Abstract

This article argues that the introduction of a presumption that equal shared parental responsibility is in the best interests of children into the Family Law Act in 2006 has contributed to inappropriate, and even damaging, post-separation parenting arrangements for some children. The author suggests that the presumption and its legislative link to equal and substantially shared care time orders have created a 'lego-science' that shared parenting is almost always good for children, but this lego-science is a pseudo science which is not consistent with the complex reported social science about shared parenting. The foundation of the lego-science is the presumption, but expressions like 'meaningful relationships' contained in other sections build a legislative or 'lego-bridge' to the time provisions. This lego-bridge has been reinforced by the case law. This article argues that a presumption was an inappropriate legal tool to use in the discretionary culture of family law decision-making because it encourages a 'one size fits all' approach. Further, presumptions are legal fictions that become dangerous when believed. The fact that the reforms were driven by fathers' rights groups provided a charged socio-political climate in which legal fictions were more likely to acquire the aura of truth. It also seems that the safeguards against the application of the presumption and the making of share care time orders were drafted in a manner that has allowed them to be ignored, creating a gap between the apparent legislative intent - to provide exceptions - and how the law actually plays out in the courts and the community - with the safeguards by-passed at times. The article concludes that fundamental reform of the Family Law Act is required again.

Highlights

  • In 2006 the Australian Parliament introduced major amendments to the parenting law provisions of the Family Law Act 1975 (Cth) (FLA), by way of the Family LawAmendment (Shared Parental Responsibility) Act 2006 (Cth)

  • A key aspect of the reforms was the insertion of a rebuttable presumption that it is in the best interests of children for their parents to have ‘equal shared parental responsibility’.1. The application of this presumption was legislatively linked to specific parenting time outcomes, including equal time and the concept of ‘substantial and significant’ 2 time

  • This article argues that the presumption, with its legislative connections to shared care time outcomes, has created what the author has called a ‘lego-science’ about shared parenting.[3]

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Summary

INTRODUCTION

In 2006 the Australian Parliament introduced major amendments to the parenting law provisions of the Family Law Act 1975 (Cth) (FLA), by way of the Family Law. In Part III the socio-political environment of the 2006 Act is considered and the influence of fathers’ rights groups on the language and structure of the reforms exposed Their calls for equal time were not quite met, but the introduction of a presumption answered one of their demands and the author suggests that the link to shared care time provisions was a deliberate compromise by a government seeking to pacify this powerful lobby group. The article concludes by recommending fundamental reform (again) of the FLA, with the removal of the presumption, the creation of legislative contra-indicators to shared care time and a carefully developed list of best interest factors which genuinely reflect the social science research about post-separation parenting with no mention of any particular pattern of care

A Shared Parenting
B What we Knew Before the Reform Process Began
A The Presumption
B The Lego-bridge
C The Time Provisions
D The Inclusionary Nature
PART IV – THE PROBLEMS WITH PRESUMPTIONS
A Family Violence
B Parental Conflict and Reasonable Practicability
C Case Studies
D Stuart and Stuart
E Rosa and Rosa
Findings
CONCLUSION

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