There has been considerable media coverage of family law issues in the past few months. On 29 December 2003, the Standing Committee on Family and Community Affairs released its report, “Every picture tells a story”, on the inquiry into child custody arrangements in the event of family separation. The committee made several recommendations suggesting sweeping changes to the family law system. A summary of the major recommendations of this significant report follows.
Equal shared parenting
The committee considered the primary issue of how to ensure
that both parents can remain involved in caring for their
children after separation. The committee recommended that
the Family Law Act (“the Act”) be amended to
create a rebuttable presumption in favour of “equal
shared parental responsibility”. Shared parental
responsibility refers to shared decision making about the
major aspects of child rearing and requires parents to
consult with each other on a regular basis. It does not
go as far as to suggest that children spend equal time
with each parent - an idea that has also raised much discussion
in the media.
The committee recognised that in some cases where violence, child abuse or substance abuse exists in families, there would need to be a clear presumption against such shared parental responsibility. The committee noted that the presumption of shared parental responsibility is already implicit in ss60B and 61C of the Act. Indeed, it is the intention of the parenting plan process that this presumption be embodied. The committee did note, however, that the community’s perception is that an 80-20 rule is applied by the courts whereby mothers have sole residence and fathers receive alternate weekends and half the school holidays. The committee concluded that shared parenting should be more explicit in the Act.
New family law system
The committee recommended sweeping reforms in the handling
of family law matters, criticising the legal profession
and the adversarial approach to resolving disputes. On
this issue, it could be argued that the committee has overlooked
the significant role the legal profession has played, and
continues to play, in the settlement of family matters
through mediation and dispute resolution.
The committee recommended a “shop front” single entry point system for families, aimed at offering accessible and affordable mediation and counselling, as well as the ability to develop early parenting plans. The committee also recommended the establishment of a new Families Tribunal to hear and determine matters in an informal setting. Legal representation at the tribunal would be expressly excluded. The proposed tribunal would also have an investigative arm with powers to investigate allegations of violence and child abuse. Courts would be used as a last resort, dealing with enforcing tribunal orders, appeals and issues such as entrenched family conflict and violence. Again, the report recommends that courts take a non-adversarial role.
Child support
The committee examined the area of child support, making
recommendations concerning various components of the child
support scheme. The recommendations include:
- Increasing the minimum child support liability payable from $5 per week to $10 per week;
- Reducing the income “cap” of the paying parent to ensure high income payers are not contributing child support at a rate in excess of the real cost of raising children;
- Establishing the costs associated with raising children in separate households and the costs associated with parents setting up separate homes, and taking these costs into account to evaluate the formula percentage to be applied for child support;
- Re-examining the whole area of taxation and its impact on child support (particularly calculating the income of a non-resident parent);
- Examining the area of exempt income and disregarded income to allow for the changes in the work patterns of parents in the community; and
- Reviewing the enforcement and review procedures for decisions of the Child Support Agency.
The report makes many sweeping recommendations, some more radical than others. It remains to be seen how the relevant sectors of the community respond to the recommendations proposed and to see if any of the recommendations result in any significant legislative change. In addition, new Family Court rules are being introduced, aimed at making the Family Court system more user-friendly. The area of family law always generates lively debate and innovative ideas. 2004 promises to be a year of continued development in this very important area of law.
