Social science or 'lego-science'? Presumptions, politics, parenting and the new family law

Topic: Social science or 'lego-science'? Presumptions, politics, parenting and the new family law

Presenter: Ms Zoe Rathus AM - Senior Lecturer, Griffith University

The article argues that the 2006 introduction into the Family Law Act of the presumption that equal shared parental responsibility is in the best interests of children has contributed to inappropriate, and even damaging, post-separation parenting arrangements for some children. The legislative link of the presumption to equal and substantially shared care time orders has seen as increase in these kinds of arrangements being implemented in separated families.

I suggest that the language and structure of the legislation has created a 'lego-science' that shared parenting is almost always good for children. There is a gap between this lego-science and the complex and nuanced social science on shared parenting. The foundation of the lego-science is the presumption, but expressions like 'meaningful relationships' contained in other sections build a legislative or lego-bridge to the time provisions. This lego-bridge has been reinforced by the case law. I argue that a presumption was an inappropriate legal tool to use in the discretionary culture of family law decision-making.

Presumptions are legal fictions that become dangerous when believed. The fact that the reforms were driven by fathers' rights groups provided a charged socio-political climate in which legal fictions were more likely to acquire the aura of truth. It also seems that the safeguards against the application of the presumption and the making of share care time orders were drafted in a manner that has allowed them to be ignored, creating a gap between the apparent legislative intent - to provide exceptions - and how the law actually plays out - with the safeguards by-passed at times. I conclude that fundamental reform of the FLA is required again.

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