Shared Parenting – Family Law Express News preparing yourself for family court... Tue, 17 Jul 2018 22:40:52 +0000 en-US hourly 1 Family Court Should Be Last Resort: Attorney-General Tue, 12 Sep 2017 04:13:45 +0000

Attorney-General George Brandis

BITTER custody battles dragging on for years could be cut short by local magistrates under a government plan to spare families “emotional trauma’’ in the Family Court.

Federal Attorney-General George Brandis called on judges and magistrates yesterday to start ruling on custody and property disputes to take pressure off the overloaded family and federal circuit courts.

Senator Brandis described the system as overly combative in an exclusive interview with The Daily Telegraph to mark the biggest shake-up of family law since the introduction of no-fault divorce in 1975.

He said the Family Court should be a “last resort’’, with greater use of state courts, arbitration and mediation to settle custody and property disputes.

“The litigation model is not always the best model,’’ he said.

“Every story in the Family Court is a bad story — there are no good stories. We’ve got to design the system to ensure the disputes finish on fair terms as early as possible, rather than being dragged on with delays, expense and trauma.

“We want people to be able to get on with their lives.’’

Mr Brandis also called for “consistency’’ in the way judges apply the rules of evidence in family law cases to stop warring spouses lying in court.

“The special rules limiting the reception of evidence in the Family Court (from parties with) invented allegations need to be applied consistently,’’ he said.

“People in the family law system are … seeking to protect children, to preserve dignity when they feel they’ve been abused. If they’re negatively motivated, they may be seeking to avenge themselves.’’

Mr Brandis said abused children and domestic violence victims were forced to give evidence twice, to state and federal courts. He said state judges and magistrates hearing domestic violence or child abuse cases should rule on custody at the same time, instead of forcing warring parents into the federal courts.

“(I want to) encourage state courts to exercise jurisdiction under the Family Law Act — which they can do, but they don’t,’’ he said.

“There should be less overlap and less double-handling.”

The Turnbull government has given the Australian Law Reform Commission 18 months to find ways to modernise the family law system.

Mr Brandis said he wants “the smoothest, most cost-effective, least traumatic, most expeditious way’’ to resolve divorce and custody disputes.

The government is spending $12.7 million to trial a “lawyer-free’’ arbitration system in Sydney, with the first “parenting management hearings’’ to be held in Parramatta this year.

Teams of psychologists, social workers and family law experts will help parents resolve custody issues in the best interests of the children — without using lawyers.

Shared Parenting Laws Mis-Represented by ex-Judge Richard Chisholm Thu, 23 Oct 2014 02:11:27 +0000

Chisholm proposing to ditch Shared Parenting Law

Retired Family Court judge Richard Chisholm, now an ­Australian National University adjunct professor, has written a blueprint for overhauling Australia’s Family Law Act, and wants the laws to be changed, apparently to remove the prospect of Shared Parenting as a potential outcome in Family Law Court proceedings.

This is nothing new for Chisholm, who has a penchant for writing reports and reviews that have consistent themes, notably that Shared Parenting laws must be removed from Australia’s Family Law act.

In this new blueprint, Chisholm has lamented that the current laws have lead to confusion in the minds of many parents, who he claims, falsely believe that children are entitled to have a meaningful relationship (including parenting time) with both parents in the event of divorce.

It stands to reason that Chisholm therefore believes that Australia’s Shared Parenting laws don’t in fact promote Shared Parenting, so parents should not expect Shared Parenting outcomes, or alternatively they do expect Shared Parenting but should not.

According to Chisholm, because of this alleged mis-conception, he presumably wants any references to Shared Parenting (and synonyms), as well as terms like “Equal Shared Parental Responsibility”, “Significant and Substantial Parenting Time” and “Equal Parenting Time”, to be removed from the act, along with about another fifth of Part VII of the Family Law Act.

He wants this whole section replaced with a presumption that “it is in a child’s best interests for both parents to continue to have parental responsibility“.

Sounds familiar?

