Legal Studies – the Family Law Amendment (Shared Responsibility) Act 2006

The Family Law Amendment (Shared Responsibility) Act 2006 commenced on the first of July 2006 assists in the way that separating parents resolve their disputes involving the best interests of their children. This law is still taking time to make an effect on divorcing and separating parents, as sources show that shared custody arrangements or 50:50 joint custody makes little effect on the children involved in these situations.

This was achieved through a major study conducted by Bruce Smyth and Bryan Rodgers who showed that children in shared care are no worse off or no better than those who see the other parent every second weekend for example [Source E]. The aim of the legislation was to change the past 1995 reforms as they failed to achieve the desired impact of separating couples [source A]. The act was created also to encourage parents to share the parenting of their children by allowing them to have equal time with both mother and father and also for the major decisions and responsibilities of the children to be distributed evenly.

The law was changed because of the various groups who protested against the past regulations the law provided. The changes included the terminology, facilitation of shared parenting time and the concept that the separated parents both retain parental responsibility [Source A]. The new family law process outlined in the Every Picture Tells a Story report also creates an emphasis on parents coming to agreements in a ‘parenting plan’.

There was also a proposal to create a ‘Family Tribunal’, which was where the separating parents could work their issues with consultation and counseling without the invasive use of the courts. The government also put forward $400 million to be spent on 65 family relationship centres for counseling couples [Source B]. Groups who have been against the Family Law Amendment are law academics, judges, women’s legal services, and single mother groups, [source D] because of the issue of abuse from their spouses after the separation.

The act sets out that parents are to share the responsibility of the children between them, with the exclusion of abusive spouses. This therefore results in parents having to consult each other about their children’s education, religious and cultural upbringing, health, change of name, and also place of residence [Source A]. Also included in the act is that counseling would be offered to parents in assisting them to reach an agreement between both parties, and child support doesn’t have to be given until six weeks after the parents have separated.

The Act only previously allowing grandparents contact through applications however rights have been elevated and the relationship between the children and grandparents are taken directly into consideration when making the arrangements in the parenting plan. The presumption of equal shared responsibility in the amendment means that both parents have an equal role in making decisions about the major choices involving the children; for example what school they will attend.

The presumption however does not apply to a parent who has engaged in any abuse, violence or neglect towards the child, and was not included in the previous Act. With this the Act strives to provide the parents with equal shared responsibility which means the child spends a reasonably even amount of time with each parent (if it is in the best interest of the child). The main issue of the legislation is the increase in funding necessary for the Act to go ahead, as the proposals put forward for the committee, family centres, and other programs require a great deal of money to be established.

Tax payers are forced to contribute more so that these can be provided, however in saying this establishing the inquisitorial tribunal creates a more level playing field for separating partners, particularly if one party cannot afford private legal representation [Source A]. In excluding legal representation, which is what happens in this process, creates a lesser need for lawyers to be involved in family matters, therefore those representing families will no longer be needed.

According to the National Association of Community Legal Centres they suggest that the new family law and processes “may be harmful to children” [Source B]. Compulsory mediation may force separated parents to communicate and associate with their former abusive partners, who may blackmail or force that parent to agree to an arrangement that benefits the abuser. This leads to a lifetime of fear and anticipation of more abusive from the former partner. According to the legislation, if a report or suspicion of abuse has arisen, the mediation will not go forward nor will it agree to unsafe parenting arrangements.

While some children benefit from the equal shared parenting arrangements, it doesn’t mean that some are better or worse off than others. Joint physical custody has been found to be workable only in a minority of separations where parents have freely chosen the arrangement. The cases in which the shared parenting has generally worked is when there is no record of abuse or conflict and when there is commitment from both parents. [Source C]. Throughout this whole process the mediation is voluntary, and can stop at any time as the couples wish.

The parties have access to legal advice, either during the mediation or before signing any mediated agreement [Source B]. There are many financial problems with this Act, as separated parents have to pay for the children independently and cannot find stability with their finances in order to pay for schooling, health and so forth. There is also the major issue that is domestic violence. The Act reinforced a fine for making false allegations about abuse and therefore some parents were pressured into making parental agreements that involved the abuser.

This also made some victims too scared to tell courts about abuse or violence directed at their children [Source F]. This law is affective, however could be revised in order to benefit the parents. The financial problems that are caused by this law are unavoidable for some families, as one parent or both may struggle to afford to make ends meet. The court could evaluate each parent’s financial status and the ability of them to be economically safe in order to enable them to be able to raise the children effectively.

However in saying this, the court should not take children off one parent if they are not capable to pay for the child, especially if the other parent is reportedly an abuser. Abusive parents should be constantly monitored whilst mediating with the other parent (if the victim wants mediation) and the child should have a say in which parent they think is able to look after them. Abusive spouses should not be allowed any contact with the victim while proceedings are happening, so that they do not coerce the other parent into an unfair parenting agreement.

The abused parent should also be supervised during this period so that it is seen that they are not influenced or blackmailed by the abuser. The Act should focus more on the child’s need than the parents. While both parents have equal shared responsibility, the child should be involved in the parenting agreements and have a fair say in what happens to them. It is argued that the Act focuses more on the parent’s rights than the children’s needs, and that the reforms favor fathers more than mothers [Source F].

In conclusion, it is believed that the Act is not effective however has improved the rights of equal responsibility between parents. It is said that shared care is proving successful for many parents, [Source E] however parents are the only beneficiaries from this because the arrangement aids them more than the child, as the Act is more in the parents favor than the children’s. The Act should be revaluated so that it is beneficial to all parties.