Shared parenting and experimental family law reform: section 65DAA of the Family Law Act 1975

2019-06-12T22:44:28Z (GMT) by Parker, Anna Kathryn
Section 65DAA of the Family Law Act 1975 (Cth) (‘FLA’) is the focus of this thesis. The thesis argues that this provision should not have been enacted and advocates for its repeal. Section 65DAA was introduced as part of the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) (‘the SP reforms’), which made substantial changes to the part of the FLA that deals with post-separation parenting arrangements. This thesis examines the aspects of the SP reforms which relate to the time to be spent by children with each of their parents. In particular, it focuses on section 65DAA, which requires courts to consider ordering that children spend equal or substantial and significant time with each of their parents in many cases. In order to assess whether the SP reforms, particularly section 65DAA, should have been enacted, this thesis considers the legal and social context in which the reforms emerged, the reform process and the attendant debate, the terms of the legislation enacted, and the legal and social consequences of the shared parenting aspects of the reforms. In so doing, the thesis draws on legal and social science research from before and after the reforms in relation to children’s best interests, shared parenting, social trends and parenting laws, and examines the parliamentary process by which the SP reforms were enacted and the accompanying debate. It also examines judgments from both before and after the enactment of the reforms, in cases of the type to which section 65DAA was designed to apply. The thesis argues that, based on the social and legal context in which the reforms emerged and the state of empirical research at that time, legislative changes to encourage courts to favour shared parenting outcomes were not warranted. It further argues that the reform process leading to the enactment of the relevant provisions was flawed, with inappropriate weight given to the claims of fathers’ rights activists ahead of the arguments and evidence presented by most legal and social science experts. Having established that the SP reforms were ill-advised, the thesis moves on to examine the outcomes of the legislation, including its consequences for the community at large and its implementation in judicially determined cases, with a focus on outcomes for children rather than for parents. The thesis argues that the largely negative legal and social consequences of the reforms, which include the imposition of shared parenting arrangements in many circumstances in which the relevant research suggests they are unlikely to operate to the benefit of children, cannot be justified and that reconsideration is warranted. Finally, the thesis examines the responses to the identified negative outcomes of the SP reforms which have emerged to date and proposes a number of further responses designed to address the outcomes of the legislation. These include the repeal of section 65DAA and the enactment of further related legislative reforms, and non-legislative measures including the enhancement of public education in relation to post-separation parenting and the promotion of increased paternal involvement in intact families.