ADDITIONAL COMMENTS BY THE AUSTRALIAN GREENS
The Australian Greens believe it is essential that the Family Law Act is
amended as it fails to fully protect children and family members from abuse and
violence. The best interests of children should be prioritised in the family
We support the recommendations in the majority report but believe more
amendments are required. As such, these additional comments provide several
recommendations to strengthen the Bill, including: the removal of equal shared
parental responsibility provisions; strengthening of the best interests clause;
expanding the reference to exposure in both the definition of family violence
and abuse; and the consideration of a risk assessment framework for the family
Removal of equal shared parental responsibility (ESPR)
The Australian Greens have consistently opposed the ESPR requirement
since its introduction in 2006. As we argued at that time, ESPR creates a de
facto presumption of equal time:
While 'equal shared parental responsibility' and 'equal time'
are not one and the same, they are inter-related in a way that creates an
unacceptable formula in the bill...We share the concerns of Relationships
Australia, who stated:
"[We] acknowledge that the concept has moved from a 'presumption
of equal time' to a presumption of 'equal shared parental responsibility'.
However, we are concerned that with a starting point of a child spending 'equal
time' or 'substantial and significant time' with each parent this will be a de
facto presumption of equal time".
The operation of a presumption such as this, de facto or
otherwise, is likely to lead to an inappropriate and harmful focus in
determining what is best for children.
Subsections 61DA(1) and (2) of the Act require the court to presume that
it is in the best interests of the child for the child's parents to have equal
shared parental responsibility for the child unless there are reasonable
grounds to believe that a parent has engaged in abuse or family violence.
Submissions to the inquiry highlighted the following concerns with ESPR.
Lack of clarity
As outlined by Professor Richard Chisholm, aspects of the legislation
including ESPR are 'unnecessarily complex and confusing, making it hard for
people to focus on what is best for children'.
While the Act doesn't create a presumption favouring equal time, it can easily
be interpreted that way, as it is the only outcome the Act specifically
Professor Chisholm noted:
[O]n this, as on other matters, I believe that the Act is
subtly incoherent, sending out inconsistent messages. Not surprisingly, the [Australian
Institute of Family Studies] Evaluation and other reports reveal that it has
caused considerable misunderstanding.
Family violence not given proper
Evidence was submitted as part of the inquiry which expressed concern
that family violence is not given adequate consideration in decisions on equal
shared parenting. For example, Women's Legal Services Australia (WLSA) stated:
There should be no presumption of equal shared parental
responsibility. The presumption is meant to be rebutted by family violence.
However, the issue is that family violence may not be given its due weight to
be able to negate the presumption, especially at an interim stage, where the
family violence allegations are unlikely to be considered or tested...There
should therefore be no presumption about shared responsibility for decision‑making
and reference should only be made to the best interests of child and the circumstances
of each case.
Concerns about family violence are supported by the Australian Institute
of Family Studies Evaluation which found, out of parents who had setup
arrangements after the 2006 reforms, those with safety concerns were no less
likely than other parents to have shared care-time arrangements.
Detrimental outcomes for children
It is self-evident that failure to adequately consider family violence
can lead to negative outcomes.
During the hearing, WLSA argued:
The presumption and emphasis on shared parenting over and
above other parenting outcomes places children and other family members who
have experienced domestic violence in danger. This is because such arrangements
provide multiple opportunities for abuse to occur, such as changeover, and
because of the high levels of communication and contact that is required in
shared parenting arrangements.
Data suggests the reforms have been successful in producing
an increase in 'substantially shared care arrangements' since the legislation
came into force. At the same time, however, the research indicated that a
significant number of these arrangements are characterized by intense parental
conflict, and that shared care of children is a key variable affecting poor
emotional outcomes for children.
Professors Helen Rhoades and John Dewar, recommending that the
presumption of ESPR be repealed, cited research showing ESPR creates "expectations
and demands for shared time by fathers which have placed pressure on mothers to
agree to 'unsafe arrangements'".
The Family Law Council (FLC) pointed to recent research indicating that shared
care of children is contra‐indicated
where there are risks to children's well-being, such as where parental mental
health or drug misuse concerns, or high ongoing parental conflict, are present.
Furthermore, when giving evidence, the FLC stated that there is no clear
benefit to shared parenting arrangements:
The recent research that has been released, including reports
by the Australian Institute of Family Studies, Cashmore and others and McIntosh
and others, indicates that shared parenting arrangements of themselves offer no
independent benefit to children compared with other types of arrangements where
children see their non-resident parent regularly and there are no concerns
about safety, violence and conflict.
