Family Law proceedings and bringing the best interests of the child back in to focus.
Since legislation in 2006, shared parental responsibility has been the starting point for family law matters. After much review and consultation, the Family Law Amendment Bill 2023 ('the Bill') was passed by the Australian Federal Parliament on 19 October 2023. Following the granting of Royal Assent, it is expected the Bill will be given effect May 2024. The Bill contains a number of reforms to Australia’s family law system.
The aim being to ensure 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 to date have led to equal time orders in many cases.
The current, soon to be previous law applied a presumption that parents have equal shared parental responsibility. This responsibility extended to decisions relating to the care, welfare and development of a child such including child’s living arrangements and schooling. If the child was at risk of family violence, or it would not otherwise be in the child’s best interest the presumption could be rebutted. In circumstances where the presumption did not apply, the court would make orders as to parental responsibility in accordance with the best interests of the child.
With the removal of the presumption, the court must decide on the allocation of parental responsibility on a case-by-case basis, 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.
As a result, s 65DAA of the Family Law Act 1975 has been repealed. The section 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.
If considered to be in the child's best interests, the Court will still be able to make orders for shared parental responsibility and equal time.
It is hoped that these refined principles will 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.
The repeal of the presumption of equal shared parental responsibility is just one of the reforms which have resulted from the passing of the Family Law Amendment Bill 2023.
Please do not hesitate to contact our office to find out about the operation of the Bill and how it may impact your family.
Best interest principles:
- The arrangements necessary to promote the safety of the child and all individuals responsible for the child’s care;
- Any views expressed by the child;
- The child’s needs, encompassing developmental, psychological, emotional and cultural aspects;
- The capacity of each person with parental responsibility, whether current or proposed, to meet the child’s developmental, psychological, emotional and cultural needs;
- The benefits to the child in having a meaningful relationship with their parents, and people significant to the child;
- Any other factors that the court deems relevant to the specific circumstances of the child.
