A Q&A with Attwood Marshall Lawyers Family Law Special Counsel Hayley Condon on the latest overhaul of the Family Law Act. She delves into the government’s stated aim of putting the paramount focus on the best interests of the child, the implications for parenting arrangements and how the changes could play out in practice.
A raft of significant changes to Australia’s family law system came into force on 6 May 2024.
The government hopes the Family Law Amendment Act 2023 will simplify the assessments the Family Courts use to make parenting orders by introducing six key factors that judges will need to consider, focused on the child’s best interests. These factors include:
- The child’s safety,
- The child’s preferences,
- The developmental, psychological, emotional and cultural needs of the child,
- The caregiving capacity of the parents involved,
- What benefit the child receives from the parental relationship, and
- Anything else that is relevant to the circumstances of the child.
Another big change is the removal of the presumption of “equal shared parental responsibility,” which since its introduction in 2006 has commonly been misunderstood to create a right to equal time arrangements, prolonging conflict among families.
Other reforms include new guidance on joint-decision making, new requirements for Independent Children’s Lawyers, amended enforcement provisions for child-related orders, as well as expanded definitions of “relative” and “member of the family” to take into account Aboriginal and Torres Strait Islander concepts.
When the amendments first passed through Parliament in October 2023 there were a range of reactions, from claims that the new system will be unfair to fathers, to praise that the changes will give the courts a better and more complete picture in cases with family violence.
Here, Family Law Special Counsel Hayley Condon provides a comprehensive understanding of how the amendments will affect parenting arrangements, shedding light on why they are necessary and what they entail.
Q: Before we dive into your thoughts on the effects of these changes, can you explain why the legislation needed reforming?
I think these changes have been made in response to a greater focus in society on domestic and family violence. And quite rightly. It can be argued that the way the legislation is presently structured can lead to orders that are not in the best interest of children.
Previously, a presumption that it’s in the best interest of the child for each of their parents to have shared parental responsibility for major long-term decisions applies unless it was rebutted by evidence – evidence of family violence, for example abuse of that child or abuse of another child who is also a member of the parent’s family.
So, if you had a situation where there was family violence within a separated family, it could therefore be argued that the previous legislation victimized the aggrieved by requiring them to put sufficient evidence before the court to rebut the presumption. That leads to additional stress and additional cost to the party who might already be struggling with the effects of family violence, having to flee a home and start again, perhaps with very little resource.
Once the court reinforces shared parental responsibility, it then considers whether equal time arrangements are in the best interests of the child or reasonably practicable, as a starting point. If not, the Court is then required to consider significant or substantial time.
Q: Has “the presumption” of shared parental responsibility been replaced with anything?
The court’s paramount consideration when making a parenting order will be “What is in the best interest of the child?” And they’ve simplified that assessment so that it’s based on six key factors, down from 14 which was the former process.
In my view, the amendments very much make parenting orders entirely at the discretion of the presiding judicial officer. There is no longer a specific regulatory framework that a judicial officer needs to follow when making an order, because the presumption has been removed. The focus appears now to be on what is in the best interest of the child.
Q: When the government was consulting on these changes, it said that there was industry consensus that “Equal Shared Parental Responsibility” was confusing and so needed to be addressed. Do you agree?
I think there was certainly a misconception that the presumption of equal shared parental responsibility meant equal time – that the child or children would spend equal time with each household, which was simply not the case. And that confusion required solicitors to give advice as to the distinction between the two.
Q: What do you say in response to criticism that the removal of the presumption will be unfair to Dads?
I can understand the concern out there. Removing the presumption has meant that it’s entirely open to the court as to what order they make for parental responsibility.
I think it’s going to result in a far greater obligation on the non-primary carer parent to show the court that they can work with the other parent, that the pair can cooperate and that they can make decisions together, for a court to be prepared to make an order of shared parental responsibility.
Typically, I still tend to see that it’s the fathers who fall into the role of non-primary carer within the relationship, even if they’re still involved with their children and provide support. A number of families still take on those traditional roles: that Mum will be the primary carer and stay at home and look after the children, and Dad will support the family unit financially. You see it in same sex relationships too, where there is often one individual who takes on the primary carer role.
These changes could potentially result in fewer orders for equal shared responsibility being made.
Q: So, the focus is very much on making sure that for families where domestic violence is not a factor, cooperation is key?
Yes, it simply means that both parents need to be involved in the lives of their children and in the decision-making while they are together. So, if there is a separation and there is a dispute over parental responsibility, then that evidence can be drawn upon to show that notwithstanding the fact the parents are separated, it is in the child’s best interest for both parents to remain involved.
Section 61C still remains, which states that each of the parents of a child who is not 18 has parental responsibility for that child, regardless of whether the relationship is intact, or not, or if a parent enters a new relationship.
And there will be a new Section 61CA, which says that if it is safe to do so, and subject to any court order, the parents of a child who is not yet 18 are encouraged to consult with each other about major long-term issues. That is very much the definition of parental responsibility.
The new legislation is, in my view, still giving a guide to parents that, if it is safe, it is appropriate for both parents of a child to have a shared parental responsibility and make the major decisions in a child’s life. But it’s no longer a presumption or a prescription.
Q: And in cases where there is alleged domestic violence?
There is a repeated reference to safety throughout the new amendments. That if it’s safe to do so, certain orders can be made.
I’m very curious as to what that ultimately will mean in practice. What does it mean in terms of orders, when considering safety, and what does that mean for the court’s scrutinization of protection orders? Particularly protection orders where there hasn’t been a finding that an act of domestic violence has been perpetrated – so a domestic violence order that has been made on a Without Admission basis, which can be in place, at least in Queensland, for a standard period of five years unless the court orders otherwise. Particularly in cases where the parties are not in a position to fight the allegations, because they cannot afford it. What impact is that going to have? Or perhaps more correctly, how are the courts going to consider those types of protection orders now in light of the new framework that now applies? It’s very much a wait and see.
Q: Do you think these reforms, as a whole, will be a success? Or could more have been done?
I think that’s a very hard question to answer until we start to see decisions that are being made with the new changes to the parenting section of the Family Law Act, before we’re able to comment. Some of these amendments will only apply to cases which have commenced after the legislation comes into force, so it’s going to be a while until we start to see the full impact of these decisions with judicial determinations.
Attwood Marshall Lawyers – experts in family law
Attwood Marshall Lawyers has a dedicated team of family lawyers who practice exclusively in this complex and highly emotional area of law. Our team are experienced in handling parenting matters, as well as helping people navigate separation and divorce, negotiate property settlements and financial agreements, and support people facing domestic and family violence.
If you need assistance with a family law matter, please contact our Family Law Department Manager, Donna Tolley, on direct line 07 5506 8241, email dtolley@attwoodmarshall.com.au or free call 1800 621 071.
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