Shared care system under family law spotlight

Australian Broadcasting Corporation

Broadcast: 27/08/2009

Reporter: Ticky Fullerton

The Attorney-General has announced two inquiries into how Australia's family laws are operating, with a particular focus on protecting children from violence. As Lateline reveals tonight, research commissioned by Robert McClelland suggests children involved in separations featuring serious conflict are not doing well under the previous government's shared care system.


LEIGH SALES, PRESENTER: Three years ago the Howard government rewrote Australia's family laws.

The reforms championed shared care for children in separated families based on the idea that most were better off spending as much time with each parent as possible.

But is that correct?

The Attorney-General's announced two inquiries into how the laws are operating, with particular focus on protecting children from violence.

And as Lateline reveals tonight, research commissioned by the Attorney-General suggests children involved in separations featuring serious conflict aren't doing well under shared care.

Ticky Fullerton reports.

TICKY FULLERTON, REPORTER: Who would be a family court judge?

HON. DIANA BRYANT, CHIEF JUSTICE FAMILY COURT: Very good question! People who care about children and who take their job seriously and I know that everyone gets a lot of criticism and it's a difficult job and you do it under pressure. And when something, occasionally terrible happens to a child I can assure you and everybody that everybody feels it very much.

VICTORIAN OFFICIAL: A male in that vehicle has taken a young girl, we believe to be four years of age, and dropped her over the bridge and she's landed in the water here at the bottom.

TICKY FULLERTON: The parents of the little girl Darcey Freeman never got to court over their custody arrangements. But the Westgate Bridge tragedy in January this year reached Canberra and helped trigger a federal enquiry.

Last month, a nation-wide rally by women's groups claimed the law has swung too much in favour of fathers ahead of the rights of the child.

According to men's groups, the 2006 legislation puts the child's rights first. Does it?

PROF. ALASTAIR NICHOLSON, UNIVERSITY OF MELBOURNE: No I don't believe it does. In fact, I think it's done the opposite.

TICKY FULLERTON: The 2006 shared parenting laws require that judge's apply a presumption of shared parental responsibility, except where violence or abuse is an issue. What's more, the court is obliged to consider parents also share equal time with their children if at all possible.

The shared parenting laws have powerful critics. Among them, Alastair Nicholson, who spent 16 years as chief justice of the Family Court.

PROF. ALASTAIR NICHOLSON: I think the problem with it is it treats children as objects rather than as people. What it's really saying is not much about the desires, the needs, the interests of the child. What it is talking about is the desires, the needs, the interests of the parents.

TICKY FULLERTON: Tim Carmody is a former Family Court judge.

TIM CARMODY QC, FORMER FAMILY COURT JUDGE: The best interests of the children became something different under the legislation because it started from the assumed fact, in most cases, that the more time children spend with both parents the better. That should have been a conclusion, not a beginning.

TICKY FULLERTON: Last year, 15 per cent of litigated cases and almost 20 per cent of settled cases awarded 50/50 equal time. Many more agreed to shared care at some level.

PROF. ALASTAIR NICHOLSON: I think it raised the expectation of fathers considerably and I think it also created an expectation amongst mothers that they should agree to equal sharing.

TICKY FULLERTON: The big winners have been dads. One of the first cases under the new laws was "Dave" - not his real name. Separated in 2004, he agreed to some shared care of his two daughters.

But in 2006 the mother wanted to move to the bush with the girls. The Family Court ruled in favour of Dave.

"DAVE", SINGLE PARENT: I think it's worked really well. If the - particularly my situation, had they been living 400 kilometres away in the country I certainly wouldn't have the relationship with them that I have. And I honestly think I have a proper parental relationship with my children rather than a person they see once a month, or whatever the outcome may well have been.

TICKY FULLERTON: For Dave the new laws made all the difference.

"DAVE": We got told some time leading up to that, I can't remember ... it was in June or so. But the change of legislation was coming and that it would certainly increase my chances of receiving a favourable outcome.

TICKY FULLERTON: Intense lobbying from fathers' groups helped deliver the new parenting laws. Desperate fathers shut out from their children's lives, some driven to suicide.

MICHAEL GREEN QC, PRESIDENT, SHARED PARENTING COUNCIL: It was harmful to the relationship between the children and their father because it was based on too little time, and too little meaningful time.

PROF. ALASTAIR NICHOLSON: There's no doubt that they got the ear of the then prime minister John Howard.

JOHN HOWARD: Far too many young boys are growing up without proper male role models, Mr Speaker.

TICKY FULLERTON: The new laws deal with all separations, not just the oft-quoted estimate of 5 per cent that end up in court. Many are amicable splits. The Government requires that families make a genuine effort to settle disputes.

PROF. PATRICK PARKINSON, UNIVERSITY OF SYDNEY: They wanted to send a message to the whole community that kids need both parents and they should at least look at the options for sharing parenting in some way or other. Not necessarily equal time, but involving both parents in children's lives.

TICKY FULLERTON: Shared care obviously has worked for you. Has it worked for the kids do you think?

