How Caring is Sharing?- The Family Law Amendment (Shared Parental Responsibility Act) Act 2006

With this answer to a Dorothy Dix in Question Time on 24 June 2003, the then Prime Minister John Howard elevated disquiet about ‘father absence’³ in separated families to a formal concern requiring the intervention of law reform: thus commenced the most significant change in the direction of family law policy since the introduction of the Family Law Act by the Whitlam Government in 1975.      

Three years after the then Prime Minister articulated his concerns, the Family Law Act was amended.  In research recently presented to the Family Law Residential by Professor Bruce Symth of the ANU, delegates were reminded that in that three years, the debate evolved beyond a singular focus on fixing ‘father absence’ to a more holistic, family-focused policy debate concerning whether equal or substantial time-splits between parents ought be the reality for the majority of separating parents.

The Family Law Amendment (Shared Parental Responsibility) Act commenced in 2006, but the Prime Minister’s invitation to consider a presumption of equal time with each parent was not.  Instead, the 2006 Act provided for, inter alia:

• a presumption of “equal share parental responsibility”⁴  (ie, shared major decision making between parents), and
• if that presumption is not rebutted, then the court is required to consider ‘equal time’ as the first possible outcome in a hierarchical suite of parenting options.⁵
• If the court finds that equal time is not reasonably practical or not in the child’s best interest, it must then consider whether “substantial and significant” time would do so.  
• If the Court finds that neither equal time nor substantial and significant time promotes the child’s best interests, then the issue is at large and to be determined in accordance with the child’s best interests.  
• When the presumption is rebutted, the Court is again at-large to consider the parenting arrangements.

The concept of “substantial and significant” time is defined in s 65DAA to effectively mean more than just alternate weekends, and must include time that falls on weekends and holidays and time that does not, as well as time that allows the parent to be involved in the child’s daily routine and occasions and events that are of particular significance to the child and the parent.

The Act also held true to the tradition of changing the nomenclature to describe parenting arrangements.  What was originally “custody and access” had become “residence and contact”.  The latter was designed to eliminate the idea of possession embedded in the former.  Under the 2006 Act “residence and contact” became “live with, spend time with and communicate with” (phrases not conducive to smooth oratory in submissions).⁶   

The Act also created a layer of pre-Court mediation with the hope that parents could achieve parenting agreements in a cooperative, non-litigious way, with parents being given support to work out their differences.  

In theory, shared care is a wonderful aspiration.  Until the Act was amended, fathers were predominantly relegated to alternate weekends and half-holidays. Mothers, again predominantly, had the majority of time with their children, but mainly the day-in-day-out tedium of school routines, homework, extra-curricular activities, and timetables. ⁸  Dad could be the weekend parent with few rules and lots of fun, whereas Mum became the school-night disciplinarian requiring the children to brush their teeth, do their homework, tidy their rooms, and so on.  For children, the amendments to the Act meant that instead of only spending every second weekend with dad, (and maybe dinner mid-week in the ‘off contact’ week) they may be able to enjoy more evenly spread time with both parents. The characterisations above are, of course, generalisations, but ones that sounded in many Australian families.  

Complementing the Family Law Act amendments were changes to the child support system, the essence of which was the possibility that the paying parent may pay less in child support if they saw their children more.

Anecdotal experiences of practitioners are that the great majority of cases are ones where the presumption of equal share parental responsibility applies.  Thus, the door to equal time is opened as the first consideration.  However, whilst the legislation may promote shared care as a primary ideal, and also seeks to move parents from litigation to cooperation, those aspirations ought be tempered by the reality of a relationship breakdown. In a decision handed down well before the shared care regime, the Court held that the viability of shared care ought be considered against the following practical criteria:

