Sarah Gall is a political data scientist and membership secretary for the UK’s Conservative Friends of Australia. She previously headed up political and policy research for the Prime Minister of Australia.
In Australia, the Coalition is gearing up to contest the Labor Government’s recent revisions to the Family Law Act 1975 (FLA), which have fundamentally altered the framework for deciding custody in divorce cases.
Passed in October last year, these reforms dismantle key aspects of the 2006 amendments implemented under the Howard Government. The amendments, which received bipartisan support from the then-Labor opposition, were pivotal in emphasising “equal shared parental responsibility” as the default principle, barring extreme circumstances like domestic violence or child abuse.
This change arose following extensive reviews of the family law system. These reviews highlighted a trend where parental responsibility was often imbalanced, typically favouring the resident parent, usually the mother.
Geoff Sinclair, a respected family law expert, commented on the necessity of the 2006 reforms. He highlighted the rarity with which fathers were awarded custody, stating: “very rarely did a male get custody. Mum had to be absolutely incompetent.”
This bias prompted the introduction of shared parental responsibility as the foundational principle in custody disputes, aiming to ensure both parents equally partake in major decisions for their children’s welfare.
Despite the intention behind the concept of equal shared responsibility, its implementation led to widespread misconceptions. It was often misinterpreted as implying an equal division of parenting time, creating confusion and disputes among parents and legal practitioners alike.
Addressing these misconceptions, a 2019 inquiry by the Australian Law Reform Commission (ALRC) into the family law system recommended replacing the presumption of “equal shared parental responsibility” in the FLA with “joint decision making about major long-term issues”. The aim was to provide clarity and better reflect the intentions of shared parenting responsibilities.
Yet the Labor Government’s approach deviates from the ALRC’s recommendations. Instead of redefining the presumption to align more closely with the original intentions, the government has opted to remove it altogether.
This decision, justified as a measure to resolve misunderstandings and prioritise children’s safety, has been criticised. Several studies have shown that children fare better when non-resident fathers maintain positive relationships and take an active parenting role.
These studies, however, also indicate that high ongoing parental conflict, family violence, and abuse, as well as rigidity in shared parenting arrangements, can make such setups challenging and stressful for children, often outweighing the benefits.
Labor appears to have fixated on the latter findings. By removing the presumption of equal shared parental responsibility, critics argue that it inadvertently casts a shadow of potential violence over all separated parents, predominantly affecting fathers. This approach overlooks the fact that such circumstances represent only a small fraction of separated families.
This significant shift in the law seems to regress the progress made in 2006. It places an increased evidentiary burden on parents, especially fathers, who seek equal shared parental responsibility, demanding they prove it serves the child’s best interests.
Colin Forrest SC, a former Family Court judge, summed up the implications: “it will be harder for the dads to get equal shared parental responsibility, and if they want it, the burden will be on them.”
While Labor has diverged from the ALRC’s recommendations on equal shared parental responsibility, it has adopted the recommendation to amend the factors that are considered when determining parenting arrangements in the best interests of the child.
This amendment simplifies the list of factors down to six crucial elements, including the safety of the child, any views expressed by the child, the child’s developmental, psychological, emotional, and cultural needs, and parental capacity to meet the child’s needs.
Prior to these amendments, the FLA provided for the child’s views to be represented in cases involving abuse, high conflict, or complexity, usually through independent children’s lawyers (ICL) appointed by the court. The new mandate requires ICLs to meet and hear the views of all children involved in custody disputes.
This change, while commendable for its intention to give children a voice, brings forth practical concerns. Family law specialist Jacqueline Dawson cautioned its feasibility, pointing out that “giving ICLs wider responsibilities will make no difference without proper resourcing through the existing funding channels.”
Additionally, and drawing on first-hand experience with an ICL, legal representatives can harbour their own biases, especially when children express a preference to reside with their fathers.
This raises questions about the suitability of legal practitioners in accurately assessing a child’s perspectives and best interests. An independent mental health professional, with their deeper understanding of child psychology, might be better equipped to determine what truly serves in the child’s best interests.
The Labor Government’s amendments to the Family Law Act constitute a profound shift within the family law system, affecting separated families and most notably fathers and their children. While reform was necessary, these changes under Labor remove the balance within the system – and may give rise to potentially protracted court battles.