Note: Cross posted from [wp angelfury] A Human Rights Issue-Custodial Justice.
To politicise it further:
- When John Howard was Prime Minister, a presumption was added to Australia’s Family Law Act as to equal shared parental responsibility- which in turn led to a consideration of shared care. The friendly parent concept was also adopted. There was a perception that John Howard was sympathetic to some conservative men.
- Since the election of Kevin Rudd as Prime Minister, there has been an increase in funding (and public statements from Rudd down) for domestic violence initiatives.
- Rudd’s government has announced several reviews of family law and domestic violence, in part prompted by 3 year old Darcey Freeman being thrown to her death by her father within a day or two of orders being made in the Family Court.
- One of those reviews is being undertaken by Richard Chisholm, an academic and former Family Court judge who wrote a seminal judgment about power and control and how DV can impact on kids even when it does not occur in their presence. Chisholm was the co-author with McIntosh of research here about why generally shared care does not work. The men rights movement here is furious about his appointment.
Shared parenting 'hurting children'
By Ticky Fullerton for Lateline
New research claims children in high-conflict families are suffering under shared care arrangements (Reuters: John Kolesidis, file photo)
The Federal Government is under growing pressure to change its shared parenting legislation, with a former judge criticising the laws for not working in the interests of the child.
Three years ago the Howard government re-wrote Australia's family laws. The reforms championed shared care for children in separated families, based on the idea that most were better off spending as much time with each parent as possible.
But new research commissioned by the federal Attorney-General's office has found that children in high-conflict families do not like shared care.
The children also had higher rates of hyperactivity than children who had a stable home base with one of their parents.
Researcher, Doctor Jennifer McIntosh from Family Transitions, looked at children's development in 130 high-conflict families, some of whom went to court.
Dr McIntosh says children in shared care are more troubled, distressed and anxious than children who have more flexible arrangements.
"The children in rigid arrangements - that tended to be court ordered - weren't doing very well four years ago. However, what we've been able to demonstrate is that the care arrangement hasn't helped," Dr McIntosh said.
"In fact these children have become more distressed over time."
The most controversial finding of the research questions a cornerstone of the shared parenting laws - more time for fathers with their kids.
"We found that there isn't, in this group, 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.
"In fact, the thing that predicted good relationship with father four years down the track wasn't time, it was a good relationship four years ago."
The study did not look at the thousands of straightforward separations, where mediation ensures flexible shared care that may work for children.
Professor Alastair Nicholson, who spent 16 years as chief justice of the family court, is one of the critics of the current laws.
"The problem with it is it treats children as objects, rather than as people. What it's really saying is not much about the desires, the needs, the interests of the child," Professor Nicholson said.
"What it's talking about are the desires and the needs and the interests of the parents."
Last year 15 per cent of litigated cases and almost 20 per cent of settled cases awarded 50/50 equal time. Many more agreed to shared care at some level.
"I think it raised the expectation of fathers considerably and I think it also created an expectation amongst mothers that they should agree to equal sharing," Professor Nicholson said.
Tim Carmody QC spent two years as a Family Court judge under the new laws and found his discretion cut back by the presumption of shared care.
"What the 2006 reforms did was make a grey area, which was hard enough, into black and white. It was trying to make motherhood sentiments into legally enforceable rules and codify the behaviour of parents," he said.
"The best interests of the children became something different under the legislation because it started from the assumed fact, in most cases, that the more time children spend with both parents the better. That should have been a conclusion, not a beginning."
Mr Carmody resigned as a judge in 2008 and is now back at the bar.
"I can't deny that I found it difficult as a judge to apply the law, which is a judge's job, when to me it had so many deficits and the government or the Parliament wasn't really looking at its deficiencies," he said.
The current Chief Justice of the Family Court, The Honourable Diana Bryant, says everyone involved is criticised but it is a difficult job done under pressure.
"When something occasionally terrible happens to a child I can assure you that everybody feels it very much," she said.
"Children have very different needs at different ages and stages and I think that's pretty important. Fortunately, I think the people who are doing mediation and the family relationship centres have a reasonable understanding of that sort of research.
"I think that it's quality of the relationship that's important, not the quantity. And one of the unfortunate effects, I think, of the 2006 legislation has been that it's focused people very much on time. You know, they want equal time and it's taken the focus away, I think, from what's best for the child."
Dads the big winners
The 2006 shared parenting laws require judges to apply a presumption of shared parental responsibility, except where violence or abuse is an issue.
What is more, the court is obliged to consider parents also share equal time with their children if at all possible.
Intense lobbying from fathers' groups helped deliver the parenting laws.
But pressure for change has been building from women's groups and in the print media with tales of what appear to be harsh rulings against mothers. Some of the worst involve relocation of children.
In one case a mother was left little choice but to stay in a remote mining town in a caravan, or lose care of her daughter, despite her family support base being Sydney.
Media reports like that one have angered some academics and fathers' groups.
Shared Parenting Council president Michael Green QC says often people are not made aware of the full story.
"My concern with the stories is that most often it gives us only a disappointed or a very concerned mother's view, not the father's view, and more seriously, not the objective judgment of the magistrate or the judge who heard all the evidence and then made a decision, the decision which is now being criticised," he said.
"One of the most scurrilous things levelled against our judicial figures is that they are deliberately placing children in situations of violence or situations that are dangerous."
But former chief justice Professor Alastair Nicholson disagrees. He not only believes the media reports reflect a disturbing trend, but that the laws now put children at risk.
"I think there's a risk that violence may be overlooked in the quest for shared-parenting responsibility. I think that's one of the problems about the legislation, yes," he said.
"The case is really decided on the papers and I think there's a tendency there, not to ignore violence, but to be a little sceptical about it, particularly if there's no history or background that suggests the substance to it, such as Magistrates Court orders and so on."
Fathers' groups and womens' groups both claim the high ground on research to back their cause, but if Dr McIntosh's research is replicated in bigger numbers, it will be potent ammunition for those seeking change.
Expect resistance, though, from people like Michael Green, who worked so hard for the shared parenting laws.
"We'd lose, again, a whole generation of separated children, in terms of their really healthy relationships with not only their fathers but their mothers too," he said.
"And I know that separated groups, fathers' groups in particular, shared parenting groups, can conjure up over a million votes. And that's something that I think the Government will take into account."
Mr Green says the previous laws were harmful to the relationship between the children and their father because it was based on too little time.
"It follows as night follows day that time is required for a good relationship. You can't do it in a weekend every fortnight," he said.
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