Best interests of children priority of family law reform

Family court of Australia in Sydney. Family court of Australia is a superior Australian federal court of record which deals with family law matters.

Of all areas of law, family law is one of the most contentious. We engage with it at times of deep emotional turmoil and all around the world family law systems are under regular review in the face of public criticism. In late January the Australian government announced a package of major reforms to the Family Law Act. It is important the public understands these proposals because family law can affect all of us – whether it is our own separation or that of a relative or friend.

Although only a tiny percentage of separating parents end up litigating, the law also sets the framework for out-of-court negotiations – strongly encouraged in family law.

The proposed reforms have been driven by ongoing concerns about how the system deals with domestic and family violence and child abuse. When Arthur Freeman murdered his four-year-old daughter, Darcey, by throwing her off the West Gate Bridge in Melbourne during a family law contact visit in 2009, Australia was shocked. The government of the day commissioned

Professor Richard Chisholm to undertake a review of how the system responded to family violence. Major changes to the Family Law Act from 2006 were put under the microscope, and reforms were made in 2012 in light of the review.

But two years later we were all witness to the trauma of Rosie Batty after her 11-year-old son, Luke, was battered and stabbed to death by his father while at cricket practice. This tragic event led to yet more inquiries. The Australian Law Reform Commission also reported in 2019 and two parliamentary inquiries reported in 2017 and 2021. Countless recommendations and varied calls for reform of the Family Law Act have been made through these and other inquiries, but no changes have been made to the relevant sections since 2012.

We should not have to wait for public family homicides to spark reform, given that according to the National Research Organisation for Women’s Safety almost one woman per week in Australia is killed by her partner or former partner.

The government has now issued a consultation paper and an exposure draft of a bill and invited submissions. It says the reform package is aimed at ensuring “the best interests of children are prioritised and placed at the centre of the system and its operation”. A major aspect of the draft bill is the proposal to repeal the “presumption” that was introduced as part of the 2006 reforms. The Family Law Act states that when a court is making an order about post-separation arrangements for a child, it must apply a presumption that post-separation “equal shared parental responsibility” is in the best interests of children.

The relevant section contains exceptions against applying the presumption such as family violence; however, a 2009 evaluation by the Australian Institute of Family Studies suggested the exception operated weakly. Equal shared parental responsibility orders were made in 75 per cent of cases where family violence was alleged. When that order has been made, parents are required by law to consult one another about “major long-term decisions”. Although some children thrive post-separation when parents share decision-making about them, for others the requirement that their parents consult may expose them to ongoing family violence, abuse or high-level conflict. Data presented by the Federal Circuit and Family Court of Australia shows “approximately 80 per cent of family law cases allege at least one major risk factor (including family violence)”.

In his review of the system’s response to family violence back in 2009, Chisholm recommended the presumption be amended to a “presumption in favour of each parent having ‘parental responsibility’ ” and that a section linking the presumption to outcomes of equal time or “substantial and significant” time be repealed. Those suggestions are now reflected in the proposed reforms.

I agree it is time to repeal the troublesome presumption and remove particular time outcomes, but I think there is room to improve the package currently presented. There now seems to be no guidance about when a court should or could make an order that separated parents collaborate on parenting their children and this may bring new problems. The default position – that each parent has parental responsibility – leads to separate duties and responsibilities that can be exercised independently by each parent, without need for consultation. I do not think this position will be well understood by the wider community, and it provides little assistance, even to reasonably amicable separated parents, about how to manage decisions about their children. Nor does it encourage a judge to think about what parental responsibility order might really be in the best interests of the children in any case before them.

I recommend the Act be amended to include a specific provision that the court can make any order regarding parental responsibility that is in the best interests of the children. These should include orders for “joint parental decision-making” (thereby avoiding the problematic wording from the existing law), “sole parental decision-making” and a hybrid option. The current proposals are an important step in the right direction but there are improvements that can be made.

Zoe Rathus is a senior lecturer at Griffith University law school.