Chapter 2Parenting framework
2.1Most submitters and witnesses supported the objectives of the Family Law Amendment Bill 2023 (the Bill). Ingeneral, they agreed that the best interests of children should be prioritised and they welcomed the focus on improving the safety of children and adult victim-survivors.
2.2In contrast, there were some submitters and witnesses who opposed the Bill. The reasons for this opposition encompassed a range of matters, such as concerns with the family law reform process, disagreement with the reversal of previous reforms, and reservations about outcomes, should the Parliament enact the Bill.
2.3In evidence, most witnesses emphasised that, irrespective of any concerns, they supported the Bill and did not wish for its enactment to be delayed. ThePresident of the Law Council of Australia (Law Council), Mr Luke Murphy, said, for example:
The very nature of the change is such that we are supportive…of the objectives of the bill and of significant proportions of it. [Our] recommendations in relation to some further amendments and some proposed fine-tuning are always a continuation. The Law Council's position is that we are supportive of the proposed bill, subject to some fine-tuning, but our support would override the concerns we have, provided there is ongoing consultation.
2.4This chapter examines some stakeholder concerns in relation to Schedule 1. Thisschedule proposes amendments to Part VII of the Family Law Act 1976 (theFamily Law Act), which provides the court with a wide power to make such orders about children’s care and living arrangements, parental responsibility and other matters relevant to a child’s welfare, as the court thinks proper.
2.5The following matters are discussed in this chapter:
the objects clause;
the best interests of the child; and
the presumption of equal shared parental responsibility.
Objects clause
2.6In his second reading speech, the Attorney-General, the Hon Mark Dreyfus KC MP, noted that most separated couples settle parental arrangements outside the family law system, with the court determining parenting arrangements for only three per cent of families:
The parenting provisions in the Family Law Act must…serve as a guide to those negotiating their own arrangements, as well as judicial decision‑makers. The complex interaction between Part VII's multiple objects, principles and factors is confusing. Convoluted and complex decision-making pathways, that must be navigated through an understanding of legislation and case law, add significantly to the time and cost of any parenting matter.
2.7The Explanatory Memorandum (EM) highlighted that ‘parenting matters profoundly affect the lives of the children they concern’ and are often highly contested by separating parents:
The effective operation of Part VII of the Family Law Act is therefore critical to support the diverse needs of separating families in Australia and to safeguard the best interests of the children involved. However, Part VII has become overly complex and confusing over time, which has detracted attention from what should be its primary objective.
2.8Proposed new section 60B would insert a simplified objects provision into PartVII of the Family Law Act:
The objects of this Part are:
(a) to ensure that the best interests of children are met, including by ensuring their safety; and
(b) to give effect to the Convention on the Rights of the Child done at New York on 20 November 1989.
2.9According to the EM, the repeal of section 60B is intended to ‘simplify the objects to better assist with the interpretation of Part VII and avoid duplication with section 60CC’, with the proposed new provision to ‘make it clear to all users of the Family Law Act that safety is a fundamental consideration when considering the best interests of the child’.
2.10Many submitters and witnesses supported simplification of the objects provision. The Hon Professor Richard Chisholm AM, former judge of the Family Court of Australia (1993–2004), submitted that section 60B sets out a complex set of ‘objects’ and ‘principles’ that largely overlap with the list of matters the court must consider when assessing what is in a child’s best interests:
These provisions contribute to the complexity and muddle, making it difficult for parents and those advising them to focus on the child’s needs in a straightforward way.
2.11The Hon Professor Chisholm submitted that proposed new section 60B would remove the overlap and confusion, leaving proposed new section 60CC as a sole source of guidance for determining what is in a child’s best interests.
2.12The Family Law Council added that proposed new paragraph 60B(a) would be consistent with proposed new paragraph 60CC(2)(a), as well as Australian Law Reform Commission (ALRC) Recommendation 4. Further, it argued that proposed new paragraph 60B(b) is ‘entirely appropriate’, not only because it reflects the best interest principle set out in article 3 of the United Nations Convention on the Rights of the Child (CRC) but also as this principle has been incorporated into the Family Law Act (section 60CA) and given special significance in Australian law.
