THE HON MARK DREYFUS QC MP
ATTORNEY-GENERAL
CABINET SECRETARY
MEMBER FOR ISAACS
Opinion Piece
A safer, simpler and more child focused family law system
Australia’s family law system has lost its way.
Currently, too many separating families endure extensive court delays, protracted litigation, inaccessible support services, and inadequate protection from family violence.
Most separations do not end up in the court system. But for those that do, the experience can be more traumatic than it needs to be.
Sadly, it is children who suffer the most. Too often, their needs have not been put first.
In 1975 the Whitlam Government set up a system that allowed people to easily exit unhappy marriages and fulfil their own life ambitions.
A founding principle of the family law system – that decisions must prioritise the best interests of children – has been weakened over the past half century.
The principle was dealt a serious blow when the Howard government inserted the presumption of equal shared parental responsibility in the Family Law Act. This ill-advised step has created ongoing confusion and delivered prolonged litigation and conflict.
It is time to repair the damage.
This week I will introduce the Family Law Amendment Bill 2023 into the House of Representatives.
This legislation is based on a simple premise. The Albanese Government will restore the best interests of children as the key guiding principle of the family law system.
The new laws are informed by the more than two dozen inquiries into the family law system over the past nine years, including the 2019 Australian Law Reform Commission inquiry and the 2021 Joint Select Committee inquiry.
In February I released draft legislation that will make the Family Law Act simpler and safer for separating families and children.
Since then we’ve gone through an extensive consultation process and heard from the experts.
We’ve listened to them and the legislation is now even stronger.
It prioritises safety as a key object in the parenting framework.
We’re also ensuring that, where it is safe to do so, parents are encouraged to consult with each other when they are making long term decisions about their children.
These long overdue reforms will replace the often-confusing law around parenting arrangements with a simpler child-focused framework.
It means that for the vast majority of separated parents, who agree on their post-separation parenting arrangements, it will be easier to focus on what will best benefit their children.
These reforms will also make it easier for courts to make decisions in the minority of parenting disputes where agreements cannot be reached.
And it truly is a minority. Just three per cent of separating parents use the courts as their main pathway to establish parenting arrangements.
But within that small group, the majority will have at least one, and often multiple complexities, including domestic and family violence, mental health or substance abuse issues.
These cases are difficult and painful. They require careful consideration from the court.
The new laws propose six simple ‘best interests’ factors for courts to decide what parenting arrangement will be in the best interests of children.
The proposed legislation will also repeal the presumption of equal shared parental responsibility which is widely misunderstood to mean that parents have a right to equal time with their child.
It is an unnecessary additional step in the court’s decision-making process.
This presumption about parental responsibility has taken the focus away from the needs of children.
This confusion has led to the unacceptable situation where abusive partners have a false belief they have a right to equal time, against the wishes of the other parent and their children. This happens inside and outside of the court as parents negotiate parenting arrangements.
It has caused untold harm to children.
Our legislation makes clear that the best interests of children are paramount.
Courts can still order equal shared parental responsibility where it is in a child’s best interests. All parents have parental responsibility for their children unless in the very rare instance a court orders otherwise.
For most children, it is overwhelmingly in their best interest to have a meaningful relationship with both parents after separation. The proposed amendments recognise this.
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.
This inaction has hurt children, leaving them exposed to a system originally intended to prioritise their needs.
The Albanese Government is now acting to make sure the family law system is focused on what is best for children.
Originally published in the Herald Sun, The Daily Telegraph, The Advertiser and The Courier-Mail on Tuesday,
Tuesday, 28 March 2023
