Family Law as a determinant of child health and welfare: Shared parenting, breastfeeding and the best interests of the child

Author version made available in accordance with the publisher's policy.In July 2006 the Australian Government introduced the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) (the Shared Parental Responsibility Act 2006) which puts in place a legal presumption of shared parental responsibility for children after separation and which emphasises ‘equal time’ parenting arrangements. Equal time places expectations on both parents to participate—equally—in child care regardless of the child’s age. Breastfeeding is optimal for infants and requires the infant and mother to spend significant time together. The expectation of equal time or substantial and significant parenting arrangements becomes problematic when considering breastfed children. This article begins a discussion about the decisions regarding shared parenting of breastfed children made as a consequence of the 2006 amendments that do not always appear to be in the best interests of children’s health and wellbeing. The paper argues that the Shared Parental Responsibility Act 2006, and the decisions made, can work at a macro-level to produce social and health disparities for these children. Decisions about parenting of children under the Family Law Act 1975 (Cth) are required to be made with the ‘best interests of the child’ as the paramount consideration; a central tenet of the Act which remains in place following the Shared Parental Responsibility Act 2006. The application of this requirement has particular implications when the child is very young and pre-verbal and is being breastfed by the mother. There appears to be a tension in determining the best interests of the child in cases where children are breastfed and their father is seeking equal or substantial shared care arrangements. Breastfeeding has significant physical, psychological, financial benefits to individuals, families and society, and is an important public health practice. Shared parenting orders, made since the Shared Parental Responsibility Act 2006, have the potential to separate breastfeeding mothers and their child which would impact on women’s ability to breastfeed, influencing their perseverance and ultimately breastfeeding duration (Brodribb 2004). This outcome is arguably not in the best interests of the child. Two cases from an on-going study to investigate breastfeeding women’s experiences of the implementation of the Act will be presented. These examples will illustrate that the court made decisions for 2 breastfeeding mothers are not consistent and compromise the ability of women to continue breast feeding. From the women’s perspective this is viewed as not in the best interests of their infants. Further questions are raised about the best interests of children when domestic violence and/or abuse are present. The impact of this new law on the continued breastfeeding of very young children is an unacknowledged consequence and a public health concern