THE DANGERS OF SHARED CARE LEGISLATION: WHY AUSTRALIA NEEDS (YET MORE) FAMILY LAW REFORM

Transcription

1 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 _ 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 The Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) ('Shared Parental Responsibility Act') came into effect on 1 July 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 < Families_FamilyLawAmendment(SharedResponsibility)Act2006> at 24 November 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 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.

2 280 Federal Law Review Volume 36 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 children 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 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 _ 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 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 Jill Burrett and Michael Green, The Problem with Caution: Comments on the McIntosh/Chisholm Study (2008) Dads in Distress 2-3 < 0Compendium.pdf> at 24 November Ibid 5.

3 2008 Dangers of Shared Care Legislation 281 suggesting a possible form of amendment to the Family Law Act in the event the Australian government decides to respond to the issue in this way. 2 THE SHARED PARENTAL RESPONSIBILITY ACT 2006 The Shared Parental Responsibility Act came into operation in July 2006, following a three year reform process and extensive lobbying by fathers' groups. 13 In large part, the amendments gave effect to recommendations outlined in Every Picture Tells a Story, 14 the report of a 2003 parliamentary inquiry into the law governing children's post-separation care. 15 The Hull Committee's aim in making these recommendations was to increase the rate of shared parenting of children following relationship breakdown, in light of the apparent failure of the 1995 reforms to achieve this result. 16 Although fathers groups and their supporters had sought a joint custody or 'equal time' presumption, the Committee stopped short of supporting this proposal. 17 However, it suggested there be a presumption of equal decision-making responsibility for children and that '50/50 shared residence' should be used as the starting point for decision-making and negotiation. 18 In line with these recommendations, Australia's Family Law Act now contains a presumption of 'equal shared parental responsibility', which presumes that consultative decision-making by parents is in the child's best interests. 19 The presumption does not apply where a parent has engaged in family violence or child abuse, 20 and can be rebutted by evidence showing that collaborative parenting would not be in the child's best interests in the circumstances. 21 If the presumption is not rebutted or displaced, a court must 'consider' making an order for the child to spend equal time with both parents. 22 If the judge finds that equal time is not in the child's best interests or 'reasonably practicable', 23 he or she must then consider making an order for 'substantial and significant time' with both parents. 24 A child will be taken to _ 13 See Helen Rhoades, 'Yearning for Law: Fathers' Groups and Family Law Reform in Australia' in Sheldon and Collier (eds), above n 1, Standing Committee on Family and Community Affairs, Commonwealth Parliament, Every Picture Tells a Story: Report on the Inquiry into Child Custody Arrangements in the Event of Family Separation (2003) ('Every Picture report'). Note that the legislation departs from the report's recommendations in a number of important ways, which are discussed in Part For a discussion of this inquiry, see Helen Rhoades and Susan Boyd, 'Reforming Custody Laws: A Comparative Study' (2004) 18 International Journal of Law, Policy and the Family Chisholm, above n 5. For descriptions and critiques of the 1995 reforms, see Richard Chisholm, 'Assessing the Impact of the Family Law Reform Act 1995' (1996) 10 Australian Journal of Family Law 177; Richard Ingleby, 'The Family Law Reform Act A Practitioner's Perspective' (1996) 10 Australian Journal of Family Law 48; John Dewar and Stephen Parker, 'The Impact of the New Part VII Family Law Act 1975' (1999) 13 Australian Journal of Family Law Every Picture report, above n 14, [2.4], [2.39]. 18 Ibid [2.38], [2.43]. 19 Family Law Act 1975 (Cth) ss 61DA(1), 65DAC. 20 Family Law Act 1975 (Cth) s 61DA(2). 21 Family Law Act 1975 (Cth) s 61DA(4). 22 Family Law Act 1975 (Cth) s 65DAA; Goode v Goode (2006) 36 Fam LR 422 ('Goode'). 23 'Reasonably practicable' is defined in s 65DAA(5). 24 Family Law Act 1975 (Cth) s 65DAA(2).

4 282 Federal Law Review Volume 36 spend substantial and significant time with both parents only if the child spends both weekdays and weekend time with each of them and both are able 'to be involved in the child's daily routine'. 25 Importantly, the requirement to consider a shared care arrangement is not limited to judicial officers. The system's various professional advisers, including both lawyers and mediators, are now obliged to ask clients to consider this option for their children. 26 Supplementing the shared time provisions is a new two-tiered 'best interests' checklist. The first tier of 'primary' factors requires practitioners to consider the 'benefit to the child of having a meaningful relationship' with both parents, and the need to protect the child from harm from being subjected or exposed to 'abuse, neglect or family violence'. 27 The more traditional considerations, such as the child's wishes (now 'views'), and the capacity of each parent to provide for the child's needs, have been relegated to the second tier of 'additional' factors. 28 At the heart of this framework is a narrowing of the discretion that has been historically associated with the 'paramountcy principle'. 29 Whilst the child's best interests remain the 'paramount' consideration when determining appropriate care arrangements, 30 those interests are now explicitly aligned with collaborative parenting, with limited exceptions such as for children affected by violence or abuse. Underpinning this model is the Hull Committee's policy goal of ensuring 'the majority' of Australian children grow up with 'meaningful relationships' with both parents, while safeguarding the 'minority' of children who have been subjected to abuse from further risk. 31 This essentially bifurcated approach was confirmed by the Full Court of the Family Court in Goode soon after the reforms came into operation, which held that 'there is a legislative intent evinced in favour of substantial involvement of both parents in their children's lives, both as to parental responsibility and as to time spent with children' THE EMPIRICAL EVIDENCE: A RISE IN (HARMFUL) SHARED CARE ARRANGEMENTS The first empirical evidence of the impact of these changes comes from two related studies conducted by Jennifer McIntosh and her colleagues, which investigated the emotional wellbeing of children in post-separation families. 33 In contrast to pre-reform _ 25 Family Law Act 1975 (Cth) s 65DAA(3). 26 Family Law Act 1975 (Cth) s 63DA(2). 27 Family Law Act 1975 (Cth) s 60CC(2). 28 These are set out in Family Law Act 1975 (Cth) s 60CC(3). 29 For discussion of the 'paramountcy principle', see John Eekelaar, 'Beyond the Welfare Principle' (2002) 14 Child and Family Law Quarterly 237; Jonathan Herring, 'Farewell Welfare?' (2005) 27 Journal of Social Welfare and Family Law 159; Richard Chisholm, '"The Paramount Consideration": Children's Interests in Family Law' (2002) 16 Australian Journal of Family Law Family Law Act 1975 (Cth) s 60CA. 31 Every Picture report, above n 14, [2.8]. 32 Goode (2006) 36 Fam LR 422, 443 (emphasis added). 33 For a summary of the two studies, see McIntosh and Chisholm, above n 7.

