Justice in a fraught sphere of law
“more than 80 per cent of families in the Family Court had identified family violence as an issue for them”
I worked in Legal Aid for many years. Particularly when it came to custody of children, I’m sorry to say that a large number of women fabricated stories of violence and coached their children to do the same. There needs to be more scrutiny of these figures so the problem can be clearly identified and addressed.
Justice in a fraught sphere of law
Submissions on the Albanese government’s draft Family Law Amendment Bill are due by February 27. And judging by initial reactions, Attorney-General Mark Dreyfus can expect strong debate among stakeholders and the community. In a sensitive area of law where solutions are rarely straightforward, it should go without saying that in cases where parents have parted company, the best interests of their child or children should be at the forefront of decisions about living arrangements and time with the parents. As Mr Dreyfus says, problems such as extensive court delays, protracted litigation, inaccessible support services and inadequate protection for those at risk of family violence need to be addressed. They have dogged the family law system for many years.
What is more problematic is the proposal to remove the order for “equal shared parental responsibility”. That proposal, added during the time of the Howard government, directs the court to apply the presumption that it is in the best interests of the child for their parents to have equal shared parental responsibilities. In some cases that is true, in others not. The current misunderstanding, that equal shared parental responsibility equates to equal time with the children, needs to be clarified. As the government notes in its response to the inquiry of the joint select committee on Australia’s family law system, that misunderstanding “can lead parents to agree to unsafe and unfair arrangements, or encourage abusive parties to litigate matters on the false expectation that they are entitled to equal time with their children’’.
That said, it would be unfortunate if the proposed changes took Australia back to a time when “mums had the kids most of the time and dads would see their kids on school holidays”. That is the concern of Patrick Parkinson, the family law specialist who chaired the body that advised the Howard government on its decision to amend the Family Law Act in 2006. The draft released on Monday “stripped almost all references which encourage the meaningful involvement of both parents in relation to the child after separation”, Professor Parkinson told The Australian. “Under the guise of simplification, it actually involves radical change and radical reversal after a unanimous agreement of a parliamentary committee in 2003 and almost unanimous agreement of the parliament in 2006.’’ As opposition legal affairs spokesman Julian Leeser says, it is important for children to have a relationship with both parents “as a starting point”. Much, as always, will depend on the judges hearing cases. Judges will still be able to make orders for shared parental responsibility and equal time, as Jess Malcolm reported on Monday.
Domestic violence is looming as a major factor in the debate, with Full Stop Australia advocacy manager Angela Lynch arguing that more than 80 per cent of families in the Family Court had identified family violence as an issue for them. Domestic violence advocates warn that the presumption of equal shared responsibility provision was often used by violent perpetrators to control the family and children. Less adversarial outcomes that provide for children’s safety and best interests will require resources, patience and a system with the flexibility to arrive at optimal arrangements.