2.13The Law Council agreed that the interplay between the ‘objects’ and best interests provisions in the Family Law Act is ‘suboptimal’. However, it argued that proposed new section 60B would not ‘add clarity or more broadly assist in an understanding of subsequent provisions’.
2.14Dr Patrick Parkinson AM, former Chair of the Family Law Council (2004–2007) and President of the International Society of Family Law (2011–2014), also questioned whether proposed new section 60B would achieve its intended purpose:
The deletions [of the existing objects and principles] remove statements concerning the rights of children which have stood in the law, without controversy, for over 27 years. These are replaced by a generic reference to the Convention on the Rights of the Child which offers nothing by way of specific guidance on how those rights apply in the context of parenting after separation.
2.15Dr Parkinson argued that the objects and principles of the current section 60B give ‘a sense of purpose to the family law system’. He highlighted their role in setting out norms and values for those seeking to resolve disputes without the court, aswell as offering the primary guide to the intentions of the Parliament: ‘they therefore have a residual, but not insignificant, interpretative role’.
2.16Dr Parkinson suggested that section 60B should be retained, arguing that it would not overlap with proposed new section 60CC:
It is clear that the Government has no quarrel with any of the existing objects and principles, and nor would I expect any member of Parliament to have difficulties with them. They express, in plain English, rights of the child that have long been guaranteed in international law.
2.17In contrast, Ms Zoe Rathus AM, a legal expert based at Griffith Law School, contended that section 60B has been ‘a source of trouble and confusion as judges and legal practitioners have tried to work out its role in relation to the substantive law sections of Part VII’. In her view, the section should simply be repealed.
2.18The National Children’s Commissioner welcomed the specific reference to the CRC in proposed new paragraph 60B(b), while calling for further legislative protections for the rights and needs of children.
Best interests of the child
2.19Section 60CA of the Family Law Act provides that, in deciding whether to make a particular parenting order in relation to a child, the court must regard the best interests of the child as the paramount consideration. Section 60CC sets out two ‘primary’ and 14 ‘additional’ factors that must be considered in determining what is in the child’s best interests.
2.20In 2019, the ALRC recommended that the Family Law Act should be amended to reflect six factors for consideration. TheALRC also recommended that the Act should provide for an Aboriginal or Torres Strait Islander child’s opportunities to connect with, and maintain connection to, family, community, culture, and country.
2.21The Bill would implement the ALRC recommendations, by creating a core list of six factors (the general considerations, proposed new subsection 60CC(2)) and another list of additional considerations for Aboriginal or Torres Strait Islander children (proposed new subsection 60CC(3)).
Support for a simplified list
2.22Submitters and witnesses supported a simplified list of factors that must be considered by the court in determining the best interests of children in parenting arrangements. Victoria Legal Aid considered that such a list would enable those without legal expertise to better understand how the care arrangements for their children are determined:
From our perspective, it will be easier to provide parents with legal advice on this simplified legislation, and lawyers will have greater confidence that their advice is understood. The simplified legislation will also assist parties to negotiate in family dispute resolution.
2.23The Family Law Council agreed with the ALRC that section 60CC is confusing, adding that it ‘detracts from the obligation on a trial judge to make a “holistic assessment and balancing of all the child’s rights and needs”’. The council and Professor Chisholm noted that proposed new section 60CC is consistent with the ALRC recommendations, with Professor Chisholm describing the proposed list as ‘a very good list, and a great improvement on the present law’.
2.24Similarly, Dr Henry Kha, a family law academic based at Macquarie University, strongly supported proposed new subsections 60CC(2)–(3). He argued that there are too many factors in section 60CC:
The division of primary and additional considerations are not supported by the United Nations Convention on the Rights of the Child, as the best interests of the child ought to be treated holistically. The division also means that additional considerations can be overlooked in the long list of factors. For example, the right of Indigenous children to enjoy their culture is at present merely an additional consideration rather than a stand-alone section. This is such a significant consideration that it ought to be given more weight.
