Attachment Theory and the Family Violence Reforms

to the best interests test, children had a right of contact on a regular basis with bothparents and with significant others.For the first time, reference was made to family violence as a factor in decision-makingon the best interests of the child 65 , and detailed provisions were introduced concerningthe inter-relationship between family violence orders and orders for contact. Courts wereinstructed to endeavour not to make parenting orders that exposed a person to anunacceptable risk of family violence. 66The 2006 reformsJust over a decade later, after a change of Government, the Howard (Liberal)Government, in response to the House of Representatives Committee report, Everypicture tells a story 67 , introduced the 2006 reforms. These went further than the 1995reforms in a number of important respects and were the subject of considerable debate.Most notably, the legislation promotes equal sharing of time post-separation much moreactively than its predecessor, in a number of ways:• there is a presumption of “equal shared parental responsibility” (section 61DA). Thispresumption is not applicable in cases where there are reasonable grounds to believeone of the parties has engaged in family violence or child abuse (subsection 61DA(2))and it is rebuttable on the basis of evidence that would satisfy a court that itsapplication is not in the child’s best interests (subsection 61DA(4));• where an order for equal shared parental responsibility is made, a court must considerwhether making an order for the child to spend equal time with both parents is in thebest interests of the child and reasonably practicable (subsection 65DAA(1)). If so,then it must consider making such an order (paragraph 65DAA(I)(c)). If an order forequal time is not made, then a court must consider making an order for ‘substantialand significant time’ with both parents (subsection 65DAA(2)). ‘Substantial andsignificant time’ must include weekdays as well as weekends, and must be such as toallow both parents to be involved in the child's daily routine;• the traditional checklist for determining the best interests of the child is now dividedinto two tiers: primary considerations and additional considerations. The ‘primary’considerations are:(a) the benefit to the child of having a meaningful relationship with both of itsparents, and65 Section 68F (as it was after 1995), Family Law Act 1975.66 P Parkinson, Editorial: the family law reform pendulum, op. cit., p. 155.67 House of Representatives Standing Committee on Family and Community Affairs, Every picture tells astory: report on the inquiry into child custody arrangements in the event of family separation, Parliament ofthe Commonwealth of Australia, 200344