5 2008 Dangers of Shared Care Legislation 283 data, 34 which indicated that shared care was once a relatively rare phenomenon, 35 almost half (46 per cent) of the families in McIntosh's 2007 study had an arrangement in which the children spent five nights or more per fortnight with each parent. 36 The recent findings also point to the role of the law in shaping this change. In the earlier studies, shared parenting was confined to a small and distinct group of financially comfortable parents who had self-selected this arrangement and were committed to making it work. 37 By comparison, the arrangements surveyed by McIntosh had resulted from interventions by family law professionals, including judicial determinations, 38 consent orders negotiated at 'the door of the court' by the parents' lawyers, 39 and mediated agreements. 40 The most striking feature of the McIntosh data, however, is the finding that for a significant proportion of the children in her sample, shared care was a source of 'psychological strain'. 41 In the first of the two studies, which followed families who had agreed arrangements at a family mediation service, interviews were conducted with parents and children prior to settlement of the dispute, three months after, and again one year after arrangements were finalised. At the 12 month mark, almost a third of the shared care families with school-aged children were characterised by significant levels of acrimony and inter-parent conflict, and 21 per cent of the children in this sample exhibited a high level of clinical anxiety. 42 In the second study, where families were followed up four months after their arrangements had been finalised at the Family Court, 28 per cent of the children living with a shared care arrangement were found to have a high degree of emotional distress. As in the first study, the key factor implicated in this outcome was the presence of ongoing conflict between the parents. 43 Whilst these studies involved relatively small samples, they nevertheless provide a clear indication of the dangers for children of a shared parenting regime when the child's parents are not able to cooperate with or support one another and there is a considerable level of conflict between the caregivers. 44 _ 34 See Australian Institute of Family Studies, Parent Child Contact and Post-Separation Parenting Arrangements, Research Report No 9 (2004). 35 Fewer than four per cent of parents registered with the Child Support Agency in 2002 were deemed to have a shared parenting arrangement: Bruce Smyth, Catherine Caruana, and Anna Ferro (2003), 'Some Whens, Hows and Whys of Shared Care: What Separated Parents who spend Equal Time with their Children say about Shared Parenting' (Paper presented at the Australian Social Policy Conference, Sydney, 9 11 July 2003) Jennifer McIntosh and Caroline Long, Children Beyond Dispute: A Prospective Study of Outcomes from Child Focused and Child Inclusive Post-Separation Family Dispute Resolution (2006) Smyth, above n 34; Smyth, Caruana, and Ferro, above n Approximately 30 per cent of the shared care arrangements in the second study were judicially determined: McIntosh and Long, The Child Responsive Program, above n 7, Ibid. 40 McIntosh and Long, Children Beyond Dispute, above n McIntosh and Long, The Child Responsive Program, above n 7, 18; McIntosh and Chisholm, above n 7, McIntosh and Chisholm, above n 7, McIntosh and Long, The Child Responsive Program, above n McIntosh and Chisholm, above n 7.

6 284 Federal Law Review Volume 36 4 RESPONSES TO THE RESEARCH EVIDENCE This section looks at several recent articles which have offered options for addressing the risks to children revealed by this research. The first set of responses described here focuses on proposals for modifying the way in which lawyers and judges interpret the legislation. The second part examines a different tack, which argues for increased conflict resolution services. A Responsible lawyering McIntosh and her colleagues clearly identified the 2006 reforms as the source of the harmful care arrangements they found. 45 Nevertheless, despite their concerns about this link, they did not suggest the law should be changed. 46 Instead, they and others in the sector have suggested that lawyers need to be aware of the relevant social science evidence about children's post-separation needs, including 'the conditions under which substantially shared care is likely to strain rather than support children', and incorporate this knowledge into their advice to clients. 47 In making this argument, authors such as Richard Chisholm, a former Family Court judge, are conscious of the Full Court's statement in Goode described above and acknowledge the presumption of shared responsibility, which triggers the requirement to consider a shared time arrangement, applies 'roughly, in all cases except those involving such things as violence and abuse'. 48 However, McIntosh and Chisholm stress the new legislative scheme should not be regarded as 'a straitjacket' which requires children to spend substantial time with each parent in all but exceptional cases. 49 Rather than seeing the achievement of shared care as the goal, they argue that lawyers should aim to ensure the settlement of developmentally sound parenting arrangements. 50 A similar suggestion has been proposed by Max Wright, a family mediation practitioner at Relationships Australia. 51 Wright's analysis is critical of the legal profession's approach to advising clients, and the apparent failure of family lawyers to incorporate an understanding of the harm caused by frequent conflict into their interpretation of the reforms. His focus is on the second of the two 'primary' considerations in the best interests checklist, which requires practitioners to be mindful of the need to protect children from 'physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence'. 52 In Wright's view, given the abundant research evidence which 'joins the dots between exposure of children to parental conflict, and increased risk of psychological harm', lawyers ought _ 45 McIntosh and Long, The Child Responsive Program, above n 7, Note however that one of these authors, Professor Chisholm, has more recently indicated that legislative reform of Part VII may be necessary: see Richard Chisholm, 'The Harmful Impact of Parental Conflict on Children (And the Harmful Impact of Legislative Complexity on People Trying to Help Children): A Brief Reply to Max Wright' (2008) 22 Australian Journal of Family Law 152, McIntosh and Long, The Child Responsive Program, above n 7, McIntosh and Chisholm, above n 7, Ibid Ibid Wright, above n 10. Relationships Australia, established in 1984, is Australia's largest and most well-known community-based family relationships organisation. It provides counselling and mediation for couples in conflict over parenting and financial matters. 52 Family Law Act 1975 (Cth), s 60CC(2).

