Shared parenting after relationship breakdown is not in the best interests of children Discuss.

This paper will put forward that when parents cooperate shared parenting is indisputably in the best interests of children after relationship breakdown, however this is subject to many factors which often coalesce to sustain the alternative argument. This paper will demonstrate why shared parenting is in the best interests of the child when parents cooperate, initially by explaining the effects of the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) (hereafter ‘SPA’), and then defining the subject area of this paper. The behaviour of post-separation parenting will then be examined to demonstrate why shared parenting is not always in the best interests of children. In support, this will be followed by a consideration of the influence which ongoing parental conflict post-separation has on children, as compared to the psychological effects and child adaptability to parental separation itself. Firstly, a look to the substance of the current legislation.

The rationale of the amendments; all very good in theory

(A) The introduction of the SPA

The key public policy concern behind the introduction of the legislative reforms to Part VII of the Family Law Act 1975 (Cth) (hereafter ‘FLA’) via the introduction of the SPA continues to be how to cultivate the continuing care and support of children following parental separation. S 60B (2) of the FLA highlights that two of the principle objectives behind the amendments introducing a presumption of shared parenting are that;

“children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and that parents jointly share duties and responsibilities concerning the care, welfare and development of their children.”

What exactly is “equal shared parental responsibility”?

With the introduction of the SPA there is now a legal presumption in the making of parenting orders where parents have separated and can not agree on arrangements for their child that it is in the best interests of the child to have “equal shared parental responsibility” so far that it is reasonably practical. ‘Parental responsibility’ is defined by s 61B of the Act as;

“in relation to a child, means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.”

S 61C provides that each parent has parental responsibility for that child subject to court orders, which means that the court can limit the extent of parental responsibility that a parent has. A parent will only be given as much parental responsibility as is appropriate for that child.

Where there is a presumption of shared parental responsibility, it does not necessarily mean that there is a presumption of equal shared parenting time. “Substantial and significant time” will suffice given it satisfies a number of provisions as stated in s 65DAA(a)(b)(c) of the FLA including that the time the child spends with both parents falls on both weekdays and weekends and holiday time (given that this is reasonably practical, and in the best interests of the child), and that it allows each parent to be involved in the child’s daily routine. Such a presumption is of course rebuttable if there is a history family violence or abuse, or such arrangements are not in the best interests of the child. Indeed, preliminary data has shown that in most cases that come before the Family Court of Australia and proceed to judgement, equal shared parental responsibility is not ordered, thus the Court is not required to go on and consider equal or substantial and significant time. For discussion purposes for this paper and to ensure clarity, “shared parenting” when referred to will be considered as equal time shared parenting, i.e. a 50:50 time share arrangement.

It is important to distinguish ‘shared parenting’ as opposed to ‘traditional parenting’ time arrangements which involve the children spending alternate weekends and approximately half school holidays with the non-resident parent. This is often referred to as the '80:20 rule' in which mothers have children in their care for 80% of the time after separation while fathers do so for only 20% of the time, Figure 1 below describes that this accounts for 33% of children along with other common time share arrangements for their children as of 2003.

Figure 1: Patterns of post-separation parenting in Australia

A significant number of children (29%) see their non-resident parent less than once a year (if ever), 23% see the non-resident parent fortnightly, and a further 18% only see them once every 3-12 months; such minimal interaction with the non-resident parent are what the SPA amendments are working to alter. The changes were brought about largely by the dissatisfaction of non-resident fathers with the amount of meaningful involvement they were having in their child’s lives after separation, and is set on a background Australian empirical evidence which suggests that after separation, only 6% of children at most, spend at least 30% of nights per year with their father. Of course there are may be practical reasons for this such as that weekends are the most convenient time for the children to be with the fathers due to work commitments, however 75% of non-resident fathers and 40% of non-resident mothers would like to have more father and child interaction occurring.

