Reports show shared care needs fixing
Posted by BELINDA FEHLBERG on February 5th, 2010 | Category: Family Law Reform BELINDA FEHLBERG
Family law reforms in 2006 were aimed at encouraging separated parents to share the responsibility and care of their children more equally and without going to court if this was safe. In reality, shared care means more time for children with fathers, not instinctively a bad thing. Now – three years down the track – we have detailed reviews about how the reforms are working and the scorecard is not good.
BELINDA FEHLBERG
February 3, 2010
Last week saw the release of reports by the Australian Institute of Family Studies (AIFS), a former Family Court judge, Professor Richard Chisholm, and the Family Law Council. My own research at the Melbourne Law School involves in-depth interviews with separated parents.
The consistent message is that shared parenting is sometimes being used in a way that is harmful to children.
The reports are detailed and complex. So it's not surprising that already there are misunderstandings about what they say. Last week, shadow attorney-general George Brandis claimed 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.
The first key consistency is that fathers have been encouraged to seek shared care and more mothers now feel pressured into it.
Shared care isn't the norm but it is increasing, especially among litigating parents (up from 2 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 or major decision-making. Factors including the risk of violence, or that shared responsibility isn't in the child's best interests, make it non-applicable and when this happens the courts don't have to consider ordering shared time.
The current misconception of parental rights to equal time has led some fathers to seek more time with children 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 their more disadvantaged financial position.
The 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.
The second key consistency is that a more diverse group now uses shared care.
Pre-2006 research showed shared care was used by co-operative, child-focused parents. Fathers had been involved in children's care pre-separation. There was little legal involvement in reaching post-separation parenting arrangements. Shared care still works well for this group.
Post-2006, the reports show shared care parents include a substantial minority with high parental conflict, substance abuse and/or mental health issues and concerns for their children's safety. Shared care is not working well for this group.
Yet worryingly, the reports contain consistent evidence of shared care occurring where it is not in children's best interests
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 health or substance misuse issues.
AIFS found that "there is a significant minority of children in shared care time arrangements who have a family history entailing violence and a parent concerned about the child's safety, and who are exposed to dysfunctional behaviours and interparental relationships".
Shared care is inappropriate where there are these safety concerns. Yet AIFS found that parents with safety concerns were just as likely to have shared care as parents without such concerns. This shows our system's failure to distinguish between families for whom shared care is appropriate and those for whom it is not.
Finally, 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.
Successful shared care was occurring before the law was changed, where co-operative parents were involved. Changing the law has encouraged the use of shared care arrangements in situations that are harmful to children.
To correct this situation we 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 preferred parenting arrangement, and re-focus on which of the available options is in the particular child's best interests. We need to amend the legislation so that victims of family violence are not deterred from disclosing it.
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.
Professor Belinda Fehlberg is at Melbourne University's Law School.
Source: theage.com.au
http://www.smh.com.au/opinion/politics/reports-show-shared-care-needs-fixing-20100203-nd7a.html
Comments (3)
Dave,
I concur with your comments on child support entirely.
Not only does shared care cost the otherwise non-custodial parent significantly more in day to day expenses, but there are huge capital expenses that must be accomodated, including the costs of a separate bedroom, separate set of clothes, child's toys & games, computer, so and and so forth.
If this issue was about child support, then shared care is the worst option for a father because it significantly increases his financial committments.
Clearly its not, but even if it was, and as Dave states, the reciprocal argument that mother's deny contact to increase child support payments must be made in the same breath, otherwise the comments are disingenuous, and nothing but political advocacy that is devoid of truth, as is the case with this woman's comments.
What a breathtakingly dishonest account of the legislation and the reviews.
The AIFS review was unequivocly clear that there is NO SAFETY issue with shared care, and NOT ONE child was exposed to greater risk due to shared care. In fact because of greater transparency of shared care, it is by far the safest option for kids.
When WA Deprtment of Child Safety stats show that 80% of child abuse occurs in sole mother households, then something is FUNDAMENTALLY wrong with sole custody, and these self-interest groups should start realising that.
This is not a "one size fits all legislation" The results of this legislation have been from zero contact to 50:50, and everything in between, based on circumstances. It is the previous legislation which was one size fits all, where by almost every case ended up with same result, mother having custody and father seeing the kids 2 days per fortnight.
And what does Fehlberg suggest is a better system? the exact system we had before! How convenient.
Its obvious that her thinking is more about the perceived interests of single mothers rather than the best interests of the child.
Regarding child support payments and the assertion by Ms Fehlberg that fathers are seeking shared care to reduce their payments, she seems to completely ignore the fact that even if less child support is payable to the mother it will still cost the father money when his child is in his care. I put it to you Ms Fehlberg that many mothers are deliberately denying fathers access to MAXIMISE the amount of child support they recieve, and in so many cases this money is spent on their lifestyle and NOT on the children.