2.25The Law Council also expressed its in principle support for the measures proposed in the Bill that would simplify section 60CC of the Family Law Act. Itnoted that the existing list contains provisions with substantive overlap and that a core list of six considerations would simplify the provision while encouraging holistic consideration of the factors.
Concerns about the general considerations
2.26The EM explains that the general considerations in proposed subsection 60CC(2) are intended to provide:
…guidance about the matters that must be considered by a court, but retain flexibility to adapt to each child’s specific circumstances. The list is non‑hierarchical and allows all matters to be taken into consideration and balanced in light of each situation. For each child, particular matters will be more relevant than others in arriving at a best interests assessment.
Arrangements that promote safety
2.27Proposed paragraph 60CC(2)(a) of the Bill would provide for consideration of:
(a) what arrangements would promote the safety (including safety from family violence, abuse, neglect, or other harm) of:
(i) the child; and
(ii) each person who has care of the child (whether or not a person has parental responsibility for the child).
2.28The Family Law Council supported the prominence of arrangements that promote safety at proposed paragraph 60CC(2)(a) and extension of this consideration to ‘each person who has care of the child’. Its submission referenced research conducted by the Australian Institute of Family Studies (AIFS), which found a substantial proportion of separating families have safety concerns:
Parents’ concerns for their own and/or their children’s safety post‑separation as a result of ongoing contact with the other parent were reported by nearly one-fifth of parents participating in the AIFS Experiences of Separated Parents Study…with the majority of these safety concerns arising from emotional abuse or anger issues, mental health concerns, violent or dangerous behaviour or substance misuse.
2.29As one adult victim-survivor submitted to the inquiry:
I have been diagnosed with PTSD, I have severe anxiety and regular panic attacks. My trigger presents when I am forced to hand my toddler to the perpetrator for court ordered visitations. The initial supervised visitations lasted less than a year, he now has free access to my child for 5 hours every fortnight. Devastatingly, the single 'expert' report writer just recommended that this innocent little toddler begin sleeping at the perpetrator's home within 6 months. This absolutely terrifies me, and the perpetrator knows it. I only sleep about 4 hours per night, I have had to reduce my work hours to ensure I can meet the demands of my role and cope with the anxiety / panic attacks.
2.30Some submitters and witnesses questioned whether the proposed provision would sufficiently prioritise the safety of children and adult victim-survivors. Women’s Legal Services Australia (WLSA) referenced subsection 60CC(2A), which states that greater weight must be given to ‘the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence’.WLSAargued:
In the Bill, safety is no longer the most important consideration when the court is determining what is in the child’s “best interests”. Rather, there is now a list of factors that the court must take into account and safety is one of a number of factors. WLSA is supportive of refining the list of the child’s “best interests” factors at section 60CC, including into a single list. This will help to achieve the intended aims of being more responsive to family violence, abuse and neglect as well as to simplify complex and confusing legislation. However, our support for a single list of factors is contingent upon prioritising the safety of children and adult victim-survivors.
2.31To address this concern, the Law Council suggested that proposed section 60CC contain a provision equivalent to subsection 60CC(2A). Other submitters and witnesses—such as the Family Law Council and WLSA—endorsed this suggestion. Youth Law Australia (YLA) expressed its view that, without this amendment, children, young people and adult victim-survivors would be exposed to greater risk of psychological, physical and sexual harm:
Children and young people frequently contact YLA for advice and support about parenting arrangements. Some of the most common types of harm that they identify are emotional or psychological abuse, having a “toxic relationship” or experiencing “love bombing” with a parent, being manipulated by a parent or being exposed to verbal abuse or fighting in adult relationships, which may be described in ways like “home is not ideal” or “home is not good for my mental health”… [T]he extent and effects of harm, particularly arising from the coercive control of children and young people by parents and carers is often misunderstood, ignored, minimised, or obscured by a focus on abuse and harm in adult relationships.
2.32Ms Rathus contended that, while the Law Council’s proposal has value, it would again create ‘two tiers of factors—effectively a primary consideration and 5(ormore) additional ones’. Ms Rathus suggested that it would then be necessary for the court to work out how to deal with those provisions, perhaps by considering the additional factors first and then determining how to best ensure safety.
