The Albanese government is seeking to abolish the presumption of shared parenting in court disputes as part of a major overhaul of the Family Law Act.
Attorney-General Mark Dreyfus will release draft legislation on Monday that seeks to simplify the complex and confusing legal system and put the best interests of a child at the forefront of decisions about living arrangements and time with parents.
“Extensive court delays, protracted litigation, inaccessible support services and inadequate protection for people at risk of family violence are just some of the issues that have dogged the family law system for many years,” Mr Dreyfus said. “The Albanese government’s draft Family Law Amendment Bill places the best interests of children at the centre of the family law system.”
The government has proposed to remove the order for “equal shared parental responsibility”, which directs a court to apply the presumption that it is in the best interests of the child for their parents to have equal shared parental responsibilities.
The move comes after a major 2019 Australian Law Reform Commission review found this part of the law was frequently misinterpreted as a parent’s entitlement to equal time rather than a decision made to best serve the child’s interests, with the misconception leading to prolonged litigation, parental conflict and poorer results for children.
The commission, however, did not recommend the law – introduced by the Howard government in 2006 following intense lobbying from fathers groups – be abolished. Instead, it proposed the clause relating to the presumption of shared parenting be reworded to allow “joint decision making about major long-term issues”.
Judges will still be able to make orders for shared parental responsibility and equal time.
Labor will also slash the number of factors used by courts when deciding the best parenting arrangements for a child from 15 to six “best interest” considerations and create a new stand-alone provision for courts to consider an Aboriginal or Torres Strait Islander child’s ability to connect and maintain their connection to culture and country.
The new laws seek to implement recommendations from the 2019 commission report, which found the system was failing separated couples and not protecting children from harm.
The report was followed by another joint select committee on family law announced by former prime minister Scott Morrison after pressure from One Nation senator Pauline Hanson, who claimed mothers were lying about experiencing domestic violence to disadvantage fathers in custody battles.
Labor’s proposed changes have been welcomed by domestic violence advocates, who argue the presumption of equal shared responsibility provision is often used by violent perpetrators to control the family and children.
Full Stop Australia advocacy manager Angela Lynch argued the equal shared responsibility provision was first introduced by the Howard government after lobbying by men’s rights activists in 2006 who felt family courts were too stacked towards mothers.
She said the amendments placed victims of violence “on the backfoot” in litigation proceedings and led to unsafe outcomes for children.
“The presumption places victims of violence on the backfoot in relation to negotiation, litigation and the mediation of safe outcomes for children … it’s a presumption of joint ongoing decision making which is used by violent perpetrators to control the family and their children,” Ms Lynch said.
“Over 80 per cent of families in the family court have identified family violence as an issue for them, and we congratulate the government for taking a step towards safer and better outcomes for children in Australia.”
Relationships Australia national executive officer Nick Tebby said there would always be different views within the sector but backed any move that centralised the rights of children.
“There are always different views within this sector and over what’s needed and how you strike the right balance but there is consistent support for a system which centres the needs and rights of children so calibrating the system can only be the best step forward,” he said. “For too long we’ve seen that huge array or shopping list was causing confusion and leading to unnecessary disputes and delays in the system and one thing that provides more of a balance will have benefits in the future.”