The Family Law Amendment Act (‘the Amendment Act’) is a significant piece of legislation that was approved by the federal government in mid-October 2023. The passing of the legislation is a significant milestone in the development and application of family law in Australia and is being widely touted as the greatest shake-up to family law in almost two decades.
The changes appear to be received with welcome from many in the legal profession who acknowledge that the complexity and nuanced nature of the law, particularly in relation to parenting, has cost parties significant time, expense and has in many cases, entrenched litigious attitudes.
Arguably, the most significant of the amendments is the removal of the presumption of equal shared parental responsibility which has often been misunderstood and misused over the years and has resulted in significant amounts of litigation.
Parental responsibility is the responsibility of each parent to make decisions regarding the long-term care, welfare and development of their children. Examples of such decisions including matters such as schooling, where children live and attend school, which religion they observe, cultural observations and other matters that may have a significant impact on the lives of their children.
Prior to 6 May 2024, the law confirmed that there was a presumption that BOTH parents exercise such responsibility in a “equal shared” manner, not unilaterally. The presumption applied unless it could be rebutted, for example, if there had been family violence or child abuse or if the court considered that in the circumstances of the case, the presumption should be rebutted (for example, if a parent had been absent for some time). Once an order for ESPR was been made, the court was then required to consider whether an order for equal time between the children and the parent was appropriate (subject to the bests interests of the child).
One of the problems with the presumption since its introduction in 2006 was that parties have often confused the nuances of the Act in this regard and believed that equal time is presumed and/or mandated, rather than ESPR.
The Amendment Act has now removed the presumption of ESPR and instead focuses on what is in the child’s bests interests in determining whether an order should be made for joint decision making, sole decision making or a mix of both depending on the matters and circumstances in issue between the parties. This position essentially reverses the position that has been applied by the law and the courts for the past 17 years.
The Amendment Act also includes new provisions, many of which codify the 2021 amendment to the Family Law Rules in relation to matters such as:
There are further changes that have been made that will be included in a further article.
O’Loan Family Law has a highly experienced family lawyers available to assist you navigate your family law matter. Please contact us if we can provide you with sympathetic, tailored, specialist advice about your current circumstances and how they may be affected by the Amendment Act.
About The Author - Bron O'Loan
Bron O’Loan is an Accredited Specialist in Family Law and Principal Director of O’Loan Family Law in Sydney. Admitted to practise in 2015, she has over 12 years of exclusive family law experience advising on separation, parenting disputes and complex property settlements. Bron holds a Master of Applied Law (Family Law) and is admitted to the Supreme Court of NSW and the High Court of Australia, providing strategic, commercially aware advice tailored to each family’s circumstances. |
*This post is an overview only and should not be considered as legal advice. If there are any matters that you would like us to advise you on, then please contact us.
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