Editorial Note: This is what happens when you cry wolf too often. People simply stop believing you. Just read the comments below to get an idea of how people react to the "distortions" in this article by Belinda Fehlberg. The general public can detect an agenda a mile away.

Belinda Fehlberg has a long history of calling for the Shared Parenting reforms to be repealed, and this is only her most recent effort. These articles should not be seen as being written by a Professor of Law, but by a malicious women's rights lobbyist who sees men as the enemy, and children as the battle ground.

Bizarrely she accepts that these laws have been an 'overwhelming' success, but she still wants them repealed because a minority of children have been "apparently" put in high-conflict arrangements. Although I do not doubt that some children have fallen through the cracks of the law, anyone who knows anything about the law knows that Judges and Magistrates have final say on what arrangement a child is placed in, and if a judicial officer believes any arrangement is not in a child's best interests, then they have the mandate to choose what arrangement is in the child's best interests, whether that arrangement has been sought or not.

So when these distorted case studies are being referred to, make an effort to find the judgement, and you may find that all is not as is claimed by Ms Fehlberg.  

The articles from writings Belinda Fehlberg should however continue to be read as a lesson in spin, but take it as being a reflection on the ideological underpinnings of the author, not a reflection on the law.

 
Shared care laws damaging many children
Belinda Fehlberg
August 26, 2010

Relationship breakdown affects many Australian families. About 40 per cent of marriages end in divorce and the rate of de facto relationship breakdown is higher. The family law system has a more direct and personal impact on our lives than most other areas of law. Yet in the lead-up to the election, we heard almost nothing about family law reform.

In the meantime, the Howard government's 2006 shared parenting changes to the Family Law Act continue to damage a significant minority of children.

For example, a case recently before the Full Court of Family Court of Australia, known as "Collu & Rinaldo", involved a four-year-old child who had been travelling month-about between Sydney (where his father lived) and Dubai (where his mother lived) for 14 months, while the case awaited court hearing. Why is our family law system so poorly resourced that a case like this must wait so long to be heard? And what encouraged the parents and their legal advisers to think the care arrangements for this child were acceptable, until the appeal was expedited after "medical evidence was presented about trauma the child suffered during a flight from Sydney to the UAE"?

Such arrangements may suit parents, but this case – and the research – show the psychological damage that can result from constant disruption and lack of stability for such young children.

Earlier this year, I wrote about key findings of reports by the Australian Institute of Family Studies and the Chisholm Inquiry. These reports, both commissioned by the federal Attorney-General's Department, showed that shared parenting time is not working well for a significant minority of Australian children. They showed that fathers have been encouraged to seek shared care and more mothers now feel pressured into it. They also showed that shared care is now used by a substantial minority of parents with significant problems (such as high parental conflict, substance abuse and/or mental health issues). It is being agreed to by parents and, even more often, ordered by courts in cases where it seems not to be in children's best interests, partly due to community and professional misunderstandings about what the law says.

We now also have three more recent reports commissioned by the federal Attorney-General's Department and released in July, which, in different ways, establish the same points.

Most significantly, a report by clinical child psychologist Dr Jennifer McIntosh and colleagues underlines the significant negative impact of shared care arrangements on children under the age of four "regardless of socio-economic background, parenting or inter-parental cooperation".

A report by social work professors Dale Bagshaw and Thea Brown and their colleagues on parents' and children's perspectives on family violence and family law in Australia underlines yet again that the family law system does a poor job of supporting and assisting victims of family violence.

There were major criticisms of the way violence was dealt with in mediation. In court, those reporting violence felt their reports were "disbelieved, minimised, or sometimes accepted but put to one side in the ultimate decision".

Finally, a report from the Social Policy Research Centre at the University of New South Wales is broadly consistent with previous research finding that shared care is experienced differently by mothers and fathers and is most problematic when mothers have serious concerns about their children's safety or there is high parental conflict. The report concludes that factors such as the level of parental co-operation and conflict are more important than the structure of parenting arrangements. In other words, shared care of itself is not necessarily better for children than other care arrangements. Given this, there seems to be no justification for our current legislative approach, which encourages parents in this direction.

Of course, shared care can work well for some families – typically a small select group who decide this for themselves and without reference to what the law says.

