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Bringing the best interests of the child back to the forefront of family law proceedings

On 19 October 2023 the Australian Federal Parliament passed the Family Law Amendment Bill 2023 (‘the Bill’) which, following the granting of Royal Assent, is expected to be given effect May 2024. The Bill contains a number of reforms to Australia’s family law system with the aim of ensuring that the system is simpler, safer, and more accessible for separating families and their children. One of the most significant reforms is the repeal of the presumption of equal shared parental responsibility and the related mandatory consideration of time provisions, which have led to equal time orders in many cases.  

This reform was recommended in the Australian Law Reform Commission’s (‘ALRC’) 2019 Inquiry into the Family Law System and has been supported by key legal stakeholders including the Law Council of Australia and Women’s Legal Services Australia. 

Under the previous law it was presumed that parents have equal shared parental responsibility. This responsibility extended to decisions relating to the care, welfare and development of a child such as the child’s living arrangements and schooling. The presumption could be rebutted if the child was at risk of family violence, or it would not otherwise be in the child’s best interest. Where the presumption did not apply, the court would make orders as to parental responsibility in accordance with the best interests of the child.   

In support of the reform, the Law Council of Australia highlighted the problems associated with a presumption of equal shared parental responsibility. These issues include: 

  • The fettering of the court’s discretion by prioritising a particular parenting arrangement 
  • Detracting from the needs of the individual child due to a focus on parental responsibility  
  • Promoting community misunderstanding of the law and encouraging agreement to poor parenting arrangements outside of court 
  • Operating as an additional burden on vulnerable parties who must persuade the court that the presumption is rebutted because of family violence.  

The removal of the presumption will mean that the court must decide on the allocation of parental responsibility on a case-by-case basis with the paramount focus being on the best interests of the child. This aims to better protect the children of parenting matters as well as victim survivors of family violence.  

Consequently, Section 65DAA of the Family Law Act 1975, which currently provides that the court must consider ordering equal time/substantial and significant time with each parent in certain circumstances in matters where an order of equal shared parental responsibility was made, has been repealed.  

The Federal Circuit and Family Court of Australia (‘the Court’) will still be able to make orders for shared parental responsibility and equal time, if such outcomes are in the best interests of the child. As part of the amendments, the best interest principles have been distilled into those contained in Section 60CC of the Family Law Act 1975 being six core considerations: 

  1. The arrangements necessary to promote the safety of the child and all individuals responsible for the child’s care;  
  2. Any views expressed by the child;  
  3. The child’s needs, encompassing developmental, psychological, emotional and cultural aspects;  
  4. The capacity of each person with parental responsibility, whether current or proposed, to meet the child’s developmental, psychological, emotional and cultural needs;  
  5. The benefits to the child in having a meaningful relationship with their parents, and people significant to the child;  
  6. Any other factors that the court deems relevant to the specific circumstances of the child. 

These refined principles seek to streamline the process for individuals navigating the family court system and clarify any prior confusion concerning the factors the court considers when determining the child’s best interests in parenting proceedings. 

A dedicated provision for Aboriginal or Torres Strait Islander children has also been introduced within Section 60CC(3)(h) of the Family Law Act 1975. The section requires the court to consider “the child’s opportunities to connect with, and maintain the child’s connection to, the child’s family, community, culture, country and language” and development of a full appreciation of their culture and fulsome exploration of their culture when determining the best interests of Aboriginal or Torres Strait Islander children. This aims to acknowledge the unique needs and cultural rights of Aboriginal or Torres Strait Islander children.  

The repeal of the presumption of equal shared parental responsibility is just one of the reforms which have resulted from Parliament’s passing of the Family Law Amendment Bill 2023. Furthermore, the Family Law Amendment (Information Sharing) Bill 2023 was also passed on 19 October 2023, which contains reforms that expand the court’s power to issue information sharing orders. You can read more about these additional reforms here. 

Please do not hesitate to contact Nicholes Family Lawyers if you would like further information about the operation of the Family Law Act 1975 and how it applies to your family.  

By Nicholes Family Lawyers


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