7 2008 Dangers of Shared Care Legislation 285 to be reading this section as impliedly including a reference to entrenched conflict. 53 Like McIntosh and Chisholm, he suggests that 'responsible' family lawyers should ensure they are familiar with the relevant child development literature and use this knowledge to inform their advice to clients. This expectation of the legal profession was also a prominent feature of the interviews with family mediators in a recent study conducted by Hilary Astor, Ann Sanson and myself. 54 The project, completed in early 2008, investigated the ways in which family lawyers and 'family dispute resolution practitioners' 55 regard and manage their inter-professional relationships when helping clients to resolve disputes over children. Its survey data revealed that many practitioners in the dispute resolution sector are concerned by what they perceive to be the narrow legal policy approach to post-separation arrangements for children, compared to the nuanced and complex research understanding of children's developmental needs. More particularly, many mediators were critical of family lawyers for not challenging clients who sought legally sanctioned arrangements (such as shared residence) that were not compatible with their child's wellbeing. As one such interview participant expressed this: Look, the number of times that especially fathers come in going, 'I am going for residence', and it would be completely bonkers for their relationship with their children for that to actually happen, and there's [a lawyer] behind the scenes saying, 'This is a good punt', I've got to be a bit worried about whether in fact some family lawyers do have the best interests of children at heart in that situation. 56 Mirroring the published critiques described above, these practitioners wanted lawyers to receive child development training and be required to use this knowledge as the basis for their work with family law clients, rather than, or to supplement, the law. Alongside this recommendation, and as a corollary of it, these practitioners tended to be critical of the legal profession's partisan approach to family disputes, and expected lawyers to adopt a more holistic perspective of the conflict that encompassed concern for the future wellbeing of the children and the family as a whole. 57 As one participant summarised this critique of lawyers: _ 53 Wright, above n 10, Helen Rhoades et al, Enhancing Inter-Professional Relationships in a Changing Family Law System: Final Report (2008) < ProfessionalRelationshipsStudyFinalReport.pdf>. 55 Family dispute resolution is defined as a process in which a practitioner who is 'independent of all of the parties' involved in the process 'helps people affected, or likely to be affected, by separation or divorce to resolve some or all of their disputes with each other': Family Law Act 1975 (Cth) s 10F. The main form of family dispute resolution is mediation. 56 Rhoades et al, above n 54, Note that some commentators in other areas of law have also suggested that lawyers should adopt a more holistic approach to advocacy, with a focus on meeting the client's 'human needs' and not just their 'legal needs': see, eg, Robin Steinberg, 'Beyond Lawyering: How Holistic Representation makes for Good Policy, Better Lawyers and More Satisfied Clients' (2006) 30 NYU Review of Law and Social Change 625. See also Katherine Wright, 'The Role of Solicitors in Divorce: A Note of Caution' (2007) 19 Child and Family Law Quarterly 481, whose research suggests that many English family lawyers adopt a 'neutral' approach to acting for family law clients.

8 286 Federal Law Review Volume 36 They're not looking at the whole picture, they're just looking at their client's needs. They're not thinking about the mother or the children, they're just client focused. They're not looking at the wider picture. 58 In common with McIntosh, Chisholm and Wright, these practitioners were concerned about the potential impact on children and families of the current legal construction of children's best interests and, like them, saw the solution to this problem in terms of modifying lawyers' professional practices. In other words, while the legislation may be problematic, it need not pose any risk to children's wellbeing if lawyers, like mediators, adopt a research-informed rather than legal-policy based approach to working with parents. B Perseverance and increased conflict resolution efforts A very different response to the McIntosh research has been offered by Burrett and Green, in an article that has drawn the support of fathers' groups such as 'Dads in Distress'. 59 Burrett, a developmental psychologist, and Green, a legal practitioner, do not dispute the empirical findings. 60 They do, however, take issue with the view that these results warrant caution in settling shared care arrangements. It is on this point that they part company with McIntosh and Chisholm (and, by association Wright and the family mediation practitioners in our inter-professional relationships study), suggesting their proposals are ideological and casting the authors as part of a political 'resistance movement' that is opposed to shared parenting. 61 Burrett and Green are concerned that the call for caution might lead to strategic applications for sole custody orders and a 'pull back' from shared care arrangements by the courts. 62 In their opinion, McIntosh and Chisholm have targeted the wrong issue. The problem as Burrett and Green see it is that parents have not been adequately assisted, or have not worked hard enough, to resolve their conflict. Seen from this perspective, the correct strategy according to the authors is 'not caution, but courage, perseverance and determination'. 63 Hence, lawyers should not be encouraged to actively consider whether shared care is in a child's best interests. As the authors put their case: Rather than argue that shared care is fine so long as it is [in] the child's best interests, we say that the better attitude is: Shared care is in the child's best interests, so what can we do to make it work for [the] parents and child and to prevent or eliminate hostility, conflict and bad parenting practices? 64 In keeping with this approach, Burrett and Green disagree with McIntosh and her colleagues that shared care is a limited option, best suited to families where parental _ 58 Helen Rhoades et al, Working on their Relationships: A Study of Inter-Professional Practices in a Changing Family Law System, Research Report 1 (2006), Burrett and Green, above n However, some members of the fathers' lobby, including the President of the Lone Fathers Association, Barry Williams, have rejected the results: see ABC Television, 'Experts Warn Against Shared Parenting Settlements', The 7.30 Report, 3 June 2008, < at 24 November Burrett and Green, above n 11, Ibid Ibid Ibid (emphasis in original).

9 2008 Dangers of Shared Care Legislation 287 conflict is well managed. 65 Instead, they reason that as high levels of stress are a common feature of separation, and that parents and children will inevitably take time to 'accept and deal with all the issues that separation brings', shared care should be 'the default form of parenting after parental separation', even if parents are not 'totally cooperative, communicative, and completely in tune with the best interests of their children'. 66 In accordance with this view, they suggest the system needs to do more to assist parents to settle their conflict so that shared parenting succeeds LIMITS & OBSTACLES TO THE PROPOSED SOLUTIONS Whilst I have grave concerns about Burrett and Green's call for perseverance, the various proposals for professional intervention outlined in the previous sections have much to recommend them. As I have noted elsewhere, an understanding of the research evidence about parental conflict, children's needs and family violence is critical to good practice in this area of the law, 68 and collaboration between lawyers and mediators can only benefit from greater familiarity with each other's knowledge base. 69 Furthermore, I agree that evidence of parental conflict and its impact can be validly incorporated into judicial assessments of children's best interests in conformity with the current legislative framework, and that this information will be vital to ensuring safe outcomes for children and parents. Evidence of this kind will be highly pertinent to an assessment of a number of factors in the 'best interests' checklist, such as a parent's capacity to provide for the child's emotional needs. 70 I also support referrals to family dispute resolution and family relationship services for family law clients where appropriate. A diverse range of programs of this kind currently operates in the Australian sector, providing high quality services for parents in conflict. 71 My argument here is not that these proposals lack merit, but that they are inadequate responses to the dangers posed by the present legislation. A Parliament's intention Wright's critique took the form of a response to a published debate between Chisholm and Patrick Parkinson about the capacity for judges to rely on factors beyond those identified in the legislation such as evidence of the child's exposure to 'frequent conflict' to determine children's best interests. 72 Parkinson had argued that there is 'no room' for the courts or lawyers to 'give priority to' such factors. 73 Whilst he acknowledged that there is 'a lot of empirical support' for treating entrenched parental conflict as a relevant concern, Parkinson stressed the fact that Parliament had 'not seen _ 65 McIntosh and Long, The Child Responsive Program, above n 7, Burrett and Green, above n 11, 4 5 (emphasis in original). 67 Ibid Rhoades and Boyd, above n 15, Rhoades et al, above n 54, v. 70 Note also that a judge may consider 'any other fact or circumstance that the court thinks is relevant' under Family Law Act 1975 (Cth) s 60CC(3)(m). 71 For a description of several of these programs, see Rhoades et al, above n 54, See Chisholm, 'Making it Work', above n 16; Patrick Parkinson, 'The Values of Parliament and the Best Interests of Children A Response to Professor Chisholm' (2007) 21 Australian Journal of Family Law 213; Richard Chisholm, 'A Brief Reply to Professor Parkinson' (2007) 21 Australian Journal of Family Law Parkinson, above n 72, 214, 227.

