The Need for Change

Today in Australia, nearly one in two marriages fail (ABS 1998), bringing psychological, economic and social vulnerability, to approximately fifty thousand children whose parents divorce each year (Buckingham 2001).  From a child's viewpoint, these divorces are unexpected, inexplicable and unwelcome.  Probably the most traumatic aspect of the divorce experience for children is the sudden loss of a parent from the home. "In effect they awake one morning to find one parent gone" (Wallerstein & Kelly 1980).

Divorce is so common that the greeting card industry has begun to package what it assumes are appropriate sentiments for the occasion.  Well over ninety thousand adults are in are position to send their announcement each year (ABS 1998) and it does not appear that the market has peaked.   Court officers’ talk with some pride about the new simplified Divorce kit: It's sort of like a tax pack––you just tick a few boxes one explains.

With the growing numbers of children affected by divorce there is increasing legal and community disquiet that after twenty seven years of the Family Law Act, present day methods of dealing with custody and contact issues are not working satisfactorily. 

Why are there such proposals for change?  The answer is self evident, because no one likes the present system.  The children of divorce, parents, legal and health professionals increasingly complain that the exclusivity of sole residence is not benefiting anyone. 

  • Children complain that they miss their non–custodial parents; they experience guilt, tension and loyalty conflicts as a result.

  • Non–custodial parents complain that they miss their children; they feel depressed, alienated and powerless.  They become non-parents, in effect ‘visited’ aunties or uncles.

  • Custodial parents complain that they are over-burdened, have too many responsibilities and that seeking work and having the responsibility of full time parenting is too stressful.

  • Judges complain that the court calendar is congested, that child custody  decisions demand the ‘Wisdom of Solomon’ and no matter which parent is awarded custody of the child, the case will be back in court within a short period of time.

To these complaints can be added those of psychiatrists, psychologists and sociologists who say that the current legal system does not pay sufficient attention to human development, children's needs, and the data showing what is psychologically in the best interests of children.  Others complain that the ‘winner take all’ concept implied by sole custody treats the child as an object to be fought over within the legal system. 

It is well documented that sole custody, which has had a long trial period, leaves serious problems for children and their parents.  However, there is empirical and clinical evidence that joint physical custody encourages responsible behaviour and is psychologically sound.  What seems to be clear is that the interests of parents and children do not usually coincide when a marriage breaks down.   We have yet to read a study that concludes children prefer their parents to go their separate ways than to stay together––even when the domestic atmosphere is tense.

The work undertaken so far suggests that the ready accessibility of each parent is likely to be of considerable value in assisting children come to terms with the reality of their changed predicament and in keeping both parents alive for them.  Research indicates that the best and perhaps only way to achieve true continuity of family relationships is through the medium of joint residence that aims to preserve the child's perception of both mother and father as an integral part of his or her life, a positive role model, and a continuing and consistent source of love, security, respect, discipline, and exposure to a varied range of life experiences. 


Australian Bureau of Statistics (1998). Marriages and Divorces, Australia (Catalogue number 3310.0), Australian Bureau of Statistics: Canberra 

Buckingham J (2001). State of The Nation: A Century of Change. Centre For Independent Studies: St Leonards NSW. pp 33–35 citing Australian Bureau of Statistics data .

In 2000, the parents of 49,600 children divorced representing around 1% of children aged less than 18 years. This is not a cumulative total, and therefore does not include children whose parents divorced in previous years. In 1997, 28% of dependent children lived apart from one or both of their natural parents, and 11% (well over a third) did so because of divorce.

Wallerstein J. S., & Kelly J. B (1980). Surviving The Break Up: How Children and Parents Cope With Divorce. Basic Books: New York. p 39


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