Well if not let me give you a hint, from my reading what he is suggesting is that he wants the Family Law act to go back to a time prior to the 2006 Shared Parenting amendments, where parental responsibility was a meaningless term that in practice amounted to sole parental responsibility, the beholder being the parent who had physical custody.

Chisholm hopes and expectations however are not supported  by the historical facts underlying the basis of his reports.

One claim by Chisholm and others regarding the proposed family law reforms post 2006 has been a mis-representation of the history of these amendments.

We now have a case where the public is being led to believe that Australia’s Shared Parenting laws were never intended to increase Shared Parenting, bizarre as this may seem given the term that these amendments are almost universally known as is Australia’s “Shared Parenting” laws.

Despite Chisholm’s misleading claim, the reality is that the core driving force behind the 2006 Family Law amendments was the principle of Shared Parenting (being defined in its simplest form as equal, or substantial and significant shared living arrangements.) This was underscored and emphasised by the Prime Minister of the time, John Howard in numerous instances.

This was ultimately the primary goal of these 2006 family law amendments, and no amount of revisionism or re-casting can change the historical foundation and motivation behind these laws.

If anyone has any doubts about the intent of the laws, I recommend you go back to the foundation bi-partisan report in 2003, supported by both the Coalition and the ALP, called “Every Picture Tells a Story.”

Although the final legislation did not adopt all the recommendations, the intent of the changes were very clearly articulated in this report, despite the compromise of the 2 -hurdles to Shared Parenting (incorporating Equal Shared Parental Responsibility as the first hurdle), being a necessary compromise to seal bi-artisan support for the report.

The report however in intent and purpose is unequivocal and reads:

“Despite the intentions of the Family Law Reform Act of 1995, shared parenting and shared physical care have not become a reality for the vast majority of separated families.”

In response to this failure in the 1995 Family Law changes, the Committee recommended that the new Shared Parenting amendments (eventually enacted in 2006) should contain the presumption that children should “be given maximum opportunity of spending significant amounts of time with each parent.

The report’s intentions were clear, that there be a Presumption of Equal Shared Parental Responsibility (the first hurdle), that would be struck down if certain events occurred, such as family violence, huge distances between households, or other relevant issues preventing Shared Parenting.

If such events did not occur, then the Courts were compelled to order Shared Parenting, either Equal Parenting Time, or Substantial and Significant Parenting time, if in the child’s best interest, and if not ordered, the Judge had to explain why not.

To illustrate this mis-representation by Chisholm more recently, in 2011 these Shared Parenting laws were amended by the then Gillard government to make it more difficult for some parents to get Shared Parenting arrangements with their children if there were allegations of family violence (despite it already being part of the 2006 amendments).

In response to these proposed changes, George Christensen, in opposition at the time, stated on record that:

“What is inside this Trojan horse, the malicious code that will infect society, is an attempt to undermine equal access for both parents. This change would invite the court to ignore the requirement to consider the second pillar—the benefit to the child of having a meaningful relationship with both parents.”

A recent article reported in the Australian on Chisholm’s proposed family law act reform blueprint, further distorts the original intent of the 2006 Shared Parenting Family Law amendments, either deliberately, mistakenly or by complicity by the journalist involved, Nicola Berkovic.

The article suggests that Australian family law act could be simplified, by removing some convoluted section in the act.

The journalist, Nicola Berkovic, then used comments by other notable family law spokes-people supporting the above premise, to imply that this view also includes their agreement that Australia’s Shared Parenting laws should also be ditched.

In fact, as is the case with the pre-eminent expert in family law and the man sometimes referred to as the architect of the 2006 Shared Parenting laws, Professor Patrick Parkinson, this is not his position at all.

In a similar tactic, Anti-Shared Parenting advocates like Chisholm have also used the guise that Shared Parenting laws expose children of separated families to increased risks of child neglect, child abuse or child murder, and yet the subsequent reviews of the 2006 Shared Parenting laws plus numerous other studies and research found that nothing could be further from the truth.

More on this other mis-representation often peddled by the usual suspects, in another article.

