In June 2003, Prime Minister John Howard announced a House of Representatives inquiry into changes to the Family Law Act. The House of Representatives Standing Committee on Family and Community Affairs (FCAC) produced a report, Every Picture Tells a Story - Report on the Inquiry into Child Custody Arrangements in the Event of Family Separation. One of the principal aims of the inquiry, Mr Howard said, would be to determine whether there “should be a presumption that children will spend equal time with each parent”. The issue of custody after marital separation has created intense interest within the Australian community.
Custody patterns in Australia have changed markedly over time, due to a combination of lobbying and legislative changes. Marilyn Lake from La Trobe University points out that during the 1920s and 1930s women had to fight for custody of their own children on two fronts. Not only were husbands automatically granted custody of their children in divorce proceedings, but working-class women faced the prospect of losing their children due to “new claims by the state to the guardianship of those deemed ‘neglected’”.
The story of custody after marriage breakdown in Australia has changed dramatically since then. In recent decades it has overwhelmingly been women who have been granted majority custody. The FCAC report cites Family Court of Australia figures demonstrating that in 2000-01, only 2.5 per cent of custody arrangements involved equal residency between parents. From this perspective, the Prime Minister’s push for equal-time custody represents a potentially massive legal and cultural shift.
The FCAC report and the House of Representatives Standing Committee on Legal and Constitutional Affairs’ Report on the Exposure Draft of the Family Law Amendment (Shared Parental Responsibility) Bill 2005 have ultimately informed the creation of The Family Law Amendment (Shared Parental Responsibility) Bill 2005.
Contrary to the Prime Minister’s initial push, the Bill does not include a rebuttable presumption of shared parenting time, rather a presumption of shared parental responsibility. This means both parents equally share responsibility for any major decisions that will affect their child. The presumption is revoked if a parent is deemed by the court to be unfit.
Nonetheless, an Attorney General’s Department media release stresses, “where both parents share responsibility, consideration will also be given to the children spending equal or at least substantial time with both parents”. Clearly, regardless of the FCAC rejection of the rebuttable presumption of equal parenting time, the government is strongly encouraging the courts to consider such an arrangement as the starting point in cases where both parents are requesting sole custody.
The Australian Institute of Family Studies (AIFS) gave evidence to the FCAC Committee on the changing roles of men and women within marriage, and the consequent need to look at ways of rethinking post-separation custody arrangements. This notion of change is echoed in Every Picture Tells a Story, which asserts that 96 per cent of Australian fathers support the notion that mothers and fathers should “share the responsibility for bringing up children equally”.
However, as the report also highlights, “these attitudes are not reflected in the work that men and women do in the home”. From studies dealing with the actual time-diary evidence (pdf 8KB) of mothers’ and fathers’ contact with their children, Lyn Craig, from the University of New South Wales argues that although Australian surveys indicate both men and women “express strongly egalitarian attitudes towards parenting”, her research reflects that these attitudes are not carried out in practice. As she states, “because a social practice is generally regarded as desirable, it doesn’t mean it’s actually happening. Often changes in social attitudes run ahead of actual behaviour”.
The significance of the issue of child care is highlighted in the Human Rights and Equal Opportunities Commission (HREOC) 2005 Discussion Paper, Striking the Balance, which attempts to explain the difference in rates of custody for mothers and fathers.
The HREOC stresses that “shared parenting after separation depends on whether shared parenting is in place prior to relationship breakdown”. Statistics (pdf 159KB) collected by the National Association of Community Legal Centres reflect that “fathers are highly involved in day-to-day care of the children in only 5 to 10 per cent of families, and share the physical care equally in only 1 to 2 per cent of families”.
The marked discrepancy between what fathers are saying and actually doing requires some explanation. Studies have highlighted one area in particular affecting men’s participation in child care - both pre- and post-separation: their place within the workforce. A policy research paper for the Department of Family and Community Services (FACS) reveals what most of us already knew: “men find that it is difficult to fit family around the demands of work. Most men agreed they did not find enough time for their families”.
The HREOC survey of 1,000 Australian men found “more than half believed that the major barriers to being involved as fathers were related to their participation in paid work, in particular work load or work commitments”. The HREOC paper also reported an underlying belief within Australian society that corporate culture, “views workplace arrangements to care for children as irrelevant for men”. The FACS paper highlights that most men who wish to engage in shared parenting are faced with the same choice that women have long had to make, that is, between children and career.
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