Patrick Parkinson Professor of Law, Head of Law School, University of Sydney
This article suggests how the Family Law Amendment (Shared Parental
Responsibility) Act 2006 should be interpreted when judges are deciding
parenting cases. The article examines the relationship between the two tiers
of primary and additional considerations, the place to be given to the objects
and principles of Part VII, and how the requirements to consider ‘equal time’
and ‘substantial and significant time’ fit with all the other matters the court
must consider.
It is argued that the primary and additional considerations are rarely likely to
be in conflict. The primary considerations set the direction for
decision-making in parenting cases while the additional considerations
assist judges to find the route. In some of the most difficult cases, such as
where an older child is strongly opposed to contact, a central question will be
whether the child will in fact benefit from the meaningful involvement of both
parents. The article concludes by offering a methodology for determining
parenting cases and provides some examples of its application.
Now that the Family Law Amendment (Shared Parental Responsibility) Act
2006 has been enacted, one of the major issues for practitioners and the courts
will be how to interpret the two-tiered process of decision-making in s 60CC
of the Act. Questions also arise about the relationship between s 60CC and
other requirements of the decision-making process. Part VII of the Family
Law Act 1975 as amended,1 is now replete with matters that judges must
consider in determining parenting cases. While considerations abound, the
relationship between them is not all together straightforward.
Many questions have been posed in discussions of the new legislation. How
do the two tiers of considerations relate to the principle that the child’s best
interests are paramount?2 To what extent can additional considerations
outweigh primary considerations? Have children’s views and the other
‘additional factors’ been downgraded to a subsidiary status under the new Act?
What is the relationship between the s 60CC considerations and the obligation
that also rests on judges to consider equal time and substantial and significant
time with each parent?3
This article suggests a way to interpret the new legislation that addresses
these questions.
.
1 Family Law Act 1975 (Cth) (as amended by the Family Law Amendment (Shared Parental
Responsibility) Act 2006) (hereafter, FLA).
2 FLA, s 60CA.
3 FLA, s 65DAA.
179
1 The background to the two tier approach
There is no public document that explains in full the reasons for the insertion
of the two tiers in s 60CC. However, the Explanatory Memorandum does offer
some guidance. It states:4
The intention of separating these factors into two tiers is to elevate the importance
of the primary factors and to better direct the court’s attention to the revised objects
of Part VII of the Act which are set out in the new section 60B.
This intent is reinforced by a note to s 60CC(2) which states:
Making these considerations the primary ones is consistent with the objects of this
Part set out in paragraphs 60B(1)(a) and (b).
The insertion of the primary factors into s 60CC needs to be read alongside the
very substantial revision to the objects of Pt VII made in s 60B. One object
(with two elements) in 1995 has become four objects in 2006. The object of
Pt VII is now not merely that children receive ‘adequate and proper parenting’
and that parents ‘fulfil their duties, and meet their responsibilities’. It is to
ensure also that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having
a meaningful involvement in their lives, to the maximum extent
consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being
subjected to, or exposed to, abuse, neglect or family violence.
The revised objects clauses, together with the restatement of two of those
objects as primary considerations, gives to the objects of Pt VII under the 2006
amendments a wholly different status to that accorded to s 60B by the Full
Court in B and B: Family Law Reform Act 1995.5 The objects section now
needs to be given a central place in the interpretation of Pt VII of the Act, and
this includes how the courts should reach conclusions about what would be in
the best interests of the children who are the subject of decision-making.
2 The objects, the paramountcy principle and the two
tiers
Even if the Parliament had not enacted the two tiers of considerations, the
changes made to s 60B should have been enough on their own to bring about
major changes to the law as applied in individual cases. This is because these
objects provide much more guidance than previously about how to decide
disputes about post-separation parenting arrangements.
One of the difficulties that the Full Court had to grapple with in interpreting
the 1995 reforms was that it was less than clear how Parliament expected the
decisions of judges in disputed cases to change as a result of those
4 Parliament of the Commonwealth of Australia, Senate, Family Law Amendment (Shared
Parental Responsibility) Bill Revised Explanatory Memorandum, (2006) at para 49.
5 (1997) 21 Fam LR 676; FLC 92-755.
