Right: Children have always been a concern of the Family Court and, since reforms in 2006, the Court has considered the possibility that shared-parenting provisions may have led to increased risks for the offspring of divorced couples.Further implications
The Family Law Act is being extensively reviewed by the Australian Institute of Family Studies as part of a parliamentary undertaking that accompanied the 2006 changes on shared custody. However, the federal Government does not seem inclined to change the conditions for entering or exiting marriage.Though there is fairly general consensus that aspects of the Family Law Act need reform, what is not in dispute are the 'no-fault' provisions of the Act. The largest area of contention in the Family Law Act are the manner in which custody of and access to children is given.
The most recent changes to the Act were made under the Howard government in 2006.
The 2006 amendments changed the way matters involving children are dealt with. These included:
a progression towards compulsory mediation (before Court proceedings can be filed, in an effort to ensure matters do not reach litigation);
greater examination of issues involving family violence, child abuse or neglect;
more importance being placed on a child's family and social connections, and
a presumption that parents have equal parental responsibility - not equal parenting time.
Children's matters are determined on the basis of who the child will 'live with' and 'spend time with' (terms which were formerly labeled 'residence' and 'contact' respectively). Although the term custody is often used to describe where children live the concept was abolished in 1995 with the Family Law Reform Act. The concept of custody gave much wider decision making powers to the parent with whom children lived, than either the concept of 'residence' or 'live with'. Since 1995 both parents legally have the same (but not shared) parental responsibility for children, regardless of where and with whom the children live, until and unless a court makes a different order (s61C).
If there is a dispute about parenting matters and the case is placed before a court, then the Court must apply a presumption that it is in the best interests of children that their parents have equal shared parental responsibility for the children (section 61DA). In practical terms this means that parents must consult one another about major decisions affecting the care of children (but not day-to-day decisions), whereas without that order parents can make decisions together or without consulting each other. The presumption does not apply in circumstances of family violence or there has been any abuse (including sexual abuse) of a child, a parent or any family member living with the child.
There is no presumption of equal time with the child, however, if the presumption of equal shared parental responsibility has not been mitigated, the Court must consider allocating it. If the decision is made to not allocate equal time in such circumstances, then the Court is required to consider allocating 'substantial and significant' time instead (section 65DAA).
These new provisions are being examined by the Australian Institute of Family Studies. Of particular concern is that the more equal parenting arrangements made possible under the 2006 reforms of the Family Law Act may have inadvertently placed children at the risk of violence from one of their parents. Issues such as these appear to be of far greater concern to parents, welfare groups and Family Law authorities than the re-institution of fault-based divorced as proposed by Mr Tony Abbott.