Family law has been renewed. What will be the consequences for children now that the new changes are coming?

Source: The Conversation (Au and NZ) – by Zoe Rathus, Senior Lecturer in Law, Griffith University

In October 2023, the Federal Parliament approved major changes to the way children’s cases are decided under the Family Law Act, which will come into effect next month.

Among other things, they revoke a controversial legal presumption that was introduced in 2006. It was assumed that “equal shared parental responsibility” would be in the best interests of children.

In many cases this is true. But in cases of domestic violence, it can be dangerous to assume that both parents should have equal responsibility for a child.

The journey to have this presumption removed has been long and littered with countless reviews, questions and evaluations. How did this even come about, and what effect will these legal changes have on children?

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Laws with ingrained problems

The 2006 reforms had their origins in a parliamentary inquiry launched by the Howard government in 2003. Father’s rights groups led the charge for the investigation and for equal custody laws.

Equal shared parental responsibility concerns the decision-making duties of parents regarding the major decisions in a child’s life, such as education, religion and health. This is different from equal time, which is about where children actually live. It often involves the child exchanging homes every week. Some kids like it, others feel like they’re navigating two very different emotional spaces.

Due to the origins of the research among fathers’ rights groups, the focus was on equal time as a starting point. It wasn’t about finding out what actually works best for children after a family breakdown.

The 2006 reforms do not include a principle of equal time, but they do include a presumption that equal shared parental responsibility is best for children.

A presumption is intended as a strong message to judges and the legal system. It tells a judge that the law says shared parenting is generally a good thing.

While that may be true in some families, it can be a dangerous message for a decision maker in families where there is violence or abuse. Although there were exceptions for domestic violence or child abuse, research found that in many cases where there were serious allegations of domestic violence, orders were made for equal shared parental responsibility.

An order of equal shared parental responsibility meant that parents had to consult each other about important decisions affecting their children. In some families this works well and ensures that both parents play a continuing role in their children’s lives after the divorce. Where there has been domestic violence, including coercive control, such an order provides the perpetrator of the abuse a legal channel to continue the abuse.

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Shared parental responsibility orders also affected the daily lives of children and their parents. Once a judge issued that order, they had to “consider” issuing an order for equal time, or what was called a “substantial and significant” time order. This meant that where orders for equal shared responsibility were made, orders for equal time or substantial and significant time were often also made.

There was also a new list of factors that a court had to consider when deciding what was in the best interests of the child. It included the ‘benefit’ of ‘meaningful’ post-divorce relationships with parents and the need for protection from harm. These two things can be difficult to reconcile.

Review after review

Since 2006, there have been at least six formal investigations into the family law system, as well as commissioned reviews and independent research.

Problems with the assumption and dominance of the ideal of ongoing ‘meaningful’ relationships are consistently reported, including by a 2017 parliamentary inquiry into family law. That report found that existing laws “led to unjust outcomes and endangered the safety of children.”

Much of the research has shown that victims of domestic violence are told not to talk about it – or feel unable to do so. Wanting to limit the perpetrator’s contact with the children can be experienced as hindering rather than protective.

While the government shrank from touching on this presumption in 2011 when it introduced changes to the law to improve its response to domestic abuse, it has now disappeared.

The child’s needs are central

The 2023 changes also repeal the section on equal, substantial and significant time and a simplified list of best interest factors. The new factors include:

• the safety of the child and others in their care

• the child’s opinion

• their developmental, psychological, emotional and cultural needs

• the ability of each parent to meet these needs

• the benefit to the child who has a relationship with each of his parents.

In terms of safety, the court must take into account any history of domestic violence, abuse or neglect and any domestic violence order.

The implementation of the amended legislation will bring challenges.

Despite their shortcomings, the old laws provide useful guidance on what a court should consider when considering making an order for equal (or significant) time. And despite the withdrawal of the presumption, a judge can still issue these orders.

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The old guidelines included considering the parents’ ability to implement a shared care arrangement and communicate with each other, and the impact of those types of arrangements on the child. These considerations, which also influenced the extrajudicial negotiations, have been removed.

It will be interesting to see whether this will provide judges with the opportunity to develop thoughtful and creative orders tailored to the families they see, or whether this will simply lead to uncertainty and inconsistency in outcomes.

Future reform processes (as there will be more) should consider reinstating a list of factors relevant to shared parenting assignments or arrangements.

Alternatively, or additionally, there may be a list of factors that prevent or warn against such arrangements, such as a history of domestic violence or abuse, or the parents’ inability 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 useful for both parents to be involved in decisions about their children’s lives” and that under a coalition government they would be withdrawn.

Her concerns are not borne out in legislation. Nothing in these new laws takes away the interest of either parent.

The government has listened to and acted on safety concerns that have been raised for years. Now we have to wait and see how they actually work.

Zoe Rathus does not work for, consult with, own shares in, or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.

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