The basis of family law in Australia would change with reforms the government says aim to reduce conflict between parents and put the needs of children as the top priority.
Draft changes, released on Monday by Attorney-General Mark Dreyfus, would roll back Howard government requirements for both parents to be consulted in long-term decisions about their children’s future.
The reforms are expected to anger elements of the father’s rights movement and its champions in Parliament, but one expert says it must occur for the courts to be workable when parents are in serious conflict.
Domestic violence campaigners have welcomed the proposal, saying the move will prevent partners from weaponising the courts against their families.
A 2006 change to the law inserted a presumption that parents would share responsibility for making decisions about a child’s long-term future, and obliged Family Court judges to consider whether custodial care should be split equally.
The Dreyfus reforms would give judges a free hand to decide which care arrangements would best suit a child, based on six factors such as their safety and the ability of either parent to provide care.
Recent statistics released by the Family Court revealed a risk of family violence in 80 per cent of parenting disputes before the court, and a risk of child abuse in 70 per cent of cases.
“These long-overdue proposed reforms replace the often confusing law around parenting arrangements with a simpler, child-focused framework that will guide parents who can agree on their own post-separation parenting arrangements,” Mr Dreyfus said in a statement.
“In the nine years the former government was in office there were at least two dozen reviews into the family law system, with hundreds of recommendations that were simply ignored.”
The institution has been subject to multiple inquiries, including by One Nation Senator Pauline Hanson, who was selected by former prime minister Scott Morrison to co-chair a committee probing family law, and accused women of fabricating claims to win custody disputes.
In 2021, the Family Court was controversially merged with the Federal Circuit Court by the former Coalition government, despite vocal criticism from lawyers and Labor.
Discretion lies with the court
Henry Kha, a senior lecturer at Macquarie University Law School, said that presumptions of shared responsibility were often misunderstood, but a presumption of equal weight between parents often consigned those already in conflict to irresolvable disagreements.
“The problem with the presumption [in the current law] is that it tries to force couples who were really in no position to agree to try to agree,” Dr Kha said.
“The court should simply have the discretion to exercise its jurisdiction and determine whether or not [an arrangement] is in the best interest of the child without having that being prescribed by legislation.
“I imagine One Nation wouldn’t be happy with it but I think for most mainstream Australians, the proposals put forward are quite reasonable.”
Senator Hanson condemned what she said was a vision for an “unbalanced” family law and one she predicted would lead to family breakdown.
The government hopes the change will make the family law less confrontational and less apt to be used as a means for one parent to harass or aggravate another.
The concept of family in the law will also be widened to include traditional Indigenous forms of kinship.
