Queensland Centre for Domestic and Family Violence Research Sharing the Caring or Caring about the Sharing: What’s wrong with the Family Law Act? Zoe Rathus Senior Lecturer Griffith University. Introduction of a Presumption.
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Queensland Centre for Domestic and Family Violence ResearchSharing the Caring or Caring about the Sharing:What’s wrong with the Family Law Act?Zoe RathusSenior LecturerGriffith University
2006 – presumption that equal shared parental responsibility (ESPR) is in the best interests of children introduced into Family Law Act
Result of lobbying by fathers’ rights groups
Linked to time outcomes – equal time and ‘substantial and significant’ time
Now seeing increased use of social science research in the courts – why?
Presumption parades as social science ‘truth’ about what is good for children
But conflicts with the social science
Builds towards time outcomes like lego bricks
Complex to interpret and unpredictable outcomes
Dangerous for some children
When making a parenting order , court must apply a presumption that it is in the best interests of the child for the child's parents to have equal shared parental responsibility[ESPR] for the child.
(2) The presumption does not apply where:
(a) abuse of child or
(b) family violence.
(3) interim order - applies unless court considers not appropriate in the circumstances
(4) May be rebutted by evidence that it is not in the best interests of the child
Where the presumption of ESPR is applied by a court it must:
consider whether equal time is BIC; and
consider whether equal time is reasonably practicable; and, if so →
consider making an equal time order
If not, consider a making a substantial and significant time order by same process
See section s65DAA
Governments curtailed discretion with best interests checklists and presumptions
Orders for ESPR and equal time often made where there is high conflict and sometimes where FV
* Family Court statistics (2007 – 2008)
With pre-school children, where both parents present as equally viable primary care givers, but where the chance of resolution is slim and the matter is at an interim stage. In these cases, it seems to me that unless both parents are kept involved in the child’s life to a significant degree, the attachment of the young child to one parent might be compromised. Recommending a relatively equitable shared residency arrangement is way of keeping both parents ‘in with a chance’, whilst also being able to review how each copes with a significant blocks of time living with the child.’ (D Britton, 2002)
4. Acting on it
amidst the ongoing controversies surrounding ‘false allegations’ and ‘false denials’ practitioners and researchers may underestimate the extent to which it is no trivial matter for many litigants to make any allegations against a former partner with whom one has had children, and with whom one probably wanted to share a lifetime (AIFS Report)
s63DA – ‘script’ for advisers
s117AB – costs on ‘false’ allegations
s60CC(3)(c) – ‘friendly parent’
- Concern – DV competence training involves use of ‘differentiation’ research
"intimate terrorism" violence should be viewed as a tactic that underpins a broader pattern of power and control. the violence associated with "intimate terrorism" tends to escalate over time, becoming more frequent, more severe and more likely to result in significant injury. Many of its victims, who are overwhelmingly women, suffer from posttraumatic stress disorder (PTSD), depression and poor health. (Altobelli FM)
this assessment raises concerns about [the mother’s] capacity in the past to protect her own children as well as Mr Carlton’s older children from an abusive family environment. By exposing her children to on-going violence as well as denying the violence that was allegedly perpetrated on [C] by his father, she appears to have been incapable of making discerning decisions that were child focused.
beware of differentiating the abuser from the victim based on who presents as the victim; who is more charming, charismatic, and likeable; who appears more organised, reasonable, and sensible; and who feels more entitled and morally outraged. Socio-paths, narcissists, and chauvinists (who use violence for interpersonal control) can make a very smooth presentation, whereas the victim can appear emotionally distraught and disorganised.
W and P  FMCAfam 105
Shared care can only be ordered after consideration has been given to: