Legislating for shared parenting: the "joint custody" inquiry makes recommendations for change.(Family Law)

After six months of inquiry, the House of Representatives Family and Community Affairs Standing Committee has released its report on child custody arrangements following separation. While stopping short of endorsing contentious measures to mandate shared care of children, the recommendations include a call for radical restructuring of the family law system.

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The report of the parliamentary inquiry into "child custody arrangements in the event of family separation" was released, as scheduled, on 29 December 2003. (1) It contains proposals for far-reaching reform of laws relating to family breakdown and of the family law system that administers them.

For many who have followed the debate, the primary issue to be considered by the Family and Community Affairs Committee was whether there should be imported into Australian law a legal presumption of joint "custody'. Under such a proposition, where separating couples cannot agree on questions of residence and contact, it would be presumed at the outset that their children spend equal time with each parent, unless evidence is adduced to rebut the presumption.

The Committee has stopped short of endorsing the proposal for equal parenting time and has instead recommended that a legal presumption of "shared parental responsibility", or mutual involvement in decisions concerning the children, be incorporated into the Family Law Act.

Other recommendations of significance include the creation of an investigatory, tribunal to take over much of the role of the Family Court, the establishment of a network of shop-front family law centres as the first entry point into the family law system, a change in the legal terminology relating to children, and a review of the child support scheme. A summary of these and other findings of interest is outlined below.

Presumption of equal time

The Committee clearly saw an arrangement where children spend near equal time with each parent as the preferred starting point in negotiations between parents. However, they recognised the risk of legislating for the ideal and "forcing this outcome in potentially inappropriate circumstances" (Commonwealth of Australia 2003:30). In so doing they noted the importance of issues such as family violence, the variability of circumstances affecting families, practical obstacles (such as financial and work constraints), and the weight of professional opinion on the importance of stability for children.

They concluded that the debate needs to shift from an emphasis on time allocation to focus instead on measures that will foster the continued involvement of both parents in their children's lives.

However, in an attempt to change what became characterised during the life of the inquiry as the culture of the "80/20 parenting time split", a number of measures have been proposed to ensure that professionals working in the field encourage parents, in the first instance, to consider an arrangement where parenting time is substantially shared (Recommendation 5).

Presumption of equal responsibility

As mentioned above, the …