Australian Parents Shed Light On Shared Parenting Bill
When I wrote my post entitled "Australian Shared Parental Responsibility Bill" I may have inadvertently given the impression that Fathers4Equality and the Joint Parenting Association endorse the bill, when in fact they do not. To set the record straight I offer the following from my friend Yuri.
From the outset I would like to commend the authors of the Age editorial for underscoring the importance of equal parenting time on the well being of children following divorce.
However, several observations are in order.
First, let's shed light on the view that in Australia "The law on separating parents will alter significantly if the Family Law Amendment (Shared Parental Responsibility) Bill 2005, introduced two weeks ago, is enacted"
Notwithstanding the spin of official media releases, the 2005 parental responsibility legislation recycles the 1995 changes that fuelled the 2003 Hull Committee post-mortem.
The Family Court got it wrong was the plain message by Minister Peter Duncan, as he moved the Keating Labor government's 1995 amendments.
In response to the Family Court's refusal to comply with the intent of the original Australian family law legislation, Minister Duncan stated that:
"As amended, the principles therefore establish a presumption of shared responsibility by parents for caring for their children.
The original intention of the late Senator Murphy was that the Family Law Act would create a rebuttable presumption of shared parenting, but over the years the Family Court has chosen to ignore that. It is hoped that these reforms will now call for much closer attention to this presumption and that the Family Court will give full and proper effect to the intention of
Parliament."
(Duncan P. Consideration of Senate Message, House of Reps Hansard 21 November 1995, p 3303)
http://parlinfoweb.aph.gov.au/piweb/view_document.aspx?ID=374630&TABLE=HANSA
Yet, despite this legislative directive, the Family Court continued to snub its nose at the parliamentary intent and joint residence (joint physical custody) orders fell further from an already paltry 5%, to a further low of just 2.5%.
As to the observation that "The new law compels the court to consider making an order that the child spends equal time with both parents" and "If the court decides against equal time, it must consider substantial time. Both are subject to a history of child abuse, family violence and whether the making of such an order is practicable,"
This is no more than standard judicial practice because in fashioning orders judges must rule on all applications put to the court (including equal time applications).
Moreover, a resistant traditionalist judiciary can easily accommodate the proposed law's "substantial and significant" contact time definition that mirrors the Family Court's preferred two days a fortnight/ mid week visit/special days approach
Section 65DAA establishes that:
http://parlinfoweb.aph.gov.au/piweb/view_document.aspx?ID=2146&TABLE=BILLS
3) For the purposes of paragraph (2)(b), a child will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b) the time the child spends with the parent allows the parent to be involved in:
(i) the child's daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
Beyond official press release rhetoric, supporters of the failed two days a fortnight/midweek/special days status quo have nothing to fear from the proposed legislation and I intend to book my seat in advance for the next family law post mortem
John Hirst the well respected academic and social commentator, jn his telling "Kangaroo Court" critique highlighted the inability of Australian governments to fully grasp the extent of resistance to equal parenting initiatives from a Family Court with remarkably entrenched views.
Of the proposed Family Law changes, John Hirst stated:
"Late in 2003, the standing committee reported its findings. It is not clear why it baulked at recommending that joint custody be made law. The committee itself seemed committed to the change; the bulk of the evidence it heard was in favour; the Prime Minister had given them the cue. Although not prepared to recommend it as law, it remained sympathetic to joint custody and in appropriate cases it urged that it be encouraged. Judges in Australia were to consider equal time!"
"Consider it?
"The Court had made it abundantly clear to the committee that it was opposed to anything like equal time.
The only way to control the Court is to instruct it where the best interests of children lie."
Given, past judicial practice the same obstacles to anything resembling equal parenting time will be faced by this new legislation.
The view here is that it is pointless to ask the Family Court to 'consider'equal parenting time, when the whole culture of the Court is directed against such outcomes.
To repeat the words of John Hirst "The only way to control the Court is to instruct it where the best interests of children lie."
In sum, rather than recycling failed legislation the enactment of a rebuttable presumption in favour of equal parenting time is urgently required.
