In recent years, amendments have been made to Australian family law to place a greater emphasis on the safety of children and their carers, typically the mother. The Family Law Amendment Act 2023 (Cth) repealed the presumption of equal shared parental responsibility and simplified the considerations for a court to consider.
Now, the best interests of the child take precedence over assumptions about equal time or shared responsibility. This change aims to ensure that legal decisions focus primarily on the child’s safety, especially in cases involving family violence. For example, if one parent is accused of family violence, or if there are concerns about the child’s safety with a particular parent, the court can prioritise the child’s safety over maintaining equal time with both parents.
While section 61DA of the Family Law Act (which allowed the presumption to be rebutted in cases of family violence) has been repealed, section 60CC(2)(a) now plays a central role. This provision explicitly requires the court to consider family violence and abuse when determining the child’s best interests. As a result, the safety of both the child and primary carer remains the top priority when making parenting orders.
The amendment reduces the legal obligation for parents to consult with each other when it is unsafe, granting the court more discretion to make decisions that protect both the child and the carer.
This is crucial for promoting safer, more flexible outcomes, particularly in situations involving family violence or other risks to the child’s well-being.
In short, the 2023 Amendment simplifies the legal process, ensuring that decisions are focused on child protection and allowing courts to prioritise safety over assumptions about equal time or shared responsibility. This is a significant step forward in family law, ensuring that the needs of children are always at the forefront of decision-making.
If you’re separating or going through a divorce, it’s important to seek legal advice, especially if children under 18 are involved. Understanding your rights, as well as the rights of your child, is essential. Under Australian family law, children have the right to a meaningful relationship with both parents, but also the right to be protected from harm.