• The parties’ capacity to communicate on matters relevant to the child’s welfare.
• The physical proximity of the two households.
• Are the homes sufficiently proximate that the child can maintain their friendships in both homes?
• The prior history of caring for the child.  Have the parties demonstrated that they can implement a 50/50 living arrangement without undermining the child’s adjustment?  
• Whether the parties agree or disagree on matters relevant to the child’s day to day life.  For example, methods of discipline, attitudes to homework, health and dental care, diet and sleeping pattern.
• Where they disagree on these matters the likelihood that they would be able to reach a reasonable compromise.
• Do they share similar ambitions for the child?  For example, religious adherence, cultural identity and extra curricular activities.
• Can they address on a continuing basis the practical considerations that arise when a child lives in 2 homes?  If the child leaves necessary school work or equipment at the other home will the parents readily rectify the problem?
• Whether or not the parties respect the other party as a parent.
• The child’s wishes and the factors that influence those wishes.
• Where siblings live.   

Shared care may well be a viable option for those who can work out their parenting arrangements without filing in court, but that is not to say that that cohort all agree upon shared care.  That being said, it is worth observing that the ability to work out parenting arrangements without court order may suggest a level of cooperation that would mean that if shared care is the agreed outcome, it stands a chance to work — if the parents can negotiate this outcome then, when a child leaves certain items at one house, chances are the parents will work together to solve the problem.  But, if parents are unable to work together to make that happen for themselves, and thereby need a court to adjudicate amidst the acrimony, mistrust and bitterness that encompasses many parenting proceedings, how can shared care actually work for the benefit of the children?

Is sharing caring?

As reported by Professor Smyth,¹⁰  in 1997, the ABS informs that a mere 2-3% of post-separation children lived in shared care.  In 2003, when the then Prime Minister put it on the agenda, that percentage of children had doubled to 6%.  Three years after the Act was reformed, the ABS again informs that in 2008, only 7% of children were cared for by sharing. ¹¹  However, Child Support Agency data suggests that by June 2008, 17% of new cases involved shared care. ¹²  Differences in methodology and data analysis between the ABS and CSA means that the statistics are not directly comparable, yet, both indicate that shared care is on the rise.   

Professor Smyth observes that the most striking thing about the debate over shared care is the focus on numbers – the “mathematizining” of parenting time.  Consequently, by reducing parenting time to a sequence of numbers (eg, 9/5, 8/6, 7/7, 2/2/5/5, 2/5/2/5, 3/4/4/3) focus is squarely upon the quantity of time as opposed to the quality of time.  That quality of time is pivotal to good post-separation outcomes for children is a proposition not only of commonsense but also of one borne out in research.¹³   However, whilst the reforms were designed to improve a child’s meaningful and safe relationships with both parents, they have also had the consequence of promoting a preoccupation with numbers.  Counting days/nights and even hours seems to feature more (at least in matters that enter the legal fray) than accumulating positive parent-child experiences.

The research literature indicates that the allocation of parenting time of itself will not lead to positive post-separation experiences for children.  Instead, a child’s best interests are strongly connected to post-separation parenting that feature cooperation, positive parenting capacities and skills, as well as practical resources such as adequate housing and income. ¹⁴  Thus, while the court will impose a time arrangement upon warring parents, it cannot obligate or order them to stand possessed of the very essential factors referred to above that will better serve their children’s best interests.

Perhaps what is presently most telling about the viability of shared care is whether it ‘lasts the distance’ once agreed upon or imposed by court order.  Research above indicates that when parenting arrangements are longitudinally studied, shared care is significantly more fluid than mother-residence or father-residence arrangements.  Indeed, research shows that over a three year period only 50% of children who commenced with shared care were still in shared care. ¹⁵  Conversely, mother-residence households and father-residence household were relatively stable, with mother-residence households being not only the most common, but also the arrangement that shared care arrangements tended to gravitate towards. ¹⁶  

What of the children?  The research referred to herein has been called ¹⁷ “first generational” mapping of experiences using small data sets.  Of course, caution need be applied to interpreting these studies.  Second generation research, using large general population data and with a specific focus on shared-care arising out of the 2006 reforms, is underway.   This “second generational” ¹⁸ research will also hopefully explore the outcomes for children depending on the kind of shared care environment they find themselves in: (1) where their parents agree on shared care, where conflict is low and cooperation high; and (2) where shared care is imposed upon the parties who are enmeshed in high conflict and cannot cooperate.    