Parental involvement
2.33Proposed new paragraph 60CC(2)(e) of the Bill would provide for:
(e) the benefit to the child of being able to have a relationship with the child’s parents, and other people who are significant to the child, where it is safe to do so[.]
2.34According to the EM:
This consideration recognises the importance of parental relationships, and relationships with other people who are significant to the child (such as grandparents or members of a broader kinship group) to a child’s wellbeing. Where appropriate and safe, parenting orders that ensure children benefit from a close and nurturing relationship with their parents should be made.
2.35The Family Law Council supported the proposed paragraph, as did Professor Chisholm who pointed out that the benefits of a parental involvement provision would now include the phrases ‘the benefit to the child of being able to have a relationship’ and ‘where it is safe to do so’.
2.36Submitters raised concerns with three aspects of the two phrases:
‘the benefit’, which presupposes that parental involvement is beneficial;
‘where it is safe to do so’, which overlaps with proposed new paragraph 60CC(2)(a) (arrangements that promote safety); and
‘relationship’, which was considered to be overly broad.
2.37With respect to the second concern—‘where it is safe to do so’—the Law Council considered that this proposed phrase ‘makes it expressly clear that the benefit of maintaining a relationship with both parents must always be subordinate to the child’s safety’.
2.38However, the National Women’s Safety Alliance (NWSA) argued that the equivocation ‘never works’:
…it has the potential to sideline safety in favour of maintaining relationships. It also relies on the subjectivity of presiding officers who, without adequate understanding of the dynamics of domestic and family violence and child sexual abuse, may downplay forms of abuse, such as coercive behaviours that can only be fully understood in the context of a given relationship.
2.39The Council of Single Mothers and their Children and Single Mother Families Australia agreed with the ‘essential premise’ of proposed new paragraph 60CC(2)(e) but expressed concerns about the lack of nuance:
…we know too that many families split into two camps, his and hers, with extended family members (grandparents, aunts and uncles in particular), contributing to a continuous stream of invective about the parent on the other side… This is distressing and damaging for children, and we wish to see stronger language requiring the court to find evidence that it is safe for children to engage with their other parent and extended family, and that the parents are capable of engaging amicably and undertake to do so.
2.40The Law Council acknowledged that the proposed paragraph uses the term ‘relationship’, as recommended by the ALRC. However, it supported the phrase—‘meaningful relationship’—as removal of the word ‘meaningful’ could ‘lead the court to possibly consider that any relationship may be acceptable’.
2.41An AGD representative reiterated that proposed new paragraph 60CC(2)(e) is consistent with ALRC Recommendation 5 and avoids ambiguity around the meaning of ‘meaningful’:
The word 'meaningful' was not included in the factors that were recommended by the Australian Law Reform Commission, so the text of the bill is consistent with their recommendation in that regard. Although the case law has attempted to clarify and define what that means over time, there was concern that there could still be resulting ambiguity and confusion around what 'meaningful' actually implies, particularly for self-represented litigants.
Family violence as an additional factor
2.42Paragraphs 60CC(3)(j)-(k) of the Family Law Act require the court to consider any family violence involving the child or a member of the child’s family, and any family violence order that applies, or has applied, to the child or a member of the child’s family. The Bill does not include these specific considerations.
2.43Associate Professor Becky Batagol, Dr Cate Banks and Dr Jess Mant argued that, as a result, the Bill downplays the significance of family violence in determining what parenting arrangements are in the best interests of children:
While it is important for family law to be focused on the future, the past is often extremely relevant to family law disputes involving family violence. Rather than permitting parties to dwell on irrelevant points of conflict from their past, consideration of past family violence provides important context which aids constructive decision-making within the family courts, and assists evaluations of proposed parenting arrangements that are negotiated within family dispute resolution. It is therefore imperative that victim‑survivors do not feel discouraged from raising concerns about previous family violence.
