The Australian Law Reform Commission report, ‘Family Law for the Future: An Inquiry into the Family Law System (Report 135)’ was tabled on 10 April 2019. The ALRC made 60 recommendations for reform in relation to the practise and procedures of family law in Australia. In summary, the recommendations aim to:
- Abolish the Federal Family Courts and for family law disputes to return to the States and Territories
- Simplify the determination of children’s living arrangements
- Remove mandatory considerations of particular living arrangements
- Implement stricter case management to promote the early resolution of family law disputes
- Ensure stricter compliance with children’s orders
- Simplify the determination of property division
- Encourage amicable dispute resolution, and
- Simplify the Family Law Act 1975 (Family Law Act) to make it easier to understand.
The first major changes came into effect on 1 September 2021 with the amalgamation of the Family Court of Australia and Federal Circuit Court of Australia. The respective Courts merged to form the Federal Circuit and Family Court of Australia (FCFCOA) which comprises two Divisions under a single set of Rules. Amongst other reforms, the new Family Law Rules place greater emphasis on dispute resolution between parties to family law proceedings, an increased focus on assessing risk, and the efficient and timely determination of matters before the Court.
More recently, the Australian Federal Government tabled three further Bills in Parliament on 29 March 2023, namely the:
- Family Law Amendment Bill 2023
- Family Law Amendment (Information Sharing) Bill 2023, and
- Social Services Legislation Amendment (Child Support Measures) Bill 2023.
The purpose of this article is to evaluate the proposed reforms aimed at simplifying the determination of children’s living arrangements and removing the mandatory considerations in certain parenting matters.
Repeal of the presumption of equal shared parental responsibility
Section 61DA of the Family Law Act currently provides that, when making a parenting order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility.
Parental responsibility is defined as the duties, powers, responsibilities, and authority which, by law, parents have in relation to children. This includes, for example, decisions relating to a child’s religion, medical, and/or educational development.
The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in abuse of the child or family violence.
Furthermore, Section 65DAA of the Family Law Act currently provides that, if parenting orders provide that a child’s parents are to have equal shared parental responsibility, the Court must consider whether the child spending equal time with each of the parents would be in the best interests of the child and is reasonably practicable.
If an order is not made for the child to spend equal time with each of the parents, the Court must consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child and is reasonably practicable.
The proposed reform would repeal the presumption of equal shared parental responsibility, and the requirement for the Court to consider whether the child spending equal or substantial and significant time with each of the parents would be in the best interests of the child and reasonably practicable.
In its current form, the proposed reform also includes a provision for parents to consult with each other about major-long term issues in relation to the child and, in doing so, have regard to the best interests of the child as the paramount consideration, if it is safe to do so and subject to any Court Orders.
Simplify the determination of children’s living arrangements
Section 60B of the Family Law Act currently sets out the objects and principles to ensure that the best interests of children are met. Notably, this includes (but is not limited to) reference to “ensuring that the best interests of children are met by ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child”, and “protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence”.
The proposed amendments provide for Section 60B to be repealed and substituted with the following:
- To ensure that the best interests of children are met, including by ensuring their safety; and
- To give effect to the Convention on the Rights of the Child done at New York on 20 November 1989.
Furthermore, Section 60CC of the Family Law Act currently sets out how a Court determines what is in a child’s best interests.
Section 60CC contains two primary considerations, namely 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. In applying the primary considerations, the Court is to give greater weight to the need to protect children from harm.
Section 60CC contains 14 additional considerations which include, for example, the nature of the relationship with the child and any other persons including any grandparent or other relative of the child. The Court has discretion to determine how much weight (if any) should be given to an additional consideration on a case-by-case basis.
The proposed amendments provide for Section 60CC to be simplified. Under the proposed reforms, the Court would be required to consider the following factors:
- What arrangements would promote the safety (including safety from family violence, abuse, neglect, or other harm) of:
- the child, and
- each person who has care of the child (whether or not a person has parental responsibility for the child)
- Any views expressed by the child
- The developmental, psychological, emotional and cultural needs of the child
- The capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child’s developmental, psychological, emotional and cultural needs
- The benefit to the child of being able to have a relationship with the child’s parents, and other people who are significant to the child, where it is safe to do so, and
- Anything else that is relevant to the particular circumstances of the child.
Additional considerations apply if the child is an Aboriginal or Torres Strait Islander child. These include, for example, the child’s right to enjoy the child’s Aboriginal or Torres Strait Islander culture, and the likely impact any proposed parenting order would have on that right.
Conclusion
The proposed reforms aim to simplify the determination of children’s living arrangements and remove the mandatory considerations of particular living arrangements. Most notably, this includes repealing the presumption of equal shared parental responsibility.
The relevant Explanatory Memorandum details the basis for the proposed reform which includes reference to substantial evidence of community misconception about the law insofar as it relates to a parent’s entitlement to equal time, rather than an assessment of what arrangements serve the child’s best interests. The Explanatory Memorandum also notes that this misunderstanding may lead parents to agree to unsafe and unfair arrangements or encourage parties to prolong litigation based on the incorrect expectation of equal time.
The Explanatory Memorandum further provides that the repeal of the presumption of equal shared parental responsibility will ensure that the law focuses on the child’s needs, especially in matters involving allegations of family violence or other complex issues. It will also ensure that the purpose of the parenting framework is clearer, assisting parents settling their matters outside of court to more accurately and easily navigate the law. The changes will help to ensure out-of-court settlements place the best interests of the child at the forefront, and that decisions about parenting arrangements are not influenced by misunderstandings about parental rights and responsibilities.
The Family Law Amendment Bill 2023 was introduced and read a first time on 29 March 2023. A second reading was moved on the same day, however, no proposed amendments have been circulated at this stage.
This article was written by Stefan Pantellis (Senior Associate) and Monica Blizzard (Director).
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