Divorced parents to take turns in marital home under judge’s plan

A radical custody plan has been hatched by a family law judge who has called on parents to put their children first.

DIVORCED parents would take turns living in the marital home with their children, under a radical reverse-custody plan by the judge who advised the Federal Government on family law ­reform.

Australian Law Reform Commission president Sarah Derrington called on parents to put their children first in bitter custody ­battles.

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“If families could afford it, the ideal situation to my mind would be the children stay in the marital home and the parents come in and out, week in and week out,’’ Justice Derrington told The Sunday Mail.

“Just think about a child at school being shunted three days, two days or a week about, and they never have the right kit, the books that they need are always at the other parent’s house.’’

Justice Derrington said the reverse-custody system – known as “nesting’’ – would be unrealistic for many families, “but if you can afford it, it’s ideal’’.

She said custody “is not about parents’ rights’’, and warned that 50-50 custody was not always in a child’s best interests, even without family violence.

Children as young as six should have a bigger say in where they live after a divorce, she said.

“It is really important that any child who wishes to express a view is given that opportunity.

“Even six and seven-year-olds are probably quite capable.

“(But) you’ve always got to be conscious of the manipulation of the parents – it’s very hard to know what to do if one parent is holding out incentives and inducements to a teenager.’’

The marital home gives kids of divorced couples a stable foundation.

The commission’s 572-page family law report also recommends simpler property division – with the assumption that separated couples with children made equal contributions during the marriage.

Justice Derrington said a stay-at-home parent contributed as much to the family as a high-earning breadwinner.

“What the couple has built up during the marriage should be considered 50-50,’’ she said.

“Even if the husband brings in $3 million because he’s working extremely hard, her contribution should be considered equal to his contribution where she’s given up her career and has brought up four children.

“Could he have built his career without her support?

“Who made sure that his laundry was done, his meals were cooked, that she hosted the social functions that he required her to host?

“We think a different rule might apply where there are no children involved.’’

Justice Derrington said the husband and wife could keep assets they owned before marriage – unless they were improved during the marriage.

“So for example if she’s got the million-dollar house to start with, and he’s a fabulous tradie and does a major renovation on it and it’s now worth $2 million, in that circumstance it’s mingled with the assets that were created by the family,’’ she said.

Justice Derrington said her suggestion, which was not part of the formal ALRC report, would not be suitable for families affected by domestic violence or high conflict.