ASSESSMENT OF AUSTRALIAN EQUAL PARENTING
LEGISLATION
EXECUTIVE SUMMARY
Australian “Equal Parenting” legislation forms the cornerstone of broader
legislative and social reforms of a truly groundbreaking approach to national
policy intended to halt disintegration of family structures and to establish the
family unit as the core element of a strong and vibrant society.
Presumption of joint parental responsibility/rights/ benefits/access absent
evidentiary abuse or violence is mandated as the primary consideration. Parents
are required to resolve conflicts pre/during/after relationships via compulsory
mediation/arbitration at state-funded “Family Relationship Centres”with courts
utilized as the venue for residual issues only. Parallel changes include revision
of child support to a capped joint proportional cost sharing methodology.
Procedural and legal changes have been made to level the legal playing field as
a disincentive to litigation. A strong research and evaluation component for
ongoing refinements has been implemented.
Official evaluation reports will be completed mid- 2009; preliminary analysis
indicates the groundbreaking changes are well received in general, with some
concerns about adequate domestic violence provisions. Program
implementation is in the range of $ 500 M (AU) over 3 years.
The Australian Model reflects a reversion to parental responsibility and primacy
within the doctrine of parens patriae. The shift to private law would seem to be
appropriate with increasing supra-national globalization, mobility, and UN
considerations.
This represents the most novel approach to family policy since WWII. Canadian
policy makers and political strategists will find this template most useful in their
undertakings.
George Piskor
2008-07-17
Prepared in response to meeting held 2008-06-03 with Mr. Rob Moore MP
ASSESSMENT OF AUSTRALIAN EQUAL PARENTING LEGISLATION
Prepared by George Piskor 905-380-4310 (gwpiskor@sympatico.ca)
Opinions and views expressed are those of the author. Page 2
ASSESSMENT OF AUSTRALIAN EQUAL PARENTING LEGISLATION
1.0 PURPOSE
Further to meeting held 2006-06-031 with Parliamentary Secretary for Justice and Canadian Equal
Parenting Council, this Briefing Note provides the requested preliminary impact analysis of Australian
Equal Parenting legislation. As the nature of the analysis requires subjective interpretation, the analysis2
is provided as an individual submission to promote greater objectivity.
2.0 THE WHY -MOTIVATION FOR LEGISLATION
As in all other western nations, Australia has been battling with issues3 of high divorce rates, changing
nature of the family, rise in single family households, drastic drop in birth rates and family formation,
and vociferous complaints about legislative and judicial bias under the unilateral divorce regime.
The Australian solution constitutes the most innovative global approach to Family Law since WWII.
Australia has chosen to re-emphasize parental rather than state primacy in family relations while
converting from sole reliance on the adversarial legal process to emphasis on mediation and alternative
dispute resolution for ALL phases of the relationship life cycle.
The 2003 AU parliamentary inquiry4- originally charged with examining equal time custody
arrangements, child support, and grandparent access- took the breathtaking step of proposing a holistic
family-centric national policy promoting continuity throughout the entire family relationship life cycle,
of which divorce is but one phase. Central to this recommendation was emphasis on human aspects of
social continuity through mediation with planned de-emphasis on the intrinsically adversarial nature of
courts to address relationship issues. The underlying premise to reducing conflict was through: a)
establishing a level legal playing field, and b) in actively promoting healthy relationships as a core state
responsibility.
While Equal Parenting forms the cornerstone, it must be understood structurally in terms of broader
policy reordering of access, child support, mobility, domestic violence and other interlocking
considerations within a global ground-breaking cultural paradigm shift in which the state exists to
support the primacy of the family, and not vice versa as has been the de facto situation in modern
democratic societies to date5.
1
In Attendance: Mr. Rob Moore MP, Mr. Maurice Vellacott MP, Office of Justice Minister ( Mr. Z. Healy, Ms. J. Roper), CEPC (
Ms. Kris Titus, Mr. Glenn Cheriton, Mr. George Piskor)
2
Earlier follow-up letters were:
080609 – Information of Family Rights Movement in Canada, CEPC Member Survey, and presentation material used at
080603 meeting
080612- Provision of Policy Paper of Child Custody & Access by Dr. Edward Krum, and summary analysis of Equal
Parenting.
