The first four months of 2024 have brought the horror of violence against women into the news feeds of everyday Australians. Each day we have been told the appalling count of one woman murdered every four days. We have been shocked by its brutality, lethality and frequency and have rallied and called for action.
Governments have responded by making new funding announcements and promising more policing. These responses have drawn qualified praise and louder concern that they will not be enough – and have never been enough.
But we need to take care that, in focusing on police and the criminal law system, we do not forget family law and the family law system. This is where many women who have experienced family violence end up after taking the brave step of separating.
Major changes to the Family Law Act come into effect on Monday. Among other things, they repeal a controversial legal presumption introduced in 2006 that “equal shared parental responsibility” is in the best interests of children.
In many cases, this is true. But in cases of family violence, assuming both parents should have equal responsibility for a child can be dangerous.
The journey to having this presumption removed has been long and littered with countless reviews, inquiries and evaluations. How did it come to be in the first place, and what effect will these legal changes have on children?
Laws with baked-in problems
The 2006 changes originated in a parliamentary inquiry established by the Howard government in 2003. Fathers’ rights groups led the charge for the inquiry and for equal-time custody laws.
Equal shared parental responsibility is about the decision-making duties of parents when it comes to the big decisions in a child’s life, including education, religion and health. This is different to equal time, whichdetermines where children actually live and often involves the child swapping homes every week. Some children enjoy this, others feel as though they are navigating two very different emotional spaces.
Because of the inquiry’s origins, the focus was on equal time as a starting point. It was not on finding out what actually works best for children after a family breakdown.
The 2006 changes did not contain a presumption of equal time but they did include a presumption that equal shared parental responsibility is best for children.
A presumption is intended as strong message to judges and the legal system. It tells a judge that the law says shared parenting is generally a good thing.
While that is true in some families, it can be a dangerous message to a decision-maker for families where there is violence or abuse. Although there were exceptions for family violence or child abuse, research showed orders for equal shared parental responsibility were made in many cases where there were serious allegations of family violence.
An order for equal shared parental responsibility meant parents had to consult each other about important decisions for their children. In some families this works well and ensures both parents have ongoing roles in their children’s lives after separation. Where there has been domestic violence, including coercive control, such an order provides the perpetrator of abuse with a legal channel to continue it.
Review after review
Since 2006 there have been at least six formal inquiries into the family law system as well as commissioned valuations and independent research.
Problems with the presumption and the dominance of the ideal of ongoing “meaningful” relationships are consistently reported, including by a 2017 parliamentary inquiry into family law. That report found the existing laws were “leading to unjust outcomes and compromising the safety of children”.
Much of the research has shown that victims of family violence are told not to raise it – or feel unable to do so. Wanting to restrict or limit perpetrators’ contact with the children may be seen as being obstructive rather than protective.
While the government balked at touching the presumption in 2011 when it introduced changes to the act to improve its response to family violence, it’s now gone.
Focus on needs of the child
The 2023 changes have also repealed the section about equal, substantial and significant time and simplified a list of best interest factors. The new factors include:
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The safety of the child and others who have their care.
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The views of the child.
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Their developmental, psychological, emotional and cultural needs.
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The capacity of each of the parents to provide these needs.
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The benefit to the child of having a relationship each of their parents.
In terms of safety, the court must consider any history of family violence, abuse or neglect and any family violence order.
The implementation of the amended legislation will have its challenges.
Despite their flaws, the old laws did offer useful guidance about what a court should think about if considering making an order for equal (or lots of) time. And a judge can still make those orders despite the presumption’s repeal.
Late last year Australia’s shadow attorney general, Michaelia Cash, said the changes “send a message to the courts that parliament no longer considers it beneficial for both parents to be involved in decisions about their children’s lives” and would be repealed under a Coalition government.
Her concerns aren’t borne out in the legislation. Nothing in these new laws takes away from the importance of both parents.
The government has listened to and acted on concerns about safety which have been expressed over many years. Now we should wait to see how they actually operate.
Zoe Rathus is a senior lecturer in law at Griffith University. This is a updated and edited version of a story that was originally published by the Conversation