180 (2006) 20 Australian Journal of Family Law
amendments.6 The court had a responsibility to give effect to the intentions of
Parliament, but what were those intentions, if any, in relation to the kinds of
parenting disputes that require judicial resolution? What decisions made
before 1995 ought to have been different if the same case had fallen to be
decided after the 1995 amendments?7 The difficulty in interpreting the
practical effect of the 1995 amendments was compounded by the vagueness of
the object of Pt VII. That object was that children receive ‘adequate and
proper parenting’ and that parents ‘fulfil their duties’. That said little, in itself,
about how post-separation parenting arrangements should be structured in the
event of a dispute requiring judicial resolution. The principles in s 60B were
a little more specific than the object, in particular in saying that children have
a right of contact on a regular basis with both parents, however those
principles were subject to what was ‘in the best interests of the child’.
Perhaps as a consequence of the lack of a clear parliamentary statement of
its intent, the Full Court in B and B: Family Law Reform Act 1995 ascribed
to s 60B a relatively limited role in guiding judges towards decisions about
what would be in the best interests of a child in an individual case. In B and
B the Court said:8
Section 60B is important in this exercise as it represents a deliberate statement by
the legislature of the object and principles which the Court is to apply in proceedings
under Part VII. . . . The object contained in sub-section (1) can be regarded as an
optimum outcome but is unlikely to be of great value in the adjudication of
individual cases. The principles contained in sub-section (2) are more specific but
not exhaustive and their importance will vary from case to case. They provide
guidance to the Court’s consideration of the matters in s 68F(2) and to the overall
requirement of s 65E.
The statement that the object of Pt VII ‘is unlikely to be of great value in the
adjudication of individual cases’ is not one that can be applied to the revised
objects section. The objects of Pt VII, at least to the extent that they are
restated in s 60CC, are now given primary importance in determining what
parenting orders will be in the best interests of the child.
The Full Court in B and B also suggested a kind of hierarchy in terms of the
relationship between s 60B, s 65E and s 68F(2). The Court said:9
In our view, the essential inquiry is clear. The best interests of the particular children
in the particular circumstances of that case remain the paramount consideration. A
court which is determining issues under Part VII of the type to which we have
referred, starts from that essential premise and it remains the final determinant.
6 R Chisholm, ‘Assessing the Impact of the Family Law Reform Act 1995’ (1996) 10 AJFL
177.
7 In his careful analysis of the parliamentary speeches and the legislation itself, Richard
Chisholm (above, n 6) considered that there was real uncertainty about the intentions of
Parliament in relation to the outcomes of individual cases. He concluded that the Act was
intended more to change attitudes than the rules that judges apply.
8 Above n 5 at Fam LR 733; FLC 84,220.
9 Above n 5 at Fam LR 733; FLC 84,219.
The impact of the two tiers 181
The Court went on to say that in determining the best interests of the child,
‘the Court is required to have regard to both the provisions contained in
s 68F(2) and those contained in s 60B’.10 It also said:11
The matters in s 68F(2) are to be considered in the context of the matters in s 60B
which are relevant in that case. But s 65E defines the essential issue.
It followed that the best interests of the child were seen as the ‘essential issue’,
while the Court was required to have ‘regard to’ the s 68F(2) factors and to
consider them ‘in the context of’ s 60B. This gave a sense of the relative
importance of the three sections of Pt VII in reaching decisions about
post-separation parenting arrangements.
Now the new objects of Pt VII are much more specific about how the best
interests of children can be served when courts are deciding parenting cases.
It would be a reasonable restatement of the objects of Pt VII to say that the
intention of Parliament is that the courts in applying the law, should promote
the meaningful involvement of both parents to the maximum extent possible,
except where it is necessary to order otherwise in order to protect children
from physical or psychological harm and to ensure that they have adequate
and proper parenting to help them achieve their full potential. The principles
in s 60B(2) expand on those objects.
Section 15AA of the Acts Interpretation Act 1901 (Cth) requires judges to
interpret and apply the rest of Pt VII in the light of this clear expression of
legislative purpose. Section 15AA provides:
In the interpretation of a provision of an Act, a construction that would promote the
purpose or object underlying the Act (whether that purpose or object is expressly
stated in the Act or not) shall be preferred to a construction that would not promote
that purpose or object.
