Shared Parenting: The Australian Experience 

The legal & emotional implications of shared parenting – how does it work?

Gingerbread and One Plus One Seminar, London ,12 November 2010

Professor Belinda FehlbergMelbourne Law School

Victoria, Australia

Outline

• Why are Australian developments relevant for the UK?

• Key Australian research findings

• Ways forward?

Relevance of Australian situation

Why are Australian developments relevant for the UK?

• Similar legislative approaches to private law children disputes

• The 2006 family law reforms: law and process• Post 2006: significant Australian research activity

Australian research

Pre-2006 Smyth B, Caruana C, and Ferro A (2004)

Post-2006

Government funded• AIFS Evaluation: Kaspiew et al (2009)• Bagshaw et al (2010)• Cashmore et al (2010)• McIntosh et al (2010)

Chisholm Inquiry (2009)

University based• Fehlberg et al (2008-2011)• Smyth, Rodgers et al (2009-2012)

Australian big picture?

AIFS’ main finding is that ‘overall the recent reforms are working well for the majority of children and their parents’ (Media release, 28 January 2009)

BUT: • Evidence that shared parenting laws are being

applied to families least able to make it work • No clear evidence Family Dispute Resolution (FDR)

results in more workable shared parenting arrangements

Early days...there is still a lot we don’t know

Australian research findings

So, what does the Australian research say?

• Promotion of shared parenting through a legal presumption – Parenting patterns and outcomes?– Financial implications of shared care?

• FDR as a means for achieving more workable shared care arrangements?

Parenting patterns & child outcomes

Terminology

Legislative and research definitions of shared parenting vary but in essence comprise two sub-groups:

• Equal splits (50/50%); and • Unequal splits (eg 70/30%; 60/40%; 65/35%)

 

Pre-2006• Equal shared care was mainly utilised by a small,

select group of well-resourced parents

Post-2006

Shared parenting remains unusual (Recent separations16%: 7% equal time & 9% unequal. Overall around 12%)

BUT:– Marked increase in judicially imposed shared

parenting (4% to 34%) – Substantial minority of children in damaging shared

parenting (mothers concerns mainly)• Current safety concerns• High conflict • Very young children• Ongoing disruption

Post-2006 (cont’d)

Why has legal change led to an increase in problematic rather than workable shared care?

Confusion: Parents and some professionals think the law says that there is a presumption of equal shared time (cf responsibility)

Reluctance to raise concerns about family violence and child abuse

Increased focus on parents’ rights rather than children’s best interests

Finances & shared parenting

Property• Will the drift over time from shared to mother primary care mean

that property settlements disadvantage children and mothers longer-term?

• Family lawyers: average property division received by mothers has decreased by 7% (from 63% to 73%) post-2006

 

Child support• Do parents seek shared parenting to reduce/maintain their child

support payments? • Family lawyers: this is an important motivation for seeking

shared time• Qualitative research: minority of parents motivated purely by this • Further economic disadvantage for mothers and children?

Pathways to workable shared care?

• Main pathway for sorting out (shared) parenting arrangements is discussions with other parent

• What about FDR?

• High financial cost of the Australian changes

Looking forward

Other means of promoting workable shared care

• Promoting shared care in intact relationships

• Workplace flexibility and economic equity between parents

• The most workable shared care arrangements are those that parents agree to themselves

So...

Still a lot we don’t know, but cautionary findings:

• No positive gain in legal presumptions favouring shared parenting. Rather, encouragement of shared parenting in cases where it’s likely to be unworkable and damaging to children

• No clear connection between FDR and workable shared parenting (but is this the right question to ask?)

• Workable shared parenting is consensual rather than imposed

Post script

• Australian Parliament has recently enacted the Family Law Legislation Amendment (Family Violence and other measures) Act 2011 (Cth)

• Amends the Family Law Act 1975 (Cth) to address some of the problems identified post-2006

• Into effect 7 June 2012• Includes wider definitions of ‘family violence’ and

‘child abuse’, amending ‘best interests’ checklist to make clear that protecting children from harm is to be given ‘greater weight’ than ‘meaningful relationships’, and changes aimed at encouraging disclosure

• The shared parenting provisions are unchanged