October 20, 2009
Parenting rules must be addressed, not dumped
WHEN about 40 per cent of Australian marriages end in divorce, it is not feasible to entertain any return to past practice on custody arrangements, under which women were perceived to have the first claim on their children.
Not feasible, and not fair. It has always been the case that fathers have equal rights - and responsibilities - in the care of their children. But if there was any doubt about this, the enormous social changes of the past 20 or 30 years mean that fathers cannot be sidelined in Family Court matters. With men required by both law and social expectations to play an active, key role in the financing and parenting of children, it would be absurd to deny them equal access when their marriages end.
But there are emerging problems with the shared parenting law introduced by the Howard government in 2006. The requirement that Family Court judges decide access arrangements based on the presumed value of shared parenting except in abusive or violent situations has created some unhappy outcomes. At the extreme, shared parenting has meant babies shuffled across town so that mothers can breastfeed and fathers can change nappies. As The Australian reported yesterday, there are claims that cynical fathers are demanding more access not because they want to share parenting but because this means they can reduce the support money paid to their former wives for the care of children.
None of this is a real surprise to the architects of shared parenting rules: the Howard government knew that the new system would have to be tested and possibly refined. It built in a mandatory review after three years of operation and that review - along with five other inquiries - is nearing completion. Changes seem likely in this area, which is so fraught and so potentially dangerous for children, given the passion among parents who consider they have been wronged by decisions. The stakes are high, and no government can hope to devise perfect outcomes. But government has a responsibility to the children caught in the middle of divorces. Our politicians must create a policy framework that offers the best possible living situations for children.
Any changes to shared parenting rules should restate the primacy of children's wellbeing, while addressing the prescriptive nature of the law. It may be that Family Court judges should be given some scope to judge individual cases within a strict framework that continues to be dominated by the right to shared parenting. It is vital that in both perception and practice, fathers are not shortchanged by the system. There can be no return to the past, but it may be time for judges to have more freedom to interpret shared parenting when it is clear a black-letter law approach could harm the child.
Divorce is deeply saddening to adults and children alike, but the vast majority of families find a way out of the dark times and create strong, flexible arrangements under which parents and children can rebuild and flourish. Only a small proportion of cases are fought over in court, and of these fewer still are intractable.
Laws that are clear and compassionate are needed to deal with the cases that cannot be resolved by the parties. These rules also create a climate of expectation about how all parents should behave in access issues. In this sense, they create parameters society considers fair for children as well as for parents. It is for this reason, too, that the government must ensure it gets the shared parenting rules right.