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2019-2020
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
Family Law Amendment (A Step Towards a Safer Family Law System) Bill 2020
EXPLANATORY MEMORANDUM
and
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
Circulated by authority of
Mr Perrett
Family Law Amendment (A Step Towards a Safer Family Law System) Bill 2020
OUTLINE
1. The Bill will implement recommendations, in part or in full, from: the 2009 Family
Law Council report 'Improving responses to family violence in the family law system: An
advice on the intersection of family violence and family law issues'; the 2017 House of
Representatives Standing Committee on Social Policy and Legal Affairs report 'A better
family law system to support and protect those affected by family violence'; and the 2019
Australian Law Reform Commission report 'Family Law for the Future - An Inquiry into the
Family Law System'.
2. The Bill will repeal s61DA of the Family Law Act (FLA) to cure the misconception
that 'equal shared parental responsibility' in section 61DA means that children spend equal
time with each parent. Section 61DA sets up a false expectation that both parents are
guaranteed equal time with their children, putting families at risk by incentivising violent
parents to litigate their parenting disputes.
3. The Bill will also repeal the associated provision, s65DAA, which requires the courts
to consider, in certain circumstances, the possibility of the child spending equal time, or
substantial and significant time with each parent. The repeal of this provision was
recommended by the 2019 Australian Law Reform Commission (ALRC) report 'Family Law
for the Future - An Inquiry into the Family Law System'. The ALRC concluded in its report
that "it is difficult to justify retention of a provision that leads to misunderstanding about
care-time arrangements, increases the complexity of judgments, and likely increases legal
costs".
FINANCIAL IMPACT
The bill will have no financial impact.
NOTES ON CLAUSES
Preliminary
Clause 1 - Short title
4. This clause provides for the short title of the Act to be the Family Law Amendment
(A Step Towards a Safer Family Law System) Act 2020.
Clause 2 - Commencement
5. This clause provides for the commencement of the provisions in the Bill as set out
in the table.
6. Item 1 in the table provides that the whole of the Act will commence on the day the
Act receives Royal Assent.
Clause 3 - Schedules
7. Clause 3 of the Bill provides that legislation that is specified in the schedules is
amended or repealed as set out in the applicable items in the Schedule. Clause 3 also
provides that any other item in the schedules has effect according to its terms.
Schedule 1--Amendment of the Family Law Act 1975
Item 1--Subsection 61C(1) (note 2)
8. This item will repeal Note 2 of section 61C(1) of Family Law Act 1975 (FLA).
9. Section 61C(1) provides that each of the parents of a child who is not 18 has
parental responsibility for the child. Note 1 explains that this provision is a statement of
the legal position that prevails in relation to parental responsibility to the extent to which it
is not displaced by a parenting order made by a court.
10. Note 2 states that section 61C(1) does not establish a presumption to be applied by
the court when making a parenting order and refers to s61DA for the presumption
contained in that section. This Bill repeals s61DA and Note 2 is therefore no longer
necessary.
Item 2--Sections 61DA and 61DB
11. This item will repeal sections 61DA and 61DB of the FLA.
12. Section 61DA provides for a presumption of equal shared parental responsibility
when making parenting orders. This section was added to the FLA in 2006 as part of the
Howard Government's shared parenting amendments. The amendment was criticised
from the outset. Nicola Roxon MP in her second reading speech for the Family Law
Amendment (Shared Parental Responsibility) Bill 2005, said:-
" ... we know that a large part of family law is about expectations and that the
perception that the Family Court is biased against men affects the view that many
men take into negotiations, the government needs to be particularly responsible
about managing expectations and combating false perceptions."
13. Although the presumption in section 61DA does not apply when there has been
family violence or child abuse, there is evidence that the exception is not readily applied.
Many orders are made, whether by consent or judicially, for equal shared parental
responsibility where there has been family violence or abuse, or serious allegations have
been made.
