On 19 October 2023, the Australian Parliament passed two significant pieces of legislation expected to have a major impact on family law matters: the Family Law Amendment Bill 2023 and the Family Law Amendment (Information Sharing) Bill 2023.
The Family Law Amendment Bill 2023 proposes several critical changes to the Family Law Act 1975, including repealing the presumption of equal shared parental responsibility (ESPR).
The ESPR has been a cornerstone of family law in Australia since 2006, but it has also been criticized for its rigidity and its potential to lead to outcomes that are not in the best interests of the child.
The repeal of the ESPR would give judges greater flexibility to consider the individual circumstances of each case and to make decisions that are truly in the best interests of the child.
The introduction of these new laws has sparked considerable discussion regarding their impact on family law and judicial outcomes. Overall, there is a recognition that the changes can offer enhanced protections for children at high risk, such as those encountering domestic violence.
On the other hand, there are concerns about the potential implications for non-primary caregivers and the possibility that these changes could exacerbate issues related to parental alienation.
Note that as of publishing this article, the bills had already been passed by Parliament but had yet to be signed into law by the Governor General.
Equal Shared Parenting Rights (ESPR) is a legal principle that states that parents have an equal right and responsibility to care for their children after separation. The presumption was introduced in 2006 to promote greater involvement of both parents in the lives of their children.
Repealing Of Section 60B
The repeal of section 60B means that courts will no longer be required to consider the significance 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.”
In addition to the repeal of the ESPR, the Family Law Amendment Bill 2023 also proposes several other changes, such as:
- Requiring courts to consider the safety of the child and their caregiver when making decisions about parenting arrangements.
- Introducing a new provision on joint or sole decision-making on major long-term issues.
- Removing references to equal time, substantial and significant time, giving greater discretion to judges when assessing time arrangements.
- Requiring courts to consider the Convention on the Rights of the Child when making decisions about children.
The new section 61DA: Presumption of equal shared parental responsibility
In a controversial step, the Family Law Amendment Bill will repeal this section in its entirety. Instead, a new provision will be introduced to section 61D, allowing either joint or sole decision making on all or specified major long-term issues.
There is some concern that the shift in terminology from “equal“ to “joint” could result in some parents being removed from the decision-making process, contributing to the alienation of the non-primary parent.
If the Court makes an order for joint decision-making about any issue, then under the new section 61DAA the parties are required:
- to consult each other person with joint responsibility in relation to each such decision; and
- to make a genuine effort to come to a joint decision.
This means that for matters already in court, you may need to amend court applications as the orders being sought may no longer be relevant.
Any allocation of responsibility for major long-term decisions is now based on what is in the child’s best interests, as determined by the new section 60CC provisions.
The amendments also make it clear that parents are not required to consult with each other regarding decisions that are considered day-to-day decisions.
This resolves long-running tensions as to what a parent can and cannot do whilst a child is in their care, once an order has been made in respect to responsibility for making major long-term decisions.
The new section 60CC is intended to remove overlap in the Act and reduce confusion about the operation of this section. The new 60CC removes the two-tier hierarchical structure of the “primary” and “additional” considerations and instead includes:
- six “general considerations”; and
- two further considerations if a child is Aboriginal or Torres Strait Islander.
The structure is non-hierarchal and instead focuses on a core list of considerations to best promote the child’s welfare and development, i.e. the Court is not required to give more weight to one factor over the others.
The six general considerations are set out in summary below.
1. What arrangements would best promote the safety (including safety from family violence, abuse, neglect, or other harm) of the child and each person who has care of the child
The Court will now consider what arrangements would encourage or support a removal, reduction or avoidance of harm to the child. This is intended to apply more broadly, as it applies not just to the child but any person who has care of the child, which may include parents, step-parents, grandparents, siblings, informal kinship carers and other extended family members.
The existence of any family violence involving the child or a member of the child’s family, exposure to family violence, and family violence orders will remain relevant.
The inclusion of the term “other harm” is intended to allow the Court a wide discretion to consider the child’s particular situation. For example, it will allow consideration of whether certain arrangements are workable in a family situation where high conflict and poor communication are present. This acknowledges findings by the Australian Psychological Society that continuing inter-parental conflict is one of the strongest single predictors of negative child outcomes.
This simplifies the previous paragraph 60CC(3)(a) and recognises a child’s agency and right to be heard. As is the case for all of the best interest factors, the Court would still have discretion in regards to how much weight to place on the child’s views in the circumstances of the case.
The Bill makes other amendments to the Act to strengthen this approach by requiring that, where an Independent Children’s Lawyer (ICL) has been appointed by the Court to independently represent a child’s interests, that ICL will now be required to meet with the child to seek their views, subject to certain exceptions. Under the current Act ICLs can meet with the child, although it is not a requirement (see our article regarding the new requirements for ICLs).
This is a new factor that will allow a broad range of evidence to be considered concerning a particular child’s needs. It is intended to support a child-focused approach, including a range of the other existing section 60CC factors ─ for example the lifestyle, culture and traditions of the child and/or parent, or any developmental or psychological concerns a child may have.
