The Australian Law Reform Commission (ALRC) has delivered its long-awaited review into the family law system in a 583-page report containing a large number of recommendations for change. As stakeholders pore over the report’s contents, one of the most controversial proposals has already been stirring up discontent.
In 2018, the Turnbull Government tasked the ALRC with examining the spectrum of issues involved in reforming the family law system, which has been heavily criticised over a number of years. Critics – from parents to practitioners to academics – have regularly slammed the family law system as dysfunctionally slow, expensive and out of touch with modern needs. The family law industry has eagerly awaited the results of the ALRC review and its impact on the reform debate.
Professor Patrick Parkinson of the University of Queensland was one of the architects of the John Howard-era equal shared parenting reforms which were introduced in 2006. Parkinson welcomes the ALRC review as “a clear roadmap for how to amend the law and improve the system of justice”.
However Parkinson warns in The Conversation:
“The government would be wise to deal with these recommendations sensitively and in a manner that does not reignite the ‘gender wars’.”
This is because the ALRC review calls for the removal of section 65DAA which requires judges in certain cases to consider whether children should spend equal time or substantial and significant time with each parent.
And disgruntled rumblings have already started from mens’ groups and politicians. Senator Duncan Spender of the Liberal Democrats says the ALRC review of the family law system is “anti-dad”:
“Courts are currently required to presume that, in the absence of child abuse and family violence, it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. The Commission has recommended that this presumption of ‘equal shared parental responsibility’ be replaced with a weaker presumption of ‘joint-decision making about major long‑term issues’. This would crush any hope that engaged dads have an equal chance of custody compared to engaged mums. Beyond the breastfeeding period, dads can be as good at parenting as mums.”
“Contrary to available evidence, it is fashionable to think that a high proportion of dads in break-ups are violent. Unfortunately the Commission has adopted this fashionable groupthink instead of standing up for evidence-based policy and justice.”
Senator Duncan foreshadows the difficulty governments will have in amending the Family Law Act:
“Acting on the Commission’s recommendations will hurt dads and children. If re-elected I will seek to block the changes proposed by the Commission. The crossbench needs Senators who will speak truth to groupthink.”
Lone Fathers Association’s Barry Williams is also quoted as warning the government that it would “see the biggest demonstration ever seen” from parents if it tried to scrap the provision.
For his part, Professor Parkinson says he would be “happy to see [shared parenting laws] go” but argues:
“The important principle, currently contained in the Family Law Act, is that the law should encourage the maximum involvement of both parents in children’s lives which is consistent with the children’s best interests. That principle needs to be retained in the Act. Sometimes, due to abuse, neglect, mental illness or other factors, it is not safe for children to have much involvement from one of the parents; but this is a minority of cases. Children, vulnerable to long-term harm from their parents’ breakup, do best if they can keep a close relationship with both their parents.”
A second radical suggestion put forward by the ALRC and immediately causing ruffled feathers is the idea of abolishing federal family courts in favour of state and territory courts which could make orders under state child protection and family violence laws as well as under the federal Family Law Act 1975.
We look forward to the reform debate continuing…
If you need help with a parenting or other family law matter, please contact Canberra family lawyer Cristina Huesch or one of our other experienced solicitors here at Alliance Legal Services.
Please note our blogs are not legal advice. For information on how to obtain the correct legal advice, please contact Alliance Legal Services.