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The repeal of Australia’s problematic family law presumption (and other amendments): cautiously welcomed – but what has been lost?

Introduction

On 6 May 2024, radical changes to the Australian Family Law Act Citation1975 (Cth) (FLA) became operative. After 18 years of operation a controversial presumption has been repealed. Further, the sections containing the factors a court must take into account when considering the best interests of children (BIC) in post-separation parenting arrangements have been simplified and reduced from sixteen to a set of six main factors. Felicity Kaganas wrote extensively about the role of presumptions in the family law system in England and Wales and deeply enriched our knowledge about that legal device (eg. Kaganas and Day-Sclater Citation2004, Kaganas Citation2013, Citation2018).

As in England and Wales, the issue of a ‘joint custody’ presumption was put on the agenda in Australia by fathers’ rights groups from the 1970s (Graycar Citation1989, Collier Citation2006, p. 55). This article follows the development of the presumption and the concomitant evolution of the BIC factors. It examines each of the major reform Acts involving children’s cases since 1975:

Under each Act there is an examination of the socio-political climate of the time and an outline of the major amendments to the parenting provisions. This reveals how legislative changes mirror the broader public rhetoric and lay the foundations for later reforms. The gender tensions in family law are manifest as governments of all persuasions try to satisfy many disparate voices. There is also discussion of the evaluations and reviews that follow each set of reforms, considering the outcomes of those reforms and whether or not the government’s apparent policy intention was achieved. Aspects of the reform process in England and Wales are interwoven with the Australian history, showing where each jurisdiction has copied from, or decided not to copy from, the other.

Three themes emerge from this history and are discussed throughout the article:

Finally, the themes are applied to help understand how the 2023 changes might actually operate. While they are cautiously welcomed as a serious attempt at addressing many problems identified through the evaluations and reviews, some possible unintended consequences are considered.

Early rumblings about ‘joint custody’

The presumption introduced into the FLA in Australia in 2006 can be traced back to lobbying by fathers’ rights groups who have been arguing their position since the first parliamentary inquiry into the FLA in 1978 (Graycar Citation1989, Kaye and Tolmie Citation1998). Then they claimed that family law was biased against fathers and began their pursuit of a presumption of ‘joint custody’ (Graycar Citation1989, pp. 168–170). The Joint Select Committee on the Family Law Act, chaired by Philip Ruddock MP (Ruddock Committee), which conducted that inquiry, noted these opinions but did not recommend any custody presumption (Joint Select Committee on the Family Law Act Report Ruddock Committee Citation1980, p. 55). The presumption introduced in England and Wales in 2014 can also be linked to fathers’ rights activism (Collier Citation2006, Kaganas Citation2013), with a similar early rejection of ‘joint custody’ by the Law Commission in England and Wales in 1986 (Kaganas Citation2013, p. 273).

The Ruddock Committee, however, recommended the development of a list of factors a court should take into account in determining the best interests of the child. The Family Law Amendment Act Citation1983 continued the central principle that the ‘welfare’ of the child was ‘paramount’ (sub-s 64(1)(a)), contained a separate sub-section about the wishes of the child (new sub-s 64(1)(b)) and then inserted a best interests factors checklist (sub-s 64(1)(bb)) as follows (summarised for brevity):

  1. the nature of the relationship of the child with each of the parents of the child and others;
  2. the effect on the child of any separation from either parent, another child or others;
  3. the desirability of, and the effect of, any change in the existing arrangements;
  4. the attitude to the child, and to the responsibilities and duties of parenthood, demonstrated by each parent;
  5. the capacity of each parent [or other proposed carer], to provide adequately for the needs of the child, including emotional and intellectual needs;
  6. any other fact or circumstance relevant to the welfare of the child.

This presents as a sensible set of factors with an eye to both the past – what happened when the family was together – and the future – what might be possible now. Each of the sub-sections invite consideration of the past, and provide opportunities to present evidence about how the family operated when intact. They also arguably link the past to the future. For example, evidence about the ‘nature of the relationship’ of a parent with their child will paint a picture of the past and also allow a description of how that relationship is relevant to the post-separation parenting arrangements and what might be in the BIC. That list has waxed and waned over the years since then, always revealing something of the political and social shifts in family law over the forty years that have passed.

The family law reform act Citation1995

Background

In the early 1990s there was a further parliamentary inquiry by a Joint Select Committee (McKiernan Committee). By then social science research and literature was being harnessed by both sides of the gender debate in family law to further their positions (Dale Citation2022, p. 321). Women’s groups were beginning to advocate for improved recognition of domestic and family violence, using the growing social science research about this issue (Thacker et al. Citation1991). Meanwhile, fathers’ rights groups were citing the social science around fathers’ roles and fatherhood and continuing their quest for joint custody. As fathers’ rights advocacy became more organised, their rhetoric and the attention they received ‘affected the atmosphere in which legal and political changes’ were being considered in Australia (Kaye and Tolmie Citation1998, p. 23).