10 288 Federal Law Review Volume 36 fit' to include it as a consideration in the Act. 74 In his view, therefore, it cannot be used by the legal profession to trump 'the priorities that parliament has emphasised', such as shared parenting. 75 As described in Part 4, Wright offers a different reading of the legislation. His position centres on the substantial research evidence linking parental conflict and 'psychological harm' to children. 76 According to Wright, given this knowledge, the enactment of a requirement to protect children from 'psychological harm' from violence and abuse 77 is surely evidence of an expectation that judges and lawyers should also consider the impact of other harmful conduct, such as parental conflict. 78 Unfortunately, while Wright is correct that Parliament's intention is an important tool for interpreting the reforms, he is mistaken in his belief that the Howard government envisaged the protective exemptions being used in this way. In fact, the reality is quite the opposite. It is true that the Hull Committee inquiry was provided with a wealth of research-based submissions and that these informed its recommendations. 79 These included a submission by McIntosh outlining the state of the then research into the effects of conflict on children. 80 Her oral testimony to the Committee, which is reproduced in the Every Picture report, concluded emphatically that the research findings are unequivocal, and unapologetic regarding parental conflict and impacts on child development. Yes, children are strong, yes, development is robust, no, divorce does not have to be damaging, yes, parents basically want the very best for their children; and, yes, enduring parental conflict places the odds against all children, in all families. 81 In acknowledgement of this evidence, 82 the Hull Committee recommended a legislative presumption against shared responsibility for children in cases of 'entrenched conflict', as well as cases involving violence or abuse. 83 However, the government rejected the former recommendation, and deliberately confined the relevant exemptions to the latter two categories. 84 Its reasons for doing so reveal a concern that an exception for parental conflict would effectively undermine the normative aim of the reforms: In relation to entrenched conflict, it could be argued that any case that reaches a final court hearing involves entrenched conflict. Making entrenched conflict a ground for applying a presumption against joint parental responsibility could mean the courts _ 74 Ibid Ibid, Wright, above n 10, Family Law Act 1975 (Cth) s 60CC(2)(b). 78 Wright, above n 10, Note that Chisholm has subsequently responded to Wright's critique: see Chisholm, 'The Harmful Impact of Parental Conflict on Children', above n See Rhoades and Boyd, above n 15; Rhoades, above n See, eg, Jennifer McIntosh, 'Enduring Conflict in Parental Separation: Pathways of Impact on Child Development' (2003) 9 Journal of Family Studies Every Picture report, above n 14, [2.41]. 82 Ibid, [2.6]. 83 Ibid, [2.83]. Note that this recommendation also included an exception for cases involving 'substance abuse' by a parent. 84 Australian Government, A New Family Law System: Government Response to Every Picture Tells a Story (2005) 5. < childcustody/govtresponse.pdf> at 24 November 2008.

11 2008 Dangers of Shared Care Legislation 289 would rarely be able to apply the proposed new presumption in favour of joint parental responsibility. 85 The government's response went on to suggest that the effects of conflict on a child would be a matter for the courts to consider in individual cases. 86 However, as Parkinson points out, no such reference was ever enacted. At best then, any consideration of conflict by the courts must be incorporated into the decisional process indirectly via other factors in the 'best interests' checklist, such as an assessment of the child's views or a parent's capacity to meet the child's emotional needs. And while Parkinson suggests these considerations may be important in interpreting the 'primary' factors, 87 he is also at pains to argue that such considerations lack the 'weight' of those that Parliament chose to emphasise. 88 In fact, the decision to exclude parental conflict as an explicit reason to question the presumption of shared responsibility does not simply leave this factor as one of the many indirectly relevant issues a court may consider when determining what orders to make. It also sends a powerful message that lawyers and judges should not see this feature of the evidence as sufficient reason to reconsider shared parenting or rather, that they should no longer treat this factor in this way. Prior to the 2006 reforms, the courts generally regarded the presence of inter-parental conflict as an indication that a collaborative care arrangement was not a viable option, and that its imposition was likely to compromise the child's wellbeing. 89 Thus, Parliament's selection of family violence and child abuse as the sole identified exceptions to the presumption in s 61DA signals a significant departure from the earlier case law guidance, and suggests the previous approach to this issue is no longer 'good law'. More importantly perhaps, this message may have a flow-on effect on assessments of the 'practicability' of shared living arrangements under s 65DAA. Nor is it likely that research-aware lawyers will inevitably interpret 'family violence' expansively as suggested by Wright, so as to include evidence of a conflicted relationship between the parents. In fact, empirical research has suggested that evidence of violence generally needs to meet a 'stringent standard in relation to severity' before a court will limit a parent's contact with their child, 90 and that family lawyers are well aware of this dynamic. 91 As Lawrie Moloney's study of pre-reform court practices revealed, although allegations of family violence are common in cases that go to trial, they have little influence on decision-making patterns unless accompanied by _ 85 Ibid Ibid, See Patrick Parkinson, 'Decision-Making About the Best Interests of the Child: The Impact of the Two Tiers' (2006) 20 Australian Journal of Family Law Parkinson, 'The Values of Parliament', above n See, eg, T v N (Shared Residence) (2004) 31 Fam LR 281, where the court held that a shared parenting arrangement was not in the children's best interests and likely to be psychologically damaging given the parents' evident hostility and inability to communicate. 90 See, eg, Rae Kaspiew, 'Violence in contested children's cases: An empirical exploration' (2005) 19 Australian Journal of Family Law 112, Lawrie Moloney, 'Violence Allegations in Parenting Disputes: Reflections on court-based decision making before and after the 2006 Australian Family Law Reforms' (Paper presented at the Victoria Legal Aid Family Law Conference, Melbourne, 24 July 2008).

