CHANGES to the Family Law Act, broadly welcomed in their intention to ensure equal shared parenting orders when they were introduced in 2006, are creating unforseen difficulties including emotional trauma for the children of broken families.
A particular aim of the revised laws was to end an era of ambiguity which seemed to favour mothers over fathers in custody orders. Although judges had the discretion to give both parents equal decision-making powers, this was not often reflected in practice. In most cases decisions rested with the resident parent, generally the mother. The new laws embrace a presumption of equal responsibility under which both mother and father have an equal role in decisions such as education and health -- except when violence or abuse can be demonstrated.
The practical repercussions of hostile broken marriages were never envisaged. The 50-50
orders mean young children in particular compartmentalise their lives: one set of friends and sometimes a different day care and extra-curricula interests when they live with one parent; another set when they live with the other. Anecdotal psychological evidence is that children in 50-50 care risk developing higher levels of sadness, anxiety, clinginess and other mental health problems. Ideologically based changes widely believed at the time to have merit have instead, by this application, changed the focus from the best interests of the child to assuaging the self-interests of two adults whose relationship has often developed into bitterness and refusal to communicate.
The Courier-Mail's series this week on legal issues affecting Australian families has chronicled the concerns of lawyers, a former Family Court judge, psychologists and parents when the tug-of-love factor becomes the prevailing influence. Former judge Tim Carmody, SC, who has returned to the private bar after serving the Family Court for five years, said the onus to apply equal shared parenting orders was part of his reason for resigning. The 5 per cent of couples who continued to trial after filing for child custody constituted the most hostile of partnership breakdowns. Yet under the Family Law amendment, judicial orders for these couples must apply a presumption that equal shared responsibility is in the best interests of a child and consequently, a judge must "favourably" consider a further order that a child spend equal time with each parent. Whatever happened to the case-by-case judgments where the focus was on the best interests of the child rather than restricting a judge's options if everything else is equal?
Family law is complex; designed to confront the most complicated of personal relationships. It has evolved since the introduction of no-fault divorce laws in 1975. The most recent changes were well intentioned but shared parenting was never meant to focus on mothers and fathers. In the face of mounting evidence of constraints on common sense and the emergence of unco-operative parenting arrangements, the changes deserve a fresh look designed to ensure the best interests of the child are paramount.
Old habits die hard
SWEEPING new laws come into effect on January 1 which will bring new openness and accountability to the operations of the Guardianship and Administration Tribunal. The changes are designed to lift community confidence and enhance the quality of decision-making. But despite this very clear expression of government intent, the tribunal this week prohibited The Courier-Mail from reporting on a hearing involving an elderly man whose affairs had been taken over by state authorities. The man had himself invited the newspaper to be in attendance to report his plight.
Old habits do indeed die hard.
Responsibility for election comment is taken by David Fagan, 41 Campbell St, Bowen Hills, Qld 4006. Printed and published by Queensland Newspapers Pty. Ltd. (ACN 009 661 778)A full list of our editors, with contact details, is available at news.com.au/couriermail/ourstaff.
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