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«IN THE BEST INTERESTS OF THE CHILDREN: A PERSEPCTIVE OF THE 2006 AMENDMENTS TO THE FAMILY LAW ACT The Hon. John Faulks Deputy Chief Justice, Family ...»

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University of South Australia, Centre for Conflict, Peace and Mediation

Shared Parental Responsibility in Australian Family Law and the Impact

on Children Seminar

Adelaide, 13-15 April 2008

IN THE BEST INTERESTS OF THE CHILDREN:

A PERSEPCTIVE OF THE 2006 AMENDMENTS TO THE

FAMILY LAW ACT

The Hon. John Faulks

Deputy Chief Justice, Family Court of Australia Introduction The recent reforms to the Part VII of the Family Law Act 1975 (Cth) (“the Act”), introduced by the Family Law Amendment (Shared Parental Responsibility) Act 2006 (“the Amendment Act”), were wide-ranging.

Among the most significant of those reforms was the introduction of a presumption of equal shared parental responsibility.1 The effect of the presumption is that, if a judge finds that it applies and is not rebutted, he or she is obliged to consider whether or not a child should spend equal time with both parents or, if not equal time, whether a child spend substantial and significant time with both parents.

Another important change was that made to the „best interest‟ factors;

factors that a court has regard to in deciding what order would be in the See Family Law Act 1975 (Cth) s 61DA.

best interests of the child who is the subject of a parenting dispute.2 These factors are now divided into two tiers – primary considerations (of which there are two) and additional considerations. Some further specific factors were also included in the Act.3

The two primary considerations are:

The benefit to the child of having a meaningful relationship with both the child‟s parents; and The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.4 Prior to, during and after the enactment of amendments to Part VII of the Act, there was considerable debate in academic legal circles as to their likely effect on the way in which family courts would determine parenting disputes.5 On the face of it, the amendments appear highly significant. However, in the courtroom, so far it seems that the outcomes in children‟s cases are not as different as some thought they would be.

The Chief Justice has instituted a system for recording outcomes in ways which will, in due course, permit the analysis and development of trends in the sorts of orders made. It is still too early for anything conclusive to be drawn from the information collected so far and the Court is still in the process of checking that the data collected is clean and reliable.

These were previously contained in s 68F(2) of the Family Law Act and are now to be found in s 60CC.

See ss 60CC(4), (4A), (5) and (6).

Family Law Act 1975 (Cth), s 60CC(2) These debates continue – see for example Patrick Parkinson, „The Values of Parliament and the Best Interests of Children – A Response to Professor Chisholm‟ (2007) 21 Australian Journal of Family Law 213 and Richard Chisholm, „A Brief Reply to Professor Parkinson‟ (2007) 21 Australian Journal of Family Law 229.

In another twelve months we should be starting to draw useful information from this pioneering data collection exercise.

There are five reasons for this seemingly counter-intuitive situation:

The amendments did not interfere with the „paramountcy principle‟. The „best interests of children‟ principle remains the overriding consideration for the Family Court and prevails over every other presumption to be applied or obligation imposed by the Act.6 The legislature appears to have given greater prominence to the need to protect children from violence or abuse, or the risk of violence and abuse. The importance assigned to the protection of children is shown by its being an exception to the application of the presumption of equal shared parental responsibility. As always however the problem lies not in acknowledging the principle. It is in the application of the principle, especially in circumstances where the evidence is inadequate or hastily prepared.

So far as the Family Court is concerned, we hear the most difficult and complex parenting disputes. As the Federal Magistrates Court has expanded, it has taken responsibility for the more run-of-the mill cases. The matters appearing before our judges are frequently and almost exclusively those involving the most intricate and difficult fact matrixes and the most intractable litigants. These cases are not those in which it would ordinarily be in a child‟s best interests to live equally with both parents.

The „paramountcy principle‟ is to be found in s 60CA of the Family Law Act 1975 (Cth) and its continued effect as the overriding obligation imposed on family courts confirmed in the Full Court decision of Goode & Goode (2006) FLC 93-286.

In a specific area (relocation cases), although it is still very much a live debate, my view is that the ability of a parent to relocate with a child has not been affected in any meaningful way by the new obligations imposed on family courts, in particular the presumption of equal shared parental responsibility and that which follows from it.

The less adversarial trial (LAT), the Family Court‟s new administrative (docket) arrangements and the Court‟s innovative Child Responsive Program have reduced the potential for misinformation by parties and manipulation by lawyers. They, separately and in combination, tend to focus attention on the children – as opposed to the parties – and enable the earlier identification of the most important elements of the evidence relating to the children‟s best interests.





Equal Shared Parental Responsibility Before I examine those issues, let us first consider what “equal shared parental responsibility” means.

“Parental responsibility” is defined in s 61B of the Act as:

–  –  –

This definition has been in the Act since 1995 and was not changed by the 2006 amendments. The term “equal shared” is not defined.

Section 61C provides that each parent of a child has parental responsibility for that child, subject to court orders.

Section 61D(1) provides some assistance perhaps. It states:

–  –  –

That is, a court can limit the extent of parental responsibility each parent has. A parent may only be given such responsibility as is appropriate for that child.

Section 65DAC provides that where an order is made sharing parental responsibility between two or more people and the exercise of that responsibility involves making major long-term decisions about the child, each of those people is required to consult the other about the decisions and to make a genuine effort to come to an agreement.

