The Federal government has recently announced a parliamentary inquiry to investigate whether a rebuttable presumption of joint residence should become part of Australian family law - that is, if parents separate and cannot agree on arrangements for their children, the starting point should be that children spend equal time with each parent unless there is evidence that this arrangement would not be in the children's best interests.
However, with around one million children under 18 living with only one of their natural parents in Australia (ABS 1998), a core concern for public policy continues to be how to foster the ongoing care and support of children following parental separation.
The inherent complexity of shared care is currently being played out in policy by a lack of consistency between different departmental and legislative guidelines as to what constitutes "shared care". For instance, since 1 July 2000, to reflect shared-care arrangements, non-resident parents exercising contact with their children for more than ten per cent of nights may seek to have the Family Tax Benefit apportioned to each parent according to their respective levels of care. On the other hand, the Child Support Scheme requires a minimum level of care of 30 per cent of nights per year before child support liabilities can be reduced. The scheme defines "shared care" as between 40-60 per cent of nights per year.
From a legal standpoint there has been a gradual shift in recent years towards a more equitable division between parents of the rights and obligations of the parenting role. The Family Law Reform Act 1995 saw the introduction of s60B which outlined the principles underpinning the law relating to children. So the present situation is that both parents now retain an equal level of parental responsibility following separation except insofar as this is necessarily modified by the effect of residence and contact orders or is the subject of a specific issues order.
In many ways the patchwork of policy and law reform around shared care is understandable. First, society has changed markedly in recent decades. Movement away from a (maternal) "sole custody" model of parenting towards encouraging co-parenting after separation means that the boundaries around sharing the care of children have become fuzzier. Policy necessarily lags behind social change.
A voluminous literature exists on joint legal custody, the bulk of which has been produced during the 1980s by scholars working in North America. It is a complex literature because of the various methodologies and samples employed across studies, and the occasional conflation with joint physical custody.
As part of a larger study investigating contact and child-support issues we interviewed 56 parents (27 mothers, 29 fathers) who had separated from their partners.
Little is known about parents who opt for 50:50 care of their children. They often have logistically complex arrangements and look to be a relatively distinct subgroup of separated parents. Their profiles shed light on some of the necessary conditions required for shared parenting: namely proximity, work flexibility, money and infrastructure, and a co-operative parenting style, which perhaps largely explains why most of these parents did not seek legal interventions.
Marcus is 30, and has been separated for about four years. He has now has another partner and has had a "week about" arrangement. Like some of the focus group members in the 50:50 care group, Marcus's dealings with his former partner are not always cordial and cooperative. He does not define his arrangement as "co-parenting" but rather sees it as two parents each doing their own thing, otherwise known as "parallel parenting".
Sally (aged 45) and Rod (aged 49) have been separated for four-and-a-half years. They have two boys, and a teenage daughter. Rod now has another partner but Sally does not. Rod and Sally have an extremely cooperative relationship and are happy with their shared-parenting arrangement. The complexity of their arrangement appears to be a function of each family member's need to have frequent contact with one another. Sally and Rod swap care of their children during the week and take turns at weekends. Sally says: "It sounds mucky - it works for us."
Kathy is 40. She and her former husband have shared the care of their ten-year-old son and six-year-old daughter for five years. Kathy and her former partner have little contact with each other. Essentially they parallel parent. They have been involved in extensive litigation regarding the children. Kathy says her arrangement is very rigid.
The kids adjusted to it. They get annoyed at times and say, "I wish I didn't have to go" or "I wish I didn't have to do this!" … because it's not an amicable situation … but in relation to the children, they know the routine. It's been that way basically since … what, we've been split now five years and it was probably six months after the split, this was the arrangement. And so it hasn't been any different. But you know, how they'd like it I don't really know at this stage because they just know that's what the judge said so that's the arrangement.
This is an edited version of a paper presented to the Australian Social Policy Conference 2003 at The University of New South Wales, Sydney on 9-11 July and published in the Institute of Family Studies' journal Family Matters. Click here (pdf, 294kb) for the full paper.
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