We have previously examined the presumption of ‘equal shared parental responsibility’ in the horrific case of the Edwards family in our blog, The Presumption of Equal Shared Parental Responsibility: The Horrific Case of Olga Edwardson 18 September 2020.

We looked at the appalling murder of Hannah Clarke and her children in our blog, Another Tragedy: the murder-suicide of Hannah Clarke and her three children which was the catalyst for the private member’s Bill which proposes to remove the Family Law Act presumption of equal shared parental responsibility and the court’s associated consideration of equal time or substantial and significant time with each parent.

We now take a deeper look into whether the presumption for ‘equal shared parental responsibility’ should be amended or removed.

Quick refresh: what is the presumption of ‘equal shared parental responsibility?

  • The court will presume that parents have equal decision-making power and responsibility in making major decisions for their children such as:
    • education;
    • health; and
    • living arrangements.
  • The court will not apply the presumption if it believes on reasonable grounds that either parent has engaged in abuse of the child or family violence.
  • The presumption does not always apply. The presumption is rebutted if the court forms the view that it is not in the child’s best interest to do so.
  • The presumption does not mean the child spends equal time with each parent.


What does the Australian Law Reform Commission say about removing the presumption?

The Australian Law Reform Commission (‘ALRC’) is an independent statutory body that reviews Australian laws.

In March 2019, following an inquiry into the Family Law System, the ALRC produced a report with 60 recommendations for law reform within family law.

One of the recommendations was to amend the presumption of ‘equal shared parental responsibility’ to a presumption of ‘joint decision making about major long-term issues’.[1]

The ALRC reasoned that this would remove confusion for parents. It has been commonly misinterpreted by parents to mean a presumption of equal shared care. The unfortunate rippling effect of this, is that parents may agree to equal shared care by assuming that this what the court would have ordered anyway.

Equal Shared Parental Responsibility – should it stay, or should it go?

The presumption of equal shared parental responsibility is beneficial to encourage parents to co-parent and put the best interests of their children forward. The presumption only refers to an equal decision-making power of major long-term issues relating to the child and not to the time a parent spends with the child.

It is easy to understand that the presumption can be confused to equal time. Rather than the removal of the presumption, it is perhaps best if it is reworded following the ALRC recommendation to make it clear the presumption only refers to joint decision-making for long-term issues.

Can the Family Court predict such high levels of violence?

It is very difficult for the Family Court to predict whether the level of family violence committed by John Edwards or Rowan Baxter will occur.

The court relies on the evidence provide by the parties as well as the Independent Children’s Lawyers (‘ICL’). Often this comes in the form of child protection reports, known as section 67Z reports, by Department of Health and Human Services, material that has been subpoenaed by the police, statements by the parties, assessments by medical practitioners including psychologists and the family report.

Parties can subpoena material by the police of their notes on events that they have been called to. In some circumstances, the police will use the Common Risk Assessment Framework tool (‘CRAF’) to assess the chance of recidivism. The CRAF outlines certain offending behaviours, such as choking a victim, that can indicate an increased risk re-offending or escalating behaviour.

In the case of John Edwards, the ICL did not deem Edwards a risk to the children and actively advocated for the children to spend time with Edwards. In the matter of Baxter, family law proceedings were not yet before the court.

If you would like more information on the Bill’s proposed removal of the requirement for the court to consider equal time or substantial and significant time with each parent in certain circumstances, keep your eyes peeled for our next blog.

 

If you require assistance with your parenting arrangements or want to discuss your options in regards to child custody, please contact Rowan Skinner & Associates Lawyers. We are LIV Accredited Family Lawyers in Melbourne.

 

[1] Australian Law Reform Commission, Family law for the future – An Inquiry into the Family Law System (Report No 135, March 2019), 172-176. https://www.alrc.gov.au/wp-content/uploads/2019/08/alrc_report_135_final_report_web-min_12_optimized_1-1.pdf