"DAVE": Yes, I certainly think so. They love their time with me, they love their time with their mother. We get to - I get to see them during the week so that we can do school stuff and also have them on weekends and do fun stuff, kind of, the weekend stuff.

TICKY FULLERTON: Dave is on good terms with his ex. But the application of shared care to high conflict families, including most of those that end up in court, has caused concern in the highest circles.

HON. DIANA BRYANT: I made it clear right from the start that it is unlikely that this kind of wish - that parties would have joint arrangements if they're in the interests of the children, would not be the sort of cases that would be coming before the Family Court. Most of the cases we see are quite dysfunctional families.

"JULIA", SINGLE MOTHER: And he started to smoke marijuana again and he took my son in the car while he was under the influence of drugs. And when I approached him about that - that was when the behaviour really started to escalate.

TICKY FULLERTON: This woman, who we'll call Julia, is by no means at the extreme end of high-conflict cases. She says life became untenable shortly after she had a baby.

"JULIA": He dragged me by the hair into the garden because I hadn't put the correct colour pegs on the clothesline. And that escalated to the point where he sexually assaulted me over a period of about three or four months prior to leaving. When that happened, that first time it happened I realised I actually didn't know how far he was going to go.

TICKY FULLERTON: Julia decided to run away with the boy, back to the UK where she had family support. International laws forced their return to the Family Court four months later. Julia says the judge didn't believe her claims about violence.

"JULIA": The judge said to me at the interim orders that I had every reason to lie because I'd taken my son overseas and I was seeking sole custody to relocate to the UK.

TICKY FULLERTON: Four weeks before the final hearing, Julia says she was assaulted in front of her son during handover.

How serious was the assault in he was holding your son?

"JULIA": He attacked my chest, grabbed my shirt, threw me across the floor - about four metres across the floor - and preceded to kneel on my chest with one knee while holding my son on his hip, and grabbed my head with his other hand and was banging my head on the floor.

TICKY FULLERTON: Julia contacted the police but he police report was inconclusive. The father said she attacked him.

What did the judge finally award in his orders?

"JULIA": 50/50 shared care.

TICKY FULLERTON: "Lateline' has read the judgement in Julia's case but we haven't spoken to other side, so this is Julia's story. She says her son does enjoy spending time with his dad but she's worried about the five-year-olds exposure to their ongoing violence - and here she's back by new Australian research.

In a study commissioned by the Attorney-General's office, Dr Jennifer McIntosh has been looking at children's development in 130 high-conflict families, some of whom went to court.

The study is small but its data has been running for four years.

DR JENNIFER MCINTOSH, DIRECTOR, FAMILY TRANSITIONS: According to both mothers and fathers, children who have been in shared care arrangements over three and four years are showing much higher rates of hyper-activity and problems with attention and focus.

"JULIA": He's suffered a lot of anxiety and behavioural problems, which escalated when the 50/50 shared care came about. And at that time his behaviour was reported to DOCS and on top of the behaviour that anxiety has also resulted in some medical problems for him.

TICKY FULLERTON: Again the new study reflects Julia's story. The most effected children were subject to rigid court orders for shared care.

DR JENNIFER MCINTOSH: Now to be clear, the children in rigid arrangements that tended to be court ordered weren't doing very well four years ago. However, what we've been able to demonstrate is that the care arrangement hasn't helped. In fact, these children have become more distressed over time.

TICKY FULLERTON: This study does not look at the thousands of straightforward separations where mediation ensures flexible shared care that may work for children.

HON. DIANA BRYANT: Children have very different needs at different ages and stages and I think that's pretty important. Fortunately, I think the people who are doing mediation and the family relationship centres have a reasonable understanding of that sort of research.

TICKY FULLERTON: It's the high-conflict cases causing alarm. Tim Carmody spent two years as a Family Court judge under the new laws and found his discretion cut back by the presumption of shared care.

TIM CARMODY QC: What the 2006 reforms did was make a grey area which was hard enough, into black and white. It was trying to make motherhood sentiments into legally enforceable rules and codify the behaviour of parents.

TICKY FULLERTON: Mr Carmody resigned as a judge in 2008, and is now back at the bar.

TIM CARMODY QC: I can't deny that I found it difficult as a judge to apply the law, which is a judge's job, when to me it had so many deficits and the government or the Parliament wasn't really looking at its deficiencies.

TICKY FULLERTON: Pressure for change has been building from women's groups and in the print media with tales of what appear to be harsh rulings against mothers. Some of the worst involve relocation of children.

HON. DIANA BRYANT: They're all over the world.

PROF. PATRICK PARKINSON: They're the San Andreas Fault of family law.

TICKY FULLERTON: In one case, a mother was left little choice but to stay in a remote mining town in a caravan, or lose care of her daughter, despite her family support base being Sydney. She argued that the family had only moved there for the father's work a short time before separation, but the magistrate was convinced this was the only way for the child to have a meaningful relationship with the father.

Alastair Nicholson believes a presumption of shared care in relocation cases has made life even more difficult.

