Family law reforms are on the way
6 mins reading time
With evolving societal changes, the concept of family has significantly changed since the commencement of the Family Law Act in 1975. The perennial challenge for legislators has been keeping up and making the law ‘fit’ the needs of families and, most importantly, the children within them. From language and forms to Court structures, there have been many changes to navigate for those engaging with the system. Previously, those in the family law field referred to ‘custody with’ and ‘access to’ children. This was soon after replaced with less possessional language of ‘reside/live with’ and ‘spend time with’.
Family law over the years
In 2006, the Howard Government, arguably spurred on by the so called ‘black shirts’ lobby group of the time, made major amendments to the Family Law Act. Some of these amendments included providing for a presumption of equal shared parental responsibility and legislating a pathway to a mandatory consideration of children spending equal time with each parent. This was based on the theory that most children were better off spending as much time with each parent as possible.
The children come first
Unfortunately, the amendments instilled a belief and entitlement in parents to equal time being the benchmark to be achieved, rather than considering what was best for their child in their family situation. As family lawyers, we would not deny the benefit to children having a relationship with each of their parents. However, with the best interests of the child being the primary consideration, we would have to counsel our client, often with the assistance of child experts to consider that equal time may not be best. We know from social science that young children, for example, need to develop a strong attachment to their primary carer which does not devalue the other parent (as some would believe), but benefits the child’s development and ability to form attachments and strong relationships later in life. This attachment can be detrimentally impacted by lengthy time away from the primary carer. Parents could feel ‘ripped off’ by the system if they did not achieve equal time, whilst not considering the long-term developmental impact of forcing their position upon a young child. Arrangements for children post separation must consider what is best for a child at each age and stage of their development, and their individual needs, not take a ‘cookie cutter’ approach. Further, as a society we need to be able to protect our children from the harmful impact of conflict and family violence.
Quality over quantity
Parents should know children do not measure their relationships in minutes and hours. Even in an intact marriage relationship, children do not spend ‘equal time’ with each parent. Whilst the parents may structure their respective part-time employment to provide for one parent to be home/available to care for the children, this does not result in equal time. The relationship of each parent with each child varies on the individual but is no less meaningful. While the children benefit from their time with each parent, this time cannot be (if for no other than practical reasons), equal.
Upcoming changes to the Family Law Act
On 6 May 2024, changes to the Family Law Act will come into effect and we will no longer consider a presumption of equal shared responsibility. Although in the absence of orders it is intended and encouraged that parents charged with the responsibility of children will work together to make decisions for their long-term care, the mandatory consideration of equal time will be abolished. The six factors to be considered when determining care arrangements have consolidated the previous 14 considerations with the focus hopefully realigned to what is in the best interests of the child in this family in these circumstances, and appropriately with a focus on ensuring the safety of the children, and also now the safety of those who care for them. Those six considerations are:
- what arrangements would 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 (whether or not a person has parental responsibility for the child).
- any views expressed by the child
- the developmental, psychological, emotional and cultural needs of the child
- 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
- 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
- anything else that is relevant to the particular circumstances of the child.
Other changes coming into effect include a more inclusive approach to culture and traditions for Aboriginal or Torres Strait Islanders, requiring Independent Children’s Lawyers to meet with children to enhance their voice in family law proceedings, establishing powers to regulate standards to be met by professionals who prepare family reports, and importantly to introduce ‘harmful proceedings orders’ to prevent a vexatious litigant from filing and serving new applications without first obtaining leave from the Court – to hopefully overcome the ability to use the Court process as a tool to continue abuse or coercive control.
Addressing emotional dynamics
There are many valid emotions that drive separated parents following the breakdown of their relationship, including fear, anger, grief, insecurity, relief, shock, jealousy and animosity. As with past changes, parents who are able, with the assistance of lawyers, counsellors and support networks, to focus on the best interests of their child rather than being driven by emotion, will not likely be impacted by these changes. We can only hope that these amendments will assist and enable all parents, and the Court assisting them, to put the best interests of the particular individual child entrusted to their decision making, at the forefront, and be free of presumptions that detract from the focus of giving each child the best and safest foundation for their future.
We’re here to help
If you require assistance with a family law matter or would like further insight to navigate the changes to legislation, Macpherson Kelley’s family law team are well placed to assist. Please contact us to find out more information.
