Separated fathers could find it harder to secure 50-50 custody of their children, and women should be more easily able to raise concerns about violence, under proposed changes to the nation’s custody laws.
The Family Court may also be asked to apply a new “triage” system to more quickly assess urgent risks relating to violence, relocation, substance abuse or mental-health issues.
Federal Attorney-General Robert McClelland said the Government was considering the suggestions after he released three reports, which looked at hot-button family-law issues such as shared parenting and violence.
Three years ago the Howard government introduced shared parenting rules, which required the Family Court to set arrangements where both parents could be involved in their children’s lives after a divorce.
The court was also urged to consider 50-50 equal time for parents instead of an automatic tendency to give one parent, usually the mother, full time custody, with the father having access at alternative weekends and half the school holidays.
But while backing shared parenting, yesterday’s reviews said in some cases parents, lawyers and judges had misunderstood the idea and wrongly believed it meant equal custody.
It said with hindsight some of the changes “have proved confusing and troublesome” and the resulting “tangle of legal technicality” had distracted the focus from what would be best for the children.
“Many people seem to have wrongly assumed that the amendments created a presumption that children should spend equal time with each parent (except in cases of violence or abuse),” said the 275-page report by retired judge Richard Chisholm.
The Government has also been urged to soften the law that deters parents, usually women, from making allegations about violent behaviour by the other parent.
At present, if the claim cannot be proven, the parent making the allegation can have legal costs awarded against them.
While violence is not a factor in most cases before the court, the Government has been told two-thirds of separated mothers and half of separated fathers say the other parent had emotionally abused them.
One-quarter of mums and 16 per cent of dads said they had been physically hurt and one-in-five had safety concerns about the other parent who still had contact with the child.
Prof Chisholm suggested a triage system be created to all cases “to identify any risk that requires urgent attention”.
He said it could assess violence, problems stemming from mental illness or serious substance abuse and proposed relocation by one parent.
The Government will also look at widening the definition of violence to include threatening behaviour and create a national register of family violence orders.