Parenting plans or Family Court Orders? – your choice Sun, 27 Apr 2014 10:01:01 +0000 parenting-plan-court-ordersIf you separate from your husband, wife or de facto partner and you have children together, you both have a continuing responsibility for the care of your children. So what are the options when it comes to figuring out the care arrangements for the children?

If you are unable to discuss those options between yourselves, you are encouraged to attend mediation.

The discussions will include:

who the children live with
when they see the other parent
the specifics of hand-over, such as where it will happen, who drives
providing for contact by other means (such as phone calls etc) when the children are with the residential parent
arrangements for special events like Christmas, New Year, Birthdays, Mother’s Day, and Father’s Day
arrangements for travel – domestic or international
schooling, religion, and medical care amongst other issues

The level of detail in the agreement will often depend on how flexible the parties are and how well they communicate after separation.

If the parties can reach agreement on the arrangements for their children at mediation, the mediator will usually encourage them to draft and sign a Parenting Plan. However, they do so at their own risk for one very important reason – enforceability.

If you and your ex agree on the arrangements for the children, and record this in a parenting plan, what happens if one party stops adhering to the plan? They might, for example, stop you spending time with your child. You cannot enforce the plan.

We always commend parties for being able to reach agreement on the arrangements for the children but we strongly recommend that the agreement/parenting plan is formalised by filing an application for Consent Orders at the Family Court of Western Australia.

The parties and their lawyers are not required to attend court. The process merely requires the details of the agreement/parenting plan to be filed at the Family Court. Assuming they are in the best interests of the children, the court will make the orders.

This way, if your ex becomes less co-operative (which can occur, for example, when one party starts a new relationship), you have the option of asking the court to enforce the agreement.

The Family Court requires, in the absence of urgency or other reason such as family violence, that all parties attempt mediation to resolve their issues before seeking its assistance.

If you have attended mediation and have not been able to reach final agreement, or if the other party refuse to attend mediation at all, you will be issued with a certificate which will allow you to file an application at court setting out your proposals for the future care of your children.

Thereafter, your ex will file their proposal in response and the matter will progress through the court which will assist you in your attempts to reach agreement. If that is not possible, it will make orders based on the best interests of the children.

If one party then fails to comply with the orders, whether agreed or ordered by the court, the other party can file an application to enforce the orders. The court can apply a variety of sanctions to ensure compliance.

The sanctions applied will depend upon the situation and the nature of the breach but can include paying the other party’s legal costs, paying compensation for lost time with a child, a requirement to attend a post-separation parenting program, a community service order, payment of a bond or fine or even imprisonment.

As time passes things might change. One or both of you could re-partner, you might have more children, your children’s needs might change as they get older. If orders were made by consent, or by the court, you may both agree to change the orders by consent. Again, any informal changes not recorded by the Family Court will not be enforceable.

It is only possible to change orders by consent and have these changes made into orders of the court where the original orders provide for this.

However, it is possible to seek an amendment to orders made by the Family Court, under section 65D(2) FCA.

As you might imagine, the court wants to limit litigation and therefore it is generally only possible to seek an amendment where there has been a significant change in the circumstances of the parties, or a material factor was not disclosed at the earlier hearing which would justify changing the orders.

This is so even where the parties both agree to a change in the orders but will also depend on the changes proposed as well as how long it has been since the previous orders were made.

Whatever you do, you need to remain flexible and reasonable as far as possible, whilst making sure you safeguard your own position in case problems crop up further down the track.

Related Family Law Information

Shared care and Family Tax Benefit Thu, 24 Apr 2014 21:28:33 +0000 shared-care-and-FTBThis factsheet explains how Family Tax Benefit (FTB) works when the care of children is shared, most frequently in the event of divorce or separation. It also explains how to deal with problems that can arise, particularly when two carers do not agree on the “percentage of care” that should apply.


When two separated parents (or in fact any adult – like a grandparent) are sharing the care of a child, FTB can be split according to the percentage of time the child is in each adult’s care:

If an adult has at least 35% care of the child, the FTB payment can be shared;
If an adult has less than 35% of the care, they will not get a share of the FTB. However if they do have at least 14% of the care, they may be eligible for the rent assistance component and other benefits that normally attach to FTB;
If an adult has less than 14% of the care, they cannot receive any family assistance for the child.