4. The capacity of each proposed carer to provide for the child’s developmental, psychological and emotional needs, having regard to the carer’s ability and willingness to seek support to assist them with caring
This consideration may require an examination of the history of care of the child and the nature of the relationship with each person in addition to the parent’s attitude to the child and to the responsibilities of parenthood.
The inclusion of “or willingness to seek support to assist with caring” is particularly relevant to parents with a disability, who may otherwise face assumptions about their capacity to provide care. This also addresses “the perverse situation where a person who has experienced family violence is considered to have lower parenting capacity due to unresolved trauma from family violence”.1
5. The benefit to the child of being able to have a relationship with both parents, and other significant people, where it is safe to do so
Where safe and appropriate, most children benefit from spending time with their parents. This was previously provided for as a “primary consideration”. The inclusion of the words “safe to do so” is intended to maintain the importance of a child’s safety over their relationship with a parent, as was previously provided for in section 60CC(2A).
The section now goes further as it requires the Court to consider the benefit to the child of being able to develop a relationship with both parents, plus any other person of significance to the child, such as grandparents.
This catch-all provision is a necessary safeguard to account for the myriad circumstances that arise in family law proceedings and to ensure that the Court can make decisions tailored to each family.
The two further matters are specific to a child that is Aboriginal or Torres Strait Islander, to recognise important cultural considerations specific to them. If a child is Aboriginal or Torres Strait Islander, the Court must consider the child’s right to enjoy their culture by having the opportunity to connect with and maintain their connection with their family, community, culture, country and language, and the likely impact any proposed parenting order will have on that right.
In summary, the new section 60CC is intended to continue to provide the Court with wide discretion to consider the facts in each case, with a list of non-exhaustive considerations providing guidance. Each of the relevant circumstances need to be considered and evaluated in each case, with a view to reaching the right outcome for the children involved.
Repealing the presumption of equal shared parental responsibility (ESPR) could have a significant impact on parenting arrangements. This may include:
More flexible and refined parenting arrangements
One potential impact of repealing ESPR is that it could lead to more flexible and more refined parenting arrangements. Currently, courts are required to give primary consideration to ESPR when making decisions about parenting arrangements.
This can mean that in some cases, courts may order ESPR arrangements even if they are not in the best interests of the child.
Once ESPR is repealed, courts will have greater flexibility to consider all of the relevant factors in each case and to make decisions that are truly in the best interests of the child.
This could lead to a broader range of parenting arrangements, such as sole parenting arrangements, shared parenting arrangements with unequal time, and open-ended parenting arrangements.
Another potential impact of repealing ESPR is that it could lead to increased litigation.
Currently, ESPR provides a clear starting point for courts when deciding parenting arrangements. If ESPR is repealed, the starting positions of the parties will be further apart. This could lead to more cases going to court as parents argue for different parenting arrangements.
Impact on high-risk individuals
Repealing ESPR could also have a significant impact on high-risk individuals, such as those facing domestic violence, like the case involving seven-year-old Jacob and his mother, Tanyia Hewson. Currently, ESPR can protect these individuals by ensuring they have a meaningful relationship with their children.
If ESPR is repealed, these individuals may be more likely to have reduced contact with their children if the court decides that the risk of harm to the child outweighs the need for ensuring a meaningful relationship with both parents.
Finally, repealing ESPR could also increase the risk of parental alienation. Parental alienation is a situation where one parent attempts to turn the child against the other parent.
ESPR can help to prevent parental alienation by ensuring that both parents have a meaningful relationship with their children. If ESPR is repealed, it may be easier for one parent to alienate the child from the other parent.
Overall, repealing ESPR could have a significant impact on parenting arrangements in both positive and negative ways. It is important to note that the full effect of repealing ESPR is challenging to predict.
However, parents must know the potential consequences of repealing ESPR before deciding on their parenting arrangements.
Will The Family Law Amendment Bill 2023 Affect Parenting Arrangements Made Before Its Passing?
Whether the Family Law Amendment Bill 2023 will affect parenting arrangements made before its passing will depend on the specific provisions of the Bill and how the courts interpret them.
Generally speaking, new laws do not apply retrospectively, meaning that they do not apply to events that happened before the law came into effect. However, there are some exceptions to this rule. For example, new laws may apply retrospectively if intended to correct a mistake in the previous law or to protect the public interest.
In the case of the Family Law Amendment Bill 2023, some of the provisions of the Bill could apply retrospectively, mainly if they are intended to protect the child’s safety or to give effect to the Convention on the Rights of the Child. For example, suppose the Bill introduces a new provision that allows courts to order sole parenting arrangements in cases of domestic violence. In that case, this provision could apply to existing parenting arrangements, even if made before the Bill was enacted.
Need to Know How Will the Family Law Amendment Bill 2023 Affect You?
At Justice Family Lawyers, we understand the stress and uncertainty of parenting arrangement disputes.
We have always kept a close eye on the changes made to this bill from the day it was introduced and moving forward.
This will enable us to help you better understand how the Family Law Amendment Bill 2023 could affect you.
Contact us today to learn more about your rights and options.
Principal of Justice Family Lawyers, Hayder specialises in complex parenting and property family law matters. He is based in Sydney and holds a Bachelor of Law and Bachelor of Communications from UTS.