Back to the future: The Family Law Amendment Act 2023 (Cth)

KEYWORDS:

• Family law reform
• post-separation parenting
• Australia

The Family Law Amendment Act (2023) (Cth) (the amending act), making substantial amendments to Part VII – Children of Australia’s Family Law Act 1975 (FLA), was passed by the Federal Parliament on 19 October 2023. Most of the changes will apply to all new and existing proceedings from 6 May 2024, except where a final hearing has commenced by that date.

Most notably (see further Attorney-General’s Department 2024), the amending act repeals FLA Part VII provisions that have been in place since the so-called ‘shared parenting’ amendments of 2006, along with principles informing interpretation of the parenting provisions that have been in place since amendments in 1996.

The 1996 amendments (Family Law Reform Act 1996 (Cth)) introduced objects and principles in a new section, s 60B, to guide the interpretation of FLA Part VII (Children), including the principle that, unless not in their best interests, children have ‘the right to know and be cared for by both their parents’ (s 60B(2)(a)) and ‘a right to spend time on a regular basis with, and communicate on regular basis with, both their parents’ (s 60B(2)(b)). More significant amendments in 2006 discussed in this note and encouraging shared parenting arrangements (Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth)) were largely a result of pressure brought to bear on the federal Government by fathers’ groups, who were disappointed that the 1996 amendments did not lead to the significant changes in post-separation care patterns that they had hoped for (see further Rhoades 2006, Parker 2015).

Amendments likely to be of most interest to international readers and discussed here are as follows.

1. Repeal of the presumption of equal shared parental responsibility (FLA s 61 DA);

2. Repeal of the requirement that courts proposing to make orders for equal shared parental responsibility consider making orders for equal time, and failing that substantial and significant time, if to do so would be in the child’s best interests and reasonably practicable (FLA s 65DAA);

3. Re-working of objects and principles that apply in parenting cases (s 60B);

4. Simplifying the ‘best interests’ checklist (s 60CC); and

5. Legislative codification of the requirements that independent children’s lawyers meet with children and seek their views.

These amendments implement to varying degrees several recommendations of the Australian Law Reform Commission’s (ALRC’s) 2019 report on the Australian family law system (ALRC report).

Repeal of the presumption of equal shared parental responsibility (FLA s 61 DA)

The removal of FLA s 61 DA(1), which provides that ‘When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child’ is supported on two bases.

The first is the understanding that the presumption as to ‘equal shared parental responsibility’ had been taken to refer to a presumption of ‘equal time’. In fact, the legislation provides that when a court decides to make orders for equal shared parental responsibility the court must ‘consider’ whether orders for equal time, and failing that ‘substantial and significant time’, would be in the child’s best interests and reasonable practicable (FLA s 65DAA(1)).

The second, discussed below, is the consequences of the order for equal shared parental responsibility, in particular the series of consequences triggered by the application of s 65DAA.

An Evaluation of the 2006 amendments by the Australian Institute of Family Studies (AIFS) found that (footnotes omitted):

… many parents and some professionals do not understand the distinction between shared parental responsibility and shared care time, or the rebuttable (or non-applicable) presumption of shared parental responsibility. A common misunderstanding is that shared parental responsibility allows for ‘equal’ shared care time, and that if there is shared parental responsibility, then a court will order shared care time. This misunderstanding is due, at least in part, to the way in which the link between equal shared parental responsibility and care time is expressed in the legislation.

(Kaspiew et al. 2011)

This confusion had several deleterious effects, including disappointment on the part of those whose ambitions for equal time were not realised, and concern that the focus was on the rights of parents rather than the needs of children (Kaspiew et al. 2011, see also Kaspiew et al. 2009, ALRC 2019).