It is important to note that there are some practical factors which are more conducive to the smooth operation of shared care arrangements for it to operate in the best interests of the child as provided by some parents who have chosen 50/50 care for their children. Qualities such as work flexibility, a degree of financial independence of both parents, geographical proximity, and most importantly a co-operative co-parenting style are required, along with an ability and maturity on the parents behalf to willing and able to openly communicate with the other parent on matters concerning the child. It has been demonstrated that ...

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Determining the “best interests of children”

Any decision which is made in light of a child, must be made in the best interests of the child. The determination of these interests is now specified by considerations specified in s 60CC(2)(3) and requires (among other things) the court to gauge the attitude of the parent toward the child and the responsibilities of parenthood, the capacity of each parent to provide for the child’s needs.

The court will not make orders which require the involvement of both parents in a child’s life where it is not, on the balance of all relevant factors under s 60CC(2)(3) , in the child’s best interest. In Pagden v Pagden Rowland J refused to make orders for shared custody stating that “there remains the deficit in mutual trust, cooperation and good communications which appear to be desirable elements in a shared custody scheme.”, with Turkat noting that many separated couples are simply not able to cooperate in ways intended by the courts. As in the case of DL v TA [2006] FMCAFAM 128 Sexton FM found that an inability of the parents to communicate, cooperate or compromise meant that criteria was not met for the awarding of an equal shared parenting arrangement. As Parkinson admits, in an individual case the evidence may indicate that the child will not in fact benefit from such a relationship with both parents, or that such a relationship even if it is desirable is incapable of realisation in the circumstances of the case, largely due to the un-cooperative behaviour of un- parents.

As Turkat assiduously observes, regardless of the assumptions and public policy motives underlying legislative and judicial awards of shared parenting arrangements “the fact remains that parents who have been ordered to share parenting but engage in behaviour that is harmful to such arrangements are not acting in their offspring’s best interest”. The behaviour of parents after relationship breakdown will now be considered, in order to form a general opinion about wether shared parenting is in the best interests of the child.

Theory vs. reality; the practical inadequacies of ‘shared parenting’

(A) The behaviour of parents after relationship breakdown

Obviously when parents separate, new parental roles need to be formed. Whilst some couples are able to enter into mutual co-parental relationships, some parents disconnect from both their partners and children, whilst other separated couples remain in perpetual conflict over their children. A position statement prepared for the Australian Psychological Society states that separation affects the couples parenting relationship and the way in which they fulfil their parenting functions, and that a period of less effective parenting both emotionally and practically is often observed post-separation. Court proceedings over child custody often bring out appalling parental behaviours such as engaging in underhanded tactics, vicious allegations about the other parent, and spreading hatred to their friends and relatives all of which the child is witness to and is clearly not in the child’s best interests. As succinctly phrased by the Honourable Deputy Chief Justice John Faulks ;

“The drive to fight for one’s children is a primordial instinct and this is exacerbated when the other party is someone once loved but now somewhere on the spectrum between “not love” and despised.”

Whilst this paper supports that shared parenting is in the best interests of the child when parents can co-operate, an article by Smyth et al profiling different patterns of care highlights just how small and select the proportion of couples are actually able to come to this arrangement, and make it work (6% of all separated parents in fact).

The parents which are able to make equal time shared parenting work adopt a businesslike relationship with their ex-partner and adopt a child focused mindset. They work together to get around the financial and logistical challenges which are often present in such arrangements, and avoid demonising the other parent in front of children or engaging in any other unsociable behaviour. Research has indicated that shared physical custody after parental separation does benefit the children, but as one father in the study remarked, “Reasonable relations make so much possible” . It is important to note that all but one of the separated couples considered in the study had come to their arrangements without any involvement with the legal system. That mother of the one couple who had been the subject of extensive litigation over her children was the only parent to express doubts as to wether 50:50 time share parenting was the best arrangement for her family. This highlights the point made before that often coming together in an equal time share arrangement after a lengthy and nasty litigation is unworkable for the parents involved.

