Caroline Overington | June 03, 2009
That is the view of Patrick Parkinson, who was chairman of the Family Law Council when the legislation was being developed, and the council's current chairman, John Wade.
Professor Wade said the Family Law Amendment (Shared Parental Responsibility) Act of 2006, designed to give children access to both their parents after divorce, was incoherent, "filled with gobbledegook" and failed to give judges "the clear signals they need to make good decisions".
"So there have been some horrible decisions," Professor Wade added. He said it set up false expectations for fathers, who believed it would guarantee them a 50-50 time split with their children, and it condemned other children, including infants, to a damaging cross-country "shuttle life" between warring parents.
Professor Parkinson said the amendment did not give clear signals, nor give judges enough guidance on when shared parenting was appropriate and when it was not.
"There have been some cases where children under the age of two are doing week-about (one week with the father, one with the mother) and often travelling long distances," Professor Parkinson said. "Young children often do well with frequent contact with both parents, but it is important to avoid long separations from the primary caregiver.
"If you've got mum and dad living around the corner it might be fine because frequent short visits are possible."
He said the law needed "tweaking". "It's sometimes that the parliament needs to send clear signals," he said. "This is not a coherent piece of legislation."
The Australian has recently reported on Family Court decisions that have troubled some family law experts. In one case, known as Irish and Michelle, the Family Court ordered that two Tasmanian children be removed from the care of their mother, with whom they had lived all their lives, to live with their father, who had moved to Melbourne to be with his new girlfriend. There was no abuse or neglect.
The judge thought the mother had not encouraged the children to maintain a relationship with their father after he left home.
In another case, known as Rosa and Rosa, heard in Townsville last month, a mother was told she could not leave a remote mining town in northwest Queensland with her five-year-old daughter because her ex-husband wanted to stay there and work. The couple had lived there less than a year before they broke up and the mother, who said she would not leave without her daughter, is now confined to poverty, and life in a caravan.
Professor Parkinson said judges in different states were interpreting the law differently. In Victoria and Western Australia, for example, parents were more likely to be allowed to relocate with a child after a divorce than in NSW.
The Family Law Council - a statutory body established in 1976 to give the attorney-general advice on whether family law is working, and which comprises judges, lawyers and family law academics - recently compiled a paper on shared parenting that found a "new breed" of family disputes had cropped up in the Family Court since the shared parenting amendment was enacted, "namely attempts to stop the primary residential parent from moving within or across a city".
Some members of the council are also concerned about the "undisputed damage to young children engaged in shuttle lives".
ABC Online
The World Today - Family law experts say 50-50 rule doesn't work
[This is the print version of story http://www.abc.net.au/worldtoday/content/2008/s2587963.htm]
The World Today - Wednesday, 3 June , 2009 12:38:00
Reporter: Jennifer Macey
PETER CAVE: Family law experts are calling for the shared parenting law to be scrapped or radically overhauled, saying that the 50-50 parenting rule doesn't always work.
The law was introduced by the Howard government in 2006 and put greater emphasis on children spending equal time with both parents.
But the head of the Family Law Council says this often gives fathers a false expectation that they will be granted equal time, when this isn't true for the majority of cases.
Jennifer Macey reports.
JENNIFER MACEY: The Howard Government introduced changes to the Family Law Act three years ago, claiming that equal time with both parents would be in the best interests of the child.
But the chair of the Family Law Council, Professor John Wade from Bond University, says the changes were hastily written gobbledegook.
JOHN WADE: The amendments appear to have been bought in very hurriedly and pasted together at the last moment, with a lot of compromises of wording with the result that you need a PhD in statutory interpretation to understand what the amendments mean when they talk about shared parenting and presumptions.
It's extremely difficult to understand and I think it's placed a very unfair burden on judges, to in the few cases that get to court, to try to interpret what this means.
JENNIFER MACEY: Professor Wade says the laws create two problems, firstly, the children aren't always best served by being split between two homes and secondly, that many parents are wrongly given the impression they are entitled to a 50-50 shared arrangement.
JOHN WADE: And they begin negotiations with arguments that, "Oh but I'm entitled to 50-50" as a starting point in the bidding, and that's led to some very unfortunate settlements where people have agreed to young children being substantial equal time between parents and shuttling them across cities or across the country.
And that's not the judges' fault, that's because people use the words as levers in negotiations.
JENNIFER MACEY: Since the law was introduced there's been much debate about whether equal shared parenting is in fact the best thing for children.
Clive Price is the director of Unifam, the family and relationships counselling arm of the Uniting Church.
CLIVE PRICE: From my experience in talking with children, living in two households is always going to be more complicated than living in one. Kids complain about never knowing where their homework is, about only being able to play sport every second weekend, and lots of practical things.
But much more importantly it's the conflict that kids are witnesses to and are caught up in, the tug of war between two parents that has the biggest impact and effect on children.
JENNIFER MACEY: He believes separated or divorced couples should be given more support in how to actually manage the shared parenting arrangements.
CLIVE PRICE: 'Cause a lot of money and a lot of resources goes into sorting out what the arrangements are going to be, but I think we need to have more resources into equipping parents after separation to know how to manage these new and often complex arrangements.
JENNIFER MACEY: While the rhetoric of the equal custody laws was that the presumption of courts would be to share parenting, in reality, judges seem to be reluctant to grant a straight 50-50 split in most cases.
Figures released by the court from more than 1,400 cases finalised in 2007 and 2008 show that only 15 per cent of cases actually resulted in equal time.
But Professor John Wade says the reality is that divided custody is hard to maintain.
JOHN WADE: The stats can be very misleading 'cause they're not giving you the picture of the other 95 per cent of, or 96 per cent of cases that settle, and they're not telling you what happens a year later.
And the initial research says a year later these arrangements just aren't working.
JENNIFER MACEY: The Government has commissioned the Australian Institute of Family Studies to review the Shared Parental Responsibility Act and report back in December this year.
But Professor Wade says that's too late.
JOHN WADE: I think you should act sooner rather than later, you shouldn't fiddle while Rome burns.
JENNIFER MACEY: But Patrick Parkinson, the former chair of the Family Law Council and Professor of Law at the University of Sydney, says there's no need to scrap the current law.
But he says it may need some tweaking.
PATRICK PARKINSON: Courts need further guidance and lawyers need further guidance on when shared care is and is not appropriate.
You've got to be very careful with shared care arrangements under about five-years-old because of the attachments that very young children have to their primary carer. You don't want to have long gaps between the time they see mum.
It's better to have frequent short visits from dad rather than to have long separations from mum.
So there's some clarification needed, I think it's important to give further clarification around the issue of relocation.
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.
PETER CAVE: Professor Patrick Parkinson from the University of Sydney ending that report from Jennifer Macey.© 2009 Australian Broadcasting Corporation
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