Australia proposes a Family Law that has nothing to do with families or the law and will not protect children or parents regardless of gender.
The Family Law Amendment Bill 2023 is an anti-family, anti-child proposal. It does not reflect social and community expectations about the role of family relationships in protecting and nurturing children regardless of the family configuration.
A detailed response has been submitted to the Family Law Reform Commission of the Attorney General’s Department.
Evidence Against Family Law Amendments Ignored
Such changes would reduce the scope of the children’s best interest only to protection from gendered forms of family violence acceptable to the stakeholders informing the proposal. Stakeholders advising the proposal appear to ignore research and evidence that do not support the presumption that family violence only impacts women and children.
The Amendments Do Not Respond to “Cancel Culture” Threats to Children
These changes propose repealing sections of the Family Law Act 1975 that protect women and children from types of family violence that Family Law is already ill-equipped to respond to. These forms of family violence are similar to the “cancel culture” featured in social media. They represent contemporary threats to children’s relationships with all family members regardless of gender.
An Unjust and Oppressive Approach to Family Law
A law that excludes certain members of society from remedies to protect themselves and their children is unjust. A law that removes considerations about the benefit of the family and family relationships with all family members is not a Family Law. It socially engineers the family and its relationships out of social and legal recourse. It is an oppressive law because it imposes ideas about the role of family that are incongruent with the social expectations of people who may engage with it.
If enacted, the changes may result in parents not engaging with an unjust system that does not reflect their values and beliefs and where the Family Court does not enforce its Orders. Indeed, as members of society, they may think they are under no compulsion to obey unfair or oppressive laws that will harm them and their children. Therefore, the amendments likely cause more of the same issues they claim to address if enacted.
A Failed Consultative Process
The proposed amendments to the Family Law Act of 1975 do not reflect consultation with parent and caregiver bodies or practitioner groups whom the amendments will affect. These groups and bodies could speak to the impact of repealing sections of the Act critical to the presentations they experience
A Way Forward to a Family Law about Families
Family Law requires a structural overhaul to better respond to contemporary “cancel-culture” like threats against children and their family relationships. Such an overhaul should include the following:
- The principle that both parents bear full responsibility for their child’s upbringing and development, regardless of separation.
- That the State supports and enables parents and caregivers to fulfil their responsibilities.
- The child’s need for suitable time and contact with both parents, according to the child’s specific needs and safety.
- Spending time may occur in many forms, including but not limited to the physical time spent with a parent or caregiver.
- The emphasis should be on the child having physical time with both parents equally as possible without resorting to accountancy about child support and time spent with each parent or caregiver.
- The principle that Family Law is the “parent of last resort”. It stands for the child and assisting and enforcing, if necessary, parents or caregivers placing the child’s best interests first.
- Therapeutic jurisprudence. Such a model would assess and triage cases and provide mediation, therapeutic remediation, and parenting coordination with powers to make decisions if parents fail to do so. Therapeutic jurisprudence sets an expectation that matters may progress to a swift legal determination if harmful behaviour persists.
- Investigation of all claims of family violence, abuse or other threat to children’s family relationships before pre-emptive action.
- Restorative and reparative practices for family violence and abuse cases, where it is safe.
- State enforcement of Family Court Orders.
- Child Support and Family Law operate together where Child Support does not validate breaches of agreed parenting plans or Court Orders.
- Appropriate funding models to address inequity in access to remediation and restoration.
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