For these reasons, the interpretation given to the relationship between s 60B,
s 65E and s 68F in B and B should not be regarded as offering a framework
for understanding the relationship between s 60B, the paramountcy principle
(now s 60CA) and the detailed considerations in s 60CC. The Parliament has
given in 2006 authoritative guidance about what it sees as in the best interests
of children in general terms. While it is for the courts to apply this guidance
in individual cases, the ‘best interests of the child’ is no longer a consideration
which is at large, subject to the unfettered judgment of individual trial judges.
In the interpretation and application of the principle that the best interests of
the child is the paramount consideration, an interpretation and application that
promotes the objects of Pt VII is to be preferred to one that does not.
Section 60B, and all other indications of parliamentary intent in the 2006
amendments, are also a clear guide to the interpretation of the s 60CC
considerations. The 2006 amendments attempt an integration between the
objectives of Parliament in Pt VII generally, and the decisions that judges
make in individual cases that go to trial. This was lacking in 1995. The objects
of s 60B need now to guide the interpretation of s 60CA (best interests) and
s 60CC (the considerations), for it is by giving effect to those objects that the
court can ensure that ‘the best interests of children are met’ (s 60B(1)). By
10 Ibid.
11 Id at Fam LR 733; FLC 84,220.
182 (2006) 20 Australian Journal of Family Law
taking account of the primary and secondary considerations in s 60CC as well
as the other considerations that the legislation requires judges to take into
account, interpreted in the light of the objects, the judge ought to be led to
reach a decision about what will be in the best interests of the child.
3 The relationship between the primary and additional
considerations
Under the law prior to 1 July 2006, no one factor was given a higher status
than another.12 How then is a judge to exercise his or her discretion when two
factors are now to be treated as ‘primary’? What if the primary considerations
and the additional considerations are in conflict? Can additional
considerations outweigh primary considerations? The Explanatory
Memorandum assumes that they can:13
There may be some instances where these secondary considerations may outweigh
the primary considerations. For example the court may have a case of a teenage
indigenous child who wants to keep living with a parent to maintain their connection
to traditional culture. The other parent who lives far away and is unable to travel
regularly also seeks residence. They also have demonstrated that they will not
facilitate connection with culture. In such a circumstance the court may well decide
that for that particular child the secondary factors may effectively outweigh that
consideration and that it would not be in the best interests of that child to change
residence, the court may consider other ways the child and parent can maintain a
meaningful relationship.
This is not necessarily a good example of secondary considerations
outweighing a primary consideration. This is not a relocation case in which the
issue is whether a parent will be allowed to move far away with the child.
Rather, it is a case where the present circumstances are that the non-resident
parent, for whatever reason, lives far away and is unable to travel regularly. As
long as the parents live far apart, it will be very difficult for the child to have
a meaningful relationship with both parents. Changing the child’s residence
will not alter that. The cultural factors and the teenager’s wishes appear to
indicate that the court should maintain the current residential arrangements.
They are not at all in contradiction to either of the primary considerations.
While there may be examples of additional considerations proving decisive
over the primary ones, it is submitted that it will be very unusual indeed for
the primary and additional considerations to point the trial judge in opposite
directions in determining an individual case. In almost all cases, the additional
considerations will amplify the primary ones at another level of detail. Put
differently, it is through detailed examination of such additional considerations
as may be relevant, that a judge may be assisted to determine the significance
of the primary considerations, and what orders to make.
The primary considerations operate at a level of general principle. One way
to conceptualise the relationship between the objects, the primary
considerations and the additional considerations is in terms of taking a
12 FLA, s 68F(2) as it was prior to the Family Law Amendment (Shared Parental
Responsibility) Act 2006.
13 Above n 4 at para 51.
The impact of the two tiers 183
photograph of a distant scene. The object and principles (s 60B) and the
primary considerations (s 60CC) provide the general direction in which the
camera should be pointed, while the additional considerations are the means
by which the camera can be focused on the scene to provide a clearer picture.
Another way of conceptualising the relationship is that the objects and
primary considerations set the direction of judicial decision-making but do not
dictate the route.Adecision to make orders that result from going in a different
direction than that provided for by the primary considerations would need the
most compelling justification; however, much more latitude is likely to be
given by appeal courts to defensible choices about the route. By giving
guidance on the appropriate directions in the exercise of judicial discretion,
the Parliament has made it easier for appeal courts to identify errors of law in
reaching the decisions that result from that discretion.