The 1992 report from the McKiernan Committee specifically considered joint custody. It noted that ‘many submissions to the inquiry, almost all of them from men, were highly critical of the attitude exhibited by the Family Court [both the judges and counsellors] to joint custody arrangements’ and some called for a ‘presmption of joint custody’ (Joint Select Committee on Certain Aspects of the Operation and Interpretation of the Family Law Act Report McKiernan Committee Citation1992, p. 105). However, the committee concluded that ‘the evidence … supports the view that the Family Court’s reluctance to order joint custody in contested cases is fitting and appropriate’ (1992, p. 106).

Overview of changes

Although the Family Law Reform Act Citation1995 (FLRA) which followed did not legislate for ‘joint custody’, or any presumption, the reforms created a specific right for children to have contact with both of their parents after separation, except when it was not in their best interests (s 60B(2)(a)). As will be seen from the evalutions and reviews discussed below, this section almost operated as a presumption in favour of contact in practice. The government had also listened to women’s advocates and provisions aimed at improving the response to family violence were enacted. Significantly the right to contact was placed in the objects and principles section of Part VII of the FLA which deals with children’s cases, thereby guiding the interpretation of the whole Part. By attempting to assuage the various groups who had been part of the reform process, the government had created legislation with inherent potential conflict – encouraging both contact and protection from violence and abuse.

The final changes borrowed some ideas from the Children Act Citation1989 in England and Wales (Family Law Council Citation1994), including a provision about protecting children from harm and one related to the child’s background. The new BIC list had expanded from seven in 1983 to twelve. The main factors that were different from 1983 were:

The structure of the FLRA had the potential to be problematic. It arguably favoured contact over protection from family violence and abuse because contact had been placed in the objects and principles section whereas the provisions regarding protection from child abuse and family violence were just three new factors in the list of best interests considerations.

Evaluations and reviews

To gauge the impact of the reforms after their commencement John Dewar and Stephen Parker conducted interviews with judges, counsellors, lawyers, social workers and other service providers. They concluded that the effect of the family violence provisions was largely outweighed by the right to contact principles (Dewar and Parker Citation1999, p. 107). It emerged that many fathers believed that the child’s right of contact was really their right to contact but this was not playing out at final hearings. Dewar and Parker (Citation1999) suggested that:

… this perception of change in itself becomes a powerful engine of change, especially for the majority of cases that are never litigated – perceptions of extra entitlement, however unfounded, may have powerful effects on inter-party negotiation, lawyer’s advice-giving and legal aid policy, all of which may themselves create a reality of change that has little bearing on what a court would order. (Dewar and Parker Citation1999, p. 107)

Other post-reform research found a significant change in the outcomes of interim applications for contact after the FLRA became operative, with orders for no contact and supervised contact decreasing significantly. Helen Rhoades et al. (Citation2000) suggested that the question seemed to have changed from ‘whether contact should take place’ to ‘how to maintain contact until the final hearing’ (Rhoades et al. Citation2000, p. 90). A Full Court appeal shortly after the reforms held that the changes had not introduced a presumption in favour of contact and that the BIC was still the ‘final determinant’ (Citation1997. FLC 92 − 755) at [9.51]). However, Rhoades et al. (Citation2000) argued that theirs and other research showed that:

… there is now effectively a ‘presumption’ (although not a legal one) operating in favour of contact with the non-resident parent despite the comments of the Full Court in B v B and despite the express requirement in the legislation to consider the best interests of the child. (Rhoades et al. Citation2000, p. 6)

This meant that the experience of clients navigating the family law system, occurred in the context of a silent but pervasive presumption. A ‘pro-contact’ culture of practice had emerged which permeated the approaches of all the actors involved in the family law system (Rendell et al. Citation2002).

A focus on the post-separation period and the future also became more apparent at this time. Research which examined agencies within the legal system, including the police, child protection services, legal aid and the Family Court concluded that FLRA Citation1995 created a context in which:

… the post-separation attitude of the mother towards the father’s on-going relationship with his children may be given more weight by decision-makers than his violence and abuse towards herself and the children both before and after separation. (Rendell et al. Citation2002, p. 119)

Despite the fact that a right of contact had been embedded there was still vocal criticism from fathers’ rights groups and more (unrequited) calls for a presumption of equal time post-separation.

At about this time in England and Wales, the Children Act Sub-Committee commenced a consultation process about how to improve practices in children’s cases. The consultation paper ‘adopted as its starting point the “premise” that children’s welfare is best served by maintaining relationships with both parents’ and the final report, Making contact work, ‘continued in a similar vein’ (Kaganas and Day-Sclater Citation2004, p. 4). But as in Australia, despite favourable treatment of fathers in the official documents, fathers’ rights groups ‘catapulted’ the issue of post-separation children’s arrangements into the headlines ‘complaining of injustice and demanding changes in the law’ (Kaganas and Day-Sclater Citation2004, p. 2)

Shared parental responsibility act 2006

Background

In 2003 Australia established another parliamentary inquiry in the context of concern about fatherlessness (Flood Citation2003). The Terms of Reference for the Inquiry included:

… whether there should be a presumption that children will spend equal time with each parent, and, if so in what circumstances such a presumption could be rebutted. (Hull Committee Citation2003, p. xvii)

In response the Australian Institute of Family Studies (AIFS) began investigating what was known about shared care in Australia and noted that there were ‘large and fundamental’ gaps in our knowledge about patterns of parenting after separation (Smyth Citation2004, p. xi). AIFS published a report on what was actually happening in 2004, which showed that only three percent of children whose parents had separated were in a shared care arrangement – meaning that the child spent at least 30% of the time with each parent (Smyth et al. Citation2004, p. 20). The AIFS research identified that families who shared care tended to exhibit certain characteristics such as geographical proximity, a level of affluence and employment flexibility, the ability to ‘get along’ and shared confidence in the parenting skills of the other parent (Smyth et al. Citation2004, p. 115).