2.44Ms Charisse Hay, an adult victim-survivor, informed the committee that she had been discouraged from disclosing family violence, to her detriment and that of her children:
Like many other women, I was encouraged to leave an abusive relationship due to the impact of family violence on my children…When I reached the family law system, I was actively advised by numerous lawyers to not report incidents of family violence for fear of being seen as an 'unfriendly parent'. Furthermore, all the historical acts of abuse were not considered, in a forward-moving approach adopted by the court...Through my lived experiences I learnt that reporting family violence risked negative judgement and criticism at best, and counter-allegations of parental alienation at worst. Women and children are silenced and forced to endure ongoing and escalating violence without protection or escape, sometimes for decades post-separation. I left my abuser 13 years ago and I'm still being financially, emotionally and psychologically abused...Whenthe decision‑makers remain ignorant to the abusive dynamics that place women and children in ongoing danger, the family law system fails to act in the best interests of the child.
2.45Legal experts, Ms Rathus, Professor Batagol, Dr Banks and Dr Mant did not agree that proposed new paragraph 60CC(2)(a) would allow for adequate consideration of family violence in separated families. Ms Rathus argued:
A court can exercise discretion as to what evidence is relevant in determining safety. I do not believe that there should be any ambiguity regarding the relevance or admissibility of information about any history of family violence or any protection orders that have existed or are still in place.
2.46Similarly, WLSA argued that the catch-all provision—proposed paragraph 60CC(2)(f)—does not sufficiently provide for consideration of a history of violence, abuse or neglect of a child or member of a child’s family:
…there is no obligation on the court to consider this, and it is not clear that this is covered in the legislation. It is imperative that the law is very clear, especially when it comes to family violence, abuse, and neglect. History of family violence, abuse and neglect must be included in the child’s “best interests” factors.
2.47In concurrence with these views, the Law Council suggested that proposed new subsection 60CC(2) should contain an ‘express direction to take into account any family violence order which applies, or has applied’, including the basis upon which those orders were made, as per paragraphs 60CC(3)(j)-(k) of the FamilyLaw Act:
…having a standalone consideration relating to current and past family violence orders makes clear the obligation upon parties to disclose those matters and that the court is interested in that evidence.
Concerns about the additional considerations
2.48Several submitters supported proposed new subsection 60CC(3), which would require the court to consider:
(a)the child’s right to enjoy the child’s Aboriginal or Torres Strait Islander culture, by having the opportunity to connect with, and maintain their connection with, members of their family and with their community, culture, country and language;
(b)the likely impact any proposed parenting order under this Part will have on that right.
2.49SNAICC–National Voice for our Children (SNAICC), the national peak body for Aboriginal and Torres Strait Islander children, supported the proposed provisions but suggested that the Bill could employ stronger language. In its view, such language would better protect the right to enjoyment of cultures in community with cultural groups, consistent with international treaties, government policy and the Aboriginal and Torres Strait Islander Child Placement Principle.
2.50SNAICC noted particularly that Aboriginal and Torres Strait Islander people and communities have distinct views on the concept of ‘best interests’, which emphasise the importance of holistic perspectives on wellbeing. Its submission called for the application of a cultural lens to notions of ‘best interests’, with practice guidelines to assist judicial officers.
2.51The Queensland Indigenous Family Violence Legal Service added that, when the court considers best interest factors, the practice directions should encompass the ways in which oral history can be received from Elders:
Our lawyers who provide services in remote communities observe that it can be difficult for the courts to rely on written evidence from Elders about family and cultural history. Elders have important and significant history, information and evidence to provide for the court’s consideration.
2.52While broadly supportive of proposed new subsection 60CC(3), theLawCouncil considered that the provision should retain the existing language and concepts of section 60CC. It argued that this would ‘facilitate an Aboriginal or Torres Strait Islander child’s right to engage with culture in a more substantial and meaningful way, as well as kinship’.
2.53WLSA agreed, arguing that the Family Law Act provides extensive protections for Aboriginal and Torres Strait Islander children in relation to their culture (forexample, subsection 60CC(6)):
Under the existing legislation there is a far greater imperative for the court to meaningfully consider cultural aspects. The current wording of the Act imbues the notion of “connection” with a stronger and more active meaning. We are concerned that “opportunity to connect with, and maintain their connection with, their family, community, culture, country and language” does not fully capture the current provision.