In the lead-up to the election, the Gillard Labor government indicated that it was considering the recent reports before responding but was committed to "further improving" the family law system. The Liberal Party said nothing about shared parenting or family violence reform. The position of the independents isn't clear. Most clearly in favour of reform have been the Greens, who called in January this year for change "as a matter of priority in light of the findings of the Chisholm report — highlighting that the Greens opposed the Howard government's amendments at the time because of these very concerns".

However our government is structured in the coming weeks, it should act on consistent evidence showing us that a significant number of children are being damaged by our shared parenting laws. What we need are laws that require us to determine children's best interests on a case-by-case basis without pre-conceived ideas, and laws that require us to take family violence seriously at every step along the way.

Professor Belinda Fehlberg is professor of law at Melbourne Law School, University of Melbourne specialising in family law.

COMMENTS

Why do my antennae start vibrating when I read article after article that links the issues of shared parenting with that family violence?

Surely some context would be helpful. In what percentage of divorce involving children is family violence reported? If some people who allege family violence are being disbelieved is there any data that helps the general public distinguish truth from fiction? Are there any other issues that are important? Is there any empirical data that actually look at the effects of different parenting models on children? Why do I have the feeling that the "the best interests of children" arguments are cover for other agendas?

I wish had the sense of getting insight into the real issues, rather than a sense of being subject to an exercise in perception management.

worried dad | Melbourne - August 27, 2010, 8:09AM

This article reminded me of two sisters, aged six and three who were in full time long day care where I worked a couple of years ago.

Their day extended from about seven thirty am to six pm each day, and care alternated weekly between parents.

That year they both stayed in day care for the whole summer holiday too, while first their mother went overseas with her new partner, while the dad worked and dropped the kids in day care, and then the dad went to Bali with his new girl while the mum left the kids at day care and worked.

I thought it was very sad.
Christine | Perth - August 27, 2010, 8:48AM

I am a father who had to spend 10s of thousands of dollars just to be able to see my young daughter. I would like to see the following Family Law reforms adopted as a matter of priority;

1 In the absence of any evidence of violence or abuse, it is an offence for any parent to prevent a child and the other parent seeing each other . Conversely, a father is entitled to see their children at least every 2 weeks and on key occasions such as birthdays and Fathers Day. No parent should have to incur crippling legal fees in order to merely see their children.

2 If a parent wishes to leave a marriage - fine. But the departing parent (father or mother) should have no right to remove the children with them then demand financial support, especially when moving into another relationship. ie Move interstate or overseas, but you need a court order to take the children with you.

3 Any adult who wishes to strike up a domestic relationship with an estranged parent and live under the same roof as someone else's child, should require a police clearance first.
Mike | Armadale - August 27, 2010, 9:11AM

Re "The Liberal Party said nothing about shared parenting or family violence reform"

The three major parties actually did address their policies on shared parenting to the NCSMC. You can read where they stand on shared parenting in the SingleMum.com.au article "federal election 2010 - a single mother's guide"here:
http://www.singlemum.com.au/articles/single-mothers-guide-federal-election_20100820_sm.html

(The coalition support current shared parenting laws)
SingleMum.com.au | Australia - August 27, 2010, 9:37AM

As someone who came from a split parenthood, this article is breathtaking in its naivety. If not for a very long and very costly legal battle, I would not have had my Father as a part of my life. The relationship between my Father and Mother caused massive disruption and problems in my life, but I have never questioned whether it was worth it, my relationship with my Father is now one of the central pillars of my life.

Of course children are going to go through some tough times under shared parenting arrangements, but to simply judge the shared parenting outcomes on the child at that age completely ignores the immeasurable benefit that those parents have throughout the childs life.

The fact that I had a relationship with my father at all caused huge disruption and angst in my life, but I'd laugh in the face of anyone stupid enough to think that I'm worse off because of it.
Regularchap - August 27, 2010, 9:46AM

"The report concludes that factors such as the level of parental co-operation and conflict are more important than the structure of parenting arrangements".

I see. You mean when Mother decides to take the kids to another city, and blatantly breaks Court orders and refuses to co-operate in making the children available to be with Father? Yeah, that would create conflict So that would be a case for Father to not see children? Been there and lived it. Thats right folks, the Prof wants to turn the clock back to this!

