The Unfamiliar Family Law
Une Famille Pauvre (1843)
The Family Law Amendment Act 2023 (Cth) [1] is a landmark reform that introduces the most significant changes to the Family Law Act 1975 (Cth) (‘FLA’) since 2006. The FLAA received Royal Assent on 6 November 2023, with most changes applying from 6 May 2024. It was introduced primarily in response to the recommendations proposed in a report by the Australian Law Reform Commission (‘ALRC’): Family Law for the Future: An Inquiry into the Family Law System. [3] The ALRC report highlighted that the FLA had complex, confusing legislation, provided inadequate protection for people who were at risk of family violence, and resulted in significant court delays. [4]
Equal Parental Responsibility and Equal Time Provisions
The FLAA removed two sections of the FLA. First, the s 61DA of the FLA presumption of ‘equal shared parental responsibility’ and second, the s 65DAA requirement of the court to consider ‘equal time with each parent’ when making a parenting order. [5] Parental responsibility refers to a parent’s responsibility to make important long-term decisions about their children such as their name, medical decisions, place of residence, schooling, and religious and cultural upbringing. [6] The presumption of equal shared parental responsibility was often incorrectly conflated with s 65DAA of the FLA, giving parents a right to equal time with their children. The combination of these sections created confusion and prioritised the favouring of particular parenting arrangements. [7] This often led to parents entering negotiations and litigation based on mistaken assumptions about their entitlements to equal time with their children. Unrepresented parties often believed that they had no choice but to agree to equal parenting time and enter into informal agreements based on their misapprehension of the law.
The FLAA aims to rectify this, providing that a parenting order allocating parental responsibility will be solely based on what is in the ‘best interests of the child’. [8] The presumption of equal shared parental responsibility was replaced with a presumption of ‘joint decision making about major long-term issues’. [9] Further, s 61DAB dictates parents are not required to consult with each other regarding decisions that are not major long-term issues if a child is spending time with that parent. [10] The reforms ensure the best interests of the children are at the centre of all parenting decisions made inside and outside the courtroom. [11] S 60CC provides a refined, non-exhaustive list for a court to consider when determining what is in a child’s best interests, including what arrangements would promote safety, the child’s views, and their various needs. [12] The direction of the FLAA improves the clarity and accessibility of the family law system, making it easier for parties to navigate. [13]
Looking Forward
Although it is not yet fully active, the FLAA will change the family law landscape. It shall hopefully bring a level of efficiency to the resolution of matters by prioritising the safety and the best interests of the children involved in a field of law known for its emotional toll on those involved. [14]
[1] Family Law Amendment Act 2023 (Cth) (‘FLAA’).
[2] Family Law Act 1975 (Cth) (‘FLA’).
[3] Australian Law Reform Commission, Family Law for the Future: An Inquiry into the Family Law System (ALRC Report 135, March 2019) <https://www.alrc.gov.au/publication/family-law-report/> (‘ALRC Report).
[4] Ibid.
[5] FLA (n 2) s 61DA; FLAA (n 1) s 61DA.
[6] FLA (n 2) ss 61B, 61C.
[7] ALRC Report (n 3) 19 [1.32].
[8] Ibid s 60CC.
[9] Ibid s 61DA.
[10] Ibid s 61DAB.
[11] Hon Mark Dreyfus, ‘Family Law Amendment Bill’ (Media Release, 19 October 2023).
[12] FLAA (n 1) s 60CC.
[13] Hon Mark Dreyfus (n 11).
[14] Explanatory Memorandum, Family Law Amendment Bill 2023 at [1].
This article was originally published under the title ‘Unfamiliar Responsibilities: The Family Law Amendment Act 2023 (Cth)’ in The Brief Edition 1, 2024 — Through a Glass, Darkly.