The major reason for stating that there is no necessary conflict between the
primary and additional considerations is because the Parliament has not
stipulated in all cases that, in the absence of the need to protect the child from
physical or psychological harm, the court must ensure that the child has a
meaningful relationship with both parents. Rather, it has asked the court to
consider ‘the benefit to the child of having a meaningful relationship’ with
both parents. That is very different. The additional considerations will help the
trial judge to determine whether such a benefit is possible in a given case.
4 The benefit to a child of having a meaningful
relationship with both parents
Section 60CC clearly indicates that the court should so exercise its discretion
in relation to post-separation parenting arrangements that meaningful
relationships between parents and children are maintained, in the absence of
violence or abuse. A child will almost always benefit from a meaningful
relationship14 with both parents in the absence of violence, abuse or very high
conflict. Where there is ongoing violence or intractable conflict,15 the interests
of the child may best be served by restricting the contact with the non-resident
14 On what constitutes a meaningful relationship see P Amato and J Gilbreth, ‘Nonresident
Fathers and Children’s Well-being: a Meta-analysis’, (1999) 61 J Marriage & Fam 557. In
a meta-analysis of 63 prior studies on parent-child visitation, Amato and Gilbreth confirmed
that frequency of contact in itself does not appear to be associated with better outcomes for
children. However, emotional closeness, and in particular, authoritative parenting, is highly
beneficial to children. Authoritative parenting included helping with homework, talking
about problems, providing emotional support to children, praising children’s
accomplishments, and disciplining children for misbehaviour. The researchers concluded
that ‘how often fathers see children is less important than what fathers do when they are with
their children’ (at 569). On authoritative parenting, see D Baumrind, ‘Authoritarian
v Authoritative Control’, (1968) 3 Adolescence 255. The term refers to a style of parenting
which is neither authoritarian nor permissive.
15 C Ayoub, R Deutch and A Maraganore, ‘Emotional Distress in Children of High-Conflict
Divorce. The Impact of Marital Conflict and Violence’, (1999) 37 Fam & Concil Cts Rev
297; C Sturge and D Glasser, ‘Contact and Domestic Violence — The Experts’ Court
Report’, (2000) 30 Fam L 615. Recent research has however, demonstrated the importance
of distinguishing between different types or contexts of violent behaviour: M P Johnson and
K J Ferraro, ‘Research on Domestic Violence in the 1990s: Making Distinctions’, (2000)
62 J Marriage & Fam 948. There needs to be a proper assessment of the etiology and nature
of the violence in order to determine the implications of this for post-separation parenting
184 (2006) 20 Australian Journal of Family Law
parent or preventing it entirely. As a general rule, then, the primary
considerations reflect the findings of a very large body of social science
research on parenting after separation.16
Having said this, courts cannot by order, create meaningful relationships
between parents and children; they can only create or maintain the
circumstances that make meaningful relationships possible. In an individual
case, the evidence may indicate that the child will not in fact benefit from such
a relationship with both parents, or that such a benefit is incapable of
realisation in the circumstances of the case. There are a number of reasons
why a child may in fact not benefit from a close relationship with both parents
even in the absence of violence or abuse. For example:
(a) Child strongly resistant to contact
In some situations the court may reluctantly have to conclude that given the
views of the child (additional consideration (a)), there would be no benefit to
the child in trying to maintain a relationship that has irretrievably broken
down. For example, in In the Marriage of P A and J A Litchfield,17 the court
had to consider an application for access by a father to a 9 year old girl. The
mother and daughter were involved in the Exclusive Brethren. The father had
been put out of the fellowship and the mother argued that he was an ‘adulterer’
because he was living with another woman. Because the daughter regarded
her father as an evil person who should be shunned, contact with him caused
her deep distress. While the judge felt considerable sympathy for the father, he
concluded that access would not benefit the girl, and indeed would expose her
to extreme stress and anxiety. Consequently, access was denied.
(b) Parent unable to offer a meaningful relationship
In other situations, the evidence may indicate that while the child would
benefit from a meaningful relationship with a non-resident parent if it were
possible, the limitations on the capacity of that parent to provide for the needs
of the child (additional consideration (f)), are such that the relationship may
not be very meaningful at all. This might be the case for example where, as
the consequence of alcoholism or mental illness, a parent has great difficulty
in caring for the children, and at best, all that can be managed is a visiting
relationship for relatively brief periods.
arrangements: J Johnston and L Campbell, ‘Parent-Child Relationships in Domestic
Violence Families Disputing Custody’, (1993) 31 Fam & Concil Cts Rev 3.