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Family law reforms are on the way
With evolving societal changes, the concept of family has significantly changed since the commencement of the Family Law Act in 1975. The perennial challenge for legislators has been keeping up and making the law ‘fit’ the needs of families and, most importantly, the children within them. From language and forms to Court structures, there have been many changes to navigate for those engaging with the system. Previously, those in the family law field referred to ‘custody with’ and ‘access to’ children. This was soon after replaced with less possessional language of ‘reside/live with’ and ‘spend time with’.
Family law over the years
In 2006, the Howard Government, arguably spurred on by the so called ‘black shirts’ lobby group of the time, made major amendments to the Family Law Act. Some of these amendments included providing for a presumption of equal shared parental responsibility and legislating a pathway to a mandatory consideration of children spending equal time with each parent. This was based on the theory that most children were better off spending as much time with each parent as possible.
The children come first
Unfortunately, the amendments instilled a belief and entitlement in parents to equal time being the benchmark to be achieved, rather than considering what was best for their child in their family situation. As family lawyers, we would not deny the benefit to children having a relationship with each of their parents. However, with the best interests of the child being the primary consideration, we would have to counsel our client, often with the assistance of child experts to consider that equal time may not be best. We know from social science that young children, for example, need to develop a strong attachment to their primary carer which does not devalue the other parent (as some would believe), but benefits the child’s development and ability to form attachments and strong relationships later in life. This attachment can be detrimentally impacted by lengthy time away from the primary carer. Parents could feel ‘ripped off’ by the system if they did not achieve equal time, whilst not considering the long-term developmental impact of forcing their position upon a young child. Arrangements for children post separation must consider what is best for a child at each age and stage of their development, and their individual needs, not take a ‘cookie cutter’ approach. Further, as a society we need to be able to protect our children from the harmful impact of conflict and family violence.
Quality over quantity
Parents should know children do not measure their relationships in minutes and hours. Even in an intact marriage relationship, children do not spend ‘equal time’ with each parent. Whilst the parents may structure their respective part-time employment to provide for one parent to be home/available to care for the children, this does not result in equal time. The relationship of each parent with each child varies on the individual but is no less meaningful. While the children benefit from their time with each parent, this time cannot be (if for no other than practical reasons), equal.
Upcoming changes to the Family Law Act
On 6 May 2024, changes to the Family Law Act will come into effect and we will no longer consider a presumption of equal shared responsibility. Although in the absence of orders it is intended and encouraged that parents charged with the responsibility of children will work together to make decisions for their long-term care, the mandatory consideration of equal time will be abolished. The six factors to be considered when determining care arrangements have consolidated the previous 14 considerations with the focus hopefully realigned to what is in the best interests of the child in this family in these circumstances, and appropriately with a focus on ensuring the safety of the children, and also now the safety of those who care for them. Those six considerations are:
- what arrangements would 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 (whether or not a person has parental responsibility for the child).
- any views expressed by the child
- the developmental, psychological, emotional and cultural needs of the child
- 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
- 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
- anything else that is relevant to the particular circumstances of the child.
Other changes coming into effect include a more inclusive approach to culture and traditions for Aboriginal or Torres Strait Islanders, requiring Independent Children’s Lawyers to meet with children to enhance their voice in family law proceedings, establishing powers to regulate standards to be met by professionals who prepare family reports, and importantly to introduce ‘harmful proceedings orders’ to prevent a vexatious litigant from filing and serving new applications without first obtaining leave from the Court – to hopefully overcome the ability to use the Court process as a tool to continue abuse or coercive control.
Addressing emotional dynamics
There are many valid emotions that drive separated parents following the breakdown of their relationship, including fear, anger, grief, insecurity, relief, shock, jealousy and animosity. As with past changes, parents who are able, with the assistance of lawyers, counsellors and support networks, to focus on the best interests of their child rather than being driven by emotion, will not likely be impacted by these changes. We can only hope that these amendments will assist and enable all parents, and the Court assisting them, to put the best interests of the particular individual child entrusted to their decision making, at the forefront, and be free of presumptions that detract from the focus of giving each child the best and safest foundation for their future.
We’re here to help
If you require assistance with a family law matter or would like further insight to navigate the changes to legislation, Macpherson Kelley’s family law team are well placed to assist. Please contact us to find out more information.