- Angela Shanahan From: The Australian February 06, 2010 12:00AM
The reaction is puzzling since it goes against a supposed feminist notion of equality: that fathers and mothers have equal responsibilities and roles in their children's upbringing.
This story has been building for almost a year and, depending on what you read, shared parenting is (according to this newspaper) "on the way out" or to be "rolled back" or "brings little change". According to The Sydney Morning Herald: "Shared care failed children."
Adding fuel to this is a report by Richard Chisholm and a psychologist, Jennifer McIntosh, that concludes the reforms of 2006 have not benefited children, especially in acrimonious situations, which one might have thought was obvious.
Since only 16 per cent of parents practise shared parenting – and, according to the Australian Institute of Family Studies, most arrangements work well – one wonders what Chisholm is talking about. To work well, they must be non-acrimonious.
But there is more. According to Chisholm many parents – read mothers who still are the main carers of children post-separation – are being "coerced" into shared arrangements by fear, and by a presumption on the part of the father that shared parenting equals 50-50 shared time.
According to Chisholm, an unacceptable number of children in court-mandated shared care are exposed to unnecessary levels of acrimony and possible violence.
However the legislation is clear that where shared care has been ordered by a court, the presumption of shared care is dependent on there being no violence; putting a child into a possibly violent situation contradicts the law. So what is all this about about?
Shared care and domestic violence are separate issues. Children should not be exposed at any level. But there is definitely a risk of violence to children due to family breakdown and not simply from the father, but from the mother and other males.
None of this bothers those who want the 2006 reforms abolished. For them mothers must have autonomy even at the expense of a child's relationship with its father. They see a way to this amid Labor's ascendancy. Single-mothers' groups such as the National Council for Children Post-Separation, backed by feminists and some journalists, have deliberately muddled the two issues of violence and shared care.
Chisholm recommends extensive dismantling of the 2006 reforms. In doing so, he seems to have exceeded his terms of reference, which were strictly limited to inquiring into matters before the federal Family Court in which issues of family violence arise.
According to Richard Egan of Family Voice Australia, "Chisholm proposes radical changes that could profoundly affect all separating couples with children, not just those where family violence is an issue. The report proposes removing the qualifiers `equal' and `shared' from the key provision introduced by the 2006 reforms. These provisions affirm as a fundamental presumption of family law `that it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child'.
"Chisholm's recommendation would see this key provision reduced to the meaningless statement that both parents are presumed to have `parental responsibility', but not necessarily in equal measure."
As for 50-50 time, Attorney-General Robert McClelland has repeated Chisholm's claim that it is an erroneous concept in practice. ". . . Regrettably, there have been instances where people have resolved cases, settled cases, on the assumption that the law intends an equal split of time."
But the law does require the courts, when proposing to make orders for equal responsibility, to consider making an order to provide for the child to spend equal time with each of the parents, if this is considered to be practicable and in the child's best interests.
The AIFS reports that of those children whose parents separated between July 2006 and September 2008, one in three never stay overnight with their father and one in nine never see their father. That is an improvement on the situation prior to 2006.
Before 2006 there was a de facto presumption in favour of an "80:20 outcome" in which, usually, the mother was given care of the child for most of the time with the father being given care of the child for every second weekend and half of school holidays.
Chisholm's recommendations would only increase the incidence of practical fatherlessness already being experienced by too many Australian children, by depriving the court of any guidance favouring equal shared responsibility.
One suspects the claim some children in shared arrangements are unnecessarily exposed to domestic violence due to mothers being afraid to speak up is a sham to cover the number of false claims of such violence, which interestingly have dropped since 2006.
McClelland has said the catalyst for the Chisholm report was the death of little Darcey Freeman last year, allegedly at the hands of her father. According to this newspaper, her mother was intimidated into surrendering her.
Curiously the intimation is that only fathers who intimidate pose a risk. They don't. When Gabriela Garcia jumped off the same Melbourne bridge with her baby later last year, no one began an inquiry.
These deaths are tragedies, the product of despair and madness, not a catalyst for gender wars.
If we want to fix child abuse that is another issue. Mothers are more commonly perpetrators of child deaths than fathers, and boyfriends are six times more likely to be perpetrators of physical and sexual violence than biological fathers.
As Patrick Parkinson, a principal author of the reforms, has said, "In the past 30 years, we have sown the wind in the revolution in attitudes to sex, procreation and marriage. We are now reaping the whirlwind. The societal problems which this has caused are problems that no law can resolve." Family breakdown contributes to child abuse; shared care does not.
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