The Federal Government tables significant changes to the Family Law Act with a view to encouraging both parents after divorce to share parenting of their children. At the same time, the government announces that $400 million will be spent in setting up 65 family relationship centres across the country for the purpose of counselling couples with relationship problems and, if they decide to separate, to assist them to manage the aftermath in a sensible manner.
On the face of it, such sensible proposals might be expected to meet with universal acceptance. Indeed, the average citizen might even be moved to congratulate a government on such family-friendly initiatives.
Not so. There has been a chorus of dissent from significant interest groups and individuals. Former judge’s associate Waleed Aly (Sydney Morning Herald, (2/2/06), describes the shared parenting provisions as “little more than a mirage”. Family lawyerAndrea Brooks (Sydney Morning Herald, (11/2/06), calls the relationship centres “a triumph of style over substance”. The National Association of Community Legal Centres suggests that the new family law and processes “may be harmful to children” (“Seeing families right”, NACLC, December 2005).
Why all the big noise? After all, the government was not merely responding to noisy fathers’ groups, as some have claimed. A Federal Joint Select Committee, the Family Law Council, the Australian Law Reform Commission and others, over the past ten years, have pointed to serious deficiencies in the Family Law Act and its processes. Both mothers and fathers - individually and in consort with parenting groups - have responded vigorously to invitations for submissions to a number of inquiries.
In 2003, the government commissioned an inter-party committee to examine our family law system. The committee’s investigations were not done by members sitting on their seats in Canberra and chatting nicely to one another. For six months, the committee travelled the nation, conducted public hearings and received over 1,700 written submissions. The resulting report, “Every Picture tells a Story”, ran to 240 pages, and contained 29 recommendations. There was unanimous support for far-reaching reform of the system.
The government responded, a draft Bill was produced, and this was subjected to further public scrutiny by way of another inter-party committee. Out of this process the current Bill, the Family Law Amendment (Shared Parenting) Bill, is now before the parliament.
Given all of the above, one would expect that the reforms would attract overwhelming support. That this is not the case bears close examination.
The objections emanating from pockets of resistance can be loosely grouped as follows.
Equal or shared parenting is not in the best interests of children. The NACLC paper claims: “There is no evidence that time shared equally with both parents is actually more beneficial to children.” In a paper purporting to “ensure the full facts are widely known”, the authors have conveniently ignored at least three US studies (for example, Bauserman (pdf file 80KB), 2002), and an Australian study (Smyth et al (pdf file 3.74MB), 2003). This research shows that joint custody or shared parenting of children after divorce brings positive benefits to both children and their parents.
It is bold indeed for the NACL to rely so heavily on the Rhoades report (pdf file 663KB) (2000) to support many of its contentions, when it is well known that the limitations of that report were trenchantly criticised by several commentators (for example, Moloney 2001).
The NACLC suggests that what is important for children after separation is stability. This is best achieved by sole-mother custody, reflecting the parenting responsibilities in the intact family. This is the no change argument. Thus the NACLC paper suggests that children have enough to cope with “without asking them to cope with more unnecessary change by requiring them to spend more time with the other parent”.
This is head-in-the-sand stuff. Separation and divorce are all about change and it is impossible to shield children from it. What is important is to engineer the necessary changes in parenting that look after them emotionally, intellectually and financially. The stability that children hunger for is not geographical stability, but the stability of meaningful relationships with the people most dear to them, their mothers and fathers, grandparents, relatives and friends, schools and communities. Shared parenting can deliver this.
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