We must ensure children can continue to have relationships with both parents that are meaningful, positive and safe. Photo: File.
If passed, the draft Family Law Amendment Bill 2023 will be a “substantial and important reform” to strengthen children’s best interests in the family law system, according to a leading practitioner.
Law Council of Australia Family Law executive chair and DDCS Lawyers partner Di Simpson said, importantly, the amendment will remove the presumption of shared parental responsibility and consideration of equal time between the parents.
“Under the existing Family Law Act, the court is required to consider making an order for equal shared parental responsibility,” she said.
“If it makes that order, it is mandatory for it to then consider making an order for equal time between parents.
“There’s a whole series of things they must look at in assessing the child’s best interests, and if they opt out of making that order for equal time, there are a cascading series of considerations.
“A lot of family law stakeholders, women’s and family violence groups, and people concerned with the safety of women and children, have long said the compulsory consideration of equal time is contrary to the best interests of children and, in some circumstances, places them at risk.”
In 2019 the Australian Law Reform Commission made 60 recommendations about the family law system, including expunging the presumption of shared equal parental responsibility.
“What’s been happening is that people have misunderstood what the law meant, mistakenly believing that there would be a guaranteed order for equal time. Families have then put in place those arrangements, mistakenly believing they had little choice,” she said.
“Parents were making agreements between themselves without seeking counsel and thought equal shared parental responsibility and equal time were the same thing.
“As such, many people would have agreed to an arrangement that may not have been great for their children because they felt they had no alternative – when, of course, they did.
“Outside of the court system, there are kids who’ve been exposed to risk because vulnerable parents haven’t been able to hold their ground against dominant or potentially dangerous parents, and believed the existing framework made shared care mandatory.”
DDCS Lawyers partner Di Simpson said the amendment is “substantial and positive”. Photo: DDCS Lawyers.
Ms Simpson said “horror stories” have emerged when things have gone wrong.
“There may be a parent that isn’t able to persuade a court – perhaps because they don’t have a lawyer. There are cases where the serious risk a parent poses may not have been properly placed before the court,” she said.
“There are times, both in and outside the court system, when a child spends time with a parent when it’s not physically or psychologically safe.
“I think our court system is very good at responding to family violence, but we must recognise and acknowledge there are occasions when children have been exposed to risk, at times with tragic results.”
Ms Simpson said the Amendment Bill shifts the focus back to prioritising a child’s best interests but that there would be pitfalls to watch out for in its application.
“Our society has shifted to recognise that for many families, fathers being significantly involved in the care of children is a really good thing,” she said.
“More men are taking on parental responsibilities, taking parental leave when babies are born and trying to immerse themselves more fully in the beautiful world of raising children.
“We have to be careful we don’t go backwards and that good, safe fathers are not missing out on being able to maintain or develop these really great relationships and share in the wonderful experience of caring for children.”
While it was a step in the right direction, the amendment stopped short of an optimum result that was easily digestible for the general population, according to Ms Simpson.
“I think there was an opportunity to rewrite the whole part about children,” she said.
“They should have grabbed that opportunity and redrafted the whole thing to make it a more cohesive and easier-to-read document because not everyone ends up with the help of a lawyer.
“It will be critical that the consideration of the best interests of children is broad enough to ensure children can continue to have relationships with both parents that are meaningful and positive while ensuring those children are safe.”
The draft is currently in a consultation phase.
“We’ll have to see what comes from the consultation process, but I’m hopeful this will be a positive reform for Australian families,” Ms Simpson said.
For more information, contact DDCS Lawyers.
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