Australians Increased Shared Care Due to 2006 Family Law AmendmentSeptember 28th, 2011 by Robert Franklin, Esq.
In Australia, it’s a race against the clock. Can the Labor government of Julia Gillard squelch shared parenting in time, or will Australians stop the effort with their preference for greater equality for both parents?
As most readers of this blog know, the Howard government ushered in amendments to the Family Law Act in 2006 that urged greater equality in parenting time post-divorce or separation. That prompted the anti-dad crowd to leap to the barricades with the battle cry “domestic violence and child abuse.” Maybe it should replace the Internationale.
Long before the real effects of the amendments were known, anti-father advocates pronounced it flawed because it allowed abusive fathers to get custody of children. As a practical matter, what that meant was that any father who was claimed by his ex to have been abusive, was considered by the anti-dad crowd to be charged tried and convicted of same.
In vain did many people point out that it’s mothers far more than fathers who abuse children. No, for those opposed to any improvement in a child’s ability to maintain a relationship with his/her father, facts are superfluous. They had their story and they stick to it.
And Labor listened. Soon enough it put forward yet another amendment to the Family Law Act that, if enacted, would not only knock the props out from under the 2006 amendment, but would gut fathers’ rights entirely. Not surprisingly, it would do that by (a) expanding the definition of domestic abuse to include virtually any subjectively negative state of mind offered in evidence by a mother against a father, and (b) removing all penalties for false allegations.
If that’s not an open invitation for denying children access to their fathers, I don’t know what is.
Indeed, recent research done in the United States shows that, when Oregon attempted to promote shared parenting in the late 1990s, the intent of the law was thwarted by one major thing - claims of abuse. Eighty-two percent of those claims were made by mothers, and they resulted in no improvement in shared parenting. (Another study shows that non-feminist custody evaluators estimate that between 40% and 80% of all such claims are fabricated.)
So it’s no surprise that, in Australia, those opposed to children maintaining a relationship with their dads post-divorce, used claims of abuse as their weapon of choice. The simple fact is, it works.
But there’s another side to this coin that this article tells us about (f4e, 9/5/11). It seems that, in the five years following the effective date of the 2006 amendment, Australians voted with their feet. They’ve embraced shared parenting as never before.
Research published by the Australian Institute of Family Studies (AIFS) has shown that more children from separated families are now spending time with both parents than in the past.
The finding has been claimed as evidence that changes to shared care arrangements under the family law system were working.
Attorney-General, Robert McClelland said among new cases registered with the Child Support Agency each year, the proportion with a shared or near shared care-time arrangement increased from 9 per cent to 17 over five years.
Mr McClelland said that in addition, a survey of 10,000 parents who had been separated after the reforms for an average of 15 months found 16 per cent had a shared care arrangement.
Stated another way, given the opportunity to do so by the 2006 amendment, Australians said ‘yes’ to shared parenting. So yet again, we find a disconnect between the people and their leadership. Australian’s gravitate toward greater rights for fathers, but political leadership isn’t having it. Labor seems bent on protecting parents from the wisdom of their own decisions.
In this country and Canada, popular support for greater equality in parenting post-divorce is widespread. Studies by Sanford Braver at Arizona State University showed respondents much more willing to grant equal or near-equal custody than judges in fact order. In Canada, survey after survey shows support for shared parenting in the mid-to-high 70% range.
But in no country is equal parenting the law. People like the idea, but politicians don’t. And in Australia at least, they rely on some pretty strange ideas to justify their opposition. Most remarkably, the Labor government, in lock step with the anti-dad crowd, believes that existing laws on domestic violence and child abuse are in some way not harsh enough.
The simple fact is that the 2006 amendment clearly restricts the parental rights of anyone found to have committed domestic violence or child abuse. Does any sane person believe for an instant that it wouldn’t? Can anyone possibly pretend that any Australian government would give violent or abusive parents a pass? The idea is absurd, but it is that very idea that’s currently animating Australian politics in the area of family law.
Now, faced with the cold hard facts of the AIFS findings, Labor is now claiming that it’s supported shared parenting all along. Attorney General Robert McClelland, long one of the most vocal advocates of rolling back the meager rights gained for fathers by the 2006 amendments now pretends he’s all for greater access to children by dads.
In his defence, Robert McClelland stated that the Bill has tried to focus on the safety of children as a priority, but he failed to explain how that would be achieved by forcing children into sole-custody households, even when their fathers’ had never and were never likely to engage in abusive behaviour.
The Attorney General was also asked to explain how children would be better off with these amendments that undo Shared Parenting and force children into sole custody households, when up to 80% of all familial child abuse occurs in sole mother households.
We have still to get an answer from him on that one.
That of course is the heart of the matter. A mountain of science shows that children do better when they have continued parenting by both parents post-divorce. It also shows that children prefer shared parenting, not wanting to lose one parent when the two split up. So those opposed to fathers having access to their children have a tough case to make when, ostensibly in the name of protecting children, they support laws that all but guarantee their physical and emotional injury.
But those are facts and, as we see time and again, the anti-dad crowd isn’t interested in those. Whatever the outcome of the current proposed amendment, the fight for children’s rights to a father is far from over. But will the current surge in shared parenting courtesy of the 2006 amendment turn out to be just an idiosyncratic blip in the data on custody, or will it simply be part of a salutary trend?
The politicians will decide.