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

Abstract Breastfeeding is the optimal nutrition for infants and requires the infant and mother to spend significant time together. 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. The expectation of ‘equal time’ or substantial and significant parenting arrangements becomes problematic when considering breastfed 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. 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. This article begins a discussion about the decisions regarding ‘shared parenting’ of breastfed children that do not always appear to be in the best interests of children’s health and well-being. Two cases from an on-going study to investigate breastfeeding women’s experiences of the implementation of the Act will be used to illustrate that the court made decisions for breastfeeding mothers are not consistent and compromise the ability of women to continue breast feeding. 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. 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.