A House of Representatives committee (Hull Committee Citation2003) conducted the inquiry and commented that their work had been skewed by the specificity of the equal time term of reference which had:

… turned the debate away from the benefits for children of a positive and caring relationship with both parents to all the arguments about why equal time will or will not work. (Hull Committee Citation2003, pp. 19–20)

The Hull Committee did not recommend equal time but made two recommendations about presumptions: that the FLA be amended firstly ‘to create a clear presumption, that can be rebutted, in favour of equal shared parental responsibility’ (ESPR); and secondly ‘to create a clear presumption against shared parental responsibility with respect to cases where there is entrenched conflict, family violence, substance abuse or established child abuse, including sexual abuse’ (House of Representatives Standing Committee on Family and Community Affairs Hull Committee Citation2003, p. 41). There was no discussion in the report about why the word ‘equal’ was included in the recommendation. However, that word in the presumption that was enacted has been a central issue in the confusion and controversy that followed the 2006 amendments (Australian Law Reform Commission ALRC Citation2019, p. 159). Although the Hull Committee balanced the presumption in favour of shared parenting with a presumption against that in certain circumstances, a presumption against shared parenting was never enacted.

Overview of changes

The final changes to the FLA, which became operative in 2006, represented the high-water mark of the shared parenting approach. They involved a complex constellation of provisions which encouraged shared parenting outcomes (parental responsibility and parenting time) but also recognised the relevance of family violence to parenting decisions. The objects and principles section (s 60B) and the two ‘primary considerations’ in the list of best interests factors manifested these dual goals. The ‘primary’ considerations were:

  1. the benefit to the child of having a meaningful relationship with both of the child’s parents (s60CC(2)(a)); and
  2. the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence (s 60CC(2)(b)).

A subtle focus on the future can be discerned. The first primary consideration was all about what could happen with this relationship in the future, rather than the relationship that existed in the past. This future focus was reinforced by the Full Court of the Family Court when it explained that a ‘prospective approach’ was the correct interpretation of s 60CC(2)(a) (McCall v Clark (Citation2009) FLC 93–405 at [119]).

After the primary considerations was a list of ‘additional’ BIC considerations which largely mirrored the 1996 list. There were now a total of fifteen BIC factors for a court to consider. The additional considerations included a ‘friendly parent’ provision that allowed the court to take into account ‘the willingness’ of each parent ‘to facilitate, and encourage, a close and continuing relationship between the child and the other parent’ (s 60CC(3)(c)). Provisions of this nature can prevent women who have experienced family violence from raising it, for fear of being seen as ‘obstructive’ to the dominant discourse of shared care (Laing Citation2010, p. 93)

The 2006 Act also introduced the presumption that ESPR is in the best interests of children. Declining to follow the second recommendation of the Hull Committee, no presumption against ESPR was enacted. Instead the FLA provided that the presumption did not apply where there were ‘reasonable grounds to believe’ that a parent had engaged in family violence or abuse (sub-s 61 DA(2)) and could be rebutted if there was evidence that it would not be in the best interests of the child (sub-s 61 DA(4)) – which then took the court back to the BIC considerations. This made determining the sequence in which to apply the sections of Part VII to the facts of a case extremely complicated (Rathus Citation2008). The amendments were described as a ‘legislative quagmire’ ‘overshadowed’ by the presumption (Alexander Citation2015, p. 333). If an order for ESPR was made parents were required to ‘consult’ each other about ‘major long-term issues’ (s 65DAC). This created an avenue for on-going abuse and control of women who had experienced domestic violence from their former partner. The use of the word ‘equal’ twice – about both parental responsibility and time – caused confusion in the community, with many believing that equal time had been legislated (ALRC Citation2019, p. 159).

Perhaps the most pernicious aspect of the presumption was not even within it, but was placed in a separate section about parenting time. Section 65DAA provided that: ‘If a parenting order provides (or is to provide) that a child’s parents are to have ESPR’ for a child, the court must consider making an order for equal time or ‘substantial and significant’ time. Equal time or substantial and significant time had to be both in the best interests of the child and ‘reasonably practicable’ for a court to make such an order (sub-s 65DAA(1)). ‘substantial and significant’ time was statutorily defined to include a range of types of contact including weekends, week days, being involved in the child’s daily routine and special days (sub-s 65DAA(3)).

An early decision held that an order for ESPR could be made even if the presumption did not apply, because orders were ultimately in the judge’s discretion as to what was in the BIC. This opened up the possibility of equal or other shared-care time orders even where a judge had found that family violence or abuse had occurred and had not applied the presumption (Citation2007 FamCA 315).

