Understanding Australia’s no-fault divorce
"A court must have regard to the best interests of the child as the paramount consideration."
This requirement is outlined in S65AA of the Family Law Act 1975. Furthermore, Subdivision BA of the Act devotes itself to the Best Interests of the Child in relation to the making of a parenting order (S60CA), how the best interests are determined by a court (S60CC), how the views of children are expressed and taken into account (S60CD, 60CE) and the risk of family violence and how that affects the best interests of the child (60CG).
S60CC of the Family Law Act outlines extensively how the court determines what is in a child's best interests with two primary considerations being outlined in S60CC(2): "(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 subjected to, or exposed to, abuse, neglect or family violence." The same section then goes on to outline various additional considerations which the Court must take into account in deciding what is in the child's best interests.
It is clear from the various provisions relating to the best interests of the child that the legislation takes very seriously the best interests of the child as the 'paramount consideration'. However, the writer challenges us to ask whether it is the kids' best interests or parents' competing interests that have been the main driver in the parenting arrangements we see in our society.
The presumption of equal shared parental responsibility when making parenting orders, outlined in S61DA of the Act presumes that it is in the best interests of the child for the parents to have equal shared parental responsibility for the child. This is not about equal time, the common mistaken assumption of the general public. It is about "parental responsibility", or the decision making to be carried out by parents.
In some cases the children become locked in the middle of a winner takes all game between two warring sides who do not properly understand that equal shared parental responsibility does not equate with equal time. One of the major objects of the shared parental responsibility legislation was to minimize litigation between parents and ensure that cooperation was optimized in accordance with the best interests of the child. Unfortunately, this legislation and the press surrounding it appears to have exacerbated parents' focus on their own position with "litigation and negotiation focused more on parental rights than on children's welfare" and "increased difficulty in working with parents to achieve child-focused arrangements." Though the 2006 reforms were introduced to "work better for children who face family separation and breakdowns," the continued litigation between warring parents means that "family law … continues to be about balancing the rights of the fathers and mother, with the children the object but rarely the subject of family law decision making."
In Australia, 95% of family law matters, including those involving children, are settled outside of the court room. Put another way, only about 5% of parenting arrangements have been determined and ordered by the Court. Of those that are settled by agreement, some have had some legal advice or proceedings but a significant number of families have arrangements without the benefit of any specialist family law advice or representation of both parties. In an environment where the law is substantially misunderstood by the public, there must be grave concern about whether these agreements serve the best interests of the child.
"Collu & Rinaldo" is a recent case of the Full Court of the Family Court of Australia. While the case was awaiting hearing, the parties and their legal representatives made an agreement that their four year old child would travel on a month-about basis between Sydney (where his father lived) and Dubai (where his mother lived). This arrangement went on for 14 months before the case was expedited to the Full Court of the Family Court in 2010. This arrangement was made by the parties through negotiation. It was thrown out completely in the Full Court case of 2010. The dismissal of the arrangement begs the question of why the parents and their legal advisers could contemplate that this type of care arrangement could possibly be in the interests of the child, let alone in the best interests of this 4 year old.
Possibly, it was thought acceptable because it suited the parents. However, the psychological damage that can result from such arrangements (even without the distances involved) is well documented and should have been the paramount consideration for the parents and their legal advisers as required by law. This case of Collu & Rinaldo, is an example of arrangements made by parents' failing to consider the best interests of the child. With 95% of cases settled outside of court, this is a prominent and important issue for consideration and further investigation.
A recent study commissioned by the Attorney General's office found that many children in high conflict families do not like Shared Care and that those children also had higher rates of hyperactivity than children who had a stable home base with one of their parents. These children are more troubled, distressed and anxious than children who have more flexible arrangements.
Professor Alastair Nicholson, former Chief Justice of the Family Court stated that: "the problem with [shared parental responsibility] is it treats children as objects, rather than as people. What it's really saying is not much about the desires, the needs, the interests of the child. What it's talking about are the desires and the needs and the interests of the parents." A perfect example of Professor Nicholson's comments is the case of Collu & Rinaldo.
The Honourable Diana Bryant, Chief Justice of the Family Court stated that: "One of the unfortunate effects, I think, of the 2006 legislation has been that it's focused people very much on time … they want equal time and it's taken the focus away … from what's best for the child."
The Courts follow the required law and try to decide matters with the best interests of the child as the paramount consideration. Parents misunderstand the nature of the law and their perspective is clouded by the desire to have a convenient arrangement in which they have as much time as possible with their child, even if it is not in the best interests of the child. In reality, in a country where 95% of cases are not Court determined but settled between feuding parties who have misunderstood the law perhaps we need to question whether the law is creating outcomes in the best interests of the child and consider a re-evaluation of the law that is driving these outcomes.
 Kaganas, Felicity, 'A presumption that involvement of both parents is best: deciphering law's messages' (2013) 25(3) Child and Family Law Quarterly 271.
 Fitzgerald, Robyn and Graham, Anne, 'Changing the Status of Children within Family Law' (2011) 20 Griffith Family Law Review 421, 421.
This post was written by Renata Hercok.