Shared Parenting: The
Australian Experience
The legal & emotional implications of shared parenting –
how does it work?
Gingerbread and One Plus One Seminar, London ,12
November 2010
Professor Belinda Fehlberg
Melbourne Law School
Victoria, Australia
Outline
• Why are Australian developments relevant for the
UK?
• Key Australian research findings
• Ways forward?
Relevance of Australian situation
Why are Australian developments relevant for the
UK?
• Similar legislative approaches to private law children
disputes
• The 2006 family law reforms: law and process
• Post 2006: significant Australian research activity
Australian research
Pre-2006 Smyth B, Caruana C, and Ferro A (2004)
Post-2006
Government funded
• AIFS Evaluation: Kaspiew et al (2009)
• Bagshaw et al (2010)
• Cashmore et al (2010)
• McIntosh et al (2010)
Chisholm Inquiry (2009)
University based
• Fehlberg et al (2008-2011)
• Smyth, Rodgers et al (2009-2012)
Australian big picture?
AIFS’ main finding is that ‘overall the recent reforms are
working well for the majority of children and their
parents’ (Media release, 28 January 2009)
BUT:
• Evidence that shared parenting laws are being
applied to families least able to make it work
• No clear evidence Family Dispute Resolution (FDR)
results in more workable shared parenting
arrangements
Early days...there is still a lot we don’t know
Australian research findings
So, what does the Australian research say?
• Promotion of shared parenting through a legal
presumption
– Parenting patterns and outcomes?
– Financial implications of shared care?
• FDR as a means for achieving more workable shared
care arrangements?
Parenting patterns & child outcomes
Terminology
Legislative and research definitions of shared parenting
vary but in essence comprise two sub-groups:
• Equal splits (50/50%); and
• Unequal splits (eg 70/30%; 60/40%; 65/35%)
Pre-2006
• Equal shared care was mainly utilised by a small,
select group of well-resourced parents
Post-2006
Shared parenting remains unusual (Recent
separations16%: 7% equal time & 9% unequal. Overall
around 12%)
BUT:
– Marked increase in judicially imposed shared
parenting (4% to 34%)
– Substantial minority of children in damaging shared
parenting (mothers concerns mainly)
• Current safety concerns
• High conflict
• Very young children
• Ongoing disruption
Post-2006 (cont’d)
Why has legal change led to an increase in
problematic rather than workable shared care?
Confusion: Parents and some professionals think the
law says that there is a presumption of equal shared
time (cf responsibility)
Reluctance to raise concerns about family violence and
child abuse
Increased focus on parents’ rights rather than children’s
best interests
Finances & shared parenting
Property
• Will the drift over time from shared to mother primary care mean
that property settlements disadvantage children and mothers
longer-term?
• Family lawyers: average property division received by mothers
has decreased by 7% (from 63% to 73%) post-2006
Child support
• Do parents seek shared parenting to reduce/maintain their child
support payments?
• Family lawyers: this is an important motivation for seeking
shared time
• Qualitative research: minority of parents motivated purely by this
• Further economic disadvantage for mothers and children?
Pathways to workable shared care?
• Main pathway for sorting out (shared) parenting
arrangements is discussions with other parent
• What about FDR?
• High financial cost of the Australian changes
Looking forward
Other means of promoting workable shared care
• Promoting shared care in intact relationships
• Workplace flexibility and economic equity between
parents
• The most workable shared care arrangements are
those that parents agree to themselves
So...
Still a lot we don’t know, but cautionary findings:
• No positive gain in legal presumptions favouring
shared parenting. Rather, encouragement of shared
parenting in cases where it’s likely to be unworkable
and damaging to children
• No clear connection between FDR and workable
shared parenting (but is this the right question to
ask?)
• Workable shared parenting is consensual rather than
imposed
Post script
• Australian Parliament has recently enacted the
Family Law Legislation Amendment (Family Violence
and other measures) Act 2011 (Cth)
• Amends the Family Law Act 1975 (Cth) to address
some of the problems identified post-2006
• Into effect 7 June 2012
• Includes wider definitions of ‘family violence’ and
‘child abuse’, amending ‘best interests’ checklist to
make clear that protecting children from harm is to be
given ‘greater weight’ than ‘meaningful relationships’,
and changes aimed at encouraging disclosure
• The shared parenting provisions are unchanged