Are the family law reforms proposed by the Government the end of fathers’ rights to be equal parents? The short answer is no.
Currently, the Family Law Act 1975 (Cth) (the Act) requires the Court to consider a number of primary considerations when determining what parenting orders are in the best interests of a child including:
- the benefit to the child of having a meaningful relationship with both of the child's parents; and
- the need to protect the child from abuse, neglect or family violence.
After the Court considers those matters, it must consider fourteen other matters described as additional considerations, such as any views expressed by the child and the nature of the child’s relationship with each of the child’s parents and other people.
However, in determining the parenting orders that are in a child’s best interests, the Court is required to apply a presumption that it is in the child’s best interest for the parents to have equal shared parental responsibility for the child (i.e., that parents should be required to make any decision about a major long-term issue in relation to the child jointly). That presumption is subject to exceptions, such as in circumstances of family violence.
Then, if an order is made for equal shared parental responsibility for the child, the Court is required to consider whether the child spending equal time with each of the parents would be in the best interests of the child and reasonably practicable.
These sections were included in the Act in 2006 including to overcome a perceived difficulty for fathers to be considered equal parents before the Court, and not just weekend or holiday dads. Now that it is proposed that those sections should be removed from the Act, it’s been widely reported that the amendments are an attack on father’s rights.
However, after considering the proposed amendments, it is clear that this is not the case. Although the Court may come to decisions using a slightly different path, the outcomes are unlikely to be very different.
What is proposed in the Family Law Amendment Bill?
The Family Law Amendment Bill 2023 (Cth) (the Bill) proposes that, instead of the process above, Courts will consider only six matters and there will be no presumptions as to what arrangement is in a child’s best interests. Those six matters are:
- what arrangements would best promote the safety of the child and each of the child’s parents;
- any views expressed by the child;
- the developmental, psychological and emotional needs of the child;
- the capacity of each parent to provide for those needs;
- the benefit to the child of being able to maintain a relationship with both of the child’s parents, and other people who are significant to the child, where it is safe to do so; and
- anything else that is relevant to the particular circumstances of the child.
There are further considerations which apply if a child is Aboriginal or Torres Strait Islander.
The six matters above are simply a summary and simplification of the primary and additional considerations which are contained in the Act currently.
Legal analysis and considerations: Family Law Amendment Bill
So, if the changes are simply a different way of saying the same thing, what is the point, if not to walk back fathers’ rights?
The difficulty with having a “starting place” in the Act is that it applies just as often as it doesn’t. While the presumption in favour of equal shared parental responsibility can be helpful for some parents to assist them to resolve their matter, in just as many matters it may be a hindrance to the resolution of the matter, where the starting place provided by the Act is not in a child’s best interests in the particular circumstances of that matter (e.g. where there is domestic violence or very poor communication between the parents).
The 2006 amendments have done their job, insofar as they have encouraged greater balance between mothers and fathers when the Court is considering the best interests of a child. Societally, a lot has also changed since those amendments were made, particularly given the increased flexibility available to both parents in the way in which many parents now engage in the workforce. Better technology and more flexible work practices have assisted parents since those amendments came into force.
The Bill now seeks to address the unintentional consequences of those earlier amendments, in circumstances where it is submitted that rigid approaches are rarely in the best interests of children and rarely accommodate the expansive array of domestic circumstances of Australians.
In our opinon, the more interesting amendments proposed to the Act have not yet been widely reported on, including:
- that the standard of proof in contravention applications relating to parenting orders be reduced to the balance of probabilities, rather than the criminal standard of proof of beyond reasonable doubt, except in circumstances where the Court proposes to impose a fine or term of imprisonment; and
- that parties be required to obtain leave of the Court or consent of the other party to introduce into evidence any “protected confidence”, which includes communications as part of a health service or a relationship attracting confidentiality.
Those are significant substantive amendments to the Act that are likely to have an impact on the outcomes of cases. We are hopeful that those substantive amendments will attract considered responses as part of consultation process for the Bill, and will not be overshadowed by the media storm surrounding the removal of the presumption, relating to equal shared parental responsibility and the requirement that then follows to follow a strict legislative pathway in making decisions about where a child will live.
Submissions on the Bill are due by 27 February 2023.
The HopgoodGanim Family and Relationship Law practice assist with all matters arising from parenting orders and a child’s best interests. To find out more about how the team can support your family law needs, get in touch today.