Assessment period

The assessment period for working out the percentage of care starts from the day care starts or changes, and runs until there is another change in care.

A care period of 12 months will generally be used when the arrangements are ongoing. Generally for a 12 month period, the 35% minimum care rule is satisfied where a person cares for the child for at least 128 days in that year.
Pattern of care

To work out how FTB is to be shared, a “pattern of care” must be established to work out what percentage of time each adult cares for the child. This percentage is then applied when calculating the rate of Family Tax Benefit A and B that each adult can receive. The table below summarises the percentage of FTB that will be paid. If “number of nights” is not an accurate reflection of the pattern of care, in some cases, care can be expressed in hours and converted into days to establish a pattern of care.


Who decides what the percentage of care is?

Centrelink’s Family Assistance Office or the Child Support Agency make a determination about the pattern of care that each relevant carer provides for a Family Tax Benefit child, and then informs the other agency automatically.

This pattern of care then gets converted into a percentage rate that decides how the FTB is split.

If both adults agree on the actual pattern of care for the child, the agreed pattern of care is used.

If both adults disagree, Centrelink must decide what the actual pattern of care is, on the basis of available evidence, even if a formal care arrangement exists according to court orders.

Each adult will be asked to provide additional evidence to support what they say in order for the Family Assistance Office to make a decision.

If you do not agree with the percentage of care that Centrelink or the Child Support Agency decide you have, you have the right to appeal.

An assessment by Centrelink or the Child Support Agency is binding for both agencies. If the decision is made by Centrelink, you can appeal to an Authorised Review Officer in Centrelink. If the decision is made by the Child Support Agency, you can lodge an appeal with the Child Support Agency or to an Authorised Review Officer in Centrelink.

If that doesn’t work, you have the right to appeal to the Social Security Appeals Tribunal.

How can I prove my percentage of care?

When there’s a disagreement between yourself and another carer as to percentage of care, each person has the opportunity to provide verification. You could try to get evidence which might support what you say, such as:

  • any records of agreement between you and the other carer (a written agreement, an email);
  • a family law order or parenting plan;
  • confirmation of play group, kindergarten or school enrolment;
  • proof of attendance or membership of local organisations or activities;
  • receipts for things you paid for while caring for the child;
  • statements of close family friends or relatives who can confirm your percentage of care;
  • confirmation from any professionals who know your situation (a doctor, a family law solicitor, a teacher, a police officer);
  • proof of travel arrangements at contact times (rail or airline tickets); or
  • records from a government agency (like the Child Support Agency) who might be able to confirm current or previous patterns of care.

A decision maker will usually speak to you, speak to the other carer, look at any evidence submitted, and then make up their own mind about what percentage of care to apply in your case.

Who can help me with this?

Welfare Rights Centres often can’t act for you against another carer. This is because we don’t want to be “conflicted out” of helping as many people as we can with their problems with Centrelink. You could contact your local Legal Aid Child Support specialist service to see if they could help you. Centrelink’s Family Assistance Office and the Child Support Agency can each make a determination about the pattern of car and this decision is then applicable to the other agency automatically. Legal Aid Child Support Service in NSW can be reached on 96339916 (Sydney) or 1800 451 784 (regional).

Shared care debts

Problems can arise when one person receives FTB by instalments based on a certain percentage, but then another person claims FTB later (eg at the end of the year) and claims to have a higher percentage of care than Centrelink had applied.

For example, Susie receives instalments of 100% of FTB through the financial year on the basis that she has care of her son Tom 70% of the time. However at the end of the financial year, her ex-partner Jason lodges a claim for FTB stating that he has 35% care of Tom.

If Centrelink assesses the care and decides Jason did have 35% of the care, Susie will incur a debt:

  • If Susie disagrees with Centrelink’s decision about the percentage of care, she may appeal to an Authorised Review Officer to argue the decision was wrong;
  • If she agrees with the decision, she might still have grounds to have the debt waived if it was caused by Centrelink error or if she has special circumstances.

