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Chisholm, R & Fehlberg, B. (2022) The High Court and family law: The Hague child abduction cases. Australian Journal of Family law, 35: 39-67.
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The Family Law Amendment Act 2023 (Cth) came into force on 6 May 2024. It repealed the presumption of equal shared responsibility under the Family Law Act (‘FLA’) (Schedule 1 Part 2 section 16, which repealed section 61 DA FLA) and removed the subsequent consideration of equal or “substantial and significant” time (Schedule 1 Part 2 section 34, which repealed section 65DAA FLA). The FLA now includes the following sections about major long-term issues and allocation of parental responsibility:
•
New section 61CA provides that unless there are court orders stating otherwise, and if it is safe to do so, parents are encouraged to consult each other about major long-term issues in relation to the child, having regard to the best interests of the child as the paramount consideration
•
New subsection 61D(3) (alongside existing subsection 64B(3)) makes it clear that courts will still make orders relating to the allocation of parental responsibility, including orders for “joint or sole decision-making in relation to all or specified major long-term issues”
•
New section 61DAA sets out the effect of an order that provides for joint decision-making on major long-term issues; which is that parties are required to consult with each other and make a genuine effort to come to a joint decision.
The 2023 amendments also removed the hierarchy of factors in the FLA (i.e. primary and additional considerations) for determining what is in a child’s best interests and now requires the FCFCOA to consider all the factors set out in section 60CC(2) and (2A) FLA, including:
(2)
(a) what arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of:
(i)
the child; and
(ii)
each person who has care of the child (whether or not a person has parental responsibility for the child);
(b)
any views expressed by the child;
(c)
the developmental, psychological, emotional and cultural needs of the child;
(d)
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;
(e)
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;
(f)
anything else that is relevant to the particular circumstances of the child.
(2A) In considering the matters set out in paragraph (2)(a), the court must include consideration of:
(a)
any history of family violence, abuse or neglect involving the child or a person caring for the child (whether or not the person had parental responsibility for the child); and
(b)
any family violence order that applies or has applied to the child or a member of the child’s family.
Subsection 60CC(3) of the FLA provides a standalone ‘best interest’ factor requiring a court to consider the right of Aboriginal or Torres Strait Islander children to enjoy their culture, as well as the support they will receive to connect to that culture. This operates in addition to the general considerations at subsection 60CC(2).
The explanatory memorandum to the Family Law Amendment Act 2023 (Cth), states that the redrafted section 60CC (outlined above) is intended to give concrete guidance yet flexibility ‘...and provides the court with the ability to consider the unique circumstances in each parenting matter in a way that places the best interests of a child at the forefront of decision-making.’
Further, in order to determine those arrangements that will best support the child within their unique developmental context, a judicial officer should consider matters relevant to the child’s age and developmental stage. In making this determination, a judicial officer may give weight to recommendations made in a court-ordered Family Report or other court-ordered expert report (Sections 62G, 55A(2), 68M(2) and Chapter 7 of the Family Law Rules 2021), or to submissions made to the court by an Independent Children’s Lawyer (ICL). (Part VII Division 10 FLA). Section 11K FLA provides a power to make ‘regulations prescribing standards and requirements for family report writers.’ Section 11K provides a framework for what regulations can cover, including expectations and duties of family report writers, compliance processes and oversight entities and consequences for non-compliance with a regulatory regime. Once regulations are developed, standards and requirements may be prescribed for all family report writers, or a class or classes of family report writers in connection with the role of preparing ‘designated family reports’ (section 11K(1) FLA, Section 11J FLA)
Note where consent orders are proposed it may be appropriate for the judicial officer to ask questions or request further information in order to closely scrutinise the suitability of the proposal, or to appoint an Independent Children’s Lawyer (Part VII Division 10 FLA) or order a Family Report or expert report (Part III FLA) to determine what is in a child’s best interests.
Western Australia
Section 70A FCA provides that when making a parenting order, the Family Court of Western Australia must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility (section 89AC FCA). The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or person living with a parent) has engaged in child abuse or family violence. The presumption may be rebutted by evidence that equal shared parental responsibility would not be in the best interests of the child. Where the presumption applies, the court must also consider ordering “equal time” or “substantial and significant time” with each parent where it is reasonably practicable and in the best interests of the child (section 89AA FCA).
In addition to the primary considerations of the benefit of the child having a meaningful relationship with both parents and the need to protect the child from physical or psychological harm, there are a number of additional considerations the Family Court of Western Australia must consider when determining what is in the child’s best interests. These include things such as the nature of the relationship between the child and their parents, the likely effect of changes in circumstances, the parent’s capacity to provide for the needs of the child (including emotional and intellectual needs) and several additional factors outlined in section 66 FCA
Where an application is made to the Family Court of Western Australia for a parenting order by consent, the parties must formally advise the court whether any allegations had been made in the proceedings of family violence or child abuse or neglect (or risk thereof), or of mental ill-health, drug or alcohol, serious parental incapacity or any other allegation involving a risk to the child concerned AND whether a party considers that the child concerned has been or is at risk of abuse, neglect or family violence, and whether a party considers that they or another party to the proceedings has been or is at risk if the family violence (Rule 167 Family Court Rules 2021 (WA)).