14. Calls for this presumption to be repealed have been made for many years and from
a wide range of stakeholders. Most recently, the Safety First in Family Law campaign,
launched by Rosie Batty and Women's Legal Services across the country, has called as a
first step for this presumption to be repealed. The Safety First in Family Law campaign
has been endorsed by more than ninety individuals and organisations.
15. The ALRC in the 2019 report found that "the primary basis for confusion is the
presumption of equal shared parental responsibility, rather than the general concept of
parental responsibility".
16. The court will continue to have power to make orders for parental responsibility, but
such orders will be made in accordance with the statutory framework in Part VII FLA, and
in particular in the best interests of the child.
17. Section 61DB provides for an interim order for equal shared parental responsibility
to be disregarded when considering a final order.
18. Section 61DB will no longer be necessary as there will no longer be a presumption
of equal shared parental responsibility.
Item 3--Subsection 65D(1)
19. This Item amends s65D(1) of the FLA to remove the reference to section 61DA
which is repealed by this Bill.
20. Section 65D(1) provides the court with power to make parenting orders as it thinks
proper, but subject to certain other provisions including section 61DA.
Item 4--Subsection 65D(2)
21. This Item amends s65D(2) of the FLA to remove the reference to section 61DA
which is repealed by this Bill
22. Section 65D(2) provides the court with power to make a parenting order that
discharges, varies, suspends or revives some or all of an earlier parenting order, subject to
certain other provisions including section 61DA.
Item 5--Section 65DAA
23. This Item repeals Section 65DAA of the FLA.
24. Section 65DAA provides that when a court makes an order for equal shared
parental responsibility, the court is then required to consider whether equal time, or failing
that, substantial and significant time, is in the best interests of the child, and is reasonably
practicable. This provision was added to the FLA in 2006 as part of the Howard
Government's shared parenting amendments.
25. The 2019 ALRC report 'Family Law for the Future - An Inquiry into the Family Law
System' recommended the repeal of section 65DAA.
26. The ALRC said in their report:-
"Together with the evidence on the adverse impact of conflict and family violence on
child wellbeing, these conclusions point to the need for an individualised
assessment. This indicates a legislative policy position requiring assessment of
equal time, or substantial and significant time, where orders for shared decision
making are made, may not be consistent with prioritising children's wellbeing."
27. The ALRC concluded that to the extent that shared time would improve the
outcome for a specific child, it can be considered to feed in to the best interests of a child
and does not require a separate presumption.
Item 6--Application of amendments
28. Item 6 provides that the amendments made by Schedule 1 apply to any parenting
order made after commencement, whether or not the proceedings to which the order
relates were initiated before commencement.
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Family Law Amendment (A Step Towards a Safer Family Law System) Bill 2020
1. This Bill is compatible with the human rights and freedoms recognised or declared
in the international instruments listed in section 3 of the Human Rights (Parliamentary
Scrutiny) Act 2011.
Overview of the Bill
2. The Bill will implement recommendations, in part or in full, from: the 2009 Family
Law Council report 'Improving responses to family violence in the family law system: An
advice on the intersection of family violence and family law issues'; the 2017 House of
Representatives Standing Committee on Social Policy and Legal Affairs report 'A better
family law system to support and protect those affected by family violence'; and the 2019
Australian Law Reform Commission report 'Family Law for the Future - An Inquiry into the
Family Law System'.
3. The Bill will repeal s61DA of the Family Law Act (FLA) to cure the misconception
that 'equal shared parental responsibility' in section 61DA means that children spend equal
time with each parent. Section 61DA sets up a false expectation that both parents are
guaranteed equal time with their children, putting families at risk by incentivising violent
parents to litigate their parenting disputes.
4. The Bill will also repeal the associated provision, s65DAA, which requires the courts
to consider, in certain circumstances, the possibility of the child spending equal time, or
substantial and significant time with each parent. The repeal of this provision was
recommended by the 2019 Australian Law Reform Commission (ALRC) report 'Family Law
for the Future - An Inquiry into the Family Law System'. The ALRC concluded in its report
that "it is difficult to justify retention of a provision that leads to misunderstanding about
care-time arrangements, increases the complexity of judgments, and likely increases legal
costs".