12 290 Federal Law Review Volume 36 compelling corroborative evidence, with outcomes in such cases generally similar to those in which no allegations are raised. 92 Thus, while the interpretative arguments offered by Chisholm and Wright have much to recommend them from the perspective of the child development research, the practice reality for lawyers and judges is that a child's exposure to ongoing conflict between the parents is unlikely to be regarded as sufficient to question the benefits of a shared care arrangement unless there is compelling evidence of violence or abuse, and this appears to be as Parliament intended. B The family lawyer's professional responsibilities As noted in Part 4, one aspect of the 'responsible lawyering' recommendations made by social science professionals involved a critique of the legal profession's partisan approach to family disputes, which contrasts with their own impartial and holistic perspective. 93 From the point of view of many mediators in our inter-professional relationships study, child focused outcomes would be more likely to ensue if lawyers moved away from their traditional client advocacy stance and prioritised the interests of the child. The problem with this suggestion is that it is not consistent with the lawyer's professional duties to their (adult) clients. Family lawyers must disclose to the court any material relevant to the child's welfare whether or not it is in the interests of their client, 94 and the Family Law Council's Best Practice Guidelines encourage practitioners to 'emphasise to clients the benefits that cooperation between parents brings to children'. 95 However, family lawyers have no direct responsibility to the child unless acting as an Independent Children's Lawyer. 96 Nor do they have any professional duty to consider the interests of the family as a whole. By contrast with a mediator, a family lawyer has a single client and is obliged to 'advance and protect' that person's interests 'to the best of the practitioner's skill and diligence, uninfluenced by the practitioner's personal view of the client or the client's activities'. 97 On the other hand, family lawyers have a number of indirect responsibilities to the child, such a duty to advise their client that the child's 'best interests' will be the court's _ 92 Lawrie Moloney et al, 'Allegations of Family Violence and Child Abuse in Family Law Proceedings: A Pre-Reform Empirical Snapshot' (2007) 21 Australian Journal of Family Law 252, 277. For an example of the kind of corroborative evidence required, see Noor & Nabil [2007] FamCA Family dispute resolution practitioners are required to be 'independent of all of the parties involved in the process': Family Law Act 1975 (Cth) s 10F. Regarding the requirement of impartiality in mediation, see Hilary Astor, 'Rethinking Neutrality: A Theory to Inform Practice Part I' (2000) 11 Australian Dispute Resolution Journal 73; Alison Taylor, 'Concepts of Neutrality in Family Mediation: Contexts, Ethics, Influence and Transformative Process' (1997) 14 Mediation Quarterly Clarkson v Clarkson (1972) 19 FLR Family Law Council, Best Practice Guidelines for Lawyers doing Family Law Work (2004), Part 6 [1.4]. 96 See Family Law Act 1975 (Cth), s 68L regarding the power to order a child be separately represented. An Independent Children's Lawyer does not 'act for' the child in the same way that a lawyer acts for an adult client. Their role is to assist the Court to understand the child's situation: see Family Court of Australia, Guidelines for the Independent Children's Lawyers, < at 24 November Law Council of Australia, Model Rules of Professional Conduct and Practice (2002), Rule 12.1.

13 2008 Dangers of Shared Care Legislation 291 paramount concern when deciding what orders to make. 98 In fact, Australian practitioners, like their counterparts in England, 99 are accustomed to challenging parents whose expectations do not accord with this approach or whose motivations are not child focused. 100 In our study of inter-professional practices, we found solicitors attempting to balance these often competing responsibilities through a process of 'reality testing' the client's proposals for their children. Consistent with the lawyer's duty to ensure their advice is 'in accordance with the law', 101 practitioners in our study described testing clients' instructions against the relevant legislative and case law principles, and 'realigning' the client's perspective if their proposals were not in sync with these. 102 Many lawyers also spoke of challenging clients to think through the logistical implications of their proposed arrangements for the child s day to day life. For example, one practitioner explained: I get them to focus on what is going to be the day to day living of this child and what access they have to both parents to at least enjoy their life and also to spend time not as satellites to their parents but to have their own life with their own friends and so forth. I get the clients focused on, 'So what's this child's life going to be like now? How do we make the orders fit so that that can happen?'. 103 As this suggests, lawyers drew on a range of non-legal forms of knowledge such as their own parenting experiences and their understanding of the psychological dimensions of childhood gained in professional development seminars to challenge a client's proposals. 104 A number of family law scholars have noted that family lawyers, unlike those who practice in some other areas of the law, tend to see their role as inherently 'multidisciplinary', involving a need to incorporate 'psychological and medical discourses of welfare, and political discourses of common sense' into their advice work. 105 Indeed, Christine Piper has suggested that the 'good' family lawyer is one who specialises in moving between social, welfare and legal discourses in order to motivate clients and modify their expectations. 106 It is this characteristic of family law practice that prompted the kind of suggestions discussed in Part 4 for lawyers to draw more directly on the child development literature in helping parents negotiate appropriate care arrangements for their children. But although family lawyers engage _ 98 Family Law Act 1975 (Cth) s 60CA. 99 For example, Eekelaar, Maclean and Beinhart's 2002 study of English family lawyers revealed practitioners were striving to act on their clients' instructions while simultaneously directing them towards arrangements that reflected the relevant legal understanding of the welfare of the child: John Eekelaar, Mavis Maclean and Sarah Beinart, Family Lawyers: The Divorce Work of Solicitors (2000), 76, Note that the Family Law Council's Best Practice Guidelines suggest that lawyers 'should discuss with clients the arrangements being proposed for children to ensure that proper arrangements have been made for their welfare': see Family Law Council, above n 95, Part 5, [3.2]. 101 Law Council of Australia, above n 97, Rule Rhoades et al, above n 54, Ibid; Rhoades et al, above n 58, Rhoades et al, above n 58, Alison Diduck, Law's Families (2003) See Christine Piper, 'How do you Define a Family Lawyer?' (1999) 19 Legal Studies 93,

