Children suffer when law splits parenting equally
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November 10, 2008 12:00am
KATE can recall the moment she heard a Family Court judgment forcing her daughter Mia, 6, to spend equal time with each of her estranged parents.
"My initial thought was, 'They'll realise (50-50 parenting orders) are a mistake in about 10 years time – and that they've screwed up a generation," says Kate, who real name and that of her daughter have been changed to protect their identity.
"There are cases where Mia has said to me, 'I live with you or I live with Dad, but I don't have a home'. That's really saddening.
"I've seen her compartmentalising her life. And I worry about that. Will these kids have romantic relationships where they can settle down in one life?
"I wonder how they will ever go about making relationships for themselves that are permanent."
After spending a week with one parent, Mia, now 8, will be dropped at school on Friday morning. When she emerges from the grounds in the afternoon, the opposing parent will be there to pick her up. And so the weekly cycle turns; holidays also are split in half.
"Opposing" is an apt characterisation. Mia's mother and father – who live within 30 minutes' drive of each other in southeast Queensland – do not speak to each other, says Kate.
Against such a backdrop, she is confounded by how a court, with their child's "best interests" supposedly paramount, could impose a co-operative parenting arrangement.
"It's impossible (for the order to work)," says Kate, "because we don't have communication between the two parents. There is no co-operation."
The Family Law Amendment (Shared Parental Responsibility) Act of 2006 ushered the most sweeping innovation to family law since the passage of no-fault divorce in 1975. In child custody battles, a Family Court judge or federal magistrate must now "presume" that it is in the best interests of the child for the child's parents to have "equal shared parental responsibility."
The primary exception to the rule is where there are reasonable grounds to indicate a history of family violence or child abuse.
Shared responsibility creates obligations towards joint decision-making.
For major long-term issues, such as education and health, parents are legally bound to consult in a genuine effort to reach agreement. Financial and other penalties for non-compliance may arise.
While equal parental time is not automatic, an equal shared responsibility order requires the court to also "consider" instituting 50-50 time, or, where that would not be "reasonably practicable", consider an order of "substantial and significant time" for each parent.
However, Queensland Law Society family law chairman Julie Harrington says that even in a typical substantial time order – where children may spend five nights every fortnight with their father – serious tensions may emerge.
"I have (such a) client and the picture he draws of how that family functions is really quite sad because he takes the child to gym, mum won't.
"He takes the child to piano, mum won't.
"He says, '(My ex-wife) keeps saying to me our daughter can have one life in your household and another life in my household'. The child's got this sort of split personality thing happening."
Harrington says that by and large it is not the judicial officers making the orders who are at fault – but the mandated "presumption" of shared responsibility from which they must take their cue.
Legal Aid Queensland's Brisbane family law head Jennifer McArdle notes the imperative of that presumption is even leading to some 50-50 residential orders being imposed despite the risk of harm.
These are usually cases where litigants or their lawyers do not supply adequate information to support allegations of domestic violence or child abuse, and the court has no choice but to "apply the law."
For Kate, the gulf between deeply-divided former spouses and pragmatic co-parenting is immeasurable.
When little Mia falls ill while in the care of her dad, her mother is not informed.
Recently, Kate missed attending a parent-teacher meeting for Mia that occurred in the week she was with her father.
"(My ex-husband) and his girlfriend went," she says. "I didn't find out about it until after it happened."
And when Mia wished to start weekly tennis lessons, her dad said no – "because it didn't fit with his schedule", says Kate.
She thinks the real reason is more insidious.
"It's about him and me. And it's about control," she says, concerned about the potential of such power plays to turn their daughter into a pawn.
"Because her dad doesn't want to take her, I have actually arranged for her to do tennis every second week. But she loses the ability to get really into it as she's not going often enough."
She says that so far, she and her ex have not had to face together any comprehensive decisions as stipulated by the law. However, she dreads the day, especially when their only contact is by sporadic email.