For equal shared parenting to work between parents it seems that the absence of conflict between parents, or at least the effective management of it is an essential requirement if the arrangement is to operate in the best interests of the child The way that parents relate to each other as parents is crucial to how well children adjust to family transitions as;

“if a pattern is destructive, neither equal time nor a traditional every-other weekend visitation arrangement can protect a child. But when a parenting pattern is constructive, many arrangements can work.”

The effects which ongoing conflict can have on a child will now be discussed in order to aid an assessment in whether shared parenting is in the best interests of children, even if the parents are in conflict (as distinguished from physical violence).

(B) Effect of ongoing parental conflict on children

Credible research by the Australian Psychological Society has shown that the degree of parental conflict is a major risk factor associated with how a child adjusts once their parents separate. The same research also repeatedly demonstrated that there is a strong association between intense marital conflict and children’s poor adjustment. Children whose parent’s remain in conflict once they have separated suffer more psychological problems including higher levels of anxiety, depression and disruptive behaviour, and the affects of prolonged exposure to conflict as a result of litigation also poses significant risks to a child’s psychological health.

As a result of such findings, it would be hard to argue that in a situation where extensive litigation is sought, and a shared parenting arrangement is ordered that it would be in the best interests of a child. A child needs a secure emotional base where there are routines in place, and they exist in a loving and supportive environment where they are encouraged to learn. All of these needs which are in the best interests of the child are more likely to be met in a low-conflict environment with a parent who is not incessantly stressed about having to continually deal with their ex-partner. As more succinctly put:

“Children with parents who are emotionally overwhelmed and preoccupied with ongoing hostilities with their former partner are compromised by the limited availability of the parental mind to assist them to integrate the conflict in a healthy manner.”

It appears that it would be better for a child to come from a broken home and be raised by one parent, than to live in one in which the parents are in a constant state of conflict as a result of a court ordered shared parenting order. As, whilst there are negative impacts of parental separation, the negative affects of continued parental conflict seem greater.

Psychologically, whilst it has been found that children are quite resilient and the majority appear to adjust to parental separation relatively well, there are some who externalise their problems by being more aggressive, begin using drugs and alcohol, and associate with antisocial peers (25% of children from divorced families suffer from mental health issues, as opposed to 11% from intact family structures.) Of note however is research that indicates that is not actually the family structure alone which account for these behavioural problems, rather that ‘inadequate parenting and interparental conflict’ account for the externalising of many negative behaviours of children. Resultantly, a blank statement that ‘shared parenting is in the best interests of the child’ is clearly misguided.

III. Shared parenting – one size doesn’t fit all

This paper agrees with Harrington in the doubts she has that a presumption of shared responsible parenting (and a consequent presumption of equal or substantial time sharing arrangements) will achieve the objective of co-operative shared parenting as desired by the SPA however noble and correct its intentions. In support of Harrington’s view, Parkinson remarked that;

“…courts can not by order, create meaningful relationships between parents and children; they can only create or maintain the circumstances that make meaningful relationships possible.”

Rather than presuming that shared parental responsibility in an equal time share arrangement is in the best interests of children, arrangements should be based mainly on practicalities and matched perceptions of parents rather than idyllic aspirations as imposed by legislation which are not grounded in the realistic possibilities of each family.

It must also be remembered that children are individuals and the facts of each case are often objectively immeasurable and unique, and it would be negligent to adopt a view that one form of parenting supersedes all others. What is important is that the best interests of each individual child remain paramount, however wether this can be achieved by a presumption of shared parenting is dubious. Whilst the assumptions underlying legislative and judicial awards of shared parenting arrangements are noble in theory, in practise the human element is often inescapable and works in contrary to the ideals. The imposition of a court ordered shared parenting arrangement is diametrically opposed to the often lengthy and hostile adversarial proceedings over custody, thus it is the behaviour of the parents post-separation that is the downfall of such arrangements.

This paper maintains the position that whilst shared parenting is an ideal arrangement in the minority of couples who are able to make it work in a conflict free environment, it is in the best interests of child to come from a broken home and be raised by one parent, than to live in one in which the parents are in a constant state of conflict.

