Tom Altobelli
Wednesday, 14 December, 2005
Family law practitioners finally got a look at the federal government's proposed shake-up of the system with the introduction of the Family Law Amendment (Shared Parental Responsibility) Bill 2005 last week. Dr Tom Altobelli* explores some of the practical issues that arise from Schedule 1.
Schedule 1, which deals with shared parental responsibility, contains the most important changes to the law and will have the greatest impact on decision-making and negotiation behaviour in parenting disputes. The changes to be brought about to Pt VII of the Family Law Act 1975 are substantial.
The new s 60B - sending the message
The new s 60B objects and principles provision will be a significant revamp of its predecessor. It is divided into four objects and five principles, all of which serve to, in effect, "unpack" the overriding principle of the best interests of children.
There are two new objects expressed in s 60B(1)(a) and (b):
(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.
In a Bill that contains many strong messages to the community, these new objects draw the link between the best interests of children and continued shared parenting after separation as well as protecting children from all forms of harm.
The new principles expressed in s 60B(2) reflect the proposed new terminology (discussed below), emphasise the joint (and therefore shared) nature of parental responsibilities, as well as giving to children the right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Some of the key provisions in Pt VII are relocated to the commencement of this Part. The existing s 65E, containing the statement about the child's best interests being the paramount consideration in making a parent order, becomes s 60CA. The old s 68E becomes s 60CB. Importantly, s 68F becomes s 60CC.
Best interests of the child - primary and secondary considerations
The differences between s 68F and the proposed s 60CC are significant. In determining what is in the child's best interests there are now primary considerations and secondary considerations.
The primary considerations are found in s 60CC(2) and state:
(a) the benefit to the child of having a meaningful relationship with both of the child's parents, and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse neglect or family violence.
These primary considerations reflect the two new objects found in s 60B. Again, there are strong messages about the importance of shared parenting after separation and protecting children from harm.
The additional considerations are found in s 60CC(3). References to 'wishes' expressed by children are replaced with 'views' of the children. The references to 'other persons' in s 68F(2) are expanded to specifically include grandparents and other relatives of the child.
A new additional consideration found in s 60CC(3)(c) states:
(c) the willingness and ability of each of the child's parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent.
Family violence orders
The existing s 68F(2)(j), dealing with family violence orders applying to a child or a member of the child's family, will become limited in s 60CC(3)(k) to only those orders that are final, or made after a contested hearing.
The new s 60CC(4) expands on the considerations stated in s 60CC(3)(c) and (i). It states:
(4) Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child's parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child's parents:
(a) has taken, or failed to take, the opportunity:
i. to participate in making decisions about major long-term issues in relation to the child, and
ii. to spend time with the child, and
iii. to communicate with the child, and
(b) has facilitated, or failed to facilitate, the other parent:
i. participating in making decisions about major long-term issues in relation to the child, and
ii. spending time with the child, and
iii. communicating with the child, and
(c) has fulfilled, or failed to fulfil, the parent's obligation to maintain the child.
The new s 60CC - the relationship between children and both parents
Experienced family lawyers know that the s 68F(2) factors make up the contested issues in difficult parenting cases, whether they relate to residence or contact. Even a preliminary glimpse at the new s 60CC reveals that protecting children from all forms of harm is just as important as it was under s 68F, but there is a significant focusing on the relationship between children and both parents, after separation.
Section 60CC, like s 68F, does not refer to time as a component or dimension of children's post-separation relationships with both parents but, as will be noted below, the Bill does contain express statements about time. Section 60CC invites an even closer consideration of relationships between children and parents, both before and after separation and in particular on the willingness and ability of each parent to facilitate and encourage shared parenting after separation. Taking detailed instructions and obtaining evidence about these issues will become even more important than it has been. In some respects, however, the hierarchy of factors created by having primary and secondary considerations may lead to some factors having lesser significance than once may have been the case.
Relevant terminology will change as a result of amendments to s 64B. The residence order is replaced by a parenting order that specifies the person with whom the child is to live, eg "the child lives with...". The contact order is replaced by the order that deals with the time that a child is to spend with another person, eg "the child spends time with...". Specific issues orders that deal with other aspects of parental responsibility are replaced by orders that deal with other matters referred to in s 64B(2) including:
• the form of communications between persons who share parental responsibility
• the communication a child is to have with another person
• the preliminary steps to be taken before an application is made to a court to vary an order
• the process to be used for resolving disputes about the terms or operation of an order, etc.
Section 61DA - the presumption of equal shared parental responsibility
There are changes to the allocation of parental responsibility. The meaning of parental responsibility in s 61B is unchanged. Section 61C is also unchanged, ie each parent retains parental responsibility for a child irrespective of any changes in the nature of the relationship of the parents. Section 61D is also unchanged. However, the Bill introduces s 61DA - a presumption of equal shared parental responsibility when parenting orders are made, which only does not apply if there are reasonable grounds to believe that a parent has engaged in child abuse or family violence. In the absence of those factors, "the court must apply a presumption that it is in the best interests of the child for the child's parents to have equal shared parental responsibility" for the child.
Perhaps the real significance of equal shared parental responsibility is only understood when one has regard to the new s 65DAA. This new provision states, in effect, that if a parenting order does provide for equal shared parental responsibility, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child and is reasonably practicable, and
(b) if it is, consider making an order for equal time.
If the court decides against equal time then the court must:
(a) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child and is reasonably practicable, and
(b) if it is, consider making an order for the child to spend substantial and significant time with each of the parents.
Section 65DAA introduces two important concepts: 'substantial and significant time' and 'reasonable practicality'. The former is defined in s 65DAA(3) as follows:
"(3) For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both: (i) days that fall on weekends and holidays; and (ii) days that do not fall on weekends or holidays; and
(b) he time the child spends with the parent allows the parent to be involved in:
(i) the child's daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent."
The latter concept,reasonable practicality, is defined in s 65DAA(5) as follows:
"(5) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents, the court must have regard to:
(a) how far apart the parents live from each other; and
(b) the parents' current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parents' current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d) the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant."
Thus equal shared parental responsibility leads to a consideration of equal time and substantial and significant time, in all cases having regard to the best interests of a child and to reasonable practicality. Moreover, a finding of equal shared parental responsibility seems to be the almost inevitable outcome unless there is abuse or family violence. Those 'hard cases' involving violence and abuse therefore, are possibly the ones least effected by the changes introduced in the Bill. For the remaining majority of cases that family lawyers routinely deal with through negotiation and by drafting consent orders, and for that significant minority of litigated cases not involving abuse or violence, there is scope for significant change in how these cases are dealt with.
*Dr Tom Altobelli, Special Counsel, Watts McCray Lawyers, Associate Professor, School of Law, University of Western Sydney