2.54As part of its confidential pre-briefings on the proposed draft legislation, the AGD consulted with Aboriginal and Torres Strait Islander organisations. Part of the purpose in so doing was to identify ‘any potential unintended consequences or issues of concern’.
Presumption of equal shared parental responsibility
2.55Section 61DA of the Family Law Act sets out a presumption that it is in the best interests of a child for the child’s parents to have equal shared parental responsibility (thepresumption or ESPR). Section 65DAA of the Act then requires the court to consider whether the child spending equal time with each of the parents would be in the best interests of the child. The Bill would repeal these two provisions.
2.56The EM explains that the presumption can detract from focussing on the needs of the child and is ‘commonly misinterpreted’, which leads to inappropriate outcomes and enhanced conflict:
Matters that end up in court often involve concerns about family violence, health issues or substance abuse. These are complex matters which the court must consider very carefully. In these matters, the court’s primary focus should be on making arrangements that meet the best interests of the children involved. Any presumptions about the allocation of parental responsibility or consideration of specific time arrangements can detract from a focus on the needs of the individual child.
An order for ‘equal shared parental responsibility’ simply means that parents are required to make joint decisions about major long-term decisions (for example, in relation to education and health). However, the majority of parenting matters are settled outside of court, and the ALRC Report and the JSC Inquiry [see Chapter 1] as well as numerous studies have found that this part of the law is commonly misinterpreted as creating a right to equal shared time with children which has never been the case. Thismeans that parents can enter negotiations based on incorrect assumptions about their entitlements. This can lead to inappropriate arrangements for children and increased parental conflict.
Repeal of the presumption
2.57Submitters and witnesses held different views on the proposed repeal of the presumption. Many endorsed the proposal. For example, SNAICC submitted:
In practice, the presumption of equal shared parental responsibility has been misunderstood as equating to equal time, creating unrealistic expectations regarding shared parenting arrangements. Victims of domestic and family violence have reported wrongly believing that they are compelled to offer equal shared care of their children to abusive and coercively controlling perpetrator parents. Further, experiences of family violence are often not visible within the context of family law proceedings or reported to authorities, and are therefore unproven. As a result, the presumption is often used by perpetrators of coercive control as a mechanism to continue violent behaviour and exert power over their victims.
2.58Ms Michelle Baumann, an adult victim-survivor, gave evidence of her experience:
I fully support the removal of the presumption of shared care and responsibility. As a victim-survivor of family violence, I left my abusive partner more than eight years ago and have endured unrelenting, unabated coercive control ever since, largely through the power and control that our Family Court orders have afforded him. We have equal shared care and responsibility, with our children shifting between our households every week. The children are sent to the abuse that I escaped from. The impacts on them are devastating and lasting.
2.59Like SNAICC, WLSA argued that the presumption prevents victim-survivors from being able to leave or recover from violent or abusive relationships because of shared parenting obligations:
We are hopeful that for our clients, who are among the most marginalised and disadvantaged in the community, these changes will mean their experience through the family law system will lead to safer outcomes for children and parents/carers and it will be less confusing and traumatic.
2.60One victim-survivor informed the committee:
I am certain that I will 'lose' my application for safety because of the 'pro‑contact at all costs' ideology of the Family Court. It is astounding that the court system, which is supposed to protect vulnerable women and children utterly fail in their duty of care. The FCFCOA does not even consider the practicalities of being forced to ‘co-parent’ with an abuser. Victims of DFV should not be forced to facilitate contact or be ordered to communicate with their perpetrators, particularly if the child is an infant or young child who is unable to care for themselves. By putting me in this situation, the FCFCOA is effectively condoning the perpetrator’s conduct, and establishing frameworks where the safety of women and children is essentially ignored… Ultimately, it feels like the Family Court has 'sentenced' me to a 15-year term of imprisonment. I will be forced to 'co‑parent' with my perpetrator.
