LAW REFORM FOR SHARED-TIME PARENTING AFTER SEPARATION
| Citation | (2018) 30 SAcLJ 518 |
| Author | Elizabeth KEOGH BA, LLB (Hons), Grad Dip Leg Prac (Australian National University); Lecturer, Australian National University and Family Dispute Resolution Practitioner. Bruce SMYTH BA, PhD (Swinburne University of Technology); Associate Professor of Family Studies, Australian National University. Alexander MASARDO BA (Hons), MRes, PhD (University of Bath, UK); Academic Subject Leader – Early Years and Education, University of Gloucestershire, UK. |
| Published date | 01 December 2018 |
| Date | 01 December 2018 |
Reflections from Australia
Shared-time parenting is an emerging family form in many Western countries. Legislative reform in Australia in 2006 introduced a presumption of “equal shared parental responsibility” and a requirement that courts explicitly consider the making of orders which provide for children to spend “equal time” or “substantial and significant time” with each parent. These reforms occurred in the context of an already increasing prevalence of shared-time parenting arrangements. In this article, we highlight key changes to family law legislation in Australia over the last four decades which evidence an increasing emphasis on the involvement of both parents in a child's life after separation. We then turn to demography, identifying some common characteristics of families who adopt shared-time parenting arrangements and exploring the prevalence and incidence of shared-time arrangements, in particular, considering whether prevalence and incidence appear to have been affected by legislative reform. The article concludes by offering some reflections for other countries on the Australian experience of legislating to encourage shared parenting in the broadest sense.
1 Shared-time parenting1 – where children spend equal or near-equal time with each parent (variously named as “joint physical custody”, “shared custody”, “shared care”, “shared residence”, “alternating residence” and “co-parenting”) – appears to be increasingly popular in many Western countries.2 The US has been at the forefront of shared-parenting research, policy and practice for many years. More recently, however, other countries, such as Australia, Belgium and the Netherlands, have legislated to encourage shared-time arrangements after separation.3 The latest international research suggests that children can benefit from such arrangements, but there can also be risks.4
2 Despite international research interest in this emerging family form, fundamental gaps in our knowledge remain. Indeed, as noted recently by Natalie Nikolina:5
[It] is unclear how co-parenting should be defined; if, and how often, it occurs; how the courts should deal with it; what effect it has on children's well-being; and thus also what the best course of action for the legislator would be in dealing with co-parenting …
3 Politics and policy, of course, have their own imperatives. Indeed, policy reforms rarely come out of the empirical sciences, with interest groups representing parents or other kinship groups (such as grandparents) often influencing the policy process in some way.6 Not surprisingly, legislating for a presumption or an expectation of equal or shared-time arrangements remains a highly charged and contested issue.
4 The growing popularity of shared-time parenting reflects broader social, cultural and legislative change, including (a) women's greater participation in paid work, (b) greater knowledge of the importance of meaningful father involvement, (c) growing appreciation that children generally benefit from an ongoing supportive relationship with both parents after separation, (d) the increasing use of dispute resolution procedures that encourage co-operative co-parenting, (e) greater enforcement of child support, (f) reductions in child support under shared-time arrangements, and (g) divorce laws that increasingly encourage shared parenting in the broadest sense, largely as a result of lobbying by fathers groups.7
5 Australia's family law system is a federal (that is, national) system. Family law decision-making in Australia is mainly exercised by what we will call the “family courts”, namely, the specialist Family Court of Australia (and the Family Court of Western Australia in that state), and the Federal Circuit Court of Australia (formerly the Federal Magistrates Court), which now deals with around 80% of children's cases.
