Recent research is helping parents and family law experts reframe `what’s best for the kids’ during separation or divorce. Photo: Katerina_zhiltsova.
When couples separate, the phrase “what’s best for the kids” is used as the guiding light. But new research shows the ways we’ve been getting it wrong – and how we can correct the course.
University of Melbourne law professor Belinda Fehlberg, Australian National University professor Bruce Smyth – a family law social scientist of three decades – and family sociologists Dr Monica Campo and Flinders University professor Kris Natalier recently completed a study on the meaning of home for children and young people after parental separation.
The study asked 68 children aged eight to 18 what home meant to them and how they might make a home. Its key conclusion found relationships with people they loved, and feeling safe, were central to children and young people’s sense of home. Relationships with parents, built and maintained through spending time together and doing everyday things, were especially important.
“We found that when you ask children about the physical things in the home, it centres on the kitchen, the dining table and the couch – sites of connection, where we huddle, cuddle and share a meal,” Prof Smyth says.
“It’s a powerful message that leads us to broaden the conversation and ask: How do we use time to connect with our children? What message do we send them based on how we spend our time with them? How valued does that make them feel?”
In contrast, the 39 parents participating in the study, while also seeing relationships as central to home, were more likely to focus on physical and material aspects of home and express concern regarding what they could offer their children materially.
Prof Smyth suggests ways of shifting that lens.
“What do you think home means to your child and how can you make that home? What kind of parent do you want to be? How do you want to be remembered by your children? And how can you help your child hold onto their childhood?” he says.
“How can you empower your children to do things that children do, rather than pulling them into conflict?”
The research also aims to help professionals in the family law system support more meaningful post-separation parenting discussions – especially in light of recent legislative changes designed to prioritise children’s best interests and voices.
Australian family law has undergone three significant shifts in the past two decades.
The 2006 introduction of equal shared parental responsibility was quickly conflated with 50/50 parenting – allowing parents to argue children should spend equal time with each.
“I’ve never been a fan of equal time – it created a legal anchor for people to fight about time as a number, rather than as an experience,” Prof Smyth says.
“There can also be a dark underbelly to equal time. One complicating factor is how you apply the concept where family violence is involved.”
Catherine Coles of Parker Coles Curtis says a move in family law to emphasise listening to young people’s voices is heartening. Photo: Parker Coles Curtis.
In 2011, an amendment clarified that protecting children from harm took priority over encouraging parent-child relationships. When that didn’t go far enough, a 2023 reform removed language around equal shared parental responsibility and time entirely, refining the law on the best interests of the child.
Catherine Coles, director of Parker Coles Curtis and an accredited family law specialist and Independent Children’s Lawyer (ICL), says the change reflects social science and frontline legal practice.
“The term equal shared parental responsibility led to this myth that the starting point was each parent got equal time. But that law was never about time, but about parents consulting one another on major long-term decisions,” she says.
Ms Coles says with more research now available on the quality of time versus quantity, there’s a broader understanding across the legal sector that a child’s safety is a priority.
“Now, the law prioritises the child’s physical, psychological and emotional safety. Once that’s addressed, it’s about working with parents to meet the child’s needs – and that includes listening to the child’s own views.”
While it was common previously for practitioners not to talk to children during legal proceedings, ICLs such as Ms Coles are now mandated to meet with children five years and older.
“I hope there will be greater attention to ensure training’s up to scratch and children are invited to share their views in sensitive, age-appropriate ways,” she says.
Studies show children from homes where there’s entrenched conflict require increasing amounts of assistance with depression and anxiety.
Ms Coles says as a result of the changes to family law, practitioners are working to educate parents on ways they can shift the focus.
“Parents can tend to think in terms of what works or doesn’t work for them. Instead of fitting children into your schedule, how can you be flexible? Is there an arrangement that will better serve your children and set them up for a healthy, happy future?” she says.
“We’ve been encouraging more parents to attend parenting courses. It’s not a failure to go on a parenting course. Even if there’s no conflict at home, there are major benefits for parents and kids.”
For more information, contact Parker Coles Curtis.
