IN an environment where family violence, parental separation and child safety are in the spotlight, navigating the Family Court is more important than ever. The Peninsula Community Legal Centre says separated parents need to understand the family law changes around parenting orders that come in on 6 May.
Family law is the number one problem the centre – which services Frankston and the Mornington Peninsula – deals with, as more than half of its clients request help with family law matters. Many involve family violence. While most separating parents make their own parenting arrangements, parents can apply to the Federal Circuit and Family Court of Australia for parenting orders where agreement can’t be reached.
PCLC CEO Jackie Galloway said parenting orders covered such issues as how much time a child was to spend with each parent, and who was responsible for making long-term decisions like health care, schools, and religion.
While the courts’ role of always making parenting orders that were in the best interests of the child would remain unchanged, the upcoming reforms aimed to simplify the law and make it more accessible.
“The changes to the law are the result of years of advocacy by victim-survivors of family violence and organisations like ours who work with them,” Galloway said. “Court data shows that in 2021 – 2022 family violence was alleged in 80 per cent of matters filed in the Federal Circuit and Family Court of Australia. A significant percentage, 66 per cent, involved risk factors such as family violence, child abuse, mental health issues or drug, alcohol or substance abuse putting a child at risk. “While issues of risk have long been considered, previously the language of ‘safety’ was not used in the Family Law Act when it came to decisions about parenting.”
Galloway said that under the reforms, “safety” would be a prominent feature. The court would be required to explicitly consider the safety of the child and their carer, along with five other issues in a new, simplified list of factors to consider when determining the parenting arrangements that would be in the best interests of a child. The changes also highlighted the relevance of family violence orders and past family violence, abuse and neglect when making decisions about future parenting arrangements.
Another major change related to how longer-term decisions were made for children, with the abolition of “the presumption of equal shared parental responsibility”. Under the old law, it had been presumed to be in the child’s best interests for parents to share decision-making for major long-term issues. Galloway said the presumption was criticised for many reasons, including diverting attention away from the best interests of the child.
“Another problem was that if a court made an order for equal shared parental responsibility, it also had to decide whether the child should spend equal or ‘substantial/significant’ time with each parent. This led to a common misunderstanding where some parents thought they were legally entitled to 50/50 shared care arrangements and time with their child. “As a result, some parents, particularly those affected by family violence, were agreeing in their out-of-court agreements to unsafe or unfair arrangements due to misunderstanding the law. “By removing the word ‘equal’ the new reforms make it clearer that there is no parental entitlement to equal responsibility or equal time with children under Australian law. “Who will have parental responsibility is solely guided by what is in the best interests of the child, including safety, and is decided on a case-by-case basis.”
Other changes included children being given a greater voice through independent children’s lawyers meeting with a child; a requirement to consider how parenting arrangements would help an Aboriginal and/or Torres Strait Islander child to experience their culture; and greater powers for the court to prevent systems abuse by making “harmful proceedings” orders for repeated, frivolous applications.
New information sharing arrangements would broaden the scope of information the court can obtain from child protection, police and firearms authorities in order to assess safety risks. “Most of the changes in the new law will come into effect on 6 May. From then, the changes will apply to all new and existing parenting proceedings, except where the final hearing has already begun,” Galloway said. “So if you have a family law matter where the final hearing has not started before 6 May, these laws will apply to you.”
Parents who were not before the courts but who were trying to work out parenting arrangements would also need to understand the changes and use the new legal framework in their decision making.
Anyone experiencing family violence or family law problems can contact the Frankston-based Peninsula Community Legal Centre, based in Frankston, to make a free appointment on 9783 3600 or pclc@pclc.org.au
First published in the Mornington News – 7th May 2024
