shared residence research

Research
Shared residence: a review of
recent research evidence
Liz Trinder*
Shared residence, where children divide their time between parents after separation or
divorce is becoming more common. This paper reviews recent empirical research on
the prevalence and durability of shared residence arrangements, the satisfaction of
parents and children, and the impact of shared residence on child well being. The
evidence reviewed suggests that shared residence can be a positive outcome where
parents are able to co-operate and where arrangements are centred around children’s
needs but that shared residence in higher conflict cases, typically following litigation, is
associated with negative outcomes for children. The review concludes that the
adoption of a shared residence presumption in England and Wales would, following
recent Australian experience, lead to a rapid expansion of the ‘wrong type’ of shared
residence, that is amongst the high conflict litigating cases least equipped to make it
work for children.
INTRODUCTION
Over the last decade there has been an increase in the numbers of children who
divide their time between both parents in ‘shared residence’ or ‘shared care’
arrangements.1 This rise has occurred in England as well as other similar jurisdictions,
including the United States, Australia and Sweden.2 Early research in the US and
Australia suggested that shared residence was the choice of a distinctive group of
well-resourced and co-operative parents.3 More recently, there has been a greater
willingness amongst judges and legislators to enable, encourage or even mandate the
use of shared residence for litigating parents.4 In England, case law has evolved from
a position where shared residence orders were deemed appropriate in only
‘exceptional circumstances’ (Re H (A Minor) (Shared Residence)),5 to ‘unusual
circumstances’ in A v A (Minors) (Shared Residence Order),6 to the position in Re W
(Shared Residence Order) where Wilson LJ stated that shared residence orders were
* Professor, School of Law, Exeter University, UK.
My thanks are due to Belinda Fehlberg, Joan Hunt, Rae Kaspiew and Bruce Smyth for assistance in
navigating the research findings and for comments on an earlier draft of this paper.
1 See the use of these terms discussed below.
2 B. Smyth, ‘A 5-year retrospective of post-separation shared care research in Australia’ (2009) 15 Journal
of Family Studies 36.
3 Ibid. See also H. Irving and M. Benjamin, ‘Shared parenting and sole custody’, in H. Irving and
M. Benjamin (eds), Family Mediation: Contemporary Issues (Sage, 1st edn, 1995).
4 For analysis of the developments in case law see S. Gilmore, ‘Shared residence: a summary of the
courts’ guidance’ [2010] Fam Law 285; P. Harris and R. George, ‘Parental responsibility and shared
residence orders: parliamentary intentions and judicial interpretations’ [2010] CFLQ 151.
5 [1994] 1 FLR 717.
6 [1994] 1 FLR 669.
475
not contingent upon ‘unusual’ or ‘exceptional’ circumstances.7 Elsewhere some
jurisdictions, notably Australia,8 have gone considerably further in actively promoting
the use of equal or substantial time with a consequent increase in shared care,
especially amongst litigating populations. In England a Shared Parenting bill sponsored
by Conservative MP Brian Binley is scheduled to have a Second Reading in July 2011.
Nonetheless, the child’s welfare remains the paramount consideration. As Baroness
Hale of Richmond remarked in the shared residence case Holmes-Moorhouse v
Richmond-Upon-Thames LBC:
‘When any family court decides with whom the children of separated parents are
to live, the welfare of those children must be its paramount consideration:
Children Act 1989, s1(1). This means that it must choose from the available
options the future which will be best for the children, not the future which will be
best for the adults’.9
The challenge therefore is to identify what is in children’s best interests and whether or
not the greater use of shared residence promotes children’s welfare in mediated and
litigated cases, beyond the ‘natural constituency’ of well-resourced and generally
co-operative self-selecting parents.
Until now the expansion of shared residence, especially in litigated cases, has
largely run ahead of the empirical research on the possible advantages and
disadvantages of shared residence for children. Indeed the Australian reforms were
introduced by the Howard Government in response to pressure from fathers’ groups in
spite of the (albeit limited) evidence that was available at the time.10 However,
legislative changes and the recent increase in the number of shared residence
arrangements, most notably in Australia, have prompted a rapid expansion in the
evidence available to guide legislators and practitioners. The aim of this article
therefore is to review and summarise the key messages emerging from these recent
studies.11 In the forthcoming discussion of the research, I will largely use the term
‘shared care’ rather than ‘shared residence,’ as it is the term commonly used in
Australia and internationally. The term is used only to refer to the sharing of the child’s
time between each parent. It does not imply any particular degree of co-operation or
co-ordination between the parents. The article will look in turn at the prevalence of
shared care, the characteristics of shared care families, durability of arrangements,
satisfaction of adults and children and the relationship between shared care and child
well being. The last section of the review summarises research on the operation of the
7 [2009] EWCA Civ 370, [2009] 2 FLR 436, at para [13].
8 Family Law Act 1975, s 65DAA (Cth), as inserted by the Family Law Amendment (Shared Parental
Responsibility) Act 2006 (Cth).
9 [2009] UKHL 7, [2009] 1 FLR 904, at para [30].
10 See for example, J. McIntosh, ‘Legislating for shared parenting: exploring some underlying assumptions’
(2009) 47 Family Court Review 389; H. Rhoades, ‘Revising Australia’s parenting laws: a plea for a
relational approach to children’s best interests’ [2010] CFLQ 172, at pp 173–174.
11 See appendix 1 for a tabular summary of the research designs of the main studies. For earlier reviews of
the research see J. McIntosh, ibid; B. Smyth, ‘A 5-year retrospective of post-separation shared care
research in Australia’ (2009) 15 Journal of Family Studies 36; S. Gilmore, ‘Shared parenting: the law and
the evidence (Part 2)’ (2010) 20 Seen and Heard 21.
476 Child and Family Law Quarterly, Vol 22, No 4, 2010
shared parenting legislation in Australia. The paper does not include the extensive
research on child support or ancillary relief; this is not to say that practical issues
related to money are unimportant.12
At the start it is important to sound a note of caution on the evidence base. Whilst
there are some very clear and persuasive messages emerging from recent research,
largely reaffirming older studies, the following challenges remain:
(1) There are still large gaps in the knowledge base. Almost everything that is known
about shared care is based on international research, mostly from North America
and Australia. There are no large-scale British studies of shared care. There is no
study from any jurisdiction that tracks the pathways and outcomes of a cohort of
litigated shared care cases.
(2) Studies have generally failed to distinguish between different types of shared
care families and instead have ‘lumped’ together co-operative, litigating and all
types of families in between into a single ‘shared care’ group.13 This is a problem,
as McIntosh et al note ‘Litigating and high conflict families who enter substantially
shared care arrangements are different from cooperative parents who self select
into shared parenting. They enter on a different track, and stay on that track by
different means, with different outcomes’.14
(3) There is an over-reliance on parent reports of children’s experiences of shared
care and the outcomes of care arrangements. Parents’ reports of their children’s
well being typically reflect their reports of their own well being.15 This means that
with a few notable (and small-scale) exceptions, we have only a limited
understanding of children’s own experiences of shared care. It is also manifestly
clear that mothers and fathers are not disinterested observers when reporting on
how well children are doing in shared care and all studies clearly reveal that
parent reports are highly gendered. More child self-report and reports from
independent observers, such as teachers, are needed.
