1.1        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 law system.

1.2        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 law system.

Removal of equal shared parental responsibility (ESPR)

1.3        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".[1]   

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.[2]           

1.4        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

1.5        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'.[3] 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 mentions.[4] 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.[5]

Family violence not given proper consideration

1.6        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.[6]

1.7        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.[7]

Detrimental outcomes for children and families

1.8        It is self-evident that failure to adequately consider family violence can lead to negative outcomes.

1.9        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.[8]

1.10      Further:

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.[9]

1.11      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'".[10]  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.[11]

1.12      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.[12]

Approach based on individual needs

1.13      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 are involved'.[13]

1.14      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

1.15      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')'.[14] It may in fact increase the complexity of the judicial decision making process.

1.16      A large number of submissions,[15] 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.[16] 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:

1.17      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'

1.18      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.

1.19      Both the Australian Law Reform Commission (ALRC), citing recommendations from its recent report into family violence,[18] 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.[19]

1.20      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 violence.[20]

1.21      This recommendation is supported by the ALRC[21] 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'.[22]

Risk assessment framework

1.22      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.[23] 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',[24] as well as assisting 'agencies to ensure that appropriate referrals can be made and safety planning undertaken for women and their children when necessary'.[25] 

1.23      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.


1.24      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'.[26] 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:


Senator Rachel Siewert

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