In addition, Mr. Glenn Cheriton provided a Perspective on AU Equal Pareting entitled “Lessons from the Australian Experience:
those who are not part of the Solution are Part of the Problem “. It is our understanding that Mr. Vellacott has likewise
submitted documentation summarizing AU legislation.
3
Canada and Australia are highly similar in family patterns. For 2000, % intact families= 74% for both countries, ratio single
mother:single father families = 6.4 (AU) and 4.6 (CA), Crude divorce rate (# divorces/# marriages)= 44% (AU) and 42% (CA)
4
Every Picture tells a Story. Standing Committee on Family and Community Affairs. December 2003. Canberra.
http://www.aph.gov.au/house/committee/fca/childcustody/report/fullreport.pdf
5
Some would argue that this constitutes a reversion to historic norms of the sanctity of the family from state intervention
except under very limited historical parens patriae provisions that have been encroached upon in the modern era.
Prepared by George Piskor 905-380-4310 (gwpiskor@sympatico.ca)
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ASSESSMENT OF AUSTRALIAN EQUAL PARENTING LEGISLATION
3.0 THE WHAT – PRINCIPLES AND MAIN COMPONENTS
The Shared Parenting Responsibility Act 6 (SPRA) lays out core principles to the legal community:
(a) Children have the right to know and be cared for by both their parents, regardless of whether their parents are
married, separated, have never married or have never lived together; and
(b) Children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their
parents and other people significant to their care, welfare and development (such as grandparents and other
relatives); and
(c) Parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) Parents should agree about the future parenting of their children; and
(e) Children have a right to enjoy their culture (including the right to enjoy that culture with other people who share
that culture).
These principles are addressed by the following key provisions of SPRA:
1. Best Interests equated with refutably presumptive Equal Parenting. As per section 60:
Primary considerations
(2) The primary considerations are:
(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
7
subjected to, or exposed to, abuse, neglect or family violence .
Additional considerations
(3) Additional considerations are:
(a) any views expressed by the child and any factors (such as the child’s maturity
or level of understanding) that the Court thinks are relevant to the weight it
should give to the child’s views;
(b) the nature of the relationship of the child with:
(i) each of the child’s parents; and
8
(ii) other persons (including any grandparent or other relative of the child);
(c)[other considerations typical in Canadian legislation
…, plus]
(j) any family violence involving the child or a member of the child’s family;
(k) any family violence order that applies to the child or a member of the child’s
family, if:
(i) the order is a final order; or
(ii) the making of the order was contested by a person;
6
SPRA,2005 http://www.ag.gov.au/www/agd/agd.nsf/Page/Families_FamilyLawAmendment(SharedResponsibility)Act2006
Federal government has jurisdiction for marriage and divorce, state governments have jurisdiction for common-law
relationships.
7
AU recognizes supervised access and the use of contact centres for lower –risk cases, and may require therapy as part of
parental rehabilitation. In addition, AU has implemented an extensive monitoring program as well as Family Violence Strategy
program based on most current thinking in violence research as a social dysfunction endemic to both genders.
8
Note that SPRA automatically recognizes grandparent rights as well as extended family.
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ASSESSMENT OF AUSTRALIAN EQUAL PARENTING LEGISLATION
Equal Parenting as the centerpiece of SPRA is underscored as the desired default by
instituting a two-tired process, with the second tier coming into play only after the first
one can not be “reasonably” met. Also, it is important to recognize that Equal parenting
is not necessarily equated with equal time allocation ( i.e. the 50:50 rule). Under equal
parenting, a court must consider equal access first, after which it must proceed to
carefully defined “substantial and significant“ contact access. Both parents share equal
decision making powers and responsibilities. Interim orders are subject to two-tiered
consideration also.