(4) Finally, it is important to be aware that the terms ‘shared residence’ or ‘shared
care’ can be used to cover a very broad range of timeshare arrangements. There
is very little research just on 50/50 ‘equal time’ arrangements, given the low
numbers of these in the population.16 More commonly researchers use a looser
definition of shared care based on 35%–65% of overnights. In some studies the
cut-off is set at 30% of overnights – reflecting the threshold at which parenting
time adjustments begin under child support guidelines in some jurisdictions.
12 But see B. Fehlberg, C. Millward and M. Campo, ‘Shared post-separation parenting in 2009: An empirical
snapshot’ (2009) 23 Australian Journal of Family Law 247; B. Fehlberg, C. Millward and M. Campo,
‘Post-separation parenting arrangements: child support and property settlement: exploring the
connections’ (2010) 24 Australian Journal of Family Law 214; R. Kaspiew, M. Gray, R. Weston,
L. Moloney, K. Hand, L. Qu and the Family Law Evaluation Team, Evaluation of the 2006 family law
reforms (Australian Institute of Family Studies, Melbourne, 2009), at pp 175–203, 222–230. Available at
http://www.aifs.gov.au/institute/pubs/fle/index.html.
13 B. Smyth, ‘A 5-year retrospective of post-separation shared care research in Australia’ (2009) 15 Journal
of Family Studies 36, at p 52.
14 J. McIntosh, B. Smyth, M. Kelaher, Y. Wells and C. Long, Post-separation parenting arrangements and
developmental outcomes for infants and children. Collected Reports. Three reports prepared for the
Australian Government Attorney-General’s Department (Attorney-General’s Department, 2010), at p 104.
Available from the Attorney-General’s Department website: www.ag.gov.au.
15 This is known more technically as a form of ‘shared method’ variance.
16 Or, more precisely, where each parent has between 48%–52% of overnights.
Shared residence: a review of recent research evidence 477
PREVALENCE: HOW COMMON IS SHARED RESIDENCE?
Shared residence remains relatively uncommon although the numbers are rising.
There is just a single contemporary UK study that estimates the numbers of shared
residence arrangements. Using a nationally representative community sample17
Peacey and Hunt found that between 9%–12% of parents reported children having at
least three overnights per week with each parent or having arrangements which added
up to around half the year with each.18
The figures in Australia are broadly similar. Two recent Australian studies suggest
that shared care occurs in somewhere between 8%–12% of separated families.19 The
figure rises to 16%–17% in recently separated families.20 The number of ‘equal care’
arrangements is smaller with between 4%–7% reporting timeshares of 48%–52%.21 In
Norway 10% of children have equal or near equal arrangements.22 Wisconsin has a
particularly high rate of shared care following legislative changes in 1999, with 32%
shared care, albeit defined as 30% of overnights.23
It has been suggested that a combination of factors explains the small but steady
rise in shared care internationally. These include a range of interconnected social
factors such as the growth in women’s paid employment, greater father involvement
and concerns with work/family balance.24 There are also suggestions that child support
rules in some jurisdictions may offer an economic incentive to fathers to pursue shared
care or at least to facilitate strategic bargaining, although disentangling financial and
17 A community sample is drawn from the entire relevant population, that is, a sample of all separating or
divorcing parents. In contrast, other studies are drawn exclusively from litigating or court samples. In the
UK and Australia a representative community sample will therefore include a small percentage of
litigants, reflecting their low proportion within the whole population of divorced and separated families.
See appendix 1, below, for a tabular summary of the sample composition of all the main studies reviewed
in this paper.
18 The authors do note, however, that the figure is ‘unexpectedly high’ and should be tested with further
research. V. Peacey and J. Hunt, Problematic contact after separation or divorce (Gingerbread and
Nuffield Foundation, 2009), at p 19. Available online at http://www.gingerbread.org.uk/.
19 J. Cashmore, P. Parkinson, R. Weston, R. Patulny, G. Redmond, L. Qu, J. Baxter, M. Rajkovic, T. Sitek and
I. Katz, Shared Care Parenting Arrangements since the 2006 Family Law Reforms: Report to the
Australian Government Attorney-General’s Department (Social Policy Research Centre, University of
New South Wales, 2010), at p 18. Available at http://www.ag.gov.au/; R. Kaspiew, M. Gray, R. Weston,
L. Moloney, K. Hand, L. Qu and the Family Law Evaluation Team, Evaluation of the 2006 family law
reforms (Australian Institute of Family Studies, Melbourne, 2009), at p 119. Estimates vary partly due to
different units of analysis, time since separation and sampling date.
20 B. Smyth, ‘A 5-year retrospective of post-separation shared care research in Australia’ (2009) 15 Journal
of Family Studies 36, at p 40.
21 J. Cashmore, P. Parkinson, R. Weston, R. Patulny, G. Redmond, L. Qu, J. Baxter, M. Rajkovic, T. Sitek and
I. Katz, Shared Care Parenting Arrangements since the 2006 Family Law Reforms: Report to the
Australian Government Attorney-General’s Department (Social Policy Research Centre, University of
New South Wales, 2010), at p 18; R. Kaspiew, M. Gray, R. Weston, L. Moloney, K. Hand, L. Qu and the
Family Law Evaluation Team, Evaluation of the 2006 family law reforms (Australian Institute of Family
Studies, Melbourne, 2009), at p 119.
22 K. Skjørten and R. Barlindhaug, ‘The involvement of children in decisions about shared residence’ (2007)
21 International Journal of Law, Policy and the Family 373, at p 376.
23 M. Melli and P. Brown, ‘Exploring a new family form – the shared time family’ (2008) 22 International
Journal of Law, Policy and the Family 231, at p 232.
24 B. Smyth and L. Moloney, ‘Changes in Patterns of parenting over time: A brief review’ (2008) 14 Journal
of Family Studies 7; P. Amato, C. Meyers and R. Emery, ‘Changes in Nonresident Father-Child Contact
from 1976 to 2002’ (2009) 58 Family Relations 41.
478 Child and Family Law Quarterly, Vol 22, No 4, 2010
care motivations is fraught with difficulty.25 Legislative change promoting shared care
or the equivalent has clearly been significant in some jurisdictions, including Wisconsin
and Australia.
The picture is more mixed in relation to the extent to which shared residence/care is
ordered, or endorsed, by family courts in different jurisdictions. There are no English
studies on how many families opt for shared residence after consulting solicitors or
mediating. For those families who litigate, there is some evidence that shared
residence is less common than in the wider community. In a court file study of section
8 contact cases Hunt and Macleod found only five of 292 completed contact cases
(2%) where a shared residence order was made.26 In a sample of 250 litigating
parents, 7% of parents had a 35%–65% time split prior to an in-court conciliation
session, none of which had been court-ordered. Of the 179 parents who reached an
agreement in the conciliation appointment, only 6% of the split the time 35%–65%.27 It
should be recognised, however, that both the Hunt and Macleod and Trinder et al
studies were based on samples of contact cases only and excluded residence order
applications.
