Legislative Pitfalls in Mandating Shared Parenting in Family Law Disputes: An Australian Experience

Since the Family Law Act was introduced in Australia in 1976, it has endured many amendments with legislators trying to keep the law aligned with their perception of community values. In 2006 the Australian government introduced two ‘objects and principles’ (then s.60B), which seemed innocuous by responding to community concerns, although from opposing sources. The ‘men’s movement’ had complained for years that the Family Court was biased because in parenting disputes it awarded child custody more often to mothers than to fathers. On the other hand, many lawyers and researchers argued that children would be at risk if the Family Court increased the involvement of fathers in contested disputes because of the high incidence of domestic violence and child abuse at the hands of men. The legislators attempted a compromise, a marriage-of-opposites that was doomed to fail and fail it did. In attempting to shift the focus in disputes about children from ‘legal custody’ to ‘shared parenting’, and to satisfy a narrow-interest lobby group, legislators in Australia failed to reflect contemporary community attitudes or to accept research-based, best practice in resolving parenting disputes.