The Morrison government plans to redraft part of the Family Law Act to “minimise confusion” about controversial changes made by the Howard government, such as the presumption of “equal shared parental responsibility”.
But the government says it “remains committed to ensuring that, in circumstances where it is appropriate, there be consideration by the courts of children spending equal time, or substantial and significant time, with each parent”.
Amanda Stoker, the assistant minister to attorney general Christian Porter, released the government’s long-awaited response to the Australian Law Reform Commission’s review of the family law system. That review was first commissioned by the Turnbull government in 2017 and the report with 60 recommendations came out in 2019.
The ALRC’s report said the 2006 amendments to Family Law Act had introduced the presumption of “equal shared parental responsibility”, which were interpreted by many to be a presumption of “equal shared care”. The ALRC argued that the “widespread nature of that misunderstanding has a number of effects, including leading unrepresented parties to believe they have no choice but to agree to equal time and to enter into informal agreements based on a misapprehension of the law”.
According to the detailed response released yesterday, the government “agreed in part” with the recommended repeal of section 60B of the Family Law Act – which outlines principles for parenting orders – amid concerns that many of the principles overlap with the child’s best interests factors outlined elsewhere.
The government also “agreed in part” with the recommendation to amend Section 61DA to replace the presumption of “equal shared parental responsibility” with a presumption of “joint decision making about major long-term issues”.
But it did not agree with repealing Section 65DAA, which requires the courts to consider, in certain circumstances, the possibility of the child spending equal time, or substantial and significant time with each parent. The government stressed that this requirement “is only that courts consider making such an order”.
The government said it would consult on changes to the decision-making framework to ensure it “promotes the best interests of children, and recognises that ultimately parenting arrangements should be shaped around the circumstances of the particular child”.
It acknowledged “that there are reasons, including for safety, or relating to practicalities, why it will not always be in the best interests of a child that equal time or substantial and significant time be spent with each parent”.