If you disagree with a debt raised on the basis of the percentage of care you had of a child over a past period, you have the right to appeal. You can present your case to a decision maker and ask them to make a decision that you had a different percentage of care. The same sorts of evidence referred to under “how can I prove my percentage of care” on page 2 would be relevant to your appeal.

If you agree with the percentage of care basis for the debt, but would like the debt waived in view of your special circumstances and in view of the fact you did not realize you were being overpaid at the time, you have the right to ask that the debt be waived (meaning it does not have to be paid back). See our factsheet “Debts” for more information about this.

Shared care and other payments

Parenting Payment (for children under eight if you’re single) can’t be shared because it is paid to the principal carer, and only one person at a time can be the principal carer of a child. Where the care of a child is shared a decision has to be made as to who qualifies as principal carer. Where one person provides the majority of care they will generally be determined to be the principal carer, even if that person has not claimed Parenting Payment. Where the care is shared equally (eg, 50:50 or where there is less than a 10% difference in the level of care), Centrelink’s policy is to grant Parenting Payment to the parent who:

–     claimed Parenting Payment, if the other parent does not claim; or

–     is most in need of the payment.

In determining need, Centrelink looks at:

–     whether one of the parents already qualifies for Parenting Payment for another child;

–     any other income or assets of the parents; and

–     whether one parent has already been receiving Parenting Payment for the child.

Child Care Benefit and Rebate are paid to the person liable to pay the child care fees.

Appeal rights

If you think a Centrelink decision is wrong, you have the right to appeal. Appealing is easy and free. To appeal simply tell Centrelink that you are not happy with their decision and that you would like to appeal to an Authorised Review Officer (ARO).

You can appeal to an ARO at any time. However for an FTB past period decision, your appeal needs to be lodged within 52 weeks from the date of the decision, or by 30 June for the financial year after the one you are appealing about – whichever date is the later one. To claim FTB for a past period, you need to lodge your claim within 12 months of the relevant financial year you are claiming for. There is no time limit to ask to waive a family assistance payment debt. Different time limits may apply to appealing decisions through the Child Support Agency.

If you think the ARO decision is wrong you have further appeal rights, and time limits apply. For more information see our factsheet “Appeals – how to appeal against a Centrelink decision”.

Family law reform outcome not as expected Tue, 17 Sep 2013 08:48:18 +0000 family-law-researchSeparated families in Australia are living with less parental conflict, an outcome likely to have been brought about by increased relationship services, not parenting time arrangements.

Changes to Australia’s family law in 2006 encouraged a shift towards shared-time, or tag-team, parenting, where a child spends equal or near-equal time with each parent.

However, ANU Associate Professor Bruce Smyth says new data, compiled from a random sample of separated parents from across Australia, suggests differently.

“Surprisingly, we found that since the family law changes, the prevalence of shared-time parenting in Australia has plateaued at about 15 per cent,” he says.

Smyth says Government commitment in 2006 to fund and support mediation services is likely to have been the cause of this parental shift, especially among high-conflict families.

“The introduction of family relationship centres seems to have offered new opportunities for courts and community-based services to work constructively together for the good of the children of separation and divorce,” he says.

“A cultural shift for the better appears to have occurred, moving away from lawyers and the courts as a default starting position for many separated parents, and moving towards the use of community-based family relationship support services.”

The research found that equal time arrangements were ordered by judges in less than 10 per cent of Family Court cases in the past five years.

“Shared-time arrangements can work well for some families, but badly for others,” joint author Professor Bryan Rodgers says.

“Rigid arrangements between warring shared-time parents are likely to have a negative impact on children.

“So, the expansion of family support services, allowing families access to good information, is likely to have helped steer some entrenched high-conflict families away from shared-time arrangements.”

Smyth and Rodgers are researchers at the Australian Demographic & Social Research Institute. They were part of a team of four ANU researchers who compiled the study.

