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Custody laws should make it clearer that separated fathers are not entitled
to a 50-50 time split with their children, after the sweeping reforms of
2006 led parents to focus more on their rights instead of their children's
needs.
Three major reviews of shared parenting laws have urged dramatic changes to
the family law system, including a major expansion of the definition of
family violence to include economic and emotional abuse, and automatic
violence risk assessments in all parenting court cases.
In his hard-hitting report on family violence, former judge Richard
Chisholm takes aim at the "confusing and troublesome" shared parenting laws
which distracted parents from focusing on the child's interests.
Poor drafting of the laws had led many parents to "wrongly assume" the laws
meant children should spend equal time with each parent except in cases of
violence.
"The tangle of legal technicality that resulted from the 2006 amendments
may well have distracted parties and those advising them from focusing on
what arrangements are likely to be best for the children," he found.
"It may also have led to the very opposite (of what was) intended, namely
the parties thinking about their own entitlements rather than what is best
for their children."
Professor Chisholm also blasted the current system of violence notices in
the courts - "experience has shown this system is not working" and says
because the risk of violence is so common in parenting cases, a risk
assessment should be done in every instance.
He also raises concerns that clauses drafted to prevent vexatious claims of
violence may deter victims of violence from speaking up about it for fear
of punishment or legal disadvantage.
Federal Attorney-General Robert McClelland today released the independent
reviews of the reforms enacted by the Howard Government in 2006, with mixed
assessments of the system.
A detailed study on the impact of the laws on 28,000 people by the
Australian Institute of Family Studies found conflicting evidence on the
success of the changes, "with a positive impact in some areas and a less
positive impact in others".
There was strong support for the principle of shared care - as distinct
from equal custody - although it was in place in only 16 per cent of
separated families. Only 7 per cent have equal time arrangements.
The trend to more parents adopting shared care arrangements began before
the reforms, but the changes had also encouraged parents to focus more on
their own rights and led to a misconstrued belief they were "entitled" to
spend equal time with the child.
"Many legal sector professionals said the reforms, negotiations and
litigation over parenting arrangements had become more focused on parents
rights than children's needs," it concluded.
"A focus on the primacy of children's best interests is difficult to
maintain when parents are concerned with what they perceive to be their own
rights under the legislation."
Many fathers had also become disillusioned because they believed the new
laws "entitled" them to 50-50 time split of custody - rather than the best
arrangement for the child.
Yet many legal sector professionals felt the reforms had "favoured fathers
over mothers and parents over children" and that the post-reform bargaining
dynamics had put mothers "on the back foot".
But the study found little confidence across the system that it was
protecting families from violence and child abuse and neglect, and said it
had "some way to go" to respond effectively to those challenges.
The third review is the by the Family Law Council, a statutory body of
experts advising the government on family law, urged a dramatic widening of
the definition of family violence to offer more protection from threatening
behaviour.
It urges replacing a "reasonable" fear for one's safety or wellbeing with a
detailed list of abuse including economic and emotional hostility -
particularly if a child witnesses it.
The council is also advocating a national register of family violence
orders and a new system to apply them across state borders, as well as
simpler forms to notify the courts of violence.
The Rudd Government is considering its options on reform, but is understood
to be wary of moving rapidly on the contentious issues involved in an
election year.
But Mr McClelland suggested changes would be pursued in time. "The
Government is committed to improving the family law system so that
separated families can effectively access the help they need and disputes
can be resolved in the best interests of children."
Professor Patrick Parkinson, who helped to design the 2006 changes, hailed
the finding that the new laws had resulted in a 22 per cent drop in family
law cases going to court.
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