2. Compulsory Mediation and Parenting Plans. As of Jul 1, 2007, parents will have to enter
mediation/arbitration to address differences, and prepare or be judged to have made9
“good faith” effort to prepare a parenting plan prior to entry into the court system
where a ‘parenting order” will be adjudicated.. Parents will be able to jointly amend
Parenting Plans/orders without requiring court intervention. Parental Plan non-
compliance will be held against offending party financially, and compensatory make-up
time will be assessed. Courts will essentially be used as mechanism of last resort to
address only the irreconcilable issues.
3. Violence and Abuse. Courts will be automatically required to refer any allegations to a
separate 8-week “fact-based” adjudication process as basis for case continuation.
4. False Allegations. False allegations will result in automatic cost penalties10 among other
sanctions.
5. Independent Children’s Lawyers. In keeping with UN Human Rights Conventions,
children will have a formalized voice in defined contextual proceedings.
4.0 THE HOW- IMPLEMENTATION11
The extent of the cultural paradigm shift to what might be termed “family first” emphasis becomes
apparent by considering the main implementation vehicles for the new law:
1. Family Relationship Centres. AU will establish 65 FRC by 2009 with an initial 15 in place
at promulgation of SPRA on July 1, 2006. The FRCs serve not on as divorce
mediation/arbitration centres, but critically as non-legal family coaching and dispute
resolution services before, during, and after marriage/union. Dispute and counselling
services are separately accredited fields. AU government has committed $ 397 M (AU)
over three years to FRCs alone as an indication of the importance of its national family
law policy.
2. New Court Procedures. Courts will assume a secondary role to address residual issues
not otherwise amenable to FRC dispute resolution. This will result in less adversarial
procedures.
3. Monitoring & Evaluation. AU has provided for numerous baselineling and evaluation
contracts12 during the 2006-2009 periods to assess detailed progress and to make policy
and legal adjustments as required.
9
Special provisions exist for hi-conflict
10
Note: family law costs are normally self-borne under AU law.
11
Canada has made halting steps in the direction of the AU model as reflected in Justice Canada reports on
Collaborative Law and a pilot Shared Parenting study.
12
The Australian Institute of Family Studies (AIFS) is an Australian Government statutory agency in the portfolio of the Prime
Minister and Cabinet. It was established in February 1980 under the Australian Family Law Act 1975. The functions of AIFS are:
Prepared by George Piskor 905-380-4310 (gwpiskor@sympatico.ca)
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ASSESSMENT OF AUSTRALIAN EQUAL PARENTING LEGISLATION
4. Research. AU has recognized that family policy is a complex ongoing exercise and has
placed emphasis on refining specific areas such as Family Violence13 and Relocation
Research to inform ongoing policy.
5. Process-centric vs court-centric approach. The family policy paradigm shift away fro
adversarial court procedures to social science intervention has resulted in extensive
proceduralization of law ( e.g. AU Family Law is 620 pages in length) in order to ensure
public policies are followed by all institutions. In light of previous experiences with
earlier 1995 legal amendments to family law, one of the big lessons learned was the
necessity for detailed process specification to force the required paradigm shift.
As SPRA was undertaken within holistic reframing of family policies, SPRA must be understood as one
tactical aspect within a broader strategic realignment to family policy, some of which will continue well
into the future. For the present, AU has made parallel changes in two interrelated areas:
1. Child Support14. Effective July 1, 2008 AU introduced a new child support (CS)
methodology reflecting the basic principle of joint parental responsibility. The formula is
based on a capped cost-sharing approach under which support is based on:
Combined and relative incomes of both parents with reserves for individual
self-support, and considerations of parental out-of-pocket visitation costs
Relative care proportions
Actual child chare costs determined thru statistical surveys taking into account
income class, number of children, and differential child cost requirements over
age
Formula dovetails with social assistance provisions as part of explicit integrated
approach to public/private policy.