The confusion existed notwithstanding the fact that the presumption was immediately followed by:

1) a Note that:

The presumption provided for in this subsection is a presumption that relates solely to the allocation of parental responsibility for a child as defined in section 61B. It does not provide for a presumption about the amount of time the child spends with each of the parents (FLA s 61 DA(1)); and

2) a further subsection providing exceptions to the presumption:

1. where there were reasonable grounds to believe that there had been abuse of the child or family violence;

2. where equal shared parental responsibility would not be in the best interests of the child (FLA s 61 DA(2)).

It is a clear implication of the AIFS evaluation that the ‘headline’ of equal shared parental responsibility, rather than the detail of the actual legislative provisions, was the message which permeated.

Although attempts were made in 2012 reforms to prioritise the need to protect children from violence (Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 (Cth)), the ALRC concluded, based on evidence including a further AIFS Evaluation (Kaspiew et al. 2015), that s 61DA had fundamental flaws and recommended that it be amended ‘to replace the presumption of ‘equal shared parental responsibility’ with a presumption of ‘joint decision making about major long-term issues’ (ALRC 2019, Recommendation 7). Influenced by the research, the current Government has gone further than the ALRC’s recommendation and has repealed the section.

Repeal of the requirement that courts proposing to make orders for equal shared parental responsibility consider making orders for equal time, and failing that substantial and significant time, if to do so would be in the child’s best interests and reasonably practicable (FLA s 65DAA)

The Government has also accepted the ALRC report’s recommended repeal of s 65DAA (ALRC 2019, Recommendation 8):

(1) Subject to subsection (6), if a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:

1. consider whether the child spending equal time with each of the parents would be in the best interests of the child; and

2. consider whether the child spending equal time with each of the parents is reasonably practicable; and

3. if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.

This provision also requires consideration of ‘substantial and significant time’ where equal time is not ordered (in s 65DAA(2)).

This has required trial judges, and effectively practitioners presenting cases to the court, to go through a series of questions and answers about equal time, and then substantial and significant time, which were triggered by the presumption of equal shared parental responsibility not being displaced.

The 2009 AIFS evaluation raised concerns about equal time being ordered in cases where there were safety concerns (Kaspiew et al. 2009, p. 15), and the ALRC report relied on subsequent research by AIFS (Kaspiew et al. 2015, pp. 16, 20) for the conclusion that:

it has become increasingly clear that this legal presumption and its associated influence on care-time arrangements is not consistent with social practices in relation to post separation parenting, both in the context of shared decision making and shared care-time. (ALRC 2019, [5.91]

The repeal of section 65DAA removes the link between parental responsibility orders and orders about the time that children are to spend with each parent. This is clearly linked to the rationale for the clarification of the checklist of best interests factors, namely, the desirability of focussing on the needs of children rather than the rights of parents (discussed later in this note).

Re-working of objects and principles that apply in parenting cases (s 60B)

The current s 60B sets out four objects and five underlying principles that do not form part of the substantive law but may be used to guide interpretation in parenting cases (Maldera & Orbel [2014] FamCAFC 135, [175]). They include the objects of ‘ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child’; and ‘protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence’ (FLA s 60B(1)(a) and (b)), and principles including that ‘children have the right to know and be cared for by both their parents’ and that ‘children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents’ (FLA s 60B(2)(a) and (b)).

The ALRC report recommended repeal of s 60B (ALRC 2019, Recommendation 4) on the grounds that its role has been unclear and misunderstood, that its content overlaps substantially with factors in the ‘best interests’ checklist (FLA s 60CC), and that it is of limited legal effect: ‘removal of the objects and principles would reduce confusion and enhance the clarity of Pt VII’ (ALRC 2019, [5.35]).

The Government has chosen to retain the section in a different form. Section 60B now refers to two objects of Part VII: to ensure that the best interests of the child are met and to give effect to United National Conventions on the Rights of the Child (CRC) (currently FLA s 60B(4)).