“Major long term issue” is defined in section 4 of the Act. It is the sharing of decision-making for children as it is related to issues about the care, welfare and development of children of a long-term nature,

including (but not limited to):

the child‟s education the child‟s religious and cultural upbringing the child‟s health the child‟s name

–  –  –

The sharing of parental responsibility triggers the application of section 65DAC. It is not necessary for parental responsibility to be shared equally.

The Full Court of the Family Court considered the effect of section 65DAC in the decision of Goode & Goode.7 The Full Court said:

–  –  –

The presumption of equal shared parental responsibility in section 61DA

should be considered in the light of the following:

(2006) 93-286.

Ibid at 80,894.

–  –  –

Family Law Act 1975 (Cth), s 61DA(2).

Ibid s 61DA(4).

See note to Family Law Act 1975 (Cth), s 61DA(1).

See Family Law Act 1975 (Cth), Part VII, Division 11, which concerns the interrelationship between family violence orders made in state courts and parenting orders made by courts exercising jurisdiction under the Family Law Act. See also s 60CG, which requires the court (under certain conditions) to ensure that any parenting order is consistent with any family violence order.

The Best Interests of Children

Any decision about parenting must always be made in the best interests of the child. The presumption of equal shared parental responsibility, the consideration of equal time or substantial and significant time, and any other parenting orders are all subject to the principle that the child‟s best interests are paramount. As is clear from section 60CA of the Act and, as the Full Court confirmed in Goode,13 the best interests of the child remain the overriding consideration.

The determination of those best interests is now more directed by the Act.

The primary considerations are contained in section 60CC(2). This section directs the Court to consider the benefit of a child having a meaningful relationship with both parents and the need to protect children from harm caused by being subjected or exposed to violence or abuse.

The resolution of these (in some cases contradictory) considerations depends on the evidence before the Court.

The Court is also directed to take account of additional considerations.

These are in many ways similar to the matters formerly prescribed by what was then section 68F(2).

The Court is required to assess, among other things:

–  –  –

the capacity of each parent to provide for the child‟s needs15 (2006) 93-286 at 80,888-9.

Family Law Act 1975 (Cth), s 60CC(3)(a) the attitude of the parent towards the child and the responsibilities of parenthood16

–  –  –

whether any family violence order applies.18 The Court will be assisted in this task not only the by the evidence of the parties and their witnesses that the Court has directed be filed but also by its family consultants, who will have already worked with individual families during the pre-trial phase, by family reports (either prepared by family consultants or other experts) as ordered by the Court and by oral evidence from expert witnesses. Each case is different and thus the weight to be given to the different considerations under section 60CC will be different.

Meaningful Relationships

Whether or not it is in a child‟s best interests to maintain a meaningful relationship with both parents, and the circumstances through which that relationship can be enjoyed, will vary with each case. The Court will not make orders that require the involvement of both parents in a child‟s life where it is not, on balance of all relevant factors, in the child‟s best interest. Opinions about what factors are relevant in any particular case and which of those are the more important will vary – sometimes quite substantially – among the parents, their friends and advisers, and the Ibid s 60CC(2)(f) Ibid s 60CC(2)(i) Ibid s 60CC(2)(j) Ibid s 60CC(2)() judge. If the right balance were easy to strike, the matter would not be before the Court.

Most separating couples do reach agreement. In fact even of those who actually enter the court system, only about 14 per cent in the past have required a hearing to be scheduled and, of those, only about half have actually needed a decision from the judge. In that context it is hardly surprising that those involved disagree about many things and that in the end at least one party and, in many cases both, are unsatisfied with the judge‟s determination.

In many cases in the past the judge will be concerned that the parents (either represented or not) have not provided all the credible evidence needed by the judge to make the best decision he or she could. In conjunction with the new Division 12A of the Act, which establishes principles for the conduct of child-related proceedings, the Court has moved to give the parties more direction at an earlier stage through the LAT process. This means that, as far as possible, the judge will help the parents or parties to know what evidence they should be bringing before the Court.

But even this is unlikely to make both parties feel that the process is satisfactory. To begin with, disputes about children are among the most emotionally demanding for any parents. The drive to fight for one‟s children is a primordial instinct and this is exacerbated when the other party is someone once loved but now somewhere on the spectrum between “not loved” and despised.

The process of determining disputes about children, both in its evolution and in the increasingly prescriptive directions from the legislature, has produced a system dependent upon the discretionary decision of judges.

Judges must take into account an ever-growing list of factors, almost all of which are not capable of objective measurement and which, once determined, also have to be balanced with “decisions” about other factors, again without any particular guidance about which of those factors should be given more weight.

The legislature appears to have attempted to provide guidance about some of these matters in the Amendment Act. There is the presumption that there should be equal sharing of the parental responsibility. There is the identification of „primary‟ as opposed to „additional‟ considerations for determining what might constitute a child‟s best interests, and the alignment of the „objects‟19 and „primary considerations‟. But as we have seen the presumption is hedged with qualifications and the primary considerations may well be in conflict with each other in some cases.

All factors depend on the ability of the parties and their lawyers to adduce evidence to establish what is asserted.

Nor does the phrase “meaningful relationship” have a fixed, immutable meaning. The judgment in Godfrey & Sanders, an appeal from a federal magistrate in a relocation case, provides some guidance about what that

particular Full Court thought at least. Justice Kay concluded that:

–  –  –



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