University of Sydney professor, Patrick(4) Parkinson, also questioned the presumption of shared parenting, saying it “only works if both parents live closely together and there is co-operation”. The notion of shared care doesn’t always work; it is a flawed premise, idealistic and impractical. The Family Law Act provides a framework for parents to have “meaningful involvement in their children’s lives(5)” “It’s the quality of the relationship that’s important, not the quantity. And one of the unfortunate effects… of the 2006 legislation has been that it’s focused people very much on time.
The courts want equal time and it’s taken the focus away from what’s best for the child”. The current legislation has been regarded to favour the parent’s best wishes over the Childs. The law still has a long way to go to provide an equitable Family Law system. To understand what the amendment adjusted, we must first understand the history of shared parenting in Australian legislation. The(6) Family Law (shared parental responsibilities) Amendment Act (2006) (commonwealth) amended the Family Law Act (1975) ,commonwealth) [FLA] to provide further access and equity for parents and children, in the making of parenting orders.
The amendment is not the first legislative attempt to address perceived inadequacies of the Family Law Act. The 1975 Act had issues regarding: fathers with shared parenting, re-location of children ,and children being regarded more as property than a responsibility. For the past 35 years, the Family Court of Australia has treated most separated fathers, as if an access visit every second weekend and half the school holidays was enough. Sue Price said “Shared parenting laws are under(7) threat from feminists, with no intention of giving fathers a fair go.
In 1996 the Family law act was amended in what was a paradigm shift, by providing for independent representation of children in disputes, so is to protect their rights. This introduced, child advocates. Further amendments to the FLA sought to neutralise terminology, by changing the language in parenting orders such as; custody were replaced with new terms such as residential and non-residential, access and contact. In 2006, the Australian Government introduced a series of changes to the family law system.
The “Family law act 1975 was amended to the “Family Law Amendment, (Shared Parental Responsibilities) Act ,2006, commonwealth> (SPR, Act, 2006). This amendment introduced, “rebuttable presumption of shared parents responsibilities” and acknowledged parents ,“right to have a meaningful relationship with their children”. The new amendment did not encourage equal time between parents and children, rather equal responsibilities. Due to the new change of equal responsibilities shared between parents, this allowed for relocation much harder.
The new amendment coincides with 65 family centres to help families through relationships ,or establish arrangements without litigation. The amendments have been put in place to try to improve the issues, of relocation and perceived bias in the court system. This amendment was an improvement but more needs to be done. The 2006 amendment (section (9) 61DA) makes clear that: both parents are responsible for the care and welfare of their children until the child reaches 18 ,and arrangements which involve shared responsibilities ,and requires coopeation between the parents.
The reform aimed to manage parental separation, “away from litigation and towards co-operative parenting”. The 2006 amendment was formed to; encourage greater” involvement by both parents in their children’s lives, though, unfortunately, it hasn’t been sufficient. One advantage (10) to this new amendment is that shared responsibilities are now more prominent. Prior to the amendment, responsibilities could have been set to one parent. The new amendment hopefully will depart from the “old perceived ‘80/20 formula’ (1975) of post separation, shared parenting” The 80/20 formula which was raised by Paul Boers in 2000 was a generalisation within shared parenting that mothers would have 80% access and contact, and fathers would only have 20%. Prior to the 2006 amendment, which brought in rebuttable responsibilities, parents could have had to meet all of the Childs responsibilities. That is, one single parent would have all the responsibilities of their child. The ability of one parent to relocate children far away from the other parent is harder than prior to the amendment.
This is due to studies which outline that children, who are separated from one parent are both distressed and, can cause mental and emotional damage. Prior to the 2006 amendment; “One in four kids from … separated families sees one parent less than once a year, or never. It can be argued that the 2006 amendment offers some improvement, but it cannot be said that the job is done. Bias (10) towards mothers, perceived or real, remains a real issue that the amendment has not addressed. Dads in distress are a group of fathers fighting for equal rights in the family law system.
This group, is typically fathers- who perceive they have been on the receiving end of a mother-bias decision. “Dads in Distress expressed both appreciation of the Act, as a small step in the right direction, and, concern whether the changes would be taken seriously by Family Law Practitioners” . It can be argued that among family law practitioners, the perception remains, that mothers are better parents. “For too long mothers have had automatic right to sole custody while loving, good fathers have had to fight tooth and nail, to get more than every second weekend with their own kids”.
Perhaps further refinement is required in order to readdress, the perception, that mothers make better parents and ,determine the residential parent on the basis of competency, rather than by their sex ,whilst still retaining the paramount principle of the best interests of the child. Shared (11) parenting and equal responsibilities doesn’t mean, and should not be interpreted as, equal parenting-“. And, in fact, many men’s advocates have been disappointed that the reality of shared care hasn’t always matched the ideal”.