2.61The Law Council expressly acknowledged that the repeal of the presumption is not universally supported. However, it rejected concerns that the proposal could see mothers being given primacy in parenting arrangements. It described such arguments as ‘unfounded and misguided’, for the following reasons:
The ways that families structure the care of their children has changed since the passage of the presumption and many fathers, in intact relationships, are shaping work and family commitments around being involved in the day-to-day care of their children. Men are increasingly working flexibly to include involvement in parenting, while women are participating more fully in the workplace outside of the home. While these changes are incremental, society has moved on from the imposition of more rigid stereotypes of ‘traditional’ parenting roles and greater choice and flexibility is available to many.
It is not the case that mothers are given priority in parenting arrangements. Instead, outcomes which give rise to such perceptions may more properly be understood as a reflection of the child’s actual experiences prior to separation (and care arrangements being made after separation which reflect this).
The obligation on legal practitioners in existing (and proposed) section 60D to focus primarily on the best interests of children, without the presumption of ESPR, will enable practitioners to direct parents’ attention away from a (mistaken) rights-based assessment of time arrangements to what is best for the children.
Interaction between sections 61DA and 65DAA
2.62The Hon Professor Chisholm submitted that the main problem with the Family Law Act is that the presumption is linked to specific parenting arrangements in a ‘somewhat strange way’:
…if a court makes an order for equal shared parental responsibility, it must then normally ‘consider’ making orders giving parents equal time with the children (or if not, ‘substantial and significant’ time with them): s. 65DAA. The actual provisions are technical and complex, and have led many parents to believe mistakenly that there is a legal presumption of equal time…and have encouraged some parents to think of equal time as a parental entitlement (which it is not, being contrary to the basic principle that the child’s best interests must be paramount).
2.63The Hon Professor Chisholm argued that the Bill would correct this problem, byremoving the link so that the court can decide separately what orders would be best for a child in relation to parental responsibility and care:
In my opinion this is clearly desirable. The law should not indicate that any particular outcome is likely to be best for the child (as the law now does when it says that the courts must consider equal time). The court should focus on what is best for each child in the particular circumstances.
2.64The Law Council shared this view, submitting more broadly that ‘presumptions unreasonably fetter the discretion of the court’. Its submission emphasised that ESPR may not always represent the best interests of children, particularly where family violence is a factor:
…the presumption of ESPR has caused confusion, conflict and unfounded expectations, resulting in danger for victim-survivors of domestic and family violence (both adults and children) and additional burdens for vulnerable parties in having to persuade the court to displace the presumption because of family violence… [T]he proposed amendments will likely enable clients’ legal representatives to focus on what arrangements are appropriate, child-focused and safe in their circumstances.
2.65The Hon Professor Chisholm supported the Bill’s proposal to repeal the presumption:
The law should…consistently reinforce the message that the child’s best interests are to be paramount (s 60CA) - as the bill does in the new ss.60B(1).
Parents to consult on ‘major long-term issues’
2.66Section 61C of the Family Law Act provides that ‘each of the parents of a child who is not 18 has parental responsibility for the child’, subject to any order of the court. TheBill would insert proposed section 61CA into the Act to encourage consultation between parents on ‘major long-term issues’ (as defined):
If it is safe to do so, and subject to any court orders, the parents of a child who is not yet 18 are encouraged:
(a)to consult each other about major long-term issues in relation to the child; and
(b) in doing so, to have regard to the best interests of the child as the paramount consideration.
2.67The EM notes that the Bill would also insert proposed subsection 61D(3) into the Family Law Act to make it clear that the court can still make orders for joint decision-making with respect to ‘major long-term issues’:
…with the removal of the presumption of equal shared parental responsibility, the court may still make orders providing for joint decision‑making about major long-term issues, and parties can continue to agree to such matters between themselves.
2.68Some submitters supported proposed section 61CA. The Law Council expressed its view that the provision appropriately retains the concept of shared parental responsibility, broadly consistent with ALRC Recommendation 7:
…the essence of the ALRC’s recommendation was to clarify that section 61DA is about decision-making, not time. It did not suggest retaining the presumption of ESPR as it currently stands, but instead recommended that the concept of ‘shared parental responsibility’ be retained.
