Children and Divorce

In 2006 there were major changes to the laws concerning child custody in Australia. The aim of the reforms was to bring about generational change in family law and the cultural shift in the management of parental separation away from litigation and towards co-operative parenting.

The Government set up 65 Family Relationship Centres around Australia to help people reach co-operative parenting solutions without ever needing to go to court. Family Lawyers, observed was that there was a significant level of misunderstanding in the community about the changes in the law brought about by the 2006 reforms. Many people thought that the law now required that children spend equal time with each parent after separation, or at least adopted that position as the starting point. It does not.

The widespread nature of that misunderstanding has had a number of effects. It has led to agreements being reached between parties where one or both feel that they have “no choice” but to agree to equal time.

While agreed arrangements for children are a good thing, that agreement should be based on a proper understanding of the law and what is best for children. There has been concern that many arrangements reached since 2006, are not in fact delivering best results for the children involved.

The Australian Institute of Family Studies (AIFS), the Family Law Council, and the Attorney-General’s Department have all issued reports dealing with these subjects.

The AIFS report was compiled over three years. Data was collected from 28,000 people involved or potentially involved in the family law system, including parents, grandparents, lawyers, counselors and judges. Their findings make interesting reading:

62% of parents reported having a friendly and co-operative relationship with the other parent, 19% a distant relationship, 14% a highly conflicted relationship, and 5% a fearful relationship (7% of mothers and 3% of fathers).
About two-thirds of separated mothers and about half of fathers reported that the other parent had emotionally abused them prior to or during separation.
One in four mothers and around one in six fathers reported that the other parent had hurt them physically prior to separation.
About one in five parents reported safety concerns associated with ongoing contact with the child’s other parent.
Around half of mothers and around one-third of fathers said that mental health problems, the mis-use of alcohol or drugs, or gambling or other addictions were apparent before the separation.
Although only a minority of children had shared care-time, the proportion of children with these arrangements has increased.
The majority of parents with shared care-time arrangements thought that the arrangements were working well for both the parents and the child.

AIFS concluded that overall the law changes have had a positive impact in some areas and less positive in others.

Professor Richard Chisholm, a former judge of the Family Court and renowned expert in family law, was engaged by the Government to assess whether the law and current procedures are “best practice” when it comes to dealing with relationship violence, and whether appropriate support is provided for families who have experienced violence.

He recommended that judges dealing with these cases need to have an understanding of family law and a desire to work in that area, and to be particularly sensitive to the requirements of cases involving family violence. He recommended changing the law to provide a more coherent code of the things that courts should take into account in determining what is the in the best interests of children and what parenting orders to make. He recommended changes to the law which would stress the importance of safety and freedom from violence as being a primary aim.

The Family Law Council, which is a statutory body set up under the Family Law Act to advise the Government on such issues, made similar recommendations.

Prior to 2006 the most common post-separation parenting arrangement involved children living primarily with their mother, and spending alternate weekends and half of school holidays with their father.

Over time that “typical” arrangement changed. It became more common for the non-custodial parent to have some form of structured contact with the children in the intervening week. The duration of the typical alternate weekend expanded from a starting point of Saturday morning to Sunday afternoon, to include in many cases either Friday evening or Sunday evening or sometimes both. Since the reforms a more typical agreed arrangement sees the children living with one parent (generally the mother) for about 9 days in each fortnight, and with the other parent for about five days in each fortnight. School holidays generally continue to be shared equally.

Since 2006 the courts are generally expanding the time that the non-custodial parent spends with the children, but they are not imposing equal time or even substantial time in cases where it would be inappropriate to do so.

Changes in society have meant that the law and lawyers have had to deal with the disappearance of the traditional “nuclear” family and also with the advent of same-sex parenting, non-parent carers, surrogacy, and single parent families where the children have been created through sperm donorship.

To make the law fit the needs of society is an on-going challenge. We can expect more changes to the law in this area over the next 12 months (but probably not before the Federal election).

Denis Farrar
Director