PROF. ALASTAIR NICHOLSON: It leads, I think, to a situation where a person can be unhappily, usually a woman can be unhappily held in a remote sort of town with no supports.

TICKY FULLERTON: Media reports like the Mount Isa case have angered some academics and fathers' groups.

PROF. PATRICK PARKINSON: There's been a lot of misreporting in the media recently. There's been a lot of dishonest journalism. There might be 10,000 cases of which five you'd say "Well, I wouldn't have done that" or "that's shocking".

But what about the rest?

MICHAEL GREEN QC: My concern with the stories is that most often it gives us only a disappointed or a very concerned mother's view, not the father's view, and more seriously, not the objective judgment of the magistrate or the judge who heard all the evidence and then made a decision, the decision which is now being criticised.

TICKY FULLERTON: The former Chief Justice disagrees. He not only believes the media reports reflect a disturbing trend, but that the laws now put children at risk.

PROF. ALASTAIR NICHOLSON: Well, I think there's a risk that violence may be overlooked in the quest for shared-parenting responsibility. I think that's one of the problems about the legislation, yes.

TICKY FULLERTON: That's a very serious situation?


MICHAEL GREEN QC: One of the most scurrilous things levelled against our judicial figures is that they are deliberately placing children in situations of violence or situations that are dangerous.

TICKY FULLERTON: There are degrees of violence. Once-off anger versus controlling violence, a harsh word versus an axe. But there's clearly criticism over interim orders on shared parenting.

PROF. ALASTAIR NICHOLSON: The case is really decided on the papers and I think there's a tendency there not to ignore violence, but to be a little sceptical about it, particularly if there's no history or background that suggests the substance to it, such as Magistrates Court orders and so on.

TICKY FULLERTON: The least understood part of the shared parenting laws are the high conflict cases that never reach a courtroom. Deals done between lawyers for mother and father in the shadow of the court. Families like Darcey Freeman's.

TIM BARNES, DARCEY FREEMAN'S UNCLE: We feel the judicial system has failed our family and we'll continue to fail other families until someone in authority starts to take action.

TICKY FULLERTON: What did they mean by this?

HON. DIANA BRYANT: I have no idea what they meant by that. This was not a decision by a judge reached after a hearing. These parties reached their own agreement about what the order should be.

It may be that people are concerned to seek draconian orders if you like, for fear that they might be thought of as being difficult access parents. I don't know, I'm speculating. I guess we may ultimately find out, or we may not. I'm hopeful that Professor Chisolm's inquiry might illicit a bit more information.

TICKY FULLERTON: The most controversial finding tonight is the research in high-conflict families that questions a cornerstone of the shared parenting laws: more time for fathers with their kids.

MICHAEL GREEN QC: It follows, as night follows day, that time is required for a good relationship. You can't do it in a weekend every fortnight.

DR JENNIFER MCINTOSH: We found that there isn't in this group, a linear relationship between how much time children were spending with their fathers and the quality of that relationship according to the children. In fact, the thing that predicted good relationship with father four years down the track wasn't time, it was a good relationship four years ago.

HON. DIANA BRYANT: I think that it's quality of the relationship that's important, not the quantity and one of the unfortunate effects, I think, of the 2006 legislation has been that it's focused people very much on time. You know, they want equal time and it's taken the focus away, I think from what's best for the child.

TICKY FULLERTON: Fathers' groups and womens' groups both claim the high ground on research to back their cause, but if Dr McIntosh's research is replicated in bigger numbers it will be potent ammunition for those seeking change.

Expect resistance, though, from those who worked so hard for the shared parenting laws.

MICHAEL GREEN QC: We'd lose again, a whole generation of separated children, in terms of their really healthy relationships with not only their fathers but their mothers too, and I know that separated groups, fathers' groups in particular, shared parenting groups can conjure up over a million votes and that's something that I think the Government will take into account.

TICKY FULLERTON: Are you going to go back to court?

"JULIA": Not until the laws have changed.

TICKY FULLERTON: Share parenting laws has worked out very differently for Julia and Dave. Can it really cater for the overwhelming number of easy separations and also keep children safe in high conflict? Should it be pushing shared care, or returning more power to judges? The Government will need the wisdom of Solomon to get the balance right. The many inquiries and investigations report within 12 months.




Commentary by the Ottawa Mens Centre


Feminists were used to having total control and absolute power in family court which was significantly reduced with the presumption of equal parenting.

The assertions that "its not working" are ludicrous because the feminists simply use rare examples of where perhaps, women have a story of injustice, those stories were generally disagreements with a judges decision, sour grapes, without any presentation of the reasons for the judges decision or hearing from the father.


Just as many men could be found who would also claim to be victims of decisions that did not go their way.

The problem with this story is that it lacks objectivity.  What is disturbing is that we have judges with a well known dislike of fathers making comments. The judges are the ones who engaged in a war on men and who left millions of children to grow up in dysfunctional parenting arrangements. They simply want it back the way it was, so they can exercise their own fundamentally flawed abusive concepts of gender apartheid.