Legislative Pitfalls in Mandating Shared Parenting in Family Law Disputes: An Australian Experience

Abstract

Family law in Australia has been governed by the Family Law Act (FLA) since 1976. The statute was significant in changing the law from fault-based to a no-fault regime of divorce and its consequences for child custody and property disputes. Since then the FLA has endured many amendments with legislators trying to keep the law aligned with their perception of community values. One important aspect of the FLA is that it requires judges deciding parenting disputes to make certain ‘considerations’ in line with articulated principles. In 2006 the Australian government amended the FLA by introducing two ‘objects and principles’ (then s.60B), which seemed innocuous: that children have ‘the benefit of both of their parents’ and that they be ‘protected from physical or psychological harm’. Arguably both principles responded to community concerns, although from opposing sources. The ‘men’s movement’ had complained for years that the Family Court was biased because it awarded child custody more often to mothers than to fathers in parenting disputes. On the other hand, the ‘women’s movement’ argued that children would be at risk if the Family Court favoured fathers over mothers because of the high incidence of domestic violence and child abuse at the hands of men.

The two principles in s.60B were a political compromise and became known as the ‘twin pillars’ in Australian family law. The legislators had attempted to appease both lobby groups by requiring judges on the one hand to keep fathers involved in children’s lives and on the other hand to ensure children would be safe from violence. In a sense it was a marriage-of-opposites that was doomed to fail, and fail it did. The reason was that in many cases, judges seemed to interpret the amended Act to emphasise ‘shared parenting’, and without good evidence that the father posed a risk to the child, judges very often made orders in line with the first pillar, keeping the father involved in the life of the child. Ironically, in some of those cases the orders effectively exposed the child to violence through the father’s subsequent abuse and assaults on the mother, eg. at child handover or at negotiations about arrangements for the child.

Legislators were forced to intercede again, to amend the statute further and this time to mandate judges to privilege the second pillar (no violence) over the first pillar (both parents to be involved). It is ironic that since 1976 the ‘paramount consideration’ has been the ‘best interests of the child’ – to which almost everyone agrees - while the challenge for legislators and judges has been how to interpret and apply that principle in the context of historically changing and culturally diverse social values about the meaning of family, parenting, and ideal child development arrangements. In attempting to shift the focus in disputes about children from ‘legal custody’ to ‘shared parenting’, legislators in Australia so far at least, have failed to reflect contemporary community attitudes, or provide leadership in accepting research-based, best practice policy in resolving parenting disputes.