Over the decades, the legislative approach to children’s arrangements set out in the Family Law Act 1975 (the Act) has been a heavily debated, vexed area of family law in the political and public domain. Family lawyers have always needed to be very careful when setting client expectations.

In the early 2000s, a raft of amendments were made to the Act which signalled a deliberate ideological shift to promoting shared parental responsibility and both parents spending equal or significant time with their children.

These changes are about to be largely wound back.

After two decades of court decisions and countless negotiated settlements, the practice of family law is now set for another big shake up. For once large swathes of words are being removed rather than inserted into the Act!

The Family Law Amendment Act 2023 will come into operation on 6 May 2024. It includes sweeping changes to the steps the court must take when deliberating on children’s living arrangements and parental responsibility. Briefly, those changes are as follows.

SIMPLIFICATION OF THE BEST INTERESTS OF THE CHILDREN FACTORS

Previously there were 16 factors that the Court had to consider when determining whether parenting arrangements were in the best interests of the children involved. That has been reduced to a manageable six factors. These factors are:

• promoting the safety of children and their carers
• views expressed by the child
• the developmental needs of the child
• the capacity of carers responsible for the child to provide for those needs
• the benefit of the child being able to have a relationship with significant persons to the child, and
• anything else relevant to the child.

What this means: Whilst any simplification is welcome, there are a number of matters that will also continue to be relevant to children’s orders, such as the practicalities of each parent spending time with the child given geographic or work factors and making orders which are less likely to lead to further court proceedings. However, the intention of the amendment is to allow greater focus on the best interests of a child when determining parenting arrangements.

FAREWELL TO THE PRESUMPTION OF JOINT PARENTAL RESPONSIBILITY

Parental responsibility translates to decisions such as where a child goes to school and medical treatment options. Previously, the starting point for a court had to be that both parents shared in this responsibility unless there was evidence to rebut it. That presumption is now gone.

What it means: There may be greater claims for sole parental responsibility where there are circumstances which justify it. Greater consideration may now be given to evidence supporting a history and ability to take part in and drive decisions about the children, and generally cooperating with the other parent.

COURT NO LONGER REQUIRED TO CONSIDER EQUAL OR SUBSTANTIAL TIME

Previously, the legislation required that if an order was made for parents to have joint responsibility, the court had to consider firstly the child spending equal time or (if this was found to be inappropriate) significant and substantial time with both parents. Whilst it was only ever ‘consider’, this framework led to much conjecture that both parents were entitled to equal time no matter what. This structure has now been removed.

What it means: Whilst the words ‘equal time’ and ‘substantial and significant’ have been removed from the Act, two decades of case law remain which have significantly shifted expectations about reasonable parenting arrangements. We expect that many cases, whether they go to judgement or have negotiated outcomes, will still result in substantial time arrangements being put in place (whether that is equal or not).

However, the removal of this structure may free up courts to contemplate arrangements which are not focused on each parent spending significant time with the child. This may become apparent in high conflict cases, where both parents want to be the primary carer, but struggle to cooperate in any meaningful way with each other, or where there are significant allegations around family violence or other risk issues impacting the safety of the children .

WHERE TO FROM HERE?

These changes will impact matters which are currently on foot, and may also lead to some parents seeking to vary their existing orders.