2. Family Violence15. AU policy is predicated on: open acceptance of Family Violence as an
important issue; recognition that the issue is not fully understood; but insistence that a
pragmatic and balanced approach can be adopted in the interim pending further
research. Consequently, Au has adopted what may be summarized as a three-pronged
national strategy:
Extensive national violence monitoring and abatement operational
commitments;
Extensive research commitments with fixed reporting horizons;
Pragmatic and tough approach to interim implementation in law balancing
safety with proclivity for utilization of abuse allegations as a legal strategy.
to help to identify the factors affecting marital and family stability in Australia by conducting, encouraging and
coordinating research; and
to promote the protection of the family as the fundamental group unit in society.
Canada has no comparable organization with the closest approximation being an aggregate of; Family Law Section in Justice
Canada, Centre For Justice Statistics, and elements of Social Development and Health Canada.
13
Family Law Violence Strategy, Attorney-general Department. February, 2006.
14
See main AU CS site at http://www.csa.gov.au/schemereforms/index.aspx. Also Smyth, Bruce. “Modernising the Child
Support Scheme”. Family Matters (No 71, Winter 2005), AFIS
15
The Family Law Violence Strategy. Australian Attorney-General Department. February 2006.
http://www.ag.gov.au/www/agd/rwpattach.nsf/VAP/(CFD7369FCAE9B8F32F341DBE097801FF)~FamilyLawViolenceStrategy.pd
f/$file/FamilyLawViolenceStrategy.pdf
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ASSESSMENT OF AUSTRALIAN EQUAL PARENTING LEGISLATION
Starting with the observation that family violence has been elevated to tier
one of the two-tiered “Best interests” considerations, The Shared Parenting
Bill contains a number of provisions to ensure appropriate protection
for those cases involving family violence and child abuse:
• New principle to make it clear that children need to be protected not only from direct
harm but also where that harm comes from being exposed to family violence against
others
• Compulsory participation in family dispute resolution as a prerequisite for an
application for parenting orders will not apply if there is a risk of child abuse or family
violence
• Presumption of equal shared parental responsibility will not apply in cases involving
violence or abuse. In those cases, the court will also not be obliged to consider the child
spending substantial time with both parents
• New requirement for the court to promptly consider all cases that raise issues of family
violence or child abuse. The court will be required to quickly consider the need to make
orders to ensure that there will be adequate information before the court to resolve the
issues before it and to ensure that appropriate protections, especially for children, are
put in place rapidly
• New provision which provides that a court must order a party to pay the costs of the
other party to the proceedings where the court is satisfied that that party has knowingly
made a false allegation in the proceedings. If a party makes allegations of family
violence or child abuse which investigations show to be knowingly
false, that party should pay for the cost of proceedings
5.0 THE WHO – STAKEHOLDER IMPACTS16
5.1 Evaluation Program
Recognizing that the changes constitute the largest change in AU Family Law since the introduction of
the Family Law Act, 1975 the Government has provided for extensive monitoring and analysis of before-
and-after impact of the combined legislation in order to both confirm the desired effect of the changes
as well as to address partially addressed issues. Data collection, analysis and ongoing research have
been contracted to the Australian Institute for Family Studies17 (AIFS) with final reports due in mid-2009.
Initial set of studies focus on baselining the “before picture”.18
16
Overview available at: Caruana C., “Unwrapping the Family Law reform Package”, Family Matters (Winter 2007), p.43
17
"Evaluation of the family law reform package: the Australian Institute of Family Studies is undertaking an evaluation of the
family law reform package on behalf of the Australian Government." Family Matters 77 (Winter 2007): 39. By Canadian
Standards, AFIS operates as a SOA (Special Operating Agency) with a sole mandate of conducting arms-length data analysis and
research in Family Policy from a statistical, social, economic, and legal perspective. Details of the evaluation framework are
available at: http://www.ag.gov.au/www/agd/agd.nsf/Page/Families_Frameworkforevaluationandlongitudinalresearch-
March2007 .
18
Among thte most anticipated has been Maloney et al, “Allegations of family violence and child abuse in family law children's
proceedings: a pre-reform exploratory study”, AFIS, Research Report no. 15, 2007.
http://www.aifs.gov.au/institute/pubs/resreport15/report15pdf/aifsreport15.pdf . More than half the cases going to trial
before SPRA was passed had allegations of spousal and/or child abuse – many assessed to be in the “severe” category-made by
both parties make this “core business” for the 6% of divorce cases proceeding to trial. In general, the study found there was
“little evidentiary material to support allegations made, with notably less for child abuse than spousal abuse. Mothers were
more likely than fathers to elicit strong evidence”.
