeutic approach to justice, where the coroner sits all parties around a table to talk things through.
Johnstone remembers most vividly an elderly man whose much-loved wife died because of a mistake in hospital. The wife was 68 and seriously ill but had seemed to be improving. Then a nurse who intended to flush her intravenous line with saline instead mistakenly picked up a vial that was packaged the same way as saline. The nurse injected her with potassium chloride and the patient died. Johnstone found that the injection hastened her death.
The husband was devastated – “She’s the only person in my life that I will ever have to be a wife to me” – but he did not blame the nurse. Instead, he said the family would have to live through this human error, which could have been avoided had earlier coroners’ recommendations about the packaging been acted upon. And he said, “The girl who I feel sorry for (is) the nurse. She should never have been put in that situation where she could make that error.”
Says Johnstone, “He summarised all my work in those words.”
Karen Kissane is law and justice editor.
BORN 1945, Geelong.
EDUCATION Geelong College; Bachelor of Laws, Monash, 1970.
1971-73 Solicitor in Dimboola.
1973-77 Melbourne barrister, followed by nine years with Small Claims Tribunal and Residential Tenancies Tribunal.
1986 Appointed a magistrate.
1988 Appointed deputy state coroner.
1994 Appointed state coroner. Helped establish the National Coroners Information System, making Australia the first country in the world to collect coronial data nationally to help with health and safety.
FAMILY Married with children and grandchildren.
HOBBIES Woodworking, antique furniture, classic cars.First published in The Age.