The picture is very different in jurisdictions which have moved to a shared
residence/care presumption.28 In Australia, the greatest expansion in shared care
since the 2006 reforms is quite clearly amongst mediated and litigated cases and not
the lower conflict informally agreed cases. Under Australian law, mediators and other
advisors are required to inform parents of the possibility of equal or substantial time,29
and proportionally more parents (24%) leave mediation with shared care30 than the
8%–16% community figure noted above.
In litigated cases, when Australian family law courts order that the presumption of
equal shared parental responsibility applies, they are required to consider whether
equal or substantial or significant time would be practicable and in the child’s best
interest.31 The result has been that up to a third of litigated cases result in shared care
arrangements. In a case file analysis by the Australian Institute of Family Studies
25 Lawyers may take a particularly sceptical view of paternal motivations. In the recent AIFS evaluation,
68% of lawyers thought that potential payers of child support were motivated to seek more time with
children to reduce child support liabilities, R. Kaspiew, M. Gray, R. Weston, L. Moloney, K. Hand, L. Qu
and the Family Law Evaluation Team, Evaluation of the 2006 family law reforms (Australian Institute of
Family Studies, Melbourne, 2009), at p 222–223 and see J. McIntosh, B. Smyth, M. Kelaher, Y. Wells and
C. Long, Post-separation parenting arrangements and developmental outcomes for infants and children.
Collected Reports. Three reports prepared for the Australian Government Attorney-General’s
Department (Attorney-General’s Department, 2010), at p 97.
26 J. Hunt and A. Macleod, Outcomes of applications to court for contact orders after parental separation or
divorce (Ministry of Justice, 2008), at p 27.
27 L. Trinder, J. Connolly, J. Kellett, C. Notley and L. Swift, Making contact happen or making contact work?
The process and outcomes of in-court conciliation (Department for Constitutional Affairs, 2006)
reanalysis of data.
28 Or, more strictly in an Australian context, a ‘mandated consideration’.
29 Family Law Act 1975 (Cth) s 63DA, as inserted by the Family Law Amendment (Shared Parental
Responsibility) Act 2006 (Cth).
30 R. Kaspiew, M. Gray, R. Weston, L. Moloney, K. Hand, L. Qu and the Family Law Evaluation Team,
Evaluation of the 2006 family law reforms (Australian Institute of Family Studies, Melbourne, 2009), at
p 98. Note, the AIFS evaluation examines the family law reforms in their totality, including but not
restricted to, shared care.
31 Family Law Act 1975 (Cth) s 65DAA, as inserted by the Family Law Amendment (Shared Parental
Responsibility) Act 2006 (Cth).
Shared residence: a review of recent research evidence 479
(AIFS), 23% of litigated cases resulted in shared care.32 However, excluding consent
after proceedings and pure consent cases, the proportion of judicially determined
cases resulting in shared care was 34%.33 The most recent data from the Family Court
of Australia confirms this picture with 33% of judicially determined cases resulting in
35%–65% time allocations.34 It is worth underlining the point that the use of shared
care in these higher conflict and higher risk cases is at twice or three times that found
in the wider community.
At the same time it is important to recognise that the litigated shared care cases
represent a much smaller proportion of the total number of shared care cases. In
Australia, as in England, only a small proportion of families use the courts so although
a high proportion of litigating families get shared care, they represent a small
proportion of the overall number of shared care families. Thus in the AIFS evaluation,
with a nationally representative sample of recently separated parents registered with
the Australian Child Support Agency, the great majority of parents had agreed their
own arrangements informally and only 2%–6% of all parents with shared care had
reached those through the courts.35 Similarly the Social Policy Research Centre at the
University of New South Wales (SPRC) report 6%–7% of parents with shared or near
shared care had reached those arrangements through litigation.36 Although the
numbers of litigated shared care cases are small they do in many cases, as we will see
below, pose serious issues in relation to children’s well being.
The rise in the number of litigated shared care cases in Australia can be clearly
linked to the new statutory framework. The disproportionate use of shared care in
litigated cases was not foreseen by the legislators and is viewed with considerable
concern.37 I consider this further below. Elsewhere a number of researchers have
suggested that judges may be more willing to consider shared care in contested cases
as a compromise solution for an impossible dilemma.38
CHARACTERISTICS: WHICH FAMILIES HAVE SHARED RESIDENCE?
Building a profile of families with shared residence/care is complicated by the lack of
any recent British studies. There are some robust US and Australian studies but there
are possible issues in translating findings to a British context. A further complication is
32 R. Kaspiew, M. Gray, R. Weston, L. Moloney, K. Hand, L. Qu and the Family Law Evaluation Team,
Evaluation of the 2006 family law reforms (Australian Institute of Family Studies, Melbourne, 2009), at
p 125–126.
33 Ibid, at p 125. 18.5% of consent after proceedings cases resulted in shared care and 25.5% of pure
consent cases.
34 Family Court of Australia Shared Parental Responsibility Statistics 2008/2009 http://www. familycourt.
gov.au/wps/wcm/connect/FCOA/home/about/Court/Admin/Business/Statistics/SPR/FCOA_SPR_2008).
35 R. Kaspiew, M. Gray, R. Weston, L. Moloney, K. Hand, L. Qu and the Family Law Evaluation Team,
Evaluation of the 2006 family law reforms (Australian Institute of Family Studies, Melbourne, 2009), at
p 157.
36 J. Cashmore, P. Parkinson, R. Weston, R. Patulny, G. Redmond, L. Qu, J. Baxter, M. Rajkovic, T. Sitek and
I. Katz, Shared Care Parenting Arrangements since the 2006 Family Law Reforms: Report to the
Australian Government Attorney-General’s Department (Social Policy Research Centre, University of
New South Wales, 2010), at p 41.
37 See, for example, the report by Judge Richard Chisholm calling for an amendment to the Australian law:
R. Chisholm Family Courts Violence Review: A Report by Professor Richard Chisholm (Attorney
General’s Department 2009). The report is a consultation document, including analysis of the legislation
and court rules, rather than an empirical study. The report is available at http://www.ag.gov.au/www/agd/
agd.nsf/Page/Families_FamilyCourtsViolenceReview.
38 J. McIntosh and R. Chisholm, ‘Cautionary notes on the shared care of children in conflicted parental
separations’ (2008) 14 Journal of Family Studies 37; Smyth, ibid.
480 Child and Family Law Quarterly, Vol 22, No 4, 2010
that it is clear from the discussion already that there are at least two broadly distinctive
types of shared care –informally agreed/more co-operative and more conflicted; and
perhaps an ambivalent group in between – yet to date few studies have explored this
dimension in detail or sought to link family characteristics with the nature of
arrangements and outcomes.39
Early Australian studies by Smyth and colleagues using data from focus groups
triangulated with data from a random sample of separated parents suggested that
families with shared care were a small and distinctive group who had self-elected
shared care.40 They were typically relatively higher income dual earners, living in fairly
close proximity, with co-operative relationships and with flexible arrangements for their
(typically) primary school-aged children.