The problem with presumptions

Presumptions have long had a place in family law. Perhaps one of the best examples of a rebuttable legal presumption is that if a married woman gives birth to a child, her husband is presumed to be the father. Its basis is clear. But when a legislature includes a presumption in a discretionary decision-making law, the purpose is to curtail discretion (Dale Citation2022, p. 315) and embed policy in the practices of the courts and offices of professional advisers in the relevant sector. This was well understood by the government in 2006. Specific legislative instructions were issued to ‘advisers’ in the family law system – requiring them to discuss with parents whether equal time or substantial and significant time arrangements could be in the best interests of their children and reasonably practicable (s 63 DA). ‘advisers’ included lawyers, mediators (‘family dispute resolution practitioners’), and counsellors. The legal power of the presumption, its connection to parenting time outcomes and requirements on advisers meant that clients of the system were hearing about ‘the presumption’ and equal time every time they interacted with a family law professional. The impact of a presumption of this nature, therefore, went well beyond court outcomes and infiltrated out-of-court negotiations – formal and informal (Kaganas Citation2018, p. 568, Dale Citation2022, p. 315).

At the time of its introduction the author argued that the presumption looked like social science embedded in legislation and Part VII operated in a way that drew decision-makers, advisers and parents towards shared parental responsibility and time outcomes. The presumption seemed ‘to express a social science fact or “truth” that sharing responsibilities and duties between parents after separation is in children’s best interests, whereas this is not a simple truth’ (Rathus Citation2010, p. 165). Kaganas and Day-Sclater (Citation2004), p. 12) have similarly argued that the ‘norms espoused by the law in the context of contact disputes are derived from social science and from the knowledge generated by the “psy” professions … ’. When the law incorporates apparent social science into legal principles or assumptions those principles or assumptions become a ‘truth’ because they seem to reflect the social science (Kaganas and Day-Sclater Citation2004, p. 5, Rathus Citation2010, p. 165 and 178). In fact, the presumption was a ‘mechanism’ to implement the ‘government’s policy objectives’ of encouraging shared care (Rathus Citation2010, p. 179, see also Dale Citation2022, p. 356). This package of amendments inexorably pushed some of the wrong families towards shared responsibility and care time – families where there was violence, abuse and fear.

There was a spike in the use of social science research in the courts after the 2006 amendments became operative (Rathus Citation2016). Australian literature directly regarding the operation and effect of the legislative regime, along with broader social science research about shared care, was being cited in published judgements (Rathus Citation2016, pp. 367–368). It seemed that judges were ‘turning to the very research generated during and after the law reform process’ to ‘fill the gaps’ ‘when the law did not provide an answer for the families before them’ (Rathus Citation2016, p. 370). Although the legalisation might look like it reflected social science, the actual social science was different. However, the Full Court of the Family Court did not consider this increasing use of extraneous material in the courtroom appropriate and largely shut down that judicial practice in the decision of McGregor v McGregor (Citation2012) FLC 93–507. Since then the overt use social science literature has declined significantly, although it is not possible to tell the extent to which it might just be ‘rendered invisible by judges not naming their sources of information’ in judgements (Rathus Citation2016, p. 371).

Evaluations and reviews

The formally commissioned evaluation from AIFS demonstrated the powerful influence of legislative structure to encourage shared parenting (Kaspiew et al. Citation2009). This had been reinforced in the first appellate decision after the amendments, Goode v Goode, where the Full Court described the:

… legislative intent evinced in favour of substantial involvement of both parents in their children’s lives, both as to parental responsibility and as to time spent with children ….

(Goode v Goode Citation2006 FLC 93–286 [72])

AIFS concluded that allegations of family violence and child abuse had little impact on the making of orders for ESPR despite the legislation specifically providing that the presumption did not apply where these issues existed (sub-s 61 DA(2)(a) FLA; Kaspiew et al. (Citation2009), p. 190). ESPR outcomes occurred in nearly 80% of cases with allegations of family violence (Kaspiew et al. Citation2009, p. 190), suggesting that government confidence in the exceptions was misguided.

AIFS court data analysis and survey of parents suggests that the legislation was instrumental in pushing some families inappropriately into shared care. Using a definition for shared care of at least 35% of time with each parent, the court data showed that, in all of the cases where the contact hours were specified, shared care time increased from 16% pre-reform to 23% post-reform. Where those cases had been judicially determined, shared care time outcomes increased from four percent to 34% (Kaspiew et al. Citation2009, p. 132). Of particular concern were some of the results of the parent survey. Although a majority of parents with shared care time arrangements described their relationship with the other parent as ‘friendly or co-operative’, ‘21–24% of mothers with shared care-time arrangements … [or a minority of nights], maintained that their relationship with the child’s father was either highly conflictual or fearful’ (Kaspiew et al. Citation2009, p. 162).

Family law legislation amendment (family violence and other measures) act Citation2011

Background

After a tragic family homicide when a father killed his daughter publicly while on a contact visit pursuant to a consent order,Footnote1 the government commissioned an inquiry specifically into family violence and the family law. Richard Chisholm, a retired family court judge and former academic, led the inquiry. He concluded that some aspects of the FLA, such as the ‘friendly parent’ provision (sub-s 60CC(3)(c) as it was then), led to a reluctance to disclose or act on family violence (Chisholm Citation2009, pp. 109–110). He did not recommend the repeal of the presumption but proposed that it be amended to a presumption ‘in favour of each parent having parental responsibility’ (Chisholm Citation2009, p. 132). He also recommended the removal of any specific time outcomes, saying that, in making orders, ‘the court must not assume that any particular parenting arrangement is more likely than others to be in the child’s best interests, but should seek to identify the arrangements that are most likely to advance the child’s best interests in the circumstances of each case’ (Chisholm Citation2009, p. 132). His simplified BIC checklist omitted the friendly parent provision (Chisholm Citation2009, pp. 132–133). Some of his suggestions were taken up by the government in a set of reforms that became operative in 2012 but no changes were made to the presumption.

