Member contribution

By Beatrice Melita MAPS, Barrister

The Family Law Amendment (Shared Parental Responsibility) Act 2006 that came into operation on 1 July 2006 has made significant changes to the way Courts will deal with children's cases. They will affect psychologists working in the Family Law jurisdiction in two ways. Firstly psychologists need to be aware of the changes in the legislation and how the Courts will be making decisions concerning children. Secondly, the changes may affect the quantum of work psychologists in private practice receive in future, although whether it is affected and if so how much, is as yet uncertain.

The changes include: changes in terminology; the inclusion of presumptions in defined circumstances; changes to the matters to be considered when determining the child's best interest; changes in the manner children's cases will be heard and managed in the Family Court; and changes to the rules of evidence in children's cases.

Changes in terminology

Earlier terminology used in children's orders were guardianship, custody and access and these were subsequently changed to long term responsibility for the child's care, welfare and development, residence and day to day responsibility for the child's care, welfare and development and contact, respectively.

In making parenting orders, from the 1st July 2006, the new terms will be "duties and responsibilities concerning the care, welfare and development", and parental responsibility is defined to mean all the duties, powers, responsibilities and authority which by law parents have in relation to children (s61B). Residence is changed to "live with" (s65M) and contact is replaced by "spend time with" (s65N) and "communicate with" (s65NA).

The child representative is now called the "independent children's lawyer" and family court counsellors and mediators referred to as "family consultants".

Introduction of presumption of equal shared parental responsibility

Until the current changes, the law had been that unless a Court order specified differently, both parents had the long term responsibility for the child's care, welfare and development. The practice in family law cases has been that unless there was good reason to eliminate one parent from the long term responsibility, both parents remained responsible for the child's long term care, welfare and development. The long-term responsibility is distinguished from residence or the living arrangements for the child, this now being referred to as the parent with whom the child lives.

The Act is now explicit that each of the parents of a child has parental responsibility and it is not affected by changes in the relationship (s61C). A parenting order confers responsibility for a child on a person, but only to the extent to which the order confers on the person the duties, powers, responsibilities or authority in relation to the child. Further, a parenting order in relation to a child does not take away or diminish any aspect of the parental responsibility of any person for the child except to the extent expressly provided for in the order or necessary to give effect to the order (s61D).

The major change now introduced into legislation is the rebuttable presumption of equal shared parental responsibility and the consequences that flow in relation to the amount of time the child spends with each parent when the parents have equal shared parental responsibility.

Rebuttable presumption

The Court must now apply the presumption that it is in the best interest of the child for the parents to have equal shared parental responsibility (s61DA(1)). The presumption does not apply, that is the presumption is rebuttable, if there are reasonable grounds to believe that a parent of the child (or a person who lives with the parent of a child) has engaged in (s61DA(2)):

(a) abuse of the child or another child who, at the time, was a member of the parent's family (or that other person's family); or

(b) family violence;

Further, the presumption does not apply (that is, it may be rebutted) if it would not be appropriate in the circumstances (s61DA(3)) and if it would not be in the best interest of the child (s61DA(4)).

Family violence is defined as conduct, whether actual or threatened, by a person towards, or towards the property of, a member of the person's family that causes that or any other person's family reasonably to fear for, or reasonably to be apprehensive about, his or her personal wellbeing or safety (s4(1)).

Equal, substantial and significant time

Where a parenting order provides for equal shared parental responsibility, the Court must consider whether the child spending equal time with each parent is in the child's best interest and reasonably practical, and if it is, consider making an order for the child to spend equal time with each of the parents (s65DAA(1)). If equal time is not ordered then the Court must consider whether the child spending substantial and significant time with each parent is in the child's best interest and reasonably practical (s65DAA(2)). Substantial and significant time is defined to include weekends, holidays, weekdays, involvement in daily routine, significant events and days of special significance (s65DAA(3)).

