Equal parenting for divorced couples may be scrapped

Matthew Fynes-Clinton
November 30, 2008 11:00pm

THE controversial and "distressing" equal-time parenting laws for divorced couples could be overhauled, the federal Attorney-General says.

Robert McClelland said some shared-parenting orders that followed relationship breakdowns were "clearly not appropriate and (were) causing extreme distress for children and their parents".

Last month, The Courier-Mail highlighted the problems in a series of reports on the family law system.

"I'm very aware of media reports and research about the 2006 reforms," Mr McClelland said. "In particular, I have read reports about the impact on children of some parenting orders favouring significant sharing of parenting time.

"I assure you that I appreciate the seriousness of all I am hearing ... and that we will be mindful of these views when it comes to formulating new policies and making possible amendments to legislation."

Mr McClelland made the remarks during a recent Women's Legal Service family law forum in Brisbane.

He confirmed that the Australian Institute of Family Studies, a government statutory authority, had begun a "comprehensive empirical assessment" of how families were faring under the shared parenting regime.

The Family Law Amendment (Shared Parental Responsibility) Act was introduced by the Howard government in 2006 to rectify perceived unfairness in custody orders and assuage concerns about the impact of absent fathers.

The changes direct trial judges and magistrates in the federal family law courts to "presume" that "equal shared parental responsibility" is in the best interests of children.

This means separating parents are legally bound to jointly attempt to make major decisions on their children's welfare, such as those about health and education. Fifty-50 parenting time is not automatic.

But when shared responsibility is imposed (child abuse or family violence cancels the presumption), the courts are required to consider a further order that a child spend equal time with each of the parents.

In the Courier-Mail reports, Brisbane former Family Court Judge Tim Carmody, family lawyers, academics and child psychologists said the laws were emotionally damaging children, many of whom lived week-about between the homes of highly conflicted parents.,23739,24626307-5016679,00.html

Shared parenting for divorce couples 'harmful to children'

Matthew Fynes-Clinton
November 09, 2008 11:00pm

LANDMARK laws that promote equal parenting time for separated couples are emotionally damaging children, according to lawyers and psychologists. Brisbane-based former Family Court judge Tim Carmody has branded the push towards shared parental responsibility and 50-50 parenting time "a failure".

He said the onus to apply equal shared parenting orders was part of the reason he resigned from the bench in July.

"It created a real crisis for me," Mr Carmody said. "I just couldn't keep doing it."

The orders appear to fly in the face of exceptions to the legislation, such as family violence or when equal time with parents is not "reasonably practicable".

Melbourne child psychologist Jennifer McIntosh said children in 50-50 care risked developing higher than average levels of sadness, anxiety, clinginess and other mental health problems.

She said equal-time parenting could be especially damaging for children under three.

"I recently had a case of a two-year-old in week-about care, whose parents couldn't even agree what daycare centre the child went to," Dr McIntosh said.

"They both work full-time. So the child goes not only between the two houses but two day-care centres.

"The fragmentation of this little boy was significant."

Mr Carmody, SC, who has returned to the private bar after serving the Family Court for five years, said only 5 per cent of couples continued to trial after filing to the courts over child custody.

They amounted to the most hostile of marriage or de facto breakdowns.

Yet, under the Family Law Amendment (Shared Parental Responsibility) Act, judicial orders for these couples must apply a presumption that "equal shared parental responsibility" is in the best interests of a child.

The changes - introduced by the Howard government in 2006 to assuage concerns about absent fathers - mean both parents are legally bound to jointly attempt to make "major long-term decisions" about their children's care, welfare and development.

Fifty-fifty parenting time is not automatic. But when equal shared parental responsibility is imposed, Mr Carmody says the court is required to "favourably" consider a further order that a child spend equal time with each of the parents.

The amendments were flawed because highly conflicted former partners never co-operated on decisions, Mr Carmody said.

He called for a "non-presumptive best interest-based solution".

"In most cases, (that) would be in a single principal place of residence (with children) spending more time with mothers than fathers," Mr Carmody said.

"For most people (in the past), that worked. Even though dads didn't like it and grumbled about it, it worked even for them."

Family litigation is mostly a Commonwealth matter, determined in either the Federal Magistrate's Court or the Family Court of Australia.