The simplification of s 60B has received much support, but there has also been concern that it will not add clarity or assist understanding of the parenting provisions (Senate Legal and Constitutional Affairs Legislation Committee Inquiry into the Family Law Amendment Bill 2023, [2.10]-2.13]). The FLA already makes clear that the child’s best interests are paramount when making parenting orders (FLA s 60CA) and the factors to be considered when making that assessment (s 60CC). The object of ‘giving effect to’ CRC does not go any further than the current position, which does not provide children with any legally enforceable rights (given that CRC was ratified by Australia on 17 December 1990 and it came into force for Australia on 16 January 1991, but has not been incorporated into Australian domestic law) and which has been found in recent research to have had no discernible impact in reported parenting cases (Dimopoulos and Fernando 2023).

Simplifying the ‘best interests’ checklist (s 60CC)

There are currently two ‘primary’ and 14 ‘additional’ considerations in the list of considerations that the court must consider when deciding what order would be in the child’s best interests (FLA s 60CC(2)(a) and (b)), adding to what has been described as the ‘dilemma of labyrinthine complexity’ (Zabini & Zabini [2010] FamCA 10, [3]) characterising the legislative pathway since the 2006 amendments (see further: O’Brien 2010, Riethmuller 2015).

The ALRC report recommended simplification (ALRC 2019, Recommendation 5), due to concerns raised in submissions regarding length, complexity and repetition in the current list, and confusion created by the distinction between ‘primary’ considerations (the benefit to the child of having a meaningful relationship with both parents, and protection from harm) and ‘secondary’ considerations (everything else, including the child’s views) (ALRC 2019, [5.36]). It concluded that the current list has increased costs and delays without necessarily capturing relevant factors to the case, and that the ‘division of the best interests factors into a hierarchy of primary and additional factors’ (ALRC 2019, [5.45]), introduced as part of the 2006 amendments is unhelpful and confusing given the need to consider and evaluate all the circumstances when determining the child’s best interests (FLA s 60CA). The ALRC report considered that ‘focus on a core list of considerations that are likely to be relevant to a large majority of matters’ (ALRC 2019, [5.51]) would provide clearer guidance for parents and others working out parenting arrangements outside of the court-based decision-making context, as the vast majority do (Kaspiew and Carson 2019).

The ALRC report recommended replacement of the current list with six considerations is reflected in the new best interests checklist (FLA s 60CC(2)):

(a) what arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of:

1. the child; and

2. each person who has care of the child (whether or not a person has parental responsibility for the child);

   (b) any views expressed by the child;

   (c) the developmental, psychological, emotional and cultural needs of the child;

   (d) the capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child’s developmental, psychological, emotional and cultural needs ;

   (e) the benefit to the child of being able to have a relationship with the child’s parents, and other people who are significant to the child, where it is safe to do so;

   (f) anything else that is relevant to the particular circumstances of the child.

In addition, a new s 60CC(2A) provides that when considering (2)(a) (arrangements promoting safety of the child and their carers) the court must include consideration of: (a) any history of family violence, abuse or neglect involving the child or a person caring for the child (whether or not the person had parental responsibility for the child); and (b) any family violence order that applies or has applied to the child or a member of the child’s family. This addition reflects concern raised at bill stage that consideration of ‘safety’ is likely to be future focussed and would not capture consideration of past family violence.

These changes have been widely welcomed given the issues surrounding the current list, and which have tended to detract from the child’s best interests. According to the Explanatory Memorandum, the revised list of ‘best interests’ factors ‘provides the court with the ability to consider the unique circumstances in each parenting matter in a way that places the best interests of a child at the forefront of decision-making’ (Family Law Amendment Bill 2023, Explanatory Memorandum, [272]).

Legislative codification of the requirements that independent children’s lawyers meet with children and seek their views (new ss 68LA(5); repeal of s 68L(5) and (6))

Independent children’s lawyers may be appointed by the court to represent the child’s best interests in FLA parenting proceedings (FLA s 68L). An ICL may be appointed in a range of circumstances, for example where there are allegations of family violence, abuse or neglect of a child the subject of proceedings, and/or where there is high ongoing conflict between the parties (Re K (1994) 17 Fam LR 537). The ICL is funded by legal aid, and by the parties depending on their financial circumstances (See further: Federal Circuit and Family Court of Australia 2024a).