Overview of changes

The family violence amendments, which became operative in 2012, included the repeal of the ‘friendly parent’ sub-section and the insertion of a new section that gave the second ‘primary’ consideration, protection from harm, ‘greater weight’ than the first primary consideration regarding the benefit of ongoing meaningful relationships (s 60CC(2A). The sub-sections that replaced the friendly parenting sub-section rendered the past relevant, instead of requiring co-operative parenting into the future. Sub-sections 60CC(3)(c) and (ca) were about ‘the extent to which each of the child’s parents’ had been involved in the child’s life in terms of making major long-term decisions, spending time and communicating with the child and contributing to their maintenance. Renata Alexander’s review of published cases found that s 60CC(2A) appeared ‘to be having little impact given that the Act continues to heavily promote shared time and cooperative parenting’ (Alexander Citation2015, p. 331).

AIFS evaluated these reforms and found that orders for no contact or supervised contact were still rare. Orders for shared parental responsibility continued to be made in cases where there were allegations of child abuse and/or family violence (84% where there were allegations of either abuse or family violence), although judicially imposed ESPR orders decreased (Kaspiew et al. Citation2015, pp. 57–58).

The situation was different for parenting time orders. In terms of orders made by judges, where the ‘most direct effect of the law’ might expect to be seen, the ‘changes in patterns of care-time orders were almost negligible’ (Kaspiew et al. Citation2015, p. 66). This was ‘ … despite the fact that evidence raising protective concerns was adduced more often than it was before the reforms’ (Kaspiew et al. Citation2015, p. 66). It can be postulated that the 2012 family violence reforms did not have the impact the government had intended.

England and Wales law reform

At about the same time that the family violence amendments were implemented in Australia, England and Wales began another round of family law reform processes. The Family Justice Review Panel became aware of the Australian research on the 2006 amendments, as well as the later family violence amendments. The Panel made it ‘clear that there should be no presumption of shared parenting’ and a number of changes were made to the original Bill to avoid the ‘pitfalls of the Australian legislation’ (Kaganas Citation2013, pp. 273–274 and 278). The paramountcy principle was maintained in sub-s 1(1) of the Children Act Citation1989 but the section was amended to include a somewhat muted version of the Australian presumption:

(2A) A court … is … to presume, unless the contrary is shown, that involvement of [each] parent in the life of the child concerned will further the child’s welfare. (some details omitted)

To dampen over-enthusiasm towards shared parenting via the presumption, Practice Direction 12J – Child Arrangements and Contact Orders: Domestic Violence and Harm, originally introduced in England and Wales in 2008, was also amended. The 2014 amendment provided ‘that the court should not apply the presumption if its application would harm the child or the resident parent’ (Kaganas Citation2018, p. 558). Even after further tweaking of the Practice Direction in 2017 hunter et al. (Citation2020), p. 23) concluded that ‘ … little appear[ed] to have changed with the implementation and revisions of PD12J’.

Overlapping reviews in Australia

Reviews without reform

Despite the 2012 reforms, there was continuing public unease about the family courts generally and about how they dealt with family violence in particular. A series of parliamentary and government commissioned inquiries followed. Unhelpfully they overlapped and competed with each other for contributions from the regular participants in these processes and for media attention. The three major federal inquiries specifically about family law were:

The table below shows the inquiries with the key dates of their establishment, the delivery of their reports and the publication of the government response.

Many argued that the last inquiry should not proceed and that the government should instead respond to the previous inquiries and implement accepted recommendations (Kaye and Wangmann Citation2019).

There were many submissions to all of these inquiries from actors across the family law system. All of the reports recommended amendments to the FLA but the detail differed and none recommended a total repeal of the presumption. Exemplifying the problems with the concurrent nature of the inquiries, the Henderson Committee apparently did not feel it could directly recommend repeal of the presumption given that the ALRC had received a wide reference to inquire into the family law system just over two months before it reported. It recommended that ‘consideration [be] given to removing the presumption of ESPR’ because of concern that:

… the presumption is improperly being applied to many cases involving family violence and that is giving rise to court orders and consent orders which put people affected by family violence, including children, at unacceptable risk. (Henderson Committee Citation2017, p. 222)

The ALRC, however, only recommended that words be changed to address the confusion between equal time and equal shared parental responsibility (ALRC Citation2019, p. 39), replacing the existing presumption with a presumption of ‘joint decision making about major long-term issues’ (ALRC Citation2019, p. 16). It did recommend the repeal of the section that linked the presumption to particular post-separation parenting time outcomes (ALRC Citation2019, p. 16).