The recent Australian community studies of post-separation care, largely confirm
that a sizeable proportion of shared care families largely still fit this profile of relatively
comfortable socio-economic backgrounds. In the two studies using nationally
representative datasets, both the AIFS evaluation and SPRC study found that shared
care parents were more likely to be older, have higher levels of educational attainment,
have higher incomes, have been married, and to live in fairly close proximity such as
within a 30 minute drive.41 The age profiles were also consistent with Smyth et al’s
earlier work, with children in shared care most likely to be primary school age or early
teenagers and with few under threes.42
The evidence on the quality of relationships is rather more attenuated. It would seem
that compared to more traditional primary carer arrangements, shared care parents are
more likely to communicate more often43 and more likely to share decision-making.44
However, this increased communication does not necessarily translate into, or stem
from, better relationships, at least according to mothers. For instance, only fathers
report lower levels of conflict in shared care compared to other arrangements45 and
only shared care fathers report that arrangements were more flexible than primary
care.46 On some key relationship issues – how parents get along with each other,
frequency of disagreements or anger and hostility – there were no differences at all
39 B. Smyth, ‘A 5-year retrospective of post-separation shared care research in Australia’ (2009) 15 Journal
of Family Studies 36, at p 54.
40 B. Smyth (ed), Parent–child contact and post-separation parenting arrangements. Research Report No 9
(Australian Institute of Family Studies, Melbourne, 2004).
41 R. Kaspiew, M. Gray, R. Weston, L. Moloney, K. Hand, L. Qu and the Family Law Evaluation Team,
Evaluation of the 2006 family law reforms (Australian Institute of Family Studies, Melbourne, 2009), at
p 168; J. Cashmore, P. Parkinson, R. Weston, R. Patulny, G. Redmond, L. Qu, J. Baxter, M. Rajkovic,
T. Sitek and I. Katz, Shared Care Parenting Arrangements since the 2006 Family Law Reforms: Report to
the Australian Government Attorney-General’s Department (Social Policy Research Centre, University of
New South Wales 2010), at pp 21–32, 52–53.
42 R. Kaspiew et al, ibid, at p 168; J. Cashmore, P. Parkinson, R. Weston, R. Patulny, G. Redmond, L. Qu,
J. Baxter, M. Rajkovic, T. Sitek, and I. Katz, Shared Care Parenting Arrangements since the 2006 Family
Law Reforms: Report to the Australian Government Attorney-General’s Department (Social Policy
Research Centre, University of New South Wales, 2010), at pp 18, 52.
43 R. Kaspiew et al, ibid, at pp 159–63, 169.
44 J. Cashmore, P. Parkinson, R. Weston, R. Patulny, G. Redmond, L. Qu, J. Baxter, M. Rajkovic, T. Sitek and
I. Katz, Shared Care Parenting Arrangements since the 2006 Family Law Reforms: Report to the
Australian Government Attorney-General’s Department (Social Policy Research Centre, University of
New South Wales 2010), at p 33. ‘Shared or nearly shared’ is defined as 29%–71% of overnights.
45 Ibid, at p 77.
46 R. Kaspiew, M. Gray, R. Weston, L. Moloney, K. Hand, L. Qu and the Family Law Evaluation Team,
Evaluation of the 2006 family law reforms (Australian Institute of Family Studies, Melbourne, 2009), at
pp 153–154.
Shared residence: a review of recent research evidence 481
between shared care and typically primary care arrangements for either mothers or
fathers.47 On some issues, notably the overall quality of parental relationships, mothers
with primary care relationships were actually more positive than shared care
mothers.48
One possible reason for the absence of clear relationship advantages of shared
over primary care is that the shared care population picked up in community studies
now includes a significant minority of higher conflict families rather than just the early
adopters. On a range of indicators, approximately a quarter of the shared care
co-parental relationships in the SPRC and AIFS studies were problematic, in some
respects more so than primary mother arrangements. The SPRC study reports that
35% of mothers in shared or near shared care arrangements rarely, if ever, consulted
the other parent on child-rearing matters.49 The AIFS evaluation found that 16%–17%
of shared care mothers reported ‘lots of conflict’ in the relationship.50 Similarly the
SPRC study found higher rates of conflict over money reported by shared care
mothers than any other arrangements.
Further, a significant minority of shared care mothers report safety concerns.51 In the
AIFS evaluation nearly a quarter of shared care mothers reported having been
physically hurt prior to the separation, nearly half reported concerns about the other
parent’s mental health and/or substance misuse and a fifth reported ongoing safety
concerns.52 Indeed in the AIFS evaluation, those with safety concerns were just as
likely to have shared care than not have shared care.53 The SPRC study found that a
third of shared care mothers had some safety concerns and 6% had serious
concerns.54
The two recent studies by the AIFS and SPRC provide clear evidence that there are
at least two groups of shared care families: the classic co-operators and a group of
more conflicted families. What is particularly frustrating is that neither study seeks to
explore how these characteristics cluster together although it would seem likely that
conflict and concerns would overlap in many cases. The studies also offer limited
insights into the relationship between case characteristics and how families reached
arrangements. The AIFS evaluation does establish that shared care mothers were the
most likely group of any to report having used family law system processes. In that
47 J. Cashmore, P. Parkinson, R. Weston, R. Patulny, G. Redmond, L. Qu, J. Baxter, M. Rajkovic, T. Sitek,
and I. Katz, Shared Care Parenting Arrangements since the 2006 Family Law Reforms: Report to the
Australian Government Attorney-General’s Department (Social Policy Research Centre, University of
New South Wales 2010), at pp 33–34. ‘Moderate’ care is defined as 14%–28% overnights.
48 R. Kaspiew, M. Gray, R. Weston, L. Moloney, K. Hand, L. Qu and the Family Law Evaluation Team,
Evaluation of the 2006 family law reforms (Australian Institute of Family Studies, Melbourne, 2009), at
p 163.
49 Ibid, at p 35.
50 Ibid at p 163.
51 J. Cashmore, P. Parkinson, R. Weston, R. Patulny, G. Redmond, L. Qu, J. Baxter, M. Rajkovic, T. Sitek,
and I. Katz, Shared Care Parenting Arrangements since the 2006 Family Law Reforms: Report to the
Australian Government Attorney-General’s Department (Social Policy Research Centre, University of
New South Wales, 2010), at pp 77 and 80.
52 R. Kaspiew, M. Gray, R. Weston, L. Moloney, K. Hand, L. Qu and the Family Law Evaluation Team,
Evaluation of the 2006 family law reforms (Australian Institute of Family Studies, Melbourne, 2009), at
pp 164–167.
53 Ibid, at p 233.
54 J. Cashmore, P. Parkinson, R. Weston, R. Patulny, G. Redmond, L. Qu, J. Baxter, M. Rajkovic, T. Sitek,
and I. Katz, Shared Care Parenting Arrangements since the 2006 Family Law Reforms: Report to the
Australian Government Attorney-General’s Department (Social Policy Research Centre, University of
New South Wales, 2010), at p 80.
