Tuesday, 1 May 2012

Shared Parenting in Australia - Notes from the Chief Justice's Talk

The Chief Justice of the Family Court of Australia, Diana Bryant AO, spoke about the lessons to be learnt from the Australian shared parenting reforms of 2006 at the Annual International Family Law Seminar in London on 1 May 2012. The Judge highlighted possible dangers of following a similar path in England and Wales, and offered practical tips to avoid the major pitfalls. This is an unofficial report of the Judge's paper based on the notes that I took; Bryant CJ will, I believe, be publishing her full paper in International Family Law later this year.

It is hard to imagine a more timely moment to hear Australia's most senior family court judge talking about the lessons that would-be law reformers in England and Wales can learn from the Australian experiences of shared parenting legislation. In her excellent paper, Chief Justice Bryant reflected on the 2006 changes to Australian family law, and commented on their relevance to current proposals to amend the law of England and Wales.

Before we get to the Chief Justice's talk, a very brief summary of the Australian law relating to children after parental separation may be helpful. The Australian law is complicated, so this is a rather simplified account (i.e. don't rely on this for anything - it's just to put the rest of the post in context) but in summary the 2006 reforms had the following effects:
  • parents are presumptively given equal shared parental responsibility for their child, meaning the legal powers and responsibilities of raising him or her [which is basically the same as the law in England and Wales]
  • if both parents have equal and shared parental responsibility, legal advisers and mediators have to discuss with the parents, and the court must consider, in turn each of the following options and decide whether they would be in the child's best interests:
    • spending equal time with both parents
    • spending 'substantial and significant time' with both parents (meaning at least some of all the following time: weekends, holidays, normal weekdays, and significant days like birthdays or Christmas)
    • having other contact with the non-resident parent.
  • through all of this, the child's best interests are informed by two "primary considerations", namely:
    • the importance to the child of having a meaningful relationship with both parents
    • the importance of the child's safety
Somewhat alarmingly, these last provisions had to be amended in 2011 to make clear that safety is more important than the meaningful relationship provision, which one would have thought to be so obvious as to go without saying - but apparently not.

So, what did Bryant CJ have to say about all this? After discussing the background to the Australian shared parenting reforms, her Honour offered three key pieces of advice for those seeking to reform the law in England and Wales:

  1. Be clear what is intended by any reforms. Without clear and well-explained aims, any reform would risk misinterpretation by the public, regardless of any official interpretation by judges and lawyers.
  2. Have available and make proper use of good research evidence. Bryant CJ was concerned that the Australian government had not had a good evidence base for its 2006 reforms and had instead relied on unrepresentative anecdotes. She also noted that the findings of the excellent Australian research done since the 2006 reforms [much of which I summarised in my post on shared parenting last week] have been resisted by many pro-shared parenting advocates because it does not match up with what they wanted it to say - and they have been effective in that resistance because the findings go against an established narrative that shared care is always good for children which those anecdotes had established before the reforms. Much of that research is important here, but Bryant CJ highlighted the importance of protecting children from violence and other conflict as being especially relevant. [I wrote about the importance of using research and not anecdotes when looking at law reform last week, so you can imagine that this was music to my ears!]
  3. Avoid complex language in the legislation, because complexity leads to confusion. I won't go into the details about the Australian law that the Judge gave, but it covered the intricate relationship between "the best interests principle", the "primary consideration" of the importance of "meaningful relationships", and the statutory guidelines about "equal time" and "substantial and significant time". [If you're bored and have 5 minutes to spare, take a look at the complete pig's ear that is the much-amended Family Law Act, starting at s 60A and with a focus on the key provisions of s 60CC, s 61DA and s 65DAA.]
Bryant CJ then turned her attention to David Norgrove's Family Justice Review (2011) and the relevance of the Australian experiences to the shared parenting debate in England and Wales. Norgrove noted that the Australian focus on "meaningful relationships" had led to a degree of confusion and, in particular, was often conflated with there being a presumption of shared time. While the Chief Justice was quick to point out that the Australian courts have focused on the quality of parent-child relationships and not on time, she conceded that it was hard to know what the general population thought. She also observed, as Professor Helen Rhoades has noted, that many people saw the law as containing a de facto presumption of equal time.

One real danger of law reform, therefore, lies in the effect that it can have on people who make arrangements outside the courts, based on what they think the law is. If the law's message is not entirely clear, a perceived presumption in favour of equal time can take hold in the public consciousness, even if that is not what the law says.