Matters which the Court must have regard to in determining whether it is reasonably practical for a child to spend equal time or substantial and significant time include the distance between the parents, their current and future capacity to spend the time with the child, communicate with each other and resolve difficulties, and the impact of the arrangement on the child, as well as other matters the Court considers relevant (s65DA(5)). The notation following this section explains that "other matters" may include behaviour of a parent relevant to determining the best interest of a child which is found in s60CC(3), including the willingness and ability of the parent to facilitate and encourage a close and continuing relationship with the child and the parent's attitude to the child and responsibilities of parenthood. It also notes that in relation to the parents' future capacity, the Court has power under section 13C to order parties to attend counselling and various other programs.

Effect of parenting order that provides for shared parental responsibilities; and no need to consult on issues that are not major long-term issues

The Act now makes explicit that which had been the practice, that is, that parents who share parental responsibilities for a child that includes long-term issues, requires each of the parents to consult the other in relation to the decision to be made and to make a genuine effort to come to a joint decision about the issue (s65DAC)). Major long-term issues are defined (s4(1)) as being of a long-tern nature including education, religion and cultural upbringing, health, name and changes to the child's living arrangements that make it significantly more difficult for the child to spend time with a parent.

It further specifies that there is no obligation to consult on issues that are not major long-term issues. The parent with whom the child is spending time and who has or shares parental responsibility, is not required to consult the other parent about decisions that are made in relation to the child during that time, on issues that are not major-long term issues unless so specified in a parenting order (s65DAE). The notation gives two very basic and self evident examples; what the child eats or wears as usually not being major long term issues.

Psychologists working with children

Importantly for psychologists, and others providing services for children, section 65DAC(4) adds that "To avoid doubt, this section does not require any other person to establish, before acting on a decision about the child communicated by one of those persons, that the decision has been made jointly". The APS is currently developing guidelines for working with children and one of the issues which the guidelines will address is whether a psychologist has the responsibility to ensure that the consent of both parents is obtained prior to providing psychological services for the child. The legislation makes it clear that "any other person" is not required to establish that the decision was jointly made. The APS guidelines, when promulgated, will provide guidelines on the circumstances and approach expected of psychologists when working with children and in particular when providing services to children of separated parents on the request of only one parent.

Objects and underlying principles (s60B)

The objects have been expanded by specifying four objects and state that they are to ensure that the best interests of children are met by ensuring that children have the benefit of both parents to the maximum extent consistent with the best interest of the child, protecting them from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence, ensuring that children receive adequate and proper parenting to help them achieve their full potential, and ensuring that parents fulfil their duties and responsibilities (s60B(1) emphasis added). I have highlighted the protection from harm aspects of the objects because the issue of family violence and abuse appears to have been given some prominence by its inclusion in the objects and in various other parts of the legislative changes. The principles underlying the object are similar (although not exactly the same): except when it is contrary to the child's interest, children have a right to know and be cared for by both parents, spend time and communicate on a regular basis with both parents and others including grandparents and other relatives, and that parents jointly share responsibilities and should agree about future parenting. It should be noted that grandparents and relatives now appear in the principles and a fifth principle has been added, that children have a right to enjoy their culture.

How a court determines what is in a child's best interest

Psychologist will have been aware that the factors to be taken into consideration in determining what is in the child's best interest, were previously contained in section 68F(2). These factors have changed and are listed in s60CC under two major headings, primary considerations (s60CC(2)) and additional considerations (s60CC(3)). The explanatory memorandum accompanying the legislation at paragraph 51, notes that there may be instances where the secondary considerations may outweigh the primary considerations.

The primary considerations (s60CC(2)) are (a) the benefit to the child of having a meaningful relationship with both 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 additional considerations (s60CC(3)) are:

(a) views expressed by the child and any factors (such as maturity or level of understanding) relevant to the weight it should be given;
(b) the nature of the relationship with parents and others (including grandparents or other relatives of the child);
(c) willingness and ability of parents to facilitate, encourage a close and continuing relationship with the other parent;
(d) the likely effect of any changes in the child's circumstances and separation from parent(s) and others;
(e) practical difficulties and expense;
(f) the capacity of each of parents and any other person to provide for the needs of the child, including emotional and intellectual needs;
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the parents and any other characteristics of the child the court thinks are relevant;
(h) if the child is an Aboriginal or a Torres Straight Islander and the right to enjoy the culture and impact of the parenting order on that right;
(i) attitude to the child and responsibilities of parenthood;
(j) any family violence involving the child or a member of the child's family;
(k) any family violence order that applies to the child or a member of the child's family, if the order is a final order or the making of the order was contested;
(l) order least likely to lead to further proceedings;
(m) any other fact or circumstance the court thinks is relevant.

