In this article, I will explore the key provisions of the Family Law Amendment Bill and the impact these may have on family law matters, as well as the challenges these present for practitioners.

Section 60B: Objects of part

As it stands, section 60B provides a comprehensive framework outlining the factors to be taken into account to safeguard the best interests of the child. In particular, subsection (1)(a) emphasises 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”.

The Family Law Amendment Bill proposes the repeal of section 60B in its entirety, replacing it with two objectives: to ensure the best interests of children and to give effect to the Convention on the Rights of the Child.

At first glance, this seems like a significant shift in legislative intent. However, given that the Convention on the Rights of the Child already offers protection for both parents, it is questionable what impact this amendment will have.

For instance, article 7 requires that a child has the right to know and be cared for by his or her parents. Article 9 extends this principle by emphasising that a child should not be separated from their parents against their will, except in situations determined by applicable laws to be in the child’s best interests (article 9(1)). Additionally, in circumstances where a child is separated from one or both parents, parties acknowledge the child’s right to maintain personal relations and regular contact with both parents (article 9(3)).

The Convention on the Rights of the Child safeguards a child’s right to maintain relationships with both parents and, in my view, requires that courts take into account the same considerations.

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Section 60CC: How a court determines what is in the child’s best interests

Consistent with the removal of section 60B, the Family Law Amendment Bill will also repeal section 60CC(2)(b), which requires that the court give primary consideration to "the benefit to the child of having a meaningful relationship with both of the child’s parents."

The repeal of section 60CC(2)(b) indicates a shift in the prioritisation of parental relationships. It raises questions about the distinction between a “meaningful relationship” and a “normal relationship”. Ultimately, this will empower judges to consider factors more flexibly and without being constrained by a specific pathway.

The new legislation will also introduce a provision that requires courts to consider care arrangements that prioritise the safety of the child and their caregiver. The inclusion of the child’s carer as a consideration of the court is key to combating parenting arrangements that perpetuate the ongoing victimisation and abuse of one parent by the other, and this provision is welcomed by practitioners.

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.

This change may also present challenges for practitioners, for instance:

1. With existing clients, we’ll have to navigate their expectations and redirect their focus away from the assumption that equal parental responsibility automatically translates to an equal care arrangement; and
2. For matters already in the court system, we may need to advise clients of their rights under both the old and the new framework. Moreover, we may also be required to amend court applications as the orders we are seeking may no longer be relevant.

Removal of equal time, substantial and significant time (s 65DAA, 65DAC and s 65 DAE)

Under the old legislation, the court is mandated to take into account the criteria established in Goode v Goode [2006][FLC 93-286] when assessing a time arrangement. This precedent established the principle that the court should start with a presumption of equal shared responsibility, which could be rebutted based on evidence of family violence, child abuse, or the unique circumstances of the case. If the presumption remained applicable, the court then had to weigh whether equal time or substantial and significant time was in the child’s best interests and whether it was reasonably practicable given the circumstances.

The removal of references to equal time, substantial and significant time gives greater discretion to judges as they are no longer guided by the pathway in Goode v Goode. While I expect that outcomes will remain similar, this change could lead to an uptake in litigation, given that the starting positions of the parties will now be further apart without a predetermined starting point.

Further, although the Convention on the Rights of the Child provides a level of protection for the non-primary parent, it’s worth noting that article 9(3) only makes reference to “regular time”, leaving some ambiguity about its practical application.

Conclusion

In summary, the introduction of the Family Law Amendment Bill carries the potential to reshape family law matters and how they are approached by legal professionals. As these changes come to life in practice, the true magnitude of their impact will become clearer, and practitioners will need to adjust to suit the evolving needs of their clients.

Hayder Shkara, principal solicitor and director at Justice Family Lawyers