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Expert Warns Changes to Divorce Law Could Lead to Families Becoming a ‘Political Football’

A family law expert has criticized the Labor government’s push to scrap the legal assumption that parents going through a divorce have equal responsibility for raising their children, warning the move will turn the family unit into a “political football.”

In the biggest change to child custody arrangements since 2006, the court will no longer presume an “equal shared parental responsibility when making parenting orders,” according to the Family Law Amendment Bill 2023 (pdf).
The legal assumption, which was part of the Family Law Act 1975 introduced by the Howard government, sought to give parents the same opportunities to build meaningful relationships with children and be involved in their lives even after they have separated.

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The new amendments will also push child safety and family violence issues further up in the criteria, as it abolishes eight of the 15 factors the court must take into account when deciding parenting arrangements. This includes the lifestyle and background of a child and their parents, each parent’s attitudes to parenthood, the impact of the change in circumstance on the child, and the parents’ prior efforts to make time for the child.

The seven factors that remain include a child’s safety, their opinions, the child’s developmental, psychological, emotional and cultural upbringings, and the benefit of maintaining relationships with both parents.

Attorney-General Mark Dreyfus previously said the change will “place the best interests of children at the centre of the family law system.”

Families Scramble To Work It Out With The New Law: Expert

Family Law specialist Caroline Counsel noted that the new changes will lead to a situation where “each case will be decided on its own facts,” and the court will need to consider whether parents need to have equal time with their children.

She added that the core principle of best interests “is still the cornerstone of the legislation” but it was “really about removing the concept of equal shared parental responsibility.”

“When your child was born in the hospital, [do you] say, ‘Hey, I’m going to be in charge of education and you’re going to be in charge of religion.’ They don’t do that,” she told Perth’s radio 6PR on Wednesday. “They share it, they talk about it, they work out what’s best for the child in an ideal world.”

“Education is key. The government doesn’t do enough about it. They turn families into political football. And then they literally let loose the law and everybody’s sort of wanders around in the dark trying to work it out.”

The family law reforms, however, have received support from the Family Law Council, which argues that shared care can “actually exacerbate conflict between parents and increase the likelihood of children’s exposure to it.”

“Research indicates that shared care arrangements for children, in circumstances of high parental conflict, have particularly poor outcomes,” the council said.

“The impact of conflict on children include heightened aggression, anxiety, poor social skills, emotional problems, the development of dysfunctional behavioral patterns and clinical disturbance,” the council added, quoting a research paper.

The sentiment is echoed by Molly Dragiewicz, Associate Professor of Criminology and Criminal Justice at Griffith University.

“The Australian Institute of Family Studies evaluation of the 2006 amendments found that 75 percent of cases where family violence and child abuse were reported resulted in orders for equal shared parental responsibility,” he said in his submission.

“The willingness to order equal shared parental responsibility even in cases where family violence and child abuse were reported suggests that simply removing the presumption is likely not enough to rectify the problem.”

Concerns About False Allegations Leading To Unfair Judgment

But the Men’s Rights Agency opposed the new draft, saying that it would lead to false abuse allegations going under the radar and take away the fathers’ rights to take care of their children.

“False allegations of domestic violence flourish in this climate. No man is safe from the easily made accusation and issuing of domestic family violence orders,” the agency said.

“Once served with the interim order issued by a magistrate, where evidence, if there is any, has not been tested, they will find themselves banished from their home, lose access to their funds and possessions, perhaps lose their job, and removed from their paternal role of loving and caring for their children.”

The Family Law Practitioners Associations of Queensland agreed, saying the equal shared responsibility assumption will see parents get caught up in a power imbalance.

“Victims of family violence will be required to make an active application to Court for orders as to ­parental responsibility and specific issues (e.g. school, medical treatment), and to bear the associated cost, to bring into order a situation where parental responsibility is being exercised in a way with which they do not agree,” the submission said, according to The Australian.

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