Parenting laws issue of shared care

Ever since the 2006 reforms to the parenting laws in the Family Law Act, the issue of shared care or equal time has been a complicated one, that always touches a nerve, whichever “side” of the debate you might be coming from.

A report has recently been released, following a federal government funded investigation into the impact of parenting law reforms. The study, which was commissioned by the Federal Attorney-General’s Department, was conducted by the Social Policy Research Centre at the University of NSW, academics from the University of Sydney and the Australian Institute of Family Studies.

The study found that, on the whole, providing parents do not fear for their own or their children’s safety, most are happy with shared care, many mothers like the break and many children think the arrangement is “fair”. Shared care arrangements were found to work better in cases where the parents were able to cooperate and make joint decisions and where the parents had chosen shared care for themselves, rather than had it imposed on them by a Court.

However, the study also found that for a “significant minority” of children, shared care was damaging. These tended to be cases where shared care was imposed on parents who lived far apart, where there was conflict between the parents and/or the arrangement resulted in instability for the children.

The potential of such damage to a “significant minority” of children has been picked up by some commentators, including Melbourne Law School Professor Belinda Fehlberg, in support of a call for a re-consideration of the current parenting laws. Professor Fehlberg has been quoted as saying “there seems to be no justification for our current legislative approach which encourages parents” in the direction of shared care.

My experience as a family lawyer bears out this summary of the report’s findings. That is, I have seen shared care arrangements work well where parents chose the arrangement for themselves and are able to effectively communicate, cooperate and co-parent.

However, what I also see and, as Professor Fehlberg says, high parental conflict and parents’ inability to cooperate and communicate makes shared care extremely difficult and likely to lead to ongoing problems for the children.

Sometimes the high parental conflict has continued from the conflict that caused the relationship to break down in the first place; other times it seems to me to be “manufactured” by one of the parents during the litigation process and used as a tool to argue against the other parent getting shared care.

Whatever the cause of the parental conflict, the process of fighting over children in Court never lessens that conflict. The estranged parents usually finish the Court process in more conflict and less able to cooperate and communicate than when they started.

So, it seems to me that the problem is not about the wording of the law. The law is worded to do just what Professor Fehlberg calls for – that is, to determine children’s best interests on a case-by-case basis, without a preconceived bias in favour of shared care or any other parenting arrangement.

Instead of again changing the law, it seems to me that what’s needed is a change in the attitudes of separating parents, so that both of them focus on their children’s needs, not on using the children to punish the other person. As can be seen from the report’s findings, parents who focus on their children’s needs cooperatively, are able to put in place an arrangement that is beneficial for their children.

Given that, sadly, some parents seem incapable of not only putting their children’s needs first, but of seeing the children’s needs as separate from their own, perhaps government resources need to be spent on a more widespread, thorough and mandatory post-separation parenting education program, rather than more law reform. Maybe parents (and, let me stress, I mean mothers as well as fathers) should have to pass a children’s needs focussed test before the children can live or spend any time with that parent.

What, I hear you ask, would happen to the children as both parents sit and re-sit the test and continue to fail? Perhaps the parents need to ask themselves that question and consider the impact on their children when deciding whether to continue to escalate their conflict or attempt to resolve it. 

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