20 Feb Simplifying children’s matters through Family Law Reform
Recommendations to create clarity in separation and divorce
Family Law matters involving children are some of the most difficult and emotional. Unfortunately, the long-term effects can be detrimental for all parties involved but in particular, the minors involved.
In 2019, the Australian Law Reform Commission reviewed the Family Law System and made many recommendations for change to improve how this service is delivered. While they have not yet taken specific action to change how parents and children currently in the system experience their proceedings, the government has set up a Joint Select Parliamentary Inquiry to review the potential changes.
Of the 60 recommendations, the most essential to centre on children’s matters are:
Family Law and the changing face of parenting
The Commission analysed the changing face of parenting over the past twenty (20) years, recognising that instances of family violence have risen substantially in this time. They concluded that Family Court procedures were overly adversarial and, ultimately, intimidating for all parties. They also recognised that these problems often exacerbated existing conflict within families. Further, they acknowledged that applying the law to parenting matters is complex, confusing, can lead to conflict and does not place enough emphasis on safety for children and their carers.
Simplifying parenting arrangements
The Review concluded that some parts of the Family Law Act have overtaken other parts, adding to the existing confusion and uncertainty. The recent recommendations propose a simplified version of factors to be considered when parenting arrangements are determined.
- What arrangements best promote the safety of the child and the child’s carers, including protection from family violence;
- Any relevant views expressed by the child;
- The developmental, psychological and emotional needs of the child;
- The benefit of the child maintaining relationships with each parent and others, where it is safe to do so;
- The capacity of each parent to provide for the developmental, psychological and emotional needs of the child and having regard to the parent’s willingness to seek support to assist them with caring; and
- Anything else that may be relevant to the circumstances of the child.
A child’s best interests
The Review held onto the principle that “the child’s best interests” is the overriding factor to determine their future arrangements. One important recommendation of the Reform simplifies how a Court determines “the best interests” when deciding on children’s long- and short-term care arrangements. Several significant considerations addressed include:
- removing the mandatory consideration of equal shared parental responsibility,
- removing the mandatory consideration of equal shared time,
- providing for the very special family relationship in Aboriginal and Torres Strait, Islander families and expanding the definition of a “family member.”
For some time now, the presumption of “equal shared responsibility” has ruled in parenting matters with people often mistaking this as “equal time for both parties.” The Commission suggested changing the wording to “joint decision making about major long-term issues,” to avoid that confusion. This change illustrates to parents that joint decision making is required on issues of education, health, religion and culture.
Equal shared time
The application of equal shared parenting responsibility started with the premise that both parents be allocated equal time with their children. From there, parties had to argue why this was not suitable for their family if violence, mental health issues, children’s health matters and the parent’s relationship were decisive factors.
This presumption took away from the all-important consideration of “what is in the best interests of the child” and led to victims of family violence agreeing to inappropriate or unsafe arrangements.
Removing this mandatory consideration for equal shared time aims to streamline decision making and provide safe and practical arrangements for children from the outset.
Cultural considerations for Aboriginal and Torres Strait Islander children
There was much discussion on how Aboriginal and Torres Strait Islander children must have the opportunity to connect with and maintain connections to their family, community, culture and country.
The Commission accepted that the connection to culture is a significant protective factor for the wellbeing of children and their families. Therefore, they have recommended that it is appropriate to have a cultural expert give evidence on this topic when there are issues involving the First Nations people.
Educating parents and mediators
The changes listed here have led to the further proposition that parents be educated about what may, or may not, be relevant to the best interests of the child. In particular, the recommendation suggests that family dispute resolution practitioners assist parents in understanding these principles and aiding the process of education.
Averting adversarial trials
Finally, the Commission recommended a less adversarial approach to contested parenting matters. They concluded that the current system permeates an increase in self-litigants, which often results in delays, a reduction in settlement opportunities, an exacerbation of hostilities and a reluctance to comply with orders or post-separation arrangements. None of which are considered as being “in the best interests of the child.”
Post-2004, the Court introduced the Less Adversarial Trial Model which provided several methods on how a child could be heard, including through a family consultant, expert report and judicial interview.
The introduction of the family consultant in this model provided mediation input in the courtroom and promoted a more collaborative approach. Parents reported they felt more satisfied with proceedings, that children functioned better emotionally and all experienced far greater satisfaction with post court living arrangements due to this change.
Despite the improved outcomes, the use of this method has diminished because of insufficient numbers of family consultants who can assist and the limited amount of time that Judges have to hear these types of matters.
The Family Law Reform advises that the provision of this expert layer of assistance will aid the Judge in the interpretation of specialist expert evidence. Given the less formal nature of the method and that it has already proven to work, they strongly recommend that it be brought back into hearings.
Clear, collaborative conclusions
Unsurprisingly, when information is confusing or appears contradictory, parents can become disillusioned and angry with the system. Given this ultimately impacts the care of children, it is something the Australian Law Reform Commission aims to rectify.
The types of recommendations described here, once implemented, could well be the turning point for future generations needing mediation and experiencing separation or divorce. With clear guidelines and a collaborative approach, navigating children’s arrangements will not only be more straightforward for all involved but will indeed provide for the best interests of the child. Toomey Family Law believes these changes are needed and we are excited to help lead the shift for the benefit of future generations.
If you would like some guidance on your Family Law and property settlement matter, please contact Leisa Toomey today.