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ASSESSMENT OF AUSTRALIAN EQUAL PARENTING LEGISLATION
While the contracted evaluation program will ascertain how well the planned reforms are working, the
major impact is implicit in the reforms themselves- namely a wholesale drastic realignment from
litigation to mediation/dispute resolution for not only divorce, but any phase of a relationship; and a
holistic reorientation towards integrated socio-economic-legal family support services that address the
whole range of family issues, rather than just parental arrangements. Professor Patrick Parkinson, one of
the principal architects of the reform package summarizes it as follows19:
There can be little doubt that the family law reform package represents the biggest change to the system in thirty
years…
The focus on processes rather than substantive rules of law represents a fundamental change in orientation in family
law reform. For years, parliaments have dealt with the pressure for reform by amending legislation. The Family Law
Act 1975 must compete with the tax legislation as the most amended legislation in Australian history. In contrast, the
2006 reform package is much more concerned with services and processes of adjudicating parenting disputes than
with changing the substantive rules of family law…
The goal of these reforms, taken as a whole, is major cultural change in relation to parenting after separation. The
success of these reforms, or otherwise, cannot be judged in a five-year time frame. A twenty-year time frame is more
realistic…
The key themes of the reform package are:
First of all, support for family relationships at all stages…
A second key theme is that of the indissolubility of parenthood…
The third theme is joint parental responsibility…
Fourth theme is the importance of a holistic response to the needs of families, rather than focusing systems
just on resolving parenting arrangements….
A final theme is the better integration of child support with the social welfare system and tax transfers…
5.2 Individual Stakeholder Impacts
An assessment of individual impacts in advance of planned formal evaluation reports or submissions
requires a subjective analysis of structural changes combined with anecdotal evidence from such
sources as published material or conference proceedings.
1. Political. Although the Howard government was subsequently defeated in 2007, the
election was fought largely on economic issues with family law reforms not being an issue
raised by any party20 thereby indicating the reform package was not negatively perceived. If
anything, anecdotal evidence of sharply declining call volumes21 to MPs regarding family law
– usually the top issue for an individual MP- suggests the reforms have been well accepted.
The reforms would likewise seem to have been well accepted at the territorial level as only
one territory- New South Wales- issued its own report22, the contents and tenor being
summarized in the accompanying press release:
19
Opening remarks by Prof. Parkinson, Proceedings of the International Forum on Family Relationships in Transition -
Legislative, practical and policy responses. 1–2 December 2005. AIFS .
http://www.aifs.gov.au/institute/pubs/frtforum/proceedings.html
20
Australian Federal Election. Wikipedia. http://en.wikipedia.org/wiki/Australian_federal_election%2C_2007
21
Nature of call volumes has likewise changed from complaints to technical/operational queries.
22
Final Report: Impact of the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth). Legislative
Council (NSW)- Standing Committee on Law and Justice. www.parliament.nsw.gov.au/lawandjustice . For a more
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ASSESSMENT OF AUSTRALIAN EQUAL PARENTING LEGISLATION
While we support the general aim of moving away from litigation in family matters, we are concerned that
the unintended effects of these latest amendments to the Family Law Act 1975 may result in harm to women
and children in New South Wales,” Ms Robertson explained“
The possibility that these amendments may expose women to family violence and may subordinate the best
interest of the child to the interests of the parents is the most concerning element of this Inquiry. The
Committee has made recommendations to the NSW Government that will attempt to address these
concerns.