2.69Other submitters and witnesses expressed concerns with proposed section 61CA of the Family Law Act. The Council of Single Mothers and their Children and Single Mother Families Australia, for example, argued that each ‘major long-term issue’ would ‘open doors to continuing conflict and abuse’.
2.70Dr Parkinson referenced paragraphs 60B(2)(c)-(d)—which refer to parents sharing duties and responsibilities and agreeing about the future parenting of their children—and argued that the repeal of these paragraphs, in combination with proposed section 61CA, would abolish the legal duty to consult. In practice, he argued, the non-resident parent (that is, the parent without primary care) would have no right to be consulted on major issues affecting the child’s life:
…the Bill introduces a new s. 61CA to the Act which is specific in saying there is no legal duty on one parent to consult the other parent even on the most important long-term issues in a child’s life…[T]he involvement of the non-resident parent in making decisions about major long-term issues will be almost entirely at the discretion of the parent with primary care. She can choose whether she should respond to the Parliament’s encouragement to consult with the other parent. She is entirely within her rights to keep him completely in the dark and to consult him on nothing at all. That is, although he has the same level of parental responsibility as her [section 61C], she can in practice operate as a single parent without reference to him, except for the purposes of facilitating the children spending time with him in accordance with whatever parenting arrangements they have agreed. In practical terms, if not in theory, she can operate as if she has sole custody.
2.71In addition, Dr Parkinson considered that proposed section 61CA would have retrospective effect:
Section 61CA…will apply from the day this item commences, that is on proclamation or in any event within six months of the Royal Assent. Since it defines the law in the absence of court orders, it will have retrospective effect in defining the rights and obligations of parents whenever they separated, even if it was many years ago, if they do not have orders for equal shared parental responsibility. Parliament ought to be made aware specifically of proposed amendments that alter people’s rights with retrospective effect.
2.72The Hon Professor Chisholm concluded:
Overall, in my view the bill makes a clear and desirable change in the way the Act deals with parental responsibility. Each parent retains parental responsibility (under existing s. 61C) unless the court makes a contrary order. This enables each parent to make decisions about the child, eg arrange medical treatment. The parents are encouraged to agree about long-term issues (existing s. 63B and new s. 61CA). If a court makes an order for joint responsibility, the bill spells out the consequences (s. 61DAA, s. 61DAB: thepersons must consult and make a genuine effort to come to a joint decision).
Commencement
2.73Some submitters addressed the issue of when the provisions of the Bill should commence. The Law Council suggested that, should the Parliament enact the legislation, all amendments should apply to every matter after a single commencement date. It argued that this is critical to avoid the ‘fragmentation of commencement days’ that could lead to widespread confusion.
2.74WLSA suggested that the commencement date should be as soon as possible, to enhance the safety of children and adult victim-survivors.
2.75The Family Law Council particularly noted Schedule 1 of the Bill and contended that the immediate application of these amendments could result in ‘litigants and judicial officers having to apply different versions of the Family Law Act for several years’. Instead, the Family Law Council recommended that a specific application date apply:
If the new provisions apply to all matters listed for trial after a particular date, rather than the commencement of proceedings, that will significantly reduce the period where different versions of the legislation applies.
2.76In evidence, an AGD representative clarified:
There will be a six-month lead time before most of the changes come into effect after the bill, subject to passage, receives royal assent. That's intended to allow time for family law professionals and the courts to become familiar with the changes [Schedules 1, some of Schedule 2, and Schedules 3-7]... Schedules 8 and 9 in relation to the Federal Circuit and Family Court of Australia would commence immediately on royal assent as they don't require time for education.
2.77In relation to Schedule 2 of the Bill, the officer noted that there are a number of contingent amendments but also that the AGD is considering how best to approach matters that are already on foot:
…we are conscious of the need to reduce the period where there are different versions of the legislation applying. It's quite complex…[T]he courts could be hearing matters, applying two different versions of the law, potentially, for up to two years. So we are speaking with relevant stakeholders, including the Federal Circuit and Family Court of Australia and the Law Council, on that, and we are looking at some options with the intent of considering how we could best reduce that time period to the extent possible.