At the end of 2023, the Australian Parliament 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 legal changes commenced on 6 May 2024.
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.
In this article, we examine:
- The old law between 2006 – 2024;
- Why was the law changed; and
- What the new laws are now.
Old Law between 2006 – 5 May 2024
Under the old law there was a presumption in the family law that both parents had ‘equal shared parental responsibility’ for their children. This presumption was significant because it also meant that the court had to start from the premise that children should spend equal time with each parent, if their parents separated. The presumption did not apply if it could be established that the child was at risk of family violence in relation to one of the parents – in which case the court could make a parenting order in accordance with the best interests of the child.
Why was the law changed?
The presumption of equal responsibility and equal time (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 inappropriate arrangements to be made for the children’s care. 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.
The introduction of the Presumption had been driven by specific interest groups pushing for equal time ‘custody’. It has since been found that the presumption often led to unjust outcomes and compromised the safety of children. Expert literature and further studies revealed that the legal framework between 2006 and 5 May 2024, did not facilitate the making of arrangements that were developmentally appropriate for children and that “more time” does not necessarily equate with better outcomes for children. Indeed, concerns were also raised about substantial (shared) care-time arrangements being detrimental to the developmental needs of very young children.
Attorney-General, the Hon Mark Dreyfus KC MP, stated that these 2006 provisions inhibited separated families’ ability to put into practice post-separation parenting arrangements that aligned with the most important principle: that the best interests of children must come first.
Accordingly, the requirement for the court to consider equal time (or substantial and significant time) has now been abolished under the new laws.
What are the new laws?
- Removal of the presumption of equal responsibility and equal time
From 6 May 2024, the Presumption has been abolished and 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 such as the Law Council of Australia, have supported this change as better able to protect children, as well as parents who are victim-survivors of family violence.
Without being constrained by the presumption, the court can still make orders for shared parental responsibility and equal time, if such outcomes are found to be 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.
Summary
The recent changes to the law will now ensure that the court will make decisions in parenting matters on a case-by-case basis with the clear focus being what is in the best interests of the child. The new laws also amplify children’s voices and bolster protection for victim-survivors of family violence.
Please note that 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 here or email [email protected].