16 For reviews of the literature see J Pryor and B Rogers, Children in Changing Families: Life
After Parental Separation, Blackwell Publishers, Oxford, 2001; J B Kelly, ‘Legal and
Educational Interventions for Families in Residence and Contact Disputes’, (2001) 15 AJFL
92; R Emery, ‘Post-divorce Family Life for Children: An Overview of Research and Some
Implications for Policy’, in R A Thompson and P R Amato (Eds), The Post-Divorce Family:
Children, Parenting And Society, 1999, p 3; M Lamb, ‘Noncustodial Fathers and Their
Impact on the Children of Divorce’, in R A Thompson and P R Amato (Eds), The
Post-Divorce Family: Children, Parenting And Society, 1999, p 105; M E Lamb, K J
Stemberg and R A Thompson, ‘The Effects of Divorce and Custody Arrangements on
Children’s Behavior, Development, and Adjustment’, (1997) 35 Fam & Concil Cts Rev 393.
17 (1987) 11 Fam LR 435; FLC 91-840.
The impact of the two tiers 185
(c) Parent unwilling to keep up a meaningful relationship
Another situation where consideration of the possibility of having a
meaningful relationship may arise is where the court has to decide whether to
vary a parenting order to deprive a non-resident parent of the regular contact
to which that order entitles him. Where the non-resident parent has failed to
fulfil his or her responsibilities as a parent by continually cancelling contact
visits at very short notice, or by not turning up at all to collect the child, the
court may be compelled by the evidence to conclude that the child will not
benefit from a meaningful relationship with the non-resident parent because
that parent is unwilling to maintain such a relationship. A number of the
additional considerations in s 60CC(3) may reinforce that conclusion (for
example, considerations (b), (f) and (i)). Section 60CC(4) would also be a
highly relevant consideration in these circumstances.
(d) Parents with intractable conflicts
Another situation where the child may be unable to benefit from a meaningful
relationship with both parents is where there is such intractable conflict
between the parents on an ongoing basis that the court concludes a meaningful
relationship with both parents is simply not possible. This situation may arise,
for example, where after parenting orders have been made, the non-resident
parent brings the case back to court on several occasions for alleged minor
breaches that are not substantiated; referral to a contact orders program18 or
similar community resource has not proved effectual in reducing the levels of
conflict, and the parents continue to have legal conflicts over different aspects
of post-separation parenting such as decisions on education. Intractable high
conflict in the relationship between the parents is not, per se, an additional
factor to be considered in s 60CC(3). However, the court must consider
‘whether it would be preferable to make the order that would be least likely
to lead to the institution of further proceedings in relation to the child’.
In a situation of intractable high conflict, the best interests of the children
may be served by restricting the contact of one parent and severing the joint
parental responsibility. This is consistent with the objects if such an order is
necessary to ensure that the children have adequate and proper parenting to
help them achieve their full potential (s 60B(1)(c)).
5 Have the ‘additional’ considerations been
downgraded?
Some of the controversy surrounding the two tier approach has arisen from a
perception that the factors which were contained in s 68F(2) prior to the 2006
amendments have been relegated to a status of subsidiary importance in
determining parenting cases. For example, children’s views, which in the case
18 For a description, see House of Representatives Standing Committee on Family and
Community Affairs, Every Picture Tells a Story: Report of the Inquiry into child custody
arrangements in the event of family separation, Parliament of Australia, December 2003, at
pp 49–51.
186 (2006) 20 Australian Journal of Family Law
of older children have often proved to be a major or decisive factor,19 are
contained in the list of additional rather than primary considerations. If the
additional considerations are understood as amplifying the primary ones, then
much of the difficulty disappears about treating such matters as additional
considerations. Children’s views, for example, may be a highly relevant factor
in choosing who should be the primary caregiver and how much time they
should spend with the other parent. This factor assists the court in working out
the detail of the parenting arrangements given the objective of ensuring that
the child has a meaningful relationship with both parents. Where an older
child is strongly opposed to contact with one parent then this will be a highly
relevant consideration in determining whether he or she will benefit from a
meaningful relationship with that parent.
