Australia's new Family Law Amendment (Shared Parental Responsibility) Act emphasizes children having "equal time" with their parents, or, if not equal time, then "substantial and significant time."
Some fear that the new law will raise fathers' expectations to unrealistic levels, fuel more litigation, expose more children to danger and conflict and, contrary to intentions, put renewed emphasis on parents' rights rather than children's needs. Some also fear that it will encourage parental child abduction.
The law establishes new Family Relationship centers to handle the consequences of parental conflict. Street-front locations, warm and friendly interiors, trained staff, and three hours of free mediation will not be the only inducement for couples to attend. The law now requires them to obtain a certificate attesting to their attendance (together or separately) at a family dispute resolution session before they can lodge a dispute over child matters with the Family Court.
Instead of the maze that confronted separating couples, which usually meant their first stop was a lawyer, the centers are intended to be a highly visible entry point to the family law system.
International Abductions
An average of three children a week are abducted by a parent and taken into or out of Australia and to or from New Zealand, Britain, the US, the Netherlands or other countries that are signatories to the Hague Convention. There are 76 signatory countries in all.
Unknown numbers of children are also taken to countries in Asia, the Middle East and Africa that are not signatories to the convention. The convention ensures that governments co-operate to ensure that children taken illegally are returned to their country of origin.
This week's changes to the Family Law Act emphasize the child's right to know both parents and support shared parenting as long as this does not put children at risk.
Chief Justice of the Family Court, Diana Bryant, said she was not convinced that the changes would spur a rise in abduction rates. "There is a view that the amendments might make it more difficult, but that is only a view," she said.
Justice Bryant said that many of the Family Court's Hague convention cases were "heartbreaking". But the decisions being made in these cases were only about the place where the final hearing on the child's residency arrangements would be made.
In most cases, she said, the court decided that the final hearing would be held in the country where the child had been living, although there were exceptions, such as when there was risk that a return would expose the child to harm.
But Australian courts had not usually accepted domestic violence as a part of a mother's defense to a charge of wrongfully removing a child.
"They have conceptualized a 'return' as a return to a country, not a particular person — and they will look at questions like 'can the mother and child be protected (in that country)?'
"They are always difficult cases and you feel tremendous sympathy for people who simply want to return to their (family) supports. But once you have a child with someone from another country, both parents have rights," she said.
The judge cited a recent case involving a Swiss woman who abducted her children from Australia on false passports five years ago, and whose husband launched Family Court action to bring them back.
After a five-year legal battle the children were brought to Perth in January. But recently the Family Court ruled that the children should be returned to Switzerland to live with their mother.
Justice Bryant called for the establishment of a special legal aid program for people involved in cross-cultural marriage breakdowns, suggesting that such a program could be associated with the family relationship centers now being set up under the changes to the Family Law Act.
The International Parental Child Abduction Service, a specialist service funded by the Attorney-General and run by the Australian branch of International Social Service, has dealt with 60 cases of child abduction since it began last October.
Sandra De Silva, the national co-coordinator of the service, said the complexities of the legal system presented a major problem for her clients, who included "left behind" parents pining for missing children, as well as parents who have abducted children from Australia and have been compelled to return home.
On behalf of clients, she routinely contacts her International Social Service social worker counterparts who, depending on local privacy laws, can speak to the extended families of parents who have abducted children, make welfare checks on children and make contact with the schools that abducted children are attending. Parents on both sides of the "tug of love" suffered huge hardships, Ms De Silva said.
Some returning parents, who had married Australians and later fled overseas, were living "hand to mouth" on food from the Salvation Army, unable to work or access Medicare while they waited for court hearings.
Another client whose wife has been forced to return to face a Family Court hearing has had to move out of his house in order to meet the undertakings of financial support for his wife and children that were stipulated by the overseas court that ruled she had to return to Australia.
"He is back with his parents. The mother has been forced to return but she has the house and the car. The kids are at school and he has as little access to them as he did when they were on the other side of the world," Ms De Silva said.
Ruth Richter, executive director of International Social Service (Australia), said that people undertaking cross-cultural marriages needed more preparation about the challenges unique to their situation.