Feature Story 04-Jul-2011
Cradling a fragile, red-faced newborn is a life-changing moment for new parents starting out on the journey of parenthood. It’s a road that most parents imagine they will travel together, but the traditional nuclear family is breaking down at an alarming rate with more than one third of all Australian marriages now ending in divorce.
The casualties of divorce are often the children, as the family home is fractured and lives are disrupted. Children’s loyalties are torn between warring parents, so it’s vital for separated parents to set aside their differences and work cooperatively to come to an agreement about their children’s care arrangements.
Research shows that children are more likely to feel secure, confident and happy if both parents remain involved and interested in their lives, and while shared care is not mandatory, some families decide it is the best option.
Shared care depends on many factors, such as the age of the children, the distance between households, the level of flexibility in the schedule and the ability of parents to communicate with each other.
The Australian Institute of Family Studies reports that the number of children in shared care has increased since the 1990s, however, statistics show that most children still spend more time with their mothers and only a small proportion of children spend equal or shared time with both parents.
Standing in our children’s shoes
Relationships Australia CEO and psychologist Anne Hollonds says it’s important for separated parents to try to understand objectively what’s best for their children and to separate their own needs from that.
“First and foremost, children have a right to a meaningful relationship with both parents,” Anne says. “As long as it’s safe for children, then they have a right to know their parents and if possible be cared for by both parents.”
Anne says family law changes have shifted the focus from parental rights to children’s rights and parental responsibilities.
“When you start to think about children’s rights, you focus less on numbers of nights at each house or numbers of hours,” she says. “If you’re thinking of children’s rights, you start to think about stability, security, the ability to get on with their childhood free of being burdened by adult problems.”
Even through it can be challenging, when the needs of the children are prioritised, parents consider how they can both remain very involved in their children’s lives, while ensuring that care arrangements are not causing major disruption to the children every week or every few days.
Parents want their children to have positive, warm memories of a happy childhood, says Anne, and they need to focus on what they can do to contribute to those positive memories.
Anne says the vast majority of separated and divorced parents are “doing a fabulous job” and are “really working hard to continue to find ways of agreeing and cooperating with the other parent”.
Mediation services like Relationships Australia can help parents negotiate through the hard decisions about the care of the children, with an emphasis on cooperating and developing the skills for solving disagreements into the future.
“What we try and do is help parents to rebuild that bridge that is actually meant to support that child,” Anne says.
She warns that having a consent order registered through the Family Court or having a judge hand down a decision is no guarantee that arguments about care of the children will stop.
“The chances are that both or one of you will be unhappy with the outcome, and you’re going to find things to keep arguing about,” she says. “You’ve got to understand that what damages the children most is the ongoing arguments, whether it be about money or about the number of nights or about anything else.”
Challenges for dads
Most dads are much more involved with the hands-on care of their children than their own fathers were. They have learned how to change nappies, cook and clean and soothe restless children at night. This cultural shift means that fathers expect to be closely involved with their children after separation, and the traditional presumption of contact with dad every second weekend and part of the school holidays has been abandoned. Fathers might be very keen to have a 50:50 care agreement, but Anne says that an equal care arrangement won’t hold up if it’s not practical or if the dad has no experience with domestic tasks.
“Fathers have the best chance of optimal shared care arrangements when they’ve already shared care before separation,” she explains.
Some fathers end up spending limited time with their children and about one third of fathers never see their children, according to a 2004 Australian Bureau of Statistics report. When fathers lose access to their children, they can feel depressed, angry and out of control.
Lone Fathers Association Australia (LFAA) president and founder Barry Williams has worked tirelessly for men’s rights since the early 1970s, when he first became a single dad.
“It’s a real battlefield out there,” he says. “I’m highly trained in suicide prevention, and I’ve taken ropes from around people’s necks, stopped them burning themselves up in their houses, stopped them from crashing their cars and…it’s all because they can’t see their kids.”
Barry says shared care works well when parents live in close proximity to each other and the LFAA is opposed to any family law changes that may impact on fathers spending time with their children.
Shared care and the law
Ferguson Cannon Lawyers senior associate Michelle Beatty says there is a lot of misunderstanding about shared care in the community, following family law changes in 2006.
Under the 2006 family law amendments, the court looks at “equal parental responsibility”, which means that parents are required to make joint decisions about major long-term issues for the child, including education, religious and cultural upbringing, health and living arrangements. The 2006 amendments require the court to consider whether or not “equal time” with both parents is appropriate, but Michelle says that equal shared time doesn’t always apply.