14 292 Federal Law Review Volume 36 in regular professional development activities, 107 which often include research-based training about children's developmental needs, their professional responsibilities as lawyers limit their capacity to use this information when it is not consistent with the law. As described, family law practitioners in our study sought to be child focused whilst also fulfilling their professional responsibilities to their client. However, the kinds of legal and logistical reality testing practices they described effectively mark the boundary of a child focused approach for legal practitioners. If the law happens to be out of step with other relevant knowledge on the topic such as the psychological evidence base a lawyer is not at liberty to choose between these sources when giving legal advice. Indeed, our study suggests that lawyers tend to use non-legal discourses to support their advice about the law, not to unpack it. At the heart of the complaints raised in Part 4 is a perception of marked disparity between the legal and social science understandings of children's post-separation needs, and for many mediators in our study the law was unacceptably narrow and ideological. 108 Yet this is the primary knowledge base with which solicitors must work, and they would be remiss in their duties if they failed to apprise a client about their legal entitlements because they were not compatible with the research evidence. C Constraints on incorporating the research into decision-making The previous section looked at the limits on lawyers' capacity to make use of the child development research owing to their professional obligations as legal practitioners. In this section I explore the scope for its incorporation into judicial determinations, using a post-reform decision of the Family Court as the basis for a hypothetical case study. Seaford and Seaford was decided soon after the McIntosh findings were published. 109 It involved competing applications for parenting orders in relation to an 11 year old boy who, up until the time of the trial, had been living primarily with his mother and spending five nights per fortnight with his father. The mother wanted the father's contact with the child reduced to two nights per fortnight. The father sought an equal time arrangement. In the course of the hearing, evidence was led and accepted that the parents' relationship was characterised by long term hostility, and that they were unable to co-operate or communicate about their son. 110 The trial judge also found that the child was suffering from anxiety and stress from 'having to manage close, nurturing and loyal relationships with two parents who have little respect for each other', 111 and accepted expert opinion that it was 'unrealistic' to expect the parents would be able to collaborate in the future, given the long history of conflict and abuse. 112 _ 107 For example, practising lawyers in Victoria are required to undertake 10 hours of compulsory professional development each year: Law Institute of Victoria, Continuing Professional Development Rules (2008). 108 Indeed, some family law scholars argue that the system-like nature of law means that it inevitably oversimplifies and distorts information from other disciplines, such as child psychology. See, eg, Michael King and Christine Piper, How the Law Thinks about Children (1995), Seaford and Seaford [2007] FamCA 1460 ( Seaford ). 110 Ibid [72]. 111 Ibid [73]. 112 Ibid [86].

15 2008 Dangers of Shared Care Legislation 293 In addition to the issue of parental conflict, the judge in this case made a number of adverse findings about the mother's parenting capacity. Amongst other things, she was said to be incapable of accepting the child's relationship with his father and was unable to prioritise the child's needs above her own. 113 The judgment also notes the mother's inability to appreciate that her son felt 'caught' in the middle of his parents' conflict, 114 and suggests that her application to reduce the father's contact time reflected 'a sense of needing the child to fill her [own] emotional requirements' rather than concern for her son. 115 In contrast to this, Brown J found the father had 'an intuitive and logical understanding of his son's predicament' and was sensitive to his support needs. 116 After assessing the evidence of the various checklist factors including the boy's wish to spend more time in his father's care, 117 the father's flexible work commitments, 118 and the court psychologist's suggestion of a parallel parenting regime 119 the judge decided that the father's equal time proposal should be preferred. 120 Mindful of the research findings and the history of conflict in this case, 121 and the child's clear attachment to his mother, her Honour set about carefully designing a 'structured week and week about' arrangement with changeovers to take place at the child's school to minimise contact between the parents. 122 Given the evidence of parental conflict in this case, a question arises about the extent to which it is open to a judge faced with the kind of applications that were made here to incorporate the research evidence into the decisional process. If we assume for a moment that the judge was convinced that the father should be the primary caregiver and the mother should have more limited contact with the child, 123 the dilemma she would have faced is that this was not how the case was run. Neither the father nor the Family Consultant argued against sharing parenting or sought or recommended a primary care arrangement in the father's favour. Although the father's initial application was for sole care, by the time the matter came on for hearing he had abandoned this in favour of his equal time proposal. 124 It is not clear why he had a change of heart. The judgment notes that this occurred after he received the court consultant's report, 125 which recommended joint care. 126 It is possible, given the findings from the second of the McIntosh studies, 127 which was conducted at the _ 113 Ibid [29], [87]. 114 Ibid [92]. 115 Ibid [87]. 116 Ibid [89]. 117 Ibid [74]. 118 Ibid [113]. 119 Ibid [86], [22]. 120 Ibid [119]. An exception to the shared parental responsibility was made to allow the father to enroll the child in school. The father also agreed to be responsible for payment of the child's school fees. 121 Ibid [123], [128]. 122 Ibid [128]. 123 Note that there is no indication in the judgment that this was the case. 124 Seaford and Seaford [2007] FamCA 1460, [22]. 125 Family Consultants are Family Court staff whose main role is to ascertain the views of the child and other family members and provide an opinion report on the child's best interests to the court: see Family Law Act 1975 (Cth), s 62G. 126 Seaford and Seaford [2007] FamCA 1460, [34]. 127 McIntosh and Long, above n 7.