482 Child and Family Law Quarterly, Vol 22, No 4, 2010
study 12%–17% of shared care mothers had reached their arrangements using
counsellors, mediators or dispute resolution services, 9%–13% by using lawyers and
4%–6% through the courts.55 The study does not go further, however, in exploring the
relationships between decision-making pathway and relationship quality and concerns.
One suspects, however, that there is some considerable overlap between the shared
care families who have used these services and shared care families who report
conflictual or fearful relationships.
The only study that does map the different pathways into and through shared care is
a 4 year longitudinal study by McIntosh et al.56 Rather than the large national
representative datasets of all separated families such as the AIFS evaluation and
SPRC studies, the McIntosh et al mediation study is based on a smaller non-probability
sample of high conflict parents who had used mediation in Australia. What is
particularly interesting about this study is that not only does the study identify three
different groups of families, but as a longitudinal study it is also able to explore different
pathways and relationships over time. The McIntosh et al study demonstrates a clear
selection effect where different types of families establish different types of shared
care which, in turn, are associated with different longer-term outcomes. The three
groups identified are:57
+ A co-operative group who sustained shared parenting over 3–4 years. These
families were in many respects similar to the classic co-operators identified by
Smyth (2004). They were more likely to have higher income and education levels
and more involved fathers prior to separation. They had entered mediation with
lower levels of parental conflict and acrimony, higher levels of parental alliance,
warmer father-child relationships, and higher levels of paternal parenting
competence and paternal availability than other groups. Those positive
relationships were also sustained over time.
+ A ‘rigid shared care’ group, where the division of time was rigidly fixed from the
start and continued with minimal flexibility. This group was more likely to have
been involved in repeat litigation, had higher pre- and post-separation levels of
conflict and acrimony, higher levels of mothers feeling threatened, lower levels of
cooperation and lower levels of father regard for mothers’ parenting skills.
+ A ‘formerly-shared care’ group having moved to primary care. This group was
characterized by low levels of father education, high mother acrimony and poor
emotional availability of father at intake according to children. Further, both
parents and children were dissatisfied with the shared care arrangement shortly
after mediation and had greater rates of litigation before and after mediation.
DURABILITY: HOW STABLE ARE SHARED RESIDENCE
ARRANGEMENTS?
It is clear from the recent Australian research that many shared care arrangements are
tried out on a temporary basis but do not endure long term. Most commonly, these
55 R. Kaspiew, M. Gray, R. Weston, L. Moloney, K. Hand, L. Qu and the Family Law Evaluation Team,
Evaluation of the 2006 family law reforms (Australian Institute of Family Studies, Melbourne, 2009), at
p 152.
56 J. McIntosh, B. Smyth, M. Kelaher, Y. Wells and C. Long, Post-separation parenting arrangements and
developmental outcomes for infants and children. Collected Reports. Three reports prepared for the
Australian Government Attorney-General’s Department (Attorney-General’s Department, 2010). Note, the
2010 report includes three separate reports: a combined summary, a longitudinal study of mediation
outcomes using a mediation sample and a study of the outcomes of shared care for young children using
a nationally representative dataset.
57 Ibid, at pp 73–74.
Shared residence: a review of recent research evidence 483
short-term shared care arrangements ‘revert’ to a more traditional pattern of primary
mother care.58 In the AIFS evaluation, for example, only 49% of shared time
arrangements were still in place after 4–5 years, compared to 87% of primary mother
care arrangements. There is some evidence in this study that equal shared care
arrangements are more durable than ‘unequal’ shared care but even so only 60% of
the former were still in place 4–5 years on.59
McIntosh et al’s study gives some further insights into the durability of mediated
shared care. In that study, shared care arrangements were also more likely to change
than other arrangements, typically reverting to primary (mother) care. I noted above
that the ‘formerly shared care’ group had higher levels of acrimony and litigation at
intake and were dissatisfied with the shared care agreement. Interestingly, it was the
new agreements for shared care brokered in mediation that were most fragile. Existing
shared care arrangements which were simply reaffirmed in mediation were twice as
durable as shared care arrangements established for the first time following mediation.
McIntosh et al suggest that part of the reason for the higher rates of instability might
be the ‘logistical and relational challenges’ associated with shared care.60 I return to
this below.
Although the numbers are very small, it is worth noting similar findings in my own UK
in-court conciliation study.61 Of nine parents reporting an agreement for shared
residence, only five were still in place at follow up (6 months or 2 years
post-conciliation). Only two of the nine were new shared care agreements achieved in
conciliation and neither endured.
SATISFACTION: HOW HAPPY ARE PARENTS AND CHILDREN WITH
CARE ARRANGEMENTS?
A number of studies have reported on satisfaction with or perceived workability of
shared care arrangements. As ever, interpreting the data is complex not least because
there are multiple and potentially conflicting perspectives to consider. It is clear from a
range of studies that satisfaction with, or perceived workability of, arrangements is less
strongly related to the care arrangements than whether the informant is a mother,
father or child and also the presence or absence of conflict or safety concerns.
A consistent theme across studies is that fathers with shared care are significantly
more positive about arrangements than fathers with primary maternal care. In contrast,
mothers with shared care are a little less positive than fathers and generally no more or
58 B. Smyth, ‘A 5-year retrospective of post-separation shared care research in Australia’, (2009) 15 Journal
of Family Studies 36, at pp 46–47; R. Kaspiew, M. Gray, R. Weston, L. Moloney, K. Hand, L. Qu and the
Family Law Evaluation Team, Evaluation of the 2006 family law reforms (Australian Institute of Family
Studies, Melbourne, 2009), at pp 126–128; J. Cashmore, P. Parkinson, R. Weston, R. Patulny,
G. Redmond, L. Qu, J. Baxter, M. Rajkovic, T. Sitek and I. Katz, Shared Care Parenting Arrangements
since the 2006 Family Law Reforms: Report to the Australian Government Attorney-General’s
Department (Social Policy Research Centre, University of New South Wales, 2010), at pp 37–40.
59 R. Kaspiew, M. Gray, R. Weston, L. Moloney, K. Hand, L. Qu and the Family Law Evaluation Team,
Evaluation of the 2006 family law reforms (Australian Institute of Family Studies, Melbourne, 2009), at
pp 126–128; see also B. Smyth and L. Moloney, ‘Changes in patterns of post-separation parenting over
time: A brief review’ (2008) 14 Journal of Family Studies 7; B. Smyth et al, ‘Changes in patterns of
post-separation parenting over time: Recent Australian data’ (2008) 14 Journal of Family Studies 23.
60 J. McIntosh, B. Smyth, M. Kelaher, Y. Wells and C. Long, Post-separation parenting arrangements and
developmental outcomes for infants and children. Collected Reports. Three reports prepared for the
Australian Government Attorney-General’s Department (Attorney-General’s Department: 2010), at p 12.
61 L. Trinder, J. Connolly, J. Kellett, C. Notley and L. Swift, Making contact happen or making contact work?
The process and outcomes of in-court conciliation (Department for Constitutional Affairs, 2006).