Yuri Joakimidis
Joint Parenting Association
www.jointparenting.org.au
Recycled Failure Or An Equal Time Presumption
From the outset I would like to commend the authors of the Age editorial for underscoring the importance of equal parenting time on the well being of children following divorce.
However, several observations are in order.
First, let's shed light on the view that in Australia "The law on separating parents will alter significantly if the Family Law Amendment (Shared Parental Responsibility) Bill 2005, introduced two weeks ago, is enacted"
Notwithstanding the spin of official media releases, the 2005 parental responsibility legislation recycles the 1995 changes that fuelled the 2003 Hull Committee post-mortem.
The Family Court got it wrong was the plain message by Minister Peter Duncan, as he moved the Keating Labor government's 1995 amendments.
In response to the Family Court's refusal to comply with the intent of the original Australian family law legislation, Minister Duncan stated that:
"As amended, the principles therefore establish a presumption of shared responsibility by parents for caring for their children.
The original intention of the late Senator Murphy was that the Family Law Act would create a rebuttable presumption of shared parenting, but over the years the Family Court has chosen to ignore that. It is hoped that these reforms will now call for much closer attention to this presumption and that the Family Court will give full and proper effect to the intention of
Parliament."
(Duncan P. Consideration of Senate Message, House of Reps Hansard 21 November 1995, p 3303)
http://parlinfoweb.aph.gov.au
Yet, despite this legislative directive, the Family Court continued to snub its nose at the parliamentary intent and joint residence (joint physical custody) orders fell further from an already paltry 5%, to a further low of just 2.5%.
As to the observation that "The new law compels the court to consider making an order that the child spends equal time with both parents" and "If the court decides against equal time, it must consider substantial time. Both are subject to a history of child abuse, family violence and whether the making of such an order is practicable,"
This is no more than standard judicial practice because in fashioning orders judges must rule on all applications put to the court (including equal time applications).
Moreover, a resistant traditionalist judiciary can easily accommodate the proposed law's "substantial and significant" contact time definition that mirrors the Family Court's preferred two days a fortnight/ mid week visit/special days approach
Section 65DAA establishes that:
http://parlinfoweb.aph.gov.au
3) For the purposes of paragraph (2)(b), a child will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b) the time the child spends with the parent allows the parent to be involved in:
(i) the child's daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
Beyond official press release rhetoric, supporters of the failed two days a fortnight/midweek/special days status quo have nothing to fear from the proposed legislation and I intend to book my seat in advance for the next family law post mortem
John Hirst the well respected academic and social commentator, jn his telling "Kangaroo Court" critique highlighted the inability of Australian governments to fully grasp the extent of resistance to equal parenting initiatives from a Family Court with remarkably entrenched views.
Of the proposed Family Law changes, John Hirst stated:
"Late in 2003, the standing committee reported its findings. It is not clear why it baulked at recommending that joint custody be made law. The committee itself seemed committed to the change; the bulk of the evidence it heard was in favour; the Prime Minister had given them the cue. Although not prepared to recommend it as law, it remained sympathetic to joint custody and in appropriate cases it urged that it be encouraged. Judges in Australia were to consider equal time!"
"Consider it?
"The Court had made it abundantly clear to the committee that it was opposed to anything like equal time.
The only way to control the Court is to instruct it where the best interests of children lie."
Given, past judicial practice the same obstacles to anything resembling equal parenting time will be faced by this new legislation.
The view here is that it is pointless to ask the Family Court to 'consider'equal parenting time, when the whole culture of the Court is directed against such outcomes.
To repeat the words of John Hirst "The only way to control the Court is to instruct it where the best interests of children lie."
In sum, rather than recycling failed legislation the enactment of a rebuttable presumption in favour of equal parenting time is urgently required.
Yuri Joakimidis
Joint Parenting Association
www.jointparenting.org.au
For more information:
Joint Parenting Association
Box 7115
West Lakes, South Australia 5021
Fathers4Equality Australia
Box 57
Joint Parenting Association
Box 7115
West Lakes, South Australia 5021
Fathers4Equality Australia
Box 57
THIRROUL, NSW, 2515
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posted by Teri at 3:26 PM
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