Bibliography

Books/ Journals/ Articles

Berger, Brown, Joung, Melli, and Wimer, ‘The stability of child physical placements following divorce: Descriptive evidence from Wisconsin’ (May 2008) 70 Journal of Marriage and Family, 273-283.

Byas, Anna, ‘One size does not fit all’ (October 2003) 28 (3) Alternative Law Journal, 250-251.

Harrington, Julie, ‘Shared parenting – The child custody debate’ (September 2003) 23 (8) Proctor, 14-15.

Kitzmann, Katherine, & Emery, Robert, ‘Child and family coping one year after mediated and litigated child custody disputes’ (1994) 8 (2) Journal of Family Psychology, 150-159.

Kline, Tschann, Johnston, & Wallerstein, ‘Children’s Adjustment in Joint and Sole Physical Custody Families’ (1989) 25 (3) American Psychological Association, 430-438.

Lynch, Michael & Moore, Susan, ‘Shared parenting – a unique decision’ (October 2003) 23 (9) Proctor, 20-22.

McIntosh, Jennifer and Long, Caroline, ‘Current findings on Australian children in postseparation disputes: outer conflict, inner discord’ (April 2005) 11 (1) Journal of Family Studies, 99-109.

Middleton, Sarah, ‘Time for a change? Shared Parenting, Variation of Orders and the Rule in Rice and Asplund’ (2006) 34 Federal Law Review, 399-420.

Parkinson, Patrick, ‘Decision-making about the best interests of the child: the impact of the two tiers” (2006) 20 Australian Journal of Family Law 179, 184-5.

Smyth, Bruce and Chisolm, Richard, ‘Exploring options for parental care of children following separation: A primer for family law specialists’ (2006) 20 Australian Journal of Family Law, 193-201.

Smyth, Caruana, Ferro, ‘ Shared parenting: The views of separated parents with 50:50 care arrangements’ (2003) 65 Family Matters, 48-55.

Smyth, Caruana, & Ferro, ‘Father-child contact after separation: Profiling five different patterns of care’ (2004) 67 Family Matters, 20-27.

Turkat, Ira, ‘Shared Parenting Dysfunction’ (2002) 30 The American Journal of Family Therapy, 385-393.

Case Law

DL v TA [2006] FMCAFAM 128

Pagden v Pagden (1991) FLC 92-231.

Legislation

Family Law (Shared Parental Responsibility) Act 2006 (Cth)

Family Law Act 1975 (Cth)

Other Sources

Burke, McIntosh, and Gridley, ‘Exploring options for parental care of children following separation: A primer for family law specialists’ (2007) <http://www.psychology.org.au/Assets/Files/Parenting_separation_PP.pdf> at 10 October 2008.

Faulks, John, ‘In the best interests of the children: A perspective of the 2006 amendments to the Family Law Act’ (Presented at the Shared Parental Responsibility in Australian Family Law and the impact on Children Seminar, Adelaide, 13-15 April 2008) <www.familycourt.gov.au/wps/wcm/resources/file/eb88b40384de753/Best_Interests_Children_April_08_FINAL.doc> at 10 October 2008.

Patterns of post-separation parenting in Australia, Family Facts and Figures (2003) Australian Institute of Family Studies <http://www.aifs.gov.au/institute/info/charts/contact/f2f/frequency-aifs.html> at October 10 2008.

Rowlands, Alwynne, ‘Recent developments in shared parenting and joint custody: a personal view from the Court’ (Presented at the 14th Annual Family Law Masterclass Conference, Sydney, May 2005) <http://pandora.nla.gov.au/pan/10766/20070721-0036/www.familycourt.gov.au/presence/resources/file/eb00054114bd588/Shared_Parenting_Conference_Paper.pdf> at 4 October 2008.

