The Dangers of Shared Care Legislation: Why Australia Needs (Yet More) Family Law Reform
| Date | 01 September 2008 |
| DOI | 10.22145/flr.36.3.1 |
| Published date | 01 September 2008 |
| Author | Helen Rhoades |
| Subject Matter | Article |
THE DANGERS OF SHARED CARE LEGISLATION:
WHY AUSTRALIA NEEDS (YET MORE) FAMILY LAW
REFORM
Helen Rhoades
∗
1 INTRODUCTION
Agitation for parenting reform has become a prominent feature of family law policy
debates in recent years.1 Many countries, such as England and Canada, have
proceeded cautiously in response to such demands.2 Australia, on the other hand,
opted for a bolder step and enacted a suite of shared parenting amendments in 2006,3
including a presumption of 'equal shared parental responsibility'.4 The Shared Parental
Responsibility Act was designed to facilitate substantial, if not equal, involvement by
both parents in children's lives following separation, provided this is safe.5 While
conversations about the implications of this move continue to take place,6 the first
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∗ Associate Professor, Melbourne Law School, University of Melbourne. I am indebted to
Richard Chisholm, Grania Sheehan and Andrew Strum for the stimulating conversations
which challenged and informed my thoughts on the issues canvassed here. I would also
like to thank Belinda Fehlberg, Hilary Astor, Zoe Rathus and the two anonymous
reviewers for their helpful comments on an earlier draft.
1 See Richard Collier and Sally Sheldon (eds), Fathers' Rights Activism and Law Reform in
Comparative Perspective (2006).
2 See in relation to England, Stephen Gilmore, 'Contact/Shared Residence and Child Well-
Being: Research Evidence and its Implications for Legal Decision-Making' (2006) 20
International Journal of Law, Policy and the Family 344; and in relation to Canada, Susan Boyd,
'Walking the Line: Canada's Responses to Child Custody Law Reform Discourses' (2003) 21
Canadian Family Law Quarterly 397.
3 The Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) ('Shared Parent al
Responsibility Act') came into effect on 1 July 2006.
4 Family Law Act 1975 (Cth), s 61DA ('Family Law Act').
5 Australian Government, Family Law Amendment (Shared Responsibility) Act 2006, (2006)
Attorney-General's Department <http://www.ag.gov.au/www/agd/agd.nsf/Page/
Families_FamilyLawAmendment(SharedResponsibility)Act2006> at 24 November 2008.
For a discussion of the policy goals underpinning the reforms, see Richard Chisholm,
'Making it Work: The Family Law Amendment (Shared Parental Responsibility) Act 2006' (2007)
21 Australian Journal of Family Law 143.
6 See, eg, Zoe Rathus, 'Shifting the Gaze: Will Past Violence be Silenced by a Further Shift of
the Gaze to the Future under the New Family Law System?' (2007) 21 Australian Journal of
Family Law 87; Tracey de Simone, 'The Friendly Parent Provisions in Australian Family Law
– How Friendly Will You Need to Be?' (2008) 22 Australian Journal of Family Law 56.
280 Federal Law Review Volume 36
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empirical evidence of its impact on post-separation parenting patterns has now been
published.7 Its data suggest the reforms have been successful in producing an increase
in 'substantially shared care arrangements' since the legislation came into force.8 At the
same time, however, the research indicates that a significant number of these
arrangements are characterised by intense parental conflict, and that shared care of
children is a key variable affecting poor emotional outcomes for children.9
There appears to be broad acceptance that the emergence of this pattern is a
product of the legislative reforms. Yet one of the interesting features of the published
critiques has been a tendency to cast responsibility for redressing the problem of
inappropriate shared care arrangements on the system's professional advisers, rather
than seeking to change the law. One version of this argument is that lawyers and
judges should incorporate an understanding of the research evidence into their
settlement and decision-making practices.10 The premise of this approach is that a
careful interpretation of the statutory provisions, guided by a nuanced appreciation of
the child development literature, will ensure shared care arrangements are not
sanctioned when they would be contrary to the child's wellbeing. A second proposal,
which has drawn support from the fathers' lobby, calls on parents and family law
professionals to redouble their efforts to make shared care work.11 This view is based
on a belief that shared parenting is so intrinsically beneficial to chi ldren that it should
be supported even when parents are not able to cooperate or communicate with one
another.12
This article seeks to engage with these arguments, and suggest their limitations as
solutions to the risks posed by the current legislation, by examining the practice and
policy context of the work performed by lawyers, judges and dispute resolution
professionals in the family law system. The following section outlines the principal
legislative amendments which came into effect in July 2006. Part 3 goes on to describe
the relevant empirical findings and Part 4 set outs the recent proposals for addressing
the problems revealed by this research. Part 5 then explores the obstacles to success of
these proposals as avenues for protecting children's wellbeing, with a focus on four
issues: the normative aim of the 2006 reforms; the nature of the family lawyer's
professional responsibilities; the constraints on incorporation of research into judicial
decision-making; and the limits of conflict resolution processes. Part 6 concludes by
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7 Jennifer McIntosh and Caroline Long, The Child Responsive Program Operating with the Less
Adversarial Trial: A Follow Up Study of Parent and Child Outcomes, Report to the Family Court
of Australia (2007); Jennifer McIntosh and Richard Chisholm, 'Shared Care and Children's
Best Interests in Conflicted Separation: A Cautionary Tale from Current Research' (2007)
20(1) Australian Family Lawyer 1.
8 This refers to arrangements in which the child spends at least 5 nights per fortnight in each
parent's home.
9 McIntosh and Chisholm, above n 7.
10 McIntosh and Long, The Child Responsive Program, above n 7, 18; McIntosh and Chisholm,
above n 7, 8; Max Wright, 'Best Interests, Conflict and Harm – A Response to Chisholm and
Parkinson' (2008) 22 Australian Journal of Family Law 72.
11 Jill Burrett and Michael Green, The Problem with Caution: Comments on the McIntosh/Chisholm
Study (2008) Dads in Distress 2-3
<http://www.dadsindistress.asn.au/downloads/The%20Problem%20with%20Caution%2
0Compendium.pdf> at 24 November 2008.
12 Ibid 5.
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