6 In Australia, unlike in some other countries, divorce is not intrinsically linked to decision-making about care of children8 and/or redistribution of assets, liabilities and financial resources (“property settlement”). Australian law requires couples to be separated for at least 12 months prior to obtaining a divorce and the process of obtaining a divorce is, for most couples, a simple, quasi-administrative process. Court orders can be sought, or agreed arrangements can be formalised in relation to both property settlement and the care of children – either before or after9 obtaining a divorce. It is noteworthy that separating de facto partnerships have almost identical rights and responsibilities under Australian law, and are able to access the same legal processes as married couples. In addition, Australia has a well-developed administrative system for the financial support of children whose
parents do not live together, administered by the Department of Human Services (“DHS”).7 Yet another distinctive feature of the Australian system is that parents who agree on arrangements for their children can apply for “consent orders” to the Family Court of Australia or the Family Court of Western Australia (although not to the Federal Circuit Court) without having commenced proceedings.10 Consent orders are made by registrars after the parties provide information about the proposed orders and why they would be in the children's best interests.
8 Since 2006, the Australian legal system has also required that parties to a dispute in relation to the care of children attempt to resolve that dispute through alternative dispute resolution processes such as mediation.11 Certificates verifying participation in “family dispute resolution” can be issued by registered “family dispute resolution practitioners”. At the time that this requirement was introduced, the Commonwealth government also established a network of Family Relationship Centres that are subsidised to provide a limited amount of family dispute resolution service to families at no or minimal fee. Rae Kaspiew, Lawrie Moloney, Jessie Dunstan and John De Maio reported a substantial reduction in court applications for orders relating to children in the period following the introduction of mandatory mediation and the family relationship centres, stating “across all courts, applications for final orders in children-only and children-plus-property cases (children's matters) declined by 25% from 2004–2005 to 2012–2013”.12 Recent Australian research alludes to the potential value of mandatory mediation, though the value of a certificate process is less clear.13
9 The FLA is the legislative centrepiece of Australian law relating to the care of children after separation. It applies to children born of marriages throughout Australia, and to children born of de facto partnerships (and to parents who have never lived together) in all
Australian states and territories other than Western Australia.15 The FLA has, since its inception, provided that a court's decision about the care of a child should always have, as its paramount consideration, the best interests of the child. Evolution of legislation has, over time, increased the direction provided to courts in determining what is in a child's best interests. That direction has had an increasing emphasis on the ongoing involvement of both a child's parents.10 Since its introduction in 1975, there have been three major reforms of Pt VII of the FLA – the Part which governs decisions about the care of children. In its earliest incarnation, the FLA included no guidance as to how a determination as to a child's best interests should be made. Orders made under this Act provided for one or both parents to have “custody” of a child, which encompassed decision-making responsibility and primary physical care of a child. Unless it was deemed to not be in the child's best interests, the other parent would have “access” orders made in his or her favour, which provided for him or her to spend time with the child on a regular basis.
11 In 1995, a major reform of the FLA16 took place, introducing a list of “factors”17 that a court should consider in making a determination about a child's best interests. These factors included matters such as (a) the nature of the child's relationships with each of the parents, and other relevant adults and children, (b) the capacity of each parent to provide for the child's needs, and (c) how the child's wishes should be taken into account. No direction was provided as to the relative importance of each of the factors. The 1995 amendments also introduced the clause defining the object of the Part and the principles underlying it18 which asserted that a child has the right to know and be cared for by both parents.
12 The 1995 amendments also introduced new terminology into the legislation and severed the link between decision-making and primary physical care. Under the new legislation, “parental responsibility” (that is, decision-making responsibility for the child) might be assigned to one or both parents. Distinctions could also be made between “long term” decisions (such as decision-making
about the child's schooling, religious upbringing, and emergency and non-emergency medical treatment) and “short term” decision-making (that is, day-to-day parenting decisions such as what a child wears and eats, and what activities they engage in on a daily basis). The court could also make a “residence” order in favour of one or both parents, which would indicate who the child would live with (or if made in favour of both parents, the times at which the child would reside with each parent). The court could also make “contact” orders which would indicate when the child would spend time with the other parent (and also the times that the child would spend with either or both parents outside the normal routine, such as during school holidays and on special days such as birthdays and...To continue reading
Request your trial