|from||Mike Murphy |
|sender time||Sent at 17:43 (GMT-04:00). Current time there: 18:02. ✆|
|date||25 October 2009 17:43|
|subject||Caroline Overington "Replace shared care with Canada model"|
Caroline Overington | October 26, 2009
THE Rudd government has been urged to replace shared parenting laws with a model similar to that of Canada, where shared parenting after divorce is not necessarily considered in the best interests of the child.
The Australian understands that the Canadian model has been put to Attorney-General Robert McClelland as an option to consider as he wrestles with changes to the reforms introduced by the Howard government in 2006.
Canada places the interests of the child ahead of the right of either parent to insist upon a shared-care arrangement.
Unlike the Australian family law regime, Canada does not require a court to presume that the best interests of the child are met by shared parenting.
It encourages the courts to take into account the benefit to children of having a relationship with both parents after divorce, but also takes into account the roles played by each party before separation, and the consequences to children of too much disruption in their lives.
It is unlikely that a breastfeeding baby would be placed in a shared care arrangement, as happens in Australia under the shared parenting law; nor is it likely that children would be ordered into an arrangement that sees them woken from naps to visit their other parent, as also happens here. It is understood that the Canadian model has been put to Mr McClelland in the form of submissions from women lawyers, and from women's groups opposed to the shared parenting laws.
It is also understood that the main group representing divorced and separated men, the Shared Parenting Council, has put up no alternative to the current regime.
The group missed the deadline for submissions to the review of the law being chaired by retired family court judge Richard Chisholm. Rather than proceed without a paper from the fathers group, Professor Chisholm has offered to take a late submission.
Child custody in Canada is governed by the Divorce Act, which says that courts shall "take into consideration only the best interests of the child of the marriage".
That formulation is supported by case law, which also puts the interests of the child first.
Canadian states and territories spell out some of the tests for the "best interests" principle.
Some say any disruption of the child's life must be taken into account before shared care is considered.
Men's groups have tried to bring shared parenting to Canada, most recently in August, but so far they have failed.