Give the children a voice – an analysis of submissions made by Save the Children to the Joint Select Committee on Australia’s Family Law system

The Family Law Act 1975 (Cth) (“the Act”) stipulates a presumption that it is in a child’s best interests for that child’s parents to have equal shared responsibility for the child. Parental responsibility is defined in the Act as all the duties, powers, responsibility and authority which parents have in relation to children. This means that separated parents will have equal responsibility for a child, or children, unless the Family Court is satisfied that the presumption is contrary to the child’s best interests.

The Act clearly states that the best interest of a child must be the paramount consideration of the Family Court when making orders in relation to children. The Act states that the presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with the parent) has abused the child (or another child who was a member of the parent’s family at that time), or committed family violence.

It is important to note that the presumption of equal shared parental responsibility does not mean that a child’s parents are entitled to spend equal amounts of time with the child, as highlighted in the Australian Law Reform Commission’s 2019 report entitled Family law for the future – An enquiry into the family law system.

For clarity, the Act states that the Court is only required to consider whether it is in the best interests for a child to spend equal time with each parent.  No mandate exists for orders providing for equal time. There is no presumption of equal time, only of equal parental responsibility, so long as that presumption is not inconsistent with the best interests of the child insofar as a child is not exposed to abuse or family violence.

Despite the provisions of the Act, on 16 December 2019, submissions made by the CEO of Save the Children, Paul Ronalds, to the Joint Select Committee on Australia’s Family Law System, argued that the Family Court continues to facilitate parents spending time with children, notwithstanding that this is harmful to these children.

The submissions made by Mr Ronalds, on behalf of Save the Children, were highlighted by journalist Nick Bonyhady in his article in the Sydney Morning Herald on 29 December 2019 entitled “Equal parental responsibility is failing children, enquiry says”. Nick Bonyhady reports that Mr Ronalds has submitted to the Committee that the enquiry has failed to adequately or appropriately address child protection matters arising in the family law system.

In his submissions to the Committee, Mr Ronalds contends that the presumption of equal shared parental responsibility has created confusion and led to the Court making orders providing for equal time arrangements in circumstances where this is harmful to children. In these circumstances, Mr Ronalds has called for the removal of the presumption of equal shared parental responsibility from the Act, asserting that the exceptions contained in the legislation are inadequate in terms of protecting children from harm.

Furthermore, it has been recommended to the Committee by Save the Children that, in order to assist in protecting children embedded in the family law system, significantly greater weight should be given to the views expressed by the child as to their experience and care arrangements. Whilst the legislation currently states that the views of the child may be considered by the Court, there is no requirement for it. Mr Ronalds argues that this needs to be remedied.

Whilst the submission to the Committee by Save the Children holds merit if there is to be a requirement that the views if children are considered when deciding care arrangements for children arising from relationship breakdowns, sufficient safeguards must be implemented to ensure that a child’s views support their safety from all forms of harm, including both physical and psychological harm.

Any amendments to the legislation must ensure that, if a child’s views are considered by the Court, the child needs to have the mental capacity to impart their views. Furthermore, mechanisms should be implemented that acknowledge that a child’s views are subjective and may be skewed by a parent’s attempts to alienate a child from their other parent.

However, this cannot be an overriding principle of the legislation, which shouldn’t prioritise any possible risk of parental alienation above the safety and best interests of a child. The Court’s decision-making process should not be clouded by dispute between parents, as it so often is at present.

Whilst the removal of the presumption of equal shared parental responsibility, as championed by Mr Ronalds of Save the Children, may provide increased protection from children from harm, there is a real risk that, if sufficient legislative safeguards are not put in place, children will be denied the opportunity to enjoy a meaningful relationship with both of their parents. Of course, such a relationship should only be facilitated by the Family Court in instances where to have such a relationship with both parents does not pose any risk to the child

In order to best positioned to determine whether there is any risk to the child, a high standard of proof should be established by the legislation, requiring increased evidentiary support from several sources, including children themselves, as well as independent expert witnesses, such as social workers and psychologists, in consultation with adequately trained independent children’s lawyers.

The current over-reliance by the Family Court on the tiresome “he said, she said” arguments mounted by parents engaged in contentious family law litigation is a significant contributing factor to the making of Parenting Orders that have the potential to expose children to harm. Whilst it is important for parents to voice their concerns regarding their child’s safety whilst in the care of the other parent, such evidence is highly subjective.

It is therefore important that it is open to scrutiny and only considered by the Courts when it is also supported by objective evidence.

BY Felicity Reeman, Associate, Family Law, Sydney

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