6 The s 60CC considerations and the allocation of
time with the child
Section 60CC is not all that the court must consider in determining parenting
arrangements. It must also make a decision about whether there should be
equal shared parental responsibility (s 61DA), and if there should be, then it
must also consider whether it is in the best interests of the child, and
reasonably practicable, to make an order that the child spend equal time with
both parents (s 65DAA(1)). If that is contra-indicated, then it must consider
whether the court should consider whether it is in the best interests of the
child, and reasonably practicable, to make an order that the child spend
substantial and significant time with each parent (s 65DAA(2)).
What then is the sequence in which these different factors should be
considered? It is submitted that the law does not require a rigid sequential
approach (other than to the extent provided in s 65DAA) and nor would it be
helpful for the appellate courts to lay down such a methodology. The matters
that will have to be considered in any given case will be identified in the way
in which the issues are placed before the court for resolution. There is no one
decision tree that will fit all cases.
However, in order to ensure that all relevant matters are considered, a
logical order for decision-making in a case where both parents want the
primary care of the child, or otherwise where they are in dispute about how
much time a child will spend with each parent, could be as follows:
(i) Is it in the best interests of the child for the parents to have equal
shared parental responsibility? If so:
(ii) Taking account of all the considerations in s 60CC, is this a case
where shared parenting is contra-indicated or is it one where the best
interests of the child will be served if parenting orders are structured
so that the child is able to maintain a meaningful relationship with
both parents?
19 In a 2003 study of 91 cases that went to trial in the Family Court, children’s wishes were
regarded as of moderate or high importance to the outcome of the case in nearly 30% of the
cases: Submission of the Family Court of Australia to the Standing Committee on Family
and Community Affairs Inquiry into Joint Custody Arrangements in the Event of Family
Separation, Part B, Statistical Analysis (2003), p 10 available at
http://www.aph.gov.au/house/committee/fca/childcustody/subs/sub1550.pdf.
The impact of the two tiers 187
(iii) If it would be a benefit to the child to have a meaningful relationship
with both parents, how in the circumstances of the case, can this best
be achieved? In determining this, the court would first need to
consider equal time, and then substantial and significant time. The
s 60CC considerations remain the guide as to what is in the best
interests of the child in determining whether either of these methods
of allocating time and caring responsibility would be appropriate. In
terms of deciding what is reasonably practicable, the court must have
regard to the factors listed in s 65DAA(5).
(iv) If neither equal time nor substantial and significant time are in the
best interests of the child or are not reasonably practicable (for
example because the parents are not in sufficiently close proximity),
then the court should consider how to ensure the meaningful
involvement of both parents ‘to the maximum extent consistent with
the best interests of the child’ (s 60B(1)(a)). That will involve an
allocation of primary caring responsibility to one parent and orders
that the child spend time with the other parent falling short of
substantial and significant time (as defined in the Act), to the
maximum extent that is possible in the circumstances consistent with
the child’s best interests, taking account of all the s 60CC
considerations.
(v) If it is not in the best interests of the child for the parents to have
equal shared parental responsibility, then there is no requirement to
consider either equal time or substantial and significant time. The
focus in a given case may well be on what orders are necessary to
protect the child from physical or psychological harm and how much
contact, if any, is consistent with this primary objective.
In this methodology, the s 60CC considerations are relevant throughout. They
are not merely relevant at one stage of the decision-making process. They
determine the general nature of the parenting order that ought to be made (the
direction) and then the detail of what orders would be appropriate and best for
the child in the circumstances (the route). Throughout the process, the best
interests of the child, as interpreted with reference to the s 60CC
considerations, remains the paramount consideration.
7 Illustrations
The following hypothetical cases illustrate how the decision-making process
could be structured, consistent with the requirements of Pt VII as amended by
the new Act.
Example 1: Older children opposed to non-resident
parent’s proposed arrangements
A dispute has arisen relatively soon after separation involving parenting
arrangements for two girls aged 14 and 12. The mother, Anna, has been the
primary carer since separation and the girls have been staying with their father
every Friday evening until Sunday morning. The father, Dmitri wants an equal
time arrangement. Anna wants the daughters to stay with their father every
188 (2006) 20 Australian Journal of Family Law
other weekend from Friday evening until Sunday lunchtime only. The girls do
not want more time with the father than they have now.
In the Family Report, the writer records the children’s views on this. While
they love their father, they complain of being bored at his house, having little
to do. He tends to spend much of his time watching sport and finds it difficult
to maintain more than brief conversations with either of them. They also say
they don’t feel comfortable in having friends visit when they are at his house
because the house is so often in an unkempt state. They do report however,
that they look forward to watching a favourite TV program with their Dad on
Friday night and they enjoy it also when he takes them to outdoor activities.
