Shared parenting law brings little change

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THE shared parenting law introduced by the Howard government has resulted in more children spending time with both parents after divorce, but the numbers who do so are minuscule and most children still spend the majority of time with their mothers. 

A survey of 10,000 parents who have separated since the shared parenting law came into effect in 2006 found that one in 10 of their children now never saw their father, and one in five never stayed with him overnight.

By contrast, just 2 per cent of children never stayed overnight with their mother, and only 1 per cent did not see their mother at all.

There has been a small increase in the number of children who spend substantial periods of time with both parents, but a shared parenting arrangement is currently in place for just 16 per cent of families.

Prior to the introduction of the law, 12 per cent of families undertook a shared parenting arrangement.

The slow pace of change in this area may be explained by the sheer complexity of the shared parenting law, which judges have described as “extremely complicated” for even lawyers to understand. As part of a report for the Rudd government on how the shared parenting law is working, the Australian Institute of Family Studies interviewed not only separating parents, but judges and lawyers, most of whom said the law was too complicated.

One judge said: “In its current form, it is undoubtedly extremely complex.”

One barrister said: “The best interests of the child tends to get lost in amongst all the loops and hoops and criteria that one must rather artificially go through.” Another judge said: “I think very few average people can understand it . . . they cannot go to the internet, look up the Family Law Act, and get the guts of it.”

The sheer complexity meant many people settled on a custody deal “by consent” — meaning they did not fight it out in court but had the court approve their own arrangement.

But as one lawyer said: “You’ve got a real tension because those who settle by consent feel as if they’ve been bullied into it.”

The report says the emphasis on shared parenting in law hasn’t much changed what happens in practice.

Almost 80 per cent of children spend most or all nights with their mother, and just 5 per cent of children spent most or all nights with their father.

However, the older the children, the more likely they are to spend nights with their father, while the proportion of children who spent most or all nights with their father increases with the child’s age — from 3 per cent of those aged under three years, to 17 per cent of those aged between 15 and 17 years.

Two-thirds of children under the age of two are either always with their mother, or with her more than 80 per cent of the time.

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Categories: Evaluation of the 2006 Family Law Reforms, Family Law Reform
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