In some cases the amendment has only caused fathers to have equal responsibilities, not equal or quality time with their children .Fathers are presumed to be a less capable parent unless they prove otherwise, whereas mothers are presumed to be a better parent firstly. “As a result of misinformation, legal officers have resolved cases where the best interest of the children may not have been regarded. The Equal Opportunity Commission, which is the Government’s-own, anti-discrimination agency, have stated that they are fully aware, that men are being discriminated against in the Family Law Court, based on gender alone.
Academics, including Psychologists, have attempted to intervene to help protect children, but are brushed aside by the Family Law Court . “Science is being ignored in favour of personal views held by Officers of the Court,” These statements are showing that officers of the court are being persuaded by pre-dispositions that mothers are more capable parents and, are ignoring the science, that fathers are necessary in a child’s upbringing. Many thousands of Australian children’s-futures have been placed at risk, as they are deprived from a healthy influence of a good father .
The new amendment sought to address the pre-disposition in the courts, that mothers are better parents than fathers. Unsuccessfully to date, the bias remains. And “ the best interests of the child” are not paramount. The amendment needs further refinement; inter alia, to recognise the importance of a healthy relationship with fathers and children. Equal time, (12) is not supported by studies of what is truly, in the best interests of the child. There isn’t “a linear relationship between how much time children were spending with their fathers, and the quality of that relationship according to the children,” Dr McIntosh said .
The amendment arguably focuses on equal time, not the quality of the time and relationship. The court, following the amendment, adopted a presumption that the child should spend equal time with the parents, unless it could be demonstrated to ,not ,to be in the best interest of the child. That is, the idealistic shared care. is that children are to spend equal time with parents, supporting healthy relationships with both mother and father. Though studies have shown that this is not the case. Each case must be analyzed on a case by case basis. The quality of time spent between parents. hould be analyzed before the quantity of time. In some instances, decision about time “seems not to be in the children’s best interests, partly due to community and professional misunderstandings. The legislation is ambiguous, which can allow for misinterpretation of the law. Attorney-General Robert McClee-land admitted: “the wording of the legislation could be improved, but an education campaign” would be more practical. The courts presumption is that 50:50 access, and care of a child is, in the best interests of the child. But in fact, in circumstances children are better off with 80% time with one parent.
In some cases it is unreasonable for a child to spend 50% time with each parent, as parents often work different hours, as stated by Fell-berg . Some of the courts are skewing towards equal time, where in some instances equal access of children, isn’t, in the best interests of that child. The amendment in adopting a simplistic 50:50 shared care principle, which is not providing children, with the best outcome for their upbringing in different stages of their lives. The shared (13) care presumption is idealistic and often impractical. Take, for example a case where one parent lived in Ipswich and the other in Tweed Heads.
Shared care would require the child to “rotate” between the residences of the parents; this doesn’t supply the child with a stable home, when there is one week alternate with each parent. Children who are continually changing living arrangements have “higher rates of hyperactivity, than children who have a stable home base with one of their parent,”. A solution to this would be that the children have a stable home and the parents rotate where they live, keeping the children in the one residency. Professor Nichol-son said, :What the amendment is “really saying is not much about the desires, the needs, and the interests of the child.
It’s talking about the desires, needs, and the interests of the parents,”(Fullerton, 2009). Parents ought to have more flexible arrangements with shared care. Factors regarding what are more practical for parents ,or easier for parents, should not be considered, only what is in the best interests of the child ought to be. Allowing for flexibility, provides the child to spend time where they would prefer, rather than living where the courts want them too. Thus, providing less stress on the child. Dr McIntosh says children in shared care are more troubled, distressed and anxious, than children who have more flexible arrangements” .
There ought to be a higher priority on the child’s best interests, and analysing whether 50:50 time, with parents Is in fact, the best for the chid. Each child is different (14), and will require different needs, and have different relationships with each parent . The amendment does not adequately take into consideration, the quality of time and relationship between fathers and their children. According to many perceptions, shared parenting is ideal, when parents have 50% access and contact. It has been shown that shared care on a time basis, is not necessarily the best for the child, rather quality is.
The legislation itself does not necessarily need drastic change. Rather, there needs to be refinement of the purpose, and intent to eliminate, to the degree possible, the am-big-u-ity arising out of the amendment. That is, principally, the predispositions of mothers being better parents and that 50:50 time between parents, is not necessarily the ideal shared parenting outcome. Each case needs to be defined on a case by case basis, always acknowledging, what’s in the best interests of the child, regardless of the impracticality for parents.