Father Absence – A Best Interest of the Past?

In the wake of the ever-evolving paramountcy principle and promoting the best interests of children, the newly proposed amendments to the Family Law Act 1975 (Cth) pose a significant shift from the motivations behind the 2006 Amendments introduced by the Howard Government and the notion of ‘father absence’, which informed the introduction of the presumption of shared parental responsibility.  

The Family Law Amendment (Shared Parental Responsibility) Act 2006 was inspired by the issue of ‘father absence’, and the ideology that it is in a child’s best interests to have both parents actively involved in their lives. The theoretical ideology behind ‘father absence’, as explained by Sara McLanahan, Laura Tach, and Daniel Schneider in ‘The Casual Effects of Father Absence’ (2013), is prompted by centuries of traditional societal gender norms within the family; with the archetypal male’s role being as a ‘provider’ who was a somewhat emotionally distant disciplinarian for the family, and the female as a nurturer and biologically determined carer of children. Although topically contested in social science discourse, these authors concluded that the negative effects associated with father absence (including negative effects on social-emotional development, increased ‘risky’ behaviour, and reduced educational attainment) persist throughout life beyond just childhood. Thus, the presumption of shared parental responsibility was introduced to address the above inequities.

However, less than 20 years after the presumption of shared parental responsibility was introduced, the conversation shifted towards a model which places a child’s safety above all else through the Family Law Amendment Bill 2023, thus placing the law in reverse and removing the presumption altogether. Submissions made as a response to the exposure draft, such as that by Moloney and Smyth, raise that the new amendments pose a risk in that they expose children once again to ‘father absence’ due to a lack of legislative insurance. However, they appear to be lone wolves in their arguments; the majority of the other submissions asserted that the presumption is dangerous when used as a blanket statement and suggest its removal is requisite to enforcing the best interests of children as the paramount principle. As expressed by Samathana Jeffries et al., since family violence is evident in over 50% of litigated parenting cases, the overwhelming focus of the submissions and the amendments themselves is to prioritise addressing the issue of children experiencing violence in the family setting. Further, Dimopoulos and Fernando suggest that the new amendments align more closely with the Convention on the Rights of the Child (‘CRC’), which provides that the best interests of children must be the most basic concern of parents. However, they do imply that the amendments do not actually alter the status of the CRC in Australian law, and appropriately suggest that children’s rights under the Convention should be implemented into the legislative framework of Part VII, as recommended several times by the CRC Committee.

The stark theoretical shift informing the recent amendments appears to be a positive step towards protecting children from family violence. However, with only 16 years between the introduction and the proposed removal of a shared parental responsibility presumption, the longevity of the proposed new provisions may be in jeopardy.