- Law ignores the reality of split families
- By Renata Alexander
- The Age
- Contributed by: admin ( 47 articles in 2005 )
Response by Philip Ruddock:
The Courts will protect children
The family law changes are not in the best interests of children.
ATTORNEY-GENERAL Philip Ruddock claims the Family Law Amendment (Shared Parental Responsibility) Bill 2005 introduced into Parliament last week unequivocally promotes the best interests of children. As a family lawyer, I beg to differ.
Some of the proposals in the bill appear laudable for reducing the trauma and cost of the adversarial process in our family law system but on scrutiny, grave problems emerge.
First, the bill provides the legislative and philosophical framework for the establishment of 65 new family relationship centres across Australia to help parents agree on parenting arrangements after separation and to develop workable parenting plans. These centres will be funded through the allocation of almost $400 million in the next federal budget over the next four years for new family law services.
It will be compulsory for parents to attend dispute resolution at one of these centres (or a similar service) before issuing legal proceedings unless there is child abuse or family violence. Only a court can grant an exemption if satisfied on "reasonable grounds" that violence or abuse has occurred or may occur.
This is clearly problematic for victims of family violence (mostly women) and for custodial parents (mostly mothers) of children at risk of abuse. No guidelines or criteria are prescribed and it appears that there must be actual violence or abuse before an exemption would be granted. Further, a court would have the power to make a costs order against a party or parent who has falsely alleged violence or child abuse to avoid compulsory dispute resolution. This threat of costs and delay creates another barrier to disclosure, ignores the prevalence of family violence and sanitises the criminality of child abuse.
According to the Australian Bureau of Statistics, more than one in four women have experienced or are experiencing family violence at the hands of their male intimate partners. In a majority of these cases, children are also subjected or exposed to psychological and/or physical harm. With such prevalence, the new centres must be sensitive to family violence issues and the relevant courts must be protective rather than punitive of children and adults in violent and abusive situations.
The second major problem with the bill is the introduction of a rebuttable statutory presumption of shared equal parental responsibility and parenting time with children after separation. The risks and disadvantages of such a presumption are numerous.
Forcing joint parenting and shared custody upon parents who are in conflict and unco-operative can be harmful to children. Consensual shared custody can certainly work well where parents genuinely choose to co-operate and follow such an arrangement after family breakdown. Those cases by definition do not come to the attention of lawyers or the courts. However, in those cases where there is no agreement it may be more detrimental than beneficial to impose a pattern of parenting and a shared custody regime that did not exist before separation and to which both parties do not commit or agree.
Again, according to the ABS, only 3 per cent of children whose parents have separated live in a shared care arrangement (that is, where each parent cares for the child for at least 30 per cent of the time). The vast majority (97 per cent) live in a sole care arrangement where the resident parent cares for them more than 70 per cent of the time. Most children of separated parents live with their mothers (88 per cent) and these arrangements are primarily entered into by agreement without the intervention of lawyers and court processes.
It is not always in the best interests of a child to spend equal time with each parent for a variety of reasons, not only because of family violence or child abuse.
Research and overseas experience highlight several major risks of imposed joint custody or shared residence. What is called "joint custody" in theory converts into sole maternal custody in practice. Children generally remain with or drift back to their mothers. Where joint custody is formally awarded, mothers receive lesser amounts of child support and smaller shares in property division - leaving them to assume primary care for the children with fewer resources. And fathers formally apply to spend more time with their children (and thus raise their children's expectations) but only as a tactic to ensure paying lower child support and secure a larger share of any property.
These risks and consequences were identified when California introduced a statutory presumption of joint legal and physical custody in 1980. This was repealed in 1989 and joint custody became one of several equally weighted options open to a court determining child custody cases. Evaluations showed that notwithstanding formal joint legal custody, the overwhelming burden of physical care and financial responsibility for the children continued to fall on the mother; women were further disadvantaged and impoverished; joint custody was not working where parents were not communicating and co-operating and children were further destabilised and hurt.
This is a valuable lesson. In addition, we know that many parents (mostly fathers) simply volitionally abandon their children. According to the ABS, 36 per cent of children living with one parent (usually the mother) saw their absent parent (usually the father) once a year or less, or never. This is not because of obstructive custodial mothers but because fathers choose not to seek contact or choose not to exercise contact granted by agreement or by court order.
In its 30 years of operation, the Family Court of Australia has made the best interests of children paramount. This legislation cheapens and devalues this legacy.
Dr Renata Alexander is a family law barrister and a senior lecturer in the law faculty at Monash University.