Approach based on individual needs
It became increasingly evident throughout the hearing process that a
flexible approach is needed, tailored to the circumstances of each family, not
a 'one size fits' all requirement of shared responsibility. Parenting
arrangements should always be governed by the best interests of the child, and
should be determined on a case‑by‑case basis. As WSLA clearly summed
up, 'The safety and wellbeing of families is too important not to take the time
to judge each case on its own merits when issues of domestic violence and abuse
Evidence given to the inquiry indicates that the presumption of ESPR is
often not in the best interests of the child. The Australian Greens believe
this provision should be repealed.
Considerations in determining a child's best interests
The Australian Greens do not believe the recommendation on
subsection 60CC(2A) goes far enough to protect the best interests of the
child, nor does it 'challenge the present misperceptions of the law
(especially the impression that there are 'two basic types of case')'.
It may in fact increase the complexity of the judicial decision making process.
A large number of submissions,
including that of Professors Rhoades and Dewar and WLSA, recommend removing the
two tiers of factors present in section 60CC and creating a single list of
which child safety is the first consideration and is given priority.
Women's Legal Services Australia supports this, further clarifying that a meaningful
relationship should be listed as one of the many factors, and that the
provision should direct the courts to weigh up all factors relative to the
circumstances of each case:
There should be no primary considerations at all but one list
of factors for consideration:
- where the safety and protection of children is listed as the
first consideration and given priority;
- that having a meaningful relationship be listed as one of the
- that the courts should weigh up all of the factors on the list
depending on the circumstances of each individual case.
The Australian Greens support this suggestion as it simplifies the two
tiered approach, provides flexibility and places the safety of children as the
top priority in all cases.
Exposure to family violence in the definition of 'family violence'
Recognising that exposure to family violence is a form of abuse is an
important step in improving the protection of children and prioritising their
safety. However, the Australian Greens believe that exposure should be included
in the definition of family violence and that in both the definition of abuse
and family violence the legislation should be clarified to ensure that the
parent victim is not held responsible for the exposure.
Both the Australian Law Reform Commission (ALRC), citing recommendations
from its recent report into family violence,
and WLSA, among many others, recommended that exposure to the effects of family
violence be included in the definition of family violence. The ALRC noted the 'considerable
amount of research documenting the fact that exposure of children to family
violence causes long-term emotional, psychological, physical and behavioural
issues,' and urged the committee to include exposure in the definition of
family violence and abuse as certain behaviour can constitute both.
Submissions also stressed that it must be clear that the parent victim
of violence is not responsible for the child/children's exposure. WLSA wrote:
The proposed definition of exposure should make it clear that
it applies to exposure by the person who perpetrates family violence (to avoid
unintended consequences that a victim of violence has exposed the child to
violence). It must be clear in the Family Law Act that victims of violence must
not be held responsible for not being able to remove children from the
This recommendation is supported by the ALRC
and other organisations, and is included in the joint ALRC/NSWLRC report, Family
Violence – A national legal response which suggests that the more
appropriate wording would be 'behaviour by the person using the violence that
causes the child to be exposed to family violence'.
Risk assessment framework
Finally, the Australian Greens would like to draw attention to a
recommendation made by WLSA. As their submission pointed out, over 50% of
parenting matters in the family law courts involve allegations of child abuse
and/or family violence.
As such, WLSA recommended implementing a risk assessment framework to identify
and explore issues of family violence and child abuse at the initial stages of an
application. Such early risk assessment would 'contribute to ensuring that the
matter proceeds through the most appropriate court division and ensuring less
adversarial and earlier resolution of issues',
as well as assisting 'agencies to ensure that appropriate referrals can be made
and safety planning undertaken for women and their children when necessary'.
The Australian Greens recognise that implementing a risk assessment
framework would represent a significant and broad reform of the family law
system and all related government policy. However, we strongly support the suggestion
and recommend it is explored further.
As the Explanatory Memorandum declares, 'the safety of children is of
critical importance...The family law system must prioritise the safety of
children to ensure the best interests of children are met'.
The Australian Greens wholeheartedly support this statement. The Bill as it
stands and the committee's recommendations are a considerable next step in
improving the family law system, after years of pleas for reform. However, we
concur with numerous submissions calling for greater protection for children
and other family members who may be the victims of family violence.
1.25 The Australian Greens recommend that:
- Equal shared parental responsibility provisions (subsections
61DA(1) and (2)) are removed from the Family Law Act;
- The demarcation between the two tiers of factors in section 60CC
is removed to create one list of factors for consideration, where:
safety and protection of children is listed as the first consideration and given
a meaningful relationship is listed as one of the many factors;
courts should weigh up all of the factors on the list depending on the
circumstances of each individual case;
- Exposure to the effects of family violence be included in the
definition of 'family violence';
- The definition of exposure to abuse and family violence makes it
clear that only the perpetrator is at fault for the child's exposure; and
- The creation of a comprehensive risk assessment framework for the
family law system is explored.
Senator Rachel Siewert
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