Shared care. Good, bad or ugly?

by Peter Magee on September 10, 2010

Peter Magee

Ever since the 2006 reforms to the parenting laws in the Family Law Act, the issue of shared care or equal time has been a complicated one, that always touches a nerve, whichever “side” of the debate you might be coming from.
A report has recently been released, following a federal government funded investigation into the impact of parenting law reforms.  The study, which was commissioned by the Federal Attorney-General’s Department, was conducted by the Social Policy Research Centre at the University of NSW, academics from the University of Sydney and the Australian Institute of Family Studies.
The study found that, on the whole, providing parents do not fear for their own or their children’s safety, most are happy with shared care, many mothers like the break and many children think the arrangement is “fair”.  Shared care arrangements were found to work better in cases where the parents were able to cooperate and make joint decisions and where the parents had chosen shared care for themselves, rather than had it imposed on them by a Court.
However, the study also found that for a “significant minority” of children, shared care was damaging.  These tended to be cases where shared care was imposed on parents who lived far apart, where there was conflict between the parents and/or the arrangement resulted in instability for the children.  The potential of such damage to a “significant minority” of children has been picked up by some commentators, including Melbourne Law School Professor Belinda Fehlberg, in support of a call for a re-consideration of the current parenting laws.  Professor Fehlberg has been quoted as saying “there seems to be no justification for our current legislative approach which encourages parents” in the direction of shared care.
My experience as a family lawyer bears out this summary of the report’s findings.  That is, I have seen shared care arrangements work well where parents chose the arrangement for themselves and are able to effectively communicate, cooperate and co-parent.  However, what I also see and, as Professor Fehlberg says, high parental conflict and parents’ inability to cooperate and communicate makes shared care extremely difficult and likely to lead to ongoing problems for the children.  Sometimes the high parental conflict has continued from the conflict that caused the relationship to break down in the first place; other times it seems to me to be “manufactured” by one of the parents during the litigation process and used as a tool to argue against the other parent getting shared care.
Whatever the cause of the parental conflict, the process of fighting over children in Court never lessens that conflict.  The estranged parents usually finish the Court process in more conflict and less able to cooperate and communicate than when they started.
So, it seems to me that the problem is not about the wording of the law.  The law is worded to do just what Professor Fehlberg calls for – that is, to determine children’s best interests on a case-by-case basis, without a preconceived bias in favour of shared care or any other parenting arrangement.  Instead of again changing the law, it seems to me that what’s needed is a change in the attitudes of separating parents, so that both of them focus on their children’s needs, not on using the children to punish the other person.  As can be seen from the report’s findings, parents who focus on their children’s needs cooperatively, are able to put in place an arrangement that is beneficial for their children.
Given that, sadly, some parents seem incapable of not only putting their children’s needs first, but of seeing the children’s needs as separate from their own, perhaps government resources need to be spent on a more widespread, thorough and mandatory post-separation parenting education program, rather than more law reform.  Maybe parents (and, let me stress, I mean mothers as well as fathers) should have to pass a children’s needs focussed test before the children can live or spend any time with that parent.
What, I hear you ask, would happen to the children as both parents sit and re-sit the test and continue to fail?  Perhaps the parents need to ask themselves that question and consider the impact on their children when deciding whether to continue to escalate their conflict or attempt to resolve it.

{ 2 comments… read them below or add one }

Shelly Karys September 23, 2010 at 12:44 pm

Hi, I am a single Mum on the pension whom left the father 4&half years ago due to proven domestic abuse and didnot want my girls seeing that to be normal. I have been constantly tormented with abusive behavior from him since, and the intervention order I had out on him which expired in March this year proved to have little affect as he breached it many times but I found the Police not to help as my Life&childrens was not threatened. I write to you as he has started proceeding for share care in April and I have been for the initial hearing and was told by my Barrister to google Sharecare to make sure that I “X” the boxs of him not receiving Sharecare. The only one I have been told by my Barrister was the fact that we live within 15minutes of eachother was a tick for him. We currently have a parenting agreement that states he has the girls over a fortnightly basis of- Fri after school til Monday before school (once per fortnight) and the following Thurday after school til Friday before school (once per fortnight) and half of School holidays, Fathers day for 24hrs and half day of childrens Birthday depending on whether its a school day or not. I am writting to you as I would like to know where I go online to see if Sharecare boxs are “X” so to speak and would appreciate your advice on a Site to look at. Currently I am googling and think I’ll be doing so for weeks to find the site I need.
Thank you for taking the time to read this. With Regards. Shelly

Todd October 5, 2010 at 8:44 pm

I am a father who has fought for 5 years to be equally involved in my son’s life. His mother, who has 4 children to three fathers (and has used legal aid and any number of PC social agencies to prevent the fathers from being involved in their childrens lives), has done all she can to keep me out of my sons life. Despite her continuous documented false allegations, lies and actions I have never swayed from what is important, and that is my son. However when I see the “conflict” argument being used as a reason for why shared care will not work, it frightens and saddens me. What incentive then, does a hostile party have to prevent conflict, when she can see that by creating conflict, shared care will not be considered a vaild option? You may argue that the welfare and best interests of the child is motivation enough, a sentiment which I totally support. But when only one side holds this value, what can be done?

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