While these reviews were underway, empirical research into the family law system showed that women were still being advised not to raise family violence and were disbelieved about their allegations by professionals in the family law system (Francia et al. Citation2019, pp. 18 and 20). The presumption and ideas like the ‘benefit’ of on-going post-separation ‘meaningful’ relationships between parents and children, influenced the work of professionals in the system such as family report writers (generally social workers or psychologists), who prepare assessments of families in the courts. Reports had to be couched in the language and concepts of the law to be useful to the court (Rathus et al. Citation2021).

Despite a sense that the presumption and shared parenting time outcomes dominated Australian family law, shared care outcomes have remained in the minority of post-separation parenting time outcomes, but are increasingly common. Based on shared care being at least 30% of nights, it rose from a low base of three percent of arrangements in 1997 to nine percent in 2002–2003 and 17% in 2014–2015 (Keogh et al. Citation2018, p. 531). The ‘HILDA’ Survey, a longitudinal study of Australian households, used a different method of data collection. Their most recent results show that ‘there has been an increase in children spending three or more nights per week with the non-majority care parent, from 5.9% in 2003 [a smaller percentage than reported by Keogh at al. above] to 26.3% in 2021’ (Wilkins et al. Citation2024, p. 30). The latter percentage is significantly higher than Keogh et al. (Citation2018) found in 2014–2015. This data does not distinguish between how these arrangements were reached – judicially imposed, consent after litigation or mediation, or amicably and informally.

The family law amendment act Citation2023

Background

Prior to the election of the Australian Labor Party (ALP) in 2022, after nine years of conservative government, there were no clear indications of specific reforms to the Family Law Act. Then in late January 2023, a government Consultation Paper was released (Attorney-General’s Department Citation2023). The proposed amendments drew from the reports and recommendations of the many inquiries over the previous years, some of which have been discussed. Given the absence of a direct recommendation for repeal, the proposed reforms were quite radical. The presumption was repealed and so were the ‘primary’ best interests considerations. The BIC checklist became a simplified set of six factors.

Overview of changes

After making some changes from the Exposure Draft, the Family Law Amendment Bill Citation2023 was introduced into federal Parliament on 29 March 2024. The BIC factors were contained in s 60CC(2):

  1. what arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of the child or any proposed carer;
  2. any views expressed by the child;
  3. the developmental, psychological, emotional and cultural needs of the child;
  4. the capacity of each proposed carer to provide for the child’s developmental, psychological, emotional and cultural needs;
  5. the benefit to the child of being able to have a relationship with the child’s parents, and significant others, where it is safe to do so;
  6. anything else that is relevant to the particular child (summarised for brevity).

This list is quite similar to s 1(3) of the Children Act Citation1989 in England and Wales. Two main differences are: the English Act still has a provision about ‘the likely effect on him [sic] of any change in his circumstances’ (s 1(3)(c)), which Australia has abandoned; and Australia has clung to a sub-section about the ‘benefit’ to the child of on-going post-separation relationships with their parents, which England and Wales has avoided. Section 60CC(2) may also seem a little like the 1983 list four decades later – but on closer inspection it is different in a number of ways. Some sections that turned the focus to the past in 1983 are not there, as will be discussed later.

Safety is not the same as history of family violence

It might also seem that this list would protect victims of family violence, but the Bill omitted the provisions about a history of family violence and family violence orders which have been features of the FLA since 1995 (s 60CC(3)(j) and (k)). Those provisions were one of the clearest manifestations of successful lobbying by women’s groups to have family violence recognised as relevant to parenting cases (Rathus Citation2013). The Explanatory Memorandum for the 2023 Bill said:

… the existence of any family violence orders applying to the child or a member of the child’s family, and the nature of these orders, will remain relevant under new paragraph 60CC(2)(a) (as was provided for by previous paragraph 60CC(3)(k)). (Explanatory Memorandum FLAB 2023, p. 32)

This was an optimistic interpretation. The removal of any sections of an Act during a reform process can be read as a message that the repealed sections were problematic and no longer good law or good ideas. A history of family violence and information about existing protection orders would not automatically be presented to the court because of sub-s 60CC(2)(a). A court can exercise discretion as to what evidence is relevant in determining safety. There should not be any ambiguity regarding the relevance or admissibility of information about any history of family violence or any protection orders that have existed or are still in place. A court will always have discretion regarding the weight to be given to such evidence. The specific repeal and removal of these sub-sections sent a dangerous message.

A provision regarding ‘safety’ is not the same as sections that require consideration of family violence which has occurred in the past. Talking about safety is talking about the future. Talking about violence is talking about the past – and talking about the past is critical to women and children being able to tell their stories when they have experienced domestic or family violence or abuse. Research into family report writers in Australia shows the tendency of those professionals to look to the future and thereby diminish the importance of past conduct, including family violence. Some family report writers transformed domestic violence ‘into something that was not too serious, episodic, “only parental conflict” and/or an act from the past that victims needed to “get over”’ (Jeffries et al. Citation2016, p. 1373 and 1387). The experience of a mother who had been the subject of a family report resonated with many of the other mother participants in the research:

… the [family report writer] straight away said to me … I don’t want to hear anything about your past domestic violence. (Rathus et al. Citation2021, pp. 20–21)

