Women's Safety NSW welcomes proposed reform to the presumption of equal shared parental responsibility under the Family Law Act 1975 (Cth) but notes the importance of being "crystal clear" in its redrafting that the presumption does not apply where children have been exposed to family violence or abuse.
The Federal Government today responded to the Australian Law Reform Commission's (ALRC's) Review of the Family Law System, agreeing in principle or in part to 35 of its 60 recommendations.
One of the recommendations agreed in part by the Federal Government was to amend section 61DA of the Family Law Act 1975 (Cth) to replace the presumption of "equal shared parental responsibility" with a presumption of "joint decision making about major long-term issues". However, the specific wording proposed has not yet been agreed upon.
Women's Safety NSW is pleased to see some recognition on the part of the Federal Government of the need to address the confusion between having equal responsibility for a child and equal time with them, and to provide greater clarification as to the circumstances in which the presumptions would not apply. In this regard, the Federal Government has acknowledged "that there are reasons, including for safety, or relating to practicalities, why it will not always be in the best interests of a child that equal time or substantial and significant time be spent with each parent".
"We have to remember that up to 80 percent of family law matters heard by the court involve allegations of family violence or abuse" says Hayley Foster, chief executive officer of Women's Safety NSW. "We now know of the deleterious effects of domestic and family violence on children, so our law needs to be crystal clear that the presumptions of equal shared parental responsibility and substantial and significant time with children do not apply where a child has been exposed to this."
Another key recommendation supported by the Federal Government is the need to develop and implement a national information sharing framework regarding the safety, welfare, and wellbeing of children and families in both the federal family law system and state/territory based domestic and family violence and child protection systems. Specifically, this would involve an expansion of the National Domestic Violence Order Scheme to include family court orders and orders made under state and territory child protection legislation.
"Noting the Federal Government has not supported the key recommendation from the ALRC to establish state and territory family courts to exercise concurrent jurisdiction under the Family Law Act alongside domestic violence and child protection matters, it is critically important that we put in place other measures to ensure better integration between these jurisdictions" explains Foster. "Otherwise victim-survivors of domestic and family violence will continue to face the reality of being dragged through multiple court proceedings, having to re-establish their victimhood at every turn."
Women's Safety NSW also welcomes the Federal Government's recognition of the "valuable service" provided by the Family Advocacy Support Service (FASS) in 15 family law registries across the country. This service offers coordinated legal and social support to people who have experienced, or are experiencing, domestic and family violence and are accessing the family law system.
"The Family Advocacy Support Service is a highly successful, positively evaluated program, critical for safety and wellbeing outcomes in family law matters involving family violence" says Foster "Regional and rural families, who experience violence at higher rates and at more serious levels, shouldn't be missing out of critical services like this."
The Federal Government also agreed it's high time to review s 121 of the Family Law Act, often referred to as the "gag clause", so that privacy considerations can be weighed against parties' freedom to comment on their own matters.
"This is a priority reform" notes Foster. "The current secrecy surrounding family law matters hamper our progress. We can't truly know what needs fixing if people can't speak out about their experiences safely."
Women's Safety NSW looks forward to working with governments at both levels to progress these reforms so that child safety and the safety of victim-survivors of family violence and abuse remain front and centre in our responses.
