Thursday, November 11, 2010

Not So Common Sense

The federal Attorney General Robert McClelland has released a consultation paper on the draft Family Law Amendment (Family Violence) Bill, which once again tackles the impossible minefield of child custody arrangements. It’s not so long ago that the Howard Government introduced shared parenting measures which were intended to ensure that where possible children of separated couples would have an ongoing relationship with both parents. That law provided for equal joint custody to be used as the starting point for consideration by the court in making its deliberations. It was in principle a good idea, but there have been a number of problems in practice. In some extreme cases, children have died at the hands of violent or unstable fathers after the court insisted on shared custody. But even in less tragic cases, there are difficulties.

One difficulty was the assumption that shared care was supposed to mean that equal joint custody was supposed to be the automatic default, when that was not really the intention of the plan. When there is shared custody, there can often be logistical problems with children shuttled back and forth between houses with no sense of having a stable home. The court has been asked to balance the protection of a child’s safety against the presumption that the child should be entitled to a meaningful relationship with both parents, while under the present legislation both aims appear to have equal weighting even if they are in conflict. Under the proposed new laws it would be clear that the protection of the child’s safety should be given greater weight, although you have to wonder why that was not always the case. Interestingly, the new bill stops short of placing “the child’s best interests” as the highest priority, describing the proposal as “radical”. I find it difficult to understand what is so radical about something that should be plain old common sense.

Of course, you know what they say about common sense…. It isn’t actually so common.

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