Once the relevance of family violence is framed in the language of safety, it permits erasure of the past. This point was taken up by Zoe Daniel MP (one of the new ‘teal’ independents in Australia’s House of Representatives). During the Parliamentary Debate she said:

The bill relies heavily on the term ‘safety’ when it talks about domestic and family violence. … The overly simplistic focus on ‘safety’ here is a subtle shift in language which rolls back on the rich understanding of domestic and family violence we have gained recently. This framing fails to recognise the important realities of past domestic and family violence in the context of future parenting arrangements. (Daniel Citation2023, p. 144)

The Bill was referred to the Senate Legal and Constitutional Affairs Legislation Committee (Green Committee Citation1980)., At a public hearing Women’s Legal Services Australia explained their concern about the repeal of s 60CC(2A) which had given more weight to ‘protection from harm’ than the ‘benefit’ of ‘meaningful relationships’ in the primary considerations:

In the Bill, safety is no longer the most important consideration when the court is determining what is in the child’s ‘best interests’. Rather, there is now a list of factors that the court must take into account and safety is one of a number of factors. WLSA is supportive of refining the list of the child’s ‘best interests’ factors at section 60CC, including into a single list. … However, our support for a single list of factors is contingent upon prioritising the safety of children and adult victim-survivors. (Green Committee 2023, p 13)

The final Amendment Act did not prioritise the ‘safety’ sub-section (s 60CC(2)(a)), but did include a provision specifically recognising the relevance of a history of family violence (s 60CC(2A)).

In considering the matters set out in paragraph (2)(a), the court must include consideration of (summarised for brevity):

  1. any history of family violence, abuse or neglect involving the child or a person caring for the child; and
  2. any relevant family violence order.

As a matter of statutory interpretation, the drafting is problematic. It connects the family violence sub-sections only to s 60CC(2)(a) and not to the whole of s 60CC(2). Family violence is obviously relevant to all of the BIC factors and not just safety. We will have to wait to see how these provisions all work together in practice.

What has been lost?

Two aspects of the former legislation have been lost which may also affect how the new legislative regime is interpreted or applied. The first are the provisions that dealt with parenting time orders (s 65DAA) and the second relates to the sub-sections in the best interests list that most clearly directed attention to the roles of the parents during the intact relationship.

The ’time’ sections

One of the most significant concerns with the FLA as constructed through the 2006 reforms was the connection of the presumption – or orders for ESPR – to specific time outcomes. Many had criticised this legislative connection, with Chisholm’s Family Violence Review specifically recommending its removal (Chisholm Citation2009, p. 132). However, the time section contained some useful features which have now disappeared.

Sub-section 65DAA(3) contained a definition of ‘substantial and significant’ time. Although all elements had to be present for the arrangement to formally be considered ‘substantial and significant’ time, the section presented a set of ideas for families to consider, and were no doubt drawn from, or influenced by, social science research. They provided alternatives to more formulaic ideas but enabled the child to maintain a primary home while fostering a genuine relationship with the other parent. The arrangements contained in sub-s 65DAA(3) were (summarised for brevity):

(a) days that fall on weekends and holidays and days that do not;

(b) time that allows the parent to be involved in the child’s daily routine and their special occasions;

(c) time that allows the child to be involved in special occasions of the parent.

These ideas are no longer contained in the legislation and there is no specific encouragement to think about these kinds of arrangements.

The other sub-section that has been repealed contained a list of factors a court was to have regard to when determining whether an order for equal time or substantial and significant time would be ‘reasonably practicable’ (s 65DAA(5). These were:

  1. how far apart the parents live from each other;
  2. the parents’ current and future capacity to implement such an arrangement;
  3. the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing it;
  4. the impact that such arrangement of that kind would have on the child; and
  5. such other matters as the court considers relevant.

When this list was introduced in 2006 it represented themes generally emerging from much of the social science literature on shared parenting as well as the existing Australian case law (Ryan Citation2005).Footnote2 Sub-section 65DAA(5) became important in determining relocation cases after the High Court held that it meant a court had to consider the practical feasibility of the living circumstances of the parent wishing to move. If they were not ‘reasonably practicable’ then consideration of equal time or substantial and significant time was not triggered. In the case the mother was largely unemployed and living in a caravan – with her daughter half the time – in a remote mining town (MRR v GR (Citation2010) FLC 93–424 at [15]). It was a useful set of guidelines for advisers to discuss with clients and judges to consider in all cases.

Equal time or other forms of shared time orders can still be made – and will be. The absence of these provisions raises some interesting questions.

The ‘primary carer’ and history of care recognition sections

The other legislative losses that may be relevant to advice and decision-making under the new Part VII, are the BIC sub-sections most relevant to the role of primary carer:

None of these sub-sections have been repeated in the simplified list of six main factors in the 2023 BIC list. The sub-sections regarding the nature of the relationship with the child and the attitude to the child had both been present since the 1983 checklist.

As a matter of practice, the factors in the BIC list of ‘additional’ considerations (s 60CC(3) as it was) were often used as headings in affidavits, explicitly or implicitly. If an affidavit provided information about each of those factors it was easy for a court to incorporate that information into their understanding of how the law might apply to the facts of the case before them. But now the list does not so obviously provide opportunities to talk about the past relationship, how childcare worked when the parties were together, or how this might be relevant to the order the court has to make.