Really Prof, and the "Child psychologist" hangers on, the world has moved on: In most cases children are MUCH better off in having a meaningful relationship with both parents, and that means spending significant time together beyond the token "alternating weekend" rubbish that the Prof would like to see returned.

Simmo - August 27, 2010, 10:31AM

"In the meantime, the Howard government's 2006 shared parenting changes to the Family Law Act continue to damage a significant minority of children."

Right. Lets get this clear: MINORITY OF CHILDREN. Ergo its a GOOD THING for the MAJORITY OF CHILDREN. So why should the reforms be abandoned when they are in the best interests of most children? And the Law doesn't bind the Family Court in making shared care mandatory for all cases. Thats based on the individual circumstances as supported by the evidence. Thats right, Professor, evidence. If the evidence shows it will be harmful to the child, then the Family Court can reject the application for shared care.
This is agenda-driven drivel to turn the clock back to the dark times when "mother knew best",no matter what, despite all the evidence to the contrary. But having shared care means Mother has no case to demand 85% of all assets, and exhorbitant Child Support payments. Get it?

My son has thrived since I litigated and won shared care, despite his mother wanting the "alternating weekend" nonsense. That litigation still cost my my life's work-only because it was contested without any basis by the mother, but its been worth every cent. To abandon shared care, as the Prof wants, would harm the majority of children.

Just a Dad - August 27, 2010, 10:19AM

MIke, I'm sorry to hear you had to go through that. I'd amend your second point to clarify that if a spouse has to leave the family because they've been abused, then they are the ones who have the children.
Very good point about the parent's new partner. So many cases of abuse are the boyfriend, the new husband. I know it sounds like painting all stepfathers in that light, which I'm not trying to do at all, but it does occur often enough to be chilling.
LL - August 27, 2010, 10:09AM

yes, the concern for me is that when Professor Fehlberg says "children's best interests" she assumes the view, expressed many times by feminists in articles like this in the Age, that "children's best interests" are identical to "mother's best interests" - and that the father is irrelevant. They then reason that, therefore, whatever the mother wants must by definition be best for the child. If the Family Court actually assessed cases on the evidence and merits, rather than 'preconceived ideas' such as that all women always tell the truth, and that all men are violent towards their children, that would be fair. But they don't. Instead, the history is that women are always favoured by these decisions, no matter waht the circumstances. Professor Fehlberg, I'm afraid, is just another feminist idealogue. She writes here to provide support to the feminist view that men's role in parenting is to pay chid support to their children's mothers, take the kids for a couple of days every now and then so the mother can have some free time, and otherwise stay out of the picture. Professor Fehlberg, for all her remarks about violence, provides in her article only one parenting case as an example, and in this case it appears that the mother left for Dubai, and the Family Court insisted the child must travel there regularly, despite it being not in the child's real interests. And the the professor concludes from this that men should not have contact with their children! Brilliant!
Jeff | Melbourne - August 27, 2010, 10:10AM

LL - point taken.
I agree the courts must be able step in and apply common sense where there is violence or abuse.

But there must be common sense default positions that eliminate the need for fathers to incur crippling legal fees just to obtain a base level of contact with their children.
Mike | Armadale - August 27, 2010, 11:08AM

Regularchap - August 27, 2010, 9:46AM - Thank you for your insights from the view of a person actually impacted by it. The 'think of the children' crowd need to listen to the likes of you before assessing these reports as the initial impact on the children can be unclear.
I'm not sure parents are the most constructive sources for these sorts of reports. They too often think of their own needs rather than that of the child's. For example they will claim the 'right to see my child' rather than the child's right to have that parent in their life. It is an important distinction but I wish the focus was on the right of the child and not the right of the parent because too often the parents are so wrapped up in their hate of each other the child is just a weapon.
narc | Melbourne - August 27, 2010, 1:33PM

The Children should be given the family home. 50% of each parents income should be given to the children's expenses and the parents should move in and out of the home. Why is it that children always have to do the bag packing every 2 weeks. It should be the parents. The children need the stability.
lizzie - August 27, 2010, 1:58PM

It is very sad that so much of this debate is taken up by parents arguing for their own rights and self-interests rather than placing paramountcy and precedency on the needs, wishes, and rights of children. Of course they try to dress it up in the vaguely defined `Best interests of the child', a concept which is infinitely variable and highly subjective in its application.  

