Equal parental responsibility is not 50:50 sharing
By Craig Sisterson

A MAJOR Australian review of the practices, procedures, and laws that apply in the Australian federal family law courts has recommended that some provisions enacted as part of controversial 2006 family law reforms be amended or reconsidered in order to clarify areas of confusion, enable better identification of cases where there is a risk of violence, and bring the focus back to what is best for the children.

Australian Attorney-General Robert McClelland released Family Courts Violence Review, a 275-page report written by Professor Richard Chisholm, on 28 January. On the same day, he also released two other major reports (from the Australian Institute of Family Studies and the Family Law Council) examining the family law system and how the family law courts deal with cases involving family violence.

In the Family Courts Violence Review, Chisholm, a retired Family Court judge, noted there were few more difficult or important challenges for the family law system than dealing with cases where family violence was an issue. “Family violence happens throughout the community, and is especially likely to be present among families that separate and resort to the family law system,” he said. “Violence is bad for everyone, and particularly dangerous for children, whether or not it is directed specifically at them.”

A focus of the 2006 reforms, which included legislative changes and funding for new services to help families deal with relationship difficulties and separations, was to encourage more meaningful involvement by both parents in their children’s lives after separation, in an environment where children were safe from violence and abuse.

However, Chisholm’s report found that some of the legislation, practices, and procedures of the federal family law courts, including changes enacted as part of the 2006 reforms, had created confusion, were overly complex, and in some cases were simply “not working”.

Chisholm found that the concept of equal parental responsibility, introduced by the 2006 reforms, had created a misperception amongst many people that there was a presumption children should spend equal time with each parent (except in cases of violence or abuse). The impetus behind the 2006 reforms had been to do more to ensure the involvement of both parents, while protecting children from violence and abuse, and in particular to move away from the prior tendency to assume it was best for children to spend most of the time with one parent (usually the mother) and only alternate weekends and half the school holidays with the other – the 80:20 rule as it was known. However, the reforms were not intended to create a presumption of 50:50 time sharing.

Chisholm recommended the Government consider amending section 60CC of the Family Law Act 1975 so that:

• Guidelines for determining arrangements for the care of children were independent of ‘parental responsibility’ provisions (which address decision making about the child’s life).
• Instead of suggesting a particular outcome (eg shared parenting) is likely to be best for children, the Court would simply be required to consider which of the available options in each case would be best for the child. 
• Proposed guidelines would continue to emphasise the importance of parental involvement and safety for children, but would remove artificial distinctions between ‘primary’ and ‘additional’ considerations. The Court would instead be encouraged to take all matters into account, and give them the weight that is appropriate in the circumstances of each case. 

Chisholm admitted a recurring theme of his report was that “family violence must be disclosed, understood, and acted upon”. He was concerned court procedures and legislative changes were not working, or could deter victims of violence from making appropriate disclosures. In particular, he recommended that the Government consider amending section 60K of the Family Law Act so that the Court could conduct a risk identification and assessment in each parenting case, rather than urgently responding when a specific document, a Form 4 Notice of Family Abuse or Violence, was filed.

Chisholm also recommended legislative changes that would make it less risky for parents to raise issues of family violence. Currently, if an allegation is raised but unproven, a parent can be liable for costs, and may also be tagged as an “unfriendly parent” by the Courts; a status that can affect any eventual time-sharing arrangement. This creates the “victim’s dilemma”, says Chisholm – the situation where applying for orders to protect the children could result in the children spending more time in a situation where they are at risk from violence.