Reanalysis of data.
484 Child and Family Law Quarterly, Vol 22, No 4, 2010
less positive than mothers with primary care arrangements. In the AIFS evaluation
86%–89% of shared care fathers thought the arrangements were working for children,
compared to 78% of fathers with primary mother care. In contrast, between 80%–82%
of mothers were positive about shared care, mainly mother care or even daytime only
contact.62 The SPRC study produced very similar figures with again more fathers
reporting that shared care was working for children than primary mother arrangements
(77% v 47%), whilst mothers were again less positive about shared care than fathers
and equally as positive about primary mother care (66% v 60.5%).63
The SPRC team conducted further analysis to explain why there was variation in
positive ratings of arrangements. Apart from the gender of the parent, three factors
were significant: concerns/violence, conflict and litigation.64 In this study, shared care
mothers who had safety concerns were twice as likely to report that arrangements
were not working for children than primary care who had such concerns.65 Put simply,
where there is violence, or fear of violence, children do worse in shared care,
according to mothers. Similarly, where conflict was low, mothers rated all types of
arrangements equally highly, but where there was conflict, mothers with primary care
reported that children did better than mothers with shared care.66
The final variable concerns whether arrangements were achieved through litigation,
mediation/legal advice or informally agreed. Here the gendered nature of reporting is
particularly stark. About 40% of mothers with shared care following litigation reported
that it was not working for children. In clear contrast, only 5% of shared care litigating
fathers reported that the arrangements were not working for children. Interestingly
mothers who had litigated were equally pessimistic about arrangements, whether they
were in shared care or primary mother care.67 In contrast the 5% of fathers with
litigated shared care were the most positive of any group, including fathers with
informally agreed arrangements. McIntosh et al also found that shared care fathers
were the most satisfied of all groups even where there were high levels of conflict and
poor dispute management.68
This is a good point to introduce children’s opinions on shared care. Unfortunately
we have far less quantitative data from children than from their parents. There are
some studies where young adult children of divorce report that, looking back, they
would have liked shared care.69 However, where children have actually experienced
62 R. Kaspiew, M. Gray, R. Weston, L. Moloney, K. Hand, L. Qu and the Family Law Evaluation Team,
Evaluation of the 2006 family law reforms (Australian Institute of Family Studies, Melbourne, 2009), at
pp 156–157.
63 J. Cashmore, P. Parkinson, R. Weston, R. Patulny, G. Redmond, L. Qu, J. Baxter, M. Rajkovic, T. Sitek and
I. Katz, Shared Care Parenting Arrangements since the 2006 Family Law Reforms: Report to the
Australian Government Attorney-General’s Department (Social Policy Research Centre, University of
New South Wales, 2010), at pp 84–85. It should be noted, however, that the Parents’ Survey had a very
low 10% response rate.
64 Ibid, at p 86.
65 Ibid, at p 86.
66 57% of mothers reporting ‘high conflict’ were dissatisfied with shared care. Ibid, at p 95.
67 Ibid, at pp 89–90.
68 J. McIntosh, B. Smyth, M. Kelaher, Y. Wells and C. Long, Post-separation parenting arrangements and
developmental outcomes for infants and children. Collected Reports. Three reports prepared for the
Australian Government Attorney-General’s Department (Attorney-General’s Department, 2010), at p 47.
69 For example, W. Fabricius and J. Hall, ‘Young adults‘ perspectives on divorce: Living arrangements’
(2000) 38 Family and Conciliation Courts Review 446; P. Parkinson, J. Cashmore and J. Single,
‘Adolescents’ views on the fairness of parenting and financial arrangements after separation’ (2005) 43
Family Court Review 429.
Shared residence: a review of recent research evidence 485
shared care themselves, then the picture is much more complex. The key source here
is the McIntosh et al study.70 The strength of this study is that it has collected data from
mothers, fathers and children from the same families enabling ready comparison of
their different perspectives across four waves of data collection. The McIntosh et al
study echoes the findings of the recent general population studies in that it was fathers
who reported higher satisfaction than mothers. More specifically mothers in the
McIntosh study were satisfied with flexible but not rigid shared care, whilst fathers were
equally satisfied with rigid or flexible shared care.71 Importantly, the study found that
children in early adolescence were both less satisfied with shared care than their
parents and less satisfied than children in all other types of arrangement. Children in
rigid arrangements were most likely to be dissatisfied. Further, children in shared care
were also more likely than children in other arrangements to report wanting to change
the arrangement.72 McIntosh et al conclude that ‘equal or substantial sharing of time
may in some circumstances be an arrangement better suited to parents than to
children’.73
There are also some very interesting qualitative interview studies that explore
children’s experiences specifically of shared care. As qualitative studies they are based
on small samples and are designed to develop themes and concepts rather than to test
relationships between variables. Although studies have been conducted in a range of
countries – the UK,74 Norway75 and Australia76 – the messages are highly consistent
both with one another and with McIntosh et al’s quantitative study.
The qualitative studies clearly indicate that children’s views of shared care are highly
contingent upon the nature of arrangements. Shared care can work as both ‘a
pleasure’ and ‘a burden’,77 with some children finding shared care working for them
whilst others, including siblings from the same family, finding it onerous or oppressive.
The advantages of shared care from children’s perspective can include maintaining a
relationship with both parents and being ‘fair’ to each parent. The disadvantages can
be having to constantly move back and forth, not having a single place to call home,
leaving things behind and conflict between parents.78 A longitudinal qualitative study of
30 British children identified three factors that distinguished successful and
unsuccessful care arrangements, all relating to the quality rather than the quantity of
70 J. McIntosh, B. Smyth, M. Kelaher, Y. Wells and C. Long, Post-separation parenting arrangements and
developmental outcomes for infants and children. Collected Reports. Three reports prepared for the
Australian Government Attorney-General’s Department (Attorney-General’s Department, 2010).
71 Ibid, at pp 47, 49.
72 Ibid, at pp 47–49.
73 Ibid, at p 78.
74 C. Smart, B. Neale and A. Wade, The Changing Experience of Childhood: Families and Divorce (Polity
Press, 2001); C. Smart, ‘Equal shares: rights for fathers or recognition for children?’ (2004) 24 Critical
Social Policy 484.
75 G. Haugen, ‘Children’s perspectives on everyday experiences of shared residence’ (2010) 24 Children
and Society 112.
76 J. Cashmore, P. Parkinson, R. Weston, R. Patulny, G. Redmond, L. Qu, J. Baxter, M. Rajkovic, T. Sitek,
and I. Katz, Shared Care Parenting Arrangements since the 2006 Family Law Reforms: Report to the
Australian Government Attorney-General’s Department (Social Policy Research Centre, University of
New South Wales, 2010), at pp 111–138.
77 G. Haugen, ‘Children’s perspectives on everyday experiences of shared residence’ (2010) 24 Children
and Society 112, at p 119.