In some cases where consent orders are proposed it may be appropriate for the judicial officer to ask questions or request further information in order to closely scrutinise the suitability of the proposal, or to appoint an Independent Children’s Lawyer or order a Family Report or expert report (see Part 5 Division 5 FCA) or order a Family Report or expert report (see Part 4A FCA; section 73 FCA; Part 15 Division 5 Family Court Rules 2021 (WA) ) to determine what is in a child’s best interests
The Family Law Amendment Act 2023 (Cth) came into force on 6 May 2024. It repealed the presumption of equal shared responsibility under the Family Law Act (‘FLA’) (Schedule 1 Part 2 section 16, which repealed section 61 DA FLA) and removed the subsequent consideration of equal or “substantial and significant” time (Schedule 1 Part 2 section 34, which repealed section 65DAA FLA). The FLA now includes the following sections about major long-term issues and allocation of parental responsibility:
•
New section 61CA provides that unless there are court orders stating otherwise, and if it is safe to do so, parents are encouraged to consult each other about major long-term issues in relation to the child, having regard to the best interests of the child as the paramount consideration
•
New subsection 61D(3) (alongside existing subsection 64B(3)) makes it clear that courts will still make orders relating to the allocation of parental responsibility, including orders for “joint or sole decision-making in relation to all or specified major long-term issues”
•
New section 61DAA sets out the effect of an order that provides for joint decision-making on major long-term issues; which is that parties are required to consult with each other and make a genuine effort to come to a joint decision.
The 2023 amendments also removed the hierarchy of factors in the FLA (i.e. primary and additional considerations) for determining what is in a child’s best interests and now requires the FCFCOA to consider all the factors set out in section 60CC(2) and (2A) FLA, including:
(2)
(a) what arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of:
(i)
the child; and
(ii)
each person who has care of the child (whether or not a person has parental responsibility for the child);
(b)
any views expressed by the child;
(c)
the developmental, psychological, emotional and cultural needs of the child;
(d)
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;
(e)
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;
(f)
anything else that is relevant to the particular circumstances of the child.
(2A) In considering the matters set out in paragraph (2)(a), the court must include consideration of:
(a)
any history of family violence, abuse or neglect involving the child or a person caring for the child (whether or not the person had parental responsibility for the child); and
(b)
any family violence order that applies or has applied to the child or a member of the child’s family.
Subsection 60CC(3) of the FLA provides a standalone ‘best interest’ factor requiring a court to consider the right of Aboriginal or Torres Strait Islander children to enjoy their culture, as well as the support they will receive to connect to that culture. This operates in addition to the general considerations at subsection 60CC(2).
The explanatory memorandum to the Family Law Amendment Act 2023 (Cth), states that the redrafted section 60CC (outlined above) is intended to give concrete guidance yet flexibility ‘...and provides the court with the ability to consider the unique circumstances in each parenting matter in a way that places the best interests of a child at the forefront of decision-making.’
Further, in order to determine those arrangements that will best support the child within their unique developmental context, a judicial officer should consider matters relevant to the child’s age and developmental stage. In making this determination, a judicial officer may give weight to recommendations made in a court-ordered Family Report or other court-ordered expert report (Sections 62G, 55A(2), 68M(2) and Chapter 7 of the Family Law Rules 2021), or to submissions made to the court by an Independent Children’s Lawyer (ICL). (Part VII Division 10 FLA). Section 11K FLA provides a power to make ‘regulations prescribing standards and requirements for family report writers.’ Section 11K provides a framework for what regulations can cover, including expectations and duties of family report writers, compliance processes and oversight entities and consequences for non-compliance with a regulatory regime. Once regulations are developed, standards and requirements may be prescribed for all family report writers, or a class or classes of family report writers in connection with the role of preparing ‘designated family reports’ (section 11K(1) FLA, Section 11J FLA)
Note where consent orders are proposed it may be appropriate for the judicial officer to ask questions or request further information in order to closely scrutinise the suitability of the proposal, or to appoint an Independent Children’s Lawyer (Part VII Division 10 FLA) or order a Family Report or expert report (Part III FLA) to determine what is in a child’s best interests.
Western Australia
Section 70A FCA provides that when making a parenting order, the Family Court of Western Australia must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility (section 89AC FCA). The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or person living with a parent) has engaged in child abuse or family violence. The presumption may be rebutted by evidence that equal shared parental responsibility would not be in the best interests of the child. Where the presumption applies, the court must also consider ordering “equal time” or “substantial and significant time” with each parent where it is reasonably practicable and in the best interests of the child (section 89AA FCA).
In addition to the primary considerations of the benefit of the child having a meaningful relationship with both parents and the need to protect the child from physical or psychological harm, there are a number of additional considerations the Family Court of Western Australia must consider when determining what is in the child’s best interests. These include things such as the nature of the relationship between the child and their parents, the likely effect of changes in circumstances, the parent’s capacity to provide for the needs of the child (including emotional and intellectual needs) and several additional factors outlined in section 66 FCA
Where an application is made to the Family Court of Western Australia for a parenting order by consent, the parties must formally advise the court whether any allegations had been made in the proceedings of family violence or child abuse or neglect (or risk thereof), or of mental ill-health, drug or alcohol, serious parental incapacity or any other allegation involving a risk to the child concerned AND whether a party considers that the child concerned has been or is at risk of abuse, neglect or family violence, and whether a party considers that they or another party to the proceedings has been or is at risk if the family violence (Rule 167 Family Court Rules 2021 (WA)).
In some cases where consent orders are proposed it may be appropriate for the judicial officer to ask questions or request further information in order to closely scrutinise the suitability of the proposal, or to appoint an Independent Children’s Lawyer or order a Family Report or expert report (see Part 5 Division 5 FCA) or order a Family Report or expert report (see Part 4A FCA; section 73 FCA; Part 15 Division 5 Family Court Rules 2021 (WA) ) to determine what is in a child’s best interests