16 294 Federal Law Review Volume 36 Family Court, that the court consultant was influenced by the shared care reforms in framing his recommendations. However, we cannot know for certain whether the law (directly or indirectly) affected the way the father presented his case. He may well have pursued more limited time with his son in any event, perhaps because of his employment commitments or out of concern for the boy's relationship with his mother. But we can be fairly certain that any legal advice he received would have alerted him to the fact that the law now requires judges to give 'positive' 128 consideration to an equal time arrangement, absent exceptional circumstances. Faced with applications of the kind made in Seaford and evidence of entrenched hostility between the parents, how might a judge incorporate an understanding of the research literature so as to maximise the child's wellbeing? A judge is not bound by the parties' proposals when crafting parenting arrangements. 129 However, proceeding to make an order for a primary care arrangement in favour of a parent who has not sought it would be procedurally unfair without giving both parties the opportunity to consider and if necessary lead new evidence about this option. The reality of litigation is that it is difficult (and discouraged) for a judge to reach a firm conclusion about the child's best interests early in the hearing process. It is only after the evidence has been adduced and tested that a decision-maker will have a sense of the most beneficial outcome for the child and their family. In practice, then, any inclination to design arrangements beyond the parties' proposals will only arise towards the end the trial. If a judge were to raise the point near the end of the hearing, it might prove necessary to allow the parties to re-open the evidence: the child might have to be re-interviewed, the court consultant recalled, new arguments (and perhaps additional crossexamination) explored, and the costs to the parties and the court substantially increased. 130 In the absence of such a response, the only avenue open to a judge in the circumstances is to structure the arrangements in a way that minimises contact (and conflict) between the parents, which is just what Brown J did. D The limits of conflict resolution services In their response to McIntosh's findings, Burrett and Green highlight the role of family relationship and alternative dispute resolution services, suggesting these as the solution to conflicted co-parenting. However, it is important to note that both of the McIntosh studies explored the effects of shared care arrangements in populations that had reached agreement with the assistance of professional interventions specifically designed to assist former couples manage their conflict. 131 The first study focused on parents who had reached agreement at a child focused mediation service. 132 The parents in the second sample had all participated in the Family Court's 'Child Responsive Program', a child inclusive service 133 staffed by social science professionals whose role is to help parents resolve and manage their dispute. 134 _ 128 See Goode (2006) 36 Fam LR 422, U v U (2002) 29 Fam LR I am grateful to Professor Chisholm for pointing out this argument to me. 131 McIntosh and Chisholm, above n 7, For a description of these services, see Lawrie Moloney and Jennifer McIntosh, 'Child- Responsive Practices in Australian Family Law: Past Problems and Future Directions' (2004) 10 Journal of Family Studies Child inclusive mediation typically involves a child consultant interviewing the children about their experiences and perceptions of their parents' separation, and feeding this

17 2008 Dangers of Shared Care Legislation 295 Burrett and Green have also suggested that McIntosh and her colleagues collected their data too early, and that more harmonious co-parenting relationships would have been found had the researchers waited a while longer. But it is worth bearing in mind the findings of Trinder and Kellett in England, which reported on outcomes two years after conciliated agreements were reached. 135 This study found only modest improvement in co-parental relationships over that time, with the majority of parents reporting a negative relationship that had not improved, or had worsened, since settlement. 136 More to the point, the situation for children at the two year follow-up had not improved at all, with more than a third of the children continuing to show significant psychological distress. 137 The Trinder and Kellett data also confirm that coparenting is most likely to succeed where there has been a history of collaboration before settlement. 138 These and other studies have shown that conflict management services are not a panacea for the emotional fallout of relationship breakdown, and that conflict between former partners cannot always be resolved. Indeed, for some clients, therapeutic interventions can re-traumatise clients who have experienced relationship breakdown, triggering anxiety and depression. 139 Moreover, some disputes are not suited to alternative dispute resolution processes. To take the example of the parents in Seaford, even if the judge had ordered them to attempt mediation, 140 they may well have been assessed as unsuitable, given the findings about the wife's impulse control and other psychological health problems and her ongoing abusive behaviour. 141 Before proceeding to provide family dispute resolution, providers are required to conduct an intake assessment and be satisfied that neither party's capacity to negotiate freely is affected by a history of violence or by their own or the other party's emotional, _ information back to the parents to assist them in their negotiations: see Anthony Grimes and Jennifer McIntosh 'Emerging Practice Issues in Child-Inclusive Divorce Mediation' (2004) 10 Journal of Family Studies For a description and critique of the pilot for this program, see Rosemary Hunter, 'Childrelated proceedings under Part VII Div 12A of the Family Law Act: What the Children's Cases Pilot Program can and can't tell us' (2006) 20 Australian Journal of Family Law Liz Trinder and Joanne Kellett, The longer-term outcomes of in-court conciliation, Research Series 15/07 (2007). 136 Ibid ii. 137 Ibid Chapter 7. See also UK research on children's experiences of post-separation shared time arrangements by Carol Smart and Bren Neale, which found that for many children, such arrangements became 'increasingly unsatisfactory over time': Bren Neale, Jennifer Flowerdew, and Carol Smart, 'Drifting Towards Shared Residence?' 33 (2003) Fam Law 904, Trinder and Kellett, above n 135, Chapter Michael D Yapko, Breaking the Patterns of Depression (1997). 140 The Independent Children's Lawyer in the case proposed an order requiring the parents to attend a family dispute resolution program if they could not agree on decisions regarding the child. However the judge did not make this order. 141 See Seaford [2007] FamCA 1460, [43], [63], [101], [116].

18 296 Federal Law Review Volume 36 psychological or physical health. 142 If the practitioner is not satisfied that a party is willing or able to negotiate, mediation cannot proceed. 143 But the most troubling aspect of Burrett and Green's response is its approach to diversity of family practices, and its lack of empathy for the 'real lives' of women, children and men in family relationships. 144 Far from alleviating children's distress, the proposition that shared care should be the 'default' legal position whether or not the parents can cooperate with one another, seems likely to compound the problem for post-separation families. As John Eekelaar has argued, there is a danger that services to help parents manage family change will create an expectation that idealised postseparation outcomes such as shared parenting can and should be attained regardless of the particular family circumstances. 145 This potential was recognised by the Hull Committee, which concluded there were 'dangers in a one size fits all approach' to children's lives 146 and recommended arrangements be determined according to 'the best interests of the child concerned and on the basis of what arrangement works for that family.' 147 Yet the McIntosh data suggests that this goal is not being met. Were the Burrett and Green proposal to be adopted, not only would some families be 'channelled' into a shared care arrangement that is not conducive to their own or their children's wellbeing, 148 they might be blamed for 'failing' to make it work. 6 CONCLUSION Recent empirical research suggests that the success of the 2006 parenting reforms in producing more shared care outcomes has come at a cost to the psychological wellbeing of many children who are caught in the middle of their parents' conflict. In response to this evidence, a number of commentators have called on lawyers and judges to incorporate an understanding of the research literature on children's postseparation needs into their advice and decision-making practices. Implicit in these proposals is the idea that the law itself and the policy messages that accompany family law reforms play a relatively minor role in shaping these practices. 149 The argument for research-based judicial interpretation assumes that cases will be run and orders sought much as they were before the reforms, and that the legislative changes have not affected parents' proposals or their lawyer's advice. It is true there has been much written about the need to recognise the pivotal role of legal actors as interpretative _ 142 Family Law Regulations 1984 (Cth), Reg. 62(2). 143 Family Law Regulations 1984 (Cth), Reg. 62(4). In this circumstance, the family dispute resolution provider would issue a certificate under Family Law Act 1975 (Cth), s 60I(8)(aa) or s 60I(8)(d). 144 See Carol Smart, Personal Life (2007), John Eekelaar, Family Life and Personal Life (2006), Every Picture report, above n 14, [2.39], [2.4]. 147 Ibid [2.44]. 148 See Carl E Schneider, 'The Channelling Function in Family Law' (1992) 20 Hofstra Law Review 495, For an argument about the role of legislative direction in this field, see Juliet Behrens, 'The form and substance of Australian legislation on parenting orders: a case for the principles of care and diversity and presumptions based on them' (2002) 24 Journal of Social Welfare and Family Law 401.