78 J. Cashmore, P. Parkinson, R. Weston, R. Patulny, G. Redmond, L. Qu, J. Baxter, M. Rajkovic, T. Sitek,
and I. Katz, Shared Care Parenting Arrangements since the 2006 Family Law Reforms: Report to the
Australian Government Attorney-General’s Department (Social Policy Research Centre, University of
New South Wales, 2010), at pp 127–138.
486 Child and Family Law Quarterly, Vol 22, No 4, 2010
relationships. The three factors were: (a) whether children’s needs and wishes were
prioritised or whether the arrangement was based on the needs and wishes of the
parents; (b) whether the arrangements were flexible rather than rigid; and (c) whether
the children felt equally ‘at home’ with both parents.79 Some sense of the contrast
between successful and unsuccessful arrangements is evident in the following two
quotations from the British research. Here Holly reports having the ‘emotional
permission’ from two supportive and relaxed parents to be able to adapt arrangements
to suit her evolving needs:
Holly (aged 13): I think it’s probably been more flexible … More because I’ve
chosen. Like it’s not been as rigid that I go to my dad’s on certain days because
if there is something that I want to do then like sometimes it’s arranged, changed
or for whatever reason. I mean it’s always been changed if one of my parents is
busy, mostly my dad. But [laugh] I’m the one. [Emphasis added]
Jen [interviewer]: Right so what might happen now when you say it’s more
flexible?
Holly: Well it’s basically the same … But I mean if, like, I mean sometimes there
are things that my dad is doing with people I know and, like, that I would be
involved in, even though it not on the right night. And, like, if I want to go out on
Sunday then I do, like, without my parents.80
In contrast, Jack is stuck in rigid arrangements more suited to his parents’ needs rather
than his own:
They share us half the time. They did that from when they first split up … I think
mum wanted to see us as often as she could and my dad has always wanted,
thought it was right to have fifty-fifty, which in the end she agreed … I do actually
sometimes feel that I’d rather live at my mum’s house most of the time, but I
wouldn’t really want to, after like spending like half my life seeing my dad, I
wouldn’t want to just stop now … Because well if everything works out, I’ll be
leaving in a few years, anyway to go to Uni, so there’s not much point … because
I’d feel really guilty and I wouldn’t want to hurt anyone’s feelings or anything …
They both try as hard as they can, but they end up having arguments and stuff …
It’s like if my mum hasn’t got everything ready to take to my dad’s house,
sometimes he gets angry and I think he just likes being in control most of the time
… And mum ends up getting quite upset about it … I do think that if I could
choose, if I had to choose which house I spend more time at, I think it would
definitely be my mum’s. (Jack, aged 15).81
Further, all qualitative studies in the field have clearly indicated that children are
happier with arrangements where they have had some say and are able to influence
arrangements and are unhappy where arrangements are imposed upon them and
where they are unable to make changes. It is worth noting that in fact relatively few
children do appear able to influence their own care arrangements. In a Norwegian
79 C. Smart, ‘Equal shares: rights for fathers or recognition for children?’ (2004) 24 Critical Social Policy
487.
80 Ibid, at pp 487–488.
81 Ibid, at pp 490–491 [emphasis in original].
Shared residence: a review of recent research evidence 487
study, 55% of 527 equal time parents reported that arrangements had been
determined solely by adults and that their children had had no influence at all on
arrangements.82
CHILD WELL BEING: WHAT IS THE RELATIONSHIP BETWEEN CARE
ARRANGEMENTS AND CHILD WELL BEING?
Perhaps the most important question of all is whether shared care does promote or
hinder children’s adjustment.83 Intuitively one would think that more time with a parent
post-separation would be better for children. In fact, there is little, if any, evidence that
the mere amount or frequency of contact is better or worse for children. In a
comprehensive review Smyth notes:
‘… the idea that a clear linear relationship exists between parenting time and
children’s outcomes (such that ever-increasing amounts of time necessarily leads
to better outcomes for children) appears to lack an empirical basis.’84
Although the quantity of contact does not appear to be linked to adjustment, two
meta-analyses85 have found that the quality of parent-child relationships has a
significant effect on child well being.86 In the Amato and Gilbreth study, children were
doing better where non-resident parents adopted an authoritative (rather than
authoritarian or permissive) parenting style and where children felt close to their
non-resident parent. Children did not do any better or worse where they had more (or
less) frequent contact. Whilst a certain amount of time will be needed to enable a
quality relationship to be developed or maintained, it is what parents do with that time
that is critical. Whiteside and Becker underscore the importance of parent-parent and
parent-child relationship quality rather than time per se, noting that in relation to young
children:
‘Neither the shape of the care giving network nor the time-sharing schedule has
the most potent effects on children’s development. Rather, the quality of the
82 K. Skjørten and R. Barlindhaug, ‘The involvement of children in decisions about shared residence’ (2007)
21 International Journal of Law, Policy and the Family 373, at p 378.
83 Typically measured using a standardised instrument such as Goodman’s Strengths and Difficulties
Questionnaire (SDQ). See R. Goodman, ‘Psychometric properties of the Strengths and Difficulties
Questionnaire (SDQ)’ (2001) 40 Journal of the American Academy of Child and Adolescent Psychiatry
1337.
84 B. Smyth, ‘A 5-year retrospective of post-separation shared care research in Australia’ (2009) 15 Journal
of Family Studies 36, at p 44.
85 A meta-analysis is a statistical synthesis of multiple separate research studies.
86 P. Amato and J. Gilbreth, ‘Nonresident fathers and Children’s well-being: A meta-analysis’ (1999) 61
Journal of Marriage and the Family 557; M. Whiteside and B. Becker, ‘Parental factors and the young
child’s postdivorce adjustment: A meta-analysis with implications for parenting arrangements’ (2000) 14
Journal of Family Psychology 5. A third meta-analysis is sometimes cited in support of the idea that
shared residence promotes child well being. The study by R. Bauserman (‘Child adjustment in
joint-custody versus sole-custody arrangements: A meta-analytic review’ (2002) 16 Journal of Family
Psychology 91) reported that children in shared custody had fewer emotional and behavioural problems
and higher self-esteem than children in sole custody. However that study has been subject to extensive
criticism as it fails to distinguish between families with joint legal custody (ie PR) and joint physical
custody (ie shared residence). It is well established that parents who choose joint legal custody are more
cooperative and less conflictual than parents with sole legal custody and consequently their children tend
to have better adjustment. In effect, by comparing joint (including some physical) custody and sole
custody the Bauserman meta-analysis is probably comparing lower and higher conflict families with
predictable results.
