By Dr Jodie Lodge MAPS, Australian Institute of Family Studies
The introduction of the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) has brought about major changes in how family separation is managed. The amendments are part of the new package of reforms in family law, the most significant in 30 years. The Australian Institute of Family Studies (AIFS) is undertaking an evaluation of the family law reform package on behalf of the Australian Government. This article outlines the principal changes to the family law system and provides details of the comprehensive evaluation of the reforms that will be undertaken by the AIFS.
The reforms are primarily concerned with improving the outcomes for children involved in family and relationship breakdowns, with a major focus on the way family separations are managed and parenting after separation. The core policy objectives of the
reform package are to:
The rights of children to a meaningful relationship with both of their parents is a key point in the reforms, but is subject to the need to protect children from physical or psychological harm.
The reforms are based on the proposition that both parents should have an equal role in making decisions about the physical and emotional wellbeing of their children, including around important issues such as schooling and health care. The exception to the presumption of equal shared parental responsibility is where there are issues of violence or abuse. In these circumstances, the courts are now required to act without delay to make any orders and to ensure that appropriate protections are in place.
Where the court has decided there should be equal shared parental responsibility, and it is reasonably practicable and in the best interests of the child, the court must now consider parenting arrangements that involve equal time or substantial and significant time with each parent, which includes day-today routine – not just weekends or holidays. The changes better recognise the importance of the relationships that the child has with their wider family, in particular their grandparents. There is also greater recognition that children of indigenous origins have a right to maintain a connection with their own culture.
The changes incorporated into the Family Law Act 1975 (Cth) place greater emphasis on encouraging parents to take responsibility for resolving disputes themselves, in a nonadversarial manner. Following a family breakdown, parents are encouraged to talk through disputes and come to joint agreements on parenting through services such as mediation.Where parents can’t agree on issues concerning children, and want to take the issues to court, the changes to the law will require that parents attend family dispute resolution sessions before going to court. Again, there are some exceptions, such as cases involving family violence or child abuse.
A family dispute resolution practitioner or family counsellor can help parents to discuss issues, explore options, and develop arrangements for their children. A Family Dispute Resolution Register has been established for individuals or organisations that provide family dispute resolution services. Providers must meet specified training, experience and suitability standards for inclusion.
Where parents are trying to resolve disagreements about their children, family dispute resolution practitioners and family counsellors have a similar obligation to those of family consultants (court staff who are assigned to cases involving children) and legal practitioners. Information about parenting plans must be provided and parents should be informed that they could consider an equal time arrangement with their child, or where that is not appropriate, a substantial and significant time arrangement. For those parents unable to resolve their issues, and who wish to apply to the court for a parenting order, the registered family dispute resolution provider can issue a certificate that confirms that an attempt at family dispute resolution was made.
In all child-related matters that do go to court, changes will now see a less adversarial approach adopted for legal processes. Active case management by judicial officers will seek to promote the best interests of the child by encouraging parents to focus on their children and on their parenting responsibilities, rather than the history of the parents’ relationship.
Core services are being established across Australia to support the reformed family law system. Family Relationship Centres, along with the Family Relationship Advice Line are new ‘gateways’ to the system. These Centres are designed to provide family dispute resolution services and a gateway to other services that families may need to build strong, healthy relationships and provide assistance with child-focused arrangements in the event of relationship separation.
Further services are being established to support the new legislation, including more early intervention and prevention services (e.g., family counselling, specialised family violence services); the expansion of community-based mediation services to provide family dispute resolution; more post-separation parenting services; and more Children’s Contact Services (which provide a neutral venue for the safe handover of children).
The evaluation being undertaken by the AIFS will examine how families fare under the new family law reforms, together with the nature of changes across the family law system. Some aspects of the research program will build on base-line research, including that conducted by AIFS specifically for the evaluation, as well as broader research conducted by various organisations, including the AIFS, for other purposes. A broad methodology for the research program is outlined in A Framework for the Evaluation of the Family Law Reform Package (AIFS, 2007), which is available from the Attorney-General’s website.
The research program focuses on families, the service provision system, and the implementation of the legislation and changes to the court system. Each of these components involves a series of studies, thus enabling a composite picture based on
multiple perspectives to be developed.
Focus on families
A number of related studies will examine the experiences of families involved in relationship difficulties both pre- and post-reform. Among these are large-scale cross-sectional surveys of separated parents, as well as parents in general, and a longitudinal study that involves the collection of data from the same group of separated parents on more than one occasion.
A large-scale national longitudinal study of separated parents will examine how families are faring as the family law reforms unfold. In particular, the study will gather comprehensive data to understand better the pathways that family relationships take following separation and will also examine the recent changes to the Child Support Scheme, including their impact on parental decisions about shared care.
Focus on services
The new and expanded services established to support the family law system reforms, will be evaluated through a focus on the perspectives of staff as well as the experiences of clients. A range of services will be studied, including: Family Relationship Centres; Family Relationship Advice Line; early intervention services (including Mensline); post-separation services; and Family Relationships Online. The research will centre on the role of Family Relationship Centres as both a ‘gateway’ to the new system through referrals to other services and as providers of family dispute resolution and other services, including information on parenting and relationship matters. Administrative and organisational data will also be analysed.
Focus on the legal system
The response of the legal system to the family law reform package will be examined through the third component of the evaluation. For example, data on the impact and implementation of the Shared Parental Responsibility Act 2006 (Cth) will be collected
from judges, magistrates, registrars, family consultants and lawyers, as well as through analysis of cases. Changes in attitudes and practices among a key group (i.e., family lawyers) will also be examined through a repeat of the Family Lawyers Survey, which was initially conducted by AIFS as a pre-reform benchmark study in 2006.
Given the breadth of the reforms, a critical part of the evaluation is the multidimensional research program. By bringing together data on families, services, and the legislation and courts, a comprehensive assessment of the core policy objectives of the family law reform package can be achieved.
The author can be contacted on Jodie.Lodge@aifs.gov.au
Australian Institute of Family Studies (2007). A framework of the evaluation of family law reform package. Available from the Attorney General’s website, http://www.ag.gov.au/www/agd/agd.nsf/Page/Families_Frameworkforevaluationandlongitudinalresearch-March2007#introduction
Australian Government (2005). A new family law system: Government response to 'Every picture tells a story': Response to the report of the House of Representatives Standing Committee on Family and Community Affairs inquiry into child-custody arrangements in the
Family Law Act 1975. Commonwealth of Australia.
Family Law Amendment (Shared Parental Responsibility) Act 2006. Commonwealth of Australia.