The new law passed by the Australian federal parliament could potentially disadvantage fathers in family court battles. Under this legislation, parents going through a divorce will no longer have equal access to their children. The legal presumption for “equal shared parental responsibility,” which was part of the Family Law Act 1975, will be eliminated. This change means that parents will not have equal opportunities to establish meaningful relationships with their children and be involved in their lives after divorce.
The Family Law Amendment bill, passed on October 19, also introduces requirements for independent children’s lawyers to directly meet with children. The emphasis is on protecting children and their families from the harmful effects of prolonged and adversarial litigation. Additionally, the parliament has passed the Family Law Amendment (Information Sharing) Bill 2023, which allows courts to have access to a comprehensive understanding of family safety risks. This is to prioritize the safety of children and families, particularly in situations involving child abuse, neglect, or family violence.
The Attorney-General, Mark Dreyfus, stated that the new law aims to resolve family law matters quickly, safely, and inexpensively without compromising the safety of family members. He acknowledged the advocacy of individuals with lived experiences of family and domestic violence, whose contributions played a central role in the development and passage of these reforms.
However, there are concerns raised by academics regarding the removal of shared parenting in court disputes. It is feared that this change could put fathers in a more disadvantaged position in family court battles and potentially lead to false allegations. Family law professor Patrick Parkinson, who advised the Howard government on the 2006 reforms, expressed concerns that fathers could be excluded under the new changes.
Retiring judge David Collier also highlighted the increasing use of false allegations of domestic abuse by mothers as a weapon to restrict fathers’ involvement in their children’s lives. He emphasized the potential negative impact of such tactics. Augusto Zimmerman, head of law at Sheridan Institute of Higher Education, pointed out cases where good fathers have lost custody of their biological children while being expected to provide full financial support.
The research in this area is divided. Some studies suggest that shared care may place children in vulnerable situations in cases of domestic abuse. However, research from the University of New South Wales (UNSW) indicates that children in shared care arrangements show relatively high well-being. This could be attributed to the greater cooperation and shared decision-making that exist in such parental arrangements.