Family Law Amendment Bill 2023 Submission — Concern for Impact on Children

This document is a submission in response to the proposed Family Law Amendment Bill 2023.

The current section 60CC (2) in in the Family Law Act 1975 states, “The primary considerations are: (a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and (b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.”

The 60CC (2) section of the current law is the greatest protection children currently have of being able to have both parents in their lives. Indeed I see the protection provided by “the benefit to the child of having a meaningful relationship with both of the child’s parents” (along with “the need to protect the child from physical or psychological harm”) as being the primary function of the Family Law Act.

The proposed Family Law Amendment Bill 2023 changes section 60CC to have seperate considerations based upon “if the child is an Aboriginal or Torres Strait Islander child” (proposed new section 60CC 1 b). The author of this submission is not Aboriginal or Torres Strait Islander and makes no comment in relation to this change.

The proposed Family Law Amendment Bill 2023 (for non-indigenous children) also changes the exisiting protection from harm and benefit of a meaningful relationship with both parents as the “primary considerations” followed by a set of 14 “additional considerations”; replacing both with a single set of 6 “general considerations”.

This submission objects to the removal of exisiting protection from harm and benefit of a meaningful relationship with both parents as the primary considerations from the family law act. Specifically removal of the clarity of the benefit to the child of having a meaningful relationship with both of the child’s parent protection by diluting these primary considerations, as proposed in the 2023 Amendment Bill as it now stands, will put thousands of children at risk of losing one of their parents from their lives, which will have severely damaging consequences for most if not all those children.

According to the Center for Disease Control in the United States, children from fatherless homes account for 90% of homeless and runaway children; 71% of high school dropouts and 63% of youth suicides.
(see also the TED presentation by Marilyn York)

Explanation of the Concern

1. There is financial incentive in the way child support is structured for a non-working parent to restrict the access a child has to their other parent
2. It is also the case that parents choose to restrict their child’s access to the other parent for reasons that are not best for the child
3. The court has limited to zero visibility on this phenomena
   (unlike protection from harm which can be easily demonstrated)
4. Removing the clarity of the primary considerations being protection from harm and the benefit of the child to have a meaningful relationship with both parents means that the importance of the relationship of the child with their other parent is no longer recognised by the courts as primary
5. This will result in many rulings where a child’s access to their non-primary parent is undervalued and therefore significantly reduced
6. The impacts of a child growing up without a relationship with one of their parents are well documented and severely damaging
7. There are certainly exceptions to this, and our current PM is one, however, Albanese aside, people who grow up without one of their parents are far more likely to suffer homelessness and suicide.

Summary

This submission objects to the proposed change of removal of protection from harm and benefit of a meaningful relationship with both parents as the sole primary considerations in family court proceedings, highlighting the risk to children if the court does not focus on this.

That change in the Family Law Amendment Bill 2023 proposal fails to consider the fact and prevalence of parents who seek to prevent or limit their child’s access to the child’s other parent for reasons that are vindictive, financial, or otherwise misguided.

The primary consideration of the benefit to the child of having a meaningful relationship with both of the child’s parents stands as the protection for children in this situation. The family law courts can currently be used with some level of confidence to ensure the protection of that benefit for a child in the situation where one parent seeks to prevent it.

A change to the law that reduces the protection of children to have a meaningful relationship with both of their parents would result in more children growing up missing out on having one of their parents in their lives. This has devastating consequences to the individual children and families involved, and is also greatly damaging to society.

Suggestions

1. Keep seperate considerations for non-indigenous and Aboriginal or Torres Strait Islander children in the amendment bill
2. Change the bill so that primary considerations remain just as they are in the current Family Law Act, undiluted by other considerations
   (ie. the benefit to the child of having a meaningful relationship with both of the child’s parents; and the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence)
3. Adjust child support payment structures so that the financial incentive to restrict the child’s time with their other parent is removed

About the Author

Kris Randall is an advocate for children’s rights and the author of Family Court for Fathers.