The Dangers of Shared Care Legislation: Why Australia Needs (Yet More) Family Law Reform

Abstract

Agitation for parenting reform has become a prominent feature of family law policy debates in recent years. 1 Many countries, such as England and Canada, have proceeded cautiously in response to such demands. 2 Australia, on the other hand, opted for a bolder step and enacted a suite of shared parenting amendments in 2006, 3 including a presumption of 'equal shared parental responsibility'. 4 The Shared Parental Responsibility Act was designed to facilitate substantial, if not equal, involvement by both parents in children's lives following separation, provided this is safe. 5 While conversations about the implications of this move continue to take place, 6 the first _____________________________________________________________________________________ * Associate Professor, Melbourne Law School, University of Melbourne. I am indebted to Richard Chisholm, Grania Sheehan and Andrew Strum for the stimulating conversations which challenged and informed my thoughts on the issues canvassed here. I would also like to thank Belinda Fehlberg, Hilary Astor, Zoe Rathus and the two anonymous reviewers for their helpful comments on an earlier draft.

Equal Parenting when Families Break Apart: Alternating Residence and the Best Interests of the Child in Sweden

“…; Harris‐Short ). Family situations which involved domestic violence prior to separation and where there is a high level of rigidity with regards to the children's residence arrangements have also been demonstrated to lead to negative outcomes for the well‐being of children (McIntosh ; Rhoades ; Fabricius and Luecken ). Furthermore, Gilmore () found in a review of studies that child well‐being was associated with the quality, rather than the frequency, of the child/non‐resident parent contact, leading him to conclude that the child's residence itself has little impact on the child's well‐being, but that the most significant factor in this regard is the degree of hostility and conflict between the parents.…”

“…Another line of critical reasoning has been the argument that alternating residence may work if the parents are able to co‐operate, but can be damaging for the well‐being of the children if there is a high level of conflict between them, or if domestic violence is involved (Emery et al . ; Rhoades ; Fabricius and Luecken ). A third critical perspective on alternating residence is that children themselves are rarely heard in the process when alternating residence is ordered by the court (Smart ; Neale et al .…”

How Children’s Voices Were Heard ‘Above the Din’ in Family Court Proceedings in Cases Where There Were Allegations of Child Sexual Abuse: The Importance of Judicial Orientation and Professional Evidence in the Discernment of the Child’s Voice

“…These two principles have proved difficult to reconcile (Rhoades 2008) with recent concerns, about mothers and children being at risk of family violence (Chisholm 2009;NSW Law Reform Commission 2010).…”

Autonomy for Mothers? Relational Theory and Parenting Apart

“…I draw on that literature, as the clearest example of the tension between autonomy and safety versus shared parenting norms, but I also look beyond the context of domestic abuse in exploring the consequences of normative shared parenting for women's autonomy. We have begun to see the problematic consequences (including for some children) of a bifurcated approach whereby maximum contact or shared parental responsibility is presumed to be the best scenario for most post-separation families, subject to limited exceptions intended to protect the exceptional 'minority' of children who have been subjected to or exposed to abuse (see Fehlberg et al 2009;Rhoades 2008). It is therefore important to re-insert the question of women's autonomy into the picture, even in scenarios where abuse or violence is not at issue (Reece 2006).…”

“…Yet judges (and lawyers and mediators assisting disputing parents) increasingly feel that the normative starting point for decision-making is some form of shared parenting, even if the governing legislation does not state a presumption in favour of joint custody. Where the governing statute does indicate a preference for shared parental responsibility, subject to exceptions, as in Australia, the normative power is even greater (Rhoades 2008). Even in cases where problems with one parent's parenting behaviour have been identified, such as substance abuse interfering with good judgement in care of a child or abusive behaviour towards a child or caregiver, judges are reluctant to limit contact.…”