19 2008 Dangers of Shared Care Legislation 297 gatekeepers of the effects of statutory amendments. 150 But a number of empirical studies over the years have also shown a strong correlation between the law itself and the advice practices of lawyers. 151 Whilst the proposals for professional development and referrals to family relationships services have merit, they are not adequate to counter the risks of the current legislation. What is needed is further law reform. There are several paradoxes about this situation, which highlight the missed opportunities along the path to the 2006 amendments. The first is that the Every Picture report recommended against a one size fits all approach, suggesting this would be a dangerous road to tread, and that the law should provide adequate scope for tailormade arrangements for individual families. Yet despite increasing policy recognition of the diversity of family relationships, our current legislative framework appears to envisage the children of divorced parents living across two homes in all but exceptional cases. This raises the second paradox, which is that the broad discretionary approach to children's best interests of the early Family Law Act provided considerably greater potential for nuanced decision-making than its modern successors. 152 Reform, it seems, is not always progress. The third paradox is that the former Australian government had abundant compelling evidence about the links between exposure to parental conflict and harm to children at the time the legislation was drafted. The recent empirical evidence of children's distress should have come as no surprise. While there has been no explicit statement by the present Australian government that it is considering amendments to the law, the Attorney-General s Department has recently commissioned urgent research into the circumstances under which shared care arrangements do not work in the best interest of the child. 153 Perhaps not surprisingly fathers' groups have rejected McIntosh's concerns. 154 Given the influence of the fathers' lobby on the process that led to the Shared Parental Responsibility Act, the current government is likely to proceed cautiously in pursuing legislative change that would broaden the range of encouraged parenting arrangements. However, assuming it is minded to address the concerns raised by the recent research through statutory amendment, one way forward might be to incorporate the 'key predictive factors' identified by McIntosh and Long as contra-indicators for shared parenting into the existing section 65DAA. These factors suggest that a dual living arrangement is not appropriate (particularly for young children, for whom frequent transitions will interrupt the infant's experience of care) where: The care climate is marked by apprehension about the child's safety; At least one parent reports a poor relationship with the child; _ 150 See, eg, Chisholm, Assessing the Impact of the Family Law Reform Act, above n 16, Daphna Hacker, 'Motherhood, Fatherhood and Law: Child Custody and Visitation in Israel' (2005) 14 Social and Legal Studies 409; Carol Smart and Bren Neale, 'Arguments Against Virtue Must Contact Be Enforced?' [1997] Family Law 332; Dewar and Parker, above n 16; Helen Rhoades, Regina Graycar and Margaret Harrison, The Family Law Reform Act 1995: The First Three Years (2000). 152 See, John Dewar, 'Reducing Discretion in Family Law' (1997) 11 Australian Journal of Family Law Attorney-General's Department, Provision of Research into Shared Care Parenting Arrangements since the 2006 Family Law Reforms (2008) Austender < F51C-65679E5208DA2DA4> at 9 December See above n 60.

20 298 Federal Law Review Volume 36 An alliance between the parents is absent; Considerable levels of inter-parental conflict are present; and The child is unhappy with the substantial division of their time and life. 155 In the absence of guiding considerations of this kind, the recent empirical evidence suggests that decision-making and settlement practices may often be an exercise in finding a way to manage a shared parenting arrangement between parents who cannot collaborate, rather than determining the optimal care environment for the child. Of course, given the growing evidence that what matters to children is the quality of the care they receive, 156 the better option might be to remove the emphasis on time from the legislation altogether, in favour of a framework that more accurately reflects an understanding of the child development research and provides greater scope for the negotiation of diverse and fluid arrangements for children. As Chisholm has recently noted: If you asked the researchers to draft guidelines about what is likely to be best for children, I doubt if they would include the idea of equal or near-equal time with each parent. They might well say that some minimum time is necessary, and they would have a lot to say about the pros and cons of overnight stays for young children, and they would emphasise the importance of the child's age, and other particular circumstances. Of course, the idea of equal time makes a lot of sense in terms of adult entitlement, and also some children themselves see it as a fair solution to their parents' conflict; but so far as I can tell it does not reflect what research scholars believe is important for children's development. 157 At the same time, we need to acknowledge that the inherently binary nature of law inevitably limits its ability to capture the complexity and nuance of social science research, and as John Dewar has suggested, it may be that children s needs are ultimately unknowable by law. 158 In this vein, a number of family law scholars have argued against legal presumptions about children's interests, arguing that reforms 'which see rates of contact, in and of themselves, as marks of success are measuring the wrong thing', 159 and that a default or starting position of shared time is 'a simple solution to a knotty problem'. 160 Indeed a number of Australian academics during the 2003 reform process urged the policymakers to see that assuming in advance what arrangement is best for children is disrespectful of children's citizenship and the complex 'real lives' of family members. 161 The failure to heed these warnings means _ 155 McIntosh and Long, The Child Responsive Program, above n 7, See for example, Paul R Amato and Joan G Gilbreth, 'Nonresident fathers and children's well-being: a meta-analysis' (1999) 61 Journal of Marriage and the Family 557; Carol Smart, 'From Children's Shoes to Children's Voices' (2002) 40 Family Court Review 307; Joan B Kelly, 'Changing Perspectives on Children's Adjustment Following Divorce: A View from the United States' (2003) 10 Childhood Richard Chisholm, 'Shared Care and Children's Best Interests: Working with the Amendments of 2006', (Paper presented at the Legal Aid NSW Family Law Conference, Sydney, 22 August 2008) John Dewar, The Normal Chaos of Family Law (1998) 61 Modern Law Review 467, Herring, above n 29, Neale, Flowerdew, and Smart, above n 137, See Rhoades, above n 13,