2. Government (Attorney General). The AG department has responded positively - perhaps
even graciously given their operational complicity in the old regime- to the heavy workload
23
the family law reform package has placed on it in terms of drafting the law , preparing web
sites in advance, organizational changes, creation and budgeting of FRCs, accommodating
bureaucratic impacts of reform to the Child Support scheme, and creation of a large volume
of explanatory and process related material for both the general public as well as the legal
community. All indications are that the public service- after anecdotal indications of some
personnel realignments- is fully supporting the government policy24:
“…there is a huge dissatisfaction with the system out there. The House of Representatives Committee which
looked at this received, in the end, over 2000 submissions. And they weren’t just form letters—people took a
lot of time and trouble to make those proposals and the result was that the government felt it had to move.
The government believed the system was ‘broken’ and it fundamentally needed to be changed; and that is
why we’re talking about this breadth of reform. Whether you necessarily agree with all of the reforms or
not, it is clearly based upon this perception”
The Department of Families, Housing, Community Services and Indigenous Affairs (FaHCSIA)
25
- the department with the largest spending budget in the government- was instrumental in
bringing about a social science perspective to family affairs.
3. Judiciary. All indications are that public dissatisfaction with judicial resistance to popular will
precipitated the comprehensive reform. Problems with family law were well known from
earlier studies before the hallmark “Every Picture Tells A Story” Report :
“The Pathways Report described the complexities in the current family law system, its disconnectedness; its
cost and delays. The principles on which it operates are not well understood. These findings have been
confirmed during this inquiry. Many who provided evidence have outlined their dissatisfaction with their
own outcomes, how long it took to get them, the money they have spent and the anger and hurt that
26
remains in their lives ‘
While the expectations were that the Family Law reform Act of 1995 had created a
rebuttable presumption of equal parenting the parliamentary committee confirmed this was
feminist tone, see comment of Hon. Penny Sharpe, “Report: Impact of the Family Law Amendment (Shared
Parental Responsibility) Act 2006 (Cth)”.
23
THE NEW FAMILY LAW SYSTEM-SUMMARY OF THE MAIN CHANGES AND HOW THEY AFFECT APPROVED ORGANISATIONS
AND POST-SEPARATION PARENTING PROGRAMS . AG Department, July 2006.
24
Duggan, Kym. Ass’t Secretary Family Law Branch.”Legislative Change”. International Forum on Family
Transitions. ibid.
25
Canada has no equivalent, but a reasonable approximation would be Social Development with portions of Justice
Canada, Health Canada, Status of Women, and Indian and Northern Affairs. The Departmental name indicates
family policy is viewed in a more holistic manner in Australia than in Canada.
26
Paragraph 2.9. Every Picture tells a Story. Ibid.
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ASSESSMENT OF AUSTRALIAN EQUAL PARENTING LEGISLATION
clearly not the case. This was further compounded by failure to enforce Contact Orders as
well as gross unfairness of the Child Support scheme27. The distrust of the out-of-touch
Judiciary28 was undoubtedly responsible-at least in part- to subsequently devolving family
affairs from the Judiciary and imposing a highly specific legal regimen constraining judicial
discretion. Even then, many advocacy groups were wary whether the judiciary would abide
by popular will expressed through the government- early case law rulings- notably Goode v
Goode(2006)29 which affirmed Equal parenting paramountcy, even in interim access
arrangements- suggest the judiciary is compliant, but not without a discernible note of
institutional face-saving sabre-rattling30.
Conference presentations indicate that the novel Magellan case management approach to
judicial and social service intervention in instances where sexual and/or physical abuse
allegations are made is working well.31
4. Legal Profession32. All indications point to the Legal Profession being content with the
changes. While the reform packages is based on reducing court involvement, this does not
necessarily mean a reduction in legal time so much as a reorientation of lawyers to either
counsellors in the more involved process , or arbitrators/mediators . In addition, the
profession can count of ongoing fees from parental agreement/order changes.
While there is still a need to delineate the relationship between lawyers and mediators27 ,
indications are that they are working well together.33
The research indicates that, overall, the lawyers and family dispute resolution practitioners saw their roles as
being complementary rather than competitive….
An area where fundamental differences between the two professions were identified was in the way that a
lawyer's role was client-focused, while that of a mediator was predicated on a position of neutrality. …In
relation to situations where one party was at a disadvantage, however, such as cases involving family
violence, the lawyer's advocacy role was seen as particularly valuable.