Smyth, Caruana, Ferro, ‘Some whens, hows and whys of shared care: What separated parents who spend equal time with their children say about shared parenting’ (Presented at the Australian Social Policy Conference, Sydney, 9-11 July 2003) <http://www.sprc.unsw.edu.au/ASPC2003/papers/Paper134.pdf> at 6 October 2008.

Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth), amending the Family Law Act 1975 (Cth).

Family Law Act 1975 (Cth), amended by Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth).

Smyth, Caruana, Ferro, ‘ Shared parenting: The views of separated parents with 50:50 care arrangements’ (2003) 65 Family Matters, 48.

S 60B (2)(a) Family Law Act 1975 (Cth), amended by Family Law (Shared Parental Responsibility) Act 2006 (Cth).

Ibid.

Middleton, Sarah, ‘Time for a change? Shared Parenting, Variation of Orders and the Rule in Rice and Asplund’ (2006) 34 Federal Law Review, 409.

S 65DAA(ii) Family Law Act 1975 (Cth), amended by Family Law (Shared Parental Responsibility) Act 2006 (Cth).

Family Law Act 1975 (Cth), amended by Family Law (Shared Parental Responsibility) Act 2006 (Cth).

Ibid.

S 65DAA Family Law Act 1975 (Cth), amended by Family Law (Shared Parental Responsibility) Act 2006 (Cth).

Ibid s 65DA(i)(ii)(iii).

Above, note 10.

Smyth, Bruce and Chisolm, Richard, ‘Exploring options for parental care of children following separation: A primer for family law specialists’ (2006) 20 Australian Journal of Family Law, 194.

Ibid.

Above, note 6 at 410.

Above, note 14.

Above, note 6 at 411.

Smyth, Caruana, & Ferro, ‘Father-child contact after separation: Profiling five different patterns of care’ (2004) 67 Family Matters, 23.

Lynch, Michael & Moore, Susan, ‘Shared parenting – a unique decision’ (October 2003) 23 (9) Proctor, 20.

Ibid.

Family Law Act 1975 (Cth), amended by Family Law (Shared Parental Responsibility) Act 2006 (Cth).

Ibid S60CC2(i).

Ibid S60CC2(f).

Family Law Act 1975 (Cth), amended by Family Law (Shared Parental Responsibility) Act 2006 (Cth).

Above, note 10, 4.

(1991) FLC 92-231.

Turkat, Ira, ‘Shared Parenting Dysfunction’ (2002) 30 The American Journal of Family Therapy, 386.

Parkinson, Patrick, ‘Decision-making about the best interests of the child: the impact of the two tiers” (2006) 20 Australian Journal of Family Law 179, 184-5.

Above, note 29 at 386.

Ibid.

Above note 29 at 386.

Above, note 10 at 9.

Above, note 20 at 23.

Berger, Brown, Joung, Melli, and Wimer, ‘The stability of child physical placements following divorce: Descriptive evidence from Wisconsin’ (May 2008) 70 Journal of Marriage and Family, 273.

Above, note 20 at 22.

Ibid.

Above, note 32 at 5.

Ibid.

Kline, Tschann, Johnston, & Wallerstein, ‘Children’s Adjustment in Joint and Sole Physical Custody Families’ (1989) 25 (3) American Psychological Association, 430-438.

McIntosh, Jennifer and Long, Caroline, ‘Current findings on Australian children in postseparation disputes: outer conflict, inner discord’ (April 2005) 11 (1) Journal of Family Studies, 99-100.

Kitzmann, Katherine, & Emery, Robert, ‘Child and family coping one year after mediated and litigated child custody disputes’ (1994) 8 (2) Journal of Family Psychology, 150-159.

Harrington, Julie, ‘Shared parenting – The child custody debate’ (September 2003) 23 (8) Proctor, 14.

Parkinson, Patrick, ‘Decision-making about the best interests of the child: the impact of the two tiers” (2006) 20 Australian Journal of Family Law 179, 184-5.

Byas, Anna, ‘One size does not fit all’ (October 2003) 28 (3) Alternative Law Journal, 250.