A dramatic overhaul of the nation’s family laws will focus more on children’s best interests rather than shared parenting responsibilities.
A multipartisan Senate committee has considered amendments to the Family Law Act, and while it called for further changes, it generally wants the bill to pass.
At the heart of the proposed legislation is the abolition of the assumption of equal shared parenting responsibilities – which is often misinterpreted as the assumption of equal shared parenting time.
The committee believes that “history of domestic violence, abuse and neglect as a general consideration in determining what is in the child’s best interests” is essential and should be included in “a better understanding and protection of Aboriginal and Torres Strait Islander children’s language and concepts of their cultural rights”.
The committee also recommends including the concepts of kinship and child-rearing practices, while ensuring Aboriginal and Torres Strait Islander peoples are not subject to more onerous disclosure obligations as a result of this extension.
Greater consideration should also be given to the perspective of the child, including if the child objects to an order under the Hague Convention on child trafficking. The convention, which aims to stop non-custodial parents from abducting their children, has been misused to negatively impact mothers who are victims of domestic violence fleeing.
The committee also recommends introducing safeguards to stop alleged perpetrators from abusing subpoenas to obtain personal information about their alleged victims, including counseling records, medical records and home addresses.
The original bill included some additional protections, but they have been removed from the current draft for deeper consideration.
The abuse of subpoenas is part of a broader problem of abuse of the legal system, with alleged domestic violence perpetrators self-representing themselves in family court, delaying proceedings, filing claims, and forcing victims to repeatedly appear in the same venue as their abuser.
The proposed new legislation includes “harmful suit orders” to prevent a party from bringing suit “to protect the accused and/or subject’s children from the harmful effects of frequent and unnecessary filings by applicants”.
While defendants and litigants may be without legal representation due to financial concerns, research shows alleged abusers use the move to control and intimidate their victims. There are concerns that patriarchs are teaching underrepresented parties how to take advantage of the court process.
Monash University, independent MP Zoe Daniel and others have called for further changes to define such abuse within the legal system as domestic violence.
Jane Wangmann is an expert on family violence and the legal response to domestic violence at the University of Technology Sydney.
She said the ex-partner deliberately made multiple “unsubstantiated” applications to drain the victim’s funds.
“It’s about undercutting them, draining their funds, or just showing up in venues where they can see them – often they are no longer allowed to have any contact,” she said.
Abuse of the legal system can happen in multiple jurisdictions, dragging people into family and state courts, she said. The abuser may also force an unnecessary adjournment by not appearing in court, or flood the attorney with letters. The abuser can also make false reports to child protection, landlords or social security to “make her life difficult”.
Australian Single Mothers Association chief executive Terese Edwards said the abuse of the legal system also extended to child support payments, pointing to online forums advising men on how to minimize their payments.
In research on self-represented parties in family law proceedings conducted for the Australian National Women’s Safety Research Group (Anrows), Man Wang found high numbers of self-represented parties in cases involving allegations of domestic violence. Clients may not be able to afford lawyers or access legal aid, but there are other reasons, she discovered.
“Women and professionals reported that alleged abusers self-represented to harass women, or out of arrogance or to refuse legal advice,” the report found.