In terms of child-focused practice, there were marked divergences in the way the two professions viewed
their own responsibilities and practices and those of the other profession. Family dispute resolution
practitioners were more likely to use social science literature and knowledge as a means of encouraging
27
Para 2.9 onwards. Ibid. Also footnote 23. Minister of Family and Community Services also noted: “A recent Australian
Institute of Family Studies study found that almost two-thirds of separated fathers and half of separated mothers felt the
current scheme was not working well—not a good vote for the Child Support Scheme. Similar proportions of separated mothers
and fathers also felt the system was unfair.” Patterson,K.”Family Support Services and Program Responses”. International
Forum on Family Transitions. ibid. Moreover, the previous Chief Justice was apparently noted for his gender bias thereby
setting a tone for the entire Judiciary.
28
Even a Federal MP called upon the then Chief Justice Alastair Nicholson to resign for his biased views.
29
Redman,Julie. “Practicing the Law on Shared Parental responsibility”. Shared Parenting Seminar, University of South
Wales.April 13-15, 2008.
30
Deputy Chief Justice Faulks. “In the best Interests of the Children: A perspective of the 2006 Amendments to the Family Law
Act”. Shared parental responsibility in Australian Family Law and the Impact on Children Seminar. Adelaide, South Australia 13-
15 April 2008. Other papers also available here.
31
‘Innovative Case Management Approaches to Child Abuse Allegations” (session 16), Australian Law Reform (session 24),
th
“Compulsory Dispute Resolution in Australian Parenting Proceedings” (session 64). 45 Annual Conference, Association of
Family and Conciliation Courts (AFCC), May 28-31, 2008 (Vancouver)
32
Harman J,”Parenting after the Shared Parenting Responsibility Act”. Also Emerson, Francis. “Family Law-Settling out of Court
and the New Shared Parenting Regime. General Practice Colloquium Conference. 8 December 2006
33
Caruna. Unwrapping the Family Law Reform Package. Ibid.
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ASSESSMENT OF AUSTRALIAN EQUAL PARENTING LEGISLATION
parents to focus on their children's needs, and make arrangements that took into account their
developmental stage. This was an area where lawyers showed an awareness of the shortcomings of their
own training, and expressed reliance on the expertise of social scientists.
Practices in relation to family violence were a further site for differences between the two professions to
emerge. Overall, family dispute resolution practitioners demonstrated a better understanding of the
implications of a history of family violence for parenting arrangements, although some lawyers expressed
concern about the way such a history may be handled in the context of mediation. Whilst some lawyers in
the study seemed to have a detailed understanding of the way family violence impacts upon the bargaining
position of the parties, and the implications that exposure to family violence has for children, others
demonstrated a more limited understanding.
This is an area of ongoing monitoring and research as part of the AFIS contract.
5.0 Schools34. As might be anticipated, the emphasis on joint parental responsibility and
decision-making has imposed an administrative requirement for more complete records
management, notification, and permission tracking.
6.0 Advocacy Groups. There can be little doubt that the reform package was warmly received by
equal parenting, Family and father’s rights advocates. Nonetheless, as the history of press
releases of the Shared Parenting Council of Australia (SPCA) indicates, the balance of success
hung in doubt until the very last moment indicating opposition from women’s violence groups
and radical feminist organizations35. An interesting observation from a feminist perspective was
the implicit recognition that opposing advocacy forces were perhaps equally organized and
more capably led than their own.36 Moreover, equal parenting advocacy groups were facilitated
by the many parliamentarians who had experienced divorce first hand and needed no
introduction to the failings of the system.
7.0 Public Opinion. As noted above and in footnotes, public opinion was consistently against the
legal establishment and in largely inclined towards equal parenting.