488 Child and Family Law Quarterly, Vol 22, No 4, 2010
parental alliance and the parents’ warmth, sensitivity, good adjustment, and
discipline style make the difference between a well-adjusted child and one who is
angry, scared, or limited in cognitive and social skills.’87
The recent Australian studies of shared care confirm that there is no clear relationship
between time and child well being and also point to similar relationship factors. The
AIFS evaluation used two different datasets and four different informants (mothers,
fathers, children and teachers) to explore the relationship between child well being and
care patterns in nationally representative studies. Only on fathers’ reports were
children in shared care doing better than children in primary mother care (using the
Longitudinal Study of Separated Families (LSSF) W1 dataset of recently separated
families). In contrast, on mothers’ reports there was no difference in child well being
between shared care and primary mother care.88 Nor was there any relationship
between well being and care patterns according to children’s reports using the
Longitudinal Study of Australian Children (LSAC) wave 1 to 3 datasets. Reports from
independent observers – teachers – indicate that children seemed to be doing best in
primary mother care.89 The SPRC study produced a similar picture. Using the LSAC
dataset they found that initial differences between child well being – notably more
positive outcomes for shared care – disappeared after controlling for socio-economic,
maternal characteristics and family process variables such as conflict.90
The recent studies have looked in more detail at some of the relationship factors that
might impinge on welfare – conflict and fear/domestic violence. As might be expected,
safety concerns were associated with poorer child well being regardless of
arrangements. However, the AIFS evaluation found that where mothers had safety
concerns they were more likely to report poorer outcomes for children in shared care
than if the children were living primarily with them.91 In contrast, the study found no
such relationship between well being and ongoing high conflict.92
Rather than using large community studies with a majority of co-operative or friendly
parents, a small number of studies have looked specifically at the outcomes for
children in higher conflict and litigating populations. Two studies have explored contact
frequency in litigating populations. In Janet Johnston’s study of very high and
87 M. Whiteside and B. Becker (2000), ibid, at p 23.
88 R. Kaspiew, M. Gray, R. Weston, L. Moloney, K. Hand, L. Qu and the Family Law Evaluation Team,
Evaluation of the 2006 family law reforms (Australian Institute of Family Studies, Melbourne, 2009), at
p 267.
89 Ibid, at pp 272–273. Somewhat surprisingly the Kaspiew report does not discuss the findings of the
teacher report data.
90 J. Cashmore, P. Parkinson, R. Weston, R. Patulny, G. Redmond, L. Qu, J. Baxter, M. Rajkovic, T. Sitek and
I. Katz, Shared Care Parenting Arrangements since the 2006 Family Law Reforms: Report to the
Australian Government Attorney-General’s Department (Social Policy Research Centre, University of
New South Wales, 2010), at p 64.
91 R. Kaspiew, M. Gray, R. Weston, L. Moloney, K. Hand, L. Qu and the Family Law Evaluation Team,
Evaluation of the 2006 family law reforms (Australian Institute of Family Studies, Melbourne, 2009), at
pp 269–270. There is, of course, a high incidence of safety concerns in litigating populations in England.
For example, in the recent case file analysis by Hunt and Macleod, 54% of resident parents raised
concerns about ‘serious welfare issues’, including domestic violence (34%); child abuse or neglect (23%);
alcohol abuse (21%); drug abuse (20%) and mental illness (13%). J. Hunt and A. Macleod, Outcomes of
applications to court for contact orders after parental separation or divorce (Ministry of Justice, 2008), at
p 9. In a sample of 137 resident parents attending conciliation, 54% reported a fear of violence – Trinder
et al, ibid, at p 33.
92 Ibid, at pp 269–270. Although the researchers note that the measures of high conflict were ‘quite broad’
at p 273.
Shared residence: a review of recent research evidence 489
chronically conflictual families in California, more frequent contact was associated with
poorer child outcomes.93 In my own study of litigating parents in England, the best
predictors of child well being were adult well being and whether there were concerns
about the other parent’s parenting. Children with more contact were doing no better or
worse than children with less contact.94
The McIntosh et al study is particularly helpful as it looks specifically at different care
arrangements in a higher conflict mediation/litigation sample over 4 years. The study
found no relationship between care pattern and children’s overall or global mental
health.95 However, there were some indications that shared care might in itself be
problematic for children in a higher conflict population, although the quality or rigidity of
the arrangements is important. In terms of the specific problems associated with
shared care per se, McIntosh et al found that children who had lived in sustained
shared care arrangements for 4 years had significantly higher hyperactivity/inattention
scores than all other arrangements including no/rare contact, and this was particularly
so for boys and for rigid arrangements.96 The study also found significantly higher rates
of emotional symptoms in children in rigid, unresponsive care arrangements whether
primary or shared.97 It is worth noting that the study also identified a group of children
who had ceased contact who were doing better than previously.
The study also gives some insights into why the shared care children, particularly in
rigid arrangements, might be under more stress. The study reported high levels of
conflict in the shared care groups, at a higher level than all other groups even
controlling for initial levels of conflict. Children were caught up in this conflict, with
shared care children more likely to report being caught in the middle of conflict than
other groups.98 Thus shared care in this high conflict population does not ease conflict
but appears to perpetuate it with the consequence that children are more likely to
report being caught in the crossfire. Nor were these children protected by a better
relationship with their father. On child reports, more contact in itself did not lead to a
better father-child relationship over time, rather it was the nature of the father-child
relationship at intake that mattered.99 In other words, more contact did not lead to a
better relationship, a better relationship led to more contact. The differential pathways
are effectively summarised by McIntosh et al thus:
‘family pathways began from different pragmatic places, were differentially
resourced in psychological and interpersonal terms, and then diverged in a fairly
predictable manner over the years from those points of origin. For example,
children entering rigid forms of sharing, usually via court-imposed pathways, had
93 J. Johnston, M. Kline and J. Tschann, ‘Ongoing postdivorce conflict in families contesting custody: Do
joint custody and frequent access help?’ (1989) 59 American Journal of Orthopsychiatry 576;
J. Johnston, ‘Research Update: Children’s adjustment in sole custody compared to joint custody families
and principles for custody decision making’ (1995) 33 Family and Conciliation Courts Review 415.
94 L. Trinder, J. Kellett and L. Swift, ‘The relationship between contact and child adjustment in high conflict
cases after divorce or separation’ (2008) 13 Child and Adolescent Mental Health 181.
95 J. McIntosh, B. Smyth, M. Kelaher, Y. Wells and C. Long, Post-separation parenting arrangements and
developmental outcomes for infants and children. Collected Reports. Three reports prepared for the
Australian Government Attorney-General’s Department (Attorney-General’s Department, 2010), at p 60.
Overall mental health was measured using the ‘total difficulties’ score of the Strengths and Difficulties
Questionnaire.
96 Ibid, at pp 62–65.
97 Ibid, at pp 60–62. Internalising symptoms are those linked with depression and anxiety.
98 Ibid, at pp 56–57.
99 Ibid, at p 78.
490 Child and Family Law Quarterly, Vol 22, No 4, 2010
a troubled trajectory to begin with, and carried different burdens, of which
unresponsive and unwanted care arrangements became yet another.’100
The McIntosh study does raise some concerns about the well being of children in all
forms of high conflict shared care. However it is the children in rigid shared care
arrangements that cause most concern. Of course, these forms of rigid arrangements
are far more likely to result from court orders. Taken overall the McIntosh et al study
underlines the importance of looking at the quality of parent-parent and parent-child
relationships rather than focusing on time allocations. The McIntosh et al study is
particularly helpful in enabling some understanding of selection effects and outcomes.
As the study concludes ‘Children in rigid shared care arrangements appeared to have
troubled beginnings;