The Shared Parenting Debate Continues
Its hard to dispute the logic behind the shared parenting laws that were introduced by the Howard Government in 2006. Key to the laws was the idea that children benefit from having substantial time with both parents, and that the interests of children should be at the centre of any decision about their care arrangements.
Four years on, has anything really changed?
This is the question being asked by parents and family lawyers in the wake of a recent case in the Family Court. Prior to their separation, Mr Whistler had been a stay-at-home dad, while Mrs Whistler worked. Initially the arrangement was that the two children alternate on a weekly basis between living with their mum and their dad. Dissatisfied with this, Mr Whistler appealed the decision. The outcome was that he ended up with even less time with his kids; every second weekend, after school on Wednesdays, and half of the school holidays.
Father rights groups are furious, seeing the decision as gender biased. How does it equate to shared parenting?
The misconception about what shared parenting actually means has continued since the laws were introduced. It has never meant there must be equal time spent with both parents. The key terms in the laws are substantial and significant time. The focus is on the type rather than the amount of time, meaning there should be a mix of days, holidays and special occasions, so that both parents are involved in the routine of their childrens lives. Magistrates must consider how to achieve this balance, depending on the circumstances of each case.
In relation to the Whistlers, both parents went into Court wanting ‘all or nothing’. Perhaps a dangerous position to take. Disappointment for one parent was inevitable. If nothing else, the case highlights the importance of parents considering how to compromise and come up with their own ideas for sharing the care, before going to Court. Even better, avoid Court altogether.
In David Fryatts experience, a Director of Stacks Law Firm in Taree, ”I am finding that most parents find an uneasy compromise eventually, without going to court. The week-about or 50/50 care idea only works rarely – when all the parties are extremely motivated and able to communicate – something that is almost unknown in relation to parents whose relationships or marriage has broken down”.
The legislation has recently been reviewed by retired Family Court Judge, Richard Chisholm, who believes some change is needed. One concern is the use of the misleading word equal, because it doesnt mean 50-50. Another problem is in relation to children at risk of violence. If one parent raises allegations of violence that are unproven, they may have to pay the court costs. The idea was to reduce the incidence of parents making false allegations in order to get the kids, but it has meant that some mothers are reluctant to mention violence for fear they might not be believed.
Where to from here?
One thing seems clear; ensuring that kids have healthy relationships with both parents will remain the overriding factor in future decisions about care arrangements.