5.3 Issues Arising
All indications are that the reform package has been well received in general. While there are
operational and budgetary concerns expressed, they are not critical of the reform thrust. The sole issue
is the recurring theme of domestic violence and child abuse, but even here, the historical stridency is
absent – or at least muted – as the issue has become rapidly depoliticized with irrefutable data that
violence is a human rather than a gender issue. With the submission of the Family Violence Report in
34
Anderson, Roger. “THE FAMILY LAW ACT: ITS IMPLICATIONS FOR SCHOOLS”. Association od Independent Schools
od SA. 1 November 2007. See also Brown Thea et al. “A Consideration of the Difficulties in Implementing Shared
Parenting:shared parenting and involvement in children’s schooling post separation and divorce”. Shared
Parenting seminar. Ibid.
35
An interesting interview between SPCA and Sole Parents Union that summarizes differing perspectives was seen
in a 2003 TV interview.The SPU subsequently called for “closer monitoring” of father’s groups undertaken by a
“hate watch” organisation such as AIFS or HREOC-this parallels similar actions in Canada. It should be noted that
the election of a conservative government in Australia in 1996 crippled feminist organizations in terms of
accustomed financial support and historical organizational dominance of their counterpart organizations.
36
Rhoades H. “Yearning for Law: Fathers’ Groups and Family Law Reform in Australia” in Collier R. and Sheldon S
(eds). Fathers’ Rights Activism and Law reform in Comparative Perspective. Hart Publishing.2006
Prepared by George Piskor 905-380-4310 (gwpiskor@sympatico.ca)
Opinions and views expressed are those of the author. Page 11
ASSESSMENT OF AUSTRALIAN EQUAL PARENTING LEGISLATION
2007, the AU government is now formulating an adjustment to current public policies and social
systems.
6.0 PERSPECTIVE
The Australian Model serves to inform Canadian policy makers faced with similar issues.
Notwithstanding socio-economic-legal similarities between the two countries, this analysis is not
intended to suggest that a complete policy transplant is being proposed despite the novel and many
attractive features reviewed. Each nation must contextualize family policies and laws within its own
cultural and political environment.
The Australian Model reflects a socially conservative approach with deference to the family within the
historical interpretation of the parens patriae doctrine. In contrast, the current Canadian Family Law
environment reflects an era of strong social liberalism and statism recently left behind.
The divergence of North American views on Family Law between social liberals and social conservatives
has been the subject of debate on both sides of the border by the American Law Institute and the Law
Commission of Canada.37 The report identifies options of traditional marriage and marital union familiar
to Canadians and soon to be familiar to Australians; and also identifies “Disestablishment” as the third
dominant mode in which the state exits the marriage business –a concept previously raised in the form
of Registered Domestic Partnerships.
The EU has likewise entered into considerations of harmonization of Family Laws as part of political
integration; and the UN has moved to define both parental and children’s rights.
More recently, international family law has also started to consider standardized family law policies in
an increasingly mobile and globalized world with groeing family diversity. In all instances, the underlying
challenge is to reconcile competing issues of culture, religion, political culture and political economy
(aka social welfare considerations).
There is no doubt that the Canadian family law system is broken. Many of the ills stem from the 1990’s
era of serious deficits in western nations that were largely addressed by “downloading” to progressively
lower jurisdictions, and, in the instance of divorce, to the higher earning ex-spouse who assumed
disproportionate welfare obligations under the guise of substantive equality. While provinces, and to a
lesser extent municipalities, have since had the historical downloading burdens addressed, no such relief
has been provided in family law – with the unintended social and economic consequences of the
destruction of national human capital now apparent.
The Australian Model based on re-assertion of parental rights and the primacy of the family as the
cornerstone of a strong state makes absolute sense in a Canadian context. Moreover, the emphasis on
primary parental responsibility to privately manage all phases of a relationship within a context closer
resembling private law would seem to be consistent with evolving supra-national considerations.
Whether Canada opts for a similar or more aggressive shift towards private law will undoubtedly be one
of the key considerations for policy makers.
37
Cere, Dan. The Future of Family Law: Law and the Marriage Crisis in North America. Council on Family Law,
Institute of American Values. 2005
Prepared by George Piskor 905-380-4310 (gwpiskor@sympatico.ca)
Opinions and views expressed are those of the author. Page 12