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Federal Government's Reforms to Family Law

The Howard Government introduced significant changes to family law. These changes took effect on 1 July 2006. They were the result of lobbying by fathers' rights groups, and will have a major impact on separating parents. Changes include the introduction of equal shared parental responsibility after separation and compulsary participation in dispute resolution at Family Relationship Centres. DVRCV (formerly DVIRC) is concerned about these changes as they have the potential to put victims of domestic violence or child abuse at risk of further violence.

Read DVIRC's (2007) Discussion Paper 'Behind Closed Doors' about family dispute resolution and family violence.

The changes include:

  • For separating parents, there is a presumption of 'equal shared parental responsibility'. This means both parents make the major decisions about a child’s life (such as education, religion, health issues and where they live). It is a requirement that parents consult with one another before making decisions about major issues. Shared parental responsibility will be the starting point in most cases.
  • Mediators, counsellors, and legal advisers are required to assist parents, for whom the presumption of shared parenting responsibility is applicable, to first consider a starting point of equal time where practicable. There is an obligation to consider whether it is in the best interests of the child and reasonably practical for a child to spend ‘equal time’, not just ‘substantial’ time with both parents.
  • In cases of family violence or child abuse, there is a presumption against shared parental responsibility.
  • New Family Relationship Centres provide dispute resolution services for separating parents. It is mandatory to attend. Accreditation standards for Family Relationship Centres, family dispute practitioners, and contact centres will be developed.
  • If there is family violence or child abuse, there is an exception to attendance at dispute resolution.
  • An allegation of family violence must be based on a 'reasonable' fear.
  • Penalties can be applied if the court finds that a false allegation was knowingly made about violence or abuse.

In February 2006 the Federal Government released its Family Law Violence Strategy which aims to identify ways to improve the functioning of the family law system in family violence cases. One of the recommendations is that further research is needed on 'allegations' of family violence and child abuse. This research will be undertaken by the Australian Institute of Family Studies. Read the strategy.

For information about the new changes, see the website Family Relationships Online - Information Kit section www.familyrelationships.gov.au/

DVRCV's concerns about the changes

These include that:

  • The changes are clearly aimed at appeasing vocal men's rights critics. The changes will further enshrine in the Family Court a pro-contact culture - a culture that has already gone some way towards displacing the Court's primary concern for protecting children and resident parents from violence. The reforms imply that a parent's rights, particularly a father's right to have contact with his children, are the most important consideration. DVRCV believes that the best interests of the child should continue to be the starting point in determining post-separation parenting arrangements.
  • The changes encourage equal shared parenting responsibility and time. This is at odds with the way parenting is shared prior to separation. Equal shared parental responsibility or equal shared parenting time should depend on the abilities and capacity of individual families. The push towards shared parenting responsibility after separation will have a negative impact on the many women and children trying to escape domestic violence.
  • The reforms will place further pressure on victims to avoid disclosure of violence for fear of penalties. The requirement to show that a fear of family violence is 'reasonable' will be difficult for many victims to meet. The threat of penalties if a victim is found to have made 'false allegations' about violence will further deter victims from speaking up if they are unable to provide sufficient evidence of violence.
  • Parents will be required to undertake mediation at a Family Relationships Centre prior to filing a parenting matter in the Family Court. This is a concern because a substantial body of research has linked mediation to poor outcomes for victims of family violence.
  • While mediation will not be required in cases where there is relationship violence or child abuse, the system presumes that cases involving family violence will be exceptional and relatively easy to identify. This is contrary to available evidence indicating that family violence is one of the most common causes of marital breakdown and may be quite difficult to screen for. Screening cases of violence or abuse out of the dispute resolution process will not effectively exclude all families experiencing domestic violence. Reliance on a screening process to protect women and children from having to participate is naive and potentially dangerous. The fear of penalties for 'false allegations' and of further violence from the perpetrator will stop many victims from speaking out about violence.
  • Mediation presumes both parties can speak freely as equals. Mediation can be difficult and dangerous for a victim of violence because of the power imbalance between the victim and the perpetrator. Read more on 'Family Violence and Family Mediation' in an article in DVIRC's Autumn 2005 newsletter. or DVIRC's (2007) Discussion Paper 'Behind Closed Doors' on family dispute resolution and family violence.
  • Victims of violence will be required to maintain shared parenting when it is not in the best interests of their children, because of legislative provisions that privilege co-operation between parents above children’s safety.
  • The changes fail to ensure that children and young people play a role in determining contact and custody arrangements. Any reform to family law should ensure that there are mechanisms in place to listen to children and young people.

For more information on concerns about the changes:

Further information

See the Women's Safety After Violence website for updates.
The National Abuse Free Contact Campaign aims to raise awareness about women's and children's safety from domestic violence and child abuse, and advocates for changes in Family Law to ensure the safety of women and children following separation. This campaign has an invitation-only discussion list for those willing to actively advocate and lobby for women and children's safety following separation. See the National Abuse Free Contact Campaign 'Elsa' list page for more information about this discussion list. http://www.nwjc.org.au/avcwl/lists/info/elsa.html

More information on the effect of the family law reforms on children and young people can be found on the Youth Affairs Council of Victoria website.

Background to the reforms:

In 2003 the Commonwealth Government held an inquiry into child custody arrangements after separation. The report of the inquiry by the House of Representatives Standing Committee on Family and Community Affairs is Every picture tells a story. That report rejected the proposal of 50/50 custody in favour of the concept of shared parental responsibility, within the context that the best interests of the child are paramount. It also proposed a range of changes to the Family Law system, including the establishment of a Family Tribunal to act as a less formal and adversarial alternative to the Family Court for settling parenting disputes. To download the 2003 report, Every Picture Tells a Story, go to the House Standing Committee on Family and Community Affairs web page. Read DVIRC's response to this earlier report, published in our Autumn 2004 newsletter, here.

In November 2004 the Federal Government released ‘A New Approach to the Family Law System’ Discussion Paper. This includes recommendations to set up Family Relationship Centres to deal with parenting arrangements after separation, and to encourage equally shared parenting responsibility. The Government called for submissions on the Discussion paper. The 2004 Discussion paper is available at www.ag.gov.au. The media release on the reforms from Prime Minister John Howard can be found here.

In June 2005 the Government referred to the Standing Committee on Legal and Constitutional Affairs the Exposure Draft of the Family Law Amendment (Shared Parental Responsibility) Bill 2005, the legislative implementation of the response of the Government. On Thursday 18 August 2005, the House Standing Committee on Legal and Constitutional Affairs tabled its report on the Exposure Draft. Go here for the report (pdf from parliament website). The House Standing Committee's August 2005 Report endorsed the exposure draft, with some additional recommendations. The Federal Government tabled its response in December 2005 and agreed with these recommendations. Read the report on the Parliament House website here (pdf)

The reforms to family law were passed by the Senate on 31 March and by the House of Representatives in May 2006. The changes took effect from July 2006.

For more information on the background to the reforms, see the Attorney-General's Department website www.ag.gov.au

The research

Read 'The myth of false accusations of child abuse' by Michael Flood - download the pdf fact sheet (from the National Council for Single Mothers and their Children website).

Read 'The myth of women’s false accusations of domestic violence and
misuse of protection orders' by Michael Flood - download the pdf fact sheet (from the National Council for Single Mothers and their Children website).

 

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