The shared-care debate

Issue 

BY LIZ BRANIGAN

Many progressives and moderates support the principle that parents should share care of children.

In an ideal world: where flexible working hours were common; where women's wages were on a par with men's; where men devoted as much energy as women to caring for children; where men did half the housework; and where physical, sexual, emotional and financial abuse of women and children did not occur, it would be possible. However, real life is very different to this.

Women want to live independently of men for a variety of reasons. Families are forged from all the diverse life choices we have fought so hard to make possible. It seems however, it's going to get harder for mothers to make such choices ... a lot harder and for some, impossible. The consequences of the "presumption of joint custody" as it is currently proposed, would put some women and children at risk and, more broadly, has the potential to undermine family diversity and women's social and economic security and independence.

In June, following a report from the Family Law Pathways Advisory Group, Prime Minister John Howard announced an inquiry into "child custody arrangements after separation", to be conducted by the federal House of Representatives Standing Committee on Family and Community Affairs.

The terms of reference included looking into how much time "each parent should spend with their children post-separation, in particular whether there should be a presumption that children will spend equal time with each parent, and, if so, in what circumstances such a presumption could be rebutted". They also included looking at securing access to children for grandparents.

The inquiry was at least partially initiated in response to an increasingly powerful conservative "men's rights" lobby, who have generated public sympathy with their claims of being shut out of their children's lives and the dangers to children of "fatherlessness".

The inquiry process has been strongly supported by the Family Lobby Group — 45 conservative Coalition MPs who have banded together to "pursue the interest of families", which seems to be, in many cases, the interests put forward by these influential men's rights pressure groups. Many view the "Family Lobby Group" as a resurrection of the controversial, right-wing Lyons Forum of the 1990s.

In spite of an incredibly short lead-time of six weeks, in excess of 1550 submissions have been received by the inquiry, the highest number of submissions ever made to an inquiry in Australia. Not only was the lead-time minimal, the terms of reference also appear to have been the subject of little prior research. Significant rights for grandparents, for instance, are clearly ensured now. This issue seems to have been included simply because it was wanted by men's rights groups, some of whose members are parents of men who do not have access to their children.

One of the problems with the inquiry's terms of reference are that they seem intended to enforce what South Australian academic Dr Elspeth McInnes calls the "compulsory distribution of children" as another kind of property to be apportioned post-separation.

Family law already provides for shared care if families freely choose it, or if it is in the best interests of the child. However, only 5% voluntarily choose this option.

Another concern is that changes to the law could enable fathers to stop paying child support, even if they don't provide the care. Unless a Family Court order stated otherwise, child support calculations would be based on a presumption of joint custody, which would result in no liability.

Centrelink's response to compulsory shared care is not yet clear. Family payments are currently calculated in accordance with percentage of care of the child. If this were to drop to 50%, many single mothers would be plunged into more extreme poverty than they already endure.

Many single mothers are among the most economically disadvantaged and marginalised groups in our community. Many lack the money to mount a challenge in the Family Court.

There are pre-conditions necessary to make equal shared care work. Both parents need enough time, earnings and leave conditions to adequately care independently for their children half the time. Relatively good communication between parents who live in reasonably close proximity is also necessary for children to continue to attend one school and participate in activities such as sporting events and music lessons.

Concerns for the safety of women and children have also been paramount. The most dangerous time in women's lives is proven to be when they try to leave or state their intention to leave hurtful or abusive relationships. A 'Presumption of Joint Custody' may force some women to continue to live in violent homes, for fear of the man's behavior and potential violence against children in her absence.

Given the weight given by courts to biological parenthood, it is also unclear how this arrangement will affect lesbian parents who have used sperm donation to conceive.

The report and recommendations from the inquiry are due to be presented on December 31, when most community organisations are closed. Legislative change may be tabled early in 2004.

A broad range of organisations opposing the proposal continue to input into the final stages of the inquiry process. These include the Federation of Community Legal Centres, the Council of Single Mothers and Their Children (Vic), the National Council of Single Mothers in Adelaide, the Sole Parents Union in Sydney and child welfare and domestic violence organisations.

Many of these groups report that their evidence has been treated dismissively and that some committee members have been anti-women and seem to have a pre-determined agenda. The Family Court, and many senior academics in family research have also spoken out against an automatic presumption of shared custody.

A coalition is currently forming in Victoria to raise public awareness of this issue through a series of public forums in the lead up to the December report.

McInnes, who represents the National Council of Single Mothers in Adelaide and Kathleen Swinbourne from the Sole Parents Union in Sydney have written and spoken extensively on the dangers posed by shared care to the children of abusive fathers. However, many women and organisations who have vocally opposed this have been targeted by "men's right's" advocates with hate mail, personal abuse and harassment.

The undesirability of the current proposal should not, however, close off debate that re-examines the social, economic and gender-differentiated parenting roles in our society. In some sense, the terms of this debate are becoming limited by their polarisation along gender lines. The "sad dad" brigade, who argue about their children as if they are their property and deride and deny their responsibility to provide financially for their support have become pitted against women's and children's advocates, with a justifiable concern for the protection of women and children from abuse.

Families, progressive organisations and unions need to come together to develop a broader solution. Let's have more equitable care of children by both mothers and fathers. To do this, we need employment that is far more flexible. People must be able to afford to regularly work less hours than they are currently required to, while parents must be able to afford to stay home and care for their children full-time if they believe this is in the child's best interests.

Individuals, progressive organisations and unions all have a critical role in this struggle. Then we can begin to talk in a meaningful way about genuine shared care.

For more information on the federal government's Inquiry into Child Custody Arrangements' go to: <tm>.

[This article was adapted from a report by Liz Branigan and Lynda Memery in issue 53 of Scarlet Letter, newsletter of the Council of Single Mothers and Their Children (Vic).]

From Green Left Weekly, November 19, 2003.
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