Associate Professor Smyth will deliver the findings of this Australian Research Council funded study today at the Australian Social Policy Conference in Sydney.

New school terms could impact child custody plans Wed, 05 Dec 2012 07:25:30 +0000 change-of-school-terms-impact-on-shared-parenting-agreementsThe Christmas holidays are here, but for Tasmanian parents with shared child custody, the new year’s school holidays could raise some legal issues.

Tasmania’s state school year will switch from three to four terms in 2013, to bring it into line with other states.

Parents with shared child custody are being urged to check whether Tasmania’s upcoming changes to school terms will affect their arrangements.

Women’s Legal Centre of Tasmania managing solicitor Susan Fahey has told 936 Breakfast’s Ryk Goddard that the change won’t affect most people with custody agreements, but it’s an early warning for those it will.

“For some people they might need to change their orders or parenting plans,” she says.

“Others it won’t be a problem it just depends on the wording.”

Ms Fahey says you may need to discuss with your ex-partner if a change to your agreement is needed.

However if talking is out of the question for personal or legal reasons, she suggests seeking advice.

“Usually the most cost effective way is either attempt it by email, but if you can’t do that then talk to them through say a mediation service or a dispute resolution service initially,” she says.

Ms Fahey says custody arrangements shouldn’t be affected by this Christmas break.

“It just gives you some time to have a think about well how’s this going to affect me,” she says.

High Court rejects shared parenting plan Wed, 03 Mar 2010 07:21:01 +0000 high-courtA court order requiring a Sydney mother and Mount Isa father to share parenting of their seven-year-old might have been in the child’s best interests, but it just wasn’t feasible, the High Court has ruled.

High Court judges said the Federal Court magistrate who made the original order should have considered whether it was actually practicable for the daughter to spend equal time or even substantial time with each parent.

The High Court initially handed down its decision in December but only released its reasons on Wednesday.

The court heard the couple lived together in Sydney from 1993 until 2007, and their daughter had been born in August 2002.

In January 2007 the family moved to Mount Isa to allow the husband to gain work experience.

The parents separated in August 2007, with the mother and daughter returning to Sydney. But three months later they returned to Mount Isa in accordance with interim orders sought by the father and made by the Federal Magistrates Court.

Final orders, made in April 2008, gave the parents equal shared responsibility for their daughter and directed that she spend equal time with each parent on the basis that both would live in Mount Isa.

The Full Court of the Family Court dismissed the mother’s appeal, but the High Court took a different view.

Judges noted that the legislation stipulated that a child’s best interests were to be the paramount consideration in parenting orders, with a presumption that this could be best achieved by parents sharing responsibility.

However, that presumption could be rebutted, with the legislation also requiring consideration of the parents’ circumstances, particularly the mother.

In this case, the mother was living in a caravan park and relying on welfare payments and income from casual work, with her daughter staying with her every second week.

The mother was also suffering depression from her poor living conditions, lack of employment opportunities and isolation from her family in Sydney.

The High Court judges said the federal magistrate addressed only the question of whether it was in the child’s best interests for her to spend equal time with each parent.

He made no assessment of whether spending equal time with each parent was actually feasible, they said.

“Had consideration been given to the question, only one conclusion could have been reached, one which did not permit the making of the order,” they said.

The case was sent back to the Federal Magistrates Court to be reheard.

Law system reports are all in the family Fri, 29 Jan 2010 09:18:20 +0000 Pre-47s-Website-12Three reports evaluating aspects of Australia’s family law system have been released by the Attorney-General, Robert McClelland.

Mr McClelland said the reports focus on how the Family Law Courts deal with family violence cases and found that further progress was needed to ensure the cases were responded to effectively.

“The reports provide a comprehensive and objective analysis of the family law system against the aim of providing fair and sustainable solutions for families, while ensuring the safety and wellbeing of children,” Mr McClelland said.

He said the Evaluation of the 2006 Family Law Reforms by the Australian Institute of Family Studies (AIFS) examined the impacts of changes to family law.