The report writer records that while Dmitri has a strong attachment to his
daughters, he is not very good at understanding the needs of young teenage
girls.
How should the judge consider what is best for the girls in this situation?
If it is in the best interests of the girls to maintain equal shared parental
responsibility, then the judge must consider an equal time arrangement first.
The report writer indicates that this is reasonably practicable as the parents’
homes are in close proximity to one another and the parents would be able to
manage an equal time arrangement. However, given the views of the two girls,
which seem to be reasonably based and not unduly influenced by their
mother’s views, she considers that an equal time arrangement would have an
adverse impact on the girls. For the same reasons, she concludes that
substantial and significant time, involving not only weekends and school
holidays but school days is contra-indicated.
In the absence of violence or abuse, the primary consideration will be the
benefit to the two girls of having a meaningful relationship with both parents.
The additional considerations will be very useful here in exploring how best
to maintain a meaningful relationship between the girls and their father. In this
case, more time is not in itself going to facilitate a meaningful relationship
between the girls and Dmitri, because his lack of engagement with the girls is
not the consequence of a lack of time. As the judge considers the girls’ views
(s 60CC(3)(a)) and the nature of their relationship with Dmitri (s 60CC(3)(b)),
as well as his capacity to provide for the girls’ needs (s 60CC(3)(f)), he or she
will be able to determine how best to maintain a meaningful relationship
between the girls and their father, taking account of those factors. This may
involve, for example, allowing for a structure of parenting time that
maximises his strengths as a parent in meeting the emotional and intellectual
needs of his daughters (s 60CC(3)(f)) and promoting a meaningful
relationship (s 60CC(2)(a)), while being sensitive to the girls’ views and
wishes. Ordering family counselling after the case is over may also assist
Dmitri to change his ways so that his daughters are less reluctant to have their
friends visit at his house.
Example 2: The primary considerations in tension
Sharon gave birth to Chelsea after a brief relationship with Adam. Adam has
taken very little interest in Chelsea since she was born, and has now
disappeared from her life. However, Adam’s parents have maintained a close
The impact of the two tiers 189
relationship with Chelsea, visiting regularly. Chelsea is now five and over the
last year, she has enjoyed staying overnight once every eight weeks with her
grandparents.
The grandparents are increasingly concerned about Chelsea’s safety in
Sharon’s care. Sharon has for a long time been taking illegal drugs. Her use
had been infrequent, and it was usually only when she was offered drugs in
company with friends. In recent months however, her use of drugs has
increased markedly and on three occasions, neighbours have called the
grandparents because they have discovered Chelsea unsupervised while
Sharon was in a drug-induced stupor. On one occasion, the neighbour reported
the matter to the child protection authorities, but they took no action.
The grandparents seek the primary care of Chelsea, at least for the
foreseeable future, until Sharon submits to treatment for her drug addiction
and proves herself able to provide safe care and nurture for Chelsea again.
Sharon opposes the application.
In this situation, the two primary considerations are in tension. There is no
reasonable prospect of Chelsea having a meaningful relationship with her
father. That is not an issue. She is strongly attached to her mother, and so the
court must decide how best to maintain a meaningful relationship between
Chelsea and Sharon while protecting Chelsea from neglect. Working out this
difficult balancing exercise, as courts must do in many child protection cases,
will be informed by the additional considerations. It is not necessary to choose
between the primary considerations. Both are relevant to the case. Whether or
not the judge decides that the grandparents should become the primary carers,
the case is likely to be resolved by finding a balance between the two primary
considerations in a way that ensures Chelsea is protected from harm
(s 60B(1)(b)), while maintaining as meaningful a relationship as possible with
her mother. The court will also take into account the objective that Chelsea
receives adequate and proper parenting to achieve her full potential
(s60B(1)(c)).
Example 3: A dispute about who will be the primary carer
Michael and Jenny both want to be the primary carer of their two children,
Andrew, aged 7 and Claire, aged 5. Both children are now at a primary school
within walking distance of the former matrimonial home. The parents
separated about 9 months ago. Jenny remained living in the former
matrimonial home while Michael was living with a male friend of his who
offered him the use of a room for as long as he needed it. Although there was
no history of violence during their 8 year marriage, the parents have had a lot
of conflict since the separation and both allege acts of violence by the other
against them. None of the alleged incidents of violence have resulted in injury
however, and the police have not been involved. There are no family violence
orders in place.
