The new family law regime

What are the main aims of the new laws?

Changes to the Family Law Act 1975 made in 2006 include:

• the introduction of a new presumption of shared parental responsibility
• a new way for the court to determine what is in the best interests of a child
• a focus on parenting plans to reach agreement over children without having to attend court
• an emphasis on Family Relationship Centres to provide advice and help parents reach agreement outside the court system.

Who does it apply to?

The new laws apply to any parenting orders made on or after 1 July 2006, regardless of when the application first went to court.

The new laws do not amount to a “changed circumstance” that parents can rely on to argue that their existing order should change.

Parenting plans

There is a new focus on parenting plans to reduce the amount of time separating parents spend in court.

Parenting plans are agreements reached between parents outside the court system and are different from parenting orders which are made by the court.

Parenting plans will generally be written and signed agreements between parents, setting out the day-to-day arrangements for their children.

Where the child lives, what time the child spends with each parent, how the plan can be altered and how future decisions will be made can all be included in a parenting plan.

The plans are voluntary and they must be made free from threats or coercion.

Your lawyer will advise you on entering into a parenting plan and will also give you information about where you can get help in developing such a plan.

The presumption of shared parental responsibility

The new laws introduce a presumption of equal shared parental responsibility when parenting orders are made. But what does this mean?

It does not mean 50:50 joint custody. Instead, the presumption relates to the decision making about major long-term issues by both parents, for the benefit of the child.

The presumption of equal shared parental responsibility applies in all cases except if there are reasonable grounds to believe that a parent has engaged in child abuse or family violence.

This means that unless the exception applies, the court must presume that it is in the best interests of the child for his/her parents to have equal shared parental responsibility for the child.

The presumption may have some bearing on the amount of time the court orders that a child spends with his/her parents.

If the court does order equal shared parental responsibility, it will then consider ordering equal time or “substantial and significant” time. Its decision must be in the best interests of a child and reasonably practicable.

What do the terms “reasonably practicable” and “substantial and significant time” mean?

When determining the reasonable practicality of an order, the court will consider:

• how far apart the parents live from each other
• the parents’ current and future capacities to implement an arrangement
• the parents’ current and future capacities to communicate with each other and resolve difficulties, and
• the impact that an arrangement of that kind would have on the child.

“Substantial and significant time” is defined as time, including week days, which allows the parent to be involved in the child’s daily routine and for both parent and child to be involved in occasions of special significance to each other.

How will the court decide what is in the “best interests” of the child?

Under the new laws, the most important considerations are:

• ensuring that children have the benefit of a meaningful involvement with both parents, to the maximum extent possible, consistent with their best interests, and
• protecting children from family violence, abuse and psychological harm.

The court will also consider:

• the views of the child (taking into account the child’s age and maturity)
• the relationship of the child with each parent and other people (eg grandparents)
• the likely effect of any change in circumstance
• the capacity of each parent to provide for the child’s emotional and intellectual needs
• how well a parent has helped the other to spend time with their child – parents must try to facilitate and encourage the child’s relationship with the other parent (unless there are good reasons not to)
• the extent to which both parents have taken or failed to take the opportunity to spend time with and communicate with their child, and fulfilled maintenance obligations.

Requirement to attend family dispute resolution

Under the new family law regime, parents will be required to attend family dispute resolution and make a genuine effort to resolve their disagreements before taking their parenting issue to court.

This requirement will be phased in and according to the federal government’s best estimate, is likely to apply to new parenting cases from the middle of 2007.

There will be some exceptions to this rule, including disputes where family violence or child abuse is an issue.

Family violence

Family violence is a complex issue that is dealt with in a separate report, “The new family law regime – how does it deal with violence?”

But it should be noted that the family law changes contain many exceptions for situations where family violence and abuse is involved.

For instance, any orders, injunctions and parenting arrangements made by the court must not expose any member of the family to violence.

Family violence is described in the Act as:

“conduct, whether actual or threatened, by a person towards, or towards the property of, a member of the person’s family that causes that or any other member of the person’s family reasonably to fear for, or reasonably to be apprehensive about, his or her personal wellbeing or safety.

A person reasonably fears for, or reasonably is apprehensive about, his or her personal wellbeing or safety in particular circumstances if a reasonable person in those circumstances would fear for, or be apprehensive about, his or her personal wellbeing or safety.”

Relocation – what if one parent moves away?

The obligation of the court to firstly consider the maximum meaningful involvement for each parent may place increased pressure to make orders that result in the child living near both parents, wherever possible.

The changes to the Family Law Act 1975 are complex. For help specific to your situation, you should speak to one of our lawyers.