Human rights implications
5. The Bill engages the following human rights:
Best interests of the child: Article 3(1) of the Convention on the Rights of the
Child (CROC).
Protection of children on dissolution of a marriage, and generally: Articles 23(4)
and 24(1) of the International Covenant on Civil and Political Rights (ICCPR),
and Article 3(2) of the CROC.
Protection of children from physical, sexual or mental violence, injury or abuse:
Articles 19(1) and 34 of the CROC.
Best interests of the child: Article 3(1) of the CROC 11.
6. Article 3(1) of the CROC provides that in all actions concerning children, including
by courts, the best interests of the child shall be a primary consideration.
Removing presumption of equal shared parental responsibility
7. Currently, the Family Law Act provides a presumption of equal shared parental
responsibility. The presumption does not apply in situations where there has been family
violence or child abuse. Despite those exceptions, there is evidence that the orders are
still being made for equal shared parental responsibility, either by consent or judicially,
when violence or abuse is present.
8. It is not usually in the best interests of children for parents who have a history of
family violence or abuse to have ongoing parental responsibility for their children.
9. The presumption has caused much confusion to separating families. Many people
consider the presumption to be a presumption of shared time and not shared decision
making. The false belief that there is a presumption of shared time has skewed the
starting point for negotiations about parenting arrangements and has caused some
parents to agree to consent orders that are not in the best interests of the child.
10. The removal of the presumption will result in orders about parental responsibility
being made in the best interests of that child.
Removing requirement for court to consider equal time or substantial and significant time
11. Currently, when the court makes an Order for equal shared parental responsibility,
section 65DAA FLA requires the court to then consider whether equal time, or failing that,
substantial and significant time, is in the best interests of the child, and is reasonably
practicable.
12. The ALRC in its 2019 report 'Family Law for the Future - An Inquiry into the Family
Law System' said:-
"It is difficult to justify retention of a provision that leads to misunderstandings about
care-time arrangements, increases the complexity of judgments, and likely
increases legal costs. The presumption also leads to a focus on the quantity of
contact with a child rather than on the extent to which that contact improves the
child's wellbing."
13. The ALRC recommended that the repeal of section 65DAA will "make it clear that in
determining what arrangements for the care of a child will best promote the child's best
interests, the court must determine, on all of the material before it, what is best for a
particular child."
Protection of children on dissolution of a marriage, and generally, and protection of
children from physical, sexual or mental violence, injury or abuse: Articles 23(4) and 24(1)
of the ICCPR, and Articles 3(2), 19(1) and 34 of the CROC
14. The ICCPR provides for fundamental civil and political rights which derive from the
inherent dignity of each person, and makes special provision for children. In particular:
Article 23(4) requires parties to take appropriate steps to ensure provision is made
for the protection of children on the dissolution of a marriage.
Article 24(1) provides for protection for all children, without discrimination, by virtue
of their status as minors.
15. The CROC recognises that children are entitled to special care and assistance, and
that they should grow up in an atmosphere of happiness, love and understanding. In
particular:
Article 3(2) provides that parties will take appropriate measures to ensure that
children have the protection and care necessary for their well-being.
Article 19(1) requires parties to take all appropriate legislative measures to protect
children from all forms of physical or mental violence, injury or abuse, including
negligent treatment and sexual abuse.
Article 34 provides that parties will protect children from all forms of sexual abuse.
Decisions to be made in the best interests of the child
16. Removing the presumption of equal shared parental responsibility in section 61DA
FLA, and repealing section 65DAA FLA that requires a court to consider whether equal
time or, failing that, substantial and significant time is in the best interests of the child and
is reasonably practicable, will ensure that decision about who will make long term
decisions for a child and where that child will live are made in the best interests of that
particular child.
Conclusion
17. The Bill is compatible with human rights because it promotes the protection of
children and separated families.
Graham Perrett MP