Government's family law bill is a big step forward. But it doesn't do enough to address family violence

The Labor government’s Family Law Amendment Bill 2023^[1] is making its way quietly through Australia’s federal parliament. It will become one of the most important laws passed this year.

It proposes to^[2] overhaul the family law system to make it “safer and simpler for separating families to navigate, and ensure the best interests of children are placed at its centre”.

We should celebrate the fact this bill is passing through parliament. It shows the government has responded to insistent calls for change^[3] to protect families.

But here’s why it doesn’t go far enough in addressing family violence.

What’s the bill for?

The bill will make important changes to the rules that govern parenting arrangements after separation.

It will remove the presumption of “equal shared parental responsibility^[4]”. Under the current law, this presumption means both parents have a role in making major, long-term decisions about their children.

However, it’s often misinterpreted. Many people believe^[5] it means parents are entitled to equal time with their children, regardless of domestic and family violence or abuse.

This bill will finally make it clear that equal time isn’t always appropriate or safe for families with a history of abuse.

The problem of family violence

The grim reality is that family violence is the norm, not the exception in family law. Recent data^[6] shows well over half of cases before the family court involve allegations of family violence against children or one parent.

Separation often doesn’t mean an end to the violence, but more harm and control^[7], especially at contact changeover times for children or during the court process.

Helen Politis, a victim-survivor of abuse and veteran of the family law system explains what this meant for her:

The reign of chaos my children and I experienced prior to separation escalated post separation. Even worse was that this damaging behaviour was inadvertently enabled, legitimised, perpetuated and, I fear, normalised for my children.

Victim-survivors face a common belief from family law professionals^[8] that children need a relationship with their father, no matter the abuse they have suffered. As Helen explains:

Despite the overwhelming evidence of continued abuse and countless examples of the ways in which my children were being used as pawns, my own lawyers denied my situation. Routinely my desperate pleas to my lawyers were met with dismissive responses such as “it takes two to tango” and “you can’t clap with one hand”.

This is even worse when the system itself is deliberately used by perpetrators to control and intimidate victim-survivors. Research in Australia^[9] and the United Kingdom^[10] demonstrates this “legal systems abuse” is common in family law.

For Helen, the legal system was a core component of family violence:

Being caught in the family law system felt very dangerous. I was in an impossible situation, with no way out and no way of protecting my children.

What needs to be done?

This bill makes important progress, but there are two main reasons why it doesn’t go far enough.

It must allow histories of violence

First, the bill needs to be stronger in recognising where family violence has occurred.

In the bill, there will be six principles to help judges, lawyers and parents decide what arrangements would be in children’s best interests. The bill includes reference to “safety” as one of these six principles, but at the same time proposes to remove a reference in the current law^[11] to a history of violence in considering the best interests of children.

Simplification of the law shouldn’t come at the cost of harm. As family law expert Zoe Rathus from Griffith University explains:

Talking about safety is talking about the future. Talking about violence is talking about the past – and talking about the past is critical to women and children being able to tell their stories when they have experienced family violence.

There’s significant evidence that many victim-survivors’^[12] allegations of family violence aren’t believed, and their experiences are minimised in the family law system^[13].

Read more: Separated parents and the family law system: what does the evidence say?^[14]

Helen’s own lawyers advised her not to raise her experiences of past family violence in her case, for fear it would be held against her:

I believed that the family law system would provide my children with the safety and support that they rightfully deserved. What I experienced was an incredibly lengthy, frightening and financially depleting process. Family violence is what led me into the family law system, yet despite the irrefutable evidence, it was routinely ignored.

As it stands, this bill reinforces this problem. It suggests we should ignore information and evidence about past violence, and pretend it isn’t relevant to the future safety of victim-survivors or the children at the heart of these arrangements.

To address this, the bill should retain the provision that allows evidence of any family violence to be considered.

It must recognise ‘legal systems abuse’

Second, the bill needs to do more to address legal systems abuse^[15].

A major achievement of this bill is it will introduce a new power for judges to make orders that stop people bringing court proceedings where it would cause harm to the other family members involved.

However, it needs to go further. The bill needs to reflect global evidence and finally recognise “systems abuse” as a form of family violence.

Systems abuse could be explicitly listed as an example of family violence in the Family Law Act 1975^[16], as recommended by a recent unpublished study by Lucy Foster from Monash University.

We believe the bill could add systems abuse into the existing definition of family violence used in law.

Read more: No simple solution when families meet the law^[17]

It’s important parliament takes this opportunity to get our family laws as strong as possible on the issue of family violence.

We support Helen in her hope for this new law:

Although too late for me and my children… I am hopeful this time we have the courage to step up and deliver a Family Law Act that does not further damage the lives of vulnerable people. Simple changes such as recognising past violence can make all the difference. The proposed changes do not seem to go far enough to address the harms inflicted on vulnerable people before the family law system, overwhelmingly women and children.

The authors would like to acknowledge Helen Politis, who coauthored this article. Helen is a workplace advisor and advocate. She works with organisations, including 1800 Respect and the Judicial College of Victoria towards ending family violence.

References

1. ^{^} Family Law Amendment Bill 2023 (www.aph.gov.au)
2. ^{^} proposes to (classic.austlii.edu.au)
3. ^{^} insistent calls for change (www.anrows.org.au)
4. ^{^} equal shared parental responsibility (classic.austlii.edu.au)
5. ^{^} Many people believe (consultations.ag.gov.au)
6. ^{^} Recent data (www.fcfcoa.gov.au)
7. ^{^} more harm and control (papers.ssrn.com)
8. ^{^} common belief from family law professionals (hdl.handle.net)
9. ^{^} Australia (journals.sagepub.com)
10. ^{^} the United Kingdom (assets.publishing.service.gov.uk)
11. ^{^} reference in the current law (classic.austlii.edu.au)
12. ^{^} victim-survivors’ (theconversation.com)
13. ^{^} minimised in the family law system (search.informit.org)
14. ^{^} Separated parents and the family law system: what does the evidence say? (theconversation.com)
15. ^{^} legal systems abuse (dfvbenchbook.aija.org.au)
16. ^{^} Family Law Act 1975 (classic.austlii.edu.au)
17. ^{^} No simple solution when families meet the law (theconversation.com)