If equal time is not suitable, then the courts must consider “substantial and significant time” with each parent, which generally includes spending time midweek as well as on weekends and holidays.
This allows both parents to participate in the children’s everyday lives and in significant events like sporting events, birthdays and other special occasions.
“They’re taking them to or from school or involved in doing their homework, those sorts of things,” Michelle says. “It gets them involved in the children’s daily routine rather than it being simply weekend time.”
While shared care is considered by the court, Michelle says that in the majority of cases 50:50 care is simply not practical, for example, if a newborn baby is being breastfed.
“Shared care is only going to be appropriate when the parents live relatively close to each other and they can communicate and actually achieve things, because it takes a fairly high level of communication to get a shared care regime working when children are going between households,” she says.
Michelle advises parents to seek legal advice if they’re not in agreement about what they think should occur, or if they need some help with documenting and implementing an agreement.
It’s often the little things that end up causing problems, says Michelle, and having a parenting agreement documented in detail clarifies any misunderstandings.
There are 34 metropolitan and regional community legal centres in Queensland that provide free family law advice by phone and face-to-face consultations.
Lawyers can inform parents of what the court may be likely to order, and if the parents agree on either a parenting plan or consent orders, they can make an application to the court for orders by consent and thus avoid costly and stressful legal battles.
“If the registrar thinks the arrangements are in the best interests of the children, fair and reasonable, then they would make those consent orders,” Michelle says.
When circumstances change
One of the biggest issues affecting existing shared care agreements is when parents’ circumstances change and Michelle sees many clients who run into difficulties as a result.
A parent may want to relocate to another area if they re-partner or want to change jobs, and they need help renegotiating parenting agreements. Even moving to another suburb in the same region can be difficult for families with shared care agreements.
What is best for the parent may not always be in the best interests of the children, and after the move, children may spend long hours travelling to and from school or extra-curricular activities.
“The court will look at it from what’s in the best interests of the children and why they have moved,” Michelle says. “They look purely on it as a case by case basis. Who do they primarily spend their time with, how could it work if they moved somewhere else, what would be the expenses associated with it, what are the options?”
Challenging situations arise where there is a poor level of communication, and this is when professional mediation is helpful.
Family law reforms
The Gillard government is proposing more family law reforms, and a Family Law Legislation Amendment (Family Violence and Other Measures) Bill 2011 is currently being debated by parliament.
At the heart of the 2011 bill is a strengthened domestic violence definition, designed to improve the way the Family Court protects children from exposure to family violence.
Michelle says the legislation broadens the definition of domestic violence to include a range of non-physical behaviours, and this will change how the Court deals with family violence and allegations of violence.
The bill may lengthen the time that parents spend in court, and Michelle says it could be open to manipulation and abuse, if it includes situations that wouldn’t ordinarily be considered violent.
Family counselling groups, including Relationships Australia, support the reforms as they see the protection of children’s rights and safety as a top priority.
Fathers’ groups, such as the LFAA, argue that the proposal is gender-biased and they are concerned that fathers may be prevented from seeing their children even if claims of family violence are false or exaggerated.
The family law reforms will require the courts to give more consideration to family violence and this could have widespread implications for separated parents who are in dispute about care arrangements.
A Parenting Plan is a written agreement that gives details of arrangements about time spent with the children after separation or divorce. It is not legally binding, but it can become the basis for a Parenting Order (also known as a Consent Order).
If separated parents reach agreement about the care arrangements of the children, they can submit a Parenting Plan to the Family Court, using the relevant application form. The plan then becomes a Parenting Order, which is a binding and enforceable document, if the Family Court considers the agreement to be fair and reasonable.
Determining what is in a child’s best interests
The Family Court considers:
The benefit to the child of having a meaningful relationship with both of the child’s parents
The need to protect the child from physical or psychological harm and from being subjected to, or exposed to, abuse, neglect or family violence
Family Relationship Services Australia Phone: 1800 050 321 or visit: www.familyrelationships.gov.au
Family Court of Australia Phone: 1300 352 000 or visit: www.familycourt.gov.au
Kids Helpline Phone: 1800 551 800 or visit: www.kidshelp.com.au
Lifeline Phone: 13 11 14 or visit: www.lccq.org.au
Men’s Line Australia Phone: 1300 789 978 or visit: www.menslineaus.org.au
Queensland Association of Independent Legal Services Inc (QAILS) Visit: www.qails.org.au
Raising Children Network Visit: www.raisingchildren.net.au
Relationships Australia Phone: 1300 364 277 or visit: www.relationships.com.au