What we presently know is that fathers and children will benefit from a shared care arrangement when this occurred in an environment of low acrimony and cooperation with the child’s other parent.¹⁹    

Unfortunately for children whose parents are in court, both practitioners’ experiences and research indicate that high parental conflict is a common feature.  For these children, the research indicates that shared care in an environment of mistrust, acrimony and parental conflict will expose children to the very real likelihood of poor mental health outcomes as just one of the consequences of their parent’s separation. ²¹

The law is the law, and we obviously have no choice but to apply it.  Equally, social science is reactive and moves slowly. ²³  Yet, given preliminary research indicates we could be imposing psychological strain upon a generation of children, the social scientists and their research projects and results harnessing greater statistical power and scope will become available not a day too soon for this group of children. 

Jacoba Brasch

Footnotes

1. At the recent Family Law Residential, August 2008, considerable attention was given to the impact of the recent changes to parenting arrangements under the Family Law Act and their implications.  Papers included Beth Guy from the Australian Childhood Foundation and Paul Lodge of the Family Court.  For this article, particular reference is had to Professor Bruce Smyth’s paper and lecture:  “When what we know is based on 201 families: a 5 year retrospective of post-separation shared care research in Australian”, 15 August 2008, wherein he reminded delegates of the context for reform, but more importantly, the impact in children and families of implementation thus far.  This paper provides an overview of the Professor’s research and draws upon the themes he developed.    This and other papers may become available at www.qls.com.au. 
2. The Hon. Prime Minister, J Howard, Hansard, House of Representatives Debates at 17278, Tuesday, 24 June 2003.   “See also discussion in Smyth at 2”
3. Smyth, supra, at 2.
4. s61DA Family Law Act 1975
5. s65DAA Family Law Act 1975. See Goode v Goode [2006] FamCA 1346 (15 December 2006) at [65], wherein the Full Court helpfully summarised the pathways.
6. See also Smyth , supra, at 6
7. The Hon. Attorney-General, P Ruddock, Hansard, Second Reading Family Law Amendment (Shared Parental Responsibility) Bill 2005, at 11, 8 December, 2005.
8. See also Smyth , supra, at 6
9. T & N [2001] FMCAfam 222 at [93]
10. I am indebted to Prof Smyth for sharing his data sets at the Residential, in his paper and presentation.   
11. ABS (2008) Family Characteristics and Family Transitions 2006-07, Australia, Cat No. 4442.0, ABS, Canberra, in Smyth, supra, at 5.    
12. Smyth, lecture to Residential. 
13. Amato and Gilbreth (1999); Lamb (2007); Pryor & Rodgers (2001), in Smyth, supra, at 18.
14. Smyth, supra, at 7-9 and research cited therein
15. Smyth, Weston, Maloney, Richardson and Temple (2008) in Smyth, supra, at 14. 
16. Smyth, supra, at 14
17. see in particular Smyth, supra, at 21 and his observations about the research to date and what is needed in the future.
18. see in particular Smyth, supra, at 21 and his observations about the research to date and what is needed in the future.
19. McIntosh, J & R Chisholm, R (2008), “Cautionary Notes on the shared car eof children in conflicted parental separation”, Journal of Family Studies, 14(1) AIFS, Melbourne, at 41
20. “One father’s story of a 50-50 arrangement”, The Age, June 27 2003, quoting former Family Court judge the Hon John Fogarty
21. McIntosh & Chisholm, supra, at 41
22. McIntosh & Chisholm, p42
23. Smyth, supra, at 20.