Amendments to the Family Law Act: The best interest principles and equal shared parental responsibility
Recently, the Australian Parliament has passed two pieces of legislation amending the Family Law Act 1975 (Cth).
This legislation was introduced with the aim of making the Australian family law system “simpler, safer and more accessible for separating families and their children”.
These amendments are to apply in relation to all proceedings after commencement, as well as proceedings already in the court-system but not subject to final order.
Family Law Amendment Act 2023
The Family Law Amendment Act 2023 was passed on 19 October 2023 and received assent on 6 November 2023.
Most of the changes to the law will apply from 6 May 2024, unless an earlier date is otherwise fixed by Proclamation.
Its purpose is to ensure that the best interests of the children of separating families are prioritised in the family law system.
Several changes will be made to the current Family Law Act 1975 (Cth).
This article briefly discusses the changes to be made in relation to the best interest factors and the repeal of the presumption of equal shared parental responsibility.
Other key amendments include:
- The requirement for the Independent Children’s Lawyer to meet directly with the children;
- Greater powers to protect parties and children from the harmful effects of protracted and adversarial litigation;
- A definition of ‘member of the family’ that is inclusive of Aboriginal and Torres Strait Islander concepts of family and kinship;
- Simplified compliance and enforcement provisions for child-related orders;
- Powers to enable government to regulate family report writers;
- Ensuring that children’s voices are heard more easily in matters under the Hague Convention on the Civil Aspects of International Child Abduction.
Changes to the best interest principles
The current factors outlined under s 60CC, also referred to as the primary and additional considerations of the Court when determining parenting arrangements in the child’s best interest, were critiqued in the Australian Law Reform Commission Report Family Law for the Future: An Inquiry into the Family Law System: Final Report.
The ALRC Report stated that amendments were necessary to simplify, clarify and improve how the best interests of the children are considered in parenting matters.
The amendments see the abolishment of the primary and additional considerations.
Instead, the amendments introduce six general considerations, and two further considerations for Aboriginal or Torres Strait Islander children.
Under the reforms, the Court must consider the following when determining what is in the children’s best interests:
- What arrangements would best promote the safety (including safety from family violence, abuse, neglect, or other harm) of
- The child; and
- Each person who has parental responsibility for the child;
- Any views expressed by the child
- The developmental, psychological and emotional needs of the child;
- The capacity of each proposed carer to provide for the child’s developmental, psychological and emotional needs, having regard to the carer’s ability and willingness to seek support to assist them with caring;
- The benefit to the child of being able to maintain a relationship with both of the child’s parents, and other people who are significant to the child, where it is safe to do so;
- Anything else that is relevant to the particular circumstances of the child.
If the child is Aboriginal or Torres Strait Islander, the Court must look at two additional considerations. Namely, the Court must consider:
- The child’s right to enjoy the child’s Aboriginal or Torres Strait Islander culture, by having the opportunity to connect with, and maintain their connection with, their family, community, culture, country and language;
- The likely impact any proposed parenting order under this Part will have on that right.
Despite the changes, the Court retains their wide-ranging discretion to determine what parenting arrangements are in the child’s best interest.
Equal Shared Parental Responsibility
Currently, s 61DA of the Family Law Act 1975 (Cth) provides that when making a parenting order in relation to a child, the Court must apply a presumption that is in the child’s best interest for the parents to have equal shared parental responsibility for the child.
Section 65DAA, as it currently stands, requires the court to consider a child spending equal time, or substantial and significant time, with each parent when an order of equal shared parental responsibility is made.
This presumption, and consideration of equal or substantial and significant time, have been controversial since their inception.
The Explanatory Memorandum to the Family Law Amendment Bill 2023 outlines that recent inquiries into the family law system have found that the presumption of equal shared parental responsibility is commonly misunderstood as creating a right to equal shared time with children. This has never been the case and has led to inappropriate arrangements for children and increased parental conflict.
Given this, the presumption has been repealed. Under the reforms, there will be no presumption of equal shared parental responsibility.
Parenting arrangements will be based solely on what is in the best interest of the child.
The Court may make orders providing for joint or sole decision making about major-long terms decisions.
The Court may also find that it is in the children’s best interest that one parent has sole decision making in relation to a particular major-long term decision, but both parents have joint decision making in relation to the others.
The Court will still be required to consider the allocation of parental responsibility, and responsibility for decision-making about major long-term issues, when raised by the parties.
Essentially, the wording of the Act has been clarified to avoid conflating the term ‘equal shared parental responsibility’ with equal time.
Family Law Amendment (Information Sharing) Act 2023
The Family Law Amendment (Information Sharing) Act 2023 was passed on 19 October 2023 and received assent on 6 November 2023.
The purpose of the Family Law Amendment (Information Sharing) Bill 2023 is to ensure the courts have access to the full picture of family safety risk in order to prioritise the safety of children and families, particularly in circumstances where there is a risk of child abuse, neglect or family violence.
The main amendments to the Family Law Act introduced by this Act are the following:
- Establishment of two new information sharing orders to allow courts to quickly seek information from police, child protection and firearms agencies about family violence, child abuse and neglect that may place children at risk;
- Allowing a court to make these orders at any time during proceedings so information is accurate and up-to-date, and
- Ensuring sensitive information is only disclosed in a safe and appropriate manner.
This article is not intended to be a complete outline of the amendments to be made to the Family Law act 1975 (Cth).
The team at Feeney Family Law have reviewed the amendments and understand how the law and the decision-making framework in parenting cases is expected to change.
If you have any questions in relation to the changes, please do not hesitate to contact a member of our team.