The form and substance of australian legislation on parenting orders: A case for the principles of care and diversity and presumptions based on them

Australian law confers considerable discretion on judges making parenting orders. The author explores whether such discretion is desirable, using empirical evidence and legal and regulatory theory. Limiting discretion through principles and presumptions is argued for. To some extent, however, form is beside the point, so the state must adopt a coherent view about the role of the provisions. Legislation will be used to make determinations in a small minority of cases, often involving abusive relationships. The extent to which people making their own decisions about parenting bargain ‘in the shadow of the law’ is limited. Legislative provisions do, however, have some capacity to redress power imbalances. The author therefore argues for particular principles (including Smart and Neale’s principle of care), and for rebuttable presumptions that support and are qualified by those principles. A case is made for presumptions based around the protection of the position of any primary caregiver and on taking a strong stand against the use of controlling violence.