Since the separation, Michael has been seeing the children every Saturday
for most of the day and on two weekday evenings for dinner. The children
have not been staying overnight because he has not had suitable
accommodation for them to do so. However by the time of the trial, Michael
has found a 3 bedroom apartment about 8 kms away in a nearby suburb. It
190 (2006) 20 Australian Journal of Family Law
takes about 12–15 minutes in the car to get between the two homes, depending
on the traffic.
Michael would like primary care of the children or at least a ‘week about’
arrangement. Jenny wants what she calls the ‘traditional’ arrangement in
which she has primary care of the children and Michael has them every other
weekend and half the school holidays. Jenny works three days per week in a
local craft shop. Michael has a full-time job from Mondays to Fridays, about
half an hour from his new home.
In this case, the court must first decide whether there should be equal shared
parental responsibility. In determining this, it will need to consider the alleged
incidents of violence (s 61DA(2)(b)) and whether shared parental
responsibility is contra-indicated as a consequence of the high level of conflict
between them in the months since separation. If the court determines that there
should be equal shared parental responsibility, it will then need to consider if
any orders are necessary to protect the children from exposure to family
violence and this may, in particular, require consideration of the handover
arrangements or therapeutic interventions to reduce the level of conflict
between the parents.
In determining what parenting orders are in the best interests of the
children, the court will need to first consider whether there should be an equal
time arrangement. If so, this obviates the need to determine who should be the
primary caregiver. Consideration of this will involve evaluation of the best
interests of the children in the light of all the s 60CC factors. The court will
also have to examine whether it is reasonably practicable to have an equal
time arrangement, given the proximity of the parents’ two homes
(s 65DAA(5)(a)), Michael’s travel time to get to and from work, the parents’
current and future capacity to implement such an arrangement and to
communicate with one another (s 65DAA(5)(b) and (c)) and the impact that
such an arrangement would have on the children.
If an equal time arrangement is contra-indicated, then the court must
determine who should be the primary caregiver with reference to the s 60CC
considerations, and whether it is in the best interests of the children, and
reasonably practicable, for the other parent to have substantial and significant
time with the children.
If substantial and significant time is contra-indicated, then the court ought
to determine what arrangement will ensure the maximum involvement of both
parents in the children’s lives consistent with the best interests of the children.
8 Conclusion
In many areas of law, there is a tension between certainty and discretion. The
Westminster Parliament, in enacting the law for England and Wales, has been
content with brevity. Section 1 of the Children Act 1989 provides just seven
factors that the court has to consider in making residence and contact orders.
After the 2006 amendments, the Family Law Act 1975 is clearly at the other
end of the spectrum of detail. The Parliament of the Commonwealth of
Australia has chosen to provide a great deal of guidance to judges in making
parenting orders, while recognising that this is an area of law which requires
the exercise of discretion.
The impact of the two tiers 191
The new law not only makes clearer than did the 1995 reforms what
Parliament considers should be the guiding principles of post-separation
parenting arrangements. It also limits judicial discretion in a way that will
make appellate oversight easier and perhaps, will lead to more consistent and
predictable decision-making. This is at the expense of simplicity, but there is
a logic to the decision-making process in parenting decisions that emerges
from a close examination of the new Pt VII.
There can be little doubt that the Parliament intends the 2006 Act to bring
about major changes to the law as it is applied to individual cases. The
Parliament may have had that intention in passing the 1995 legislation as well,
but that was less than clear. Many of the 1995 amendments were directed at
changing perceptions and attitudes amongst the great majority of the
population of separated parents who do not require a judge to determine the
parenting arrangements. The 2006 Act seeks to influence that population also,
in particular through the requirements on advisers to discuss particular options
for post-separation parenting with their clients and in spelling out what is
meant by substantial and significant time.20 However, the 2006 amendments
are clearly also directed at how judges should determine the cases that are in
dispute. That doesn’t make the most difficult cases any easier, but at least there
is a clear indication of Parliament’s intentions in terms of the purposes that
judicial officers should seek to promote when deciding post-separation
parenting cases.
20 FLA, s 63DA.
192 (2006) 20 Australian Journal of Family Law