At first, I presumed, like many others, that the government’s recently announced inquiry into the family law system was an exercise in pure politics – a sop to Senator Pauline Hanson and her constituency of angry white men. Nothing would come of it, as nothing has come from the two big inquiries that preceded it. Another report to languish in a drawer.
But on close reading of those two inquiries – one from the House of Representatives, the other from the Australian Law Reform Commission – I see I was wrong. This new inquiry is not just cynical horse-trading. It is, I believe, a deliberate move by the government to bury the findings of the two inquiries it commissioned.
Both inquiries recommended sweeping changes that would put children’s safety – instead of parents’ rights – back at the centre of our family law system.
One reform, recommended by both inquiries, is so incendiary it’s provoked warnings of reigniting “the gender wars”. It is that the presumption of equal shared parental responsibility – and the mandate for judges to consider the option of shared care – should be abolished, because the evidence shows it is putting children at risk.
Shared parenting is the jewel in the fathers’ rights movement’s crown. After decades of aggressive lobbying on it, they got much of what they wanted from the Howard government in 2006. To remove the presumption of shared parental responsibility from the Family Law Actwould not only undo gains made by the fathers’ rights movement since the 1990s, but also those of the Coalition’s own culture warriors.
How did we get here?
Until the mid-1990s, children’s safety and wellbeing was central to custody decisions. Judges were cautious about ordering children into supervised contact with a father who had been abusive, noting the risk of psychological trauma, and would even refuse access if contact between the mother and the abusive father was likely to diminish her capacity to parent. Overall, the family law system was guided by research that evidenced the importance of stable relationships between children and their primary caregivers.