Shared care laws damaging many children Belinda Fehlberg

[Alison J Stevens]

Shared care laws damaging many children Belinda Fehlberg
August 27, 2010 - 6:57AM


Relationship breakdown affects many Australian families. About 40 per cent
of marriages end in divorce and the rate of de facto relationship breakdown
is higher. The family law system has a more direct and personal impact on
our lives than most other areas of law. Yet in the lead-up to the election,
we heard almost nothing about family law reform.

In the meantime, the Howard government's 2006 shared parenting changes to
the Family Law Act continue to damage a significant minority of children.

For example, a case recently before the Full Court of Family Court of
Australia, known as "Collu & Rinaldo", involved a four-year-old child who
had been travelling month-about between Sydney (where his father lived) and
Dubai (where his mother lived) for 14 months, while the case awaited court
hearing. Why is our family law system so poorly resourced that a case like
this must wait so long to be heard? And what encouraged the parents and
their legal advisers to think the care arrangements for this child were
acceptable, until the appeal was expedited after "medical evidence was
presented about trauma the child suffered during a flight from Sydney to the
UAE"?

Such arrangements may suit parents, but this case - and the research - show
the psychological damage that can result from constant disruption and lack
of stability for such young children.

Earlier this year, I wrote about key findings of reports by the Australian
Institute of Family Studies and the Chisholm Inquiry. These reports, both
commissioned by the federal Attorney-General's Department, showed that
shared parenting time is not working well for a significant minority of
Australian children. They showed that fathers have been encouraged to seek
shared care and more mothers now feel pressured into it. They also showed
that shared care is now used by a substantial minority of parents with
significant problems (such as high parental conflict, substance abuse and/or
mental health issues). It is being agreed to by parents and, even more
often, ordered by courts in cases where it seems not to be in children's
best interests, partly due to community and professional misunderstandings
about what the law says.

We now also have three more recent reports commissioned by the federal
Attorney-General's Department and released in July, which, in different
ways, establish the same points.

Most significantly, a report by clinical child psychologist Dr Jennifer
McIntosh and colleagues underlines the significant negative impact of shared
care arrangements on children under the age of four "regardless of
socio-economic background, parenting or inter-parental cooperation".

A report by social work professors Dale Bagshaw and Thea Brown and their
colleagues on parents' and children's perspectives on family violence and
family law in Australia underlines yet again that the family law system does
a poor job of supporting and assisting victims of family violence.

There were major criticisms of the way violence was dealt with in mediation.
In court, those reporting violence felt their reports were "disbelieved,
minimised, or sometimes accepted but put to one side in the ultimate
decision".

Finally, a report from the Social Policy Research Centre at the University
of New South Wales is broadly consistent with previous research finding that
shared care is experienced differently by mothers and fathers and is most
problematic when mothers have serious concerns about their children's safety
or there is high parental conflict. The report concludes that factors such
as the level of parental co-operation and conflict are more important than
the structure of parenting arrangements. In other words, shared care of
itself is not necessarily better for children than other care arrangements.
Given this, there seems to be no justification for our current legislative
approach, which encourages parents in this direction.

Of course, shared care can work well for some families - typically a small
select group who decide this for themselves and without reference to what
the law says.

In the lead-up to the election, the Gillard Labor government indicated that
it was considering the recent reports before responding but was committed to
"further improving" the family law system. The Liberal Party said nothing
about shared parenting or family violence reform. The position of the
independents isn't clear. Most clearly in favour of reform have been the
Greens, who called in January this year for change "as a matter of priority
in light of the findings of the Chisholm report - highlighting that the
Greens opposed the Howard government's amendments at the time because of
these very concerns".

However our government is structured in the coming weeks, it should act on
consistent evidence showing us that a significant number of children are
being damaged by our shared parenting laws. What we need are laws that
require us to determine children's best interests on a case-by-case basis
without pre-conceived ideas, and laws that require us to take family
violence seriously at every step along the way.

Professor Belinda Fehlberg is professor of law at Melbourne Law School,
University of Melbourne specialising in family law.

Source: theage.com.au
Value-Shared parenting.