Caroline Overington | June 08, 2009
SHARED parenting laws introduced by the Howard government in 2006 do not guarantee divorced fathers the right to a 50-50 time split with their children because such an arrangement is not always in the best interests of the children.
Instead, the legislation requires the Family Court to "consider" whether equal time with both parents suits a particular child, and can decide that in some cases it does not.
The Australian last week reported that fathers are overwhelming staff at the new Family Relationship Centres, where all separating parents must now go before approaching the Family Court, demanding to know why they can't have a 50-50 time split with their children.
Staff at the centres say a "pub law" belief about a father's right to a 50-50 time split has taken hold in the community.
But retired Family Court judge Richard Chisholm says the shared parenting laws, introduced in 2006 and now under review, never guaranteed anybody a 50-50 time split. In a paper titled Shared Care and Children's Best Interests at the Legal Aid NSW family law conference, Professor Chisholm said there was "a lot of evidence to support the idea that children will generally benefit if they experience a loving and involved relationship with both parents" after separation.
"There is also evidence that children care a lot about their parents and generally want to remain closely involved with both of them."
Professor Chisholm said the Howard government amendment "envisaged the non-resident parent participating in various aspects of the child's life, for example being involved in the child's daily routine".
But the provisions about equal time did not reflect what most expert researchers believed was important for children.
"What seems to matter most to children, and what seems most important for their healthy development, has more to do with what happens when they are with each parents, and in particular whether they feel loved and cared for," Professor Chisholm said.
"The idea of equal time makes a lot of sense in terms of adult entitlement.
"As far as I can tell, it does not reflect what research scholars believe is important for children's development."
He urged academics to do more research into the benefits of shared parenting, particularly in cases where parents are in conflict, saying: "We need to know much more about the nature of conflict, the extent to which children are being exposed to it, and the extent to which parents and the courts might be treating the legislation as requiring some form of shared parenting, even when it is damaging to the children."
The Australian Institute of Family Studies is conducting a review of the Howard government amendments, which have been the subject of mounting complaints from separated mothers and fathers.
If the review recommends changes, Professor Chisholm said: "I hope the focus will be on how it impacts on families, rather than how it impacts on voters and lobby groups."