Every family t be shaped in its own way

EDWARD Dabrowski is the executive director of the Shared Parenting Council. He's based in Western Australia, where he works for BHP. He has two adolescent children and he's in a shared care arrangement with his ex-wife, meaning he spends substantial periods of time with them, including over Christmas, during holidays and during the week.

Dabrowski says he co-operates with his ex-wife about parenting because it is in the best interests of his children.

"To me, it's taking a child's human rights away, to shut them away from their father," he says. "The research shows, if you take a boy away from his father, and he hasn't got that role model, he can end up lacking in self-esteem.

"He never feels he's good enough. He wonders where he's going wrong. He can fall into crime. With girls, if they have got the affection of their fathers, they don't have to go looking for affection in multiple relationships."

Having been separated for more than nine years, Dabrowski acknowledges that there is water under the bridge in his failed marriage. He has mellowed since the days when he'd describe the family court as factories for severing the bonds between fathers and children. Sometimes, when he goes to his ex-wife's house, he'll even be invited in to watch his son playing a new computer game or to have a cup of tea.

When one of his children was having a first communion, he threw open the door to his own house, so the whole family, his ex-wife included, could celebrate together.

It would be going too far to say its all smooth sailing, but Dabrowski passionately believes that his way - shared parenting, with substantial if not exactly equal time - is the right way, which is why he's passionately opposed to any change to the so-called "shared parenting" laws introduced by the Howard government in 2006.

On the flipside are groups such as the National Council for Children Post Separation, who argue that change is necessary, and urgently so, because, they argue, the changes have placed women and children at risk of violence. There is no doubt that violence sometimes occurs: federal Attorney-General Robert McClelland ordered a review of the shared parenting law because a four-year-old girl, Darcey Freeman, was thrown from the Westgate Bridge in Melbourne last year, allegedly by her father.

But did the changes to the Family Law Act (1975) bought in by the Howard government really create an environment in which Darcey was more at risk than she would have been, before the law was changed? And are more women and children at risk than were before?

Some history is necessary. The changes to the Family Law Act (1975) came about because the Howard government, and many in the community, saw a problem with the way family law was operating; namely, that children whose parents separated would spend most of their time with one parent (usually the mother) while the other parent (usually the father) would see the children only every other weekend, and half the school holidays (in legal terms, this was known as the 80:20 split, because it meant the children spent around 80 per cent of their time with their mother).

Over time, a father's relationship with his children often dwindled away to nothing.

The Howard government conducted a review with the aim of finding ways for both parents to remain involved in their children's lives. That review ruled out equal time, because a flat "equal time" would have shifted the focus from the rights of children to the rights of parents.

Instead, it said the courts should presume a child's best interests were met by having a relationship with both parents, and that children would benefit from "equal shared parental responsibility" - which doesn't mean a 50-50 time split, although the legislation does say the court must consider making orders that the child spend "equal time", or if not equal time, then "substantial time" with both parents.

In one of the first reviews of the shared parenting law, released last Thursday, retired family court judge Richard Chisholm says that putting the word "equal" in there had confused people. Men, in particular, thought they could now get a 50-50 time split, when in fact that was never in the law. McClelland agreed, saying there was a "misunderstanding in the community about who was entitled to what".

Chisholm suggests that rather than assuming any particular outcome, be it 80-20, or 50-50, the law should ask the court to consider all options, and decide what's best in each case.

That, however, was not his only recommendation. Chisholm also suggested the Rudd government scrap those provisions in the shared parenting law that were potentially putting women and children at risk of violence.

The first of these is the so-called "friendly parent" provision. It requires a court to look at "the willingness of each of the children's parents to encourage a close and continuing relationship between the child, and the other parent, after divorce".

In other words, a parent who is hostile to their ex-partner, and rubbishes them in front of the children or flouts court orders and refuses to hand the children over, can be tagged "unfriendly" and the court can then order they get less time with the children.

The second provision regards costs. A parent who raises allegations of violence that aren't proven can be made to pay some, or even all, of the other party's costs.

Chisholm's report says these provisions were included "as a response to certain groups [read: men's groups] who expressed a concern about false allegations of violence."

But, he said, mothers had since developed "a fear of not being believed" if they raised allegations of violence. This he described as the "victim's dilemma".

Chisholm says, as most people know, that "the majority of men are not violent". Likewise, the "majority of mothers support their children having a close relationship with their fathers".

With that in mind, he still recommends change. The Family Court should examine each case on its merits.

The alternative is what's now in place: a tangled web of legislation that many people misunderstand and that judges are expected to somehow mould fractured families around.