The shared parenting laws central to the 2006 Family Law reforms are in need of some fixing, says Professor Belinda Fehlberg, but there is continuing debate on how best to move forward. By David Scott.
Children are often at the centre of disputes between separated parents in Australia, and they were at the centre of major changes to the Family Law Reform Act of 1995, which introduced the principle that children have the right to know, be cared for, communicate and spend time with both their parents, except when contrary to their best interests.
These amendments were significantly extended by far-reaching changes in 2006, which introduced the presumption (or starting point) of ‘equal shared parental responsibility’.
Only when the presumption of equal shared responsibility applied did the court have to consider ordering equal shared time. Other changes were designed to encourage separated parents to reach agreements without recourse to the legal system.
However, three years on from the most recent reforms, the scorecard on how the latest amendments are working is very mixed, according to family law expert and Melbourne Law School Professor Belinda Fehlberg.
“The 2006 reforms were aimed at encouraging separated parents to share care and responsibility for their children more equally and without going to court, if this was safe. In reality, shared care means more time for children with fathers, which is not instinctively a bad thing,” she says.
“However what we’re now discovering is that shared parenting is sometimes being used in a way that is harmful to children.”
It appears that 2010 will be something of a watershed year in the family law arena, with reports having been already released by the Australian Institute of Family Studies (AIFS) and the Family Law Council, as well as a report on the Family Courts’ treatments of family violence by former Family Court judge Professor Richard Chisholm.
Professor Fehlberg herself is in the middle of completing a three-year longitudinal study into post-separation parenting. She says given all the reports on the subject are so detailed and complex, it’s little surprise there are misunderstandings about what they say and what the next step is for shared parenting arrangements.
“Shadow Attorney-General George Brandis claimed, after the release of the AIFS report, that there was no need for more reform, based on the AIFS’ broad conclusion that in general the 2006 reforms are working well. He also suggested that the AIFS’ findings were inconsistent with Chisholm’s.
“His view is a vastly oversimplified summary of both reports and overlooks key consistencies between them,” she says.
Professor Fehlberg says a major consistency is that fathers have been encouraged by the 2006 reforms to seek shared care and that mothers often feel pressured into it.
“Shared care isn’t the norm but it is increasing, especially among litigating parents – up from two per cent to 13 per cent. This is worrying as litigating parents often aren’t good at managing day-to-day negotiations and interactions needed for successful shared care.
“It’s also clear that many people now mistakenly assume the starting point is that children should spend equal time with each parent. Parents and lawyers report fathers feeling entitled to 50-50 care and believe the reforms have favoured fathers.
“The legal starting point is in fact equal shared parental responsibility for major decision-making. The current misconception of parental rights as equal time has led some fathers to seek more time with children as a way to reduce child support payments rather than out of a wish to care for them. Separated mothers are receiving less of the family property than pre-2006, worsening what is often their more disadvantaged financial position.
“These reports consistently find that shared parenting reforms discourage mothers from raising family violence concerns due to the emphasis on facilitating the child’s relationship with the father, and the perception that family courts will order shared care anyway,” she says.
It’s also clear from the reports that a more diverse group now uses shared care, including a substantial minority with high parental conflict, substance abuse and/or mental health issues and concerns for their children’s safety.
“The evidence includes emotional and psychological harm in high-conflict families, as well as risks to children arising from constant disruption, parental neglect, violence, mental ill-health or substance misuse issues.”
The reports consistently find that shared care is not in children’s best interests in these sorts of cases.
“Shared care is inappropriate where there are real safety concerns. Yet the AIFS found that parents with safety concerns were just as likely to have shared care as parents without such concerns.
“The reports clearly show that we need to change the message so the emphasis is on what works best for each child, rather than a one-size-fits-all emphasis on equal time.”
For Professor Fehlberg, a more positive way forward involves careful consideration of all the available data, acknowledging the important consistencies across the recent bodies of work, and acting on these to support children.
“Our data shows that children appear to fare better when shared parenting arrangements are mutually agreed to, while parents reporting less positive experiences are describing conflicted parental relationships, lack of paternal competence and greater involvement with family law system professionals.
“It’s clear we do need to change the law. Chisholm rightly suggests that equal parental responsibility needs to be distinguished from shared time. We need to make clear that there is no one preferred parenting arrangement, and re-focus on which of the available options is in the particular child’s best interests,” she says.
“The question remains whether, in an election year, the political will exists to act on strong and consistent research messages to improve the lives of many of our children,” says Professor Fehlberg.