Teaching family law professionals about child development needs may be more influential than changes in the laws themselves

The 2006 family law reforms in Australia heralded a shift towards more sharing of care after divorce.

Family law reforms that occurred in Australia in 2006 changed the way some families organise themselves after divorce, according to Professor Patrick Parkinson in Australia. Yet Parkinson cautions about exaggerating the impact of such reforms compared to the effects of other influences.

The Family Law Amendment (Shared Parental Responsibility) Act 2006 in Australia requires judges to consider two primary factors: (1) the “benefit to the child of having a meaningful relationship with both of the child’s parents” and (2) the “need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence”.

The 2006 family law reform provides not for a presumption of shared custody, but for a presumption of equal sharing of parental “responsibility”, though only in cases that do not involve violence or abuse. (In those cases, the law says, the presumption should be against shared arrangements.)

Under the 2006 reform, courts ordering equally shared parental responsibility are required to consider whether “equal” parenting time or “substantial and significant” time with both parents is in the best interests of the child. “Substantial and significant” time is defined as not limited to weekends and holidays, thus allowing both parents to be involved in the child’s daily routines. It also allows parents to participate in occasions and events that are of particular significance to the child or the parent. This somewhat convoluted definition could be translated into a simple message: parents should consider how the non-resident parent can be involved in the activities of the children during the school week.

The 2006 reforms heralded a shift away from the assumption that the most a non-resident parent could expect was to have time with the children on weekends and school holidays. Following the reforms, research by the Australian Institute of Family Studies found increased awareness and acceptance of shared care arrangements as a viable and “normal” option for parenting after separation. The same research found that lawyers were giving more advice about shared care norms to families than before the family law reforms.

Meanwhile, more parents have adopted equal-time arrangements since 2006, perhaps encouraged by statements from government ministers and media reports that this is a viable option.

Conflict over family law reform

The 2006 family law reform followed a parliamentary enquiry starting in 2003. There was an enormous battle over the reform between women’s and fathers’ advocates. Despite appearing at the start of the process to be inclined towards a presumption of equal parenting time, members of the House of Representatives Standing Committee on Family and Community Affairs decided against it. Instead they recommended the equally shared “responsibility” formula, which is now law.

Following the 2006 family law reform, women’s groups continued a spirited campaign, claiming an increased risk of violence against women and children. The Australian Institute of Family Studies found no reliable evidence that this was the case. It found no evidence that courts were ordering shared time after a full trial in circumstances where there was a history of significant domestic violence.

The report also found that a history of family violence did not necessarily impede friendly or cooperative relationships between parents. Only 18.5% of a large sample of 10,000 mothers who reported domestic violence at the time of separation continued to be fearful at the time of the interview by researchers.

Despite the lack of evidence, the political pressure for amendments relating to family violence was strong, and the Government made further amendments in 2011 to give greater weight to protecting children from harm than to a meaningful relationship with both parents. But the empirical evidence does not indicate any substantial change in outcomes as a result of the 2011 family law reforms.

The influence of family law reform has limits: other things are important too

Parkinson makes the point that judges have a lot of discretion under current family law and can act only on the evidence provided. Violence, child abuse, drug or alcohol addiction and mental illness are, for the judge, the “four horsemen of the Apocalypse” in the lives of the children in the middle. Ultimately, the direct influence of policy that defines what courts must consider has an influence, but only to a limited extent.

He concludes with two non-legal recommendations that he argues would make a difference. The first is that family law professionals need education on the latest advances in understanding of child development. The second is that families need adequate financial resources so that, if there are real concerns about violence and abuse, the parent can afford to go to court and, therefore, credibly demonstrate to an abuser that access to the child is at stake.