The Court must also consider the extent to which each of the parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and in particular, has taken or failed to take the opportunity to participate in making decisions about major long-term decisions, to spend time and communicate with the child; has facilitated or failed to facilitate the other parent in making long term decisions, spending time and communicating with the child; and has fulfilled or failed to fulfil the parent's obligation to maintain the child (60CC(4)). In considering whether the parents have fulfilled or failed to fulfil his or her responsibilities, the Court must also have regard, in particular to events that have happened and circumstances that have existed, since the separation has occurred (s60CC(4A)).

The legislation now places emphasis on conduct about fulfilling parental responsibilities, in particular, post separation including whether the parent has maintained the child. Until now, the question of child support has been separated from whether a child has contact with the other parent, although this financial issue has not in the past been ignored in disputes about the distance to be travelled for contact change over and which parent should bear the consequent costs. The obligation to maintain the child is now one of the matters to be considered in determining the best interests of the child.

Psychologists will note other changes, such as in s60CC(3)(a) where "wishes" of the child has now been replaced by "views expressed by the child". It is to be noted that the legislation also clearly states that children are not required to express views in relation to any matter (s60CE). Most psychologists would have in any event reported the views of the children as well as any other observations of the child's behaviour and comments during assessment. It is expected that competent psychologists when dealing with young children would not simply interview them but that other forms of assessments are employed. In more recent years, I have noted a trend in some family reports, that younger children, even as young as 5 years old, are only being interviewed without the psychologist or counsellor also undertaking a proper assessment using various other methods such as play, dolls, drawings and the like. Such reports do the children an injustice and appear to indicate that the writer is either taking short cuts or does not have the skills to undertake a proper assessment.

Protection from violence more explicit

The new legislation is more explicit about the relevance and implications of family violence and abuse of children. This aspect is now mentioned in a number of areas: the objects of the Act (s60B); the presumption of equal shared responsibility does not apply if the parent or someone living with the parent has abused the child or another child in the family or other person's family (s61DA(2)); it is one of two "Primary considerations" in determining what is in the child's best interest (60CC(2)); and again reiterated in the "Additional considerations" of what is in the child's best interest at both subsections 60CC(3)(j) and (k). There is also a new provision, section 60K, where the Court must take prompt action in relation to allegations of child abuse or family violence. The outcome of research about the adverse effects of family violence whether it was directed at the children or whether the children were exposed to it as observers or exposed to the consequences on the victim, is now well known. Unfortunately some family reports are not explicit about the implications of family violence on the children and fail to take this into account in recommendations about contact (the time the children should spend with the parent). The problem also arises when children are inarticulate or unable to explain their reluctance to have contact (spend time) with the non resident parent (the parent with whom they do not live). The implications of family violence and abuse should be clearly addressed in family reports, as this has always been a relevant consideration in determining the children's best interest. I would suggest that there is now greater reason to do so as a result of the changes to the legislation.

