Australian Law Reform Commission Finds Shared Parenting Inconvenient – for Judges!

April 13, 2019 by Robert Franklin, Member, National Board of Directors, National Parents Organization

The Final Report of the Australian Law Reform Commission reads like it was written by opponents of shared parenting.  Indeed, it may have been.  Here in the U.S. and throughout the English-speaking world, we see the same straw-man arguments against shared parenting again and again.  Like all straw men, they carry no weight.  The ALRC’s report, as regards parenting time and children’s best interests, is more of the same.

Its recommendation is that the current requirement that judges consider equal parenting time be done away with.  Why?  The one and only problem claimed by the commission with that requirement is that it introduced “an unnecessary additional step in the process for determining care-time arrangements.”  In short, “considering” shared parenting arrangements is inconvenient for judges. 

Yes, various stakeholders complained about the provision as not in children’s interests and a danger to them.  Those complaints of course are too contrary to known facts to bother with.  Equal or almost equal time tends to promote children’s well-being as some 60 + studies demonstrate and judges are always equipped with the authority to deny parenting time to anyone who presents a danger to children.  Why we have to continue repeating the obvious is anyone’s guess.

The removal of the requirement to consider 50/50 parenting time is all the stranger because, since its enactment in 2006, there’s been no change in how judges rule.  That’s right, the commission remarks that “A review of the 2006 amendments found that there was no evidence of significant changes in the extent to which orders for shared parental responsibility are made.”  Judges didn’t much order equal time before the 2006 amendments and they still don’t.  Many people might say that constitutes evidence of bias against fathers, but not the commission, despite noting that fathers are given primary custody in under 9% of cases, while mothers receive it in 69.4%.  But whatever the case, the requirement can scarcely be said to have caused a problem for children or parents, because it’s so widely ignored.

Perhaps more importantly, shared care arrangements, defined as one parent having between 35% and 47% of the parenting time, are on the rise in Australia.  That’s occurring because, more and more, parents are opting for them outside of court.  Is there a problem?  Have we seen spikes in violence between those parents?  No.  Have their children’s well-being suffered?  If they have, the commission didn’t mention it.  Perhaps shared parenting isn’t such a bad idea after all.

But the commission ignored all that.

So, having junked the need to even consider shared parenting, the commission got down to brass tacks.

The consideration of the benefit to the child of being able to maintain significant relationships with each of the child’s parents and with others with whom the child has a relationship that is significant to the child is intended to replace the existing consideration of the benefit to the child of having a meaningful relationship with both of the child’s parents.

Under the new regimen then, Mom and Dad find themselves demoted from their important post as the child’s parents to simply two people of many.  Does the child have a significant relationship with, say, a coach, a teacher, the next-door neighbor?  Apparently those people have as much right to continued access to the child as do the parents.  Seriously.  If anyone reads that another way, I’m open to their interpretation, but words have meanings and what the above means is that the sky’s the limit when it comes to kids and their significant relationships.  The term “significant relationships” is nowhere defined in the report, leaving us to conclude that pretty much any relationship can qualify.

I’ll have more to say on this tomorrow.

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