"What happens, if, God forbid, Mia gets into drugs or alcohol and she needs help and extra parenting?" Kate asks."What happens then?"
She says the most persistent sore for Mia is the short-circuiting of friendship ties.
"When she comes home on a Friday, she's out in the street re-establishing her connections with the kids in the neighbourhood every single week.
"Quite often, she's over-bossy, just trying to get herself back in with the group. She knows she's only got a limited amount of time.
"Occasionally, you'll get one kid who doesn't talk to her because he hasn't seen her for a week. So she comes back crying."
Recent research by Melbourne child psychologist Jennifer McIntosh, and funded by the federal Attorney General's Department and the Family Court, offers a rare snapshot into post-2006 shared parenting.
The landscape is grim. "In unresolved high levels of conflict," she says, "where children are toing and froing between houses and there is no emotional bridge between the houses, this seems to be taking quite a toll. It's created an enormous conundrum for children."
She says the fundamental paradox with laws encouraging mutual parenting responsibility is the contrariness of the couples who seek judicial determination of their child custody wrestle.
"The legislation is written about parents who can do (equal time parenting)," she says, "and it's applied to parents who can't."
In one of her studies, a Family Court sample involving 77 parents and 111 children, almost half the children left court in a substantially shared-care arrangement (five nights or more a fortnight with each parent).
Four months later, 73 per cent of shared-care parents reported "almost never" co-operating with each other.
Yet even when the law operates only in spirit, as in cases mediated out of court, equal time care may be no more successful for strained former couples.
In a second probe by Dr McIntosh, of 119 high-conflict families whose parenting disputes were mediated, 28 per cent went into substantial shared care.
A year later, three-quarters of those arrangements had collapsed.
McIntosh says substantial or equal-shared care can succeed where "self-selected" by mature, child-focused couples.
"But you need two sets of everything, co-operation, geographic proximity, family friendly work practices and people to be financially comfortable. On top of that, you need the emotional equipment for it.
"When you actually look at what it takes to make it work, it's phenomenal."
She reserves her greatest concern for children under three.
"We're seeing increasing numbers of developmentally inappropriate arrangements going ahead on the strength of the legislation," she says.
"Two-year-olds (should not be having) shared overnight care at more than, say, one night a week.
"At that age, relationship-dependent growth is going on. Children can end up without the capacity to be securely attached to either parent."
McIntosh believes some fathers are undoubtedly pursuing their "right" to parity of time under the new laws, ahead of their children's best interests.
She says her data indicates children from broken families are happiest where parenting time is not substantially shared.
"(Such children) are in less than 35-65 arrangements," she says. "They have a principal place of residence, predictability, stability, routine and have the active support of a parent who they're not living with."
But McIntosh says the primary carer could just as effectively be a father.
"Often it is the mother – that is the reality," she says. "It's not a gendered issue. There's nothing to rule out that person being the father."
Former Queensland Family Court judge Tim Carmody, SC, says the obligation to jointly and co-operatively parent is "pre-ordained" under the equal shared responsibility laws.
"But stop signs don't actually stop cars – people do," he says. "Likewise, family laws with good sentiments don't make people do the right thing.
"The 5 per cent of (litigating) couples who end up in a family court trial have got personality problems or they're into war. Some dislike each other more than they love their kids.
"Fifty-fifty should be where you arrive at, not where you start. It doesn't make any sense to me."
Carmody says even the healthiest of marriages are rarely underscored by truly equitable parenting.
"One of the partners is generally always doing more," he says.
Kate wholeheartedly agrees.
While her ex-husband successfully fought for 50-50 time, she had argued to be Mia's primary carer on nine-nights-a-fortnight basis.
"In every single family I know, there's usually a captain at the wheel," she says.
"One parent or the other does more than 50 per cent of the parenting and, in most cases, it's the female. That's just the way it is.
"So in 50-50, they're not allowing that natural system to work. What they're actually creating is an unreal world."
Matthew Fynes-Clinton: fclintonm@qnp.newsltd.com.au
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