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  • Shared parenting more a mirage than a breakthrough
  • By Waleed Aly
  • Sydney Morning Herald
  • 02/01/2006 Make a Comment
  • Contributed by: admin ( 61 articles in 2006 )
Shared parenting more a mirage than a breakthrough

Changes to the Family Law Act may not be a victory for fathers' rights groups after all, writes Waleed Aly.

THE Attorney-General, Philip Ruddock, described the recent amendments to family law as the most significant since the overhaul of 1975.

Such pronouncements may be music to the ears of fathers' rights groups which have run an incessant, and often intimidatory, campaign against the Family Law Act. A major grievance has been that the law gives fathers limited time with their children because of inadequate contact arrangements.

And to a degree, the Federal Government has responded. The bill creates a presumption of equal shared parental responsibility, which requires the court to consider children spending equal time with both parents after separation. Most often this means the child would spend alternate weeks with each parent. It was an idea floated as early as 2003 when the Government proposed a presumption, not just of shared parental responsibility, but of shared residence.

This bill takes a more moderate position, instead requiring a court only to consider such an arrangement, but the philosophy is the same.

It sounds like a significant win for fathers' groups, but there are good reasons to suspect it will be little more than a mirage.

For all the promise of a new, shared parenting future, the key discretion remains with the courts. Shared living arrangements will be ordered only if reasonably practicable and the court considers it satisfies the paramount consideration: the child's best interests.

Discretion is an inevitable feature of this area of the law. Family law courts are faced with infinitely varied and complex scenarios that continue to surprise even the most experienced judges. Rigidity in the face of so much variety would lead to injustice. But historically, judges have been reluctant to use this discretion to order equally shared residence. Reported cases where a court has ordered such an arrangement are rare exceptions - often with good reason.

Shared residence usually requires that the child moves weekly between two homes. In early childhood, this is emotionally unsettling and it doesn't get much better as children grow older. Courts have traditionally accepted such instability is not in the child's best interest. The solution is for the child to stay in one home, with the parents moving in and out. But this requires three dwellings, which is well beyond the financial reach of the overwhelming majority of Family Court litigants.

As long as judges have a discretion to be exercised in the best interests of the child - and not the parents - it is difficult to envisage how this judicial aversion to shared living arrangements will change. Certainly, judges will be required to consider them, but this is easily satisfied by raising the possibility and explaining why it should be dismissed because it is not in the child's best interests. Given the problems associated with shared residence, it is unlikely to become a common order.

The new bill is about much more than children's living arrangements. Because of the way the it has been described in the media, there is a real risk it will come as a shock to the fathers' rights groups when any changes to parenting are limited.

Right now, expectations will be dizzyingly high. The fall is likely to be painful.

Waleed Aly is a lawyer and former legal associate to a Family Court judge.

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