June 9th, 2009 by Robert Franklin, Esq.
In 2006, Australia's government led by John Howard passed amendments to existing family laws that established a presumption of equally shared parenting in divorce cases. Or at least they sort of did. Apparently the statutory language is complicated enough to confuse the most assiduous of legal scholars, so parents, lawyers and courts are struggling with what the law really requires.
Whatever the defects in the new statute, a movement is afoot to scrap the whole idea of equal parenting. Stated another way, for some people, three years of fathers' rights is too much. Not long ago, a deranged Melbourne man threw his daughter off a bridge, killing her. Anti-father activists immediately seized on the tragedy to claim that the shared parenting law places children in the nefarious clutches of brutal dads.
Now, as this article makes clear, some experts are calling for the whole idea of parenting shared 50-50 to be done away with, or radically changed (ABC, 6/3/09). Why? Because, in the words of one family law expert, "this often gives fathers a false expectation that they will be granted equal time, when this isn't true for the majority of cases."
Let's see, do I have this right? The law attempts to create a presumption of equally shared parenting, but that's bad because it's caused fathers to believe that they'll get equal parenting time. Because courts don't or can't enforce the statute, Australia should scrap the idea of shared parenting altogether. Huh?
Did it occur to that expert that when there's a presumption of shared parenting, it's not really inappropriate for dads to expect just that? Did it occur to him that, given all we know about the value of maintaining connection between fathers and children, the right idea is not to dispose of shared parenting laws, but to make them better?
And indeed, courts don't get anywhere close to ordering equally shared parenting, despite the intent of Parliament in passing the law. A study of 1,400 cases of court-ordered parenting arrangements post-divorce revealed that a 50-50 split was ordered only 15% of the time.
Now, it seems to be true that, despite the clear intention of the new law, there are plenty of instances in which equal time is either not possible or not advisable. As always, one parent may truly be unfit or a danger to the child. But that's always been the case, and courts have gone on ruling on custody issues anyway. And, in the case of parents who live far apart, just how to establish an equal arrangement that is workable may not be possible.
But the idea that, because Australia has made a very half-hearted stab at equal parenting for a very short time under a statutory scheme that courts don't understand, the effort should be abandoned, is the type of old-school, anti-dad notion that belongs in the dustbin of history. Was the old system such a flawless gem?
To be sure, equally shared parenting is a work in progress. Doubtless the Australia statute needs modification to guide judges. It also needs some time to work; it needs a track record to educate everyone about what works and what doesn't. As Patrick Parkinson, former head of the Family Law Council and current Professor of Law at the University of Sydney said,
"But it would be a grave mistake to think that the whole legislation is deeply flawed, it would also be a grave mistake to amend the law on the basis of anecdotes or horror stories. We need proper evaluation, proper research and careful thought."
The anti-dad crowd isn't about to sit still for a law that gives fathers some power in family courts. But we know that father-involvement in children's lives is almost always a good thing. Any attempt to turn back the clock to the bad old days is a slap at both kids and dads. It's bad for society generally and ultimately for mothers too.
Aussies, let your representatives know.