Mr McClelland said some of the changes included introducing shared parenting; requiring separating parents to attend family dispute resolution before Court; and establishing Family Relationship Centres to provide information, advice and assistance to families.

He said the AIFS report found the idea of shared parental responsibility was widely supported but was often misunderstood to mean equal shared care time and had led to unrealistic expectations among some parents.

The AIFS reported that the majority of parents in shared care arrangements believed they were working well but identified concerns where an ongoing fear of violence existed.

The report also found there had been a shift away from using the Family Law Courts and that more separated parents were using dispute resolution services.

Mr McClelland said two reviews, Family Courts Violence Review, conducted by Professor Richard Chisholm and Improving Responses to Family Violence in the Family Law System, conducted by the Family Law Council, addressed the effectiveness of legislation and Court practices involving cases of family violence.

“The Government is committed to improving the family law system so that separated families can effectively access the help they need and disputes can be resolved in the best interests of children,” he said.

Mr McClelland said the Government would consider the findings and recommendations of the reports before responding.

Copies of the reports were available from

Australia Releases Family Law Reforms Evaluation Thu, 28 Jan 2010 05:44:53 +0000 family-law-in-australiaThe most comprehensive evaluation of Australia’s family law system – drawing on the experience of 28,000 Australians – has found that overall the recent reforms are working well for the majority of children and their parents.

Source: Government of Australia Posted on: 28th January 2010

“There’s more use of family relationship services, a decline in court filings and some evidence of a shift away from people going straight to court to resolve post-separation relationship difficulties,” said Australian Institute of Family Studies Director Professor Alan Hayes.

However the Institute, which conducted the evaluation of the 2006 family law changes, found significant concerns about the reforms’ impact on families and children who are exposed to abuse and violence.

The three year long evaluation is the largest examination of the family law and service system yet undertaken, and shines a light on how families and children fare through the system when families break-up.

“More than a million Australian children currently live in separated families,” Professor Hayes said.

“The way in which separated couples resolve parenting arrangements, make decisions about their children and conduct their relationships all have significant and lasting impacts on their children’s lives for better or worse depending on how well they manage post-separation parenting.

“The message out of this evaluation is clear – ongoing conflict between separated parents leads to worse outcomes for children.”

Professor Hayes said that overall, the reform goal of getting separated parents to work things out for themselves is being achieved, with most separated parents resolving their parenting arrangements within one year and without the use of the legal system.

“This is evidenced in a reduction in child-related parenting matters reaching court, with a fall in applications for court orders and a greater proportion of parents reporting they were able to resolve their issues themselves, supported by the new family relationship services,” he said.

However for a substantial proportion of separated parents, there is evidence of significant family dysfunction: violence issues, safety concerns, mental health and substance misuse.

And for children whose parents have concerns about the safety of their child or themselves from ongoing contact with the other parent, shared care-time arrangements exacerbate the negative impacts on children.

“The evaluation provides clear evidence that while there have been some positive developments, the family law system has some way to go in effectively responding to family violence and child abuse, mental health and substance misuse.

“Where there were safety concerns reported by parents, these were linked to poorer outcomes for their children in all types of care relationships, but for those in shared care time, it was even worse. This is a small but extremely significant minority.

“All professionals should exercise great care in considering shared care where violence and safety concerns for the child exists,” Professor Hayes said.

There is a need for professionals right across the system to have greater levels of access to finely tuned assessment and screening mechanisms by highly trained and experienced professionals.

And important information about child safety and family violence needs to be more effectively shared between professionals including those in family relationship services, lawyers and the courts.

“But it’s worth remembering that while the evaluation found that for an important minority equal care time was a serious concern, for children where there’s no violence or abuse, equal care time was found to work well.”

The evaluation found evidence that many parents misunderstand the changes to the family law system, believing that equal shared parental responsibility (shared decision making and financial support) allows for equal shared care – or 50/50 time. This can make it more difficult for parents, relationship services professionals, lawyers and the courts to get parents to focus on the best interests of the child.

