Have your say about dads and family law
The Albanese Government is planning to reform the Family Law Act, in a move it says will make it “simpler and safer for separating families and their children”.
The proposal has drawn criticism from some campaigners who see it as a move that will negatively and disproportionately impact separated fathers.
Currently, when couples separate, around 3% of cases end up in court, with 1 in 5 being agreed with the help of the wider family law system (i.e. courts, lawyers and mediators).
You can tell us what you think about the Government’s plans by taking part in our online survey.
While the potential impact the proposed changes will have is a subject of ongoing debate, there can be no question that separated dads are a vulnerable group of men that require better support from the Government. According to Government research:
- There are more than half a million separated dads with dependant children
- 1 in 2 separated dads experience physical hurt and/or emotional abuse
- 1 in 3 separated dads experience financial hardship
- Separated dads are 2x more likely to be dissatisfied with life than separated mums
- Separated dads are 7x more likely to be dissatisfied with their relationship with their children
- Separated dads are a high-risk group for suicide
- Only 16% of separated dads have their kids living with them at least half of the time
- Dads with better education and better incomes get better outcomes when they separate
(For more information on these statistics above see the article linked below.)
READ: 10 ways it’s tough to be a separated dad in Australia
With the Government recently committing to measure if its policies are working to improve the lives of all Australians, these statistics show there is an urgent need to provide better help and support to separated dads.
One of the Government’s key gender equality goals is to reduce the gap in the amount of unpaid work (including caring for children) that men and women do. This goal cannot be achieved without increasing the amount of time that dads (including separated dads) spend taking care of their children.
This provokes an interesting question: should the Government be taking action to increase the proportion of time that children in separated families spend living with their dads?
Complete our online family law survey here
What changes is the Government proposing?
Some of the proposed changes are based on recommendations from the Australian Law Reform Commission. The changes that are of most relevance to separating dads include:
1. No more presumption of “equal shared parental responsibility”
In Australia, parental rights are referred to as “parental responsibility” (PR) and include the right to make key decisions on issues such as a child’s health, welfare and education.
In theory, all parents have automatic PR until such time as a court orders otherwise. In practice, most separated dads are not involved in major decisions about their children’s lives, even when they have PR.
It is argued that the current legal presumption that separated mums and dad should have “equal shared parental responsibility” has been widely misunderstood to mean dads have a right to equal time with their children, which they do not.
In practice, while over 90% of separating dads who resolve matters through lawyers and mediation are granted shared PR, only 40% of dads who go to court are granted shared PR, with sole PR being awarded to 41% of mums and 11% of dads in cases decided by a judge.
While the ALRC proposed replacing the equal shared PR presumption, with a new presumption of “joint decision-making about major long-term issues”, the Government has decided to ignore this recommendation and simply remove the presumption of shared responsibility all together.
2. No more automatic consideration of equal time for mums and dads
Where orders for equal shared parental responsibility are made, the courts currently have to consider whether orders for the child to spend equal or "substantial and significant" time with each parent are practical and in the child’s best interests.
Shared care time is defined as an arrangement where children spend at least 35% of their time living with each parent. In general, 95% of separated mums have their children living with them at least 35% of the time compared with 26% of separated dads.
In cases that go to court, a significant minority of dads (36%) are given care of their children for at least 35% of the time, as are the majority (83%) of mums.
The Government is proposing that the the ALRC's recommendation that the requirement for courts to consider, in certain circumstances, the possibility of the child spending equal time, or substantial and significant time with each parent, should be repealed.
Judges will still be able to make orders that give separated dads equal or significant time caring for their children.
3. No more focus on meaningful relationships
The current law requires the court to consider "the benefit to the child of having a meaningful relationship with both of the child’s parents”.
The ALRC has recommended that the focus on "having a meaningful relationship" with both parents is replaced with the requirement to consider "the benefit to the child of being able to maintain relationships with each parent......where it is safe to do so".
The Government says this change is necessary so that it is not presumed that a relationship with a parent is necessarily in the child’s best interests, even when the child has had no relationship with the parent to that point.
This change may be particularly concerning for separated dads who, for whatever reason, have been unable to establish a relationship with their children prior to going to court.
4. A new focus on making enforcement simpler
While many separated dads have court orders confirming the times when they children should be in their care, breaches of court orders are common.
Recent research found that even with serious breaches of parenting orders, most dads don’t take action for a variety of reasons. In 72% of cases where a dad’s court order was breached, the most common reason given for not going back to court was that it was impractical to do so in light of repeated breaches of the order.
The Government says it wants to make the consequences of not complying with parenting orders clearer and more straightforward. These proposed changes are designed to help parents understand the importance of complying with parenting orders unless there is a reasonable excuse not to.
This follows a recommendation by the ALRC to simplify the law and make it clear that courts have power to:
- order that a child spend additional time with a person;
- order parties to attend relevant programs at any stage of proceedings; and
- award costs against a person found to have contravened an order.
Take Action for Men's Health
View the Family Law Amendment Bill 2023 (submissions close 27 February 2023)
Have your say on plans to reform Family Law: take part in AMHF's online survey
Read: 10 ways it’s tough to be a separated dad in Australia (AMHF, 22 February 2023)