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Shared Parenting Legislation

Mar 232010
 

Fathers often acquire the status of second-class parents after a split. Let’s enshrine in law a presumption of shared parenting.

guardian.co.uk, Monday 22 March 2010

Martin was the ideal father. There at the birth of his two children, took his share of the broken nights, mopped up during potty training and read the stories at night. He loved his kids and they loved him. Then he stopped loving their mum and she stopped loving him. It just happened, nobody else involved. The children didn’t understand what was going on. They were too young and couldn’t believe it when suddenly, Dad wasn’t there anymore and nobody was able to explain it to them.

So what had happened? Simply what happens to a quarter of the children in this country. The ideal family had collapsed, and parental anger intervened to rob the children of half their family. This example is not as rare as you might think. Every year, in excess of 20,000 families find co-operating after separation so impossible that they end up in an adversarial family court system that seldom leads to much more than legal bills and acrimony. When a marriage or relationship splits up there is still an assumption that one parent, normally the mother, will do the parenting and the other will be there to pay the bills. There is a need for more support for the discarded Martins of this world, and increasingly the Martinas.

Fathers often try and stay close to their children’s school or nursery following a divorce, fully expecting to continue to be a parent. Sometimes they move back in with their parents, as they simply can’t afford anything more. They become the “non-resident” parent with no tax breaks, child benefits or rights to housing, and acquire too easily the de facto status of second-class parent.

And even when separations are relatively amicable, other factors can lead to exhausting court battles over the children. Who owned the house? Who would get the car? The children become pawns in an adult game that can become so bitter that one parent denies contact with the children without any thought to how they might feel.

Family and friends are forced to take sides. Battlelines become drawn and lawyers engaged in a legal system unknown to most of the population and hidden behind its cloak of secrecy. Parents who until their separation played a full and active role become reduced to seeing their children under supervision once a fortnight in contact centres.

It is not unusual for the court processes to last years and cost the parents tens of thousands of pounds – money that could have been dedicated to bringing up their children. Those without financial resources or access to legal aid often give up and walk away. The cost to the state is even higher through the expense of the court system and the destabilising effects on the children, whose education and happiness will be affected.

There are lots of Martins and Martinas. My MP told me about the first one she met. “He seemed credible but the courts weren’t letting him near his kids. There had to be something suspicious. Then I met a second dad and a third and I realised the system was slow, unwieldy and unfair – mostly to the children involved who were being denied the love and support of a parent. It wasn’t the dads who were the issue, it was our system.”

Other countries, Australia being a notable example, have addressed these problems and are striving to help parents avoid the courts and the adversarial system that pits parent against parent. A presumption of shared parenting enshrined in law would send the signal that both parents need to continue to play a significant role in their children’s lives post–separation. More information need to be made available to parents before they disappear into the court process to build a fairer benefit system that doesn’t discriminate against non-resident parents.

Increasingly, men are stepping up to the plate as parents and are taking their responsibilities seriously. An EOC survey in 2007 showed that mothers recorded an average of 2 hours 32 minutes per day looking after their own children, compared with 2 hours 16 minutes by fathers. This trend is expected to continue. As a society, we need to make it as unacceptable for a child to lose a parent as it is to put them in a car without a seatbelt.

http://www.guardian.co.uk/commentisfree/2010/mar/22/fathers-rights-family-breakup-children

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.

BELINDA FEHLBERG

http://uninews.unimelb.edu.au/news/6049/