In October 2023, the federal parliament passed major changes to how children’s cases are decided under the Family Law Act, which kick in next month.
Among other things, they repeal a controversial legal presumption introduced in 2006. It was presumed that “equal shared parental responsibility” is in the best interests of children.
In many cases, this is true. But in cases of family violence, assuming both parents should have equal responsibility for a child can be dangerous.
The journey to having this presumption removed has been long and littered with countless reviews, inquiries and evaluations. How did it come to be in the first place, and what effect will these legal changes have on children?
Laws with baked-in problems
The 2006 reforms originated in a parliamentary inquiry established by the Howard government in 2003. Fathers’ rights groups led the charge for the inquiry and for equal time custody laws.
Equal shared parental responsibility is about the decion-making duties of parents regarding the big decisions in a child’s life such as education, religion and health. This is different to equal time, which is about where children actually live. It often involves the child swapping homes every week. Some children enjoy it, others feel like they are navigating two very different emotional spaces.
Because of the origins of the inquiry with fathers’ rights groups, the focus was on equal time as a starting point. It was not on finding out what actually works best for children after family breakdown.
The 2006 reforms did not contain a presumption of equal time, but they did include a presumption that equal shared parental responsibility is best for children.
A presumption is intended as strong message to judges and the legal system. It tells a judge the law says shared parenting is generally a good thing.
While that is true in some families, that can be a dangerous message to a decision-maker for families where there is violence or abuse. Although there were exceptions for family violence or child abuse, research showed orders for equal shared parental responsibility were made in many cases where there were serious allegations of family violence.
An order for equal shared parental responsibility meant parents had to consult each other about important decisions regarding their children. In some families this works well and ensures both parents have ongoing roles in their children’s lives after separation. Where there has been domestic violence, including coercive control, such an order provides the perpetrator of abuse with a legal channel to continue it.
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Orders for shared parental responsibility also affected the daily lives of children and their parents. Once a judge made that order, they had to “consider” making an order for equal time, or what was called “substantial and significant” time order. This meant where orders for equal shared responsibility were made, orders for equal time or substantial and significant time were often made as well.
There was also a new list of factors a court had to take into account when deciding what was in a child’s best interests. It included the “benefit” of “meaningful” post-separation relationships with parents and the need for protection from harm. These two things could be difficult to reconcile.
Review after review
Since 2006, there have been at least six formal inquiries into the family law system as well as commissioned evaluations and independent research.
Problems with the presumption and the dominance of the ideal of ongoing “meaningful” relationships are consistently reported, including by a 2017 parliamentary inquiry on family law. That report found the existing laws were “leading to unjust outcomes and compromising the safety of children”.
Much of the research has shown victims of family violence are told not to raise it – or feel unable to do so. Wanting to restrict or limit the perpetrators contact with the children, may be seen as being obstructive, rather than protective.
While the government baulked at touching the presumption in 2011 when it introduced changes to the act to improve its response to family violence, it’s now gone.
Needs of the child at the centre
The 2023 changes have also repealed the section about equal and substantial and significant time and simplified list of the best interests’ factors. The new factors include:
the safety of the child and others who have their care
the views of the child
their developmental, psychological, emotional and cultural needs
the capacity of each of the parents to provide these needs
the benefit to the child having a relationship each of their parents.
In terms of safety, the court must consider any history of family violence, abuse or neglect and any family violence order.
Implementation of the amended legislation will have its challenges.
Despite their flaws, the old laws did have useful guidance about what a court should think about if considering making order for equal (or lots of) time. And a judge can still make those orders despite the repeal of the presumption.
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The old guidance included considering the parents’ capacity to implement a shared care arrangement and communicate with each other, and the impact of that kind of arrangement on the child. These considerations, which also influenced out-of-court negotiations, have been removed.
It will be interesting to see whether this will provide an opportunity for judges to develop thoughtful and creative orders tailored for the families they see, or whether it will just lead to uncertainty and inconsistency in outcomes.
Future reform processes (because there will be more) should consider restoring a list of factors relevant to shared parenting orders or arrangements.
Alternatively, or additionally, there could be a list of factors that prevent or caution against such arrangements – such as a history of family violence or abuse or an inability of the parents to communicate effectively.
Late last year, Shadow Attorney-General Michaelia Cash said the changes “send a message to the courts that parliament no longer considers it beneficial for both parents to be involved in decisions about their children’s lives” and would be repealed under a Coalition government.
Her concerns aren’t borne out in the legislation. Nothing in these new laws takes away from the importance of both parents.
The government has listened to and acted on concerns about safety which have been expressed over many years. Now we should wait to see how they actually operate.