Confusing family law on children’s care prompts bill for change

Family Law: A Queensland MP has put forward a private members’ bill to the Federal Parliament seeking to remove the presumption of equal shared parental responsibility removed from the Family Law Act 1975 (the Act). Over the years since the equal shared parental responsibility provisions were introduced in 2006, there has been a lot of debate over them, and a lot of confusion in the community over what the laws actually mean.

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Federal Labor MP Grant Perrett’s bill will need the support of the Coalition if it has a chance of being put to a vote. However the bill has been supported by many stakeholders including women’s advocacy groups.

The provisions in the Act relate to “equal shared parental responsibility” and do not equate to or mean “equal shared time with the children”, yet they have often been assumed to. As a result, many in the community think that the starting point for custody disputes is that each parent should have 50% of the time spent with the children.

Over the years, there have been various parliamentary inquiries and a family law review by the Australian Law Reform Commission, with the expert consensus being that the presumption of equal shared parental responsibility should be removed and replaced with something whose meaning is much clearer to everyone.

The Brisbane MP was inspired to put forward the bill after the terrible recent murders of Hannah Clark and her three children at the hands of her former husband.

Perrett told Parliament that the current legislation was difficult to understand:

“There is a widely held misconception that equal shared parental responsibility means equal shared care — that is that parents will spend equal time with their children. This misconception sets up a false expectation that parents have some right to guarantee equal time with their children. This can incentivise an abusive partner to litigate their parenting dispute. It may lead to a parent agreeing to an unsafe parenting arrangement, in the belief that they have no choice.”

What is “equal shared parental responsibility” in family law?

So what does the term “parental responsibility” mean? Parental responsibility refers to all duties, powers, responsibilities and authority which parents have by law in relation to their children until they turn 18 years of age. This refers to long term decisions (schooling, health or medical issues, religion etc) rather than day to day decisions (such as regarding food habits, clothing, other issues of everyday life).

An order for equal shared parental responsibility means parents must cooperate and make joint decisions on long term matters of significance, but day to day decisions are to remain the responsibility of the parent who has the child at the time.

Parental responsibility can be “equally shared” by both parents, meaning the decision needs to be made jointly by the parents, or one parent can have “sole” parental responsibility. Under the Act, though, there is a presumption for a court to make an order for equal shared parental responsibility unless there are circumstances warranting that presumption to be overridden.

The presumption of equal shared parental responsibility may not apply if a court finds a parent has been engaged in family violence or other child abuse or neglect issues. The presumption of equal shared parental responsibility may also not apply if the court determines that the parents are unable to communicate effectively and, therefore, an order for equal shared parental responsibility would not be in the child’s best interests.

If an order for sole parental responsibility is made, that parent is deemed responsible for the long term, major decisions about the child’s upbringing, while each parent retains responsibility to day to day care decisions while the child is with them.

Once the parental responsibility has been decided by a family court, it will then assess how to divide a child’s time with the parents.

If the court orders that the parents have equal shared parental responsibility, then it must firstly consider whether an equal time arrangement would be in the child’s best interests and practicable. The court is certainly not required to order equal time just because an order for equal shared parental responsibility has been made. If the court determines that equal time is not in the child’s best interests, then the court would next look at whether the child spending significant and substantial time with each parent is in the child’s best interests, and if not, then finally what other time arrangements would be in the child’s best interests.  

The court will take into account a whole range of factors into account when determining what time arrangements will be in the child’s best interests.

A court will focus on ‘primary considerations’—the two main factors used to determine a child’s best interests. These are:

  1. The benefit to the child of having a meaningful relationship with each parent, and
  2. The need to protect the child from neglect, abuse and family violence.

The imperative to put a child’s best interests first means that the safety aspect will override the meaningful relationship aspect.

Additional factors a court must consider include factors like the extent to which a parent has been actively involved in a child’s life and has maintained the child, the child’s wishes, how any change will affect the child, among other factors.

Factors that may contraindicate an equal time arrangement would be if the child was very young, if the parents live far away from each other, and if the parents have a high conflict relationship impeding effective communication about the child.

There is no set formula for arrangements for spending time with each parent, and a court will ultimately make orders that reflect what it sees as the best interests of the child. The court’s assessment would likely be assisted by the preparation of a Family Report by a court appointed Family Consultant or a private child psychologist.

Whether the parliament will support this bill remains to be seen, but in our opinion it is probably unlikely given the Government’s family law inquiry is currently still on foot. It’s probable that the Government will prefer to await the outcome of that review before a major change to the Act is approved.

Source: ABC

You can read the family court’s guidance on parenting issues here.

If you would like assistance with a family law matter, please contact Canberra family lawyer Cristina Huesch or one of our other experienced solicitors here at Alliance Family Law on (02) 6223 2400.

Please note our blogs are not legal advice. For information on how to obtain the correct legal advice, please contact Alliance Family Law.


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