What is know from years of research is that children's primary needs are for consistency and constancy in their day-to-day care, the security of familiar surroundings and personal items, continuity of relationships with their friends and extended family, and most important of all, security and protection from harm. Shared parenting after separation is not an issue as both parents retain full legal duties and responsibilities to their children, but sharing the care of children needs very careful thought about the insecurity, instability, and emotional turmoil this can cause to children and leads to high levels of anxiety, emotional harm, disrupted education and social development, and trauma where children are abused or neglected. This occurs whether the shared care arrangement is agreed or is Court-Ordered. Currently State child protection agencies are working to prevent child abuse and to protect children, while Family Courts are placing children in situations where there is a high risk of abuse and exploitation, ignoring or failing to competently investigate, prior evidence of domestic violence and child abuse. Urgent and significant reforms are need to the Family Law so that children's Needs, Wishes, and Rights are given paramountcy and precedence by Family Courts, and particularly that they are protected from abuse and exploitation, and it is not simply about parent's demanding their rights and pursuing their self-interests.
Chas3931 | Melbourne - August 27, 2010, 2:12PM

this is just feminist claptrap.
vast majority of divorces have nothing to do with violence.
woolly - August 27, 2010, 3:44PM

Mike | Armadale & Just a dad : I know exactly what this is like.
When my ex left, the children were initially left with me, without warning whilst she spent a month gallavanting with her new bloke, then when a laywer pointed out the financial risk she was taking, she suddenly collected the kids from school without warning and claimed she wanted full custody.

No matter how much parents love their kids, they can do stupid, stupid things in the face of biased one sided laws that seem to reward one parent and punish another. Such laws then create greater conflict which flows down to the children and does MUCH more harm than anything else.

In my case, I was hit with everything.... accusations of threats of violence.... continual run around..... almost $30k worth of legal bills from laywers that saw me coming and rubbed their hands in glee.
The result was that I won a case and my children have been settled in a share care arrangement for 10 years, but the cost in stress alone was incredible.

With the default of shared-care and the fairer child-care formula my situation would never have arisen.

Yes, there may be a MINORITY of children that need a different approach.... but why destroy lives of the majority and go back to the dark age system we used to have. I know what my kids would say. They love both their parents and wouldn't want to miss out on life with either one of us!!

Oz | Melbourne - August 27, 2010, 3:45PM

Here we go again, the latest wave of feminists continuing the fight to ostracize fathers from their children. Lets demonise all fathers in broken relationships as wife beaters or child molesters or drug users in order to get our way. Of course mums are all the very incarnation of Gaea.


Burn | Melbourne - August 27, 2010, 3:49PM

As someone working in this area I have encountered the attitude from police and DOCS that if a parent (gender neutral) makes a complaint about violence against the other parent, even violence towards the child, during a court case, then they are reluctant to get involved, saying it should be dealt with in Family Court. I'd like to think these are in the minority but even so, I think allegations of abuse should be treated the same regardless of other court cases and that assuming allegations are a ploy is just endangering the children. All allegations should be investigated thoroughly and if the allegations are found to be deliberately false then throw the book- that's what it is there for. More funding for DOCS and police as well as clear education to these services as to their obligations in such case would go a long way. But the idea that having both parents share the parenting is automatically better for the child contributes to the problem, and even if only a minority of children are in danger isn't that too many? Too many parents involved aren't able to make rational decisions due to emotion and wanting to beat the other parent, although it will burden the majority of parents who do the right thing isn't it worth it to know that the court is looking after your kids?

The Devil You Dont - August 27, 2010, 4:11PM

There are two questions I would like to ask Professer Fehlberg. 1. Is she a feminist? 2. Did she have no father, or did she have a bad relationship with her father? Her view smacks of evidence that she is one or both. The very fact that "the Howard government's 2006 shared parenting changes to the Family Law Act continue to damage a significant minority of children" suggests that it is good for the majority. And common sense tells us that is the case. The greatest single cause of major social problems today is fatherlessness. The alienation of one parent (almost always the father) is the most harmful act that can be done to a child. When are we going to see the balanced view reported in the media? One of the few good things the Howard government did was modify ever so slightly the most damaging piece of legislation ever passed in this country - the Family Law Act of 1975. I voted Labor in 2007. I voted the other way this time for this very reason.
Nurturing Dad | Gold Coast - August 27, 2010, 5:27PM
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