The Family Law Act 1975 serves as the cornerstone of the legal framework and plays a crucial role in shaping the lives of children and families. As societal norms and values continue to shift, the legal landscape must also adapt to meet the evolving needs of families.
In late 2023, the Australian Commonwealth Parliament passed two (2) significant pieces of legislation, aimed at “making Australia’s family law system simpler, safer, and more accessible to separating families and children”. The passing of the most recent Family Law Amendment Act brings significant changes to the current legislative regime with respect to matters relating to children of a marriage residing in Australia, and children of de facto relationships in states other than Western Australia, which will largely apply from 6 May 2024.
The key amendments include:
In 2006, the Family Law Act 1975 was amended largely due to the campaigning from fathers' groups who argued that the system was biased and that they were prejudiced against in parenting disputes. The 2006 changes introduced the presumption of equal shared parental responsibility, which meant that both parents were presumed to have an equal role in making decisions about their child’s wellbeing, unless it could be rebutted that a parent had engaged in abuse of a child or family violence. This was often misinterpreted by people as a presumption of equal shared parental time.
This presumption proved problematic and had unintended consequences. Family lawyers saw people entering into agreements for one or two year old children that were never intended to be equal time arrangements, because they thought that they had a right to see their child half of the time. Some believed the introduction of equal shared parental responsibility had disproportionately favoured parents' rights over children's needs. Ultimately it led to an increase in parenting disputes and further delays within the Court.
One of the key 2023 amendments which aims to strengthen the focus on the best interests of the child in family law proceedings, will be the removal of the presumption of ‘equal shared parental responsibility’ and the provision that parents will continue to each have parental responsibility for decisions after separation. This means that they can make decisions jointly or independently unless a court orders otherwise. The upcoming changes emphasise the need for parents to collaborate in making decisions that benefit their children, promoting shared parenting responsibilities wherever possible.
Men's groups have argued that the new changes will see fathers "cut out" from seeing children who would be denied an equal relationship with both parents.
The Senate committee found that "a history of family violence, abuse and neglect as a general consideration in determining what is in the child's best interests" was critical, and that language used to "better recognise and protect the right of Aboriginal and Torres Strait Islander children to enjoy their culture" should be included.
Addressing the increasing prevalence of domestic violence in family law cases and giving greater weight to their impact is another significant part of the amendments.
Women’s advocacy groups have argued that, where there are allegations of family violence, the Court needs to take a more robust and nuanced approach to parenting disputes.
The women’s groups argue that this approach would be a step in the right direction to unwinding some of the 2006 amendments which were largely made in response to lobbying from men’s groups.
The 2023 changes seek to enhance the system’s response to allegations of domestic violence, ensuring the safety of victims and their children. This includes measures to streamline the process for obtaining protection orders and creating a more supportive environment for survivors within the legal system.
Family law is a complicated and specialised area of the law, it is multidimensional with key stakeholders often operating in shades of grey. The proposed amendments to the Family Law Act 1975 reflect a commitment to creating a clearer and more responsive legal framework for families experiencing separation. It is hoped that victims of family violence will be more protected by the system with a change and reduction in the number of orders made of equal shared parental responsibility, which may be used by an abuser to control the victim.
It is almost inevitable that there will be an increase in litigation following the amendments coming into effect, as parents seek clarity around how the amendments will work and apply to their family situations. However, it is too early to predict whether the new laws will have an impact on the overall parenting outcomes.
If you have any questions or concerns about how these reforms might impact you or would like to seek some preliminary legal advice in relation to any area of family law, please contact Framy Browne, Tamara Arapovic or Jorja Brady on 9288 6000 for assistance.
