The Australian Parliament has recently passed significant changes to the Australian family law system aimed at ensuring that the best interests of children are at the centre of all parenting decisions.
These amendments aim to foster a more efficient, equitable, and responsive family law system by refining the legal framework surrounding parenting matters and facilitating improved information sharing.
Equal and Shared Parental Responsibility
Prior to these reforms, there was a presumption in the family law that both parents had ‘equal shared parental responsibility’ for their children.
If the Federal Circuit and Family Court of Australia (the ‘Court’) was asked to make orders about parenting arrangements, it was required to presume that both parents would take a role in making decisions about major issues for their children (e.g. schools, religious practice, and medical treatment). The presumption could be rebutted (such as if the child was at risk of family violence in relation to one of the parents), in which case the Court could make an order for parental responsibility in accordance with the best interests of the child.
The presumption was criticised as part of the Australian Law Reform Commission’s 2019 Inquiry into the Family Law System. It was found to have restricted the Court’s ability to make the best decisions for each child, focusing too much attention on parents’ interests, and making it more likely for parents to agree to inappropriate arrangements out of court because of confusion about the meaning of the presumption. It also put extra pressure on vulnerable people who had to prove to the Court that the presumption did not apply due to family violence.
Removal of Presumption
From 6 May 2024, the presumption of equal and shared parental responsibility will no longer be applied (except in final hearings that have already commenced by that date).
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. Key legal stakeholders, including the Law Council of Australia and Women’s Legal Services Australia, have supported this change as better able to protect children, as well as parents who are victim-survivors of family violence.
It is important to note that the Court can still make orders for shared parental responsibility and equal time, if such outcomes are in the best interests of the child. In determining what orders to make, the Court will consider six core factors:
- 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.
In addition, a dedicated provision has also been introduced that requires the Court to consider the child’s connection to ‘family, community, culture, country, and language’ when determining what is in the best interests of Aboriginal or Torres Strait Islander children.
Other Amendments
As part of the broader reform of the Australian family law, the Government has also introduced substantial changes to facilitate seamless information exchange among relevant agencies. It establishes new information sharing orders, enabling the Court to promptly access critical data from police, child protection, and firearms agencies concerning family violence, child abuse, and neglect.
These measures aim to bolster efforts in safeguarding individuals, particularly children, from harm.
Another important aspect of the reforms is the expanded power granted to protect parties and children from the detrimental effects of prolonged litigation and streamlined compliance and enforcement procedures concerning orders related to children. The amendments also empower the Independent Children’s Lawyer to directly engage with children, amplifying their voices in family law proceedings.
This is general information only and you should obtain professional advice relevant to your circumstances. If you or someone you know wants more information or needs help or advice, please contact us on 02 9792 8413 or email [email protected].