Shared care system under family law spotlight
Australian Broadcasting Corporation
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
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
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.
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
"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
"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
"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
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
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
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
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
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
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?
PROF. ALASTAIR NICHOLSON: Absolutely, yes.
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
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
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
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.