Australia's Family Law Amendment (Shared Responsibility) Act 2006: A policy critique

Abstract

In 2006, Australia's federal Parliament passed the Family Law Amendment (Shared Responsibility) Act 2006. This extensively amended the Family Law Act 1975 (Cth) which governs parenting arrangements in circumstances of family breakdown. Significant changes introduced by the Amendment included requiring the Family Court to presume that giving both parents “equal shared parental responsibility” when making parenting orders is in the child's best interests, to consider that maintaining a meaningful parent–child relationship is a “primary consideration” when determining children's best interests, and to consider making parenting orders that give both parents equal time with the child. This article evaluates the Amendment, firstly by analysing its origins as a neo-liberal policy and discussing its likely impact on Australian society. The article will then comparatively analyse the Amendment against Australia's strikingly similar family law amendments made in 1995. The article will conclude that while some aspects of the Amendment have merit, its emphasis on treating everyone equally overlooks whether such treatment accurately reflects pre-separation household arrangements and post-separation needs. Also, the article argues that although much of the Amendment's language relates to protecting children's best interests, in substance it appears to be more concerned with upholding parents' rights instead.

Keywords:

• best interests
• parental responsibility
• family law
• divorce

Notes

^1. For a comprehensive overview of Australia's family law system, including the 2006 Amendment, see Fehlberg and Behrens, J. (2008).

^2. References in this critique to legislative sections are references to the Family Law Act 1975 (Cth) as of 1 July 2006, thus including the changes introduced by the Family Law Amendment (Shared Responsibility) Act 2006.

^3. Previously the FLA had provided that the paramount consideration was the child's ‘welfare’ (Mills 2008, p. 110).

^4. My lettering, added for clarity.

^5. As suggested by evidence that parties are entering negotiations with the misconception that the law requires equal time with each parent (New South Wales Legislative Council 2006, p. 31).

^6. This transformation of child-focused policies into schemes to benefit adults manifests a broader trend evident with childcare services (Jamrozik 2005, p. 247).

^7. Interestingly, Dewar recognised an international trend of reducing decision-making discretion and increasing prescriptive rules in family law eight years before the Amendment. He attributes this trend largely to government aims of the reducing costs of family breakdown to the state and individuals, and to the increasing recognition of ‘rights’ which bring presumptions of entitlement.

^8. As is evident in its title and the foreword, which describes the 14 young people consulted as a ‘microcosm of what this inquiry is all about’, and recounts one boy's responses at length. While listening to people's voices is a vital part of research, this disproportionate focus on a small number of individuals does not seem appropriate to gauge the long-term effect of a presumption of shared parenting on Australia's diverse family community.