It is suggested the habit of family law to reach into the future is on subtle display. After the views of the child, the shift in gaze can be discerned in the new BIC factors. The ‘developmental, psychological, emotional and cultural needs of the child’; the ‘capacity of [everyone who is seeking to look after the child] to provide for the child’s developmental, psychological, emotional and cultural needs’; and the ‘benefit to the child of being able to have a relationship’ with their parents and other’ significant’ people, ‘where it is safe to do so’ (a reformulation of the previous first ‘primary’ consideration) – all look to the future. Each of these is about what could happen, what each parent or other carer may be able to do.

Over time Australian family law has determinedly turned its gaze from the past to the future. Despite the fact that mothers are the primary carers of children in most families, and that this was even more so in the earlier years of the FLA (Baxter Citation2024), Australia has eschewed any idea of a mother preference since 1976, the first year of operation of the Family Court (In the marriage of Raby (Citation1976) FLC 90–104). Relevance of the past arguably crept back in under the guise of ‘stability’. The principle was enunciated in 1980 in Cilento’s case (Cilento and Cilento (Citation1980) FLC 90–847) and confirmed in Cowling and Cowling (Citation1998) FLC 92–801) after the FLRA Citation1995. Although this legal principle seems consistent with the prevailing social science, any importance of ‘stability’ was disavowed as relevant in the first appellate case after the 2006 reforms. In Goode v Goode the Full Court said:

The reasoning in Cowling, particularly … to the effect that the best interests of the child are met by stability when the child is considered to be living in well-settled circumstances, must now be reconsidered in light of the changes to the Act… . (Goode v Goode Citation2006 FLC 93–286 [71])

Again, we will have to wait to see if these subtle shifts influence the evidence presented in cases and the outcomes that follow.

Conclusion

It is too early to tell how the new Act will actually operate. The changes have been met with qualified enthusiasm by women’s groups, caution but concern about uncertainty by legal groups and unqualified condemnation by the current opposition. This article has examined the history of the FLA’s parenting provisions over 40 years, from their first manifestation to the latest changes. Returning to the three themes identified in the introduction to this article has shown that the presumption became a dominant philosophy in family law after its introduction and the intended exemptions did not operate effectively. Some of the wrong families were pushed towards post-separation shared care. The language used in Part VII seemed to reflect the social science literature of the time but potentially promoted shared parenting outcomes without effective caveats. These factors contributed to a future gaze in family law.

It is argued that, despite the repeal of the presumption and amendment of the BIC factors, there is a still a future focus in the FLA that may disadvantage mothers. It is also argued that other sections that have been repealed represent a loss of some useful guideposts for parents, advisers and judges to consider if equal time or substantial or significant time is a possible outcome. These concerns may prove unfounded – but only time and evaluation will tell. Perhaps mostly importantly there should be legislative guidance as to when equal time or shared care time orders should not be made.

In England and Wales, as with Australia’s 2017 henderson Committee report, a 2022 house of Lords Committee inquiry into the Children and Families Act 2014 considered the operation of the presumption there and reported concern that in ‘at least some cases the rights of parents may be being put ahead of the rights and welfare of children’ (Citation2022, at [168]. However, the Committee stated that there was ‘a clear lack of adequate data on the effect of the presumption, both on court judgements and on how it sends a signal which affects how cases are settled out of court’ and deferred to a forthcoming government review of the presumption – which has not yet eventuated (Citation2022, at [168]).

Responding to this lack of action, ‘Right to Equality’ is campaigning for repeal of the presumption. A report published by that group reviewed the literature, empirical studies and case law and found that the statutory presumption reinforced the pro-contact culture, ‘which operates as a barrier to addressing domestic abuse while maintaining the impression that the best interests of the child are being served’ (Barnett et al. Citation2024, p. 13). They concluded that a ‘significant consequence of the presumption of contact is that survivors of domestic abuse and their children can be compelled to remain in contact with their abusers’ (Barnett et al. Citation2024, p. 19).

Back in Australia, in December 2023, after the Family Law Amendment Act (Citation1983) had been passed, Senator Michalea Cash, the Shadow Attorney-General, said that her party would undo the changes the ALP had made if they won government at the next election (Malcolm Citation2023). According to Cash, Labor had ignored the ‘explicit recommendations of Australia’s leading law reform body’, and she warned the changes ‘send a message to the courts that parliament no longer considers it beneficial for both parents to be involved in decisions about their children’s lives’. Her statements were supported by Professor Patrick Parkinson, one of the architects of the 2006 reforms, who was quoted as saying:

I think the law that the government has passed is very imbalanced and doesn’t adequately support the role of both parents in children’s lives when it is beneficial for them. It is very focused on the issue of violence to the detriment of other issues the courts should consider. (Malcolm Citation2023)

It is difficult to understand how focusing on safety can be to the detriment of other issues – and the safety provision has not been given extra weight. Rather than condemning the reforms, now it is time to observe and evaluate, but to expect some unintended consequences to emerge.

Disclosure statement

No potential conflict of interest was reported by the author(s).

Notes

1. This was murder of Darcey Freeman by her father Arthur Freeman.

2. At the time Judy Ryan was a judicial officer in the Federal Magistrates Court and was later elevated to the Family Court of Australia.

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