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Encouraging Family Court stats reviewed by Policy Advisor

Shared parenting - trends
By Jim Carter, Policy Adviser

The Family Court of Australia has released statistics of shared parenting (equal time) orders made by the Court since the passing of the Family Law Amendment (Shared Responsibility) Act 2006.

The results are encouraging for fathers and their children. 

The extent of the improvement will, however, not be accurately known until comparative information is published by the Family Court for periods before 2006. 


The situation since 2006 for cases litigated in the Family Court for fathers is that 17% of fathers were granted primary care of their child(ren), another 15% of fathers were granted equal parenting time, and another 14% of fathers were granted shared parenting (around 5 days per fortnight).  This gives a total of 46% of all fathers in litigated cases. 

The corresponding figure for all mothers is that 60% of mothers were granted primary care of their child(ren), another 15% of mothers were granted equal parenting time, and another 3% of mothers were granted shared parenting (around 5 days per fortnight).  This gives a total of 78% of all mothers in litigated cases. 
 

It appears from the detailed statistics that Court decisions may be encouraging some mothers to engage in entrenched conflict in order to obtain sole custody, and that some abuse and violence by mothers may be being classified as a mental health problem.

Statistics relating to shared parenting

At the Senate Estimates hearing on 23 February 2009 Senator Fielding asked a representative of the Family Court a number of questions about progress in implementation of the Family Law Amendment (Shared Responsibility) Act 2006, which had mandated a presumption of equal shared parenting and responsibility for children after parental divorce.

Senator Fielding said that he proposed to place questions on notice about the number of equal shared parenting responsibility orders made by consent, the number of equal time orders issued in adjudicated matters, and the number of equal time orders made by consent.

Richard Foster, Chief Executive Officer, Family Court, replied that data in relation to those questions was available now, as the Chief Justice had signed off on these statistics a week ago.  The statistics, however, relate only to the Family Court.

Mr Foster explained that right from the commencement of the 2006 legislation the Chief Justice had decided that the Court would, for the first time, endeavour to keep statistics on the kinds of orders that were being made, with a view to understanding the results that were being obtained by the parties coming to court.  In addition to cases where judges were making a decision, statistics had also been recorded of matters coming to court but in which the parties reached their own agreement without the necessity of a decision from a judge.

Mr Foster said that the collection and analysis of that data has been complex. Parenting orders are not particularly straightforward by their nature and can often involve some complexities, which complicates the recording process.  Thus, it has taken some time for the Court to be in a position to be satisfied that the reports are accurate and meaningful.  That point had now been reached, and an analysis of the 2007-08 shared parental responsibility statistics had accordingly been made available.

There are also some comparative statistics for periods before 2006.  These are not in the same format as those required now to indicate the extent of shared parenting, but they do enable some comparisons between what happened previously and what is happening now.  It is thought that this information, when tabled, will clearly show there has been a significant change in the orders that impact specifically on fathers.

Mr Foster said that much more work in relation to the statistics needs to be done not only for the Family Court but also for the Federal Magistrates Court to get a full set of data.

According to Mr Foster, the number of finalised cases before the Family Court which had been included in the statistics since the new legislation took effect in July 2006 was 1,448.  There are also 2,719 early agreement consent cases.  The details have presumably been collected for about three years. 

The following indicate the distribution of amounts of shared parenting time being granted to fathers in litigated cases and consent cases, respectively.





Number of days (approximate) of parenting time granted to fathers Percentage of parenting time for fathers Percentage of cases falling into category Method of resolution

7.7 to 14.0 days

56-100%

17%

Litigated
7.7 to 14.0 days 56-100% 8% Consent
6.3 to 7.7 days 45-55% 15% Litigated
6.3 to 7.7 days 45-55% 19% Consent
4.2 to 6.3 days 30-45% 14% Litigated
4.2 to 6.3 days 30-45% 11% Consent
1.4 to 4.2 days 10-29% 21% Litigated
1.4 to 4.2 days 10-29% 31% Consent
0 to 1.4 days 1-9% 5% Litigated
0 to 1.4 days 1-9% 8% Consent
Not set

5% Litigated
Not set

7% Consent
Complex

5% Litigated
Complex

3% Consent
Not available

7% Litigated
Not available

4% Consent

Sole care or equal shared parenting time for fathers

6.3-14.00

32%

Litigated
Sole care or equal shared parenting time for fathers 6.3-14.00 27% Consent






To summarise, the Family Court figures for cases litigated in the Family Court over the period 2006-2008 indicate that:

-           17% of fathers were granted primary care of their child(dren)

-           another 15% of fathers were granted equal parenting time, and

-           another 14% of fathers were granted shared parenting (around 5 days per fortnight).

This gives a total of 46% of all fathers.  If a proportion of the categories of Not set, Complex, and Not available (totalling 17%) is added, the total could be considerably higher.

The corresponding figure for all mothers was 78%.


Reasons for the father/mother receiving less than 30% of parenting time

Where the father/mother received less than 30% of parenting time, the main reasons given for the orders were as follows.






Main reason for order Proportion of cases where the father received less than 30% of parenting time (27% of cases) Proportion of cases where the mother received less than 30% of parenting time (9% of cases)
Abuse and/or domestic violence
27%
16%
Childs views
2%
2%
Transport and/or financial
6%
16%
Entrenched conflict
15%
2%
Mental health
3%
31%
Relocation
4%
7%
Substance abuse
5%
7%
Other
36%
20%
Total cases where the father/mother received less than 30% of parenting time
100%
100%






The statistics do not provide information about how much less parenting time was received in those cases.

Entrenched conflict

In litigated cases, fathers were three times as likely as mothers to receive less than 30% of the parenting time with the child.

In 15% of litigated cases where the father received less than 30% of the parenting time with the child, the reason for that decision was given as entrenched conflict between the parents.  By contrast, of cases where the mother received less than 30% of parenting time with the child, only 2% were given as due to entrenched conflict. 

As fathers are three times as likely as mothers to receive less than 30% of the parenting time, this means that the entrenched conflict argument is employed by the courts to the disadvantage of fathers about 20 times more often than it is employed against mothers.

The above numbers suggest that courts may, in effect, be providing encouragement to mothers to engage in entrenched conflict with their ex-partners in order to obtain sole custody of the children. 

Abuse and domestic violence

The proportion of cases where a parent received less than 30% of parenting time because of abuse and domestic violence was 27% in the case of fathers and 16% in the case of mothers.

Mental health

While mental health is given as a reason for granting less than 30% of parenting time in only 3% of litigated cases for fathers, it is given as the reason in no less than 31% of cases for mothers.  This is a very large discrepancy between the sexes.  A similar but opposite discrepancy appears in the statistics for abuse and domestic violence. 

It appears that a significant proportion of abuse and domestic violence on the part of mothers may be being classified by the courts as a mental health problem, while a significant proportion of mental health problems on the part of fathers may be being classified as abuse and domestic violence (man bad, woman mad).

Other reasons

The Other category of reasons in the statistics is very large, and dissection of this category is required.

Questions for further exploration

Questions for further exploration include:
  • The number of court orders that have been made since 2006 granting shared parenting (equal or substantial and significant time) in the Federal Magistrates Court.
  • The number of early consent agreements that have been entered into since 2006 providing for shared parenting (equal or substantial and significant time) in the Federal Magistrates Court.
  • The consent arrangements which have been made by the general divorcing population providing for shared parenting (equal or substantial and significant time). 

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