Some rules of evidence do not apply

The rules of evidence in children's cases have been changed. Some rules of evidence do not apply including hearsay and opinion evidence unless the court decides to apply them in exceptional cases and if other requirements are also met (s69ZT). The Court may give such weight (if any) as it thinks fit to evidence admitted as a consequence of the relaxation of the rules of evidence. While the rules of evidence may not have been overly relevant to psychologists in the past when preparing family reports because children's hearsay evidence is admissible (s69ZV) and a psychologist's opinion is also admissible as expert evidence, it is perhaps now more important for psychologists to be prudent about their procedures and assumptions about facts when preparing family reports. Firstly, psychologists should ensure that procedures for interviewing the parties and relevant others are fair and balanced. Secondly, psychologists should ensure that statements and allegations made by one side are checked with the other side and that each of the parties, children and where relevant, others, are given the opportunity to respond and give their version of the events or allegations. If a psychologist reports an issue or event it is important to ensure that both parties have had the opportunity to present his or her version of the event and both versions are thus reported. Even the setting out of the background to the case needs to be balanced and the facts reported by the psychologist should not be based on a version given by one side. Assumptions made about facts even at the beginning of a report, such as in the background, can lead to skewed reporting of subsequent facts and erroneous conclusions. Whilst this seems self evident, it is easily done and many experienced psychologists or counsellors (now called family consultants) have made this error. It can lead to perceptions of bias. Complaints to the relevant Registration Board can also follow, as many psychologists have found, where either the procedures have been unfair or the psychologist has wrongly assumed facts and these have lead to grievances by one of the parties.

Family dispute resolution

One of the more publicised features of the changes is the Family Dispute Resolution Centres and compulsory family dispute resolution before filing an application with the court (there are exceptions such as in the case of abuse). There is a general requirement for counselling before any parenting order is made (s65F) (proceedings for a parenting order includes enforcement proceedings s65F(4)) except in urgent cases or special circumstances such as family violence, it is not practicable or parenting orders are made by consent. Compulsory family dispute resolution is to be implemented in several stages extending over several years and family dispute resolution certificates are to be provided by a family dispute resolution practitioner (s60I). Not only must parties attend but they are expected to make a genuine effort to resolve the issues and if not, the certificate will be issued with the notation that the person did not make a genuine effort to resolve the issue. It is to be hoped that family dispute resolution practitioners exercise this power sensibly.

Less Adversarial procedures

In addition to the changes to the rules of evidence, the new legislative provisions are intended to empower the Court to hear children's matters in a less adversarial manner. The new Division 12A describes principles for conducting child-related proceedings. The Family Court will be using the procedures already trialed in the Children's Cases Program that includes a family consultant (formerly known as Family Court counsellors or mediators) being designated (s69ZS) to be involved in a case from its inception. The role of the family consultant will also be to meet with the parties and the children and where appropriate provide a report to the court. The same Judge will be involved and the Judge is able to directly question the parties.

Child's best interest remains the paramount consideration

The child's best interest remains the paramount consideration despite the changes and apparent emphasis on equal parental responsibilities and shared parenting. No legislation about children could do otherwise. Psychologists continue to have the responsibility to apply their psychological knowledge and training, using psychological theories, research and principles about children's attachment, children's development and needs, family dynamics and relationships within the family, the impact of family violence and abuse, the mental health of each of the members, children's views or wishes and other relevant psychological issues, in accordance with their specialised scientific training. It is then for the Court to apply the psychologist's findings to the criteria set down by the legislation. For example, there are sound psychological reasons about attachment for concluding that it is not in the best interests of a child, if the child is an infant, to have equal time with the infant's non-primary carer. Such a conclusion by a psychologist is consistent with the new provisions because equal, substantial or significant time spent with the parent must still be predicated on the arrangement being in the child's best interest. Psychologists should not feel constrained by the matters iterated nor the weight to be given to them by the legislation, and should form their own judgment on the relevant issues based on their studies, training and experience. The proviso is that the psychologist ensures that in making an assessment of the children and family, all the relevant issues have been properly assessed and included in the summation, conclusions and recommendations.

The future for psychologists

For psychologists working in private practice and providing family reports to the Family Court and the Federal Magistrate's Court, the long term future may be a little uncertain. So far and for the short term future, reports commissioned by agreement by both parties are still being sought and being used in court. The legislation continues to provide for reports to be sought by the child representative under subsection 62G(2) (s60CD). Family consultants are to be used by the Family Court in all cases whose applications are made after the 1 July 2006. However, given the volume of cases which come before the two Courts, it is likely that psychologists in private practice will continue to be required to provide family reports in the future.