There are guidelines for ICLs (Federal Circuit and Family Court of Australia 2024b) that were revised in 2021 following AIFS research finding, among other things, that children and young people were disappointed in their ICLs due to a lack of meaningful contact with them and unmet expectations about what the ICL would do to support their participation and ensure the court understood their perspective Kaspiew et al. 2014).

The amendments represent legislative codification of these requirements, providing that the ICL must meet with the child and provide the child with an opportunity to express their views on matters related to the proceedings unless the child is under age 5 (school age), does not want to meet with the ICL or express their views, or there are exceptional circumstances (including that performing the duty would expose the child to a risk of physical or psychological harm that cannot be managed, or have a significant adverse effect on the child) (new FLA s 68LA(5)).

These changes have been widely welcomed as a step forward in better ensuring that children and young people are heard in FLA decisions affecting their care and safety (consistent with CRC art 12). The main concerns raised surround increasing demands on ICLs when even now, limited grants for legal aid funding result in their not being appropriately remunerated for their work. The Government has confirmed that funding guidelines are being considered as part of a current review (Senate Legal and Constitutional Affairs Legislation Committee Inquiry into the Family Law Amendment Bill 2023), but the extent to which concerns will be resolved is unclear in a wider context where Australia’s legal aid system is in crisis (see further: Millane et al. 2023).

Significance

The Family Law Amendment Act 2023 forms part of a broad agenda of law reform being undertaken by Australia’s Labor Government led by Anthony Albanese, which was elected to power in May 2022. It jettisons shared parenting amendments introduced by the Liberal-National Coalition (Conservative) Government led by John Howard between 1996 and 2007 and has also heralded a welcome return of positive engagement by the Australian Government with family law research and with the academy.

While some concerns have been expressed that the amendments ‘effectively will restore maternal preference’ (Shanahan 2023) and ‘undervalue the importance of a child’s relationship with both parents’ (Malcolm 2023) in post-separation parenting disputes, they have been in the minority and press coverage of the amendments has been minimal. It seems unlikely that post-separation parenting arrangements will change dramatically, regardless of whether the main pathway is adjudication, assistance of family law system professionals (lawyers or mediators), or discussions between the parents. Even with shared parenting laws, in most cases mothers have remained majority time parents post-separation (Kaspiew and Carson 2019). However, at the same time, after almost 20 years of shared parenting laws, the needle has shifted towards children in separated families spending more time with their fathers and Australia has become so acclimatised to the encouragement of shared post-separation parenting that we are unlikely to see reversion to the pre-2006 norm of ‘living with mum and spending every second weekend and half the school holidays with dad’ approach. Reversion is even less likely in a child support context where fathers need only spend 14% of nights (or one night a week) with their children to achieve a reduction in their liability based on ‘regular care’ (Australian Government 2024). There has been no challenge to the child support position, which has been in place since 2008, and which AIFS research suggests provides an incentive for fathers to seek shared time and for mothers to resist it (Kaspiew et al. 2009, pp. 227–8, cf, pp. 222–3, Smyth et al. 2012).

The amending act provides for a review to take place in three years (Family Law Amendment Act 2023 (Cth), Schedule 10), so eventually data will be available. For now, the amendments are clearly significant in changing the messaging sent to separated parents away from promotion of shared parenting outcomes, and towards focus on the best interests of the child. For courts, they replace the complex and formulaic legislative pathway that has had to be followed post-2006 (O’Brien 2010, Riethmuller 2015) with a greater focus on factors that make an important difference to children’s lives.

In the end, however, the most positive outcome of the amendments is that they repeal legislative provisions that have led to confusion and unnecessary complexity, and increased risk for children. It is a rather sad commentary on Australian family law reform that we should feel such a sense of achievement at having finally got rid of things that we should never have done.

Disclosure statement

No potential conflict of interest was reported by the author(s).