Experts in the Media

Catherine Leach – Women’s Agenda

Family Lawyer | Managing Director at Leach Legal

How proposed changes to the Family Law Act will give greater weight to the impact of family violence.

Proposed changes to the Family Law Act would give greater weight to the impact of family violence on parenting disputes and if passed by Parliament will likely come into play later year.

The proposed changes include a new definition of family violence, a requirement for judges to consider the impact of family violence on children, and a requirement for parties to disclose any allegations of family violence.

The change is largely as a result of campaigning from women’s advocacy groups following the Royal Commission into Family Violence in Victoria in 2016. The groups have been pushing for the need for family law to take a more nuanced approach to parenting disputes in the context of family violence.

Women’s groups have argued that this nuanced approach would be a course correct after the 2006 Family Law Act change that was made in response to lobbying from men’s groups. Leading up to the 2006 changes, men’s groups had campaigned for years to remove bias against fathers in custody disputes. The changes included a presumption of equal shared parental responsibility, which meant that both parents were assumed to have an equal role in making decisions about their child’s upbringing.

However, the introduction of the equal shared parental responsibility presumption was controversial and had unintended consequences. Some argued that it placed too much emphasis on the rights of parents and not enough on the best interests of the child. In practice, the presumption often led to acrimonious disputes between parents over minor decision-making.

And while this push and pull may seem unnecessary, it is integral that Family Law in Australia evolves over time to meet the changing needs and values of Australian society.

The introduction of the Family Law Act in 1975 marked a significant shift in the way family law was handled in Australia, with a greater focus on the best interests of the child and the rights of parents.

Prior to the Family Law Act, family law in Australia was governed by a patchwork of state and federal laws. There was no uniformity in how disputes involving divorce, custody, and property settlement were handled and the process was often expensive and time-consuming, with a significant amount of discretion given to judges.

The Family Law Act of 1975 introduced a new system of family law that was intended to be simpler, more efficient, and more consistent. The Act established the Family Court of Australia, which had exclusive jurisdiction over all family law matters. The Act also created a uniform set of laws that applied across all states and territories.

One of the most significant changes introduced by the Family Law Act was the principle of no-fault divorce. Prior to the Act, divorce could only be granted if one spouse could prove that the other had committed a serious breach of the marriage contract. The Family Law Act abolished this requirement and allowed couples to divorce on the grounds of irretrievable breakdown of the marriage.

The Act also introduced a new approach to parenting disputes, which prioritised the best interests of the child. The Act required judges to consider a range of factors when making decisions about custody, including the child’s wishes, the child’s relationship with each parent, and the ability of each parent to provide for the child’s needs.

And now we have the latest iteration of the Family Law Act, which will separate the issues of dual parental consent on major decisions about a child’s life like elective surgery and where they go to school; and what we used to call shared or equal custody, but which is now known in courts and legal circles as ‘Lives With’.

There is ongoing debate about the best way to balance the rights of parents with the best interests of the child and the proposed changes to the Family Law Act that focus on family violence represent an important step towards a more nuanced and sensitive approach to parenting disputes. And as a divorce lawyer, it really highlights the need to consider each family on its own facts and not to take a broad brush approach to how families have and should operate – with a firm view on what is the best outcome for the children and not necessarily what is best for the parents.