Yet another family law review has been announced. In support of the review, Senator Pauline Hanson has condemned the "family court system" on the basis that "fathers get a raw deal from the family court". Leaving aside Hanson's further comments in relation to accusations about family violence, where does the truth lie? Do fathers get a "raw deal" from the family court?
The Current Law
The Family Law Act 1975 (Cth) (the Act)does not make assumptions about parenting roles and is gender neutral. In determining any order relating to a child, the Act provides that the court must regard the best interests of the child as the paramount consideration.
In determining what are the best interests of a child, the court must consider a long list of "primary" and "secondary" considerations which are outlined in the Act. The primary considerations are:
- The benefit to the child of having a meaningful relationship with both parents; and
- The need to protect the child from physical or psychological harm and from being subjected to, or exposed to abuse, neglect or family violence.
The latter consideration holds greater weight than the former.
The secondary considerations consider a range of factors, including but not limited to a child's views, the child's relationship with its parents, a history of participation in decisions, time spent with the children and maintaining the child and the maturity, sex, lifestyle and background of the child and its parents.
Equal Shared Parental Responsibility
The Act provides an initial presumption that both parents should share in the role to make long term decisions which will impact a child. These decisions may include, where a child attends school, what medical procedures a child should undergo and what religion a child will adhere to. This is known as equal shared parental responsibility.
More often than not, an order for equal shared parental responsibility is made.
Spend Time Arrangements
If a court finds that both parents should share parental responsibility, then a court must consider:
- Whether it is in the best interests of the child for them to spend equal time with both parents; and
- Whether equal time is reasonably practicable.
If the court is satisfied of the above factors, then an order for equal time must be made. If the court is not satisfied of the above factors, the Act provides that the court must consider whether it is in the best interest of the child to spend "significant and substantial time" with each parent and whether that is reasonably practicable.
More often than not, the Court will look for consistency and stability for children and try to ensure that the primary care giver for the children throughout the relationship (regardless of gender) is able to continue in that role post-separation.
So, do father's get a "raw deal" in the family court? The Act does not stipulate that this should be the case. The Act clearly outlines the way in which orders affecting children and parents should be made and it is certainly gender neutral. Ultimately, the facts and history of every family will be considered by the court and orders will be made on that basis.