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Australia ponders the presumption of equal shared parental responsibility

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October 17, 2023

I am no expert on family law in other jurisdictions, but from what knowledge I have it seems that there are a number of parallels between the issues arising in many ‘western’ jurisdictions, especially the English-speaking ones.

Heated debate

Recent news reports from Australia suggest that a matter that has for some years been at the centre of discussions regarding the reform of children law over here is also giving rise to equally heated debate over there. I am talking about the presumption of equal shared parental responsibility, i.e. that in any proceedings concerning arrangements for children following the separation of their parents, the court should presume that it is best for the children that their care should be shared equally between both parents. Or, to put it another way, there should be a starting-point of equal shared care, which should only be departed from with good reason.

In this country fathers’ rights groups and others have been calling for the introduction of such a presumption for as long as I can remember. And in 2014 they almost got their way. However, in the event, the Government decided to stop short and simply introduced a presumption to the effect that, unless the contrary is shown, the court should presume that the involvement of both parents in the life of the child concerned in any proceedings will further the child’s welfare. The calls here for a full equal shared parenting presumption therefore continue.

Questionable motives

In Australia, things have gone further, and the motives of those involved have been questioned.

It seems that the Australian proponents of equal shared parental responsibility largely got their way back in 2006. Thereafter, however, concerns began to grow that the system was prioritising the right to contact over the child’s right to safety. Perpetrators of domestic violence were achieving “significant and substantial unsupervised time with their children”. The concerns led to an inquiry into family law in 2017, which recommended that the Australian Law Reform Commission consider removing the presumption of equal shared parental responsibility. The Commission agreed that the presumption should be replaced with “joint decision making about major long-term issues”, and also recommended abolishing a provision requiring the courts to consider equal, substantial or significant time with each parent.

But now things have apparently taken a different turn. The Australian Government recently announced another inquiry into the family law system which, it is feared, will ‘bury’ the findings of both the first inquiry and the Commission, apparently under pressure from “angry white men”. In other words, those fathers’ rights groups are fighting to hold on to the prize that they gained back in 2006.

Lessons for England and Wales

Now, I don’t know the truth of this, but it is certainly interesting to see how things have developed in Australia and to consider the implications for family law over here. I do recall the concerns expressed in many quarters here prior to the 2014 reform that an equal shared parenting presumption put the ‘rights’ of the parent ahead of the welfare of the child. It seems that at least some experts in Australia have reached a similar conclusion.

This could clearly be a blow for proponents of an equal shared parenting responsibility presumption over here. Obviously, if any future government here should re-visit the issue then the findings of the first inquiry in Australia and of the Australian Law Reform Commission will be relevant.

And the idea that such an important issue should become some sort of political football is of course horrifying. Obviously, no reform of the law which concerns the welfare of children should be bought in return for votes. I don’t know how things are going to pan out in Australia, but hopefully, for them, the best interests of the children will prevail over any political agenda.

Whatever, I think all of us on this side of the globe would do well to closely watch the antipodean developments.

John Bolch often wonders how he ever became a family lawyer. He no longer practises, but has instead earned a reputation as one of the UK's best-known family law bloggers, with his content now supporting our divorce lawyers and child custody lawyers

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  1. spinner says:

    “apparently under pressure from “angry white men”. In other words, those fathers’ rights groups are fighting to hold on to the prize that they gained back in 2006.” – What’s wrong with you, did you have a bad experience with your own white father and your racism and sexism is you playing out that trauma?

    A parent is a parent no matter their race or gender and they have a right to be treated equally.

  2. Stitchedup says:

    “Perpetrators of domestic violence were achieving “significant and substantial unsupervised time with their children”” How appropriate that would be would depend very much on the nature of the domestic violence that the alleged perpetrator was accused of and indeed whether he, and I assume you are referring men, was actually convicted. As an example, I wouldn’t consider it appropriate for a men convicted of a breach of a dogey no mol due to voicing an opinion about the selling price of the family home to be denied totally unsupervised time with his children… he should be allowed totally unsupervised shared parenting.

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