Federation supports removal of presumption of shared parental responsibility

June 29, 2020 |

The Federation of Community Legal Centres has welcomed a new Bill that seeks to remove the presumption of equal shared parental responsibility in cases of parental separation.

Federal Labor MP Graham Perrett introduced the Family Law Amendment Bill recently in response to the deaths of Hannah Clarke and her three children earlier this year.

The bill implements the first of the three urgent priorities put forward by Women's Legal Services Australia by repealing section 61DA of the Family Law Act which was implemented in 2006 and contains a presumption of equal shared parental responsibility.

The presumption of equal shared parental responsibility is often misinterpreted by the community and practitioners as meaning equal time - a myth that is harmful for women and children experiencing family violence.  The law, if applied properly, does not assume that parenting will be shared equally when parents separate. Rather, the law requires the family law courts to determine the ‘best interests’ of the child as the paramount consideration.

The myth of equal time can and does influence parents who negotiate consent arrangements in the shadow of the law. Women experiencing family violence and who can’t access or afford to seek legal advice can be highly persuaded by this myth of equal sharing.

Shorna Moore, Director of Policy and Engagement at the Federation said the presumption was often misinterpreted and this supports the case as to why the presumption and references to equal time need to be removed from the Family Law Act.

“In too many cases children are being forced to maintain a relationship with a violent parent, due to the presumption of shared responsibility,” she said.

An Australian Institute of Family Studies report, published in 2010 evaluated the 2006 amendments and found that even where family violence and child abuse had been alleged, more than 75 per cent of cases resulted in orders for equal shared parental responsibility. Where the allegation only concerned family violence, almost 80 per cent ended in orders for equal shared parental responsibility.

The Federation of Community Legal Centres supports Women’s Legal Services Australia, who along with Rosie Batty established the ‘Safety First in Family Law’ plan, which contains five steps to developing a family law system that ensures the safety of women and children. One of the first initiatives in the five-step program is removing the presumption of equal shared parental responsibility.

Nerita Waight, CEO for the Victorian Aboriginal Legal Services (VALS) also welcomed the new Bill.

“I am happy to hear there has been some movement in this area,” she said.

It is a tragedy that women, and in some instances children, are dying at the hands of their current or ex-partners. We need to think about what is best for the children when parents separate and a presumption of equal parenting is sadly too often detrimental to the well-being of the child.

“We see countless instances of this affecting clients who were victims of family violence and/or sexual violence and the harm and trauma this put on them is indescribable.”


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