Lawyers fear family law changes could be weaponised by warring parents
Lawyers say historic changes to family law in Australia could make courts more flexible in custody decisions – but there are fears the new rules could be weaponised.
SA News
Don't miss out on the headlines from SA News. Followed categories will be added to My News.
Monday heralds a major shift in how family law matters will be considered in courts across the nation but some legal experts fear the new reforms might be “manipulated by malicious parents” and see some mums and dads lose fair access to their kids.
Concerns have also been raised the changes could drive more uncertainty in negotiation and even lead to more matters ending up in court.
One lawyer points to the potential for the law change to disadvantage “parents who are victims of false or embellished allegations of family violence or domestic abuse”.
Another says it is too early to tell if the reforms will be a “blessing or a curse”.
Described as “the most significant changes in family law in Australia in more than a decade”, amendments, aimed to prioritise a child’s best interests, take away a court’s obligation to consider children living equally with each parent, or parents spending substantial time with their children.
Thirty-year family law specialist Michael Tiyce said the new amendments introduced “unprecedented issues” for co-parents.
“While there were concerns with the previous legislation making it easier for violent parents to take advantage … it may (now) be easier, particularly in cases where there is no violence occurring in the family, for the new laws to be manipulated by a malicious parent seeking to take time away from the other parent to the detriment of the child,” the Tiyce and Lawyers principal lawyer said.
Associate Anita Petrovic, at the same Sydney-based firm, said she understood the intention was to make things simpler and allow courts more flexibility to make decisions on a case-by-case basis.
“Family law is a particularly tricky area of law and every family is different … there is no ‘cookie cutter’ approach,” she said.
“However … because the presumption of equal shared parental responsibility is now removed, the concept between a primary parent and non-primary parent could be exacerbated … there is no longer that pathway to lead the court to have to consider equal time.
“It is now more flexible (but also) more ambiguous.”
Clark Panagakos Family Law director Bev Clark said the reforms might be a “blessing or a curse”.
“My sense is that in cases where parents genuinely cannot communicate or co-operate such as cases of family violence, or where the parents stand on important issues is diametrically opposed – (such as) anti vaccination – the legislation should make it easier for parents to persuade the court to award decision-making to one of them,” she said.
“The removal of the presumption may, however, result in more litigation around this topic leading to greater conflict, cost, stress and uncertainty.”
Erica Panagakos, a co-director of the same leading Adealide firm, added: “I guess one of the concerns is … parents who are victims of false or embellished allegations of family violence or domestic abuse – which is also sadly very common – may hold concerns that if there is not … an expectation that the court is going to at least consider equal or substantial and significant time, then the false accuser may use the new reforms to gain an unfair advantage.”
However, head of family law at Andersons Solicitors, Ryan Thomas, said too many people believed the previous law “created a ‘right’ for a parent to have equal time with their children following separation”.
Mellor Olsson Lawyers family law Eva Bailey said she was “excited” to see how the law changes would play out.