“This misunderstanding is due in part to the way the notion of shared parental responsibility is expressed in the legislation. It has led to disillusionment among some fathers who find that it doesn’t automatically mean 50/50 care time. And indeed, the law was never intended to provide for shared care time in cases where there are safety concerns.

“Lawyers in particular have indicated that the 2006 reforms have promoted a focus on parents’ rights rather than children’s needs and that the family law system doesn’t do enough to support arrangements that are suitable for a child’s particular level of development.

“The evaluation has highlighted the complex and varied issues faced by separating parents and their children and the diverse range of services required in order to ensure the best possible outcomes for children. While there are many perspectives within the family law system, and conflicting needs, it’s important to maintain the primacy of focussing on the best interests of children,” he said.

Key findings from the evaluation include:

  • 71 per cent of fathers and 73 per cent of mothers say they’ve sorted out their care arrangements
  • 39 per cent of parents who used family dispute resolution reported reaching an agreement
  • 78 per cent of Family Relationship Centre staff and 86 per cent of family dispute resolution staff say that family dispute resolution is inappropriate due to family violence for up to a quarter of parents they see
  • 16 per cent of children are in shared care-time arrangements (i.e., where 35-65 per cent of time is spent with both parents)
  • More fathers than mothers propose equal time arrangements when going to court – 10 per cent of mothers and 27 per cent of fathers
  • A majority of separated parents were in friendly or cooperative relationships (just over 60 per cent)
  • Just under one fifth of separated parents reported their relationship to be full of conflict or fearful, with mothers twice as likely as fathers to report a fearful relationship
  • Around one in five parents reported safety concerns with ongoing contact with the child’s other parent
  • 26 per cent of mothers and 17 per cent of fathers reported their partner had physically hurt them before or during separation.
Father’s battle for 50-50 custody long and expensive Sat, 25 Jul 2009 15:30:50 +0000 50-50Michael B is one of a small number of Australian fathers who has a 50-50 shared parenting arrangement with his six-year-old son after divorce.

It did not come easy.

“I had to fight for every bit of time we spend together,” Mr B said yesterday.

“I had to pay a lawyer $400 an hour. In all, it cost $10,000. But if I hadn’t fought, I would have ended up with one weekend a fortnight, and I was so close to my son I couldn’t let that happen.”

Mr B, who cannot be identified because his son is subject to Family Court orders, said he met his former wife in a South American country while he was working as an engineer there and earning good money.

“She was from the slums,” he said. “She had nothing, but that didn’t matter to me.”

Before long, she was pregnant. The couple’s son was born abroad.

“I brought her back to Australia when he was six months old, and we went through the whole thing of getting her a visa,” Mr B said.

“For the first year we lived with my parents, my boy’s grandparents, in their luxury home.

“Then we got our own place. I had by then assets of nearly a million dollars, and then when my boy was nearly three years old I came home, and the place was empty.

“She’d gone, and taken him with her, and there was a lawyer’s letter on the table saying she can’t live with me any more, and she’s the primary carer, so she’s taken my son.”

Mr B believes he was a good husband and father, and that his relationship with his son was strong, loving and important.

He said his ex-wife during their marriage had taken up Latin American dancing, and was tutoring and dancing at a salsa school three nights a week, “so I was working full-time and coming home at night and caring for our son, while she was dancing”.

He said she also took English lessons and a TAFE course, during which time their son was in childcare. “I couldn’t believe that her lawyer was saying that I wasn’t an equal parent,” he said.

“I believe I did all the right things.”

Mr B said he was accused in court of being “a bad husband, a bad father” and he believes that were it not for the Howard government’s shared parenting laws, which require the Family Court to presume that a child’s best interests are served by having a “meaningful” relationship with both parents after separation, he would not have been given any responsibility for his son, let alone equal time.

“He (the boy) spends Monday and Tuesday with his mum, and Wednesdays and Thursdays with me, and weekends we swap,” Mr B said. “We’re incredibly close and it has got to the point where I can communicate with (his ex) about him in a good way.

“When I think that we could go back to the old days, where fathers just got screwed, the more I can’t believe it.”

The Australian was not able to reach Mr B’s former wife for comment.