New legislation will overhaul family law, including the onus on ‘shared parental responsibility’ but more needs to be done to give children a voice.
It abandons the presumption of “shared parental responsibility”, which has been widely misunderstood to mean shared care. This may be an achievable goal for families that do not need to go to court to make safe arrangements for their children’s care, but is unsuitable if not dangerous for families with the complex needs and risk factors that come before the court.
Instead, the bill proposes that the child should be at the centre of every legal determination.
Significantly, the child’s views will be given greater prominence in the legislation, rather than being treated as optional extras.
Independent children’s lawyers – whose role is to ensure evidence relevant to the child’s “best interests” is put before the court – will also find it more difficult to circumvent the requirement to actually speak to the children whose “best interests” they are meant to represent.
The fact that children’s safety and views have not been the guiding principles in family law for almost two decades ought to be a matter of public shame.
In 2023, Australian children have fewer rights under the Family Law Act than they did in 1975, when it was first enacted by the Whitlam government.
The dangers that attend highly adversarial family court proceedings have been raised in evidence in successive inquests into child deaths, such as the murders of Jack and Jennifer Edwards by their father, the murders of Jane and Jessica Cuzens by their mother, and the murders of Darcey Freeman, Eeva Dorendahl, Jessica and Patrick Dalton, and Luke Batty, by their fathers.
Under court orders, children are routinely forced against their will into supervised (and unsupervised) contact arrangements with alleged perpetrators of domestic violence and child sexual abuse – including cases in which abuse has been deemed likely, probable, or even proven.
The court should not be exempt from obligations under the National Principles for Child Safe Organisations, an outcome of the Royal Commission into Institutional Responses to Child Sexual Abuse. It should also be required to conform to Australia’s human rights obligations, as a signatory to the UN Convention on the Rights of the Child.
The draft Family Law Amendment Bill gives effect to key recommendations in the Australian Law Reform Commission’s 2019 review of the family law system. These changes were shamefully stalled by the former Morrison government.
The proposed legislation will require family report writers and Chapter 15 experts – who tender evidence and provide services to the court – to at long last be regulated for standards and quality.
The court’s failure to adequately regulate these standards has led to glaring injustices, such as the infamous case in which an accused paedophile was used as a court expert to provide advice on allegations of child sexual abuse.
The bill makes some attempt to address litigation abuse, a widely documented phenomenon in which a perpetrator seeks to weaponise the legal system – sometimes launching multiple actions across a variety of legal jurisdictions – in order to intimidate, harm, inflict financial damage, threaten and harass a victim. The court will be given more power to throw out such cases than it has at present.
Many parts of the bill seek to clarify existing arrangements, such as setting out the circumstances in which a parenting order can be changed.
This may have some impact on litigation abuse, but it is unlikely to assist victims who have agreed to unsafe children’s arrangements out of fear, or a lack of financial resources. It also does not help, for example, a self-represented litigant whose English-language skills are not at the level that a fast-paced adversarial legal action requires.
Another glaring omission is the need to more strongly regulate the activities of the private legal profession, including obscene profiteering.
The bill addresses some unintended consequences of privacy provisions contained in the act. But it does not allow adults whose parents went to court when they were children to openly talk about the ways in which the court’s decisions impacted their lives.