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Family Law Reform

Mar 142010

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.


Feb 062010

Shared parenting by separated couples is not a perfect solution but that’s no reason to scrap it.

TWO stories last week resonated with a familiar timbre, that of shrill feminists yelling for men’s blood. The first was the hysterical reaction to Tony Abbott’s Women’s Weekly interview in which he expressed his opinion on what is both a father’s right and duty; the moral education of his children .

The second story has a similar thread running through it, with much graver implications. It concerns shared parenting by separated or divorced couples, which was a basis for family law reforms in 2006. According to some commentators, it is a failed experiment.

The reaction is puzzling since it goes against a supposed feminist notion of equality: that fathers and mothers have equal responsibilities and roles in their children’s upbringing.

This story has been building for almost a year and, depending on what you read, shared parenting is (according to this newspaper) “on the way out” or to be “rolled back” or “brings little change”. According to The Sydney Morning Herald: “Shared care failed children.”

Adding fuel to this is a report by Richard Chisholm and a psychologist, Jennifer McIntosh, that concludes the reforms of 2006 have not benefited children, especially in acrimonious situations, which one might have thought was obvious.

Since only 16 per cent of parents practise shared parenting — and, according to the Australian Institute of Family Studies, most arrangements work well — one wonders what Chisholm is talking about. To work well, they must be non-acrimonious.

But there is more. According to Chisholm many parents — read mothers who still are the main carers of children post-separation — are being “coerced” into shared arrangements by fear, and by a presumption on the part of the father that shared parenting equals 50-50 shared time.

According to Chisholm, an unacceptable number of children in court-mandated shared care are exposed to unnecessary levels of acrimony and possible violence.

However the legislation is clear that where shared care has been ordered by a court, the presumption of shared care is dependent on there being no violence; putting a child into a possibly violent situation contradicts the law. So what is all this about about?

Shared care and domestic violence are separate issues. Children should not be exposed at any level. But there is definitely a risk of violence to children due to family breakdown and not simply from the father, but from the mother and other males.
None of this bothers those who want the 2006 reforms abolished. For them mothers must have autonomy even at the expense of a child’s relationship with its father. They see a way to this amid Labor’s ascendancy. Single-mothers’ groups such as the National Council for Children Post-Separation, backed by feminists and some journalists, have deliberately muddled the two issues of violence and shared care.

Chisholm recommends extensive dismantling of the 2006 reforms. In doing so, he seems to have exceeded his terms of reference, which were strictly limited to inquiring into matters before the federal Family Court in which issues of family violence arise.

According to Richard Egan of Family Voice Australia, “Chisholm proposes radical changes that could profoundly affect all separating couples with children, not just those where family violence is an issue. The report proposes removing the qualifiers `equal’ and `shared’ from the key provision introduced by the 2006 reforms. These provisions affirm as a fundamental presumption of family law `that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child’.

“Chisholm’s recommendation would see this key provision reduced to the meaningless statement that both parents are presumed to have `parental responsibility’, but not necessarily in equal measure.”

As for 50-50 time, Attorney-General Robert McClelland has repeated Chisholm’s claim that it is an erroneous concept in practice. “. . . Regrettably, there have been instances where people have resolved cases, settled cases, on the assumption that the law intends an equal split of time.”

But the law does require the courts, when proposing to make orders for equal responsibility, to consider making an order to provide for the child to spend equal time with each of the parents, if this is considered to be practicable and in the child’s best interests.

The AIFS reports that of those children whose parents separated between July 2006 and September 2008, one in three never stay overnight with their father and one in nine never see their father. That is an improvement on the situation prior to 2006.

Before 2006 there was a de facto presumption in favour of an “80:20 outcome” in which, usually, the mother was given care of the child for most of the time with the father being given care of the child for every second weekend and half of school holidays.

Chisholm’s recommendations would only increase the incidence of practical fatherlessness already being experienced by too many Australian children, by depriving the court of any guidance favouring equal shared responsibility.

One suspects the claim some children in shared arrangements are unnecessarily exposed to domestic violence due to mothers being afraid to speak up is a sham to cover the number of false claims of such violence, which interestingly have dropped since 2006.

McClelland has said the catalyst for the Chisholm report was the death of little Darcey Freeman last year, allegedly at the hands of her father. According to this newspaper, her mother was intimidated into surrendering her.

Curiously the intimation is that only fathers who intimidate pose a risk. They don’t. When Gabriela Garcia jumped off the same Melbourne bridge with her baby later last year, no one began an inquiry.

These deaths are tragedies, the product of despair and madness, not a catalyst for gender wars.

If we want to fix child abuse that is another issue. Mothers are more commonly perpetrators of child deaths than fathers, and boyfriends are six times more likely to be perpetrators of physical and sexual violence than biological fathers.

As Patrick Parkinson, a principal author of the reforms, has said, “In the past 30 years, we have sown the wind in the revolution in attitudes to sex, procreation and marriage. We are now reaping the whirlwind. The societal problems which this has caused are problems that no law can resolve.” Family breakdown contributes to child abuse; shared care does not.

Angela Shanahan